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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2038 OF 2009
1. Shri Zhahid Ali S.Haque,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
2. Shri Mushtaque Ali Mansab Ali,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
3.Shri Musadik Ali Mazhar Ali,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
4.Shri Muqadar Ali Mausin Ali,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
5.Smt.Beig Abidunn Nisa,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
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6.Shri Deen Mohd. K. Khan,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
7.Shri Sabir Mohd.Yusuf,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
8.Shri Ibrahim Pir,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
9.Smt.Ayesha Anjum,
An adult, Indian Inhabitant,
resident of Nehru Nagar Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai 400 055.
10.Smt.Swaleheen Shaikh,
An adult, Indian Inhabitant,
resident of Basera Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai - 400 055.
11.Shri Azhar R.Ansari,
An adult, Indian Inhabitant,
resident of Basera Co-op.
Hsg.Soc.Ltd., Golibar Road,
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Nehru Nagar, Santacruz (E),
Mumbai - 400 055.
12.Shri Gulam Mustafa
An adult, Indian Inhabitant,
resident of Basera Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai - 400 055.
13.Shri Shaikh Shanuali Shaikh,
An adult, Indian Inhabitant,
resident of Basera Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai - 400 055.
14.Shri Shamim Ahmed,
An adult, Indian Inhabitant,
resident of Basera Co-op.
Hsg.Soc.Ltd., Golibar Road,
Nehru Nagar, Santacruz (E),
Mumbai - 400 055.
Versus
1.State of Maharashtra,
[Summons to be served on the
Learned Government Pleader
appearing for State of Maharashtra
under Order XXVII, Ruule 4, of the
Code of Civil Procedure, 1908].
2.The Administrator and the Divisional
Commission-Konkan Division, Mumbai.
3.The Union of India,
Through the Secretary,
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Ministry of Environment & Forest,
New Delhi.
4.The Maharashtra Pollution Control Board,
Sion, Mumbai-400 022.
Khapridev Co-operative Housing Society Ltd.,
Parmanand Wadi, G.D.Ambekar Marg,
Parel (E), Mumbai - 400 012.
5.The Chief Officer & The Competent Authority,
Mumbai Housing & Area Development Board,
A MHADA Unit, Grihanirman Bhavan,
Bandra (E), Mumbai - 400 051.
6.The Executive Engineer, Bandra Division,
Mumbai Housing & Area Development Board
(A MHADA Unit), Grihanirman Bhavan,
Bandra (E), Mumbai - 400 051.
7.The Slum Rehabilitation Authority,
Through its Chief Executive Officer,
Grihanirman Bhavan, Bandra (E),
Mumbai - 400 051.
8.Basera CHS Ltd., Golibar Marg,
Santacruz (E), Mumbai.
9.Nehru Nagar CHS Ltd., Golibar Marg,
Santacruz (E), Mumbai.
10.M/s.Shivalik Ventures Pvt.Ltd.,
Plot No.746, Stani Fernandis Wadi,
D.S.Babrekar Road, Dadar (W),
Mumbai - 400 028.
11.The Municipal Corporation of
Greater Mumbai,
Through Municipal Commissioner,
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MCGM Head Office, Mahapalika Marg,
Mumbai - 400 001. ...Respondents
......
Ms.Anjali Iyer i/b Mr.Vinod B.Wagh for Petitioners.
Mr.G.W.Mattos, A.G.P. for State.
Ms.M.P.Joshi for Respondent No.4.
Mr.J.G.Reddy for Respondent No.7.
Mr.V.A.Thorat with Mr.P.K.Dhakephalkar i/b Divekar & Co.for Respondent
No.10.
Mrs.V.S.Gharapure for Respondent No.11 (BMC).
ig ......
CORAM : SWATANTER KUMAR, C.J. AND
A.M.KHANWILKAR, J.
JUDGMENT RESERVED ON : 1st DECEMBER, 2009.
JUDGMENT PRONOUNCED ON : 10th DECEMBER, 2009.
