1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 156 OF 2006 ALONG WITH SUO MOTO WRIT PETITION (PIL) NO. 6 OF 2007 PUBLIC INTEREST LITIGATION NO. 156 OF 2006 Shailesh Gandhi ) Indian Inhabitant and citizen residing at ) B2, Gokul Apartment, Podar Road, ) Santacruz (W), Mumbai 400 054. ).. Petitioner Versus 1) State of Maharashtra ) through its Chief Secretary having his ) office at Mantralaya, Mumbai 400 032. ) 2) Department of Home ) through the Home Secretary ) having his office at Mantralaya ) Mumbai 400 032. ) 3) Anti Corruption Bureau ) through the DGP, ACB ) having his office at Madhu Industrial ) Estate, 1st Floor, Pandurang Budhkar ) Marg, Worli, Mumbai 400 013. ) 4) Slum Rehabilitation Authority ) Gruh Nirman Bhavan, Bandra (East) ) Mumbai 400 051. ).. Respondents 2 ALONG WITH SUO MOTO WRIT PETITION (PIL) NO.6 OF 2007 Forum for Improving Quality of Life in Mumbai ) Suburbs through its Chairman, Secretary and ) Joint Secretary, 68, Vakola Pipe Line Road ) Santacruz (East), Mumbai 400 055. ).. Petitioners Versus 1) The Chief Secretary to the Government of ) Maharashtra, General Administration ) Department, Mantralaya, Mumbai 400 032.) 2) Slum Rehabilitation Authority ) having office at Griha Nirman Bhavan ) 5th Floor, Bandra (East), Mumbai 400 051. ) 3) The Maharashtra Housing & Area ) Development Authority having office at ) Griha Nirman Bhavan, Bandra (East) ) Mumbai 400 051. ) 4) Bombay Municipal Corporation of Greater ) Bombay, through its Municipal ) Commissioner, having their Head Office ) at Mahapalika Marg, Fort, ) Bombay 400 001. ).. Respondents Mr. Shailesh Gandhi, Petitioner, present in person. Mr. R.M. Kadam, Advocate-General, a/w Mr. S.R. Borulkar, Public Prosecutor and Mr. N.P. Pandit, Assistant Government Pleader, for the State. Mr. Shekhar Naphade a/w Mr. G.D. Utangale i/b Utangale & Co. for Slum Rehabilitation Authority. Mr. J.K. Mistry Amicus Curiae a/w Mr. Uday P. Warunjikar, Assistant go Amicus Curiae in Suo Moto Writ Petition No.6/2007. 3 CORAM : SWATANTER KUMAR, C.J. AND S.C. DHARMADHIKARI, J. JUDGMENT RESERVED ON : 27TH AUGUST 2009 JUDGMENT PRONOUNCED ON : 17TH SEPTEMBER 2009 JUDGMENT (PER SWATANTER KUMAR, C.J.) The Petitioner in Public Interest Litigation No.156 of 2006, a full time Right to Information Activist and the Convenor of the National Campaign for People’s Right to Information, has filed the above Public Interest Litigation in this Court averring that a major fraud is being perpetrated on the citizens, the slum dwellers and the State by hijacking a welfare scheme to benefit a few at the cost of the public at large. According to him, number of reports had appeared in the media in this regard. In the case of Arun Ramavlal Pathak v M/s Siddhivanayak Construction Co. and others, Misc. Application No.76 of 2005, the Court of Special Judge, Mumbai had directed a complaint received in such matters to be sent for investigation under Section 156(3) of the Criminal Procedure Code. Similar directions were also passed by the Court of competent jurisdiction in the case of Himmat 4 Fulchand Chauhan v Shri P.D. Nikumbh and others, Misc. Application No. 112 of 2006. To pursue the matter and to know the stage of progress, the Petitioner claims to have filed applications to the Public Information Officer of Anti Corruption Bureau to provide the details of investigations and from the information received it revealed that fraud is being committed. He received the letter dated 9th October 2006 from the Anti-Corruption Bureau which reads as under :- O.W No.8015/ ACB, BMU/IR 4788/06 Office of the Addl. Commr. of Police, Anti-Corruption Bureau, BMU, Madhu Industrial Estate, 1st Flor, P.B.Marg, Worli, Mumbai 400 013 Date : 09/10/2006 To, Shri.Shailesh Gandhi, B-2, Gokul Aparmant, Near Asha Parekh Hospital, Poddar Road, Santacruz (West) Mumbai 54. Subject : Information sought under provisions of R.T.I. Act 2005. Reference : Your application dated 30-09-2006 Sir, With reference to the subject noted above the 5 information requested by you under Right to Information Act, 2005 is as follows : a) Anti-Corruption Bureau has received in all 44 applications till 30-09-2006 of which 3 cases have been registered and other applications are in process. The following 3 cases have been registered on orders of the Hon. Spl. Court U/Sec. 156 (3) Cr.P.C. And are under investigation. Name of Builder Address of Plot. Area of Plot Date on which complaint received Date on which investigatio n Started Date on which FIR Filed If Investigatio n continuing date by which expect to complete investigation 1) Shri. Prakash Annappa Gadiyar 2) Shri Ramesh Bhimraj Bhandari 3)Shri Kiran Mahadik Siddhivinayak Constructions CTS No. 515 A, Sukurwadi, M.G.Road, Boriwali East, Mumbai 66 7214.65 Sq.Mtr. 17-05-2005 30-06-2005 30-06-2005 Few more months 1) Shri.Kanji Gelabhi Gala 2) Shri Ramnik Shah 3)Shri.Premji Gelabhi Gala Riddhi Siddhi