Bombay High Court
Municipal Coroporation Of ... vs The State Of Maharashtra And 6 Ors on 5 May, 2016
Bench: S.C. Dharmadhikari
WP1667.13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1667 OF 2013
1. Deepak Murari Shivalkar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-10-10/10, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
2. Malati Amritlal Gupta, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-9-1/2, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
3. Nandu Dhondiba Bachche, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-10-3/10, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
4. Jignisha S. Mitna, adult, Indian ]
inhabitant of Mumbai, residing at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
5. Nirmala Balkrishna Pawar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-8-5/7, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
6. Dnyaneshwar G. Gaikwad, adult, Indian ]
inhabitant of Mumbai, residing at ]
SRP 1/70
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Structure No.PM-8-6/7, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
7. Kirti S. Mitna, adult, Indian inhabitant of ]
Mumbai, residing at Nevatia Municipal ]
Colony, Nevatia Road, situate at CTS No. ]
558/B and 558/B-1 to 40, Village Malad, ]
Mumbai - 400 097. ]
8. Balu Ganpat Gaikwad, adult, Indian ]
inhabitant of Mumbai, residing at Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No. 558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
9. Prakash Ganpat Gaikwad, adult, Indian
inhabitant of Mumbai, residing at Nevatia ]
]
Municipal Colony, Nevatia Road, situate at ]
CTS No. 558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
10. Pandurang Surve, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
11. Shantabai R. Shelar adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-9-8-1/7, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
12. Sadashiv Damodar Nanekar,adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-8-2/7, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
SRP 2/70
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Malad, Mumbai - 400 097. ]
13. Dropati Kisan Murkute, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-8-3/7, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
14. Mangal Chandrakant Murkute,adult, ]
Indian inhabitant of Mumbai, residing at ]
Structure No. , Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
15. Mahesh Yashwant Surve , adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-8-4/7, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
16. Hirabai C, Murkute, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-8-3/7, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
17. Mansukh B. Parmar, adult, Indian ]
inhabitant of Mumbai, residing at Nevatia ]
Municipal Colony, Nevatia Road, ]
Structure at CTS No.558/B and 558/B-1 to ]
40, Village Malad, Mumbai - 400 097. ]
18. Sundaradevi B. Gupta, adult, Indian ]
inhabitant of Mumbai, residing at Nevatia ]
Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to ]
40, Village Malad, Mumbai - 400 097. ]
SRP 3/70
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19. Dhondiba Chintu Bachche (since ]
deceased), through his legal heirs: ]
19A: Smt.Lilabai Dhondiba Bachche ]
19B: Shri Nandu Dhondiba Bachche ]
19C: Shri Ganesh Dhondiba Bachche ]
19D: Smt. Sunita Nilesh Sawant ]
19E: Smt. Surekha Prakash Sawant, ]
all residing at Nevatia Municipal Colony, ]
Nevatia Road, situate at CTS No.558/B and ]
558/B-1 to 40, Village Malad, ]
Mumbai-400097. ]
20. Sulochana D. Nanekar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
21. Manda K. Murkute, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.26KA/AN/-2884, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
22. Dattaram Kisan Murkute, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
23. Kamuben B. Patel, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
24. Rajendra B.Patel, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-6-6-6, Nevatia ]
SRP 4/70
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Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
25. Parshuram T. Pawar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-6-4/6, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
26. Satish Ramesh Bhuvad, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
27. Ramesh Sonu Bhuvad, adult, Indian
inhabitant of Mumbai, residing at
]
]
Structure No.PM-6-3-6, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
28. Kusum R. Patel, adult, Indian inhabitant ]
of Mumbai, residing at Structure No.PM-6 ]
-1/6, Nevatia Municipal Colony, Nevatia ]
Road, situate at CTS No.558/B & 558/B-1 ]
to 40, Village Malad, Mumbai - 400 097. ]
29. Ramsuchit Ramchandra Yadav, adult, ]
Indian inhabitant of Mumbai, residing at ]
Structure No.PM-4-5/5, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40, Village ]
Malad, Mumbai - 400 097. ]
30. Ashok Sonu Bhuvad, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
SRP 5/70
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Village Malad, Mumbai - 400 097. ]
31. Jaya A/Bhuvad adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-4-2/5, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
32. Ujwala G. Kinjale, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-5-1/15, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
33. Savita Subhas Ghosalkar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-5-2/15, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
34. Suresh Chimanlal Mitna, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
35. Khalik K. Roy, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-5-4/16, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
36. Shashikant Gajanan Kinjle, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-5-10/10, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
SRP 6/70
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Malad, Mumbai - 400 097. ]
37. Kalpana Gajanan Kinjle, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-5-11/15, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
38. Vijay Yashwant Wadekar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-5-12/15, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
39. Shobha Nivrutti Hagawane, adult, Indian ]
inhabitant of Mumbai, residing at ]
Structure No.PM-5-13/15, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
40. Ramesh Shyamlal Vishwakarma, adult, ]
Indian inhabitant of Mumbai, residing at ]
Structure No.PM-5-14/15, Nevatia ]
Municipal Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
41. Suresh A. More, adult, Indian inhabitant ]
of Mumbai, residing at Nevatia Municipal ]
Colony, Nevatia Road, situate at ]
CTS No.558/B and 558/B-1 to 40 Village ]
Malad, Mumbai - 400 097. ]
42. Ashok Anant More, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
SRP 7/70
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43. Suresh Devji Dike, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
44. Anaji Sonu Rajapkar (since deceased) ]
Through the Legal heirs :
44A: Anita Anaji Rajapkar ]
44B: Hemant Anaji Rajapkar ]
44C: Prashant Anaji Rajapkar ]
44D: Amol Anaji Rajapkar ]
All residing at Nevatia Municipal Colony, ]
Nevatia Road, situate at CTS No.558/B and ]
558/B-1 to 40 Village Malad, Mumbai - 97.
ig ]
45. Mangesh Dhondu Ramane, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
46. Ranchhod L. Kharvi, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
47. Fulchand Shankar Sharma , adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
48. Anis J. Mujawar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
SRP 8/70
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49. Kuwarben C. Mitna, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
50. Sanjay Subhash Ghosalkar, adult, Indian ]
inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ]
51. Harinarayandev Amritlal Gupta, adult, ]
Indian inhabitant of Mumbai, residing at ]
Nevatia Municipal Colony, Nevatia Road, ]
situate at CTS No.558/B and 558/B-1 to 40 ]
Village Malad, Mumbai - 400 097. ] ... Petitioners
Versus
1. The State of Maharashtra, ]
Government Pleader, High Court, ]
Bombay - 400 032. ]
2. Slum Rehabilitation Authority, ]
Administrative Building, Anant Kanekar ]
Marg, Bandra (East), Mumbai-400 051 ]
3. Municipal Corporation of Gr. Mumbai ]
A body constituted under the provisions ]
Or Mumbai Municipal Corporation Act ]
1888, having its head office at ]
Mahapalika Bhavan, Mahapalika Marg, ]
Opp. C.S.T., Mumbai - 400 001. ]
4. M/s. C.D. Nevatia Developers, having office ]
at Nevatia House, Kishanlal Nevatia Road, ]
Kishanlal Nevatia Road, Malad (East), ]
Mumbai 400 097. ]
SRP 9/70
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5. M/s.Esquire Enterprises Pvt. Ltd., ]
a Company incorporated under the ]
Companies Act, 1956, having its office at ]
Minar Tower, Shop No.2, Behind Aarsa ]
Bekary, S.V. Road, Jogeshwari (West), ]
Mumbai 400 102. ]
6. Om Vishwashanti CHS (Proposed) ]
Nevatia Municipal Colony, Nevatia Road, ]
Situate at CTS No.558/B and 558/B-1, ]
to 40, Village Malad, Mumbai 400 097 ] ... Respondents
WITH
WRIT PETITION NO. 147 OF 2014
Municipal Corporation of Greater Mumbai ]
a body constituted under the provisions of
ig ]
the Mumbai Municipal Corporation Act, 1888]
having its head office at Mahapalika Marg, ]
Opp. C.S.T. Mumbai - 400001. ]
Versus
1. The State of Maharashtra, through the ]
Ministry of Housing, having its office at ]
Mantralaya, Mumbai. ]
2. Slum Rehabilitation Authority, ]
Administrative Building, Anant Kanetkar ]
Marg, Bandra (East), Mumbai - 400 051 ]
3. M/s. C.D. Nevatia Developers, having their ]
office at Nevatia House, Kishanlal Nevatia ]
Road, Malad (E), Mumbai - 400 097. ]
4. M/s. Esquire Enterprises Pvt. Ltd., a ]
company incorporated under the ]
provisions of Companies Act, 1956,having ]
its office at Minar Tower, S.V. Road, ]
Jogeshwari (W), Mumbai - 400 102. ]
SRP 10/70
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5. Om Vishwashanti CHS (Proposed) ]
address at Nevatia Colony,Nevatia Road, ]
C.T.S.No.558/B and 558/B-1, to 40, Village ]
Malad, Mumbai - 400 057. ] ... Respondents
Mr. Mihir Desai, senior counsel with Mr. Sagar Takekar for the
Petitioner in WP No. 1667 of 2013.
Mr. E.P. Bharucha, senior counsel with Mr. H.C. Pimple for the
Petitioner in WP No. 147 of 2014.
Mr. M.P. Jadhav, AGP, for the Respondent No.1 - State in WP
No.1667 of 2013.
