Mahant Kumar Das And 13 ORS v. The Dy. Collector (E And R) And C.A. And 5 ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 2965 OF 2018 Babu Sitaram Mestry & Ors.

... Petitioners vs.

The Dy. Collector (E & R) and ... Respondents C. A.Ghatkopar & Ors.

WITH WRIT PETITION (L) NO. 2966 OF 2018 WRIT PETITION (L) NO. 2968 OF 2018 WRIT PETITION (L) NO. 2973 OF 2018 WRIT PETITION (L) NO. 2975 OF 2018 WRIT PETITION (L) NO. 2981 OF 2018 Mr. R. A. Thorat, Senior Advocate a/w. Mr. Balasaheb Deshmukh for the Petitioner. Mr Amit Shastri, AGP for respondent nos. 1 and 2 in WP (L) No. 2965/2018 and 2966/2018.

Mr. Sukanta A. Karmakar, AGP for Respondent no.s 1 and 2 in WP (L) No. 2975/2018 and 2981/2018.

Mr. Shamrao B. Gore, AGP for Respondent nos. 1 and 2 in WP(L) Nos. 2975/2018 and 2981/2018.

Dr.Birendra Saraf a/w Mr Paras S. Gosar i/b.Mr. Jayesh R. Vyas for Respondent no. 3. Mr. Mayur Khandeparkar a/w. Ms. Asha Nair, Ms. Hetal Savla, Mr. Surendra Vishwakarma and Mr. Siddharthan Nair i/b. M/s. Diamondwala & Co. for respondent no. 4.

Mr. A. P. Kulkarni for SRA.

Mr. P. G. Lad a/w. Ms. Aparna Murlidharan and Ms. Sayli Apte for MHADA.

CORAM : A.K. MENON, J.

DATE : 23 rd OCTOBER, 2018 P. C.

1.

These six writ petitions assail a common order passed by the Grievance Redressal Committee dated 19 th July, 2018 in six appeals under section 35(1A) of the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 ( the Slum Act ). The petitioners are all occupants of structures falling under the Slum Rehabilitation Scheme of Hanuman Nagar Vikas Mandal being implemented in village Ghatkopar, Taluka Kurla, Mumbai. The petitioners in these petitions are members of different societies. Hanuman Nagar Vikas Mandal is stated to be a federation representing all these societies. The respondent nos. 1 and 2 are the Deputy Collector (Encroachment & Removal) and Competent Authority, Ghatkopar and Additional Collector (Encroachment & Removal) Eastern Suburbs being the first Appellate Authority.

2.

For the purpose of this order the facts in Writ Petition (L) No. 2965 of 2018 have been urged in common on behalf of all the parties. Respondent no. 4 is one M/s. Lake View Developers said to be holders of Letter of Intent of development. Respondent no. 5 is the Hanuman Nagar Vikas Mandal. Respondent no. 6 is the Slum Rehabilitation Authority through its Chief Executive Officer. 3.

The order impugned dismissed all the appeals and directs the appellants to vacate their structures and shift to the transit accommodation made available by the developers within 15 days. Non eligible occupants were already directed to vacate

within 15 days of the order, some of whom may be entitled to compensation. The interests of the non eligible occupants were also protected in a limited manner by absorbing them and if they are found eligible in future, they would then be entitled to the benefits available to the eligible occupants. The order of eviction was to be implemented if the premises were not vacated after 15 days. 4.

Mr. Thorat learned Senior Advocate appearing on behalf of the petitioner submitted there is a fundamental error committed by the first Appellate Authority inasmuch as the respondent no. 1 did not have the jurisdiction to hear the complaint in the first instance. He submitted that by virtue of Notification no. Zopasu.1203/C.R.186/2016 dated 5 th January, 2017 the Land Manager, Mumbai Housing and Area Development Board would be the appropriate officer in respect of project on MHADA lands. He submitted that by Notification No. 186 of 2016, in exercise of powers under Section 35(1) and section 3Y(1) of the Slum Act the State of Maharashtra amended Notification no.

