IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 910 OF 2005 PETITION NO. 910 OF 2005 PETITION NO. 910 OF 2005 WITH WITH WITH NOTICE NOTICE NOTICE OF MOTION NO. 698 OF 2005 OF MOTION NO. 698 OF 2005 OF MOTION NO. 698 OF 2005 1. Om-Sai Darshan Cooperative Housing Society (Proposed), having its address at Manish General Stores, Parsiwada, Sahar Road, Andheri (East), Mumbai 400 099. 2. Chandrakant Ramchandra Thakur, Age: 50 years, Secretary of Om-Sai Dardhan Coop.Housing Society (Proposed) having address at Manish General Stores, Parsiwada, Sahar Road, Andheri (East), Mumbai 400 099. ... Petitioners. Versus. 1. The State of Maharashtra, through the Secretary, SRA Section, Mantralaya, Mumbai 40001 represented through the Govt.Pleader, Original Side, High Court, Mumbai. 2. The Slum Rehabilitation Authority, through its Chief Executive Officer, having its office at 5th floor, Griha Nirman Bhavan, Bandra (E), Mumbai 400 051. 3. The Mumbai Housing & Area Development Board, through its Chief Executive Engineer, Chief Officer, having its office at Grih Nirman Bhavan, MHADA Bldg., Bandra (East), Mumbai 400 051. : 2 : 2 : 2 : 4. The Secretary, Hanuman Nagar Coop.Housing Society (Prop.) Hanuman Nagar, Parsiwadi, Sahar Road, Andheri East, Mumbai 400 099. 5. Volga Constructions Pvt.Ltd., through Developer Mr.Hemant Mule having office at Bhavani Shankar Road, Dadar, Mumbai. 6. The Dy.Collector, SRA, Girh Nirman Bhavan, Bandra, Mumbai. 7. M/s.MCA Construction, 601-L, Con. Andheri Kurla Road, Andheri Naka, Andheri (East), Mumbai 400 59. ... Respondents. Shri R.V.Govilkar with Shri M.B.Jadhav and Ms.L.N. Bedekar for the Petitioners. Shri R.M.Sawant, A.G.P. for Respondents Nos.1, 3 & 6. Shri G.D.Utangale for Respondent No.2. Shri Sanjay Jain i/by Shri Piyush Shah for Respondent No.4. Shri Jakhadi for Respondent No.5. Shri A.A.Joshi with Shri T.S.Parwardhan for Respondent No.7. CORAM CORAM CORAM : H.L.GOKHALE, & : H.L.GOKHALE, & : H.L.GOKHALE, & ABHAY ABHAY ABHAY S. OKA, JJ. S. OKA, JJ. S. OKA, JJ. Date Date Date on which hearing concluded : 1st February, 2006. on which hearing concluded : 1st February, 2006. on which hearing concluded : 1st February, 2006. Date Date Date on which judgment pronounced: 26th April, 2006. on which judgment pronounced: 26th April, 2006. on which judgment pronounced: 26th April, 2006. JUDGMENT JUDGMENT JUDGMENT (Per: Abhay S.Oka, J.) (Per: Abhay S.Oka, J.) (Per: Abhay S.Oka, J.) 1. Rule. Shri Sawant learned G.P. waives service for Respondents Nos.1, 3 and 6. Shri Utangale waives service for Respondent No.2, Shri Shah waives service : 3 : 3 : 3 : for Respondent No.4 and Shri Jakhadi waives for Respondent No.5. Shri Patwardhan waives service for Respondent No.7. Considering the facts and circumstances of the case and with the consent of the Counsel appearing for the parties, the petition is immediately taken up for final hearing. The contesting Respondents have already filed their replies. The Petitioners have filed their rejoinder also. 2. This petition under Article 226 of the Constitution of India interalia seeks to challenge the orders of eviction dated 4th March 2005 issued by the Respondent No.3 (Mumbai Housing and Area Development Board) against the members of the Petitioner No.1-proposed society under sections 33 and 38 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as "the Slum Act"). In the said notices, it is alleged that the members of the Petitioner No.1 to whom notices have been addressed have refused to shift to the alternative accommodation offered by the developer i.e. Respondent No.7. It is stated in the notices that if the concerned persons failed to show-cause, action of eviction will be taken under sections 33 and 38 of the Slum Act. The second prayer in this petition is for a writ of mandamus directing Respondents Nos.2, 3 (Slum Rehabilitation Authority) and Respondent No.6 (Deputy Collector, SRA) to hear the applications made by the : 4 : 4 : 4 : Petitioners for grant of Index-II for development of the property in favour of the Petitioner No.1-proposed society. The Petitioners have taken out a Notice of Motion for interim protection against demolition. An order of status-quo has been granted on 12th Decmber 2005 and the same has been continuing. 