Shreeji Construction vs State Of Maharashtra Through ...
2016 Latest Caselaw 947 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION




                                                                       
                        WRIT PETITION NO.  3114 OF 2016 




                                               
    Shreeji Construction                 )
    A Partnership Firm having its        )
    office at 1 & 2, 06th floor          )
    Shah Trade Centre, Rani Sati         )
    Marg, Near Western Express           )




                                              
    Highway, Malad (E), Mumbai -97       )           ..Petitioners

          Vs.




                                            
    1 State of Maharashtra               )
    through Chief Secretary,        ig   )
    Revenue & Forest Ministry            )
    Mantralaya, Mumbai 400 032           )
                                  
    2 The Minister for Revenue &         )
    Rehabilitation, office of            )
    Ministry for Revenue Mantralaya      )
    Mumbai 400 032                       )
            


    3 Assistant Municipal                )
         



    Commissione, R/South Ward,           )
    Mahapalika Building, M.G.            )
    Cross Road, Kandivali (West)         )
    Mumbai 400 067                       )





    4 Sant Dyaneshwar S.R.A.          )
    Sahakari Grihnirman Sanstha Ltd., )
    having their office at M.G.       )
    Cross Road, Kandivali (West)      )





    Mumbai 400 067                    )

    5 Rajesh Velji (Vagri) Rathod  )
    & 6 ors., Adults, Indian       )
    Inhabitant, residing at 431,   )
    Chhagan Jaising Chawl, Ambewadi)
    Opp Kandivali Fire Brigade,    )
    S.V. Road, Kandivli (W)        )
    Mumbai 400 067                 )                 ..Respondents


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    Mr. V. A. Thorat, Senior Advocate, a/w Mr. R. P. Ojha for the Petitioner
    Mr. S. D. Rayrikar AGP for the Respondent No.1




                                                                                      
    Mr. Vinod Mahadik for the Respondent No.3
    Mr. A. R. Pande a/w Mr. R. K. Dubey for the Respondent No.4




                                                              
    Mr. G. S. Godbole a/w Mr. M. S. D'mello for the Respondent No.5  

                                              CORAM :        R. M. SAVANT, J.

                                              DATE   :       29th MARCH, 2016




                                                             
    ORAL JUDGMENT

    1              Rule.   Considering   the   nature   of   the   challenge   raised,   made 




                                                
    returnable forthwith and heard.
                                    
    2              The Writ Jurisdiction  of  this  court is invoked against the  order 
                                   

dated 25-2-2016 passed by the Hon'ble Minister for Revenue, Government of

Maharashtra, by which order the Hon'ble Minister has ordered status-quo in

respect of the possession of the Respondent No.5 herein pending the

proceedings. The Respondent No.5 had his structure in CTS Nos.1110(part)

and 1111 (part) of Mauje Kandivali, Taluka Borivali. The said lands are part of

a slum redevelopment scheme which is implemented by the Petitioner herein.

In so far as the said scheme is concerned, since the lands in question belonging

to the Municipal Corporation of Greater Mumbai (for short the MCGM),

Annexure - II containing the list of eligible slum dwellers was finalised by the

Competent Authority of the MCGM i.e. the Assistant Commissioner, "R" south

ward, Mumbai. The Respondent No.5 is an eligible slum dweller, who is

entitled to allotment of permanent alternate accommodation. In view of the

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fact that the Respondent No.5 was not vacating the structure in question and

thereby impeding the implementation of the said slum redevelopment scheme,

a notice dated 26-11-2010 under Sections 33 and 38 of the Maharashtra Slum

Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short the

Slum Act) came to be issued to the Respondent No.5 calling upon him to

vacate the structure in question. The said notice resulted in the proceedings for

eviction being initiated against the Respondent No.5 culminating in the order

dated 17-1-2011 passed by the Competent Authority i.e. the Assistant

Commissioner (R/South) MCGM. The Respondent No.5 aggrieved by the said

order challenged the same before the Divisional Commissioner, Konkan

Division, who was at the said time the Appellate Authority to consider the

Appeals filed against the orders passed under Sections 33 and 38 of the Slum

Act. The said Appeal came to be dismissed by the Divisional Commissioner by

order dated 25-10-2012. It appears that after the order was passed by the

Divisional Commissioner in Appeal, the Respondent No.5 approached the then

Hon'ble Minister of State for Revenue and Rehabilitation, Government of

Maharashtra by way of a Revision. The Hon'ble Minister of State for Revenue

admitted the Revision filed by the Respondent No.5 by his order dated 2-11-

2012 and thereby stayed the order dated 25-10-2012 passed by the Divisional

Commissioner, Konkan Division.

