Full Bench

  • Published on

  • View

  • Download

Embed Size (px)


<p>1</p> <p>IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1326 OF 2007 Tulsiwadi Navnirman Coop. Housing Society Ltd. &amp; Anr. Versus State of Maharashtra &amp; Ors. .. Petitioners .. Respondents</p> <p>Mr.S.U.Kamdar with Archana Panchal i/b.P.G.Desai for petitioners Mr.K.K.Singhvi, Senior Advocate with S.S.Pakale and Aruna Savla for Mumbai Municipal Corporation. Mr.T.N.Subramaniam, Senior Advocate for intervenors Mr.Shrihari Aney, Senior Advocate with Sanjay Jain and N.M.Dhruva i/b. M.Dhruva and Company for respondent No.6 Mr.Ravi Kadam, Advocate General with K.R.Belosey, G.P. for State Mr.Ravi Kadam, Advocate General with Mr.G.D.Utangale i/b. Utangale &amp; Co. for S.R.A. WITH WRIT PETITION NO.887 OF 2004 Anup Kalyandasani Versus Municipal Corporation of Gr. Mumbai and Ors. WITH WRIT PETITION NO.75 OF 2006 WITH .. Petitioner .. Respondents</p> <p>2</p> <p>NOTICE OF MOTION NO.750 OF 2006 Daryus Panthakey Versus Municipal Corporation of Gr. Mumbai and Ors. WITH WRIT PETITION NO.1707 OF 2006 Vilas Nana Agawane &amp; Ors. .. Petitioner Versus The State of Maharashtra &amp; Ors. .. Respondents WITH WRIT PETITION NO.2186 OF 2006 Lokhandwala Idnfrastructure Pvt.Ltd. Versus Slum Rehabilitation Authority and Ors. WITH PUBLIC INTEREST LITIGATION NO.20 OF 2007 Mangesh V. Hedulkar Versus B.M.C. &amp; Ors. WITH WRIT PETITION NO.74 OF 2007 WITH CHAMBER SUMMONS NO.244 OF 2007 Shivaji Nagar Rahiwashi Sangh and Ors. .. Petitioners .. Petitioner .. Respondents .. Petitioner .. Respondents .. Petitioner .. Respondents</p> <p>3</p> <p>Versus State of Maharashtra &amp; Ors. WITH</p> <p>.. Respondents</p> <p>WRIT PETITION LOD.NO.678 OF 2007 Ravindra C. Patra and Ors. Versus Slum Rehabilitation Authority and Ors. WITH WRIT PETITION LOD.NO.759 OF 2007 Lok Jagran Manch, Mumbai &amp; Ors. .. Petitioners Versus Slum Rehabilitation Authority and Ors. .. Respondents WITH WRIT PETITION NO.1193 OF 2007 Anvarul Mehbula Chaudhary Versus Chief Executive Officer (SRA) and Ors. CORAM : .. Petitioner .. Respondents .. Petitioners .. Respondents</p> <p>Reserved on: Pronounced :</p> <p>SWATANTER KUMAR, C.J. DR.D.Y.CHANDRACHUD, J &amp; S.C.DHARMADHIKARI, J. 22nd August 2007 1st November 2007.</p> <p>JUDGMENT</p> <p>(Per Dharmadhikari, J) :-</p> <p>4</p> <p>. Full</p> <p>These</p> <p>petitions</p> <p>are placed</p> <p>before</p> <p>the in</p> <p>Bench after a detailed order was passed</p> <p>W.P.No.1326 of 2007 on 27th July, 2007.</p> <p>2.</p> <p>The</p> <p>Maharashtra Slum Areas (Improvement, and Re-development) Act, 1971,</p> <p>Clearance</p> <p>(hereinafter referred to as "Slum Act" for short) came 2001, to be extensively amended in Chapter I-A 1996-97 and That</p> <p>introducing</p> <p>therein.</p> <p>Chapter is entitled "Slum Rehabilitation Scheme". Under that Chapter falls Section 3A. This</p> <p>provision</p> <p>is inserted with a view to establish a for short) Scheme.</p> <p>Slum Rehabilitation Authority (S.R.A. for implementing Slum</p> <p>Rehabilitation</p> <p>After this Chapter was introduced in the Slum Act and such Authority and became functional the for S.R.A. several</p> <p>Brihanmumbai decided to</p> <p>its suburbs, that and</p> <p>undertake</p> <p>implement</p> <p>rehabilitation schemes. proliferation of Slums</p> <p>The State took notice of on public lands and</p> <p>5</p> <p>properties. powers are with the on</p> <p>Therefore, it decided to confer wide the S.R.A. by S.R.A. so that the public acting in lands</p> <p>cleared the</p> <p>coordination purpose,</p> <p>local authorities.</p> <p>For that</p> <p>State Government made appropriate amendments</p> <p>and inserted provisions in the planning and local laws. was Insofar as, Mumbai is concerned, S.R.A. on</p> <p>put in charge of permitting developments which had large slum pockets. ownership.</p> <p>lands, of</p> <p>Lands were after</p> <p>private/public</p> <p>Therefore,</p> <p>amending Act</p> <p>Maharashtra Regional and Town Act) for short, the</p> <p>Planning</p> <p>(M.R.T.P.