MUNICIPAL COMMISSIONER, MUNICIPAL CORPORATION OF GREATER MUMBAI AND ORS. versus PANNA MAHESH CHANDRA DAVE AND ANR.
[2020] 5 S.C.R. 59, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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MUNICIPAL COMMISSIONER, MUNICIPAL
CORPORATION OF GREATER MUMBAI AND ORS.
v.
PANNA MAHESH CHANDRA DAVE AND ANR.
(Special Leave Petition (C) No. 18065 of 2018)
JANUARY  31, 2020
[N. V. RAMANA, VINEET SARAN AND
V. RAMASUBRAMANIAN, JJ.]
Municipalities:
Demolition of Chawl – By Municipal Corporation – Writ
Petitions by one land-owner and 11 tenants – High Court directed
allotment of alternative sites to the tenants and directed
consideration of TDR to the land-owner – Appeal to Supreme Court
– Held: Municipal Corporation having conceded before High
Court to grant TDR to the land-owner, should not have come in
appeal – In respect of 7 tenants, the Corporation has agreed to
give alternate sites – So far as the remaining 4 tenants are
concerned, direction of the High Court is not liable to be interfered
with – Bombay Municipal Corporation Act.
Dismissing the petitions, the Court
HELD: 1. In so far as persons claiming to be the owners
of the land are concerned, the Municipal Corporation itself had
conceded before the High Court that they were willing to offer
TDR. After having stated so, the Municipal Corporation ought
not to have come up with a special leave petition in respect of
the land-owners. [Paras 15 and 16] [68-E-F; 69-B-C]
2.In so far as the eleven tenants are concerned, the
Corporation agreed both before the High Court and before this
Court that four of them are entitled to alternate accommodation.
Therefore, the special leave petitions filed in respect
of those
four have also been disposed of by the Order dated 05.12.2018.
[Para 17] [69-C-D]
3. In the affidavit of objections filed to the Report of the
High Court Legal Services Committee, the Corporation has
conceded that three out of the remaining seven tenants are also
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eligible. Therefore, ultimately the dispute has boiled down only
to four tenants. [Para 18] [69-E]
4. The High Court has recorded a finding of fact that the
Municipal Corporation demolished the superstructures and took
possession in a high handed manner. The Legal Services
Committee has recorded a finding that the superstructures were
in existence from a period prior to 1961. These findings of fact
cannot be interfered with by this Court in a special leave petition
under Article 136 of the Constitution of India, unless the findings
shock the  conscience of the Court. The findings of the High
court are not perverse. Therefore, there is absolutely no grounds
to interfere with the judgment of the High Court. [Para 19] [69-
D-G]
CIVIL APPELLATE JURISDICTION : Special Leave Petition
(Civil) No. 18065 of 2018.
From the Judgment and Order dated 16.04.2018 of the High
Court of Judicature at Bombay in Writ Petition (L) No. 3085 of 2017.
With
Special Leave Petition (Civil) No. 18212, 18289, 18399, 18599,
18336, 18376, 18210 of 2018.
Shekhar Naphade, Sr. Adv., Mrs. Suchitra Atul Chitale, Ms. Tanvi
Kakar, Ansh Pandey, Mrs. Preeti Purandare, Advs. for the Petitioners.
Siddharth Bhatnagar, Sr. Adv., Ankit Yadav, Aditya Sidhra,
Nirnimesh Dube, Shashibhushan P. Adgaonkar, Rahul Chitnis, Sachin
Patil, Advs. for the Respondents.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Challenging a common order passed by the
High Court of
Judicature at Bombay in a batch of twelve writ petitions, granting the
relief of allotment of alternative site to the petitioners in eleven writ
petitions (tenants) and granting the relief of consideration of a request
for grant of TDR (Transferable Development Rights)/DRC
(Development Right Certificate) to the petitioners in one writ petition
(owners of the land), the Municipal Corporation of Bombay has come
up with the present special leave petitions.
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2. We have heard Mr. Shekhar Naphade, learned senior counsel
appearing for the Municipal Corporation of Bombay and Mr. Siddharth
Bhatnagar, learned senior counsel appearing for the contesting private
respondents.
