Bombay High Court
The New Sagar Vihar Co-Operative ... vs State Of Maharashtra And 3 Ors on 7 June, 2018
Equivalent citations: AIRONLINE 2018 BOM 354
Author: Ranjit More
Bench: Ranjit More, S. S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1507 OF 2011
WITH
NOTICE OF MOTION No. 206 OF 2018
1. The New Sagar Vihar Co-operative ]
Housing Society Limited. ]
A society registered under the ]
Maharashtra Co-operative Societies Act, ]
1960 having its office at Plot No.22, ]
Sagar Vihar Nagar, Khan Road, Near ]
Worli Dairy, Worli, Mumbai - 400018. ]
]
2. Samudra Real Estate Private Ltd. ]
A company incorporated under the ]
Companies Act, 1956 having its office at ]
116/118, 1st Marine Street, ]
Mumbai - 400 002. ] ..Petitioners.
VERSUS
1. State of Maharashtra ]
Through its Department of Urban ]
Development, Mantralaya, Mumbai ]
]
2. The Municipal Corporation for Greater ]
Mumbai, a Corporation incorporated ]
under the provisions of Mumbai ]
Municipal Corporation Act, 1888 and ]
having its office at 1, Mahapalika Marg, ]
Mumbai - 400 001. ]
]
3. The Slum Rehabilitation Authority, ]
An Authority constituted under The ]
Maharashtra Slum Areas (Improvement, ]
Clearance & Redevelopment) Act, 1971 ]
having its office at Bandra (East), ]
Mumbai - 400 051. ]
]
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]
4. Lullu Vas (Since deceased) Through the ]
persons claiming to be her legal heirs. ]
4A. Audrey Ludwig Vas, ]
4B. Neville Vas. ]
4C. Sandra Vas. ]
4D. Ronald Vas. ]
4E. Estelita Vas. ]
Through Shri Shailendra Chheda ]
Claiming to be their Constituted ]
Attorney having his residence at Alt- ]
view, Altamound Road, Mumbai - ]
400026. ] ..Respondents.
Mr. G. S. Godbole i/b Yogendra Kanchan for the Petitioner.
Mr. Joaquim Reis, Senior Advocate with Mr. T. C. Choudhary i/b Omkar
Kulkarni for Respondent No. 4A to 4E.
Mr. V. D. Patil and Mr. Abhijit Patil for Respondent No. 3.
Mr. Sagar Patil for MCGM.
Mr. Himanshu Takke, AGP for the Respondent-State.
Coram : Ranjit More &
Smt. S. S. Jadhav, JJ.
Date on which arguments were concluded : May 3, 2018. Date on which judgment pronounced : June 7, 2018.
JUDGMENT [Per Ranjit More, J.] :
1. The above notice of motion is filed due to the happening of events subsequent to the filing of petition, namely, the Corporation by the order dated 17th January 2015 has revoked / cancelled earlier orders and/or decisions and/or communications which were claimed as acceptance of the claim of Late Lullu Vas and Bennett Vas as lessees and the order dated 7th March 2018 passed by the learned Judge of the patilsr 2/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
City Civil Court in Notice of Motion No.1110 of 2016 taken out in L. C. Suit No. 456 of 2016. By the said notice of motion, the Petitioner claimed stay to the order dated 5th February 2011 passed in Application No.27 of 2011 by the High Power Committee, [for short "the HPC"]. This order is also impugned in the above writ petition. Since in order to consider the relief claimed in notice of motion, the merits of the writ petition are required to be gone into, we suggested to the learned counsel for both sides whether they are ready for the hearing of main writ petition itself. Respective counsel expressed their willingness to argue and dispose of the main writ petition itself. Therefore, we adjourned the matter to 27th April 2018 with a direction to the Registry to place the same for final hearing at the bottom of supplementary board. On 27th April 2018 at the request of learned Counsel for Respondent No. 4A to 4E, the hearing of this writ petition was adjourned to 3rd May 2018. On 3rd May 2018 we heard the learned Counsel for the respective parties in detail and closed the matter for judgment and now by the present judgment, we propose to dispose of the above notice of motion as well as writ petition.
