Bombay High Court
D.J.Rane & Ors vs The Mun.Commissioner, Mun.Corpn.Of ... on 3 May, 2018
Bench: A.S. Oka, Riyaz I. Chagla
202-WP-1320-2000.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1320 OF 2000
1. Shri D.J. Rane & Ors. ...Petitioners
Versus
1. The Municipal Commissioner & Ors. ...Respondents
Mr. Prasad Dhakephalkar, with Mr. Paresh C. Mankad and Mr.
Nihar P. Mankad i/b Mr. Pravin D. Kadam, Advocate for the
Petitioners.
Mr. A.Y. Sakhare, Senior Advocate with Mr. Joel Carlos & Mr. H.C.
Pimple for Respondent No.1. B.M.C.
Mr. S.B. Gore, AGP for Respondent - State.
CORAM: A.S. OKA &
RIYAZ I. CHAGLA, JJ.
JUDGMENT RESERVED ON 8TH MARCH 2018 JUDGMENT PRONOUNCED ON 3RD MAY, 2018. O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. The Petitioners by this Petition filed under Articles 226 and 227 of the Constitution of India are seeking recognition as occupants in accordance with Development control Regulations, 1991 ("DCR") 33 (7) in Plot No. CS 54 (Part) of G/ South Ward, Lower Parel Division, Worli, Mumbai (for short "the said plot") on ownership basis in the building of the Municipal Corporation constructed on the said plot. The Petitioners have also sought 1/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC quashing and setting aside of the directions passed in the order dated 15th May 2000 issued by the Chief Engineer, Sewage Operation, Respondent No.3 herein by which the Petitioners were directed to vacate their present accommodation and shift to allotted flats in the new building on leave and licence basis. The Petitioners have further sought consequential relief in this Petition.
A brief background of facts are necessary.
2. The Petitioners are employees of the Municipal Corporation of Greater Mumbai ( for short referred to herein as "Municipal Corporation") working in their official capacities as superior staff which include Junior Engineer, Sub-Engineer, Assistant Engineer and Deputy Chief Engineer etc. The Petitioners were given residential quarters (32 tenements) by way of service tenancy at Love Grove Pumping Station Quarters, Bldg., Opp. Poonam Chambers, Dr. Annie Besant Road, Worli, Mumbai by the Municipal Corporation. The other quarters (120 tenements) were given to the labour staff. The Municipal property concerned in this Petition comprised of 7 buildings constructed prior to 1940 on the said plot of land, out of which three had been demolished and balance four were buildings having ground plus one upper floor. 2/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 :::
202-WP-1320-2000.DOC One of these buildings had a Municipal Primary School on the ground floor. As the buildings were too old to be repaired, the Municipal Corporation contemplated redevelopment of the municipal property under the provisions of DCR 33(7). The Municipal Corporation encouraged their employees to form Co- operative Societies and to have land allotted to the societies. The Petitioners were occupying staff quarters in building Nos.115, 117, 119 and 121 at the Love Grove Pumping Station Quarters and labour staff were residing in balance three buildings. The Petitioners and labour staff proposed forming cooperative society in the name and style of Sainath Co-Operative Housing Society and agreed to give their consent letters for redevelopment as required by the Respondent Corporation. The consent letters were signed by more than 70% of the employees / occupants of the staff quarters and it is mentioned by the Petitioners in the Petition that without their consent, the scheme would not have seen the light of day. The Petitioners have stated that the Project Report for redevelopment of the subject plot of land was submitted to Respondent No.2 through the Respondent No.5 Architect M/s. S.G. Dalvi and Associates appointed by the Respondent No.6 society. The Respondent No.3 who is the Chief Engineer of Sewerage Operation, MCGM by letter dated 23rd October, 1997 3/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC had furnished the requisite information of the existing occupants of the municipal property to the Ward Officer (Estate) - Respondent No.2 and these occupants included the Petitioners. The Petitioners have stated that they had been called for a meeting on 16th January 1998 in which Respondent No.1 had explained the scheme for proposed redevelopment under DCR 33(7). It was in that meeting that for the first time it was discussed that superior category staff will not be considered in the said scheme. Shri Pai, Consultants who were present at the meeting pointed out that by implementation of the scheme, the Municipal Corporation would not lose the tenements as after accommodating eligible class IV employees and superior staff, the Municipal Corporation will still get 150% extra tenements both for class IV and superior staff. The Petitioners had made consistent follow-up with Respondent No.1 for providing permanent alternate accommodation on ownership basis. It is mentioned by the Petitioners that although Respondent No.1 and its officers promised to provide permanent alternate accommodation on ownership basis and on the basis of that promise, the Petitioners had signed / granted consent to the redevelopment, but when it came for finalisation of the scheme in the meeting dated 16th January 1998, the Respondent No.1 decided not to extent the benefit of DCR 33(7) to the Petitioners. 4/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 :::
202-WP-1320-2000.DOC This according to the Petitioners was in violation of provisions of DCR 33 (7).
