# '' t .,, , • If ~·· v. ~ ; , .1,l-l ,.~ •. STAT.E-OF.MA~AR;\SHTRf' & ORS

- **Citation:** [2008] 16 S.C.R. 366
- **Court:** Supreme Court of India
- **Decided:** 2008
- **Case number:** Civil Appeal No. 6712 of 2008
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-if-v-1-l-l-stat-e-of-ma-ar-shtrf-ors-23889
- **Pages:** 30

## Headnote

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[2008] 16 S.C.R. 366
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, .1,l-l ,.~ •. STAT.E-OF.MA~AR;\SHTRf' & ORS, .
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·(Civil Appeal-No. 67.12· of-2008) ·
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' <[t:OKESHWAR's1N.GH PANTA ANO ·•·1' '.
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v.s~· SIRPURKAR, JJ.]' ' ' 1.·'
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· ·Maharashtra Regional Town Planning Act, 1966 ~ ss: 83
c and 86 -,Acquisition.of. land ur1der provisions of the Act -
Chal(enged by appellants, Of1 _groμnd tha( _they, h,ad .acqufred
title to the_land, and the acquisitionproqe~di(lgS beif?g Wifh_qu{
notice to them ,W~S illegal and non-est. -_ 1Writ petition, of
appellants dism(ssed .. f?Yi/f/gh 1(;purt ....,1 Propri~ty1 :of, ~He/~;
0
Pro~ter ::t· Tlw w
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.:itbpl ~ttifiobn ~da_~J1~peleds!il~.f?elf1{
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men s, /
~as: 1a e o e 1sm1sse
as appe an s
a no
entitlement to notice, in view of the finalized proceedings of
arbitration 1under the Act- Land'in question was alreaCiy a parl
of the Town Planning Scheme. (TPS) and under notice to
original owners bf.the land; 'advance possession thereorhad '
E already b'een taken' under s.86(2) and 's.83(3)''- Appellants
a/so . not able' to prime' 'tacie. prove their title •or possession,
vis-13-vis, the'la'hd 'in question:
1• ,..
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. • Maharashtra, ,Slum A_reas (/mprovem_ent. ,Cle.a ranee and
F Redevelopment) Act, 1197.1,';7.s.3A--,Slum dwellers in Mumbai
City"~nd 1 Mumbai Suburban., Districts 1 ·' ,Decision. of
Mahar:.as_fltra 1Governme11t1.to, redevelop slums '."7• Slum
Rehabilitation Authority (SRA) established ~ Powers g/,ven to
SRA for implementation of, .S.lum, Re/:labilitation Projects -
G Proceedings . .under;SRA -;--. ~espondents1 3. and,~ purportedly
given. development rights in :respect of. the specified land,;-
Challenge to, by ·appellants ~Jn. view. ofdhe /acts and
circumstan.ces of the case, Supreme Court refused to inte'rtere
,,... Parties_ :however given Jib~rty to· neg9tia~e,. if.they. want to,
subjectlo.1app(oval.of.SRA. "· ,, . r'· II•'\ !I~ u • . ,
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366 'l ' • i: ''
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J-
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA
367
& ORS.
,.
,,.4...
Appellants filed writ petition challenging the A
acquisition of land in question by Respondent No.7,
arbitrator under the Maharashtra Regional Town Planning
Act, 1966, on the ground that they had acquired title to
the land in dispute, and therefore, the acquisition
proceedings being without notice to them was illegal and
B
-"
non-est.
1
The appellants claimed to have purchased the
property in an auction in September, 1981. The writ
petition was filed in the year 2006. The High Court
dismissed th~ writ petition on merits.
c
In the instant appeal, the question which arose for
consideration was whether the writ petition was
hopelessly belated and was hence not tenable and that
even on merits, it was liable to be dismissed (as done by
D
the High Court) as the appellants had no entitlement to
notice, in view of the finalized proceedings of arbitration
under the Act whereby the land in question was already
a part of the Town Planning Scheme (TPS); inasmuch as
in the year 1980, under notice to the original owners of
E
the property, viz. the Ve!kar family, Respondent No.7 had
already taken advance possession thereof under s.86(2)
and s.83(3) of the Act and the land in question vested in
Respondent No.6. i.e. the Muncipal Corporation of
Greater Mumbai, free from all encumbrances, including
r->
the alleged subsequent encumbrances of the appellants.
F
Dismissing the appeal with certain observ~tions, the
Court
HELD: 1.1.The contention raised by the appellants
that the action of taking possession under s.86(2) of the
G
·~
Maharashtra Regional Town Planning Act, 1966 by the
~
Arbitrator could be done only when the Arbitrator gives
a

## Text

_Characters 0–39,624 of 67,330. This is a partial read: ask again with offset=39624 for what follows._

A
B
[2008] 16 S.C.R. 366
'' ...... t .,,..., • If
~··
v.
~
; ...
, .1,l-l ,.~ •. STAT.E-OF.MA~AR;\SHTRf' & ORS, .
.......
·(Civil Appeal-No. 67.12· of-2008) ·
'
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NOVEMBER .19, .2008
; '
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'"
' <[t:OKESHWAR's1N.GH PANTA ANO ·•·1' '.
,, .. ·.
