“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6712 OF 2008 (Arising out of SLP(C) No. 16825 of 2007)

Parag Construction …. Appellant

Versus

State of Maharashtra & Ors.         …. Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. A Division Bench Judgment passed by the Bombay 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 Final Plot No. 22A, 22B and

22C of the Town Planning Scheme (hereinafter referred to as ‘TPS’ for

short) of Borivali (East).  In this Writ Petition, the following prayers were

made:

“(a) that  this  Hon’ble  Court  be  pleased  to  issue  a  writ  of Certiorari or a writ in the nature of certiorari or any other

1

appropriate writ, order or direction under Article 226 of the Constitution  of  India  calling  for  the  records  of  the proceeding adopted by the Respondent  No.  7  under the Provisions  of  Maharashtra  Regional  Town  Planning  Act, 1966 in respect of  land bearing final plots 22A, 22B and 22C  admeasuring  13980  sq.  yards  of  Town  Planning Scheme Borivali-II, Borivali (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 7 for the said land in year 1996;

(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  directing the Respondents to forthwith stay their 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  letter  dt. 18.04.2006 annexed as Exh. ‘F’ hereto and set aside the permission granted in the Letter of Intent issued in favour of the Respondent No. 4;

(c) that  this  Hon’ble  Court  be  pleased  to  restrain  the Respondent No. 2 from taking action pursuant to notice dt. 21.08.2006 issued to the Petitioners/appellants as Exh. ‘P’ hereto;

(d) pending the hearing and final disposal of the Petition this Hon’ble Court be pleased to grant interim order restraining the Respondents, their servants, subordinates, officers and agents from in any manner acting upon the Letter of Intent dt. 18.04.2006 issued by the Respondent in favour of the Respondent No. 4 for development of the land mentioned therein under Slum Redevelopment Scheme:

(e) Not relevant.

2

(f) Not relevant. (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 7B and bearing Survey Nos. 88 and 89, (2) Final

Plot No. 13A, bearing Survey No. 8 admeasuring 22,635 sq. yards and

(3) Final Plot No. 22A, 22B 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, 22B and 22C 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 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 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-II  was acquired by the

Land Acquisition Officer and they had been paid a sum of Rs.2,80,984/-

3

by way of compensation for the said acquisition.  They further pointed

out that there was some litigation in respect of land bearing Final Plot

No. 7B, 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-II was used by the petitioners/appellants for construction of a

building, namely, ‘Ghanshyam Towers’ and that the present petition was

in respect of part of  land which bears Final Plot No. 22A, 22B 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 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  short)  to

furnish the information.  They claimed to have obtained a copy of the

Letter of Intent dt. 18.4.2006, which was in favour of 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 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

4

Corporation  of  Greater  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  the

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/appellants  had already raised objections vide letter  dt.

1.6.2006  and  thereafter,  also  by  letter  dt.  24.7.2006.  The

petitioners/appellants  also  pointed  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 suit as

part  of  Final  Plot  22B (Pt.)  in  para 2  and in  prayer clause (c)}  was

already acquired under the provisions of Maharashtra Regional Town

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 Corporation except the Final Plot No.

22A,  which was already allotted  to  one Shri  Anant  P.  Velkar  and 6

others.  They averred 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. 22B and 22C were allotted to the Corporation after the

acquisition  and  the  Corporation  had  paid  the  compensation  of

5

Rs.91,214.35 to Shri Anant P. Velkar and 6 others, which could not have

been given to them.  The petitioners/appellants, therefore, challenged

the entire action of the acquisition of the land bearing Final Plot No. 22B

and 22C of TPS of Borivali-II 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.   

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  all  the  further  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

Court.  The petition was opposed by the SRA, the Corporation, as also

by the Arbitrator, so also by 2 other respondents, 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 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

6

laches.  It was further pleaded that the concerned land had become a

part and parcel of the TPS of Borivali-II 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 compensation thereof was also

paid  to  the owners  after  its  acquisition  and,  therefore,  there was no

question of the petitioners’/appellants’ right, title or interest in the land.

It was pointed out that even prior to the publication of TPS of Borivali-II,

an Arbitrator was already appointed under Section 72(1) of the Act and

in pursuance of that, ultimately a scheme was finalized and published by

him,  which  came  into  force  from  15.4.1996  and,  therefore,  the

petitioners/appellants could not claim any interest in that land.

