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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO. 3 OF 2012

IN

WRIT PETITION (C) NO. 342 OF 1999

KAMLESH C. SHAH & ORS. ...PETITIONERS

Vs.

STATE OF MAHARASHTRA AND ORS. ...RESPONDENTS

J U D G M E N T

ALTAMAS KABIR, CJI.

1.Chapter VIII-A, which was introduced into the

the Maharashtra Housing and Area Development Act,

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1976, hereinafter referred to as "the 1976 Act", in

1986, pertains to the acquisition of "cessed

properties" for co-operative societies of

occupiers. Soon after its introduction, its

validity was challenged in several cases, including

the present writ petition. The present writ

petition was tagged with W.P. No. 934 of 1992,

another case pending in this Court on the same

issue. In view of the questions raised in the writ

petitions, the matter was initially referred to a

Bench of 7-Judges, but, thereafter, by order dated

20.02.2002, the matters have been referred to a

Bench of Nine-Judges and are still pending

decision.

2.Since no final decision seems to be in the

offing, the writ petitioners have filed IA No. 3 of

2012, for interim reliefs.

Page 3 3

3. The subject matter of the present petition is a

property known as "Chhotalal Niwas" situated at

Laburnam Road, Gamdevi, Mumbai - 400007, comprising

a plot of land bearing Survey No. 7A/492, Malabar

Cumbala Hill Division, Mumbai. Treating the said

property as a "cessed property", within the meaning

of Section 103A of the 1976 Act, the same was

acquired by the Maharashtra Housing and Area

Development Authority (MHADA), as per Section 103B

of Chapter VIII-A of the 1976 Act.

4.The apparent reason for the introduction of

Chapter VIII-A into the 1976 Act appears to be the

refusal of the owners of the buildings to effect

repairs thereto on account of the freezing of rents

from 1st September, 1940. The return which the

landlord could reasonably expect from time to time

having been frozen, a stage was reached when where

rents were no longer sufficient to cover even the

taxes payable for the said properties. As a

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result, the landlords stopped effecting repairs to

the tenanted properties which resulted in rapid

deterioration of the buildings. Realizing the

gravity of the matter, the Legislature enacted "the

Building Repairs and Reconstruction Board Act,

1969", which enabled levy on buildings in Greater

Bombay as the Legislature felt that from the

recovery of the cess in addition to the

contribution of substantial amounts to be made by

the State Government and the Bombay Municipal

Corporation, it might be possible for the Board

constituted under the Act to carry out structural

repairs to the old buildings to make them safe for

habitation. The Legislature also felt that in case

structural repairs did not improve the condition of

the building, then the Board could undertake

reconstruction of the building by pulling down the

dilapidated structure and raising a new structure

thereupon.

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5.On 26th February, 1986, the Governor of

Maharashtra issued Ordinance No. 1 of 1986 to amend

the 1976 Act with effect from 26th February, 1986.

The Statement of Objects for enactment of the

amendment indicates that there are 19,642 cessed

old and dilapidated buildings in the island city of

Bombay and, out of these, 16,502 buildings were

constructed prior to 1st September, 1940, and the

majority of the said buildings are about 80 to 100

years old. To make things worse, the freezing of

the rents from 1st September, 1940, made it quite

impossible for the owners to look after or maintain

the buildings, which is one of the reasons for the

introduction of Chapter VIII-A in the 1976 Act.

6.Section 103A of the 1976 Act, which was

introduced in 1986 as part of Chapter VIII-A, inter

alia, provides that the said Chapter would come

into force on and from the commencement of the

Maharashtra Housing and Area Development (Second

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Amendment) Act, 1986 and would apply to all cessed

buildings, which had been erected before the 1st of

September, 1940, and were classified as belonging

to Category 'A' under Sub-section (1) of Section

84.

