Narveer Tanaji Co-Operative ... vs The State Of Maharashtra And 3 Ors
2021 Latest Caselaw 3756 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION

                      WRIT PETITION NO. 2846 OF 2019


Narveer Tanaji Co-operative Housing Society
Ltd. & Ors.                                           ... Petitioners
            Vs.
The State of Maharashtra & Ors.                        ... Respondents


                            ...........
Mr. Pravin Samdani, Senior Counsel a/w. Mr. Mayur Khandeparkar
a./w. Mr. Arun Panickar for the Petitioners.
Mr. Vijay D. Patil for the Respondent No.2-SRA.
Mr. L. T. Satelkar, AGP for the Respondent-State.


                                  ..........
                      CORAM: A. A. SAYED AND
                             MADHAV J. JAMDAR, JJ.

DATE : 1st MARCH, 2021

P. C:-

1. This Petition is filed by Petitioner No.1 which is a registered

society. Petitioner Nos. 2 to 20 are the members of the Petitioner

No.1. The Petitioners by the present Petition are challenging the

decision dated 5th January, 2019 of the Respondent No.3- Deputy

Collector (Enc & Rem) & Competent Authority, by which the

Petitioner Nos. 2 to 20 are held to be ineligible to get Permanent

Alternate Accommodation in view of clause No. 4(5) of Government

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Notification dated 11th July, 2001. The said clause No. 4(5) of

Government notification dated 11th July, 2001 records policy

decision of the Government of Maharashtra not to grant protection

to the persons staying on the mezzanine/first floor/loft of hut. The

Petitioners have also sought Writ of Mandamus or any other writ,

order or direction declaring Petitioner Nos. 2 to 20 as eligible for

Permanent Alternate Accommodation in the implementation of slum

scheme on the said property.

2. It submitted by the learned Senior Counsel appearing for the

Petitioners that the Petitioner No.1 through Respondent No.4 is

implementing slum rehabilitation scheme on the property bearing

CTS Nos. 78, 78/1 to 25 of Village Kurla-4 admeasuring about 685.7

sq.mtrs or thereabout situate at New Mill Road, Kurla (West),

Mumbai-400070(hereinafter referred to as "said property" ). He

submitted that building/chawl was constructed on the said property

comprising of ground + first floor and constructed prior to 1940. He

submitted that the Petitioner Nos. 2 to 20 and other occupants of the

said building/chawl were earlier tenants. He pointed out assessment

record of the Municipal Corporation of Greater Mumbai showing

that the first date of assessment is 31st March, 1962 and the said

chawl is consisting of ground floor and first floor structure. He

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pointed out that assessment record shows that prior to 31 st March,

1962 on the first floor there are total 17 rooms which are assessed.

He submitted that therefore, the said structures are authorized

structures and in any case tolerated structures as per the policy of

the Municipal Corporation of Greater Mumbai. He submitted that by

the Notification dated 16th February, 1978, the said property was

declared as slum area under Section 4 of the Maharashtra Slum

Areas (Improvement, Clearance and Redevelopment) Act, 1971

(hereinafter referred to as "Slum Act"). He submitted that the

tenants of the said building/chawl formed Petitioner No. 1 -Society

and purchased the said property vide sale deed dated 4 th July, 1985.

He therefore, submitted that the said Government Notification dated

11th July, 2001 will not apply to the case of the Petitioners and

therefore, impugned orders dated 29th May, 2018 and 5th February,

2019 are required to be quashed and set aside.

3. On the other hand, Mr. Vijay Patil learned Counsel for the

Respondent No.2 and Mr. L. T. Satelkar, learned AGP appearing for

the Respondent Nos. 1 and 3 supported the impugned orders.

According to them, clause 4(5) of the Government notification dated

11th July, 2001 squarely applies to the structures of the Petitioner

Nos. 2 to 20. They further submitted that Writ Petition is not

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maintainable as there is alternate remedy under Section 35 of the

Slum Act. It is also their contention that the Petitioners have not

challenged order dated 29th May, 2018 passed by the Respondent

No.3.

