Moiz Dawoodbhai Palitanawala And 4 Ors vs The Municipal Corporation Of Greater Mumbai (M. C. G. M.) And 9 Ors
- Court
- Bombay High Court
CNR No : HCBM020055392020
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2997 OF 2021
Moiz Dawoodbhai Palitanawala & Ors. … Petitioners
Versus
The Municipal Corporation of Greater Mumbai
& Ors. … Respondents
WITH
WRIT PETITION NO. 4762 OF 2024
Dhanwadi Mohallah Mosque Waqf,
through Mutawallis … Petitioner
Versus
The State of Maharashtra & Ors. … Respondents
Mr. Sagheer A. Khan a/w Sauda Nachan, Insha Shaikh, Mr. Aqil Khan,
Mr. Dawood Khan, Ms. Afsha Khan, Ms. Tasmiya Siddique, Aleze
Kodare and Mr. Gufran i/by Judicature Law Associates for Petitioners in
both Petitions.
Dr. Milind Sathe, A.G. a/w Ms. Usha Rahi, AGP for Respondent Nos. 1
to 3 in WP/4762/2024.
Dr. Milind Sathe, A.G. a/w Mr. Manish Upadhye, AGP for Respondent
Nos. 5 to 9 in WP/2997/2021.
Ms. Pooja Khandeparkar a/w Ms. K. H. Mastakar i/by Ms. Komal
Punjabi for Respondent Nos. 4 and 7-BMC in WP/4762/2024.
Ms. K. H. Mastakar for Respondent Nos. 1 and 2-BMC in WP/
2997/2021.
Mr. Muralidharan Kalathil i/by P. G. Lad for Respondent No. 5 and 6-
MHADA in WP/4762/2024 and for Respondent Nos. 3 and 4 in WP/
2997/2021.
Mr. Abdul Hafeez Yakub Kotwala for Respondent No.8 in WP/4762/
2024.
Dr. Birendra Saraf, Senior Advocate a/w Mr. Pralhad Paranjpe, Mr.
Ammar Faizullabhoy, Ms. Fatema Kachwalla, Ms. Maitri Dedhia and H
Saifee for Respondent No. 9 in WP/4762/2024 and for Respondent No.
10 in WP/2997/2021.
Digitally signed
by PRIYA
KAMBLI
Date:
2026.10.23
14:39:51 +0530
PRIYA
KAMBLI
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CORAM : MANISH PITALE AND
SHREERAM V. SHIRSAT, JJ.
th
RESERVED ON : 5 AUGUST 2026
rd
PRONOUNCED ON : 23 OCTOBER 2026
Judgement (Per Manish Pitale, J.) :
. The petitioners are aggrieved by acquisition of the subject
properties under a Cluster Development Scheme (CDS) executed
by the respondent-Saifee Burhani Upliftment Trust (hereinafter
referred to as ‘Trust’), as per the Development Control and
Promotion Regulations 2034 (DCPR) framed under the provisions
of the Maharashtra Regional and Town Planning Act, 1966
(MRTP Act). The petitioners challenge the validity of Regulation
33(9)(3)(5) of DCPR, on the ground that it is ultra vires MRTP
Act and also ultra vires the Constitution of India, alleging that the
right to property of the petitioners under Article 300A of the
Constitution of India has been violated. The notification dated
27.09.2019 issued by the respondent-Collector, Mumbai City,
under Section 126(4) of the MRTP Act read with Section 19(1) of
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (Act of
2013), is also challenged. The petitioners also pray for quashing
and setting aside of the consequential acquisition award dated
30.12.2019, further challenging notice dated 30.01.2020, for
taking possession of the subject property.
2. It is the case of the petitioners that since the subject property
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was not located in a land either designated or reserved in the
development plan for public purpose, the acquisition of the same
was not in accordance with law and that the aforesaid Regulation
goes far beyond the provisions of the parent Act i.e. the MRTP
Act. It is alleged that if the power is held to be delegated, this is a
clear case of excessive delegation, thereby vitiating the entire
process of acquisition.
3. The subject property is located in an area called Bhendi
Bazaar in Mumbai city and one of the subject properties is called
the Lucky Building, with which the petitioners in Writ Petition No.
2997 of 2021 are concerned. Although, it is an admitted position
that, as on today, the possession of the property has been already
taken and the building has been demolished in the process of
execution of the CDS, according to the petitioners, the entire
process of acquisition of the subject property, right from its
initiation, stood vitiated and that therefore, the writ petitions
ought to be allowed. In order to appreciate the rival contentions,
it would be necessary to refer to the chronology of events, leading
to filing of the present petitions.
4. On 20.02.1991, the Development Control Regulations for
Greater Bombay, 1991 (DCR 1991) were approved by the
respondent-State Government under the provisions of the MRTP
Act. This was preceded by the actions required to be taken under
the provisions of the MRTP Act, including publication of the
intention to prepare a revised development plan by the Municipal
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Corporation in the year 1977, followed by notices being published
by the State Government inviting objections and suggestions
regarding the draft development control regulations. In the year
1990, an officer was appointed for considering such objections
and suggestions, who submitted his report to the State
Government. Thereupon, the State Government granted sanction
to the said Development Control Regulations under Section 31(1)
of the MRTP Act. As per the said DCR 1991, a High Power
Committee (HPC) was constituted consisting of members from
various departments of the State Government and the Municipal
Commissioner of the Municipal Corporation of Greater Mumbai
(MCGM) as well as an officer of the Maharashtra Housing and
Area Development Authority (MHADA), with the Chief Secretary
of the State Government as its Chairman. On 11.06.2009, the said
HPC took a decision to consider a proposal for redevelopment of
Bhendi Bazaar under the then Regulation 33(9) of DCR 1991, if at
all 70% of the residents were ready to shift to transit camps in
nearby areas. On 09.02.2010, the respondent-Trust submitted a
proposal for redevelopment of the buildings standing on various
plots in Bhendi Bazaar, including the subject property. On
03.04.2010, the HPC, while considering the proposal of the
respondent-Trust, found that the said Trust had already purchased
about 51% of the properties in the proposed redevelopment area
and that it was in the process of purchasing the remaining
properties. A model of the proposed project for CDS was
presented before the HPC. In this process, sometime in March
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2011, 80% tenants of the aforesaid building of the petitioners
gave their consent for CDS.
5. On 28.03.2011, MHADA issued a warning notice in respect
of the said building, stating that since it was in a dangerous and
dilapidated condition, the occupants were required to vacate the
same. On 07.04.2011, the HPC was informed by the respondent-
Trust that it had procured consent of more than 70% owners for
CDS under Regulation 33(9) of DCR 1991. The HPC had formed
an opinion that the CDS would improve the infrastructure in the
area, providing better facilities to the owners and occupants.
Various aspects were taken into account, including the proposed
width of the roads, location of school and playground, as also
proposal for waste water recycling plant. The respondent-Trust, at
this stage, submitted a detailed proposal with the Municipal
Commissioner of MCGM, for urban renewal through CDS and on
02.05.2011, the MCGM submitted the said proposal of the
respondent-Trust before the State Government. On 22.07.2011,
the Secretary of the Urban Development Department of the State
Government sent a letter to MCGM, granting in principle
approval to the Urban Renewal Scheme under Regulation 33(9) of
DCR 1991. On 10.08.2011, the MCGM issued a Letter of Intent
(LOI) in favour of respondent-Trust for the said scheme. The said
LOI was valid for one year, subject to the consent of the owners of
the plots being submitted. The LOI was subsequently renewed on
an annual basis and thereafter, every two years and it is an
admitted position that the same continues till date. The
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respondent-Trust submitted necessary documents and affidavit,
certifying that the area of the entire cluster of redevelopment
under the CDS was 66264.72 sq. mtrs.
6. On 23.04.2012, the next meeting of the HPC was
conducted on the said scheme and the proposal was submitted by
the respondent-Trust. In the meeting, it was stated by the
respondent-Trust that consent of all the owners was difficult to
obtain and that the work of redevelopment would have to be
commenced. In that light, the respondent-Trust requested for
approval of amalgamation, cluster layout and commencement
certificate for at least two phases. The respondent-Trust made the
aforesaid request on the ground that if the work started
immediately, it would generate confidence about the progress of
the CDS and that would help in the remaining owners giving their
consent for the same. The LOI, in the meanwhile, was extended
from time to time.
7. On 09.09.2014, the DCR 1991 was replaced by DCPR. The
respondents contended that this was done by following the due
process specified in the provisions of the MRTP Act, by issuing
necessary notification under Section 37(1AA) thereof, by inviting
objections and suggestions. It is the case of the respondents that
after the statutory process contemplated under the MRTP Act was
duly followed, the said DCPR was brought into force. Regulation
33(9)(3)(5) of DCPR, which is the subject matter of challenge in
the present writ petitions, pertains to acquisition of land, if the
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promoter or developer like the respondent-Trust in the present
case, has already acquired development rights over at least 70% of
the land comprised in the cluster development. There are
conditions specified in the said clause and it also records that for
the purpose of land acquisition, CDS shall be regarded as public
purpose.
8. On 24.08.2015, the State Government issued notification
delegating power to the District Collector of Mumbai, for issuing
notifications under Sections 126(2) and 126(4) of the MRTP Act.
On 16.09.2015, the respondent-Trust submitted a representation
before the Municipal Commissioner of MCGM and the HPC for
recommending acquisition of about 7% of the land forming part
of CDS, concerning non-consenting land owners. It was submitted
that the respondent-Trust had obtained consent of about 89% of
the plot owners and that acquisition was necessary for execution
of CDS. On 18.09.2015, the HPC considered the representation
of the respondent-Trust and recommended the proposal to the
State Government for acquisition of the remaining plots of non-
consenting land owners, including the petitioners, as per
Regulation 33(9)(3)(5) of DCPR. On 06.01.2016, the State
Government granted approval to the said proposal for acquisition
of plots of non-consenting land owners for execution of CDS.
9. In this backdrop, the respondent-Trust issued letters to the
tenants of the subject building, located on plots of non-consenting
owners, with regard to the dangerous nature of the building,
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further requesting for their cooperation to take measurements.
The tenants of the subject building, except the petitioners, gave
their consent. It is not disputed that the subject building of the
petitioners was more than 100 years old, being a cessed building.
10. In the years 2017 and 2018, the Competent Authorities of
the respondents issued notices, including warning notices, to the
occupants of such buildings, including the subject property, to
vacate the same immediately, in the light of the dangerous and
dilapidated condition of such buildings. Since, the buildings were
not being vacated, the respondent-Trust filed Writ Petition
(Lodging) No. 1920 of 2018, seeking a direction for demolition of
such buildings that were dangerous and falling within the
boundaries of the CDS. In the proceedings, this Court took note
of the fact that a dangerous and dilapidated building, falling
within the scheme, had already collapsed and that officers of the
respondent-Trust were even put behind bars for the same. In the
said writ petition, this Court passed an order observing that the
persons who continued to reside in such dangerous and
dilapidated buildings, continued to do so at their own risk and the
respondent-Trust would not be held liable for any untoward
incident that could occur.
11. On 22.04.2019, the Urban Development Department of the
State Government directed the Collector to process the proposal
submitted by the respondent-Trust, regarding purchasing lands by
private negotiations. On 27.05.2019, the Collector passed an
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order under Section 3(c) of the Act of 2013, identifying Deputy
Collector (Land Acquisition), Mumbai City, as the Authorized
Officer, for undertaking the process of land acquisition. On
30.05.2019, the Deputy Collector (Land Acquisition) issued public
notice to purchase the lands/properties of the non-consenting
owners, falling within the CDS. Additional 25% compensation
was offered to such non-consenting owners of the properties, over
and above the compensation that would be paid under the Act of
2013. This notice included the subject property also. Since, the
petitioners and some others did not positively respond to the said
notice, the Deputy Collector (Land Acquisition) on 04.06.2019,
issued a letter, directing the respondent-Trust to provide
documents and further directed for a preliminary meeting of such
owners to be held on 12.06.2019. On 10.06.2019, the Deputy
Collector addressed a letter to the predecessor of the petitioners in
Writ Petition No.2997 of 2021, for a meeting on 17.06.2019. The
petitioners claim that since the notice was issued to their
predecessor, who had already expired, they could not respond to
the same.
12. It is in this backdrop that on 27.09.2019, the Collector
issued the impugned notification under Section 126(4) of the
MRTP Act, read with Section 19(1) of the Act of 2013, stating
that the CDS was sanctioned as a scheme for public purpose under
Regulation 33(9)(3)(5) of DCPR. Reference was also made to the
earlier notification dated 24.08.2015, whereby the State
Government had delegated the power to the Collector to issue
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such a notification. It was recorded that the Collector i.e. the State
Government was satisfied that the lands mentioned in the schedule
to the notification were needed for public purpose, which
included the subject property of the petitioners. It was further
stated that the respondent-Trust would permanently rehabilitate
the tenants/occupants of the subject properties, including the
property of the petitioners, at the same place and that
compensation as per acquisition awards would be deposited. The
Collector further delegated the power to perform the functions
pertaining to land acquisition, on the Deputy Resident Collector
under Section 3(g) of the Act of 2013.
13. In this backdrop, on 29.09.2019, the respondent-Trust
deposited an amount of Rs.80,42,10,488/- for acquisition of 21
buildings, towards advance amount of compensation likely to be
awarded for acquisition of the lands/ properties of the non-
consenting owners like the petitioners. On a letter issued on
10.10.2019 by the City Survey Officer, regarding joint survey and
a proposal to visit on 19.10.2019, the petitioners submitted a
letter dated 18.10.2019 to the Superintendent of Land Records,
objecting to the survey being conducted. On 06.11.2019, the
Deputy Collector sent letters to the affected parties, including a
letter in the name of the predecessor of the petitioners, under
Section 21 of the Act of 2013, reiterating that public notice had
been issued in newspapers on 28.09.2019, fixing the date of
hearing to be granted to the persons interested in the subject
properties on 20.11.2019. It is the case of the respondents that
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since the name of the predecessor of the petitioners continued to
reflect in the records, the notices were issued in his name. On
16.11.2019, the petitioners approached the Deputy Collector
through their Advocate, calling upon the said Officer to give a
copy of the notification dated 24.08.2015 and letter dated
27.09.2019 of the respondent-Trust. On the same date, the
petitioners through their Advocate, sought rescheduling of the
proposed meeting. On 20.11.2019, the petitioners, on their own
behalf and on behalf of 7 other land owners covered under the
CDS, through their Advocate, raised common objections. The said
objections pertained to the power and authority of the concerned
officer in taking steps for acquisition of the said properties, but
objections were not raised with regard to the quantum of
compensation.