2. The Petitioners have approached this Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India seeking to quash and set aside the order dated 5th February 2011 passed by the HPC in Appeal No. 2 of 2011. By the said order, the HPC patilsr 3/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
has set aside the Letter of Intent [for short " the LoI"] dated 16th July 1999 issued in favour of the Petitioners as also the order dated 24 th August 2010 passed by the CEO /SRA re-validating the LoI dated 16 th June 1999 and issuing the Intimation of Approval [for short, "IoA"] and the Commencement Certificate in favour of the Petitioners. The Petitioners have also challenged the consequential communication dated 6th June 2011 made by Respondent No.3 thereby cancelling the LoI dated 16th June 1999 on the basis of above referred order of the HPC, being the order dated 5th February 2011 as also the order dated 6th September 2013 passed by the CEO/SRA whereby the CEO/SRA has rejected / recorded the proposal of the Petitioners for redevelopment of slum and directed the Sub-Registrar of Co-operatives Societies to initiate action under section 21-A of the Maharashtra Co-operative Societies Act, 1960 for de-registration of Petitioner No.1-society.
3. Petitioner No.1 is a co-operative housing society of the slum-dwellers occupying plot of land being Plot No.22, Sagar Vihar Nagar, Khan Abdul Gafar Khan Road, Near Worli Dairy, Worli, Mumbai
- 400018 [for short, "the said land"]. Petitioner No. 2 is the developer appointed by Petitioner No.1-society. Respondent No.1 is the State Government, Respondent No.2 is the Municipal Corporation for Greater Mumbai and the owner of the said land. Respondent No. 3 is the Slum Rehabilitation Authority [for short " the SRA"] and who being patilsr 4/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
the planning authority had earlier issued Letter of Intent and Intimation of Approval which have been set aside by the impugned order. Respondent Nos.4A to 4E are the complainants / Appellants before the HPC, at whose instance the impugned orders are passed.
4. The brief facts giving rise to the present petition are as follow :
The then Government of Bombay acquired the said land prior to 1945 and vested the same in MCGM which is now known as Worli Estate Scheme No.58. Admittedly, area of the said land is 1583 sq. mtrs. and prior to 1945, about 70 slum structures had come up on the said land. On 4th June 1945 Smt. Lullu Vas submitted an application to the MCGM seeking lease of the said land for residence and paid an amount of Rs.8,232/- as earnest money. It appears that MCGM decided to give leasehold rights in perpetuity to Smt. Lulla Vas subject to certain terms and conditions and on 'as is where is basis'. It is however admitted position that thereafter MCGM has never executed lease-deed or created any present demise by executing any document in favour of Smt. Lulla Vas and continued to be owner thereof. During the period between 1945 to 1965, Smt. Lulla Vas did not take any steps for removal of slum structures and allowed further slum structures to come up. On 8th November 1965 the MCGM handed over symbolic / paper possession of the said land to Smt. Lullu patilsr 5/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
Vas since the said land was already encroached upon. On 17 th November 1965, Smt. Lullu Vas paid an amount of Rs.32,089.70 paise to MCGM towards premium of the said land for which MCGM apparently issued receipt.
. In the year 1971, the Maharashtra State Legislature enacted the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971 [for short "the slum Act"]. Between the period 1971 and 1997, Smt. Vas did not take any steps for using the said land for the purpose for which the lease was obtained. Some time during this period, Smt. Vas along with her family members had started residing out of India and expired on 4 th February 1997 in Switzerland. In the year 1976, as per the provisions of the Slum Act, the Additional Collector (Encroachment) issued photopasses to the slum-dwellers residing on the said land. In the month of January 1996, the slum-dwellers residing on the said land formed a co-operative housing society by name "New Sagar Vihar CHS (proposed)" [i.e., Petitioner No.1] and held the first annual general meeting, selecting the chief promoter and appointed Samudra Developers Pvt. Limited [i.e., Petitioner No. 2] and M/s. Shilpy Associates as the Developer and the Architects respectively for implementation of the slum redevelopment scheme thereon.