186 of 2016 dated 26 th August, 2016 to add the words "And Government/ semi-government/ private lands under the MCGM projects" and in the schedule after the entry 42, the entries 43, 44 and 45 were added and in entry no. 44 the subject lands where MHADA lands falling within the relevant ward of the Municipal Corporation of Eastern suburbs the Land Manager, MHADA was designated to hear Slum Act complaints following which an appeal would lie to the Additional Collector (Encroachment & Removal) Eastern Suburbs. In the present case he submitted that the order was passed on th March, 2017 after date of publication.

5.

According to Mr. Thorat the order passed by the first authority was without jurisdiction and therefore the subsequent orders therefore suffer from the same vice. The next point urged by Mr. Thorat is that respondent no. 4 is not now developing the property. That vide letter dated. 7 th December, 2013 respondent no.

4 had addressed to the various societies stated that it was not in a position to develop the property and therefore sought to introduce the aforesaid Rock Spaces Private Limited ("Rock Spaces") into the development process and as such the original letter of intent being granted to respondent no. 4 was believed to have been revoked or being revoked since respondent no. 4 has not carried on construction work at the premises. As regards the various contentions of respondent no. 4, Mr. Thorat submitted that in the absence of any letter of intent in favour of Rock Spaces there was no question of permitting them to carry on any work at the property of the petitioners. He submitted that since Rock Spaces has not been appointed as developer the letter of intent continued to be in the name of Lake View Developers. That unless and until the letter of intent is canceled under section 13(2) of the Slum Act there was no question of any one else carrying on any development work. 6.

Mr. Thorat further submitted that the slum was located over a portion of land which is hilly and no permission had been obtained from aviation authorities He submitted that Environmental Impact Assessment clearance has also not been obtained and these are all aspects which have been urged before the authority but they have paid scant attention to these aspects. The next point urged by Mr. Thorat is that the location of the structures occupied by the petitioners in these group of

petitions is such that they are in the middle of a large area, surrounded by numerous other structures and thus it is not practical to vacate the premises occupied by the Petitioners alone without properly assessing feasibility of access to alternate accommodation. This he submitted was one of the reasons that respondent no. 4 had sought to relinquish their rights to develop the property. Furthermore such haphazard scheme of redevelopment will cause immense inconvenience to all persons including the petitioners. He therefore submitted that the petitioners must be allowed to continue in occupation of the various structures till a practical plan is put in place and till such time it is not appropriate to call upon the petitioners to vacate the premises in their occupation.

7.

Further Mr. Thorat submitted that although there were 15 societies under the scheme, Annexure II was issued only in respect of 8 societies and the developers cannot pick and choose particular areas in an unplanned manner. Mr. Thorat submitted that these aspects has not been considered by the Grievance Redressal Committee and hence the question of vacating the premises does not arise. He submitted the order of the Grievance Redressal Committee is perverse and cannot be sustained. He submitted that the impugned orders are liable to be set aside. On behalf of the petitioner, Mr. Thorat had submitted that it is case of respondent no. 4 itself that a new NOC was to be issued by MHADA as seen from letter dated 18 th October, 2008 which is part of the compilation at page 226 and that no such NOC has been granted.

8.

On behalf of respondent no. 4 Dr. Saraf submitted that the concerns expressed by the petitioners are misconceived. He submitted that there is no change in the developer and respondent no. 4 was continuing with the project. He submitted that the letter dated 7 th December, 2013 referred to by Mr. Thorat was issued at an earlier point in time when respondent no. 4 contemplated an arrangement whereby Rock Spaces would also be involved in the project. However, that was not done, since the said proposal did not fructify there is no question of Rock Spaces now being now involved. 9.

Dr Saraf relied upon the averments in affidavit of one Mr. Kaushik More dated 7 th September, 2018 and submitted that the SRA had issued letter of intent on 26 th December, 2003 and revised letter of intent on 25 th January, 2012 in the name of respondent no. 4. The plot was ad-measuring 64,219.67 sq.mts and the land was owned by MHADA. He submitted that there was 1488 eligible slum dwellers in 15 societies which had since formed a federation known as Hanuman Nagar Vikas Mandal. The SRA had issued intimation of approval in the name of respondent no. 4 - Lake View Developers and respondent no. 5 -Hanuman Nagar Vikas Mandal which are valid and subsisting as on date. The redevelopment was undertaken under provisions of Regulation 33(10) of Development Control Regulations for Greater Bombay, 1991 (the Regulations) and various steps have been taken between 9 th December, 2003 after the letter of intent came to be first issued. The intimation of approval, commencement certificate upto plinth level of the rehab building no. 1 and 2 and occupation certificates in respect of these two