14. On 13.12.2019, the Collector addressed a letter to the
Competent Authority for carrying out the valuation of the subject
property for determining compensation. The valuation report was
submitted and on 30.12.2019, the impugned award was passed
determining compensation payable to the petitioners for
acquisition of the subject property.
15. On 06.01.2020, the Deputy Collector issued a letter in the
name of the predecessor of the petitioners, stating the amount of
compensation determined under the Act of 2013 at
Rs.6,18,71,699/- and made a request to collect a cheque for the
said amount on 24.01.2020.
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16. On 24.01.2020, the petitioners sent a letter/reply through
their Advocate to the Deputy Collector, refusing to hand over the
possession of the subject property. On 27.01.2020, the petitioners
again sent a letter through their Advocate for a copy of the
aforesaid award dated 30.12.2019. On 30.01.2020, the City
Survey Officer again addressed a letter for handing over possession
of the subject property on 03.02.2020, indicating that if
possession was not handed over, unilateral action would be taken
for taking possession of the subject property. On 03.02.2020, a
panchanama and possession receipt were executed, on the basis of
which, the respondents claim that the possession of the subject
property was taken. The petitioners alleged that this was a high-
handed action conducted at about 3:00 a.m. in the morning. On
the very same day, the petitioners sent a legal notice through their
Advocate, challenging the power delegated to the Deputy
Collector. On 07.02.2020, the Collector registered the name of
the respondent-Trust on the property card concerning the subject
building. It is undisputed that on 28.02.2020, the petitioners filed
an application under Section 64 of the Act of 2013, seeking
enhancement of compensation before the Competent Authority.
17. Thereafter, in March 2020, the petitioners filed Writ Petition
No. 2997 of 2021. Subsequently, Writ Petition No. 4762 of 2024
was filed by the petitioners therein, raising an additional point that
the subject property was a waqf property.
18. On 05.11.2020, this Court passed an interim order in Writ
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Petition No. 2997 of 2021, to the effect that the petitioners would
not be dispossessed, except by following due process of law. The
Writ Petition remained pending and the interim order was in
operation till the parties were heard on the question of the
continuation of the interim order. On 21.07.2023, a Division
Bench of this Court passed a detailed reasoned order, vacating the
interim relief. The said order was challenged before the Supreme
Court. Special Leave Petition (Civil) No. 17997 of 2023, filed by
the petitioners in Writ Petition No. 2997 of 2021, was disposed of
on 21.08.2023. The Supreme Court recorded that the impugned
interim order passed by this Court did not deserve interference.
However, all contentions were kept open and it was recorded that
the High Court would consider disposing of the writ petition, as
expeditiously as possible and in accordance with law. The
pleadings in the writ petitions were completed and they were
taken up for hearing.
19. Mr. Sagheer Khan, learned counsel appearing for the
petitioners in both the writ petitions, submitted that the writ
petitions deserve to be allowed, as the entire acquisition process
was completely vitiated. It was submitted that Regulation 33(9)(3)
(5) of DCPR, concerning Cluster Development Schemes, was ultra
vires the MRTP Act as well as the Constitution of India. It was
submitted that since the process of acquisition was undertaken
under the said Regulation, the entire action of initiation and
completion of acquisition was vitiated and therefore, it deserved
to be quashed. In support of the said submissions, the learned
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counsel for the petitioners submitted that acquisition could be
undertaken only under Section 126 of the MRTP Act, read with
the provisions of the Act of 2013, for lands designated or reserved
for public purpose under the said provisions. It was submitted that
reservation of the subject land under the development plan was a
sine qua non for initiating acquisition and since, the subject
property was not located in a piece of land reserved for any public
purpose under the MRTP Act, the entire action of initiation and
completion of acquisition in the present case, was without the
authority of law. It was emphasized that a proper reading of the
provisions of the MRTP Act, particularly Sections 125 and 126
thereof, would show that acquisition of land could be undertaken
only for the planning authority and not for an entity like the
respondent-Trust herein, which is nothing but a developer and a
private party.
20. In this context, the learned counsel for the petitioners read
Sections 125 and 126 of the MRTP Act, to emphasize that such
acquisition for the benefit and at the behest of the respondent-
Trust goes beyond the aforesaid provisions and hence, it is ultra
vires the MRTP Act. It was submitted that Regulation 33(9)(3)(5)
of DCPR goes well beyond the scheme of MRTP Act and it
violates the mandate of Sections 125 and 126 thereof. The said
Regulation of DCPR provides for the cluster development
schemes, even on lands that are neither designated nor reserved
for public purpose in the development plan, thereby indicating
that it goes beyond the parent statute. It was submitted that merely
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because the said Regulation declares that a cluster development
scheme shall be regarded as public purpose for land acquisition,
cannot suffice and it certainly cannot substitute the statutory
mandate as provided under the parent statute and particularly,
under Sections 125 and 126 of the MRTP Act. In this regard, the
learned counsel for the petitioners referred to a number of
judgements of the Supreme Court, which shall be discussed when
the contentions are considered in detail herein below.
21. It was submitted that the MRTP Act is a self-contained code,
wherein specific provisions are identifiable for the purpose of
acquisition of lands, read with the provisions of the Act of 2013.
But, the impugned Regulation 33(9)(3)(5) of DCPR, despite being
subordinate legislation, confers power on the State Government to
acquire land for a private entity like the respondent-Trust herein. It
was submitted that therefore, this was a case of excessive
delegation. It was emphasized that the concept of CDS was
nowhere envisaged in the MRTP Act and yet, under the
subordinate legislation of DCPR, substantive rights stood created
in favour of a private entity like the respondent-Trust and
corresponding obligations and disabilities have been foisted upon
land owners like the petitioners. It was further submitted that the
lack of any guideline in such a subordinate legislation for exercise
of power, further demonstrates that the impugned Regulation
deserves to be quashed.
22. It was further submitted that in the facts of the present case,
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it was evident that the manner of giving effect to the impugned
Regulation was wholly arbitrary and suffered from violation of
principles of natural justice. It was submitted that one of the
requirements under the impugned Regulation was that the subject
building should be declared as a dangerous building. But, in the
present case, no such declaration was made either under the
MRTP Act or under the other legislations, such as the Mumbai
Municipal Corporation Act or the Maharashtra Housing and Area
Development Act, 1976 (MHAD Act). It was submitted that in the
facts of the present case, respondent-MCGM was the Competent
Authority for issuing such a declaration of the subject building
being dangerous. No notice was ever issued to the petitioner in
that regard and even in the list of dilapidated buildings maintained
by MHADA, the subject building was not included. On this basis,
it was contended that the steps undertaken and the decisions
rendered by the HPC were wholly arbitrary and it proceeded on a
presumption that the subject building was dangerous. This clearly
demonstrates manifest arbitrariness on the part of the respondents.
23. It was further submitted that the entire actions of the
respondents were malafide and with the intention of benefiting the
respondent-Trust, at the expense of the valuable rights of the
petitioners and other similarly situated land owners. The learned
counsel appearing for the petitioners referred to the chronology of
events and submitted that the HPC obviously acted in haste and
the proposal of the respondent-Trust for execution of CDS was
approved in a hurry by the HPC. A perusal of the impugned
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Regulation 33(9)(3)(5) of DCPR shows that the HPC ‘after due
examination’ is supposed to recommend to the State Government,
as to which of the lands are required to be acquired for the
purpose of CDS. It was alleged that in the present case, the said
mandatory requirement of due examination of the proposal was
not undertaken and the HPC granted approval under the
impugned Regulation in a matter of minutes, thereby vitiating the
entire process.
24. It was further submitted that the petitioners were never put
to notice regarding the CDS proposed by the respondent-Trust.
Letters and notices were all addressed to the predecessor of the
petitioners, who had already expired and the respondent-Trust
directly set up communication with the tenants of the petitioners
in the subject building, thereby showing the malafide manner in
which the entire process was undertaken, trampling upon valuable
rights of the petitioners.
25. It was further submitted that in the present case, the very
initiation of the process of acquisition stood vitiated because the
power was illegally delegated by the Collector to the Deputy
Collector. This was a clear case of illegal sub-delegation by an
officer i.e. the Collector, who was himself a delegate of the State
Government. This completely vitiated the entire process, thereby
showing that in the anxiety to benefit a private entity like the
respondent-Trust, the officers of the State and the MCGM threw
all the requirements of law to the wind. It was further submitted
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that mandatory statutory requirements such as notice of at least 30
days under Section 21 of the Act of 2013, were violated by the
respondents. Notice of only 15 days was given and the hearing
given to the petitioners was perfunctory. As a matter of fact, land
owners were all assembled in a room and a show of hearing was
undertaken, thereby indicating that the mandatory requirement of
effective hearing was also violated. It was further submitted that
even the process of obtaining valuation report was completed in a
lightning speed within one working day and as many as 16 land
acquisition awards were passed by the same officer on one
particular day. This further indicated manifest arbitrariness on the
part of the respondents, while hurriedly undertaking the
acquisition of the subject property, only to be handed over to the
respondent-Trust.
26. It was submitted that the petitioners found that high level
functionaries in the State Government took personal interest in
the matter and acted in a manner that betrayed arbitrariness from
the very beginning of the proposal being submitted by the
respondent-Trust for the CDS and the same being considered and
approved by the HPC, leading to the acquisition process being
undertaken in a hurried manner, thereby depriving the petitioners
of their right to property under Article 300A of the Constitution
of India. It was vehemently submitted that the right to property is
now recognized as a human right, although it has no longer
remained a fundamental right. The Supreme Court in a number of
judgements has reiterated the said position of law, which inures to
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the benefit of the petitioners.
27. In respect of Writ Petition No. 4762 of 2024, it was
submitted that apart from the aforementioned grounds raised to
challenge the impugned Regulation and the actions undertaken by
the respondents, an additional ground in the said writ petition
pertains to the provisions of the Waqf Act, 1995. It was submitted
that Section 91 of the Waqf Act clearly provides that if the land
acquisition award is passed without an opportunity of hearing to
the Waqf Board, when the subject property is a waqf property, the
award is rendered void. It was submitted that in the present case,
the Waqf Board was never issued notice or granted an opportunity
of hearing before passing the impugned award and therefore, on
this additional ground also, Writ Petition No. 4762 of 2024 ought
to be allowed.
28. Dr. Sathe, learned Advocate General (AG) appearing on
behalf of respondent State authorities in these writ petitions
submitted that the basic premise on which the arguments of the
petitioners are based, arises from a misunderstanding of the
provisions of the MRTP Act and the nature of the subject DCPR as
a subordinate legislation. It was submitted that the DCPR is
framed by following statutory requirements contained in Sections
21 to 31 and 37 of the MRTP Act. It was emphasized that the
process of making and modification of Development Control
Regulations, including the subject DCPR, is governed by a
participatory process under the aforesaid provisions and therefore,
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it cannot be said that the DCPR is ultra vires the MRTP Act or
that the impugned Regulation 33(9)(3)(5) of DCPR can be said to
be ultra vires and illegal. The learned AG relied upon Section
22(m) of the MRTP Act, to contend that Development Control
Regulations have statutory force and hence they are part and
parcel of the parent statute. It was emphasized that DCPR forms a
part of the development plan and hence, the contentions raised on
behalf of the petitioners are unsustainable.
29. It was emphasized that while the petitioners have
concentrated only on the two words i.e. ‘designated’ and
‘reserved’ used in Sections 125 and 126 of the MRTP Act, the
word ‘required’ is completely ignored. It was submitted that when
any land is required for public purpose under the development
plan, the process of acquisition of land can be undertaken as per
Section 126 of the MRTP Act, read with the Development Control
Regulations, in this case, the subject DCPR. On this basis, it was
submitted that the further contention of the petitioners that the
acquisition, in the present case, is vitiated and the impugned
DCPR is beyond the legislative intent of the MRTP Act, is
unsustainable, for the reason that an Urban Renewal Scheme, such
as the subject CDS for cluster development to be undertaken by an
entity such as the respondent Trust, is well within the statutory
framework and it is indeed for public purpose. It was submitted
that in such a situation where congested residential and
commercial areas are required to be re-developed as part of the
Urban Renewal Projects, so long as the conditions specified in the
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Development Control Regulations are met, such a project
including the subject CDS are certainly for public purpose.
30. It was submitted that in such a situation, the acquisition of
land including the subject property, is clearly with authority of law
as DCPR has statutory force. On this basis, it was submitted that
the petitioners cannot contend that acquisition of their properties
violated Article 300A of the Constitution of India. It was
emphasized that since the acquisition was for public purpose,
merely because the cluster development was being executed by the
respondent Trust, it could not be said that the planning authority
had abdicated its role or that the respondent Trust was being
illegally benefited.
31. It was submitted that the petitioners are not justified in
contending that this is a case of excessive delegation of legislative
powers, simply for the reason that the DCPR is part and parcel of
the development plan and the power of acquisition is exercised
only under Section 126 of the MRTP Act. The impugned
Regulation merely identifies the circumstances in which an Urban
Renewal Scheme, such as the subject CDS, can be executed. The
impugned Regulation 33(9)(3)(5) of the DCPR itself provides
sufficient guidelines, and therefore, it cannot be said that arbitrary
and unbridled power is available for the authorities to undertake
the execution of an Urban Renewal Scheme and in that context,
undertaking acquisition of land.
