P.C.
1. After the matter was argued on three different dates by learned Senior Counsel Shri Kamdar and the arguments were practically over, upon a suggestion being made by this Court we had requested both the parties to see whether the matter could be settled amicably. It appears that though both the parties had practically agreed to settle the dispute in respect of certain modalities which were to be worked out, there was a disagreement and we were informed on the last date that the settlement was not possible and therefore the matter was kept for hearing today. Today, the learned Counsel appearing on behalf of the petitioner made a request that Shri Kamdar, learned Counsel appearing on behalf of the petitioner has returned the brief and that the other counsel is also not available. It is submitted that the matter may be adjourned to two days in order to enable the petitioner's counsel to argue the matter.
2. We have declined to accede to the request made by the learned Counsel for the petitioner. The matter was practically fully argued by learned Counsel Shri Kamdar and thereafter the matter was adjourned. Further, the solicitor has filed his appearance on behalf of the petitioner. The respondents have already filed their reply. Interim stay has been obtained by the petitioner in 2008 and as a result of the interim stay entire scheme of the redevelopment has been stalled for a period of 6 years, and 75 slum dwellers are languishing in the said area. Out of the two petitions, except petitioner in Writ Petition No.385 of 2008 and 8 petitioners in Writ Petition No.2037 of 2009, the other inhabitants of the building have already accepted the proposal of the respondents and have shifted, except those who are to be accommodated in the new building which is to be constructed on this plot of land.
3. In both these petitions identical averments have been made and identical reliefs are claimed. The petitioner in writ petition No.385 of 2008 is seeking the following reliefs:
a) That this Hon'ble Court be pleased to issue a writ of certiorari, or a writ in the nature of certiorari, or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records and proceedings in regard to the proposed Slum Redevelopment Scheme on plot bearing C.S.No.298(pt) 299 to 305 and 306 (pt), F.P. No.27 to 34 of Wadala Estate South Scheme No.57 at Katrak Road, for "Vithal Rakhumai CHS (prop)" with ongoing Slum Rehabilitation Scheme on plot bearing C.S.No.24, 25, 26, 35, 36 and 37 of Wadala Estate South Scheme No.57 at Katrak Road, Wadala for "Ram Nagar CHS Ltd." and after examining the legality, validity and/or propriety of the impugned orders/actions therein, to quash and set aside the same insofar as they relate to the redevelopment of Irani Chawls at Plot No.407A.
b) That this Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari, or any other appropriate writ, order or direction under Article 226 of the Constitution of India, restraining the respondents from proceeding to redevelop the property at Irani Chawl at Plat 407A.
c) That respondents be restrained from requiring the petitioner from vacating the premises lawfully occupied by him at Irani Chawls.
4. Almost identical relief has been claimed by the petitioner in Writ Petition No.2037 of 2009. The contention of the petitioners in brief in both these petitions is that, they are tenants of the property owned by the Mumbai Municipal Corporation which is known as J.B.Irani Chawl, plot no.407A, City Survey No.1/298, Katrak Road, Wadala, Mumbai 400 031. According to the petitioner, the property at J.B.Irani Chawl at Plot No.407A, City Survey No.1/298 belongs to the Municipal Corporation of Gr. Bombay and it was originally leased to one Jamshed Behram Irani. The said property was taken over by the Corporation since the lessee did not pay the dues to the Municipal Corporation.
5. In 1970 the Bombay Municipal Corporation filed a case for increasing the municipal rent. In the said matter an undertaking was given by the petitioner that upon the petitioner paying the increased rent Bombay Municipal Corporation would agree to recognize the petitioner as a tenant and that he also gave a further undertaking that in the event the Bombay Municipal Corporation requires the premises for road widening and for constructions of a school building, he would shift to alternate accommodation which would be provided by the Corporation to the project affected persons. An order to that effect was passed by the City Civil Court on 7.8.1970. The petitioner received a letter dated 8.12.2006 from the Administrative Officer (Estate Dept, F North Ward) in which it was informed that plot No.407A is an society property and that redevelopment proposal is not received in their office. The said latter was sent by the petitioner on an application made by him under the Right to Information Act. Another letter was sent by the second respondent again on an enquiry made under the Right to Information Act by the petitioner. It was dated 18.6.2007. It is submitted that in the said letter it was mentioned that no society was registered in the said property and there is no redevelopment proposal pending in respect of the said property under the Slum Act.
