Bombay High Court
M/S Reliance Enterprises vs Shri Mohmad Naiem Shaikh And Ors on 20 September, 2017
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7007 OF 2016
M/s. Reliance Enterprises .. Petitioner
vs.
Shri. Mohamad Naiem Shaikh
and ors. .. Respondents
WITH
WRIT PETITION NO. 7006 OF 2016
M/s. Reliance Enterprises .. Petitioner
vs.
Shehzadi Begum Shaikh and ors. .. Respondents
WITH
WRIT PETITION NO. 7005 OF 2016
M/s. Reliance Enterprises .. Petitioner
vs.
Parvin Imran Ansari and ors. .. Respondents
Mr. G.S. Godbole i/b Merlyn Dias for the Petitioner.
Mr. S.P. Nalavade for Respondent No.1.
Mr. S.H. Kankal, AGP for Respondent -State .
CORAM : M. S. SONAK, J.
DATE : 20 SEPTEMBER 2017.
COMMON ORAL JUDGMENT :-
1] Mr. Godbole, learned counsel for the petitioners, in each of the
petitions, craves leave to delete respondent Nos.2 to 4. Leave is
granted. Amendment to be carried out forthwith.
2] Heard learned counsel for the parties.
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3] Rule. With the consent of and at the request of learned
counsel for the parties, Rule is made returnable forthwith.
4] The challenge in all these petitions is to the order dated 7th
December 2015 made by the Additional Collector (E/R) exercising
appellate jurisdiction under Section 35 of the Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act, 1971
(Slum Act). The impugned order is a common order made in all five
appeals. However, in these three petitions, we are concerned with
Appeal Nos.42 of 2015, 44 of 2015 and 46 of 2015.
5] By the impugned judgment, the Appellate Authority has set
aside the orders dated 19th January 2015 made by the Competent
Authority and remanded the matters to the Competent Authority for
reconsideration.
6] Mr. Godbole, learned counsel for the petitioners, submits that
the appellants, in aforesaid three appeals, have been held to be
ineligible to the benefits of redevelopment scheme. Since, they were
not vacating the area under their occupation, the Competent
Authority, made orders under Sections 33 and 38 of the Slum Act for
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their removal. The Appellate Authority, in the impugned order, has
held that such orders ought not to have been made until the issue of
eligibility of the appellants in the three appeals was sorted out or
finally decided. It is basically on this ground that the order dated
19th January 2015 made by the Competent Authority has been set
aside and the matters are remanded to the Competent Authority.
7] Mr. Godbole submits that as a result of the impugned order,
further redevelopment has come to a halt almost indefinitely. He
submits that several other dwellers who have been adjudged as
eligible have already vacated the area. He submits that without
prejudice, the petitioner is prepared to pay 18 months rent in lieu of
alternate accommodation to the three appellants. He submits that
during the period of 18 months, it is for these appellants to sort out
their issue of eligibility, if the appellants are adjudged as eligible, the
petitioners, will have no difficulty granting them the benefits of
redevelopment scheme. However, the entire redevelopment cannot
be stalled in this manner. He relies on the decision of this Court in
Seva Co-operative Housing Society and ors. vs. M/s. Reliance
Enterprises Pvt. Ltd. and ors. (Writ Petition No. 3792 of 2016
decided on 16th April 2016) and the order made by the Hon'ble
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Supreme Court on 25 April 2016 declining to interfere against the
said order. He points out that the said orders also concern the
petitioner and the development which the petitioner is undertaking.
Mr. Godbole submits the said order applies squarely to the present
petitions.
8] On the other hand, Mr. S.P. Nalavade, learned counsel
appearing for respondent No.1 (appellants) before the Appellate
Authority, in all the three petitions, submits that the petitioners have
played fraud in getting approvals for the Scheme. He points out that
the petitioners by their communication dated 6th September 2004,
had applied for development in respect of Aradhana Society and
Seva Cooperative Housing Society. He points out that the premises
which are in the occupation of respondent No.1 do not pertain to
either of the societies. He submits, therefore, that the permission for
redevelopment stand vitiated by fraud. Further, he submits that until
the issue of eligibility of respondent No.1, in each of these petitions,
is decided, the said respondents cannot be ordered to be evicted
from the premises in their occupation. He points out that several
other occupants who were declared as eligible or ineligible are at the
site and therefore, there is really no reason to make orders under
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Sections 33 and 38 of the Slum Act. For all these reasons,
Mr.Nalavade submits that these petitions are required to be
dismissed.