3. With a view to appreciate the submissions which are made before us, it will be necessary to refer to the facts of the case in brief. The case of the Petitioners is that the Petitioner No.1-proposed Cooperative Housing Society is promoted by the members who are occupying hutments on land bearing CTS No.539/C-1 situated at Chakala, Andheri (East), Mumbai. According to the case of the Petitioners, the members of Petitioner No.1-society were in possession of their respective structures numbering in all 28 as on 1st January 1995. According to the Petitioners, they submitted a proposal to the Respondent No.2 Slum Rehabilitation Authority (SRA) along with necessary documents for registration of the Petitioner No.1-society. According to the case of the Petitioners, the Surveyor of the Mumbai Municipal Corporation submitted a report stating therein that there was no separate access by a Municipal road to the property claimed by the Petitioners. In the meanwhile, The Respondent No.2 issued a letter of intent on 12th May 2003 in favour of Respondent No.4-society by which the proposal of Respondent No.4-society for : 5 : 5 : 5 : rehabilitation of slums on the very plot bearing CTS No.539-C-1 of village Chakala admeasuring 4361.56 sq.meters along with other adjoining area occupied in all by 702 hutment dwellers was accepted. The Respondent No.4 appointed the Respondent No.7 as a developer for the redevelopment project. According to the case of the Petitioners, the Petitioner No.1 and Respondent No.4 are totally different societies relating to separate city survey numbers. It is the case of the Petitioners that no objection and annexure II issued in favour of Respondent No.4 were cancelled on 22nd January 2004. It is the case of the Petitioners that the Respondent No.4-society is claiming rights in respect of the land bearing City Survey No.539/C. According to the Petitioners a direction was issued by the Minister for State of the Housing Department on 18th October 2003 to the Respondent No.2 directing Respondent No.2 to issue Annexure II in favour of Petitioner No.1-society. However, by communication dated 30th December 2004, Respondent No.2 informed the Petitioners that the Respondent No.4-society is having membership of 80% of the slum dwellers and the membership of the Petitioner No.1 extends to only 12% to 15%. It was stated that the Petitioner No.1 was having membership of only 28 members and therefore, separate Annexure II cannot be issued to the Petitioner No.1-society. By the said communication, the Petitioners were advised to cooperate with the Respondent No.4 for implementation of the redevelopment : 6 : 6 : 6 : scheme. It is stated in the petition that Annexure II granted to the Respondent No.4 was earlier cancelled on the ground that there was inaction on the part of the Respondent No.4. The impugned notices dated 4th March 2005 were issued to the members of the Petitioner No.1-proposed society on the ground that the said members have declined to cooperate and have not accepted the accommodation offered by the Respondent No.7-developer who is appointed by the Respondent No.4. Therefore, notice was given to take action of eviction under sections 33 and 38 of the Slum Act. 4. Shri Govilkar appearing for the Petitioners submitted that on 18th October 2003, a direction was issued by the concerned Minister to the Respondent No.2 to grant NOC and Annexure II in favour of the Petitioner No.1-society for rehabilitation of the 28 slum dwellers who were the members of the Petitioner-society. He pointed out that the NOC and the Annexure II was granted to the Respondent No.4 on 30th November 1996 and on account of long in-action on the part of the Respondent No.4, the said NOC and Annexure II was cancelled on 22nd January 2004. He submitted that thereafter instead of granting NOC and Annexure II to the Petitioner No.1, Respondent No.2 passed an order dated 30th December 2004 rejecting the prayer made by Petitioner No.1 for grant of NOC and Annexure II. He submitted that the said action of the Respondent No.2 was in violation of the : 7 : 7 : 7 : above directions issued by the State Government which were referable to its powers under section 3K of the Slum Act. Shri Govilkar invited our attention to the relevant provisions of the Slum Act, Regulation 33(10) of the Development Control Regulation for Greater Bombay, 1991 (hereinafter referred to as "DC Regulations") and various Circulars issued from time to time. Shri Govilkar submitted that the Respondent No.2 could not have issued the impugned notices to the members of the Petitioner No.1 and in fact ought to have granted NOC in favour of the Petitioner No.1. He submitted that the members of Petitioner No.1 cannot be forced to join Respondent No.4-society against their wishes. Relying upon a sketch annexed to the rejoinder affidavit filed by the Petitioners, he submitted that the Respondent No.4-society is formed essentially by the persons having structures in Hanuman Nagar area marked in red colour and the members of the Petitioner No.1 are independently existing on a distinct portion of the property marked by green colour on the said sketch. Shri Govilkar lastly submitted that unless there was a declaration issued under section 3C(1) of the Slum Act declaring a particular area to be a slum rehabilitation area, the letter of intent for implementation of slum redevelopment scheme could not have been issued. He placed reliance on the decision of a learned Single Judge of this Court reported in 2004(3) Bombay Cases Reporter page 14 (Ramkali Sitaram Kushwaha & ors. v/s. Ramkali Sitaram Kushwaha & ors. v/s. Ramkali Sitaram Kushwaha & ors. v/s. : 8 : 8 : 8 : Deputy Deputy Deputy Collector and others Collector and others Collector and others) in support of the said contention. 