Byramjee Jeejeebhoy Private Limited v. State of Maharashtra

79. Thus, the basic requirement for the CEO-SRA to exercise jurisdiction under Section 13(1) of the Slum Act is inter alia on the premise that there is a slum rehabilitation area and that if the owners, landholders or occupants of such land do not come forward within a reasonable time which shall not be more than 120 days with a slum rehabilitation scheme for redevelopment of such slum land for relocation and rehabilitation of protected and other occupiers, the authority accordingly can pass an order to determine to redevelop such land by entrusting the same to any agency or other developer for such purpose. Thus, necessarily sub-section (1) of Section 13 per se does not contemplate any acquisition of land. It merely contemplates that on the failure of the owners, landholders or occupants of a slum rehabilitation area to come forward within a reasonable time which shall not be more than 120 days, the competent authority (CEO, SRA) can pass an order to redevelop such land by entrusting it to any agency or other developer for such purpose. The question is what would be the subjective satisfaction that the owner has not come forward to develop the land and whether such intention which was on record of the SRA could be given a go-bye by the CEO-SRA for want of a formal scheme.

84. At this stage, it may not be out of place to note the consequences which Section 13 of the Slum Act would bring about. Section 13(1) of Slum Act as noted above, provide that if the landholders or occupants of the land do not come forward within a reasonable time, which shall not be more than 120 days with a slum rehabilitation scheme to be undertaken by redevelopment of such land, in such eventuality, the CEO, SRA may determine to re-develop such land by entrusting the same to any agency or other developer for such purpose and if such an order is to be passed by the CEO, SRA, a reasonable opportunity of being heard is to be given to the concerned land owner or occupant or developer as the second proviso to Section 13(2) would provide. However, the present case is not a case where a notice under Section 13 was issued so that the time limit, as specified in Section 13(1) of 120 days for the petitioner as owner to come forward would start ticking and/or become applicable. In any event, even assuming that the petitioner did not come forward within a period of 120 days from the declaration of the land in question as slum rehabilitation area, which was by a notification dated 31 December, 2020, the logical corollary would be an obligation on the CEO, SRA to issue a notice under Section 13 of the Slum Act, as Section 13 clearly provides that the CEO would be empowered to redevelop such land by entrusting it to any agency or other developer for such purpose. In the present case, the circumstances as borne out by the record were two fold that not only the petitioner in his capacity as owner of the land in question had expressed its readiness and willingness to develop the land as occupied by the slum dwellers and declared as a slum rehabilitation area, but also even the society had appointed respondent no. 5 as a developer and a proposal was sought to be submitted through such developer to undertake a slum rehabilitation scheme. If this be the position, it is difficult to comprehend as to how the CEO, SRA in deciding the objections under Section 14 can take recourse to Section 13(1) of the Slum Act so as to impose a time limit of 120 days, being a relevant factor for taking a decision, that the land of the petitioner needs to be acquired. In any event, once Section 14 notice (as impugned by the petitioner) itself has referred to the fact that the land is sought to be acquired at the behest of the society, in our opinion, there is no reason for invoking the provisions of Section 14 of the Slum Act by the CEO, SRA. The object and intention of Section 14 cannot merely be the intention of a slum society that the land be acquired as desired by the slum society. If such meaning is to be attributed to Section 14, the provision would be rendered draconian, bringing horrendous consequences not imagined by the legislature, and extraneous to the provision. *****

