published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40501
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NO. 3 OF 2012
IN
WRIT PETITION (C) NO. 342 OF 1999
KAMLESH C. SHAH & ORS. ...PETITIONERS
Vs.
STATE OF MAHARASHTRA AND ORS. ...RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Chapter VIII-A, which was introduced into the
the Maharashtra Housing and Area Development Act,
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1976, hereinafter referred to as "the 1976 Act", in
1986, pertains to the acquisition of "cessed
properties" for co-operative societies of
occupiers.
Soon after its introduction, its
validity was challenged in several cases, including
the present writ petition.
The present writ
petition was tagged with W.P. No. 934 of 1992,
another case pending in this Court on the same
issue.
In view of the questions raised in the writ
petitions, the matter was initially referred to a
Bench of 7-Judges, but, thereafter, by order dated
20.02.2002, the matters have been referred to a
Bench of Nine-Judges and are still pending
decision.
2. Since no final decision seems to be in the
offing, the writ petitioners have filed IA No. 3 of
2012, for interim reliefs.
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3. The subject matter of the present petition is a
property known as "Chhotalal Niwas" situated at
Laburnam Road, Gamdevi, Mumbai - 400007, comprising
a plot of land bearing Survey No. 7A/492, Malabar
Cumbala Hill Division, Mumbai. Treating the said
property as a "cessed property", within the meaning
of Section 103A of the 1976 Act, the same was
acquired by the Maharashtra Housing and Area
Development Authority (MHADA), as per Section 103B
of Chapter VIII-A of the 1976 Act.
4. The apparent reason for the introduction of
Chapter VIII-A into the 1976 Act appears to be the
refusal of the owners of the buildings to effect
repairs thereto on account of the freezing of rents
from 1st September, 1940. The return which the
landlord could reasonably expect from time to time
having been frozen, a stage was reached when where
rents were no longer sufficient to cover even the
taxes payable for the said properties. As a
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result, the landlords stopped effecting repairs to
the tenanted properties which resulted in rapid
deterioration of the buildings.
Realizing the
gravity of the matter, the Legislature enacted "the
Building Repairs and Reconstruction Board Act,
1969", which enabled levy on buildings in Greater
Bombay as the Legislature felt that from the
recovery of the cess in addition to the
contribution of substantial amounts to be made by
the State Government and the Bombay Municipal
Corporation, it might be possible for the Board
constituted under the Act to carry out structural
repairs to the old buildings to make them safe for
habitation.
The Legislature also felt that in case
structural repairs did not improve the condition of
the building, then the Board could undertake
reconstruction of the building by pulling down the
dilapidated structure and raising a new structure
thereupon.
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5. On 26th February, 1986, the Governor of
Maharashtra issued Ordinance No. 1 of 1986 to amend
the 1976 Act with effect from 26th February, 1986.
The Statement of Objects for enactment of the
amendment indicates that there are 19,642 cessed
old and dilapidated buildings in the island city of
Bombay and, out of these, 16,502 buildings were
constructed prior to 1st September, 1940, and the
majority of the said buildings are about 80 to 100
years old. To make things worse, the freezing of
the rents from 1st September, 1940, made it quite
impossible for the owners to look after or maintain
the buildings, which is one of the reasons for the
introduction of Chapter VIII-A in the 1976 Act.
6. Section 103A of the 1976 Act, which was
introduced in 1986 as part of Chapter VIII-A, inter
alia, provides that the said Chapter would come
into force on and from the commencement of the
Maharashtra Housing and Area Development (Second
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Amendment) Act, 1986 and would apply to all cessed
buildings, which had been erected before the 1st of
September, 1940, and were classified as belonging
to Category 'A' under Sub-section (1) of Section
84.
7. Section 103B, which contains the raison d'etre,
for the introduction of Chapter VIII-A into the
1976 Act, inter alia, provides for acquisition of
cessed property for co-operative societies of
occupiers.
The scheme envisaged in the said
Section is that notwithstanding anything contained
in any of the provisions of Chapter VIII or any
other law for the time being in force or in any
agreement, contracts, judgment, decree or order of
any court or tribunal to the contrary, a cooperative society formed or proposed to be formed,
under the provisions of the Maharashtra Cooperative Societies Act, 1960, by not less than 70%
of the occupiers in a cessed building, may, by
written application, request the Board to move the
State Government to acquire the land together with
the existing building thereupon and where the owner
of the building did not own the land underneath or
appurtenant to such building, but held the same as
a lessee or licensee, then to acquire the right or
interest of such owner or person in or over such
building or land or both as lessee or licensee
together with the existing building, in the
interest of its better preservation or
reconstruction of a new building in lieu of the old
one. Sub-section (2) of Section 103B provides that
on receipt of the application made under Subsection (1), the Board shall, after due
verification and scrutiny, approve the proposal if
it considers that it is in the interest of better
preservation of the building or to be necessary for
reconstruction of a new building and shall direct
the co-operative society, whether registered or
proposed, to deposit with the Board, within the
periods specified by it in that behalf, 30% of the
approximate amount that would be required to be
paid to the owner in that behalf. Sub-section (4)
of Section 103B provides that if, on receipt of an
acquisition proposal under Sub-section (3), the
State Government is satisfied about the
reasonableness of the proposal, it may approve the
same and communicate its approval to the Board. On
receipt of the government approval, the Board under
Sub-section (5) was required to forward the
acquisition proposal to the Land Acquisition
Officer for taking further proceedings in the
matter.
8. An important element of Section 103B is Subsection (5A), which provides that when acquisition
proceedings have been initiated under Sub-section
(5) and a notification under Sub-section (5) of
Section 93 has been published, the Collector would
take and hand over the possession of the acquired
property to the Board in accordance with the
provisions of Sub-section (6) of Section 93. Subsection (6) provides that after the land is vested
absolutely in the Board on behalf of the Authority,
free from all encumbrances, and the amount to be
paid to the owner is determined, the Board shall
require the society to get itself registered, if it
is not registered, till then and to deposit the
remainder of the amount to be paid to the owner
with the Land Acquisition Officer. The Board is
required simultaneously to pass on the amount
deposited by the co-operative society to the Land
Acquisition Officer, who shall thereupon make
payment of the amount for acquisition or deposit
the same in the Court, as provided in Section 46.
Sub-section (7) provides that, subject to the
provisions of Sub-section (6), the Authority shall
convey the land acquired under this Section to the
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co-operative society of the occupiers thereof with
its right, title and interest therein and execute,
without undue delay, the necessary documents in
that behalf.
