Bombay High Court

Vivek Chandrakant Mayekar & Ors vs State Of Maharashtra & Ors on 19 December, 2012

Bench: Dr. D.Y. Chandrachud, A.A. Sayed

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                O. O. C. J.




                                                                                      
                         WRIT PETITION NO.1305 OF 2012




                                                             
    Vivek Chandrakant Mayekar & Ors.                     ...Petitioners.
                   Vs.
    State of Maharashtra & Ors.                          ...Respondents.
                       ....




                                                            
    Mr.Chirag Balsara with Ms.Asha Nair i/b. Divya Shah Associates for the
    Petitioners.
    Mr.A.B.Ketkar, AGP for Respondent No.1.
    Mr.G.S.Godbole with Mr.Vinod Mhadik and Ms.Aari Kamble for Respondent
    No.2.




                                                 
    Mr.Atul G.Damle for Respondent Nos.3 to 57.
                       .....
                                 
                       CORAM : DR.D.Y.CHANDRACHUD AND
                                A.A.SAYED, JJ.

December 19, 2012.

ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :

The challenge in these proceedings is to an order passed by the

Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)

Tribunal, Mumbai upholding the validity of a notification dated 26 February

2010 declaring certain lands as a slum area. The land in question, bears Plot

No.66, TPS-IV of Mahim Division of Dadar and admeasures 1929.78 sq.mtrs.

Since the land belongs to the Municipal Corporation of Greater Mumbai, the

original notification dated 26 February 2010 under Section 4(1) of the

Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act,

1971 was issued by the Assistant Commissioner, G-North Ward of the

Municipal Corporation. The Petitioners are 29 occupants of the land who

seek to question the legality of the order passed by the Tribunal.

2. The submissions which have been urged on behalf of the

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Petitioners are as follows:

(i) There are 76 occupants on the land for whom 16 toilets have

been provided together with independent water and electricity connections.

Consequently, the requirement for development of a slum under Section 4(1)

has not been fulfilled; (ii) Originally, the Assistant Commissioner, (Estates) of

the Municipal Corporation had rejected the proposal filed on 19 November

2007 by the proposed Co-operative Housing Society (Respondent No.54)

under DCR 33(9) on 21 August 2008 and it was after the intervention of a

Member of Parliament that the processing of the proposal under DCR 33(10)

was initiated; (iii) In the event that the development of the land takes place

under DCR 33(7), the occupants would be entitled to a minimum of 300 sq.ft.

in the redeveloped building upto a maximum of 700 sq.ft., whereas in the case

of a redevelopment under DCR 33(10) alternate accommodation to the extent

of 270 sq.ft. is provided; (iv) The competent authority ought to have given an

opportunity of a personal hearing to the Petitioners.

3. On the other hand, it has been urged on behalf of the Municipal

Corporation that (i) The title to the land vests in the Municipal Corporation and

the land has been reserved for housing the dishoused; (ii) The jurisdictional

requirement contained in Sub-section (1) of Section 4 for the development of

a land as a slum area has been duly established to the satisfaction of the

competent authority and several reports which are on the record would

indicate that there was a due application of mind to the nature of amenities

provided on the land to the occupants and to the health, safety and

convenience of the occupants; (iii) As a matter of fact, the structures on the

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land are not cessed A-Category structures and hence, a development under

DCR 33(7) could not be permissible. All the occupants are in occupation of

structures which are tolerated by the Municipal Corporation and they would

be entitled to alternate accommodation in the Scheme under DCR 33(10); (iv)

The scheme of Section 4 provides for a hearing before the Tribunal to

persons aggrieved by a declaration under Section 4(1) and as a matter of fact,

the Petitioners were heard in their challenge to the declaration of the slum.

There is no substance in the contention that the Petitioners would be entitled

to anything in excess of 300 sq.ft. under DCR 33(7)since there is no averment

to the effect that the Petitioners are in occupation of an excess area.

4. Counsel appearing on behalf of the Co-operative Housing Society

and the occupants at whose behest the redevelopment under DCR 33(10)

has been mooted, submitted that more than 70% of the occupants have

supported redevelopment under DCR 33(10) and the Petitioners are seeking

to obstruct that process. Counsel submitted that all the requirements of

Section 4(1) have been fulfilled and no prejudice has been demonstrated to

be caused to the Petitioners since they would be entitled to participate in the

Slum Rehabilitation Scheme, subject to eligibility.