rehab building has also been issued. These buildings have since been converted to a transit camp on 20 th March 2012. The transit camp is therefore ready for occupation. Dr. Saraf submitted that the alternate accommodation is ready and is perfectly habitable. He also produced photographs of some units. In addition he submitted that there is a temporary transit camp at Powai which premises are kept ready since June 2012 and December, 2014. Furthermore the layout has been approved on 19 th November, 2015 and the approval of the fire department in respect of the rehabilitation building 4 and 5 have also been obtained. 10.

Dr Saraf submitted that the Ministry of Environment and Forests has issued its clearance in 28 th July, 2017 and the Civil Aviation department has also issued no objection certificate on 11 th July, 2018. He therefore submitted that all necessary approvals have been obtained by respondent no. 4 and respondent no. 4 will comply with any further requisitions. According to Dr Saraf the petitioners are attempting to interrupt the development process at the hands of vested interest when all provisions of law are being duly followed under the directions of MHADA and the Municipal Corporation. He submitted that the issue of jurisdiction raised by relying on the notification dated 5 th January,2017 has no substance now since the powers of the Deputy Collector (E & R) and Competent Authority had not been expressly taken away.

11.

Dr Saraf submitted that several slum dwellers have already shifted to the transit accommodation. Many others are being paid rent. Dr.Saraf further

submitted that when show cause notice was issued to the respondents in December, 2016 under section 33 and 38 of the Slum Act, the petitioner had appeared and filed an application for inspection of documents pursuant to which respondent no. 4 has sent copies of all relevant documents to the petitioner and this fact is recorded in the order dated 14 th March, 2017 passed by the Competent Authority. The contention that documents were not furnished was therefore disputed as being incorrect. Dr Saraf further submitted that Rock Spaces is not now involved in the project and therefore the basic premise of the petitioners in filing these petitions is misconceived.

12.

Reliance was placed on the decision of the Supreme Court in the case of Commissioner of Income Tax, Orissa vs. Dhadi Sahu ( Citation) in which the Supreme Court observed that no litigant has any vested right in the matter of procedural law but where there is change of forum it ceases to be a matter of procedural law. The forum of appeal or proceeding is a vested right is opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal Court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the tribunals or forums. Thus he pressed into service this observation in support of his contention that proceeding had already proceeded before the Deputy Collector (E & R) and C.A. and that any observation on behalf petitioner and later very same petitioners had moved the Appellate Authority. This decision however cannot come

to the benefit of the respondent since the case petitioners is that the forum of first instance was itself one without jurisdiction. 13.

Dr Saraf also placed reliance upon a decision of the Division Bench of this Court in Mrs. Radhika George and Ors. vs. Maharashtra Housing and Area Development Authority and Others [Appeal (L) No. 359 of 2012]. The appellant who were petitioners challenged order passed by Single Judge disposing of the writ petition and challenged the order of Executive Engineer of MHADA proceedings under section 95A directing the appellants to vacate their premises. No protection was granted by the single Judge.

In appeal after considering all submissions the Court came to the conclusion that the only question was whether the Executive Engineer was correct in asking the appellants to vacate the premises and move to transit accommodation and in this respect the division bench reaffirmed the view that section 95A is not to determine right of party but to speed up work of development, while ensuring the shelter for members and occupants. Permissions had been granted in the year 2006 and the premises were partly demolished.

Suitable transit accommodation was ready and available and therefore the Court observed that once Executive Engineer had found that 70% members had consented and the developer and provisions for the transit camp were made, majority of the members had shifted and the appellant cannot hold the developer to ransom and must follow the majority decision. The appeal then came to be dismissed. He submitted that the facts in the present case are similarly placed.

14.