9. As is clear from the above, the scheme
introduced by Chapter VIII-A of the 1976 Act was
intended to protect tenants who were compelled to
reside in buildings which had been constructed
prior to 1940, and had become dilapidated as no
repairs were effected thereto. The landlords were
not keen to repair the buildings as the rents were
very low and often the taxes payable for the
property were higher than the rents collected from
the tenants. The scheme provided for the formation
of cooperative societies by tenants of such
buildings, who were required to deposit 30% of the
compensation payable to the owner, whereupon the
lands would stand acquired and would vest in the
Mumbai Building Repair and Reconstruction Board forPage 11
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the limited purpose of ensuring that after
acquisition, the balance 70% would be deposited by
the tenants, consequent whereupon, MHADA under
Section 103B(7) was bound to convey the land to the
cooperative society for construction of the
building.
10. Appearing for the writ petitioners, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that
the very fact that MHADA was required to convey the
land to the cooperative society for constructing
the building, establishes beyond doubt that the
vesting in the Board amounted to holding the
property in trust for and on behalf of the tenants
forming the cooperative society, who were the
beneficiaries of the said scheme.
11. Mr. Venugopal urged that since the issue was
pending before a Nine-Judge Bench and it was
unlikely that the matter would be heard in the near
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future, the tenants and the owner of the building
entered into an Agreement by which they themselves
agreed to develop the property, instead of waiting
for the decision of the Nine-Judge Bench. The
essence of the understandings arrived at between
the landlord and the tenants was that the tenants
would withdraw themselves from the acquisition and
instead enter into a Development Agreement with
landlord to reconstruct the building. Mr. Venugopal
urged that should such a course of action be
accepted, then there would be no further need for
the proceeding under Section 103B to be continued
and upon the property being returned to the owner,
the tenants could have the benefit of the offer
made by the new builder. This would enable the
tenants to purchase their own flats and the
landlord to also get sufficient consideration so
that the purpose of the scheme would stand fully
satisfied. Furthermore, the Trust would cease to
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exist as the purpose of acquisition would also
cease to exist. Mr. Venugopal urged that the Court
may declare the acquisition of the property to be
no longer necessary and relevant for the purposes
of Chapter VIIIA and the relationship of the owner
and the tenant would continue as before. Mr.
Venugopal also submitted that since possession has
continued with the owner and the tenants and, at no
point of time, had such possession been handed over
to MHADA, could it be said that the premises in
question had vested with MHADA. Mr. Venugopal
contended that if the object of the rehabilitation
scheme was to be kept in mind, the objective taken
on behalf of MHADA that the property had vested in
it by virtue of the Notification published at the
request of the tenants, was highly technical and
was required to be discarded, as the lands were, in
fact, being held in trust for the tenants as the
beneficiaries thereof. Page 14
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12. The prayer made on behalf of the Petitioners in
I.A. was opposed, on behalf of the State of
Maharashtra and its authorities, as being
mischievous and was nothing but an attempt to
circumvent the challenge thrown to Chapter VIII-A,
which was pending before this Court not only in
other matters, but in the instant writ petition
also. It was urged by Mr. Sanjay V. Kharde,
learned Advocate appearing for the Respondent Nos.
1 and 5, that the question to be considered in the
context of this interlocutory application is
whether the parties can contract out of the statute
when they have no locus standi or title in respect
of the suit property.
It was urged that stay
prayed for earlier had been refused by this Court
and Chapter VIII-A, inserted by the Maharashtra Act
(21 of 1986), in the 1976 Act, continues to be
valid and operative. It was submitted that the
provisions make it very clear that once the suit
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property stood vested in MHADA, the same could be
utilized only for the purpose of the tenants/ cooperative societies and nobody else. It was urged
that the relief sought for by the Petitioners in
the present application could not be granted since
there is a complete bar on such kind of proceedings
after vesting, in view of Section 103C(2) of the
1976 Act. Mr. Kharde urged that symbolic
possession of the property had already been taken
and the introduction of a third party into the
proceedings was with the knowledge that the
assignee would approach MHADA for releasing the
property for the purpose of development.
13. Mr. Kharde reiterated that once vesting had
taken effect under Section 93(5), read with Section
103B(5A), (6) and (7) of the 1976 Act, and the same
having been upheld up to this Court, the same could
not be released to the owners of the land and would
have to be utilized for a purpose similar for which
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it had been acquired. Mr. Kharde urged that the
I.A. filed on behalf of the Petitioners is liable
to be dismissed.
14. Mr. Ashok H. Desai, learned Senior Advocate,
who appeared for MHADA and the Mumbai Housing
Repairs and Reconstruction Board, submitted that
the relief prayed for in the instant I.A. was
wholly misconceived since the challenge to the
notification dated 20.04.1995 issued by the
Respondent No. 4 under Section 93(5) of the 1976
Act, thereby vesting the land and building
absolutely in MHADA free from all encumbrances, had
been repelled up to this Court. It was urged that
the vesting of the property in MHADA having been
upheld up to this Court, this application seeking
release of the property from acquisition has to be
dismissed and the Petitioners have to await the
decision to the challenge of the constitutional
validity of Chapter VIII-A. Mr. Desai submittedPage 17
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that when the matter involving a constitutional
challenge to Chapter VIII-A of the 1976 Act was
pending consideration before a Bench of NineJudges, the present application could not be
decided by any Bench of this Court of a strength of
less than Nine-Judges.
15. Mr. Desai submitted that the scope of these
pending matters relate to the interpretation of the
expression "vesting" of the property with MHADA
under the scheme of the Act. Mr. Desai also urged
that the property having been acquired for the
purposes of Section 103B of the 1976 Act, MHADA was
also saddled with an obligation to utilize 30% of
the acquired land for similar objects. Mr. Desai
submitted that the land could only be used for the
benefit of the tenants, if they had formed a cooperative society and registered the same, but not
for the purpose of development by a third party,
which was completely alien to the provisions of the
1976 Act. Mr. Desai submitted that I.A. No. 3 was
wholly misconceived and was liable to be rejected.
16. Mr. Mukul Rohatgi, learned Senior Advocate,
appearing for the Chief Promoter of the UNAT Co-op.
Housing Society, Hashmukh B. Gandhi, contended that
since the object of the 1976 Act was to
rehabilitate those tenants who were living in
dilapidated structures, and the end object of the
scheme of arrangement arrived at by the landlord
with the promoter was for the same purpose, the
same should be accepted and implemented for the
benefit of the tenants.
17. Countering the submissions made by Mr. Ashok
Desai that once the lands had vested in MHADA under
Section 103B of the 1976 Act, the same could only
be utilised for the purposes of construction/
reconstruction as intended under the Act, Mr.
Rohatgi submitted that the acquisition in thePage 19
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instant case was specifically for the purpose of
rehabilitation of the members of the proposed Punit
Cooperative Housing Society, on whose application
the acquisition proceedings had been started. Mr.