</p> <p>Development Rules</p> <p>Control Regulations for Brihanmumbai (D.C. 1991) Control were also amended. are These</p> <p>Development to section</p> <p>Regulations</p> <p>traceable</p> <p>22(m) of the M.R.T.P. development to be</p> <p>Act, 1966. controlled,</p> <p>For individual monitored and</p> <p>regulated as also restricted, development control rules were made and they are traceable to the</p> <p>Development Plan itself.</p> <p>6</p> <p>3.</p> <p>One</p> <p>of to</p> <p>the</p> <p>Regulations in the</p> <p>set</p> <p>of</p> <p>Regulations,</p> <p>control development in</p> <p>Mumbai,</p> <p>pertains to Floor Space Index and its computation (F.S.I). While, computing the permissible F.S.I.</p> <p>for development of the lands/property, incentives were offered by the State and Local Body to</p> <p>(Brihanmumbai Developers upon lands same them to site</p> <p>Municipal</p> <p>Corporation)</p> <p>and Builders.</p> <p>An obligation was cast these private the after the F.S.I.</p> <p>as also the owners of</p> <p>rehabilitate the slum dwellers at as this The far as possible to and develop</p> <p>discharging plot/land. or</p> <p>obligation</p> <p>incentive was increased adjustments in</p> <p>appropriate</p> <p>computing the</p> <p>permissible</p> <p>outer limit.</p> <p>At the same time,</p> <p>slum pockets were also offered incentive inasmuch as persons residing in slums were permitted into Cooperative to</p> <p>organise Societies</p> <p>themselves and</p> <p>Housing were</p> <p>such Cooperative</p> <p>Societies</p> <p>further permitted to come forward with a proposal for development of the land, on which slums are</p> <p>7</p> <p>situated themselves</p> <p>or or</p> <p>located,</p> <p>either</p> <p>by</p> <p>societies incentives</p> <p>an outside Agency and</p> <p>were offered for the same as well.</p> <p>4.</p> <p>The underlying object for the above being of the lands by removal of the structures. It is now a has slums well been</p> <p>clearance and known taken takes lands</p> <p>dilapidated fact of</p> <p>which judicial notice</p> <p>repeatedly, that large scale</p> <p>encroachment and its to and the</p> <p>place as far as Government properties are concerned. and The Government agencies illegal on are and unable</p> <p>instrumentalities control</p> <p>encroachment,</p> <p>squatting its lands as</p> <p>unauthorised</p> <p>development</p> <p>political will and strength is lacking. pockets being Vote Banks,</p> <p>The slum or right</p> <p>preventive</p> <p>prohibitory time.</p> <p>measures are not initiated at</p> <p>The number of encroachers and squatters on</p> <p>lands, roads and pavements have increased and one can witness the same. as above Once the incentives and regulatory were and</p> <p>offered</p> <p>8</p> <p>rehabilitation number of</p> <p>measures and schemes were</p> <p>mooted the</p> <p>disputes and differences between</p> <p>slum dwellers/encroachers and the local authority and appropriate agencies have arisen which In of are such the The the to</p> <p>consuming disputes, Authorities State and</p> <p>valuable time of this Court. the and acts and omissions</p> <p>Agencies are highlighted.</p> <p>the SRA does not resolve them is grievance. Hence, steps are taken</p> <p>principal</p> <p>approach this Court.</p> <p>5.</p> <p>Every</p> <p>Division</p> <p>Bench</p> <p>assigned Original</p> <p>constitutional</p> <p>and writ matters on the</p> <p>Side has to deal with petitions under Article 226 of the Constitution of India arising specifically from Mumbai, are wherein involved. above disputes is and to</p> <p>differences resolve</p> <p>The request</p> <p>the same in this Courts</p> <p>constitutional</p> <p>and Writ Jurisdiction.</p> <p>6.</p> <p>Noticing</p> <p>an</p> <p>increasing</p> <p>spate</p> <p>of</p> <p>9</p> <p>litigation differences that which</p> <p>and</p> <p>the</p> <p>nature</p> <p>of</p> <p>disputes was</p> <p>and</p> <p>projected</p> <p>therein, it need to be</p> <p>decided down and the up a</p> <p>certain would of</p> <p>parameters</p> <p>laid</p> <p>enable this Court to take note genuine grievances. Hence,</p> <p>cognisance first and</p> <p>foremost</p> <p>objective of setting</p> <p>larger bench was laying down the parameters.</p> <p>7.