JUDGMENT (PER KHANWILKAR, J.) :
1. The Petitioners claim to be occupants of structures situated on plot
bearing City Survey Nos.13, 17, 19, 24, 27, 29, 30, 33, Golibar, Santacruz
(East), Mumbai. It is common ground that the plot on which the said
structures are situated has been notified as a slum area. Besides the
structures occupied by the Petitioners, there are in all 5079 slum dwellers.
The Competent Authority has approved the proposal submitted for Slum
Rehabilitation Scheme in relation to total area of plot admeasuring
112582.02 sq.mtrs., so as to accommodate the eligible slum dwellers in the
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Rehabilitation Scheme. The occupants of the structures standing on the said
plot are members of two separate Societies being Basera Cooperative
Housing Society Ltd. and Nehru Nagar Cooperative Housing Society Ltd.
The Petitioners 1 to 9 are members of Nehru Nagar Cooperative Housing
Society; whereas, Petitioner Nos.10 to 14 are members of Basera Co-
operative Housing Society. Significantly, out of 14 Petitioners, only 6
Petitioners i.e. Petitioners 1 to 5 and 10, are eligible for rehabilitation as
per the Annexure II. The other Petitioners who have been found to be
ineligible have challenged the decision, which proceedings are still
pending.
2. The present Petition, however, arises out of the rejection of the
objection put forth by the Petitioners to stop the further development work
on the plot, as is being undertaken by the Respondent No.10. The challenge
was on the ground that no construction activity or for that matter
demolition of the existing structures can be proceeded with in absence of
prior environmental clearance, as per the Environment Impact Assessment
Notification No.S.O. 60 (E) dated 27th January 1994 read with amendment
Notification dated 7th July 2004, issued by the Ministry of Environment and
Forests (MoEF) (Respondent No.3), under the provisions of the
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Environment (Protection) Act, 1986. That objection was taken by the
Petitioners before the Administrator and Divisional Commissioner, Konkan
Division, Mumbai, who in turn, disposed of the Appeals preferred by the
Petitioners on the following basis:
“It is gathered from the facts on record that the respondent Nos.2 &
3 (hereinafter referred as the respondents) are implementing the Slum
Rehabilitation Scheme (SRS) on plot No.746, Staney Fernandes Wadi,
D.S.Babrekar Marg, Dadar (W), Mumbai-400028 and the appellants areresiding in the structures affected by the SRS. It is also gathered that the
appellants in the Appeal No.312 are shown as eligible as per Annexure IIwhereas the appellants in Appeal Nos. 313 and 314/09 are ineligible. As
stated in the appeal Nos. 313 & 314, the said appellants have approached the
SRA against declaring them ineligible. Since the appellants were not
vacating their structures to pave the way for the SRS, they have beendirected by the impugned orders to vacate the same within 7 days.
In the appeals as well as during the arguments, the learned counsels
of the appellants have sought to challenge the impugned orders primarily on
one ground only i.e. the SRS is being implemented without anyEnvironmental Clearance from the Ministry of Environment which
mandatory as per Environmental Impact Assessment Notification dated14-9-2006. The learned counsel of the appellants argued and contended that
any development work in the absence of the said clearance would be illegal
and on the complaints lodged by the residents of the area of SRS, the
Maharashtra Pollution Control Board has issued the show cause notice to therespondent developer on 9-4-2009. The learned counsel of the appellant
reasoned that the respondents should follow due process of law by obtaining
the mandatory environmental clearance before uprooting the appellants from
their structures.
The learned counsel of the respondent developer filed the reply on
8-7-2009 wherein the features, characteristics and importance of the SRS
being implemented by them have been highlighted. It has also been stated
that the transit accommodation or the rental amount in lieu thereof have
been made available to all the eligible slum dwellers who are required to be
shifted. For the ineligible slum dwellers as per Annexure II, it has been
suggested that the said ineligible appellants should approach the appropriate
forum for redressal of their grievances, if any. During the arguments, the
counsel for respondent developer also assured and undertook to provide
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even the ineligible appellants also with transit accommodation or rent in lieu
thereof, pending the decision on their representation for eligibility from the
SRA.