'.,
v.s~· SIRPURKAR, JJ.]' ' ' 1.·'
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· ·Maharashtra Regional Town Planning Act, 1966 ~ ss: 83
c and 86 -,Acquisition.of. land ur1der provisions of the Act -
Chal(enged by appellants, Of1 _groμnd tha( _they, h,ad .acqufred
title to the_land, and the acquisitionproqe~di(lgS beif?g Wifh_qu{
notice to them ,W~S illegal and non-est. -_ 1Writ petition, of
appellants dism(ssed .. f?Yi/f/gh 1(;purt ....,1 Propri~ty1 :of, ~He/~;
0
Pro~ter ::t· Tlw w
1
.:itbpl ~ttifiobn ~da_~J1~peleds!il~.f?elf1{
1
~
1
.c! -:-t,EhYrd.n,.orr
men s, /
~as: 1a e o e 1sm1sse
as appe an s
a no
entitlement to notice, in view of the finalized proceedings of
arbitration 1under the Act- Land'in question was alreaCiy a parl
of the Town Planning Scheme. (TPS) and under notice to
original owners bf.the land; 'advance possession thereorhad '
E already b'een taken' under s.86(2) and 's.83(3)''- Appellants
a/so . not able' to prime' 'tacie. prove their title •or possession,
vis-13-vis, the'la'hd 'in question:
1• ,..
., •'"" 1
•
1 ~r1
l'~·,~t"t,· l·Jt· f\I·· ,,,,
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~,.
t
'
1
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. • Maharashtra, ,Slum A_reas (/mprovem_ent. ,Cle.a ranee and
F Redevelopment) Act, 1197.1,';7.s.3A--,Slum dwellers in Mumbai
City"~nd 1 Mumbai Suburban., Districts 1 ·' ,Decision. of
Mahar:.as_fltra 1Governme11t1.to, redevelop slums '."7• Slum
Rehabilitation Authority (SRA) established ~ Powers g/,ven to
SRA for implementation of, .S.lum, Re/:labilitation Projects -
G Proceedings . .under;SRA -;--. ~espondents1 3. and,~ purportedly
given. development rights in :respect of. the specified land,;-
Challenge to, by ·appellants ~Jn. view. ofdhe /acts and
circumstan.ces of the case, Supreme Court refused to inte'rtere
,,... Parties_ :however given Jib~rty to· neg9tia~e,. if.they. want to,
subjectlo.1app(oval.of.SRA. "· ,, . r'· II•'\ !I~ u • . ,
I, .f
I
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I
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366 'l ' • i: ''
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" .
J-
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA
367
& ORS.
,.
,,.4...
Appellants filed writ petition challenging the A
acquisition of land in question by Respondent No.7,
arbitrator under the Maharashtra Regional Town Planning
Act, 1966, on the ground that they had acquired title to
the land in dispute, and therefore, the acquisition
proceedings being without notice to them was illegal and
B
-"
non-est.
1
The appellants claimed to have purchased the
property in an auction in September, 1981. The writ
petition was filed in the year 2006. The High Court
dismissed th~ writ petition on merits.
c
In the instant appeal, the question which arose for
consideration was whether the writ petition was
hopelessly belated and was hence not tenable and that
even on merits, it was liable to be dismissed (as done by
D
the High Court) as the appellants had no entitlement to
notice, in view of the finalized proceedings of arbitration
under the Act whereby the land in question was already
a part of the Town Planning Scheme (TPS); inasmuch as
in the year 1980, under notice to the original owners of
E
the property, viz. the Ve!kar family, Respondent No.7 had
already taken advance possession thereof under s.86(2)
and s.83(3) of the Act and the land in question vested in
Respondent No.6. i.e. the Muncipal Corporation of
Greater Mumbai, free from all encumbrances, including
r->
the alleged subsequent encumbrances of the appellants.
F
Dismissing the appeal with certain observ~tions, the
Court
HELD: 1.1.The contention raised by the appellants
that the action of taking possession under s.86(2) of the
G
·~
Maharashtra Regional Town Planning Act, 1966 by the
~
Arbitrator could be done only when the Arbitrator gives
a notice to the person interested in the land and the
appellants were "person interested", as they came on the
'·
land via sale certificate in September, 1981, is incorrect,
H
368
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A for the simple reason that the appellants merely
-""'
,,,__
purchased the properties of Velkar Family in the auction
in September, 1981, however, there is nothing on record
to suggest that the possession of those properties was
given by the Court Receiver. Indeed it could not have been
B given, fo_r the simple reason that the possession was
already taken earlier in the year 1980 under the notice to
Velkar family. Again the appellants were not anywhere in
)'·
the picture, so as to insist upon a notice. In the earlier
proceedings under the Act, the representatives of Velkar
c Family were properly heard and the Arbitrator had
proceeded perfectly in tune with the provis1ons of the
Act. There is no reason to dispute the claim on behalf of
the Corporation, as also the Arbitrator that the possession
was taken in the year 1980 itself. If that is so, at that time,
D since the appellants were not on the picture, there was
no question of giving any notice-to them or hearing them
under s.83(2). Though the property cards maintained by
the City Survey Office were indeed amended by a
mutation ent..Y dt. 23.1.1986, which showed the name of
~
f
the appellants as the holders in place of the Velkars, but
E that by itself, will not give any benefit to the appellants,
for the simple reason that a mere amendment in the
property cards of City Survey Office cannot and could not
create a title in favour of the appellants. The entries may
have a presumptive value, however, that would not be
F sufficient. The Velkar Family had lost the possession way
back in 1980 itself and the concerned plot was included
'"4in the Draft Scheme. Under the circumstances, there was
no question of the ownership and/or possession being
transferred to the appellants by the Court receiver. If that
G is so, the amended property cards of City Survey Office
loose all the significance. The appellants have not been
able to prime facie prove their title or possession, vis-a-
-+
vis, the land in question. [Paras 17 and 19) [386-D-H; 387-
~
A-E; 389-A-B]
H
1.2. As regards the issue as to whether the Writ
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 369
& ORS.
