{"id":231020,"date":"2009-02-09T00:00:00","date_gmt":"2009-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/devendra-yashwant-kamble-vs-the-state-of-maharhshtra-on-9-february-2009"},"modified":"2018-02-12T01:51:07","modified_gmt":"2018-02-11T20:21:07","slug":"devendra-yashwant-kamble-vs-the-state-of-maharhshtra-on-9-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/devendra-yashwant-kamble-vs-the-state-of-maharhshtra-on-9-february-2009","title":{"rendered":"Devendra Yashwant Kamble vs The State Of Maharhshtra on 9 February, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Devendra Yashwant Kamble vs The State Of Maharhshtra on 9 February, 2009<\/div>\n
Bench: S.J. Vazifdar<\/div>\n
                             :1:\n\n\n\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n               ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                  \n                 WRIT PETITION NO.2225 OF 2008\n\n\n\n\n                                         \n    Devendra Yashwant Kamble\n    & Ors.                           ..Petitioners.\n\n    Vs.\n\n\n\n\n                                        \n    The State of Maharhshtra\n    & Ors.                           ..Respondents.\n\n\n                              WITH\n\n\n\n\n                                  \n                 WRIT PETITION NO.2239 OF 2008\n                     \n    Shaikh Jumman & Ors.             ..Petitioners.\n\n    Vs.\n                    \n    The State of Maharhshtra\n    & Ors.                           ..Respondents.\n\n\n    Mr.Prakash G. Marathe for the Petitioners.\n      \n\n\n    Mr.Milind More, A.G.P.     for Respondent nos.1 and               2\n   \n\n\n\n    in W.P.2225\/08.\n\n    Mr.G.D.Uttangale i\/b.Uttangale & Co.       for Respondent\n    no.3.\n\n\n\n\n\n    Ms.Madhubala Kajale, A.G.P.      for Respondent            nos.1\n    and 2 - State in W.P.2239\/08.\n\n    Mr.V.M.Thorat, Senior Counsel with Mr.A.R.Pande for\n    Respondent no.4.\n\n\n\n\n\n                             CORAM : S.J. VAZIFDAR, J.\n<\/pre>\n
                             DATED : 9TH FEBRUARY, 2009<\/p>\n
    ORAL JUDGMENT :\n<\/p>\n
          By an order dated 13.10.2008 A.M.Khanwilkar, J.\n<\/p>\n
    noted    that a question of law, which I will refer to<\/p>\n
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\n                                      :2:<\/span><\/p>\n
    shortly,      arises    in the present case.             The      learned<\/p>\n
    Judge    noted      that    if the question is           answered          in<\/p>\n
    favour of the Petitioner it could necessarily follow<\/p>\n
    that    the impugned action would not have been                       taken<\/p>\n
    against the Petitioner.\n<\/p>\n
           The learned Judge further observed that                        as     a<\/p>\n
    short question is involved, instead of admitting the<\/p>\n
    petition it would be appropriate that it is kept for<\/p>\n
    and    with    the<\/p>\n
    final disposal at the admission stage.\n<\/p>\n
                          consent      of the    parties,\n                                                             Accordingly,\n\n                                                                   the     Writ\n                        \n    Petitions      are disposed of finally at the                  admission\n\n    stage.\n      \n\n\n<\/pre>\n
    2.     Further, the question involved in both the Writ<\/p>\n
    Petitions      is    common.      Both the Writ Petitions                are<\/p>\n
    therefore disposed by this common order.\n<\/p>\n
    3.     There    are    six Petitioners        in      Writ      Petition<\/p>\n
    No.2225    of    2008      and     four    Petitioners          in     Writ<\/p>\n
    Petition      No.2239      of 2008.      Respondent nos.2 and                3<\/p>\n
    are    The Administrators and Divisional Commissioner,<\/p>\n
    Konkan    Division,        Mumbai      and The    Chief        Executive<\/p>\n
    Officer,      Slum    Rehabilitation         Authority,           Bandra,<\/p>\n
    Mumbai.       Respondent      no.4 M\/s.Shree Gajraj               Housing<\/p>\n
    Nirman    Pvt.       Ltd.    is a developer appointed                 by     a<\/p>\n
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\n                                    :3:<\/span><\/p>\n
    Co-operative Housing Society.\n<\/p>\n
    4.     The Petitioners in both the Writ Petitions have<\/p>\n
    challenged      an    order    dated       29.8.2008       passed        by<\/p>\n
    Respondent      no.2 upholding an order dated                8.10.2007<\/p>\n
    passed    by    the Deputy Collector          (Encroachment            and<\/p>\n
    Removal)      and    Competent Authority, Bandra,               Mumbai,<\/p>\n
    under    Sections      33 and 38 of the        Maharashtra           Slum<\/p>\n
    Areas (I.C.&R.) Act, 1971.\n<\/p>\n
    5.<\/p>\n
           On 18.12.2004 Respondent no.4 the developer and<\/p>\n
    the Co-operative Housing Society, made a proposal to<\/p>\n
    the    Slum    Rehabilitation Authority for a scheme                     to<\/p>\n
    redevelope      the    property      under    Regulation          33(10)<\/p>\n
    under     the    scheme      of     the    Development          Control<\/p>\n
    Regulations, 1991 under the Maharashtra Regional and<\/p>\n
    Town Planning Act, 1966.\n<\/p>\n
