Bombay High Court
Relief Road Housing Societies ... vs State Of Maharashtra And Ors. on 12 October, 2001
Equivalent citations: 2002(1)BOMCR15, (2002)3BOMLR796, 2002(3)MHLJ173
Author: B.P. Singh
Bench: B.P. Singh, Ranjana Desai
JUDGMENT B.P. Singh, C.J.
1. This Writ Petition has been filed by the petitioners in public interest. Petitioner No. 1 is the Relief Road Housing Societies' Association registered under the Bombay Public Trusts Act, 1950, while petitioner No. 2 is its General Secretary. The Respondents herein are the State of Maharashtra and its officers and other authorities, such as the Maharashtra Housing and Area Development Authority and the Municipal Corporation of Greater Bombay. In the Writ Petition, the petitioners have prayed for issuance of a Writ of Mandamus calling upon the Respondents to remove the encorachments in the form of unauthorised hutments, structures, etc., particularly in the areas marked (A), (B), (C), (D), (E), (F) and (G) in the plan annexed to the Writ Petition. They have prayed that such encroachments be demolished so as to clear the public roads and lands reserved for public gardens, recreation grounds, schools, marekets and open spaces within a time bound programme. The petitioners have also challenged the G. Rs. dated 4th February, 1976 and 6th June, 1985 regularising unauthorised encroachments on Government and Semi-Government lands upto the years 1976, 1980, 1985 and the latest Government Notification dated 16th May, 1996, regularising unauthorised encroachments up to 1st January, 1995. The Writ Petition was filed on 13th January, 1999, and from the Order of this Court dated 3rd February, 1999, it appears that the petitioners had confined the reliefs in the petition to Town Planning Scheme VI.
2. Petitioner No. 1 Association also claims to be a society registered under the Societies Registration Act, 1860. It claims to be an association consisting of 40 Co-operative Housing Societies which own their respective buildings, situated alongside the Relief Road, Santacruz (West), and in between Relief Road and Linking Road and up to Sadhana High School and S.N.D.T. Campus. The said area is known as "Daulat Nagar". The members of these societies are about 960 in number holding their respective flats in 72 lawfully constructed buildings. The petitioners challenge the validity of Government Policies and orders which grant protection to unauthorised hutments and structures illegally constructed after encroaching upon Government lands by giving them civic amenities, despite the fact that such unauthorised structures violate numerous statutory provisions. It virtually amounts to gifting away Governments lands to grabbers and encroachers, which the State cannot do. It is their case that regularisation of such structures violates the provisions of the Land Revenue Code, the Town Planning statutes, including the Maharashtra Regional and Town Planning Act, 1966, the Bombay Municipal Corporation Act, the MHADA Act, 1966, and the Bombay Police Act. Such encroachers and hutment dwellers are a source of tremendous nuisance to the law-abiding citizens of the locality, since they indulge in commission of unlawful acts and conducting activities which are a menace to society and a grave nuisance and also pose a health hazard to law-abiding citizens in general and to members of the 40 Co-operative Societies of the petitioner-Society in particular. They do not have any regard for health and hygiene, posing a grave risk to residents of the locality. The real sufferers are the members of the petitioner-Society, who have paid substantial amounts to acquire residential premises and have paid to the Government development charges, reclamation charges, occupation price etc. The lawful owners of premises in the locality pay Municipal Taxes such as Property Tax and water charges. It is stated that the Town Planning Scheme, Santa Cruz No. VI, was framed and sanctioned by the Government in the year 1958, and came into force from 1st January, 1959.
Under the said Scheme, in the area surrounding the buildings of the co-operative societies known as "Daulat Nagar", various plots were reserved for schools, market, garden, recreation ground, play ground, roads and open spaces. However, the concerned authorities neglected to provide the facilities, and did not even care to protect vacant lands, which were the subject-matter of the Scheme. Several complaints were made by petitioner No. 1 and its members, but no action whatsoever was taken by the respondents, and the encroachments went on increasing day-by-day. They made several complaints, including a complaint to the Chief Minister (Exhibit 'B') dated 5th November, 1990 listing the various criminal and anti-social activities being committed in the Daulat Nagar area by the unauthorised hutment dwellers. They also referred to the nuisance and inconvenience caused to the law-abiding citizens of the locality which had become filthy and unhygienic. It is not necessary to refer to the allegations made in the Writ Petition about the inconveniences caused to the law-abiding citizens of the locality on account of the activities of the hutment dwellers of the locality. The slumlords and other anti-social elements have been given a free hand to grab Government lands and public utility sites so much so that even the roads and the parks have been encroached upon. It is stated that pursuant to the orders of this Court in First Appeal No. 108 of 1987 in which the petitioner-Association has also intervened, apart from Bandra Reclamation Residents Association, large number of unauthorised structures were demolished and removed, but unfortunately, the Daulat Nagar area was not cleared of encroachments. The petitioners have given the particulars of lands which have been either fully or partially encroached upon by zopadpattis.