. Prior to 1997, or even thereafter the property register patilsr 6/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
card of the said land was not available and therefore it was not known whether the slum structures were on the land belonging to the Government or the MCGM. In this regard several letters were exchanged between Shilpy Associates and MCGM for obtaining the list of occupiers / encroachers on the said land. The record reveals that M/s. Shilpy Associates approached the G/South Ward Office of MCGM for obtaining the list of occupants / encroachers on the said land but did not get any particulars from the said office. The record further reveals that on 8th October 1997, the Chief Promoter of Petitioner No.1-society paid compensation charges of Rs.1,742/- to the Collector Mumbai and thereafter on 24th November 1997, the Additional Collector (Encroachment) carried out survey of the said land and the structures thereon and issued Annexure-II certificate as regards the occupants and structures thereon enlisting 106 structures, out of which 89 were held to be eligible. Later on, 6 further structures were held to be eligible. On 13th April 1999 M/s. Shilpy Associates submitted the slum rehabilitation scheme for redevelopment of the said land to the Executive Engineer, SRA. On 16th June 1999, the CEO / SRA approved the building plan of the rehab buildings and issued LoI and IOA to the said society and the developer. For one or the another reason, till 2004 the Petitioner could not commence redevelopment work.
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. On 28th December 2004, the CEO / SRA issued circular bearing No. 67, thereby directing that where the LoIs are issued prior to 2001 for slum rehabilitation schemes but schemes could not be implemented for various reasons and which were filed / recorded, then such schemes should not be revalidated and that if such schemes were to be revalidated, then the concerned developer, architect / co- operative housing society shall be required to submit a fresh proposal to SRA.
. It is the case of the Petitioner that this Circular is not applicable to their case as their rehabilitation scheme was never filed or recorded. On 2nd May 2005 report was sent by the Executive Engineer, SRA to the CEO/ SRA stating that the Petitioner-Society is eager to implement the scheme and requested to grant fresh LoI in new format with the same parameter as approved while issuing LoI dated 16th June 1999.
. In the year 2008, Mr. Shailesh Chheda claiming that Respondent No.4A to 4E, the alleged legal heirs and successors of Smt. Lullu Vas, have executed general power of attorney in his favour as regards the said land, filed writ petition in this Court being W.P. No.2714 of 2008 against the State of Maharashtra and six others for quashing the order dated 16th June 1999 granting permission to implement the slum rehabilitation scheme passed by SRA and other patilsr 8/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
reliefs. By the order dated 17th December 2008, the High Court allowed the withdrawal of this writ petition with liberty to file representation before the HPC. Said Mr. Shailesh Chheda on behalf of Respondent No. 4A to 4E filed Appeal No.148 of 2008 before the HPC on 21st December 2008 for quashing the order dated 16 th June 1999 and other reliefs. On 20 th June 2009, the HPC passed order in the said appeal directing the CEO/SRA to hear both the parties and pass appropriate order on merit. The Petitioner also filed independent application for revalidation of the LoI dated 16 th September 1999. By the order dated 23rd August 2010, the CEO / SRA after hearing both sides revalidated the LoI in favour of the Petitioner. . The above order of the CEO / SRA was challenged by Respondent No. 4A to 4E by filing an appeal being Appeal No. 2 of 2011 before the HPC. This appeal was allowed and consequently the order of the CEO / SRA dated 23 rd October 2010 re-validating the LoI in favour of the Petitioner was set aside. The HPC also directed the CEO / SRA to forthwith cancel the LoI dated 16th June 1999 issued in respect of the said land. The SRA consequently passed two orders dated 6 th September 2013 thereby cancelling the LoI dated 16 th June 1999 and rejecting the Petitioner's proposal for redevelopment of the said land with a further direction to Sub-Registrar of Co-operative Societies to initiate action under section 21-A of the MCS Act for de-registration of patilsr 9/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
Petitioner No.1-society. As stated above, these orders are under challenge in the present writ petition.
