1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL APPEAL APPEAL (LODGING) NO.859 OF 2004 (LODGING) NO.859 OF 2004 (LODGING) NO.859 OF 2004 IN IN IN WRIT WRIT WRIT PETITION NO.1936 OF 2004 PETITION NO.1936 OF 2004 PETITION NO.1936 OF 2004 WITH WITH WITH NOTICE NOTICE NOTICE OF MOTION NO.4749 OF 2007 OF MOTION NO.4749 OF 2007 OF MOTION NO.4749 OF 2007 WITH WITH WITH CHAMBER CHAMBER CHAMBER SUMMONS NO.120 OF 2008 SUMMONS NO.120 OF 2008 SUMMONS NO.120 OF 2008 WITH WITH WITH CHAMBER CHAMBER CHAMBER SUMMONS NO.131 OF 2008 SUMMONS NO.131 OF 2008 SUMMONS NO.131 OF 2008 AND AND AND WITH WITH WITH CHAMBER CHAMBER CHAMBER SUMMONS NO.140 OF 2008 SUMMONS NO.140 OF 2008 SUMMONS NO.140 OF 2008 Maharashtra State Road Transport Corporation Appellants vs. 1. Sulakshana Suresh Bandekar & ors. Respondents ALONG ALONG ALONG WITH WITH WITH APPEAL APPEAL APPEAL (LODGING) NO.128 of 2005 (LODGING) NO.128 of 2005 (LODGING) NO.128 of 2005 IN IN IN WRIT WRIT WRIT PETITION NO.1830 OF 2004 PETITION NO.1830 OF 2004 PETITION NO.1830 OF 2004 AND AND AND WITH WITH WITH CHAMBER CHAMBER CHAMBER SUMMONS NO.130 OF 2008 SUMMONS NO.130 OF 2008 SUMMONS NO.130 OF 2008 Maharashtra State Road Transport Corporation. Appellants vs. 1.Shivaji Krishna Zunzare, deceased substituted by legal heirs - 1a. Smt.Kalpana Shivaji Zunzare & ors. Respondents Mr.G.S. Hegde for the Appellants. Mr.Vijay D. Patil for Respondent No.1. 2 Mr.D.D.Madon, Senior Advocate with Mr.S.A.Sawant with Mr.H.V.Kode for Appellant in support of Notice of Motion No.4749/2007 for Respondent No.6. Mr.Arif Bookwala, Senior Advocate i/b.Mr.J.S.Chandnani for Applicant in Chamber Summons No.128/2008. Mr.Abhay L. Patki for Applicant in Chamber Summons No.140/2008. Mr.Pradeep Jadhav, AGP for Respondent Nos. 2 & 3. Mr.V.S.Kapse for Applicant in Chamber Summons No. 130/2008 in Appeal (Lodging) No.128/2005 (Not on Board) and Chamber Summons No.131/2008 in Appeal (Lodging) No.859/2004 (Not on Board.). Mr.V.P.Sawant for the Applicant in Chamber Summons No.120/2008 (Not on Board) in Appeal (Lodging) No.859/2004. CORAM : DR.S.RADHAKRISHNAN & ANOOP V. MOHTA,JJ. DATED : 5th February, 2008 P.C. We have heard the learned counsel for the Appellants and the learned counsel for the respective Respondents for some time and also a number of intervenors who have taken out various chamber summonses in the above Appeals. 2. The learned Single Judge by his Order dated 23rd July, 2004 has disposed of Writ Petition No.1838/2004 and Writ Petition No.1936/2004 holding that the petitioners therein, namely; Shivaji Krishna Zunjare (W.P. No.1838/2004) and Sulkshana Suresh Bandekar (W.P. No.1936/2004), are entitled to be allotted tenements 3 under the Slum Rehabilitation Authority’s (SRA) Scheme. 3. Aggrieved thereby the Maharashtra State Road Transport Corporation has preferred the above Appeals challenging the Order of the learned Single Judge. 4. It is unfortunate to note that inspite of a very categoric and explicit direction issued by this Court at the time of admitting the above Appeals that S.R.A. to decide the controversy about the builder eligible for carrying out the scheme and take appropriate decision in this behalf with a period of eight weeks, the S.R.A. has not yet decided. The S.R.A. was also directed to consider whether two additional tenements can be earmarked for the Appellant-M.S.R.T.C. and make a report in that behalf to this Court within eight weeks of the finalization of the name of the builder. Time to submit a report was further extended by six weeks from 23rd June, 2005. The S.R.A. thereafter did not even bother to move this Court for extension of time to file report and did not file report till today. 5. In the said Order dated 28.04.2005 the Division Bench had made it clear that the structures of the original writ petitioners shall not be demolished without providing to them alternative accommodation and they be allowed to occupy the tenements in the new 4 building subject to giving an undertaking to this Court that they will abide by the order passed in these Appeals. 6. Now, it has been brought to our notice that recently in view of the various controversies which keep cropping up between S.R.A., Slum dwellers, occupiers, builders, the Full Bench has delivered a Judgement on 01.11.2007 in Writ Petition No.1326/2007 along with connected Writ Petitions wherein it is held as follows: "A) While exercising the jurisdiction and powers under Article 226 of the Constitution of India in matters concerning Rehabilitation of Slum Dwellers and Schemes framed under relevant statutes, distinct yardsticks cannot be carved out nor separate parameters laid down by this Court. B) However, the limits and restrictions which are placed on the writ jurisdiction of this Court by Authoritative pronouncements of Supreme Court would govern the writ petitions challenging the orders, actions/inaction of the Authorities in charge of implementing and/or monitoring the slum rehabilitation scheme. C) It is clarified that ordinarily a petition under Article 226 of the Constitution of India can be filed and depending upon the facts and circumstances of each case, this Court can decide to intervene, even if, alternate remedy provided above is not exhausted by the petitioner. However, such intervention should be minimum and the Court must abide by the Rule of caution and Prudence enunciated by the Supreme Court in this behalf. In