Enterprises CTS NO.30, A/1, 26 to 53, Kurar Village, Malad East, Mumbai 1339.69 Sq.Mtr 02-03-2006 28-03-2006 28-03-2006 1 year approx. Shri Rajan Babubhai Mehta CTS No.545, 545-1 to 30,546 546-1 to 5Kulup wadi, Lane, Boriwali East, Mumbai 66 1393.20 Sq.Mtrs 02-09-2006 19-09-2006 19-09-2006 1 year approx. b) These offences are of criminal misconduct under Prevention of Corruption Act, alongwith other I.P.C. Offences done by Government officials and investigation is largely based on documents. The collection of documents, to prove these offences, is voluminous in nature and also a large number of witnesses need to be 6 examined and thus a stipulated period cannot be given for completion of investigation in these offences. c) A proposal to the A.C.S. Home, Government of Maharashtra, has been sent to form a Special Cell for investigation of these cases. However the correspondence being of intra-departmental nature and being under process with the State Government, copy of the same cannot be given to you. Yours faithfully, Sd/- (Dr.Pradnya Saravade) Add. Commr. Of Police Public Information Officer Anti Corruption Bureau.” It was also stated that a report had been submitted to the Government. It is stated that Slum Rehabilitation Authority (hereinafter referred to as “SRA”) has started the schemes with extra ordinary powers being given to the authority giving precedence over all other laws in force with the intention of providing houses to 8 lakh slum dwellers by 2000. S.S. Tinaikar Committee report submitted to the Government exposed such activity to a larger extent but no action has been taken by the State thus sacrificing the public interest. While referring to the basic acts of omission and commission which are committed in a fraudulent manner, the Petitioner specified basic techniques adopted as follows :- 7 “(a) Forged signatures of slum dwellers to show that they are agreeable to the developer undertaking the project. (b) Names of non-existent slum dwellers being listed to increase the free-sale component and also sell the dwellings made in their names at a huge profit. (c) Usurping Public lands by declaring fictitious large areas as slums, where only small areas have the slums. Often, force, coercion and corruption is used to achieve the nefarious objectives." 2. In response to the application of the Petitioner dated 27th October 2006 under the Right to Information, reply was given by the Anti Corruption Bureau on 7th November 2006 stating that the complaints relate to corruption in redevelopment schemes in collusion with Slum Rehabilitation Authority, Collector and the Developer. Initially, there were 44 complaints which had gone upto 89. Thus, there was an increase in such activities as 45 more complaints were received. In some cases, investigation had been started but really of no effective consequences. Reference has also been made to an article in the newspaper “DNA” dated 24th November, 2006 stating that the Deputy Secretary (Housing) had directed the SRA not to cooperate with the Anti Corruption Bureau’s investigation in these complaints. 8 3. On this premise, the Petitioner had prayed in this Public Interest Litigation under Article 226 of the Constitution of India for issuance of a direction to the Respondents to set up a special investigation team to examine all these complaints, furnish adequate staff to the team to complete these investigations expeditiously and to take action against all the erring officers and other private persons involved in these fraudulent activities. 4. We may also notice that on 26th December 2006 a letter was received by the then Chief Justice from a Forum for Improving Quality of Life in Mumbai Suburbs wherein reference was made to an article appearing in Times of India dated 15th September 2006 involving a fraud of Rs.3 crores in relation to execution of SRA schemes. Reference was also made to the order of the Court directing the Government to create a Task Force to look into complaints on SRA scheme. It was also stated in this letter that SRA scheme has resulted due to acts of commission and omission by the State Government in multi- dimensional drawbacks currently gripping the city of Mumbai and there was loss of trillions of rupees of the tax payers. A prayer 9 was made to take suo motu action and issue different directions to the Government as well as to ensure that the Anti Corruption Bureau bring the culprits to book and proper policies be framed in this behalf. This letter was ordered to be registered as a Public Interest Litigation under the directions issued by the Court suo motu and this letter was treated as Public Interest Litigation as recorded in the order of the Division Bench dated 21st April 2007. Both these Public Interest Litigations since then have been listed together for hearing. 