Bombay High Court
Mohammed Tayyab Ali vs The State Of Maharashtra 6 Ors on 4 February, 2019
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
1 4-wp 2310-18@ors.
psv
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2310 OF 2018
Lazoor Triza Joseph & Ors. ..Petitioners
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.2276 OF 2018
Manjarekar Sugandha Chandrakant & Ors. ..Petitioners
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2778 OF 2018
Khan Noorjahan Mohammed Hanif ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2801 OF 2018
Khan Idris Anis ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2802 OF 2018
Wilson Enas Berges ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2804 OF 2018
Farook Gulam Mohammed Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
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WITH
WRIT PETITION (L.) NO.2847 OF 2018
Haroon Ismail Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2848 OF 2018
Jaitoonbi Gafur Sayyed ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2854 OF 2018
Salma Bi Ibrahim Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2857 OF 2018
Mohammed Aziz Guddu Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2859 OF 2018
Ramanand Bi Sonkar ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2869 OF 2018
Mukhtar Ahmed Mohammed Hanif Ansari ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
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WRIT PETITION (L.) NO.2957 OF 2018
Dattatray Dharma Patil ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2960 OF 2018
Khan Asgar Ali Munawar ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.2961 OF 2018
Shaikh Shamimunnisa Basu ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3060 OF 2018
Mohd.Farook Abdul Razzak Kazi ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3061 OF 2018
Shaikh Mustaq Ismail ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3063 OF 2018
Shaikh Shaukat Allahbaksh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3064 OF 2018
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Khatunbi Nabi Khan ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3067 OF 2018
Ajim Gafar Sayeed ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3114 OF 2018
Mohammed Hanif Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3115 OF 2018
Mariam Sardar Ali Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3116 OF 2018
Michael Amoria ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3117 OF 2018
Nasim Hanif Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3118 OF 2018
Kafil Ahmed Samani ..Petitioner
Vs.
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The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3119 OF 2018
Waseem Ahmed Hashmi ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3127 OF 2018
Risaal Ahmed Hashmi ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.3298 OF 2018
Parvez Mohammed Shafi Shaikh & Ors. ..Petitioners
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.3664 OF 2018
Domnic Gabriel Fernandes ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.3672 OF 2018
Khawaja Mohinuddin Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.3679 OF 2018
Shaikh Jbarkatullah Samiullah ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
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WITH
WRIT PETITION NO.3682 OF 2018
Khatoon B. Wali Ahmed Qureshi ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.4210 OF 2018
Shaikh Abdul Kadar Rehaman & Ors. ..Petitioners
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.4211 OF 2018
Umesh Shantaram More & Anr. ..Petitioners
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.4225 OF 2018
Shanta Kishore Solanki & Ors. ..Petitioners
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.4229 OF 2018
Sabina Yasmin ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION (L.) NO.4306 OF 2018
Ibrahim Latif Kazi & Ors. ..Petitioners
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.31 OF 2019
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Rocky D'Souza ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.34 OF 2019
Faiyaz Ifthekar Ahmed ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.37 OF 2019
Shaikh Ajimabi Ismail ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.39 OF 2019
Muzwel Sibhav Fernandis ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.65 OF 2019
Mehboob Iddu Ansari ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.66 OF 2019
Safiuddin Kamruddin Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.67 OF 2019
Nagin Chotu Rathod ..Petitioner
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Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.68 OF 2019
Rafiq Ali Md. Siddidque ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.70 OF 2019
Madhu Sadashiv Malvankar ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.72 OF 2019
Shaikh Safiya Babu ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.78 OF 2019
Aabeda Md. Iqbal Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.80 OF 2019
Sadaphule Kalavati Bhimaji ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.84 OF 2019
Nazir Allahabaksh Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
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WITH
WRIT PETITION NO.96 OF 2019
Yasmin Sayyed Bashir ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.133 OF 2019
Sairunnisa Mohammed Hanif Ansari ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.136 OF 2019
Arun Sadashiv Naik ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.158 OF 2019
Khan Hashim Kadar ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.162 OF 2019
Ansari Mehrunnissa Mehboob ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.163 OF 2019
Najma Dawood Khan ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
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WRIT PETITION NO.164 OF 2019
Kamidi Laxmi Anand ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.182 OF 2019
Sarfuddin Umar Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.203 OF 2019
Shaikh Bibijaan Allahbaksh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.206 OF 2019
Khalil Rehman Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.236 OF 2019
Zeenat Sayyed Peerjaan ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.239 OF 2019
Shaikh Hasmat Bano Yunus ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.241 OF 2019
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John Martina Samuel ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.244 OF 2019
Ismal Gafoor Sayyed ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.245 OF 2019
Joseph Anthony Baretto ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.246 OF 2019
Ramesh Gangaram Hambire ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.248 OF 2019
Mumtaz Gulam Dastagir Sayyed ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.249 OF 2019
Lilabai Anant Gangavane ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.250 OF 2019
Sayyed Sirayunnissa Inauatulah ..Petitioner
Vs.