7.Section 103B, which contains the raison d'etre,

for the introduction of Chapter VIII-A into the

1976 Act, inter alia, provides for acquisition of

cessed property for co-operative societies of

occupiers. The scheme envisaged in the said

Section is that notwithstanding anything contained

in any of the provisions of Chapter VIII or any

other law for the time being in force or in any

agreement, contracts, judgment, decree or order of

any court or tribunal to the contrary, a co-

operative society formed or proposed to be formed,

under the provisions of the Maharashtra Co-

operative Societies Act, 1960, by not less than 70%

of the occupiers in a cessed building, may, by

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written application, request the Board to move the

State Government to acquire the land together with

the existing building thereupon and where the owner

of the building did not own the land underneath or

appurtenant to such building, but held the same as

a lessee or licensee, then to acquire the right or

interest of such owner or person in or over such

building or land or both as lessee or licensee

together with the existing building, in the

interest of its better preservation or

reconstruction of a new building in lieu of the old

one. Sub-section (2) of Section 103B provides that

on receipt of the application made under Sub-

section (1), the Board shall, after due

verification and scrutiny, approve the proposal if

it considers that it is in the interest of better

preservation of the building or to be necessary for

reconstruction of a new building and shall direct

the co-operative society, whether registered or

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proposed, to deposit with the Board, within the

periods specified by it in that behalf, 30% of the

approximate amount that would be required to be

paid to the owner in that behalf. Sub-section (4)

of Section 103B provides that if, on receipt of an

acquisition proposal under Sub-section (3), the

State Government is satisfied about the

reasonableness of the proposal, it may approve the

same and communicate its approval to the Board. On

receipt of the government approval, the Board under

Sub-section (5) was required to forward the

acquisition proposal to the Land Acquisition

Officer for taking further proceedings in the

matter.

8.An important element of Section 103B is Sub-

section (5A), which provides that when acquisition

proceedings have been initiated under Sub-section

(5) and a notification under Sub-section (5) of

Section 93 has been published, the Collector would

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take and hand over the possession of the acquired

property to the Board in accordance with the

provisions of Sub-section (6) of Section 93. Sub-

section (6) provides that after the land is vested

absolutely in the Board on behalf of the Authority,

free from all encumbrances, and the amount to be

paid to the owner is determined, the Board shall

require the society to get itself registered, if it

is not registered, till then and to deposit the

remainder of the amount to be paid to the owner

with the Land Acquisition Officer. The Board is

required simultaneously to pass on the amount

deposited by the co-operative society to the Land

Acquisition Officer, who shall thereupon make

payment of the amount for acquisition or deposit

the same in the Court, as provided in Section 46.

Sub-section (7) provides that, subject to the

provisions of Sub-section (6), the Authority shall

convey the land acquired under this Section to the

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co-operative society of the occupiers thereof with

its right, title and interest therein and execute,

without undue delay, the necessary documents in

that behalf.

9.As is clear from the above, the scheme

introduced by Chapter VIII-A of the 1976 Act was

intended to protect tenants who were compelled to

reside in buildings which had been constructed

prior to 1940, and had become dilapidated as no

repairs were effected thereto. The landlords were

not keen to repair the buildings as the rents were

very low and often the taxes payable for the

property were higher than the rents collected from

the tenants. The scheme provided for the formation

of cooperative societies by tenants of such

buildings, who were required to deposit 30% of the

compensation payable to the owner, whereupon the

lands would stand acquired and would vest in the

Mumbai Building Repair and Reconstruction Board for

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the limited purpose of ensuring that after

acquisition, the balance 70% would be deposited by

the tenants, consequent whereupon, MHADA under

Section 103B(7) was bound to convey the land to the

cooperative society for construction of the

building.

10.Appearing for the writ petitioners, Mr. K.K.

Venugopal, learned Senior Advocate, submitted that

the very fact that MHADA was required to convey the

land to the cooperative society for constructing

the building, establishes beyond doubt that the

vesting in the Board amounted to holding the

property in trust for and on behalf of the tenants

forming the cooperative society, who were the

beneficiaries of the said scheme.