He also placed reliance on the decision of the Supreme Court in Civil Appeal 6128 of 2009 Himachal Pradesh State Electricity Regulatory Commission and Anrs. vs. Himachal Pradesh State Electricity Board which reiterates that an enactment dealing with substantive rights are primarily prospective unless it is expressly or by necessary intention or implication given retrospectivity under the principle that could play when vested rights are effected. That the legislation concerned must reveal the intent of the legislature to make the provisions retrospective. Applying this principle it was contended that there was nothing in the notification that would come in the reflection of the impugned order since order had been carried in appeal albeit unsuccessfully. This decision again is of little assistance to Dr Saraf given the fact that the challenge mounted is on the basis of proceedings being heard by a forum without jurisdiction.

15. Dr Saraf relied upon decision of this Court in Andrade Motors vs. The Additional Collector (Eng.Rem) [(2009)3 BCR 120) wherein this Court has held that the Competent Authority under section 33 of the Slum Act has limited powers and within its jurisdiction it is only required to consider whether a person is required to shift or vacate the premises in question. If the premises was affecting the progress of the scheme after granting hearing to such persons it was open to the authority to issue appropriate directions to the persons concerned to vacate the premises. This Court also observed that the Competent Authority is not empowered to test the validity of the scheme or letter of intent issued.

16.

Mr. Thorat on the other hand also relied upon Division Bench decision of this Court in Om Vishwashanti Co-operative Housing Society Limited vs. The Chief Executive Officer, SRA [(2016) 0 Supreme (Mah) 1955] in which it was held that the scheme in question, that in respect of public lands of the Municipal Corporation the letter of intent could not stand in the way of development of public land i.e. the land belonging to Municipal Corporation specific NOC will be required from the Municipal Corporation before sanctioning the SRA Scheme on its property. The Corporation had not granted any NOC and that NOC is required for sanctioning the slum scheme and without NOC the scheme would not proceed. Mr. Thorat submitted that in the present case MHADA played a crucial factor. MHADA lands were involved and unless these lands were subjected to hearing by the Land Manager the entire process would be vitiated. 17.

I have heard the learned counsel for the parties at length and having considered the impugned order, in the light of submissions made by the counsel for the parties, I am unable to accept the contentions of the petitioners that the impugned order is unsustainable and that it calls for interference. The impugned order is a common order passed in a group of six appeals which has led to the filing of the present petitions. The order records that of 18 appeals filed, some appeals were adjourned on account of intervention applications filed on behalf of Hanuman Nagar Vikas Mandal in four appeals since society was not impleaded. The authority found no justification in excluding them from array of parties and intervention was allowed. Thus the societies federation was heard in these group of appeals.

18.

It is not in dispute that there were more than 1488 slum dwellers involved. It is the respondents contention that the process of hearing parties had already commenced before the Deputy Collector (Encroachment and Removal) and Competent Authority and therefore there is no occasion for the Land Manager of MHADA to hear the parties. In any event the Appellate Authority is the Additional Collector (Encroachment & Removal) Eastern Suburb and he had heard the appeal and there is no change in the constitution of this Authority. In my view all that needs to be seen is whether in the absence of an hearing being granted by the Land Manager, MHADA in the first instance, the entire process is to be set to naught. In this behalf it was submitted by Dr Saraf that once a provision of law had been acted upon, once an action had commenced, change of forum did not prevent pending action unless a contrary intention appear in this matter. 19.

In the course of submissions I called upon counsel to explain how the notification dated 5 th January, 2017 modified the earlier notification dated 23 rd August, 2016 since that notification dated 5 th January, 2017 seeks to amend Government notification Housing Department No. Zopasu-1203/C.R.186/2016 ZOPASU-1(1) dated 26 th August, 2016. whereas the notification relied upon by Mr. Thorat to show that the Deputy Collector (E & R) was competent authority prior to modification bears as a different number and date, The number of that notification is Zopasu.1203/CR-68/2016/Zopasu-1(1) dated 23 rd August, 2016. That apart from the date, there is also difference in the notification number. Although this matter was heard on different dates a copy of the notification contemplated in the

notification dated 5 th January, 2017 has not been produced. Be that as it may, the only question that arises and which requires some consideration is whether on account of the change in the Competent Authority the entire process is vitiated and whether and what effect there would have on the impugned orders. 20.