Rohatgi submitted that the land so acquired for the
aforesaid Cooperative Society could not be utilised
for any other society/tenants and in the event the
tenants chose not to continue with the scheme of
rehabilitation by resorting to the provisions of
the 1976 Act, MHADA could not obstruct the release
of the land, as otherwise the tenants would be
rendered homeless and they would be deprived of
their residences, which they enjoyed in the
premises before the acquisition proceedings were
mooted. Mr. Rohatgi urged that the entire logic of
the 1976 Act was to rehabilitate the tenants of the
building which had become dilapidated on account of
non-repair thereof by the landlords and the scheme
envisaged under Chapter VIIIA was tenant-specificPage 20
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and any decision to deprive the tenants, either by
taking recourse to the scheme or remaining outside
the scheme, would be contrary to the spirit and
object of the Act.
18. Since the writ petition is to be heard by a
Bench of nine Judges, along with other similar
matters, and there is little likelihood of the
matter being taken up for final decision in the
near future, we have given our serious thoughts to
the problem which has been spelt out in the present
Interlocutory Application. On the one hand, it is
at the request made by a proposed Cooperative
Society of the tenants of the building that
acquisition proceedings were commenced by the Board
under Section 103B of the 1976 Act on 30th October,
1986, on the other, the purpose of the acquisition
has not fructified even after 26 years. If, as
suggested by Mr. Desai and Mr. Kharde, the tenants
have to wait till a decision is rendered by thePage 21
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Nine-Judge Bench, the entire object with which
Chapter VIIIA was introduced in the 1976 Act, would
be rendered completely nugatory. Maybe a situation,
such as this, was never contemplated by those who
wanted to frame a scheme to rehabilitate tenants
who were victims of a situation where they had to
reside in unhygenic and maybe dangerous conditions
because of lack of repairs on account of the low
rents payable by the tenants which had been frozen
from 1st September, 1940, and made it virtually
impossible for the landlords to maintain the
properties when, at times, the municipal taxes were
higher than the rents collected; but the Courts
have to interpret the law as it is.
19. As indicated hereinbefore, Section 103A was
introduced by way of Chapter VIII-A in the 1976
Act, by Maharashtra Act 21 of 1986, when
realisation dawned on the administration that many
persons who had been occupying buildings either asPage 22
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tenants or otherwise from before 1st September,
1940, were faced with a peculiar dilemma in which
on account of the low rents paid by them, which had
been frozen, the landlords were unwilling to effect
any repairs to the old structures. Section 103A,
whereby Chapter VIII-A was made applicable to all
"cessed buildings", reads as follows:
"103A. Application of Chapter VIIIA to certain buildings.
This Chapter shall come into force
on and from the commencement of the
Maharashtra Housing and Area
Development (Second Amendment) Act,
1986, and shall apply to all the
cessed buildings which are erected
before the 1st day of September
1940 and are classified as
belonging to Category A under
subsection (1) of section 84:
Provided that, nothing in this
Chapter shall apply to any cessed
building belonging to Category A
if, on the date of commencement of
the Maharashtra Housing and Area
Development (Second Amendment)Act,
1986, out of the total number of
occupiers of such building, fifty
per cent, or more occupiers are
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using the tenements or premises in
their possession for commercial or
non-residential purpose.
Explanation — For the purposes of
this section, any such building
where a floor or any part of a
building is constructed
subsequently and such floor or part
is not separable, shall be deemed
to be a building belonging to
Category A."
20. "Cessed buildings" are buildings in which
repairs had not been effected after 1st September,
1940, and were in danger of collapse, but continued
to be under the occupation of tenants. In fact,
19,642 cessed and dilapidated buildings have been
identified in the island city of Bombay. It is
Section 103B, which deals with the procedure for
acquisition of cessed property for cooperative
societies of occupiers, pursuant to proposals for
acquisition submitted under Section 92 of the 1976
Act. In fact, in order to facilitate the repair or
reconstruction of the building in question, SectionPage 24
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94 makes provision for temporary and alternative
accommodation to be provided to the affected
occupiers whose property is acquired. Since much
of the case of the parties depend on Section 103B
of the 1976 Act, the same, in its entirety, is
extracted hereinbelow:
"103B. Acquisition of cessed
property for co-operative societies
of occupiers.
(1) Notwithstanding anything
contained in any of the provisions
of Chapter VIII or any other law
for the time being in force or in
any agreement, contracts judgement,
decree or order of any Court or
Tribunal to the contrary, a cooperative society formed or
proposed to be formed under the
provisions of the Maharashtra Cooperative Societies Act, 1960, by
not less than seventy per cent of
the occupiers in a cessed building
may by written application request
the Board to move the State
Government to acquire the land
together with the existing building
thereon or where the owner of the
building does not own the land
underneath or appurtenant to such
building but holds it as a lessee
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or licensee, or where any person
holds the building or the land
underneath or appurtenant to such
building or both under a lease or
licence, then to acquire the right
or interest of such owner or person
in or over such building or land or
both as lessee or licensee together
with the existing building thereon
(hereinafter in this Chapter
referred to as "the land") in the
interest of its better preservation
or for reconstruction of a new
building in lieu of the old one and
intimate their willingness to pay
the amount of such acquisition as
may be determined under the
provisions of this Chapter and to
carry out the necessary structural
and other repairs or, wherever
necessary, to reconstruct a new
building, as the case may be, at
their own cost.
Explanation I — In this section the
expression "seventy per cent, of
the occupiers' means the seventy
per cent of the occupiers on the
date of commencement of the
Maharashtra Housing and Area
Development (Second Amendment) Act,
1986, and include their successorsin interest or new tenants inducted
in place of such occupiers, but
does not include the owner or the
occupiers inducted by virtue of
creation of any additional
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tenancies or licences by the owner
after the date of commencement of
the aforesaid Act.
Explanation II — For the purposes
of this sub-section, any suit or
proceeding for recovery or
possession of tenement or premises
or part thereof, initiated against
the occupier in any court or before
any authority whether, before or
after making an application under
this sub-section, shall not affect
the right of such occupier to join
or to continue as a member of the
co-operative society of the
occupiers of the building, but his
membership of such cooperative
society shall be subject to the
final decision in such suit or
proceeding:
Provided that, if, in the meantime
before the final decision in such
suit or proceeding, the acquisition
proceedings under this Chapter are
completed and the land is conveyed
to the Co-operative society of the
occupiers under sub-section (7),
the claim for possession made in
such suit or proceeding, at any
stage where it is pending on the
date of execution of such
conveyance, shall abate.
(2) On receipt of the application
made under sub-section (1), thePage 27
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Board shall after due verification
and scrutiny, approve the proposal
if it considers that it is in the
interest of better preservation of
the building or to be necessary for
reconstruction of a new building
and shall direct the co-operative
society, whether registered or
proposed, to deposit with the Board
within the period specified by it
in that behalf thirty per cent of
the approximate amount that would
be redirected to be paid to the
owner if the land is acquired and
give intimation in that behalf to
the owner.