            On     3.2.2006           the     Additional         Collector<\/p>\n
    (Encroachment)         issued      the     Annexure      II.         Upon<\/p>\n
    complying      with    the provisions,        1054     applications<\/p>\n
    were received alleging that they were eligible to be<\/p>\n
    accommodated         under    the       proposed    scheme.            The<\/p>\n
    Annexure      II is issued in respect of 808 persons who<\/p>\n
    were    found eligible.        It is important to note               that<\/p>\n
    784    out of these 808 persons found to be                  eligible,<\/p>\n
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\n                                     :4:<\/span><\/p>\n
    constituting        about 97%, gave their consent for                    the<\/p>\n
    development         of    the   property    as      per      the       said<\/p>\n
    proposal.\n<\/p>\n
    6.    All the six petitioners in Writ Petition No.2225<\/p>\n
    of 2008 have been found to be eligible whereas, four<\/p>\n
    Petitioners        in    Writ Petition No.2239 of 2008                 have<\/p>\n
    been    found      to be ineligible.       The      Petitioners            in<\/p>\n
    Writ    Petition        No.2239 of 2008 have          filed       appeals<\/p>\n
    before<\/p>\n
    order,      I<\/p>\n
                the authorities, which are pending.<\/p>\n
\n\n                     propose    protecting their rights\n                                                                      By this\n\n                                                                      in     the\n                       \n    event       of     their    being      found   to      be       eligible\n\n    ultimately.\n      \n\n\n    7.     On    29.5.2006 a letter of intent was issued                       by\n   \n\n\n\n    the    Slum      Rehabilitation       Authority,         which        is     a\n\n    planning        authority    under the Maharashtra              Regional\n\n<\/pre>\n
    and Town Planning Act, 1966, in favour of Respondent<\/p>\n
    no.4.    The scheme involves the construction of three<\/p>\n
    rehabilitation          buildings.      Two of these           buildings<\/p>\n
    comprise        of a ground and twelve upper floors.                     The<\/p>\n
    third    rehabilitation building comprises of a ground<\/p>\n
    and    seven      upper floors.       The Letter of Intent               was<\/p>\n
    revised on 25.8.2006.\n<\/p>\n
           On 4.10.2006 the Slum Rehabilitation Authority,<\/p>\n
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\n                                      :5:<\/span><\/p>\n
    issued    the    I.O.D.      On 19.10.2006 the            commencement<\/p>\n
    certificate was issued.\n<\/p>\n
    8.     It is important to note that in order to enable<\/p>\n
    the     construction        of     the    first        rehabilitation<\/p>\n
    building,      transit camps were made available and 300<\/p>\n
    persons      have    already been shifted to              the      transit<\/p>\n
    camp.     This      was   part     of the    first        phase        which<\/p>\n
    involved      construction of the first building.                      Thus,<\/p>\n
    the    said<\/p>\n
    these 300 persons are already out of their homes, in<\/p>\n
                   transit camps.          The construction            of     the<\/p>\n
    building      has    been    completed.         Certain         finishing<\/p>\n
    works    remains      to be completed and            the      completion<\/p>\n
    certificate also remains to be issued.\n<\/p>\n
    9.     To proceed with the next phase, the Petitioners<\/p>\n
    were     required      to    shift       from      their         existing<\/p>\n
    accommodation.         They however refused to vacate                     the<\/p>\n
    premises      in their possession.          The six         Petitioners<\/p>\n
    in    Writ    Petition No.2225 of 2008, who                 were       found<\/p>\n
    eligible, were also required to shift to the transit<\/p>\n
    accommodation.         Thus,      proceedings were            instituted<\/p>\n
    under    Section 33 of the Slum Rehabilitation Act                          in<\/p>\n
    respect of these ten Petitioners.\n<\/p>\n
          On 8.10.2007 the Deputy Collector (Encroachment)<\/p>\n
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\n                                      :6:<\/span><\/p>\n
    passed      an    order under Section 33.            This       order was<\/p>\n
    challenged in an appeal under Section 35.\n<\/p>\n
           By    an    order    dated      29.8.08,      the      Divisional<\/p>\n
    Commissioner        confirmed       the order dated           8.10.2007.\n<\/p>\n
    It is this order dated 29.8.2008 which is challenged<\/p>\n
    in this Writ Petition.<\/p>\n
\n\n\n\n\n                                          \n    10.      The       main    contention       on    behalf         of       the\n\n    Petitioners\n\n    inasmuch\n                       is\n                         ig that     the     entire\n\n<\/pre>\n
                  as the area in respect whereof the
\n                                                       scheme        is     void<\/p>\n
                                                                         scheme<\/p>\n