5. We must also take note of the events that have taken place subsequent to the filing of the writ petition. On 17 th January 2015 Respondent No.2 withdrew the show cause notice dated 23 rd March 2012 and also issued another letter dated 17 th January 2015 thereby withdrawing/revoking/ cancelling the earlier orders, decisions and communications which were claimed as acceptance of the claim of late Lullu Vas and Bennett Vas as lessees. Aggrieved by this order, Respondent No. 4A to 4E filed a writ petition in this Court, bearing Writ Petition No.2466 of 2015. By the order dated 24 th November 2015, the Division Bench of this Court disposed of the said writ petition on the ground that the issue relating to title of Respondent No. 4A to 4E as lessees cannot be determined in writ jurisdiction. Aggrieved by this order, Respondent No.4A to 4E filed SLP in the Apex Court, being SLP(C) No. 35003 of 2015 which was dismissed by the order dated 16 th December 2015. Respondent No. 4A to 4E thereafter filed S.C.Suit No. 456 of 2016 in the City Civil Court, Bombay for various reliefs, essentially seeking a declaration that they are lessees of MCGM. In the said suit, they filed a notice of motion, bearing Notice of Motion No. 1110 of 2016 for temporary injunction. This notice of motion was partly allowed by the City Civil Court vide its order dated 7 th March patilsr 10/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
2018 and the MCGM was temporarily restrained pending suit from acting upon or implementing the decision dated 17th January 2015. However, specific finding is recorded rejecting the contention of Respondent No. 4A to 4E about their predecessor-in-title being put in possession. These finding are brought on record by the Petitioner by filing Notice of Motion No. 2068 of 2018.
6. Mr. Godbole, learned Counsel for the Petitioner submitted that the impugned order of the HPC is based on the claim of Respondent No. 4A to 4E that their predecessor-in-title late Lullu Vas and Bennett Vas were lessees of MCGM which claim is disputed by the MCGM. He submitted that such questions are beyond the purview of jurisdiction of HPC and the HPC could not have gone into private dispute or claim as lessees. In support of his submission, Mr. Godbole relied upon the Government Resolution dated 15th November 2007, which is at Exhibit-D to the petition. He further submitted that one of the reasons in support of the impugned order is that Annexure-II is prepared by the Deputy Collector (E&R) and Competent Authority. He submitted that in the absence of any objection from MCGM, slum- dwellers' society to this Annexure-II, the HPC could not have set aside the LoI, IoA and CC. Mr. Godbole also submitted that the order of the CEO / SRA dated 24th August 2010 is set aside on the ground that it was passed on the basis of Letter dated 27th October 2009 issued by the patilsr 11/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
AMC (Estate), MCGM which stated that there was no valid lease. He submitted that since HPC has no jurisdiction to go into the question of title,even this reason is completely erroneous. . Mr. Godbole further submitted that HPC proceeded on the basis that there was no termination of alleged agreement to lease. This reasoning is also fallacious in the absence of any lease-deed produced. Mr. Godbole submitted that neither Respondent No. 4A to 4E nor their predecessor-in-title were in physical possession and consequently there would not be disturbance to their possession. In such situation like this, slum-dwellers could not have been allowed to continue to stay in unhygienic and inhuman conditions. . Mr. Godbole strongly relied upon the Appendix-IV of the Development Control Regulations for Greater Mumbai,1991 and submitted that Petitioner No.1 being the co-operative housing society of slum-dwellers, having support of more than 70% of the slum- dwellers, they have priority in redevelopment; and even assuming that Respondent No.4A to 4E have some right in the said land, they are entitled for premium and in this regard the Petitioners are ready and willing to abide by the outcome of the S.C. Suit No. 456 of 2016 pending in the City Civil Court,Mumbai.
7. Mr. Reis, learned Senior Counsel for Respondent No. 4A to 4E strongly supported the impugned orders. He submitted that the patilsr 12/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
CEO / SRA revalidated the LoI and IoA mainly on the basis of the letter dated 27th October 2009 issued by the MCGM which stated that there is no valid lease. This letter was subsequently, revoked by another letter dated 23rd September 2010 and therefore the HPC was justified in setting aside order of the CEO / SRA. Mr. Reis submitted that though pending petition, by the letter dated 17 th January 2015 the MCGM has revoked/cancelled the earlier orders, decisions and communications which were claimed as acceptance of the claim of Respondent No. 4A to 4E as lessees, the same was challenged in the City Civil Court by filing suit and this letter is stayed. . Mr. Reis invited our attention to the documents annexed to the affidavit of Respondent No.4A and 4E and submitted that not only there was a valid lease-deed in respect of the said land in favour of the predecessor-in-title of Respondent No. 4A to 4E after payment of earnest money and premium but Respondent No. 4A to 4E's predecessor-in-title was also put in possession and therefore without their consent, the Petitioner cannot implement the slum redevelopment scheme on the said land. He lastly submitted that impugned order is based on the cogent reasons, which cannot be interfered with in exercise of jurisdiction under Article 226 of the Constitution of India.