    3              This   gave   rise   to   the   Petitioner   herein   filing   Writ   Petition   (L) 


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No.2952 of 2012 in this Court. The said Writ Petition was disposed of in view

of the fact that the Learned Counsel appearing for the Respondent No.5 in the

said Writ Petition was unable to substantiate the maintainability of the

Revision before the State Government i.e. the Hon'ble Minister of State for

Revenue. The Learned Counsel therefore sought leave to withdraw the said

Revision filed before the Minister to adopt appropriate remedy before the

appropriate forum. In view of the withdrawal of the said Revision Application,

the said Writ Petition was accordingly disposed of. After the said Writ Petition

(L) No.2952 of 2012 came to be disposed of, the Respondent No.5 filed Writ

Petition (L) No.3043 of 2012 challenging the order dated 25-10-2012 passed

by the Divisional Commissioner, Konkan Division, dismissing the Appeal filed

by him under Section 35 of the Slum Act. The said Writ Petition came to be

dismissed by this court (R. M. Savant J.) by order dated 11-1-2013. In the

context of the present Petition what is required to be noted is that in the said

order dated 11-1-2013, the quote from the order passed by a Division Bench of

this Court in the Writ Petition filed by the Respondent No.5 herein being Writ

Petition No.2843 of 2003 was reproduced. The same is once again reproduced

hereinunder for the sake of ready reference :

"In our view, petition involves disputed questions of facts. Petitioner will have to prove the title of deceased to the land in question. This issue can be gone into only after oral and documentary evidence is adduced in support thereof. Such an issue cannot be decided in our limited

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jurisdiction under Article 226 of Constitution of India. The remedy of petitioner is to lay a claim in appropriate court on title and prove the same

in accordance with law. It will not be possible for us to decide disputed claims by scrutinizing

several documents. More so, when the contents thereof being not proved in accordance with law."

4 Hence the conspectus of facts as above disclose that the

Respondent No.5 after the orders were passed under Sections 33 and 38 of the

Slum Act, had approached the State Government against the said orders and

had sought reliefs which attempt was unsuccessful. The Respondent No.5 had

thereafter filed the said Writ Petition (L) No.3043 of 2012 challenging the said

orders passed under Sections 33 & 38 which challenge also was unsuccessful

as the said Writ Petition was dismissed. It is after the dismissal of the said Writ

Petition that the structure of the Respondent No.5 came to be demolished.

However, as and by way of indulgence, the belongings of the Respondent No.5

were shifted to a structure which was not immediately required to be

demolished for the purposes of implementing the scheme.

5 In view of the fact that the Respondent No.5 was not removing his

belongings from the structure in which they were kept, a notice under Sections

33 and 38 dated Nil came to be issued and the hearing was fixed on 29-2-

2016, before the Competent Authority it seems that the notice was issued

sometime around 20-2-2016. The said undated notice has triggered of the

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instant application filed by the Respondent No.5 before the State Government.

The Respondent No.5 has once again approached the State Government

purportedly on the ground that the Revision Application filed by him is

pending. As indicated above, it is in the said application that an order of

maintaining status-quo qua the Respondent No.5's structure has been passed

till the final disposal of the Revision Application. It is also directed by the order

that the MCGM and all other concerned should be joined as parties to the said

proceedings. As indicated above, it is the said order dated 25-2-2016 which is

taken exception to by way of the above Petition.

    6               Heard the Learned Counsel for the parties.
            


    7               The principal contention of the Learned Senior Counsel Mr. V. A. 
         

Thorat appearing on behalf of the Petitioner is that the impugned order has

been passed by the Hon'ble Minister for Revenue without jurisdiction. It was

the submission of the Learned Senior Counsel that in passing the impugned

order and directing the status-quo to be maintained in respect of the structure

of the Respondent No.5, what has virtually been done is to nullify the orders

passed by the Competent Authority, Appellate Authority and this Court in the

proceedings initiated under Sections 33 and 38 of the Slum Act. The Learned

Senior Counsel drew this courts attention to the antecedent facts namely the

orders passed by the Competent Authority and the Appellate Authority being

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upheld by this Court as also the attempt of the Respondent No.5 to file

proceedings and obtain orders from the State Government being turned

unsuccessful.

8 Per contra, the Learned Counsel appearing for the Respondent

No.5 Mr. G. S. Godbole would submit that the Respondent No.5 is a tribal and

has approached the State Government for the allotment of the land in

question. It was the submission of the Learned Counsel that in the order

passed in Writ Petition (L) No.2952 of 2012 a statement was made on behalf

of the Respondent No.5 who was the Respondent No.7 in the said Writ Petition

that he would adopt appropriate remedy and it is in the terms of the said

statement the proceedings were filed by him before the State Government as

also under the order dated 11-1-2013.

