Bombay High Court High Court

Devendra Yashwant Kamble vs The State Of Maharhshtra on 9 February, 2009

Bombay High Court
Devendra Yashwant Kamble vs The State Of Maharhshtra on 9 February, 2009
Bench: S.J. Vazifdar
                             :1:




            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 slums

whose inhabitants’ names and
structures appear in the electoral

roll 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 purpose

of D.C. Regulation 33(10) ?

(iii) Whether the Petitioner
No.1-proposed society is entitled to
grant of sanction to develop a

particular 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 of

the 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




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             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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