Bombay High Court
Neelesh Ramkaran Yadav vs State Of Maharashtra on 20 March, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:4639
Osk/dtg J-WPL-2422-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L.) NO. 2422 OF 2025
1. Neelesh Ramkaran Yadav ]
CTS No.1165, Ramkaran Tabela, ]
Joseph Patel Wadi, Seven Bungalows, ]
Versova, Andheri (W.), Mumbai - 400 061. ]
2. Rajkumar Sunder Yadav ]
CTS No. 1165 (pt), Baba Tabela, ]
Sunder Bhaiya Chawl, Joseph Patel Wadi, ]
Seven Bungalows, Versova, ]
Andheri (W.), Mumbai - 400 061. ] ... Petitioners
V/s.
1. State of Maharashtra ]
Government Pleader, Original Side, ]
Bombay High Court, Bombay. ]
2. Slum Rehabilitation Authority ]
Administrative Building, ]
Anant Kanekar Marg, D Block BKC, ]
Naupada, Bandra (E.), ]
Mumbai, Maharashtra. ]
3. Apex Grievance Redressal Committee ]
Bandra, Mumbai. ]
Slum Rehabilitation Authority, ]
Administrative Building, ]
Anant Kanekar Marg, D Block BKC, ]
Naupada, Bandra (E.), ]
Mumbai, Maharashtra. ]
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4. Deputy Collector (Special Cell) ]
Slum Rehabilitation Authority, ]
Administrative Building, ]
Anant Kanekar Marg, D Block BKC, ]
Naupada, Bandra (E.), ]
Mumbai, Maharashtra. ]
5. One Stop Business Services LLP ]
A Wing, 3rd Floor, Dudhwala Complex, ]
292 Belasis Road, Mumbai Central, ]
Mumbai - 400 008. ]
6. Ramdas Nagar Joseph Patelwadi SRA CHS ]
Balvidya Mandir, Joseph Patelwadi, ]
Ramdas Nagar, ]
Yashwant Rao Niwatie Chowk, ]
Seven Bungalow, Andheri (West), ]
Mumbai - 400 061. ]
7. Joseph Patel Estate Navdurga Rahiwasi ]
Seva Sangh (Prop) ]
Joseph Patel Estate, ]
Seven Bungalow, Andheri (West), ]
Mumbai - 400 061. ] ...Respondents
_______________________________________
Mr. Dhananjay Singh a/w. Mr. Shailesh Rai for Petitioners.
Ms. Gauri Sawant, A.G.P. for Respondent No.1-State.
Ms. Neha Bhosale a/w. Ms. Anuja Divadikar & Mr. Yashwant Singh for
Respondent Nos.2 & 4.
Ms. Tanaya Goswami (Through V.C.) for Respondent No.3-AGRC.
Mr. Aspi Chinoy, Senior Advocate a/w. Mr. Mayur Khandeparkar & Mr. Hasan
Mushabber i/b. Negandhi Shah & Himayatullah for Respondent No.5.
_______________________________________
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CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 28th February 2025.
PRONOUNCED ON : 20th March 2025.
JUDGMENT ( Per : A. S. GADKARI, J.) :
-
1) By the present Petition under Article 226 of the Constitution of
India, the Petitioners have impugned (i) Order dated 20 th January 2025
(Exh.'S') passed by the Apex Grievance Redressal Committee (A.G.R.C.) i.e.
Respondent No.3; (ii) Order dated 15 th April 2024 (Exh.'M') passed by the
Slum Rehabilitation Authority (SRA) i.e. Respondent No.2 and (iii) Notice
dated 23rd February 2024 (Exh.'I') issued by the Deputy Collector (Special
Cell), Slum Rehabilitation Authority i.e. Respondent No.4 herein, under
Section 33 & 38 of The Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (S.R. Act) pertaining to the writ structure and for
consequential interim reliefs.
