in the high court of judicature at bombay ... no.30(pt), golibar road, jawahar nagar, village...
TRANSCRIPT
1W.P.(L) Nos.1530/10 a/w 1213/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO. 1530 OF 2010ALONG WITH
WRIT PETITION (LODGING) NO. 1213 OF 2010
WRIT PETITION (LODGING) NO.1530 OF 2010
1. Shri Sayed Anwar Gaffar,Aged35 years, Occ. Business,
2. Shri Abdul Rashidali Mohd,Aged 38 years, Occ. Business.
3. Mrs. Hanifa Begum,Aged58 years, Occ. House Wife.
4. Shri Sayed Gaffar Sujauddin,Aged56 years, Occ. Plumber.
5. Shri Mohd. Rafi Raisuddin,Aged36 years, Oc. Business.
6. Shri Mohd. Rafik Mohd. Safi,Aged39 years, Occ. Business.
7. Shri Pawankumar C. Jain,Aged40 years, Occ. Business.
8. Shri Chattarlal B. Jain,Aged67 years, Occ. Business.
9. Shri Manoharlal Thuthkar,Aged50 years, Occ. Business.
10. Shri Suresh B. Gange,Aged45 years, Occ. Business.
11. Hanuman Colony Hitwardhak Committee,Through its Member Ramchandra Narayan Dukhand.
2W.P.(L) Nos.1530/10 a/w 1213/10
12. Hanuman Hitwardhak Society,Through its Member.. Petitioners
Ramchandra Narayan Dukhand. ... Petitioners
All Adults, Indian Inhabitants,Residing at Hanuman Hitwardhak CHS Ltd.CTS No.30(Pt), Golibar Road, Jawahar Nagar,Village Bandra, Bandra (East), Mumbai400 051.
Versus
1. Administrator and Divisional Commissioner Konkan Division, 1st floor, Old Secretariat, Kala Ghoda, Mumbai.
2. The Chief Officer,Mumbai Housing and Area Development Board, (A MHADA Unit),3rd floor, Grihanirman Bhavan,Kala Nagar, Bandra (E),Mumbai 400 051.
3. Slum Rehabilitation Authority,Through its Chief Executive Officer,5th floor, Grihanirman Bhavan,Kala Nagar, Bandra (E),Mumbai 400 01.
4. Hanuman Hitwardhak CHS Ltd.CTS No.30(Pt), Golibar Road,Santacruz (East), Mumbai400 055.
5. Shivalik Ventures Pvt.Ltd.Plot No.746, Staney Fernandis Wadi,D.S. Babrrekar Marg, Dadar (West),Mumbai 400 028.
6. The State of Maharashtra,(Summons to be served on the Ld. Govt. Pleader appearing for State of Maharashtra under Order XXVII, Rule 4, of the Code of
3W.P.(L) Nos.1530/10 a/w 1213/10
Civil Procedure, 1908).
7. Union of India,Ministry of Defence,Through Station Commander,411 Air Force Station,Cottongreen, Mumbai. ... Respondents.
Mr. Atul Rajadhyaksha, Senior Advocate, a/w Mr. N.V. Gangal, Mr. Anup N. Deshmukh, Ms.Anjali Awasthi and Mr.Raman Jaibhave i/b Mr.Moin Khan for the Petitioners.Mr. Milind More, Assistant Government Pleader, for Respondent Nos.1 and 2.Mr. V.D. Patil for Respondent No.3.Mr. J. Reis for Respondent No.4.Mr. P.K. Dhakhephalkar, Senior Advocate, i/b Divekar & Co. for respondent No.5.