11.Mr. Venugopal urged that since the issue was

pending before a Nine-Judge Bench and it was

unlikely that the matter would be heard in the near

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future, the tenants and the owner of the building

entered into an Agreement by which they themselves

agreed to develop the property, instead of waiting

for the decision of the Nine-Judge Bench. The

essence of the understandings arrived at between

the landlord and the tenants was that the tenants

would withdraw themselves from the acquisition and

instead enter into a Development Agreement with

landlord to reconstruct the building. Mr. Venugopal

urged that should such a course of action be

accepted, then there would be no further need for

the proceeding under Section 103B to be continued

and upon the property being returned to the owner,

the tenants could have the benefit of the offer

made by the new builder. This would enable the

tenants to purchase their own flats and the

landlord to also get sufficient consideration so

that the purpose of the scheme would stand fully

satisfied. Furthermore, the Trust would cease to

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exist as the purpose of acquisition would also

cease to exist. Mr. Venugopal urged that the Court

may declare the acquisition of the property to be

no longer necessary and relevant for the purposes

of Chapter VIIIA and the relationship of the owner

and the tenant would continue as before. Mr.

Venugopal also submitted that since possession has

continued with the owner and the tenants and, at no

point of time, had such possession been handed over

to MHADA, could it be said that the premises in

question had vested with MHADA. Mr. Venugopal

contended that if the object of the rehabilitation

scheme was to be kept in mind, the objective taken

on behalf of MHADA that the property had vested in

it by virtue of the Notification published at the

request of the tenants, was highly technical and

was required to be discarded, as the lands were, in

fact, being held in trust for the tenants as the

beneficiaries thereof.

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12.The prayer made on behalf of the Petitioners in

I.A. was opposed, on behalf of the State of

Maharashtra and its authorities, as being

mischievous and was nothing but an attempt to

circumvent the challenge thrown to Chapter VIII-A,

which was pending before this Court not only in

other matters, but in the instant writ petition

also. It was urged by Mr. Sanjay V. Kharde,

learned Advocate appearing for the Respondent Nos.

1 and 5, that the question to be considered in the

context of this interlocutory application is

whether the parties can contract out of the statute

when they have no locus standi or title in respect

of the suit property. It was urged that stay

prayed for earlier had been refused by this Court

and Chapter VIII-A, inserted by the Maharashtra Act

(21 of 1986), in the 1976 Act, continues to be

valid and operative. It was submitted that the

provisions make it very clear that once the suit

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property stood vested in MHADA, the same could be

utilized only for the purpose of the tenants/ co-

operative societies and nobody else. It was urged

that the relief sought for by the Petitioners in

the present application could not be granted since

there is a complete bar on such kind of proceedings

after vesting, in view of Section 103C(2) of the

1976 Act. Mr. Kharde urged that symbolic

possession of the property had already been taken

and the introduction of a third party into the

proceedings was with the knowledge that the

assignee would approach MHADA for releasing the

property for the purpose of development.

13.Mr. Kharde reiterated that once vesting had

taken effect under Section 93(5), read with Section

103B(5A), (6) and (7) of the 1976 Act, and the same

having been upheld up to this Court, the same could

not be released to the owners of the land and would

have to be utilized for a purpose similar for which

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it had been acquired. Mr. Kharde urged that the

I.A. filed on behalf of the Petitioners is liable

to be dismissed.

14.Mr. Ashok H. Desai, learned Senior Advocate,

who appeared for MHADA and the Mumbai Housing

Repairs and Reconstruction Board, submitted that

the relief prayed for in the instant I.A. was

wholly misconceived since the challenge to the

notification dated 20.04.1995 issued by the

Respondent No. 4 under Section 93(5) of the 1976

Act, thereby vesting the land and building

absolutely in MHADA free from all encumbrances, had

been repelled up to this Court. It was urged that

the vesting of the property in MHADA having been

upheld up to this Court, this application seeking

release of the property from acquisition has to be

dismissed and the Petitioners have to await the

decision to the challenge of the constitutional

validity of Chapter VIII-A. Mr. Desai submitted

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that when the matter involving a constitutional

challenge to Chapter VIII-A of the 1976 Act was

pending consideration before a Bench of Nine-

Judges, the present application could not be

decided by any Bench of this Court of a strength of

less than Nine-Judges.