~
Petition filed by the appellants was tenable at all, it A
cannot be said that that the Writ Petition was altogether
barred, since the High Court had entertained the Writ
~
Petition and had chosen to dispose it of on merits.
~
However it is difficult to believe that the appellants had
__.,
no idea, whatsoever, about the TPS, the Draft of which B
was sanctioned as back as on 26.9.1962. The TPS was
'l
finalized on 7.7.1978 and right from 1972 to 1978, the
"'!
proceedings before the Arbitrator were in progress. If the
appellants claimed to have come on the property by way
of an auction purchase in the year 1981, which included c
Final Plot No. 22, it cannot be believed that the appellants
would have no idea about the state of affairs rega. ding
the Scheme, which was already finalized in 1978. It is
again difficult to believe that the appellants did not have
idea that the possession of this plot was already taken D
by the Arbitrator in the year.1980 itself from Velkars. At
any rate, at that stage, when the possession was taken,
if at all anybody had any grievance, it was the Velkars
and not the appellants, because the appellants were
nowhere o~ the scene on that date. Therefore, it could
not lie in the mouth of the appellants that the pos_session E
was illegally taken from Velkars or was not taken at all.
There are enough documents on record to prove that the
possession was actually taken and was thereafter
handed over to the Corporation. There is nothing to
I
i'
.,._,..._
suggest that the Court Receiver actually took the F
physical or symbolic possession of Final Plot No. 22C.
At any rate, the appointment oUhe Court Receiver could
not have affected the earlier pending proceedings before
the Arbitrator. It also 1 does not lie, in the 1mouth of the
appellants, that there was no notification under s.83(2). G
~
In fact, the notification under s.83(2) dated 21.9.1979 was
~
duly published in official gazette on· 4.10.1979. In the
wake of this notification, if ·the appellants came on the
legal scene in the year 1981,.·they were bound t6 enquire
about.the properties which they had allegedly purchased H
370
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A in the Court auction. The appellants maintained a sinister
· silence right from 1983 till they ultimately file_d the petition
··'.·in the year;2006. Ats~ surprisingly, though the appellants
· ·claimed' to have gof mutation in the year 1986 on. CTS
°'
•
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f
•
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•'Survey, they did not adverfto the Corporation for
s
mu~atiori_ at ·any st~ge_:· ·The ·writ petition was hop~lessly
belated. Even on merits (presuming that the same could
be considered), the petition was rightly dismissed by the
High Court. [Para 20 and 21] [389-E; 390-C, F-~; 391-AH; 392-A]
C
1.3. The land which was handed over to the Planning
Authority, i.e., the Corporation, had vested in the Planning
Authority, free from all the encumbrances, including
subsequent encumbrances of the appellants. The land
had vested in the Planning Authority, particularly, after the
0
sanction .under s.86, as alsc;> under s.88(a) of the Act. [Para
. 24] [394-E, F]
2.1'.' In view of several slum dwellers in Mumbai ·city
• ·and ·Mumbai Suburban Districts, since the slum' dweflers
· had no basic amenities, the Government of Maharashtra
E · decided to redevelop the slums. Respondent n6.5, Slum
· . Rehabilitation Authority(SRA) wa·s established under s.3A
·of the Maharashtra Slum Areas (Improvement Clearance
and Redevelopment) Act, 1971 for implementation of the
Slum Rehabilitation Projects in ·Mumbai City. At the same
F
time, the powers of Planning Authority were given to SRA
for implementation of Slum Rehabilitation Projects. SRA
issued guidelines for implementation of the Schemes,
under which the eligible slum dwellers, i.e., 70% or more,
have to form· a society and appoint a Chief Promoter.
G · SRA scrutinizes th·e proposal submitted by the' Chief
. Promoter and Architect and then issues a Letter of Intent.
'A Letter of Intent had been purportedly issued in respect
··of the specified land· in favour' of Ashtavinayak
Cooperative Housing Sodety · ud. (proposed) a·nd Mis.
· Siddhivinayak 'Developers,· respondent Nos. 3 and 4
H respectively, who on their own expenses had arranged
'(~·
.....
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 371
'
& ORS.
for the transit accommodation of the slum dwellers in the A
. said plot. [Paras 23 .and 24] [392-D-H; 393-B, H; 394-A]
, · 2.2. This Court dealt with all the contentions in order
to 'appreciate as to whether the appellants can find fault
with the proceedin'gs· under SRA and more particularly,
against ·respondents nos.3 and 4, but did not find any 8
·,
reason to interfere with any· of those proceedings. [Para
25] [394-F-G; 395-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6712 of 2008.
c
From the final Judgment and Order dated 23.3.2007 of the
High Court of Judicature at Bombay in Writ Petition No. 2364
Of 2006.