Again third letter was sent by the Chief Engineer (BPMC) dated 15.2.2007, again on an enquiry being made under the Right to Information Act. In the said letter it was mentioned that there was no proposal for the redevelopment of the property received by the Estate Officer. Reliance is also placed on two other letters, namely letter dated 9.1.2007 and 11.5.2007 in which the Administrative Officer in the first letter informed the petitioner again that no proposal for redevelopment in respect of the said property was received by him. In the second letter the first respondent informed the petitioner that the Chawl No.407A is included as a part of Lal Vitachi Chawl in the proposed SRA Scheme of Ram Nagar Co-op. Housing Society after obtaining necessary sanction for the society. The petitioner was also informed that the said property was included in the redevelopment scheme under the SRA. Thereafter, by letter dated 11.1.2008 the petitioner was informed by the third respondent that the petitioners permanent alternate accommodation was given in rehabilitation building no.3 and that the lottery was to be held on 19.1.2008. The petitioner sent a reply to the third respondent on 18.1.2008 informing them that Irani Chawl was Municipal Property and the said property was never declared as a slum.
In both these petitions filed by the petitioners, learned Senior Counsel Shri Kamdar appearing for the petitioners invited our attention to the various letters which were received by the petitioners in response to the RTI applications and also other documents in support of the contention that the property on which the chawl was constructed was not declared as a slum and therefore firstly, the said property could not have been included in the SRA Redevelopment Scheme. Secondly, that the respondents action was without jurisdiction and therefore liable to be quashed. Thirdly, it was submitted that the said property was fradulently included under the SRA Scheme since the said property was not declared as a slum or was notified as a slum under the Slum Act. Learned Counsel appearing on behalf of the petitioner in Writ Petition No.2037 of 2009 also made similar submissions. On the last occasion similar arguments were made by the Counsel appearing on behalf of the petitioner in the second petition.
6. On the other hand Shri Sathe, learned Counsel appearing for the respondents has firstly submitted that the contention raised by the petitioners in both these petitions are misconceived. It is submitted that it is a settled position in law that in respect of redevelopment under Section 33(10) all the cessed structures belonging either to the BMC or the State Government, the cessed property was included. Once an order was passed under 33(10), all buildings in the said area would fall under the said scheme under separate notification under the Slum Act was not necessary. In support of the said submission he has relied on three judgments of the Division Bench of this court namely (1) Om Sai Darshan Co-operative Housing Society and Anr. vs. State of Maharashtra and ors. reported in 2007(1) Bom.C.R.476, and more particularly our attention was invited to para 19 and 20 of the said judgment. Secondly, reliance was placed on Division Bench Judgment of this Court in Writ Petition (L) No.1530 of 2010 (along with Writ Petiton (L) No.1213 of 2010) in the case of Sayyed Anwar Gaffar and Ors. vs. Administrator and Divisional Commissioner Konkan Division and Ors. which was decided by the Division Bench of this Court on 14.7.2010, and thirdly the Division Bench Judgment in Writ Petition No.2888 of 2013 in the case of Sarjamin Khand vs. State of Maharashtra and ors., decided on 13.12.2013.
It was submitted that in view of the observations made by the three division benches of this court, it was a settled position in law that under the scheme of Slum Redevelopment, the governed under Regulation 33(10) a separate declaration under the Slum Act was not necessary and where the sanction is granted under 33(10) of a scheme governed by the said regulation in respect of a parcel of land, it is not necessary to have a declaration of the part parcel of land as slum rehabilitation or in exercise of powers under Section 3-C(1) of the Slum Act.
7. It is therefore submitted and admittedly this portion of the property on which the said Irani Chawl was constructed, being the part parcel of land out of the larger portion of the land namely land Survey No.298 and 306 and final plot 24 being declared as a scheme of slum redevelopment under 33(10), it was not necessary to have a declaration of the said parcel of land as slum under 3-C(1) of the Slum Act.