The respondent developer has also stated that out of the total 258
slum dwellers involved in the society in Appeal No.312, 226 slum dwellers
have already vacated their structures. He has further stated that, from the
society involved in appeal Nos. 313 & 314 also, out of the total 84, 71 slum
dwellers have vacated their structures. He therefore argued that the SRS is
getting adversely affected on account of non-vacation of structures by the
non-cooperative appellants involved in the instant appeals.
As far as the prior environmental clearance in terms of
abovementioned Notification dated 14-9-2006 is concerned, the learned
counsel of the respondent developer has stated that the State Expert
Appraisal Committee (SEAC) has recommended the grant of the said
clearance. The learned counsel of the respondent developer argued on this
issue during the hearing.
While reacting to the arguments advanced by the learned counsel of
the respondent developer on the issue of obtaining the environmental
clearance, the learned counsel of the appellants stated that the respondent
developer has purposely and knowingly suppressed the vital fact from the
concerned authority that he had already constructed buildings and the said
scheme was not a proposed scheme but already has been implemented. He
also referred to the representation dated 15-6-2009 made to the Member
Secretary, State Environment Impact Assessment Authority (SEIAA),
Department of Environment, Mantralaya, Mumbai seeking rejection of the
respondent developer’s application of environmental clearance on account
of false statements made by the respondent developer before the SEIAA. He
also produced the copy of the decision held in 10th meeting of the SEIAA on
26-6-2009. It is seen therefrom that the SEIAA has taken the cognizance of
the representation of the learned counsel of the appellants and has also sent
the same to the SRA for confirmation vide their letter dated 8-7-2009 as per
the abovesaid decision.
After having considered all the facts put before me by the parties in
the appeals, the documents attached thereto and the arguments during the
final hearing, it is observed that no other grounds have been cited for not
vacating the structures occupied by the appellants except the absence of
prior environmental clearance. Therefore in my view, except the said
ground, the appellants should have no problem in vacating their structures
and shifting to the transit accommodation or else in accepting the option of
rent as extended by the respondent developer in lieu of transit
accommodation. As stated above by the respondent developer’s counsel, the
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respondent developer is also ready to provide transit accommodation or rent
to the ineligible appellants also till the time their eligibility gets decided. I
think this is a very fair and generous offer and the ineligible appellants
should prove their bonafide intentions by accepting the same.
As far as the question of environmental clearance is concerned, I am
of the view that the concerned authority i.e. SEIAA is already seized of the
matter. As is observed hereinbefore, the SEIAA has already referred the
representation of the learned counsel of the appellants to the SRA for
confirmation. Therefore it would be advisable if the action related to
eviction of the appellants in pursuance of the impugned order is taken after
confirmation of the SRA and/or the grant of environmental clearance by the
authority.
In view of the above observations, since there are no other grounds
for not vacating the structures by the appellants, the impugned order can be
implemented if the respondent developer is able to show that he possesses
the necessary environmental clearance. Accordingly it is felt that the
abovementioned appeals deserve to be disallowed subject to the availability
of the environmental clearance from the appropriate authority. Therefore the
Competent Authority is hereby directed to first ascertain the availability of
the environmental clearance to the SRS from the concerned authority. If the
environmental clearance is available, the Competent Authority shall give 7
days’ notice to the appellants to vacate their structures and if on receipt of
the said notice, the appellants fail to comply the directions, the Competent
Authority shall be free to take further necessary action as per the impugned
order.
With the directions as given above, the appeals stand disposed of.
Parties be informed accordingly.” (emphasis supplied)
3. As a consequence of the above order, the Respondent No.10 pursued
the matter with MHADA for taking over vacant possession of the
structures occupied by the Petitioners and similarly placed persons who
were yet to vacate the structures in their occupation. The Executive
Engineer/Bandra Division, Mumbai Board of MHADA issued notice dated
29th September 2009 which was duly served on the occupants of the
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respective structures including the Petitioners. The English translation of
the relevant extract of the said communication reads thus:
“Sub : To take action at Basera CHS Golibar Rd.Santacruz (east) Mumbai
under Maharashtra slum (improvement clearance & redevelopment) Act
1971. u/s 33, 38.