105. The next contention as urged on behalf of the developer is to the effect that the petitioner had waived off its rights to undertake the redevelopment of the land for the reason that the petitioner had approached the AGRC in an appeal assailing the declaration of the land as a ‘slum rehabilitation area’. Such contention cannot be accepted considering the facts of the present case, in as much as the petitioner, at all material times, had made known of its intention not only to the society, but also to the SRA that the petitioner was ready and willing to undertake the redevelopment in the manner as suggested by the petitioner. Such request of the petitioner was never rejected by the SRA. This apart, the petitioner had also assailed the decision of the SRA to declare the land in question as a slum rehabilitation area under the provisions of Section 3C(1) of the Slum Act by filing an appeal before the AGRC. This clearly indicated that the petitioner had a quarrel on the petitioner's land being declared as a slum rehabilitation area, when the petitioner asserted it to be illegal. Such position taken by the petitioner is implicit of the fact that the petitioner has accepted that the petitioner would be under an obligation to undertake rehabilitation of the slum dwellers situated on the petitioner's land as also it would be its legal obligation when called upon to do so by the SRA. The petitioner cannot have a situation that merely because he has filed an appeal before the AGRC assailing the declaration of the land as a slum rehabilitation area, he would surrender to the slum society, developer and CEO SRA his rights to develop his own land. Such arrangement of the petitioner would leave to travesty of justice.

106. On a perusal of Section 13(1) of the Slum Act as provided under Chapter- I -A, the jurisdiction with the CEO, SRA comes into play only when the land is declared as the slum rehabilitation area. As also insofar as the provisions of Section 14 as falling under Chapter- I -A are concerned, the CEO, SRA would have jurisdiction to make a representation to the State Government under Section 14(1) of the Act to enable the SRA to carry out development under the slum rehabilitation scheme, only when the area is a slum rehabilitation area. The provisions of sub-section (1) of Section 14 in that regard are explicit. In the peculiar circumstances of the present case, it was necessary for the CEO, SRA to apply his mind and to take a well considered view of the matter, in as much as the CEO, SRA could not have adopted an approach of an extraordinary haste to issue a notice under Section 14(1) of the Slum Act, by inviting objections at the behest of the society in regard to the acquisition of the land under Section 14 of the Slum Act. We observe so, bearing in mind as to what would be a situation if the petitioner succeeds in his appeal assailing the notification declaring the land as slum rehabilitation area under Section 3C(1) of the Slum Act. On such eventuality, the very basis for the SRA to contemplate an action under section 13(1) as also under Section 14(1) of the Slum Act, would fall to the ground. This apart from the fact and as noted above, the CEO had shown extraordinary zeal in the present case when not only the country but the entire world was under the grip of the Covid-19 pandemic. *****

113. Apart from what has been discussed above, as rightly submitted by Dr. Sathe, the encroachers on land cannot assert rights to rehabilitate on the very land albeit the land owner agreeing to rehabilitate them on the same land. The assertion on the part of the slum dwellers being made in the present case, which is to the effect as if the slum dwellers have higher rights on the land than the owners of the land, so as to presume absolute right of rehabilitation on the very same land even under the policies of the Slum Act, is totally untenable. The right of the slums dwellers is only to a permanent alternate accommodation under the statutory scheme and the State policies. The slum dwellers cannot have an approach that they become owners of the land and assert rights to defeat the rights of the real owners of the land. In our opinion, neither such rights of any ownership of the land to the slum dwellers are recognized by the Slum Act nor can such rights be so inferred. *****

