Holding

The appellants were not ‘persons interested’ at the time of the arbitrator’s notice and possession, as the land had already vested in the Planning Authority under the Maharashtra Regional Town Planning Act; therefore, they had no entitlement to notice and their claim failed.

Summary

Parag Construction and other appellants bought land in Borivali (Final Plots 22A, 228 and 22C) at a court auction in 1981 and later challenged the acquisition of that land by the arbitrator under the Maharashtra Regional Town Planning Act, 1966, arguing that they were not given notice and therefore the acquisition was illegal. The Supreme Court examined the history of the Town Planning Scheme, noting that the land had already been taken into possession by the arbitrator in 1980 and vested in the Municipal Corporation under sections 83(3) and 86(2) of the Act, long before the appellants acquired any interest. Consequently, the appellants were not "persons interested" at the time notice was required and could not claim a right to notice. The Court also held that the writ petition was hopelessly belated and that the appellants had failed to prove any title or possession over the disputed plots. The appeal was dismissed, leaving the acquisition and subsequent vesting of the land in the Planning Authority undisturbed.

Issues considered

The arbitrator’s power to take possession under s.83(3) and s.86(2) of the Maharashtra Regional Town Planning Act without notice to the appellants who purchased the land later.
Whether the appellants, as purchasers in 1981, were entitled to notice under the Act given that the scheme had been finalized and possession already taken.
Whether the writ petition was barred by laches or was hopelessly belated.
The validity of the vesting of the land in the Planning Authority (Municipal Corporation) free of encumbrances.
The legality of the Slum Rehabilitation Authority’s Letter of Intent issued to developers for the same land.

Legislation cited

Maharashtra Regional Town Planning Act, 1966s. 83, s. 86, s. 88
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971s. 3A

Subjects

Town Planning SchemeAcquisition of landNotice requirementAdvance possessionLachesSlum Rehabilitation AuthorityVesting of titleSupreme Court of India

Judgment

[2008] 16 S.C.R. 366

A
'' ...... t .,,..., • If ~·· v. ~ ;...
, .1,l-l ,.~ •. STAT.E-OF.MA~AR;\SHTRf' & ORS, .
....... ·(Civil Appeal-No. 67.12· of-2008) · ' J •

I •4 • f ~ ' I f i , • ; 1 ! ' ~ f,' I f

. . NOVEMBER .19, .2008 ~ ;' ~
B '" j r • I ' ' ' .. j .: •

' <[t:OKESHWAR's1N.GH PANTA ANO ·•· 1' ' .
,, .. ·. '., v.s~· SIRPURKAR, JJ.]' ' ' 1.·' I ' •
~ 'ft I f . ..... 0 I ' • ~ ~ '\ ' ~ ; '~~· t .._. • • f.. • I ,; ~ !
· ·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/~;
Pro~ter ::t· Tlw w.:itbpl ~ttifiobn ~da_~J1~peleds!il~.f?elf1{~.c! -:-t,EhYrd.n,.orr
0
men s, / ~as: 11a e o e 1sm1sse as appe an s a no 11
entitlement to notice, in view of the finalized proceedings of
arbitration 1under the Act- Land'in question was alreaCiy aparl
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·· ,,,, ·~i.-1 ~- 1 ~.I .,,,t. I!~ ~,. ~. l l t ' 1 t

.• Maharashtra, ,Slum A_reas (/mprovem_ent. ,Cle.aranee and
F Redevelopment) Act, 1197.1,';7.s.3A--,Slum dwellers in Mumbai
City"~nd 1 Mumbai Suburban., Districts ,Decision. of 1 ·'

Mahar:.as_fltra Governme11t1.to, redevelop slums '."7• Slum
1

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
J-
H ' . : ' . t'. I \ • I 366 'l ' • i: '' •. ! " ' " .
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
the property, viz. the Ve!kar family, Respondent No.7 had E
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
Family were properly heard and the Arbitrator had
c 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,
since the appellants were not on the picture, there was
D 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 '"4-
in 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
'l
was sanctioned as back as on 26.9.1962. The TPS was
"'! 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
Final Plot No. 22, it cannot be believed that the appellants
c
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
by the Arbitrator in the year.1980 itself from Velkars. At D
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
f • \ , "' ~ I