32. It was further submitted that the Urban Renewal Scheme,
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such as the subject CDS, under impugned Regulation 33(9)(3)(5)
of the DCPR, is more beneficial for landowners as compared to
the schemes envisaged under the MHAD Act. As per Section 44 of
the MHAD Act, compensation to a landowner whose property
becomes part of an Urban Renewal Scheme is restricted to an
amount equivalent to rent of 100 months. As opposed to this,
while executing such a scheme under the DCPR, read with the
provisions of the MRTP Act, compensation is payable to the
landowner under the Act of 2013 and if the acquisition is by
consent, an additional 25% is payable. On this basis, it was
submitted that the contention raised on behalf of the petitioners
that acquisition of their land was illegal, cannot be sustained. On
the question of the subject building belonging to the petitioners in
Writ Petition No.2997 of 2021 not being declared a dangerous
building, it was submitted that the said contention is fallacious, for
the reason that the said building existed since prior to 1940 and as
per the provisions of the MHAD Act, it stood classified as a
category ‘A’ cessed building. Such a building did not require a
specific declaration of being dangerous and therefore, the said
requirement under the impugned DCPR was also satisfied for
proceeding to acquire the property of the said petitioners.
33. Thereafter, the learned AG referred to the chronology of
events to impress upon this Court that the proposal of Urban
Renewal Scheme, which ultimately led to the subject CDS, was
initiated way back in the year 2010 and in principle approval was
granted in the year 2011 itself. It was submitted that therefore, the
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petitioners are not justified in claiming that the HPC approved the
scheme within minutes of it being presented. It was asserted that
there was absolutely no substance in the contention that even
while implementing the impugned Regulation 33(9)(3)(5) of the
DCPR, the HPC did not properly examine the proposal. It was
further submitted that the argument on delegation by the
Collector is without any substance, if the provisions of the MRTP
Act and the Act of 2013 are appreciated in the correct perspective.
In any case, it was submitted that the subject award was to be
approved by the Divisional Commissioner and therefore, the
petitioners cannot raise any grievance in that regard. It was
submitted that proper opportunity of hearing was granted to the
petitioners and no prejudice was demonstrated at any stage. It was
also emphasized that the petitioners had themselves invoked
Section 64 of the Act of 2013 by approaching the Competent
Authority for enhancement of compensation. On this basis, it was
submitted that the writ petition deserved to be dismissed.
34. During the course of arguments, the learned AG referred to
a number of judgements, which shall be referred to while
considering and analyzing the rival contentions.
35. Dr. Saraf, learned senior counsel appearing for the
respondent Trust supported the contentions raised by the learned
AG appearing for the State authorities. It was submitted that the
thrust of the arguments on behalf of the petitioners, that the entire
scheme in the present case had been devised to benefit the
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respondent Trust, is wholly misplaced. It was submitted that the
respondent Trust is the implementing agency of the Urban
Renewal Scheme in the form of the subject CDS, having satisfied
all statutory requirements, including the minimum percentage of
landowners giving their consent and their rights for execution of
such a Scheme. It was emphasized that the non-consenting
landowners were about 7%, including the petitioners and as per
the statutory scheme, their lands had to be acquired, in accordance
with law. It was submitted that the entire process and machinery
of acquisition continued to be that of the State authorities and the
monetary component for payment of appropriate compensation
came from the respondent Trust. It was not as if the respondent
Trust was the force behind the acquisition, and therefore, the
allegations of mala fide and high-handedness raised against the
said respondent Trust ought to be ignored.
36. The learned senior counsel for the respondent Trust further
relied upon the chronology of events, to contend that the HPC
ultimately granted its approval after considering the proposal
concerning the subject CDS for a long period of time. At every
stage, proper scrutiny was undertaken and after all the
requirements of the MRTP Act read with the DCPR were satisfied
that the said Scheme was executed. It was emphasized that the
petitioners were all along aware about the said Scheme and yet,
they chose to file the writ petition in the year 2021, after the
award had been passed and they had also approached the
competent authority for enhancement of compensation. None of
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the decisions or approvals granted by the HPC were ever
challenged at any stage, and therefore, it was submitted that the
writ petition ought to be dismissed solely on the ground of delay
and laches. It was emphasized that the impression sought to be
created by the petitioners that the subject CDS was approved in
one single day by the HPC is mischievous and hence, the same
ought to be rejected.
37. The learned senior counsel for the respondent Trust also
referred to the orders passed by this Court in writ petitions filed at
various stages of execution of the CDS. This Court was
constrained to observe that those persons, who continued to
occupy the subject building and other such buildings, were doing
so at their own risk, thereby indicating that no fault could be
found with the action of acquisition of properties of non-
consenting landowners, including the petitioners herein.
38. It was further submitted that the petitioners are not justified
in contending that since the subject land was never reserved for a
public purpose under the Development Plan, acquisition could not
be undertaken under Section 126 of the MRTP Act. In this regard,
reliance was placed on judgements of the Supreme Court and this
Court, to contend that the DCPR is very much part of the MRTP
Act and that since the subject land was required for the Urban
Renewal Scheme, acquisition of land of non-consenting
landowners was clearly justified. Much emphasis was placed on
the need for such Urban Renewal Schemes in the context of poor
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conditions of life in congested residential and commercial
localities, such as the subject Bhendi Bazaar locality in the island
city of Mumbai. It was further submitted that as per settled law,
the Development Plan is an organic document, requiring periodic
changes and the requirement of the future development cannot be
ignored.
39. It was further submitted that the facts and circumstances of
the instant case do not justify exercising writ jurisdiction in favour
of the petitioners. By referring to judgements of the Supreme
Court and this Court, it was contended that the petitioners would
have to demonstrate that justice was on their side while seeking
relief from the Writ Court. On this basis, it was submitted that the
writ petition deserved to be dismissed.
40. On the question of notice to the Waqf Board raised in Writ
Petition No.4762 of 2024, the learned senior counsel for the
respondent Trust supported the contention of learned AG for the
respondent State authorities that the said issue did not deserve
consideration on a proper reading of the provisions of the Waqf
Act. As per the statutory provision, the Waqf Board was required
to move an application within one month for declaring the subject
award as void on the ground that the Board was not first put to
notice. No such application was moved by the Waqf Board in the
present case. In any case, in the reply affidavit filed by the Waqf
Board in the said writ petition, it was categorically stated that the
Board had no objection for acquisition of the subject property and
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that it had notice of the acquisition as per public notice dated
27.09.2019 and a separately received notice. Therefore, it was
submitted that both the writ petitions deserved to be dismissed.
41. The rival submissions have to be considered and analyzed in
the backdrop of the Urban Renewal Scheme such as the cluster
development undertaken in the present case. In cities like Mumbai
where there are number of localities having highly congested
residential and commercial establishments, with poor facilities for
the residents / occupants, renewal and redevelopment has become
necessary to ensure a humane, hygienic and congenial atmosphere
and surroundings for such residents / occupants. Such Urban
Renewal Schemes can be executed only if the existing properties
are demolished and new structures are constructed with proper
common facilities of roads, drainage, etc. It cannot be disputed
that such Urban Renewal Schemes ultimately lead to a proper
development of urban areas within mega cities like Mumbai and
eventually aim at modernizing such cities over a period of time.
42. The said concept of urban renewal has been part of the
thought process of planning for a number of years. This is evident
from the manner in which the Development Control Regulations
were framed from time to time. Initially, such Urban Renewal
Schemes were limited to repairs and reconstruction of cessed
buildings identified under the MHAD Act for the city of Mumbai.
Subsequently in DCR 1991, Regulation 33(9) provided for
reconstruction or redevelopment of cessed buildings / Urban
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Renewal Schemes on extensive areas. It provided for the MCGM
or MHADA jointly with landowners / co-operative societies of
tenants / occupiers of buildings or developers, to undertake such
Urban Renewal Schemes for which the Floor Space Index (FSI)
was fixed at 4 and if rehabilitation of existing tenants / occupiers
was undertaken, there was provision for incentive FSI also.
43. Thereafter, the subject DCPR 2034 came into existence
wherein Regulation 33(9) provided for reconstruction or
redevelopment of cluster of buildings under such Urban Renewal
Schemes. The subject CDS is part of such a concept of Urban
Renewal. The said Regulation provided detailed guidelines for
execution of such Urban Renewal Schemes, involving
redevelopment of clusters of building, including minimum area in
which such a cluster development scheme could be executed. The
impugned Regulation 33(9)(3)(5) of DCPR specifically referred to
the necessity of acquiring lands in a situation where a promoter /
developer of such a cluster development scheme had already
purchased or procured development rights over at least 70% of
the land forming part of the cluster development. It specifically
provides that for the purpose of such acquisition of land, CDS
would be regarded as public purpose. The thrust of the attack on
behalf of the petitioners on the impugned regulation is that it goes
well beyond the statutory scheme of the MRTP Act and that it has
become a source of acquisition of land, while such acquisition of
land can be undertaken only under Section 126 of the MRTP Act.
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44. The respondent State authorities have stoutly defended the
subject CDS, contending that the impugned Regulation 33(9)(3)(5)
of the DCPR is in consonance with the statutory scheme
contemplated under the MRTP Act. It is contended that the
impugned Regulation and the DCPR form part of the parent
Statute i.e. MRTP Act, and that the contentions raised on behalf of
the petitioners in this regard are based on a misunderstanding of
the statutory scheme.
45. In order to consider the rival submissions on the said issue, it
would be necessary to refer to the provisions of the MRTP Act and
the relevant portions of the DCPR. Sections 125 and 126 of the
MRTP Act are found in Chapter VII pertaining to land acquisition.
The Development Control Regulations, including the subject
DCPR, have been framed under Section 159 of the MRTP Act.
Such regulations are to be framed consistent with the MRTP Act
and the Rules framed thereunder. In this context, the respondents
have specifically relied upon Section 22(m) of the MRTP Act. A
perusal of Section 22 of the MRTP Act shows that it specifies the
contents of the Development Plan. Clause (m) thereof pertains to
provisions for permission to be granted for controlling and
regulating the use and development of land within the jurisdiction
of a local authority and ancillary issues.
46. Hence, it would be appropriate that the relevant portions of
the said provisions are reproduced for a better understanding of
the rival contentions. The said provisions read as follows:-
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“22. Contents of Development Plan
A Development plan shall generally indicate the
manner in which the use of land in the area of a Planning
Authority shall be regulated, and also indicate the manner in
which the development of land therein shall be carried out.
In particular, it shall provide so far as may be necessary for
all or any of the following matters, that is to say,-
(a) to (l) …
(m) provisions for permission to be granted for
controlling and regulating the use and development of land
within the jurisdiction of a local authority including
imposition of fees, charges and premium, at such rate as
may be fixed, by the State Government or the Planning
Authority, from time to time, for grant of an additional
Floor Space Index or for the special permissions or for the
use of discretionary powers under the relevant
Development Control Regulations, and also for imposition
of conditions and restrictions in regard to the open space to
be maintained about buildings, the percentage of building
area for a plot, the location, number, size, height, number
of storeys and character of buildings and density of
population allowed in a specified area, the use and purposes
to which buildings or specified areas of land may or may
not be appropriated, the sub-division of plots the
discontinuance of objectionable users of land in any area in
reasonable periods, parking space and loading and
unloading space for any building and the sizes of projections
and advertisement signs and boardings and other matters as
may be considered necessary for carrying out the objects of
this Act.
125. Compulsory acquisition of land needed for purposes
of Regional Plan, Development plan or town planning etc.
Any land required, reserved or designated in a
Regional plan, Structure plan, Development plan or town
planning scheme for a public purpose or purposes including
plans for any area of comprehensive development or for any
new town shall be deemed to be land needed for a public
purpose within the meaning of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013:
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Provided that, the procedure specified in sections 4 to
15 (both inclusive) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 shall not be applicable in respect of
such lands.
126. Acquisition of land required for public purposes
specified in plans
(1) When after the publication of a draft Regional plan,
Structure plan, a Development or any other plan or town
planning scheme, any land is required or reserved for any of
the public purposes specified in any plan or scheme under
this Act at any time, the Planning Authority, Development
Authority, or as the case may be, any Appropriate Authority
may, except as otherwise provided in section 113A acquire
the land,—
(a) by agreement by paying an amount agreed to,
or
(b) in lieu of any such amount, by granting the
land-owner or the lessee, subject, however, to the
lessee paying the lessor or depositing with the
Planning Authority, Development Authority or
Appropriate Authority, as the case may be, for
payment to the lessor, an amount equivalent to the
value of the lessor’s interest to be determined by any
of the said Authorities concerned on the basis of the
principles laid down in the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, Floor
Space Index (FSI) or Transferable Development Rights
(TDR) against the area of land surrendered free of
cost and free from all encumbrances, and also further
additional Floor Space Index or Transferable
Development Rights against the development or
construction of the amenity on the surrendered land at
his cost, as the Final Development Control
Regulations prepared in this behalf provide, or
(c) by making an application to the State
Government for acquiring such land under the
provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
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Resettlement Act, 2013,
and the land (together with the amenity, if any so developed
or constructed) so acquired by agreement or by grant of
Floor Space Index or additional Floor Space Index or
Transferable Development Rights under this section or
under the provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, as the case may be, shall vest
absolutely free from all encumbrances in the Planning
Authority, Development Authority, or as the case may be,
any Appropriate Authority.
(2) On receipt of such application, if the State
Government is satisfied that the land specified in the
application is needed for the public purpose therein
specified, or if the State Government (except in cases falling
under section 49 and except as provided in section 113A)
itself is of opinion that any land included in any such plan is
needed for any public purpose, it may make a declaration to
that effect in the Official Gazette, in the manner provided
in section 19 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, in respect of the said land. The
declaration so published shall, notwithstanding anything
contained in the said Act, be deemed to be a declaration
duly made under the said section :
Provided that, subject to the provisions of sub-section
(4), no such declaration shall be made after the expiry of
one year from the date of publication of the draft Regional
Plan, Development Plan or any other Plan, or Scheme, as
the case may be.
