Bombay High Court
Pant Nagar Mahatma Phule And 6 ... vs Maharashtra Housing And Area ... on 2 April, 2016
dssherla 1 wp-2162-15 & 1427-13-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1427 OF 2013
Pant Nagar Mahatma Phule
Co-op. Hsg. Society Ltd. & ors. .. Petitioners
Vs.
State of Maharashtra and ors. .. Respondents
AND
WRIT PETITION NO. 2162 OF 2015
Pant Nagar Mahatma Phule
Co-op. Hsg. Society Ltd. & ors. .. Petitioners
Vs.
Maharashtra Housing and Area
Development Authority and ors. .. Respondents
....................
Mr. A.V. Anturkar, Senior Advocate i/b Mr. Tushar Kochale for the
petitioners in both petitions.
Mr. M.V. More, Addl. GP for the respondent-State.
Mr. P. K. Dhakephalkar, Senior Advocate a/w. Mr. P.G. Lad and Ms
Murlidharan for respondent nos.1 to 3 in WP 2162/15 and for
respondent nos.3 and 4 in WP 1427/13.
Mr. J.G. Reddy for respondent No.4 in WP 2162/15 and for
respondent no.5 in WP 1427/13.
Mr. G.S. Gobdole a/w. Mr. S.B. Pawar and Ms Swati Sawant i/b
S.K. Legal Associates for respondent no.5 in WP 2162/15 and for
respondent no.6 in WP 1427/13.
Mr. V.A. Thorat, Senior Advocate a/w. S.B. Pawar and Ms Swati
Sawant i/ b S.K. Legal Associates for respondent no.6 in WP
2162/15 and for respondent no.7 in WP 1427/13.
.....................
1 of 58
::: Uploaded on - 02/04/2016 ::: Downloaded on - 03/04/2016 00:01:55 :::
dssherla 2 wp-2162-15 & 1427-13-J.doc
CORAM: D.H. WAGHELA, C.J. AND
M.S.SONAK, J.
Date of Reserving the Judgment : 28 March 2016.
Date of Pronouncing the Judgment : 02 April 2016.
JUDGEMENT: (Per M.S. Sonak,J.)
1] Rule in both the petitions. With the consent of and at the
request of learned counsel for the parties, Rule is made returnable
forthwith.
2] The Hon'ble Supreme Court by its order dated 1 October
2015 in petition for special leave to appeal arising out of Diary No.
30817 of 2015 has requested this Court to dispose of S.W.P. No.
1416 of 2015 (Lodging No.), which corresponds to Writ Petition
No. 2162 of 2015 within a period of six months, on its own merits
and uninfluenced by the orders impugned in the said petition for
special leave to appeal.
3] In these petitions, we are concerned with property bearing
CTS Nos.190/1 to 190/8 and 190/9 (pt.) situated at Pant Nagar
Ghatkopar (E), Mumbai-400 075, which is admittedly owned by
the Maharashtra Housing and Area Development Authority
(MHADA), a statutory authority constituted under the
Maharashtra Housing and Area Development Act, 1976 (MHADA
Act). There is however, a dispute between the contesting parties
as to whether the property bearing CTS No.190/9 (pt.)
admeasuring 4355 sq. mtrs., includes, the property bearing CTS
Nos. 190/1 to 190/8 or whether the property bearing CTS
2 of 58
::: Uploaded on - 02/04/2016 ::: Downloaded on - 03/04/2016 00:01:55 :::
dssherla 3 wp-2162-15 & 1427-13-J.doc
Nos.190/1 to 190/8 constitutes different and distinct property.
Therefore, unless indicated otherwise, the property bearing CTS
Nos.190/1 to 190/8 and CTS No.190/9 (pt.) shall hereinafter be
referred to as said property for sake of convenience.
4] There is no serious dispute that the MHADA is the owner of
the said property. By registered deed of lease dated 11 September
1995, MHADA has leased to Ghatkopar Septic Tank Gurukrupa
Co-operative Hsg. Society Ltd. (respondent no.5), property
described as bearing CTS No.190/9 (pt.) admeasuring 4355 sq.
mtrs at Pant Nagar, Ghatkopar (East). The lease deed makes
reference to Schedule-I as well as plan, in which the leased
property has been described and demarcated.
5] The petitioner no.1 claims to be a cooperative housing
society promoted by and having as its members petitioner nos.2 to
7. The petitioners, in their capacity as occupants of
structures/property which they describe as bearing CTS Nos.190/1
to 190/8, claim certain rights in respect thereof. The
structures/property had been earlier allotted by MHADA to its
eight sweepers/employees during the tenure of their service.
There is no proper documentation in the matter of such allotment.
The petitioners claim to have acquired possession and rights from
the said eight sweepers/employees. Again, there is no document
on record as to the basis of such acquisition. Upon being queried,
Mr. Anturkar, learned senior advocate for the petitioners, candidly
stated that the petitioners have no document in the matter of
3 of 58
::: Uploaded on - 02/04/2016 ::: Downloaded on - 03/04/2016 00:01:55 :::
dssherla 4 wp-2162-15 & 1427-13-J.doc
acquisition of rights or possession from the said eight
sweepers/employees, but he maintained that there is no dispute
with regard to the petitioners occupation of the
structures/property and further submitted that the rights of the
petitioners have been recognised by the MHADA vide office note
dated 22 June 2009 and letter dated 21 January 2015, to which
due reference will be made in the course of this judgment and
order.
6] The respondent nos.5 and 6 (society and developer) have
been issued approvals/sanctions for slum redevelopment scheme
over the property leased by MHADA to respondent no.5 vide
aforesaid registered lease deed dated 11 September 1995. The
said respondents, together with the authorities who have issued
such approvals/sanctions (remaining respondents) maintain that
the leased property, in respect of which the slum redevelopment
scheme has been sanctioned, though described at some places as
bearing CTS No.190/9 (pt.), includes within its sweep, the
structures/property bearing CTS Nos. 190/1 to 190/8 , which
position according to them, is clear from the reference to the
boundaries set out in Schedule-I appended to the registered lease
deed dated 11 September 1995 and the plan appended thereto.
The respondent nos.5 and 6 maintain that the statutory authorities
have quite correctly included the names of the
petitioners/occupants in Annexure-II (a statutory annexure
indicating the names of occupants eligible to avail the benefits of
slum redevelopment scheme) and further, since the petitioners/
4 of 58
::: Uploaded on - 02/04/2016 ::: Downloaded on - 03/04/2016 00:01:55 :::
dssherla 5 wp-2162-15 & 1427-13-J.doc
occupants have failed to vacate the structures/property in their
occupation, the authorities have rightly made orders for their
eviction by resort to the statutory provisions contained under the
Slum Areas (Improvement, Clearance and Redevelopment) Act,
1971 (Slum Act).
7] The petitioners, upon being served with notices under
section 33 of the Slum Act, seeking their eviction from the
structures/ property, initially instituted Writ Petition (L) No. 1185
of 2010 challenging the slum redevelopment scheme as well as
their inclusion in Annexure-II as occupants eligible to avail the
benefits of the scheme. During the pendency of the petition,
however, the petitioners instituted appeal bearing Appeal Nos. 680
of 2010 and 719 of 2010 under section 35 of the Slum Act to
question the notices under section 33 of the Slum Act and possibly
on the said basis, withdrew Writ Petition (L) No. 1185 of 2010.
The appeals were dismissed, inter alia, on the grounds of
maintainability.
8] The petitioners thereafter instituted BCCC Suit No. 2150 of
2010 in the City Civil Court, Mumbai seeking various reliefs in
relation to the slum redevelopment scheme, including inter alia
the following reliefs:
a] A declaration that a Letter of Intent (LOI) dated 6
February 2009 issued in favour of respondent no.5 society for
implementation of slum redevelopment scheme is illegal, null
and void;
5 of 58
::: Uploaded on - 02/04/2016 ::: Downloaded on - 03/04/2016 00:01:55 :::
dssherla 6 wp-2162-15 & 1427-13-J.doc
b] Declarations that MHADA and the Assistant Land
Manager had no authority to conduct survey in respect of the
said property and consequently, the issuance of Annexure-II
under DC Regulation 33(10) etc., is illegal, null and void;
c] Declarations that the inclusion of the names of the
petitioners in Annexure-II is illegal, null and void and for
directions to delete the same; and
d] Declarations that the LOI dated 6 February 2009 does
not include structures/property bearing CTS No. 190/1 to
190/8 in the occupation of the petitioners.
9] The City Civil Court Mumbai vide judgment and decree
dated 10 February 2012 rejected the plaint in BCCC Suit No. 2150
of 2010 inter alia citing the statutory bar contained in section 42
of the Slum Act, section 177 of MHADA Act, section 164 of the
Maharashtra Cooperative Societies Act, 1960 and section 149 of
the Maharashtra Regional & Town Planning Act, 1966 (MRTP).
10] The petitioners instituted First Appeal No. 382 of 2012 in
this Court to impugn the aforesaid judgment and decree dated 10
February 2012, which was dismissed on 1 December 2014. The
petition for Special Leave to Appeal (C) No(s). 1629-1630 of 2015
was withdrawn by the petitioners on 6 February 2015. The Civil
Application (Review) No. 2 of 2015 in First Appeal No. 382 of
2012 was dismissed on 27 April 2015.
11] The MHADA on 30 April 2015 and 7 May 2015, once again
6 of 58
::: Uploaded on - 02/04/2016 ::: Downloaded on - 03/04/2016 00:01:55 :::
dssherla 7 wp-2162-15 & 1427-13-J.doc
issued notices under section 33 of the Slum Act seeking eviction of
the petitioners, against which, the petitioners instituted writ
petition as well as Appeal Nos. 41 and 43 of 2015 before the
Additional Collector. The appeals were dismissed on 26 May 2015.
The petitioners, thereupon, instituted Writ Petition (L) No. 2605 of
2015 and Writ Petition No. 2042 of 2015, raising several
challenges to the slum redevelopment scheme as also the orders
directing the eviction of the petitioners from the
structures/property bearing CTS Nos.190/1 to 190/8.
12]
The Division Bench of this Court, by its judgment and order
dated 11 September 2015 dismissed the aforesaid Writ Petition (L)
No. 2605 of 2015 and Writ Petition No. 2042 of 2015 with costs
quantified at Rs.1 lakh in each of the petitions. The copy of
judgment and order dated 11 September 2015 was directed to be
placed in the papers and proceedings in Writ Petition (L) No. 1416
of 2015, i.e., the present petition now renumbered as Writ Petition
No.2162 of 2015, which the petitioners, in the meanwhile,
instituted before this Court.
