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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2225 OF 2008
Devendra Yashwant Kamble
& Ors. ..Petitioners.
Vs.
The State of Maharhshtra
& Ors. ..Respondents.
WITH
WRIT PETITION NO.2239 OF 2008
Shaikh Jumman & Ors. ..Petitioners.
Vs.
The State of Maharhshtra
& Ors. ..Respondents.
Mr.Prakash G. Marathe for the Petitioners.
Mr.Milind More, A.G.P. for Respondent nos.1 and 2
in W.P.2225/08.
Mr.G.D.Uttangale i/b.Uttangale & Co. for Respondent
no.3.
Ms.Madhubala Kajale, A.G.P. for Respondent nos.1
and 2 - State in W.P.2239/08.
Mr.V.M.Thorat, Senior Counsel with Mr.A.R.Pande for
Respondent no.4.
CORAM : S.J. VAZIFDAR, J.
DATED : 9TH FEBRUARY, 2009
ORAL JUDGMENT :
By an order dated 13.10.2008 A.M.Khanwilkar, J.
noted that a question of law, which I will refer to
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shortly, arises in the present case. The learned
Judge noted that if the question is answered in
favour of the Petitioner it could necessarily follow
that the impugned action would not have been taken
against the Petitioner.
The learned Judge further observed that as a
short question is involved, instead of admitting the
petition it would be appropriate that it is kept for
and with the
final disposal at the admission stage.
consent of the parties,
Accordingly,
the Writ
Petitions are disposed of finally at the admission
stage.
2. Further, the question involved in both the Writ
Petitions is common. Both the Writ Petitions are
therefore disposed by this common order.
3. There are six Petitioners in Writ Petition
No.2225 of 2008 and four Petitioners in Writ
Petition No.2239 of 2008. Respondent nos.2 and 3
are The Administrators and Divisional Commissioner,
Konkan Division, Mumbai and The Chief Executive
Officer, Slum Rehabilitation Authority, Bandra,
Mumbai. Respondent no.4 M/s.Shree Gajraj Housing
Nirman Pvt. Ltd. is a developer appointed by a
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Co-operative Housing Society.
4. The Petitioners in both the Writ Petitions have
challenged an order dated 29.8.2008 passed by
Respondent no.2 upholding an order dated 8.10.2007
passed by the Deputy Collector (Encroachment and
Removal) and Competent Authority, Bandra, Mumbai,
under Sections 33 and 38 of the Maharashtra Slum
Areas (I.C.&R.) Act, 1971.
5.
On 18.12.2004 Respondent no.4 the developer and
the Co-operative Housing Society, made a proposal to
the Slum Rehabilitation Authority for a scheme to
redevelope the property under Regulation 33(10)
under the scheme of the Development Control
Regulations, 1991 under the Maharashtra Regional and
Town Planning Act, 1966.
On 3.2.2006 the Additional Collector
(Encroachment) issued the Annexure II. Upon
complying with the provisions, 1054 applications
were received alleging that they were eligible to be
accommodated under the proposed scheme. The
Annexure II is issued in respect of 808 persons who
were found eligible. It is important to note that
784 out of these 808 persons found to be eligible,
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constituting about 97%, gave their consent for the
development of the property as per the said
proposal.
6. All the six petitioners in Writ Petition No.2225
of 2008 have been found to be eligible whereas, four
Petitioners in Writ Petition No.2239 of 2008 have
been found to be ineligible. The Petitioners in
Writ Petition No.2239 of 2008 have filed appeals
before
order, I
the authorities, which are pending.
propose protecting their rights
By this
in the
event of their being found to be eligible
ultimately.
7. On 29.5.2006 a letter of intent was issued by
the Slum Rehabilitation Authority, which is a
planning authority under the Maharashtra Regional
and Town Planning Act, 1966, in favour of Respondent
no.4. The scheme involves the construction of three
rehabilitation buildings. Two of these buildings
comprise of a ground and twelve upper floors. The
third rehabilitation building comprises of a ground
and seven upper floors. The Letter of Intent was
revised on 25.8.2006.
On 4.10.2006 the Slum Rehabilitation Authority,
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issued the I.O.D. On 19.10.2006 the commencement
certificate was issued.
8. It is important to note that in order to enable
the construction of the first rehabilitation
building, transit camps were made available and 300
persons have already been shifted to the transit
camp. This was part of the first phase which
involved construction of the first building. Thus,
the said
these 300 persons are already out of their homes, in
transit camps. The construction of the
building has been completed. Certain finishing
works remains to be completed and the completion
certificate also remains to be issued.