Ref : 1) Order by Chief Officer and Competent Authority/Mumbai board,
No./Land./Mumbai Board/33,38/BASERA/2012/09, Dt.30/6/09
2) J.Kr.Ka.A./Ba.V./Mumbai Board/1332/09, Dt.30/6/09
3) Order By Administrator and Divisional Commissioner Konkan
Division against Appeal No.312, 313, 314. dt: 11/09/09.
Sir/madam,
Please refer to the above references.
M/s.Shivalik Ventures Pvt.Ltd. has reported to this office that since
letter dated 17/09/09, till date you have not vacated your hut.
w.r.t. Order by Administrator and Divisional Commissioner KonkanDivision DT: 11/09/09. you are hereby informed that within 7 days of
receipt of this letter you should vacate your hut at your own cost and youshould take possession of gala no.302.bldg. no.1 of the transit camp
provided by M/s.Shivalik ventures pvt.Ltd. and you should hand over the
vacant hut to the developer. OR under Maharashtra slum (improvement
clearance & redevelopment) Act 1971. u/s 33, 38, without giving any priornotice your hut will be demolished, please make a note of this.
Yours sincerely,
Executive Eng./bandra div.mum.board.”
4. The present Writ Petition under Article 226 of the Constitution of
India primarily challenges the above order passed by Respondent No.2 as
well as the notice issued by Respondent No.6. The Petition was filed in this
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Court on 5th October 2009. When the matter was moved for the first time
before us on 14th October 2009, we were prima facie impressed with the
grievance made by the Petitioners that the Petitioners claim to be occupying
structure situated on the above numbered plots. Whereas, the Administrator
while disposing of the Appeals, considered the matter in relation to plot No.
746 at Staney Fernandes Wadi, D.S.Babrekar Marg, Dadar (West),
Mumbai-400 028, as can be discerned from 3rd Paragraph of the impugned
decision. That decision was the basis for issuance of impugned eviction
notices. In the circumstances, while issuing notice in the Writ Petition, we
ordered the parties to maintain status-quo in regard to the above numbered
plot. Later on, the matter was moved before us on 16th October 2009 when
Counsel appearing for the Respondents made grievance that the Petitioners
persuaded this Court to grant interim relief in respect of the subject plot on
the basis of untenable ground that the Administrator considered the matter
only in respect of plot No.746; whereas, the proposed action of eviction was
in respect of the above numbered plot. Considering the arguments, we
modified our order dated 14th October 2009 and limited the effect thereof
only to the structures occupied by the Petitioners herein. The Respondents
have filed reply affidavit to counter the grievance made by the Petitioners.
Insofar as the Plot number mentioned in the impugned decision of the
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Administrator as Plot No.746, it is stated that the description so given was a
clerical error. The said address is in fact the office address of the
Respondent No.10 and not the plot in relation to which Slum Rehabilitation
Scheme has been sanctioned by the Competent Authority. Whereas, the
Slum Rehabilitation Scheme is in relation to the above numbered plot and
the structures occupied by the respective Petitioners are admittedly situated
on the said plot. It is further stated that the Administrator realising that
clerical error has crept in, in the impugned Judgment, issued Corrigendum
on 15th September 2009 to clarify that the order passed by him was in
relation to plot at Village Bandra (East), Taluka Andheri, C.T.S.No.27(pt.)
and 30(pt.). After the Corrigendum was brought on record, the grievance of
the Petitioners was that the Corrigendum is an afterthought. It was argued
that if the Corrigendum was to be in place, there was no reason for the
Authority to not refer to that document in the subsequent communications.
The fact remains that the existence of Corrigendum issued by the
Administrator-Respondent No.2 cannot be doubted. The same has been
issued in ordinary course of business after realising that clerical error had
crept in in the impugned Judgment while describing the subject property.
There is no reason to doubt the genuineness and authenticity of this
Corrigendum.
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5. To get over this position, it was argued on behalf of the Petitioners
that issuance of Corrigendum was in the nature of exercise of review power
which has not been bestowed on the Administrator under Section 35 of the
Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act,
1971. This argument does not commend to us. For, issuance of
Corrigendum to rectify the clerical error which has occurred in the
impugned Judgment, by no standard, can be said to be exercise of review
power. On this finding, it is unnecessary to examine the further question
posed as to whether the Administrator has any authority to review his own
order. Accordingly, there is no substance in this submission.