13] The petitioners questioned the aforesaid judgment and order
dated 11 September 2015 before the Hon'ble Supreme Court by
lodging petition for special leave to appeal arising out of Diary No.
30817 of 2015. On 1 October 2015, the Hon'ble Supreme Court
has made the following order:
"UPON hearing counsel the Court made the following
O R D E R
Applications seeking exemption from filing certified as
7 of 58
dssherla 8 wp-2162-15 & 1427-13-J.doc
well as the plain copy of the impugned order stands disposed of
in view of the fact that the same has been filed along with
applications seeking permission to file the same. The impugned
judgment and order is taken on record and the unregistered
application seeking permission to file the same is allowed.
Applications seeking permission to place on record
additional facts and documents as well as to raise additional
questions of law and urging additional grounds are granted.
Applications seeking exemption from filing official
translation of Annexures P3, P8, P9, P13, P14, P16, P18, P27
and P30 is allowed.
Interim order shall remain in operation insofar as the
eight petitioners alone in this petition are concerned and the
respective lands which are in their possession as well as stay of
costs of Rs. 1,00,000/- (Rupees One lakh). As far as the rest of
the area is concerned, it is open to the respondents to proceed
with the development. In the meanwhile, we request the High
Court to dispose of the S.W.P. No. 1416 of 2015 (Lodging No.)
which in our view would cover the substantive rights claimed
by the petitioners as against the declared Census Slum Area, in
particular, the inclusion of the names of the petitioners in
Annexure-2. We only request the High Court to dispose of the
said writ petition within six months. Whichever Division Bench
which may decide the said Writ Petition, shall decide the same
on its own merits uninfluenced by whatever stated in the
impugned order.
The matters stand adjourned."
14] In view of the request made by the Hon'ble Supreme Court
that the present matter, i.e., Writ Petition No. 2162 of 2015 be
disposed of within six months, we have taken up these petitions
for final disposal.
15] We have heard learned senior advocates and advocates for
the parties at great length. We have perused the pleadings as well
as the materials placed on record by the parties. We now proceed
8 of 58
dssherla 9 wp-2162-15 & 1427-13-J.doc
to dispose of these petitions finally.
16] Mr. Anturkar, learned senior advocate for the petitioners, has
made the following four broad based submissions:
A] That by virtue of MHADA office note dated 22 June
2009 and MHADA letter dated 21 January 2015, the
petitioners, who are presently the owners of the structures
and "lessees in the pipeline" in respect of the property
bearing CTS Nos.190/1 to 190/8, are entitled to a writ of
mandamus directing the MHADA to execute conveyance
deed in favour of petitioner no.1, so that, the title of the
petitioners to the structures/property bearing CTS Nos.
190/1 to 190/18 stands perfected;
B] That the structures/property bearing CTS Nos. 190/1
to 190/8 in the occupation of the petitioners is different and
distinct from the leased property admeasuring 4355 square
meters bearing CTS No.190/9(pt.) and there is no basis
whatsoever to contend that the leased property bearing CTS
No. 190/9 (pt.) includes the property bearing CTS Nos.
190/1 to 190/8. On this fundamental basis, Mr. Anturkar
contended that respondent nos.5 and 6 can claim no right,
title or interest of whatsoever nature in the property bearing
CTS Nos. 190/1 to 190/8 in occupation of the petitioners
and further, a suitable declaration is liable to issue that all
the permissions, sanctions, NOCs, LOIs issued by the
statutory authorities, to the extent, they purport to include
9 of 58
dssherla 10 wp-2162-15 & 1427-13-J.doc
the structures/property bearing CTS Nos.190/1 to 190/8 in
the occupation of the petitioners are null, void and legally
unenforceable ;
C] That assuming without admitting that the structures/
property bearing CTS Nos. 190/1 to 190/8 in occupation of
the petitioners, is included in the property bearing CTS No.
190/9 (pt) leased by MHADA to respondent no.5, the said
property is neither a slum for the purposes of the Slum Act
nor for the purposes of Development Control Regulations for
Greater Mumbai, 1991, including in particular DCR 33(10).
Upon this premise, Mr. Anturkar contended that the very
sanction of a slum redevelopment scheme upon the said
property and the attempts to oust the petitioners, on the
basis of same, are acts without the authority of law, ultra
vires, null and void; and
D] The provisions of DCR 33(10), if interpreted correctly
permit approval of slum redevelopment schemes only in
slum areas as declared under the Slum Act or within
censused areas or slum rehabilitation areas. If the provisions
of DCR 33(10) are interpreted to permit the Slum
Rehabilitation Authority (SRA) to declare any area as "slum
area" even beyond the aforesaid areas, then the very
provision contained in DCR 33(10) is ultra vires its parent
Act, i.e., MRTP, including in particular the provisions
contained in section 22 (m) and section 159 of the MRTP
10 of 58
dssherla 11 wp-2162-15 & 1427-13-J.doc
and therefore, should be declared as such. Mr. Anturkar
contended that such wide interpretation, would render DCR
33(10) ultra vires Articles 14, 19 and 300-A of the
Constitution of India.
17] On basis of the aforesaid contentions, the petitioners have
applied for the following reliefs in Writ Petition No. 2162 of 2015 :
"A] That this Hon'ble Court be pleased to issue Writ of
Certiorari and or any other appropriate Writ, Order exercising
powers under Article 226 of the Constitution of India, 1950
holding that the inclusion of "Suit Premises" of the Petitioners
from Sr. No. 202 to Sr. No. 209 into Annexure-II dated
14.06.2010 in respect of the "Slum Rehabilitation Scheme"
approved by the SRA under the provisions of the MR & TP Act,
1966 and D.C. Regulation, 1991 is based on fraud, it is illegal,
null, void, violates the fundamental rights of the Petitioners
under Article 14, 19, 21 of the Constitution of India, 1950 and
this Hon'ble Court be pleased to quash and set aside the said
inclusion of Suit Property belonging to the Petitioner No.1
(Pant Nagar Mahatma Phule CHSL) from the List of Annexure
II dated 14.06.2010 and LOI dated 06.02.2009 issued by the
SRA claiming powers of "Commissioner" under D.C.
Regulation, 1991.
B] That this Hon'ble Court be pleased to issue Writ of
Certiorari and or any other appropriate Writ, Order under
Article 226 of the Constitution of India, 1950 holding the
approval of the Layout and Building Plans by the SRA as
"Commissioner" in respect of the "Suit Property" of the
Petitioner No.1 (Mahatma Phule CHSL) under Regulation Nos.
5, 6, Appendix X of D.C. Regulation, 1991 and u/s 337 of the
MMC Act, 1888 as illegal, null, void and this Hon'ble Court be
pleased to quash and set aside all the building plans/layout
approved by the SRA under D.C. Regulation, 1991 and the
MMC Act, 1888 in respect of the Petitioners "Suit Property" in
all manners.
11 of 58
dssherla 12 wp-2162-15 & 1427-13-J.doc
C] That this Hon'ble Court be pleased to issue Writ of
Mandamus and or any other appropriate Writ or Order under
Article 226 of the Constitution of India, 1950 directing the
MHADA to proceed in furtherance of its letter dtd. 21.01.2015
for execution of Conveyance Deed of the "Suit Property" in
favour of Petitioner No.1 (Mahatma Phule CHSL).
D] Pending the hearing and final disposal of this Petition,
this Hon'ble Court be pleased to stay the effect,
implementation, operation of Sr. No. 202 to 209 of the
Annexure- II and LOI dated 06.02.2009 approved by the SRA
under the D.C. Regulation and the MR & TP Act, to the extent
it affects the "suit property" of the petitioners, in all manners.
E]
Ad-interim and interim relief in terms of prayer clause
[D] above may be awarded in favour of the Petitioners;
F] Cost of this Petition be provided for;
G] And for such further orders as the justice and
convenience may demand on time to time, be passed in favour
of the Petitioners;"
18] Similarly, in Writ Petition No. 1427 of 2013, the petitioners
have applied for the following reliefs:
"A] That this Hon'ble Court exercising powers under Article
226 of the Constitution of India, 1950 may be pleased to
quash and set aside the provisions under Regulation No. 33
(10) (Annexure) (II) (i), (ii), (iii), (iv) of Development
Control Regulation for Greater Mumbai, 1991 in as much as
these provisions provide jurisdiction to Slum Rehabilitation
Authority in contravention to provisions contained u/s. 2(19)
of the MR & TP Act r/w. Notification 13.09.1996 issued by the
State Government and the provisions contained u/s. 354AAA
of the MMC Act, 1888.
B] Pending the hearing and final disposal of this Petition,
this Hon'ble Court may be pleased to stay the effect, operation
12 of 58
dssherla 13 wp-2162-15 & 1427-13-J.doc
and implementation of Regulation No. 33 (10) (Annexure)
(II), (i), (ii), (iii), (iv) of Development Control Regulation for
Greater Mumbai, 1991in respect of the "Suit Property" in all
manner.
C] Ad-interim, interim relief in terms of prayer clause [B]
may be granted in favour of the Petitioners and against the
Respondents ;
D] And for such other orders as this Hon'ble Court may
deems fit and proper to pass in the interest of justice in the
given fact and circumstances of the case."
19]
The MHADA, through its Executive Engineer, has filed
affidavit-in-reply pointing out that the application for de-
registration of the petitioners-society is pending before the
Regional Joint Sub-Registrar of Cooperative Society, Mumbai. The
slum redevelopment scheme has been approved qua the property
bearing CTS No. 190/9 (pt.), which includes the
structures/property bearing CTS Nos. 190/1 to 190/8. In this
regard, reliance is placed upon the plan issued by the City Survey
Office dated 18 October 2006 and communication dated 28 April
1995. The affidavit points out that the eight original allottees, who
were sweepers in the MHADA had no right or authority to transfer
their tenements and the petitioners can therefore, claim no right
on the basis of such transfer. The affidavit points out that the
petitioner no.1 society comprises in all seven persons, out of which
five are from a single family. Notwithstanding all this, since the
petitioners have claimed occupation and since the
structures/property bearing CTS Nos.190/1 to 190/8 is a part of
leased property bearing CTS No. 190/9 (pt.) , the names of the
13 of 58
dssherla 14 wp-2162-15 & 1427-13-J.doc
petitioners/occupants were included in Annexure-II, so as to
enable them to avail the benefits of slum redevelopment scheme.
The challenges to the slum redevelopment scheme and the
inclusion of the petitioners therein have been rejected by various
authorities and such rejection has attained finality. For all these
reasons, it was contended that these petitions be dismissed.
