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Bombay High Court
M/S. Andrade Motors vs The Additional Collector on 6 March, 2009
Bench: Anoop V.Mohta
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




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     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′

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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 its

possession 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 specified

in the order, and for the purpose of such
eviction, may use or cause to be used such force

as may be necessary;

Provided that, before making any order
under this section the Competent Authority shall
give a reasonable opportunity to the occupants

of 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

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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




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     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

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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

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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.




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     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.)

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