In this respect the order passed on 17 th March, 2018 clearly indicated that Lake View Developers was seized of the project and submitted that out of 1132 members 732 slum dwellers are held eligible and more than 70% had consented in favor of respondent no. 4/10- Lake View developers. The application was filed by 36 persons who were allegedly disgruntled and that there is no substance in the challenge. The respondent no. 4 relied upon Circular No.

167 dated 30 th December, 2015 issued by the Slum Rehabilitation Authority which clearly holds out that in respect of rehabilitation schemes in which certified Annexure II is received and 70% of the eligible slum dwellers had consented, the slum scheme shall not be stopped on account of pendency of the litigation or complaints in respect of title or development rights of the developer unless there is a specific order of injunction of any Competent Court of law. Further an undertaking-cumindemnity bond would have been to obtained from the developer stating that in the event of assignment of any right in respect of slum land to any party, of which cognizance has not been taken, while accepting the scheme such party will be compensated for its rights in accordance with provisions of the Slum Act. In the present case 70% had consented.

total number. My attention was drawn to a communication dated 11 th November, 2016 from SRA to Shri Sandeep Yevale one of the constituted attorneys of the petitioners with copy marked to Lake View Developers from which it is evident that Lake View developers is very much part of the development project. 21.

It is thus evident that Respondent no. 4 is very much involved in the project. The aspect of revocation of the Letter of intent by MHADA was not taken in the appeal and it has not been raised in the petition. The documents in the compilation indicate that Rock Spaces is not concerned with the project as all clearances were said to be obtained by Respondent no. 4. In view of the petitioners contention that only the Land Manager, MHADA could have heard the first Application, I sought assistance of Mr. Lad who was present in Court and who represents MHADA. He was called upon to file an affidavit vide Order dated 6 th October, 2018.

Two affidavits have been filed on behalf of MHADA first of which is the affidavit dated 11 th October, 2018 filed by the Land Manager of MHADA in which he submits that the occupants of the land had proposed redevelopment since the land was standing is in the name of MHADA, it was responsibility of MHADA to finalise the Annexure II and grant NOC for implementation of the redevelopment scheme to the authority which was implementing the scheme of the MHADA. The Chief Officer of MHADA had instructed the department to cancel the NOC on the Slum Redevelopment Area Scheme on the MHADA land, Accordingly all the projects which were implemented on MHADA lands were subjected to Show Cause Notices as to why no objection certificates granted should not be cancelled.

transpires that on 1 st December, 2014 a meeting was held by the Chairman, SRA to find a solution for redevelopment of 117 proposals of MHADA's and 96 proposals in respect of BMC lands since MHADA and BMC were then desirous of redeveloping their owned lands. The affidavit further goes on to say that vide resolution no. 6699 dated 25 th June, 2015 a decision was taken that Slum Redevelopment projects on MHADA lands were to be reassigned to the Slum Rehabilitation Authority for implementation under the Slum Scheme. The MHADA authorities had thus resolved the issue with the effect that all the Slum Redevelopment Projects on MHADA lands were to be returned to the Slum Rehabilitation Authority. A copy of the resolution no. 6699 dated 25 th June, 2015 is annexed to the affidavit.

22.

The affidavit further states that the proposal for cancellation of NOC initiated by MHADA was not pursued and dropped. The NOC granted by MHADA is valid and subsisting till date. That in the present case action under section 33 of the Slum Act was initiated by the Deputy Collector (Encroachment and Removal) in the year 2016 and it was confirmed and concluded since in the year 2015 powers of MHADA as Competent Authority had been withdrawn but this was re-notified on 5 th January, 2017 but thereafter by notification dated 26 th April, 2018 the powers for taking action under section 33 of the Slum Act were withdrawn from the MHADA and that in the instant case MHADA has not taken any action since action was already initiated by Deputy Collector (E & R) prior to notification.

23.

In a second affidavit filed on 17 th October, 2018 by the said Land Manager it is clarified that although vide letter dated 16 th November, 2007 MHADA informed the Society that the NOC had been cancelled, no intimation was given to SRA because there was a difference of opinion between MHADA and SRA and in a meeting said to have been held on 1 st December, 2014 under the chairmanship of the Chief Minister a decision was taken that the proposal of Slum Rehabilitation Scheme on MHADA's land should be forwarded to the Slum Rehabilitation Authority and a separate resolution has been passed on 25 th June, 2015. In the circumstances it is contended that letter dated 16 th November, 2007 was not acted upon and was required to be ignored. After receipt of the decision dated 1 st December, 2014 MHADA has finalised Annexure II and all the proposals are submitted to SRA. 24.