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The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.253 OF 2019
Mohammed Tayyab Ali ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.254 OF 2019
Ruksana Bashir Sayyed ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.256 OF 2019
Sayyed Kalim Gulam Dastyagir ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.257 OF 2019
Mariyambi Abdul Wahab ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.258 OF 2019
Abdul Rauf Abdul Khuddus Siddique ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.259 OF 2019
Aminabi Bhadur Ali ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
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WITH
WRIT PETITION NO.293 OF 2019
Farzana Mohammed Hussain Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.295 OF 2019
Sayyed Jahindunnissa Hussain Basha ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.306 OF 2019
Ayeshabi Adam Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.307 OF 2019
Shaikh Noorinnissa Allahabaksh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.308 OF 2019
Mohd. Rafiq Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.309 OF 2019
Mohammed Aarif Mohammed Rafiq Sayyed ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.310 OF 2019
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Hamida Bi Md. Ali Khan ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.311 OF 2019
Asgar Ali Anwar Ali Shaikh ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
WITH
WRIT PETITION NO.312 OF 2019
Nancy D'Souza ..Petitioner
Vs.
The State of Maharashtra & Ors. ..Respondents
-----
Dr.Birendra Saraf with Mr.Arun Panickar and Mr.Mangesh Sawant for
Petitioners in WP No.2310/18.
Mr.Mayur Khandeparkar with Mr.Arun Panickar and Mr.Mangesh
Sawant for Petitioner in WP No.2276/18.
Dr.Birendra Saraf with Mr.Mayur Khandeparkar, Mr.Arun Panickar and
Mr.Mangesh Sawant for Petitioners in WP No.4225/18.
Mr.Arun Panickar with Mr.Mangesh Sawant for Petitioners in all other
Wps.
Mr.Milind Sathe, Senior Advocate, with Mr.Rohan Kadam, Ms.Sheetal
Agne, Ms.Asha Nair i/b. Diamondwala & Co. for Respondent No.7.
Ms.Hetal Savla and Mr.Surendra Vishwakarma for Respondent No.7.
Mr.J.G. Aradwad (Reddy) for Respondent No.2/SRA.
Mr.Shakeel Shaikh with Mr.Sandeep Dhangar i/b. Mr.Jayesh Vyas for
Respondent No.6.
Mr.Manish Upadhye, AGP for State in WP Nos.2310/18, WPL
No.2778/18, WPL No.2801/18, WPL No.2802/18, WPL No.2804/18,
WPL No.2847/18.
Mr.Sukanta Karmakar, AGP for State in WP No.2276/18,WPL
No.2848/18, WPL No.2854/18, WPL No.2857/18, WPL No.2859/18,
WPL No.2869/18,
Mr.Kedar Dighe, AGP for State in WPL No.2957/18, WPL No.2960/18,
WPL No.2961/18, WPL No.3060/18, WPL No.3061/18, WPL
No.3063/18.
Smt.Uma PalsuleDesai, AGP for State in WPL No.3064/18, WPL
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No.3067/18, WPL No.3114/18, WPL No.3115/18, WPL No.3116/18,
WPL No.3117/18.
Mr.R.J. Mane, AGP for State in WPL No.3118/18, WPL No.3119/18,
WPL No.3127/18, WPL No.3298/18, WP No.3664/18, WP No.3672/18.
Mr.M.A. Sayed, AGP for State in WP No.3679/18, WP No.3682/18, WPL
No.4210/18, WPL No.4211/18, WPL No.4225/18, WPL No.4229/18.