130. We may also observe that the position in law as recognised in Indian Cork Mills Pvt. Ltd. v. State of Maharashtra (supra), which is also recognized in the other judgments as noted by us hereinabove, as binding on this Court, is to the following effect: i. A combined reading of the various provisions as falling under Chapter- I -A as incorporated by the Amendment Act No. 4 of 1996 clearly demonstrates a distinct and independent legislative scheme when it comes to land which has been declared as a slum rehabilitation area under Section 3C of the Slum Act. ii. The consequence brought about by Section 13 as falling in chapter I -A, is two-fold, firstly it recognizes the pre-emptory right of the owner to redevelop the land as provided under sub-section (10) of Section 12 and secondly, without disturbing the general right to redevelop the land, it nevertheless provides that if the landholders or occupants of such area do not come forward, within a reasonable time (now 120 days by virtue of amendment by Maharashtra Act No. XXVI I I of 2018) with a scheme for redevelopment of such land, then the SRA by an order determine to redevelop the land (which is declared as a slum rehabilitation area) by entrusting it to any agency. iii. Sub-section (2) of Section 13 is a complete legislative recognition of what is stipulated by the provisions of Section 3B(4)(e) read with Section 12(10) and Section 13 sub-section (1) namely that for a slum rehabilitation scheme notified under Section 3B, the scheme would contemplate development of slum rehabilitation area by the landholders and occupants by themselves or through a developer and the terms and conditions of such development (sub-clause (e) of Section 3B(4)). iv. Once the land is declared as a slum rehabilitation area, the statutory scheme/provisions as contained in Chapter I -A recognizes the participation of the owners/landholders and occupants in the redevelopment of such land. v. Once such a right is created by law (Section 3B(4)(c) and (e) and Section 13(1)) an opportunity in that terms is required to be granted to the owners, occupants and/or landholders, without which the provision as made in the statute for such rights would be meaningless. vi. When the provision uses the word ‘do not come forward within a reasonable time’ (by virtue of Amending Act No. XXVI I I of 2018, now 120 days) would surely mean that the SRA is required to set down the time limit by calling upon the landholder to come forward with a scheme so as to undertake redevelopment. For this, the SRA is required to put the land owner to ‘a notice’, that a redevelopment scheme being not submitted by the land owners, landholders or occupants within such prescribed period would be a circumstance which would be taken against them to acquire the land. vii. Such notice by the SRA to the owner of the land is imperative failing which, there is no reason for such persons to be aware of such time lines, considering the plain reading of section 14(1) of the Slum Act and the fact that the non-submission of the scheme would be the primary reason for the land to be acquired even when there is a complete willingness of such persons to undertake redevelopment. viii. The word “landholder” as used in Section 13(1) would include within its meaning “the owner of the land” when the words “landholder and occupant” are used. ix. A preferential right for redevelopment of the land under slums is vested with the owners/landholders and/or occupants in view of a conditional power/authority created with the SRA to undertake redevelopment of the slum rehabilitation area in a twofold manner, firstly by exercising power under Section 13 (1) and (2) which is to re-develop the land by entrusting it to any agency on a failure of the landholder or the occupant in not coming forward within a reasonable time with a scheme for re-development; and when an application of Section 13(1) and (2) do not fetch any result by redeveloping or carrying out development under the slum rehabilitation scheme in any slum rehabilitation area by resorting to acquisition of the land under Section 14 as applicable with modification under Chapter I -A. From the legislative scheme of the amended provisions, it is clearly inferred that the rights so conferred under such provisions on the owner/landholder/occupant cannot be usurped directly by operating the acquisition machinery, simply because such power exists on the statute book. x. The exercise of such power within the scheme of Chapter I -A is required to be resorted by due adherence to the provisions as contained therein, which have created and recognized the legitimate rights in the owners, landholders and occupants to undertake redevelopment. xi. The power to acquire land is also required to be exercised in a fair manner and certainly in the context of the statutory scheme, when the object and purpose for which acquisition is to be undertaken can be achieved by other methods and for which the statute has made the requisite provision for achievement of such purpose. xii. While considering the action of acquisition of land under the powers as conferred on the State government under Section 14 of the Slum Act in its application to Chapter I -A (being exercised in relation to the land which is notified as a slum rehabilitation area under Section 3-C), the decision to acquire cannot be read beyond the context of the applicability of the provisions of Section 3A, 3B, 3C, Section 12, Section 13 and Section 14, as falling under the said Chapter of the Slum Act. The reason being the decision to acquire the land would have a direct nexus and relation to the conferring of an opportunity