6. On discarding the grievance regarding issuance of Corrigendum by
the Respondent No.2, it would necessarily follow that the order passed by
the Respondent No.2 which is impugned in this Writ Petition was in respect
of structures in occupation of the Petitioners herein situated on plot at
Village Bandra (East), Taluka Andheri, CTS No.27 (pt.) and 30(pt).
Accordingly, the first grievance of the Petitioners which weighed with us
for grant of ad-interim relief in favour of the Petitioners, albeit modified
later on, does not survive for consideration.
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7. The crucial question that needs to be addressed in the present Petition
as raised by the Petitioners is: whether the Developer – Respondent No.10
can be allowed to commence and proceed with any work of development
on the plot in question in absence of prior environmental clearance as
required by the Notification dated 27th January 1994 read with Notification
dated 7th July 2004. For considering this issue, it may be apposite to note
that the Slum Rehabilitation Scheme was approved on the basis of
Redevelopment Scheme submitted by two separate Societies-Basera
Cooperative Housing Society Ltd. and Nehru Nagar Cooperative Housing
Society Ltd. The same was approved by the Competent Authority on 7th
September 2006. The Respondent No.10 was authorised to undertake the
Redevelopment Scheme on terms and conditions specified by the
Competent Authority while approving the said Scheme. The Letter of Intent
was issued by the Slum Rehabilitation Authority on 7th September 2006 and
the Commencement Certificates were issued on 30th March 2007 and 28th
August 2007. After inclusion of the adjoining area in the present project
while issuing revised Letter of Intent on 17th November 2007, the Slum
Rehabilitation Authority had insisted for environmental clearance as per
provisions of Notification S.O. 1533 (E) dated 14th September 2006. The
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Respondent No.10 submitted application to the Ministry of Environment
and Forest dated 19th November 2007 and soon thereafter commenced the
part of the work. Since during inspection, the Sub-Divisional Officer of the
Respondent No.4 Board noticed that three buildings of seven storey for the
transit camp, six buildings of seven storey for residential-cum-commercial
purpose were ready for occupation and about 1,000 huts were demolished
and the remaining work was in progress, show-cause notice was issued to
the Respondent No.10 to stop the development activity. In response to the
show cause notice, the Respondent No.10 submitted explanation by letter
dated 18th May 2009. In the meantime, the request for environmental
clearance made by the Respondent No.10 was considered by State Level
Impact Assessment Authority in its 10th and 11th meeting. As a consequence
of the decision taken in the said meeting, the Respondent No.10 was
informed by the Environment Department vide letter dated 17th August
2009 mentioning that proposal to accord environmental clearance submitted
on its behalf has been accepted on terms and conditions specified in the said
communication. In the said communication, it is clearly mentioned that the
environment clearance is being issued without prejudice to the Court case
pending in the Court of Law and/or any proposed legal action latter after
verification against the construction of the structures/violations by invoking
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powers under Section 19 of the Environment (Protection) Act, 1986 and the
Rules made thereunder for commencing construction without obtaining
prior environment clearance. The Board-Respondent No.4 has filed
affidavit in this Court stating that Notification dated 27th January 1994 has
been superseded by the subsequent Notification dated 14th September 2006
bearing Notification S.O.1533 (E). Further, the latter Notification with
regard to construction project including Slum Rehabilitation Authority
Project is covered under category B in Item 8 thereof. It has found that in
the present case, the construction work or development work was started by
Respondent No.10 on the suit plot after 14th September 2006, for which
reason, the project is not covered by Notification pressed into service by the
Petitioners dated 27th January 1994. The affidavit filed on behalf of
Respondent No.4 Board spells out this position. Para 4 of the said affidavit
reads thus:
“4. I say that by amendment to the Notification S.O.60(E) dated 27th
January 1994 in schedule-I along with other amendments “New construction
projects” under entry “31” as well in paragraph 3 para (g) is inserted.
