ssm
sm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1708 OF 2009
M/s. Andrade Motors. ...Petitioner.
Vs.
The Additional Collector
(Eng./ Rem), & Competent
Authority & Ors. ...Respondents.
Mr. N.H.Seervai, Sr.Counsel with Mr.Chirag Balsara
with Mr.Anil Jagrayal i/by Legal Associates for the
Petitioners.
Mr.Rajeev Matkar, for Respondent No.6.
Mr.N.V.Walawalkar, Advocate for Respondent Nos. 2 and
3.
Mr.D.D.Madon, Sr.Counsel with Mr.S.A.Sawant for
Respondent No.7.
Respondent No.18.
Ms. Neeta Masurkar with Mr. N.R.Prajapati for
Mr.Ravi Kadam, Advocate General with Mr. G.D.Utangale
i/by M/s. Utangale & Co. for Respondent Nos. 4 and
5.
Ms.Shramila Deshmukh for Respondent No.19.
CORAM : ANOOP V. MOHTA,J.
DATED : 06th March, 2009
P.C.:-
. By consent, heard finally.
1. The Petitioner has basically challenged the
impugned order passed by the Administrator and
Divisional Commissioner, Konkan Division, Mumbai in
Appeal under Section 35 of the Maharashtra Slum Areas
(I.C. & R.) Act, 1971 (for short, "the Act") dated
::: Downloaded on - 09/06/2013 14:23:38 :::
( 2 )
19th January, 2009, whereby his Appeal against the
impugned order dated 21/08/2008 passed by the
Assistant Commissioner, G-South, MCGM, has been
dismissed. In the result, the basic notice under
Section 33 of the Act and the order passed by the
Assistance Commissioner has been confirmed.
2. Admittedly, the Slum Rehabilitation Authority (for
short, “SRA”) has sanctioned the Redevelopment Scheme
on plot bearing C.S.Nos 209 (pt), 224 (pt), 226 (pt),
231
Nagar,
(pt),
232 (pt) and 991 (pt),
Worli Koliwada, Worli, Mumbai- 400 025,
known as Belani
under
Section 33 (10) of Development Control Regulations for
Greater Bombay, 1991, (for short,”D.C.R.Rules”). A
Letter Of Intent dated 04/08/2006 shows the Petitioner
is eligible for an alternate accommodation as per
Municipal record in Annexure-II at Serial No.174.
3. The Petitioner is in possession of 330.35 Sq.Mtrs.
and loft of 49.40 Sq.Mtrs.. It is also shown in the
Municipal record that the Petitioner is vacant land
Tenancy holder (for short, “VLT”). The said VLT was
on temporary basis. The Petitioner’s structure has
been declared as slum for redevelopment of the plots.
The structure of the Petitioner is affecting 120′
::: Downloaded on – 09/06/2013 14:23:38 :::
( 3 )
D.P.Road – nearly 50% and remaining portion affecting
BEST Bus Stand (for short, “BBS”) reservation.
4. A notice under Section 33 of the Act was issued
calling upon the Petitioner as to why he should not be
evicted from the structure for enforcing the scheme.
5. Section 33 of the Act reads as under:-
“33.
33. Power of eviction to be exercised only by
the Competent Authority.
Where the Competent Authority is satisfied
either upon a representation from the owner of a
building or upon other information in itspossession that the occupants of the building
have not vacated it in pursuance of any order or
direction issued or given by the Authority, the
Authority shall, by order, direct the eviction
of the occupants from the building in such
manner and within such time as may be specifiedin the order, and for the purpose of such
eviction, may use or cause to be used such forceas may be necessary;
Provided that, before making any order
under this section the Competent Authority shall
give a reasonable opportunity to the occupantsof the building to show cause why they should
not be evicted therefrom.”
6. Though objected, but as requisite numbers/
percentage was available, the scheme has been
sanctioned in accordance with the Act and Regulations.
A majority of the eligible hutment dwellers have been
shifted to the Temporary Transit Accommodation. The
::: Downloaded on – 09/06/2013 14:23:38 :::
( 4 )
Petitioner being in the list, has been informed about
this Temporary Transit Accommodation, shop No.18
constructed at site, enabling to conduct his
commercial activity.