(3) On publication of a declaration under the said section
19, the Collector shall proceed to take order for the
acquisition of the land under the said Act; and the
provisions of that Act shall apply to the acquisition of the
said land, with the modification that the market value of the
land shall be,—
(i) where the land is to be acquired for the purposes
of a new town, the market value prevailing on the date of
publication of the notification constituting or declaring the
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Development Authority for such town;
(ii) where the land is acquired for the purposes of a
Special Planning Authority, the market value prevailing on
the date of publication of the notification of the area as an
undeveloped area; and
(iii) in any other case, the market value on the date of
publication of the interim development plan, the draft
development plan or the plan for the area or areas for
comprehensive development, whichever is earlier, or as the
case may be, the date of publication of the draft town
planning scheme:
Provided that, nothing in this sub-section shall affect
the date for the purpose of determining the market value of
land in respect of which proceedings for acquisition
commenced before the commencement of the Maharashtra
Regional and Town Planning (Second Amendment) Act,
1972:
Provided further that, for the purpose of clause (ii) of
this sub-section, the market value in respect of land
included in any undeveloped area notified under sub-section
(1) of section 40 prior to the commencement of the
Maharashtra Regional and Town Planning (Second
Amendment) Act, 1972, shall be the market value prevailing
on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to
sub-section (2) and sub-section (3), if a declaration is not
made within the period referred to in sub-section (2) or
having been made, the aforesaid period expired on the
commencement of the Maharashtra Regional and Town
Planning (Amendment) Act, 1993, the State Government
may make a fresh declaration for acquiring the land under
the provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, in the manner provided by sub-
sections (2) and (3) of this section, subject to the
modification that the market value of the land shall be the
market value at the date of declaration in the Official
Gazette, made for acquiring the land afresh.
159. Power to make regulations
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(1) Any Regional Board, Planning Authority or
Development Authority may, with the previous approval of
the State Government, make regulations consistent with this
Act and the rules made thereunder, to carry out the
purposes of this Act, and without prejudice to the generality
of this power,—
(i) a Regional Board or a Development Authority may
make,—
(a) regulations subject to which it shall exercise
powers and perform functions under this Act;
(b) regulations for regulating its procedure and the
conduct of its business at its meeting ;
(c) regulation providing for any other matter which
has to be or may be prescribed by regulations ;
(ii) a Planning Authority may make,—
(a) regulations prescribing the manner in which its
order under sub-section (1) of section 45 shall be
communicated to the applicant seeking permission under
that section;
(b) regulations prescribing the time within which and
the manner in which a notice shall be served on the State
Government under sub-section (1) of section 49 ;
(c) regulations providing for any other matter which
has to be or may be prescribed by regulations.
(2) Subject to the provisions of this Act, the State
Government may, by notification in the Official Gazette,
make special Development Control Regulations consistent
with this Act and the rules made thereunder, for the
purpose of implementing any Scheme, Project, Programme
or Policy, of the Central or the State Government, in the
whole or a part of the State.
(3) The State Government shall, before making such
Regulations prepare a draft thereof and publish a notice in
the Official Gazette stating the draft Regulations have been
prepared. The notice shall state that the names of the places
where a copy of such draft Regulations shall be available for
inspection by the public at all reasonable hours mentioned
therein and the copies thereof or any extract therefrom,
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certified to be correct, shall be available for sale to the
public at a reasonable price; and invite objections and
suggestions from any person with respect to the draft
Regulations before such date as may be specified in the
notice. The notice shall also be published in at least two
newspapers having wide circulation in the area to which the
Regulations are to be made applicable and also in such
other manner as the State Government may think fit.
(4) After considering the objections and suggestions
received by it, the State Government may approve such
draft Regulations with modifications or without
modifications, if any, as it may think fit, or decide not to
approve the same and shall publish a notification in the
Official Gazette stating that the Regulations have been
approved with or without modifications or have not been
approved, as the case may be. In case the Regulations are
approved, the notification shall specify therein the date on
which the Regulations shall come into operation.
(5) Where Special Development Control Regulations are
made, the provisions of such Regulations shall be in force in
the area to which such Regulations are made applicable and
the provisions of any plan or scheme applicable to and in
force in such area or part thereof, prior to the date of
coming into force of such Regulations under sub-section (4)
shall, to the extent of the provisions contained in such
Regulations, stand modified.”
47. The petitioners have specifically emphasized upon the words
‘designated’ and ‘reserved’ used in the above-quoted Sections 125
and 126 of the MRTP Act. According to the petitioners, unless a
particular land is either designated or reserved in the development
plan for a public purpose, there is no question of acquisition of
any portion of such land. It is also claimed that the acquisition can
be only by and for the benefit of the local authority / planning
authority and that acquisition can never be undertaken for the
benefit of a private entity like the respondent Trust in the present
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case. On this basis, it is alleged that the provision for acquisition of
land under the impugned Regulation 33(9)(3)(5) of the DCPR is a
case of excessive delegation and that it goes beyond the provisions
of the parent Statute i.e. MRTP Act, particularly Section 126
thereof.
48. The thrust of the submissions made on behalf of the
petitioners is that the impugned Regulation 33(9)(3)(5) of the
DCPR goes well beyond the provisions of the parent statute i.e.
the MRTP Act and therefore, it deserves to be struck down. By
relying upon the judgement of the Supreme Court in the case of
State of U.P. and others vs. Babu Ram Upadhya , AIR 1961 SC 751,
it is contended that the impugned Regulation expands the scope of
the MRTP Act, by virtually giving the right of acquisition of
property to a private entity like the respondent-Trust, which is
clearly contrary to the provisions of the said statute.
49. In this regard, reliance is place on the judgement of the
Supreme Court in the case of Kerala State Electricity Board vs.
The Indian Aluminium Co. Ltd. , (1976) 1 SCC 466, to contend
that a subordinate legislation, like the impugned Regulation, is
rendered invalid, when it travels beyond the regulation-making or
rule-making power under the parent statute. In support of the
proposition that the subordinate legislation is rendered invalid and
ultra vires the parent statute when it violates the provisions
thereof, reliance was placed on the judgements of the Supreme
Court in the cases of Bombay Dyeing & Mfg. Co. Ltd. vs. Bombay
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Environmental Action Group and others , (2006) 3 SCC 434 and
Kerala Samsthana Chethu Thozhilali Union vs. State of Kerala and
others , (2006) 4 SCC 327.
50. The petitioners have placed reliance on the judgements of
the Supreme Court in the cases of Agricultural Market Committee
vs. Shalimar Chemical Works Ltd. ; (1997) 5 SCC 516, Global
Energy Limited and another vs. Central Electricity Regulatory
Commission ; (2009) 15 SCC 570, State of U.P. and others vs.
Renusagar Power Co. and others ; and Kunj Behari Lal Butail and
others vs. State of H.P. and others , (2000) 3 SCC 40, in support of
the propositions viz (i) while framing statutory Rules and
Regulations, a delegate cannot widen or restrict the scope of the
parent statute; (ii) such a rule-making or regulation-making power
cannot be exercised to create substantive rights or disability not
contemplated in the parent statute; (iii) such a power of making
Rules and Regulations is for the purpose of carrying out the object
of the parent statute and hence, cannot be at cross purposes with
the same; and (iv) the subordinate legislation framed by the
delegate must contain sufficient guidelines.
51. In addition and in order to elaborate upon the said
propositions, the petitioners have also relied upon judgements of
the Supreme Court in the cases of Girnar Traders vs. State of
Maharashtra and others , (2011) 3 SCC 1 and Municipal
Corporation of Greater Bombay vs. Industrial Development
Investment Co. Pvt. Ltd. and others , (1996) 11 SCC 501, as also
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judgement of this Court in the case of Mehtab Laiq Ahmed Shaikh
and another vs. State of Maharashtra and others , 2017 (6) Mh.L.J.
408.
52. By placing reliance on the said judgements, it was further
contended that acquisition of land can be undertaken as per
Section 126 of the MRTP Act only by the planning authority and
land which is either designated or reserved for public purpose can
only be acquired. Hence, the power reserved in the impugned
Regulation 33(9)(3)(5) of the DCPR granting such power of
acquisition to a private entity, like the respondent-Trust,
demonstrates that the impugned Regulation is rendered wholly
unsustainable.
53. Upon consideration of the said judgements and the
contentions raised on behalf of the petitioners, we find that the
whole basis of raising such contentions is their understanding that
only when land is either ‘designated’ or ‘reserved’ for public
purpose in a development plan, that the same can be acquired by
the planning authority. But, the said contention ignores the word
‘required’ used in Sections 125 and 126 of the MRTP Act.
54. The contention raised on behalf of the petitioners that in
Section 125 of the MRTP Act, since there is a comma between the
word ‘required’ on the one hand and the words ‘reserved or
designated’ on the other, land which is required and
reserved/designated can only be acquired, deserves to be rejected,
for the reason that Sections 125 and 126 of the MRTP Act are
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necessarily required to be read and applied together.
55. In Section 126, it is specifically provided that when any land
is ‘required or reserved’ for any public purpose in a development
plan, the power of acquisition can be exercised. The respondent-
State authorities are justified in contending that when any piece of
land is required for public purpose in the development plan, the
power to acquire the same can be exercised read with the
Development Control Regulations, in these case, the DCPR.
56. We find that the Development Control Regulations are
indeed a part of the development plan, as they are framed under
Section 159 read with Section 22(m) of the MRTP Act. Once it is
held that the Development Control Regulations or DCPR are part
of the development plan, the moment a land is required for public
purpose as per such regulations, the same can be acquired.
57. It is a misunderstanding on the part of the petitioners that
when such acquisition takes place, the source of power is not
Section 126 of the MRTP Act. We find that on a proper reading of
the aforementioned provisions of the MRTP Act and
understanding the true purport of the words ‘required’,
‘development plan’ and ‘public purpose’, even though the
acquisition refers to the impugned Regulation 33(9)(3)(5) of the
DCPR, the source of power of acquisition is indeed Section 126 of
the MRTP Act.
58. In this context, the observations made by a Division Bench
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of this Court in the case of DB Realty Limited vs. State of
Maharashtra and others , 2015 SCC OnLine Bom 315 are relevant
and they read as follows:
“28. The impugned notification finds its source/parentage in
Section 22 of the MRTP Act. The opening words of Section
22 being very wide and, therefore, lay down various matters
from clauses (a) to (m) which could be provided for in
Development Plan. It provides for the manner in which the
use of the land shall be regulated. Thus, the powers are very
wide. In particular, Section 22(m) of the Act opens with the
words "provisions for permission to the granted for
controlling and regulating the use and development of land
within the jurisdiction of the local authorities". This itself
would suggest that the Development Plan can provide for
controlling and regulating the use of land; secondly, the
concluding words of Section 22(m) inter alia provide for
"other matters as may be considered necessary for carrying
out the objections of this Act". This would certainly include
within its ambit regulation for Inclusive Housing. We find
that the power under Section 22(m) of the MRTP Act is
very wide and not restricted only to the plans originally
made and gives powers to the Planning Authorities to
regulate the use of the land under the over all plan made for
the region.
29. The contention of the Petitioner is that the impugned
notification is inconsistent with the MRTP Act for the
reason that unless a particular plot has been
reserved/designated/allocated for the particular purpose
under the Development Plan, it cannot qualify for the
acquisition of land as it has not been reserved under the
plan. We find that it is undisputed position that the DCR
1991 framed under the MRTP Act are also a part of the
Development Plan as held by this Court in Nariman Point
Association v. State of Maharashtra, (2003) 5 BCR 273. In
the above case, this Court has held that the Development
Plan under Section 22 of the Act makes provisions inter alia
for permission to be granted for controlling and regulating
the use of land under the Development Plan. DCR 1991
have been sanctioned by the State Government in exercise
of its power under Section 31 of the Act. These regulations
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form part of Development Plan under Section 22(m) of the
Act. Therefore, the DCR, 1991 would be a part of the
sanctioned final Development Plan, as is abundantly clear
from Section 22(m) of the MRTP Act. Moreover, once it is
accepted that the DCR 1991 are part of the Development
Plan, there is no reason to restrict the words 'for permission
to be granted' in respect of use of land appearing in Section
22(m) of the Act. It is correctly contended that there is no
requirement in language of Section 22(m) of the Act that
there must be first reservation/allocation/designation of a
land for a particular use in the Development Plan before the
land can be subjected to control/regulation by way of
permission under the DCR. According to us, there is no
justification to restrict the operation of Section 22(m) of the
MRTP Act so as to hold that the impugned notification is
ultra vires the MRTP Act.”
59
. In the said judgement, reliance was placed on an earlier
judgement of a Division Bench of this Court in the case of
Nariman Point Association and another vs. State of Maharashtra
and others , 2003(3) Mh.L.J. 68, wherein the following
observation was made:
“11. In assessing the tenability of the submissions which
have been urged on behalf of the petitioners, it would at the
outset be necessary to have regard to the provisions of the
Act, insofar as they relate to the contents of a Development
Plan. Section 22 of the Act stipulates that "a Development
plan shall generally indicate the manner in which the use of
land in the area of a Planning Authority shall be regulated,
and ....... the manner in which the development of land
which a Development Plan may incorporate. These matters
include in clause (a), proposals for allocating the use of land
for purposes such as residential, industrial, commercial,
agricultural and recreational; in clause (b), proposals for
designation of lands for public purposes; and in clause (C),
proposals for designation of areas for open spaces, green
belts and gardens. Clause (m) of section 22 is relevant for
the purpose of the present proceedings and provides that a
Development Plan may also provide for the following
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matters:
‘(m) provisions for permission to be granted for controlling
and regulating the use and development of land within the
jurisdiction of a local authority including imposition of
conditions and restrictions in regard to the open space to be
maintained about buildings, the percentage of building area
for a plot, the location, number, size, height, number of
storeys and character of buildings and density of population
allowed in a specified area, the use and purposes to which
buildings or specified areas of land may or may not be
appropriated, the sub-division of plots, the discontinuance
of objectionable users of land in any area in reasonable
periods, parking space and loading and unloading space for
any building and the sizes of projections and advertisement
signs and boarding and other matters as may be considered
necessary for carrying out the objects of this Act.’