on such persons to first undertake redevelopment of land as Section 3(B)(4)(c) and (e) read with Section 13(1) and (2) as also sub-section 10 of Section 12 (if so made applicable, though this subsection stands outside Chapter I -A) would contemplate and only on a failure to avail this opportunity by the landholders or owners or occupants to abide their obligations under the statutory provisions, resort to acquisition of land under Section 14. xiii. The statutory consequence is clear from a plain reading of the substituted sub-section (1) of Section 14 which requires that the State Government is so satisfied on a representation being made to it by the competent authority, that a situation has arisen that it is incumbent on the authority to execute any work of improvement or re-development of any slum area or any structure in area or any such land and for the said purpose, the land should be acquired. In such a situation, the State Government may acquire the land by publishing a notice to the effect that the State Government has decided to acquire the land. However, before such power is exercised to acquire such land, the proviso to sub- section (1) to Section 14 prescribes that before such notice is published in the official gazette deciding to acquire the land, the State Government or the competent authority by notice may call upon the owner or any other person interested in such land to show cause in writing to the competent authority, as to why the land should not be acquired, and the competent authority shall forward such objection of the owner together with the report to the State Government. xiv. The State Government considering the “report”, and the “objections” if any, is required to pass ‘such order’ as it deems fit. xv. The proviso of Section 14 assumes significance as firstly it postulates an opportunity to the landowner or any other person interested to show cause as to why the land ought not to be acquired and once such objections are registered with the competent authority, an obligation on the competent authority to consider the objections, make a report in respect of the said objections and further forward the objections and report for consideration of the State Government to objectively take a decision and pass appropriate order. Section 14(1) read with the proviso is akin to the provisions of Section 5A of the earlier Land Acquisition Act, 1894. Thus, necessarily there is a requirement for compelling factors and/or reasons to exist on record which would unequivocally compel the State Government to exercise its power of eminent domain so as to decide to acquire the land. This necessarily would include application of mind to the entitlement of the owner of the land, occupier or landholder to redevelop the land as recognized by section 3B(4)(c) and (e) read with section 12(10) if so made applicable, read with section 13 (1) and (2). xvi. Considering this statutory scheme, the decision of the Competent Authority or of the State Government cannot be oblivious and/or de hors the ascertainment as to whether such specific obligations were imposed on the landholders/landowners or occupants and if so created whether they were at all discharged by such persons. xvii. The acquisition of the land under the Slum Act is a part of the legislative scheme as postulated by the Act, namely to improve the conditions of those dwelling in slums and redevelopment of the slums areas. This being the basic object of the legislation, the intention of the legislature in providing for participation of the landlord in redevelopment of the slums as reflected in the provisions of Section 3B(4)(e) and Section 13(1) and (2) of the Act cannot be overlooked. Such participation surely has to be before the land is acquired as different consequence follow after acquisition of the land (See Section 15). xviii. An acquisition of land overlooking and/or obliterating the effect of these provisions cannot be said to be an acquisition conforming to the legislative scheme. It cannot be that the intention of the legislature would be that the said provisions, as falling in Chapter I -A, remain only paper provisions and/or become redundant when it is a question of an acquisition for the purpose of redevelopment of a “slum rehabilitation area”. xix. In such situation, the endeavour of the Court would be to adopt the principles of a harmonious and purposive interpretation of these provisions and make these provisions meaningful so that the acquisition of land conforms to the legislative scheme and its mandate. xx. As seen from the provisions of Chapter I -A, it cannot be a statutory requirement that in every case or in relation to a deficit in discharge of obligations of redevelopment by the owners/landholders or occupants of the slum areas or some non-compliance under a slum clearance order, land acquisition is the ‘only and only’ recourse to be taken by the competent authority and/or the State Government, without affording a prior opportunity and compelling such persons to rectify the situation by exercising the plentiful powers which are available for that purpose to the SRA under the Slum Act so as to bring about a redevelopment. xxi. Considering the in-built mechanism which is available under the clear provisions of Section 3B(4)(c) and (e), Section 13(1) and (2) of the Slum Act, which empowers the SRA to develop the land by entrusting it to any agency recognized by it, de hors such statutory position, any interpretation of the compulsory acquisition provision (Section 14), oblivious to the due consideration of these specific provisions of the Act, which enable the SRA to bring about a redevelopment