    has    been      sanctioned has not been declared to be                       a<\/p>\n
    slum under Section 4 of the Slum Rehabilitation Act.\n<\/p>\n
    This    is    the point of law which has been                   noted       by<\/p>\n
    A.M.     Khanwilkar,        J.      in    the    said     order        dated<\/p>\n
    13.10.2008.         Certain      interim        reliefs       were      also<\/p>\n
    granted       directing      the       Respondents        to     maintain<\/p>\n
    status-quo        in respect of the suit property.                   It was<\/p>\n
    clarified that the Respondents would be permitted to<\/p>\n
    carry    on further construction but without                     claiming<\/p>\n
    any    equity.       It    was further made          clear       that       no<\/p>\n
    construction        activity      on     the     site,      which         was<\/p>\n
    originally        occupied     by    the Petitioners            would       be<\/p>\n
    commenced, if already not started.\n<\/p>\n
    11.     The      question of law raised on behalf                  of     the<\/p>\n
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\n                                    :7:<\/span><\/p>\n
    Petitioners      is    no    longer   res-integra.          It       is<\/p>\n
    concluded      by   two Division Bench judgments of              this<\/p>\n
    Court.\n<\/p>\n
    12.       Mr.Marathe,    the learned counsel appearing               on<\/p>\n
    behalf      of the Petitioners relied upon paragraph                 17<\/p>\n
    of    a    judgment    of a learned Single Judge          of     this<\/p>\n
    Court      in the case of Smt.Ramkali Sitaram            Kushawaha<\/p>\n
    (Kachhi)      & Ors.    v.    The Deputy Collector (ENC) and<\/p>\n
    thus :-\n<\/p>\n
    Competent Authority & Ors., ALL MR 320.              which reads<\/p>\n
                   “17.      The    reference    to    the
\n                   Development      Control    Regulation
\n                   No.33(10) is also of no help for the
\n                   respondents to justify action under<\/p>\n
                   Section 14(1) without compliance of
\n                   Section 5 of the said Act.       Clause<\/p>\n
                   II(i) of the said Regulation provides
\n                   that slums shall mean those censued,
\n                   or declared and notified, in the past
\n                   or hereafter under the said Act and
\n                   slums shall also mean areas\/pavement<\/p>\n
                   stretches hereafter notified as Slum
\n                   Rehabilitation Areas.       Sub-clause\n<\/p>\n
                   (ii) of Clause II provides that if
\n                   any area fulfills the conditions laid
\n                   down in section 4 of the said Act to
\n                   qualify as slum area and has been<\/p>\n
                   censused or declared and notified
\n                   shall be deemed to be and treated as
\n                   Slum Rehabilitation Areas. Referring
\n                   to these provisions, it was sought to
\n                   be contended that the same clearly
\n                   provides as to which areas can be
\n                   treated as slum rehabilitation area.
\n                   At the outset, it is to be noted that
\n                   the Development Control Regulation
\n                   No.33(10)     is issued    under    the<\/p>\n
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\n                   :8:<\/span><\/p>\n
      Planning Act and not under the said
\n      Act.    The provisions of la contained<\/p>\n
      in the said Act cannot be construed
\n      by referring to      the    regulations
\n      issued under totally the different<\/p>\n
      Act.    Secondly, the provisions of
\n      clause II are not deeming provisions
\n      relating to the slum rehabilitation
\n      areas but they merely provide for
\n      areas which can be treated as the<\/p>\n
      slum    rehabilitation    areas.    The
\n      sub-clause (i) of clause II clearly
\n      provides that those provisions are
\n      for the purpose specified in clause I
\n      which precludes clause II. In fact,<\/p>\n
      sub-clause (i) of clause II begins
\n      with    the expression      “For   this
\n      purpose,     ……………………”\n<\/p>\n
      which clearly signifies that whatever
\n      has been stated subsequent to the
\n      said expression “For this purpose” is
\n      for the purpose specified in the<\/p>\n
      preceding paragraph. The paragraph
\n      preceding    the clause     (i) of II
\n      relates    to the    eligibility    for
\n      rehabilitation under the scheme. It
\n      does not relate to any area to be
\n      considered as the slum rehabilitation<\/p>\n
      area within the meaning of the said
\n      expression    under the     said   Act.\n<\/p>\n
      Sub-clause (a) of clause I thereunder
\n      provides that “for redevelopment of
\n      slums    including   pavements,    hose
\n      inhabitants’ names     and structures
\n      appear in the electoral roll prepared<\/p>\n
      with reference to 1st January, 1995
\n      or a date prior thereto, but where
\n      the inhabitants stay at present in
\n      the structure, the       provisions of
\n      Appendix IV shall apply on the basis
\n      of a tenement in exchange for an<\/p>\n
      independently numbered      structure.”