ALONG WITHWRIT PETITION (LODGING) NO. 1213 OF 2010
1. Mr. Ramchandra Narayan Dukhande
2. Mr. Ramesh Vasant Manjarekar
3. Mr. Prakash Sahadev Jagtap
4. Smt. Kusum Mohan Kale
5. Smt. Ratnaprabha Rajan Patel
6. Mr. Deepak Gangaram Gamare
7. Mr. Sitaram Gunaji Halade
8. Mr. Sabe Tunnisa Moharam Shaikh
9. Mr. Janu Ramchandra Gaikwad
4W.P.(L) Nos.1530/10 a/w 1213/10
10. Mr. Mangesh Tulshiram TambeSon of Late Sangeeta Tulshiram Tambe.
11. Smt. Chandraprabha Shankar Panchal
12. Smt. Sonali Srikant Malkar
13. Mr. Srikant Vasudev Malkar
14. Mr. Shashikant Soma Sawant
15. Smt. Omnna Shashidharan Edwana
16. Mr. Pravin Yashwant Shelar
17. Mr. Narayan Mahadev Achrekar
18. Smt. Shradha Dattaram Parab
19. Mr. Prakash Shivaji Kuveskar
20. Mr. Dilip Raghunath Parkar
21. Mr. Sadashiv Balu Nirmal
22. Smt. Satyavati Vasant Lad
23. Smt. Virnal Narsing Pal
24. Smt. Lata Vishwanath Shetty
25. Smt. Anni Shiddu Shetty
26. Smt. Karuna Krishna Mohite
27. Mr. Vishnu Sabaji Sawant
28. Smt. Vijaya Vilas Gawde
29. Mr. Mohd. Yakub Mansuri
30. Mr. Narayan Shankar Sawant
5W.P.(L) Nos.1530/10 a/w 1213/10
31. Mr. Bhau Narayan Sawant32. Mr. Narayan Bhau Sawant
33. Mr. Vittal Dagdu Shinde
34. Mr. Krishna Sakharam Khanvilkar
35. Mr. Daji Sonu Dhuri
36. Mr. Rajan Ramchandera Mahendrakar
37. Mr. Sahadev Mahadev Girkar
38. Smt. Sushma Ganesh WaliaWife of Mr. Ganesh Mahendra Walia
39. Mr. Bhandu Laxman Sakpal
40. Smt. Sushila Nana Mhatre
41. Mr. Santaram Babu Mashuk
42. Smt. Kalawati Krishna Chande
43. Smt. Kunda Bhikaji PadyalD/o. Smt. Anusaya Bhikaji Padyal
44. Mr. Jagannath Ravaji Rasam
45. Aishabi Karamatali Sheikh
46. Mr. Mohan Gopal Kottarath
47. Mr. Shaikh Mohammed Hussain
48. Smt. Nirmala Surendra Kumar Jain
49. Mr. Chandrakant Shankar Chindarkar
50. Mr. Sayed Akbar Gaffar
51. Smt. Rahima Munir Sheikh Wife of Late Munir Karim Sheikh
6W.P.(L) Nos.1530/10 a/w 1213/10
52. Mr. Tukaram Raghnath Achrekar53. Mr. Ramesh Rama Kamtekar
54. Mr. Gajanan Dhakatoo More
55. Mr. Shankar Mahadev Ninave
56. Mr. Mohd. Munaf Mansuri
57. Smt. Dulari Ramfer GujarWife of Mr. Ramfer Mathura Gujar
58. Mr. Mohammed Hussein Qureshi
59. Mr. Timmappa Yasu Pujari
60. Mr. Prakash Shantaram Valanju
61. Mr. Santosh Balkrishna Chavan
62. Mr. Shantaram Sitaram Kasabale
63. Mr. Noorjahan Husain Sheikh
64. Mr. Bakshi Singh Nagi
65. Mr. Mahadev Vithobha Shinde
66. Mr. Dilip Babaji Kadam
67. Mr. Punaji Mahadev Sawant
68. Old Tenant Smt. Suchita S. SawantNew Tenant Mr. Jaywant M. Jagtap.
69. Smt. Leelabai Nivrutti Sawant
70. Mr. Tarlochan Singh Bons
71. Mr. Nayan Singh Nayak
72. Smt. Anita Kanyya Khanda
73. Mr. Anii Balaram Surve
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Son of Late Balaram Govind Surve74. Mr. Dhanaji Bajirao Borkar
75. Mr. Bharat Ranpat Bhingane
76. Mr. Vasant Sridhar Jadhav
77. Mr. Dattaram Gopal Chavan
78. Smt. Sunita Ganpat Kudtarkar
79. Mr. Shivram Bhiva Parab
80. Mr. Devidas Vasant Redkar
81. Smt. Sairabi Amiruddin Sayed
82. Smt. Nita Ashok Patil
83. Mr. Krishna Rakhmaji Dhavle
84. Mr. Lalit Mahadev Dhamane
85. Mr. Sheikh Mohd. Dilshad
86. Smt. Sarita Dattatray SawantWife of Dattatray Soma Sawant
87. Mr. Mahabal Kukra Amin
88. Mr. Harish Shrinivas BangeraSon of Late Shrinivas Korag Bangera
89. Mr. Punaji Mahadev SawantPresident/Trustee of Jai Hanuman Krida Mandal.
90. Mr. Anil Shriram Vishwakarma
91. Smt. Sumitra Shriram Vishvakarma
92. Mr. Sanjiva Annappa Pujari
93. Mr. Dharapal S. Vishwakarma
8W.P.(L) Nos.1530/10 a/w 1213/10
POA by Ramagya Mahesh Sharma94. Mr. Kutty B. Shetty
95. Mr. Uday Kutty Shetty
96. Mr. Santosh Ramchandra Kesarkar
97. Mr. Rajendra Bhikaji Toraskar
98. Mr. Mahadev Bapruao Jagtap
99. Mr. Dharampal Shyamraj VishwakarmaB/o. Ramsumer Shyamraj Vishwakarma
100. Mr. Lilbihari Ramraksha Vishwakarma
All are Adults, Indian Inhabitants, residingat Hanuman Hitwardhak SRA CHS. Ltd.CTS No.30(Pt.), Golibar Road,Village Bandra, Bandra (E), Mumbai 400 051.
101. Mr. Jagannath Jayram Surve
102. Smt. Jayashree Pandurang Panchal
103. Mr. Dinesh Paramanand Sharma
104. Mr. Shah Abdul Kadar
105. Smt. Najuda Chandrakant Javalkar
106. Smt. Gopika Ladoba Aajgaonkar
107. Mr. Yashwant Laxman Bandiwadekar
108. Mr. Babu Gopal Kondake
109. Mr. Anant Pandurang Teli
110. Smt. Chamelidevi Radheshyam Singh
111. Mr. Subhash Mahadev Sawant
112. Mr. Satpal Vedprakash Kharbanda
9W.P.(L) Nos.1530/10 a/w 1213/10
113. Smt. Shantabai Ramchandera Lahane
114. Mr. Sanjay Krishna Ramane
115. Smt. Satyavati Eknath Talekar
116. Mr. Maruti Chandu Bhandare
117. Mr. Sudhir Babaji Ujal
118. Mr. Shantaram Dhondu Jagtap
119. Smt. Suman Gopal Kurpe
120. Mr. Babaji Gopal Ujal
121. Mr. Gajanan Shantaram Ghadigaonkar
122. Mr. Vijay Sakharam Chavan
123. Mr. Ramchandra Tukaram Rane
124. Mr. Chandrakant Mahadev More
125. Mr. Chandrashekhar S. Nair
126. Mr. Daulat Kushaba Kadam
127. Mr. Maruti Nivarutti Sawant
128. Mr. Lahu Shivram Raut
129. Mr. Hemant Kumar Tejraji Mehta
130. Mr. Narsappa Pentappa Irawati
131. Mr. Narsappa Pentappa Irawati
132. Mr. Siyaram Singh Gurucharan Singh
133. Mr. Yashwant Raghunath Ghogale
134. Mr. Shrikant Ravrane
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135. Mr. Manohar Namdev Shenoy
136. Mr. Chirput Sitaram Gupta
137. Smt. Philomina Fransic Rodrigues
138. Mr. Madanraj Otarmalji Jain
139. Mr. Shreeramnivas Baijnath Mistry
140. Mr. Maheshchandra Tejrajji Mehta
141. Mr. Arvind Kumar Tejrajji Mehta
142. Mr. Narpatlal Tejrajji Mehta
143. Smt. Sushila Tukaram Bedarkar
144. Mr. Gopal Babu Shinde
145. Mr. Laxman Shankar Logde
146. Smt. Jyoti Jayprakash Sharma
147. Mr. Jaiprakash Chirajilal Sharma
148. Smt. Munidevi Hari Sharma
149. Smt. Girijabai Gorakh Sonavane
150. Mr. Manohar Vasant Chavan
151. Mr. Ramling Bapu Vatambe
152. Smt. Anita Tukaram Madav
153. Mr. Vilas Narang Parte
All are Adult, Indian Inhabitants, residingat Ekta CHS Ltd.CTS No.30(Pt), Golibar Road,Village Bandra, Bandra (E),Mumbai 400 051.