15.Mr. Desai submitted that the scope of these

pending matters relate to the interpretation of the

expression "vesting" of the property with MHADA

under the scheme of the Act. Mr. Desai also urged

that the property having been acquired for the

purposes of Section 103B of the 1976 Act, MHADA was

also saddled with an obligation to utilize 30% of

the acquired land for similar objects. Mr. Desai

submitted that the land could only be used for the

benefit of the tenants, if they had formed a co-

operative society and registered the same, but not

for the purpose of development by a third party,

which was completely alien to the provisions of the

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1976 Act. Mr. Desai submitted that I.A. No. 3 was

wholly misconceived and was liable to be rejected.

16.Mr. Mukul Rohatgi, learned Senior Advocate,

appearing for the Chief Promoter of the UNAT Co-op.

Housing Society, Hashmukh B. Gandhi, contended that

since the object of the 1976 Act was to

rehabilitate those tenants who were living in

dilapidated structures, and the end object of the

scheme of arrangement arrived at by the landlord

with the promoter was for the same purpose, the

same should be accepted and implemented for the

benefit of the tenants.

17.Countering the submissions made by Mr. Ashok

Desai that once the lands had vested in MHADA under

Section 103B of the 1976 Act, the same could only

be utilised for the purposes of construction/

reconstruction as intended under the Act, Mr.

Rohatgi submitted that the acquisition in the

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instant case was specifically for the purpose of

rehabilitation of the members of the proposed Punit

Cooperative Housing Society, on whose application

the acquisition proceedings had been started. Mr.

Rohatgi submitted that the land so acquired for the

aforesaid Cooperative Society could not be utilised

for any other society/tenants and in the event the

tenants chose not to continue with the scheme of

rehabilitation by resorting to the provisions of

the 1976 Act, MHADA could not obstruct the release

of the land, as otherwise the tenants would be

rendered homeless and they would be deprived of

their residences, which they enjoyed in the

premises before the acquisition proceedings were

mooted. Mr. Rohatgi urged that the entire logic of

the 1976 Act was to rehabilitate the tenants of the

building which had become dilapidated on account of

non-repair thereof by the landlords and the scheme

envisaged under Chapter VIIIA was tenant-specific

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and any decision to deprive the tenants, either by

taking recourse to the scheme or remaining outside

the scheme, would be contrary to the spirit and

object of the Act.

18.Since the writ petition is to be heard by a

Bench of nine Judges, along with other similar

matters, and there is little likelihood of the

matter being taken up for final decision in the

near future, we have given our serious thoughts to

the problem which has been spelt out in the present

Interlocutory Application. On the one hand, it is

at the request made by a proposed Cooperative

Society of the tenants of the building that

acquisition proceedings were commenced by the Board

under Section 103B of the 1976 Act on 30th October,

1986, on the other, the purpose of the acquisition

has not fructified even after 26 years. If, as

suggested by Mr. Desai and Mr. Kharde, the tenants

have to wait till a decision is rendered by the

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Nine-Judge Bench, the entire object with which

Chapter VIIIA was introduced in the 1976 Act, would

be rendered completely nugatory. Maybe a situation,

such as this, was never contemplated by those who

wanted to frame a scheme to rehabilitate tenants

who were victims of a situation where they had to

reside in unhygenic and maybe dangerous conditions

because of lack of repairs on account of the low

rents payable by the tenants which had been frozen

from 1st September, 1940, and made it virtually

impossible for the landlords to maintain the

properties when, at times, the municipal taxes were

higher than the rents collected; but the Courts

have to interpret the law as it is.