Shyam Divan, Arvind V. Savant, V.T. Lulia, Kavin Gulati, D
Manu Aggarwal, Simran Brar (for Manik Karanjawala), Arvind
S. Avhad (for Sunil Kumar Verma), Sanjay V. Kharde (for
-tC.handan Ramamur,t.hi a·nd A~ha Gopalan Nair), Pallav
. Shi$hodia, Shweta Mazumdar (for Suchitra Atul Chitale), Arun
Pednekar and Chinmoy Khaladkar (for Naresh Kumar) for the E
appearing parties.
Tfie Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. Leave granted.
2. A Division Bench Judgment passed by the Bombay
F
High Court, dismissing the Writ Petition filed by the appellant
·herein' is in· challenge before us. By the said petition, the
petitioners/appellants had challenged the acquisition of land,
bearing flnal Plot No.' 22A, 228 and 22C of the Town Planning
Scheme (hereinafter referred to as 'TPS' for short) of Borivali G
· (East). In this Writ Petition, the following prayers were made:
•""'t
I
0
f
"(a) thatthis Hon'ble Court be pleased to issue a writ
of Certiorari or a writ in the nature of certiorari or
any other appropriate writ, order or direction under H
372
SUPREME COURT REPORTS
[2008]' 16 S.C.R.
A
Article 226 of the Constitution of India calling for the
4-..
records of the proceeding adopted by the
I
r
Respondent No. 7 under the Provisions of
r
Maharashtra Regional iown Planning Act, 1966 in
,._
respect of land bearing final plots 22A, 228 and
B
22C admeasuring 13980 sq. yards of Town
Planning Scheme Boriv~li-11, ~oriv~li (E) and
,..
consider the propriety of the action taken by the
]"
Respondent No. 7 and quash and set aside the
proceedings adopted by the Respondent No. 6 and
c
7 for the said land in year 1996;
r
(b)
that this Hon'ble Court be pleased to issue a writ
of Mandamus or a writ in the nature of Mandamus
or any other appropriate writ, order or direction
under Articles 226 of the Constitution of India
D
directing the Respondents to forthwith stay their
r
action pursuant to Letter of Intent issued by the
l ,.
Respondent No. 6 in favour of the Respondent No.
.._
4 for development of land mentioned in the said
+
f
letterdt. 18.04.2006 annexed as Exh; 'F' hereto and
E
set aside the permission granted in the Letter of
Intent issued in favour of the Respondent No. 4;
(c)
that this Hon'ble Court be pleased to restrain the
Respondent No. 2 from taking action pursuant to
notice dt. 21.08.2006 issued to the Petitioners/
F
appellants as Exh. 'P' hereto;
(d)
pending the hearing and final disposal of the
~-
'\
Petition this Hon'ble Court be pleased to grant
interim ,order restraining the Respondents, their
4'.;,
.·
~
.
servants, subordinates, officers and agents from in
G
any manner acting upon the Letter of Intent dt.
18.04.2006 issued by the Respondent in favour of
the Respondent No. 4 for development of the land
+
mentioned therein under Slum Redevelopment
fI , ,
Scheme:
';
H
(e)
Not relevant.
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 373
& ORS. [V.S. SIRPURKAR, J.]
"
_r.J;.
(f)
Not relevant.
A
(g)
Not relevant."
3. The petitioners/appellants, inter alia, claimed that they
had become the owner of land admeasuring 11944 sq. yards,
bearing Final Plot No. 7A1, 7 A3 and 78 and bearing Survey
B
Nos. 88 and 89, (2) Final Plot No. 13A, bearing Survey No. 8
...
admeasuring 22,635 sq. yards and (3) Final Plot No. 22A, 228
.,,,
and 22C bearing Survey No. 6 admeasuring 13,980 sq. yards
in village Kanheri, Taluka Borivali, Mumbai Suburban District,
total admeasuring 48569.59 sq. yards. The petition was in
respect of land bearing Final Plot No. 22A, 228 and 22C c
admeasuring 13,980 sq. yards.
4. The petitioners/appellants claimed to have purchased
the said property under the certificate of sale dt. 24.9.1981
issued by the Prothonotary and Senior Master, High Court of
D
Bombay in suit No. 42 of 1972 pursuant to the Orders passed
by the Learned Single Judge of the High Court on 11.10.1982
~
in Chamber Summons No. 450 of 1982.
5. The petitioners/appellants restricted their claim to a plot
admeasuring 1485.89 sq. mtrs., shown by red colour boundary
E
in a map attached to the petition. The petitioners/appellants
further claimed that out of the total property purchased from the
Court Receiver, land bearing Final Plot No. 13A of TPS of
Borivali-11 was acquired by the Land Acquisition Officer and they
had been paid a sum of Rs.2,80,984/- by way of compensation
F
for the said acquisition. They further pointed out that there was
.... r_..
some litigation in respect of land bearing Final Plot No. 78,
which was settled by filing Consent Terms in this very Court.
They claimed that the land bearing Final Plot No. 7A1 and 7 A3
of TPS of Borivali-11 was used by the petitioners/appellants for
construction of a building, namely, 'Ghanshyam Towers' and that G
the present petition was in respect of part of land which bears
-t
),
Final Plot No. 22A, 228 and 22C.
6. The petitioners/appellants further claimed that they
came to know in May, 2006 that someone was trying to develop
H
a portion of the said land under the Slum Rehabilitation
·-'
374
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A Authority Scheme and hence, they had written a letter dt.