3. The Petitioners have stated that the proposal which excluded the Petitioners from the benefit of DCR 33(7) was forwarded by Respondent No.1 to the improvement committee. A resolution was passed by improvement committee on 26th March 1998 approving the scheme of improvement and redevelopment of the said plot under DCR 33 (7). A resolution was also passed by the General Body of the Municipal Corporation on 30th March 1998, approving the said scheme. A prior letter dated 21st March, 1998 addressed by the Municipal Commissioner to the Municipal Secretary was circulated at a meeting held on 30th March, 1998 of the Municipal Corporation. The said letter is also signed by the S.D. (Estate), W.D. (Estate) and Jt. M.C. Of the Municipal Corporation. In the said letter, the policy was spelt out viz. the labour class / class IV employees shall be compared with Conservancy staff, having stayed for over two to three generations and will be provided tenements on ownership basis. The superior staff employees of the Municipal Corporation occupying these quarters for a very short period will not be given tenements on ownership basis but will remain allottees for staff quarters on 5/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC leave and license basis in the surplus tenements' buildings coming to the Municipal Corporation free of cost.
4. A Letter of Intent was issued by the Respondent No.1 to the Chief Promoter of the Respondent No.6 Society for implementation of DCR 33 (7) in respect of the said plot. The Respondent Nos.1 and 6 entered into a redevelopment agreement with the developers M/s. Alif Enterprises in whose favour the Letter of Intent was issued. The redevelopment scheme provided that as soon as construction of the saleable building was started, the developer / society shall give first priority to the Municipal Corporation to purchase the flats @ Rs.4,000/- per Sq. Ft. built up area in one building of four wings for sale in the open market. The Developer would construct 16 buildings of ground plus five upper floors having 138 tenements of 225 Sq.ft. carpet area each for labour staff quarters, including a welfare centre and Balwadi and 4 buildings of ground plus 5 upper floors with lift having 1 bed room and 2 bed room flats for superior staff quarters consuming total area of 1,30,109.03 Sq. ft built up area coming to the Municipal Corporation free of cost. The developer would also construct a school building having ground plus 5 storey building to be handed over to the Municipal Corporation.