Smt. Jyoti Chavan, AGP for State in WPL No.4306/18, WP No.31/19,
WP No.34/19, WP No.37/19, WP No.39/19, WP No.65/19.
Mr.Hemant Haryan, AGP for State in WP No.66/19, WP No.67/19, WP
No.68/19, WP No.70/19, WP No.72/19, WP No.78/19.
Mr.Amit Shastri, AGP for State in WP No.80/19, WP No.84/19, WP
No.96/19, WP No.133/19, WP No.136/19, WP No.158/19.
Mr.Himanshu Takke, AGP for State in WP No.162/19, WP No.163/19,
WP No.164/19, WP No.182/19, WP No.203/19, WP No.206/19.
Mr.S.B. Gore, AGP for State in WP No.236/19, WP No.239/19, WP
No.241/19, WP No.244/19, WP No.245/19, WP No.246/19.
Mr.L.T. Satelkar, AGP for State in WP No.248/19, WP No.249/19, WP
No.250/19, WP No.253/19, WP No.254/19, WP No.256/19.
Mr.Dushyant Kumar, AGP for State in WP No.257/19, WP No.258/19,
WP No.259/19, WP No.293/19, WP No.295/19, WP No.306/19.
Ms.Deepali Patankar Asst.GP for State WP No.307/19, WP No.308/19,
WP No.309/19, WP No.310/19, WP No.311/19, WP No.312/19.
-----
CORAM : G.S. KULKARNI, J.
DATE : 4th FEBRUARY, 2019
P.C.:
1. Heard learned Counsel for the petitioners and the learned Counsel
for the respondents. This batch of petitions raise a common challenge,
which is to the orders passed by the Grievance Redressal Committee,
whereby the appeals as filed by the petitioners/slum dwellers, assailing
the orders passed by the Additional Collector (Encroachment and
Removal)/appellate authority under Sections 33 and 38 of the
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971 (for short, the "Slums Act"), stand dismissed.
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2. The impugned orders although similar, are passed on different
dates by the Grievance Redressal Committee. The facts are similar and
the grounds of challenge in all these petitions are also similar. For
convenience the learned counsel for the parties have made submissions
on the first writ petition (W.P. No.2310 of 2018) wherein the impugned
order passed by the Grievance Redressal Committee is dated 31 March
2018, confirming the appellate order dated 21 July 2017 passed by the
Additional Commissioner (Encroachment and Removal).
3. The consequence of the impugned orders is that the petitioners
become liable to be evicted from their respective slum tenements for the
purpose of implementation of a slum scheme as per the provisions of
Section 33 read with Section 38 of the Slums Act.
4. It would be appropriate to note the provisions of Sections 33 and
38 of the Slums Act under which the original order is passed. These
provisions read thus:-
"33. Power to remove offensive or dangerous trade
from slum areas.
The Competent Authority may, by order in writing, direct any
person carrying on any dangerous or offensive trade in a
slum area to remove the trade from that area within such
time as may be specified in the order:
Provided that, on under this section shall be made
unless the person carrying on the trade has been afforded a
reasonable opportunity of showing cause as to why the order
should not be made.
38. Order of demolition of buildings in certain cases
(1) Where the erection of any building has been
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commenced, or is being carried out, or has been completed,
in contravention of the provisions of section 8 or of any
restriction or condition imposed under sub-section (10) of
section 12, or a plan for the redevelopment of any clearance
area or in contravention of any notice, order or direction
issued or given under this Act, the Competent Authority may,
in addition to any other remedy that may be resorted to
under this Act or under any other law, make an order
directing that such erection shall be demolished by the owner
thereof within such time not exceeding two months as may
be specified in the order, and on the failure of the owner to
comply with the order, the building so erected shall be liable
to forfeiture or to summary demolition by an order of the
Competent Authority and the expenses of such demolition
shall be recoverable from the owner as arrears of land
revenue:
Provided that, no such order shall be made unless the
owner has been given a reasonable opportunity of being
heard.
(2) Forfeiture under this section shall be adjudged by the
Competent Authority, and any property so forfeited shall be
disposed of as the Competent Authority may direct; and the
cost of removal of the property under this section shall be
recoverable as an arrears of land revenue.