However as per para (g) of the Notification was not applicable to “anyconstruction project falling under entry 31 of the Schedule-I including new
townships, industrial townships, settlement colonies, commercial complexes,
hotel complexes, hospitals and office complexes for 1000 (one thousand)
persons or below or discharging sewage of 50,000 (fifty thousand) litres per
day or below or with an investment of Rs.50,00,00,000/- (Rupees fifty
crores) or below”. Now in super session of the Notification number S.O.
60(E) dated 27th January 1994 notification S.O.-1533 (E) dated 14th
September 2006 has been issued which under Category B in item 8 of the::: Downloaded on – 09/06/2013 15:24:02 :::
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project too. I say that it is a slum rehabilitation project. Since, theconstruction work was started after 14.9.2006, the present project is not
covered in Notification S.O. 60(E) dated 27th January 1994 and covered
under new EIA Notification 2006. Therefore, the State Government hasgranted environment clearance under that Notification dtd.14.9.2006. The
slum rehabilitation project amounts to a Resettlement of Colony as
mentioned in para 2 of the Petition.” (emphasis supplied)
8. Indeed, the Petitioners have criticized the above stand taken by the
Respondent No.4-Board on the ground that it is vague. The fact remains
that the activities undertaken by the Respondent No.10 on the suit plot, the
same would be governed by Notification dated 14th September 2006. In that,
the Letter of Intent was issued in favour of the Respondent No.10 by the
Slum Rehabilitation Authority on 7th September 2006 and the
Commencement Certificates were issued on 30th March 2007 and 28th
August 2007. It is not the case of the Petitioners that the development work
on the suit plot had actually commenced even before the issuance of the
above noted Commencement Certificate. Suffice it to observe that the
Environment Department, after due consideration of all aspects including
the representation of the Petitioners that the request of Respondent No.10
should be thrown out at the threshold for having suppressed material fact,
have issued environmental clearance on 17th August 2009 in respect of the
Slum Redevelopment Scheme undertaken by Respondent No.10. We are
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informed that the validity of the said environmental clearance has been put
in issue before the Appellate Authority in the proceedings under that Act.
However, so long as the said environmental clearance remains in force, the
grievance of the Petitioners that in absence of environment clearance in
respect of the project in question, the Respondent No.10 could not take any
precipitative steps and proceed with the development work, would not
survive for consideration. This, however, does not mean that we are
expressing any opinion one way or the other on the correctness of the view
taken by the Authority for issuance of environmental clearance in favour of
Respondent No.10. All questions in that behalf will have to be addressed in
appropriate proceedings.
9. Reverting to the controversy raised by the Petitioners, the limited
controversy was of impermissibility of commencement and continuation of
with the development work on the plot in absence of environmental
clearance issued by the Competent Authority. That ground is no more
available to the Petitioners as of now. In any case, the order which is
impugned in this Appeal, if read as a whole, in our opinion, is a benign
order, making it clear that the Competent Authority shall take steps to
vacate the structures occupied by the Petitioners only after being satisfied
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that environmental clearance from the appropriate Authority has been
issued. For the nature of order passed by the Administrator, the concern
expressed by the Petitioners has been fully addressed. In that, the limited
grievance of the Petitioners before the Administrator was that in absence of
environmental clearance by the appropriate Authority, the development
work of the project cannot be commenced, much less, continued. No other
grievance was made before the Administrator nor has been raised before us.
In that sense, there is nothing to challenge in the order passed by the
Administrator dated 11th September 2009.