9. To proceed with the next phase, the Petitioners
were required to shift from their existing
accommodation. They however refused to vacate the
premises in their possession. The six Petitioners
in Writ Petition No.2225 of 2008, who were found
eligible, were also required to shift to the transit
accommodation. Thus, proceedings were instituted
under Section 33 of the Slum Rehabilitation Act in
respect of these ten Petitioners.
On 8.10.2007 the Deputy Collector (Encroachment)
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passed an order under Section 33. This order was
challenged in an appeal under Section 35.
By an order dated 29.8.08, the Divisional
Commissioner confirmed the order dated 8.10.2007.
It is this order dated 29.8.2008 which is challenged
in this Writ Petition.
10. The main contention on behalf of the
Petitioners
inasmuch
is
ig that the entire
as the area in respect whereof the
scheme is void
scheme
has been sanctioned has not been declared to be a
slum under Section 4 of the Slum Rehabilitation Act.
This is the point of law which has been noted by
A.M. Khanwilkar, J. in the said order dated
13.10.2008. Certain interim reliefs were also
granted directing the Respondents to maintain
status-quo in respect of the suit property. It was
clarified that the Respondents would be permitted to
carry on further construction but without claiming
any equity. It was further made clear that no
construction activity on the site, which was
originally occupied by the Petitioners would be
commenced, if already not started.
11. The question of law raised on behalf of the
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Petitioners is no longer res-integra. It is
concluded by two Division Bench judgments of this
Court.
12. Mr.Marathe, the learned counsel appearing on
behalf of the Petitioners relied upon paragraph 17
of a judgment of a learned Single Judge of this
Court in the case of Smt.Ramkali Sitaram Kushawaha
(Kachhi) & Ors. v. The Deputy Collector (ENC) and
thus :-
Competent Authority & Ors., ALL MR 320. which reads
“17. The reference to the
Development Control Regulation
No.33(10) is also of no help for the
respondents to justify action under
Section 14(1) without compliance of
Section 5 of the said Act. Clause
II(i) of the said Regulation provides
that slums shall mean those censued,
or declared and notified, in the past
or hereafter under the said Act and
slums shall also mean areas/pavement
stretches hereafter notified as Slum
Rehabilitation Areas. Sub-clause
(ii) of Clause II provides that if
any area fulfills the conditions laid
down in section 4 of the said Act to
qualify as slum area and has been
censused or declared and notified
shall be deemed to be and treated as
Slum Rehabilitation Areas. Referring
to these provisions, it was sought to
be contended that the same clearly
provides as to which areas can be
treated as slum rehabilitation area.
At the outset, it is to be noted that
the Development Control Regulation
No.33(10) is issued under the
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Planning Act and not under the said
Act. The provisions of la contained
in the said Act cannot be construed
by referring to the regulations
issued under totally the different
Act. Secondly, the provisions of
clause II are not deeming provisions
relating to the slum rehabilitation
areas but they merely provide for
areas which can be treated as the
slum rehabilitation areas. The
sub-clause (i) of clause II clearly
provides that those provisions are
for the purpose specified in clause I
which precludes clause II. In fact,
sub-clause (i) of clause II begins
with the expression “For this
purpose, ……………………”
which clearly signifies that whatever
has been stated subsequent to the
said expression “For this purpose” is
for the purpose specified in the
preceding paragraph. The paragraph
preceding the clause (i) of II
relates to the eligibility for
rehabilitation under the scheme. It
does not relate to any area to be
considered as the slum rehabilitation
area within the meaning of the said
expression under the said Act.
Sub-clause (a) of clause I thereunder
provides that “for redevelopment of
slums including pavements, hose
inhabitants’ names and structures
appear in the electoral roll prepared
with reference to 1st January, 1995
or a date prior thereto, but where
the inhabitants stay at present in
the structure, the provisions of
Appendix IV shall apply on the basis
of a tenement in exchange for an
independently numbered structure.”
Sub-clause (b) thereof provides that
“Subject to the foregoing provisions,
only the actual occupants of the
hutments, shall be held eligible, and
the so called structure owner other
than the actual occupant if any, even
if his name is shown in the electoral
roll for the structure, shall have no
right whatsoever to the reconstructed
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tenement against that structure.” In
other words, sub-clauses (a) and (b)
of clause I relate to the eligibility
of the persons for the new tenements
in exchange of the old tenements, and
for that purpose, which areas can be
identified for the purpose of the
slum rehabilitation have been
specified in clause II. That by
itself does not amount to say that
any such area is declared as or is
deemed to be the slum rehabilitation
area within the meaning of the said
Act. Being so, ever on mere
applicability of the G.R. dated 9th
April, 1998, it would act ipso facto
transform an area already declared as
a slum area under the said Act into a
slum rehabilitation area, in the
absence of proper declaration under
Section 30(1) of the said Act. These
Regulations cannot stand on higher
pedestal than that of G.R. dated 9th
April, 1998.”