(2A) Where after the date of
application made under subsection(1),—
(a) any owner has undertaken the
work of any repairs to the
Building; or
(b) the percentage of the occupiers
who had initially agreed to become
members of the co-operative society
formed under subsection (1) is
reduced to less than seventy per
cent of the occupiers as a result
of some members opting out, or due
to the number of additional
tenancies or licences created in
the building thereafter or due to
any other reason whatsoever,
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then the power of Board to approve
the proposal shall not be affected,
and notwithstanding anything
contained in sub-section (1), the
Board shall approve the proposal
and direct the co-operative society
to deposit the approximate amount
as required under sub-section (2).
(3) On receipt of the amount of
deposit as provided in sub-section
(2), the Board shall submit to the
State Government a proposal to
acquire the land for the aforesaid
purpose.
(4) If on receipt of an acquisition
proposal under sub-section (3), the
State Government is satisfied about
the reasonableness of the proposal,
it may approve the proposal and
communicate its approval to the
Board.
(5) On receipt of the Government
approval, the Board shall forward
acquisition proposal to Land
Acquisition Officer for initiating
and acquisition proceedings in
accordance with the provisions- of
sub-sections (3), (4) and (5) of
section 93 and section 96 of this
Act :
Provided that, where any
proceedings for acquisition of land
are so initiated the notice to bePage 29
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published under sub-section (3) of
section 93 in respect thereof need
not contain any statement regarding
provision of any alternative
accommodation to occupiers in such
land :
Provided further that, where the
proposal involves acquisition of
the right or interest of the lessee
or licensee in or over the building
or land as referred to in
subsection (1) , then such building
or land on its transfer by the
Authority to the co-operative
society under sub-section (7) shall
be held by the co-operative society
on lease or licence, as the case
may be,subject, however, to the
following conditions, namely:—
(i) where there is a subsisting
lease or licence, on the same terms
and conditions on which the lessee
or licensee held it, and
(ii) where the lease or licence has
been determined or where the lessee
or licensee has committed breach of
the terms and conditions of the
lease or licence, as the case may
be, on the fresh terms and
conditions, particularly in regard
to the period of lease or licence
and rent as may be stipulated by
the owner of the land.
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(5A) Where acquisition proceedings
have been initiated as provided in
sub-section (5) and a notification
under sub-section (5) of section 93
is published, the Collector shall
take and hand over possession of
the land to the Board in accordance
with the provisions of sub-section
(6) of section 93.
(6) After the land is vested
absolutely in the Board on behalf
of the Authority free from all
encumbrances and the amount to be
paid to the owner is determined,
the Board shall require the society
to get itself registered if it is
not registered till then and to
deposit the remainder of the amount
to be paid to the owner with the
Land Acquisition Officer. The Board
shall simultaneously pass on the
amount deposited by the cooperative society with it to the
Land Acquisition officer. The Land
Acquisition Officer shall thereupon
make the payment of the amount for
acquisition or deposit the same in
the court as provided in section
46.
(7) Subject to the provisions of
sub-section (6), the Authority
shall convey the land acquired
under this section to the cooperative society of the occupiers
thereof with its right, title and
interest therein and execute
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without undue delay the necessary
documents in that behalf."
21. Sub-section (1) of Section 103B begins with a
non-obstante clause to the effect that
notwithstanding anything contained in any of the
provisions of Chapter VIII or any other law for the
time being in force or in any agreement, contract,
judgment, decree or order of any Court or Tribunal
to the contrary, a co-operative society formed or
proposed to be formed under the provisions of the
Maharashtra Co-operative Societies Act, 1960, by
not less than 70% of the occupiers in a cessed
building may, by written application, request the
Board to move the State Government to acquire the
land together with the existing building thereon or
where the owner of the building does not own the
land, but holds it as a lessee or licensee, then to
acquire the right or interest of such owner or
person in or over such building or land or both as
Page 32
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lessee or licensee together with the existing
building thereon.
The latter part of Section 103B
and more particularly Sub-section (5A), is relevant
for our purpose and provides that
where acquisition
proceedings have been initiated as provided in Subsection (5) and
a notification under Sub-section
(5) of Section 93 is published, the Collector shall
take and hand over the possession of the land to
the Board in accordance with the provisions of Subsection (6) of Section 93.
It is at this stage
that the land vests absolutely in the Board on
behalf of the Authority, free from all
encumbrances.
At this stage, the Board shall also
require the Society to get itself registered, if it
is not registered till then, and to deposit the
remainder of the amount to be paid to the owner
with the Land Acquisition Officer.
It is only,
thereafter, under Sub-section (7), that the
Authority is to convey the land acquired under this
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Section to the co-operative society of the
occupiers thereon, with its right, title and
interest therein and execute, without undue delay,
the necessary documents in that behalf.
22. As submitted by Mr. Desai and Mr. Kharde, the
tenants had already vacated the building in
question in favour of the promoter.
The million
dollar question is whether they were entitled to do
so, once Section 103B of the 1976 Act had already
come into operation and symbolic possession of the
property had been taken by MHADA, through the
Board, under Sub-section (5A) thereof. Sub-section
(7) of Section 103B provides for the conveyance of
the land acquired under Section 103B to the cooperative society of the occupiers together with
its right, title and interest therein, and for
MHADA to execute, without undue delay, the
necessary documents in that behalf, which
presupposes that MHADA had already acquired title
34
to the property. Had the title not vested in
MHADA, it could not have been vested with the right
to convey the same to the co-operative society.
The scheme envisaged in Chapter VIII-A, and in
Section 92 of the 1976 Act comes into play, upon an
application being made by a registered co-operative
society or a proposed co-operative society to
undertake the restoration of the building.
23. In the instant case,
except for an application
having been made under Section 92 and
steps having
been taken thereafter under Section 103B,
nothing
further has happened.
But by operation of law, the
land has come to be vested in MHADA.
The parties
to the agreement, which includes the promoter, were
fully aware of this situation since in the
agreement itself it is indicated that the tenants
would withdraw from the acquisition and would apply
to MHADA to release the property from acquisition
so that the agreement arrived at could be given
Page 35
35
effect to instantly.
Whether MHADA has any
obligation to provide similar accommodation to
others in respect of the 30% surplus land, is a
controversy which we need not go into and will
surely be decided, whenever the Nine-Judge Bench
sits to take up these matters.
But for the
purposes of this case, we regret that in spite of
the inordinate delay in the working of the
provisions of Chapter VIII-A of the 1976 Act, which
was intended for the benefit of a certain section
of tenants and occupants of cessed buildings, we
are unable to grant the relief prayed for, as the
same goes against the very grain of the provisions
of Chapter VIII-A of the 1976 Act.
Accordingly, we
have no other option, but to dismiss the I.A.,
without going into further details, which will have
to be settled by the Nine-Judge Bench.
Page 36
36
24. Having regard to the nature of the facts of the
case, the parties shall bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(VIKRAMAJIT SEN)
.....................J.
(A.K. SIKRI)
New Delhi
Dated: July 03, 2013.