Thus, under clause (m) of section 22, the development plan
is to make provisions inter alia for permission to be granted
for controlling and regulating the use and development of
land within the jurisdiction of a local authority and the use
and purposes to which buildings or specified areas of land
may or may not be appropriated. The Development Control
Regulations for Greater Bombay, 1991 have been
sanctioned by the State Government in exercise of powers
conferred by sub-section (1) of section 31 of the Act. These
Regulations form part of the contents of the Development
Plan under section 22(m). Section 31(1) empowers the State
Government to sanction the draft development plan. Under
subsection (6) of section 31, a Development plan which has
come into operation is designated as the final development
plan. The Development Control Regulations for Greater
Bombay, 1991, are, therefore, conceptually and in law a
part of the sanctioned final development plan. That the
Development Control Regulations would be a part of the
sanctioned final development plan is abundantly clear from
clause (m) of section 22 of the Act.
(emphasis supplied)’
60. Thus, it becomes abundantly clear that the Development
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Control Regulations, DCPR 2034 in the present context, become
part of the finalized development plan under the provisions of the
MRTP Act. Consequently, when a piece of land is required for
public purpose under such a Development Control Regulation,
which is part of the development plan, the power to acquire the
same can certainly be validly exercised, as has been done in the
present case. The emphasis placed by the petitioners only on the
two words ‘reserved’ and ‘designated’, while ignoring the word
‘required’ for public purpose, is found to be erroneous and hence,
the contentions raised on behalf of the petitioners in this context,
are rejected.
61. As regards the nature of Development Control Regulations
and the nature of power exercised while framing and amending
such Regulations, the Supreme Court, while considering the
Development Control Regulations framed under this very MRTP
Act, in the case of Pune Municipal Corporation and another vs.
Promoters and Builders Association and another , (2004) 10 SCC
796, observed as follows:
“5. Making of DCR or amendments thereof are legislative
functions. Therefore, Section 37 has to be viewed as
repository of legislative powers for effecting amendments to
DCR. That legislative power of amending DCR is delegated
to the State Government. As we have already pointed out,
the true interpretation of Section 37(2) permits the State
Government to make necessary modifications or put
conditions while granting sanction. In Section 37(2), the
legislature has not intended to provide for a public hearing
before according sanction. The procedure for making such
amendment is provided in Section 37. Delegated legislation
cannot be questioned for violating the principles of natural
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justice in its making except when the statute itself provides
for that requirement. Where the legislature has not chosen
to provide for any notice or hearing, no one can insist upon
it and it is not permissible to read natural justice into such
legislative activity. Moreover, a provision for “such inquiry
as it may consider necessary” by a subordinate legislating
body is generally an enabling provision to facilitate the
subordinate legislating body to obtain relevant information
from any source and it is not intended to vest any right in
anybody. (Union of India v. Cynamide India Ltd. (1987) 2
SCC 720, SCC paras 5 and 27. See generally H.S.S.K.
Niyami v. Union of India (1990) 4 SCC 516 and Canara
Bank v. Debasis Das (2003) 4 SCC 557). While exercising
legislative functions, unless unreasonableness or
arbitrariness is pointed out, it is not open for the Court to
interfere. (See generally ONGC v. Assn. of Natural Gas
Consuming Industries of Gujarat (1990 Supp SCC 397).
Therefore, the view adopted by the High Court does not
appear to be correct.
6. DCR are framed under Section 158 of the Act. Rules
framed under the provisions of a statute form part of the
statute. (See General Officer Commanding-in-Chief v. Dr.
Subhash Chandra Yadav (1988) 2 SCC 351, SCC para 14.
In other words, DCR have statutory force. It is also a settled
position of law that there could be no ‘promissory estoppel’
against a statute. (A.P. Pollution Control Board II v. Prof.
M.V. Nayudu (2001) 2 SCC 62, SCC para 69, STO v. Shree
Durga Oil Mills (1998) 1 SCC 572, SCC paras 21 and 22
and Sharma Transport v. Govt. of A.P. (2002) 2 SCC 188,
SCC paras 13 to 24. Therefore, the High Court again went
wrong by invoking the principle of “promissory estoppel”
to allow the petition filed by the respondents herein.”
62. Thus, the scope for challenging such a Development Control
Regulation is necessarily limited and in the present case, we find
that the petitioners have failed to raise substantive grounds for
quashing the impugned Regulation 33(9)(3)(5) of the DCPR.
63. The petitioners have heavily relied upon the judgement of
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the Supreme Court in the case of Manohar Joshi vs. State of
Maharashtra and others , (2012) 3 SCC 619, to contend that the
main object of the MRTP Act is planned development, while
acquisition is an incidental issue, further stating that the provisions
of the MRTP Act emphasize upon democratic process of planning.
64. It is contended that public participation is a hallmark of the
provisions of the MRTP Act and this basic feature has been
obliterated due to the manner in which the land of the petitioners
is sought to be acquired, by invoking the impugned Regulation
33(9)(3)(5) of the DCPR. In this context, it is vehemently
submitted that while framing the impugned DCPR, the principles
of natural justice and the aspect of public participation have been
violated and therefore, the impugned Regulation deserves to be set
aside.
65. The said contention raised on behalf of the petitioners
deserves to be rejected, in the light of the finding rendered
hereinabove that Development Control Regulations, including the
impugned Regulation forming part of DCPR 2034, are part of the
development plan. A perusal of Sections 21 to 31 of the MRTP
Act shows that the entire process involves publishing public
notices inviting objections and dealing with the same before
finalization of the development plan. As noted hereinabove,
Development Control Regulations are framed under Section 159
read with Section 22(m) of the MRTP Act.
66. Sections 37 and 37(A) thereof also assume significance in
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this context, as the said provisions pertain to modification of final
development plan and temporary change of user. Section 37(1AA)
of the MRTP Act provides that when the State Government is
satisfied that in public interest, it is necessary to urgently carry out
any modification of a final development plan of such nature that it
will not change the character thereof, a notice is to be published in
the official gazette, inviting objections and suggestions from any
person with respect to the proposed modification. It is only after
dealing with the objections and suggestions, can the proposed
modification be carried out in the final development plan.
67. In this context, it would be appropriate to reproduce
Sections 37 and 37A of the MRTP Act, which read as follows:
“37. Modification of final Development Plan
(1) Where a modification of any part of or any proposal
made in a final Development Plan, the Planning Authority
may, or when so directed by the State Government shall,
within ninety days from the date of such direction, publish a
notice in the Official Gazette and in such other manner as
may be determined by it inviting objections and suggestions
from any person with respect to the proposed modification
not later than one month from the date of such notice; and
shall also serve notice on all persons affected by the
proposed modification and after giving a hearing to any
such persons, submit the proposed modification (with
amendments, if any), to the State Government for sanction
within one year from the date of publication of notice in the
Official Gazette. If such modification proposal is not
submitted within the period stipulated above, the proposal
of modification shall be deemed to have lapsed:
Provided that, such lapsing shall not bar the Planning
Authority from making a fresh proposal.
(1A) If the Planning Authority fails to issue the notice as
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directed by the State Government, the State Government
shall issue the notice, and thereupon, the provisions of sub-
section (1) shall apply as they apply in relation to a notice to
be published by a Planning Authority.
(1AA) (a) Notwithstanding anything contained in sub-
sections (1), (1A) and (2), where the State Government is
satisfied that in the public interest it is necessary to carry
out urgently a modification of any part of, or any proposal
made in, a final Development Plan of such a nature that it
will not change the character of such Development Plan, the
State Government may, on its own, publish a notice in the
Official Gazette, and in such other manner as may be
determined by it, inviting objections and suggestions from
any person with respect to the proposed modification not
later than one month from the date of such notice, and shall
also serve notice on all persons affected by the proposed
modification and the Planning Authority.
(b) The State Government shall, after the specified period,
forward a copy of all such objections and suggestions to the
Planning Authority for its consideration. The Planning
Authority shall, thereupon, submit its say to the
Government within a period of one month from the receipt
of the copies of such objections and suggestions from the
government.
(c) The State Government shall, after giving hearing to the
affected persons and the Planning Authority and after
making such inquiry as it may consider necessary and
consulting the Director of Town Planning, by notification in
the Official Gazette, publish the approved modification
with or without changes, and subject to such conditions as it
may deem fit, or may decide not to carry out such
modification. On the publication of the modification in the
Official Gazette, the final Development Plan shall be
deemed to have been modified accordingly.
(1B) Notwithstanding anything contained in sub-section (1),
if the Slum Rehabilitation Authority appointed under
section 3A of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 is satisfied that a
modification of any part of, or any proposal made in, a final
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Development plan is required to be made for
implementation of the Slum Rehabilitation Scheme declared
under the said Act, then, it may publish a notice in the
Official Gazette, and in such other manner as may be
determined by it, inviting objections and suggestions from
any person with respect to the proposed modification not
later than one month from the date of such notice; and shall
also serve notice on all persons affected by the proposed
modification, and after giving a hearing to any such
persons, submit the proposed modification (with
amendments, if any) to the State Government for sanction.
(2) The State Government may, make such inquiry as it may
consider necessary and after consulting the Director of
Town Planning by notification in the Official Gazette,
sanction the modification with or without such changes,
and subject to such conditions as it may deem fit, or refuse
to accord sanction. If a modification is sanctioned, the final
Development plans shall be deemed to have been modified
accordingly.
37-A. Power of State Government or Planning Authority to
permit temporary change of user
Notwithstanding anything contained in this Act or any
other law for the time being in force, or in any judgement,
order or direction of any Court, or any draft or final
Development Plan, the State Government or the Planning
Authority may in respect of any plot of land reserved,
designated or allocated for the purpose of play ground in
such draft or final Development Plan, which is in the
possession of the State Government or the Planning
Authority, by an order issued from time to time, permit any
organisation, body of persons or association to use such
play ground for functions organised on the occasions of
Independence Day, Republic Day, Maharashtra Day and
similar National events, and the Jayanties or Punnyatithies
of National Leaders, religious functions and public
meetings, on terms and conditions specified by the State
Government or the Planning Authority, as the case may be
in such order, for a period not exceeding 12 days at a time
and in any case not exceeding forty-five days in the
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aggregate, in a calendar year; and such use shall not be
deemed to be a change of user:
Provided that, temporary use of any plot of land, reserved,
designated or allocated for the purpose of play-ground, for
management of any disaster or emergency such as Helipad
or other essential use, shall also not be deemed to be a
change of user.”
68. It is relevant to note that the Development Control
Regulations framed under the MRTP Act, specifically refer to the
aforesaid exercise contemplated under Section 37(1AA). DCPR
2034 was also framed by following the said process and the
respondent-State authorities have placed material on record to
support the said assertion, which shows that the State Government
had appointed a Study Group/Committee to examine as to the
manner in which DCR 1991 was operating, in the context of
reconstruction and redevelopment of cessed buildings, as also the
Urban Renewal Schemes.
69. On 10.09.2012, the State Government issued a government
resolution appointing such a Study Group/Committee to examine
the functioning of such Urban Renewal Schemes and as to whether
any modifications could be suggested for better functioning of
such schemes. The said Study Group/Committee of which the
Chief Secretary was the Co-ordinator, consisted of high ranking
officials as its members such as Principal Secretary (Public Works);
Commissioner (MCGM); Chief Executive Officer of Slum
Rehabilitation Authority, Chief Executive Officer of MHADA;
Director (Town Planning) and Chief Secretary (Town Planning).
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70. In the said report submitted by the Study Group/Committee,
it was recommended that if a promoter/developer of a cluster
obtains development rights to the extent of 70% of the subject
land, cluster development schemes should be implemented and as
regards the remaining 30% land, the power of acquisition could be
exercised. Such and other recommendations were taken into
account when the State Government proposed to modify
Regulation 33(9) of the Development Control Regulations, by
exercising power under Section 37(1AA)(c) of the MRTP Act.
71. Thereupon, the State Government issued public notices
inviting objections and suggestions. The Deputy Director (Town
Planning) was appointed as the designated officer to consider the
objections/suggestions, in order to submit report in the context of
the proposed modification of the said Regulation. After carrying
out the statutory exercise contemplated under Section 37(1AA) of
the MRTP Act, on 09.09.2014, the respondent-State issued
notification modifying Regulation 33(9), to introduce the concept
of cluster development of buildings, under the Urban Renewal
Scheme. Extensive modification was carried out and elaborate
procedure was laid down, which eventually led to the present
form of the impugned Regulation 33(9)(3)(5) of the DCPR.
72. Thus, it is evident that democratic planning methodology
contemplated under the MRTP Act and recognized in judgements
of Courts, was duly followed and only thereafter, was the
modification brought about in the Regulations. We do not find
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substance in the contention raised on behalf of the petitioners that
the impugned DCPR was issued without public participation.
Since statutory procedure contemplated under the provisions of
the MRTP Act, starting from Sections 21 to 31 pertaining to
finalization of development plan and thereafter, modification
thereof under Section 37(1AA) was followed to frame/modify the
Development Control Regulations, it cannot be said that the
impugned Regulation is ultra vires the provisons of the MRTP Act.
73. Much was said on behalf of the petitioners on the aspect of
‘public purpose’. The petitioners claim that the impugned
Regulation 33(9)(3)(5) of DCPR virtually grants power to a
private entity, like the respondent-Trust, to acquire land and that
since it benefits a private entity, there is no public purpose served
in the entire exercise. The said contention of the petitioners is
based on a complete misunderstanding of the manner in which
Urban Renewal Schemes are operated, including the subject CDS.