3. The petitioners have annexed to the Writ Petition a Plan marked Exhibit 'A', and they have, in particular, objected to the encroachments in the areas marked (A), (B), (C), (D), (E), (F) and (G). The area marked (A) has been reserved for playground, but has been encroached upon by hutment dwellers. The area marked (B) has been reserved for garden, but it has been similarly encroached upon. Similar is the case with the area marked (C), which is reserved for a garden and play-ground in the Town Planning Scheme. The area marked (D) has been reserved for road and garden, but the same has also been occupied by hutment dwellers, and thus, it is impossible, for the law-abiding citizens living in the locality to approach Linking Road from Relief Road, since the entire stretch of land meant for a road has been encroached upon.
4. The petitioners have referred to a suit filed by one Sayyed Zuber Hyder Akbar Miya in the City Civil Court against the State of Maharashtra for a declaration that notices issued to him by the Tahsildar, Kurla, were not binding upon him. He had prayed for a permanent injunction restraining the State Government from demolishing his structure at Azad Nagar, Ghatkopar. A learned Judge of the City Civil Court considered the objection by the State that in view of Section 11 of the Bombay Revenue Jurisdiction Act, 1976, the Court had no jurisdiction to entertain and try the suit, because the plaintiff had not exhausted his remedy available to him under the Maharashtra Land Revenue Code. The question of jurisdiction was framed, and ultimately, following the judgment of a Division Bench of this Court dated 7th August, 1986 holding that the Court had no jurisdiction to entertain the challenge to notice under Section 50 of the Maharashtra Land Revenue Code until the plaintiff had exhausted all remedies by way of appeals, etc., the Court decided the issue of jurisdiction against the plaintiff, and rejected the plaint. The plaintiff preferred First Appeal No 108 of 1997, and the said Appeal was heard by a learned Judge of this Court, who found that an issue of momentous importance had arisen in the Appeal as to whether the Government had formulated any policy which authorised its officers to tolerate unauthorised and illegal construction in the City of Bombay in blatant violation, at least prima facie, of the word, spirit, expression and implication of the Town Planning Legislation, and whether the Government had power to formulate such a policy. Notice was issued to the learned Advocate-General, and a fresh notice was directed to be issued to enable others, who were interested in opposing the Government Policy, to intervene. The petitioners herein also intervened in the said First Appeal. By Order dated 9th March, 1990, the learned Judge ordered that all those unauthorised occupants who have come on the scene after 1985 must be summarily removed. The work of removal of hutments was to start on 20th April, 1990. The order particularly related to Bandra Reclamation covered by Civil Application No. 907 of 1990. As regards Daulat Nagar encroachments, action was directed to be taken on identical lines, and compliance to be reported by 30th April, 1990. Pursuant to the order of the learned Judge, about 600 hutments in Bandra Reclamation area were removed, but before the hutments in Daulat Nagar could be removed, three Writ Petitions were filed on the original Side of this Court, being Writ Petitions No. 1371, 1451 and 1660 of 1990, impugning the notices given and actions taken pursuant to the Orders of the learned Judge dated 7th March and 7th April, 1990. An order of stay was also granted. A Letters Patent Appeal, being Appeal No. 87 of 1990, was also admitted by this Court against the Order passed in First Appeal No. 108 of 1987. The said Letters Patent Appeal was disposed of by Judgment and Order dated 10th July, 1990, and it was held by this Court that the application in the suit was for rejection of the plaint of an individual, and, therefore, the said proceeding could not be treated as a public interest litigation so as to grant relief to any person other than the Plaintiff, and to adversely affect any person other than the Defendants. Their Lordships did observe that if the Executive was not carrying out the duty laid upon it by the Constitution or the law, the Court could certainly require the Executive to carry it out, but the Court could not usurp the functions assigned to the Executive and the Legislature under the Constitution. It was observed by this Court in the Letters Patent Appeal as follows :--
"The State Government and the Municipal Corporation are given statutory powers to demolish unauthorised structures. It is for these authorities to decide when and where such powers shall be exercised. The exercise of these powers, if not carried out, may be mandated by the Court in a given case in an appropriate proceeding. But to direct the authorities to demolish all post-1985 hutments in the areas covered by the said two Civil Applications, and that within a very short time, is to impinge upon the sphere of the executive. It is for the executive to decide when to demolish hutments in what area having regard to the various problems that might arise by having the occupants thereof roaming the streets, problems which the Courts would not have the requisite knowledge of nor the expertise to resolve."
