*1* wpl.1128.1129.11.908.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (Lodging) NO.1128 OF 2011 WITH WRIT PETITION (Lodging) NO.1129 OF 2011 Prashant Waman Bhoir. (WPL/1128/11) Sunil W. Bhoir. (WPL/1129/11) ..Petitioners -versus- S.S.Sandu, the Administrator and Divisional Commissioner, Konkan Division, Mumbai and others. ..Respondents ............ Ms.Neeta Karnik i/b S.S.Sawant, for the Petitioners in both petitions. Mr.S.G.Surana, for the Respondent Nos.5 and 7 in both petitions. Mr.B.V.Phadnis i/b Utangale & Company, for the Respondent Nos.21 and 22 in WP(L) No.1128/2011. Mr.P.G.Lad, AGP, for the Respondent Nos.2, 3, 4 and 23 in WP (L) No. 1128/2011. Mr.D.A.Nalawade, Government Pleader, for the Respondent Nos.2, 3, 4 and 23 in WP(L) No.1129/2011. Mr.J.G.Reddy, for the Respondent Nos.21 and 22 in WP(L) No.1129/2011. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 18th October, 2011. P.C.: 1 As both Writ Petitions involve common questions of facts and law, they are being disposed of by this common judgment. 2 By Writ Petition (Lodging) No.1128/2011 under Article 226 of the Constitution of India, the Petitioner prays that the records in relation to the order dated 13.05.2011 passed by the Administrator and Divisional Commissioner, Konkan Division, Mumbai in Slum Appeal No. 76/2011 be called for, so also, the records in relation to the order dated *2* wpl.1128.1129.11.908.sxw 24.01.2011 of the Deputy Collector, Encroachment-Removal and Competent Authority, Bhandup and both orders be quashed and set aside after examining their legality and validity, so also, propriety. 3 The Petitioner has approached this Court in writ jurisdiction by contending that he is residing at Room No.82/Hut No.21, Chandranagar, LBS Marg, Bhandup (West), Mumbai-400078. It is his case that the structures on the immovable property are chawl type old structures and the Chandranagar Slum Rehabilitation Cooperative Housing Society has been formed by the occupants of the said structures. It is the case of the Petitioner that the Society executed a development agreement with the Builder and Developer. The details of the agreement are referred to in the petition, so also, the orders of the authorities. It is the case of the Petitioner that though the Petitioner is eligible, was not held to be entitled to the benefits of the redevelopment scheme inasmuch as it has been erroneously concluded that the Petitioner could not prove the existence of his structure on the cut off date, namely, 01.01.1995. The Petitioner has been continuously pressing his claim for eligibility and presently, the proceedings in relation to the same are pending before the Slum Rehabilitation Authority (in short, SRA). However, during the pendency of these proceedings and on the alleged ground that the Petitioner has failed to remove himself from the subject premises that the proceedings were initiated by the competent authority under section 33 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (in short, Slum Act). The show cause notice issued by the authority, namely, the Deputy Collector came to be replied and the Petitioner’s grievance is that although he remained present before the Deputy Collector, yet, he was denied reasonable and fair opportunity to put forward his grievance. The Deputy Collector hastily passed an order *3* wpl.1128.1129.11.908.sxw directing that the Petitioner should be removed from the existing premises. The Petitioner preferred an appeal and his appeal was dismissed by the Administrator and Divisional Commissioner, Konkan Division, Mumbai, namely, Appellate Authority by exercising the powers under section 35 of the Slum Act. Aggrieved by these orders, the instant Writ Petition has been filed. 4 Ms.Karnik, learned counsel appearing for the Petitioner, contended, firstly, that this scheme which has been proposed for rehabilitation of the slum dwellers is not legal and valid. The scheme propounds that the Builder and Developer will put up the buildings for rehabilitating the slum dwellers and only thereafter, he would be in a position to exploit potential and benefits attached to the land and construct a building consisting of flats for sale in the open market. However, the Builder and Developer has failed to construct a building which could be said to be authorized and legal. Inviting my attention to the Letter of Intent (LOI) issued by the Slum Rehabilitation Authority, Ms.Karnik submits that the letter of intent was to remain valid for a limited period. The LOI issued on 04.09.2003 has been cancelled by the SRA vide its further communication dated 18.08.2007. If the Commencement Certificate and permissions are perused carefully, it would be evident that they are only permitting construction upto plinth level and that too for rehab building. The rehabilitation building is stated to have been completed, but there is no valid commencement certificate/ building permission. If such is the state of the rehab component, then the Developer and the Society cannot insist upon the Petitioner’s eviction from the existing premises. In other words, her submissions are that any eviction under section 33 of the Slum Act can be directed provided the competent authority is satisfied that there is valid and authorized SRA *4* wpl.1128.1129.11.908.sxw scheme. If there is duly sanctioned scheme for rehabilitation of the slum dwellers and if they are not willing to cooperate, then, their forcible eviction can be directed and not otherwise. If the scheme is incapable of enforcement, then, there is no warrant for directing eviction. For all these reasons, the impugned orders be quashed and set aside. 