19.As indicated hereinbefore, Section 103A was

introduced by way of Chapter VIII-A in the 1976

Act, by Maharashtra Act 21 of 1986, when

realisation dawned on the administration that many

persons who had been occupying buildings either as

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tenants or otherwise from before 1st September,

1940, were faced with a peculiar dilemma in which

on account of the low rents paid by them, which had

been frozen, the landlords were unwilling to effect

any repairs to the old structures. Section 103A,

whereby Chapter VIII-A was made applicable to all

"cessed buildings", reads as follows:

"103A. Application of Chapter VIII-

A to certain buildings.

This Chapter shall come into force

on and from the commencement of the

Maharashtra Housing and Area

Development (Second Amendment) Act,

1986, and shall apply to all the

cessed buildings which are erected

before the 1st day of September

1940 and are classified as

belonging to Category A under

subsection (1) of section 84:

Provided that, nothing in this

Chapter shall apply to any cessed

building belonging to Category A

if, on the date of commencement of

the Maharashtra Housing and Area

Development (Second Amendment)Act,

1986, out of the total number of

occupiers of such building, fifty

per cent, or more occupiers are

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using the tenements or premises in

their possession for commercial or

non-residential purpose.

Explanation — For the purposes of

this section, any such building

where a floor or any part of a

building is constructed

subsequently and such floor or part

is not separable, shall be deemed

to be a building belonging to

Category A."

20."Cessed buildings" are buildings in which

repairs had not been effected after 1st September,

1940, and were in danger of collapse, but continued

to be under the occupation of tenants. In fact,

19,642 cessed and dilapidated buildings have been

identified in the island city of Bombay. It is

Section 103B, which deals with the procedure for

acquisition of cessed property for cooperative

societies of occupiers, pursuant to proposals for

acquisition submitted under Section 92 of the 1976

Act. In fact, in order to facilitate the repair or

reconstruction of the building in question, Section

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94 makes provision for temporary and alternative

accommodation to be provided to the affected

occupiers whose property is acquired. Since much

of the case of the parties depend on Section 103B

of the 1976 Act, the same, in its entirety, is

extracted hereinbelow:

"103B. Acquisition of cessed

property for co-operative societies

of occupiers.

(1) Notwithstanding anything

contained in any of the provisions

of Chapter VIII or any other law

for the time being in force or in

any agreement, contracts judgement,

decree or order of any Court or

Tribunal to the contrary, a co-

operative society formed or

proposed to be formed under the

provisions of the Maharashtra Co-

operative Societies Act, 1960, by

not less than seventy per cent of

the occupiers in a cessed building

may by written application request

the Board to move the State

Government to acquire the land

together with the existing building

thereon or where the owner of the

building does not own the land

underneath or appurtenant to such

building but holds it as a lessee

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or licensee, or where any person

holds the building or the land

underneath or appurtenant to such

building or both under a lease or

licence, then to acquire the right

or interest of such owner or person

in or over such building or land or

both as lessee or licensee together

with the existing building thereon

(hereinafter in this Chapter

referred to as "the land") in the

interest of its better preservation

or for reconstruction of a new

building in lieu of the old one and

intimate their willingness to pay

the amount of such acquisition as

may be determined under the

provisions of this Chapter and to

carry out the necessary structural

and other repairs or, wherever

necessary, to reconstruct a new

building, as the case may be, at

their own cost.

Explanation I — In this section the

expression "seventy per cent, of

the occupiers' means the seventy

per cent of the occupiers on the

date of commencement of the

Maharashtra Housing and Area

Development (Second Amendment) Act,

1986, and include their successors-

in interest or new tenants inducted

in place of such occupiers, but

does not include the owner or the

occupiers inducted by virtue of

creation of any additional

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tenancies or licences by the owner

after the date of commencement of

the aforesaid Act.

Explanation II — For the purposes

of this sub-section, any suit or

proceeding for recovery or

possession of tenement or premises

or part thereof, initiated against

the occupier in any court or before

any authority whether, before or

after making an application under

this sub-section, shall not affect

the right of such occupier to join

or to continue as a member of the

co-operative society of the

occupiers of the building, but his

membership of such cooperative

society shall be subject to the

final decision in such suit or

proceeding:

Provided that, if, in the meantime

before the final decision in such

suit or proceeding, the acquisition

proceedings under this Chapter are

completed and the land is conveyed

to the Co-operative society of the

occupiers under sub-section (7),

the claim for possession made in

such suit or proceeding, at any

stage where it is pending on the

date of execution of such

conveyance, shall abate.