3. The private respondents herein filed writ petitions on the file
of the High Court of Judicature at Bombay challenging the demolition
of the superstructures put up by them on a plot of land bearing CTS
Nos.4009/1 to 4009/7 at Village Dahisar, Taluka Borivali, MSD Mumbai
400068. The case of the respondents 1 to 3 in Special Leave Petition
(C) No.18376 of 2018 (who were the petitioners in Writ Petition
No.3090 of 2017) was a little different from the case of the petitioners
in the other 11 writ petitions.
4. The case of the petitioners in Writ Petition No.3090 of 2017
(Respondents 1 to 3 in Special Leave Petition (C) No.18376 of
2018), was that the aforesaid land originally belonged to one Mr.
Dattatray Mahadev Angare as per the City Survey Record; that upon
the death of the original owner, his wife Sushila was recorded as the
owner in the revenue records in the year 1983; that upon Sushila’s death
on 15.03.1995, the names of her legal heirs, including the name of her
son Mr. Suresh Angare were entered in the revenue record; that the
said Suresh Angare died on 31.01.2008 leaving behind him surviving,
his widow and two sons, who were the petitioners in Writ Petition
No.3090 of 2017; that those legal heirs thus became the owners of the
aforesaid
plot and the superstructures standing thereon; that the family
of Dattatray Mahadev Angare had put up 11 structures, in the year
1955, on the said plot of land and the same was named as Jeevan Ganga
Chawl; that those structures were let out to tenants; that in the year
1961, the superstructures were also assessed by the Municipal
Corporation; that the owners were regular in paying tax to the Municipal
Corporation, from the year 1961; that in view of the said assessment,
the Chawl became a protected structure within the datum line of year
1962; that therefore the Chawl cannot be demolished or removed
without providing permanent alternative accommodation to the tenants;
that vide a notice dated 13.02.1979 issued under Section 351 of the
Bombay Municipal Corporation Act, the Corporation Authorities claimed
that 3 of those structures were illegally constructed and were liable to
be demolished; that challenging the said notice, Sushila Dattatray Angare
filed a civil suit and obtained an injunction against demolition; that again
the Municipal Corporation issued notice dated 23.06.2008 to four tenants
MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.
PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]
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on the ground that Bharucha Road was to be widened and that those
four tenants will be allotted alternate accommodation at Anand Nagar
Municipal Market; that those four tenants expressed unwillingness to
accept the alternative accommodation at that point of time; that
thereafter Municipal Corporation again issued a notice dated 02.07.2016
to those four tenants offering a fresh allotment in the Municipal Retail
Market; that subsequently the Corporation issued proceedings dated
11.04.2017 cancelling those allotments on the ground that those four
allottees did not take possession; that again on 11.10.2017, the
Corporation issued a fresh notice to those four tenants to vacate the
premises within seven days; that on 26.10.2017, the officials of the
Municipal Corporation suddenly landed up in the premises along with a
police force from Dahisar Police Station and started demolishing the
superstructures in which the tenants were carrying on business; that
thereafter the officials of the Corporation forcibly removed all the eleven
tenants from the premises and demolished their structures; that the
officials of the Corporation did not even permit the tenants to remove
their valuables including cash, furniture and fixtures from the premises
and that therefore after issuing a legal notice, the writ petitioners were
conceded to approach the High Court.
5. While what is stated above, was the case of the petitioners in
W.P. No. 3090
of 2017, the case of the petitioners in the other writ
petitions was that they are tenants in respect of the 11 structures put
up in the premises and that they have been forcibly evicted and the
structures demolished without following due process of law.