8. Learned Counsel for the Corporation took us through its patilsr 13/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
affidavit-in-reply and submitted that HPC is not empowered and has no jurisdiction, right or authority to investigate or decide upon or to give any finding on the title of Respondent No. 4A to 4E as lessee. On this ground alone the impugned order is liable to be set aside. Learned Counsel for the SRA submitted to the orders of the Court. They also submitted that there is no lease-deed executed between the Corporation and predecessor-in-title of Respondent No. 4A to 4E.
9. Having considered the rival submissions of the respective counsel and having gone through writ petition along with annexures thereto as well as the affidavit-in-support of Notice of Motion No. 206 of 2018 and the order dated 7 th March 2018 passed by the Judge, City Civil Court, Bombay in Notice of Motion No. 1110 of 2016 in L.C. Suit No. 456 of 2016, we find considerable merit in the writ petition.
10. All the reasons given by the HPC in support of the impugned order revolve around the claim of Respondent No. 4A to 4E that their predecessor-in-title Late Smt. Lullu Vas and Bennett Vas were allegedly lessees of the MCGM. This claim is disputed by the Corporation by filing an affidavit dated 1st June 2013. It is specific stand of the Corporation that the said land as a matter of fact and in law was never leased to the predecessor-in-title of Respondent No. 4A to 4E inasmuch as no duly stamped agreement conferring the grant of patilsr 14/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
lease on Respondent No.4A to 4E or their predecessor-in-title was ever signed, executed or registered. It is also specific case of the Corporation that HPC has no jurisdiction to investigate, decide or give any finding on the title of the immovable property. There is no dispute that in the year 1945 itself the said land was encroached upon by more than 70 slum-dwellers. The predecessor-in-title of Respondent No. 4A to 4E though on 4th March 1945 applied for the grant of perpetual lease of the said plot and on 10 th July 1945 paid an amount towards earnest money and subsequently in the year 1965 deposited the amount of Rs.32,089/- towards the premium, admittedly no lease- deed is executed in their favour. In our considered opinion, the deposit of earnest money or premium without any present demise does not amount to lease as per the provisions of the Transfer of Property Act, 1882. At this stage, we must also take into consideration the provisions of sections 70 and 71 of the Mumbai Municipal Corporation Act, 1888 [for short "the MMC Act"] which deal with the mode of executing contract. Under section 70 of the MMC Act, contract is required to be executed in the name of the Commissioner on behalf of the Corporation and the same is required to be sealed with the common seal of Corporation. Under section 71 of the said Act, the contract which is not executed in accordance with the provisions of section 70 is not binding on the Corporation. In the patilsr 15/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
present case, at the most it can be said that offer of the predecessor- in-title of Respondent No. 4A to 4E to take on lease the said land was accepted by the Improvement Committee of Corporation and thereafter they deposited the amount of earnest money and premium in the year 1945 and 1965 respectively. There is no lease deed on record. It is not the case of Respondent No. 4A to 4E that such lease- deed was ever executed muchless the provisions of section 105 of the Transfer of Property Act, 1882 or section 70 of the MMC Act were complied with. In the absence of demise of the said land in favour of the predecessor-in-title of Respondent No. 4A to 4E, Respondent No. 4A to 4E cannot claim any interest in the said land especially when the said land was already occupied by the slum-dwellers.
