Summary
A slum developer sought a mandamus requiring the State to acquire, under Section 14 of the Maharashtra Slum Areas Act, 1971, a 2,005 sq. m. plot reserved as a recreational ground, relying on a 2015 order of the CEO-SRA. Meanwhile the owner had sold the plot to another developer. The Supreme Court refused the mandamus: the acquisition power is subject to the owner's preferential right to redevelop, and it was too late to act on the 2015 order. It directed issue of the developer's occupation certificate on handover of a separate 2,700 sq. m. RG plot, held the developer fully compensated through sale FSI, and barred any construction on the disputed plot, which must remain a recreational ground.
Issues
- Whether a mandamus should issue to the State Government to acquire the subject property under Section 14(1) of the Slum Act in terms of the CEO-SRA's order dated 26.02.2015.
- Whether the appellant is entitled to a full Occupation Certificate for its final sale building on handing over the 2,700 sq. m. portion reserved as Recreational Ground.
- Whether the appellant has been fully compensated by grant of equivalent sale area/FSI for rehabilitating the slum dwellers of the subject property.
Provisions considered
- Section 14 read with Section 3D(c)(i), Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971Under Section 14 the State may acquire land needed by the authority to redevelop a slum area, after calling on the owner to show cause. Following Tarabai Nagar Co-op. Hsg. Society, this power is subject to the owner's preferential right to redevelop, so no mandamus to acquire could issue. (¶¶ 22, 23, 54, 63, 64, 70, 71, 72, 77)
- Sections 3B and 4, Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971The Act is beneficial legislation for slum dwellers. Section 4 provides for declaring slum areas, and under Section 3B the SRA prepares a Slum Rehabilitation Scheme that is deemed to be Development Control Regulations under the MRTP Act. (¶¶ 58, 59, 60)
- Section 2(19) and second proviso to Section 152, Maharashtra Regional and Town Planning Act, 1966The SRA is a Planning Authority for slum rehabilitation areas, and specified planning powers may be delegated to the CEO-SRA. (¶¶ 56, 57, 61)
- Regulation 33(10) read with Appendix IV, Development Control Regulations for Greater Mumbai, 1991Slum redevelopment may be undertaken by owners, developers or slum dwellers' societies with 70% consent of slum dwellers. In return for rehabilitation, the developer earns incentive FSI usable in a free-sale component. (¶¶ 61, 62)
Held
- The State's power to acquire land under Section 14 read with Section 3D(c)(i) of the Slum Act is subject to any preferential right of the owner to redevelop. Following Tarabai Nagar Co-op. Hsg. Society and Saldanha Real Estate, acquisition cannot proceed while that right subsists and the owner has not been invited to submit a scheme. (¶¶ 63, 64, 72, 77)
- A High Court interim order barring new rehabilitation schemes on land reserved for open spaces such as recreation grounds operated until 01.03.2022, so nothing could be done about the subject property until then. The owner's earlier MOU with the appellant's predecessor had been terminated and the suit for its specific performance dismissed. The owner then sold the plot to respondent No. 4, whose scheme proposal was accepted as there was no other proposal for it, and the appellant sought acquisition only in July 2022. It was too late to direct acquisition on the basis of the 2015 order, and the mandamus was refused. (¶¶ 65, 66, 67, 68, 69, 70, 71)
- As the SRA accepted that the appellant was entitled to an Occupation Certificate for its final sale building, subject to handing over the 2,700 sq. m. portion reserved as Recreational Ground, the SRA was directed to issue it within four weeks on that handover. (¶¶ 73, 74, 77)
- The 34 slum dwellers on the subject property were directed to be treated as Project Affected Persons, and the appellant was compensated with equivalent sale-component FSI, which it had already used. The LOI dated 28.09.2017 also showed that the subject land was not part of its scheme. The appellant was therefore fully compensated. (¶¶ 75, 77)
- Recording the SRA's statement that no construction would be permitted, the Court directed respondent No. 4 and its successors not to build anything on the subject property, which shall be used only as a Recreational Ground. (¶¶ 76, 77)
Result
Appeal disposed of: prayer for mandamus to acquire the subject property refused; SRA directed to issue the Occupation Certificate for the final sale building within four weeks on the appellant handing over the 2,700 sq. m. RG portion; appellant held fully compensated; respondent No. 4 and its successors restrained from any construction on the subject property, which shall remain a Recreational Ground; parties to bear their own costs.