13. Mr.Marathe submitted that in view of this
judgment the present scheme is bad in law as there
is admittedly no declaration under the Slum
Rehabilitation Act.
14. Even assuming that the judgment supports
Mr.Marathe’s submission, it is of no assistance to
the Petitioners in view of two subsequent Division
Bench judgments of this Court.
15. In Amba Chawl Wadi Rahiwasi Seva Sangh v.
Municipal Corporation of Greater Mumbai & Ors.,
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2005(3) ALL MR, 889 the facts and the submissions
were almost identical to those in the present case.
(A). The Petitioners had challenged a scheme of
rehabilitation approved by the B.M.C. and the Slum
Rehabilitation Authority. The Petitioners also
challenged an order passed under Sections 33 and 38
by the Additional Collector under the Slum
Rehabilitation Act and the order passed in the
Appeal under Section 35.
The Corporation there decided to retain the
property and therefore put up a proposal for
redeveloping the area and redeveloping the slum
areas on the said property. A society submitted a
proposal to redevelope the property. The slum had
been censused.
(B). The facts in the present Writ Petition are
almost identical. In the present Writ Petitions
also the area is admittedly censused. Further, in
the present Writ Petitions also, admittedly, the
area belongs to the State Government. In the case
before the Division Bench also the scheme was
proposed under Regulation 33(10) of the Development
Control Rules and had been sanctioned.
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(C). The same contentions were considered by the
Division Bench. It was contended in that case that
the land had not been declared as a slum area as
required under Section 4 of the Slum Act and that
unless there is such a declaration, no redevelopment
or rehabilitation can be undertaken. Reliance was
placed inter-alia on the judgment of the learned
single Judge in Ramkali’s case, referred to above.
It
under
was further
Section
igcontended that the orders
33 and 38 were therefore illegal
passed
as
the area had not been declared a slum. It was
contended that on a proper construction and
interpretation of Regulation 33(10) it follows that
only an area which is declared a slum area prior to
1971 or first declared a slum under the Slum Act,
would constitute a slum and that since the area has
not been declared a slum area prior to 1971 or under
the Slum Act, the rehabilitation thereof could not
be undertaken.
(D). On the other hand, on behalf of the
Respondents, it was contended that the Corporation
had the authority to decide to develope a plot which
is a censused slum and to rehabilitate the slum
dewellers; that once the area had been censused as
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a slum, the machinery available under the Slum Act
was put into operation in order to evict the
unauthorised slum dwellers and there was no need to
declare the area as a slum under section 4 of the
Slum Act since the provisions of sections 33 and 38
have been invoked only in order to avail of the
machinery available under the Slum Act.
(E). The Division Bench upheld the contentions on
submission raised
behalf of the Respondents which are identical to the
on behalf of the Respondents
before me. The Division Bench held as under :-
“7. Development Control Regulation
33(10) permits redevelopment of slumswhose inhabitants’ names and
structures appear in the electoralroll prepared on or before 1.1.1995.
A slum has been defined in 33(10)II
to mean those areas which have been
censused or declared and notified in
the past or under the Slum Act after
it was enacted in 1971. Therefore, a
slum is not just an area which has
been declared a slum under section 4
of the Slum Act. The issuance of a
notification under section 4 of the
Slum Act is not a prerequisite for an
area to be considered a slum
rehabilitation area. Censused slums
have also been defined as those which
are located on lands belonging to the
government or any undertaking of the
government or the Brihanmumbai
Municipal Corporation and which have
been censused in 1976, 1980, 1985 or
prior to 1.1.1995. There is no
dispute that the present area is
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owned by the Corporation. Nor is
there any dispute that the slums
located thereon have been censused
prior to 1995.