(3) For the purpose of causing any building to be
demolished under sub-section (1) the Competent Authority
may use or cause to be used such force as may be necessary."
5. It is not in dispute that the land in question is a Government land
on which a slum scheme is in the process of being implemented at the
behest of respondent No.7-Nidhi Concept Realtors Pvt.Ltd. According to
respondent No.7, out of total 1263 slum dwellers about 878 slum
dwellers have vacated their tenements. The petitioners who are about
125 in number had refused to vacate their premises and therefore,
respondent No.7 had approached the competent authority seeking an
eviction action to be taken against the petitioners under Section 33 read
with Section 38 of the Slums Act as noted above.
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6. The competent authority/Deputy Collector (Encroachment and
Removal) considering the rival pleas, passed an order dated 6 May 2017
directing the petitioners to accept rent of Rs.13,000/- per month and to
vacate their respective tenements within 7 days of the receipt of the said
order failing which an action under Section 38 of the Slums Act would
be initiated against the petitioners.
7. The said order passed by the competent authority came to be
challenged by the petitioners by filing appeals before the Additional
Collector (Encroachment and Removal)/appellate authority, who also by
an order dated 21 July 2017 confirmed the order dated 5 May 2017
passed by the competent authority. Against the said orders passed by
the Additional Collector/appellate authority, the petitioners approached
the Grievance Redressal Committee/respondent No.5 in an appeal as
provided under Section 35 of the Slums Act. Now Section 35 of the
Slums Act has been amended by Maharashtra Act No.38 of 2018 with
effect from 26 April 2018. Prior to the amendment Sub-Section (b) of
Section 35 was as under:-
"35
1(A) a.........
(b) for the purpose of resolving dispute in relation to
matters about eligibility of slum dweller, eligible slum
dweller being denied tenement, developer not undertaking
and completing the project as per the permission and
approval so also within the stipulated time frame, transit
accommodation being unavailable or not provided and
likewise,
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may file an appeal before the Grievance Redressal
Committee constituted by the State Government, by
notification in the Official Gazette, for such area and
consisting of the Chairperson and such number of members
as the Government may deem fit. The qualifications of the
Chairperson and the members of the Committee and the
procedure to be followed for transacting its business shall be
such as may be prescribed."
8. As amended by Act No.38 of 2018, Section 35 while providing an
appeal before the Grievance Redressal Committee would read thus:-
"35. Appeals
[(1) Except as otherwise expressly provided in this Act, any
person aggrieved by any notice, order or direction issued or
given by the Competent Authority, may appeal to the
Appellate Authority, who shall be a person holding a post not
below the rank of Additional Collector, in respect of the areas
of Municipal Corporations and "A" Class Municipal Councils,
and not below the rank of Deputy Collector, in respect of
areas of other Municipal Councils, to be notified by the State
Government, within a period of thirty days from the date of
issue of such notice, order or direction.]
[(1A) Any person, -
(a) aggrieved by any notice, order or directions
issued or given by the Appellate Authority under sub-section
(1), within a period of thirty days from the date of issue of
such notice, order or direction;
[(b) for the purpose of resolving any dispute in
relation to matters regarding the declaration of Slum
Rehabilitation Area under section 3C and order of slum
clearance under section 12 or order under section 13 against
the owner or developer not undertaking and completing the
project as per the permission and approval so also within the
stipulated time frame or order regarding eviction of the slum
dweller from Slum Rehabilitation Area under section 3D, by
the Chief Executive Officer and about eligibility of slum
dweller, eligible slum dweller being denied tenement, transit
accommodation being unavailable or not provided and
likewise,]
may file an appeal before the Grievance Redressal Committee
constituted by the State Government, by notification in the
Official Gazette, for such area and consisting of the
Chairperson and such number of members as the
Government may deem fit. The qualifications of the
Chairperson and the members of the Committee and the
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procedure to be followed for transacting its business shall be
such as may be prescribed.]
(2) Every appeal under this Act shall be made by petition
in writing accompanied by a copy of the notice, order or
direction appealed against.