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NO. 3 OF 2012
IN
WRIT PETITION (C) NO. 342 OF 1999
KAMLESH C. SHAH & ORS. ...PETITIONERS
Vs.
STATE OF MAHARASHTRA AND ORS. ...RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Chapter VIII-A, which was introduced into the
the Maharashtra Housing and Area Development Act,
Page 2
2
1976, hereinafter referred to as "the 1976 Act", in
1986, pertains to the acquisition of "cessed
properties" for co-operative societies of
occupiers.
Soon after its introduction, its
validity was challenged in several cases, including
the present writ petition.
The present writ
petition was tagged with W.P. No. 934 of 1992,
another case pending in this Court on the same
issue.
In view of the questions raised in the writ
petitions, the matter was initially referred to a
Bench of 7-Judges, but, thereafter, by order dated
20.02.2002, the matters have been referred to a
Bench of Nine-Judges and are still pending
decision.
2. Since no final decision seems to be in the
offing, the writ petitioners have filed IA No. 3 of
2012, for interim reliefs.
Page 3
3
3. The subject matter of the present petition is a
property known as "Chhotalal Niwas" situated at
Laburnam Road, Gamdevi, Mumbai - 400007, comprising
a plot of land bearing Survey No. 7A/492, Malabar
Cumbala Hill Division, Mumbai. Treating the said
property as a "cessed property", within the meaning
of Section 103A of the 1976 Act, the same was
acquired by the Maharashtra Housing and Area
Development Authority (MHADA), as per Section 103B
of Chapter VIII-A of the 1976 Act.
4. The apparent reason for the introduction of
Chapter VIII-A into the 1976 Act appears to be the
refusal of the owners of the buildings to effect
repairs thereto on account of the freezing of rents
from 1st September, 1940. The return which the
landlord could reasonably expect from time to time
having been frozen, a stage was reached when where
rents were no longer sufficient to cover even the
taxes payable for the said properties. As a
Page 4
4
result, the landlords stopped effecting repairs to
the tenanted properties which resulted in rapid
deterioration of the buildings.
Realizing the
gravity of the matter, the Legislature enacted "the
Building Repairs and Reconstruction Board Act,
1969", which enabled levy on buildings in Greater
Bombay as the Legislature felt that from the
recovery of the cess in addition to the
contribution of substantial amounts to be made by
the State Government and the Bombay Municipal
Corporation, it might be possible for the Board
constituted under the Act to carry out structural
repairs to the old buildings to make them safe for
habitation.
The Legislature also felt that in case
structural repairs did not improve the condition of
the building, then the Board could undertake
reconstruction of the building by pulling down the
dilapidated structure and raising a new structure
thereupon.
Page 5
5
5. On 26th February, 1986, the Governor of
Maharashtra issued Ordinance No. 1 of 1986 to amend
the 1976 Act with effect from 26th February, 1986.
The Statement of Objects for enactment of the
amendment indicates that there are 19,642 cessed
old and dilapidated buildings in the island city of
Bombay and, out of these, 16,502 buildings were
constructed prior to 1st September, 1940, and the
majority of the said buildings are about 80 to 100
years old. To make things worse, the freezing of
the rents from 1st September, 1940, made it quite
impossible for the owners to look after or maintain
the buildings, which is one of the reasons for the
introduction of Chapter VIII-A in the 1976 Act.
6. Section 103A of the 1976 Act, which was
introduced in 1986 as part of Chapter VIII-A, inter
alia, provides that the said Chapter would come
into force on and from the commencement of the
Maharashtra Housing and Area Development (Second
Page 6
6
Amendment) Act, 1986 and would apply to all cessed
buildings, which had been erected before the 1st of
September, 1940, and were classified as belonging
to Category 'A' under Sub-section (1) of Section
84.
7. Section 103B, which contains the raison d'etre,
for the introduction of Chapter VIII-A into the
1976 Act, inter alia, provides for acquisition of
cessed property for co-operative societies of
occupiers.
The scheme envisaged in the said
Section is that notwithstanding anything contained
in any of the provisions of Chapter VIII or any
other law for the time being in force or in any
agreement, contracts, judgment, decree or order of
any court or tribunal to the contrary, a cooperative society formed or proposed to be formed,
under the provisions of the Maharashtra Cooperative Societies Act, 1960, by not less than 70%
of the occupiers in a cessed building, may, by
written application, request the Board to move the
State Government to acquire the land together with
the existing building thereupon and where the owner
of the building did not own the land underneath or
appurtenant to such building, but held the same as
a lessee or licensee, then to acquire the right or
interest of such owner or person in or over such
building or land or both as lessee or licensee
together with the existing building, in the
interest of its better preservation or
reconstruction of a new building in lieu of the old
one. Sub-section (2) of Section 103B provides that
on receipt of the application made under Subsection (1), the Board shall, after due
verification and scrutiny, approve the proposal if
it considers that it is in the interest of better
preservation of the building or to be necessary for
reconstruction of a new building and shall direct
the co-operative society, whether registered or
proposed, to deposit with the Board, within the
periods specified by it in that behalf, 30% of the
approximate amount that would be required to be
paid to the owner in that behalf. Sub-section (4)
of Section 103B provides that if, on receipt of an
acquisition proposal under Sub-section (3), the
State Government is satisfied about the
reasonableness of the proposal, it may approve the
same and communicate its approval to the Board. On
receipt of the government approval, the Board under
Sub-section (5) was required to forward the
acquisition proposal to the Land Acquisition
Officer for taking further proceedings in the
matter.
8. An important element of Section 103B is Subsection (5A), which provides that when acquisition
proceedings have been initiated under Sub-section
(5) and a notification under Sub-section (5) of
Section 93 has been published, the Collector would
take and hand over the possession of the acquired
property to the Board in accordance with the
provisions of Sub-section (6) of Section 93. Subsection (6) provides that after the land is vested
absolutely in the Board on behalf of the Authority,
free from all encumbrances, and the amount to be
paid to the owner is determined, the Board shall
require the society to get itself registered, if it
is not registered, till then and to deposit the
remainder of the amount to be paid to the owner
with the Land Acquisition Officer. The Board is
required simultaneously to pass on the amount
deposited by the co-operative society to the Land
Acquisition Officer, who shall thereupon make
payment of the amount for acquisition or deposit
the same in the Court, as provided in Section 46.
Sub-section (7) provides that, subject to the
provisions of Sub-section (6), the Authority shall
convey the land acquired under this Section to the
10
co-operative society of the occupiers thereof with
its right, title and interest therein and execute,
without undue delay, the necessary documents in
that behalf.
