Bombay High Court High Court

State Of Maharashtra vs Mr.G.W.Mattos on 10 December, 2009

Bombay High Court
State Of Maharashtra vs Mr.G.W.Mattos on 10 December, 2009
Bench: A.M. Khanwilkar
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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 are

residing 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 II

whereas 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 been

directed 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 any

Environmental Clearance from the Ministry of Environment which
mandatory as per Environmental Impact Assessment Notification dated

14-9-2006. 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 the

respondent 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 Konkan

Division 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 you

should 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 prior

notice 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 “any

construction 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

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Schedule covers construction project including Slum Rehabilitation Scheme
project too. I say that it is a slum rehabilitation project. Since, the

construction 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 has

granted 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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