•'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-A-
H; 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
·, of
reason to interfere with any· 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
-t- C.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
l,.
action pursuant to Letter of Intent issued by the
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
set aside the permission granted in the Letter of
E 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/
appellants as Exh. 'P' hereto;
F ~-
(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
any manner acting upon the Letter of Intent dt.
G
18.04.2006 issued by the Respondent in favour of
the Respondent No. 4 for development of the land +
f-
mentioned therein under Slum Redevelopment
I , , Scheme:
';
(e) Not relevant.
H
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, 7A3 and 78 and bearing Survey
Nos. 88 and 89, (2) Final Plot No. 13A, bearing Survey No. 8 B

....,,, 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
Bombay in suit No. 42 of 1972 pursuant to the Orders passed D
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
for the said acquisition. They further pointed out that there was F
.... 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 7A3
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
a portion of the said land under the Slum Rehabilitation H
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.)

allotted to one Shri Anant P. Velkar and 6 others. They averred A
~-l.
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
said Act.
c
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
said plot was reserved for public purpose and the H
376 SUPREME COURT REPORTS [2008] 16 S.C.R

·Acompensation 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 Borivali-
II, 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 ,,r-
claim 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 I-

land 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.
Valkar and, 6 -Ors. The High Gou.rt found that the arbitration
r-
. . . ·-,..'
proceedings were inmated by notification No. TPB-4762-M dt.
18.10.1962 and one Mr. J.G. Keskarwas appointed as Town
E
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
parties for hearing on 22.4.1975 and the minutes of the said
F 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
, I ,. ..
the final •scheme
1 ~·-
was submitted by rv,r.
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
. . . .

Gou.rt noted that the occupants of the structures were also
. . i
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 B
Government had also authorized the Collector of Bombay and
·-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
this judgment and ultimately, the last Arbitrator Mr. V.D. Kulkarni
c
_,,, 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
Receiver on 24.9.1981, much water had flown under the bridge,
8
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
y-1 to the huge delay on the part of the State Government to F
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
4- of 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
of the land under Section 83(3) and since before the alleged
c 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
respondent No. 3 and 4 had no rights, whatsoever, as they had
D 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
Pednekar, Learned Counsel, appearing on behalf of the
F 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
considerations, we would have to trace the history even at the
t-
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
. '(
i.. reserved for health centre and Final Plot No. 22C was reserved
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 G
the event, the Commissioner could not conveniently allot the
-~ 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
purportedly, challenging the Letter of Intent dt. 18.4.2006.
c
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
purportedly purchased the property involved in the Suit on F
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. 22 could
not have been in the hands of the Receiver as the Receiver
could only hold the property, which belonged to the Velkar
Family and much before that, the proceedings were concluded,
" at least the Draft final Scheme was passed, and the advance H
384 SUPREME COURT REPORTS (2008] 16 S.C.R.

A possession procedure was also adopted, thereby, there was
no question of the Receiver being in possession of the
concerned property or his giving the possession of the said
property in favour of the petitioners/appellants. The petitioners/
appellants, undoubtedly, may have purchased the other
B properties involved in the Suit, however, insofar as this
particular property was concerned, the learned Counsel for the
respondents insisted that the Receiver could not have been in
possession of the property, nor could he have granted the
possession of the properties to the petitioners/appellants. It is
C with that idea that the learned Counsel rightly submit that there
is absolutely no proof anywhere that the.petitioners/appellants
were given the possession of the concerned property.
16. On. this backdrop when we see the history of the
proceedings under the Act, it is clear that Shri Keskar, who was
D the first Arbitrator was followed later on by Shri P.G. Sirdesai,
Shri J.B. Kamat, Shri K.S. Keswani, Shri V.D. Kulkarni and it
was Shri V.D. Kulkarni, who had finalized the Scheme on
7. 7 .1998. The High Court had also noticed this factor that the
Appeal was decided by the Appeliate Tribunal against the Draft
Scheme on 4.1.1982 and thereafter, Shri G.D. Karkare, who
E had stepped into the shoes of Shri Kulkarni, had submitted the
Scheme to the State Government on 15.4.1983 after
incorporating the decisions of the Tribunal of Appeal and
ultimately, it was this Scheme, which came to be finalized and
approved by Government of Maharashtra on 15.4.1996 by way
F of first variation. On the Backdrop of this, the learned Counsel
rightly contend that the· claim of the petitioners/appellants to
have become owner of the property, cannot stand.
17. Mr. Shyam Divan, Learned Sr. Counsel, appearing on
behalf of the appellants very strenuously contended that apart
G from the certificate of the Court Recei.ver, the petitioners/
ar:fpellants was in fact, put in possession on 13.12.1983 by the -t-
i
Court Receiver himself as per the possession receipt. He also
'
pointed out that in respect of other properties, which were
purchased, on Final Plot Nos. 7-A1 and 7-A';!,, the petitioners/
H appellants had constructed a building called 'Ghanshyam
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 385
& ORS. [V.S. SIRPURKAR, J.]