Ms. Geeta Shastri, Addl. Govt. Pleader, for the Respondent No.1 in
WP No. 147 of 2014.
Mr. Prasad K. Dhakephalkar, senior counsel with Mr. Girish D.
Utangale and Mr. Chetan Mhatre i/b M/s. Utangale & Co. for the
Respondent No.2 in WP No.1667 of 2013.
Mr. Prasad K. Dhakephalkar, senior counsel with Mr. Jagdish G.
Aradwad (Reddy) for the Respondent No.2 & 6 in WP No. 1167 of
2014.
Dr. Milind Sathe, senior counsel with Mr. M.U. Pandey and Mr
akesh M. Pandey for the Respondent No.4 in WP No. 1667 of
2013 and for the Respondent No.3 in WP No. 147 of 2014.
Mr. A.Y. Sakhare, senior counsel with Mr. H.C. Pimple for the
Respondent No.3 in WP No. 1667 of 2013.
CORAM : S.C. DHARMADHIKARI &
A.A. SAYED, JJ.
Reserved on : 16TH MARCH, 2016
Pronounced on: 5TH MAY, 2016
SRP 11/70
WP1667.13.doc
ORAL JUDGMENT. : [Per S.C. Dharmadhikari, J.]
1. Rule in both petitions. Respondents waive service. By
consent, Rule made returnable forthwith.
2. As both petitions involve common questions of fact and law,
they were heard together, that we dispose of them by this
common judgment.
3.
By writ petition no. 1667 of 2013 under Article 226 of the
Constitution of India, the petitioners seek a writ of certiorari or a
writ, order or direction in the nature of the above calling for the
records and proceedings of the Letter of Intent ('LOI' for short)
dated 14th August, 2012, Annexure-V, Intimation of Approval
('IOA' for short) in respect of a plot of land, more particularly
described in the petition and on scrutiny of all these, to quash and
set aside the same.
4. It is common ground that the petitioners are occupying
some structures standing on what is called as Nevatia Municipal
Colony / the said property. The first respondent is the State and
SRP 12/70
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the second respondent is the Slum Rehabilitation Authority (for
short 'SRA'), whereas the respondent No.3 is the Municipal
Corporation of Greater Mumbai (for short 'MCGM'), a body
constituted under the provisions of the Mumbai Municipal
Corporation Act, 1888. The fourth respondent is a builder and
developer so also the fifth respondent and respondent No.6 is the
proposed society.
5. It is common ground that the plot of land belongs to the
Municipal Corporation along with other structure owners on the
said plot. It admeasures 4501.3 square meters and there are
only 57 of slum structures on the entire plot. Adjoining to this
plot of land belonging to Respondent No.3 is another plot bearing
CTS No.558/A-1, 558/A-2 owned and possessed by respondent
No.4.
6. Some of the petitioners have formed a proposed society
being respondent No.6. They claim to have challenged several
actions and what is claimed is that orders have been passed
therein. The petitioners claim that an Architect M/s. R.W. Gudal
and Associates submitted a proposal on behalf of respondent No.6
SRP 13/70
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on 4th September, 1992, under the Old Slum Redevelopment
Scheme for the Municipal land. Once the Slum Rehabilitation
Authority was established, that old scheme was required to be
converted in a Slum Rehabilitation Scheme as per clause 10 of
Appendix-IV of Regulation 33(10) of the Development Control
Regulations, 1991. The said requirement of conversion was not
complied with by the Architect and that is why the proposal
submitted in the year 1992 was not processed further. It appears
that the fourth respondent through their Architect submitted a
Slum Rehabilitation Scheme in the name of Nevatia Compound
Cooperative Housing Society for development on the private land
owned by respondent No.4 and the land belonging to respondent
No.3-Corporation on the basis of the consent of seventy per cent
of the occupants. However, a No Objection Certificate has not
been granted or issued by the Municipal Corporation for including
its plot of land in this scheme. The proposal, therefore, was
defective and should have been rejected at the threshold.
However, the second respondent - Slum Rehabilitation Authority
obliged the respondent No.4 and granted an LOI for a plot
admeasuring 2934.22 square meters and this LOI was valid only
for a period of three months from the date of issue or till the IOA
SRP 14/70
WP1667.13.doc
or CC for the rehab building is obtained or whichever is earlier.
The same was not obtained within a period of three months and
hence this LOI, copy of which is at Annexure-B of the paper-book,
lapsed.
7. Respondent No.6 submitted their scheme through
respondent No.5 and the respondent No.2, calling for a No
Objection Certificate (for short 'NOC') and Annexure-2 from
respondent No.3. That was duly obtained on 15 th June, 2001 in
respect of the land owned by respondent No.3 in favour of
respondent No.6. Annexure-C is a copy of the document issued
by respondent No.3 in favour of respondent No.6.
8. Respondent No.2 has issued letters dated 23rd April, 2001
and 26th June, 2001, calling upon the respondent No.4 to submit
NOC from respondent No.3 or else their proposal will not be
processed further and merely kept on record. Despite such an
opportunity being given to respondent No.4, it failed to submit
this NOC. The respondent No.3, by its letter dated 21 st July, 2001
(Annexure-D) informed respondent No.2 that in view of the
absence of consent of seventy per cent of the slum dwellers
SRP 15/70
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residing on the plot of land owned by respondent No.3, no scheme
can be sanctioned in favour of respondent No.4. The respondent
No.6 challenged the scheme of respondent No.4 as the same was
without consent and not supported by General Body Resolution of
the respondent No.6 in respect of the land belonging to
respondent No.3. Thereupon, respondent No.6 filed a writ
petition being Writ Petition No. 46 of 2002 before this Court in
respect of two different schemes. In the said writ petition, an
order dated 1st April, 2002, was passed directing maintenance of
status quo in respect of the land belonging to respondent No.3.
Annexure-E is a copy of this order dated 1 st April, 2002. This
writ petition was finally disposed of by an order dated 8 th
February, 2008, granting liberty to respondent No.6 to approach
the High Power Committee in respect of its grievance (Annexure-
F). That is how respondent No.6 filed an application (being
Appeal No.65 of 2008) before the High Power Committee. That
was disposed of by the Committee on 21 st March, 2009. Copy of
this order is at Annexure-G to the petition.
9. Aggrieved and dissatisfied by this order of the High Power
Committee the respondent No.6 filed a writ petition in this Court
SRP 16/70
WP1667.13.doc
being Writ Petition No.991 of 2009. By its order dated 22 nd
January, 2010, this writ petition was disposed of. Annexure-H is
a copy of the order dated 22 nd January, 2010. The respondent
No.2 by its letter dated 23rd March, 2010, informed respondent
No.4 that the letter of intent already granted on 1 st August, 2000,
has expired on 30th November, 2000 and, therefore, called for an
explanation on that aspect of the matter. The copy of this letter
is at Annexure-I to the petition. It is claimed by the petitioners
that the respondent No.4 did not give a specific, but evasive reply
by its reply dated 29th March, 2010. The Engineering
Department of respondent No.2 on 4th October, 2010, has opined
that it is not advisable to revalidate the LOI dated 1 st August,
2000 and called for a fresh NOC from the land owning authority.
In the meanwhile, the members of respondent No.6 passed a
General Body Resolution in a meeting held on 9 th December, 2010
and appointed respondent No.5 as a developer. This was done in
the presence of a representative of the respondent No.2 - SRA.
The SRA prepared a report of this meeting and confirmed the
appointment of respondent No.5 as a developer. Annexure-L is a
copy of the report dated 9th December, 2010, in this behalf. The
respondent No.2 on the basis of the opinion of its Legal Advisor
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passed necessary orders in the file and which were duly approved
by the Chief Executive Officer of SRA on 28 th March, 2011.
Annexure-M is a copy of the order. This order was duly
communicated to the respondent No.4. On the same day,
respondent No.2 called upon respondent No.6 to submit a fresh
slum rehabilitation scheme on the plot belonging to respondent
No.3. (Copy of this letter is Annexure-O to the Writ Petition). The
respondent No.6 through its Architect submitted a scheme on
23rd April, 2011. It also paid the scrutiny fee on 28 th June, 2011.
Then the respondent No.4 issued a letter to the Ward Office of
respondent No.3 calling upon the respondent No.3 to maintain
the no objection for developing the Corporation land by
respondent No.4 or to grant fresh NOC. Annexures P, Q and R are
copies of the above documents.
10. The respondent No.4 challenged the order of the Chief
Executive Officer, SRA dated 28 th March, 2011 / 15th April, 2011
before the High Power Committee. The High Power Committee set
aside this order and the High Power Committee's order is dated
31st March, 2012. The High Power Committee remanded the
matter to the CEO of respondent No.2. Annexure-S is a copy of
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the order dated 31st March, 2012.
11. In view of this remand, the Chief Executive Officer passed
an order on 7th June, 2012, inter-alia, reviving the proposal
submitted by respondent No.4 and refusing to process the
proposal submitted by respondent Nos.5 and 6.
12. However, the High Power Committee's order to the above
effect was challenged by respondent No.6 by way of a writ
petition in this Court being Writ Petition No. No.1947 of 2012.