5. Shri Surana appearing for Respondent No.4 and Shri Joshi appearing for Respondent No.7 pointed out that though NOC and Annexure II were issued in the year 1996, letter of intent was issued recently on 12th May 2003 and NOC was issued on 21st October 2003 by the Respondent No.2. They pointed out that the permission was issued on 21st October 2003 to construct a transit camp. They also invited our attention to commencement certificate issued on 5th April 2004. It was submitted that as commencement certificate was issued as late as in the year 2004, the NOC granted to the Respondent No.4 could not have been cancelled on the ground of any in-action and therefore, the letter of cancellation dated 22nd January 2004 has been rightly withdrawn by Respondent No.3 by their subsequent communication dated 5th March 2004. It was further submitted by the Counsel appearing for the Respondents Nos.4 and 7 that the members of the Petitioner No.1 who are eligible as per Annexure II will be given transit accommodation and permanent accommodation in the property when redeveloped by Respondent No.4 and 7. Shri Utangale appearing for Respondent No.2 has made legal submissions on various provisions of the Slum Act and the D.C.Regulations. He has tendered written submissions. Shri Utangale placed reliance on the decision of a learned Single Judge of : 9 : 9 : 9 : this Court reported in 2000(3) Mah.L.J. page 147 (Pooja Pooja Pooja Enterprises Enterprises Enterprises and and and another v/s. CEO, SRA MHADA, Mumbai another v/s. CEO, SRA MHADA, Mumbai another v/s. CEO, SRA MHADA, Mumbai) as well as a decision of a Division Bench of this Court reported in 2002(1) Bombay Cases Reporter page 15 (Relief Relief Relief Road Housing Societies Association and another Road Housing Societies Association and another Road Housing Societies Association and another v/s. v/s. v/s. State of Maharashtra State of Maharashtra State of Maharashtra). Shri Utangale submitted that section 3c(1) of the Slum Act and the Slum Rehabilitation Scheme which forms part of the Regulation 33(10) of the D.C.Regulations operate in different fields. He submitted that there is no requirement of issuing Notification under section 3C(1) before sanctioning a slum rehabilitation scheme under section 33(10) of the D.C.Regulations. Shri Jadhav, A.G.P. appearing for the State supported the submissions made by Shri Utangale. 6. We have considered the submissions. As the Counsel appearing for the parties have extensively referred to the provisions of the Slum Act and D.C.Regulation 33(10), it will be necessary to advert to the said provisions. 7. Chapter IA of the Slum Act which deals with the Slum Rehabilitation Scheme was brought on the statute book by amending Slum Act by the Maharashtra Act No.4 of 1996. The amendment was brought into force with effect from 24th October 1995. Section 3A of the Slum Act provides for constitution of Slum Rehabilitation : 10 : 10 : 10 : Authority (for short SRA) for implementation of the slum rehabilitation scheme. Sub-section (1) thereof contemplates that the State Government may appoint SRA for such area or areas as may be specified in the notification published in the Government Gazette. The provision contemplates that different authorities may be appointed for different areas. The SRA is a body corporate having a perpetual succession with a common seal. Our attention has been invited to a notification published in the Official Gazette on 16th December 1995 appointing SRA for implementation of slum rehabilitation schemes for the area comprising of Greater Mumbai. The Chief Minister is the Chairman of the SRA. The Minister for the Department of Housing and Urban Development and the Minister of State for Housing (Slum Improvement) are members of the SRA. The Municipal Commissioner of the Mumbai Municipal Corporation, Principal Secretary of Revenue and Forest Department, Secretary of Housing and Special Assistance Department and the Secretary of Urban Development Department are the other members of the SRA. The notification further provides that the Secretary of the Housing and Special Assistance Department is authorised to hold the additional charge and function as the Chief Executive Officer of the SRA. The powers and duties of the SRA are listed in sub-section (3) of section 3A. 8. Section 3B(1) of the Slum Act empowers the State : 11 : 11 : 11 : Government or the