2) Heard Mr. Singh, learned counsel for Petitioners, Ms. Sawant,
learned A.G.P. for Respondent No.1, Ms. Bhosale, learned counsel for
Respondent Nos.2 & 4, Ms. Goswami, learned counsel for Respondent No.3
and Mr. Chinoy, learned senior counsel for Respondent No.5. Perused entire
record produced before us.
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3) Brief facts :
3.1) It is the case of the Petitioners that, they are in use and occupation
of part or portion of larger piece of land or property, on which the Respondent
No.3 has approved Slum Rehabilitation Scheme (S.R. Scheme) of two societies,
namely (i) Ramdas Nagar Joseph Patel Wadi SRA CHS (Proposed) and (ii)
Joseph Patel Estate Navdurga Rahiwasi Seva Sangh Sahkari Grihnirman
Sanstha (Proposed), i.e. Respondent Nos. 6 & 7 respectively. The Petitioners
have their livestock (buffaloes and cows) and are running their stables for last
several decades. The Respondent No.5 is appointed and approved to be
developer of the said Slum Rehabilitation Scheme of the said two Societies.
3.2) Subject matter of the Petition is a part or portion of larger
property admeasuring 8047.9 sq.mtrs., situated on various CTS numbers in
village Versova, Taluka Andheri, Mumbai Suburban District. The Petitioner
No.1's cattle stable (Tabela) is numbered as Structure No. 420 (Stable
structure) and other structures facilitating ancillary use of the structure No.
420, being godown and residential structure of the Petitioner No.1, identified
on the said plan as Structure Nos. 415 to 418. The Petitioner No.2's cattle
stable (Tabela), which was constructed by his forefather, comprises of one
godown and several residential rooms as well as cattle shed (Tabela) for which
he has paid Assessment Tax since the year 1961-62. The said structures of
Petitioner No.2 are identified and numbered as Structure Nos. 404, 405, 409,
410, 414 & 419 (Tabela).
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3.3) That, prior to 1961 the grandfather of Petitioner No.1 Shri
Shivnath Yadav and similarly father of Petitioner No.2 were in occupation and
possession of piece and parcel of land bearing CTS No. 1165 of village Versova,
Taluka Andheri and they were engaged in the business of Dairy Farming by
keeping milching cattle such as buffaloes and cows. It is the case of the
Petitioners that, their predecessors constructed their respective cattle sheds of
72 and 10 cattle respectively, for which the cattle Controller of State granted
license in the year 1976. The area of cattle sheds is admeasuring 2860 and
1333 sq.ft. respectively. The said cattle sheds were duly assessed in the name
of their predecessors prior to datum line of 1961-62.
3.4) That, by way of ancillary use to facilitate storage of fodder for the
72 cattle, the Petitioner No.1 has also constructed two godowns admeasuring
300 sq. feet and two residential structures adjoining thereto admeasuring 455
sq.ft.. The said godowns and residential structures are also in existence prior
to 1961-62 and are assessed by the concerned Authority of the Corporation.
The father of Petitioner No.2 has also similarly constructed one godown and
residential rooms. The said cattle sheds, godowns and residential structures
are the subject matter of present Petition (writ structures).
3.5) It is the case of the Petitioners that, the office of Additional
Collector, Mumbai has levied 'Non Agricultural Assessment Tax' on the said
plot of land. The Petitioners have also got electricity connection way back by
the concerned electricity provider. The Petitioners have also been provided
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with Ration Card by the concerned Authority.
3.6) The Petitioners further assert that, at the instance of and on
instigation of Respondent No.5, the Respondent No.4 targeted the Petitioners
by issuing a impugned Notice dated 23 rd February 2024, under Sections 33 &
38 of S.R. Act, wherein the Petitioner No.1's name appears at Sr. Nos. 14 to 17
& 19. The name of Petitioner No.2 appears at Sr. Nos. 9 to 13 & 18. The said
Notice was also issued to various other individuals residing in the said locality
and it was a common action by the Respondent No.3 at the behest of
Respondent No.4.