[(3) Any appeal shall not operate as a stay order appealed
from except so far as the Appellate Authority may grant by
reasoned order, nor shall execution of any order be stayed by
reason only of an appeal having been preferred from, but the
Appellate Authority may for sufficient cause order stay of
execution of such order and if the notice, order or direction
against which appeal is made and is set aside by Appellate
Authority on an appeal disobedience thereto shall not be
deemed to be an offence.
(4) No appeal shall be decided under this section unless
the appellant had been heard or has had a reasonable
opportunity of being heard in person or through a legal
practitioner.
(5) The decision of the [Grievance Redressal Committee]
on appeal shall be final and shall not be questioned in any
court."
9. The petitioners have assailed the impugned order dated 31 March
2018 passed by the Grievance Redressal Committee principally on two
grounds. Firstly, that the competent authority/Deputy Collector ought
not to have accepted the plea as urged on behalf of the developer that
the developer is ready and willing to pay an amount of Rs.13,000/- p.m.
as rent for the alternate premises which the petitioners would acquire on
vacating of their premises. According to the petitioners at that point of
time, such a plea was not available to be taken by the Competent
Authority in as much as rent could be offered only when there was no
place available in the transit camp. It is submitted that thus such a plea
could not have been taken by the developer as it was mandatory for the
developer to provide transit accommodation as per the policy and as
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provided under Appendix IV of Regulation 33(10) of Development
Control Regulations, 1991, being a requirement under law. Secondly, it
is contended that the petitioners had raised several grounds in the
appeal in assailing the order passed by the Additional Collector. A
perusal of the appeal memo would also indicate that there are grounds
(a) to (r) in paragraph 19. The contention as urged on behalf of the
petitioners is that the impugned order passed by the Grievance
Redressal Committee would show that there is no reasoning whatsoever
recorded by the Grievance Redressal Committee in dealing with these
grounds of challenge. In this regard the attention of the Court is drawn
to the only paragraph i.e. last paragraph of the order being the only
reasons. It is contended that the impugned order as passed by the
Grievance Redressal Committee needs to be set aside on this ground
alone.
10. On the other hand, Dr.Sathe, learned Senior Counsel for
respondent No.7/developer, has opposed this petition. It is submitted
that the grounds as asserted by the petitioners are also on the issues of
change of the developer, which are proceedings under Section 13(2) of
the Slums Act and which are not relevant, as the issue before the
Grievance Redressal Committee was only in regard to the eviction of the
petitioners who were required to be removed for implementing of slum
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rehabilitation scheme. Dr.Sathe submits that the petitioners have no
legal right to continue in occupation of their respective tenements and
as majority of the slum dwellers have vacated and these petitioners
cannot cause hurdles in the implementation of the slum redevelopment
scheme. It is submitted that in any case the grievance as urged on
behalf of the petitioners as urged in the present petition ought not to
weigh with the Court inasmuch as the Grievance Redressal Committee
has confirmed the orders passed by the competent authority as also
appellate authority,there are concurrent findings of facts against the
petitioners. Dr.Sathe, learned Counsel for the developer has,
accordingly prayed for dismissal of the petitions.
11. Having heard learned Counsel for the parties and having perused
the record, it appears to be quite clear that the slum rehabilitation
scheme was being implemented on the land in question. An action was
initiated against the petitioners under Section 33 read with Section 38
of the Slums Act as the petitioners refused to vacate the premises and
were causing obstacles in redevelopment scheme. No doubt that there
are concurrent findings as recorded by the competent authority and also
by the appellate authority against the petitioners directing that the
petitioners should vacate the slum premiss in their possession. however
the fact remains that although the impugned order was passed on 31
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March 2018 and these petitions were filed in June 2018, till date the
petitioners have remained in possession of their respective premises and
no eviction action was taken by the authority against the petitioners,
more particularly when there was no stay on eviction granted in these
petitions.
12. From the submissions as made at the bar, it is also clear that there
are disputes between the parties in regard to the change of developer
under Section 13(2) of the Slums Act. Dr.Sathe, learned Senior Counsel
for respondent no.7- developer has contended that in writ petitions in
which the subject matter of challenge is to the order under Section
13(2) of the Act, a Division Bench of this Court by an interim order
dated 13 April 2018 directed that any steps taken during the pendency
of the said petitions shall be subject to the outcome of the said petitions
and accordingly the respondent no.7 is undertaking the scheme. It is a
matter of record that these petitions were heard by this Court (as later
on transferred to be heard by a Single Judge) for final hearing and are
closed for judgment.