20] The MHADA's affidavit also specifically states that the letter
dated 21 January 2015 (incorrectly referred to as letter dated 21
January 2001) was issued through "oversight". The mistake was
rectified by issuance of letter dated 22 May 2015, which cancels
the earlier letter dated 21 January 2015. The affidavit also raises a
dispute as to authenticity of signature of Executive Engineer on
the plan annexed to letter dated 7 April 2010, upon which,
reliance has been placed by the petitioners. Finally, the affidavit in
no uncertain terms asserts that the structures/property bearing
CTS No. 190/1 to 190/8 have neither been conveyed nor leased to
the petitioners, but rather, the same are a part of the property
already leased to respondent no.5 and the subject matter of the
various permissions, approvals, NOCs and LOIs for the execution
of the slum redevelopment scheme.
21] Respondent no.5 has also filed affidavit-in-reply disputing in
entirety, the case set out by the petitioners. Respondent no.5 has
pointed out that the scheme comprises in all, 209 beneficiaries
(eligible occupants), out of which, almost 86 occupants have
already vacated their tenements and shifted to temporary
14 of 58
dssherla 15 wp-2162-15 & 1427-13-J.doc
alternate accommodation, for which, expenditure of almost Rs.76
lacs per year is borne. Respondent no.5 has further pointed out
that even the remaining eligible occupants, except, the seven
petitioners are willing to shift to temporary alternate
accommodation, but have refrained from doing so due to the
various litigations instituted by the petitioners. Respondent no.5
has pointed out that the petitioners have, by instituting vexatious
proceedings, held the entire slum redevelopment scheme to
ransom and this Court exercising extraordinary jurisdiction under
Articles 226 and 227 of the Constitution of India, ought not to
lend any assistance whatsoever to the petitioners in such
misadventure.
22] The rival contentions now fall for determination.
23] The petitioners are quite aware that presently, they hardly
have any rights, much less legal rights in respect of the
structures/property bearing CTS Nos.190/1 to 190/8, on basis of
which they seek to build their superstructure of challenges, not
just to the slum redevelopment scheme, but also the very
provisions of law which sanction such slum redevelopment
schemes. That is the reason why the petitioners, vide prayer clause
(C) in Writ Petition No. 2162 of 2015 have prayed for issue of writ
of mandamus under Article 226 of the Constitution of India,
directing the MHADA to proceed in furtherance of its letter dated
21 January 2015 for execution of the conveyance deed in favour
of petitioner no.1. The petitioners recognize that such relief
15 of 58
dssherla 16 wp-2162-15 & 1427-13-J.doc
constitutes the foundational relief, without which, the petitioners
can hardly aspire to build their superstructure, in the form of the
several reliefs claimed by them in these petitions.
24] As noted earlier, the eight structures/properties are
admittedly owned by the MHADA, which had allotted them to its
eight sweepers/employees upon terms, which are by no means
clear. The MHADA in its affidavit-in-reply has made reference to
certain statutory rules to suggest that the allottees/employees had
no right or authority to transfer the possession, much less any
rights in favour of the petitioners. The petitioners have also not
placed on record any documents with regard to the acquisition of
possession or the so called rights in respect of the said eight
structures/properties from the original allottees. Mr. Anturkar,
learned senior advocate for the petitioners, submitted that there is
no such document readily available. In a city like Mumbai, it is
difficult to imagine that the allottees/employees, simply hand over
the possession of the structures/property without any
documentation or in any case, without receipt of substantial
consideration. Obviously, the petitioners do not wish to disclose
their transaction with the eight original allottees/employees and
to this extent, it is quite clear that the petitioners have not been
candid with the Court, even though, they seek equitable reliefs.
Suffice to note that the petitioners claim right or title to the
structures/properties without there being or without they
producing any documents, whether registered or unregistered in
the context of acquisition of possession or rights from the
16 of 58
dssherla 17 wp-2162-15 & 1427-13-J.doc
erstwhile allottees/employees of the MHADA. The very entry of
the petitioners in the structures/property is therefore, quite in the
realm of doubts.
25] The petitioners however, on the basis of MHADA's office note
dated 22 June 2009 and MHADA's letter dated 21 January 2015,
in all seriousness, claim the status of "lessees in the pipeline" and
on the basis of these documents seek a writ of mandamus
directing the MHADA to execute a conveyance in their favour. In
effect, the petitioners virtually seek a decree of specific
performance from this Court in the guise of claiming a writ of
mandamus.
26] The MHADA's office note dated 22 June 2009, upon which,
great emphasis has been placed by the petitioners, reads thus:
"No. MB/1116 of 2009
Date : 22/6/2009
OFFICE NOTE :
Subject : Conveyance of the Chawl No.1, consisting of 8 Ts.
Under the E.W.S. scheme at Pant Nagar,
Ghatkopar in favour of Mahatma Phule Co. Op.
Housing Society Ltd.
I have to report that the Mahatma Phule Co-operative Housing
Society Ltd. have paid all the dues in respect of above chawl
including the final sale price for the Bldg. and premium of the
land.
1 Final sale price of the
Chawl Rs.1,03,080/-
2. Charges for common services
are paid up to March-2010
The rate of charges of
Common services payable by
The said society is
17 of 58
dssherla 18 wp-2162-15 & 1427-13-J.doc
Rs.95 x 8T/S x 3 months = Rs.2280/-
3. Lease Rent paid upto
March-2010. The rate of
the lease rent payable
by the said society is
Rs.192/- per annum.
Rs.2 x 2 T/S x 12 months = Rs.192/-
4. N.A. Assessment paid upto
March-2010. The rate of
N.A. Assessment payable by
the said society is Rs.574/-
per Tenement/per annum
Rs.6/- x 8T/S x 12 months = Rs.576/-
Whether Municipal Taxes
Are paid up to date (in case
The society is paying the
Municipal taxes directly paying directly
to the B.M.C. the same to the M.C.G.M.
Stated and accordingly. W.e.f. Oct.-2001.
5. Date of allotment 3-1-1995
6. Date of Handing over of
Pump House and under
Ground tank to the Common
Society.
It is confirmed that no litigation with the Board involving the
society or/and its any member is pending. So also there are no
court order/injunction restraining the Board from conveying
the above said building or any tenement and from leasing the
land.
There is no objection whatsoever to convey the Building and
lease the land to the above said society.
A :- Triplicate Tenants list.
Sd/-
Estate Manager,
M.H. & A.D.B. Bombay.
To,
Shri. P.C. Suryawanshi
The Dy. Community Development Officer
18 of 58
dssherla 19 wp-2162-15 & 1427-13-J.doc
Estate Manager (I),
M.H.& A.D. Board, Mumbai 400 051.
To,
Secretary,
Mahatma Phule Co-op. H.S.L.
Pantnagar, Ghatkopar (East),
Mumbai- 400 015."
27] Although, the MHADA has not dealt with the office note
dated 22 June 2009 in its affidavit, Mr. Dhakephalkar, learned
senior advocate for MHADA, submitted that the opinion expressed
by the Estate Manager of MHADA in the office note can never be
elevated to the level of any "decision of MHADA". He submitted
that the MHADA and its officials are required to function under
the provisions of MHADA Act to be read with Maharashtra
Housing and Area Development (Estate, Management, Sale,
Transfer and exchange of Tenements) Regulation, 1981 and the
Maharashtra Housing and Area Development (Disposal of Land)
Regulation, 1982. In terms of these regulations, an Estate Manager
has no power to deal with or dispose of MHADA's land or
immovable properties. He submitted that the land or immovable
properties can be disposed of in terms of Regulation 16 on the
basis of directions issued by the State Government and vide orders
to be made by the prescribed competent authorities.
28] As noted earlier, MHADA is a statutory authority established
under MHADA Act. In matters of disposal of its property, MHADA
is bound by rules and regulations referred to herein above. The
petitioners were unable to point out any provisions under
19 of 58
dssherla 20 wp-2162-15 & 1427-13-J.doc
MHADA Act or the rules and regulations referred to herein above,
which empower an Estate Manager to take any decision in the
matter of disposal of immovable property belonging to MHADA.
Besides, the petitioners were unable to point out that any
provisions under which the Estate Manager was authorised even
to issue any communication to the petitioners, so as to bind the
MHADA. Based therefore, upon office note dated 22 June 2009,
the petitioners cannot draw any undue mileage or seek a writ of
mandamus.
29]
Admittedly, the office note dated 22 June 2009, upon which,
the petitioners have placed so much emphasis is only an "office
note" or rather an "interdepartmental memo", by which, Estate
Manager has expressed his opinion or made some report to his
superiors. Such "office note" or "interdepartmental memo" can
never be elevated to the level of any "decision of MHADA" . The
"office note" or "interdepartmental memo" is only expression by an
officer of his view point on the subject. There is no question of any
party attempting to seek enforcement on the basis of such "office
note" or "interdepartmental memo".
30] In Sethi Auto. Service Station and anr. Vs. Delhi
Development Authority and ors. - (2009) 1 SCC 180, a plea of
legitimate expectation based mainly upon office notings and
communications of / between government agencies was turned
down by the Hon'ble Supreme Court by holding that notings in a
departmental file do not have sanction of law to be an effective
20 of 58
dssherla 21 wp-2162-15 & 1427-13-J.doc
order. The relevant observations in paragraphs 13 and 14 read
thus:
"13. Thus, the first question arising for consideration is
whether the recommendation of the Technical Committee vide
minutes dated 17-5-2002 for resitement of the appellants'
petrol pumps constitutes an order/decision binding on DDA?
14. It is trite to state that notings in a departmental file do
not have the sanction of law to be an effective order. A noting
by an officer is an expression of his viewpoint on the subject. It
is no more than an opinion by an officer for internal use and
consideration of the other officials of the department and for
the benefit of the final decision-making authority. Needless to
add that internal notings are not meant for outside exposure.
Notings in the file culminate into an executable order, affecting
the rights of the parties, only when it reaches the final decision-
making authority in the department, gets his approval and the
final order is communicated to the person concerned."
(emphasis supplied)
31] In Shanti Sports Club and anr. Vs. Union of India - (2009)
15 SCC 705, though, in the context of provisions contained in
Articles 77 and 166 of the Constitution of India, the Hon'ble
Supreme Court dealing with the contention based upon "notings
in the file" made the following observations:
"42. This means that unless an order is expressed in the name
of the President or the Governor and is authenticated in the
manner prescribed by the rules, the same cannot be treated as
an order on behalf of the Government.