\n      Sub-clause (b) thereof provides that
\n      “Subject to the foregoing provisions,
\n      only the actual occupants of the
\n      hutments, shall be held eligible, and
\n      the so called structure owner other
\n      than the actual occupant if any, even
\n      if his name is shown in the electoral
\n      roll for the structure, shall have no
\n      right whatsoever to the reconstructed<\/p>\n
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\n                                 :9:<\/span><\/p>\n
                  tenement against that structure.” In
\n                  other words, sub-clauses (a) and (b)<\/p>\n
                  of clause I relate to the eligibility
\n                  of the persons for the new tenements
\n                  in exchange of the old tenements, and<\/p>\n
                  for that purpose, which areas can be
\n                  identified for the purpose of the
\n                  slum   rehabilitation     have    been
\n                  specified in clause II.      That by
\n                  itself does not amount to say that<\/p>\n
                  any such area is declared as or is
\n                  deemed to be the slum rehabilitation
\n                  area within the meaning of the said
\n                  Act.    Being   so,   ever on     mere
\n                  applicability of the G.R. dated 9th<\/p>\n
                  April, 1998, it would act ipso facto
\n                  transform an area already declared as
\n                  a slum area under the said Act into a<\/p>\n
                  slum rehabilitation area,      in the
\n                  absence of proper declaration under
\n                  Section 30(1) of the said Act. These
\n                  Regulations cannot stand on higher<\/p>\n
                  pedestal than that of G.R. dated 9th
\n                  April, 1998.”\n<\/p>\n
    13.    Mr.Marathe     submitted    that in      view      of     this<\/p>\n
    judgment    the present scheme is bad in law as                 there<\/p>\n
    is    admittedly     no   declaration     under        the       Slum<\/p>\n
    Rehabilitation Act.\n<\/p>\n
    14.    Even    assuming    that    the   judgment         supports<\/p>\n
    Mr.Marathe’s     submission, it is of no assistance                  to<\/p>\n
    the   Petitioners in view of two subsequent               Division<\/p>\n
    Bench judgments of this Court.\n<\/p>\n
    15.    In     Amba   Chawl Wadi Rahiwasi      Seva       Sangh       v.\n<\/p>\n
    Municipal     Corporation    of   Greater Mumbai          &     Ors.,<\/p>\n
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\n                                    :10:<\/span><\/p>\n
    2005(3)      ALL    MR, 889 the facts and the              submissions<\/p>\n
    were almost identical to those in the present case.\n<\/p>\n
    (A).     The    Petitioners had challenged a                scheme        of<\/p>\n
    rehabilitation        approved by the B.M.C.            and the Slum<\/p>\n
    Rehabilitation        Authority.       The      Petitioners           also<\/p>\n
    challenged      an order passed under Sections 33 and 38<\/p>\n
    by     the    Additional      Collector        under        the       Slum<\/p>\n
    Rehabilitation        Act    and   the order        passed       in     the<\/p>\n
    Appeal under Section 35.\n<\/p>\n
           The     Corporation there decided to               retain        the<\/p>\n
    property      and    therefore     put    up    a    proposal           for<\/p>\n
    redeveloping         the    area and redeveloping             the     slum<\/p>\n
    areas    on the said property.           A society submitted                a<\/p>\n
    proposal      to    redevelope the property.            The slum had<\/p>\n
    been    censused.\n<\/p>\n
    (B).     The    facts in the present Writ             Petition          are<\/p>\n
    almost    identical.         In the present         Writ      Petitions<\/p>\n
    also    the area is admittedly censused.                Further,          in<\/p>\n
    the    present      Writ Petitions also,         admittedly,            the<\/p>\n
    area    belongs to the State Government.                In the        case<\/p>\n
    before    the      Division    Bench     also    the      scheme        was<\/p>\n
    proposed      under Regulation 33(10) of the Development<\/p>\n
    Control Rules and had been sanctioned.\n<\/p>\n
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\n                                      :11:<\/span><\/p>\n
    (C).       The    same contentions were considered by                   the<\/p>\n
    Division        Bench.    It was contended in that case that<\/p>\n
    the    land      had not been declared as a slum               area       as<\/p>\n
    required        under    Section 4 of the Slum Act and                that<\/p>\n
    unless there is such a declaration, no redevelopment<\/p>\n
    or    rehabilitation can be undertaken.               Reliance          was<\/p>\n
    placed      inter-alia      on the judgment of          the      learned<\/p>\n
    single      Judge in Ramkali’s case, referred to                    above.<\/p>\n
\n\n    It\n\n    under\n          was      further\n\n               Section\n                            igcontended that the         orders\n\n<\/pre>\n