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154. Mr. Arun Wamanrao Bhalerao
155. M. Chabinath Shivmangal Sharma
156. Smt. Sitabai Dattaram Mirjile
157. Mr. Tanaji Kanu Jethe
158. Mr. Shaikh Julfiqar Samsuddin
159. Mr. Sonu Sitaram Shinde
160. Mr. Ashok Ramchandra Gamre
161. Smt. Maya Bhau Sonavane
162. Smt. Vatsala Jairam Gamre
163. Smt. Sangeeta Suresh Jadhav
164. Mr. Lahu Narayan Ghadigavkar
165. Smt. Shantabai Yashwant Gamre
166. Mr. Ashok Pandurang Pawar
167. Mr. Raju Jeevan Gamre
168. Smt. Nanda Laxman Salvi
169. Mr. Milind Babu Kadam
170. Mr. Gautam Sakharam Kamble
171. Lt. Anusaya Sakharam Lamble(Ranjana Sakharam Kamble)
172. Mr. Santosh Kumar Dongre
173. Lt. Ashok Ramchandra Bhosekar(Laxmi Ashok Bhosekar)
174. Smt. Jankibai Baban Chavan
12W.P.(L) Nos.1530/10 a/w 1213/10
175. Smt. Jijabai Ganpat More
176. Mr. Mohd. Salim Shah
177. Mrs. Indresh Dinesh SharmaPOA by Hari Babu Pawar
178. Mr. Ramprasad KashyapPOA by Suresh Ramchanera Talekar
179. Mr. Gautam Dhaku Pawar
All are Adult, Indian Inhabitants, residingat Pradnya SRA CHS Ltd., CTS No.30(Pt), Golibar Road,Village Bandra, Bandra (E),Mumbai 400 051.
180. Shri Shabbir M. Khan
181. Shri Vahid Shabbir Khan .. Petitioners
Both are Adult, Indian Inhabitants, residingat Asthavinayak SRA CHS Ltd.CTS No.33(pt), 13(pt) Golibar Road,Village Bandra, Bandra (East),Mumbai 400 051.
Versus
1. Administrator and Divisional Commissioner ) Konkan Division, 1st floor, Old Secretariat, Kala Ghoda, Mumbai.
2. The Chief Officer,Mumbai Housing and Area Development Board, (A MHADA Unit),3rd floor, Grihanirman Bhavan,Kala Nagar, Bandra (E),Mumbai 400 051.
3. The Chief Executive Officer,Slum Rehabilitation Authority,
13W.P.(L) Nos.1530/10 a/w 1213/10
5th floor, Grihanirman Bhavan,Kala Nagar, Bandra (E),Mumbai 400 01.
4. Hanuman Hitwardhak SRA CHS Ltd.CTS No.30(Pt), Golibar Road,Santacruz (East), Mumbai400 055.
5. Shivalik Ventures Pvt.Ltd.Plot No.746, Staney Fernandis Wadi,D.S. Babrrekar Marg, Dadar (West),Mumbai 400 028.
6. The State of Maharashtra,(Summons to be served on the Ld. Govt. Pleader appearing for State of Maharashtra under Order XXVII, Rule 4, of the Code ofCivil Procedure, 1908).
7. Union of India,Ministry of Defence,Through Station Commander,411 Air Force Station,Cottongreen, Mumbai.
8. Ekta CHS Ltd.CTS No.30(pt), Golibar Road,Village Bandra, Bandra (E),Mumbai 400 051.
9. Pradnya SRA CHS Ltd.CTS No.30(pt), Golibar Road,Village Bandra, Bandra (E),Mumbai 400 051.
10. Asthavinayak SRA CHS Ltd. .. RespondentsCTS No.33(pt), 13(pt) Golibar Road,Village Bandra, Bandra (East),Mumbai 400 051.
14W.P.(L) Nos.1530/10 a/w 1213/10
Ms. Anjali Awasthi i/b Parvinder Singh Sethi for the Petitioners.Mr. Milind More, Assistant Government Pleader, for Respondent Nos.1 and 6.Mr. Uttangale i/b Uttangale & Co. for Respondent No.3.
CORAM : MOHIT S. SHAH, C.J. AND S.C. DHARMADHIKARI, J.
DATED : 14TH JULY 2010
ORAL JUDGMENT (Per Chief Justice)
Both these petitions challenge the permissions granted by
the Slum Rehabilitation Authority under the Development Control
Regulations Nos. 33(10) i.e. (IOA) and the Maharashtra Regional and
Town Planning Act, 1966 on the plots of the land bearing CTS No.13
(Part), 30 (Part) and 33(Part), situated at Santacruz (East), Mumbai
Suburban District belonging to the Maharashtra Housing Area and
Development Authority (for short, MHADA). The petitioners are some
of the members of the registered Cooperative Housing Societies which
are impleaded as respondent Nos. 4 and 8 to 10 in Writ Petition No.
1213 of 2010. The permissions are granted in favour of the developer
respondent No.5, in the said petition. The petitioners are, in fact,
challenging implementation of the Slum Rehabilitation Scheme on the
above lands.
2. The petitioners had challenged the above permissions in
the appeals under section 35 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (for short,
`Slum Act'). All the appeals came to be dismissed by the impugned
order dated 6th May, 2010, passed by the Administrator and the
Divisional Commissioner, Kokan Division, Mumbai. Aggrieved by the
above order, the petitioners have filed the present petitions.
15W.P.(L) Nos.1530/10 a/w 1213/10
3. The affidavits in reply have been filed on behalf of the
respondent No.5 developer. The rejoinder affidavit has also been filed
by the petitioners. We have heard the learned counsel for the parties at
length for final disposal of the petitions.