Towers'. So also, in respect of a Final Plot No. 78, there was A
some dispute which was settled by the consent terms dt.
23.10.2002 before this Court. The contention is attractive, but,
meritless. It will be seen that number of other properties,
besides the concerned property were purchased by the
petitioners/app_ellants and there is nothing to disbeliev~ that 8
version that the petitioners/appellants were auctioned
purchasers. However, that does not mean that the petitioners/
appellants became the owner of the concerned properties in
Final Plot No. 22 and more particularly, Final Plot No.228 and
22C. The prayer in civil suit related to Final Plot No.228 (Pt.) C
while the prayer in writ petition is delightfully vague. It is only in
respect of Letter of Intent without mentioning specific plot
number. It is obvious that the other properties were not part of
the TPS or at least, they have not been shown as the part of
the TPS. Even if it is accepted that the petitioners/appellants
had became the owner and dealt with those properties that 0
does not help the petitioners/appellants, insofar as the present
property is concerned, as it was already a part of the TPS and
the possession thereof was already taken under Section 83(3)
by the Arbitrator. Shri Divan urged that Section 83(3) did not
apply. Section 83 is as under:- E
"83. (1) Where a Planning Authority thinks that in the
interest of the public, it is necessary to undertake
forthwith any of the works included in a drafrscheme
for a public purpose, the Planning Authority shall
make an application through the Arbitrator to the F
State Government to vest in it the land (without any
building) shown in the draft scheme.
(2) The State Government may; if satisfied that it is
urgently necessary in the public interest to empower G
the Planning Authority to enter on such land for the
purpose of executing any of such works, direct the
Arbitrator, by notification in the official Gazette to
take possession of the land, or may, after recording
its reasons refuse to make any such direction.
H
386 SUPREME COURT REPORTS [2008] 16 S.C.R.

A Provided that, no such direction shall be made
without the Arbitrator giving a hearing to any person f--
or Planning Authority affected py such direction, and
considering the report of the Arbitrator in that behalf.
(3) The Arbitrator shall then give a notice in the
B prescribed manner to the person interested in the
land the possession of which is to be taken by
Arbitrator requiring him to give possession of his
land to the Arbitrator or any person authorized by
~ him in this behalf within a period of one month from
c the date of service of notice and if no possession
is delivered within the period specified in the notice,
the Arbitrator shall take possession of the land and
shall hand over the land to the Planning Authority.
Such land shall thereupon, notwithstanding anything
D contained in this Act, vest absolutely in the Planning
Authority free from all encumbrances."
The contention was raised under sub-Section (3). The
action of taking the possession under Section 86(2) by the
Arbitrator could be done only when the Arbitrator gives a notice
E to the person interested in the land. The learned Senior
Counsel contended that the petitioners/appellants were,
undoubtedly, "person interested", as the petitioners/appellants
came on the land via sale certificate in September, 1981. This
is clearly an incorrect argument, for the simple reason that the
F petitioners/appellants merely purchased the properties of
Velkar Family in the auction in September, 1981, however, there ~
I
is nothing on record to suggest that the possession of those
properties was given by the Receiver. Indeed it could not have
been given, for the simple reason that the possession was
already taken earlier in the year 1980 under the notice to Velkar
G
family. Again the petitioners/appellants were not anywhere in
the picture, so as to insist upon a notice. It is obvious that in
the earlier proceedings under the Act, the representatives of -:t
l

Velkar Family were properly heard and the Arbitrator had
proceeded perfectly in tune with the provisions of the Act. We
H do not have any reason to dispute the claim on behalf of the
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 387
& ORS. [V.S. SIRPURKAR, J.]