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5. The Petition was originally filed on 24th May 2000 but thereafter substantially amended and redeclared on 9th April 2010. The Petitioners have referred to documents which they procured under RTI and through which they have claimed that the original object for redevelopment of the municipal property under DCR 33 (7) had been changed for the benefit of Respondent Nos. 1 & 6. The Petitioners have stated in the amended Petition that Respondent No.1 introduced an illegal scheme under DCR 33(10) which provided for slum rehabilitation even when there was no slum on the property. The Respondent No.1 claimed that it changed the entire development scheme from DCR 33 (7) to 33 (10). It is claimed that the present status of the property developed is contrary to DCR 33 (7) which originally was for construction of buildings C-1, C-5, A-1, B & a Municipal school building. The Petitioners have stated that now a big commercial construction had come up known as Atrial Mall. This commercial building was never contemplated in the project approved by the improvement committee / corporation in 1998. It is mentioned that in the year 2000, Respondent No.1 vide the Improvement Committee resolution dated 11th December 2000 and the General Body resolution dated 18th December 2000 changed the entire scheme. The revision of the scheme appears to have taken place as the 7/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC developer agreed to purchase the surplus area instead of handing over the surplus area to the Municipal Corporation excluding the area required for school and buildings constructed and agreed to be handed over to the Municipal Corporation free of costs. It is claimed by the Petitioners that the Respondents suppressed the fact of the change in the scheme as nowhere in the documents or minutes of meeting was it been referred to that the implementation of scheme is changed from DCR 33 (7) to 33 (10) or any other scheme. The Petitioners had in fact originally challenged the order / direction dated 15th May 2000 issued by Respondent No.3 to the Petitioners to vacate the present accommodation and handover vacant possession of the present accommodation and to shift to the allotted flats in the new building. The Petitioners had claimed that Respondent Nos. 1 and 2 had intentionally discriminated against the Petitioners contrary to policy of the State Government. In the amended Petition, the challenge is now to a scheme under DCR 33 (10) and the exclusion of the Petitioners to the benefit of either the scheme 33 (7) or the scheme under DCR 33(10). The Petitioners have also now claimed that illegal unauthorised occupants had been considered for allotment of permanent alternate accommodation on ownership basis in the amended scheme.
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6. This Petition had come up before this Court when an order came to be passed by the Division Bench of this Court on 6th June 2000 by which the Petitioners were directed to shift to the new premises within a period of two weeks from the date of the order and the Municipal Corporation had agreed that the Petitioners will be charged rent for the said premises at standard rent fixed by the Municipal Corporation or 10% of their basic salary which ever was lower. This arrangement was subject to the final order to be passed by this Court. The matter was directed to be placed for final disposal at the admission stage after the pleadings were complete.
7. Shri Vitthal A. Kamble, then working as Administrative Officer of Respondent No.1 has filed two Affidavits dated 6th June 2000 and 26th February, 2002 in reply to the Petition. Shri Bhupesh Jain, Partner of Respondent No.6 has also filed an Affidavit dated 6th June, 2000 opposing admission of the Petition. There is an Affidavit of Shri D.J. Rane on behalf of the Petitioners dated 12th June 2002, in rejoinder to the Affidavit dated 26th February 2002 filed by Respondent Nos. 1 and 2. Thereafter an Affidavit of by Shri R.M. Choukkar, Deputy Chief Engineer, Sewerage Operations of Respondent No.3 has been filed on 9/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC behalf of Respondent Nos. 1 and 3. The Affidavit filed in 2017 talks of an acute shortage of staff quarters. It states that the Petitioners cannot retain staff quarters after ceasing to be in employment of the Municipal Corporation. It relies upon and annexes a judgment of this Court in Writ Petition No. 957 of 2013 and others group matters. The Affidavit also annexes an Affidavit on behalf of the Respondent Corporation in Writ Petition filed by Medha Patkar Vs. MCGM being Writ Petition No. 3047 of 2005 which concerned redevelopment of Municipal properties through cooperative housing societies and dealt with the subject Municipal property and highlighted the policy of the Municipal Corporation. The Petitioners have in turn filed a further Affidavit dated 17th April 2017 which deals with the Affidavit dated 17th February 2017 of Shri R.M. Choukkar. The Petition has now come up for hearing.