9. As is clear from the above, the scheme
introduced by Chapter VIII-A of the 1976 Act was
intended to protect tenants who were compelled to
reside in buildings which had been constructed
prior to 1940, and had become dilapidated as no
repairs were effected thereto. The landlords were
not keen to repair the buildings as the rents were
very low and often the taxes payable for the
property were higher than the rents collected from
the tenants. The scheme provided for the formation
of cooperative societies by tenants of such
buildings, who were required to deposit 30% of the
compensation payable to the owner, whereupon the
lands would stand acquired and would vest in the
Mumbai Building Repair and Reconstruction Board forPage 11
11
the limited purpose of ensuring that after
acquisition, the balance 70% would be deposited by
the tenants, consequent whereupon, MHADA under
Section 103B(7) was bound to convey the land to the
cooperative society for construction of the
building.
10. Appearing for the writ petitioners, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that
the very fact that MHADA was required to convey the
land to the cooperative society for constructing
the building, establishes beyond doubt that the
vesting in the Board amounted to holding the
property in trust for and on behalf of the tenants
forming the cooperative society, who were the
beneficiaries of the said scheme.
11. Mr. Venugopal urged that since the issue was
pending before a Nine-Judge Bench and it was
unlikely that the matter would be heard in the near
Page 12
12
future, the tenants and the owner of the building
entered into an Agreement by which they themselves
agreed to develop the property, instead of waiting
for the decision of the Nine-Judge Bench. The
essence of the understandings arrived at between
the landlord and the tenants was that the tenants
would withdraw themselves from the acquisition and
instead enter into a Development Agreement with
landlord to reconstruct the building. Mr. Venugopal
urged that should such a course of action be
accepted, then there would be no further need for
the proceeding under Section 103B to be continued
and upon the property being returned to the owner,
the tenants could have the benefit of the offer
made by the new builder. This would enable the
tenants to purchase their own flats and the
landlord to also get sufficient consideration so
that the purpose of the scheme would stand fully
satisfied. Furthermore, the Trust would cease to
13
exist as the purpose of acquisition would also
cease to exist. Mr. Venugopal urged that the Court
may declare the acquisition of the property to be
no longer necessary and relevant for the purposes
of Chapter VIIIA and the relationship of the owner
and the tenant would continue as before. Mr.
Venugopal also submitted that since possession has
continued with the owner and the tenants and, at no
point of time, had such possession been handed over
to MHADA, could it be said that the premises in
question had vested with MHADA. Mr. Venugopal
contended that if the object of the rehabilitation
scheme was to be kept in mind, the objective taken
on behalf of MHADA that the property had vested in
it by virtue of the Notification published at the
request of the tenants, was highly technical and
was required to be discarded, as the lands were, in
fact, being held in trust for the tenants as the
beneficiaries thereof. Page 14
14
12. The prayer made on behalf of the Petitioners in
I.A. was opposed, on behalf of the State of
Maharashtra and its authorities, as being
mischievous and was nothing but an attempt to
circumvent the challenge thrown to Chapter VIII-A,
which was pending before this Court not only in
other matters, but in the instant writ petition
also. It was urged by Mr. Sanjay V. Kharde,
learned Advocate appearing for the Respondent Nos.
1 and 5, that the question to be considered in the
context of this interlocutory application is
whether the parties can contract out of the statute
when they have no locus standi or title in respect
of the suit property.
It was urged that stay
prayed for earlier had been refused by this Court
and Chapter VIII-A, inserted by the Maharashtra Act
(21 of 1986), in the 1976 Act, continues to be
valid and operative. It was submitted that the
provisions make it very clear that once the suit
Page 15
15
property stood vested in MHADA, the same could be
utilized only for the purpose of the tenants/ cooperative societies and nobody else. It was urged
that the relief sought for by the Petitioners in
the present application could not be granted since
there is a complete bar on such kind of proceedings
after vesting, in view of Section 103C(2) of the
1976 Act. Mr. Kharde urged that symbolic
possession of the property had already been taken
and the introduction of a third party into the
proceedings was with the knowledge that the
assignee would approach MHADA for releasing the
property for the purpose of development.
13. Mr. Kharde reiterated that once vesting had
taken effect under Section 93(5), read with Section
103B(5A), (6) and (7) of the 1976 Act, and the same
having been upheld up to this Court, the same could
not be released to the owners of the land and would
have to be utilized for a purpose similar for which
16
it had been acquired. Mr. Kharde urged that the
I.A. filed on behalf of the Petitioners is liable
to be dismissed.
14. Mr. Ashok H. Desai, learned Senior Advocate,
who appeared for MHADA and the Mumbai Housing
Repairs and Reconstruction Board, submitted that
the relief prayed for in the instant I.A. was
wholly misconceived since the challenge to the
notification dated 20.04.1995 issued by the
Respondent No. 4 under Section 93(5) of the 1976
Act, thereby vesting the land and building
absolutely in MHADA free from all encumbrances, had
been repelled up to this Court. It was urged that
the vesting of the property in MHADA having been
upheld up to this Court, this application seeking
release of the property from acquisition has to be
dismissed and the Petitioners have to await the
decision to the challenge of the constitutional
validity of Chapter VIII-A. Mr. Desai submittedPage 17
17
that when the matter involving a constitutional
challenge to Chapter VIII-A of the 1976 Act was
pending consideration before a Bench of NineJudges, the present application could not be
decided by any Bench of this Court of a strength of
less than Nine-Judges.
15. Mr. Desai submitted that the scope of these
pending matters relate to the interpretation of the
expression "vesting" of the property with MHADA
under the scheme of the Act. Mr. Desai also urged
that the property having been acquired for the
purposes of Section 103B of the 1976 Act, MHADA was
also saddled with an obligation to utilize 30% of
the acquired land for similar objects. Mr. Desai
submitted that the land could only be used for the
benefit of the tenants, if they had formed a cooperative society and registered the same, but not
for the purpose of development by a third party,
which was completely alien to the provisions of the
1976 Act. Mr. Desai submitted that I.A. No. 3 was
wholly misconceived and was liable to be rejected.
16. Mr. Mukul Rohatgi, learned Senior Advocate,
appearing for the Chief Promoter of the UNAT Co-op.
Housing Society, Hashmukh B. Gandhi, contended that
since the object of the 1976 Act was to
rehabilitate those tenants who were living in
dilapidated structures, and the end object of the
scheme of arrangement arrived at by the landlord
with the promoter was for the same purpose, the
same should be accepted and implemented for the
benefit of the tenants.
17. Countering the submissions made by Mr. Ashok
Desai that once the lands had vested in MHADA under
Section 103B of the 1976 Act, the same could only
be utilised for the purposes of construction/
reconstruction as intended under the Act, Mr.
Rohatgi submitted that the acquisition in thePage 19
19
instant case was specifically for the purpose of
rehabilitation of the members of the proposed Punit
Cooperative Housing Society, on whose application
the acquisition proceedings had been started. Mr.