8. It is submitted that LOI was issued in favour of the developer in the year 2005. Except the petitioners, all the others have been shifted and agreements have been executed in respect of the other slum dwellers, except the petitioners who have refused to execute the agreement. There are about 80 slum dwellers on the site who could not be shifted on account of the stay granted by this court. It is submitted that at the time the interim order was passed, the subsequent judgments had not been given by this court and therefore relying on the judgment of learned Single Judge of this Court, this court had granted stay to the Slum Redevelopment Scheme.
9. We are of the view that there is substance in the argument advanced by learned Counsel appearing on behalf of the respondents. In the case of Om Sai Darshan Co-operative Housing Society the Division Bench of this Court has observed in para 19 and under as under :
"19. In the present case we are dealing with the scheme of slum redevelopment which is governed by Regulation 33(10). A General Scheme under Section 3B of the Slum Act can be framed either by the State Government or by SRA with the prior approval of the State Government. However, the scheme under Clause 33(10) is to be approved in individual cases by the SRA. Clause (II) of Annexure to the said Regulation provides that for the purpose of Regulation 33(10), a slum means that area which is either censused or one which is declared and notified under the Slum Act. It provides that the slum shall also mean areas pavement stretches hereafter notified as slum rehabilitation areas. The clause provides that if any area fulfills conditions laid down in Section 4 of the Slum Act to qualify as a slum area and has been either censused or declared and notified as slum, it shall be deemed to be and treated as Slum Rehabilitation Areas. The said clause also provides that censused means those slums located on lands belonging to Government, any undertaking of Government, or to Brihan Mumbai Municipal Corporation and incorporated in the records of the land owning authority as having been censused in 1976, 1980, or 1985 or prior to 1st January 1995."
"Thus for the purpose of scheme under Regulation 33(10), the following areas are Slum Rehabilitation Areas; (a) any area which fulfills the conditions laid down in Section 4 of the Slum Act which is declared and notified as such and (b) slum rehabilitation area declared as such by the Slum Rehabilitation Authority fulfilling the conditions laid down in Section 4 of the Slum Act to qualify as slum area and/or required for implementation of any slum rehabilitation project. Regulation 33(10) contemplates that there can be redevelopment of slums including pavements. The slums are defined by Clause II. The slums mean either censused slums or slums declared and notified as such under the Slum Act. Clause II also defines the word censused which means slums located on lands belonging to Government, any undertaking of the Government or Mumbai Municipal Corporation and incorporated in records of the land owning authority as having been censused in 1976, 1980 or 1985 or prior to 1st January 1985."
"20. On plain reading of the Annexure to Regulation 33(10) it is obvious that for sanction of a scheme governed by the said Regulation in respect of a parcel of land, it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area in exercise of power under Section 3C(1) of the Slum Act. The Slum Rehabilitation Scheme can be sanctioned in respect of a slum as defined in clause of Annexure to Regulation 33(10). Under the said Annexure there can be a scheme for a viable stretch of pavement also. The learned Single Judge deciding Ramkali's case was not concerned with a scheme under D.C.Regulation No.33(10). The proposition laid down by him will have to be read as one confined to the situation before him. Question No.1 is therefore answered in the negative. The question No.2 has been also answered in the foregoing paragraphs."
10. Similarly, the Division Bench in the case of Shri Sayyed Anwar Gaffar in Writ Petition (L) No.1530 of 2010 along with one other petition has in para 7 and 8 observed as under:
"7. As far as the first contention of the petitioners that if there is a declaration under Section 3B of the Slum Act, then, there would not be any occasion to go to section 3D thereof without complying with Section 3C is concerned, to our mind, the issue stands concluded by the Division Bench judgment of this Court reported in 2007(1) BCR 476. Before the Division Bench the argument was that unless there was declaration issued under Section 3C(i) of the Slum Act, declaring a particular area to be a slum rehabilitation area, the letter of intent (LOI) for implementation of the slum redevelopment scheme could not have been issued. Reliance was placed upon the judgment of the learned Single Judge of this Court reported in 2004 (3) BCR 14 (Ramkali Sitaram Khushwaha and Ors. Vs. Dy. Collector and Ors.) the Division Bench analysed the scheme of the Slum Act and particularly Chapter 1A of the same and, thereaftger, referred to both section 3B and 3C and held that the amendments made by Maharashtra Act 6 of 1997 to Section 3C(1) of the Slum Act was not brought to the notice of the learned Single Judge. The position prior to and subsequent to the amendment was noticed thereafter and it was held that a general scheme under section 3B of the Slum Act can be framed either by the State Government or by SRA with the prior approval of the State Government. Referring to D.C. Regulation 33(10), this is what is observed in paras 19 and 20 by the Division Bench:-
19........