4. The learned senior counsel for the respondents have
opposed the petitions and submitted that the petitioners have raised
frivolous contentions only to delay the project. The petitioners are
individual members who have no locus standi to file the present
petitions. Out of total 750 members of these societies, only 181
members have chosen to file the present writ petitions and out of them
18 members have already accepted the temporary alternative
accommodation and, therefore, the petitions at the instance of
members constituting less than 30% out of the total membership in the
societies are not maintainable. It is the case of the developer that as
per the revised letter of intent dated 20th August, 2009, issued by the
Slum Rehabilitation Authority, total 5079 slum dwellers including the
eligible petitioners are entitled for rehabilitation and therefore, any
orders passed in these petitions adverse to the developer will also
adversely affect more than 4,800 slum dwellers who are not joined as
party respondents. If the petition is entertained, it will delay the
rehabilitation of such a large number of slum dwellers. According to the
respondents, none of the petitioners is having any dwelling unit in the
land bearing CTS No.13 (Part).
ContentionI
5.1. It is contended on behalf of the petitioners that the land in
question is not declared as a slum under Section 4 of the Maharashtra
16W.P.(L) Nos.1530/10 a/w 1213/10
Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971
(hereinafter referred to as the “Slum Act”) nor has it been declared as
slum rehabilitation area under Section 3(c)(i) of the Slum Act, 1971. It
is submitted that the powers under Regulation 33(10) cannot be
exercised unless the eviction is sought in respect of a scheme which is a
slum rehabilitation scheme in respect of slum declared to be so under
the provisions of the Slum Act.
5.2. The redevelopment project in question is being undertaken
in a Scheme dated 9th April 1998 which was a broad scheme like a
development plan under the provisions of Section 22 of the
Maharashtra Regional and Town Planning Act, 1966 (hereinafter
referred to as the “MRTP Act”), whereas the eviction is sought to be
invoked under Section 95A of the Maharashtra Housing and Area
Development Act, 1976 (hereinafter referred to as the “MHADA Act”).
The slum rehabilitation became functional for the first time only from
15th May 1998 which is after coming into force of the scheme, which
was published under the Notification dated 9th April 1998.
6.1 It is submitted on behalf of respondents that Annexure II at
page 98 of the compilation clearly indicates that the slum in question
was censused and in support of the said contention the learned counsel
for MHADA has also placed on record the Government Resolution dated
11th July 2001 which clearly indicates that a survey was undertaken for
ascertaining the position of the slums as on 1st January 1995 and the
said resolution covered the land in question. It is, therefore, submitted
that once the slum was censused, it was not necessary to make a
specific declaration of the same as the slum under Section 4 of the Slum
Act or to issue a notification for declaring it as a slum rehabilitation
17W.P.(L) Nos.1530/10 a/w 1213/10
area under Section 3C(1) of the Slum Act.
6.2. It is submitted that the legal contentions sought to be
raised in these petitions have already been considered by two Division
Benches of this Court. In OmSai Darshan Cooperative Housing Society
and another vs State of Maharashtra and others, 2007 (1) Bom.C.R.,
476, it is also contended that it has been specifically held in the above
decisions that the slum rehabilitation scheme can be sanctioned in
respect of a slum as defined in clause (ii) of Annexure II to Regulation
33(10). Under the said annexure, there can be a viable scheme on
payment also.
6.3. Relying upon the above decisions, it is also contended that
it is only the machinery which is available under the Slum Act that is
being utilised for the purpose of removing the occupants of the land
which is declared as slum area. In fact under the Development Control
Regulations for Greater Mumbai, 1991, steps have been taken to
execute the redevelopment project which is accepted by 70% of the
members of the three societies.
7. As far as the first contention of the petitioners that if there
is a declaration under section 3B of the Slum Act, then, there would not
be any occasion to go to section 3D thereof without complying with
section 3C is concerned, to our mind, the issue stands concluded by the
Division Bench Judgement of this Court reported in 2007 (1) BCR 476.
Before the Division Bench the argument was that unless there was
declaration issued under section 3C(i) of the Slum Act, declaring a
particular area to be a slum rehabilitation area, the letter of intent
(LOI) for implementation of the slum redevelopment scheme could not
18W.P.(L) Nos.1530/10 a/w 1213/10
have been issued. Reliance was placed upon the judgement of the
learned Single Judge of this Court reported in 2004 (3) BCR 14
(Ramkali Sitaram Khushwaha and Ors. Vs. Dy.Collector and Ors), the
Division Bench analysed the scheme of the Slum Act and particularly
Chapter 1A of the same and, thereafter, referred to both section 3B and
3C and held that the Amendments made by Maharashtra Act 6 of 1997
to section 3C (1) of the Slum Act was not brought to the notice of the
learned Single Judge. The position prior to and subsequent to the
amendment was noticed thereafter and it was held that a general
scheme under section 3B of the Slum Act can be framed either by the
State Government or by SRA with the prior approval of the State
Government. Referring to D.C.Regulation 33(10), this is what is
observed in paras 19 and 20 by the Division Bench:
“19. In the present case we are dealing with the scheme of slum redevelopment which is governed by Regulation 33(10). A General Scheme under section 3B of the Slum Act can be framed either by the State Government or by SRA with the prior approval of the State Government. However, the scheme under clause 33(10) is to be approved in individual cases by the SRA. Clause (II) of Annexure to the said Regulation provides that for the purpose of Regulation 33(10), a slum means that area which is either censused or one which is declared and notified under the Slum Act. It provides that the slum shall also mean areas pavement stretches hereafter notified as slum rehabilitation areas. The clause provides that if any area fulfills conditions laid down in section 4 of the Slum Act to qualify as a slum area and has been either censused or declared and notified as slum, it shall be deemed to be and treated as Slum Rehabilitation Areas. The said clause also provides that censused means those slums located on lands belonging to Government, any undertaking of Government, or to Brihan Mumbai Municipal Corporation and incorporated in the records of the
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land owning authority as having been censused in 1976, 1980 or 1985 or prior to 1st January 1995. Thus, for the purpose of scheme under Regulation 33(1), the following areas are Slum Rehabilitation areas; (a) any area which fulfills the conditions laid down in section 4 of the Slum Act which is declared and notified as such and (b) slum rehabilitation area declared as such by the Slum Rehabilitation Authority fulfilling the conditions laid down in section 4 of the Slum Act to qualify as slum area and/or required for implementation of any slum rehabilitation project. Regulation 33(1) contemplates that there can be redevelopment of slums including pavements. The slums are defined by clause II. The slums mean either censused slums or slums declared and notified as such under the Slum Act. Clause II also defines the word censused which means slums located on lands belonging to Government or Mumbai Municipal Corporation and incorporated in records of the land owning authority as having been censused in 1976, 1980 or 1985.”