SRA with the previous sanction of the State Government to prepare a General Rehabilitation Scheme for the area specified in sub-section (1) of section 3A for rehabilitation of slum and hutment colonies in such areas. The area referred to in sub-section (1) of section 3A is the one for which SRA is constituted by the State Government. Section 3B lays down the procedure for publication of draft General Slum Rehabilitation Scheme in Official Gazette and the procedure for submitting objections. The Chief Executive Officer of the concerned SRA is required to consider the objections and suggestions and to modify the draft scheme if necessary and publish the same with the prior approval of the State Government in the Official Gazette. Sub-section (4) of section 3B deals with the contents of slum rehabilitation scheme which reads thus: (4) The Slum Rehabilitation Scheme so notified under sub-section (3) shall, generally lay down the parameters for declaration of any area as the slum rehabilitation area and indicate the manner in which rehabilitation of the area declared as the slum rehabilitation area shall be carried out. In particular, it shall provide for all or any of the following matters, that is to say,- : 12 : 12 : 12 : (a) the parameters or guidelines for declaration of an area as the slum rehabilitation area; (b) basic and essential parameters of development of slum rehabilitation area under the Slum Rehabilitation Scheme; (c) provision for obligatory participation of the landholders and occupants of the area declared as the slum rehabilitation area under the Slum Rehabilitation Scheme in the implementation of the Scheme; (d) provision relating to transit accommodation pending development of the slum rehabilitation area and allotment of tenements on development to the occupants of such area, free of cost. (e) scheme for development of the slum rehabilitation areas under the Slum Rehabilitation Scheme by the landholders and occupants by themselves or through a developer and the terms and conditions of such development; and the option available to the Slum Rehabilitation Authority for taking up such development : 13 : 13 : 13 : in the event of non-participation of the landholders or occupants; (f) provision regarding sanction of Floor Space Index and transfer of development rights; if any, to be made available to the developer for development of the slum rehabilitation area under the Slum Rehabilitation Scheme; (g) provision regarding non-transferable nature of tenements for a certain period, etc. 9. Section 3C confers power on the Chief Executive Officer to declare any area as slum rehabilitation area under the General Scheme which is already published under section 3B of the Slum Act. In the year 1998 a General Slum Rehabilitation Scheme as contemplated by section 3B of the Slum Act for Greater Bombay was published in the Governemnt Gazette. Sub-section (2) of section 3C provides for an appeal against such declaration made by the Chief Executive Officer. Section 3D provides that on publication of slum rehabilitation scheme under sub-section (1) of section 3B certain provisions of the Slum Act which are incorporated in the said section will apply to any area declared as a slum rehabilitation area. The Section : 14 : 14 : 14 : provides that Chapters II and III of the slum Act will not apply to such area. 10. Section 3K of the Slum Act deals with the power of the State Government to issue general or special directions to the SRA. Section 3K reads as under: "3K. 3K. 3K. Power of State Government to issue Power of State Government to issue Power of State Government to issue directions. directions. directions.- (1) The State Government may issue to the Slum Rehabilitation Authority such general or special directions as to policy as it may think necessary or expedient for carrying out the purposes of this Act and the Slum Rehabilitation Authority shall be bound to follow and act upon such directions. . (2) (a) Without prejudice to the generality of the foregoing provision, if the State Government is of opinion that the execution of any resolution or order of the Authority is in contravention of, or in excess of, the powers conferred by or under this Act or any other law for the time being in force, or is likely to lead to abuse or misuse of or to cause waste of the Fund of the Authority, the State Government may, in the public interest, by order in writing, suspend the execution of such resolution or order. A copy : 15 : 15 : 15 : of such order shall be sent forthwith by the State Government to the Authority and its Chief Executive Officer. . (b) On receipt of the order sent as aforesaid, the Authority shall be bound to follow and act upon such order." Section 3R gives power to the State Government to enforce the performance of duties and obligations of SRA. The said section confers a power on the Government to supersede and reconstitute SRA in the event of default in performance of duty. 11. While dealing with the Slum Rehabilitation Scheme, it will be necessary to refer to the Development Control Regulations for Greater Mumbai 1991 which are part of the sanctioned Development Plan for Greater Mumbai under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the said Act of 1966). By notification dated 15th October 1997 D.C.Regulations were amended. By the said Amendment, Regulation 33(10) was introduced which reads thus: "33(10). 