1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.477 OF 2009 Satyanarayan Rajaram Dubey and others ..Petitioners. Vs. State of Maharashtra and others ..Respondents. .... Mr. R.V. Pai with Mr. S.M. Kambli for the Petitioners. Ms Uma Palsule Desai, AGP for Respondents 1, 3, 4 and 7. Mr. J.G. Aradwad for Respondent No.2. Mr. S.G. Surana for Respondent No.5. Mr. Dinyar D. Madon, Senior Advocate with Mr. C.N. Gole for Respondent No.6. ..... CORAM : DR. D.Y. CHANDRACHUD, J. 7th December, 2009. P.C. : 1. Rule, made returnable forthwith. By consent of Counsel and at their request taken up for hearing and final disposal. 2. By a judgment and order of this Court dated 30th December, 2006 the challenge to acquisition proceedings under Section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and 2 Redevelopment) Act, 1971 and to a final notification of the State Government dated 11th May, 2006 was rejected. The Court noted that a Slum Redevelopment Scheme had been sanctioned by the issuance of a letter of intent dated 26th July, 2006. However, while dealing with the grievance of the Petitioners that 70% of the slum dwellers had not actually supported the scheme, this Court directed the Slum Rehabilitation Authority to scrutinize the information that was placed on the record by the Petitioners upon which a decision was directed to be taken. The Court held that in the event that the competent authority came to the conclusion that the proposal submitted by the developer is not supported by an adequate number of slum dwellers (70% as required under the law), it would be open to the authority to consider any other proposal including the one that was submitted by the Petitioners, for development. 3. In pursuance of the judgment of this Court a decision was arrived at and ultimately proceedings came to before this Court once again which culminated in a judgment dated 28th July, 2008. The 3 order of this Court dated 28th July, 2008 was passed by consent and the material part thereof reads as follows : “The learned Counsel appearing for the High Power Committee, Mantralaya, Mumbai, which passed the impugned order dated 7.6.2008 submits that vide paragraphs 6, 7, 8 and 9 of the impugned order the Committee has given a hearing to the Petitioners as regards the main issue i.e. whether 70% of the eligible slum dwellers are supporting the respondents scheme. As regards the main issue, the Committee has accepted the finding of the Chief Executive Officer, SRA, who has in turn relied on the finding of the Additional Collector. It is clear from the record that the Authorities which are said to have verified whether 70% eligible slum dwellers had consented to the same have not heard the petitioner and the Authority which has heard the petitioners i.e. the High Power Committee has not gone into the question of 70% except by way of accepting the finding of the lower Authorities. In the circumstances, the learned counsel for the Respondent Nos.1, 3 and 4 states that the issue whether 70% eligible slum dwellers had supported the respondent No.5 society, at the relevant date i.e. the date of sanctioning the Scheme, will be gone into by the Chief Executive Officer, SRA, who shall hear all concerned including the petitioners and decide the matter within a period of eight weeks from the parties appear before him. The parties are directed to appear before the Chief Executive Officer, SRA on 4.8.2008. If any party is aggrieved by the decision it shall be entitled to approach the High Power Committee which shall decide the matter within six weeks of an Appeal being filed before him.” 4 4. In pursuance of the directions issued by the Learned Single Judge the Slum Rehabilitation Authority, after hearing the Petitioners and the concerned parties came to the conclusion by its order dated 30th September, 2008 that as a matter of fact there were 172 eligible slum dwellers; that the Fifth and Sixth Respondents had produced individual agreements of 138 eligible slum dwellers and that more than 70% of the slum dwellers had supported the co-operative society and the developer on the date of the issuance of a letter of intent dated 25th July, 2006. 5. This order was confirmed thereafter on a representation made by the Petitioners with the High Powered Committee. 6. The submission which has been urged on behalf of the Petitioners it that there was no warrant for the exclusion of the names of 78 slum dwellers from the list of eligible participants and that if these 78 slum dwellers are to be included, the Fifth and Sixth Respondents may not have the support of 70% of the slum dwellers. 