</p> <p>The</p> <p>second a that</p> <p>reason</p> <p>which</p> <p>necessitated contention have been not</p> <p>constituting was raised</p> <p>Full Bench is that a conflicting views</p> <p>expressed only but</p> <p>by Division Benches of this Court</p> <p>with regard to parameters referred to above also the rights of the slum dwellers and the can go into out of such was</p> <p>extent to which the State and S.R.A. the question In and this issues arising behalf, the</p> <p>rights. invited Court,</p> <p>attention</p> <p>to some Division Bench decisions of this which are noticed by a Division Bench</p> <p>(consisting</p> <p>of Honble Chief Justice and Honble The conflict was on</p> <p>Dr.Justice D.Y.Chandrachud).</p> <p>10</p> <p>account with upon of</p> <p>of some observations in these</p> <p>decisions</p> <p>regard to the nature of the power conferred the State and the S.R.A. implementation and during the course of a made Slum to at</p> <p>monitoring</p> <p>Rehabilitation resolve</p> <p>Scheme.</p> <p>A request was</p> <p>the disputes and differences and set</p> <p>rest the controversy with regard to the authority and power of the State Government and S.R.A. to</p> <p>settle and</p> <p>and adjudicate upon the questions, issues disputes raised during the course of</p> <p>implementation and rehabilitation scheme.</p> <p>8.</p> <p>Noticing</p> <p>the issues and questions of far</p> <p>reaching public importance raised during the oral arguments, felt that that a Division Bench of this Court to</p> <p>it would be just, fair and proper</p> <p>constitute a larger bench and refer to it certain questions, for being answered. This is how a</p> <p>Full Bench has been constituted.</p> <p>9.</p> <p>The</p> <p>facts in the Writ Petitions need not</p> <p>11</p> <p>be noticed in great details. that in Writ Petition</p> <p>Suffice it to state of 2007, the</p> <p>No.1326</p> <p>reliefs on 11th</p> <p>claimed are that, the permission granted February 2005 and 30th April of building plans in pursuance 2005 and</p> <p>sanction be the</p> <p>thereof of</p> <p>declared powers</p> <p>as illegal, invalid, ultravires of respondent Nos. 2 and 3</p> <p>viz.,</p> <p>Municipal is not a</p> <p>Corporation and S.R.A. petition which could be of the</p> <p>Although, this said and to be</p> <p>representative arising is made and</p> <p>questions</p> <p>issues</p> <p>frequently, yet, some indication thereof</p> <p>available from the allegations and statements therein. tenants Petitioners therein are occupiers of tenements situate at Some of the Tulsiwadi, and</p> <p>Tardeo, tenants</p> <p>Mumbai.</p> <p>occupiers</p> <p>from amongst 3220 families are Municipal The Municipal Employees are housed in and building which are owned by</p> <p>Employees. structures Municipal are The slums</p> <p>Corporation</p> <p>whereas other slum</p> <p>structures dwellers. and</p> <p>and huts occupied by of these</p> <p>occupants</p> <p>tenaments/chawls</p> <p>12</p> <p>structures including society. these 17</p> <p>promoted respondent Later</p> <p>17</p> <p>different a</p> <p>societies proposed out of the</p> <p>No.5 which is</p> <p>on 16 of the societies came together No.1. The</p> <p>societies of</p> <p>under</p> <p>umbrella</p> <p>petitioner</p> <p>petitioner</p> <p>persuaded the proposed society also to join them. That attempt could in became not succeed. the members As usual</p> <p>occupiers</p> <p>dilapidated of these of</p> <p>structures/slums/huts societies having with</p> <p>a view to fulfil their dream alternate Shanties,</p> <p>permanent slums and</p> <p>construction/tenaments.</p> <p>dilapidated structures in which such persons were staying of for decades together being on the or likely to be verge an</p> <p>collapse</p> <p>demolished,</p> <p>opportunity was taken by the occupants thereof to present the a proposal or scheme for development of are of</p> <p>property/land upon which the structures However, there being difference</p> <p>standing. opinion</p> <p>between two societies, two proposals for were presented. Thus, on one</p> <p>development</p> <p>13</p> <p>property there was a scheme which was proposed by a society which was yet to be registered whereas was yet, proposed another by the petitioner proposed No.1 by</p> <p>another society,</p> <p>scheme was</p> <p>respondent for further</p> <p>No.6.