“20. On plain reading of the Annexure to Regulation 33(1)) it is obvious that for sanction of a scheme governed by the said Regulation in respect of a parcel of land, it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area in exercise of power under section 3C(1) of the Slum Act. The Slum Rehabilitation Scheme can be sanctioned in respect of a slum as defined in clause II of Annexure to Regulation 33(10). Under the said Annexure there can be a scheme for a viable stretch of pavement also. The learned Single Judge deciding Ramkali’s case was not concerned with a scheme under D.C.Regulation No.33(10). The proposition laid down by him will have to be read as one confined to the situation before him. Question No.1 is, therefore, answered in the negative. The question No.2 has been also answered in the foregoing paragraphs.”
20W.P.(L) Nos.1530/10 a/w 1213/10
8. Therefore, for the reasons indicated by the Division Bench,
it will not be possible to agree with Mr.Rajyadhyaksha that if there is a
declaration under section 3B, then, the Authorities cannot resort to
section 3D without first going through the mechanism stipulated by
section 3C. The Selfsame arguments canvassed must, therefore, be
rejected.
9. Mr.Dhakephalkar’s reliance upon the other Division Bench
decision reported in 2005 (3) All M.R. 889 is equally well founded.
Dealing with somewhat identical contentions, this is what is observed
by the Division Bench in Amba Chawl’s case in paras 7 and 8:
“7. Development Control Regulation 33(1) permits redevelopment of slums whose inhabitants’ names and structures appear in the electoral roll prepared on or before 01011995. A slum has been defined in 33(10) II to mean those areas which have been censused or declared and notified in the past or under the Slum Act after it was enacted in 1971. Therefore, a slum is not just an area which has been declared a slum under section 4 of the Slum Act. The issuance of a notification under section 4 of the Slum Act is not a prerequisite for an area to be considered a slum rehabilitation area. Censused slums have also been defined as those which are located on lands belonging to the government or any undertaking of the government or the Brihanmumbai Municipal Corporation and which have been censused in 1976, 1980, 1985 or prior to 01011995. There is no dispute that the present area is owned by the Corporation. Nor is there any dispute that the slums located thereon have been censused prior to 1995.”
“8. The submission made on behalf of the petitioners that the provisions of the Slum Act cannot be invoked unless there is a declaration made under
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section 4 that the area is a slum area, is without merits. The provisions of sections 33 and 38 of the Slum Act have been invoked by the respondents in order to evict the slum dwellers from the area which is a censused slum. It is only the machinery which is available under the Slum Act that is being utilised for the purposes of removing the occupants from a land which is declared a slum area. In fact under the D.C. Regulations steps can be taken to evict those hutment dwellers who do not join a rehabilitation project willingly. The provisions clearly stipulate that if the hutment dwellers do not join the scheme within 15 days after a slum rehabilitation project has been approved, then action under the provisions of the Slum Act including sections 33 and 38 as amended from time to time can be taken against the hutments. All those who do not join the project lose the right to any built up tenement and their tenement can be taken over by the slum rehabilitation authority and can be used for accommodating those slum dwellers from other slums who cannot be accommodated in situ. The Corporation on 24051996 issued a letter of “no objection’ after verifying the proposal of respondent No.3 for rehabilitation of the slum area. After completion of various other formalities the slum rehabilitation authority approved the project on certain terms and conditions. The impugned orders have been passed after the slum rehabilitation project was approved by the Slum Rehabilitation Authority (SRA). Factually what has been done is recourse taken to the provisions of sections 33 and 38 of the Slum Act for the purposes of implementing the development plan or project undertaken under D.C. Regulations in relation to a censused area. That being permissible in law, mere use of machinery provided under the Slum Act cannot be faulted. Therefore, there is no substance in the contentions of the petitioners that without a notification under section 4 of the Slum Act the provisions of the Act cannot be used at all.”
10. The argument that there was no declaration under section
22W.P.(L) Nos.1530/10 a/w 1213/10
3C of the Slum Act has also been dealt with by the State and the SRA by
pointing out that the Annexure II in this case would demonstrate that
an area of 1375.25 sq.mtrs. In C.T.S. 30(part) of Village Bandra (east),
Taluka Andheri is censused slum colony on MHADA record. The details
of the structures, the protected structures and the number of eligible
slum dwellers with their consent has been set out. In view of the above
and in view of the Government resolution dated 11th July 2001, the
contention that the slums in question were not censused is baseless. We
have perused the Government Resolution dated 11th July 2001. It states
that it was decided to undertake a survey of the slums and photo pass
should be issued to the slum dwellers. The earlier Government
Resolutions dated 9th March 2000, 17th March 2000 and 28th November
2000 are referred to and it is stated that after the survey has been
undertaken now, the exercise of issuing the photo pass should be
completed. This Government notification refers to the lands belonging
to Mumbai Municipal Corporation and Maharashtra Housing and Area
Development Authority. The said land is, therefore, covered by this
G.R. Once the slum was censused there was no necessity of issuing the
declaration contemplated by section 4 or section 3C(1) of the Slum Act.