43. A noting recorded in the file is merely a noting
simpliciter and nothing more. It merely represents expression of
opinion by the particular individual. By no stretch of
imagination, such noting can be treated as a decision of the
Government. Even if the competent authority records its opinion
21 of 58
dssherla 22 wp-2162-15 & 1427-13-J.doc
in the file on the merits of the matter under consideration, the
same cannot be termed as a decision of the Government unless
it is sanctified and acted upon by issuing an order in accordance
with Articles 77(1) and (2) or Articles 166(1) and (2). The
noting in the file or even a decision gets culminated into an
order affecting right of the parties only when it is expressed in
the name of the President or the Governor, as the case may be,
and authenticated in the manner provided in Article 77(2) or
Article 166(2). A noting or even a decision recorded in the file
can always be reviewed/reversed/overruled or overturned and
the court cannot take cognizance of the earlier noting or
decision for exercise of the power of judicial review."
(emphasis supplied)
32] In State of Bihar and ors Vs. Kripalu Shankar and ors. -
(1987) 3 SCC 34, the Hon'ble Supreme Court sounded a note of
caution in dealing with the internal file of the Government. At
paragraph 30, it is observed thus:
"30. Before parting with this case we would like to observe
the need for restraint and care in dealing with the internal files
of the Government. We have already indicated its privileged
position and limited areas where exposure is permissible of the
notings in the file. This is not to say that absolute privilege can
be claimed of its exposure and protection from the view of the
courts. But what is to be borne in mind is that the notings in the
departmental files by the hierarchy of officials are meant for the
independent discharge of official duties and not for exposure
outside. In a democracy, it is absolutely necessary that its steel
frame in the form of civil service is permitted to express itself
freely uninfluenced by extraneous considerations. It might well
be that even orders of court come in for adverse remarks by
officers dealing with them, confronted with difficult situations to
straightway obey such orders. Notings made on such occasions
are only for the benefit of the officers concerned. When a
subordinate official commits a mistake higher official will
always correct it. It is necessary for courts also to view such
notings in the proper perspective. In this case, the court, after
22 of 58
dssherla 23 wp-2162-15 & 1427-13-J.doc
looking into the notes file could have passed appropriate orders
giving relief to the affected party and expressing its displeasure
at the manner in which its order was implemented instead of
initiating action on the notings made in the file. That way the
court would have enhanced its prestige".
(emphasis supplied)
33] In view of the aforesaid, we can neither elevate the office
noting dated 22 June 2009 to the status of some final decision of
the MHADA nor can we issue a writ of mandamus directing the
MHADA to execute a conveyance in favour of the petitioner no.1,
in pursuance of the same.ig
34] The next document upon which the petitioners lay emphasis
is MHADA's letter dated 21 January 2015, which reads thus:
"Outward No. :- Dy.C.O/L. M/M.B/89/2014
Date : 21/01/2015
To,
Chairman,
Mahatma Phule Co-operative Housing Society
Chawl No.1, Room No.1 to 8,
Mumbai 400 077.
Subject :- Regarding immediate conveyance of your
building/Chawl on ownership basis in name of
your Co-operative Society.
Sir,
In the colonies under Mumbai Housing and Area
Development Board, Conveyance of Buildings/Chawls is done
in favour of Co-operative Housing Societies. If you have not
taken conveyance of your building so far, that is beneficial to
be done immediately for your co-operative Housing Society.
For filling proposal of conveyance, following documents are
necessary.
23 of 58
dssherla 24 wp-2162-15 & 1427-13-J.doc
1. Registration Certificate of Co-operative Housing society.
2. Proposal passed by your society for taking conveyance of
your Co-operative Housing Society.
3. List of authorised occupants of your premises and no
dues certificate.
4. C.T.S. No., Property card, Survey No, MAP and Technical
information.
For taking conveyance expeditiously, for obtaining no due
certificate, for payment of due amount, if any obstruction is
there, you can submit indemnity bond with land manager and
you can pay the due amount within further one year. On
timely conveyance of your Co-operative Housing Society,
building/Chawl becomes on ownership rights of Co-operative
Housing Society.
Similarly lease agreement of concerned land also comes in the
name of your society. Similarly, if you want to further proceed
for redevelopment of your building, it gets expedited.
Therefore, if you have not so far obtained conveyance of your
Co-operative Housing Society of building/Chawl, immediately
file your proposal along with above stated documents at below
named office.
Dy. Chief Officer (Land Management)
Room No.201, 1st Floor,
GrihanirmanBhavan,
Mumbai.
Yours faithfully,
Sd/-
Chief Officer
Mumbai Housing and Area Development Board Mumbai."
24 of 58
dssherla 25 wp-2162-15 & 1427-13-J.doc
35] The MHADA, in its affidavit-in-reply, has clearly stated that
such letter was issued by way of "oversight". Mr. Dhakephalkar,
learned senior advocate for MHADA, submitted that the MHADA is
a large organization and unfortunately the right hand is unaware
of what the left hand is up to. Besides, Mr. Dhakephalkar
submitted that the communication dated 21 January 2015 signed
by the Chief Officer of MHADA, can hardly be regarded as any
communication binding upon the MHADA, particularly because
the same is not backed by any other resolution or authority from
the MHADA. Upon detection of oversight, necessary amends have
been made and communication dated 22 May 2015 has been
issued to withdraw, cancel or rescind the letter dated 21 January
2015. The petitioners have not challenged the communication
dated 22 May 2015. In any case, there is no ground made out to
challenge the same. Based upon the MHADA's letter dated 21
January 2015, therefore, the petitioners cannot seek a writ of
mandamus to direct the MHADA to execute conveyance.
36] The petitioners have themselves neither produced nor relied
upon any documents other than the office note dated 22 June
2009 and MHADA's letter dated 21 January 2015. The petitioners
contend that these documents contain admissions with regard to
the rights and title of the petitioners to the structures/property
bearing CTS Nos.190/1 to 190/8 and on basis thereof, therefore,
the petitioners are entitled to writ of mandamus to direct the
MHADA to execute suitable conveyance in their favour. We are
unable to accept such contentions for several reasons.
25 of 58
dssherla 26 wp-2162-15 & 1427-13-J.doc
37] In the first place, as noted earlier, the office note dated 22
June 2009 or the MHADA's letter dated 21 January 2015 cannot
be made the basis for claim to any rights or title, considering in
particular the legal status of such office note and MHADA's letter.
Secondly, the office note dated 22 June 2009 and the MHADA's
letter 21 January 2015 contain no admissions as such with regard
to any rights or title of the petitioners to the structures/property
bearing CTS Nos. 190/1 to 190/8 as claimed by the petitioners.
Thirdly, and most importantly, we must clarify that aspects like
admission, waiver, acquiescence or estoppel are by no means
sufficient to confer any rights or title upon the petitioners. If, in
law, a person does not possess or acquire title, the same cannot be
vested in him, only by reason of admission, acquiescence or
estoppel on the part of other. In Kamakshi Builders Vs.
Amebedkar Educational Society and ors - (2007) 12 SCC 27, at
paragraphs 23 to 25, the Hon'ble Supreme Court has observed
thus:
"23. Acquiescence on the part of Respondent 3, as has been
noticed by the High Court, did not confer any title on
Respondent 1. Conduct may be a relevant fact, so as to apply
procedural law like estoppel, waiver or acquiescence, but
thereby no title can be conferred.
24. It is now well settled that time creates title.
25. Acquisition of a title is an inference of law arising out of
certain set of facts. If in law, a person does not acquire title, the
same cannot be vested only by reason of acquiescence or
estoppel on the part of other."
(emphasis supplied)
38] Similarly, in CanBank Financial Services Ltd. Vs.
Custodian and ors. - (2004) 8 SCC 355, the Hon'ble Supreme
26 of 58
dssherla 27 wp-2162-15 & 1427-13-J.doc
Court has held that title in a property connotes a bundle of rights.
Subject to prohibitory or regulatory provisions in the statute, such
rights are capable of being transferred. The extinction in right,
title and interest in property must be caused as a result of
operation in law and not otherwise. The creation of title by an act
of parties, is subject to law. Once a title vests in a person, he
cannot be divested there from except by reason of or in
accordance with statute and not otherwise. An admission does
not create a title ; the logical corollary whereof would be that an
admission of a party would not lead to relinquishment of right
therein, if he has otherwise acquired the title in the property.
39] On the basis of office note dated 22 June 2009 and
MHADA's letter dated 21 January 2015, therefore, the petitioners
have failed to establish any present right or title with regard to
structures/property bearing CTS Nos.190/1 to 190/8. So also, on
the basis of such documents, the petitioners have failed to
establish any legal right to obtain a lease or a conveyance from
MHADA in respect of the structures/property bearing CTS
Nos.190/1 to 190/8. The petitioners have also failed to establish
that there exists any corresponding statutory or even contractual
duty upon the MHADA to execute any lease deed or conveyance in
favour of the petitioners. Since, the petitioners have failed to
establish these crucial parameters, a writ of mandamus directing
the MHADA to execute lease deed or conveyance in their favour,
cannot be issued.
27 of 58
dssherla 28 wp-2162-15 & 1427-13-J.doc
40] The law with regard to issuance of writ of mandamus is
substantially settled. Mandamus is not a writ of right and is not
granted as a matter of course. Such writ may be refused unless the
applicant establishes a clear legal right in himself coupled with a
statutory duty in the respondent and where there is no alternate
and efficacious remedy available to such applicant 1. Mandamus is
an equitable remedy and will not be issued on mere technical
grounds or to effectuate, promote or perpetuate injustice. A writ of
mandamus will not issue where more harm than good will result
from its issuance.
41] The petitioners seeking writ of mandamus have to satisfy the
following conditions:
a] That they have some legal right ;
b] That there is a corresponding legal duty upon the
respondents;
c] That they have no other alternate or efficacious
remedy;
d] That they have made a demand for justice, which
demand has been unduly refused; and
e] That the writ is applied for in utmost good faith ;
42] In Mani Subrat Jain Vs. State of Haryana - 1977 (1) SCC
486, the Hon'ble Supreme Court has held that there must be a
judicially enforceable right for the enforcement of which a
mandamus will lie. The legal right to enforce the performance of
1 Mansukhlal Vs. State of Gujarat (1997) 7 SCC 622 & Union of India Vs. S.B. Vohra 2004 (2)
SCC 150
28 of 58
dssherla 29 wp-2162-15 & 1427-13-J.doc
the duty must be in the applicant himself. In general, therefore,
the Court will only enforce the performance of statutory duty by
public bodies on application of a person, who can show that he
has himself a legal right to insist on such performance. No
petitioners can ask for a mandamus without a legal right. The
existence of a right is a foundation of jurisdiction of a Court to
issue a writ of mandamus.
43] In the present case, the petitioners have not established that
they have any legal right to obtain conveyance from the MHADA.