8. The submission made on behalf of
the Petitioners that the provisions
of the Slum Act cannot be invoked
unless there is a declaration made
under section 4 that the area is a
slum area, is without merit. The
provisions of sections 33 and 38 of
the Slum Act have been invoked by the
Respondents in order to evict the
slum dwellers from the area which is
a censused slum. It is only the
machinery which is available under
the Slum Act that is being utilised
for the purposes of removing the
occupants from a land which is
declared a slum area. In fact under
the D.C. Regulations steps can be
taken to evict those hutment dwellers
who do not join a rehabilitation
project willingly. The provisions
clearly stipulate that if the hutment
dwellers do not join the scheme
within 15 days after a slum
rehabilitation project has been
approved, then action under the
provisions of the Slum Act including
sections 33 and 38 as amended from
time to time can be taken against the
hutments. All those who do not join
the project lose the right to any
built up tenement and their tenement
can be taken over by the slum
rehabilitation authority and can be
used for accommodating those slum
dwellers from other slums who cannot
be accommodated in situ. The
Corporation on 24.5.1996 issued a
letter of “no objection” after
verifying the proposal of Respondent
No.3 for rehabilitation of the slum
area. After completion of various
other formalities the Slum
Rehabilitation Authority approved the
project on certain terms and
conditions. The impugned orders have
been passed after the slum
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rehabilitation project was approved
by the Slum Rehabilitation Authority
(SRA). Factually what has been done
is recourse taken to the provisions
of sections 33 and 38 of the Slum Act
for the purposes of implementing the
development plan or project
undertaken under D.C. Regulations in
relation to a censused area. That
being permissible in law, mere use of
machinery provided under the Slum Act
cannot be faulted. Therefore, there
is no substance in the contentions of
the petitioners that without a
notification under section 4 of the
Slum Act the provisions of the Act
cannot be used at all.
(F).
the
It
Division
was submitted that the main issue
Bench as to whether the
before
Petitioners
could have been proceeded against under Sections 33
and 38 of the Slum Act and the submissions on behalf
of the Petitioners presently did not really fall for
the consideration of the Division Bench.
(G). I am unable to agree. It is for this reason
that I have earlier set out the submissions on
behalf of the parties before the Division Bench in
considerable detail. In fact, in that matter, the
scheme itself had been challenged. The above
observations of the Division Bench were made in the
context of the submissions recorded therein, which I
have also referred to. The challenge to the
proceedings under Sections 33 and 38 was based on
the contention that there was no declaration passed
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under the Slum Act. Thus, in any event, it would
not be open for me to ignore the observations of the
Division Bench on this issue.
16(A). In Om-Sai Darshan Co-operative Housing
Society & Anr. v. State of Maharashtra & Ors.,
2007(1) Bom.C.R., 476, the Division Bench held as
under :-
“16.
ig The following questions arise
for consideration in this petition:
(i) Whether the issuance of
notification under section 3-C(1) of
the Slum Act is a condition precedent
for sanction of slum redevelopment
scheme governed by D.C.Regulation
33(10) ?
(ii) What is the meaning of the slum
rehabilitation area for the purposeof D.C. Regulation 33(10) ?
(iii) Whether the Petitioner
No.1-proposed society is entitled to
grant of sanction to develop aparticular area out of CTS 539/C-1 ?
17. So far as the first question is
concerned, Shri Govilkar, the learned
Counsel for the Petitioners has
placed reliance on the decision ofthe learned Single Judge of this
Court in the case of Ramkali Sitaram
Kushawaha & others Vs. Deputy
Collector (ENC) and Competent
Authority and others (supra) The
learned Single Judge amongst other
questions framed following question
(b) in paragraph 4. It reads thus:
(b) Whether declaration of ::: Downloaded on - 09/06/2013 14:19:43 ::: :16: general scheme of
rehabilitation under section
3-B and/or the Development
Control Regulation No.33(10)
issued under the Planning Act,exempts requirement of
declaration under section 3C
of the said Act ?”
While dealing with the said question,
the learned Single Judge held thus in
paragraph 15 :
“……….It is, therefore, clear
that mere declaration of a general
scheme for rehabilitation of slum
areas under section 3-B ipso facto
would not amount to declaration of
any
specific area as the
rehabilitation area, and for the same
reason, slum rehabilitation scheme
slum
declared under section 3-B cannot be
made applicable to an area in the
absence of compliance of the
provisions of section 3-C(1) of the
said Act to such area. At the same
time, mere publication of general
scheme of rehabilitation would not
bring any area within the scope of
section 3-D. For the purpose of
applicability of section 3-D, it
would be necessary for the concerned
authority to declare the area to be
slum rehabilitation area under
section 3-C(1) of the said Act. In
the absence of compliance of the
provision under section 3-C(1),
question of applicability of section
3-D does not arise. Undisputedly,
the respondents have not issued any
declaration under section 3-C in
respect of the area in question, and
the same has not been declared as the
slum rehabilitation area under
section 3-C of the said
Act………..” (Emphasis supplied).
18. ………………………….
……………………………….
19. In the present case we are
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dealing with the scheme of slum
redevelopment which is governed by
Regulation 33(10). A General Scheme
under section 3B of the Slum Act can
be framed either by the State
Government or by SRA with the prior
approval of the St ate Government.