The argument that the slum rehabilitation authority had not become
functional when the broad scheme was brought into force, is also
answered and in our opinion, rightly by pointing out that the slum
rehabilitation authority was constituted vide Government notification
dated 16th December 1995. The said Authority prepared, with the prior
permission of the State Government, a general slum rehabilitation
scheme. That was in accordance with the section 3B(1) of the Slum
Act. The scheme was for Greater Mumbai area. In accordance with the
provisions and particularly section 3B(2), suggestions and objections
were invited by public notice dated 17th April 1996 and after
23W.P.(L) Nos.1530/10 a/w 1213/10
considering the suggestions and objections received, the scheme was
submitted for approval in the meeting of the SRA held on 15th January
1998. By resolution passed in the meeting held on this date, it was
decided to publish the scheme with the approval of the State
Government. It is this broad scheme which is referred to and,
therefore, there is no substance in the contention that the slum
rehabilitation authority became functional for the first time on 15th May
1998 which is after coming into force of the scheme published on 9th
April 1998. The slum rehabilitation authority was already functional
and it is too late in the day to now go back to question its existence.
This contention of the petitioners must, therefore, be rejected.
ContentionII
11. It is contended on behalf of petitioners that Eviction is
sought to be made by an officer of Maharashtra Housing and Area
Development Authority (“MHADA” for short). The Slum Act read with
the Notification dated 25th October 2001 provides that MHADA is the
competent authority for the area comprising of lands within the State of
Maharashtra belonging to MHADA. In the instant case, the impugned
notices are not issued by MHADA but only by one of its officers in
whose favour no delegation order is passed or produced before this
Court.
12. Relying on the decision of the another Division Bench of
this Court in Amba Chawl Wadi Rahiwasi Seva Sangh (Amba Chawl
Wadi Rahiwasi Seva Sangh vs Municipal Corporation of Greater Mumbai
and others, 2005 (3) All.MR 889), it is submitted that since the land in
question belongs to MHADA, MHADA is the competent authority and
24W.P.(L) Nos.1530/10 a/w 1213/10
under the delegation of powers under Section 181 of the MHADA Act,
the officers have been delegated the powers to issue the eviction orders.
13. The petitioners' submissions are that the proceedings have not
been initiated by the competent authority. The argument is that the
eviction is ordered by the officers of Maharashtra Housing and Area
Development Authority. The officers of MHADA have not been
delegated any of the powers. The competent authority in this case is
MHADA and it is MHADA alone which could have passed the eviction
orders, is the submission.
14. There is no force in any of these submissions. Firstly, the
objections are technical in nature. A careful perusal of the eviction
order in this case shows that the joint proposal submitted by Bachidevi
Cooperative Housing Society and six others for grant of LOI by the SRA
was forwarded to the Mumbai office of the MHADA. After scrutiny of
the proposal and the documents forwarded by the Architect, which
included the list of the slum dwellers and the maps, by a
communication dated 6th August 2007, the record was forwarded by the
Mumbai office of MHADA to the Dy.Collector (Slum Rehabilitation).
The area and the number of slum dwellers were indicated in the
communication and the Mumbai office of MHADA. Thereafter, the
impugned order refers to the complaints from the Developer that 247
slum dwellers belonging to the three housing societies are not allowing
their dwelling houses/ huts to be demolished, As they are obstructing
the development work. Therefore, action be initiated against these
slum dwellers under section 33 and 38 of the Slum Act. It is based on
this request of the developers that the Dy.Collector by his letter dated
19th June 2009 and in furtherance of the G.R.dated 25th October 2001,
25W.P.(L) Nos.1530/10 a/w 1213/10
requested MHADA to take action under sections 33 and 38 of the Slum
Act. It is based on this communication that the Chief Officer of MHADA
heard the slum dwellers after issuing notice to them and has passed the
impugned orders of their eviction.
15. The argument that the order is not passed by MHADA but
by an officer of the same, who is not delegated any of the powers on the
face of it is untenable. Our attention has been invited to the G.R. Dated
25th October 2001 which declares MHADA as the competent authority
for the purpose of exercising powers of eviction of slum dwellers on the
lands which belong to MHADA. Thereafter, the matter was placed
before the concerned authorities of MHADA and they opined that there
are powers of delegation under section 181 of the MHADA Act, 1976.
However, these powers can be delegated to any of the officers and
particularly the Chief Officers and Executive Engineers of the Regional
Boards as well. After, deliberations and discussions, these powers have
been delegated to the Chief Officers of the Regional Boards and they
can exercise such powers and particularly those conferred by sections
33 and 38 of the Slum Act. In the instant case, the impugned order of
eviction has been passed by the Chief Officer of Mumbai Housing and
Area Development Board. It is he who has heard the matter and passed
the order as a competent authority. Mr.Rajyadhyaksha’s submission
that the Chief Officer is not competent authority, is, therefore, liable to
be rejected.
16. The argument is that the action for eviction has been initiated by
issuance of the notices not by MHADA but by its officers and
particularly the Assistant Land Manager, Mumbai Housing and Area
Development Board. The competent authority is MHADA but the
26W.P.(L) Nos.1530/10 a/w 1213/10
notices are not being issued by MHADA is the submission. A perusal of
the eviction notice would show that these have been issued by MHADA.
Mumbai Board is division of MHADA, so the notice is issued by
MHADA. It has been signed by the Assistant Land Manager of the
Regional Board. In this behalf, a perusal of the MHADA Act would
demonstrate that the terms “Authority”, “Board”, “Existing Board” are
defined therein. Chapter II provides for establishment of the Authority
and Boards. Section 16 falling therein is entitled as Authorities charged
with execution of this Act. Boards envisaged by the Act and particularly
section 18 are also authorities charged with execution of the Act.
Further section 29 of the Act sets out the powers, duties and functions
of the board. One of the obligation is to carry out such powers, duties
and functions as the Authority may delegate to the Boards. It is not the
case of the petitioners that the board have not been delegated any such
authority. Their argument is that the notices have not been issued by
MHADA nor have the impugned orders being made by it, as competent
authority. In that behalf, section 181 of the Act is clear. The Act confers
power to delegate. The authority, may by general or special order
delegate any power exercisable by it or any function to be discharged or
any duty to be performed by it or by under this Act or any of its officers
or to any board or any officers of the Board on such terms and
conditions as will be specified in such order. A copy of the order
delegating the powers has been produced before us. Further, our
attention is also invited to the Gazette Notification dated 26th March
1998 whereby the powers conferred by section 3 of the Slum Act,
Government of Maharashtra, appointed persons specified in the
notification as competent authorities for the areas respectively specified
against their names. The Chief Officers of Mumbai Housing and Area
Development Board is the competent authority for the areas comprising
27W.P.(L) Nos.1530/10 a/w 1213/10
all lands belonging to the Mumbai Housing and Area Development
board.
