Point of Law: Land Acquisition - Compulsory acquisition of land - Quash of order – Acquiescence would be a conduct where a party is sitting by when another is invading his rights and acquiescence must be such as to lead to inference of a licence sufficient to create a new right in defendant, on other hand, waiver is an intentional relinquishment of a right.

JUDGMENT :

Ujjal Bhuyan, J.

Heard Mr. Jagtiani, learned senior counsel for the petitioners;

Mr. Takke, learned AGP for respondent Nos.1, 2 and 7-State; and Mr. Lad, learned counsel for respondent Nos.3 to 6-MHADA.

2. By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of order dated 21.12.2006 issued by the Special Land Acquisition Officer, Maharashtra Housing and Area Development Authority, Mumbai i.e., respondent No.6 and further seeks a direction to the respondents for release of the entire property of the petitioners from acquisition.

3. Be it stated that vide order dated 21.12.2006, respondent No.6 in exercise of powers conferred by sub-section (5) of section 93 of the Maharashtra Housing and Area Development Act, 1976 (briefly “the MHADA Act” hereinafter) sanctioned the acquisition proposal forwarded by the Mumbai Building Repairs and Reconstruction Board for compulsory acquisition of the land described in the schedule thereto.

4. Before adverting to the impugnment, it would be apposite to briefly set out the relevant facts as pleaded as well as the orders passed by this Court from time to time in the present writ proceeding.

4.1. Petitioner No.1 is a public charitable trust duly registered under the erstwhile Bombay Public Trusts Act, 1950, having its office at Mumbai. Petitioner No.2 is a private limited company incorporated under the provisions of the Companies Act, 1956 and having its office at Mumbai.

4.2. Sometime in the year 1914, petitioner No.1 by a registered deed of conveyance had purchased the properties bearing C.S.Nos.641 and 642 of Mazgaon Division admeasuring near about 4721.60 sq.mtrs. In that year itself, petitioner No.1 constructed certain buildings on the said property and further constructed three other buildings on the said land in the year 1922. Be it stated that all these structures comprised of ground plus two floors.

4.3. Petitioners have stated that altogether six structures were constructed on the said plot of land having municipal house Nos.289/299, 299A, 299B, 299C, 299D and 299E. All the buildings together are known as ‘Botawala Chawl’ having the address at R. Bhogale Marg, Mazgaon, Mumbai (briefly referred to hereinafter as the “petitioners’ property”). According to the petitioners there are about 423 occupants residing in the six buildings (petitioners have furnished a list of such occupants/tenants which has been annexed to the writ petition).

4.4. Since all the buildings on the petitioners’ land were constructed prior to 01.04.1940, Bombay Municipal Corporation (BMC) categorized the said buildings as ‘A-cess category’ and issued corresponding certificates to that effect.

4.5. On 19.08.2000, Mumbai Building Repairs and Reconstruction Board (briefly “the Board” or alternatively “respondent No.5” hereinafter) issued certificate in respect of building No.299A under section 88(3) of the MHADA Act inter alia certifying that the said building was not capable of being repaired to render it fit for habitation within reasonable expenses and therefore the said building was not considered for repairs under the MHADA Act. Similar certificate dated 20.06.2001 was issued by respondent No.5 in respect of building No.299B. This was followed by another certificate dated 02.07.2003 issued by respondent No.5 under section 88(3) of the MHADA Act regarding building No.289/299.

4.6. The 423 occupants residing in the six buildings on the petitioners’ property formed a co-operative housing society and requested petitioner No.1 to develop the property under Development Control Regulation (DCR) No.33(7) of the Development Control Regulations for Greater Mumbai, 1991. It is stated that 319 occupants out of 423 occupants gave written consent in favour of petitioner No.1 for development of the said property which is more than 70% of the total number of occupants, thus fulfilling one of the essential requirements of that provision.

4.7. Despite the aforesaid development, respondent No