74. In the case of Sooraram Pratap Reddy and others vs. District
Collector, Ranga Reddy District and others , (2008) 9 SCC 552,
the Supreme Court considered the expression ‘public purpose’ and
made the following observations:
“67. The expression ‘public purpose’ is of very wide
amplitude. It is merely illustrative and not exhaustive. The
inclusive definition does not restrict its ambit and scope.
Really, the expression is incapable of precise and
comprehensive definition. And it is neither desirable nor
advisable to attempt to define it. It is used in a generic sense
of including any purpose wherein even a fraction of the
community may be interested or by which it may be
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benefited.
xxx xxx xxx xxx
69. Before about a century, in Hamabai Framjee Petit v.
Secy. of State for India in Council (1911) 13 Bom LR 1097
certain lands were sought to be acquired for erecting
buildings for the use of government officials. The action
was challenged in the High Court of Judicature at Bombay
contending that the purpose of acquisition could not be said
to be “public purpose”. Negativing the arguments and
upholding the acquisition, Batchelor, J. observed: (Hamabai
case (1911) 13 Bom LR 1097, IA p. 47
“… ‘General definitions are, I think, rather to be avoided
where the avoidance is possible, and I make no attempt to
define precisely the extent of the phrase “public purposes”
in the lease; it is enough to say that, in my opinion, the
phrase, whatever else it may mean, must include a purpose,
that is, an object or aim, in which the general interest of the
community, as opposed to the particular interest of
individuals, is directly and vitally concerned.’ ”
(emphasis supplied)
The aggrieved appellant approached the Privy Council. The
Council in Hamabai Framjee Petit v. Secy. of State for India
in Council approved the above observations of Batchelor, J.
Speaking for the Judicial Committee, Lord Dunedin stated:
(IA p. 47)
“… all that remains is to determine whether the purpose
here is a purpose in which the general interest of the
community is concerned. Prima facie the Government are
good judges of that. They are not absolute judges. They
cannot say: ‘Sic volo sic jubeo’, but at least a court would
not easily hold them to be wrong. But here, so far from
holding them to be wrong, the whole of the learned Judges,
who are thoroughly conversant with the conditions of
Indian life, say that they are satisfied that the scheme is one
which will redound to public benefit by helping the
Government to maintain the efficiency of its servants. From
such a conclusion Their Lordships would be slow to differ,
and upon its own statement it commends itself to their
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judgment.”
(emphasis supplied)
xxx xxx xxx xxx
79. A ‘public purpose’ is thus wider than a ‘public
necessity’. Purpose is more pervasive than urgency. That
which one sets before him to accomplish, an end, intention,
aim, object, plan or project, is purpose. A need or necessity,
on the other hand, is urgent, unavoidable, compulsive.
“Public purpose should be liberally construed, not whittled
down by logomachy.”
(emphasis supplied)”
75. In the present case, the subject CDS is being implemented in
the congested Bhendi Bazaar area of Mumbai city. As noted
hereinabove, urban renewal is indeed necessary for planned
development of Mumbai city, which has a number of such pockets
and areas of extreme congestion that have led to subhuman
existence of residents/occupants of such areas. The subject CDS
has been framed and is being executed for the general interest of
the community and residents/occupants of such area, which clearly
qualifies as public purpose. As part of Urban Renewal Scheme, the
subject CDS is operated and executed in terms of guidelines
specified in the DCPR framed under the MRTP Act, which
involves a promoter/developer like the respondent-Trust. The
purpose of such scheme is urban renewal through cluster
development and it certainly cannot be branded as a scheme for
the benefit of a private entity like the respondent-Trust. We find
the contentions raised in this regard on behalf of the petitioners to
be wholly misdirected and also, based on a misunderstanding of
the concept of public purpose, in the context of subject Urban
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Renewal Schemes. The concept of ‘public purpose’ clarified by the
Supreme Court in various judgements, including the above-quoted
portion from Sooraram Pratap Reddy and others vs. District
Collector, Ranga Reddy District and others ( supra ), clearly
demonstrates that the subject CDS qualifies as ‘public purpose’.
76. It cannot be ignored that the urban planning and
development is necessarily a dynamic concept, which has to
remain alive to the needs of the times and it cannot be treated as
static. It is for this reason that in the case of Bombay Dyeing &
Mfg. Co. Ltd. vs. Bombay Environmental Action Group and
others ( supra ), the Supreme Court observed as follows:
“249. A development plan is an organic document in the
sense that periodic changes are contemplated thereby. A
development plan is required to be changed every 20 years.
Such changes are to be brought about keeping in view the
past experience of the planning authority and the intended
future development of the town. While, therefore,
interpreting the words ‘change in the character of plan’ the
question would be as to whether the change in the character
is referable to alteration of the entire plan. The change in
the character would, therefore, necessarily mean the change
in the basic feature thereof and the entire plan as a whole
wherefor the same must be read in totality. In this case, the
changes made do not bring about any significant changes so
as to come to a conclusion that its basic features are
altered.”
77. Thus, the development plan is to be treated as an organic
document and the Development Control Regulations statutorily
framed under the MRTP Act ensure that the development plan is
synchronized with the changing requirements of times. The
introduction of the concept of cluster development as a feature of
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Urban Renewal Schemes, by modification of the Development
Control Regulations, cannot be found fault with, particularly
when such Regulations have been framed and modified as per the
statutory requirements under the MRTP Act.
78. It is necessary to appreciate that in the fast changing scenario
of economic and social development, the aspect of urban planning
also needs to keep pace and therefore, it becomes necessary for
delegating the power of undertaking Urban Renewal Schemes, as
per the requirements of the changing times. The legislature while
enacting the parent statute lays down the broad blueprint and
subordinate legislation like the Development Control Regulations
are framed by the delegate, in order to meet the changing
requirements of urban planning and detailing thereof, with passage
of time. So long as the delegated legislation provides for sufficient
guidelines and it is framed in tune with the objects of the parent
statute, it cannot be said that such subordinate legislation amounts
to excessive delegation. Having perused the contents of the subject
DCPR, we find that there are sufficient guidelines in the same and
therefore, it cannot be said to be a case of excessive delegation. In
the case of Consumer Action Group & Anr. vs. State of Tamil
Nadu & Ors., (2000) 7 SCC 425, the Supreme Court held as
follows :
“18. The catena of decisions referred to above concludes
unwaveringly in spite of a very wide power being conferred
on the delegatee that such a section would still not be ultra
vires, if guidelines could be gathered from the Preamble,
Objects and Reasons and other provisions of the Acts and
Rules. In testing the validity of such provision, the courts have
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to discover, whether there is any legislative policy, purpose of
the statute or indication of any clear will through its various
provisions. If there be any, then this by itself would be a
guiding factor to be exercised by the delegatee. In other
words, then it cannot be held that such a power is unbridled
or uncanalised. The exercise of power of such delegatee is
controlled through such policy. The fast-changing scenario of
economic, social order with scientific development spawns
innumerable situations which the legislature possibly could
not foresee, so the delegatee is entrusted with power to meet
such exigencies within the inbuilt check or guidance and in
the present case to be within the declared policy. So the
delegatee has to exercise its powers within this controlled
path to subserve the policy and to achieve the objectives of
the Act. A situation may arise, in some cases where strict
adherence to any provision of the statute or rules may result
in great hardship, in a given situation, where exercise of such
power of exemption is to remove this hardship without
materially affecting the policy of the Act, viz., development in
the present case then such exercise of power would be
covered under it. All situations cannot be culled out, which
have to be judiciously judged and exercised, to meet any such
great hardship of any individual or institution or conversely in
the interest of the society at large. Such power is meant rarely
to be used. So far as decisions relied on by the petitioner,
where the provisions were held to be ultra vires, they are not
cases in which the Court found that there was any policy laid
down under the Act. In A.N. Parasuraman [(1989) 4 SCC
683] the Court held Section 22 to be ultra vires as the Act did
not lay down any principle or policy. Similarly, in Kunnathat
Thathunni Moopil Nair [AIR 1961 SC 552 : (1961) 3 SCR
77] . Section 7 was held to be ultra vires as there was no
principle or policy laid down.”
79. In this context, it would be appropriate to refer to the
relevant portions of the impugned Regulation 33(9) of the DCPR,
which read as follows :
“33(9) Reconstruction or redevelopment of Cluster(s) of
Buildings under Cluster Development Scheme(s)(CDS):
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For reconstruction or redevelopment of Cluster(s) of buildings
under Cluster Development Scheme(s)(CDS)in the Island City
of Mumbai undertaken by (a) the MHADA or the MCGM
either departmentally or through any suitable agency or (b)
MHADA/MCGM, jointly with land owners and/or Co-op.
Housing Societies of tenants/occupiers of buildings and/or Co-
op. Housing Society of hutment dwellers therein, or (c) land
owners and/or Co-op. Housing Society of tenants/occupiers of
buildings and/ or Co-op Housing Society of hutment dwellers,
independently or through a Promoter /Developer, the FSI
shall be 4.00 or the FSI required for rehabilitation of existing
tenants/occupiers plus incentive FSI whichever is more as per
the provisions of this Regulation as follows .
1.1 Cluster Development Scheme(CDS)means any scheme for
redevelopment of a cluster of buildings and structures over a
minimum area of 4000 sq. m in the Island City of Mumbai
and 6000 sq. m in the Mumbai Suburbs &Extended Suburbs,
bounded by existing distinguishing physical boundaries such
as roads, nallas and railway lines etc. and accessible by an
existing or proposed D.P. road which is at least 18m wide
whether existing or proposed in the D.P. or URP or a road for
which Sanctioned Regular line of street has been prescribed by
the MCGM under MMC Act, 1888. Such cluster of buildings
(hereinafter referred to as "Cluster Development (CD)” shall
be a cluster or a group of clusters identified for urban
renewal:
Provided further that HPC may consider after verifying traffic
simulation study to allow CDS on a plot having access from
existing minimum 12m. wide dead end road originating from
18 m. wide public road.
1) Under the Cluster Development Plan (CDP) for the
concerned area, to be prepared by the Commissioner, who
may revise the same as and when required; or
Under the Development Plan (DP), where the DP contains
such well-defined cluster
2) By the Promoter of the CDS,
Provided that no cluster or clusters shall be identified for
redevelopment or implementation of CDS by the Municipal
Commissioner without carrying out an Impact Assessment
Study regarding the impact on the city and sector level
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infrastructure and amenities as well as traffic and environment
of the implementation of CDS on such cluster or clusters.
3. Land pooling for the CDS:
The Promoter of CDS shall try to pool lands belonging to
various categories of land holders including Public lands by
obtaining their consent for including their lands in the
proposed CDS, by resorting to any of the following methods
of land pooling:
1) Purchase of lands, including buildings, if any, standing
thereupon,
Provided that if the Promoter wishes to include any building
or land belonging to the State Govt. or MCGM or MHADA
or any Agency under the control of State Govt. (hereinafter
collectively referred as "Public Authority"), then he shall make
a written request in this regard through the Municipal
Commissioner to an Empowered Committee (EC) headed by
the Chief Secretary. This EC shall be as formulated by GoM.
The EC shall examine the request made by the Promoter in
terms of the desirability of making the land belonging to a
Public Authority available for CDS and would decide the
terms of transfer of such land to the Promoter for the purpose
of implementing CDS. In case the land sought by the
Promoter belongs to an Authority created by or under a
statute, the decision of the EC shall be subject to
ratification/approval by such Authority.
2) Exchange of such land with a suitable land of at least
equivalent value as per ASR land rates.
3) Procurement of DRs over such land, by way of registered
document by the Promoter, provided that the area over which
the Promoter holds DRs shall be regarded as one plot for all
the purposes of the DCPR; or
4) Transfer of all lands included in the CDS to a legal entity
(e.g: Registered Society or Company, Co-operative Housing
Society, Charitable Trust, etc.) to be created by the Promoter
for implementing the CDS where different landholders have
stakes proportionate to their share in the total land under
CDS; or
5) Acquisition of lands, provided the Promoter has purchased
or procured DRs over at least 70% land comprised in the CD
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and there are dangerous buildings, declared as such by the
Competent Authority, on the balance lands contained in the
CD. In such a situation, the Promoter may approach the HPC
for recommending the proposal to the Govt. for acquisition of
such balance lands. Upon receipt of such request, the HPC
may, after due examination, recommend to the Govt. as to
which lands are required to be acquired for the purposes of
CDS. The Govt., thereafter, shall take necessary steps to
acquire such balance lands under the provisions of the
relevant law and transfer the same to the Promoter only for
the purpose of implementing CDS after executing an
agreement with him in this regard, subject to the Promoter
depositing with the Govt. necessary amount of money for the
land acquisition. For the purpose of land acquisition, CDS
shall be regarded as public purpose.
6. a) Redevelopment or Reconstruction under CDS may be
permitted in pursuance of an irrevocable registered written
consent by eligible tenants/ occupiers of all authorized
buildings not less than 51 percent of each building or 60
percent overall of the scheme involved in the CDS Consent as
aforesaid of f tenants/occupiers for reconstruction or
redevelopment shall not be required, if MHADA/MCGM
undertakes redevelopment, on its own land, directly without
any developer.
The Developer shall be required to submit along with the
CDS proposal, proof of ownership or procurement of DRs in
respect of at least 70% of the land under the proposed
CDS(excluding Municipal Roads if maintained as existing in
proposed CDS) and it shall be mandatory for him to submit
such proof of ownership or procurement of development
rights in respect of the balance area within one year from the
date of issue of the LOI.
b) All the eligible occupants/tenants of the building(s)
undergoing redevelopment shall be rehabilitated in the
redeveloped building(s).