13. Now coming to the impugned order, it can be clearly seen that the
Grievance Redressal Committee has not recorded any reasons dealing
with the specific grounds which are set out in appeal memo. There is
also an issue which the Grievance Redressal Committee ought to have
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considered in exercising jurisdiction under Section 35 of the Slums Act
as also it stood prior to the amendment, namely whether in the facts of
the case, the proposal as made on behalf of the developer, to offer rent
to the slum dwellers was required to be accepted in law or that the
transit accommodation ought to have been provided by the developer.
These are the issues which fall under the statutory scheme and is a legal
assertion on the part of the petitioners. A perusal of the impugned order
does not indicate that any finding is returned on these legal issues..
The impugned order confirms the order passed by the competent
authority of eviction and admittedly, entails civil consequences affecting
the right to shelter as guaranteed to the petitioners who are about 125
in number.
14. In the above circumstances, and considering the ambit of
jurisdiction of the Grievance Redressal Committee under Section 35, all
these issues are required to be gone into by the Grievance Redressal
Committee. The impugned order merely records the pleas of the parties
and by the following incomprehensible and cryptic reasons, the
petitioners' appeals have been dismissed.
"The Slum Rehabilitation Scheme is a social welfare measure
undertaken by government with a noble object of uplifting the life and
living conditions of poor slum dwellers languishing in filth and dirt for
years together. This Committee is of the view that most of the time
the schemes are delayed for considerable period due to non-co-
operation of few unscrupulous slum dwellers for whose benefit the
scheme is promulgated. In present case also the rehabilitation of large
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number of slum dwellers is involved. The redevelopment work
cannot be stalled at the instance of few slum dwellers. There is no
merit in appeal and appeal is liable to be dismissed .Hence
following orders."
15. The contention as urged on behalf of the respondent No.7 that
majority of the slum dwellers have vacated the premises and that the
petitioners also should vacate the premises. The petitioners disputed
these submissions and in the circumstances the others have vacated. In
my opinion, at this stage of the proceeding and the order which is
proposed to be passed, the Court is not required to consider such rival
claims and they need not be gone into in deciding these petitions, suffice
it to observe that the petitioners as slum dwellers would have
independent rights as conferred under the Slums Act as also statutory
provisions of Regulation 33 (10) of the Development Control
Regulations for Greater Bombay under which the slum scheme is being
undertaken.
16. In the above circumstances, it would be appropriate and in the
interest of justice that the Grievance Redressal Committee decides the
appeals of the petitioners afresh, by addressing all the grounds of
challenge as raised on behalf of the petitioners and as set out in the
appeal memo.
17. The petitions are thus required to be allowed. Hence, the
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following order:-
ORDER
(i) The impugned order dated 31 March 2018 passed by the Grievance Redressal Committee is set aside with a direction that the Grievance Redressal committee shall decide the appeals as filed by the petitioners, afresh, within a period of six weeks from today in accordance with law.
(ii) All contentions of the petitioner and the respondent No.7- Developer are expressly kept open;
(iii) Needless to observe that the Grievance Redressal Committee shall take into consideration all the grounds as raised in the appeals and shall pass a reasoned order while disposing such appeals;
(iv) In the meantime till the disposal of the appeals by the Grievance Redressal Committee and as no coercive action has been taken against the petitioner since order dated 6 May 2017 as passed by the competent authority, no action for eviction be taken till the appeals are decided by the Grievance Redressal Committee and for a period of one week thereafter, if the appeals are decided against the petitioners and the orders so communicated.
(v) At this stage, Dr.Sathe, learned Senior Counsel for the respondent No.7-developer, submits that the petitioners shall be directed to co-operate in the hearing of the appeals before the Grievance Redressal Committee and that they shall not seek any adjournment. Learned counsel for the petitioner on instructions state that at the hearing before the Grievance Redressal Committee, no adjournment shall be sought on behalf of the petitioners;
(vi) The petitions stand disposed of in the above terms. No costs.
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