8. Shri Dhakephalkar, the learned Senior Counsel appearing for the Petitioners has made submissions in support of the Petition. He has stated that the Petitioners have been arbitrarily and unfairly discriminated against by the Municipal Corporation. He has submitted that the scheme of redevelopment under DCR 33 (7) of the subject property could only be implemented, by taking the consent of 70% of the Municipal employees of which included the Petitioners. He submits that the project report 10/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC submitted by M/s. S.G. Dalvi and Associates, the Architect appointed for the redevelopment of the subject property had contemplated redevelopment of the Municipal staff quarters which included quarters occupied by the Petitioners and the surplus area was to be surrendered to the Municipal Corporation. He has relied upon the correspondence between the Ward Officer (Estates) of the Municipal Corporation to M/s. S.G. Dalvi and Associates dated 25th June 1997 which contemplates consent letters to be submitted from the tenants of the subject property. The Petitioners have given their consent to the redevelopment of the subject property and it is submitted that absent the Petitioners consent, the scheme under 33(7) of the DCR could never have been implemented. He has submitted that the Petitioners despite giving their consent to the scheme under reconstruction under 33 (7) of the DCR had been unfairly discriminated against by the Municipal Corporation which decided not to give tenements on ownership basis to the Petitioners but they were to remain as allotees for staff quarters on leave and license basis, in the surplus tenements coming to the Municipal Corporation, free of cost. Whereas the class IV employees viz. labour staff were given preferential treatment and treated in the same manner as conservancy staff on the premise that they were staying for two to three generations 11/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC and they were given the Municipal tenements on ownership basis in the rehabilitated buildings. He has tendered a table showing the present status of the Petitioners and which showed that out of 27 Petitioners, 14 Petitioners have been superannuated. Further, flats have been surrendered by four of the Petitioners and remaining nine Petitioners was still in the service of the Municipal Corporation. He has referred to the Petition filed by Medha Patkar which inter alia challenges the subject scheme under DCR 33 (7). He has also drawn reference to the various averments of the Officers of the Municipal Corporation in the Affidavits filed by them. He has stated that from these averments the stand of the Municipal Corporation is clear that although the class IV employees have not been mentioned to be belonging to a separate category despite which they have been treated separately. In these Affidavits, no reason has been given as to why the Petitioners have been treated separately. He has submitted that, it is clear that the Municipal Corporation has come out with a policy which was arbitrary and unfairly discriminated against the Petitioners without any rational. He has also drawn reference to the rules for grant of preferential treatment approved by the Municipal Commissioner on 23rd July 1980 and effective from 1st March 1976 which provided for preferential treatment 12/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC only for the conservancy department. He has thus submitted that the resolution of the improvement committee had without any rational treated the class IV employees / labour staff in the same manner as the conservancy department despite the rules not providing for such treatment. He has also drawn reference to the administrative guidelines for implementation of the reconstruction / redevelopment schemes under DCR 33 (7). He has submitted that the administrative guidelines clearly provide for the redevelopment / reconstruction of the old municipal properties by Municipal tenants of Cooperative societies on the land owned by the Municipal Corporation other than staff servants quarters. He has thus submitted that the scheme under DCR 33(7) could not have been implemented as they were contrary to the said administrative guidelines. He has nevertheless submitted that presuming that the scheme could be contemplated under DCR 33(7) for staff service quarters, the Petitioners could not be deprived of the benefit of the scheme as their consent had been given for its implementation. He has further submitted that the DCR 33(7) had been arbitrarily changed to a scheme under DCR 33(10) with malafide intent to suit certain persons who were unauthorisedly staying in the subject plot. He has submitted that the Petitioners are entitled to be granted permanent occupation in 13/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC the redeveloped property on the basis of principles of promissory estoppal. He has distinguished the judgment of this Court in More Jeevan Yashwant and 82 Others Vs. MCGM and Anr. Writ Petition No. 957 of 2013 along with companion Writ Petitions and submitted that this judgment is distinguishable as it dealt with scheme of ex-employees of the Municipal Corporation and representation from the Municipal Corporation to convert their occupation on permanent tenancy / ownership basis in terms of decision taken by the Municipal Corporation. He has stated that this judgment was not dealing with a case of a scheme under DCR 33(7) and hence cannot apply in the facts and circumstances of the present case.