7. The concerned Respondent has been proceeding based
upon the scheme since 2006. The concerned Respondent
is under obligation to give and provide the requisite
area as per his existing commercial activity based
upon the circular No. 70 dated 30th December, 2004 if
he falls
entitlement.
within the ambit of the said
Whether that circular applies
circular
to
and
the
structures of the Petitioner is also a matter, which
the Appropriate Authority needs to take note of. That
itself, according to me, just cannot be the reason to
oppose and even resist the impugned notice and action
of eviction.
8. The Petitioner's entitlement for structures has
already been reconsidered and accordingly allotted
Transit Accommodation. The Concerned Authority in a
given case, may or may not decide his case of
entitlement for two structures, in view of Rule 1.12
and 1.16 of the D.C.R.Rules, if the case is made out,
provided he should submit to the scheme. This also
::: Downloaded on - 09/06/2013 14:23:38 :::
( 5 )
according to me, cannot be the reason to halt the
project.
9. As the point was raised, the Authority below in
the impugned orders, considered the aspect of
applicability of CRZ Regulations to the land. The
contention that the structures in question are not
urgently required to be demolished, just cannot be
permitted to raise on this count under this
proceedings initiated under Section 33 of the Act.
Once
available
the Scheme is sanctioned based upon the material
at the appropriate time by considering all
these aspects, unless that is disturbed or set aside,
at this stage, in my view, the action of eviction just
cannot be halted on these grounds.
10. This Court by an order dated 02/02/2009 permitted
the Petitioner to carry out amendment and issued
notices to the Union of India through the Secretary
Ministry of Environment and Forest (IA-III Division),
Central Secretariate, New Delhi and the Maharashtra
Costal Zone Management Authority, Mumbai and there is
a report the validity of which can not be decided in
such proceeding initiated under Section 33 of the Act
as contended including the basic prayer to quash and
::: Downloaded on – 09/06/2013 14:23:38 :::
( 6 )
set aside the Scheme and all other proceedings arising
out of the same.
11. The issue of the Petitioner’s entitlement
pursuance to Circular No.70 dated 30th December, 2004
and issue of CRZ, affecting the scheme are kept open
for appropriate challenge by appropriate proceedings.
In my view, the Authority under Section 33 of the Act,
has very limited power and jurisdiction. It only
requirs to consider if the person though directed not
shifting
affecting
or
vacating the plot in question and as
the progress of the scheme/ project, after
it
hearing such person, to pass order of eviction. This
Authority has no jurisdiction and authority to test
the validity of SRA Scheme and Letter of Intent
already issued on such issues.
12. The Schemes under the Act are with intention to
redevelopment of Slums and Rehabilitation of the slum
dwellers. The “Competent Authority” and the “Slum
Rehabilitation Authority- SRA” or “High Power
Committee” are distinct Authorities with “Special
power and jurisdiction”.
13. The Authority under Section 33 of the Act, is not
::: Downloaded on – 09/06/2013 14:23:38 :::
( 7 )
empowered to interfere with the final sanctioned
scheme. Therefore, no question to deal with the
various challenges raised about the CRZ and the
entitlement of extra area/ structures, merely because
the Petitioner has raised such issues and resisted by
the other side, that itself noway enlarge the scope
and purpose of Section 33 of the Act and related
Rules. Even otherwise, the Petitioner’s remedy is
elsewhere.
14.
In view of this, and in the public interest
development of proposed public utility, I see there is
for
no reason to halt the project at the instance of one
Petitioner, in view of above. I am declined to
interfere with the action of eviction as initiated for
removal of the structure of the Petitioner. The
impugned order/ action of eviction is well within the
frame work of law and the record. There is no
perversity.
15. Resultantly, the Writ Petition is dismissed by
keeping all points open, with regard to the circular
No. 70 dated 30th December, 2004 and issue of CRZ, if
any. No order as to costs.
::: Downloaded on - 09/06/2013 14:23:38 :::
( 8 )
16. Considering the facts and circumstances of the
case and in view of the reasonings already given, the
request for interim protection is restricted only for
one week from today.
(ANOOP V. MOHTA, J.)
::: Downloaded on – 09/06/2013 14:23:38 :::