..~ Corporation, as also the Arbitrator that the possession was A
taken in the year 1980 itself. If that is so, at that time, since the
petitioners/appellants were not on the picture, there was no
...
question of giving any notice to them or hearing them under
Section 83(2). Shri Divan also, very heavily relied on the
property cards maintained by the City Survey Office, which-were B
i amended by a mutation entry dt. 23.1.1986, which showed the
name of the petitioners/appellants as the holders in place of
i.
--. the Velkars. We have no difficulty in accepting that the property
cards were indeed amended, but that by itself, will not give any
benefit to the petitioners/appellants, for the simple reason that
a mere amendment in the property cards of City Survey Office
c
cannot and could not create a title in favour of the petitioners/
appellants. The entries may have a presumptive value, however,
that would not be sufficient. We have already shown that the
Velkar Family had lost the possession way back in 1980 itself
and the concerned plot was included in the Draft Scheme. D
Under the circumstances, there was no question of the ·
ownership and/or possession being transferred to the
4- petitioners/appellants by the court receiver. If that is so, the
amended property cards of City Survey Office loose all the
significance. It is needless to mention that this contradiction E
stands explained by the affidavits of city survey department and
the Corporation and the officers of Corporation.
18. At this juncture, it will be better to consider some
provisions regarding the TPS and its legal implication. Under
Section 59(1)(a), the Planning Authority for the purpose of F
. ...,.........
I implementing the proposals in Final Development Plan,
prepares the TPS for the area in its jurisdiction or any part
thereof. Under Section 60, the Planning Authority declares its
intention to make a TPS and within 30 days, publishes the
declaration in the Official Gazette and a copy of the Plan is G
available for inspection to the general public. Under Section 61,
i-:.. a Draft Scheme is prepared. The limitation for it is 12 months.
However, even if the Scheme lapses because of the elapse of
time of 12 months, that is no bar for making fresh declaration.
Section 65 provides for the power of the Planning Authority to H
•
388 SUPREME COURT REPORTS [2008] 16 S.C.R.

A reconstitute the plots, while Section 68 speaks about the power
~-- ·-
of the State. Government to sanction the Draft Scheme. Under r
sub-Section (2), though there is a limitation provided, Sectior;i
68(2) gives power to the State Government to extend the time
within wh.ich .the Draft Scheme can be sanctioned. Section 69
B imposes restrictions o.n use and development of land after
declaration of TPS. Section 71 deals with the disputed claims
as to the ownership of any ·land included in the TPS or its J
declaration. Section 72 provides for the Arbitrator, who is to be ~

appointed immediately after the publication of the Draft
Scheme. Section 72(3) deals with the duties of such
c Arbitrators. Section 73 gives finality to the decisions of the
Arbitrator. We have already seen the features of Section 83
under which the advance procedure can be started for taking t-
the possession. In th~ wake of all these provisions, we have
examined the records at the request of Shri Shyam Divan,
D Learned Senior Counsel for the petitioners/appellants, including
the possession receipts. Shri Divan tried to criticize the
proceedings before Arbitrator and tried to show that the
.+
possession was not properly taken or given to Corporation,
however, it is obvious that the petitioners/appellants cannot
E question all those claims because the petitioners/appellants
were nowhere in the picture at that time. We are satisfied with
the proceedings before the Arbitrator and we are also satisfied
that the Arbitrator had already taken the advcmce possession
under Section 86(2) and 83(3) and had also for-Warded a draft .._
>-
F Scheme.
~
19. Lastly, Shri Divan tried to argue that the State I

Government in this case, had taken unduly long period of, .13
years for sanctioning the Scheme. He pointed out that if the
Scheme was sent in 1983, it was only sanctioned with effect
G from 15.4.1996, which was not possible. The Counsel urged
that though the State Government has power to extend· the ~