5 Her second submission is that the order has been passed by the Deputy Collector, Encroachment-Removal, Bhandup. This officer is not a competent authority for ordering and directing eviction under the Slum Act. The Slum Act confers power under section 33 on the specified authority. My attention is invited to section 33 and it is submitted that the said provision contemplates the orders that can be passed for eviction. The provision is empowering the authority to pass the orders for eviction. The term “authority” has been defined in the Slum Act. My attention is invited to the definition of the said term and it is contended that by no stretch of imagination the Deputy Collector can be said to be an authority. The term “authority” cannot be said to be covering an officer who is Deputy Collector and not even of the rank of a Collector. There has to be an authorization even of the Collector of the District specifically by the State Government to perform the functions of the Collector under the Slum Act. In absence of all this, it is only the Chief Executive Officer of the SRA who could be said to be empowered to pass such orders. In the instant case, the order has not been passed by any such authority, therefore, on this ground as well, the impugned orders deserve to be quashed and set aside. 6 Lastly, Ms.Karnik contends that assuming and without admitting that there is valid and enforceable scheme and that the Deputy Collector is duly authorized to pass an order under section 33 of the Slum Act, yet his order is bad in law because he has failed to abide by the *5* wpl.1128.1129.11.908.sxw principles of natural justice. Inviting my attention to the Roznama and details of the hearings that are being maintained in the records of the Deputy Collector, it is contended that when the Deputy Collector ordered that the photographs and video shooting be conducted at site and notice be given to the occupants, then, by no stretch of imagination prior to completion of such exercise, he could not have passed the impugned order. He passed the order without giving opportunity to the Petitioner. The order was passed by the Deputy Collector in undue haste. He has passed the order within less than 60 days from the issuance of the show cause notice and this can hardly be said to be in compliance with the principles of natural justice. For all these reasons, she submits that the impugned orders be quashed and set aside. 7 On the other hand, Mr.Surana, learned counsel appearing for the Society and Mr.Lad, learned AGP appearing for the State Authorities, so also, Mr.Reddy, learned counsel appearing for the SRA, supported the impugned orders. They contended that the Petitioner is ineligible slum dweller. He has no right in the property. He has not been held to be eligible to the benefits of the scheme. His name has to appear in the relevant documents which are prepared for the benefits of the slum dwellers and that exercise is undertaken by the collectorate. If the Petitioner is illegal occupant, then, he cannot complain that the scheme is invalid. It is precisely to remove such obstacles that the powers of eviction under section 33 of the Slum Act are conferred by the Act. In these circumstances and when there are findings of facts recorded by the authorities, then, the orders require no interference. It is pointed out by producing the original records that the scheme is fully authorized and legal and there is Letter of Intent issued by the SRA and that letter clearly sets out that it will remain valid till such time as the commencement *6* wpl.1128.1129.11.908.sxw certificate is obtained by the Developer and after obtaining commencement certificate, it will remain valid till completion of estimated project period. The permissions are produced in relation to both rehab portion and saleable portion. As far as the rehab portion is concerned, it comprises of two buildings. There are commencement certificates issued in relation to the buildings which are meant for rehabilitation of the slum dwellers. Once there is completion certificate issued in respect of one building, then, it is too late to complain that the scheme is unenforceable and illegal. There is nothing unauthorized or illegal about the same and in any event, it is not open for the Petitioner to urge that the scheme cannot be enforced. 8 Further my attention is invited to section 3 and the notification issued by the State Government whereunder in relation to the structures within the area of operation of the Deputy Collector, Encroachment-Removal, Bhandup, it is the Deputy Collector who has been authorized to act as a competent authority under section 33 and for the purpose of the Slum Act. In these circumstances, there is no substance in this contention as well. 9 As far as the objection in relation to non compliance with the principles of natural justice is concerned, it is contended that the Petitioner is ineligible. It is not as if the Petitioner can insist on prolonged and detailed hearing like a Court of law and when he has no authority in law to be in possession and occupation of the premises. He cannot be heard to say that there is no compliance with the principles of natural justice. In any event, the moment his eligibility is upheld, he would be entitled to the benefits of the scheme. This Court can protect the Petitioner by directing that until such time the eligibility is proved, one tenement in the rehab component/ building should be kept reserved so as *7* wpl.1128.1129.11.908.sxw to enable the Petitioner to go and occupy the same, the moment he is held to be eligible in terms of the scheme. For all these reasons, the petition be dismissed. 