That writ petition was dismissed on 18 th September, 2012. A
copy of this order is Annexure-U to the petition. During the
pendency of the aforesaid writ petition, the second respondent
issued a letter of intent dated 14th August, 2012, reviving the
earlier LOI dated 1st August, 2000. This LOI was in favour of
respondent No.4. The revised LOI is for a plot of land
admeasuring 6059.10 square metes, whereas the earlier LOI was
only with regard to 3924.22 square meters. The revised LOI
specified certain terms and conditions which need to be fulfilled
before granting further permissions. The petition reproduces
these relevant clauses as also annexes a copy of this LOI dated
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14th August, 2012 (Annexure-V).
13. Thereafter, the second respondent issued a IOA on 12 th
November, 2012, in respect of the rehab building No.1.
Annexure-W is a copy of the Intimation of Approval. The
Architect of respondent No.4 has requested to grant plinth
Commencement Certificate (for short 'CC') to the rehab building
No.1. Annexure-X is the copy of the application for grant of
plinth CC. The same was duly approved by respondent No.2 on
26th November, 2012. It is complained that this was done by
relaxing the terms and conditions of the revived LOI dated 14 th
August, 2012. A Commencement Certificate was also issued
immediately thereafter on 29th November, 2012 (Annexure-Y).
The complaint is that this Commencement Certificate was issued
without compliance with the IOA condition No.8. The petitioners
then make a grievance that though the respondent No.3
intimated to the CEO of the SRA-respondent No.2 by his letter
dated 10th November, 2012, that the plot is reserved for primary
school and the Municipal Corporation of Greater Mumbai is not
interested in giving the plot for SRA development, no Annexure-II
also is issued to respondent No.4 in respect of the said plot, still,
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the above actions were taken. The respondent No.3 was in
continued correspondence requesting the respondent No.2's CEO
to cancel immediately all the permissions in respect of the plot
owned by respondent No.3. That plot is more than 4501.3 square
meters and there are only 50 to 60 eligible hutment dwellers on
the plot. Annexure-AA is a copy of this letter dated 22 nd
November, 2012, which followed the prior letter dated 16 th
November, 2012 (Annexure-Z).
14.
The petitioners complain that without this compliance of
IOA condition No.8 the respondent No.4 started demolition of the
structure on the MCGM plot. A complaint with regard to this
demolition activity was made by the Ward Officer of respondent
No.3 to the Colaba Police Station. The complaint was made in
writing and on two occasions (by Annexure BB and Annexure-
CC). In continuation of the earlier communication, the
Corporation called upon the SRA by its letter dated 10 th January,
2013, to immediately terminate the LOI, IOA and CC which are in
contravention and contempt of the orders passed by this Court
and defeating the rights of the land owning authority, namely,
respondent No.3. Annexure-DD is a copy of this letter dated 10 th
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January, 2013. Even the police authorities were of the prima
facie view that the documents submitted by the respondent No.4
are forged. The petitioners have also filed individual affidavits
stating that they refuse to grant any consent to respondent No.4.
15. In the above background and with all these complaints, no
steps were taken against the respondent No.4 by the concerned
statutory authorities that the present writ petition has been filed
by the petitioners containing the above referred prayers.
16. There is another writ petition on our file and which is by the
Municipal Corporation of Greater Mumbai. The prayer in that
writ petition is to cancel the LOI dated 23 rd April, 2001 and 14th
August, 2012, intimation of approval dated 12 th November, 2012
and the Commencement Certificate dated 29th November, 2012,
issued by respondent No.2 in respect of the plot of land described
in details in the writ petition.
17. The Municipal Corporation's petition only sets out identical
dates and events, but mentions that the MCGM property is
reserved for primary school and the petitioners do not want to
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give the same for SRA development. They even state that all the
lapses and acts of omission and commission on the part of the
authorities were brought to the notice of the Principal Secretary,
Department of Housing, Government of Maharashtra on 7 th
January, 2013, who called for explanation from the CEO of the
SRA. It was urged that the documents, based on which the SRA
acted are fabricated, fraudulent and forged. The Municipal
Commissioner's letter dated 20th March, 2013, highlights as to
how the Municipal Corporation is in need of land for constructing
a Municipal school. There are only 50 photo-pass holders who
are eligible. The Municipal Corporation would request for their
rehabilitation in alternate accommodations. It is not interested
in giving its land to any developer and with the reservations. It
has been emphasized by the Municipal Commissioner in his
complaint to the Principal Secretary that the plot of land is
reserved for Municipal primary school. The mandate of Article
21-A of the Constitution of India and The Right to Free &
Compulsory Education Act, 2009, is highlighted in the Municipal
complaint.
18. Thus, the petitions have been filed in the above factual
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background.
19. The first writ petition is contested by the Slum
Rehabilitation Authority. It has filed an affidavit of its Sub-
Engineer. The SRA in the affidavit states that if all the dates and
events are noted, the writ petition is barred by delay and laches.
The LOI is dated 1st August, 2000. Merely because it was
revalidated and issued on 14th August, 2012, does not mean that
it can be challenged in a writ petition filed in the year 2013.
Thus, there is a delay of about 12 years in filing the writ petition.
It is also claimed that the writ petition filed by respondent No.5
has been dismissed by this Court on the ground that it suffers
from delay and laches. Writ Petition No.1947 of 2012 is
dismissed, inter-alia, holding that the recalling of the scheme of
respondent No.4 sanctioned on 19th July, 2000, was erroneous
and reinstatement thereof by the order of the CEO, SRA on 7 th
June, 2012, was upheld. The slum dwellers' petition who claimed
to be members of respondent No.6, who has already lost two
rounds of litigation in this Court, thus suffers from delay and
laches.
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20. Then, the SRA raises the issue of the petitioners' right to
challenge the scheme. It is submitted that the petitioners are
slum dwellers and on a land on which a scheme is implemented.
They have no right in law, save and except to a permanent
alternate accommodation as per the scheme in exchange of their
original premises. The petitioners, therefore, being held eligible
would be entitled to permanent alternate accommodation. They
have no right to challenge the sanctioned scheme.
21.
The issue next raised is that respondent No.4 are owners of
a private land which is part and parcel of the scheme
implemented by them. The scheme has their consent to the
extent of their holding. In regard to that scheme, the
Corporation has granted NOC on 29th July, 1994. They have
granted NOC for implementation of the SRA scheme by their
letter dated 21st August, 1997. The Corporation by not replying /
objecting to the implementation of the SRA scheme in response to
the letter dated 20th September, 2000, there is a deemed NOC for
the implementation of the SRA scheme on the land. Thus, the
SRA has the NOC for implementation of the scheme on the land.
It is submitted that the Municipal land is reserved for primary
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school. As per the sanctioned scheme, a school for 500 children
will be constructed by the respondent No.4 on a plot area of 600
square meters as per Category III-A and a plot area of 1327.00
square meters is approved as vacant plot in front of the school.
Further, the Municipal Corporation stands to gain by claiming an
area admeasuring 799.21 square meters earmarked as proposed
DP road. The area would be cleared, developed and handed over
free of cost to the MCGM along with the road setback of 215
square meters. Thus, their DP road will be cleared, developed and
open for the public. In the circumstances, the writ petition filed
by the petitioners is motivated and really is a claim of the
respondent No.5 which is highlighted by the petitioners. Thus, a
rival developer has put up the petitioners after having lost his
substantive litigation. The writ petition, therefore, be dismissed.
There is a further affidavit of 28 th June, 2014, of the petitioners
in which the breaches and serious acts of omission and
commission on the part of the CEO of SRA have been highlighted.
The respondent No.4 has filed an affidavit. In that affidavit, they
have given detailed explanations with regard to the alleged
fraudulent consents and the acts of the CEO, SRA. The writ
petition is, therefore, said to be a belated and futile attempt to
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stall the scheme. The further affidavit of the petitioners is also
faulted as being filed at the behest of respondent No.5 and in
collusion with respondent No.6 who themselves have lost several
legal battles. Therefore, it is claimed that the petition be rejected.
Then, there is an additional affidavit of the petitioners filed on
24th March, 2015. In this, what the petitioners seek to place on
record is the information in respect of an order passed under
section 156(3) of the Code of Criminal Procedure, directing the
police to investigate the matter as against accused, namely,
Shantidevi Nevatia and officers of the SRA. This complaint has
been filed by the Chief Promoter of respondent No.6 - Sadashiv
Damodar Nenekar and the copy of the same is Annexure-A. It is
on that complaint that the Metropolitan Magistrate, 67th Court,
Borivali, Mumbai, passed an order dated 15 th November, 2014,
directing the police to investigate the matter. The petitioners also
rely upon some further documents and information collected
under the Right to Information Act, 2005. Thus, the allegations
of fraud and forgery are sought to be elaborated. Finally, reliance
is placed on the FIR MECR 3/15 dated 19 th February, 2015,
registered by the Dindoshi Police Station against Smt. Shantidevi
Nevatia, Ramji Shah, Vishwas Sitodia (Architect), Nirmal Kumar
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Deshmukh (present C.E.O., SRA), S.S. Zhende, the then C.E.O.,
SRA, Bhalchandra Thakre Secretary, SRA and V.V. Pawar,
Deputy Chief Executive, SRA. It is in this backdrop that once
again it is submitted that the writ petition be allowed.
22. In the second petition, the affidavits-in-reply are by the
Partner of M/s. C.D. Nevatia Developers.