6. The Corporation filed separate affidavits in reply to each of
the writ petitions contending inter alia that Padmakar Javle Road, which
is parallel to Dahisar Railway Station at East, provides the only access
to the commuters approaching the Railway station; that the width of
the road was only 5 meters; that considering the narrowness of the
road and considering the need to allow access to fire brigade and
ambulance in case of any untoward incident, the Municipal
Commissioner, by his proceeding dated 15.01.1974 prescribed a Regular
Line for the said Padmakar Javle Road upto 13.40 meters, in terms of
the provisions of Section 297(1) of the Bombay Municipal Corporation
Act; that when the Corporation took steps for widening the road, a few
people approached the City Civil Court and those who were found
eligible were granted alternative premises; that the Municipal Corporation
received a letter dated 10.03.2010 from the Deputy Collector and
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Competent Authority Borivali stating that the ownership of the land
affected by the road widening, vested with State Government; that out
of the 11 structures demolished by the Corporation, 4 were found to
belong to persons who were eligible for alternative accommodation; that
however even those persons had approached the Court by filing writ
petitions; that those four persons did not accept the alternative
accommodation despite repeated offers and, hence, the offer had to
be withdrawn; that out of the remaining structures, 4 were found only
to be illegal shanties and the names of persons claiming to be the
owners of these shanties, are not reflected in Annexure II prepared
by the Deputy Collector; that the Corporation was willing to grant
necessary benefits such as TDR to the original owner of the plot of
land which is affected by the road widening scheme; that the first
respondent in Special Leave Petition (C) No.18376 of 2018 attended
the meeting convened in this regard on 11.11.2017, but failed to contact
the office of the Chief Engineer (DP); and that therefore the writ
petitions were liable to be dismissed.
7. After considering the pleadings and the contentions advanced
on both sides, the High Court found that it was not even the case of
the Municipal Corporation that they followed due process of law before
demolishing the structures and that the action of the Municipal
Corporation in demolishing the superstructures and taking forceful
possession was
high handed.  But instead of granting the relief of
restitution, the High Court granted one set of reliefs to the persons
claiming to be the owners of the land and another set of reliefs to the
tenants.  It is enough to extract the operative portion of the order of
the High Court to show the nature of the reliefs granted.  It reads as
follows:
“(i)  It will be open for the petitioners in Writ Petition
(L) No.3090 of 2017 to make an Application to the
Municipal Commissioner for grant of TDR
(Transferable 
Development 
Rights)/DRC
(Development Right Certificate) in respect of the
area out of the road widening. If such an Application
is made, the Municipal Corporation or its
appropriate authority shall decide the same within
a period of 60 days from the date of filing of the
Application. The decision taken thereon shall be
communicated to the petitioners immediately
MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.
PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]
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thereafter. We clarify that we have made no
adjudication on the title claimed by the said
petitioners;
(ii) As regards the petitioners in all the other Writ
Petitions, we direct the Mumbai Municipal
Corporation to allot to the said Petitioners tenements
having the size equal to that of their demolished
tenements. The premises offered shall be in a vicinity
of the demolished premises. The premises shall be
such that the same will have a frontage on any of
the main road;
(iii) The allotment of the premises shall be made to the
said Writ Petitioners as expeditiously as possible and
in any event on or before 30 June, 2018;
(iv) We make it clear that the allotment will have to be
made free of cost.  However, it will be open for the
Municipal Corporation to impose appropriate terms
and conditions;
(v) The Petitions are disposed of with the aforesaid
directions;
(vi) All concerned to act upon an authenticated copy of
this order.
8. Before proceeding further, it must be recorded that the High
Court was actually convinced to order restitution, but the High Court
refrained from doing so only due to the fact that a public road had
already been constructed on the land. In other words, the High Court
actually balanced the private interests of the respondents-herein and
the public interest.
9. Despite the fact that the High Court merely granted limited
reliefs and despite the fact that even according to the Corporation, four
out of
eleven tenants were eligible for alternative accommodation, which
was in fact offered to them, the Municipal Corporation came up with
twelve special leave petitions against the common order passed in
twelve writ petitions. The only substantial questions of law sought to
be raised by the petitioners were (i) whether the High Court could
have overlooked the readiness and willingness on the part of the
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Municipal Corporation to grant the benefit of TDR to the original
owner of the plot of land; and (ii) whether the High Court was
right in overlooking the prescription of a Regular Line way back
in the year 1974 for the widening of the road from 5 meters to
13.40 meters.
10. Though the aforesaid questions would not technically qualify
as substantial questions of law of public importance, this Court ordered
notice in the special leave petitions and also granted a stay of operation
of the impugned judgment, on 30.07.2018 when the special leave
petitions came up for hearing.