3.7) By the said Notice the Respondent No.4 called upon the
Petitioners to attend the hearing on 6 th March 2024 and to submit their say in
the proceedings initiated against them under Sections 33 & 38 of S.R. Act. The
Petitioners filed their detailed say dated 6 th March 2024 to the said Notice.
The Respondent No.5 also filed its written say dated 18 th March 2024 in the
said proceedings.
3.8) The Respondent No.4 thereafter passed Order dated 15 th April
2024 under Section 33 & 38 of S.R. Act. By its Order the Respondent No.4
held that, the Petitioners were not cooperating in the redevelopment of the
said S.R. Scheme and therefore they were directed to vacate their huts /
structures and give its possession to the Respondent No.5 within a period of 30
days therefrom.
3.9) Feeling aggrieved by the said Order dated 15 th April 2024, the
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Petitioners preferred two separate Appeals / Applications bearing Application
No. 83 of 2024 and Appeal No. 05 of 2024 respectively, before the Respondent
No.3. The Respondent No.3 after hearing the learned Advocates for the
respective parties was pleased to dispose of the Appeal / Application preferred
by the Petitioners with certain directions by its impugned Order dated 20 th
January 2025. By the said Order the Respondent No.3 was pleased to uphold
the Order passed by the Respondent No.4 under Sections 33 & 38 of S.R. Act.
The Petitioners feeling aggrieved by the said Order dated 20 th January 2025
passed by the Respondent No.3, Order dated 15 th April 2024 passed by the
Respondent No.4 and the issuance of Notice dated 23 rd February 2024 has
preferred present Petition.
4) Mr. Singh, learned counsel appearing for Petitioners submitted
that, the Regulation No. 33(10)(6) of Development Control and Promotion
Regulations for Greater Mumbai, 2034 (DCPR 2034) are not applicable to the
Petitioners, as the structures of the Petitioners are stables. He submitted that,
the Petitioners have challenged the Scheme of S.R.A. itself, as the structures of
the Petitioners cannot be included in the S.R. Scheme of the said two Societies.
He submitted that, the Petitioners had challenged the entire scheme of the
Slum Redevelopment of the said two Societies before the Respondent No.3.
However, the Respondent No.3 did not exercise its lawful jurisdiction vested in
it and therefore the impugned Order dated 20 th January 2025 passed by the
Respondent No.3 is bad in law. He submitted that, both the Authorities below
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have committed an error in not appreciating the said aspects and therefore the
impugned Orders necessarily are to be set-aside by allowing the Petition.
5) Per contra Mr. Khandeparkar, learned Advocate appearing for
Respondent No.5, vehemently opposed the Petition and submitted that, the
stables of the Petitioners are situated in the midst of the said Scheme and by
taking undue advantage of its position, the Petitioners are not co-operating
with a view to extract more benefits from the Respondent No.5, than
permissible under the law. He submitted that, the competent Authority of the
Respondent No.2 has held the Petitioners to be ineligible for any benefits
arising out of the said Scheme. That, the Petitioners are only squatters, but are
dictating their own terms to the Respondent No.5 even for an amicable
settlement. He submitted that, there were in all 426 hutments, out of which
350 hutments have been vacated by them. That, redevelopment of the said
slum has been undertaken by the Respondent No.5 under Regulation No.
33(10) of the DCPR 2034. That, the rights of hutment dwellers are protected
in Clause No.VI of the said Regulation. That, sub-clause 1.16(vi) of Clause
No.VI of the said Regulation provides that, if the concerned slum dwellers did
not join the rehabilitation scheme till the building permission to the project is
given, such slum dwellers will completely loose the rights to any built up
tenement and their tenement shall be taken over by the SRA and shall be used
for the said purpose, as stated in the said provisions. He submitted that,
though the Petitioners did not participate in the said Scheme by exhibiting
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indifferent approach, the Respondent No.3 in its impugned Order has issued
certain directions benefiting the Petitioners and despite that, the Petitioners are
not satisfied with it. He therefore prayed before this Court to dismiss the
Petition in its entirety.