exceptional and deserving cases, this Court would exercise its powers and no general rule can be laid down in that behalf. D) As far as disputes and questions involving 5 the slum dwellers and Slum Rehabilitation Authority/ Public Body/State, Cooperative Housing Society of Slum Dwellers and Developers, Registered Cooperative Housing Society of Slum Dwellers on one hand and proposed Cooperative society on the other, Developers and S.R.A./State, a Writ Petition under Article 226 of the Constitution of India would not lie or would be entertained unless and until the parties exhaust the remedy of approaching the High Powered Committee referred to above. E) The only exception that can be made to Clause (D) above, is with regard to Writ Petitions challenging the validity and legality of the Rules, Regulations and Policy Circulars/directives issued under the Statutory provisions or the vires of the Statutory provisions themselves. In such cases, the Court would not insist upon exhaustion of remedies stipulated above. Similarly, if a High Powered Committee/Authority refuses to act on the representations/applications despite proof of the same having been received, then, in appropriate cases, directions can be issued to the said Authority. However, the parties must satisfy this Court that they had made a grievance with regard to inaction of High Powered Committee to the State Government and it has also refused to issue any directions to either that Authority or SRA. Thus, if the State inaction is also alleged, then, the petition can be entertained. However, grant of relief would depend upon this Court satisfying itself about the promptness or sense of urgency shown by the aggrieved party apart from its bonafides in approaching this Court. F) Needless to state that the Rule of Prudence and caution evolved by the Supreme Court with regard to exhaustion of alternate remedy would always be applicable. If the disputes and questions raised involve factual aspects or necessitate leading of oral and documentary evidence, then, this Court c an refuse to interfere in Writ jurisdiction leaving open to the parties, remedy of suit in competent civil court or Arbitration. G) It is clarified that purely private 6 disputes or those involving contractual rights, brought before this Court by way of writ petitions, will have to be ordinarily resolved by recourse to civil suit or arbitration and this principle would apply even to petitions where the State, S.R.A., B.M.C., MHADA etc. are impleaded as parties. H) An exhaustive category of such cases and disputes cannot be framed and the General principles governing writ jurisdiction would be applicable having regard to the facts in each case." 7. We have not gone into the merits of the Appeals and and refer the matter to High Powered Committee and keep all issues open so as to enable the High Powered Committee to consider without being influenced by the observations made by the learned Single Judge in the judgment referred to hereinabove. 8. The original petitioners, respondents as well as the Appellants and Respondents in the above Appeals as well as other builders who have taken out chamber summons and some of the slum dwellers who wanted to get impleaded themselves in the above Appeals by way of Chamber Summons No.120/2008 are allowed to appear before the said High Powered Committee. The names of the slum dwellers appearing in Annexure-II will also be entitled to appear before the High Powered Committee. The slum dwellers who are members of the Society as well as slum dwellers who claim to be eligible to be members of the society shall also be entitled to appear before the High 7 Powered Committee. The parties shall approach the said High Powered Committee within two weeks from today by filing written submissions. All the parties in the above Appeals shall make their submissions by way of affidavits before the High Powered Committee. The said High Powered Committee shall thereupon fix a schedule of hearing and dispose of the entire matter and decide as to who are entitled to two tenements and who should be eligible builder, as expeditiously as possible within a period of three months from today. 9. Needless to state that the structures wherein the original petitioners are staying shall not be demolished till the decision of the said High Powered Committee and for a period of four weeks thereafter. 10. All issues and contentions are kept open to be agitated before the High Powered Committee. The petitioners membership in the Society will continue till the High Powered Committee decides the entire issue and as substituted by the High Powered Committee. 11. The learned counsel appearing on behalf of S.R.A. submits that within a period of two weeks from today, the concerned report will be submitted to the High Powered Committee. 8 12. The learned counsel for the Appellant in both the Appeals undertakes to get both the above Appeals numbered within a period of three weeks from today failing which M.S.R.T.C. shall not be heard before the High Powered Committee. 13. With the above observation, both the above Appeals stand disposed of. In view of disposal of both the Appeals, all the Notices of Motion and Chamber Summonses in the respective Appeals also stand disposed of. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.] [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, J.] J.] J.]