In view of this stand it becomes clear that MHADA is not of the view that MHADA had any objection to the Competent Authority Deputy Collector (Encroachment & Removal) hearing the matter and it is pertinent to mention affidavit on behalf of MHADA has been filed on behalf of the Land Manager makes no grievance in the instant case that the Dy Collector had no jurisdiction to hearing. The revocation was apparently contemplated since MHADA wanted to develop its own land a decision from which it later abandoned. MHADA does not have any objection to the development of the land and in that event there was no substance in the contention that because the land belonged to MHADA the Land Manager, MHADA was the only Competent Authority. The notification dated 5 th January 2017 empower additional persons to hear complaints and if the MHADA has not

objections in the instant case, the notification alone cannot be a reason to set aside the impugned order.

25.

Perusal of the common impugned order by Grievance Redressal Cell shows that all the persons were found eligible and the developer had made a proposal to proceed for removal of structures under section 33 and 38 of the Slum Act and it is after granting them opportunity of being heard that eviction order had been passed directing the appellant / petitioners to vacate. The petitioners in Appeal no. 523 of 2018 had decided to co-operate with the society and the developer. The submission of the petitioner that the aspect of revocation of MHADA NOC had not been raised, it has gone by the record. Rock Spaces Pvt. Ltd. is not concerned with the project and all NOC are obtained by Lake View. He submitted that challenge to the scheme is which was ongoing project was declined by the SRA and in view of the fact that 1488 persons 732 had vacated clearly indicated that considerable progress had been made.

26.

I have also had the benefit of perusing the written submissions made before the Grievance Redressal Cell in these appeals and in these submissions, the petitioners have not taken the aspects of the challenge to the Competent Authority. Revocation of NOC was also not raised and these aspects are now raised by way of an after thought. Initially when this matter was argued for admission, Senior Counsel for the petitioner Mr. Thorat submitted that the respondent were desirous of impleading one Rock Spaces Private Limited as party respondent, since according

to them the said company was a party before the Grievance Redressal Committee. This was accordingly allowed vide Order dated 25 th September, 2018. However, no amendment was carried out effectively no relief is sought against Rock Spaces Pvt. Ltd.

27.

The record reveals that the SRA on 28 th February, 2017, addressed a letter to Lake View Developers copy of which is filed along with this compilation which indicates that Lake View Developers had requested inclusion of name of Rock Spaces as Co-developers and that this was clearly approved by Chief Executive Officer, SRA and the Lake View Developers was instructed to submit General Body Resolution of the Society for inclusion of Rock Spaces Limited. In these circumstances it thus becomes evident that the initial intention to include Rock Spaces Pvt. Ltd. now appears to be given up since SRA would only add Rock spaces as a Co-developer if the General Body has passed appropriate resolution. However, that having been said it would be appropriate to ensure, in view of the submission made at the bar by Dr. Saraf and Mr.

Khandeparkar that only respondent no. 4 would now be entitled to proceed with this project and in the event of any proposal to bring in Rock Spaces or any other company or entity it would have to follow due process including obtaining appropriate resolutions of the General body as may be required by the Slum Rehabilitation Authority to protect the interest of all occupants of structures in the project.

28.

All other contentions raised by Mr. Thorat as to environment clearance aviation clearances etc shall all be looked into by the planning authority and in view of the fact that as set out in the affidavit in reply major approvals have been received, I find no merit in the challenge and in the result, I pass the following order :

(i) Writ petitions are dismissed. Dismissal of the Writ Petition will not prejudice the rights of the petitioners entitlement under the scheme. (ii) No order as to costs.

At this stage Mr. Thorat seeks protection against demolition. For the reasons recorded in the order, I find no reason to extend any protection especially since the petitioners are entitled to transit accommodation or rent as the case may be. Request is declined.

(A.K. MENON, J.)