A R BHUJBAL SPECIAL LAND ACQUISITION OFFICER MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY BOMBAY Vs. SAM HIRING CO

JUDGEMENT

(1.) HAJI Abdulla Noor Mohammad Machiswala Charitable Trust was the owner of two plots of land situated at DLima Street, E Ward, of Mazgaon Division. On the plot of land admeasuring approximately 162. 21 sq. meters building bearing No. 142/146 was standing, while on the other plot of land admeasuring approximately 1162. 21 sq. meters, building bearing No. 385 was constructed. Both the buildings were in dilapidated condition and required heavy and major repairs. The buildings were used for the purpose of residence and buildings were liable for payment of repairs and re-construction cess in accordance with the provisions of Section 82 of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as the "act" ). Adjoining to Building No. 385 on the plot of land admeasuring 1162. 21 sq. meters, certain sheds and garages were constructed and they were in occupation of respondent No. 1 which is partnership firm, and is used for the purpose of manufacturing compressors. The sheds in which the partnership firm manufacturers compressors is separately assessed for house property tax by Municipal Corporation of Greater Bombay.

(2.) THE Board constituted under the Act is required to carry out repairs in respect of buildings on which building repairs and re-construction cess is levied. Section 83 (j) of the Act provides that the buildings which are exclusively used for non-residential purposes are not liable for payment of repairs and re-construction cess. Section 88 requires the Board to undertake structural repairs on satisfaction that any building which is occupied by a person is in ruinous or dangerous condition and is likely to fall unless structural repairs are carried out and the building is rendered fit and safe for habitation. Sub-section (3) of Section 88 of the Act provides that if the Board is of opinion that the cost of structural repairs to a building would exceed certain amount per square metre, then the Board shall issue a certificate to that effect. The Executive Engineer of Bombay Housing and Area Development Board issued such certificate on January 25, 1980 in respect of the buildings standing on two plots of lands. The certificate recites that the cost of the structural repairs to the buildings exceeds Rs. 120/- per square metre and the buildings are not capable of being repaired to render fit and safe for habitation at reasonable expenses. On July 16, 1986, the Deputy Chief Engineer (Re-construction) of Housing Board addressed letter to the Secretary to the Government of Maharashtra proposing that the land admeasuring 1324. 42 sq. metres with existing buildings in property bearing City Survey Nos. 55 and 56 at Mazgaon Division should be acquired for constructing a new building on the same site. The proposal sets out that the plans have been approved by City Engineer and the scheme is approved by the Board and the cost of the proposed building is estimated to be Rs. 80. 70 lakhs. The proposal further recites that the number of occupants in the existing building will be accommodated in new building and in addition, accommodation could be provided for 120 residential and 22 non-residential tenaments. The proposal also sets out that portion of the building No. 385 has been demolished upto first floor level and similarly Building No. 145 has been demolished. The State Government was requested to accord approval to the proposal in accordance with sub-section (1) of Section 93 of the Act. The proposal covers the area of both the plots and the sheds in which respondent No. 1 firm is carrying on manufacturing activities also falls within the area proposed to be acquired. The Government of Maharashtra by resolution dated September 10, 1986 passed in exercise of powers of sub-section (1) of Section 93 of the Act gave approval to the proposal submitted by the Housing Board for acquisition of land alongwith existing buildings thereon. The land to be acquired admeasures approximately 162. 21 sq. metres and which covers the area of Plot No. 55 and land admeasuring 1162. 21 sq. metres which covers the entire area of Plot No. 56. The sheds which are in occupation of respondent No. 1 firm and used for manufacturing purposes fall within the boundaries of Plot No. 56.

(3.) IN pursuance of the resolution passed by Government of Maharashtra, the Special Land Acquisition Officer served notice under sub-sections (3), (4) and (5) of Section 93 of the Act on the occupants of the buildings as well as on respondent No. 1 who are in occupation of sheds adjoining the building on Plot No. 56. On February 27, 1987, the partnership firm lodged objection to the proposed acquisition before the Special land Acquisition Officer. The objections were that the sheds in which the firm is carrying out manufacturing activities is not liable to pay cess as the sheds are used only for non-residential purpose and sheds are separately assessed by the Municipal Corporation and, therefore, it is not open to acquire the land covered by the sheds in exercise of powers under Section 76 of the Act. The Special Land Acquisition Officer gave personal hearing to the partners of the firm on March 30, 1987 and thereafter invited response from the Executive Engineer of the Board in regard to the objections filed. The Executive Engineer by letter dated May 22, 1987 informed that the shed erected by the partnership firm is on City Survey No. 56 and the area covered is wrongly mentioned by the Special Land Acquisition Officer as 18. 48 sq. metres and should be 98. 48 sq. metres and the compensation should be determined accordingly. The Executive Engineer found that the shed is included in the whole building which is on City Survey No. 56. The Special Land Acquisition Officer passed order on July 6, 1987 rejecting the objection raised by the firm by holding that combined scheme of reconstruction on plots bearing City Survey Nos. 55 and 56 is prepared and the sheds in occupation of respondent No. 1 firm are part of City Survey No. 56. The plot bearing City Survey No. 56 was originally reserved for parking but was de-reserved for residential purpose by the Government of Maharashtra. In pursuance of rejection of objection, the Special Land Acquisition Officer published order in exercise of powers under sub-section (1) of Section 93 of the Act declaring that with effect from August 4, 1987, the acquisition proposal stands sanctioned and will become operative. The effect of the declaration under sub-section (5) of Section 93 is that the lands with the existing buildings thereon vest absolutely in the Board and free from any encumbrances.