33(10). 33(10). Rehabilitation Rehabilitation Rehabilitation of of of s dwellers dwellers dwellers through owners/developers/ through owners/developers/ through owners/developers/ co-operative co-operative co-operative housing societies housing societies housing societies:- For : 16 : 16 : 16 : redevelopment or restructuring of concerned slums or such slums whose structures and inhabitants whose names appear in the Legislative Assembly voters’ list of 1985 by the owners/developers of the land on which such slums are located or by Cooperative Housing Societies of such slum dwellers a total floor space index of upto 2.5 may be granted in accordance with schemes to be approved by special permission of the Commissioner in each case. Each scheme shall provide inter-alia the size of tenements to be provided to the slum dwellers, the cost at which they re to be provided on the plot and additional tenements which the owner/developer can provide to accommodate/rehabilitate slum dwellers/project affected persons from other areas etc. in accordance with the guidelines laid down in the Regulations in Appendix IV." 12. The The The Annexure to D.C. Regulation 33(10) Annexure to D.C. Regulation 33(10) Annexure to D.C. Regulation 33(10) deals with the eligibility for redevelopment scheme and other aspects of the scheme. Appendix IV of the Development Control Regulations contains various Rules which will apply to the redevelopment of the slum as contemplated by Regulation 33(10). Regulation 33(10) provides that for redevelopment of slums including pavements, whose inhabitants’ names and structures appear in the : 17 : 17 : 17 : electoral roll prepared with reference to 1st January 1995 or a date prior thereto, but where inhabitant stay at present in the structure, provision of Appendix IV shall apply on the basis of a tenement in exchange for an independently numbered structure. Clause I Clause I Clause I of the Annexure to Regulation 33(10) provides that only the actual occupant of the hutment shall be eligible and the socalled structure owner other than the actual occupant, if any, even if his name is shown in the voters list as on 1st January 1995 shall have no right to secure a tenement in the reconstructed building. Thus it is provided that for one independently numbered structure in a slum only one tenement will be provided in exchange in the reconstructed building/structure. That has also been the view taken by a Division Bench of this Court in an unreported judgment dated 8th February 2005 in Writ Petition No.3386 of 2004 in the case of Balkrishna Balkrishna Balkrishna Sawant Sawant Sawant v/s. v/s. v/s. SRA and others SRA and others SRA and others to which one of us (Gokhale, J.) was a party. The scheme provides that even if there are more than one occupants of one particular independently numbered structure, in the scheme under Regulation 33(10), the occupants will get only one tenement in exchange. Clause II Clause II Clause II of the annexure to Regulation 33(10) of D.C.Regulation is significant for deciding this matter which reads thus: II. II. II. Definitions Definitions Definitions of Slum, Pavement, and structure of Slum, Pavement, and structure of Slum, Pavement, and structure of of of hut. hut. hut.- : 18 : 18 : 18 : (i) For this purpose, slums shall mean those censused or declared and notified, in the past or hereafter under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. Slum shall also mean areas/ pavement stretches hereafter notified as Slum Rehabilitation Areas or deemed to be and treated. (ii) If any area fulfills the conditions laid down in section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to qualify as slum area and has been censused or declared and notified shall be deemed to be and treated as Slum Rehabilitation Area. (iii) Slum rehabilitation area shall also mean any area declared as such by the Slum Rehabilitation Authority through preferably fulfilling conditions laid down in section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to : 19 : 19 : 19 : qualify as slum area and/or required for implementation of any slum rehabilitation project. Any area where a project under Slum Rehabilitation Scheme has been approved by CEO/SRA