1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2298 OF 2007 1. Ashok Arjanbhai Jolia aged 49 years, residing at E/33, Madhu CHS Ltd., Rokadia Cross Lane, SVP Road, Borivali West, Mumbai -40009. 2. Dattatray Balkrishna Dharap .. Petitioners aged 71 years, residing at Swamy Samarth Nagar, 74/B, 1st floor, Tatya Gharpure Path (Mughbhat Lane), Girgaon, Mumbai 400 004. Both carrying on business in the name of Shri Ganesh Flour Mill, at 7/1, Lalita Industrial Estate, Azad Hind Compound, Kulupwadi, Borivali (East), Borivali (East), Mumbai 400 066. v/s. 1. Chief Executive Officer, Slum Rehabilitation Authority, Griha Nirman Bhavan, 5th floor, Bandra (East), Mumbai 400 051. 2. M/s. Veena Corporation, through Proprietor, Rajan Mehta, 2 Shital Bldg., Kulupwadi Lane, Borivali (East), Mumbai 400 101. .. Respondents Mr. Ramesh Ramamurthy for the petitioners. Mr. G.D. Utangale i/by M/s. Utangale & Co. for the respondent No.1. Mr. S.R. Mishra for the respondent No.2. CORAM : SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J. Judgment reserved on: 26th February, 2008 Judgment pronounced on: 13 th March, 2008 JUDGMENT (Per Swatanter Kumar, C.J.) This is the fourth time that the petitioners have been compelled to approach this court under Article 226 of the Constitution of India. Obviously, some callousness on the part of the officials of the respondents and the builder/developer has resulted in this repeated litigation between the parties which, in our view, could have been conveniently avoided, particularly, in view of the stand taken by the Slum Rehabilitation Authority (hereinafter to be referred to as `SRA') even before the court. 3 2. Necessary facts are that the petitioners have started their business of flour mill in the old premises at Kulupwadi at Borivali with effect from 3rd January, 1977. In the year 2001, petitioners were held eligible for residential-cum-commercial structure by the Secretary, SRA as entitled to the property `Annexure II'. A notice was served upon the petitioners by the Municipal Corporation of Greater Mumbai under section 314 of the Act for removal of the premises in question as unauthorised. The said notice was challenged by the petitioners by filing civil suit being suit No.907 of 2001 in the City Civil Court where ad-interim relief was granted which subsequently, by order dated 7th February, 2003, was vacated by the City Civil Court. 2.1. In an appeal filed by the petitioners against the order of vacation of the interim relief, this court by order dated 17th June, 2003, directed the SRA to decide the eligibility of the petitioners for getting the commercial premises for flour mill. The order passed by the Secretary, SRA was also challenged by filing writ petition No.2213 of 2002. The said writ petition, however, came to be rejected by this court vide order dated 9th September, 2002 which was assailed in 4 appeal being Appeal No.1091 of 2002 wherein the Bench directed that fresh order be passed by the higher authority viz. Chief Executive Officer, Slum Rehabilitation Authority. 2.2. The concerned authorities after verification of the spot and the original documents, vide their order dated 12th December, 2003, held that the petitioners were entitled to commercial structure for flour mill of 275 sq.ft. No action was taken by the respondents, thus, resulting in filing another writ petition No.990 of 2004 which was disposed of by recording the statement of the counsel appearing for the SRA that petitioners would be entitled to 225 sq. ft. of structure for running their flour mill free of cost and 50 sq.ft. areas on payment basis. This order was passed on 27th July, 2006. The petitioners have written letter dated 2nd August, 2006 to the SRA with reference to the aforesaid judgment, asking the copy of the order. No action was taken resulting in issuance of notice on 12th February, 2007 sent by the petitioners to the respondents. 2.3. In March, 2007, respondent No.2 constructed a wall 5 blocking the spot in the property suitable for construction of the flour mill to which the petitioner raised protest. The respondent No.1 SRA amended the plan and clearly specified the benefit to which the petitioners were entitled to. This was done on 14th June, 2007 but respondent No.2 failed to take any step in furtherance thereto and even respondent No.1 refused to act, which compelled the petitioners to file contempt petition in this court being contempt petition No.33 of 2007 in which an interim order was passed by the court on 26th September, 2007. It was disposed of as the contempt petition was not maintainable. 2.4 The petitioners filed the present writ petition praying for issuance of an appropriate order and direction to the respondents to suitably modify the order dated 14th June, 2007 passed by them and to grant the petitioners the entitled area of 275 sq.ft. for commercial structure for restarting their old business of flour mill in accordance with the DCR 51(xvi) r/w. Regulation 5(i) to 5(v) of Appendix IV of DCR at the spot earmarked on the plan amended and approved on 14.6.2007. Petitioners also prayed that plan should be amended 6 accordingly and the respondents be directed to construct the said area and hand over the same to the petitioners. Interim orders to that effect also was prayed for. No reply on behalf of the respondent No.1 was filed. However, during the course of hearing, the facts stated by the petitioner, particularly, the orders of the court and their effect was not disputed. As far as respondent No.2 is concerned, reply was also filed on its behalf wherein it was stated that the letter dated 14th June, 2007 annexed to the writ petition is nothing but the conditions informed by the Executive Engineer in respect of the amended plan of SRA scheme on the plot bearing C.T.S. No. 545 and 546 of village Kenheri Kulupwadi Road, Borivali (East), Mumbai and no court had passed any order adjudicating upon the right of the petitioners for flour mill. It is stated that the petitioners are entitled to one commercial structure as per order passed in Writ Petition No.990 of 2004 wherein the respondent No.2 was impleaded as party-respondent and that as per the suggestion given by the SRA, the respondents submitted amended plan for commercial structure in the part of the open space which is a compulsory open space of the building and the flour mill was not the part of amended plan and therefore, the writ petition of 7 the petitioners should be dismissed. 