(2) On receipt of the application

made under sub-section (1), the

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Board shall after due verification

and scrutiny, approve the proposal

if it considers that it is in the

interest of better preservation of

the building or to be necessary for

reconstruction of a new building

and shall direct the co-operative

society, whether registered or

proposed, to deposit with the Board

within the period specified by it

in that behalf thirty per cent of

the approximate amount that would

be redirected to be paid to the

owner if the land is acquired and

give intimation in that behalf to

the owner.

(2A) Where after the date of

application made under sub-

section(1),—

(a) any owner has undertaken the

work of any repairs to the

Building; or

(b) the percentage of the occupiers

who had initially agreed to become

members of the co-operative society

formed under subsection (1) is

reduced to less than seventy per

cent of the occupiers as a result

of some members opting out, or due

to the number of additional

tenancies or licences created in

the building thereafter or due to

any other reason whatsoever,

Page 28 28

then the power of Board to approve

the proposal shall not be affected,

and notwithstanding anything

contained in sub-section (1), the

Board shall approve the proposal

and direct the co-operative society

to deposit the approximate amount

as required under sub-section (2).

(3) On receipt of the amount of

deposit as provided in sub-section

(2), the Board shall submit to the

State Government a proposal to

acquire the land for the aforesaid

purpose.

(4) If on receipt of an acquisition

proposal under sub-section (3), the

State Government is satisfied about

the reasonableness of the proposal,

it may approve the proposal and

communicate its approval to the

Board.

(5) On receipt of the Government

approval, the Board shall forward

acquisition proposal to Land

Acquisition Officer for initiating

and acquisition proceedings in

accordance with the provisions- of

sub-sections (3), (4) and (5) of

section 93 and section 96 of this

Act :

Provided that, where any

proceedings for acquisition of land

are so initiated the notice to be

Page 29 29

published under sub-section (3) of

section 93 in respect thereof need

not contain any statement regarding

provision of any alternative

accommodation to occupiers in such

land :

Provided further that, where the

proposal involves acquisition of

the right or interest of the lessee

or licensee in or over the building

or land as referred to in

subsection (1) , then such building

or land on its transfer by the

Authority to the co-operative

society under sub-section (7) shall

be held by the co-operative society

on lease or licence, as the case

may be,subject, however, to the

following conditions, namely:—

(i) where there is a subsisting

lease or licence, on the same terms

and conditions on which the lessee

or licensee held it, and

(ii) where the lease or licence has

been determined or where the lessee

or licensee has committed breach of

the terms and conditions of the

lease or licence, as the case may

be, on the fresh terms and

conditions, particularly in regard

to the period of lease or licence

and rent as may be stipulated by

the owner of the land.

Page 30 30

(5A) Where acquisition proceedings

have been initiated as provided in

sub-section (5) and a notification

under sub-section (5) of section 93

is published, the Collector shall

take and hand over possession of

the land to the Board in accordance

with the provisions of sub-section

(6) of section 93.

(6) After the land is vested

absolutely in the Board on behalf

of the Authority free from all

encumbrances and the amount to be

paid to the owner is determined,

the Board shall require the society

to get itself registered if it is

not registered till then and to

deposit the remainder of the amount

to be paid to the owner with the

Land Acquisition Officer. The Board

shall simultaneously pass on the

amount deposited by the co-

operative society with it to the

Land Acquisition officer. The Land

Acquisition Officer shall thereupon

make the payment of the amount for

acquisition or deposit the same in

the court as provided in section

46.

(7) Subject to the provisions of

sub-section (6), the Authority

shall convey the land acquired

under this section to the co-

operative society of the occupiers

thereof with its right, title and

interest therein and execute

Page 31 31

without undue delay the necessary

documents in that behalf."