9. Shri Sakhare, the learned Senior Counsel appearing for Respondent No.1, has submitted that the Petition as filed requires to be dismissed as there is no prayer to set aside the resolutions of the Municipal Corporation viz. the General Body Resolution and the Improvement Committee Resolution which had accepted the scheme under DCR 33 (7). The Petitioners in this Petition have only sought to be recognised as occupants of the Municipal property on the said plot of land and for being allotted permanent alternate accommodation of flats on ownership basis in the building constructed on the said plot. He has submitted that in the 14/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC resolutions of the Municipal Corporation, the rational of treating class IV employees differently from the superior staff workers viz. the Petitioners has been clearly provided and it is mentioned that the class IV employees / labour staff have been residing in the Municipal property for over two to three generations and hence it was decided to provide them tenements in the reconstructed building on ownership basis. The Petitioners who are superior staff workers have been residing in the Municipal property for a short period and thus it was decided that they would remain allottees for staff quarters on leave and license basis in the surplus tenement buildings coming to the Municipal Corporation, free of cost. He has submitted that the basis of these decisions have been mentioned in the Affidavits filed on behalf of Respondent No.1. He has also submitted that the labour staff was given preferential treatment as in the case of the conservancy department as they were comparable to them. He has submitted that this is an informed policy decision of the Municipal Corporation. He further submits that even according to the Petitioners, DCR 33 (7) cannot be made applicable to staff service quarters as they are expressly excluded under the said administrative guidelines approved by the State Government. Shri Sakhare relied upon compilations tendered and which comprise of certain decisions of the Municipal 15/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC Corporation which shows a consistent policy of the Corporation to allot Municipal property on tenancy basis only for use and occupation during service. He has relied upon circulars issued from time to time by which the Municipal Corporation has sought to obtain vacant possession of the staff service quarters on the retirement of the Municipal employees and have withdrawn retirement benefits of those employees occupying quarters after retirement. He has referred to and relied upon the judgment of this Court in More Jeevan Yashwant (Supra) and submitted that this Court has taken the view that employees of Municipal Corporation cannot claim a statutory right to be housed on ownership basis in Municipal properties. They have no right to continue possession and occupation of public property after retirement, particularly since Municipal employees are public servants and the Municipal Corporation is a trustee of public property. He has thus submitted that the declaration sought in this Petition of permanent accommodation on ownership basis in the reconstructed Municipal property cannot be granted. He has submitted that the scheme under DCR 33(7) was never changed to a scheme under 33 (10) as contended by the Petitioners. He has submitted that the revised resolutions in 2000 have also not been challenged by the Petitioners. He has also relied upon the Affidavit of Shri Shivaji 16/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC Vitthal Saste, an employee of Municipal Corporation in the Petition filed by Medha Patkar (Supra) which at paragraph 3(1) (d) has clearly set out the policy of the Municipal Corporation. He has submitted that there is no real challenge to this policy of the Municipal Corporation or a prayer to have it set aside.