However, the scheme under clause
33(10) is to be approved in
individual cases by the SRA. Clause
(II) of Annexure to the said
Regulation provides that for the
purpose of Regulation 33(10), a slum
means that area which is either
censused or one which is declared and
notified under the Slum Act. It
provides that the slum shall also
mean areas pavement stretches
hereafter notified
rehabilitation areas.
as slum
The clause
provides that if any area fulfills
conditions laid down in section 4 of
the Slum Act to qualify as a slum
area and has been either censused or
declared and notified as slum, it
shall be deemed to be and treated as
Slum Rehabilitation Areas. The said
clause also provides that censused
means those slums located on lands
belonging to Government, any
undertaking of Government, or to
Brihan Mumbai Municipal Corporation
and incorporated in the records of
the land owning authority as having
been censused in 1976, 1980, or 1985
or prior to 1st January 1995. Thus
for the purpose of scheme under
Regulation 33(10), the following
areas are Slum Rehabilitation Areas;
(a) any area which fulfills the
conditions laid down in section 4 of
the Slum Act which is declared and
notified as such and (b) slum
rehabilitation area declared as such
by the Slum Rehabilitation Authority
fulfilling the conditions laid down
in section 4 of the Slum Act to
qualify as slum area and/or required
for implementation of any slum
rehabilitation project. Regulation
33(10) slums including pavements.
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The slums are defined by clause II.
The slums mean either censused slums
or slums declared and notified as
such under the Slum Act. Clause II
also defines the word censused which
means slums located on lands
belonging to Government, any
undertaking of the Government or
Mumbai Municipal Corporation and
incorporated in records of the land
owning authority as having been
censused in 1976, 1980 or 1985 or
prior to 1st January 1985.
20. On plain reading of the Annexure
to Regulation 33(10) it is obvious
that for sanction of a scheme
governed by the said Regulation in
respect of a parcel of land, it is
not necessary to have a declaration
of the particular parcel of land as a
slum rehabilitation area in exercise
of power under section 3C(1) of the
Slum Act. The Slum Rehabilitation
Scheme can be sanctioned in respect
of a slum as defined in clause II of
Annexure to Regulation 33(10). Under
the said Annexure there can be a
scheme for a viable stretch of
pavement also. The learned Single
Judge deciding Ramkali’s case was not
concerned with a scheme under D.C.
Regulation No.33(10). The
proposition laid down by him will
have to be read as one confined to
the situation before him. Question
No.1 is therefore answered in the
negative. The question No.2 has been
also answered in the foregoing
paragraphs.
(B). Thus, in this case too therefore, the Division
Bench has already expressly held that it is not
necessary to have a declaration of a particular
parcel of land as a slum rehabilitation area under
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the Slum Act and that the Slum Rehabilitation Scheme
can be sanctioned in respect of a slum as defined
under Regulation 33(10).
17. It was submitted that the judgments have not
considered paragraph 17 in Ramkali’s case. It would
make no difference to the binding effect thereof to
this case.
the
In the present case, there is no dispute
scheme has been approved under Section
that
33(10).
This is clear from the Letter of Intent dated
29.5.2006 which expressly states that the same is
issued under Section 33(10). In vie of the above
Division Bench judgments it must be held that the
judgment in Ramkali’s case does not apply to a case
which falls within Regulation 33(10).
18. It was then submitted that the authorities
under the Slum Act as well as under the
Environmental Protection Act have issued notices to
Respondent no.4. I express no opinion on the same.
Needless to add, that the concerned authorities will
deal with the said issues in accordance with the
provisions of law.
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19. I am informed that the Petitioners in Writ
Petition No.2225 of 2008 have shifted to the transit
accommodation. Needless to add, they will be
accommodated in their permanent alternative
accommodation in accordance with the scheme when the
same is ready.
20. As far as the Petitioners in Writ Petition
No.2239 of 2008 are concerned, Mr.Thorat states that
without
Respondent no.4
prejudice to the rights and contentions
they will be provided transit
of
accommodation subject to the outcome of their
Appeals, if any, filed or which may be filed.
In other words, in the event of their
succeeding in the Appeal, they will be given the
permanent accommodation in accordance with law.
21. In the event of the Petitioners in Writ
Petition No.2239 of 2008 being found to be eligible,
Respondent no.4 undertakes to provide the
alternative accommodation as per the provisions of
the Slum Rehabilitation. The undertaking is
accepted.
22. Subject to what is stated above, the Writ
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Petitions are dismissed. The order dated 13.10.2008
shall continue upto and inclusive of 16.3.2009.
***
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