5. Section 4(1) of the Act provides as follows:

"4(1) Where the Competent Authority is satisfied that -

(a) any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by reason of the area having inadequate or no basic amenities, or being insanitary, squalid, overcrowded or otherwise; or

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(b) the buildings in any area, used or intended to be

used for human habitation are -

(i) in any respect, unfit for human habitation; or

(ii) by reasons of dilapidation, overcrowding, faulty arrangement and design of such building, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or

convenience of the public of that area,

the competent Authority may, by notification in the Official Gazette, declare such area to be a slum area. Such declaration shall also be published in such other manner (as will give due

publicity to the declaration in the areas) as may be prescribed."

Under Sub-section (3) of Section 4, a person aggrieved by a declaration

under sub-section (1) has the remedy of an appeal before the Tribunal.

Under Sub-section (4) of Section 4, a procedure has been laid down under

which upon the presentation of an appeal, the Tribunal is required to publish a

notice in a newspaper calling upon the residents of the slum area to file their

objections, if any, to the appeal within fifteen days either individually or

through an association of the residents. Thereupon, under sub-section (5),

the Tribunal has to fix a day for hearing the appeal. The Tribunal upon

considering the objections submitted before it, is required to make an order

either confirming, modifying or rescinding the declaration. A comprehensive

procedure is provided by Section 4 and an opportunity of a hearing is

provided before the Tribunal. The importance of a publication of a notice by

the Tribunal has been underscored in a judgment of Hon'ble Mr.Justice R.M.

Lodha, J. (as His Lordship then was in this Court), in Ramniklalbhai V.Shah

vs. Maharashtra Slum Areas (Improvement, Clearance and

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Redevelopment) Tribunal.1

6. In the present case, there is no dispute about the fact that the

Tribunal has given a due opportunity of being heard to the Petitioners and

their objections to the declaration of the land as a slum area were heard.

Under Sub-section (1) of Section 4, the competent authority has to be

satisfied that any area is or may be a source of danger to the health, safety

and convenience of the public of that the area or its neighbourhood, by

reason of the area having inadequate or no basic amenities, or being

insanitary, squalid, overcrowded or otherwise. The record before the Court

indicates that there was due or proper application of mind to the jurisdictional

requirement of Section 4(1). The Petitioners have annexed a copy of the

note put up by the Assistant Commissioner, G-North Ward in which it was

stated as follows:

"This office has scrutinized the proposal and it is found that out of 74 occupants, 66 occupants are eligible. Out of these 66 eligible occupants, 47 occupants have given consent i.e. 71.21% eligible occupants have given consent to Pavansoot (SRA) Co-op, Hsg. Society (Proposed) to redeveloping the final plot under regulation

33(10) of D.C.Regulations 1991 for Greater Bombay.

The land bearing F.P.No.66 of TPS-IV of Mahim Division is inspected by the undersigned along with staff of Town Planning Department of G/N Ward and found that, the whole plot is encroached by the slum dwellers.

As per the A.A.& C. G/North's remarks, the structures on the F.P.No.66, TPS-IV, (Mahim) are prior to 61.62. All the above properties are non-cessed properties i.e. the structures on plot are not prior to 1940."

In regard to the position at site, the Assistant Commissioner made the

1 1996(5) Bom.C.R. 644

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following observations :

"That the land bearing F.P.No.66 of TPS-IV Mahim which is fully encumbered is source of danger to the health, safety and convenience of the residents because the area having inadequate

basic amenities i.e. insanitary, squalid, overloaded, lack of ventilation, light, detrimental to the health in that area. Then the said land is fit for declaring the "Slum Area".

On 8 December 2009, the Assistant Engineer (Maintenance), Dadar, G-North

Ward placed the following report on record following site inspection by the

office staff :

"1. The F.P. No.66, TPS-IV, Mahim is fully encumbered with the structures and overcrowded. The width of passage is very narrow resulting in lack of ventilation and light. The basic amenities such as sanitation facilities, storm water drain and width of passages

are also detrimental to the health, safety or convenience to the public of that area. The plot under reference is accessible from 20' wide T.P. Road from R.K. Vaidya Road/Ranade Road and 25' wide T.P. Road from N.C.Kelkar Road."

Following this, a notification was issued on 26 February 2010 by the

Assistant Commissioner, G-North Ward as competent authority recording that

the conditions required for a declaration under Section 4(1)(a) were duly

fulfilled. In this view of the matter, there is no tangible basis on which this

Court can come to the conclusion that the conditions which have been

specified in clause (a) of Sub-section (1) of Section 4 did not exist at site.

7. As regards the proposed redevelopment, it has been stated in the

report of the Assistant Commissioner, G-North Ward, dated 1 October 2009

that the structures are non-cessed. In any event, the jurisdiction of the

Tribunal was confined to determining whether the declaration under Section

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4(1) has been validly issued. Once the jurisdictional requirement of Section