9] Having considered the rival submissions, perused the
impugned order as well as other material on record, I am satisfied
that this is a case where the impugned order is required to be
suitably modified.
10] In this case, before quite some time permissions/approvals for
redevelopment have been granted. The validity or otherwise of such
permission/approval is really not the subject matter of these
petitions, because the same was not the subject matter of the appeals
before the Appellate Authorities. In fact, in the impugned order, it is
recorded that the appellants in Appeals had made a statement that
they are not against the Scheme, but their basic grievance relates to
their being declared as ineligible, on account of some discrepancy in
names and such other untenable reasons. In these circumstances, the
contention of Mr.Nalavade as regards fraud or any illegalities in the
approvals/permissions for redevelopment Scheme cannot be
entertained in these petitions.
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11] In these cases, there is no dispute that at least as of now,
respondent No.1, in each of the petitions, have been held to be
ineligible to receive the benefits of the redevelopment. Mr. Nalavade
was not quite clear as to whether the issue of their eligibility is
pending before any Authority. Be that as it may, liberty can always be
granted to respondent No.1, in each of the petitions, to take out
proceedings before the appropriate Authorities for determination of
their eligibility or for challenging their ineligibility. In fact, if
respondent No.1, in each of the petitions, take out such proceedings
within a period of one month from today, then, the Authority
concerned is directed to adjudicate upon the same on merits,
without adverting to the issue of limitation, if any. The Authority
concerned, should endeavour to dispose of these proceedings, if
initiated, within a period of six months from the date of their
institution.
12] However, until the issue of eligibility is determined, it is not
possible to countenance a situation where the entire redevelopment
is stalled. The impugned order, which has such effect, is therefore
required to be modified. It is to be noted that even if respondents
No.1, in each of the petitions, were to be adjudged as eligible to the
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benefits of redevelopment, they would have to vacate their premises
in occupation and make way for redevelopment. At the highest, they
would get the benefits of redevelopment as well as benefits of transit
accommodation or compensation in lieu of transit accommodation.
Respondents No.1, in each of the petitions, who have been declared
as ineligible cannot be any higher pedestal than even their eligible
counterparts.
13] In this case, the petitioner, has offered to pay 18 months
compensation in lieu of alternate accommodation. In this regard,
Mr.Godbole had offered to hand over post dated cheques for 18
months at the rate of Rs.10,000/- per month in respect of
respondents No.1, in each of the petitions. Incidentally, Rs.10,000/-
per month is the rate at which the compensation is paid even to
eligible persons, who may not have been given transit
accommodation. During this period, it is for respondents No.1, in
each of the petitions, to sort out their issue of eligibility. If they are
held as eligible, no doubt, they will be entitled for benefits of
redevelopment. If they are held as ineligible, Mr. Godbole makes a
statement that no refund will be sought from them in respect of the
compensation of 18 months. This, substantially, protects the interest
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of respondents No.1, in each of the petitions.
14] This Court, in case of Seva Co-operative Housing Society
(supra), made the following observations :-
"6. I have considered the rival submissions advanced by the
learned counsel appearing for the parties. I have also perused
the material on record. As noted earlier, the Competent
Authority passed order under sections 33 and 38 of the Act and
declared that 23 persons are ineligible. The Competent
Authority also directed these persons to vacate the premises in
their possession and hand over vacant and peaceful possession
to the first respondent. Section 33 of the Act empowers the
Competent Authority to pass orders directing eviction of
occupants from the premises subject to giving reasonable
opportunity to occupants to show cause as to why they should
not be evicted therefrom. Section 38 thereof empowers the
Competent Authority to make orders directing demolition of
building in certain cases. As noted earlier, the Competent
Authority exercised powers under sections 33 and 38 of the Act
after giving apartments to the affected persons. Aggrieved by
that order, 14 persons out of 23, preferred Appeal. Perusal of
Exhibit-E (Pages 52 to 63 of writ petition compilation) shows
that Appeal was preferred by the petitioners as a proposed
society through its members who are 14 in persons against
respondents no. 1 and 2. By order dated 3.3.2016, Addl.