period for sanctioning the Scheme, it could not be stretched to j-
the unreasonable period of 13 years. We appreciate the t:=
argument,. however, considerir:ig ~he fact that the area ·is from
H a very -busy locality like B.orivali, Mumbai, .the legal
~:
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 389
& ORS. [V.S. SIRPURKAR, J.]
~~ A
complications because of the pending suits and the unduly long
time taken in finalizing the Scheme, we hold, that by itself,
_. cannot invalidate the whole Scheme. In our opinion, therefore,
the petitioners/appellants have not been able to prime facie
prove the petitioners/appellants title or possession, vis-a-vis,
the land in question. Some minor contentions were raised by B
Shri Divan regarding the breach of Section 82(2), as also, Rule
i. 18 of the MRTP (Maharashtra Regional and Town Planning)
Rules. However, all those challenges must fall in view of the fact
that the petitioners/appellants had not been able to prime facie
establish his contentions regarding title and possession. We c
do not mean to decide about the title of the petitioners/
appellants, however, all these enquiries and our observations
. are only related to the Scheme and the claims made by the
petitioners/appellants, that the acquisition proceedings of the
land in question were bad, as they were not given any notice
thereof. It is only with that angle, that our observations should D
be read. It will be perfectly open for the petitioners/appellants
-f to establish their rights, if any, in relation to the land in question
~ in proper forums.
20. This takes us to a further question as to whether this
E
. Writ Petition was tenable at all. It has been strenuously
contended by Shri Savant, Learned Senior Counsel, Shri
Shishodia and Shri Kharde, Learned Counsel, that the claims
in Civil Suit and the Writ Petition were almost identical and the
Civil Suit was still pending, when the Writ Petition came to be
·~
I filed, after the injunction was refused to the petitioners/ F
appellants. The contention of the petitioners/appellants,
however, was that the frame of the Suit and the frame of the
Writ Petition are distinct. According to Shri Divan, Learned
Senior Counsel for the appellant, no reliefs in the Civil Suit were
directed in the proceedings under the Act, while the Writ G
Petition was in respect of the illegalities, which vitiated the
{.
proceedings under the Act. According to Shri Divan, the
principal relief in the Writ Petition was directed against the
arbitral proceedings by the Arbitrator, culminating in the final
sanction of 1996 and since the directions dt. 18.4.2006 and H
390 SUPREME COURT REPORTS [2008] 16 S.C.R.

A the Survey Notice dt. 21.8.2006 were consequential reliefs, they }--<,. '

were included in the petition. According to the Learned Counsel, ~

the scope of the Suit was primarily directed at the bogus and \_
~

fraudulent Letter of Intent, granted after inflating the number of
occupants entitled to rehabilitation, and since the petitionersi
B appellants as the owners, had not granted any 'No Objection
Certificate', there was no scope for giving any Letter of Intent
to any other party for developing the plots. Shri Divan also r
argued that under Section 149 of the Act, there is a bar to the
jurisdiction of the Civil Court and, therefore, the petitioners/
appellants were justified in filing the Writ Petition. We would not
c go to the extent of saying 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. We leave the
question at that, as we have found thatthe High Court was right b
in dismissing the Writ Petition on merits, more particularly,
D holding that the petitioners/appellants could not assert their
t.._
entitlement to the notice, particularly, in view of the finalized
proceedings of Arbitration under the Act. · -t
21. We must also take into consideration the argument on
~
the part of the respondents, that the petition was hopelessly r
I
E '
belated. It cannot be disputed that the Government had finalized
the Scheme on 6.3.1996 and 7 .3.1996. It is difficult for us to r-
believe that the petitioners/appellants asserting their title over
the land and who are in the construction business themselves r-

as the builders, could not and did not have the idea about the
F Scheme dt. 15.4.1996. It is also surprising that the petitioners/
appellants have come to know about the Scheme etc. only when
-r- ·r-I
the Counter affidavit came in the Suit in reply to their injunction
application. It is also difficult to believe that the petitioners/
appellants had no idea, whatsoever, about the TPS, the Draft
G of which was sanctioned as back as on 26.9.1962. We find that L
the TPS was finalized on 7.7.1978 and right from 1972to1978, '
the proceedings before the Arbitrator were in progress. If the t
petitioners/appellants claimed to have come on the property by
way of an auction purchase in the year 1981, which included t
H Final Plot No. 22, it cannot be believed that the petitioners/
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 391
& ORS. [V.S. SIRPURKAR, J.]