21.Sub-section (1) of Section 103B begins with a

non-obstante clause to the effect that

notwithstanding anything contained in any of the

provisions of Chapter VIII or any other law for the

time being in force or in any agreement, contract,

judgment, decree or order of any Court or Tribunal

to the contrary, a co-operative society formed or

proposed to be formed under the provisions of the

Maharashtra Co-operative Societies Act, 1960, by

not less than 70% of the occupiers in a cessed

building may, by written application, request the

Board to move the State Government to acquire the

land together with the existing building thereon or

where the owner of the building does not own the

land, but holds it as a lessee or licensee, then to

acquire the right or interest of such owner or

person in or over such building or land or both as

Page 32 32

lessee or licensee together with the existing

building thereon. The latter part of Section 103B

and more particularly Sub-section (5A), is relevant

for our purpose and provides that where acquisition

proceedings have been initiated as provided in Sub-

section (5) and a notification under Sub-section

(5) of Section 93 is published, the Collector shall

take and hand over the possession of the land to

the Board in accordance with the provisions of Sub-

section (6) of Section 93. It is at this stage

that the land vests absolutely in the Board on

behalf of the Authority, free from all

encumbrances. At this stage, the Board shall also

require the Society to get itself registered, if it

is not registered till then, and to deposit the

remainder of the amount to be paid to the owner

with the Land Acquisition Officer. It is only,

thereafter, under Sub-section (7), that the

Authority is to convey the land acquired under this

Page 33 33

Section to the co-operative society of the

occupiers thereon, with its right, title and

interest therein and execute, without undue delay,

the necessary documents in that behalf.

22.As submitted by Mr. Desai and Mr. Kharde, the

tenants had already vacated the building in

question in favour of the promoter. The million

dollar question is whether they were entitled to do

so, once Section 103B of the 1976 Act had already

come into operation and symbolic possession of the

property had been taken by MHADA, through the

Board, under Sub-section (5A) thereof. Sub-section

(7) of Section 103B provides for the conveyance of

the land acquired under Section 103B to the co-

operative society of the occupiers together with

its right, title and interest therein, and for

MHADA to execute, without undue delay, the

necessary documents in that behalf, which

presupposes that MHADA had already acquired title

Page 34 34

to the property. Had the title not vested in

MHADA, it could not have been vested with the right

to convey the same to the co-operative society.

The scheme envisaged in Chapter VIII-A, and in

Section 92 of the 1976 Act comes into play, upon an

application being made by a registered co-operative

society or a proposed co-operative society to

undertake the restoration of the building.

23.In the instant case, except for an application

having been made under Section 92 and steps having

been taken thereafter under Section 103B, nothing

further has happened. But by operation of law, the

land has come to be vested in MHADA. The parties

to the agreement, which includes the promoter, were

fully aware of this situation since in the

agreement itself it is indicated that the tenants

would withdraw from the acquisition and would apply

to MHADA to release the property from acquisition

so that the agreement arrived at could be given

Page 35 35

effect to instantly. Whether MHADA has any

obligation to provide similar accommodation to

others in respect of the 30% surplus land, is a

controversy which we need not go into and will

surely be decided, whenever the Nine-Judge Bench

sits to take up these matters. But for the

purposes of this case, we regret that in spite of

the inordinate delay in the working of the

provisions of Chapter VIII-A of the 1976 Act, which

was intended for the benefit of a certain section

of tenants and occupants of cessed buildings, we

are unable to grant the relief prayed for, as the

same goes against the very grain of the provisions

of Chapter VIII-A of the 1976 Act. Accordingly, we

have no other option, but to dismiss the I.A.,

without going into further details, which will have

to be settled by the Nine-Judge Bench.

Page 36 36

24.Having regard to the nature of the facts of the

case, the parties shall bear their own costs.

...................CJI.

(ALTAMAS KABIR)

..................... J.

(VIKRAMAJIT SEN)

..................... J.

(A.K. SIKRI)

New Delhi

Dated: July 03, 2013.