Rohatgi submitted that the land so acquired for the
aforesaid Cooperative Society could not be utilised
for any other society/tenants and in the event the
tenants chose not to continue with the scheme of
rehabilitation by resorting to the provisions of
the 1976 Act, MHADA could not obstruct the release
of the land, as otherwise the tenants would be
rendered homeless and they would be deprived of
their residences, which they enjoyed in the
premises before the acquisition proceedings were
mooted. Mr. Rohatgi urged that the entire logic of
the 1976 Act was to rehabilitate the tenants of the
building which had become dilapidated on account of
non-repair thereof by the landlords and the scheme
envisaged under Chapter VIIIA was tenant-specificPage 20
20
and any decision to deprive the tenants, either by
taking recourse to the scheme or remaining outside
the scheme, would be contrary to the spirit and
object of the Act.
18. Since the writ petition is to be heard by a
Bench of nine Judges, along with other similar
matters, and there is little likelihood of the
matter being taken up for final decision in the
near future, we have given our serious thoughts to
the problem which has been spelt out in the present
Interlocutory Application. On the one hand, it is
at the request made by a proposed Cooperative
Society of the tenants of the building that
acquisition proceedings were commenced by the Board
under Section 103B of the 1976 Act on 30th October,
1986, on the other, the purpose of the acquisition
has not fructified even after 26 years. If, as
suggested by Mr. Desai and Mr. Kharde, the tenants
have to wait till a decision is rendered by thePage 21
21
Nine-Judge Bench, the entire object with which
Chapter VIIIA was introduced in the 1976 Act, would
be rendered completely nugatory. Maybe a situation,
such as this, was never contemplated by those who
wanted to frame a scheme to rehabilitate tenants
who were victims of a situation where they had to
reside in unhygenic and maybe dangerous conditions
because of lack of repairs on account of the low
rents payable by the tenants which had been frozen
from 1st September, 1940, and made it virtually
impossible for the landlords to maintain the
properties when, at times, the municipal taxes were
higher than the rents collected; but the Courts
have to interpret the law as it is.
19. As indicated hereinbefore, Section 103A was
introduced by way of Chapter VIII-A in the 1976
Act, by Maharashtra Act 21 of 1986, when
realisation dawned on the administration that many
persons who had been occupying buildings either asPage 22
22
tenants or otherwise from before 1st September,
1940, were faced with a peculiar dilemma in which
on account of the low rents paid by them, which had
been frozen, the landlords were unwilling to effect
any repairs to the old structures. Section 103A,
whereby Chapter VIII-A was made applicable to all
"cessed buildings", reads as follows:
"103A. Application of Chapter VIIIA to certain buildings.
This Chapter shall come into force
on and from the commencement of the
Maharashtra Housing and Area
Development (Second Amendment) Act,
1986, and shall apply to all the
cessed buildings which are erected
before the 1st day of September
1940 and are classified as
belonging to Category A under
subsection (1) of section 84:
Provided that, nothing in this
Chapter shall apply to any cessed
building belonging to Category A
if, on the date of commencement of
the Maharashtra Housing and Area
Development (Second Amendment)Act,
1986, out of the total number of
occupiers of such building, fifty
per cent, or more occupiers are
23
using the tenements or premises in
their possession for commercial or
non-residential purpose.
Explanation — For the purposes of
this section, any such building
where a floor or any part of a
building is constructed
subsequently and such floor or part
is not separable, shall be deemed
to be a building belonging to
Category A."
20. "Cessed buildings" are buildings in which
repairs had not been effected after 1st September,
1940, and were in danger of collapse, but continued
to be under the occupation of tenants. In fact,
19,642 cessed and dilapidated buildings have been
identified in the island city of Bombay. It is
Section 103B, which deals with the procedure for
acquisition of cessed property for cooperative
societies of occupiers, pursuant to proposals for
acquisition submitted under Section 92 of the 1976
Act. In fact, in order to facilitate the repair or
reconstruction of the building in question, SectionPage 24
24
94 makes provision for temporary and alternative
accommodation to be provided to the affected
occupiers whose property is acquired. Since much
of the case of the parties depend on Section 103B
of the 1976 Act, the same, in its entirety, is
extracted hereinbelow:
"103B. Acquisition of cessed
property for co-operative societies
of occupiers.
(1) Notwithstanding anything
contained in any of the provisions
of Chapter VIII or any other law
for the time being in force or in
any agreement, contracts judgement,
decree or order of any Court or
Tribunal to the contrary, a cooperative society formed or
proposed to be formed under the
provisions of the Maharashtra Cooperative Societies Act, 1960, by
not less than seventy per cent of
the occupiers in a cessed building
may by written application request
the Board to move the State
Government to acquire the land
together with the existing building
thereon or where the owner of the
building does not own the land
underneath or appurtenant to such
building but holds it as a lessee
25
or licensee, or where any person
holds the building or the land
underneath or appurtenant to such
building or both under a lease or
licence, then to acquire the right
or interest of such owner or person
in or over such building or land or
both as lessee or licensee together
with the existing building thereon
(hereinafter in this Chapter
referred to as "the land") in the
interest of its better preservation
or for reconstruction of a new
building in lieu of the old one and
intimate their willingness to pay
the amount of such acquisition as
may be determined under the
provisions of this Chapter and to
carry out the necessary structural
and other repairs or, wherever
necessary, to reconstruct a new
building, as the case may be, at
their own cost.
Explanation I — In this section the
expression "seventy per cent, of
the occupiers' means the seventy
per cent of the occupiers on the
date of commencement of the
Maharashtra Housing and Area
Development (Second Amendment) Act,
1986, and include their successorsin interest or new tenants inducted
in place of such occupiers, but
does not include the owner or the
occupiers inducted by virtue of
creation of any additional
26
tenancies or licences by the owner
after the date of commencement of
the aforesaid Act.
Explanation II — For the purposes
of this sub-section, any suit or
proceeding for recovery or
possession of tenement or premises
or part thereof, initiated against
the occupier in any court or before
any authority whether, before or
after making an application under
this sub-section, shall not affect
the right of such occupier to join
or to continue as a member of the
co-operative society of the
occupiers of the building, but his
membership of such cooperative
society shall be subject to the
final decision in such suit or
proceeding:
Provided that, if, in the meantime
before the final decision in such
suit or proceeding, the acquisition
proceedings under this Chapter are
completed and the land is conveyed
to the Co-operative society of the
occupiers under sub-section (7),
the claim for possession made in
such suit or proceeding, at any
stage where it is pending on the
date of execution of such
conveyance, shall abate.
(2) On receipt of the application
made under sub-section (1), thePage 27
27
Board shall after due verification
and scrutiny, approve the proposal
if it considers that it is in the
interest of better preservation of
the building or to be necessary for
reconstruction of a new building
and shall direct the co-operative
society, whether registered or
proposed, to deposit with the Board
within the period specified by it
in that behalf thirty per cent of
the approximate amount that would
be redirected to be paid to the
owner if the land is acquired and
give intimation in that behalf to
the owner.