6) Perusal of record indicates that, the Respondent No.5 is the
developer of the said Slum Rehabilitation Scheme of (i) Ramdas Nagar Joseph
Patel Wadi SRA CHS (Proposed) and (ii) Joseph Patel Estate Navdurga
Rahiwasi Seva Sangh Sahkari Grihnirman Sanstha (Proposed), i.e. Respondent
Nos. 6 & 7 herein. The said S.R. Scheme has been approved by the Respondent
No.2, as per the provisions of S.R. Act.
7) There are total 426 slum dwellers, out of which 235 slum dwellers
are held to be eligible, 149 slum dwellers were held to be eligible for payment
and the eligibility of 17 slum dwellers is still undecided. The Petitioners have
been held to be ineligible slum dwellers in the Certified Annexure - II under
the aforesaid S.R. Scheme as they did not operate with the competent
Authority who conducted the Survey.
7.1) Record further indicates that, the Respondent No.5 till date
incurred an amount of more than Rs. 27 crores towards the approvals and
transit rent for the occupants in the above Scheme. In addition to the said
amount already incurred by the Respondent No.5, it is also liable to pay an
amount of approximately Rs. 75,00,000/- p.m. towards transit rent to the
members of the said two Societies, till it hands over the Permanent Alternate
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Accommodation to its members. Record reveals that, till today approximately
414 structures/hutments from the said two Societies have been demolished
and more than thousand persons are out of their respective tenements. The
delay at the instance of the Petitioners in stalling the implementation of the
said S.R. Scheme causes great prejudice to the Respondent No.5 and the
occupants of the said hutments who have already vacated their tenements. The
slum dwellers are facing greater hardship due to uncertainty of completion of
the said S.R. Scheme.
7.2) The competent Authority of Respondent No.2 carried out survey of
the said slum and prepared Annexure-II as per the provisions of law. The
premises of Petitioner No.1 at Sr. Nos. 14 to 17, were found to be locked and
Sr. No.19 was found to be a stable. The locked premises of Petitioner No.1
indicates that, he was not residing at the said premises when the survey was
carried out.
7.3) As far as Petitioner No.2 is concerned, his predecessors name
appears at Sr. Nos. 9 to 13 & 18 in the list annexed to the Notice. It appears
that, the Petitioner No.2 did not disclose his name to the competent Authority
and has been held to be ineligible for said premises. As far as Sr. No. 18 is
concerned, it is shown as a stable and the name thereof as Karan Yadav. The
Petitioner No.2 has also been held to be ineligible for the said premises at Sr.
No.18.
8) Record clearly indicates that, the writ structures are patently and
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thoroughly illegal and unauthorized. There is no decree of any Court of
competent jurisdiction, declaring / holding the Petitioners to be the owners of
the land beneath the writ structures. We therefore find substance in the
contention of the learned Advocate for Respondent No.5 that, the Petitioners
are only squatters at the said place.
8.1) The land beneath the writ structures is admittedly owned by the
Respondent No.5. Merely because the predecessors of the Petitioners have
illegally and unauthorisedly erected stables on the writ properties, according to
us, they ipso facto do not become owner of the suit plot, to dictate their terms
to the landlords. The Petitioners therefore at the most, are entitled for the
benefits as per the Scheme of the Government and the Rules framed thereof.
However, the Petitioners cannot dictate their terms to the Respondent No.5-
landlord.
8.2) The Petitioners have been held to be ineligible by the competent
Authority for any benefit of the said S.R. Scheme and therefore they are not
entitled for any benefit, which is being given to other slum dwellers in the said
Scheme.