The petitioners have also not established the basis upon which
they claim and that there is some legal duty upon the MHADA to
execute conveyance in their favour. Although, a writ of mandamus
is normally not issued for enforcement of purely contractual
obligations, in the present case, the petitioners have not even
established that the MHADA is contractually obliged to execute
any conveyance in their favour. The petitioners virtually seek to
hold to ransom the progress in the slum redevelopment scheme,
which is to benefit over two hundred slum dwellers. As noted
earlier, a writ of mandamus will not be granted where more harm
than good will result from its issuance. If it appears that
application for mandamus is really on behalf of some third party,
the writ will be refused. The writ will also not be granted, if
designed to harass the respondents with a view to settle personal
grievances. Applying, all these principles to the facts and
circumstances of the present case, we find that the prayer seeking
29 of 58
dssherla 30 wp-2162-15 & 1427-13-J.doc
writ of mandamus directing MHADA to execute conveyance, is
quite misconceived and the same is therefore, rejected.
44] Mr. Anturkar then contended that the structures/ property
bearing CTS Nos.190/1 to 190/8 admeasuring about 958.75 sq.
meters, is a property distinct and different from the property
bearing CTS No.190/9 (pt.) admeasuring 4355 sq. meters, which
has been leased by MHADA to respondent no.5. Elaborating
further, Mr. Anturkar contended that the slum redevelopment
scheme is and can be restricted only to such leased property and
cannot extend to the structures/property bearing CTS Nos.190/1
to 190/8, which is in the occupation of the petitioners. Mr.
Anturkar, on such basis, contended that the permissions,
sanctions, NOCs, LOIs etc. issued by the statutory authorities, to
the extent, they purport to include the structures/property bearing
CTS Nos.190/1 to 190/8 are, therefore, liable to be declared as
null, void and legally unenforceable.
45] Mr. Anturkar submitted that the registered lease deed dated
11 September 1995 makes reference only to the property bearing
CTS No.190/9 (pt.) and not to the structures/property bearing
CTS Nos.190/1 to 190/8. He submitted that the
structures/property bearing CTS Nos.190/1 to 190/8 have been
issued separate survey documents and this was not necessary, in
case, the structures/property were a part of the property bearing
CTS No. 190/9 (pt.). He submitted that the leased property
bearing CTS No. 190/9 (pt.) is said to admeasure 4335 sq. meters
30 of 58
dssherla 31 wp-2162-15 & 1427-13-J.doc
and if the structures/property bearing CTS Nos.190/1 to 190/8
admeasuring 958.78 sq. meters were included in the leased
property, the same would admeasure 4355 + 958.75 = 5313.75
sq. meters. He submitted that the names of eight sweepers/
employees of MHADA, who are the predecessor-in-title of the
petitioners find no mention in the annexures to the registered
lease deed dated 11 September 1995 and this is an indication that
the structures/property bearing CTS Nos.190/1 to 190/8
admittedly held by such sweepers/employees was excluded from
the leased property. He also submitted that the office note dated
22 June 2009 and MHADA's letter dated 21 January 2015 were
issued precisely because structures/property bearing CTS
Nos.190/1 to 190/8 constitute properties different and distinct
from the leased property bearing CTS No. 190/9 (pt.). On basis of
all this, Mr. Anturkar contended that this Court may hold and
declare that the structures/property bearing CTS Nos.190/1 to
190/8 is a different and distinct property independent of and not
forming a part of the leased property bearing CTS No. 190/9 (pt.).
46] At the outset, we must state that adjudication upon the
aforesaid contention would involve adjudication upon disputed
questions of fact. Normally, the extraordinary jurisdiction under
Articles 226 and 227 of the Constitution of India is not to be
resorted for the purpose of adjudication into disputed questions of
fact. In Bokaro & Ramgur Ltd. Vs. State of Bihar - AIR 1963 SC
516, the petitioner filed a writ petition alleging that he was the
owner of the property in question and the authorities had no
31 of 58
dssherla 32 wp-2162-15 & 1427-13-J.doc
power or jurisdiction to initiate any proceedings under the Bihar
Land Reforms Act, 1950 and the initiation of such proceedings
was ultra vires. Dismissing the petition, the Hon'ble Supreme
Court observed thus:
"The question whether the petitioner has any right to the
property which it claims depends wholly on questions of fact
which are plainly within the jurisdiction of the authorities
constituted under the Bihar Land Reforms Act. Before a party
can complain of an infringement of his fundamental right to
hold property he must establish that he has title to that property
and if his title itself is in dispute and is the subject of
adjudication in proceedings legally constituted, he cannot
obviously put forward any claim based on his title until as a
result of that enquiry he is able to establish his title. It is only
thereafter that the question whether his rights in or to that
property have been improperly or illegally infringed could
arise."
47] In the context of the scope of writ jurisdiction in matters
under the Slum Act, particularly, in the context of adjudication of
private rights and disputed questions of fact, the Full Bench of this
Court in Tulsiwadi Navnirman Co-op. Housing Society Ltd. and
anr. Vs. State of Maharashtra - 2007 (6) Mh.L.J. 851, at
paragraphs 96 and 97, had observed thus:
"96. Thus, what emerges from these decisions is that :-
a) There are self-imposed restrictions on the exercise
of plenary and constitutional powers.
b) They are not be exercised for the asking and
merely because it is lawful to exercise them.
c) They are not meant to replace the ordinary remedy
of a civil suit or statutory remedy.
d) The powers under Article 226 will not be exercised
in cases involving serious dispute about the right to
claim the relief in writ jurisdiction. If such issues or
32 of 58
dssherla 33 wp-2162-15 & 1427-13-J.doc
questions are to be determined and decided by elaborate
examination of evidence.
e) Lastly, the power will not be exercised to facilitate
avoidance of contractual obligations voluntarily
incurred.
97. This much, according to us, is enough to bring home the
point that writ jurisdiction is not the only remedy available to
aggrieved parties, even while questioning the actions and
inactions of the authorities in charge of implementation of
rehabilitation schemes under the Slum Act and the D.C.
Regulations. It is well settled that all actions of Public Bodies
or those involving public bodies are not necessarily of public
character. More so, when some of them involve private
participation or concern acts undertaken jointly by a Public
Authority and Private Operator. It cannot be assumed straight
away that whenever they are participating in such scheme or
measures, by the very nature of their participation, the duties
and functions which are performed and discharged by them
assume a public law character. It is not disputed before us that
the functions and duties of these authorities are performed by
them with the assistance of private entities. The same is
envisaged and contemplated by the Act and Rules. Some
incentives are provided to such private parties if they perform
or fulfil the public function. Therefore, whenever, their actions
are impugned or challenged, merely because public bodies are
also involved does not mean that all of them are amenable to
writ jurisdiction. There are several disputes and questions
which may also involve public bodies but if their resolution is
not possible in the limited jurisdiction, then, recourse to
private law remedies is permissible and should be insisted
upon."
48] Mr. Anturkar, however, submitted that the petitioners had
already instituted a civil suit, but the plaint therein was rejected
on account of statutory bar contained in the Slum Act, the MHADA
Act, the Maharashtra Cooperative Societies Act and the MRTP. He
33 of 58
dssherla 34 wp-2162-15 & 1427-13-J.doc
submitted that in Writ Petition No. 1427 of 2013, the petitioners
have questioned the constitutional validity of DCR 33 (10), for
which, the petitioners have no other remedy, other than the
institution of a writ petition. He also submitted that the
documents sufficient for adjudication of issues raised are already
on record and considering that the Hon'ble Supreme Court in its
order dated 1 October 2015 has requested this Court to dispose of
the writ petition on its own merits, the petitioners may not, at this
stage, be relegated to avail alternate remedies, if any, before the
High Power Committee or otherwise.
49] The petitioners, whether deliberately or otherwise, chose to
combine the issues concerning their alleged private rights
alongwith their challenges to statutory sanctions, permissions etc..
As a result, the statutory bar in the respective statutes referred to
hereinabove was attracted and the petitioners plaint came to be
rejected. The petitioners, on the basis of misjoinder of alleged
causes of action, multifariousness and without compliance with
statutory requirements have virtually invited the rejection of their
plaint. In these circumstances, at least the petitioners, cannot
claim any equities or indulgences in their favour. Be that as it may,
since, the petitioners claim that the issues raised by them can be
established by them on the basis of documents on record, we have
proceeded to examine the contentions raised by and on behalf of
the petitioners, on the basis of documents on record.
34 of 58
dssherla 35 wp-2162-15 & 1427-13-J.doc
50] Since the petitioners seek to make some point on the basis of
registered lease deed dated 11 September 1995, it was the duty of
the petitioners to annex a certified or at least a true copy of the
complete deed to the petition. The petitioners have however,
annexed only a truncated copy of the lease deed. The crucial plan
which accompanies the lease deed, was in fact, suppressed by the
petitioners. Despite assurance that the same will be produced as
the arguments proceeded, neither the complete copy of the lease
deed nor the plan was produced by the petitioners. Instead, the
petitioners entire attempt was to raise certain doubts in the
context of the original lease deed shown to us by the learned
counsel appearing for respondent nos. 5 and 6 in the present
petitions. Such suppression or such conduct is sufficient to dis-
entitle the petitioners any relief in exercise of extraordinary and
equitable jurisdiction under Articles 226 and 227 of the
Constitution of India. However, we do not propose to base our
decision on this score.
51] Ultimately, Mr. Madan K. Gala, Secretary and Authorised
Signatory of respondent no.5 has filed an affidavit to place on
record a colour photocopy of the registered lease deed dated 11
September 1995. In the said affidavit, it is clearly stated that
respondent no.5 society has obtained certified copy of the lease
deed on 23 March 2016 and even in the said lease deed, the plan
is duly annexed indicating that the structures/property, which the
petitioners claim, is a part of leased property.
35 of 58
dssherla 36 wp-2162-15 & 1427-13-J.doc
52] The final arguments in these matters concluded on 28 March
2016. By that date, despite assurances, the petitioners did not
produce the true and complete copy of the registered lease deed
dated 11 September 1995, even though repeated opportunities
were granted to them. On 30 March 2016, however, Mr. Tushar
Kochale purporting to appear for the petitioners mentioned the
matter for the purposes of filing an affidavit of Sunder Singh
Lubana, Secretary of petitioner no.1. In this affidavit, the
allegations have been made to the effect that the copy of
registered lease deed produced by and on behalf of respondent
no.5, under the cover of affidavit of Mr. Madan K. Gala, is not a
genuine copy, but rather the same is forgery. There are allegations
with regard to subsequent interpolations made upon the said
document. There are allegations in the context of the plan
appended to the lease deed. There are allegations with regard to
boundaries of the leased property. Alognwith the affidavit, the
deponent has produced certified copy of the lease deed dated 11
September 1995. It is stated that the said lease deed was enclosed
by one Mr. Milind Kadam, Secretary of respondent no.5 in Notice
of Motion No. 3105 of 2010 in L.C. Suit No. 2150 of 2010 before
the Bombay City Civil Court and that the deponent has obtained
certified copy from the Bombay City Civil Court on 28 March
2015.