2.5.2006 to the Chief Executive Officer, Slum Rehabilitation
Authority (hereinafter referred to as 'SRA' for shdrt} to furnish
the information: They claimed to have obtained a copy of the
Letter of Intent dt. 18.4.2006, which was. iri' favour of
B Respondent No.·4 Siddhivinayak Developers. It was claimed
that the said letter was· in respect of the land admeasuring.
1485.89 sq. mtrs.· under the Slum· Development Scheme: It is
precisely in respect of this land that the Writ Petition was filed.
The petitioners/appellants' further pointed out that this Letter of
C Intent in favour of Respondent No. 4 Siddhivinayak Developers
was illegal; as the property in respect of which the rights were
given to develop the same land, belonged to the petitioners/·
appellants and it was without any notice to. the petitioners/
appellants that the said property came to be allegedly acquired
by the. respondent No .. 6, Municipal. Corporation of Gr~ater
D Mumbai (hereinafter referred to as 'the Corporation' for short},
and was further intended to be given away in .favour of
Siddhivinayak Developers for development. The petitioners/
appellants further claimed that they received a notice dt.
27.6.2006 from the City Survey Officer Borivali, ·informing th~
E petitioners/appellants that the said Authority would take
measurements and ·would fix boundary of the disputed property
on 5.7.2006, for which the petitioners/appell?nts had already
raised objections vide lett~r dt. 1.6.2006 and thereafter, also
by letter dt. 24.7.2006. The petitioners/appellants also pointed
F out that the whole exercise was illegal and that they· had also
filed a Small. Causes Suit No.· 3233 of 2006 in Bombay City
Civil Court at Bombay. They pointed out that they tried to obtain
ad-interim injunction on .14.7.2006, when it was pointed out by
the defendants/respondents that the property {described in civil
G suit as part of Fi,nal Plot 228 (Pt.) in para 2 and in prayer clause
(c)} was already acquired.under the provisions of Maharashtra
Regional Tovin Planning Act, _1966 (hereinafter ·referred to as
'the Act' for short) way back in the year 1996 and in the Revenue
records .-also, the said ·property stood in the name of the
H Corporation except the Final Plot No. 22A, which was already
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 375
& ORS. [V.S. SIRPURKAR, J.)
~-l.
allotted to one Shri Anant P. Velkar and 6 others. They averred
A
that the City Civil Court refused to grant ad-interim injunction.
They claimed that it was then, that they came to know that Final
•
Plot Nos. 228 and 22C were allotted to the Corporation after
the acquisition and the Corporation had paid the compensation
of Rs.91,214.35 to Shri Anant P. Velkar and 6 others, which
B
could not have been given to them. The petitioners/appellants,
.,
therefore, challenged the entire action of the acquisition of the
'"r
land bearing Final Plot No. 228 and 22C of TPS of Borivali-11
by respondent No. 7, the Arbitrator under the provisions of the
Act, on the .ground that it was. contrary to the provisions of the c
said Act.
7. In short, the petitioners/appellants claimed the right to
a notice on the basis of their ownership through the sale
certificate mentioned in the earlier part of the judgment and
claimed the right to a notice on the basis of that ali the further
D
actions without any notice to the petitioners/appellants, were
illegal and non-est. It was on this basis, that the whole
•
proceedings of acquisition were challenged before the High
-'f
Court. The petition was opposed by the SRA, the Corporation,
as also by the Arbitrator, so also by 2 other respondents,
E
namely, Ashtavinayak Cooperative Housing Society Ltd. and
Siddhivinayak Developers on various grounds. Ultimately, the
High Court has come to dismiss the Writ Petition, which
judgment is in challenge before us.
8. Before the High Court, the respondents had raised the
F
,. y
defence that the petitioners/appellants had already resorted to
alternative remedy by filing Small Causes Suit No. 3233 of 2006
in Bombay City Civil Court at Bombay and when they failed to
obtain any interim relief, they have approached this Court. The
further plea raised was about the laches. It was further pleaded
G
that the concerned land had become a part and parcel of the
TPS of Borivali-11 and was never available for the Court sale. It
\
was further pleaded that by the TPS, which came into effect on
15.04.1996, the concerned plot of land was allotted to
respondent No. 6, the Corporation and under the said TPS, the
H
said plot was reserved for public purpose and the
376
SUPREME COURT REPORTS
[2008] 16 S.C.R
·A compensation thereof was also paid to the owners after its
~--
acquisition and, therefore, there was no question of the
petitioners'/appellants' right; title or interest in the land. it was
pointed out that even prior to-the publication of TPS of BorivaliII, an Arqi~rator was a_lready appointe9 under Section 72(1) of
B the Act and.in. pursuance of that, ultim'ately a scheme was
finalized and published. by him, which came. into force from
15A 1996 and, therefore, the petitioners/appellants could n.ot
,,rclaim any interest in ttiat land.
9. The High Court traced the history and found on the basis
c of the affidavit filed by the Corporation along with the
documents that when the arbitration proceedings in respect of
the Scheme were initiated in the year 1972, then the concerned
Iland was original plot No. 22, which ultimately became Final
*"
Plot Nos. 22A, 228 and 22C. It was found that Final Plot No.
D 228 was reserved in the TPS for Health Centre, while Final Plot
No .. 22C was reserved for garden and the Final Plot No. 22A
had been allotted in lieu of original plot No. 22 to Shri Anant P.
rValkar and, 6 -Ors. The High Gou.rt found that the arbitration
'
.
.
.
·-,..
proceedings were inmated by notification No. TPB-4762-M dt.