4. Before considering the rival submissions it is necessary to set

out relevant factual aspects :-

(i) The Petitioners have specifically stated in the Petition that the

said building/chawl comprising of ground + first floor

structure was constructed prior to 1940. The Respondents

have not controverted the said contention.

(ii) The inspection extracts of Assessment and Collection

Department of the Municipal Corporation of Greater Mumbai,

which are produced by the Petitioners at Exhibit-B show that

the first date of assessment of the said building/chawl is 31 st

March, 1962 and on ground floor there are about 20

tenaments and on the first floor there are about 17 tenaments.

Thus, it is clear that the said chawl is in existence atleast prior

to March- 1962 and therefore, in any case, the said chawl is

tolerated structure, since as per the policy of Municipal

Corporation of Greater Mumbai datum line for commercial

structure is 1st April, 1962 and for residential structure is 17 th

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April, 1964.

(iii) By Notification dated 16th February, 1978, the said property

was declared as slum area under Section 4 of the Slum Act.

(iv) By sale deed dated 4th July, 1985, the said property was

purchased by the Petitioner No. 1.

(v) The Petitioner No. 1 appointed one Sai Corporation as its

developer for the implementation of slum scheme on the said

property and executed development agreement dated 28 th

December, 2007 in favour of the said developer. The said

developer submitted slum scheme on the said property to

Respondent No.2.

(vi) The Respondent No.3 after conducting survey on the said

property issued certified Annexure-II dated 19 th June, 2010 for

the implementation of slum scheme. As per the said certified

Annexure-II, Petitioner Nos. 2 to 20 were declared ineligible

on the ground that they are the occupants of the first floor.

(vii) The Respondent No.2 issued Letter of Intent dated 12 th

August, 2011 in favour of the Petitioner No. 1 for

implementation of the slum scheme on the said property.

(viii) On or about May-2014, the building standing on the said

property was demolished.

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(ix)     The Petitioner No. 1 by letter dated 27th March, 2018

requested the Respondent No.3 to declare Petitioner Nos. 2

to 20 occupying premises on the first floor as eligible. The

Petitioner No.1 has relied on order dated 24 th February, 2015

passed in Writ Petition No. 2826 of 2013, Writ Petition (L) No.

296 of 2015 and Writ Petition No. 2123 of 2014 by which the

Competent Authority was directed to declare hutment

dwellers residing on the first floor of the building in question

in said Writ Petitioners as tolerable structures eligible for the

permanent alternate accommodation.

(x) The Respondent No. 3 by letter dated 29th May, 2018

intimated that Petitioner Nos. 2 to 20 cannot be held

eligible on the ground that in the said judgment dated 24 th

February, 2015, it is specifically observed that the same shall

not be treated as precedent.

(xi) As the erstwhile developer did not take further steps for

implementation of slum scheme on the said property, the

Petitioner No. 1 appointed Respondent No. 4 as its new

developer in Special General Body meeting held on 7 th

October, 2018. Thereafter, Petitioner No. 1 executed

Development Agreement dated 19th October, 2018 in favour of

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Respondent No.4 for the implementation of slum scheme.

(xii) The Petitioner No. 1 again filed Application dated 10 th

September, 2018 requesting to declare Petitioner Nos. 2 to 20

as eligible.

(xiii) By order dated 5th January, 2019 passed by the Respondent

No.3 the said Application was rejected on the ground that

clause No. 4(5) of Government Notification dated 11 th July,

2001 provides that mezzanine/first floor/loft of the hut could

not be issued independent/separate photo-pass.

5. Before considering the contentions regarding clause 4(5) of

Government Notification dated 11 th July, 2001, it is necessary to deal

with other contentions raised by the learned Counsel appearing for

the Respondents.

6. The contention that order dated 29 th May, 2018 passed by

Respondent No.3 is not challenged is not very significant as the

Petitioners have sought Writ of Mandamus declaring Petitioner Nos.