11. At this stage reference also deserves to be made to the fact that Corporation during the pendency of petition, by letter dated 17th January 2015 has withdrawn / revoked / cancelled the earlier orders, decisions, communications which were claimed as acceptance of the claim of Smt. Lullu Vas and Bennett Vas as lessees. Though Respondent No.4A to 4E challenged this communication before this Court and the Apex Court, however without any success and thereafter they filed suit in the City Civil Court of Bombay, being L.C. Suit No. 456 of 2016 along with Notice of Motion No. 1110 of 2016 for declaration that they are lessees of the MCGM in respect of the said land. In the patilsr 16/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
said notice of motion though the learned Judge of the City Civil Court stayed the communication of MCGM dated 17 th January 2015, the learned Judge of the City Civil Court specifically rejected the contention of Respondent No.4A to 4E that their predecessor-in-title was put in possession of the said land by making observations in paragraph 41, which read thus :
"In view of such facts prima facie appearing on record, the contention of the Plaintiffs in the notice of motiuon, and prayer clause (a)(i) that they being in possession of the suit plot, it shall be protected, cannot be held as tenable one. Once it is established on record that the suit plot is occupied by hutment dwellers, and the Plaintiffs / their predecessors have accepted the possession of hutment dwellers on the suit plot, now the Plaintiffs cannot contend that they are in possession of the suit plot or any part thereof. Consequently, the contention of the Plaintiff in the notice of motion for development or re-development of the suit plot by themselves, does not appear prima facie tenable in the eye of law. Since no possession is established by the Plaintiffs, they are not entitled for any interim injunction to protect the same, and develop or redevelop the property without being in possession, by getting temporary injunction order."
. Thus, the civil Court also found that Respondent No. 4A to 4E or their predecessors were not put in physical possession of the said land and therefore they are not entitled to protect the same by order of interim injunction and therefore cannot develop or redevelop the said land.
12. The HPC has set aside order of the CEO / SRA dated 24 th August 2010 on the ground that it was passed on the basis of letter patilsr 17/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
dated 27th October 2009 issued by the AMC (Estate), MCGM which stated that there was no valid lease. In this regard it is specific stand of the Corporation that the concerned officer who had attended the correspondence were not well-versed in law and hence have no expertise or experience in understanding / appreciating legal niceties or legalities. The Corporation has re-iterated that as a matter of fact and in law the said land was never leased to the predecessors of Respondent No.4A to 4E. This stand of the Corporation is to be appreciated along with the subsequent decision of the Corporation to revoke/cancell earlier orders, decisions and communications which were claimed as acceptance of the claim of Late Smt. Lullu Vas and Bennett Vas as lessees. This decision is final which is challenged by Respondent No. 4A to 4E before the City Civil Court by filing a suit. In the light of this, we are of the opinion that reliance placed by HPC on the subsequent letter dated 23rd September 2010 revoking earlier order dated 27th October 2009 cannot be sustained.
13. One of the grounds, which the HPC has given in support of the impugned order is that Annexure-II was prepared by the Deputy Collector (E&R) and competent authority and not by the AMC of the MCGM. In our considered opinion, this ground also cannot be sustained inasmuch as the said land was already declared protected slum after coming into force of the Slum Act and photopasses were patilsr 18/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
issued to the slum-dwellers. It is required to be noted that at the time of the preparation of Annexure-II in the year 1997 there was confusion as to whether the land was owned by the government or the MCGM. In any case Annexure-II is nothing but a list containing nature of structures, their occupants and the documentary evidence regarding existence / occupation of the structure before the relevant cut off date. The Annexure-II by itself is not a statutory instrument but is merely a survey report which is taken into consideration by the statutory planning authority and in the present case by the SRA, for taking the ultimate decision of issuing LoI, IoA and CC which are statutory instruments being issued under the Development Control Regulations for Greater Mumbai, 1991 and the Maharashtra Regional and Town Planning Act, 1966. In our opinion the preparation of Annexure-II by the Deputy Collector cannot be termed as defect which will vitiate the entire decision making process and especially when the owner - MCGM, the slum-dwellers' society, the developer or/and the SRA or any other person have no objection about the entries in Annexure-II. We are, therefore, of the opinion that the HPC committed error to set aside the LoI on the basis that Annexure-II was issued by the Deputy Collector (Encroachment and Removal) and competent authority.