5. When the petitions came up for hearing on 21st February, 2007, the Division Bench passed the following order:- "The first petition is filed by a public interested citizen drawing attention to various irregularities which have occurred in the SRA Schemes. The prayer is to direct a criminal investigation and action against all concerned. The second petition is a suo motu petition where three citizens representing an organization have given a letter to the then Chief Justice and that letter has been treated as a PIL. This letter is also about the SRA scams. We have requested Mr. Walawalkar, Senior Advocate, to appear in the second matter to assist the court. 2. As far as the first petition i.e. Writ Petition (PIL) No.156 of 2006 is concerned, the petitioner has filed one affidavit wherein he has annexed a list of some 86 complaints and, according to him, these are the complaints wherein proper investigation is required. Mr. Gandhi, petitioner-in-person, submits that the 10 Government should not shirk its responsibility and, in fact, a high ranking Officer of the Police Department i.e. Director General, A.C.B., has recommended that a Special Investigation Team be appointed to look into this scam. 3. As against this submission of the petitioner-in- person, the State Government has taken a position that instead of directing such an investigation, under a policy decision of the Government taken way back in the year 1972, an inquiry be permitted to be conducted. The Government has appointed one Mr. B.K. Agrawal, retired I.A.S. Officer to look into these complaints. However, in view of this list of 86 complaints being tendered by Mr. Gandhi, we asked the learned Advocate General appearing for the State/SRA as to whether he will pinpoint some 10 major cases so that Mr. Agrawal can concentrate on those cases. He will hand over list of such 10 cases to Mr. Gandhi, petitioner-in-person and Mr. Walawalkar and on the next date appropriate directions would be passed with respect thereto. The list be furnished within one week. In our view, it will be desirable that a senior Police Officer also assists Mr. Agrawal in the investigation. The matter to stand over to 7th March, 2007." Thereafter, on 7th March, 2007, the Division Bench had passed the following order:- "Heard the learned counsel for the parties. 1. On 7th February, 2007, a proposal was made to this court by the learned Advocate General, which was later examined and this court by its order dated 24th February, 2007 accepted the Government's stand and it has appointed Mr. B.K. Agrawal, retired IAS Officer to look into the complaints, which have been agitated in these petitions. Mr. Gandhi, who has filed Writ 11 Petition No.156 of 2006, has cited 86 complaints, out of which the learned Advocate General, as directed by this court, has identified 10 major cases so that the Commissioner appointed by the State can concentrate on these 10 cases and this proposal was given to the learned counsel for the petitioners and concerned respondents for examination so that this court can pass appropriate directions. It was also observed by this court that a Senior Police Officer also assists in the investigation and that is how the matter was adjourned. 2. Now after examining the issue and particularly, the circular which has been pointed out to us by the learned Advocate General that is circular dated 29th December, 2006 issued by the Housing Department, Government of Maharashtra, relating to the constitution of inquiry committee for inquiring into the complaints received in respect of the slums rehabilitation scheme, which was issued in the context of a circular of Home Department dated 21st February, 1972, which provides for procedure for entrusting the work of investigation against mal-practices in government offices, we are of the view that the proposal of the State to nominate Mr. B.K. Agrawal, retired IAS officer as per the aforesaid circular to examine 10 cases, would not serve the purpose and also will not subserve the larger public interest. It will be in the fitness of things that the respondent-State adopts the procedure provided in the circular dated 21st February 1972 issued by its Home Department, and nominate senior officials, (preferably an I.A.S. Officer- non Departmental) not below the rank of Principal Secretary to the concerned department and to entrust the inquiry in respect of complaints against public Servants for their scrutiny and take steps in accordance with the guidelines issued in the said circular dated 21st February, 1972. We make it clear that the court has not accepted the proposal made by the State Government as not feasible without 12 expressing any opinion as regards the appointment of Mr. Agrawal and further it will be in consonance with the provisions in the circular dated 21st February, 1972. We expect the learned Advocate General will take instructions in the matter and apprise this court as to within how much time such exercise can be completed. 