10. We have considered the submissions. We have perused the prayers in the Petition as well as the pleadings. We find that the Petitioners have prayed for allotment of permanent alternate accommodation (flats) on ownership basis in the building constructed on the said plot. We find that the basis for claiming allotment of permanent alternate accommodation on ownership basis in the reconstructed property of the Municipal Corporation is that the Petitioners were a part of scheme under DCR 33 (7) and had given their consent for implementation of the scheme. We find that the Municipal Corporation resolved that the Petitioners would not be given tenements on ownership basis but would remain allotees of staff quarters on leave and license basis in the surplus tenements coming to the Municipal Corporation free of cost. On the other hand, the labour staff / class IV employees would be given the surplus tenements on ownership basis in the reconstructed building. This was a clear policy decision of the Municipal Corporation and approved by its improvement 17/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC committee and its General Body. We find that there is no prayer in the Petition for the setting aside of these resolutions of the Municipal Corporation including its revised resolutions passed in the year 2000. We have noted the submission of Shri Dakhepalkar, the learned Senior Counsel appearing for the Petitioners, that prayer (a) is wide enough to include the setting aside of these resolutions. However, the mere claim to permanent alternate accommodation on ownership basis cannot be equated with a prayer to set aside the resolutions approving the policy of the Municipal Corporation. We find that the Municipal Corporation has in fact taken an informed policy decision to treat the class IV employees in the same manner as the conservancy employees, and grant them preferential treatment under the Rules of the Municipal Corporation.
11. We find that this Court in More Jeevan Yashwant (Supra) has considered identical issue arising herein viz. Municipal employees claiming permanent occupation of Municipal property. In paragraph 39 of the judgment, this Court has held thus :-
39. It is high time that we clarify that those in possession of public property have no right to continue in their possession and occupation. The municipal servants must realise, like others, that they are public servants. The Municipal Corporation must realise that it is a trustee of the public property. They do not have 18/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC authority to dispose of these properties as if they belong to them exclusively. They are made over to the municipalities for municipal administration and governance. Therefore, the local authorities and Municipal Corporations are as much bound by the mandate of Article 14 of the Constitution of India, as these employees. This court cannot perpetuate an illegal act by its writ. Equal protection of the law postulates that those not entitled to any relief based on a right cannot continue to insist on the same. Once a leave and licence arrangement in law does not confer any right, title and interest in the property, much less of tenancy, then, we do not see how the Municipal property, coming in the petitioners' possession during the course of their services, places them in a different class. They are comparable with those municipal servants to whom municipal premises are allotted in lieu of payment of House Rent Allowance. The House Rent Allowance is paid because those occupying their own or rented premises should be in a position to bear the monetary liability. In some cases, the salary is not enough to meet these expenses and therefore, such schemes, namely, payment of House Rent Allowance or grant of housing accommodation in lieu thereof, are proposed and implemented. These schemes are implemented so as to assist the municipal employees and public servants and in return, it is expected that they render efficient and prompt services. The municipal services are rendered to fulfil the mandate of the constitution of India and Sections 61 and 63 of the MMC Act. We need not highlight as to what are the duties of the Municipal Corporation and its functions. There is enough indication in that regard in the MMC Act itself.
That contains both, the obligatory and discretionary duties. Eventually, all municipal services are rendered for the welfare and benefit of the residents of the city. The Municipal Corporations themselves occupy a constitutional status. The Constitution envisages establishment and incorporation of a Municipal Corporation so as to ensure better and quality municipal governance. Given this status, the municipal employees ought to be aware that if they occupy municipal properties during the course of their services, then, they are also obliged to handover these premises on their 19/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC retirement or superannuation so that the Municipal Corporation can utilise them for housing those who have entered the services or existing employees. Given the shortage of accommodation, there is a huge waiting list. Hence, we find that the contrary impression that parties like the petitioners and municipal authorities entertain needs to be dispelled forthwith. None can, therefore, take a decision to handover municipal properties to anybody save and except in accordance with law. No provision has been brought to our notice in the MMC Act, which obliges the Municipal Corporation to make a provision for housing its retired employees. Therefore, there is no statutory right, which can be claimed in such matters.
12. This Court further in paragraph 40 held thus:-
"The municipal property can be disposed off only in accordance with section 92 of the MMC Act. The petitioners ought to be aware of this settled legal position and as annunciated in the MMC Act. No public property can be disposed off even by a public body except as authorised by law. If we agree to the request of the petitioner, none would ever vacate staff or service quarters, but retain them even after their retirement. Those in public service and fulfilling the criteria of a public servant would then have to wait for allotment of premises in the event they require them. We cannot direct a Municipal Corporation and particularly the Municipal Corporation of Greater Mumbai, which has a work force of more than one lakh employees, to grant the permanent occupancies and in the form requested".