14. We must at this stage deal with the argument of Mr. patilsr 19/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
Godbole that impugned order by the HPC is without jurisdiction inasmuch as HPC could not have gone into the issue of title and on this ground alone the same deserves to be quashed and set aside. We find substance in the contention of Mr. Godbole. The HPC was formed under the executive order issued by the Government of Maharashtra, being Government Resolution dated 15th November 2007. This GR gives the area of operation of the HPC as follows :
"1. Disputes on the eligibility criteria for including the Slum Rehabilitation Scheme.
2. Disputes regarding implementation of scheme without including eligible persons.
3. Disputes between co-operative housing society and developer.
4. Disputes for not implementing the scheme on time or improper implementation of scheme.
5. Disputes regarding the transit camp.
6. Issues regarding the complaints that Slum Rehabilitation Authority or any other authority is not taking cognizance of the complaints/problems.
7. Disputes between government, semi government societies and slum rehabilitation authority.
8. Issues which Hon. Chairman will feel necessary for implementing Slum Rehabilitation Scheme smoothly.
9. Whatever may be the complaints / problems of the slum dwellers regarding the Slum Rehabilitation Scheme, the same shall be resolved through this Committee.
10. It shall be necessary to hold meeting of the high power committee at least once in a month.
11. High Power Committee is authorize to call Applicants, developer and concerned officers at any time as an when required."
. On perusal of the area of operation of the HPC given under the said GR, we find that HPC could not have embarked upon enquiry as to whether late Lullu Vas and Bennett Vas were actual lessees of the MCGM or not, as to whether they have paid lease patilsr 20/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
premium or rent or not, whether they have been put in possession or not. Thus, the impugned order is entirely without jurisdiction.
15. The impugned order of HPC cannot be sustained on one more ground, namely, the object of grant of lease by the corporation to the alleged lessees stands frustrated. It is clear from the record that in the year 1945, Smt. Lullu Vas had applied for the perpetual lease of the said land for residential purpose. As earlier stated, at the time of application itself the said land was encroached upon by more than 70 slum-dwellers and this number went on increasing upto the year 1971 in which year the Slum Act came into force granting statutory protection to the slum-dwellers for rehabilitation in situ. In the light of the provisions of the Slum Act, it is now not possible to evict slum-dwellers on the said land and grant possession thereof to Respondent No.4A to 4E who claim that the said land was allegedly leased to their predecessor-in-title. Thus it is clear that by operation of law, namely, enactment of the Slum Act, the object to grant lease by the Corporation to the alleged lessees also stands frustrated and Respondent No. 4A to 4E now cannot object to the redevelopment of the said land by the Petitioners.
16. While considering the so called rights of Respondent No. 4A to 4E, we also must consider the provisions of Clause 1.11 and 1.15 of Appendix-IV framed under the Development Control Regulations, patilsr 21/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
1991, which read thus :
"1.11 Ownership and terms of lease.
The part of the Government/ MCGM / MHADA land on which the rehabilitation component of the Slum Rehabilitation Scheme will be constructed shall be leased to the Co-operative Housing Society of the slum-dwellers on 30 year lease at the lease rent of Rs.1001 for 4000 sq.m. of land or part thereof and renewable for a further period of 30 years. The same conditions shall prevail for the land under the free sale component and the land shall be leased directly to the Society/Association of the purchasers in the free sale component and not through the society of hutment-dwellers, and pending the formation of the Society/ Association of the purchasers in the free sale component, it shall be leased to the Developer. The said lease deed shall be executed within 60 days from the date of building permission being issued. 1.15 Where 70 per cent or more of the eligible hutment-
dwellers in a slum or pavement in a viable stretch at one place agree to join a rehabilitation scheme, it may be considered for approval. :
Provided that nothing contained herein shall apply to Slum Rehabilitation Projects undertaken by the State Government or Public authority or as the case may be a government Company as defined in section 617 of the Companies Act, 1956 and being owned and controlled by the State Government."