53] We do not appreciate the conduct of the petitioners in not
annexing the true and complete copy of the registered lease deed
dated 11 September 1995 alongwith their petitions. In fact, the
36 of 58
dssherla 37 wp-2162-15 & 1427-13-J.doc
petitioners, as noted earlier, have suppressed the plan annexed to
the lease deed, possibly because the same would weaken the
petitioners' claim that the structures/property bearing CTS Nos.
190/1 to 190/8 do not form a part of the leased property bearing
CTS No. 190/9(pt). In the affidavit tendered on 30 March 2016,
there is a statement that the certified copy, inter alia, of the lease
deed had been obtained by the petitioners on 28 March 2015. If
this be so, the suppression, assumes quite serious proportion. In
any case, it was the duty of the petitioners to have annexed
alongwith petition the true and complete copy of the registered
lease deed. Rather, the entire approach of the petitioners is to
themselves not produce any true and complete documents, but
thereafter, pick holes in the documents produced by the
respondents. We may at this stage, however, make reference to the
following observations of the Hon'ble Supreme Court in S.P.
Chengalavaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By
Lrs. and ors. - (1994) 1 SCC 1, which read thus:
"5. The High Court, in our view, fell into patent error. The
short question before the High Court was whether in the facts
and circumstances of this case, Jagannath obtained the
preliminary decree by playing fraud on the court. The High
Court, however, went haywire and made observations which are
wholly perverse. We do not agree with the High Court that
"there is no legal duty cast upon the plaintiff to come to court
with a true case and prove it by true evidence". The principle of
"finality of litigation" cannot be pressed to the extent of such an
absurdity that it becomes an engine of fraud in the hands of
dishonest litigants. The courts of law are meant for imparting
justice between the parties. One who comes to the court, must
come with clean hands. We are constrained to say that more
often than not, process of the court is being abused. Property-
37 of 58
dssherla 38 wp-2162-15 & 1427-13-J.doc
grabbers, tax-evaders, bank-loan-dodgers and other
unscrupulous persons from all walks of life find the court-
process a convenient lever to retain the illegal-gains indefinitely.
We have no hesitation to say that a person, who's case is based
on falsehood, has no right to approach the court. He can be
summarily thrown out at any stage of the litigation."
"6. .......... We do not agree with the observations of the
High Court that the appellants- defendants could have easily
produced the certified registered copy of Ex. B-15 and non-
suited the plaintiff. A litigant, who approaches the court, is
bound to produce all the documents executed by him which are
relevant to the litigation. If he withholds a vital document in
order to gain advantage on the other side then he would be
guilty of playing fraud on the court as well as on the opposite
party."
54] The allegations of fraud, forgery, interpolations, now
recklessly made in the affidavit dated 30 March 2016, obviously,
cannot be gone into at this highly belated stage and in these
proceedings. In the context of the lease deed dated 11 September
1995, the petitioners have initiated several litigations in the past.
The petitioners, from time to time, have been confronted with the
defence, inter alia, based upon the registered lease deed dated 11
September 995 that the structures/property bearing CTS Nos.
190/1 to 190/8 is part and parcel of the leased property. In such
circumstances, if indeed, the petitioners, had any serious and
genuine grievances in the context of the registered lease deed
dated 11 September 1995, then, the minimum that was expected
from the petitioners was to annex a true and complete copy
thereof to the petitions and thereafter, make reference to their
grievances and grounds in relation to the same. Instead, the
38 of 58
dssherla 39 wp-2162-15 & 1427-13-J.doc
petitioners, chose to suppress the true and complete copy of the
deed. Thereafter, despite opportunities, the petitioners chose not
to produce the true and complete copy of the registered lease
deed. At this belated stage, therefore, we are unable to either
appreciate or entertain the allegations of fraud, forgery and
interpolations.
55] We note that the lease deed dated 11 September 1995 is a
registered document. There is no dispute between the executants,
i.e., lessor-MHADA and lessee-respondent no.5 that the leased
property includes the structures/property bearing CTS No. 190/1
to 190/8. The plan annexed to registered lease deed, substantially
bears out this position. In K.S. Nanji and Co. Vs. Jatashankar
Dossa and ors. - AIR 1961 SC 1474, the Hon'ble Supreme Court
has held that a map referred to in a lease should be treated as
incorporated in the lease and as forming part of the said
document. The boundaries prescribed in Schedule-I appended to
the registered lease deed also bear out this position. The
presumptions that normally go with registered document of this
nature, cannot be simply wished away by the petitioners on the
basis of certain alleged admissions or commitments made in office
note dated 22 June 2009 or MHADA's letter dated 21 January
2015, which in any case stands withdrawn.
56] Further, even MHADA alongwith its affidavit-in-reply has
produced a plan issued by the City Survey Office on 18 October
2006, which again indicates that the structures/property bearing
39 of 58
dssherla 40 wp-2162-15 & 1427-13-J.doc
CTS No.190/1 to 190/8 form a part of larger property bearing
CTS No.190/9 (pt.). This affidavit also states that the boundaries
referred to in registered lease deed dated 11 September 1995 and
the boundaries as indicated in the city survey plan tally upon the
inclusion of structures /property bearing CTS Nos.190/1 to 190/8
within the boundaries of larger property bearing CTS No. 190/9
(pt.).
57] Reference is also required to be made to communication
dated 28 April 1995 addressed by the Deputy Chief Officer,
MHADA to respondent no.5, in the context of inclusion of "eight
structure owners" or "eight MHADA sweeper workers" in the slum
redevelopment scheme. Mr. Anturkar, no doubt, raised certain
issues with regard to translation of this document and contended
that the correct translation would reveal that only an option was
given to the eight sweepers to join the scheme of redevelopment,
if they so desire. At this stage, we are not prepared to accept any
such contentions. The communication dated 28 April 1995, when
considered alongwith several other circumstances, at least
establishes that some condition was imposed upon respondent
no.5 in the matter of inclusion of eight MHADA sweeper workers,
in the scheme of slum redevelopment scheme. In case, the
structures/property held by such eight MHADA sweeper workers
were intended to be outside the leased area, there was no reason
to impose such condition upon respondent no.5.
40 of 58
dssherla 41 wp-2162-15 & 1427-13-J.doc
58] The petitioners have hardly produced any documents of
their own, but have only relied upon the office note dated 22 June
2009, MHADA's letter dated 21 January 2015 and survey
documents in relation to structures/property bearing CTS
Nos.190/1 to 190/8. The legal status of the office note dated 22
June 2009 and MHADA's letter dated 21 January 2015 has already
been considered earlier. In any case, MHADA's letter dated 21
January 2015 has since been withdrawn by letter dated 22 May
2015. The survey documents are not documents of title. In fact,
the survey documents suggest that the area of the
structures/property bearing CTS Nos.190/1 to 190/8 is in the
range of 22.1 to 24.1 sq. meters each, thereby totaling to about
182.3 sq. meters or thereabouts. This circumstance by itself,
contradicts the petitioners assertion that the structures/ property
bearing CTS Nos. 190/1 to 190/8 admeasures around 958.75 sq.
meters. The petitioners, in any case, have failed to make good this
assertion on the basis of any documentary evidence or other
material on record.
59] The petitioners have hardly produced any documents to
make good their contentions and their entire attempt was to pick
holes in various documents produced by the respondents,
including in particular, the MHADA. Mr. Dhakephalkar, learned
senior advocate appearing for MHDA, whilst disowning some of
the letters purported to have been addressed on behalf of MHADA
or whilst disputing the authority of some of the officers of MHADA
in putting up office notes or addressing letters, conceded that
41 of 58
dssherla 42 wp-2162-15 & 1427-13-J.doc
there are occasions in the MHADA, where, the right hand does not
know what the left hand is doing. Whilst this may be the
unfortunate position in a statutory body like MHADA, we must
observe that the MHADA must not only be careful whilst
addressing letters, but must also initiate enquiry and take
appropriate action against all those found indulging into
unauthorised correspondence with private parties. As a result of
such correspondence, not only valuable judicial time is wasted,
but further, the implementation of the slum redevelopment
scheme has been unduly protracted. The petitioners, however,
have to either stand or fall on basis of the case pleaded by them
and the petitioners cannot seek to derive any undue advantage on
the basis of some correspondence or even the weakness in the
defence raised by the respondents. By this, we do not suggest any
weakness in the defence raised by the respondents.
60] In Union of India and ors. Vs. Vasavi Cooperative Housing
Society Ltd. ad ors.- (2014) 2 SCC 269, the Hon'ble Supreme
Court has held that even in a suit for declaration of title and
possession, the burden is upon the plaintiff to establish its case,
irrespective of whether the defendants prove their case or not. In
absence of establishment of its own title, the plaintiff must be non-
suited, even if the title set up by the defendants is found against
them. The weakness of the case set up by the defendants cannot
be a ground to grant relief to a plaintiff. The Hon'ble Supreme
Court has also held that entries in revenue record can never
confer any title. The relevant observations in paragraphs 15,17,18,
42 of 58
dssherla 43 wp-2162-15 & 1427-13-J.doc
19 and 21, read thus:
"15. It is trite law that, in a suit for declaration of title, the
burden always lies on the plaintiff to make out and establish a
clear case for granting such a declaration and the weakness, if
any, of the case set up by the defendants would not be a ground
to grant relief to the plaintiff.
16. ....
17. At the outset, let us examine the legal position with
regard to whom the burden of proof lies in a suit for declaration
of title and possession. This Court in Moran Mar Basselios
Catholicos v. Thukalan Paulo Avira (AIR 1959 SCC 31)
observed that: (AIR p. 37, para 20)
20. ...... in a suit [for declaration] if the plaintiffs are to
succeed they must do so on the strength of their own
title."
18. In Nagar Palika, Jind v. Jagat Singh ((1995) 3 SCC
426) this Court held as under: (SCC p. 427c)
"The onus to prove title to the property in question was
on the plaintiff-respondent. .... In a suit for ejectment
based on title it was incumbent on the part of the court
of appeal first to record a finding on the claim of title to
the suit land made on behalf of the plaintiff. The court is
bound to enquire or investigate that question first before
going into any other question that may arise in a suit."