_......J"t appellants would have no idea about the state of affairs A
regarding the Scheme, which was already finalized in 1978.
There is a clear reference to the Town Planning Scheme II of
Borivali in the Certificate dated 24.09.1981 which is a basic
document of the petitioners/appellants. It is again difficult to
believe that the petitioners/appellants did not have idea that the 8
possession of this plot was already taken by the Arbitrator in
i.. 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 petitioners/appellants,
because the petitioners/appellants were nowhere on the scene
on that date. Therefore, it could not lie in the mouth of the
c
petitioners/appellants that the possession 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. Even
at the cost of repetition. we may say that we have carefully seen D
the records regarding possession of the plot being taken and
being given to the Corporation. On the other hand, there is
nothing to suggest that the Court Receiver actually took the
physical or symbolic possession of Final Plot No. 22C. At any
rate, the appointment of the Court Receiver could not have E
affected the earlier pending proceedings before the Arbitrator.
It also does not lie in the mouth of the petitioners/appellants,
that there was no notification under Section 83(2). In fact, the
notification under Section 83(2) dt. 21.9.1979 was duly
published in official gazette on 4.10.1979. In the wake of this F
-t- •
notification, if the petitioners/appellants came Ofl the legal scene
in the year 1981, they were bound to enquire about the
properties which they had allegedly purchased in the Court
auction. We are, therefore, convinced that the petitioners/
appellants maintained a sinister silence right from 1983 till they G
ultimately filed the petition in the year 2006. We are also
i .. surprised at the fact that though the petitioners/appellants
claimed to have got mutation in the year 1986 on CTS Survey,
they did not advert to the Corporation for mutation at any stage.
All this brings us to a conclusion that the petition was hopelessly
H
392 SUPREME COURT REPORTS [2008] 16 S.C.R.

A belated. Even on merits (presuming that the same .could be ,,._._
'
considered), it is difficult to appreciate the petitioners/
·appellants' efforts to· upset notification dt. 15.4.1996 by filing a ·-
Writ' petition in 2006. We are,· therefore', convinced that the
r
petition had no merits and was rightly dismissed.
B 22. However, the matters did not stand there, as at the end
of the arguments! Shri Divan alsO asserted that responde.nt No.
3 herein Ashtavinayak Cooperative Housing Society Ltd. .Y
(proposed), as also respondent No. 4 M/s. Siddhivinayak
Developers did not have any lociJs in the matter-and could not
c be given the development rights for the aforementioned plots.
We have heard Shri Kharde, Learned Counsel appearing on
behalf of the SRA on that question. f'
~

23: In view of several slum dwellers in Mumbai City and
Mumbai Suburban Districts, since the slum dwellers had no
D basic amenities, the Government of Maharashtra decided to r-
redevelop 'the slums and framed Development Control
Regulation No. 33(10) (hereinafter called 'OCR'). The
Maharashtra Government also amended the provisions of +
Maharashtra Slum Area (l.C & R) Act, 1971 and inserted a
E chapter 1A therein. SRA was established under Section 3A of
. the Slum Act for implementation of the Slum Rehabilitation
Projects in Mumbai City. At the same time, Government of
Maharashtra also amended the ·provisions of Maharashtra
Regional and Town Planning Act, 1960 ('the Act' herein) and
F by these amendments, the powers of Planning Authority were
given to SRA for implementation of Slum Rehabilitation "7·
Projects. This is how the SRA came into picture. The said
Authority has 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
The said Chief Promoter has to collect all the documents such
as 7/12 extracts and PR Card of the plot on which the slum is
J·
situated. Under the said Scheme, the Chief Promoter has to -
submit an application in prescribed form Annexure 1,· which
describes the details· of the ownership of land, plot area, existing
H hutments, amenities, Floor Space Index available and number

/>

;.
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 393
& ORS. [V.S. SIRPURKAR, J.]

-~ of tenements to be constructed. Annexure 2 to this application A
includes the details of the plots, declaration of slum by the
notification, structures on the plot, details of slum dwellers, who
have given consent in writing to !he proposed Slum
Rehabilitation Scheme etc. The said Annexure 2 is required to
be certified by the land owning authority, in this case, the B
Corporation. Annexure 3 prescribes the assessment of financial
1. capability of the Promoter. SRA scrutinizes the proposal
submitted by the Chief Promoter and Architect and then issues
a Letter of Intent.
24. It is pointed out by the Learned Counsel for the SRA c
that in this case, respondent Nos. 3 and 4 submitted the
proposals for Final Plot No. 228 in the year 2005. As the TPS
was implemented for the said area, it was apparent from the
remarks obtained by the Architect that the ownership of the plot
was that of the Corporation. Accordingly, the Corporation has D
issued Annexure 2 on 7.7.2005. It is asserted that the SRA after
scrutinizing the proposal issued the Letter of Intent on
18.4.2006, which was subsequently revised, and the revised
Letter of Intent was issued on 12.9.2006. It was pointed out by
the Counsel that respondent No. 4 developer had obtained all
E
the necessary permissions required under the Act and the
Regulations and respondent No. 4 had shifted the slum dwellers
since 2006 to transit camps and the expenses is borne by
respondent No. 4. It was pointed out by the Counsel that it was
the right of the slum dwellers to choose their developer and
-,,._-. appoint him for the same by passing resolution in its meeting. F
In short, under the Scheme, the Government or the land owners
have no right to impose a developer on the slum dwellers. The
Learned Counsel was also at pains to point out that under
Section 14(1) of the Slum Act, if the land owner was not
prepared for allowing the development of the slums on the G
encroached plot, the Slum Authority has the power to acquire
~ the property and proceed with the Scheme as per the wish of
70% of the slum dwellers. It was pointed out by the Learned
Counsel that only after all these formalities, a Letter of Intent was
issued in favour of Ashtavinayak Cooperative Housing Society H
394 SUPREME COURT REPORTS [2008] 16 S.C.R.