23. In this affidavit, it is submitted that the Municipal
Corporation's petition suffers from gross delay and laches. This
affidavit refers to the order dated 22 nd January, 2010, passed by
the Division Bench of this Court in Writ Petition No.991 of 2009
wherein this Court clarified that it is for the Corporation to take
such steps in law to which they are entitled so as to protect their
interest. The present petition is filed after expiry of three years
and four months from the date of the Division Bench order. If the
Corporation has done nothing for a period of three years and
addressed a letter for the first time on 5 th December, 2012, to the
Senior Inspector of Police and thereafter two letters on 10 th
January, 2013 and 20th March, 2013, respectively to the Chief
Executive Officer, Slum Rehabilitation Authority and to the
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Housing Secretary, still, this entire period of delay cannot be
condoned. Alternatively and without prejudice it is submitted
that the present petition of the Municipal Corporation is not bona
fide. It has throughout consented to the slum rehabilitation
scheme being implemented on the Municipal land and have been
a party to the same. The lack of bona fides is apparent because
the Corporation does not object to the implementation of a
scheme of this nature on its land. The respondent No.4 was
appointed as a developer by respondent No.5 to this petition. As
a land owning authority, the Municipal Corporation could have
consented or refused to consent to the implementation of such a
scheme on its land. However, once it gives such a consent, then,
it is not open to the Municipal Corporation to select the developer.
It is for the SRA to sanction the scheme to be implemented by the
developer in conformity with law and guidelines laid down by this
Court. This respondent submits that the petitioners had
consented and positively upto 18th May, 2010, for
implementation of the SRA scheme on its land. It is only when a
decision was rendered by this Court on 18 th September, 2012, in
Writ Petition No.1947 of 2012, wherein this Court held that the
fifth respondent to this petition had no right to implement a SRA
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scheme on the said land and the challenge raised by the fifth
respondent to the scheme of the third respondent was not
sustainable that the Municipal Corporation started addressing
letters and making complaints.
24. Then it is stated that after the decision of the High Power
Committee in the Application No.299 of 2011 the fifth respondent
had filed Writ Petition No.1947 of 2012. That writ petition was
decided by a judgment and order dated 19 th September, 2012.
The petitioners have deliberately and willfully so also mala fide
avoided to refer to this judgment and order in the present
petition. The petitioners are aware of this order and they are also
parties to the companion writ petitions filed by slum dwellers
who are members of respondent No.5. The judgment of this Court
in Writ Petition No.1947 of 2012 is annexed to that writ petition.
Inspite of that having been annexed, no reference is made to this
judgment and rather it is concealed from this Court.
25. Then, it is submitted that for the reasons set out in
paragraph 4 of this affidavit a writ petition by the Municipal
Corporation is liable be dismissed.
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26. It is only after the order passed in Writ Petition No. 1947 of
2012 that the Corporation has raised this dispute.
27. It is then claimed in paragraph 7 that in furtherance of the
revalidiation of the LOI on 14th August, 2012, the steps indicated
in paragraph 7 have been initiated and completed. Thus, work
commencement certificate is issued by SRA for construction of
the rehab building. ig 19 slum dwellers have vacated their
respective original premises and moved out and they are taking
compensation in lieu of transit accommodation. Their rooms
have been demolished. Annexure-III, namely, the financial
strength certificate is submitted. It is in these circumstances
and on additional reasons that are set out in the further
paragraphs that it is submitted that the writ petition filed by the
Municipal Corporation deserves to be dismissed.
28. We have a reply also of the SRA and in this reply, the SRA
relies upon the Maharashtra Government Notification dated 26 th
March, 1998. It is stated that Annexure-II submitted by the
Architect along with the proposal was forwarded to the
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Additional Collector (Encroachments) for verification and
certification as the same was partly in respect of the private land
and partly in respect of the Municipal land. The Additional
Collector being competent to certify the Annexure-II that his acts
cannot be faulted. Further, on 26 th September, 2000, the CEO,
SRA addressed a letter to the Commissioner of the Municipal
Corporation. He forwarded the copy of the LOI dated 1 st August,
2000, and requested for NOC of the Corporation being the land
owning authority. By that letter it was informed that if nothing is
heard for a period of one month, it would be deemed that the
Municipal Corporation's consent has been granted. Nothing was
heard from the petitioners for a period of more than one month of
the receipt of the letter. Therefore, as per the D.C. Regulation
No.33(10) Appendix IV clause 2.8 the petitioners are deemed to
have given their no objection for the scheme / LOI.
29. We have before us a rejoinder affidavit of the Municipal
Corporation which firstly deals with the affidavit of C.D. Nevatia
Builders who are developers and it is submitted that this
developer is dragging the Corporation into a dispute between it
and another developer. As far as the Municipal Corporation is
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concerned, it is neither concerned with respondent No.3 nor
respondent No.4. In view of a decision taken by it to develop the
MCGM plot for Municipal primary school as per D.C. Regulation
on its own, the Corporation does not desire to have any slum
rehabilitation scheme as far as its land and plot is concerned and
it cannot be compelled in this manner.
30. Then, it is submitted that the Government Notification
dated 26th March, 1998, does not indicate that the Corporation is
denuded of its authority to develop its own land. It is the
Commissioner of the Municipal Corporation of Brihanmumbai
who is the competent authority in respect of the areas comprising
of old lands in Brihanmumbai belonging to the Municipal
Corporation. Reliance is placed upon a Circular No.28 dated 15 th
July, 1999. These are the averments and to be found at pages
366 and 367 of the paper-book in the affidavit-in-rejoinder of the
petitioner.
31. We have another affidavit and which is filed by the
respondent No.3 seeking possibly to sur-rejoin but it, in
substance, reiterates the contents of the affidavit-in-reply of this
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respondent. Finally, we have an affidavit of the Controller
(Encroachments / Removal) Greater Mumbai and which only
deals with one aspect and namely the said Controller had power
to certify Annexure II dated 3rd July, 1999, in respect of the lands
involved in slum rehabilitation scheme which is subject matter of
the petition. The said deponent would submit that the Municipal
Corporation may be owning a land, but in terms of the
Government Resolution and Government Notification dated 14th
May, 1998 and 26th March, 1998 respectively, the Additional
Collector (Encroachments) has jurisdiction to certify the
eligibility of the slum dwellers for all the lands, including the
lands owned by the MCGM. The Controller, therefore, justifies his
act and annexes with his affidavit, the Government Resolution
and Notification and several other documents which would
evidence certification of Annexure II by him and that it should
not be faulted is his contention.
32. It is in the light of these materials that we have heard the
learned counsel appearing for parties. Their contentions and
submissions are consistent with the stand of these parties in the
pleadings.
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33. Mr. E.P. Bharucha, learned senior counsel appearing for the
petitioners in Writ Petition No.147 of 2014, after taking us
through the synopsis of the dates and events in the petition,
invites our attention to page 168 of the paper-book. He would
submit that the Brihanmumbai Municipal Corporation had
discussed the proposal of M/s. Om Vishwashanti Cooperative
Housing Society (Proposed) submitted on 27 th July, 2011,
together with Annexure-II for implementation of the SRA scheme
on the land, more particularly described hereinabove. Further, it
received a letter from the SRA dated 19 th July, 2011, for issuance
of Annexure-II (II) in the name of this Cooperative Housing
Society. The land was reserved for Municipal Corporation
Primary School and playground. On this land, Annexure-II had
been previously issued also, three times by the Municipal
Corporation and once by the Additional District Collector
(Encroachments). That was in the name of different developer -
C.D. Nevatia. Then the full information has been given and it is
stated that all these proposals, excluding paragraph / Circular -2
No.SRCUL/1/PN dated 15th June, 2001, are cancelled by the SRA.
Thereafter, information was given and all the Circulars have been
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referred. Mr. Bharucha would submit that these proposals were
placed by the Assistant Commissioner P-North Division before the
Commissioner and if he is agreeable to the same (Points Capital A
to D) the order will be conveyed to the appropriate authorities.
Mr. Bharucha would submit that if section 33 of the Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act,
1971 (for short "Slum Act") is perused, it is the Municipal
Corporation which is the competent authority as it is the owner of
the property. It is the competent authority for all purposes,
including issuance of a letter of intent. The Slum Rehabilitation
Authority had no jurisdiction to issue the letter of intent in
respect of the property belonging to the Municipal Corporation.
Now, the Municipal Corporation has decided to develop this
property itself. It will rehabilitate all slum dwellers in the
property. It is in these circumstances that Mr. Bharucha would
submit that the writ petition filed by the Municipal Corporation
be allowed.
34. Mr. Bharucha has submitted that the synopsis would
disclose as to how the property was sought to be developed and in
pursuance of a LOI dated 1st August, 2000. However, he would
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submit that the Municipal Corporation received a letter from the
CEO, SRA dated 23rd April, 2001. The CEO called for clarification
from the Deputy Collector (Encroachments) as to how the
Additional Collector issued the Annexure II on the Municipal
property and directed him to rectify the same. These facts were
disclosed in this letter of 23rd April, 2001. Thereafter, the second
respondent issued a letter dated 26th June, 2001, requesting the
developer to submit the NOC from the petitioner for the
development of Municipal school plot being under reservation
within a period of fifteen days. This letter clearly stated that if
the requisite NOC is not submitted within the stipulated period,
the office would proceed to record the proposal and close the file.
Thereafter, the proposal submitted by another developer with
Annexure-II issued by the Land Owing Authority will be
proceeded further on its merits.
35. Mr. Bharucha relies upon this letter, copy of which is at
Annexure-H dated 26th June, 2001. He also relies upon a letter
dated 21st July, 2001, of the Corporation raising an objection for
issuance of Annexure-II in respect of the Municipal property and
further points out that the mandatory seventy per cent consent
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from the hutment dwellers by the said developer is not obtained.