11. Subsequently on 05.12.2018 this Court disposed of four special
leave petitions which arose out of writ petition Nos.3087, 3089, 3092
and 3095 of 2017, on the short ground that the Municipal Corporation
had itself found the petitioners therein to be eligible for allotment of
alternate accommodation.  After so disposing of four out of twelve writ
petitions on 05.12.2018, this Court proceeded to direct the Secretary
of the Bombay High Court Legal Services Committee to examine the
relevant records and to submit a report about the eligibility of the other
tenants to alternate accommodation. This order was passed in view of
the stand taken by the Municipal Corporation that the other tenants were
not eligible for alternate accommodation as per the guidelines of the
Mumbai Municipal Corporation. It will be useful to extract the order
dated 05.12.2018 passed by this Court as follows:
“Applications seeking exemption from filing official
translation of Annexures are allowed.
Heard the learned Senior counsel appearing for the
petitioners and the learned counsel appearing for the
respondents.
The respondents-herein filed Writ Petitions before the High
Court of Judicature at Bombay claiming that they are the
owners of the land and structures which were taken away
by the Mumbai Municipal Corporation for widening of road
without paying any compensation to them.
After hearing the parties, the High Court has disposed of
the Writ Petitions with the following directions which are
extracted below:-
MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.
PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]
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(i) xx xx xx xx
(ii) As regards the petitioners in all the other Writ
Petitions, we direct the Mumbai Municipal
Corporation to allot to the said petitioners tenements
having the size equal to that of their demolished
tenements. The premises offered shall be in the
vicinity of the demolished premises. The premises
shall be such that the same will have a frontage on
any of the main roads;
(iii) The allotment of the premises shall be made to the
said Writ Petitioners as expeditiously as possible and
in any event on or before 30th June, 2018.
(iv) We make it clear that the allotment will have to be
made free of cost. However, it will be open for the
Municipal Corporation to impose appropriate terms
and conditions.
The Mumbai Municipal Corporation challenged the
impugned order of the High Court by way of filing Special
Leave Petitions before us.
Mr. Shekhar Naphade, learned Senior counsel appearing for
the petitioners submitted that out of eleven respondents, who
filed Writ Petitions before the High Court, four persons
namely (i) Shri Bhimsen P. Singh, (ii) Mr. Anil Surajman
Shukla, (iii) Mr. Muniram Shivpujan Gupta and (iv) Mr.
Kantilal Girdhar Gandhi are eligible for allotment of
alternative premises at a suitable place, as per the policy of
the Mumbai Municipal Corporation, if they comply the
conditions imposed by the said Corporation.
Therefore, Special Leave Petition No.17082/2018, Special
Leave Petition No.18331/2018,
Special Leave Petition
No.18403/2018 and Special Leave Petition No.18384/2018
are disposed of recording the statement made by the learned
Senior counsel for the petitioners.
So far as remaining seven respondents are concerned, four
of them are not eligible as per the guidelines of the Mumbai
Municipal Corporation and rest of the three are ineligible
as per the Slum Rehabilitation Act.
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However, learned Senior counsel submits that in case those
seven respondents produce relevant material, the Municipal
Corporation, after examining the material and if it is
satisfied, they are willing to extend the benefit as per the
regulations and rules.
In view of the stand taken by the learned Senior counsel for
the Corporation, we direct the parties to appear before the
Secretary, Legal Services Authority of the Bombay High
Court and the said Authority will examine the relevant records
produced by the petitioners as well as the respondents and
submit a report before this Court about their eligibility in
accordance with the guidelines of the State Government as
well as the Municipal Corporation/Slum Development
Authority.
We direct the parties to approach the Secretary, Legal
Services Authority of the Bombay High Court within a week’s
time from the date of receipt of the order to enable the said
Authority to decide and submit a report expeditiously
preferably within a period of eight weeks from the date of
communication of this order. List the other Special Leave
Petitions after Report is received from the Legal Services
Authority of the Bombay High Court.”
12. Pursuant to the said order, the Secretary of the High Court
Legal Services Committee, Bombay filed a report dated 07.02.2019.
The important findings recorded in the Report of the High Court Legal
Services Committee are (1) that the assessment certificate issued by
the Corporation shows the
existence of superstructures from a period
prior to 1961 (2) that some of the respondents in the special leave
petitions were issued with notices under Section 3Z(2)(i) of the Slum
Act and that they are eligible for permanent alternative accommodation,
as they have produced electricity bill Gumasta Licence etc. from a
period prior to 1995 while the cut-off date was only 01.01.2000 and
(3) that the other respondents are also eligible for permanent alternative
accommodation, as their superstructures were duly assessed in the year
1961 and indisputably, those structures were demolished on 26.10.2017.