3. Our attention was also invited by the petitioner who is appearing in person in PIL No.156 of 2006 to Annexure D viz., an application made on 27th October, 2006 seeking information from the Public Information Officer, Additional Commissioner of Police, ACB, Mumbai. That application has been replied to by the Additional Commissioner of Police, ACB, Brihanmumbai Division, Mumbai on 7th November, 2006. The reply confirms receipt of 89 complaints and states that in pursuance of the orders of the Court, three F.I.Rs have been registered, details of which are set out at Exh.F. Thus, the contention is that offences under the Prevention of Corruption Act and other penal laws have been committed and are required to be investigated and the persons concerned dealt with in accordance wi9th law. Therefore, it is necessary to issue directions to the concerned authorities to process all complaints and take action in accordance with law. 4. From a perusal of the petition and the annexures thereto so also above letters, prima facie, we are of the view that direction need to be issued for expeditious investigation of these cases. The aforesaid direction is besides the cases which have been reported to the Police/ACB and in respect of cases where FIRs have been lodged; the concerned Police Station/ Department/ ACB would process those cases in accordance with the procedure prescribed for investigation of such cases and if the report discloses cognizable offence, register FIRs in the matter and investigate the cases as expeditiously as possible. We expect the State would provide all the necessary 13 assistance in the form of infrastructure/logistic and sufficient personnel to assist the concerned Police Station/ Department/ACB to facilitate speedy investigation into these cases, giving them top priority, which is the need of the day, considering the large scale corruption reported in the implementation of the SRA scheme. 5. Mr. Walawalkar, Senior Advocate, who has been appointed as Amicus Curiae in Writ Petition NO.6 of 2007 submits that considering the subject matter of the petition, the court may pass appropriate orders, so that he can take the assistance of his colleagues at the Bar and, therefore, seeks appointment of a team of Advocates to assist him. We make it clear that Mr. Walawalkar is free to make choice from his colleagues, whose assistances he requires in the matter so that this court can nominate them on the panel to assist him. Adjourned for two weeks." 6. On 7th March, 2007, when the matter came up for hearing, the Division Bench noticed that the reference was made to 86 complaints, out of which 10 major cases were identified so that the Commissioner appointed by the State can concentrate on each of the 10 identified cases and Senior Officer of the Police was directed to be associated with the investigation. However, the Bench did not accept this suggestion of the State and found that appointment of the retired IAS officer in terms of Circular picking up of 10 cases would not serve the purpose and directed adoption of procedure to be followed as 14 prescribed in the circular dated 21st February, 1972 by the Government. 7. In the reply affidavit filed on behalf of the State, it is stated that the complaints received were considered and the Home Department vide its letter dated 23rd January, 2007 informed the ACB that for the complaints received by the ACB for investigation into the alleged irregularities of the various Slum Rehabilitation Schemes, the Government has appointed a committee and thus, there was no need to appoint an independent committee. It is also averred that the Government is conducting enquiry into the allegations of irregularity into the Slum Rehabilitation Schemes for which complaints have been received in a systematic manner. In some cases in which orders were passed under section 156(3) of the Criminal Procedure Code, stay has been granted and the Government is looking into the matter. Separate detailed affidavit has been filed on behalf of the SRA. There also it has been admitted that out of 86 complaints as referred to in the writ petition, 18 complaints have been directly received by the SRA and they are of a general nature and as and when other complaints are received, they will be examined by the competent authority. The SRA 15 confirmed that investigation under section 156(3) was ordered by the Special Court and the officials of the Anti Corruption Bureau visited its office on 14th September, 2006 and even the investigation was stayed. According to the authority, there are large number of proposals pending under Slum Rehabilitation Schemes which are nearly 2032 in number and some have been sanctioned. It is averred that the Slum Rehabilitation Authority should be given an opportunity of being heard in relation to the complaints before any directions with regard to a particular complaint, are