5 Moreover, it was urged that an actual survey ought to have been carried out before the 78 slum dwellers came to be excluded. 7. In order to appreciate the submission it would be at the outset necessary to note that the notification as originally issued under Section 14 covered a wider tract of land admeasuring 7343.34 sq. mtrs. This Court in its judgment dated 13th December, 2006 noted that the final notification provided for the acquisition of an area admeasuring 5820.61 sq. mtrs. because in the meantime the Municipal Corporation had already acquired a portion of the land falling under the D.P. Road as a result of which 78 slum dwellers had already been shifted. This Court noted that accordingly an order was passed by the Additional Collector on 16th May, 2006, clarifying that out of 240 slum dwellers who are found to be eligible under the Slum Rehabilitation Scheme, 78 have to be excluded, leaving a balance of 162 slum dwellers. Therefore, it is evident that the 78 slum dwellers who were excluded, came to be excluded by virtue of the fact that a portion of the land which was initially notified for acquisition in the 6 preliminary notification was not acquired when the final notification was issued, since that part of the land had already been acquired for the D.P.Road. The 78 slum dwellers were situated on that portion of the land which had already been acquired and were therefore liable to be excluded for the purposes of the Slum Rehabilitation Scheme which was sanctioned on 5820.61 sq. mtrs. 8. When the second round of proceedings came before this Court on 28th July, 2008 the order which was passed by consent makes it clear that the issue was whether 70% of the eligible slum dwellers had supported the Fifth Respondent on the date when the Scheme was sanctioned, which was the relevant date. The scheme was sanctioned and a letter of intent, it may be noted, was issued on 25th July, 2006. The letter of intent specifies that the total number of tenements which which were regarded as eligible was 172 (comprising of 160 residential, 4 commercial and 8 residential cum commercial tenements). The Petitioners had submitted a representation dated 26th March, 2007. That representation also 7 proceeded on the basis that the names of 78 slum dwellers would have to be deleted since they were to be rehabilitated by the Municipal Corporation on an alternate site. 9. The Slum Rehabilitation Authority has noted that out of 240 slum dwellers who have been found to be eligible under Annexure II dated 18th February, 2005 issued by the Additional Collector (Encroachment / Rehabilitation) 78 slum dwellers have been excluded in pursuance of an order passed by the Additional Collector on 16th May, 2006. The grievance of the Petitioner is that this order of the Additional Collector was based only on the representation of the co-operative society. This, however, will not carry the case of the Petitioners any further since, as already noted above, even according to the Petitioners the names of the 78 slum dwellers were liable to be excluded since they were not covered by the acquisition notification in question and had already been rehabilitated. The net result of the discussion therefore is that out of 172 slum dwellers who were eligible in respect of the land which was 8 under acquisition, the Fifth and Sixth Respondents demonstrated that they had the consents of more than 70% slum dwellers. The deletion of the names of 78 slum dwellers was therefore based on a valid rationale viz. they did not form part of the land which had been acquired for the Slum Rehabilitation Scheme. 10. It is also necessary to take notice of the fact that these proceedings have been initiated not by any one of the 78 slum dwellers who had been excluded, but by a third party viz. the Petitioners. The Petitioners claim in paragraph 5 of their writ petition that their grandfather had taken the property on a lease rent of Rs. 300/- per annum in 1913 and that the Petitioners became owners by adverse possession. Once the Petitioners trace their holding to a leasehold right created in favour of their grandfather as alleged, the plea of adverse possession cannot stand scrutiny. In any event, the land has vested in the State Government in pursuance of the final acquisition notification issued under the Slums Act and that aspect of the matter stands finally concluded by the judgment of this Court 9 dated 13th December, 2006. 11. For all these reasons, no case for interference under Article 226 has been made out. The Petition stands dismissed. ****