19. The legal position, therefore, is clear that the plaintiff in
a suit for declaration of title and possession could succeed only
on the strength of its own title and that could be done only by
adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have proved
their case or not. We are of the view that even if the title set up
by the defendants is found against (sic them), in the absence of
establishment of the plaintiff's own title, the plaintiff must be
non-suited.
20. .....
21. This Court in several judgments has held that the
revenue records do not confer title. In Corpn. of the City of
Bangalore v. M. Papaiah ((1989) 3 SCC 612) this Court held
that: (SCC p. 615, para 5)
43 of 58
dssherla 44 wp-2162-15 & 1427-13-J.doc
"5. It is firmly established that the revenue records are not
documents of title, and the question of interpretation of a
document not being a document of title is not a question of
law."
In Guru Amarjit Singh v. Rattan Chand ((1993) 4 SCC 349)
this Court has held that: (SCC p. 352, para 2)
"2. that entries in the Jamabandi are not proof of title."
In State of H.P. v. Keshav Ram ((1996) 11 SCC 257) this Court
held that: (SCC p. 259, para 5)
"5. an entry in the revenue papers by no stretch of
imagination can form the basis for declaration of title in
favour of the plaintiffs."
ig (emphasis supplied)
61] Therefore, upon cumulative consideration of the aforesaid
facts and circumstances, including, but not restricted to the
inferences that can be legitimately drawn from the contents of the
registered lease deed dated 11 September 1995, the description of
the leased property contained therein, the plan annexed
therewith, the plan issued by City Survey Office on 18 October
2006, the communication dated 28 April 1995, the survey
documents, and upon applying the test of preponderance of the
probabilities, we are satisfied that the structures/property bearing
CTS Nos. 190/1 to 190/8 is a part of leased property bearing CTS
No. 190/9 (pt.). The second contention of Mr. Anturkar, therefore,
fails and is hereby rejected.
62] Mr. Anturkar then submitted that even if structures/property
bearing CTS Nos.190/1 to 190/8 are held to be a part of leased
property bearing CTS No.190/9 (pt.), since, the leased property is
neither a 'slum' for the purposes of Slum Act nor 'slum' for the
44 of 58
dssherla 45 wp-2162-15 & 1427-13-J.doc
purposes of DCR 33(10), therefore, the very sanction of slum
redevelopment scheme upon the said property was illegal, ultra
vires, null and void.
63] Mr. Anturkar pointed out that in Annexure-II, which is one
of the important documents by which the slum redevelopment
scheme came to be sanctioned, there is reference to the said
property being "censused slum colony on MHADA records". Mr.
Anturkar, however, made reference to communication dated
communication dated 20 May 2010 issued by Assistant Land
Surveyor-Cum-Public Information Officer, MHADA, in which, he
has categorically informed one of the petitioners that the slums at
C.S. Nos. 190/1 to 9 at Mauje Ghatkopar, Pant Nagar, are not
censused as per the records of Mumbai Board/MHADA.
64] Mr. Anturkar, relying upon the decision of the Hon'ble
Supreme Court in State of Punajb Vs. Bandeep Singh & ors. -
(2016) 1 SCC 724, submitted that an administrative authority
cannot be permitted to travel beyond the stand adopted and
expressed by it in the impugned action. Such stand cannot be
varied by filing affidavits or such stand cannot be construed in the
light of explanation subsequently given. Applying this principle,
Mr. Anturkar contended that once it is established that the said
property is not the "censused slum colony on MHADA records", the
said property does not qualify as a slum either for the purposes of
Slum Act or for the purposes of DCR 33(10).
45 of 58
dssherla 46 wp-2162-15 & 1427-13-J.doc
65] Mr. Anturkar is right in his submission that the said property
has not been declared as a "slum area" under section 4 of the Slum
Act. However, in our opinion, this makes no difference, as the
slum redevelopment scheme in the present case has been
sanctioned under DCR 33(10). Annexure-II appended to DCR
33(10) defines the expression "slum, pavement and structure of
hut" and as long as the said property complies with such definition,
the slum redevelopment scheme sanctioned under DCR 33(10),
cannot be faulted. The exhaustive definition in Annexure-II to
DCR 33(10) reads thus:
"II.
Definitions of Slum, Pavement, and structure of hut. -
(i) For this purpose, slums shall mean those censused or
declared and notified, in the past or hereafter under the
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971. Slum shall also mean
areas/pavement stretches hereafter notified as Slum
Rehabilitation Areas [or deemed to be and treated]
(ii) If any area, fulfills the conditions laid down in section 4
of the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 to qualify as slum area and has been
censused or declared and notified shall be deemed to be and
treated as Slum Rehabilitation Area.
(iii) Slum rehabilitation area shall also mean any area
declared as such by the Slum Rehabilitation Authority though
preferably fulfilling the conditions laid down in section 4 of the
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 to qualify as slum area and/or
"required for implementation of any slum rehabilitation
project". [Any area where a project under the Slum
Rehabilitation Scheme has been approved by CEO/SRA shall be
deemed slum rehabilitation area]".
(iv) Any area required or proposed for the purpose of
construction of temporary or permanent transit camps and so
approved by the Slum Rehabilitation Authority shall also be
46 of 58
dssherla 47 wp-2162-15 & 1427-13-J.doc
deemed to be and treated as Slum Rehabilitation Areas, and
projects approved in such areas by the Slum Rehabilitation
Authority shall be deemed to be Slum Rehabilitation Projects.
(v) A pavement shall mean any
Municipal/Government/Semi-Government pavement and shall
include any viable stretch of the pavement as may be considered
viable for the purpose of Slum Rehabilitation Scheme.
(vi) A structure shall mean all the dwelling areas of all
persons who were enumerated as living in that one numbered
house in the electrol roll of the latest date, upto 1 st January
1995 and regardless of the number of the persons or location of
rooms or access.
(vii) A composite building shall mean a building comprising
both rehab and freesale components or parts thereof in the same
building.
(viii) Censused shall mean those slums located on lands
belonging to Government, any undertaking of Government, or
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 1 January 1995.
(emphasis supplied)
66] The expression "slum, pavement and structure of hut" has
been exhaustively defined in Annexure-II to DCR 33(10). The
same includes not only slums which may have been censused or
declared and notified in the past under the Slum Act, but also
means areas/pavements, stretches which may hereafter be notified
as slum rehabilitation areas or "deemed to be and treated". Further,
if any area, fulfills the condition laid down in section 4 of the
Slum Act to qualify as "slum area" and has been censused or
declared and notified shall be deemed to be and treated as slum
rehabilitation area. Similarly, slum rehabilitation area shall also
mean any area declared as such by the Slum Rehabilitation
Authority (SRA) though preferably fulfilling the conditions laid
47 of 58
dssherla 48 wp-2162-15 & 1427-13-J.doc
down in section 4 of the Slum Act to qualify as "slum area" and/or
"required for implementation of any slum rehabilitation project".
Further, any area where a project under the slum rehabilitation
scheme has been approved by CEO/SRA shall be deemed slum
rehabilitation area. Any area required or proposed for the
purposes of construction of temporary or permanent transit camps
and so approved by SRA shall also be deemed to be and treated as
slum rehabilitation area, and projects approved in such areas by
the SRA shall be deemed to be slum rehabilitation projects. The
annexure goes on to define expressions like "pavement",
"structure", "composite building" and "censused".
67] In Om Sai Darshan Cooperative Housing Society (supra),
the Division Bench of this Court has clearly ruled that neither
declaration of a particular area as a slum area under section 4 of
the Slum Act, nor issuance of notification under section 3C (1) of
the Slum Act declaring any area "slum rehabilitation area" is a
sine-qua-non for the purposes of sanction of a slum redevelopment
scheme under DCR 33(10). In paragraphs 19 and 20, the Division
Bench of this Court has observed thus:
"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
48 of 58
dssherla 49 wp-2162-15 & 1427-13-J.doc
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 II 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
49 of 58
dssherla 50 wp-2162-15 & 1427-13-J.doc
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."
(emphasis supplied)
68] In the context of slum redevelopment scheme sanctioned
under DCR 33(10), the Division Bench of this Court in Amba
Chawl Wadi Rahiwasi Seva Sangh Vs. Municipal Corporation of
Greater Mumbai & ors. - 2005 (3) ALL MR 889 = 2005 BCI
230, turned down the plea that issuance of notification under
section 4 of the Slum Act was a sine-qua-non, without which the
provisions under the Slum Act for the eviction of the non-
cooperating occupants cannot be applied. In paragraphs 7 and 8,
this Court has observed thus:
"7. Development Control Regulation 33(10) permits
redevelopment of slums whose inhabitants names and structures
appear in the electoral roll prepared on or before 1.1.1995. A
slum has been defined in 33(10)II to mean those areas which
have been censused or declared and notified in the past or under
the Slum Act after it was enacted in 1971. Therefore, a slum is
not just an area which has been declared a slum under section 4
of the Slum Act. The issuance of a notification under section 4
of the Slum Act is not a prerequisite for an area to be considered
a slum rehabilitation area. Censused slums have also been
defined as those which are located on lands belonging to the
government or any undertaking of the government or the
Brihanmumbai Municipal Corporation and which have been
censused in 1976, 1980, 1985 or prior to 1.1.1995. There is no
dispute that the present area is owned by the Corporation. Nor
is there any dispute that the slums located thereon have been
censused prior to 1995.
8.
The submission made on behalf of the Petitioners that
the provisions of the Slum Act cannot be invoked unless there is
50 of 58
dssherla 51 wp-2162-15 & 1427-13-J.doc
a declaration made under section 4 that the area is a slum area,
is without merit. The provisions of sections 33 and 38 of the
Slum Act have been invoked by the Respondents in order to evict
the slum dwellers from the area which is a censused slum. It is
only the machinery which is available under the Slum Act that
is being utilised for the purposes of removing the occupants
from a land which is declared a slum area. In fact under the
D.C. Regulations steps can be taken to evict those hutment
dwellers who do not join a rehabilitation project willingly. The
provisions clearly stipulate that if the hutment dwellers do not
join the scheme within 15 days after a slum rehabilitation
project has been approved, then action under the provisions of
the Slum Act including sections 33 and 38 as amended from
time to time can be taken against the hutments. All those who
do not join the project lose the right to any built up tenament
and their tenament can be taken over by the slum rehabilitation
authority and can be used for accommodating those slum
dwellers from other slums who cannot be accommodated in situ.
The Corporation on 24.5.1996 issued a letter of "no objection"
after verifying the proposal of Respondent No.3 for
rehabilitation of the slum area. After completion of various
other formalities the Slum Rehabilitation Authority approved
the project on certain terms and conditions. The impugned
orders have been passed after the slum rehabilitation project
was approved by the Slum Rehabilitation Authority (SRA).