36. This issue was raised by the proposed society, namely,
respondent No.5 to writ petition No.147 of 2014 and that is how
Mr. Bharucha would invite our attention to the orders passed in
earlier petitions. Mr. Bharucha submits that the slum
rehabilitation scheme of the said C.D. Nevatia Developers has not
been processed further and in that regard, he relies upon the
letter dated 15th April, 2011. It is in these circumstances the
Corporation has already conveyed to the SRA its disinclination to
implementation of the SRA scheme on its property admeasuring
4501.3 square meters only for fifty persons residing on the said
land. It was proposed that these eligible persons would be
provided with permanent alternate accommodation in the
Corporation's Project Affected Persons Scheme. Thereafter the
entire Municipal property would be utilized for the purpose of
giving effect to the reservation, namely, primary school. Once the
petitioners have not consented to the SRA scheme, still if the
respondent No.3 Nevatia Developers place their scheme and seek
a fresh NOC, that itself would mean that all earlier proposals
lapsed. It is, not, therefore, permissible for these developers to
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revive an already dropped proposal or scheme.
37. In the circumstances, Annexure-II issued by the Additional
Collector (Encroachments) and the revised LOI were objected to
by the Corporation by their letter dated 16 th November, 2012 -
Annexure-V. This was reiterated by the letter dated 22 nd
November, 2012. Thus, instead of cancelling all the permissions
and approvals, the Slum Rehabilitation Authority went ahead and
issued a Commencement Certificate to respondent No.3.
ig The
respondent Nos.2 and 3 started demolition of structures on
MCGM property. That is how the intervention of the local police
station was sought. Though some demolition activity was carried
out, thereafter the intervention of the Principal Secretary of the
Department of Housing, Government of Maharashtra was sought.
38. Mr. Bharucha would submit that a policy, as far as primary
education is concerned, has been evolved by the Municipal
Corporation for which it requires the subject plot. Its objections
are clear and apparent. If these objections were clear and
reiterated from time to time, then, the Corporation cannot be
deprived of its right of dealing with its own property.
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39. Mr. Bharucha's contentions have been opposed by Mr. P.K.
Dhakephalkar, learned senior counsel appearing for the SRA.
Mr. Dhakephalkar would submit that the Municipal Corporation
cannot raise the issue of competence of the Additional Collector to
certify Annexure-II merely because a slum rehabilitation scheme
is being implemented partly on Municipal property. Mr.
Dhakephalkar would submit that it is the prerogative of the State
Government and in terms of the Slum Act to take such measures
and initiate such steps as are permissible therein so as to
improve the condition of slums and slum dwellers. If it is not
possible to take any measures it is permissible then to clear the
plot and cause redevelopment thereof. In the process the State
has decided to consider the plight of the slum dwellers.
Therefore, such of the slum dwellers and who reside in structures
which are falling in the notified slum rehabilitation area, then,
their rehabilitation is permissible and provided for by the Slum
Act. The broad object of the Act is to remove the slums. Slums
are a source of nuisance and affects adversely public health. Mr.
Dhakephalkar, therefore, submits that rehabilitation measures
and packages are evolved and framed with the participation of
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the slum dwellers. This would ensure eradication and removal of
the slums and it is alarming that in a city of Mumbai there are
about twelve and a half lakh slums inhabiting fifty seven lakh of
the population of Mumbai approximately. It is eventually their
plight but for their benefit the structures and slums can be
removed with the involvement of several public bodies and
statutory authorities, then, merely because some slums are to be
found on Municipal land, it cannot be held that while
implementing comprehensive scheme of rehabilitation of slum
dwellers on private land adjacent to Municipal property or land,
the Municipal property or land cannot be included in such
schemes. All that would be required is a NOC from the land
owner. In this case, the land owner is the Municipal Corporation.
Mr. Dhakephalkar would submit that because of this condition
the Municipal Corporation is taking undue advantage. It is
holding up the implementation of a properly framed and
implemented slum rehabilitation scheme. It does not grant its
NOC but sits on the file. By inaction of the Municipal Corporation,
the entire slum rehabilitation scheme and object and purpose of
the Act should not be defeated and frustrated. Rather, the
provisions of that Act and Appendix-IV of the D.C. Regulation
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33(1) should be read together and harmoniously. Such inaction,
therefore, should be permitted to be taken as a deemed no
objection. It is on that footing that the SRA has proceeded and
together with other entities. Such a stand of the SRA is neither
vitiated by any error law apparent on the face of the record or
perversity warranting interference in writ jurisdiction. It is
rather the conduct of another public body and statutory
authority, namely, Municipal Corporation of Greater Mumbai
which is preventing removal of encroachments and slums from
Municipal lands. The Municipal lands being huge in number, this
curious stand of the Municipal Corporation perpetuates
unauthorized and illegal slums. Hence, the writ petition be
dismissed.
40. Dr. Sathe, learned senior counsel appearing for the
respondent No.4 in Writ Petition No.1667 of 2013 and for the
respondent No.3 in Writ Petition No. 147 of 2014 - M/s. C.D.
Nevatia Developers would submit that the Municipal
Corporation's stand should not be accepted at all. Their writ
petition must be dismissed. Equally, the petitioners in Writ
Petition No.1667 of 2013 are put up by another developer and his
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designs and motives should not succeed. Dr. Sathe would submit
that the LOI in this case was issued on 1st August, 2000. It is
renewed in the year 2012 for one year and stands renewed
further. Dr. Sathe would submit that there is no construction on
the Municipal property. The slum dwellers on private property of
respondent No.3 are shifted from the proposed DP road. The
Municipal Corporation is not cooperating even when Annexure-II
was issued. The builder and developer who is implementing the
scheme is ready and willing to lay out the road and construct it at
its own cost. It will be handed over to the Municipal Corporation.
The developer having expressed its readiness and willingness to
develop that part of the property which is reserved for Municipal
primary school and belonging to the Municipal Corporation free
of cost would definitely and if permissible in law, derive benefits
of such acts on its part. It would seek compensatory FSI and TDR.
Dr. Sathe would submit that the Om Vishwashanti Cooperative
Housing Society (Proposed) filed a writ petition being Writ
Petition No. 46 of 2002 which was disposed of on 8 th February,
2008, directing it to approach the HPC. The stay on the
construction continued and eventually on 21 st March, 2009, the
HPC passed an order. Dr. Sathe would invite our attention to the
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stand of the Municipal Corporation and in the first instance when
the Municipal Corporation stated that it does not require the land
for any important project like reservoir, fire station, ward office,
except for primary public school. Therefore, there is no objection
to permit redevelopment of the plot under reference belonging to
the MCGM. Dr. Sathe would submit that the Annexure-II is at
page 110 to 117 of the paper-book in Writ Petition No.147 of
2014. It is to the knowledge of the Municipal Corporation that
this Annexure-II has been prepared and certified on 3 rd July,
1999. Dr. Sathe would submit that at page 256 of the paper-book
there is a third Annexure-II dated 15 th June, 2001. He would
then invite our attention to page 320 of the paper-book which is
but an annexure to the affidavit of Smt. Shantidevi Nevatia. He
would submit that this document, if perused, would reveal that
there were communications from the Municipal Corporation itself
and on the application made by Om Vishwashanti Cooperative
Housing Society (Proposed) dated 12th May, 2010, under the
Right to Information Act, 2005. The information was provided by
none other than the Municipal Corporation itself. This refers to
the third NOC. Dr. Sathe would then submit that the plans were
approved by the SRA and that document would be found at page
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353 and 355 of the paper-book. Relying upon the affidavit filed
by Smt. Shantidevi Nevatia, Dr. Sathe would submit that till
2014, the Municipal Corporation has never taken a stand that it
will develop the immovable property. It did not oppose the grant
of NOC. Rather, it granted respondent No.4 the NOC.
41. Dr. Sathe would then rely upon the fact that the Municipal
Corporation was a party-respondent to Writ Petition No.991 of
2009. He would submit that pages 154 and 157 of the paper-book
would reveal that the Corporation has not availed of the liberty
granted by this Court. Dr. Sathe submits that the proposed
Housing Society Om Vishwashanti filed a writ petition in this
Court. It had contended that it forwarded a proposal to SRA for
carrying out development of the plot. That application was
considered, but as no steps were taken, the SRA decided to drop it
or not to process it. Thereafter, the Division Bench deciding writ
petition no. 991 of 2009 refers to the earlier Writ Petition No. 46
of 2002 and observe that the petitioners' proposed Society were
aware that a scheme has been sanctioned and they are bound in
law to challenge it, but it did not challenge it and raised an issue
that the matter was pending before the High Power Committee.