20........"
"8. Therefore, for the reasons indicated by the Division Bench, it will not be possible to agree with Mr. Rajyadhyaksha that if there is a declaration under Section 3B, then, the Authorities cannot resort to section 3D without first going through the mechanism stipulated by Section 3C. The self-same arguments canvassed must, therefore, be rejected."
11. The said Division Bench therefore relied on the decision given by the Division Bench of this Court in the case of Om Sai Darshan Co-operative Housing Society. Similarly, in the case of Sarzameen Khan (supra) this court in in Writ Petition No.2898 of 2013 in para 7 observed as:-
"7. Heard the learned Counsel appearing for the respective parties. In our view, there is no substance in the submissions made by the counsel appearing on behalf of the petitioner. We are satisfied that the suit which was filed for eviction from the suit property, Petitioner's father had filed affidavit giving the consent for the redevelopment scheme and he had already shifted alongwith his two other sons during his life time in two transit rooms, which were given to his father. The Petitioner, however, has chosen to stay in the partly demolished premises and filed this petition only to avoid his eviction from the premises. It is a well settled position in law that once slum rehabilitation scheme is approved and LOI is issued by the Slum Rehabilitation Authority, the power is vested in the authority to evict non co-operating occupants, who refuse to vacate the premises. In our view, the said power has been properly exercised by the authority under the provisions of Section 33 and 38 of the Slum Act. The Petitioner has been given ample opportunity of hearing and thereafter impugned order was passed. Against this order, petitioner has approached the Appellate Tribunal. Appellate Authority has also considered all the contentions raised by the petitioner and dismissed the appeal. The inquiry which is contemplated under Section 33 of the Slum Act is a summary inquiry. In this inquiry, validity of the claim cannot be gone into by the said authority. The Petitioner, admittedly, has not challenged the order passed by the Appellate Authority by approaching the High Power committee and has directly approached this Court under Article 226 and 227 of the Constitution of India. We are satisfied that there is no case made out by the Petitioner for interfering with the impugned orders and the impugned notice. We are, therefore, not inclined to grant any relief, as prayed by the petitioner. Writ petition is, therefore, dismissed in limini. Impugned order shall be implemented after one week. "
12. The reading of these three judgments squarely applies to the facts of this case. It is not in dispute that Survey Nos.298 and 306, the scheme for the redevelopment of these two plots has already been granted. An affidavit in reply filed by the Slum Redevelopment Authority and the residents of the Irani Chawl also were subsequently added in a subsequent notification which was annexed to the reply filed by the Slum Rehabilitation Authority. The affidavit is filed reiterating the said facts.
13. We are, therefore, of the view that the basic foundation of the entire petition is misconceived since it has been argued that since part portion of the larger area has not been declared as a slum under the Slum Act a order or redevelopment could not have been issued in respect of the present petitioners. As pointed out by us hereinabove, the said submission is misconceived.
14. Much emphasis would lay on the various letters received by the petitioners upon enquiry being made to them under the Right to Information Act. The said letters do not take the case of the petitioners any further since the main motion itself is totally misconceived. In the result, we are of the view, that there is no substance in the argument made by learned Counsel for the petitioner. Both these petitions are therefore dismissed. Interim relief granted by this court is vacated.
15. At this juncture, learned Counsel appearing for the petitioner seeks extension of the interim order which has been granted by this court for a further period of eight weeks. This application is opposed by the learned Counsel appearing on behalf of the respondents. In our view, it would not be possible to continue the interim relief which has been granted by this court at the time of admitting this petition. As pointed out herein above, the entire scheme of redevelopment has been stalled as a result of the interim stay which was granted. The said stay was granted on the basis of the judgment of the learned Single Judge which was lateron overruled by the three judgments of Division Bench of this Court. The position as of today is that all the petitioners can be shifted to a rehabilitation building. Because of the interim stay which was granted, apart from the project being stalled, about 80 slum dwellers are still languishing in unhygenic condition in the said property since the property could not be redeveloped and rehabilitation building could not be constructed. Hence, request made for stay is refused.