E 18.10.1962 and one Mr. J.G. Keskarwas appointed as Town
Plannir1g Officer. A public notice dt 3.1.1963 was also given
and h~aringwas also conducted by the Arbitrator on 29.4.1972 ..
After Mr. J.G. Keskar, Mr: .K.S~. ~eswani came to be appointed
as Arbitrators, who again gave an opportunity to the interested
F
parties for hearing on 22.4.1975 and the minutes of the said
hearing dt. 22.4.1975 were· signed by all the interested parties.
After Mr. Keskar, Mr. Keswani dealt withthe· matter as an
-~ '•
Atbitr~tor a~d th~reafter, the final. decision was issued by Mr.
V.D. Kulkarni. Firstly, the draft Scheme was ·finalized on
01:07.1978 and :then the final scheme was submitted by rv,r.
.
•
,
I
,.
•
..
•
1
-
~·
G G".D. Karkare, the Arbitrator to the State of Maharashtra on
15.4.1983 for fina! sanction. it ·was so sanctioned by a
Government Notification dt. t3.1996 ·w.e.f. 15.4.1996. The High
i
. ·.
.
,.
. .
.
' .
.
.
.
Gou.rt noted that the occupants of the structures were also
noticed. and they ·had also appeared on 27.1.0.1975 and were
H heard in the !llatt~r. ·_The High Cou'rt found th_at originaily, tli·e TPS
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 377
& ORS. [V.S. SIRPURKAR, J.]
.~--
of Borivali-11 was sanctioned on 27 .1.1931 and came into force
A
w.e. f. 15.3.1931. The first variation of the TPS was initiated by
Borivali Municipality on 11.9.1956 and on 1.2.1957, the area
of Borivali Municipality merged in Bombay Municipal
Corporation ('the Corporation' herein) and on 29.2.1960, the
Corporation decided to vary the principal scheme. The State
Government had also authorized the Collector of Bombay and
B
·-y
Bombay Suburban District to make and publish a draft
~
variation scheme and thus, on 26.9.1962, the draft variation
scheme was sanctioned by the Government. There were, in all,
five Arbitrators appointed, whose names have come earlier in c
this judgment and ultimately, the last Arbitrator Mr. V.D. Kulkarni
_,,,
had finalized the draft scheme on 7. 7.1978. The High Court
noted that the matter was also dealt with by the Appellate
Tribunal, which decided the appeal on 4.11.1982 and
·· thereafter, the then Arbitrator Mr. G.D. Karkare submitted the
Scheme to the State Government on 15.4.1983 after
D
incorporating the decisions of the Appellate Tribunal, which was
approved by the Government of Maharashtra on 7 .3.1996 w.e.f.
15.4.1996. Thus, the High Court came to the conclusion that
the Arbitrator had submitted the final Scheme to the
Government, as required by Section 82(2) of the Act and it
E
stood sanctioned. The High Court also took notice of the fact
that the petitioners/appellants had filed a Civil Suit and they
failed to obtain the injunction and thereafter, the present petition
was filed. The High Court also noted the fact that Shri Anant P.
(
.....
Velkar and 6 others, who were the original owners, were
F
allotted plot No. 22A in lieu of whole original plot No. 22, which
was divided into plot Nos. 22A, 22B and 22C. The High Court
further noted that the Suit in respect of that property was
pending as Civil Suit No. 42 of 1972, in which there was a
settlement on 27.6.1978 and it was only after the settlement and
G
judgment in this Suit,. that the petitioners/appellants allegeqly
-\"
purchased the property. However, even prior to this, the land
·~
in question got divested as per the TPS of Borivali-11 of the
Corporation and it was only then, that Shri Anant P. Ve/kar and
6 others were allotted Final Plot No. 22A and also accepted
H
378
SUPREME COURT REPORTS
(2008] 16 S.C.R.
A the compensation in lieu. of the entire plot No. 22. The High
Court also noted that when the draft Scheme was finalized, the
owners were already informed and they had fully participated.
In short, the High Court came to the conclusion that even before
the petitioners/appellants purchased the property from the Court
8 Receiver on 24.9.1981, much water had flown under the bridge,
in the sense that the draft Scheme was finally prepared and as
such, the petitioners/appellants had no right or claim, so as to
insist upon a notice, while taking over the possession of the
property in question. The High Court also found that the
petitioners/appellants could not have purchased this property,
C since it had already vested with the Corporation in terms of the
order passed by the Arbitrator. The claim of the petitioners/
appellants that they were in possession of the property, which
was given to them by the Court Receiver, was also disputed
by the respondents and rejected by the High Court. The High
D Court, ultimately, observed that if at all the petitioners/appellants
had any claim, title or interest, it can be only against Velkar &.
Family, who were the original owners of the land and were
parties in the Civil Suit No. 42 of 1972. However, the
petitioners'/appellants' claim regarding Final Plot Nos. 22A,
E 228 and 22C, admeasuring 13,980 sq. yards, could not be
entertained. This is how the petition came to be dismissed.