13. The Municipal Corporation has filed an affidavit of objections
to the Report of the High Court Legal Services Committee. It is claimed
in the said affidavit that the respondents did not produce any proof of
MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.
PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]
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existence of superstructures prior to the Datum Line of 1962; that the
shop owners failed to submit any valid, legal proof; that the land under
reference was not declared as a slum under the Slum Act; that the
owner of the land Smt. Geeta Angare had not submitted the names of
the eligible tenants; that out of 11 structures, the occupants of 4
structures were already found eligible for alternate accommodation; that
out of the remaining 7 structures, 3 have been assessed to tax and that,
therefore, in addition to the 4 structures declared eligible earlier, 3 more
may become eligible for alternative accommodation.
14. Drawing our attention to the various documents and also to
the Report of the High Court Legal Services Committee, it was
strenuously contended by Mr. Shekhar Naphade that the grant of
alternate accommodation cannot be claimed by the respondents as a
matter of right, unless they fulfill the parameters fixed by the Municipal
Corporation and that the ad-hoc identification of parties for the grant
of alternate accommodation without any supporting documents would
create huge disparities. The learned Senior Counsel has also assailed
the findings of the High Court Legal Services Committee on the ground
that those findings were not supported by any documentary evidence.
15. We have carefully considered the contentions of the learned
senior counsel for the Municipal Corporation. We should point out at
the outset that
the legal heirs of the original owner of the land were
the petitioners in one writ petition and eleven persons claiming to be
the tenants, were the petitioners in the other writ petitions.  Insofar as
persons claiming to be the owners of the land are concerned, the
Municipal Corporation itself had conceded before the High Court that
they were willing to offer TDR. In paragraph 15 of the affidavit in reply
filed by the Municipal Corporation in Writ Petition No. 3090 of 2017, it
was stated by the Municipal Corporation as follows:
“I say that the respondents Nos.2 to 4 are willing to grant
the necessary benefit such as TDR to the rightful owner of
the plot of land which is affected by road widening scheme.
I say that the petitioner No.1 had contacted the officers at
R/North Ward as regarding the issuance of TDR.  The
petitioner No.1 had attended the meeting in Asst. Municipal
Commissioner, R/North office on 11th November, 2017, when
she was informed that she has to contact the office of Chief
Engineer (DP) along with relevant papers. I say that the
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petitioner had agreed and given assurance to the respondent
that she will contact the said office for granting her TDR in
lieu of land being acquired for the purpose of road
widening. I understand that petitioner No.1 has not
contacted the office of Chief Engineer (OP) for the reasons
best known to her.”
16. After having stated so in their affidavit in reply, the Municipal
Corporation ought not to have come up with a special leave petition
even in respect of Writ Petition No.3090 of 2017. In fact one of the
two substantial questions of law sought to be raised, which we have
extracted earlier, also concedes the position taken the Corporation that
the respondents 1 to 3 in Special Leave Petition No.18376 of 2018 are
entitled to relief.  Therefore, we do not know how and why the
Corporation is blowing hot and cold.
17. Insofar as those eleven tenants are concerned, the
Corporation agreed both before the High Court and before this Court
that four of them are entitled to alternate accommodation. Therefore,
the special leave petitions filed in respect of those four have also been
disposed of by the order dated 05.12.2018.
18. Therefore, we are left only with seven tenants.  In the
affidavit of objections filed to the Report of the High Court Legal
Services Committee, the Corporation has conceded that three out of
those seven tenants are also eligible. Therefore, ultimately the dispute
has boiled down only to four tenants.
19. The High Court has recorded a
finding of fact that the
Municipal Corporation demolished the superstructures and took
possession in a high handed manner.  The Legal Services Committee
has recorded a finding that the superstructures were in existence from
a period prior to 1961. These findings of fact cannot be interfered with
by this Court in a special leave petition under Article 136 of the
Constitution of India, unless the findings shock our conscience. The
findings of the High court are not perverse. Therefore, we find absolutely
no grounds to interfere with the judgment of the High Court. Hence,
the special leave petitions are dismissed. No costs.
Kalpana K. Tripathy
Petitions dismissed.
MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.
PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]