9. The High Court traced the history and found on the basis 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 land was original  plot  No.  22,  which

ultimately became Final Plot Nos. 22A, 22B and 22C.  It was found that

Final Plot No. 22B 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 Court found that the arbitration proceedings were

initiated  by  notification  No.  TPB-4762-M  dt.  18.10.1962  and  one

7

Mr. J.G.  Keskar  was appointed as Town Planning Officer.   A public

notice dt. 3.1.1963 was also given and hearing was also conducted by

the Arbitrator on 29.4.1972.  After Mr. J.G. Keskar, Mr. K.S. Keswani

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  hearing dt.  22.4.1975 were signed by all  the  interested parties.

After Mr. Keskar, Mr. Keswani dealt with the matter as an Arbitrator and

thereafter, the final decision was issued by Mr. V.D. Kulkarni.  Firstly,

the draft Scheme was finalized on 07.07.1978 and then the final scheme

was  submitted  by  Mr.  G.D.  Karkare,  the  Arbitrator  to  the  State  of

Maharashtra on 15.4.1983 for final sanction.  It was so sanctioned by a

Government Notification dt. 7.3.1996 w.e.f. 15.4.1996.  The High Court

noted that the occupants of the structures were also noticed and they

had also appeared on 27.10.1975 and were heard in the matter.  The

High Court found that originally, the TPS of Borivali-II was sanctioned on

27.1.1931 and came into force w.e.f. 15.3.1931.  The first variation of

the  TPS  was  initiated  by  Borivali  Municipality  on  11.9.1956  and  on

1.2.1957, the area of Borivali Municipality merged in Bombay Municipal

Corporation  (‘the  Corporation’  herein)  and  on  29.2.1960,  the

Corporation  decided  to  vary  the  principal  scheme.   The  State

Government had also authorized the Collector of Bombay and 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

8

names  have  come  earlier  in  this  judgment  and  ultimately,  the  last

Arbitrator Mr. V.D. Kulkarni had finalized the draft scheme on 7.7.1978.

The  High  Court  noted  that  the  matter  was  also  dealt  with  by  the

Appellate  Tribunal,  which  decided  the  appeal  on  4.11.1982  and

thereafter, the then Arbitrator Mr. G.D. Karkare submitted the Scheme to

the State Government on 15.4.1983 after 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 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 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 judgment in this Suit,

that  the  petitioners/appellants  allegedly  purchased  the  property.

However, even prior to this, the land in question got divested as per the

TPS of Borivali-II of the Corporation and it was only then, that Shri Anant

P.  Velkar  and  6  others  were  allotted  Final  Plot  No.  22A  and  also

accepted the compensation in lieu of the entire plot No. 22.  The High

9

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, 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, 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  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,  22B 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  to  develop the  property.   In

10

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

proceedings.   He also pointed out  that  the petitioners/appellants had

undertaken development and construction of plot No. 7B 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 that a commercial building known as

‘Ghanshayam Towers’ was constructed by the petitioners/appellants on

Final Plot Nos. 7-A1 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 place of Velkar & Family in respect

of plot No. 22B 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. 22B and 22C, incorporated under Section 88 of the Act.  The

Learned Senior Counsel suggested 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 relied

11

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 Court Receiver, there was no question of

the  petitioners/appellants  not  being given any notice  and hence,  the

subsequent land acquisitions must fail, thereby, there would further be

no  question  of  the  vesting  of  the  property  in  the  Corporation.   The

Learned Senior Counsel also took exception to the huge delay on the

part of the State Government to sanction the Scheme, which was about

13 years.  The Learned Senior Counsel, therefore, assailed the sanction

to the proposed Scheme by the Arbitrator, also.  The Learned Senior

Counsel also suggested that there was no lawful vesting of plot Nos.

22B and 22C in the Corporation, even under Section 83 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.  22B  was  ever  taken  by  the  Corporation.   The  Learned  Senior

Counsel also assailed 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 receipts, which were

filed by the Corporation, were also seriously disputed and ultimately, the

12

Counsel argued that unless the Scheme was finally sanctioned by the

State  Government  under  Section  86,  there  could  be  no  finality  with

respect to the TPS.  In short, the contention was that since there was no

vesting of the land under Section 83(3) and since before the alleged

vesting  on  15.4.1996,  the  property  was  purchased  by  the

petitioners/appellants  from the  Court  Receiver  in  whose custody  the

property was, the petitioners’/appellants’ rights could not be jeopardized.

Lastly, it  was contended that respondent No. 3 and 4 had no rights,

whatsoever, as they had no title and, therefore, the Letter of Intent dt.

18.4.2006  was liable  to  be  withdrawn.   We  were  taken through  the

various provisions of  the Act.   While  commenting on the High Court

judgment, the Learned Senior Counsel contended that the High Court

had  ignored  the  principles  of  natural  justice,  secondly,  it  had  given

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  contesting  respondents  like

Ashtvinayak Cooperative Housing Society Ltd.,  SRA, the Corporation

and  the  Arbitrator  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 a

notification in 1996.  The respondents also took us through the various

13

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 cost of repetition and also consider the

various provisions of the Act and the schemes thereunder.