A-: Ltd. (proposed) and Mis. Siddhivinayak Developers,
respondent Nos. 3 and 4 herein respectively, who on their own
expenses have arranged for the transit accommodation of the
slum dwellers in the said plot. Both Shri Savant, as well as Shri
Kharde, counsel for the respondents, pointed out that for last
8 two years, the slum dwellers are living at the expenditure of the
4th respondent M/s Siddhivinayak Developers. This is apart
from the fact that the slum dwellers, who were uprooted from .r
their tenements, were now living at the far off place, suffering
utmost on that account. Learned Senior Counsel Shri Savant,
C urged that all these proceedings under the Act would suggest
that the Letter of Intent was issued properly. Shri Savant also
pointed out and referred to the provisions of Section 83(3) of
the Act, to point out that while M/s. Parag Construction, the
appellant herein, came on the scene on 24.9.1981 under the
sale certificate dt. 21.9.1981, the Final Plot No. 228 had
D already vested in the Planning Authority, i.e., the Corporation
under Section 83(3) of the Act, the possession of which was
taken way back in 1980. He pointed out that once the Arbitrator
takes possession of the land and hands over the land to the
Planning Authority, such land vests absolutely in the Planning
E Authority, free from all the encumbrances. The Learned Senior
Counsel rightly argued that 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 petitioners/appellants. We
F have already dealt with this aspect earlier in the judgment and
have already held that.the land had vested into the Planning ·i~

Authority, particularly, after the sanction under Section 86, as
also under Section 88(a) of the Act.
25. The Learned Counsel also invited our attention to
G Section 88(b), whereby, all rights in the original plots, which
have been reconstituted, are determined and the reconstituted
plots became subject to the rights settled by the Arbitrator. We
have already approved the proceedings before the Arbitrator.
We have referred to all these contentions in order to appreciate
H as to whether the appellants can find fault with the proceedings
PARAG CONSTRUCTION v. STATE OF MAHARASHTRA 395
& ORS. [V.S. SIRPURKAR, J.]

under the SRA and more particularly, against the 3rd and 4th A
respondent herein. We do not find any reason to interfere with
any of those proceedings.
26. As a desperate attempt, Shri Divan filed an affidavit
on behalf of the appellants that appellants should be permitted
to develop the specified land in the Letter of Intent dt. 18.4.2006 B
as per the terms and conditions specified in the said Letter of
Intent, for which the petitioners/appellants shall deposit a sum
of Rs.1 crore or such amount as directed by this Court within 2
weeks from the date of the order with the Chief Executive
Officer (CEO) of respondent No. 5, SRA and that the CEO may C
be permitted to utilize the aforesaid amount to the extent
required to compensate respondent No. 4 towards any
expenses that may have been incurred by them, pursuant to the
Letter of Intent towards rehabilitation of the slum dwellers, upon
rendering of accounts by the said respondent. We will not go o
into this aspect, particularly, at this juncture, as we are
concerned with the legality or otherwise of the challenged
judgment.
27. This is apart from the fact that the said affidavit has
been met with stiff opposition from M/s. Siddhivinayak E
Developers, who claimed that they have already spent Rs.2.5
crores excluding the interest till date, towards the expenses of
formation of society, shifting of slum dwellers, rental of slum
dwellers, various security deposits and legal expenses in
defending present litigation and other expenses. It is asserted F
by the 4th respondent that they have been working on this
project for more than 3 years and under the circumstances, such
an order should be made by this Court. As has been stated
earlier, we refuse to go into this question. It will be for the parties
to negotiate, if they want to, subject to the approval of the SRA.
With these observations, the appeal is dismissed, but without G
any orders as to the costs.
B.B.B. Appeal dismissed.