10. Shri Shyam Diwan, Learned Senior Counsel,
appearing for the appellant, basically urged that the petitioners/
appellants have and had good title and they alone were entitled
F to develop the property. In support of this, the 'Learned Senior
Counsel heavily relied on the Sale certificate dt. 24.9.1981,
issued by the Bombay High Court, as also other incidental facts
that at the time of acquiring Final Plot No. 13A, the petitioners/
appellants' right was recognized in those land acquisition
G proceedings. He also pointed out that the petitioners/appellants
had undertaken development and construdion of plot No. 78
in pursuance to the Consent Terms entered in this very Court
on 23.10.2002 and in those proceedings, the Corporation was
a party. The Learned Senior counsel further invites our attention
H that a commercial building known as 'Ghanshayam Towers'
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 379
& ORS. [V.S. SIRPURKAR, J.]
_---I..
was constructed by the petitioners/appellants on Final Plot Nos. A
7-A 1 and 7-A3 after duly obtaining the sanction from the
Corporation. Lastly, the Learned Senior Counsel urged that the
property cards maintained by the City Survey Office were also
maintained by posting a suitable mutation entry dt. 23.1.1986,
showing the name of the petitioners/appellants as a holder in B
place of Velkar & Family in respect of plot No. 228 and 22C.
11. After this assertion of ownership, the Learned Senior_
Counsel develops his further argument that there could be no
lawful vesting of plot Nos. 228 and 22C, incorporated under
Section 88 of the Act. The Learned Senior Counsel suggested c
that it was consistently the case of the Corporation that this
vesting took place only from 15.4.1996 and in support of this
stand three affidavits were filed before the High court, in which
this very case was pleaded. The Learned Senior Counsel took
exception to the proceedings before the Arbitrators, which were D
relied upon by the Corporation. The Learned Senior Counsel
went to the extent of saying that the record appeared to be
concocted and did not represent a true state of affairs. On that
basis, the case pleaded was that once there was lawful prior
acquisition of the rights by the petitioners/appellants from the E
Court Receiver, there was no question of the petitioners/
appellants not being given any notice and hence, the
subsequent land acquisitions must faii, thereby, there would
further be no question of the vesting of the property ·in the
Corporation. The Learned Senior Counsel also took exception F
y-1
to the huge delay on the part of the State Government to
sanction the Scheme, which was about 13 years. The Learned
Senior Counsel, therefore, assailed the sanction to the
proposed Scheme by the Arbitrator, also. The Learned Senior
C.ounsel also suggested that there was no lawful vesting ot plot
Nos. 228 and 22C in the Corporation, even under Section 83 G
4of the Act. The Counsel buttressed his arguments by suggesting
•
that Section 83 was never resorted to or relied upon by the
Corporation and there was nothing on record to suggest that
the possession of the initial Final Plot No. 228 was ever taken
b·y the Corporation. The Learned Senior Counsel also assailed H
380
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A
the theory of advance possession taken under Section 83, on
,____
..>--.
'
....
the ground that there was no lawful arbitral award or decision
or sanction. Lastly, the Counsel argued that there was no
document to show vesting of Final Plot No. 22C through the
advance possession procedure. The so'-called possession
B
receipts, which were filed by the Corporation, were also
seriously disputed and ultimately, the Counsel argued that unless
the Scheme was finally sanctioned by the State Government
;J
under Section 86, there could be no finality with respect to the
TPS. In short, the contention ~s that since there was no vesting
c of the land under Section 83(3) and since before the alleged
vesting on 15.4.1996, the property was purchased by the
..
petitioners/appellants from the Court Receiver in whose
custody the property was, the petitioners'/appellants' rigt)ts
could not be jeopardized. Lastly,· it was contended that
D
respondent No. 3 and 4 had no rights, whatsoever, as they had
no title and, therefore, the Letter of Intent dt: 18.4.2006 was liable
to be withdrawn. We were taken through the various provisions
of the Act. While commenting on the High Court judgment, the
-;,.
Learned Senior Counsel contended that the High Court had
ignored the principles of natural justice, secondly, it had given
E
palpably erroneous factual references and the High Court had
also given an incorrect finding on the vesting of the property.
12. Shri Arvind V. Sawant, Learned Sr. Counsel, Shri
Sanjay V. Kharde, Shri Pallav Shishodia, as also Shri Arun
F
Pednekar, Learned Counsel, appearing on behalf of the
contesting respondents like Ashtvinayak Cooperative Housing
Society Ltd., SRA, the Corporation and the Arbitrator
----r
respectively, supported the judgment of the High Court. Again
by relying on various provisions of the Act, the parties traced
the history of the proceedings, which ultimately led to issue of
G a notification in 1996. The respondents also took us through
the va.rious.Sections, Rules, as also the Scheme Rules under
the Act. Before we take up the rival contentions and the
tconsiderations, we would have to trace the history even at the
cost of repetition and also consider the various provisions of
H
the Act and the schemes thereunder.
' '
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 381
& ORS. [V.S. SIRPURKAR, J.]
-~
13. The disputed land is, undoubtedly, a part of the TPS
A
8orivali-ll, which was sanctioned on 27.1.1931. On 26.9.1962,
Draft TPS 8orivali-ll, which was of First Variation came into
existence and ultimately, the earlier plot No. 22 was divided in
3 plots, being Final Plot No. 22A, 228 & 22C. The Final Plot
No. 22A was allotted to Anant P. Velkar and six others, who a
were the original owners of the property, Final Plot No. 228 was
. '(
reserved for health centre and Final Plot No. 22C was reserved
i..
for a recreational ground by sanction of Government dated
4.5.1993. The arbitration proceedings started on 18.10.1962.
However, since the earlier proceedings were inconclusive, they c
were recommenced under the Act, which came on the anvil in
1966. Before the Arbitrator, a Vakalatnama was filed on behalf
of the Velkar Family and they all appeared through advocate.