(emphasis supplied)”
80. A perusal of the above quoted relevant portions of the
impugned Regulation 33(9) of the DCPR, particularly the
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emphasized portions, would show that there are sufficient
guidelines contained therein. These include minimum area of 4000
sq. m. in the island city of Mumbai and 6000 sq. m. in the
Mumbai suburbs and extended suburbs. There are sufficient
guidelines for identifying distinguishing physical boundaries to
such areas of lands identified for cluster development. Sufficient
safeguards are incorporated to ensure that only when at least 70%
of the development rights of the subject land are purchased or
procured by the promoter/developer that the cluster development
can proceed. The balance lands should comprise of dangerous
buildings and the entire proposal for such cluster development is
required to be examined by the HPC. It is only when all the
conditions and guidelines specified in the said Regulation are
satisfied that the CDS is regarded as public purpose and
acquisition of land can be undertaken. Considering the contents of
the impugned Regulation, we find that neither does it suffer from
the vice of excessive delegation nor can it be said that it is bereft of
sufficient guidelines. Hence, the contentions raised on behalf of
the petitioners in this regard are rejected.
81. In the light of the manner in which the Urban Renewal
Scheme in the form of CDS is implemented and executed in a
systematic and step-wise manner provided in the impugned
Regulation, it cannot be said that such a scheme is only for the
benefit of a private entity like the respondent-Trust. The public
character of such a Urban Renewal Scheme is not diluted because
of the fact that it is implemented with the assistance of a
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promoter/ developer. In any case, as per the aforesaid scheme, the
amount required, to arrange for compensation for acquisition of
the balance land, is arranged by the promoter/developer and
therefore, even the cost of the acquisition does not fall upon the
public exchequer. On the other hand, the benefit of such a Urban
Renewal Scheme, particularly through cluster development, inures
to the benefit of the public at large, as those living in congested
areas in almost subhuman conditions are given tenements of larger
sizes, with excellent common facilities, including broad roads,
proper drainage and other such facilities, which contributes
towards better living conditions. Therefore, we are unable to agree
with the petitioners that framing of DCPR and execution of the
Urban Renewal Scheme through cluster development is an action
beyond the objects and purposes of the MRTP Act.
82. We find substance in the contention of the respondent-State
Authorities that even with respect to the specific subject CDS
concerning Bhendi Bazaar area of Mumbai city, in judgements and
orders passed by this Court, the scheme has been noted with
approval. In this context, reference can be made to the orders in
the cases of Mr. Murtuza Shabbir Tinwala a/w The State of
Maharashtra & Ors., 2015 SCC OnLine Bom 6131 and Mohd.
Jahir Shaikh Nasir vs. State of Maharashtra & Ors., 2019 SCC
OnLine Bom 8223. In the said judgements and order, this Court
took specific note of the subject CDS as part of urban renewal by
referring to the number of persons who would be benefiting from
the scheme, apart from the fact that units admeasuring minimum
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350 sq. ft. carpet area with self-contained toilets would be
available even for residential tenants, more than 700 trees would
be planted and the entire infrastructure of the Bhendi Bazaar area
would be upgraded. There would be facilities for roads having
width between 15 meters and 16.5 meters with footpaths and
sufficient parking spaces along with new sewerage and sanitation
facilities, along with a sewerage treatment plant. These features
indeed demonstrate that such Urban Renewal Scheme is for public
purpose and in the general interest of the community at large,
thereby indicating that the acquisition undertaken for execution of
such a scheme cannot be said to be foreign to the object of the
MRTP Act and the Rules and Regulations framed thereunder.
83. The petitioners have alleged that they were never given
notice before the decision was taken to undertake the Urban
Renewal Scheme through the subject CDS. We find that the
petitioners were aware about the Urban Renewal Scheme at least
from the year 2011. As a matter of fact, the tenants in the said
Lucky Building concerning Writ Petition No. 2997 of 2021 had
given consent for implementation of the scheme. More than 80%
of the tenants gave their consent, while the petitioners refused to
respond to the same. The decisions of the HPC were never
challenged by the petitioners. They did not even respond to the
public notices published in newspapers on 30.05.2019, when the
subject lands were intended to be purchased by way of
negotiations. It was after the process of acquisition was over that
the petitioners chose to knock the doors of this Court. Therefore,
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the petitioners cannot be heard to say that the Urban Renewal
Scheme through the subject CDS was initiated and implemented
behind their back.
84. In any case, as noted hereinabove, the petitioners never
raised any objection when public notices were issued, inviting
objections with regard to the proposed modification of the DCR
from time to time, including while framing the subject DCPR
2034. We do not find substance in the contention of the
petitioners that since such proposed modification did not
specifically identify the property of the petitioners to be made
subject matter of acquisition, there was no occasion for them to
raise the objection. Such a contention cannot be accepted as public
participation is a statutorily engrafted mechanism in the MRTP
Act. The respondent-State Authorities have been able to
demonstrate that all the statutory requirements contemplated
while finalizing the development plan under Sections 21 to 31 of
the MRTP Act, as also while proposing to make modifications
under Section 37 thereof, were duly followed and therefore, the
public at large had sufficient notice about the upgradation of the
concept of urban renewal through cluster development and the
detailing of its execution as proposed in the Development Control
Regulations. Hence, the said contentions on behalf of the
petitioners are also rejected.
85. In view of the above, we find that the propositions recorded
in paragraph 50 hereinabove are answered in favour of the
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respondents and against the petitioners. The judgements relied
upon by the petitioners in the context of the said propositions do
not take their case any further. On the other hand, they support
the case of the respondents.
86. Apart from claiming that the impugned Regulation 33(9)(3)
(5) of DCPR is ultra vires the MRTP Act, the petitioners also
contended that the said Regulation violates their constitutional
rights under Article 300A of the Constitution of India. The
aforesaid Article pertains to the right to property and it stipulates
that no person shall be deprived of its property save by authority
of law. It is already held hereinabove that the DCPR is part of the
development plan, which in turn is part of the parent statute i.e.
the MRTP Act. Therefore, it qualifies as law in the context of
Article 300A of the Constitution of India. We find substance in
reliance placed on behalf of the respondent-State Authorities on
the judgements of the Supreme Court in the cases of Hindustan
Times & Ors. vs. State of U.P. & Anr., (2003) 1 SCC 591 and
Bishambhar Dayal Chandra Mohan & Ors. vs. State of Uttar
Pradesh & Ors., (1982) 1 SCC 39. In the said judgements, the
Supreme Court categorically held that the expression ‘law’ within
the meaning of Article 300A of the Constitution of India means a
parliamentary Act or the Act of a State legislature or a statutory
order having the force of law. In the present case, impugned
Regulation 33(9)(3)(5) of the DCPR clearly qualifies as ‘law’
within the meaning of Article 300A of the Constitution of India.
Thus, it cannot be said that in the present case, the petitioners
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have been deprived of their property without the authority of
‘law’. In fact, the acquisition has been undertaken under Section
126 of the MRTP Act, read with impugned Regulation 33(9)(3)(5)
of DCPR and the provisions of the Act of 2013. The
determination of market value has been made in terms of the
provisions of the Act of 2013 and therefore, it cannot be said that
the acquisition in the present case amounts to violation of the
right of the petitioners under Article 300A of the Constitution of
India.
87. One of the contentions raised on behalf of the petitioners
concerns the specific stipulation in the impugned Regulation 33(9)
(3)(5) of the DCPR to the extent that when balance land is to be
acquired, it must consist of dangerous buildings. A bare reading of
the impugned Regulation quoted hereinabove would show that the
requirement is with regard to existence of dangerous buildings on
the balance land within the cluster development area. It is
specifically contended on behalf of the petitioners that since the
requirement is that the Competent Authority must have declared
such buildings as dangerous and since, the subject Lucky Building
was never declared dangerous by the competent Authority, the
whole exercise of acquisition stood vitiated.
88. In the chronology of events narrated hereinabove, reference
is already made to warning notices issued by the competent
Authority i.e. the Mumbai Building Repair and Reconstruction
Board to the occupants of the subject building in the year 2018,
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as regards the dilapidated status of the building and for consent of
the tenants/ occupants with regard to the said scheme. This
includes a warning notice dated 11.06.2018 sent by the aforesaid
Board to the petitioners referring to the subject CDS and
specifically stating that despite the building being in dangerous
condition, no steps were being taken for vacating the same, while
the tenants/occupants had shown their willingness to vacate the
building. A reference has been made hereinabove to an order
passed by this Court in one of the writ petitions to the effect that
the occupants of the subject building were residing therein at their
own risk. These documents sufficiently indicate that
notices/warning notices were issued even with regard to the
subject building of the petitioners, on the ground of it being
dangerous and risky for habitation.
89. Apart from this, we find substance in the contention raised
on behalf of the respondent-State Authorities to the effect that
since the subject building was more than 100 years old, as per
Section 84 of the MHAD Act, it was statutorily classified as a
category A building. It is an admitted position that the subject
building was a cessed building, erected before 01.09.1940 and
therefore, it stood classified as a category A building. It is to be
noted that the Supreme Court in the case of Jayant Achyut Sathe
vs. Joseph Bain D’Souza & Ors., (2008) 13 SCC 547 has taken
note of the said provision of the MHAD Act and the
categorization of such buildings constructed prior to the year
1940. Such a building falling in the said category by itself was
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dangerous and therefore, we do not find any substance in the
contention raised on behalf of the petitioners that since it was not
specifically declared a dangerous building, the requirement in the
impugned Regulation 33(9)(3)(5) of the DCPR was not satisfied.
90. At this stage itself, another aspect highlighted on behalf of
the respondent-State Authorities deserves consideration. This
pertains to the contention raised on behalf of the said respondents
that as between the acquisition of such dangerous buildings and
properties under the MHAD Act on the one hand and the MRTP
Act on the other, the provisions of the MRTP Act read with the
Act of 2013 are clearly more advantageous to the claimants like
the petitioners. As per Section 44 of the MHAD Act, in the event
acquisition is to be undertaken, the compensation is restricted to
an amount equivalent to the rent of 100 months. As opposed to
this, under the provisions of the MRTP Act read with DCPR and
the provisions of the Act of 2013, the compensation payable is at
market value of the subject property and the claimants also have
the facility of seeking enhancement of compensation through
statutory remedies. Therefore, we find substance in the contention
raised on behalf of the respondent-State Authorities that
acquisition of the subject property of the petitioners under
impugned Regulation 33(9)(3)(5) of the DCPR read with Section
126 of the MRTP Act and the provisions of the Act of 2013 results
in compensation as per market value and the right to property of
the petitioners is sufficiently protected.
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91. The petitioners have further contended that in the facts of
the present case, even the mechanism contemplated in the
impugned Regulation 33(9)(3)(5) of the DCPR has not been
complied with and that on this ground, the writ petition ought to
be allowed. In this context, the petitioners claimed that the HPC
granted approval to the execution of CDS as an Urban Renewal
Scheme, which ultimately led to acquisition of property of the
petitioners, within minutes of the proposal being submitted and in
any case, within one day of submission of the same. An impression
was sought to be created that the HPC along with other State
authorities, acted in connivance to somehow hurriedly hand over
the area of land made subject matter of the CDS under the
impugned Regulation 33(9)(3)(5) of the DCPR, with the sole
object of benefiting a private entity like the respondent-Trust.
92. But, the chronology of events recorded hereinabove, while
referring to the facts of the case, shows that the proposal for
redevelopment of Bhendi Bazaar area in terms of DCR 1991 was
first considered on 11.06.2009 by the HPC. Over the years, the
proposal was placed for further consideration with necessary
documents being placed before the HPC. The percentage of land
owners giving their consent and development rights to the
respondent-Trust and other details were placed before the HPC
from time to time. Initially, the redevelopment was contemplated
in two phases.
93. But, the HPC was of the opinion that there should be
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amalgamation and that the respondent-Trust must procure a single
property card for the entire cluster. Upon necessary steps being
taken in that regard and eventually, the HPC being made aware
about the fact that all the land owners/tenants/occupants of the
proposed cluster development, except about 7%, had given their
consent and the other requirements of the DCPR had been
satisfied, that the HPC granted its approval to the subject CDS.
The in-principal approval had been granted in the year 2011 itself.
94. This Court has already recorded that the land
owners/tenants/occupants of the subject area, including the tenants
of the petitioners and the petitioners themselves were well aware
about the aforesaid development. Hence, we find no substance in
the contention raised on behalf of the petitioners that the
mechanism and procedure contemplated under the impugned
Regulation 33(9)(3)(5) of the DCPR was not followed. Much
emphasis was placed on the words ‘after due examination’ by the
HPC, to the contend that since the approval was granted in haste,
the HPC had not duly examined the proposed CDS. In the light of
the facts brought to the notice of this Court, we find no substance
in the said contention raised on behalf of the petitioners.
95. We also find that the specific requirements of cluster
development, as noted hereinabove, concerning minimum size of
the plot being at least 4000 sq.mtrs. and other requirements
regarding consent of at least 70% of the development rights of the
subject land, the extent of permitted FSI etc. were all satisfied and
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therefore, the requirements of the Regulation 33(9)(3)(5) of the
DCPR were duly complied with. On this count also, no deficiency
can be attributed to the action taken for implementing the subject
CDS as an Urban Renewal Scheme for the congested Bhendi
Bazaar area of Mumbai city.
96. The petitioners also contended that the principles of natural
justice were grossly violated in the present case. We have already
found hereinabove that notice was sent to the petitioners about
the said Urban Renewal Scheme in the form of cluster
development, proposed to be undertaken in the area in which the
property of the petitioners was located. But, it was claimed that
the necessary notices were not issued before seeking to acquire the
subject property under the Act of 2013.
97. In this regard, a reference to proviso to the above-quoted
Section 126 of the MRTP Act, would be apposite. The said
proviso lays down that the procedure specified in Sections 4 to 15
of the Act of 2013, shall not be applicable in respect of the lands
required for public purpose as per the development plan. If the
contentions of the petitioners are accepted, it would amount to
introducing the requirements of Section 4 to 15 of the Act of
2013, when they have been specifically excluded as per the
proviso to Section 125 of the MRTP Act. In the present case,
acquisition has been undertaken for public purpose, in order to
undertake urban renewal of the subject area through cluster
development, which is indeed a public purpose, as per Sections
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125 and 126 of the MRTP Act read with Regulation 33(9)(3)(5) of
the DCPR framed under the MRTP Act.