3. At the very outset, we may state that the learned Single Judge while dealing with the contempt petition No.33 of 2007 noticed as under:- 1.................. “2. This petition was placed before me on several occasions. On the first occasion on 3rd July, 2007 I was informed by the respondent who is the Chief Executive Officer of Slum Rehabilitation Authority that the order has been duly complied with inasmuch as the plan has been approved which demonstrates that a structure of 225 sft. Would have to be provided for running a flour mill and an additional area of 50 sft. on payment at market rate as provided by the Court in its order. However, despite designation on the plan, the flour mill is not constructed by the developer and that is how a grievance was made that the respondent is unable to do anything in the matter in the absence of developer being brought before this Court. 3. The developer was not party respondent to the original petition nor was made party to this contempt petition. But, in the peculiar facts of this case and considering that the petitioner was conducting business of flour mill and must be provided for with the same source of livelihood, the contempt petition was directed to be amended to implead the developer. After the developer was impleaded and appearance was entered on his behalf, pursuant to a show cause notice issued to 8 him, the matter was extensively heard and an order was passed after the developer brought to the notice of this Court that a structure on the ground floor admeasuring 225 stf has indeed been provided. If this structure is still vacant, the authorities were directed to immediately proceed to take possession of the same and see that it is not allotted to anybody. This developer was also directed to handover the possession of the said structure. All these orders were passed in the presence of petitioner and with the consent of his Court. Thereafter, the possession of 225 sqft. Tenement has also been taken by the Authority. The developer and the S.R.A. Are ready and willing to hand over the said structure to the petitioner as in their submission, the same is unallotted and vacant. .................. 5. Mr. Mishra appearing for developer and Mr. Utangale for S.R.A. State that they have no objection to the structure/tenement being handed over for the petitioner to conduct his flour mill business therefrom provided all applications are made and licence is granted by local authority. Despite all this, the petitioner is unwilling to move into the said structure and insist upon going ahead with the Contempt Petition on the basis that the petition alleges wilful and deliberate breach of the orders passed by this Court. .......................... 13. In such circumstances, the remedy after the above developments is to institute substantive proceedings and apply for appropriate relief in accordance with law. For the time being all that 9 can be done is to direct the authority and developer not to part with possession, alienate or allot the said tenement which has been more particularly described in the order passed by this Court for a period of two weeks from today. Contempt Petition stands dismissed.” 4. We may also notice that the different orders passed by the Courts in different proceedings had attained finality inter se between the parties. The stand of the SRA consistently before the court has been that the petitioners were entitled to the commercial space for flour mill and had been found to be eligible for the same. Despite of such a stand, the petitioners have not been provided with the space, obviously, as it does not suit respondent No.2, the developer. 5. During the course of hearing, to resolve the controversy between the parties, we had passed the following order on 15th February, 2008:- “1. Learned counsel appearing for SRA submits that the space offered to the petitioner is on the ground floor of the property in question. However, according to him, sanctioned plans which were approved shows separate structure to be allotted to the petitioner and the developer was 10 expected to develop the property in accordance with the sanctioned plan. The learned counsel for SRA shall produce original plan in this court and the learned counsel for the developer-respondent No.2 shall take clear instructions on this point. 2. Stand over to 26th February, 2008.” 6. In furtherance to our above order, the learned counsel appearing for the SRA had produced the original sanctioned plan in the court. These plans were sanctioned on 19th January, 2006 and subsequently, approved as per the terms and conditions of the letter dated 11th June, 2007. Vide letter dated 11th June, 2007, submitted by the Architect of respondent No.2, the plans were provided, the copy of which was also submitted to the respondent No.2 who was required to comply with the conditions stated in the letter. These conditions were accepted by respondent No.2 as in terms of this letter, he was required to return one set of sanctioned plan as token of acceptance and approval. Thus, the respondent No.2 is bound by this plan and is estopped from questioning the correctness or otherwise of the amended plans. 7. In the amended plan in blue portion, it has been shown 11 “new ground floor structure (rehabilitation)”. This structure is sought to be raised at some distance from the other commercial and residential scheme. This plan is the block plan shown for the entire project. Respondent No.2 is bound by this plan and as according to the SRA, the petitioners are entitled to the commercial area for flour mills, we are unable to see any reason as to how the petitioners can be denied the relief. In fact, this is a matter which ought to have been resolved by respondent No.1 itself. Be that as it may, the respondent No.1 is directed to act and ensure that the amended plan is fully implemented and the required area of 275 sq.ft. is constructed and delivered to the petitioners within a period of eight weeks from today. However, it is made clear that the petitioners will have to comply with the provisions of law while obtaining requisite licences from the competent authorities. We are only resolving the limited controversy that petitioners are entitled to the commercial space which ought to be constructed in accordance with the plan sanctioned by respondent No.1 within the period indicated above. 12 Writ petition is accordingly, disposed of by leaving the parties to bear their own costs. CHIEF JUSTICE J.P. DEVADHAR, J.