wp5981-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5981 OF 2010 Vinaykumar Prem Pyarelal Sadh .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr.P.S.Dani i/b. Karan Thorat & D.S.Patil for petitioner Mr.S.G.Surana with D.J.Lulia for respondent No.3 Mr.S.D.Rayrikar, AGP for respondent Nos. 1 and 2. CORAM : S.C.DHARMADHIKARI, J. DATE : 4th August 2011. ORAL ORDER: 1] By this petition under Article 227 of the Constitution of India, the petitioner is challenging the judgement and order dated 8th February 2010 passed by the Maharashtra Slum Areas (Improvement, Clearance and Removal) Tribunal in Appeal No.27 of 2008, annexure P to the petition. 2] It is the case of the petitioner that the subject matter of the proceedings was a land bearing C.T.S.No.365, 365(1 wp5981-10 2 to 22), 366, 366 (1 to 8) of Village Kanheri, Taluka Borivali (East), Mumbai 400 066. The petitioner claims to be the lessee of the land. Originally one F.E.Dinshaw Charities was owner of the land admeasuring 997.7 sq.mtrs. The said land was leased to one Karsandas Devji and Kasturbai Karsandas. The lessees Karsandas and Kasturbai Karsandas constructed a chawl known as “Pallavi Villa” (Desai Chawl) and let out various tenaments in this chawl to various tenants on monthly tenancy basis. As such the said Karsandas Devji and Kasturbai Karsandas were the lessees of the land and owners of the structures erected by them on the said land. It is stated that by registered deed of assignment dated 1st January 1960 executed between Karsandas Devji and Mrs.Kasturbai Karsandas as Assignor on one part and Mahendra P. Sadh as the Assignee of the other part, the land along with the structure standing thereon were assigned to the assignee named in the assignment deed. The said Mahendra Sadh became lessee of the said land and the owner of the structures. Pursuant to the said wp5981-10 3 deed of assignment, the F.E.Dinshaw Charities, owners of the said land also accepted Mahendra Sadh as lessee of the land. In record of rights particularly in the P.R.Card the name of Mahendra Sadh was inserted and shown as lessee of the land. 3] It is stated that subsequently by a deed of conveyance dated 27th January 1995 executed between the F.E.Dinshaw Charity and Homi Patrawala, the land was conveyed to Patrawala on terms and conditions mentioned in the deed. Thus, the said Patrawala became owner of the land and Mahendra Sadh became his tenant. The petitioner alleges that the said Mahendra Sadh was his real brother and at the time of execution of the deed of assignment dated first January 1980, Mahendra Sadh was about 18 years and the petitioner was aged 14 years. The property was obtained in the name of Mahendra Sadh by father of the petitioner Prem Pyarelal Sadh. As such the entire family of Prem Pyarelal Sadh comprising his wife, Mahendra Sadh and the petitioner wp5981-10 4 had equal rights in the said property. The said Prem Pyarelal expired on 15th September 1973 leaving behind Mahendra Sadh and the petitioner. The mother, Kusumkumari Sadh also died on 25th September 1993 leaving behind a will dated 24th January 1993. Mahendra Sadh died on 7th January 1994 leaving behind widow Roopkumari Sadh, two sons Nitin Kumar and Tapankumar and one married daughter Minal Deepakkumar Sadh as the surviving heirs and legal representatives. Even the said Tapankumar died on 23rd September 2002 leaving behind his wife, a son and a daughter. It is further pointed out that upon the death of Kusumkumari Sadh a Probate Petition was filed being Petition No.629 of 1993 and on 21st November 1997 probate was granted to the petitioner. The legal heirs of Mahendra Sadh being permanently residing in the State of Uttar Pradesh, they executed power of attorney in favour of the petitioner authorising him to manage the affairs of the said property. They also executed a declaration dated 7th August 1997 which is duly registered and thereby they have given wp5981-10 5 up right, title and interest in favour of the petitioner. Thus, the petitioner is an absolute owner of the chawl and lessee of the land underneath it. It is stated that there are two buildings being Building Nos. 176 and 177 in the said chawl and there are in all 34 rooms and one sweepers shed near W.C. The same are let out on monthly tenancy basis. The rooms and tenaments are pukka structures made of brick masonary walls and the necessary amenities like water connection are available in each and every room and there are adequate electric connections. Therefore, according to the petitioner, this cannot be said to be a slum area. 4] In the petition there are several references to proceedings which have been initiated by the petitioner against some of the occupants/ tenants under the Rent Control Legislation and the decrees of eviction being obtained therein. However, what is alleged is that when the said land was inspected, which inspection was arranged at the instance of all those who have suffered eviction decrees wp5981-10 6 or who are facing eviction proceedings, a panchanama was prepared with a view to create a record for declaring the said property as slum area. A notice was issued to the land owner i.e. Patrawala by the office of respondent Nos. 2 on 7th January 2006 and subsequently a public notice was given in newspapers on 25th November 2006. However, no notice was given to the petitioner deliberately. The proceedings have been held behind his back and, he was not heard at all. It is in these circumstances, that being aggrieved and dis- satisfied with the property being notified as slum area that the petitioner preferred an appeal being Appeal No.27 of 2008 under section 4(3) of the Maharashtra Slum Areas (Improvement, clearance and removal) Act, 1971. These contentions, which have been noted by me above came to be reiterated before the Appellate/ Tribunal but having rejected the same and resulting in dismissal of the appeal that the petitioner has approached this Court in writ jurisdiction. 