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That is no answer. The proposed society should have challenged
the sanctioning of the scheme in favour of the respondent No.6 to
that writ petition. Then Dr. Sathe submits that the challenge of
Om Vishwashanti thus failed. It is now propping up the Municipal
Corporation so that it to refuses to participate in the slum
rehabilitation scheme. Once the issue as to whether SRA Scheme
could be sanctioned in respect of the land belonging to the
Corporation was kept open in that writ petition and the
Corporation was granted liberty to raise it, that issue having not
been raised, now the Corporation is estopped and for that purpose
Dr. Sathe would rely upon the fact that on 12 th January, 2011,
the LOI in favour of respondent No.3 was cancelled but it
approached the HPC. The HPC passed an order on 31 st March,
2012. In pursuance thereof, on 7 th June, 2012, the CEO of SRA
has passed a fresh order. The respondent Nos.5 and 6 purported
to challenge that by filing a writ petition in this Court on 18 th
September, 2012. There again, the Municipal Corporation was a
party. Reliance is placed upon page 311 of the paper-book in that
behalf. Dr. Sathe then invites our attention to the stand of the
Municipal Corporation in Writ Petition No. 46 of 2002 and in that
regard refers to pages 534 and 539 of the paper-book. He also
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refers to pages 524 and 525 to submit that the regime of the Slum
Act is not brought in as far as the Appendix-IV of Regulation
33(10). Therefore, from 1999, if the project is going on, then, ten
years down the line the Municipal Corporation cannot raise the
issue of want of NOC or want of approval. This is not an
Annexure-II for the benefit of respondent Nos.5 and 6. Once
respondent No.3 Nevatia Developers is taking all the
responsibility and will not leave out or exclude eligible occupants
and slum dwellers from the scheme, then, the writ petition of the
Municipal Corporation should be dismissed. Equally the State
petition should also be dismissed.
42. As far as the other petition is concerned, Mr. Mihir Desai,
learned senior counsel submits that the correspondence would
reveal as to how the Municipal Corporation of Greater Mumbai
has been writing to the SRA and objecting to the scheme. The
Municipal Corporation of Greater Mumbai, therefore, has rightly
taken up the issue and in larger public interest. The writ petition
of the Municipal Corporation of Greater Mumbai must be,
therefore, allowed. Mr. Desai thus, in substance, supports the
Municipal Corporation of Greater Mumbai's writ petition and
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objects to the scheme of M/s. C. D. Nevatia Developers. The slum
dwellers, eligible and covered by the Annexure - II should be
rehabilitated is his emphasis.
43. With the assistance of the learned senior counsel appearing
for parties, we have perused the writ petitions, their annexures
and the voluminous compilations. We have also perused some of
the documents, including a recent Resolution/decision of the
Municipal Corporation, Minutes of which were tendered by Mr.
Dhakephalkar and Dr. Sathe. We have also perused the relevant
statutory provisions.
44. We are of the opinion that the fate of the Municipal
Corporation of Greater Mumbai's Writ Petition No. 147 of 2014
would clinch the issue.
45. As far as the petition of the Municipal Corporation is
concerned, none disputes it is the owner of the property
described more particularly at Annexure-A to the petition.
Further, none is disputing the reservation on the subject property
of a primary school.
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46. The petitioner-Corporation points out that one Smt. C.D.
Nevatia was the original owner of the property. The subject
property was acquired by the Corporation in or about 29 th
September, 1982 and the Property Card reflects the name of the
petitioner. The claim of the petitioner Mumbai Municipal
Corporation is that in or about 2 nd October, 1997, it issued
Annexure-II in respect of the said property alongwith adjacent
land for the purpose of development on the proposal of the
proposed Cooperative Housing Society (Om Vishwashanti). The
same was challenged by the Corporation, but prior thereto it is
stated that the CEO of the SRA expressed surprise about issuance
of such Annexure-II with regard to the Municipal property. The
petitioner-Corporation relies upon a letter addressed by the
Executive Engineer, SRA to the Assistant Municipal
Commissioner, P/North Ward dated 23 rd April, 2001, copy of
which is at page 140 of the paper-book. That letter reads as
under :
" SLUM REHABILITATION AUTHORITY
No.SRA/Eng/443/PN/P&R/LOI
5th Floor, Griha Nirman Bhavan,
Bandra (E), Mumbai - 400 051
Date: 23 APR 2001
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To,
Assistant Municipal Commissioner
P/North Ward,
Mumbai 400 001
Sub: Proposed SR Scheme on plot bearing CTS
No.558A/1 558A/2 & 558/B village Malad at
Nevatia Road, Malad(E)
Ref: No.SRA/Eng/443/PN/PR/LOI dt. 26.9.2000
Sir,
This office was in receipt of a SR Scheme proposed
fro Architect Shri R.W. Gudal on the plot bearing CTS
No.558/B of village Malad in favour of Vishwa Shanti
CHS Soc. (Prop). The land under CTS No.558/B is
under reservation of Municipal Primary school and is
required by MCGM in past from its owner Smt. C. D.
Nevatia and other.
The Annexure-II for this plot was also issued by the
then W.O. P/North on 2.10.1997 and remarks from
Education Officer giving their requirement for the
school was also received. The proposal under
reference was not persued by the Architect/ society.
Thereafter the proposal on the school plot was closed
and recorded due to non compliance from Architect
meanwhile this office received another proposal from
Architect Shri L.D. Babladi on behalf of the developer
Smt. C.D. Nevatia & others on the land bearing CTS
No.558A/1, 558A/2 & 558/B Architect has obtained
Annexure II dated 3.7.98 for the all the three above
said plots including Municipal School plot, the
proposal was approved by this office as per SR
Scheme prevailing policy keeping provision for
municipal Primary School and LOI was issued to the
Architect/Developer under intimation of then Ward
Officer P/North.
Subsequent to this approval, the slum dwellers on
Municipal School plot under the banner of some
different developer have approached this office for
approval of SR Scheme on Municipal reservation plot
i.e. CTS No. 558/B. On representation from the
complaint, regular the matter was put up to
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Secretary (SRA/CEO(SRA) where it is opined to
obtain separate Annexure II for Municipal and
private land.
In view of the above you are requested to issue
Annexure II for Municipal land alongwith NOC for the
development of Municipal reserved plot.
Yours faithfully
Sd/- Sd/- Sd/-
23/4/01 23/4/01 23/4/01
S.E.(S.R.A.) A.E.(S.R.A.) Executive Engineer (SRA)"
47. According to this letter, it is apparent that the Executive
Engineer and the SRA maintained that a separate Annexure-II
would have to be prepared for the Municipal and private land.
That is how the Assistant Municipal Commissioner was requested
to issue the same.
48. On 23rd April, 2001 itself, the SRA addressed a letter to the
Collector (Encroachments), Old Custom House, Mumbai and the
same reads as under :
" SLUM REHABILITATION AUTHORITY
No.SRA/Eng/443/PN/ML/LOI
5th Floor, Griha Nirman Bhavan,
Bandra (E), Mumbai - 400 051
Date: 23 APR 2001
To,
Additional Collector (ENC)
Old Custom House,
Mumbai 400 001
Sub: Proposed SR Scheme on plot bearing CTS
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No.558A/1 558A/2 & 558/B village Malad at
Nevatia Road, Malad(E)
Ref: 1) Annexure-II issued by Dy Colector (ENC)
under No.UD-4/Desh-13C/22(10)/SR dated
3.7.99 .147/99
2) This office earlier letter u/No.SRA/ENG/
10458 dated 9.10.2000.
Sir,
This office has approved SR Scheme on above
referred plot of village Malad at Nevatia Road, Malad
(E) based on the Annexure-II forwarded by you under
No.UD-4/Desh-13C/33(1))/SR/147/99 dated 3.7.99 it
may be mentioned here that the plot under reference
comprises of D.P. Road land, Municipal Primary
School reservation plot and other Slum plots.
The plot bearing C.T.S. 558/B is under Municipal
School reservation and the same has been acquired
by MCGM in past from the present Developer Mrs.
C.D. Nevatia & Others Prior to receipt of the
Annexure-II from your office, in past, this office is
also in receipt of Annexure-II issued by Ward Officer
P/North for the slum on the Municipal school plot.
Subsequent to the approval of the SR Scheme, the
slum dwellers on Municipal school plot under the
banner of some different Developer have approached
this office for approval of SR Scheme on the
Municipal reservation plot i.e. CTS No.558/B.
On representation from this complaint / request
the matter was heard by Secretary SRA and an
independent report submitted in CEO(SRA),
Secretary (SRA) has expressed his surprise to the
Annexure-II issued by Additional Collector (ENC) for
the slum on the Municipal plot for which Ward officer
P/N is designated Competent Authority to issuing
Annexure-II.
The CEO (SRA) has directed to obtain report /
clarification Additional Collector (ENC) AS TO HOW
additional Collector has issued Annexure-II on
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Municipal land and rectify the same immediately.
In view of the above you are requested to clarify
the same immediately.
Yours faithfully
Sd/- Sd/- Sd/-
23/4/01 23/4/01 23/4/01
S.E.(S.R.A.) A.E.(S.R.A.) Executive Engineer (SRA)-III"
49. Thus, it is apparent that the SRA was of the view that
Annexure-II for Municipal land will have to be prepared by the
competent authority, namely, the Assistant Municipal
Commissioner. No Annexure-II could have been prepared and
issued by the Deputy Collector is the stand taken. That is how
even C.D. Nevatia was informed by the SRA by the letter at page
144 Annexure-H to the petition dated 26 th July, 2001. A meeting
was held with the CEO, SRA on 25th June, 2001, and it was
decided that Smt. Nevatia should submit a NOC from the
Municipal Corporation for the development of the Municipal
school plot being under reservation within 15 days from the date
thereof. It was clarified that if this NOC is not submitted within
the stipulated period, the SRA will proceed to record and close the
SRA scheme and the proposal submitted by another developer
with Annexure-II issued by the land owning authority, namely,
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the Municipal Corporation of Greater Mumbai will be processed
further on its merits.