of the slum rehabilitation areas without acquisition of the land, would amount to defeating such specific provisions and creating unwarranted concentration of coercive and arbitrary power of acquisition with the SRA. xxii. Section 14 which confers power on the State Government to acquire the land and the legislature having amended the same in its application to Chapter I -A, having due regard to the provisions of Section 3B, 3C which concern the ‘slum rehabilitation scheme’ and ‘slum rehabilitation area’. The decision to acquire such land cannot be read outside the consequences which are brought about by the said provisions of the Act, as falling under chapter I -A. The rights so created inter alia on the landowners and the obligation so conferred on the SRA under the provisions as falling in Chapter I -A would have a direct relation to the decision to acquire the land. This more particularly in view of the proviso to Section 14(1) which stands undisturbed by the amendment as inserted by Chapter I -A, creating a statutory obligation on the State Government to consider the reasons as may be put forward by the owner of the land against acquisition and prepare a report and forward the same to the State Government. xxiii. A bonafide willingness on the part of the land owner/land holders or occupant to redevelop the land and for such reason the land being not acquired is a legitimate objection which the owner of the land can raise and such objection would certainly fall within the contemplation of the proviso to Section 14(1), as required to be considered by the State Government before a decision to acquire such land is taken. Thereafter, the State Government is required to pass an order on these objections. xxiv. Considering the scheme of the Act and more particularly Chapter I -A, it cannot be said that the SRA was powerless to call upon the petitioner to submit a scheme and to undertake immediate redevelopment of the land after it was declared as a ‘slum rehabilitation area’. xxv. Also, an option is available to the Slum Rehabilitation Authority to invoke the provisions of Section 13(1) to redevelop the land on account of failure of the landowners/landholders/occupants to undertake redevelopment within the prescribed period as ultimately the aim and object of Section 13(1) is to bring about redevelopment for rehabilitation of the slum dwellers by the SRA itself determining to redevelop such land by appointing any agency recognized by it. The purpose for acquisition of land under Section 14 is not different which is also to execute any work of improvement or to redevelop any such slum area. xxvi. In Anil Gulabdas Shah v. State of Maharashtra (supra), the Court was concerned with the application of the amended provisions namely Chapter- I -A of the Act where the Court held that under Section 13 of the Slum Act as falling under the amended Chapter- I - A, the SRA is obliged to offer the suit land first to the petitioner or to the occupants, to come forward for redevelopment of the same and only on their failure, the land could be handed over to a third party. Although there can be no quarrel that the power to acquire the land under the Slum Act when it is declared as slum rehabilitation area, needs to be exercised only under Section 14 of the Slum Act, however, the acquisition of the land, which is declared as a slum rehabilitation area under Section 3C(1), cannot be undertaken defeating the petitioner's rights conferred on the owner to undertake redevelopment under the provisions of Section 3B(4)(c) and (e) and section 13(1) of the Slum Act as held in Anil Gulabdas Shah v. State of Maharashtra (supra). The legal position as held in Anil Gulabdas Shah (supra) was also accepted by the SRA by issuance of a circular dated 09 November, 2015 in which in paragraph 2, the SRA had clearly notified that under Section 13 (1) in respect of slums on private lands, the owner would have a primary right and to that effect earlier circular no. 144 was modified. xxvii The submission that merely because the society of the slum dwellers has submitted a scheme prior to the scheme submitted by the owner, the preferential right in favour of the petitioner does not survive, is untenable. The Court held that such submission presupposes that there is a preferential right of the owner of the land to redevelop the said land. In taking decision under Section 14(1), there is a requirement of recording reasons which is an essential requirement in exercise of a quasi-judicial power by the authorities. The Court ultimately held that considering the declaration of the said land as a slum rehabilitation area vide notification issued under Section 3C(1) of the Slum Act and the consistent assertion of the petitioner therein (land owner) to undertake redevelopment, an opportunity was required to be conferred on the petitioner to undertake redevelopment in consonance with the law laid down by the Division Bench in Anil's case (supra) and the SRA's own circular dated 09 November, 2015 conferring preferential right on the land owners to undertake redevelopment as per Section 13(1) of the Act. The SRA cannot selectively act in deciding to acquire the land in question without calling upon the land owners at any point of time to undertake the development as being issued in many other cases. xxviii. Fairness in resorting to acquisition proceedings is a sine qua non and requirement of Article 14 of the Constitution. xxix. The Court ultimately held that the petitioner therein as a owner of the land had a preferential right to undertake redevelopment of the land in view of the specific provisions as contained in Section 3B(4)