. Under clause 1.15 of the Appendix-IV, it is mandatory requirement that 70% or more of the eligible hutment dwellers in a slum or pavement in a viable stretch at one place shall agree to join the rehabilitation scheme. In the present case, the slum-dwellers formed Petitioner No.1 co-operative housing society and more than 70% of its members appointed Petitioner No.2 as developer. Respondent No. 4A to 4E have not filed any rehabilitation scheme nor patilsr 22/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
there is anything on record to show that they are supported by more than 70% of the hutment dwellers in the said land. In that view of the matter, Respondent No. 4A to 4E cannot redevelop the said land.
17. Clause 1.11 talks about the premium for the ownership and terms of the lease. Under this clause, if the land occupied by the slum-dwellers had belonged to the State Government/MCGM/ MHADA, the amount of premium payable by the developer to the State Government / MCGM or MHADA would be 25% of the ready reckoner of the price of the land. There is no lease by corporation in favour of Respondent No. 4A to 4E. Respondent No. 4A to 4E have already approached the City Civil Court by filing a suit which is pending. It will take long time for its disposal. In the event Respondent No. 4A to 4E succeed to prove that they are the lessees of the said land, in that case also at the most they would be entitled for the premium as per the provisions of clause 1.11 of Appendix-IV of the Development Control Regulation of 1991. However in no case they can obstruct the redevelopment of the said land by the Petitioners.
18. The record reveals that about 47 slum dwellers in the said land have vacated their respective slum structures and have shifted to the transit accommodation or alternatively to the accommodations taken by them on rental basis on the money provided by developer. The developer has started demolition of the patilsr 23/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
slum structures and so far 47 slum structures have been demolished and residents of those structures have been provided the alternative accommodation in the vicinity on rental basis. Though initially scheme was sanctioned in the year 1999, no progress was made for various reasons and the slum-dwellers could not be rehabilitated for one or the other reasons including the obstruction by Respondent No. 4A to 4E. In our view, the slum-dwellers of the said land should not be continued to stay in unhygienic and inhuman conditions.
19. Before parting with this matter, we must also refer to the submissions made by Mr. Godbole with regard to locus of Respondent No. 4A to 4E. Respondent No. 4A to 4E claim to be the successors and legal heirs of Smt. Lullu Vas and Bennett Vas, who had migrated to Switzerland and expired there in the year 1997. Respondent No. 4A to 4E though claim to be legal heirs of Smt. Lullu Vas and Bennett Vas, they have not placed on record probate or succession certificate or letter of administration in respect of the said land or for the properties left behind by said Smt. Lullu Vas and Bennett Vas. The power of attorney in favour of Shailesh Chheda by Respondent No. 4A to 4E virtually gives all powers as if he is the owner of the said land. The power of attorney is not duly stamped as per the provisions of the Bombay Stamp Act nor registered under the provisions of Indian Registration Act, 1908. In any case, we are of the patilsr 24/ 26 ::: Uploaded on - 07/06/2018 ::: Downloaded on - 08/06/2018 01:34:39 ::: wp-1507/11.
opinion that these issues would be gone into by the City Civil Court while deciding the pending suit, being Suit No. 456 of 2016.
20. In the light of above discussion, we allow this writ petition in terms of prayer clauses (a) and (aa). The order of the HPC dated 5th February 2011 and consequential orders/letters of the SRA dated 6th June 2011 and 6th September 2013 are quashed and set aside and the orders of the CEO / SRA dated 24 th August 2010 is restored. The CEO/SRA shall take necessary steps for the redevelopment of said land in the light of above discussion. We make it clear that the observations made herein are for the limited purpose of disposal of this writ petition and the Judge, City Civil Court shall decide the suit pending before it, being L. C. Suit No. 456 of 2016 independently, on its own merits and without being influenced by the observations made hereinabove. We also make it clear that the Petitioners shall abide by the decision of City Civil Court in Suit No. 456 of 2016 and redevelopment of the said land is subject to the outcome of said suit.
21. In view of the disposal of the above writ petition, Notice of Motion No. 206 of 2018 taken out in the above writ petition does not survive for consideration and the same is accordingly disposed of.
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At this stage, Mr. Choudhary, learned Counsel for Respondent Nos.4A to 4E seeks stay to this order. In the light of discussion made in this order coupled with the fact that redevelopment of the subject plot is stalled for more than eight years, we are not inclined to grant stay. The prayer is rejected.
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