50. On 21st July, 2001, Annexure-I at page 145 of the paper-
book, the Assistant Commissioner, P/North Ward replied with
reference to the LOI of the proposed slum rehabilitation scheme
on the subject property that at the joint meeting held on 6 th July,
2001, the issue was further discussed and it was observed that
important aspect of consent of hutment dwellers situated on the
plot is a primary condition for issuance of NOC / Annexure-II and
which M/s. Nevatia Developers did not fulfill. It was also reported
that till the letter dated 15th July, 2001, the office of the Assistant
Commissioner was in dark about M/s. Nevatia Developers'
proposal for development. No communication was received on
this proposal either from SRA or from M/s. Nevatia Developers
till now. Without consent of the seventy per cent members of the
hutment dwellers, a scheme cannot be issued with NOC or
Annexure-II.
51. Then, what we have is an order passed by this Court in Writ
Petition No.46 of 2002. That was a petition filed by Om
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Vishwashanti Cooperative Housing Society Limited & 3 Ors. vs.
The Chief Executive Officer, S.R.A. & 3 Ors. That order, copy of
which is at page 146 and 147 of the paper-book reads as under:
" It is admitted by the learned counsel for
respondent no.5 as well as learned counsel for
respondent nos.1 and 2 that in so far as the land
bearing CTS no. 558/B and 558/B 1 to 40 situate at
village Malad (East) owned by Bombay Municipal
Corporation is concerned, upon which redevelopment
is proposed by respondent no.5, Annexure II has not
been issued by the concerned authority of Bombay
Municipal Corporation. However, according to
respondent no.5, as it intends to develop the land
comprising of CTS no. 558/B and 558/B 1 to 40
owned by the Bombay Municipal Corporation and so
also adjoining land owned by private persons, the
Competent Authority to issue Annexure II is
Additional Collector (Encroachment) and the said
Authority has already issued Annexure II to
respondent no.5.
2. It requires elaborate consideration by this
Court whether for the redevelopment of the land
owned by the Bombay Municipal Corporation, without
issuance of Annexure II by the concerned authority of
Bombay Municipal Corporation, respondent no.5 can
be permitted to redevelop the said land or not.
3. Hence Rule.
4. Mr. S.G. Surana, Advocate waives service for
respondents 1and 2, Mr. M.B. Rao, Advocate waives
service for respondents 3 and 4, Mr. Pandey,
Advocate waives service for respondent no.5 and Mr.
Pradeep Jadhav, Advocate waives service for
respondent no.6.
5. Hearing expedited in the month of October
2002.
6. Rule on stay, returnable forthwith.
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7. During the pendency of writ petition, the
parties are directed to maintain status quo in respect
of development of land in question i.e. CTS no. 558/B
and 558/B 1to 40, village Malad (East), Bombay.
However, respondent no.5 shall be free to develop the
land in accordance with law other than the land
aforestated owned by Bombay Municipal
Corporation."
52. This petition was admitted and this Court directed parties
to maintain status quo in respect of the development of the land
in question. It was clarified that the developers can develop the
land which was private and leaving out the Municipal land from
its project. We have reproduced this order and particularly
emphasized paragraphs 2 and 7 thereof in order to appreciate Dr.
Sathe's and Mr. Dhakephalkar's arguments about deemed NOC
and to which we shall advert a little later.
53. This writ petition was disposed of on 8th February, 2008, in
the light of the Full Bench judgment of this Court thereby
relegating parties to the remedy of approaching the High Power
Committee. Thereafter, the HPC was approached and the HPC in
its order passed on 21st March, 2009, noted the objection of Om
Vishwashanti CHS with regard to the claim made by the
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developers M/s. Nevatia Developers that they had an Annexure-II
in their favour in relation to both lands, namely, the private land
and the MCGM land. This could not have been the position
according to Om Vishwashanti CHS. After the list of occupants
was submitted to the Assistant Municipal Commissioner and the
authority, in turn, had granted Annexure-II and NOC to permit
redevelopment of the land belonging to MCGM. Though this
application was dismissed, we do not find any discussion therein.
Then comes Writ Petition No.991 of 2009 which was decided by
this Court on 22nd January, 2010. That challenged the order of
the HPC. That order, to the extent relevant, reads as under :
" The present petition by the Petitioners seek
to challenge the said scheme on various grounds as
also the order dated 21.3.2009.
The question before us is whether we could in
these circumstances entertain the present writ
petition. On behalf of the Petitioner the learned
counsel stated that the scheme could not have been
sanctioned as the land belongs to the Corporation and
apart from that there are various violations of
statutory provisions.
It is also sought to be pointed out that filing
of the Petitioner's application was not communicated
to the Architect and in these circumstances, the
Petitioners were not aware of the same.
Respondent No. 6, the present developer has
filed an affidavit on 19.8.2009 with which he has
annexed the copy of the reply filed by the S.R.A. in
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Writ Petition No. 46 of 2002. That affidavit was
affirmed on 4.2.2002. That affidavit contains various
annexures which will also show the correspondence
exchanged by the S.R.A. with the Architects of the
Petitioners as also the letter dated 1.8.2000. which
shows that the scheme submitted by Respondent No.
6 has been approved.
In our opinion, once the Petitioners were
aware that the scheme has been sanctioned, the
Petitioners were bound in law to challenge the
sanction of scheme in favour of Respondent No. 6.
Merely contending that issue was before the high
power committee in our opinion is no answer. In the
earlier Writ Petition No. 46 of 2000, the petitioners
had not challenged the sanctioning of the scheme in
favour of the Respondent No. 6, though the reply filed
by S.R.A. Clearly disclosed that fact.
Even if we accept the contention on behalf of
the Petitioners that their Architects were not
intimated about the filing of application, at least in
the year 2002 they became aware of the same.
Inspite of that no steps were taken to challenge the
scheme sanctioned in favour of Respondent No. 6. The
issue as to whether the S.R.A. could have been
sanctioned in respect of the land belonging to the
Corporation need not be gone into. It is for the
Corporation to take such steps in law to which they
are entitled to protect their interest. Disposal of the
Petition will not stand in the way of the Corporation
protecting ts legitimate rights. Considering the above,
in our opinion, the challenge to the scheme in favour
of Respondent No. 6 is belated and hit by laches. In
the light of that, we are not inclined to interfere in
exercise of our extra ordinary jurisdiction. Hence,
Petition rejected."
54. It is in these circumstances that we are unable to accept the
arguments of Dr. Sathe and Mr. Dhakephalkar that the
Corporation has acquiesced or has granted a consent for
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development on its own land on the basis of the approvals and
permissions obtained by M/s. Nevatia Developers.
55. In fact, on 23rd March, 2010, the SRA issued notice to Smt.
C.D. Nevatia and others which conveys a clear intent to invoke
section13(2) of the Slum Act. On 15th April, 2011, the developers
were informed by the SRA that their proposal or scheme of
rehabilitation on both plots shall not be processed further and
only stands recorded. ig Then, on 19 th July, 2011, the SRA
addressed a letter to the Assistant Municipal Commissioner
P/North Ward forwarding along with the same, the relevant
documents, including a proposal received for sanction and
approving a SRA scheme on the plot. The Assistant Municipal
Commissioner was requested to send a list of the existing of the
structures, including religious structures, schools etc. and
whether any one of them can be said to be eligible reckoning the
cut off date as 1st January, 1995. This letter was immediately
replied on 14th September, 2011 in which the Municipal
Corporation informed that the subject plot has a reservation of
Municipal primary school and playground. It was also informed
that a proposal from M/s. Om Vishwashanti Cooperative Housing
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Society (Proposed) requesting approval to the Annexure-II has
been received on 27th July, 2011. It was emphasized that with
regard to this plot, on three occasions earlier, Annexure-II was
prepared and approved by the Assistant Municipal
Commissioner, P/North Ward. On one occasion, another
Annexure-II was prepared by the Additional Collector
(Encroachment/Removal) in the name of the builder and
developer M/s. C.D. Nevatia Developers. However, the proposal of
the developer has been rejected and we are of the opinion that
from this communication of the Corporation, copy of which is at
page 166 Annexure-Q, it was not the intent of the Corporation at
any time to approves the other schemes in relation to Municipal
plot. Rather, the Municipal Corporation decided that its land
admeasuring 4501.3 square meters should not be given to the
hutment dwellers for SRA scheme. The list of eligible slum
dwellers on this land should be prepared and they should be
transferred/relocated to Municipal Corporation Project Affected
Persons Building. After the land is cleared and a compound wall
is erected across it, the Education Officer should take over the
same for proposed reservation. It is these proposals which have
been approved.
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56. At Annexure-R page 174 of the paper-book is a copy of the
letter dated 7th October, 2011, from Shantidevi Nevatia and
others to the Ward Officer, P/North Ward of the Municipal
Corporation. The said letter reads as under :
"7th October 2011
FROM:
SHANTIDEVI NEVATIA & ORS.
Navetia House, Kishanlal Nevatia Road,
Malad (East), Mumbai - 400 097.
To,
The Ward Officer, P/North Ward
Respected Sir,
Ref: Proposed SR Scheme on plot bearing CTS No.
558A-1 558A-2 and 558B of Village Malad,
Taluka Borivali of Nevatia Compound,
Kishanlal Nevatia Road, Malad (East),
Mumbai.