10 With the assistance of the learned counsel appearing for the parties, I have perused the petition and annexures thereto, so also, the compilation of documents and original record. I have also perused the statutory provisions brought to my notice. 11 As far as the first contention of Ms.Karnik is concerned, what has been pointed out in the affidavits that are filed on behalf of the State and the authorities is that the Petitioner was not cooperating by vacating his tenement and obstructing the implementation of the scheme. An application was made to evict the Petitioner and direct him to shift to the transit accommodation. Accordingly, the notice was issued and the parties were heard. The main contention was that the Developer was not properly appointed and thereafter, the scheme of development is not proper. Secondly, the question of eligibility was raised. The Deputy Collector has observed that Annexure-II has been finalized and 116 hutments were found in the said area out of which 67 were eligible and out of them, 64 have given consents to the implementation of the scheme and DC Regulation 33(10) has been complied with. The Petitioner has not given the consent. The Letter of Intent has been granted and the scheme has been sanctioned. In these circumstances, there is nothing illegal in passing the order of removal of the Petitioner. 12 As far as the eligibility is concerned, what the authorities have pointed out is that Annexure-II has been finalized and the Petitioner can raise grievance with regard to eligibility which he has already raised by approaching the SRA. The issue of his eligibility cannot be decided in these summary proceedings. There is much substance in this contention of *8* wpl.1128.1129.11.908.sxw the Respondents. 13 A careful perusal of the response given by the Petitioner himself to the notice issued by the competent authority would indicate that the Petitioner is fully aware that he has to produce documentary evidence to prove his eligibility and particularly his occupation and possession prior to 1995. He is aware of the fact that the plot of land was declared as slum and accordingly, those eligible are entitled for free tenements under the scheme. He is also aware of the fact that Chandranagar Cooperative Housing Society has been formed and registered and the slum dwellers are members of the society. He has also set out in the reply that the Developer has been appointed in whose favour the Letter of Intent has been issued. He has referred to the names and details of the Developers. He is also aware of the fact that he has received a notice under section 33 of the Slum Act. All that he states in his reply is that he has been held as non eligible on the ground that no documentary evidence is produced and the competent authority never asked him to produce the document, but directly shown him as non eligible. He has stated that he has preferred an appeal to the Slum Rehabilitation Authority and unless and until his appeal is decided and his eligibility is determined, he should not be evicted nor the premises be demolished. Pertinently, what he has said is that he has never refused to participate in the scheme and his only contention was that unless and until his eligibility is decided, he cannot be evicted and his structure cannot be demolished. 14 Once such is the stand taken by the Petitioner, then, he can be hardly heard to say that the scheme is invalid, illegal, unenforceable or that there are no valid permissions or authorization in favour of the Developer. He himself has referred to the third Letter of Intent dated *9* wpl.1128.1129.11.908.sxw 18.08.2007 and annexed a copy of the same. All that he argues is that earlier Letter of Intent dated 04.09.2003 is cancelled. However, in this regard, the SRA has produced for my perusal original record. This is to support the statement made in paragraph 5 of the affidavit of Mr.P.B.Bandgar, Assistant Engineer of SRA (Respondent Nos.21 and 22) filed in this Writ Petition on 21.09.2011. What has been pointed out is that the revised LOI is dated 18.08.2007 and the SRA approved the plans for rehab building on 12.12.2003 and issued the commencement certificate on 06.01.2004. What has been also pointed out is that on the basis of the approval granted for construction of the rehab building, the Developer has constructed the building consisting of 64 tenements and 57 tenements have been allotted to the eligible slum dwellers. The SRA has approved the plan for saleable building on 23.08.2007 which consists of 07 commercial tenements for eligible slum dwellers. Even in respect thereto, the commencement certificate was issued on 20.04.2011 and the Developer has started construction of the sale building. From the original files produced by Mr.Reddy, I have seen each of these documents and I am satisfied that in terms of the conditions that have been imposed under the Letter of Intent and finding that it is in force till the commencement certificate and permissions for construction have been issued, that the scheme cannot be said to be illegal, invalid and unenforceable as contended by the Petitioner. The Petitioner has raised all sorts of contentions so as to perpetuate his stay in the tenement and to disable the Developer