17. Our attention has also been invited to the notification dated 25th
October 2001 wherein the MHADA is appointed as competent authority.
The clarification sought by the Vice President and CEO of the Authority
from Government of Maharashtra and the decision ultimately taken by
MHADA on 27th December 2001 would go to show that the impugned
order passed by the Chief Officer is within the powers conferred upon
him as a delegate and he cannot be said to be wholly incompetent or a
usurper. The impugned orders, therefore, cannot be quashed on the
ground that they are issued without jurisdiction and, therefore, null and
void.
ContentionIII
18. Thirdly, it is submitted that serious prejudice is being
caused to the petitioners who are going to be allotted permanent
alternative accommodation on a land close to the railway track with
liability to be evicted in case railway authorities decide to acquire the
lands adjoining the railway tracks. It is submitted that the dwelling
units in favour of slum dwellers are going to be constructed near the
railway track, whereas the dwelling units which are to be for free sale
are to be constructed away from the railway tracks.
19. As regards the petitioners’ contention about the permanent
alternative accommodation being constructed near the railway track,
the allegation is denied by the respondents and reliance is placed on
the following averments in the affidavit in reply filed on behalf of
28W.P.(L) Nos.1530/10 a/w 1213/10
developer and particularly paragraph 10 thereof which reads as under:
“10. NOC OF RAILWAY
I say that this Respondent had applied for the NOC (No objection) from the Western Railway for the Buildings which will be constructed in the near future. The Railway Authorities have issued the No Objection Certificate dated 1st June 2010 to the buildings in accordance to the application of this Respondent. In any event the slum area of the societies of the petitioners are far away i.e. more than 500 mtrs away from the Railway Track Boundary, therefore the ground or issue raised by the Petitioners with respect to the Railway NOC is irrelevant and not tenable. Hereto annexed and marked to ExhibitI is the copy of “No Objection Certificate’ dated 1st June 2010 issued by the Railway Authorities.”
20. As regards the apprehension that there will be necessity to
demolish the buildings constructed near the railway tracks in future, it
is submitted that the proposed permanent alternative accommodation is
away from railway tracks and there is a 60 feet road between the land
on which the railway tracks are situated and the proposed permanent
alternative construction. It is submitted that on the one hand the
petitioners are liable to be evicted for unauthorized occupation of the
land belonging to a public authority like MHADA, which liability can be
immediately enforced and the petitioners are liable to be evicted
straightaway without providing any alternative accommodation. On
the other hand, the petitioners are being provided with temporary
alternative accommodation as well as permanent alternative
accommodation and, therefore, merely because the railway authorities
are asking the developer to provide for a standard format undertaking
indicating liability to have the buildings demolished in case of future
exigency does not mean that there is an imminent danger of the
29W.P.(L) Nos.1530/10 a/w 1213/10
permanent alternative accommodation being subjected to any such
apprehended demolition.
21. As far as other arguments with regard to the lands where the
petitioners and other slum dwellers being housed coming within the
vicinity of railway line is concerned, that has been amply clarified by
Mr.Dhakephalkar and the affidavit in reply and particularly para 10
which has been reproduced that there is no substance in this objection.
We are in full agreement with Mr.Dhakephalkar, learned Senior Counsel
appearing on behalf of the developer on this aspect. Hence, this
objection need not be sustained. It is accordingly over ruled and
rejected.
ContentionIV
22. The developer has not obtained any NOC for the high rise
buildings which was specifically required to be taken under the Letter
of Intent (for short “LOI”) as provided in Condition No.51 in the LOI
dated 17th November 2007 read with modification dated 24th March
2008.
23. As regards the contention that the developer has not
obtained NOC from the society for construction of high rise buildings,
reliance is placed by the respondents on the following averments in
paragraph 11 of the reply affidavit of the developer which reads as
under :
“11. NO GENERAL BODY RESOLUTION IS REQUIRED FOR CONSTRUCTION OF HIGH RISE BUILDINGS
I say that the existing average tenement density
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of the said slum area in the project is 791 tenements per hectare. There are various reservations on various portions of land in the said entire slum area. I say that earlier an eligible slum dweller was entitled for residential rehab tenement of 225 sq. fts. However, as the State Government vide its Notification dated 16th
April 2008 increased the carpet area of residential rehab tenement from 225 Sq. ft. to 265 Sq. ft., as a result this Respondent has been constrained to obtain approval/sanction to the plans of ground + 14 floors buildings. The clause 6 of the Appendix IV to the said Regulation 30(10) lay down the building regulation for grant of development permissions viz. Approval of building plans, grant of commencement certificate etc. Clause 6.11 of the said Regulation provides for allowing high rise Rehab Building. This high rise Rehab Building is permissible under the Development Control Regulation.
I say that in view of the increase in the carpet area of residential rehab tenement from 225 Sq. ft. to 269 Sq.ft. now to accommodate a given number of rehab tenements in 7 storied buildings on a given plot, the larger footprint (plinth) size would be required which is not available and therefore there is no alternative than to go vertical i.e. put additional floors resulting in increase in the height of the proposed Rehab Buildings. I further state that while constructing a building of more than 7 floors as per the mandatory requirement of fire fighting department the open space of 6 mtrs. all around the building is required to be kept 6 mtrs. as compared to 1.5 mtrs for 7 storied buildings. I say because of the said mandatory open spaces of 6 mtrs. all around the building of more than 7 floors, the footprint (plinth) size is further reduced and therefore additional floors are required to be added. Thus, in order to make scheme feasible/viable construction of high rise Rehab Building is inevitable.