10. The next question is: whether the notice issued by the Executive
Engineer-Respondent No.6 dated 29th September 2009 can be said to be
legal and valid? We have already adverted to the said notice in the earlier
part of this Judgment. The notice makes reference to the order passed by the
Competent Authority dated 30th June 2009, communication dated 30th June
2009 and more particularly the order passed by the Administrator dated 11th
September 2009. However, nothing is stated in this notice that before
issuance of notice of eviction, the Respondent No.6 was satisfied that
environmental clearance has been issued in respect of the subject Project by
the appropriate Authority, as was directed by the Administrator in the
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impugned decision dated 11th September 2009. The fact that environmental
clearance has already been issued on 17th August 2009 which is in anterior
point of time, would not make any difference. It is not possible to presume
that the same was duly considered by the Respondent No.6, unless the
notice recorded that fact. It was imperative for the Respondent No.6 to be
satisfied in that behalf and then record his satisfaction in the impugned
notice dated 29th September 2009. For, that was the only issue to be kept in
mind before taking precipitative steps including of evicting the Petitioners
and similarly placed persons. We would, therefore, set-aside the impugned
notice Exhibit `F’ dated 29th September 2009 as issued by the Executive
Engineer-Respondent No.6, with liberty to the Respondent No.6 to issue a
fresh notice in accordance with law, keeping in mind the observation made
by the Administrator in his decision dated 11th September 2009.
11. According to the Respondent No.10, the objection raised by the
Petitioners is only to obstruct the development project on untenable ground
for reasons best known to them. As a matter of fact, out of 258 structures
registered with Nehru Nagar Co-operative Housing Society, more than 235
slum dwellers have already either taken rent for making their temporary
accommodation arrangement or accepted the transit accommodation
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provided by the Respondent No.10 and have vacated their respective
structures. Similarly, out of the total 84 structures registered under Basera
Cooperative Housing Society, 77 slum dwellers have vacated their
respective structures on accepting either rent or transit accommodation. In
other words, 90% of the slum dwellers have already vacated their
structures. It is the case of the Respondent No.10 that as a matter of fact,
the Petitioners 9, 10 and 14 herein have already accepted rent for making
their temporary alternative arrangement but have refused to vacate their
structures. Moreover, the Authority has found only six Petitioners i.e.
Petitioners 1 to 5 and 10 as eligible as per Annexure II. For all these
reasons, the grievance of the Petitioners cannot be countenanced. It is,
however, unnecessary for us to delve upon these issues. It is noticed that
the Administrator has already issued directions to the appropriate Authority
to proceed in the matter only after being satisfied that environmental
clearance has been issued in respect of the project in question. That decision
is not challenged by the Respondent No.10. In that sense, the appropriate
Authority will have to abide by the said direction and in any case, the
direction would bind the private parties.
12. While parting, we place on record the stand reiterated by the
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Respondent No.10 as was taken before the Administrator that it was willing
to provide alternate transit accommodation or the rental amount in lieu
thereof to all the Petitioners, whether found to be eligible or otherwise,
pending the decision on their representation for eligibility from the Slum
Rehabilitation Authority. In view of this assurance given by the Respondent
No.10, we fail to understand as to why the Petitioners should still resist the
proposed project that too after issuance of environmental clearance
accorded to it, which was the only grievance made before the Administrator.
13. For the above reasons, we have no hesitation in partly allowing this
Writ Petition. We uphold the opinion recorded by the Administrator
(Respondent No.2) in his decision dated 11th September 2009 (Exhibit E).
We, however, set-aside the eviction notice issued by the Executive
Engineer (Respondent No.6) dated 29th September 2009 (Exhibit F), with
liberty to the Respondent No.6 to issue fresh notice to the concerned
Petitioners in accordance with law only after recording its satisfaction about
the fact that environmental clearance from the appropriate Authority in
respect of the subject project is in force.
14. We make it clear that this Judgment is not an expression of opinion
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either way on the merits of the issues involved in or arising from the
opinion of Environment Department according environmental clearance to
the subject project, or for that matter, on the ineligibility of Petitioners 6 to
9 and 11 to 14, as those issues will have to be addressed in the pending
proceedings before the appropriate forum. All questions in that behalf are
left open.
15. We accept the assurance given by the Respondent No.10 through
Counsel that transit accommodation or the rental amount in lieu thereof will
be offered to all the Petitioners but insofar as Petitioners who have been
found ineligible as per Annexure II, that offer would be subject to the
decision of the Appellate Authority on their representation regarding
eligibility.
16. Accordingly, this Petition is partly allowed on the above terms with
no order as to costs.
Sd/-
CHIEF JUSTICE
Sd/-
A.M.KHANWILKAR, J.
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