9) Assuming for the sake of argument that, the structures erected by
the Petitioners are tolerated structures, once the Slum Rehabilitation Scheme is
sanctioned by the Slum Rehabilitation Authority as contemplated under
Section 3(a)(b) & (c) of the said Act, the suit structures of the Petitioners gets
merged in the said Scheme and they have no independent right dehors the
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Scheme. Therefore the plea of having a tolerated structure does not survive.
9.1) Record clearly indicates that, the Petitioners are obstructing the
implementation of the said Slum Rehabilitation Scheme, unwilling to co-
operate and are demanding more benefits than permissible under the law and
given to other similarly situated slum dwellers. They have also turned down all
reasonable offers from the Respondent No.5-developers.
10) Regulation 33(10)(VI) deals with Right of the Hutment Dwellers.
Sub Clause 1.16 (vi) of the said Regulation provides that, if any of the hutment
dweller do not join the S.R. Scheme till the building permission to the project
is given, they will completely lose the right to any built-up tenement, and their
tenement shall be taken over by SRA, and used for the purpose of
accommodating the pavement-dwellers and other slum dwellers who cannot
be accommodated in situ etc.
10.1) In the present case as noted earlier, the Petitioners are found to be
non co-operating members of the S.R. Scheme of the said two Societies,
development of which is undertaken by the Respondent No.5 and therefore
they are not entitled for any benefit.
10.2) The Division Bench of this Court in case of Om-Sai Darshan Co-
operative Housing Society (Proposed) and Another Vs. State of Maharashtra
and Others reported in 2006 SCC OnLine Bom 480: (2007) 1 Bom CR 476 ,
while considering the Scheme under Regulating 33(10) and Appendix IV
thereof, in para No.25 has held as under :-
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"25. .................As per the provisions of Annexure to
Regulation 33(10) and Appendix IV, once a scheme
submitted by a proposed society for slum rehabilitation is
sanctioned, then the eligible slum dwellers who are not
members of the society and who have not consented to the
said society implementing the scheme are entitled to
permanent accommodation in the redeveloped building.
Once such a proposal is approved and is in force, the
members who are in minority cannot purport to form a
society and submit their own proposal. None of the eligible
hutment dwellers have any right save and except a right to
get an accommodation of 225 sq.ft. in the event the scheme
under Regulation 33(10) is implemented. Their right is
confined to securing accommodation on the basis of a pre-
existing eligible structure and they cannot insist that the
development should be carried out by a society which is of
their choice especially when a valid proposal of a proposed
society which is supported by 70 per cent of the eligible
hutment dwellers has already obtained approval to the slum
rehabilitation scheme..............."
11) With regard to the contention of the Petitioners that, their stables
do not form part of the SR Scheme, the same is without merit and does not
appeal to us. As a matter of fact and law, the Division Bench of this Court in
PIL Writ Petition No.2565 of 2005 along with other connected Petitions in its
Order dated 30th January 2020, in para No. 15 has held as under :-
"15. Since we want to ensure that the entire
scheme takes effect within the time limits set in the
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proposals and expected by us, in the first instance, in
order to test the bonafides and to ensure completion of
the first phase process, we place these matters on
12.6.2020. Finally, we direct that shifting of cattle from
Mumbai and Mumbai suburbs to Dapcherry would be
undertaken in a phase-wise manner. In the first phase,
the cattle from Mumbai city would be shifted to
Dapcherry and in the second phase, the cattle from other
Municipal areas including Kalyan Dombivali, Mira
Bhayander and Thane would be carried out. We also
clarify that while the cattle may be shifted from the areas
in Mumbai city and municipal limits, our order and
direction does not in any manner touch, muchless
conclude, the issue of right, title and interest of the
persons carrying on the dairy business qua the land. That
issue will be decided independent of our directions in
these matters."