I say that in view of the aforesaid the condition of General Body Resolution with respect to the high rise buildings has been relaxed and further modified
31W.P.(L) Nos.1530/10 a/w 1213/10
by the Slum Rehabilitation Authority and therefore the ExhibitN and ExhibitO to the Petition are immaterial and shall have no bearing at all.”
24. It is submitted on behalf of the respondents that initially
when the LOI was issued on 17th November 2007 with modification
issued on 24th March 2008, the condition to obtain the concurrence
from the cooperative society was inserted because the rehabilitation
tenement was to be of the carpet area of 225 sq.ft. and the construction
was to be of ground floor plus seven floors. However, the authorities
revised the norms and the carpet area of residential rehabilitation
tenement was increased from 225 sq.ft. to 269 sq.ft. so also the
authorities required the developer to provide for the necessary access to
the fire fighting engines and because of all these requirements the
authorities have not only permitted the developer to put up buildings of
ground floor plus 14 floors, but the following additional condition has
been imposed through Condition No.63. The same reads as under :
63. High Rise Rehab Building :
a) That you shall appoint Project Management Consultant with prior approval of Dy.Ch.Eng. (S.R.A.)/ E.E. (S.R.A.) for implementation/supervision/ completion of S.R. Scheme.
b) The Project Management Consultant appointed for the scheme shall submit quarterly progress report to Slum Rehabilitation Authority after issue of LOI.
c) That the developer shall execute tripartite Registered agreement between Developer, Society & Lift Supplying Co. or maintenance firm for comprehensive maintenance of the electro mechanical systems such as water pumps, lifts,
32W.P.(L) Nos.1530/10 a/w 1213/10
etc. for a period of ten years from the date of issue of Occupation Certificate to the Rehabilitation/Composite building.
Entire cost shall be borne by the developer and copy of the registered agreement shall be submitted to S.R.A. for record before applying for Occupation Certificate including part O.C.
d) The third party quality auditor shall be appointed for the scheme with prior approval of Dy. Ch. Eng. (S.R.A.)/E.E. (S.R.A.) for quality audit of the building work at various stages of the S.R. Scheme.
e) That the developer shall install fire fighting system as per requirements of C.F.O. and to the satisfaction of this department. The developer shall execute tripartite Registered agreement between Developer, Society & Fire Fighting equipment supplying Co., and/or maintenance firms for comprehensive maintenance for a period of ten years from the date of issue of occupation certificate to the building.
Entire cost shall be borne by the developer and copy of the Registered Agreement shall be submitted to S.R.A. for record before applying for Occupation Certificate including part O.C.
(f) That the structural design of buildings having height more than 24m shall be got peer reviewed from another registered structural engineer/educational institute.”
25. It is therefore submitted that insertion of the above clauses
in Condition No.63 more than compensates for any requirement to
obtain the concurrence from the cooperative society. Particular
emphasis is laid on subclause (c) of Condition No.63 which provides
that the developer shall provide for maintenance of electro mechanical
systems such as water pumps, lifts, etc. for a period of ten years from
33W.P.(L) Nos.1530/10 a/w 1213/10
the date of issue of Occupation Certificate to the
rehabilitation//composite building and that the entire cost for such
facilities shall be borne by the developer. The developer is also to
install fire fighting systems as per the requirements of C.F.O. and to the
satisfaction of the department. The developer is also to provide for
comprehensive maintenance of the fire fighting equipments for a period
of ten years from the date of issuance of Occupation Certificate to the
buildings and the entire cost for the same shall be borne by the
developer. It is, therefore, submitted that in view of the aforesaid safe
guards, the authorities themselves have taken sufficient care to protect
the rights and interests of the allottes of permanent alternative
accommodation and therefore there was no need to ask for concurrence
of the society. It is further submitted that in this view of the matter,
from about 750 members of the three cooperative societies, more than
600 members have supported the scheme of the respondent developer
and therefore also this Court may not exercise extra ordinary
jurisdiction under Article 226 of the Constitution of India.
26. Having heard the learned counsel for the parties at great
length and having given anxious consideration to the rival submissions,
we do not find any merit in this contention also. The contention that
the NOC for construction of high rise building has not been obtained is
without any basis and untenable. The NOC is not required and we are
in agreement with the developer’s counsel that the clarification in para
11 of the reply affidavit shows that the NOC is not necessary.
27. We do note that the condition imposed in Condition No.63
of the LOI dated 20th August 2009 provides various safeguards to the
members of the society. The societies as well as their members will
34W.P.(L) Nos.1530/10 a/w 1213/10
have the right to ensure that all the conditions of the LOI shall be duly
complied with by the respondent developer.
28. Having observed that there are enough safeguards for the
members of the society and the petitioners in particular in the terms
and conditions of the LOI itself and the authorities in charge of the
project being fully empowered to ensure compliance of the same, there
is no reason to entertain these petitions but in order to ensure that all
the necessary arrangements are made by the developer for complying
with condition no.63, we direct that the competent authority, issuing
occupation certificate for free sale apartments to be constructed by the
developer, shall, before issuing such a certificate, ensure that the
developer has made necessary provisions, not only for installation of
the lifts and other services in the rehabilitation apartments, but also for
their maintenance for ten years as provided in condition No.63.
29. Subject to the above observations and directions in paras
27 and 28, the petitions are dismissed. The adinterim stay granted
earlier stands vacated.
30. At this stage, the learned counsel appearing for the
petitioners prays that the adinterim stay operating during the
pendency of the petitions since 28th May 2010 may be continued for
some time in order to enable the petitioners to have further recourse in
accordance with law.
31. The learned counsel for the respondents oppose the
request and submit that the project has been sufficiently delayed.
35W.P.(L) Nos.1530/10 a/w 1213/10
32. Having heard the learned counsel for the parties and
having regard to various safeguards provided in the LOI itself, we are
of the view that the adinterim injunction operating so far is not
required to be extended any further, more particularly when the
occupants of the slum are to be provided with temporary alternative
accommodation as per the sanctioned scheme itself. It is only after the
present dwelling units in the present slum are demolished that the
redevelopment work of providing permanent alternative
accommodation will start. Therefore, we do not see any reason to
extend the adinterim injunction granted earlier.
CHIEF JUSTICE
S.C.DHARMADHIKARI, J.