13. It is thus clearly held by this Court that the Municipal employees have no right to claim permanent occupancies and that this Court cannot direct the Municipal Corporation to grant permanent occupancies claimed by the Municipal employees. It is held that the Municipal Corporation must realize that it is a trustee 20/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC of public property and they do not have authority to dispose of their properties as if it belongs to them exclusively. These properties have been made over to Municipalities for municipal administration and governance. It is thus clear that there cannot be any statutory right of the Municipal employees to claim permanent occupancy of Municipal property. We find that in the present case 14 of the Petitioners have already been superannuated. Three Petitioners have retired and surrendered possession of their flats and one Petitioner has retired and has been appointed as Officer on Special Duty. We find that the view taken by this Court in More Jeevan Yashwant (Supra) is squarely applicable to the present case. We do not accept the submission on behalf of the Petitioners that the judgment will not apply to the facts of the present case as in that case there was no scheme under DCR 33 (7) and it pertained to retired Municipal employees. We find that in the present case the Petitioners cannot in any event claim the benefit of a scheme under DCR 33 (7) as under the administrative guidelines referred above, the scheme under DCR 33 (7) for reconstruction of Municipal properties by the co-operative society on land owned by the Municipal Corporation is not applicable in the case of staff services quarters. 21/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 :::
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14. We are of the view that Municipal property can be disposed off only in accordance with Section 92 of the MMC Act and by no other means. We find that the Municipal Corporation has by way of policy granted surplus tenements to Class IV employees on ownership basis in the rehabilitated building by excluding the superior staff workers. It is a settled position that the Courts would be reluctant to interfere with the informed policy decision taken by the public authority particularly when the Court finds that the Petitioners have not made out a case that the decision making of the public authority is in any way flawed. Further, the Petitioners have not prayed for quashing of the resolutions of Municipal Corporation which approved the policy. We do not find any merit in the submissions on behalf of the Petitioners that there was change in the scheme from DCR 33 (7) to DCR 33 (10) and which was to fraudulently allot accommodation to persons who were unauthorisedly residing in staff quarters. This change has admittedly not been reflected in any of the documents on record. In any event there is no prayer to set aside the alleged scheme under DCR 33 (10). This appears to be a mere after thought. We observe that it has been a conscious decision taken by the Municipal Corporation to obtain vacant possession of their property from the ex-employees who continue to reside there even 22/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC after retirement. There is also a shortage of staff quarters to house Municipal employees. The Petitioners cannot claim any right to be permanently housed in Municipal property.
15. We are thus of the considered view that the Petitioners are not entitled to grant of the relief sought. We note that by the interim order passed by this Court on 6th June 2000 the Petitioners were shifted to the new building and were charged rent for the premises on standard rent fixed by the Municipal Corporation or 10% of basic salary which ever is more. In view of the above discussion the Petitioners are not entitled to permanent alternate accommodation on ownership basis in the new building of the Municipal Corporation.
16. The Petition accordingly fails. There shall be no order as to costs.
(RIYAZ I. CHAGLA J.) ( A.S. OKA, J.)
17. The learned counsel for the Petitioners applies for continuation of interim relief. The said prayer is opposed by the learned counsel appearing for the contesting Respondents. Considering that the interim order was in operation till this 23/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 ::: 202-WP-1320-2000.DOC judgment, we are inclined to continue the same for a period of eight weeks. Accordingly, the interim relief will continue to operate for a period of eight weeks from the date of uploading of this judgment.
(RIYAZ I. CHAGLA J.) ( A.S. OKA, J.) 24/24 ::: Uploaded on - 07/05/2018 ::: Downloaded on - 08/05/2018 01:53:14 :::