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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.

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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,

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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

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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.

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(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

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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

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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

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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

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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

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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.

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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.