Sub: Request to maintain the no objection given to
us / to give fresh NOC for developing the
above referred scheme which includes land
acquired by MCGM (CTS No.558 B) to keep
the scheme safeguarded from the rival
developers who are trying to highjack the
project by misrepresenting some of SRA
Officers.
We had submitted Scheme for the development o the
plot of land bearing CTS No. 558A-1, 558A-2 which is
owned by us and 558B which was owned by us and is
acquired by MCGM (New CTS No.558A/1A(Part),
558A/1A/1 to 25, 558A/1C, 558A/1C/1 to 24, 558B/1
to 40) of Village Malad, Nevatia Compound, Kishanlal
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Nevatia Road, Malad (East), Mumbai, under SRA
Scheme vide No.SRA/ENG/443/PN/PL/LO, which was
duly approved and sanctioned and letter of intent in
respect whereof is issued to us.
The SRA has sanctioned the scheme as there being no
objection raised by you, who is the land owing
authority in respect of the CTS No.558 B and the
same is termed as your deemed NOC for developing
the land.
The MCGM land is originally owned by us and is
acquired by the MCGM for the Public Purpose
construction of Municipal School. The land owned by
MCGM is now encroached by the slum dwellers and is
surrounded by land owned by us. D.P. Road is also
passing through the land owned by us. We shall be
developing the MCGM land alongwith the land owned
by us by implementing the consolidated scheme
which would be an ideal scheme whereby slum on
MCGM land and land owned by us can be cleared,
Reservation can be built up on and D.P. Road will be
constructed which passes through the land owned by
us.
We had through a long struggle won the legal battle
against the rival society through their developers
taking the Detour path by misrepresenting and
managing SRA Authorities to grab the scheme which
on the land owned by us. Even the Hon'ble High Court
has dismissed the Writ filed by the rival Society by its
order dated 22.01.2010 passed in the Writ Petition
No.991 of 2009, a copy of the same is enclosed
herewith for your perusal.
We have the support of more than 70% of Slum
Dwellers as the same is undisputed fact in the light of
the grant of LOI in our favour by SRA and we have
also obtained the fresh agreements and consents as
there being revision of the area to be allotted to the
slum dwellers from 225 sq. ft. to 269 sq. ft.
We hereby request you to maintain your No Objection
for developing the MCGM land by us by
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implementation of Slum Rehabilitation Scheme
and/or to grant fresh NOC in our favour.
Please do the needful and oblige.
Thanking you
Yours Truly,
Sd/-
Shantidevi Nevatia and Ors.,
Through their Constituted Attorney
Mr. Ramji H. Shah."
57. A bare reading of this letter would indicate as to how the
developer understood that a no objection would have to be
granted or maintained for developing the MCGM land for
implementation of the slum rehabilitation scheme and there is
nothing like a deemed consent. Rather, this letter requests grant
of a fresh NOC in favour of Shantidevi Nevatia and others. We do
not find that in the teeth of this, the revised LOI, copy of which is
at page 176 of the paper-book can carry the case of these
developers or the SRA any further. The terms and conditions
thereof have been relied upon by Dr. Sathe, but those terms and
conditions and particularly condition No.15 do not, in any
manner, indicate that the petitioner-Corporation has granted any
consent, much less any deemed one can be inferred from it.
Rather, in the salient features of the scheme set out at page 179,
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the LOI indicates the area of slum plot as 6059.10 square meters
and it deducts the approved FSI in Building Proposal Department
of MCGM dated 7th February, 2010 and a P.G. Reservation etc.
Thus, it is apparent that the SRA was aware that without the
concurrence and approval of the Municipal Corporation no
scheme can be implemented qua its plot. From page 180 of the
paper-book, it is apparent from condition No.21 that M/s. C.D.
Nevatia Developers were called upon by the Deputy Chief
Engineer, SRA and the Executive Engineer and Superintending
Engineer to obtain NOC before requesting for approval of plans or
at the stage at which it is insisted upon by the concerned
Executive Engineer, SRA from the P/North Ward of the Municipal
Corporation. It is clear, therefore, that no question or any
deemed consent arises and the SRA or the developer cannot rely
upon the alleged inaction of the Corporation in that behalf.
Whatever may be the fate of the scheme proposed by Nevatia
Developers, once on account of the order passed by this Court in
Writ Petition No.46 of 2002 and the specific clarification given in
the latter order passed on 22 nd January, 2010 in Writ Petition
No.991 of 2009, the SRA and the private parties could not have
proceeded on any implied consent or deemed NOC from the
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Municipal Corporation.
58. This aspect becomes clear if one peruses Annexure-AA
which is a copy of the letter of the MCGM dated 10 th January,
2013, to the CEO of SRA. After recording all the above facts and
circumstances, the Deputy Municipal Commissioner, Zone-IV
terms the letter from CEO, SRA dated 24 th December, 2012, as
containing distorted facts and resorting to fraudulent documents.
The LOI and IOA and the CC have all been questioned and it was
requested that the same be terminated. No law gives SRA the
authority to develop a property styled as Municipal land without
grant of Annexure-II from the competent authority, namely, the
Assistant Commissioner, P/North Ward of and NOC from the land
owning authority, namely, the Municipal Corporation of Greater
Mumbai. The Municipal Corporation evinces its clear intent to
start developing its own plot.
59. If there was ever any doubt about the above that stands
completely cleared by the letter addressed by none other than the
Municipal Commissioner himself on 20th March, 2013, to the
Principal Secretary (Housing), Government of Maharashtra.
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That letter raises serious objections with regard to the role of
SRA and the acts attributed to it. The letter specifically requests
for a direction to cancel all the permissions and approvals so far
as they relate to the Municipal land and granted by the SRA.
Therefore, it would not be proper to accept the contentions of the
learned counsel appearing for the respondents and contesting the
petition that the Municipal Corporation had approved their acts.
Once they have to rely upon and raise a plea of deemed consent,
then, it goes without saying that neither there is any Annexure-II
which is sanctioned in relation to the Municipal land favouring
the developer nor there is any NOC from the Municipal
Corporation. The Municipal letter dated 21 st October, 1997,
which is relied upon will not take the case any further inasmuch
as on the own showing of the respondent No.3, a LOI was issued.
That was relying upon nothing, but a deemed consent. The
petitioner-Corporation allegedly not objecting to the
implementation of the scheme their deemed consent is what is
pleaded by the respondent No.3 at page 238. For the reasons that
we have set out and once the aspect of Municipal Corporation's
NOC was clearly kept open by this Court as well in its order
passed on 22nd January, 2010, in Writ Petition No.991 of 2009,
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then all the more we cannot and based on the affidavit-in-reply
filed by respondent No.3 uphold the contentions of both Dr. Sathe
and Mr. Dhakephalkar.
60. It has been clarified by the petitioners in their rejoinder
affidavit as to how the plot of land in its entirety is reserved for
Municipal primary school. It desires to develop it and bearing in
mind the object and purpose of the RTE Act. Reliance is rightly
placed in this affidavit on the order passed by this Court in Writ
Petition No.991 of 2009. Once the consent or No Objection
Certificate from the land owning authority was required and that
is the stand of the SRA as well, then, we do not understand how
the writ petition filed by the Municipal Corporation can be
opposed by the SRA. The whole stand perplexes us to say the
least.
61. Once we have dealt with the main contentions of the parties,
then, we do not think that the peripheral issues need to be
addressed.
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62. We are of the opinion that the Municipal Corporation was
always at liberty to question the actions of the SRA in relation to
its property. The Municipal Corporation's endeavour is to
safeguard the larger public interest. It could not have sacrificed
and surrendered a valuable piece of land which was acquired by it
and vested in it for a public purpose. It could not have ignored its
own reservations clamped on the subject property and as
reflected in the development plan. Once the Municipal
Corporation acted in this manner, then, we do not think that
there is any substance in the objection to the maintainability of
this petition on the ground of delay. We are of the opinion that
the Letter of Approval and the Commencement Certificate being a
development of 2012 and the intent of the Corporation in moving
this Writ Petition on 16th December, 2013, are enough to turn
down the plea of lack of bona fides on its part.
63. Once we have held as above, then, it is not necessary to
specifically refer to each and every document and relied upon by
the respondent No.3 in Writ Petition No. 147 of 2014.
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64. We are of the firm opinion that the scheme of respondent
No.3 can go through qua its property (private property). It
cannot, in the garb of any LOI seek to develop a public land or a
Municipal property or foist its scheme on it. Once the writ
petition was filed by the Municipal Corporation and seeking a
declaration to the above effect, then, all the more we cannot
accept the contentions of the developers. We have already noted
the stand of the SRA and expressed our surprise at the same.
Apart therefrom, we need not consider the arguments and
particularly on interpretation of Appendix-IV of D.C. Regulation
No.33(10) and clause 2.8 thereof. The SRA having clearly
maintained in its correspondence and in its letters addressed to
the Municipal Corporation that its NOC will be specifically
required for sanctioning any slum rehabilitation scheme on its
property, then, Dr. Sathe's reliance upon other documents and
particularly some paragraphs in the affidavits filed on behalf of
the Municipal Corporation would not carry the case of these
persons any further.
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65. As a result of the above detailed discussion, following order:
(i) Rule is made absolute in terms of prayer
clauses (a) and (b) in Writ Petition No.147 of
2014.
(ii) As a consequence, Rule in Writ Petition
No.1667 of 2013 stands discharged.
(iii) There shall be no order as to costs.
A.A. SAYED, J. S.C. DHARMADHIKARI, J.
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