                            33 and 38 were therefore illegal
\n                                                                       passed<\/p>\n
                                                                              as<\/p>\n
    the    area      had    not been declared a        slum.         It     was<\/p>\n
    contended         that     on    a   proper   construction              and<\/p>\n
    interpretation          of Regulation 33(10) it follows that<\/p>\n
    only      an area which is declared a slum area prior to<\/p>\n
    1971      or    first declared a slum under the Slum                  Act,<\/p>\n
    would      constitute a slum and that since the area has<\/p>\n
    not been declared a slum area prior to 1971 or under<\/p>\n
    the    Slum Act, the rehabilitation thereof could                       not<\/p>\n
    be undertaken.\n<\/p>\n
    (D).        On    the    other    hand,    on    behalf        of       the<\/p>\n
    Respondents,        it was contended that the             Corporation<\/p>\n
    had the authority to decide to develope a plot which<\/p>\n
    is    a    censused      slum and to rehabilitate             the     slum<\/p>\n
    dewellers;         that once the area had been censused as<\/p>\n
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\n                                    :12:<\/span><\/p>\n
    a   slum, the machinery available under the Slum                       Act<\/p>\n
    was    put    into   operation     in    order      to     evict       the<\/p>\n
    unauthorised       slum dwellers and there was no need to<\/p>\n
    declare      the   area as a slum under section 4 of                   the<\/p>\n
    Slum    Act since the provisions of sections 33 and 38<\/p>\n
    have    been    invoked    only in order to avail               of     the<\/p>\n
    machinery available under the Slum Act.<\/p>\n
\n\n\n\n\n                                     \n    (E).     The Division Bench upheld the contentions                       on\n\n\n\n    submission      raised\n                         \n<\/pre>\n
    behalf of the Respondents which are identical to the<\/p>\n
                              on    behalf    of    the      Respondents<\/p>\n
    before me.      The Division Bench held as under :-\n<\/p>\n
                   “7.   Development Control Regulation
\n                   33(10) permits redevelopment of slums<\/p>\n
                   whose     inhabitants’     names   and
\n                   structures appear in the electoral<\/p>\n
                   roll prepared on or before 1.1.1995.<\/p><\/blockquote>\n
                   A slum has been defined in 33(10)II
\n                   to mean those areas which have been
\n                   censused or declared and notified in
\n                   the past or under the Slum Act after<\/p>\n
                   it was enacted in 1971. Therefore, a
\n                   slum is not just an area which has
\n                   been declared a slum under section 4
\n                   of the Slum Act. The issuance of a
\n                   notification under section 4 of the
\n                   Slum Act is not a prerequisite for an<\/p>\n
                   area   to    be   considered a    slum
\n                   rehabilitation area. Censused slums
\n                   have also been defined as those which
\n                   are located on lands belonging to the
\n                   government or any undertaking of the
\n                   government    or    the   Brihanmumbai
\n                   Municipal Corporation and which have
\n                   been censused in 1976, 1980, 1985 or
\n                   prior to 1.1.1995.       There is no
\n                   dispute that the present area is<\/p>\n
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\n                    :13:<\/span><\/p>\n
      owned by the Corporation.  Nor is
\n      there any dispute that the slums<\/p>\n
      located thereon have been censused
\n      prior to 1995.\n<\/p>\n
      8.    The submission made on behalf of
\n      the Petitioners that the provisions
\n      of the Slum Act cannot be invoked
\n      unless there is a declaration made
\n      under section 4 that the area is a<\/p>\n
      slum area, is without merit.          The
\n      provisions of sections 33 and 38 of
\n      the Slum Act have been invoked by the
\n      Respondents in order to evict the
\n      slum dwellers from the area which is<\/p>\n
      a censused slum.        It is only the
\n      machinery which is available under
\n      the Slum Act that is being utilised<\/p>\n
      for the purposes of removing the
\n      occupants     from a     land which is
\n      declared a slum area. In fact under
\n      the D.C.      Regulations steps can be<\/p>\n
      taken to evict those hutment dwellers
\n      who do not join a rehabilitation
\n      project willingly.       The provisions
\n      clearly stipulate that if the hutment
\n      dwellers do not        join the scheme
\n      within    15    days    after     a  slum<\/p>\n
      rehabilitation     project     has   been
\n      approved, then action         under   the<\/p>\n
      provisions of the Slum Act including
\n      sections 33 and 38 as amended from
\n      time to time can be taken against the
\n      hutments.     All those who do not join
\n      the project lose the right to any<\/p>\n