</p> <p>All the schemes were presented and the scrutiny. It is</p> <p>processing that</p> <p>common presented eminent</p> <p>ground by</p> <p>proposals/schemes financed There was by a and 1999</p> <p>these societies were and developers.</p> <p>builders on</p> <p>litigation this</p> <p>account of the rival schemes</p> <p>Court by an order dated 23rd February</p> <p>passed in W.P. M.N.Chandurkar Court) with to regard</p> <p>2406 of 1998 appointed Mr.Justice (Retd. Chief Justice Madras High allegations Municipal No.6 as</p> <p>consider and go into the to had the schemes. The</p> <p>Corporation developer was the</p> <p>appointed</p> <p>respondent</p> <p>for the scheme/project which subject matter of challenge</p> <p>decision in the to</p> <p>petition record Learned</p> <p>and the Honble Judge was requested</p> <p>his opinion and forward it to this Court. Judge opined that the decision to award</p> <p>14</p> <p>the</p> <p>contract to respondent No.6 does not</p> <p>suffer</p> <p>from any undue preference or favouritism.</p> <p>10. the</p> <p>After setting out the salient features of urban renewal scheme of Tulsiwadi what allege is that and despite the</p> <p>petitioners several</p> <p>obtaining for on by a</p> <p>permissions</p> <p>clearances</p> <p>implementing the scheme</p> <p>the comprehensive scheme, later was a sought to be divided</p> <p>entertaining portion D.C. of</p> <p>request from slum dwellers on development of</p> <p>the property for</p> <p>under the</p> <p>Regulation</p> <p>No.33(10)</p> <p>D.C.Regulations.</p> <p>Petitioners contention is that</p> <p>Regulation 33(9) of the said Regulations would be the the applicable one but taking into consideration request of of slum dwellers on portion or</p> <p>pockets scheme 33(10), being</p> <p>the properties in question,</p> <p>another</p> <p>purporting to be under D.C. in derogation It of the main is alleged</p> <p>Regulations scheme, that is the</p> <p>entertained.</p> <p>bifurcated scheme is supported by an minuscule of</p> <p>15</p> <p>slum dwellers and hutment occupiers. separate the been</p> <p>It is not a</p> <p>pocket or portion or property to say in Yet, a list of these structures prepared and a map/plan has is</p> <p>least.</p> <p>separately</p> <p>prepared pertaining to the same. of the property of 113 known as</p> <p>Thus, a portion Jijamata Nagar to be</p> <p>comprising developed for the</p> <p>structures is sought</p> <p>separately under D.C.</p> <p>Rule 33(10) and</p> <p>that purpose, approvals have been granted by B.M.C. and S.R.A. The larger scheme,</p> <p>therefore,</p> <p>has necessarily been given a go-by by</p> <p>this action of the authorities, who are owners of the properties as well. In such circumstances,</p> <p>permitting redevelopment for housing occupants of only 113 structures is neither beneficial nor in</p> <p>the interest of slum dwellers and other occupants nor is the in decision law. taken on that basis</p> <p>supportable malafide and 21</p> <p>The decision is</p> <p>contrary, 14 such</p> <p>and violative of mandate of Article of the Constitution of India. In</p> <p>circumstances, the decision and orders be quashed</p> <p>16</p> <p>and set aside.</p> <p>11. petition 2006. this</p> <p>Insofar</p> <p>as</p> <p>another</p> <p>representative of by</p> <p>is concerned, the same is W.P.No.75 This petition was earlier on the ground of that dismissed it</p> <p>Court</p> <p>involves the Court this The the It of</p> <p>disputed Supreme in that to</p> <p>questions</p> <p>facts.</p> <p>However,</p> <p>Court set aside the order of this behalf and remanded the matter to reconsider Court the writ no petition. opinion on</p> <p>Court Supreme</p> <p>expressed</p> <p>correctness left open</p> <p>or otherwise of the submissions. all questions including that</p> <p>maintainability relief therein. claims to</p> <p>of the petition and grant of any In that petition, the petitioner an</p> <p>have right, title and interest in property...</p>