(2A) Where after the date of
application made under subsection(1),—
(a) any owner has undertaken the
work of any repairs to the
Building; or
(b) the percentage of the occupiers
who had initially agreed to become
members of the co-operative society
formed under subsection (1) is
reduced to less than seventy per
cent of the occupiers as a result
of some members opting out, or due
to the number of additional
tenancies or licences created in
the building thereafter or due to
any other reason whatsoever,
28
then the power of Board to approve
the proposal shall not be affected,
and notwithstanding anything
contained in sub-section (1), the
Board shall approve the proposal
and direct the co-operative society
to deposit the approximate amount
as required under sub-section (2).
(3) On receipt of the amount of
deposit as provided in sub-section
(2), the Board shall submit to the
State Government a proposal to
acquire the land for the aforesaid
purpose.
(4) If on receipt of an acquisition
proposal under sub-section (3), the
State Government is satisfied about
the reasonableness of the proposal,
it may approve the proposal and
communicate its approval to the
Board.
(5) On receipt of the Government
approval, the Board shall forward
acquisition proposal to Land
Acquisition Officer for initiating
and acquisition proceedings in
accordance with the provisions- of
sub-sections (3), (4) and (5) of
section 93 and section 96 of this
Act :
Provided that, where any
proceedings for acquisition of land
are so initiated the notice to bePage 29
29
published under sub-section (3) of
section 93 in respect thereof need
not contain any statement regarding
provision of any alternative
accommodation to occupiers in such
land :
Provided further that, where the
proposal involves acquisition of
the right or interest of the lessee
or licensee in or over the building
or land as referred to in
subsection (1) , then such building
or land on its transfer by the
Authority to the co-operative
society under sub-section (7) shall
be held by the co-operative society
on lease or licence, as the case
may be,subject, however, to the
following conditions, namely:—
(i) where there is a subsisting
lease or licence, on the same terms
and conditions on which the lessee
or licensee held it, and
(ii) where the lease or licence has
been determined or where the lessee
or licensee has committed breach of
the terms and conditions of the
lease or licence, as the case may
be, on the fresh terms and
conditions, particularly in regard
to the period of lease or licence
and rent as may be stipulated by
the owner of the land.
30
(5A) Where acquisition proceedings
have been initiated as provided in
sub-section (5) and a notification
under sub-section (5) of section 93
is published, the Collector shall
take and hand over possession of
the land to the Board in accordance
with the provisions of sub-section
(6) of section 93.
(6) After the land is vested
absolutely in the Board on behalf
of the Authority free from all
encumbrances and the amount to be
paid to the owner is determined,
the Board shall require the society
to get itself registered if it is
not registered till then and to
deposit the remainder of the amount
to be paid to the owner with the
Land Acquisition Officer. The Board
shall simultaneously pass on the
amount deposited by the cooperative society with it to the
Land Acquisition officer. The Land
Acquisition Officer shall thereupon
make the payment of the amount for
acquisition or deposit the same in
the court as provided in section
46.
(7) Subject to the provisions of
sub-section (6), the Authority
shall convey the land acquired
under this section to the cooperative society of the occupiers
thereof with its right, title and
interest therein and execute
31
without undue delay the necessary
documents in that behalf."
21. Sub-section (1) of Section 103B begins with a
non-obstante clause to the effect that
notwithstanding anything contained in any of the
provisions of Chapter VIII or any other law for the
time being in force or in any agreement, contract,
judgment, decree or order of any Court or Tribunal
to the contrary, a co-operative society formed or
proposed to be formed under the provisions of the
Maharashtra Co-operative Societies Act, 1960, by
not less than 70% of the occupiers in a cessed
building may, by written application, request the
Board to move the State Government to acquire the
land together with the existing building thereon or
where the owner of the building does not own the
land, but holds it as a lessee or licensee, then to
acquire the right or interest of such owner or
person in or over such building or land or both as
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lessee or licensee together with the existing
building thereon.
The latter part of Section 103B
and more particularly Sub-section (5A), is relevant
for our purpose and provides that
where acquisition
proceedings have been initiated as provided in Subsection (5) and
a notification under Sub-section
(5) of Section 93 is published, the Collector shall
take and hand over the possession of the land to
the Board in accordance with the provisions of Subsection (6) of Section 93.
It is at this stage
that the land vests absolutely in the Board on
behalf of the Authority, free from all
encumbrances.
At this stage, the Board shall also
require the Society to get itself registered, if it
is not registered till then, and to deposit the
remainder of the amount to be paid to the owner
with the Land Acquisition Officer.
It is only,
thereafter, under Sub-section (7), that the
Authority is to convey the land acquired under this
33
Section to the co-operative society of the
occupiers thereon, with its right, title and
interest therein and execute, without undue delay,
the necessary documents in that behalf.
22. As submitted by Mr. Desai and Mr. Kharde, the
tenants had already vacated the building in
question in favour of the promoter.
The million
dollar question is whether they were entitled to do
so, once Section 103B of the 1976 Act had already
come into operation and symbolic possession of the
property had been taken by MHADA, through the
Board, under Sub-section (5A) thereof. Sub-section
(7) of Section 103B provides for the conveyance of
the land acquired under Section 103B to the cooperative society of the occupiers together with
its right, title and interest therein, and for
MHADA to execute, without undue delay, the
necessary documents in that behalf, which
presupposes that MHADA had already acquired title
34
to the property. Had the title not vested in
MHADA, it could not have been vested with the right
to convey the same to the co-operative society.
The scheme envisaged in Chapter VIII-A, and in
Section 92 of the 1976 Act comes into play, upon an
application being made by a registered co-operative
society or a proposed co-operative society to
undertake the restoration of the building.
23. In the instant case,
except for an application
having been made under Section 92 and
steps having
been taken thereafter under Section 103B,
nothing
further has happened.
But by operation of law, the
land has come to be vested in MHADA.
The parties
to the agreement, which includes the promoter, were
fully aware of this situation since in the
agreement itself it is indicated that the tenants
would withdraw from the acquisition and would apply
to MHADA to release the property from acquisition
so that the agreement arrived at could be given
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35
effect to instantly.
Whether MHADA has any
obligation to provide similar accommodation to
others in respect of the 30% surplus land, is a
controversy which we need not go into and will
surely be decided, whenever the Nine-Judge Bench
sits to take up these matters.
But for the
purposes of this case, we regret that in spite of
the inordinate delay in the working of the
provisions of Chapter VIII-A of the 1976 Act, which
was intended for the benefit of a certain section
of tenants and occupants of cessed buildings, we
are unable to grant the relief prayed for, as the
same goes against the very grain of the provisions
of Chapter VIII-A of the 1976 Act.
Accordingly, we
have no other option, but to dismiss the I.A.,
without going into further details, which will have
to be settled by the Nine-Judge Bench.
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24. Having regard to the nature of the facts of the
case, the parties shall bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(VIKRAMAJIT SEN)
.....................J.
(A.K. SIKRI)
New Delhi
Dated: July 03, 2013.