to recover his costs by putting up the building for sale of tenements therein in the market. The condition No.40 of the LOI dated 18.08.2007 has been referred to by the Petitioner himself in his reply to the show cause notice. It is stated therein that this LOI was valid for three months from that date, however, if Intimation of Approval (IOA) or *10* wpl.1128.1129.11.908.sxw Commencement Certificate (CC) is obtained for any one building, then, the LOI dated 18.08.2007 will remain valid till completion of the project. In these circumstances and when it is pointed out that both LOIs and CC have been issued not only in respect of the rehab component but also saleable component and they are valid, then, it cannot be said that the scheme itself is invalid. On the strength of the valid LOI dated 18.08.2007 and on the basis of the permissions granted, the Builder and Developer can continue to construct the buildings for rehabilitation of the slum dwellers and for sale in the open market. In these circumstances, I do not find that the impugned orders suffer from any infirmity or error apparent on the face of record. 15 Equally, I find that no plea has been raised before the authorities that the Deputy Collector, Encroachment-Removal is not the competent authority. This contention is raised for the first time during the course of arguments in these petitions. However, since the issue is of eviction of slum dweller, I carefully perused the affidavits filed on record and the relevant notifications brought to my notice. I am satisfied from perusal of the notification issued under section 3 of the Slum Act that as far as the Deputy Collector, Encroachment-Removal, Bhandup is concerned, he has been authorized to act as a competent authority in terms of the relevant Government Resolutions which are issued in exercise of powers under section 3 of the Slum Act. Therefore, it is not as if the powers under section 33 have been usurped by the Deputy Collector in this case. 16 As far as the third contention with regard to the non compliance with the principles of natural justice is concerned, even this contention raised by the Petitioner is without any force. The Petitioner has raised the issue of his eligibility which cannot be decided in the *11* wpl.1128.1129.11.908.sxw proceedings for summary eviction. Therefore, the Petitioner was called upon to show cause why he should not be evicted for obstructing the implementation of the scheme. The satisfaction under section 33 has been reached in this case inasmuch as both, the competent authority as also the appellate authority, have found that the scheme envisages removal of those who are obstructing the implementation of the scheme. It is in terms of these powers, that the impugned orders are passed. The Appellate Authority has rightly held that if certain persons are ineligible, that aspect cannot fall within the scope of the powers that are conferred under sections 33 and 35 of the Slum Act. Denial of hearing, therefore, does not inflict any injustice in the proceedings under sections 33 and 35 and there is limited role of the competent authority. The competent authority has to ensure that the eligible slum dwellers are not deprived of benefits such as transit accommodation or alternate accommodation. However, both authorities have directed that while the Petitioner should be removed or evicted, he must be provided temporary/ transit accommodation. Thus, even if the Petitioner is presently held to be ineligible, he has been provided with temporary/ transit accommodation. Such being the nature of their orders, I do not find, at the instance of a person who has no right in the property and who is a slum dweller going to be rehoused/ rehabilitated, that the interference in writ jurisdiction is warranted and necessary. 17 As a result of the above discussion, there is no alternative but to dismiss both Writ Petitions and they are, accordingly, dismissed. However, it is directed that both the Petitioners who have moved the SRA should be provided the transit accommodation or compensation in lieu thereof by the Society and the Developer and the issue of their eligibility should be decided by the SRA within a period of three months from the *12* wpl.1128.1129.11.908.sxw date of receipt of copy of this order. Until the issue of their eligibility is settled, the Developer as also the Society shall not hand over possession of two tenements in the rehab component to any third parties or other slum dwellers or project affected persons. 18 At this stage, Ms.Karnik prays that ad-interim orders be continued so as to enable the Petitioners to challenge this order in a higher court. This request is opposed by the learned counsel appearing for the Respondents and they submit that as far as the Petitioner in Writ Petition (L) No.1128/2011 (Prashant Waman Bhoir) is concerned, he has been held to be ineligible and he is refusing to shift to the transit accommodation although same is ready. As far as the Petitioner in Writ Petition (L) No.1129/2011 (Sunil Bhoir) is concerned, he has already moved to the transit accommodation. 19 Once I am of the opinion that the Petitioners are sufficiently protected inasmuch as until their eligibility is determined and decided, their permanent alternate accommodation is secured and even the arrangement for temporary/transit accommodation has been made, I do not find any reason to continue the ad-interim orders. The prayer is rejected. 20 Writ Petitions are dismissed. No costs. (S.C. Dharmadhikari, J)