11.1) The said Order has been upheld by the Hon'ble Supreme Court in
Special Leave to Appeal (C) No(s). 2525-2526/2021, by its Order dated 16 th
April 2021. The relevant paragraphs from the Order of the Hon'ble Supreme
Court are reproduced herein-below for the ready reference :-
"Needless to observe that the order of status quo stands
merged in the final (impugned) order passed by the High Court.
In other words, consequent to rejection of this special leave
petition, no restriction operates against the State authorities to
take action as per law.
Realizing this position, learned counsel for the
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petitioner(s) prays for at least eight weeks' time to remove
themselves from the prohibited area and, in particular, to stop the
activities prohibited in terms of Notification dated 01.07.2006.
If the petitioner(s) voluntarily do not remove
themselves from the prohibited area in terms of notification dated
01.07.2006 and refrain from doing prohibited activity threat
within eight weeks from today, the State authorities may proceed
against such offenders in accordance with law.
The fact that petitioners have not availed of alternative
site offered by the State Government cannot be cited as a reason
to defer the implementation of prohibition order vide notification
dated 01.07.2006. That cannot brook delay any more.
We further make it clear that we are not examining the
correctness of the stand taken by the State Government regarding
offering an alternative site at Dapchari or any other location. Such
allotment, needless to mention shall be strictly as per law."
11.2) According to us, even if the Petitioners were not a party before this
Court or a member of the Bombay Milk Producers Association, the decision
rendered by this Court in the said PIL and upheld by the Hon'ble Supreme
Court is binding upon the Petitioners. Therefore, the contention of the
Petitioners that, their stable structures are not covered by the present S.R.
Scheme, is rejected.
12) The Hon'ble Supreme Court in the case of Central Council for
Research in Ayurvedic Sciences and Another Vs. Bikartan Das and Others,
reported in 2023 SCC OnLine SC 996, while enumerating the extraordinary
jurisdiction under Article 226 of the Constitution of India and more
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particularly when it comes to issuance of writ of certiorari, in para Nos. 51 &
52 has held as under :-
"51. The first cardinal principle of law that governs the exercise
of extraordinary jurisdiction under Article 226 of the
Constitution, more particularly when it comes to the issue of a
writ of certiorari is that in granting such a writ, the High Court
does not exercise the powers of Appellate Tribunal. It does not
review or reweigh the evidence upon which the determination
of the inferior tribunal purports to be based. It demolishes the
order which it considers to be without jurisdiction or palpably
erroneous but does not substitute its own views for those of the
inferior tribunal. The writ of certiorari can be issued if an error
of law is apparent on the face of the record. A writ of certiorari,
being a high prerogative writ, should not be issued on mere
asking.
52. The second cardinal principle of exercise of extraordinary
jurisdiction under Article 226 of the Constitution is that in a
given case, even if some action or order challenged in the writ
petition is found to be illegal and invalid, the High Court while
exercising its extraordinary jurisdiction thereunder can refuse to
upset it with a view to doing substantial justice between the
parties. Article 226 of the Constitution grants an extraordinary
remedy, which is essentially discretionary, although founded on
legal injury. It is perfectly open for the writ court, exercising this
flexible power to pass such orders as public interest dictates &
equity projects. The legal formulations cannot be enforced
divorced from the realities of the fact situation of the case.
While administering law, it is to be tempered with equity and if
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the equitable situation demands after setting right the legal
formulations, not to take it to the logical end, the High Court
would be failing in its duty if it does not notice equitable
consideration and mould the final order in exercise of its
extraordinary jurisdiction. Any other approach would render the
High Court a normal court of appeal which it is not."
13) After perusing entire record, this Court is of the considered view
that, both the Authorities below have not committed any error while passing
the impugned Orders. There are a concurrent findings recorded by both the
Authorities below. This Court finds that, there is no error or illegality
committed by both the Authorities below, either on facts or in law while
passing the impugned Orders.
14) Petition is devoid of any merits and is accordingly dismissed.
( KAMAL KHATA, J. ) ( A.S. GADKARI, J. )