      built up tenement and their tenement
\n      can be taken over          by the    slum
\n      rehabilitation authority and can be
\n      used for accommodating those slum
\n      dwellers from other slums who cannot
\n      be    accommodated in        situ.    The<\/p>\n
      Corporation on 24.5.1996 issued a
\n      letter    of “no      objection”    after
\n      verifying the proposal of Respondent
\n      No.3 for rehabilitation of the slum
\n      area.    After completion of various
\n      other     formalities         the    Slum
\n      Rehabilitation Authority approved the
\n      project    on    certain      terms   and
\n      conditions. The impugned orders have
\n      been     passed      after     the   slum<\/p>\n
                                ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>
\n                                    :14:<\/span><\/p>\n
                   rehabilitation project was approved
\n                   by the Slum Rehabilitation Authority<\/p>\n
                   (SRA).    Factually what has been done
\n                   is recourse taken to the provisions
\n                   of sections 33 and 38 of the Slum Act<\/p>\n
                   for the purposes of implementing the
\n                   development     plan     or     project
\n                   undertaken under D.C. Regulations in
\n                   relation to a censused area.        That
\n                   being permissible in law, mere use of<\/p>\n
                   machinery provided under the Slum Act
\n                   cannot be faulted. Therefore, there
\n                   is no substance in the contentions of
\n                   the    petitioners that     without    a
\n                   notification under section 4 of the<\/p>\n
                   Slum Act the provisions of the Act
\n                   cannot be used at all.\n<\/p>\n
    (F).\n<\/p>\n
    the
\n             It<\/p>\n
           Division<\/p>\n
                   was submitted that the main issue<\/p>\n
                         Bench as to whether         the
\n                                                                       before<\/p>\n
                                                              Petitioners<\/p>\n
    could    have been proceeded against under Sections 33<\/p>\n
    and 38 of the Slum Act and the submissions on behalf<\/p>\n
    of the Petitioners presently did not really fall for<\/p>\n
    the consideration of the Division Bench.\n<\/p>\n
    (G).     I am unable to agree.          It is for this             reason<\/p>\n
    that    I    have    earlier set out      the      submissions            on<\/p>\n
    behalf      of the parties before the Division Bench                      in<\/p>\n
    considerable        detail.    In fact, in that matter,                 the<\/p>\n
    scheme      itself    had    been     challenged.           The      above<\/p>\n
    observations        of the Division Bench were made in the<\/p>\n
    context of the submissions recorded therein, which I<\/p>\n
    have    also    referred      to.      The   challenge           to     the<\/p>\n
    proceedings      under      Sections 33 and 38 was based                  on<\/p>\n
    the    contention that there was no declaration passed<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>
\n                                   :15:<\/span><\/p>\n
    under    the    Slum Act.     Thus, in any event, it             would<\/p>\n
    not be open for me to ignore the observations of the<\/p>\n
    Division Bench on this issue.\n<\/p>\n
    16(A).     In    Om-Sai      Darshan    Co-operative           Housing<\/p>\n
    Society    &    Anr.   v.    State of Maharashtra          &     Ors.,<\/a><\/p>\n
    2007(1)    Bom.C.R.,      476, the Division Bench held                as<\/p>\n
    under :-\n<\/p>\n
                   “16.\n<\/p><\/blockquote>\n
                       ig The following questions arise
\n                   for consideration in this petition:\n<\/p><\/blockquote>\n
                   (i)   Whether    the    issuance   of<\/p>\n
                   notification under section 3-C(1) of
\n                   the Slum Act is a condition precedent
\n                   for sanction of slum redevelopment
\n                   scheme governed by     D.C.Regulation
\n                   33(10) ?\n<\/p><\/blockquote>\n
                   (ii) What is the meaning of the slum
\n                   rehabilitation area for the purpose<\/p>\n
                   of D.C. Regulation 33(10) ?\n<\/p><\/blockquote>\n
                   (iii)    Whether     the   Petitioner
\n                   No.1-proposed society is entitled to
\n                   grant   of sanction to develop       a<\/p>\n
                   particular area out of CTS 539\/C-1 ?\n<\/p><\/blockquote>\n
                   17.   So far as the first question is
\n                   concerned, Shri Govilkar, the learned
\n                   Counsel for the     Petitioners    has
\n                   placed reliance on the decision of<\/p>\n
                   the learned Single Judge of this
\n                   Court in the case of Ramkali Sitaram
\n                   Kushawaha   & others    Vs.     Deputy
\n                   Collector   (ENC)     and    Competent
\n                   Authority and others      (supra) The
\n                   learned Single Judge amongst other