Collector dismissed the Appeal and confirmed theorder of the
Competent Authority subject to certain directions. Perusal of
that order shows that main contention advanced before Addl.
Collector was as regards validity of Annexure-II. Mr.Godbole
and Mr. Apte submitted that the remedy to challenge Annexure-
II is by approaching H.P.C as per the Full Bench decision of this
Court in the case of T.N.Co-op.Hsg.Society Vs. State of
Maharashtra, 2007(6) Mh.L.J. 851. Mr. Bhatt did not dispute
this proposition. In view of paragraphs 114(c) and 118 (D) of
T.N.Coop. Hsg Society (supra), if any party is aggrieved by
Annexure-II, it has to approach H.P.C. Thus, Addl. Collector
could not have gone into validity or otherwise of Annexure-II
and has to proceed on the basis that the said Annexure is valid.
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Understood thus, I do not find that the Competent Authority
committed any error in passing the orders under sections 33
and 38 of the Act as also Addl. Collector in dismissing the
Appeal.
7. Mr. Godbole appearing for respondent no.1 reiterated
that 3 ineligible slum dwellers who are appellants no. 7, 9 and
12 before the Addl. Collector will be given 18 months rent and
if they approach the Competent Authority along with
documents for establishing their eligibility as per Government
Resolution dated 16.5.2015 and if they are found eligible, then
respondent no.1 will also give all benefits which are otherwise
given to 11 appellants who were found eligible. Statements
made by Mr. Godbole are recorded."
15] The Hon'ble Supreme Court in its order dated 25 th April 2016
has made the following order:
"Upon hearing the counsel the Court made the following
O R D E R
Since the petitioners have cured the defects, and paid
the deficit Court fee, Registry is directed to register the instant
special leave petition.
We have heard learned counsel for the rival parties.
Learned counsel for the petitioners states, that all the
petitioners shall handover vacant possession of their hutments
to respondent no.1 - M/s. Reliance Enterprises Private
Limited, within seven days from today, i.e., on or before
2.5.2016. Learned counsel for the petitioners further states,
that 11 of the eligible slum dwellers mentioned in the order
dated 3.3.2016 passed by the Court of the Additional Collector
(Encroachment/Eviction), Western Suburbs and Appellate
Authority, Mumbai, have to be paid monthly rent, which has
not yet been paid to them.
Learned counsel representing respondent no.1 - M/s
Reliance Enterprises Private Limited undertakes to pay all the
14 slum dwellers, referred to in the order dated 3.3.2016,
eighteen months' advance rent, within two days, by way of
post dated cheques. It is submitted, that the 11 eligible slum
dwellers will be continued to pay rent even thereafter. But
payment to three ineligible slum dwellers would be made only
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upon their obtaining appropriate orders of eligibility.
In view of the above, the instant petition is disposed of
with a direction to petitioner nos. 2 to 15 to vacate their
hutments, within seven days from today. Likewise, the
respondent no.1 shall pay rent, as undertaken, within the time
stipulated.
As a necessary consequence of the above order, the
demolition of the hutments of petitioner nos. 2 to 15 shall
remain stayed, till 2.5.2016.
Disposed of in the aforesaid terms."
16] The aforesaid orders apply to the present petitions,as well.
The impugned orders therefore warrant modification. The order
made by the Competent Authority on 19th January 2015, is upheld
and restored. However, it is directed that the same will be
implemented only after a period of two months from today. Further,
prior to implementation of the order dated 19 th January 2015, the
petitioners, shall hand over the cheques towards compensation in
lieu of transit accommodation for 18 months at the rate of
Rs.10,000/- per month to respondents No.1, in each of these
petitions. Further, the petitioner, shall file necessary undertakings
before the Competent Authority to effect that they will grant benefits
of redevelopment to respondent No.1, in each of the petitions,
should the said respondents be held as eligible to the benefits of
redevelopment.
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17] Rule is made partly absolute to the aforesaid extent. There
shall, however, be no order as to costs.
18] The Competent Authorities to act on the basis of
authenticated copy of this order.
(M. S. SONAK, J.)