2 to 20 as eligible for getting Permanent Alternate Accommodation

and by order dated 29th May, 2018 they were held to be not eligible.

7. As far as contention regarding alternate remedy is concerned,

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it is settled legal position that generally, the Court exercising writ

jurisdiction would relegate a party to an alternate remedy, if

available, and if it is equally efficacious. However, the said rule is of

discretion and not one of compulsion. In the present case, the

Petitioners houses are demolished in 2014. This Writ Petition is

concerning the eligibility of the Petitioner Nos. 2 to 20 to get

rehabilitated in Permanent Alternate Accommodation. Thus, this

Writ Petition is concerning the right to shelter. Apart from that,

question regarding interpretation of clause 4(5) of Government

Notification dated 11th July, 2001 is involved in the present Writ

Petition. Moreover, similar Writ Petitions have been entertained by

this Court. Thus, the alternate remedy need not be bar to entertain

the present Writ Petition.

8. The contentions raised in the Petition and the documentary

evidence on record clearly show that the said building/chawl was

constructed prior to 1940. The record of Assessment and Collection

Department of the M.C.G.M. clearly demonstrate that the first date

of assessment of said building/chawl was 31 st March, 1962 and the

same shows existence of various rooms on ground floor and on first

floor. The photographs of the building/chawl produced at page 186

to 190 show that said building/chawl was consisting of ground +

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first floor and all the rooms including on ground and first floor had

independent access. Thus, it is clear that various rooms on first floor

are totally independent from each other and also independent from

the rooms of the ground floor and they are in existence atleast

before 31st March, 1962. Thus, structures appears to be tolerable

structures as they were in existence before datum line as prescribed

by the policy of Municipal Corporation of Greater Mumbai.

9. A bare reading of said clause 4(5) of Government Notification

dated 11th July, 2001 clearly show that policy decision was taken not

to protect the persons staying on the mezzanine/first floor/loft of a

hut and therefore, the said clause will not apply to the Petitioners'

case. The only reason given in the impugned orders is that the order

of this Court on which Petitioners were relying before Respondent

No.3 specifically mentioned that the same shall not be treated as

precedent. However, the Respondent No. 3 should have examined

whether said clause 4(5) is applicable to the structures/chawl in

question. In view of this position, we set aside the orders dated 29 th

May, 2018 and 5th January, 2019 passed by the Respondent No.3-

Deputy Collector (Enc & Rem) & Competent Authority and remand

back the matter to the Respondent No.3 for deciding the claim of the

Petitioners in the light of what is observed hereinabove.

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10. The Respondent No.3 is directed to hear the Petitioners before

passing order on their Applications dated 27th March, 2018 and 10th

September, 2018. The Petitioners are also at liberty to file fresh

Application before the Respondent No.3, if so advised.

11. In view of above, we pass the following order:-

ORDER

(i) The impugned orders dated 29th May, 2018 and 5th January,

2019 passed by the Respondent No.3- Deputy Collector (Enc

& Rem) & Competent Authority are quashed and set aside.

(ii) The Respondent No. 3 is directed to pass appropriate orders

on the Application of the Petitioner No.1 dated 27 th March,

2018 and 10th September, 2018, in the light of our findings

recorded above after granting opportunity of hearing to the

Petitioners.

(iii) We direct the Petitioner No. 1 to remain present through

Authorized Representative or through Advocate before the

Respondent No.3 on 8th March, 2021 at 11.00 a.m. for

deciding the schedule of hearing.

(iv) The Petitioners are also at liberty to file fresh Application in

addition to earlier Applications dated 27 th March, 2018 and

10th September, 2018 regarding eligibility of the Petitioners on

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or before 8th March, 2021 before the Respondent No.3.

(v) The Respondent No.3 to decide the said Applications within a

period of 4 weeks from 8th March, 2021 after granting

opportunity of hearing to the Petitioners.

(vi) The Writ Petition is disposed of accordingly.

(MADHAV J. JAMDAR, J.)                                (A. A. SAYED, J.)




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