chandka 1 WP-1368-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1368 OF 2010 Raghav Devji Solanki ..Petitioner versus The State of Maharashtra & Ors. ...Respondents Mr. P. M. Shah for Petitioner. Mr. J. S. Saluja, Assistant Government Pleader for Respondent Nos. 1, 2, 5 and 9. Mr. J. G. Aradwad for Respondent No. 3. CORAM : DR. D. Y. CHANDRACHUD & ANOOP V. MOHTA, JJ. 24 January 2011. P.C. : The Petitioner claims to be a tenant of Room No. 15C admeasuring about 26’ x 9’ situated on the first floor of Suleman Maniar Chawl No. A194, situated on Plot No. 972 to 976, TPS IV, Mahim Division of Gokhale Road (South), Dadar (West), Mumbai 400 028. The Petitioner claims to be a member of the Co-operative Society, the Fourth Respondent, and to be residing in the premises since 1962. According to the Petitioner his father chandka 2 WP-1368-10 was working as a sweeper in respect of the property in question and died in 1996. The Petitioner himself was working in the Mumbai Municipal Corporation as a sweeper. The case of the Petitioner is that after he married in 1970 he continued to reside there. The petitioner has three daughters and three sons. Initially according to the Petitioner when his father had acquired the premises in 1962 the family resided in premises on the ground floor. Subsequently in 1983-1984 the slum dwellers faced a scarcity of an adequate number of toilets and the Petitioner was requested to shift to the first floor. Accordingly an additional toilet was constructed in the area where the Petitioner resided and the Petitioner was provided with premises on the first floor above the area in which the toilet was constructed. The Petitioner has stated that he is in possession of documentary evidence and the premises have been assessed since 1962-1963. As a matter of fact, it has been stated that on 26 July 1999 the Petitioner was informed by the Ward Officer (Estates) of the Municipal Corporation that he was not eligible for service accommodation since he was occupying a private tenement which stood in his own name. 2. The property was declared as a slum and a slum rehabilitation scheme was sanctioned. The name of the Petitioner’s son Alji Raghav Solanki was mentioned at Serial No. 125 of Annexure II. The Deputy Collector of chandka 3 WP-1368-10 Dharavi Division informed the Secretary of the SRA by a letter dated 31 October 2007 that since the structure of the Petitioner was above a lavatory he could not be held eligible. A communication was also issued to the Petitioner on 5 January 2008. 3. The Petitioner had moved the High Power Committee aggrieved by the decision to hold him not to be eligible. The High Power Committee by its order dated 7 March 2009 held that the son of the Petitioner was eligible and that the Petitioner together with his son were entitled to only one structure as reflected in the voters’ list. According to the High Power Committee, the Petitioner had not produced any other or sufficient cogent documentary evidence to show the existence of a separate structure prior to 1 January 1995, the cut off date. 4. The Petitioner filed Writ Petition No. 1337of 2009 in which he filed an Affidavit dated 4 September 2009 stating that though he had produced several documents before the High Power Committee those have not been considered. A Division Bench by its Order dated 7 September 2009 set aside the order and remanded the proceedings for a fresh adjudication by the Committee. However, it was directed that if it was found that the documents annexed to the Affidavit of the Petitioner were not filed before the chandka 4 WP-1368-10 Committee at the relevant time, the Committee would be at liberty to refer the matter back to the Court, in which event, besides action against the Petitioner, his claim would be liable to be dismissed. The Committee has thereafter passed its impugned order dated 3 October 2009. The Committee has held that during the hearing of Application No. 71-A/2008 the documents which are now sought to be relied upon were not produced. The Committee has noted, in paragraph 5 of its order that the Petitioner had filed the following documents with Application No.71-A/2008: a. Ex-A- Letter dated 5.1.2008 issued by the Deputy Collector / SRA addressed to applicant. b. Letter dt. 31.10.2007 issued by the Deputy Collector (E/R) Dharavi Div. to Secretary SRA, c. Letter 5.4.2007 issued by Surveyor addressed to Deputy Collector (E/R) Dharavi Division along with Panchnama and Statement of the applicant. d. Copy of the application dated 22.12.2006 filed by the applicant before the Secretary SRA for including his name in Ann-II. However, in his Affidavit dated 4 September 2009 before this Court, the Petitioner had submitted the following documents:- i. Copy of the Old Ration Card No. 722398 issued on year 1975. ii. Copy of New Ration Card No. 0554133 issued on 3.3.2000. iii. Birth Certificate dated 11.8.1974 of applicant’s daughter issued by the Public Health Dept. of BMC. iv. Birth Certificate dated 4.11.1975 of applicant’s daughter issued chandka 5 WP-1368-10 by the Public Health Dept. of BMC. v. Electricity Bill dated 4.3.1983. vi. Rent Receipt issued by owners dated 14.12.1993 and 1.2.1994. According to the Committee these documents were not filed or produced before the Committee in the earlier proceedings. 5. Learned counsel appearing on behalf of the Petitioner placed on record a copy of the Appeal which was filed before the High Power Committee in February 2008 in which he has interalia relied upon the ration card, and has stated that he has documents to prove that even in the Municipal record, prior to his retirement the address in question was of the premises in his occupation. In the Petition which has been filed before this Court, the Petitioner has in paragraph 23 stated that his earlier Advocate had produced the relevant documents at the time of the hearing of the application before the High Power Committee on 7 March 2009. In paragraph 25 of the Petition it has been stated that while the Petitioner tenders an unconditional apology for not filing documents along with the application, these documents were tendered during the course of arguments by his Advocate. 6. We have had due regard to the fact that the documents which are now sought to be tendered on behalf of the Petitioner include copies of the old chandka 6 WP-1368-10 ration card, new ration card, birth certificates of his children issued by the Municipal Corporation and electricity bills and rent receipts. The Petitioner was employed as a sweeper in the Municipal Corporation. In our considered view, having regard to the contents of the Appeal which was filed by the Petitioner before the High Power Committee and the statements which are made in the present Writ Petition, it would be appropriate and proper if the High Power Committee is directed to consider the matter afresh including on the basis of the documents which are relied upon in the Affidavit dated 4 September 2009. We clarify that we have not had occasion to consider the authenticity of the documents in question which it will be open to the High Power Committee to verify. In a matter as such as this, which relates to the provision of basic housing accommodation to a slum dweller; who in the present case was working as a sweeper in the Municipal Corporation, it would not be appropriate for the High Power Committee to stand on a technicality. In the circumstances, we set aside the impugned order of the High Power Committee dated 3 October 2009 and direct the Committee to pass a fresh order after furnishing to the Petitioner an opportunity of being heard. The High Power Committee shall evaluate all the material which has been produced by the Petitioner and after considering the merits of the contentions of the petitioner pass a reasoned order in accordance with law preferably within a period of three months. chandka 7 WP-1368-10 7. The Petition is accordingly disposed of. (Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.)