Factually what has been done is recourse taken to the provisions
of sections 33 and 38 of the Slum Act for the purposes of
implementing the development plan or project undertaken
under D.C. Regulations in relation to a censused area. That
being permissible in law, mere use of machinery provided under
the Slum Act cannot be faulted. Therefore, there is no substance
in the contentions of the petitioners that without a notification
under section 4 of the Slum Act the provisions of the Act cannot
be used at all."
[emphasis supplied]
69] In light of the aforesaid, we see no merit whatsoever in Mr.
Anturkar's third contention premised upon the absence of slum
51 of 58
dssherla 52 wp-2162-15 & 1427-13-J.doc
declaration under section 4 of the Slum Act. In the present
petitions, although, there is some dispute as to whether the said
property is a censused slum area, there is no dispute whatsoever
that the CEO/SRA has approved a slum redevelopment scheme in
and upon the said property. Considering the exhaustive definition
of the expression "slum, pavement and structure of hut" in
Annexure-II to DCR 33 (10), including the legal fiction employed
therein, we are unable to accept Mr. Anturkar's contention that the
said property in and upon which the CEO/SRA has approved a
redevelopment scheme, is not included within the exhaustive
definition of the expression.
70] The principle in Bandeep Singh (supra), is really not
attracted to a matter of this nature. In any case, once the
material on record establishes without doubt that the said property
qualifies as a "slum" for purposes of DCR 33 (10), then, mere
reference to some incorrect sub-clause, is by no means sufficient to
attract the principle laid down in Bandeep Singh (supra) or to
upset the slum redevelopment scheme sanctioned for the benefit
of over 200 slum dwellers at the behest of the petitioners, who
have failed to establish any legal rights in themselves.
71] Since, the petitioners have failed to establish any present
legal right or title in respect of structures/property bearing CTS
Nos. 190/1 to 190/8 and further since we have declined to issue a
writ of mandamus to MHADA to execute conveyance in respect of
the structures/property bearing property CTS Nos. 190/1 to 190/8
52 of 58
dssherla 53 wp-2162-15 & 1427-13-J.doc
in favour of the petitioners, we do not deem it either necessary or
appropriate to entertain any challenge to the constitutional
validity of DCR 33(10) at the behest of such petitioners. The
petitioners have also failed in establishing that the said property is
not a slum and therefore, no slum redevelopment scheme could
ever have been sanctioned in respect of the same. Since the
petitioners have failed to secure the foundational reliefs, there is
no question of entertaining a challenge to the constitutional
validity of DCR 33 (10) at their behest. The Court will pronounce
upon the constitutionality only when it is necessary for the
decision of a case to do so. In Hari Prasad Mulshankar Trivedi
vs V. B. Raju and ors. AIR 1973 SC 2602, the Hon'ble Supreme
Court has held that it is a wise tradition with Court not to
adjudicate a constitutional question unless it is absolutely
necessary to disposal of the case in hand. Accordingly, in the
peculiar facts and circumstances of the present case and in the
light of our findings that the petitioners have no right or title in
respect of the structures/property bearing CTS Nos. 190/1 to
190/8, we do not deem it necessary or appropriate to decide Mr.
Anturkar's last contention relating to the constitutional validity of
DCR 33(10).
72] In the present case, the petitioners, whose names have been
included in Annexure-II have been held as eligible to avail the
benefits of the slum redevelopment scheme in or upon the said
property. These benefits inter alia include temporary alternate
accommodation or compensation in lieu of temporary alternate
53 of 58
dssherla 54 wp-2162-15 & 1427-13-J.doc
accommodation during the period between the vacation of the
structures/property and the allotment of permanent alternate
accommodation once the scheme is completed. Mr. Anturkar
however, submitted that the petitioners are not desirous of
participating in the slum redevelopment scheme or availing the
benefits thereof, because, the petitioners intend to themselves
develop the structures/property bearing CTS Nos. 190/1 to 190/8
under DCR 33(5) which will give them tenements of additional
area and further, the petitioners intend to retain the locational
advantage of road frontage, which they presently possess.
73] The aspiration of the petitioners to themselves develop the
structures/property bearing CTS Nos. 190/1 to 190/8 despite
having failed to establish any right or title in respect of the same is
quite inexplicable. Be that as it may, the contention similar to the
one now raised by Mr. Anturkar, was rejected by the Hon'ble
Supreme Court in Balasaheb Arjun Torbole and ors. Vs.
Administrator and Divisional Commissioner and ors. - (2015)
6 SCC 534. In the said case, the slum redevelopment scheme was
in fact being resisted by Balasaheb Torbole (Torbole) and others,
who were admittedly, the title holders in respect of the property
over which slum redevelopment scheme had been sanctioned
under DCR 33(10). In fact, in the said case, the slum
redevelopment scheme came to be sanctioned over property held
by Mumbai Municipal Corporation as well as private property
owned and possessed by Torbole and others. The petitioners, in
the present case, are on a much weaker footing, than the
54 of 58
dssherla 55 wp-2162-15 & 1427-13-J.doc
petitioners - Torboles, because the present petitioners have failed
to establish any right or title to the structures/property bearing
CTS Nos. 190/1 to 190/8. The Hon'ble Supreme Court at
paragraphs 21, 22 and 31, in Torbole's case has observed thus :
"21. When in aggregate consent of 70% or more slum
dwellers has been obtained, the essential purpose of slum
rehabilitation scheme cannot be put to peril on the ground that
certain procedures were not strictly followed or some steps were
against the procedures prescribed in the guidelines for
preparation of Annexure II in a prescribed format. From the
documents submitted and shown at the stage of hearing it has
been noticed that even subsequent claims of some slum dwellers
that they are eligible for rehabilitation have been verified and
many have been allowed on the basis of relevant documents
because it is not infrequent that at the time of one particular
checking or verification some dwellers may be absent and might
have gone to some other place. Clearly the process of
preparation of the list described as Annexure II and its
verification is meant to find out the claims of genuine slum
dwellers who may be eligible for benefits under the slum
rehabilitation scheme. Such beneficial provisions meant to
ameliorate the poor condition of slum dwellers, in our
considered view, should not be jettisoned only on technical
grounds or procedural infirmities unless the persons coming to
the court and seeking relief through writ petition are able to
show that they have suffered injustice or legal injury.
22. In the present case, the only legal injury to the
appellants as per submissions of Mr Parikh is that if the private
plots were treated as a separate slum area, the residents of these
plots alone could have formed and carried out development
scheme through their own cooperative society and gained some
advantages including monetary. Such a plea is too far-fetched to
establish legal injury to the appellants who claim to be slum
dwellers and on such plea, in our considered view the appellants
could not have been granted relief in writ jurisdiction which has
been rightly denied to them, albeit for other reasons, after
55 of 58
dssherla 56 wp-2162-15 & 1427-13-J.doc
considering all their pleas on merits.
23. ...
24. ...
...
31. In the course of arguments, it has been shown to us by
filing details of the appellant-petitioners that out of a total of
97, 60 are eligible and 33 non-eligible. Name of 4 petitioners
i.e. 90, 91, 93 and 97 are not in Annexure II to which several
other persons have been added after further verification of later
claims, during the pendency of the litigation. It has also been
shown through a summary that pending the hearing of this
appeal, 26 appellants have settled their dispute and handed
over possession of their respective structures. The impugned
judgment (Balasaheb Arjun Torbole v. Administrator and Divl.
Commr., 2010 SCC OnLine Bom 1279 : (2011) 1 Bom CR 304)
of the High Court also records in para 25 that out of a total of
443 slum dwellers, 82% slum dwellers had already given
consent for redevelopment of the slum and redevelopment is
going on by allotment of permanent alternative accommodation
to the slum dwellers. Majority of occupants of the municipal
plots as noted in the High Court judgment had vacated their
structures long back. Photographs produced before us show that
redevelopment activity is going on and permanent structures
have come up on a large area. Such facts also, in our estimate,
were rightly considered by the High Court as relevant for
dismissing the writ petitions".
(emphasis supplied)
74] The petitioners have not seriously disputed the statements in
the affidavits filed by the respondents that the slum
redevelopment scheme comprises in all, about 209 beneficiaries
(eligible occupants), out of which, almost 86 occupants have
already vacated their tenements and shifted to temporary
alternate accommodation, for which, expenditure of almost Rs.76
lacs per year is borne. Respondent no.5 has stated that even
56 of 58
dssherla 57 wp-2162-15 & 1427-13-J.doc
remaining eligible occupants, except, the seven or eight petitioners
are willing to shift to temporary alternate accommodation. The
petitioners, without having established any rights to structures/
property bearing CTS Nos.190/1 to 190/8, have virtually held up
for years, the entire slum redevelopment scheme to ransom. Even
though, the petitioners have failed to establish any rights qua the
property bearing CTS Nos.190/1 to 190/8 , in terms of slum
redevelopment scheme, the petitioners have been held eligible to
avail the benefits of slum redevelopment scheme. Accordingly, the
petitioners, once they vacate the structures/property will be
eligible to avail temporary alternate accommodation or
compensation in lieu of the same. Further, the petitioners will also
be allotted permanent tenements, once the scheme is complete.
These are some additional grounds, which prompt us not to
exercise our extraordinary jurisdiction under Articles 226 and 227
of the Constitution of India, in favour of such petitioners.
75] We are satisfied that the petitioners, without establishing
any rights in themselves, have virtually held up for years, the
entire slum redevelopment scheme to ransom. The petitioners
have also not been candid with this Court, in the matter of
prosecuting the present petitions. The petitioners are not slum
dwellers but claim to have acquired the rights from eight
sweepers/employees of MHADA. These petitions came to be
instituted and prosecuted on the said basis, without even
disclosing the documentation, if any, between the petitioners and
the said eight sweepers/employees of MHADA, who were original
57 of 58
dssherla 58 wp-2162-15 & 1427-13-J.doc
occupants. For all these reasons, we deem it appropriate to direct
the petitioners to pay costs of Rs. 1 lakh within a period of one
month to respondent no.5, which is the society of slum dwellers,
for whose benefits, the slum redevelopment scheme has been
sanctioned.
76] For all the aforesaid reasons, we are satisfied that these
petitions deserve to be dismissed and same are hereby dismissed.
77] Accordingly, Rule is discharged in both these petitions. The
interim orders, if any, are hereby vacated. The petitioners are
directed to pay costs of Rs.1,00,000/- (Rupees One Lakh) to
respondent no.5 within a period of one month from today.
(CHIEF JUSTICE)
(M.S.SONAK, J.)
58 of 58