\n                   questions framed following question\n<\/p><\/blockquote>\n
                   (b) in paragraph 4. It reads thus:\n<\/p><\/blockquote>\n
                           (b)    Whether    declaration           of\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 14:19:43 :::<\/span>\n                    :16:<\/span>\n\n\n\n\n             general        scheme       of\n<\/pre>\n
             rehabilitation under section<\/p>\n
             3-B and\/or    the Development
\n             Control Regulation No.33(10)
\n             issued under the Planning Act,<\/p>\n
             exempts     requirement     of
\n             declaration under section 3C
\n             of the said Act ?”\n<\/p><\/blockquote>\n
      While dealing with the said question,<\/p>\n
      the learned Single Judge held thus in
\n      paragraph 15 :\n<\/p>\n
      “……….It is, therefore, clear
\n      that mere declaration of a general<\/p>\n
      scheme for rehabilitation of slum
\n      areas under section 3-B ipso facto
\n      would not amount to declaration of
\n      any<\/p>\n
            specific area as         the
\n      rehabilitation area, and for the same
\n      reason, slum rehabilitation scheme
\n                                            slum<\/p>\n
      declared under section 3-B cannot be<\/p>\n
      made applicable to an area in the
\n      absence    of    compliance      of    the
\n      provisions of section 3-C(1) of the
\n      said Act to such area. At the same
\n      time, mere publication of general
\n      scheme of rehabilitation would not<\/p>\n
      bring any area within the scope of
\n      section 3-D.      For the purpose of<\/p>\n
      applicability of section         3-D, it
\n      would be necessary for the concerned
\n      authority to declare the area to be
\n      slum    rehabilitation      area     under
\n      section 3-C(1) of the said Act.         In<\/p>\n
      the absence of compliance of the
\n      provision     under    section     3-C(1),
\n      question of applicability of section
\n      3-D does not arise.        Undisputedly,
\n      the respondents have not issued any
\n      declaration under section          3-C in<\/p>\n
      respect of the area in question, and
\n      the same has not been declared as the
\n      slum    rehabilitation      area     under
\n      section     3-C     of      the       said
\n      Act………..” (Emphasis supplied).\n<\/p>\n
      18.   ………………………….
\n      ……………………………….\n<\/p>\n
      19.   In   the   present   case      we     are<\/p>\n
                                 ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>
\n                    :17:<\/span><\/p>\n
      dealing with the          scheme of slum
\n      redevelopment which is governed by<\/p>\n
      Regulation 33(10). A General Scheme
\n      under section 3B of the Slum Act can
\n      be   framed either by          the    State<\/p>\n
      Government or by SRA with the prior
\n      approval of the St ate Government.<\/p>\n
\n      However, the scheme          under clause\n      33(10)     is    to    be    approved    in\n<\/pre>\n
      individual cases by the SRA. Clause<\/p>\n
      (II)    of     Annexure to      the    said
\n      Regulation provides that           for the
\n      purpose of Regulation 33(10), a slum
\n      means that area         which is either
\n      censused or one which is declared and<\/p>\n
      notified under the Slum Act.             It
\n      provides that the slum shall also
\n      mean    areas        pavement    stretches<\/p>\n
      hereafter       notified
\n      rehabilitation areas.\n<\/p>\n
                                      as     slum\n                                     The clause\n<\/pre>\n
      provides that if any area fulfills
\n      conditions laid down in section 4 of<\/p>\n
      the Slum Act to qualify as a slum
\n      area and has been either censused or
\n      declared and notified as slum, it
\n      shall be deemed to be and treated as
\n      Slum Rehabilitation Areas. The said
\n      clause also provides that censused<\/p>\n
      means those slums located on lands
\n      belonging       to      Government,     any<\/p>\n
      undertaking of Government,           or to
\n      Brihan Mumbai Municipal Corporation
\n      and incorporated in the records of
\n      the land owning authority as having
\n      been censused in 1976, 1980, or 1985<\/p>\n
      or prior to 1st January 1995.          Thus
\n      for the purpose of scheme             under
\n      Regulation      33(10),     the following
\n      areas are Slum Rehabilitation Areas;\n<\/p>\n
      (a) any area         which fulfills the
\n      conditions laid down in section 4 of<\/p>\n
      the Slum Act which is declared and
\n      notified      as such      and (b)     slum
\n      rehabilitation area declared as such
\n      by the Slum Rehabilitation Authority
\n      fulfilling the conditions laid down
\n      in section 4 of the Slum Act to
\n      qualify as slum area and\/or required
\n      for    implementation of        any    slum
\n      rehabilitation project.         Regulation
\n      33(10) slums        including pavements.\n<\/p>\n
                                 ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>
\n                                 :18:<\/span><\/p>\n
                   The slums are defined by clause II.