(c) and (e) and Section 13(1) falling under Chapter I -A of the Slum

Act. The Court was in complete agreement with the view taken by the Division Bench in the case of Anil Gulabdas Shah (supra) which stands as good law. xxx. The authorities having failed to recognize the rights of the owner of the land, the acquisition of the land under Section 14(1) of the Slum Act is rendered illegal and void ab initio. [Emphasis Supplied]

12. A plain reading of the foregoing would show that unless and until a clear and specific notice under Section 13 is received by the landowner, the 120-day period would not commence. In the instant case, it is common ground that no specific notice under Section 13 had been issued. Besides, the landowner has indeed objected to the designation of the Subject Land as a slum rehabilitation area. That apart, the landowner on 21st October, 2021 had also filed an actual proposal to redevelop the land, with a proposed society of slum dwellers, namely, Chaitanya which was being processed by the SRA. The computation of the 120-day period could not even have commenced without a proper notice under Section 13 of the Slum Act. The mere intention to declare a piece of land as a slum rehabilitation area is not equivalent of a notice under Section 13. A notification under Section 3C cannot double up as a notice under Section 13 with a clear intention to redevelop the land for the protection of the preferential right of the landowner to run its course. By a proposal dated 21st October, 2021, the landowner in this case, has positively sent a proposal to redevelop his land, and this has been rightly taken forward by the SRA. It is the AGRC, dealing with applications filed by Asthavinayak and Hari Om that has led to the SRA’s accurate and proper processing of such proposal being interfered with. In view of the explicit declaration of the law extracted above from Bishop John, we have no hesitation in quashing and setting aside the Impugned Order of the AGRC.

13. The argument of Asthavinayak and Hari Om that there has been a deemed waiver by the Petitioner of his rights under Section 13(1) is in direct conflict with Bishop John. We are also unable to accept the reliance by Asthavinayak and Hari Om on the judgment of this Court in Deena Pramod Baldota vs. State of Maharashtra & Ors - Writ Petition (Lodging) No.1962[6] of 2022 (“Deena Pramod”). In our opinion, Deena Pramod proceeded on completely different facts – the landowner had not filed any proposal for development even until the passing of the judgement, whereas in the instant case, indeed a proposal has been filed. Besides, Bishop John has now placed the issue totally beyond debate.

14. We have also been presented with the argument that the Petitioner No.1 has assigned certain rights over the Subject Land in favour of Petitioners No.2 and 3 and that would disentitle him from the statutory protection under Section 13 as interpreted in Bishop John. We are unable to agree inasmuch as it is an admitted position that Petitioner No.1 continues to assert ownership of the Subject Land. Besides, the Petitioners have collectively filed this Writ Petition, indicating thereby that the attendant rights are collectively being asserted by them. In any case, the Slum Act, unlike the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, does not entail any prohibition on transfer of land with all attendant rights.

15. In the light of the above discussion, we have no hesitation in quashing and setting aside the Impugned Order. In the result we pass the following order:a) The Impugned Order dated 17th February, 2023 issued by the AGRC is hereby quashed and set aside. b) The SRA is directed to assess and process the proposal made on behalf of Petitioner No.1 along with Chaitanya, in accordance with law, and carry out the rest of the procedures under the Slum Act in terms of such proposal.

16. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.

17. At this stage, learned Counsel for the Respondents prays for stay of this order. Considering the facts of the case the prayer is rejected. [ SOMASEKHAR SUNDARESAN, J.] [G.S. KULKARNI, J.]