13. The disputed land is, undoubtedly, a part of the TPS Borivali-II,

which was sanctioned on 27.1.1931.  On 26.9.1962, Draft TPS Borivali-

II, 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, 22B

& 22C.  The Final Plot No. 22A was allotted to Anant P. Velkar and six

others, who were the original owners of the property, Final Plot No. 22B

was 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 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. 22B.  We find from the record

that Mr. Vakil, Advocate, appearing on behalf of the Velkar Family was

agreeable to possession of Final Plot No. 22B 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

14

Nos. 22A, 22B 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.

22B and 22C respectively.    In  the  Civil Suit,  a  consent  decree  came

to be  filed  on  27.6.1978 and this  decree also  included the disputed

properties,  namely,  all  the three plots. A Court         Receiver was

appointed  for  effecting  the  partition  as  per  respective  share  of  the

parties to the Suit. An order is found on the record of the Civil Suit to the

effect that in the event, the Commissioner could not conveniently allot

the 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 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), being Final Plot No. 22B.

The Arbitrator took the possession of the Final Plot No. 22B (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

15

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 document or evidence to show any follow up action,

suggesting the taking of possession of Final Plot No. 22B or 22C on

behalf  of  the  petitioners/appellants  from  the  Court  Receiver.   Some

persons  had  filed  the  appeals  before  the  Appellate  Tribunal  on

4.11.1982, but nothing happened to that.  Ultimately, on 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 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 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/appellants in

the Civil  Court,  being Civil  Suit  No.  3233 of  2006 for  cancellation of

16

above Letter  of  Intent  and it  was then that  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. 22B and 22C stood allotted to the Corporation, for which

the compensation of Rs.91,214.35 was paid to the Velkar Family.  As

has already been suggested, the Trial  Court did not grant injunction,

wherein,  the  claim  was  made  by  the  petitioners/appellants  that  the

plaintiff’s  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.  

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 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

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

17

picture only on the day when they purportedly purchased the property

involved in the Suit on 24.9.1981, which was way beyond the earlier

mentioned  date  of  8.2.1980,  when  the  notices  were  already  issued

under  Section  83(3)  for  taking  possession.   Learned  Counsel  Shri

Shishodia, as well as Shri V. Savant and Shri Kharde, appearing for the

respondents  asserted  before  us  that  on  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 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  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 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.

18

16. On this  backdrop when we see the history of  the proceedings

under the Act, it is clear that Shri Keskar, who was 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 Appellate Tribunal against the

Draft Scheme on 4.1.1982 and thereafter, Shri G.D. Karkare, who 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 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 from the certificate

of  the  Court  Receiver,  the  petitioners/appellants  was  in  fact,  put  in

possession on 13.12.1983 by the 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-A3, the

petitioners/appellants  had  constructed  a  building  called  ‘Ghanshyam

Towers’.  So also, in respect of a Final Plot No. 7B, there was some

dispute which was settled by the consent terms dt. 23.10.2002 before

19

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/appellants  and  there  is  nothing  to

disbelieve  that  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.22B and 22C.  The

prayer in civil suit related to Final Plot No.22B (Pt.) 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 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:-

“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 draft scheme for  a  public  purpose,  the  Planning  Authority  shall make  an  application  through  the  Arbitrator  to  the 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 the Planning Authority to enter on such land for the purpose of executing any of such works, direct  the

20

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.

Provided that, no such direction shall be made without the Arbitrator giving a hearing to any person or Planning Authority affected by such direction, and considering the report of the Arbitrator in that behalf.

(3)  The  Arbitrator  shall  then  give  a  notice  in  the 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 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 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 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 petitioners/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 Receiver.  Indeed it could not have been given, for the

simple reason that the possession was already taken earlier in the year

21

1980 under the notice to Velkar 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 Velkar Family were properly heard and the Arbitrator

had proceeded perfectly in tune with the provisions of the Act.  We do

not have any 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 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

amended by a mutation entry dt. 23.1.1986, which showed the name of

the petitioners/appellants as the holders in place of 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 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.

Under  the  circumstances,  there  was  no  question  of  the  ownership

and/or possession being transferred to the petitioners/appellants by the

court receiver.  If that is so, the amended property cards of City Survey

22

Office  loose  all  the significance.   It  is  needless  to  mention  that  this

contradiction  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  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 available for

inspection to the general public.  Under Section 61, 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 reconstitute the plots, while Section 68 speaks

about the power of the State Government to sanction the Draft Scheme.