They did not take any objection to the possession, being taken
of Final Plot No. 228. We find from the record that Mr. Vakil,
0.
Advocate, appearing on behalf of the Velkar Family was
agreeable to possession of Final Plot No. 228 and 22C being
·-\
taken over by the Corporation immediately under Section 83
of the Act. Civil Suit No. 42 of 1972 was filed for partition
between the members of the Velkar Family and amongst the
other properties, these three plots (Final Plot Nos. 22A, 228
E
and 22C) came to be included. An endorsement was found by
the Arbitrator on 22.04.1975 to the effect that plot No. 22A was
allotted to Shri Velkar & 6 others, while rest of the land was
acquired under the Scheme for Health Centre and garden,
being Final Plot Nos. 228 and 22C respectively. In the Civil Suit,
F
a consent decree came to be filed on 27.6.1978 and this
decree also included the disputed properties, namely, all the
three plots. A Court Receiver was appointed for effecting the
partition as per respective share of the parties to the Suit. An
order is found on the record of the Civil Suit to the effect that in
the event, the Commissioner could not conveniently allot the
G
-~
properties to the concerned parties, such property should be
...
sold by way of auction. Sh. Shishodia, learned counsel for the
respondents, brought to our notice that there is no document
or material evidence to show that the Court Receiver ever took
H
---
382
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A even a symbolic possession of the property and thus, the
property continues to be in possession of the parties.
14. On 4.10.1979, a notification appeared in the Gazette
in exercise of powers under Section 83(2), directing the
arbitrator to take possession of the original plot No. 22 (part),
B being Final Plot No. 228. The Arbitrator took the possession
of the Final Plot No. 228 (Pt.) and handed over the same to
the Corporation. This happened on 16.6.1980. Even before this,
notices were also sent on 8 .2 .1980 for .taking the possession
under Section 83(3). This date, i.e., 8.2.1980 is extremely
C important, as it suggests that the action for taking the
possession was already initiated, even before the auction by
Civil Court. Though on 24.9.1981, the present appellant claimed
to have acquired the property in the auction of this property
along with other properties, there does not appear to be any
o document or evidence to show any follow up action, suggesting
the taking of possession of Final Plot No. 228 or 22C on behalf
of the petitioners/appellants fr.om the Court Receiver. Some
persons had filed the appeals before the Appellate Tribunal on
4.11.1982, but nothing happened to that. Ultimately, on
E 15.4.1983, the then Arbitrator drew the final scheme and
tendered it to the Government for grant of sanction. It was on
22.6.1985, that these areas were declared as slums under the
Maharashtra Slum Areas (Improvement Clearance and
Redevelopment Act, 1971) (hereinafter called "Slum Act" for
short). The Government exercised its power of extending the
F time on 6.3.1996 and ultimately, a notification came to be
issued by the Government of Maharashtra on 7 .3.1996, granting
approval under Section 86(2) to the TPS with effect from
15.4.1996. By operation of Section 86(3), the TPS became part
of the Act and under Section 88(a), all lands required by the
G planning authority vest absolutely in planning authority, i.e., the
Corporation, free from all encumbrances and all the other rights
in the original plot shall determine. It was on 18.4.2006 that the
SRA issued a Letter of Intent in favour of the 4th Respondent
herein. It was then that the Civil Suit was filed by the petitioners/
H appellants in the Civil Court, being Civil Suit No. 3233 of 2006
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 383
& ORS. [V.S. SIRPURKAR, J.]
-~
for cancellation of above Letter of Intent and it was then that
A
the petitioners/appellants asserted his ownership over the
property described as Final Plot No. 22B(Pt.). The petitioners/
appellants were informed that land bearing Final Plot Nos. 228
and 22C stood allotted to the Corporation, for which the
compensation of Rs.91,214.35 was paid to the Velkar Family.
B
--(
As has already been suggested, the Trial Court did not grant
....
injunction, wherein, the claim was made by the petitioners/
appellants that the plaintiffs right in the land subsisted and was
not affected by the acquisition thereof in favour of the
Corporation. It was then that the Writ Petition came to be filed c
purportedly, challenging the Letter of Intent dt. 18.4.2006.
15. Shri Shishodia pointed out that there is one other Letter
of Intent issued on 12.9.2006, which was in supercession of
earlier Letter of Intent dt. 18.4.2006, however, the petitioners/
appellants have not so far challenged the Revised Letter of D
Intent. We have deliberately stated the history in order to test
the claim of the petitioners/appellants that they had acquired
the title to the land in dispute and, therefore, any acquisition
proceedings without notice to them, could not materialize. When
we see the development of the proceedings under the Act, it
E
would be seen that the first Arbitrator was Shri J.G. Keskar,
who had issued notice to the concerned parties like Shri Velkar
& 6 others. It must be noted here that at that juncture, petitioners/
appellants were nowhere in the picture. In fact, petitioners/
appellants came on the picture only on the day when they
F
purportedly purchased the property involved in the Suit on
24.9.1981, which was way beyond the earlier mentioned date
of 8.2.1980, when the notices were already issued under
Section 83(3) for taking possession. Learned Counsel Shri
Shishodia, as well as Shri V. Savant and Shri Kharde,
appearing for the respondents asserted before us that on
G
-+
27.6.1978, this property, particularly, the Final Plot No.