5] Mr.Dani learned Counsel appearing for petitioner in wp5981-10 7 all fairness stated that as far as one of the issue namely, whether the property / land vests in the Government by virtue of the Urban Land Ceiling and Regulation Act is concerned, that is covered by the Repeal Act and the clarification given by the State Government on affidavit. The State Government having not taken possession of the land within time permitted under the Repeal Act, all proceedings under the Urban Land Ceiling Act are statutorily dropped and came to an end. However, the controversy still survives sofar as violation of principles of natural justice. Mr.Dani submits that the petitioner was not given any notice of the proceedings. The petitioner has repeatedly pointed out to the Authorities that he has acquired rights in the property and that there is a deed of declaration in his favour, whereunder all the heirs and legal representatives of Mahendra Sadh have given up their right, title and interest in the subject land. The rights have been given to the petitioner absolutely. The petitioner steps into the shoes of Mahendra Sadh. If the petitioner was not so stepping in, he would not have been aware of the wp5981-10 8 dealings and transactions in relation to the said land and as to how the said Mahandra Sadh acquired right, title and interest therein. Ultimately, the family had acquired land and Mahendra Sadh was brother of petitioner. Therefore, it was incumbent for the authorities to have issued notice to him. 6] Secondly even on merits, the petitioner could have pointed out that there was no warrant or necessity for declaring the property as slum. All basic amenities are available. He invited my attention to the findings of the appellate authority and contended that when the number of huts are 29, the population is about 145, there are tar roads, sewerage system and drainage of waste water is also being carried properly, there are water taps and W.C. Available so also street lights, then, for what reason the property has been declared as slum is obvious. All this is to assist the persons in occupation of the structures to resist their eviction consequent upon decrees passed by the competent Court. All this is to necessitate approaching Authorities under the wp5981-10 9 Slum Act and seeking their permission to evict such unauthorised and illegal occupants and tenants. Thus to pursue their oblique motive the subject proceedings have been initiated. They lack in bonafides and, therefore, the impugned order deserves to be set aside. 7] On the other hand, learned A.G.P. And Mr.Surana who are appearing for respondents, pointed out that on both counts, the petitioner's grievance has no substance. Mr.Surana submits that original record would indicate that the property always stood in the name of Mahendra Sadh as lessee and the petitioner never claimed any independent right therein. The contents of the petition are completely contrary to the stand taken in the correspondence and particularly in the reply to the notice issued by the Authorities. All through out the stand taken was that Mahendra Sadh was contesting the proceedings. My attention is invited to the correspondence and particularly at pages 120 to 123 of the paperbook, wherein it is stated that the Advocate was writing wp5981-10 10 on behalf of Mahendra Sadh and others. It was case of lease in favour of Mahendra Sadh. The original record also indicates that the property card reflects the name only of Mahendra Sadh. All the contents of the petition are purely an after thought. The declaration and the alleged rights acquired in the property are all matters which cannot be said to be within the purview of the Slum Appellate Tribunal. If the petitioner had rights in the property, he could have claimed appropriate declarations in his favour and not only against family members but also against the owners of the land. In these circumstances, there is no substance in the first contention of Mr.Dani. 8] Equally, it is pointed out that the second contention has no merit. The record would indicate that the property had no basic amenities. The Panchanama has been referred which clearly demonstrates that basic amenities were hopelessly lacking. The property was congested, therefore, declaration was necessary. For all these reasons, it is wp5981-10 11 submitted that the petition be dismissed. 9] With the assistance of Mr.Dani and other Counsel for parties, I have perused the petition and the annexures thereto, including the impugned order. I have also called for original record and the same is perused in presence of Counsel for both sides. The record of rights/ P.R.Card shows that the lessee is Mahendra Sadh. The owner of the property is F.E.Dinshaw Charities. Notice in this case was given to Mr.Home Patrawala and to Mahendra Sadh. Further, there was a public notice issued in newspapers. There was a survey report which was carried out. At no stage was any grievance raised by the said Patrawala. As far as the public notice is concerned, what is clear from perusal of the Annexures to the petition that some correspondence has been initiated by the Advocate but clearly stating therein the name of Mahendra Sadh and others. At no stage has the petitioner appeared on the scene and claimed rights in the property, independent of the family. In such circumstances, wp5981-10 12 I do not see how any prejudice is caused to the petitioner. The appellate tribunal was right in holding that the petitioner was not entitled to any notice in the present facts and circumstances. The reasoning in paras 4 to 8 of the impugned order would indicate that the Tribunal was right in concluding that the latest P.R.Card has not been produced. The Tribunal has rightly doubted the power of attorney and declaration because in the legal correspondence, the name of the appellant – petitioner does not appear. In such circumstances, the grievance of the petitioner that principles of natural justice have been violated, is without any substance. 10] Equally, the second grievance that the property had all basic amenities and, therefore, should have been declared as a slum, has no basis. The Panchanama that has been carried out in the presence of the occupants would show that when there are 29 huts and about 145 persons are residing there. There is only one latrine. The drainage is wp5981-10 13 open and the sewerage is not being carried properly. Further the property has a main road but interiors of the property have small lanes which are too congested. While it is true that there may be street lights but further basic amenities are lacking, including adequate WC and bath room. In these circumstances, due to congestion, over-crowding and lack of basic amenities, if the authority thought it proper to declare the property as slum so that improvements can be made in the condition of those residing in the dwelling units, then, it will not be proper to substitute that opinion with that of this Court. Ultimately, the conclusion is based on site inspection and panchanama. It is also based on some germane and relevant considerations with regard to available basic amenities. In these circumstances, the appellate tribunal was right in holding that the property had been properly notified as slum. 11] In the light of the above material and as a result of the above discussion, there is no merit in this petition and the wp5981-10 14 same is accordingly dismissed. (S.C.DHARMADHIKARI, J)