Under sub-Section (2), though there is a limitation provided, Section 68

(2) gives power to the State Government to extend the time within which

the Draft Scheme can be sanctioned.  Section 69 imposes restrictions

on 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 declaration.  Section 72 provides for the Arbitrator, who

is to be appointed immediately after the publication of the Draft Scheme.

23

Section 72(3) deals with the duties of such 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 the possession.  In the wake of all these provisions, we

have examined the records at the request of Shri Shyam Divan, 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

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 advance possession under Section 86

(2) and 83(3) and had also forwarded a draft Scheme.  

19. Lastly, Shri Divan tried to argue that the State 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 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 the

unreasonable  period  of  13  years.   We  appreciate  the  argument,

however, considering the fact that the area is from a very busy locality

like Borivali, Mumbai, the legal complications because of the pending

24

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 Shri Divan regarding

the breach of Section 82(2), as also, Rule 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  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 be read.  It will be perfectly

open for  the  petitioners/appellants  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 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  filed,  after  the  injunction  was  refused  to  the

25

petitioners/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 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 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 petitioners/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

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 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 that the High

Court  was  right  in  dismissing  the  Writ  Petition  on  merits,  more

particularly, holding that the petitioners/appellants could not assert their

26

entitlement to the notice, particularly, in view of the finalized proceedings

of Arbitration under the Act.   

21. We must also take into consideration the argument on the part of

the respondents, that the petition was hopelessly 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  believe  that  the

petitioners/appellants asserting their title over the land and who are in

the construction business themselves as the builders, could not and did

not have the idea about the Scheme dt. 15.4.1996. It is also surprising

that the petitioners/appellants have come to know about the Scheme

etc. only when 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

of which was sanctioned as back as on 26.9.1962.  We find that the

TPS  was  finalized  on  7.7.1978  and  right  from  1972  to  1978,  the

proceedings  before  the  Arbitrator  were  in  progress.   If  the

petitioners/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 petitioners/appellants would have no idea

about  the  state  of  affairs  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

27

the petitioners/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 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

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 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 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

notification, if the petitioners/appellants came on 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 ultimately filed the petition in the year 2006.  We

28

are  also  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 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 petition had no merits and was rightly dismissed.

22. However, the matters did not stand there, as at the end of the

arguments,  Shri  Divan  also  asserted  that  respondent  No.  3  herein

Ashtavinayak  Cooperative  Housing  Society  Ltd.  (proposed),  as  also

respondent No. 4 M/s. Siddhivinayak Developers did not have any locus

in  the matter  and could not  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.  

23. In  view of  several  slum dwellers  in  Mumbai  City  and  Mumbai

Suburban Districts, since the slum dwellers had no basic amenities, the

Government of Maharashtra decided to redevelop the slums and framed

Development Control Regulation No. 33(10) (hereinafter called ‘DCR’).

The  Maharashtra  Government  also  amended  the  provisions  of

Maharashtra Slum Area (I.C & R) Act, 1971 and inserted a chapter 1A

therein.   SRA was established under Section 3A of the Slum Act for

29

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 by these amendments, the powers of Planning Authority

were given to SRA for implementation of Slum Rehabilitation 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.   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 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  hutments,

amenities, Floor Space Index available and number of tenements to be

constructed.  Annexure 2 to this application 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  the

proposed Slum Rehabilitation  Scheme etc.   The said  Annexure 2  is

required to be certified by the land owning authority, in this case, the

Corporation.   Annexure  3  prescribes  the  assessment  of  financial

capability of the Promoter.  SRA scrutinizes the proposal submitted by

the Chief Promoter and Architect and then issues a Letter of Intent.  

30

24. It is pointed out by the Learned Counsel for the SRA that in this

case, respondent Nos. 3 and 4 submitted the proposals for Final Plot

No. 22B 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 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 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.  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 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  Ltd.  (proposed)  and  M/s.

31

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 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 their tenements, were

now living at the far off place, suffering utmost on that account.  Learned

Senior Counsel Shri Savant, 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. 22B had 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  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 have already dealt with

this aspect earlier in the judgment and have already held that the land

32

had vested into the Planning 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 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  as  to  whether  the  appellants  can  find  fault  with  the

proceedings under the SRA and more particularly, against the 3rd and 4th

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 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 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

33

by the said respondent.  We will not go 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 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 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 any orders as to the costs.

………………………………..J. (Lokeshwar Singh Panta)

………………………………..J. (V.S. Sirpurkar)

New Delhi; November 19, 2008.

34