passed. Reference has also been made to some complaints which are either pending or have been dealt with by SRA. As is evident from the above replies and pleadings of the parties in the writ petition that there are large number of complaints which have been received at the different quarters that is by the Anti Corruption Bureau, Police Stations, SRA and the Government. Thus, the case of the petitioner to some extent is supported by the averments made in the different replies showing that complaints in regard to SRA schemes and its misuse have been filed. The petitioner has also annexed to the writ petition Exhibit `F' showing that ACB Website was searched by him on 22nd November, 2006 and he found that the ACB had started investigation and 16 adequate evidence had been obtained to register the cases, both against high ranking officers as well as developers but according to the petitioner, despite all this, no effective progress had taken place. 8. The preamble of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 shows that it was enacted for making better provisions for the improvement clearance and re-development of slum area in the State as well as for protection of occupiers from eviction and distress warrants. The intent of the framers of the Act was also to deal with the matters connected with this purpose. A Full Bench of this Court in the case of Tulsiwadi Navnirman Coop. Housing Society Ltd. & another v. State of Maharashtra & others, 2007(6) MhLJ 851 while considering the object and purpose of amendment of this Act held thus- "2. The Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971, (hereinafter referred to as "Slum Act" for short) came to be extensively amended in 1996-97 and 2001, introducing Chapter I-A therein. That Chapter is entitled "Slum Rehabilitation Scheme". Under that Chapter falls Section 3A. This provision is inserted with a view to establish a Slum Rehabilitation Authority (S.R.A. for short) for implementing Slum Rehabilitation Scheme. After this Chapter was introduced in the Slum Act and such Authority became functional for Brihanmumbai and its suburbs, 17 that the S.R.A. decided to undertake and implement several rehabilitation schemes. The State took notice of proliferation of Slums on public lands and properties. Therefore, it decided to confer wide powers on the S.R.A. so that the public lands are cleared by S.R.A. acting in coordination with the local authorities. For that purpose, the State Government made appropriate amendments and inserted provisions in the planning and local laws. Insofar as, Mumbai is concerned, S.R.A. was put in charge of permitting developments on lands, which had large slum pockets. Lands were of private/public ownership. Therefore, after amending Maharashtra Regional and Town Planning Act (M.R.T.P. Act) for short, the Development Control Regulations for Brihanmumbai (D.C. Rules 1991) were also amended. These Development Control Regulations are traceable to section 22(m) of the M.R.T.P. Act, 1966. For individual development to be controlled, monitored and regulated as also restricted, development control rules were made and they are traceable to the Development Plan itself. 3. One of the Regulations in the set of Regulations, to control development in Mumbai, pertains to Floor Space Index and its computation (F.S.I.). While, computing the permissible F.S.I. for development of the lands/property, incentives were offered by the State and Local Body (Brihanmumbai Municipal Corporation) to Developers and Builders. An obligation was cast upon them as also the owners of these private lands to rehabilitate the slum dwellers at the same site as far as possible and after discharging this obligation to develop the plot/land. The incentive was increased F.S.I. or appropriate adjustments in computing permissible outer limit. At the same time, the slum pockets were also offered incentive inasmuch as persons residing in slums were permitted to organise themselves into Cooperative Housing Societies and such Cooperative Societies were further 18 permitted to come forward with a proposal for development of the land, on which slums are situated or located, either by societies themselves or an outside Agency and incentives were offered for the same as well. 4. The underlying object for the above being clearance of the lands by removal of the slums and dilapidated structures. It is now a well known fact of which judicial notice has been taken repeatedly, that large scale encroachment takes place as far as Government properties and lands are concerned. The Government and its instrumentalities and agencies are unable to control encroachment, illegal squatting and unauthorised development on its lands as the political will and strength is lacking. The slum pockets being Vote Banks, preventive or prohibitory measures are not initiated at right time. The number of encroachers and squatters