98. It is also relevant to note that eventually, when the
petitioners did raise objections before the Deputy Collector in the
context of the proposed acquisition, the same pertained to the
very power of the Collector to acquire the subject lands for public
purpose, while no submissions were made with regard to the
quantum of compensation or any dispute regarding measurement,
etc. The nature of objections raised by the petitioners were beyond
the jurisdiction of the authority before whom such objections were
raised. In other words, the petitioners did not avail of the
opportunity granted for raising objections in terms of Section 21
of the Act of 2013.
99. It was also contended that sufficient notice was not given to
the petitioners in terms of the statutory provisions. We find that
even if that be so, it is not contended by the petitioners that they
did not have sufficient time to raise their objections or that they
suffered any prejudice. As a matter of fact, the petitioners did raise
their objections and they remained present before the Deputy
Collector to pursue the same, thereby indicating that the aforesaid
contention raised on their behalf cannot lead to setting aside of
the impugned award.
100. As noted hereinabove, the nature of objections of the
petitioners pertained to the very power of the Collector to
undertake acquisition and there were no issues raised as
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contemplated under Section 21 of the Act of 2013. Thus, the
contentions raised on behalf of the petitioners with regard to
violation of principles of natural justice, cannot be accepted.
101. In this regard, the respondent-State authorities are justified
in placing reliance on the observations made in the judgement of
the Supreme Court, in the case of State of Uttar Pradesh vs. Sudhir
Kumar Singh and others , (2021) 19 SCC 706. The said
observations support the case of the respondents that in the facts
of the present case, the impugned award cannot be set aside on the
alleged violation of principles of natural justice. The observations
made in the aforesaid judgement read as follows:
“42. An analysis of the aforesaid judgments thus reveals:
42.1. Natural justice is a flexible tool in the hands of the
judiciary to reach out in fit cases to remedy injustice. The
breach of the audi alteram partem rule cannot by itself,
without more, lead to the conclusion that prejudice is
thereby caused.
42.2. Where procedural and/or substantive provisions of
law embody the principles of natural justice, their
infraction per se does not lead to invalidity of the orders
passed. Here again, prejudice must be caused to the
litigant, except in the case of a mandatory provision of law
which is conceived not only in individual interest, but also
in public interest.
42.3. No prejudice is caused to the person complaining of
the breach of natural justice where such person does not
dispute the case against him or it. This can happen by
reason of estoppel, acquiescence, waiver and by way of
non-challenge or non-denial or admission of facts, in cases
in which the Court finds on facts that no real prejudice can
therefore be said to have been caused to the person
complaining of the breach of natural justice.
42.4. In cases where facts can be stated to be admitted or
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indisputable, and only one conclusion is possible, the
Court does not pass futile orders of setting aside or
remand when there is, in fact, no prejudice caused. This
conclusion must be drawn by the Court on an appraisal of
the facts of a case, and not by the authority who denies
natural justice to a person.
42.5. The “prejudice” exception must be more than a mere
apprehension or even a reasonable suspicion of a litigant. It
should exist as a matter of fact, or be based upon a definite
inference of likelihood of prejudice flowing from the non-
observance of natural justice.”
102. It was further contended on behalf of the petitioners that
delegation of power to the Deputy Collector to undertake the
acquisition proceedings and to render the award, amounts to the
delegate of the State Government i.e. the Collector further sub-
delegating the power of the State to the Deputy Collector. It is
submitted that since the Collector could not have further
delegated the authority to the Deputy Collector, all actions taken
by the Deputy Collector for acquisition of the subject land, stood
vitiated.
103. On this basis, the petitioners have challenged the impugned
notification dated 27.09.2019, whereby the Collector designated
the Deputy Collector to perform the functions of the Collector
under the Act of 2013. Section 3(g) of the Act of 2013 defines
Collector as follows:
“ 3. Definitions: In this Act, unless the context otherwise
requires,-
(g) “Collector” means the Collector of a revenue
district, and includes a Deputy Commissioner and
any officer specially designated by the appropriate
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Government to perform the functions of a Collector
under this Act; ”
104. The appropriate Government in the present case is the
respondent-State, as the subject land for acquisition in the present
Rul
case is within the territory of the State of Maharashtra. e 2(g)
of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Maharashtra) Rules,
2014, provides that the Collector means the District Collector and
includes the Additional Collector, Deputy Collector (Land
Acquisition) and Sub-divisional Officer functioning in the District.
105. A conjoint reading of the said provisions makes it
abundantly clear that the Deputy Collector exercising power in the
present case, does not mean that an authority devoid of
jurisdiction undertook the procedure for acquisition of the subject
land. The petitioners sought to indicate illegality on the part of the
respondents in the Deputy Collector proceeding to render the
subject award, on the basis of monetary classifications prescribed
in Rule 18 of the aforementioned Rules of the State of
Maharashtra.
106. We find substance in the contention raised on behalf of the
respondent-State authorities that the classification based on
monetary considerations and specifying pecuniary limits is a
procedural and administrative division of work, which cannot
impinge upon the true purport of Rule 2(g) of the said Rules of the
State of Maharashtra, whereby the expression ‘Collector’ indeed
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includes the Deputy Collector. In any case, Rule 18(3) itself
provides that when the amount of compensation to be paid is
more than Rs.10 crores, approval has to be taken from the
Divisional Commissioner. Such limits are subject to review
annually. Thus, if at all any procedural infirmity exists in this
regard, it is a curable infirmity. The same cannot inure to the
benefit of the petitioners, particularly in the facts of the present
case, where the financial burden of payment of compensation is
not borne by the State, but it is provided by the
promoter/developer of the CDS such as the respondent-Trust in
the present case. Thus, the said contention raised on behalf of the
petitioners also does not take their case any further.
107. The petitioners claimed that the entire proceedings before
the Deputy Collector were conducted in haste and hence the
compensation granted in the impugned award is not sustainable. It
was submitted that valuation report was obtained within one day
and as many as 16 awards were passed in a single day. We find that
such arguments necessarily pertain to the determination of
quantum of compensation in the impugned award. Any grievance
with regard to the said aspect of the matter has to be raised in
terms of the statutory remedy of reference available to the
claimant under Section 64 of the Act of 2013. As per the
provisions of the Act of 2013, the Collector considering the
acquisition proceedings, while determining the quantum of
compensation, has to apply the principles specified in Sections 26
to 30 thereof. In a reference proceeding, the Land Acquisition,
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Rehabilitation and Resettlement Authority (LARR Authority)
under Section 64 of the Act of 2013 is required to examine
whether the Collector has applied the correct principles while
calculating the quantum of compensation. The reference
proceeding before the LARR Authority is the remedy for raising
such grievance by an aggrieved claimant. It is an admitted position
that the petitioners have taken recourse to the said remedy by
filing reference under Section 64 of the Act of 2013. Hence, the
petitioners are at liberty to pursue the same in accordance with
law. On this ground, the aforesaid grievance raised with regard to
the determination of quantum of compensation in the impugned
award, cannot be considered in this writ petition.
108. The petitioners have also challenged the action of the
respondents while taking possession of the subject property. The
documents on record show that sufficient notice was given to the
petitioners to handover possession of the subject property as the
award had been passed and the compensation amount was kept
ready for disbursal to the petitioners. They refused to accept the
same and in such a situation, the concerned respondents
proceeded on 03.02.2020 to take possession of the property,
which action cannot be said to be illegal in any manner. It is
already noted hereinabove that the petitioners were given
sufficient notice about the implementation of the Urban Renewal
Scheme through the subject CDS and even public notices were
issued at the stage of initiation of acquisition proceedings. Upon
completion of such acquisition proceedings and the award being
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passed, the next step was taking possession of the subject
properties so that the CDS could be executed and implemented for
urban renewal and redevelopment of the area. The petitioners
have not been able to make out any ground to claim that the
possession of the subject property was illegally taken. It is also a
matter of record that the writ petition was filed by the petitioners,
concerned with the aforesaid Lucky Building, in the year 2021.
Initially, a limited direction was issued by this Court in the writ
petition to the effect that the petitioners would not be
dispossessed without following due process of law. Subsequently, a
Division Bench of this Court heard the parties on the question of
interim relief. The Division Bench of this Court, by a detailed
order passed on 21.07.2023, rejected the prayer for interim relief.
The petitioners challenged the said order by filing Special Leave
Petition (Civil) No.17997 of 2023. By an order dated 21.08.2023,
the Supreme Court refused to interfere with the order passed by
this Court. The Special Leave Petition was disposed of, leaving all
contentions open and with an expectation that this Court would
consider and dispose of the writ petition expeditiously in
accordance with law.
109. Thereafter in August 2023, the subject building was
demolished in order to execute the CDS. Respondent No.10 Trust
has placed before this Court present status of the project. It is
evident that redevelopment, at large scale in the subject area, has
already taken place and buildings have come up with common
facilities wherein the owners / tenants / occupants of the old
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structures are being accommodated. The present status of the said
project brought to the notice of this Court clearly indicates that
major portion thereof is already completed.
110. In the light of the findings rendered hereinabove, the said
grounds raised in the writ petitions on behalf of the petitioners
cannot be accepted and the prayers in the writ petitions deserve to
be declined.
111. Additionally, in Writ Petition No.4762 of 2024, the
petitioners have raised an issue about the subject acquisition
violating Section 91 of the Waqf Act. It is alleged that notices were
never issued under Sections 19 and 21 of the Act of 2013. But, the
material on record shows that the notification dated 27.09.2019
issued under Section 19 of the Act of 2013 was a Gazetted
Notification and it was published in the newspaper on
28.09.2019. A notice dated 06.11.2019 was also pasted on the
door of the subject property and the petitioners were well aware
about the inclusion of the subject property for acquisition.
112. Apart from this, the issue with regard to violation of Section
91 of the Waqf Act is completely answered by the said provision
itself. In sub-section (4) of Section 91 of the Waqf Act, it is
specified that any order passed under the provisions of the Land
Acquisition Act or under corresponding provisions of law, without
giving an opportunity to the Waqf Board, can be declared void if
the Waqf Board, within one month of its coming to know of the
order, applies in that behalf, to the authority, which passed such an
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order. In the present case, the Waqf Board did not make any such
application, much less within one month before the concerned
authority. In any case, in the reply affidavit to the said Writ
Petition No.4762 of 2024, the Waqf Board categorically stated
that it had no objection to the subject acquisition and that it had
notice of the same.
113. Therefore, we do not find any substance in the said
additional point raised in Writ Petition No.4762 of 2024 and
hence, the same is rejected.
114. The concept of Urban Renewal through such cluster
development scheme needs to be appreciated in the correct
perspective. It cannot be said to be a new concept, for the reason
that even in the earlier Development Control Regulations, the
concept of Urban Renewal Scheme was recognized and
incorporated. Initially, it was restricted to repairs and
reconstruction of cessed buildings in the island city of Mumbai.
But, with passage of time and recognizing the need for
development of a city like Mumbai in an organic manner, the
concept of cluster redevelopment of buildings was incorporated in
the Regulations. The detailing was further added from time to
time and in the present form of the Development Control
Regulations i.e. DCPR 2034, specific guidelines have been
incorporated, including specifying the minimum area of 4000
square meters in the island city of Mumbai and 6000 square
meters in Mumbai Suburbs and extended Suburbs for executing
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such scheme of cluster development. It is not as if such Urban
Renewal Scheme through reconstruction and redevelopment of
cluster of buildings is foisted upon unwilling citizens. DCPR 2034
sufficiently addresses the aforesaid issue by mandating that
development rights of at least 70% of the subject area of the land
are with the promoter / developer before the said scheme can even
be considered. Such a scheme is placed before the HPC and upon
ensuring that all the requirements of law are satisfied, approval is
granted to such schemes.
115. In the present case, the subject area falls in Bhendi Bazaar.
The said area is highly congested, with poor living conditions for
the occupants thereof and in such a situation, this Court,
exercising writ jurisdiction, is not expected to interfere with re-
development work, which ultimately inures to the benefit of the
residents and the citizens of Mumbai city. The allegations of mala
fide and involvement of highly placed officials of the respondent
State in allegedly benefiting a private entity like the respondent
Trust, are based on a misunderstanding of the entire Urban
Renewal Scheme incorporated in the Development Control
Regulations, which forms part of the Development Plan and
hence, has statutory backing as per the provisions of the MRTP
Act.
116. In this context, the respondents are justified in relying on
the position of law that when a party approaches the Court for
such a declaration that the acquisition is not valid, it must satisfy
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the Writ Court that making such an order would do justice and
that justice lies on its side. This was the position of law clarified by
this Court in the case of State of Bombay Vs. Morarji Cooverji ,
1958 SCC OnLine Bom. 188. Applying the said position of law to
the facts and circumstances of the present case, we find that the
acquisition of the lands of the petitioners is for the purpose of
urban renewal by cluster development so that the greater good of
the community and the public at large is advanced. Only about 7%
owners / tenants / occupants of the subject area, including the
petitioners, opposed the said Scheme, while an overwhelming
majority wholeheartedly supported the same for redevelopment of
the area located in the congested Bhendi Bazaar area in Mumbai
city. It is settled law that private interest must give way to larger
public interest and public good. In any case, it is not as if the
property of the petitioners has been taken away without
compensation. The entire exercise of determination of
compensation was undertaken and the quantum of compensation
so determined was also offered to the petitioners. It is an admitted
position that the petitioners have even initiated the process of
reference under Section 64 of the Act of 2013, seeking
enhancement of the quantum of compensation. The said claim of
the petitioners will obviously be decided in accordance with law.
117. In view of the above and considering the facts and
circumstances of the case, we are of the opinion that the
petitioners have failed to support their case for granting reliefs as
claimed in the writ petitions. Accordingly, the writ petitions are
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dismissed.
118. Pending applications, if any, also stand disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
Bipin / Priya / Minal
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