\n                   The slums mean either censused slums<\/p>\n
                   or slums declared and notified as
\n                   such under the Slum Act. Clause II
\n                   also defines the word censused which<\/p>\n
                   means   slums    located     on   lands
\n                   belonging     to     Government,    any
\n                   undertaking of the       Government or
\n                   Mumbai    Municipal   Corporation and
\n                   incorporated in records of the land<\/p>\n
                   owning authority as       having   been
\n                   censused in 1976, 1980 or 1985 or
\n                   prior to 1st January 1985.\n<\/p>\n
                   20. On plain reading of the Annexure<\/p>\n
                   to Regulation 33(10) it is obvious
\n                   that   for sanction of     a   scheme
\n                   governed by the said Regulation in<\/p>\n
                   respect of a parcel of land, it is
\n                   not necessary to have a declaration
\n                   of the particular parcel of land as a
\n                   slum rehabilitation area in exercise<\/p>\n
                   of power under section 3C(1) of the
\n                   Slum Act.    The Slum Rehabilitation
\n                   Scheme can be sanctioned in respect
\n                   of a slum as defined in clause II of
\n                   Annexure to Regulation 33(10). Under
\n                   the said Annexure there can be a<\/p>\n
                   scheme   for a    viable stretch of
\n                   pavement also.    The learned Single<\/p>\n
                   Judge deciding Ramkali’s case was not
\n                   concerned with a scheme under D.C.\n<\/p>\n
                   Regulation      No.33(10).        The
\n                   proposition laid down by him will
\n                   have to be read as one confined to<\/p>\n
                   the situation before him.    Question
\n                   No.1 is therefore answered in the
\n                   negative. The question No.2 has been
\n                   also   answered in    the   foregoing
\n                   paragraphs.\n<\/p>\n
    (B).    Thus, in this case too therefore, the Division<\/p>\n
    Bench    has    already    expressly held that it         is     not<\/p>\n
    necessary      to   have   a declaration of    a     particular<\/p>\n
    parcel    of land as a slum rehabilitation area               under<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>
\n                                    :19:<\/span><\/p>\n
    the Slum Act and that the Slum Rehabilitation Scheme<\/p>\n
    can    be    sanctioned in respect of a slum as                 defined<\/p>\n
    under Regulation 33(10).\n<\/p>\n
    17.     It    was submitted that the judgments have                    not<\/p>\n
    considered paragraph 17 in Ramkali’s case.                    It would<\/p>\n
    make    no difference to the binding effect thereof to<\/p>\n
    this case.\n<\/p>\n
    the<\/p>\n
            In the present case, there is no dispute<\/p>\n
           scheme has been approved under Section
\n                                                                         that<\/p>\n
                                                                    33(10).\n<\/p>\n
    This    is     clear    from    the Letter     of    Intent         dated<\/p>\n
    29.5.2006       which      expressly states that the same                is<\/p>\n
    issued       under    Section 33(10).     In vie of the             above<\/p>\n
    Division       Bench    judgments it must be held that                 the<\/p>\n
    judgment       in Ramkali’s case does not apply to a case<\/p>\n
    which falls within Regulation 33(10).\n<\/p>\n
    18.     It     was    then submitted that       the      authorities<\/p>\n
    under        the     Slum    Act   as   well    as       under         the<\/p>\n
    Environmental         Protection Act have issued notices to<\/p>\n
    Respondent         no.4.    I express no opinion on the same.\n<\/p>\n
    Needless to add, that the concerned authorities will<\/p>\n
    deal    with       the said issues in accordance             with      the<\/p>\n
    provisions of law.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>
\n                                      :20:<\/span><\/p>\n
    19.   I    am    informed that the Petitioners                     in     Writ<\/p>\n
    Petition No.2225 of 2008 have shifted to the transit<\/p>\n
    accommodation.         Needless        to    add,        they      will       be<\/p>\n
    accommodated         in     their        permanent            alternative<\/p>\n
    accommodation in accordance with the scheme when the<\/p>\n
    same is ready.\n<\/p>\n
    20.   As    far      as the Petitioners in               Writ      Petition<\/p>\n
    No.2239 of 2008 are concerned, Mr.Thorat states that<\/p>\n
    without<\/p>\n
    Respondent      no.4<\/p>\n
               prejudice to the rights and contentions<\/p>\n
                              they    will       be    provided          transit
\n                                                                                  of<\/p>\n
    accommodation        subject      to    the       outcome         of     their<\/p>\n
    Appeals, if any, filed or which may be filed.\n<\/p>\n
          In    other      words,      in       the    event        of       their<\/p>\n
    succeeding      in    the Appeal, they will be                  given       the<\/p>\n
    permanent accommodation in accordance with law.\n<\/p>\n
    21.   In    the      event    of    the      Petitioners           in     Writ<\/p>\n
    Petition No.2239 of 2008 being found to be eligible,<\/p>\n
    Respondent       no.4       undertakes            to      provide           the<\/p>\n
    alternative      accommodation as per the provisions                          of<\/p>\n
    the   Slum      Rehabilitation.              The     undertaking              is<\/p>\n
    accepted.\n<\/p>\n
    22.   Subject        to    what is stated          above,         the     Writ<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>
\n                            :21:<\/span><\/p>\n
    Petitions are dismissed.   The order dated 13.10.2008<\/p>\n
    shall continue upto and inclusive of 16.3.2009.\n<\/p>\n
                            ***<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:19:43 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-231020","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDevendra Yashwant Kamble vs The State Of Maharhshtra on 9 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/devendra-yashwant-kamble-vs-the-state-of-maharhshtra-on-9-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Devendra Yashwant Kamble vs The State Of Maharhshtra on 9 February, 2009 - 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