9 Having heard the Learned Counsel for the parties I have

considered the rival contentions. The background facts in the instant matter

unequivocally point out the attempt made by the Respondent No.5 to see to it

that the orders passed by the authorities exercising powers under the Slum Act

which have been upheld by this Court are nullified. The present application

can be said to be the second attempt on the part of the Respondent No.5 to

seek orders from the State Government against the orders of eviction passed

under the Slum Act. This is in the teeth of the fact that the Respondent No.5's

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challenge to the orders passed under Sections 33 and 38 of the Slum Act, have

failed. In fact in the earlier round being Writ Petition (L) No.2952 of 2012, the

Learned Counsel appearing for the Respondent No.5 had fairly conceded that

the Revision Application filed by the Respondent No.5 before the State

Government was not maintainable and inspite of the same has once again

chosen to approach the State Government. It is required to be noted that the

order passed by the Hon'ble Minister though purportedly in exercise of his

powers as Revenue Minister have the effect of nullifying the orders passed

under Sections 33 and 38 by the Competent Authority and the Appellate

Authority under the Slum Act which orders have been upheld by this court in

Writ Petition (L) No.3043 of 2012 which Writ Petition was filed by the

Respondent No.5 and as indicated above has been dismissed by this Court.

10 It is also required to be noted that the Respondent No.5 had filed

a Writ Petition in this Court claiming the said land on which his structure is

situated on the ground that he is a tribal. The said Writ Petition came to be

dismissed by a Division Bench of this Court by observing that having regard to

the contentions of the Respondent No.5 various disputed questions of fact arise

which could not be dealt with by a Writ Court in its jurisdiction under Article

226 of the Constitution of India. The said Writ Petition as indicated above was

accordingly dismissed. The excerpt from the order for the purposes of the

present Petition has been already reproduced hereinabove for the sake of

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ready reference. It is after the said Writ Petition came to be dismissed that the

Respondent No.5 it seems had filed L.C. Suit No.2476 of 2010 challenging the

notices issued under the Slum Act. It seems that in the said Suit, the very same

contentions as are now sought to be raised in the present Petition by way of

the affidavit in reply were sought to be raised. It is significant to note that the

Respondent No.5 at the hearing of the Notice of Motion filed in the said Suit

had sought time to approach the Defendant No.4 in the said Suit i.e. MCGM to

submit his representation against the impugned notice issued under the Slum

Act and had also sought directions that the concerned authority of the MCGM

be directed to decide the same within 4 weeks from the receipt of it. The said

Suit came to be disposed of by issuing directions in that regard namely the

consideration of the representation of the Respondent No.5 by the Competent

Authority of the MCGM. The Competent Authority has accordingly decided the

said representation and submitted its report dated 29-5-2012 to the Divisional

Commissioner Konkan Division, as at the relevant time it seems that the

Appeal filed by the Respondent No.5 against the order passed by the

Competent Authority was pending before the Divisional Commissioner. Hence

though subsequently a Suit was filed on behalf of the Respondent No.5 the

only relief sought by the Respondent No.5 in the said Suit was that his

representation should be considered by the Competent Authority of the

MCGM.

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    11             In   so   far   as   the   Slum   Act   is   concerned,   the   mechanism   for 

redressal of the grievance of any person who is aggrieved by the notice issued

thereunder or an order passed is provided in the Act itself. Against an order

passed under Sections 33 and 38 directing the eviction of a slum dweller who

is reluctant to vacate , an Appeal lies to the Appellate Authority which at the

relevant time was the Divisional Commissioner and which at present is the

Additional Collector (Encroachment and Removal). The role of the State

Government does not come in, however in the instant case in view of the

impugned order, the Hon'ble Minister for Revenue has virtually nullified the

orders passed by the authorities exercising powers under the Slum Act and

confirmed by this Court. The Hon'ble Minister ought to have been alive to the

consideration of the fact that a slum redevelopment scheme is being

implemented and that the Respondent No.5's structure has already been

demolished but only as and by way of a humanitarian gesture the Petitioner

has kept the belongings of the Respondent No.5 in a structure which was not

immediately required to be demolished for the purposes of implementing the

scheme. The structure wherein the belongings of the Respondent No.5 are kept

is now impeding the construction of building No.3 which is the sale

component in the said slum redevelopment scheme. Hence the impugned

order has the effect of directly impeding the implementation of the slum

redevelopment scheme that to when no such jurisdiction is vested with the

State Government under the Slum Act. Hence what could not have been done

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directly has been got done indirectly by the Respondent No.5 by filing an

application before the State Government. It is also required to be noted that

the Respondent No.5 has been allotted a flat in the rehab building No.1 which

is already completed and which is flat No.604 and hence his rehabilitation has

also been taken care of.

12 In my view, therefore, the order passed by the Hon'ble Minister for

Revenue by exercising jurisdiction when none was vested with him under the

Slum Act, is therefore required to be quashed and set aside and is accordingly

quashed and set aside. The Petition is allowed to the aforesaid extent. Rule is

accordingly made absolute with parties to bear their respective costs of the

Petition.

            


                                                                         [R.M.SAVANT, J]
         






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