Finally, the Letters Patent Appeal was allowed, and the Orders dated 7th March and 7th April, 1990 were set aside, and it was directed that no demolitions would be carried out pursuant to the impugned orders. Their Lordships also directed that the First Appeal be placed for hearing before a Division Bench for hearing and final disposal, and it was for the Division Bench to consider whether the First Appeal should be limited to its proper sphere or should be allowed to take within its compass the questions raised by the learned Judge. It was stated before the Bench by the Assistant Government Pleader that there was a policy of regularisation. The learned Judges, therefore, observed that the question would be whether such policy covers the plaintiff. It was left to the Division Bench to consider whether it shall decide the question itself or send it to the City Civil Court for trial and decide whether the plaint should be restored to its file. It was, however, made clear that the judgment did not affect the exercise of the powers vested in the State, Municipal Corporation and other statutory authorities to remove unauthorised structures. It is stated by the petitioners that the said First Appeal has not yet been disposed of, and in these circumstances, the petitioners were compelled to file the instant Writ Petition. It is submitted that the State and its authorities are bound to exercise their power and remove the encroachments which are, per se, illegal and in breach of statutory provisions and Notifications. Rather than doing that, the Government has moved in the reverse direction and, issued Notifications from time to time allowing encroachments in clear breach of law. Such Notifications which have been issued from time to time have been issued with a view to take political advantage of securing votes of slum dwellers at the cost of law-abiding citizens. The petitioners have made a long list of letters which they have written to various authorities to redress their grievances, and though several reminders were made from time to time, nothing much has been done. On the other hand, a Notification was issued on 16th May, 1996 according sanction to the rehabilitation of the hutment-dwellers, whose names are mentioned in the Voters' Lists of 1976, 1980, 1985 and in the Voters' List of 1st January, 1995. Exhibit 'C' is the Resolution of the Government dated 16th May, 1996. It is the case of the petitioners that such Notification cannot be issued by the Government from time to time so as to over-ride statutory provisions. While the petitioners do not object to the rehabilitation of the slum dwellers, they object to their continuance on the roads and public utility plots such as gardens, parks, play-grounds, etc., which are provided in the Town Planning Scheme for the benefit of the residents of the locality. The action of the Government has been described as arbitrary and illegal and in breach of statutory provisions. The petitioners, therefore, prayed that the policy of the Government to tolerate or regularise or protect such unauthorised hutments and squatters on public lands, roads and lands reserved for gardens, play-grounds, schools, and other public utilities should be struck down as illegal and unconstitutional, and the respondents should be directed by a Writ of Mandamus to demolish the unauthorised structures constructed on areas marked as (A), (B), (C), (D), (E), (F) and (G) in the Plan Exhibit 'A', and resotre the lands to their original position under a time-bound programme. They have also prayed for quashing the G.Rs.
dated 4th February, 1976, 6th June, 1985 and 16th May, 1996 regularising unauthorised encroachments upto 1st January, 1995.
5. A Division Bench of this Court (Y.K. Sabharwal, C. J., and S.H. Kapadia, J.) by Order dated 9th July, 1999, issued Rule, and considered the question as to the interim order that may be passed pending the decision of the petition. The Counsel appearing for the State had no instructions as to whether there was any proposal to further extend the cut-off date of 1st January, 1995. The Court restrained the respondents from further extending the cut-off date of 1st January, 1995. On perusal of the Layout Plan (Exhibit 'A'), the Court found that apart from other encroachments, there are also encroachments on the 90' Wide Road, which resulted in total blockage of passage for going to Swami Vivekanand Road approaching the 100' Wide Relief Road. 60' Wide Road is one of the approaches to the 90' Wide Swami Vivekanand Road going to Andheri on one side and Bandra on the other. Having considered all aspects of the matter, the Court passed the following order:--
"5. Having examined the records, we direct the authorities to remove encroachments on the road shown in Layout Plan at points (A), (D), (E) and (G), since the removal of these encroachments would clear the 90' Wide Linking Road, part of 60' Wide Road and pave way for approach to Swami Vivekanand Road, as also the 100' Wide Relief Road. Considering that the Monsoon has already set in and in respect of some of the encroachments, as per survey of the respondents, they may have to make alternate arrangement for their rehabilitation, we grant to the respondents time to get these encroachments cleared up to 31st March, 2000. The aspect of removal of other encroachments would be considered on next date of hearing after we have had the report from the respondents as to what steps they have taken in the next three months as a prelude to ultimate removal by 31st March, 2000.
"6. We have not gone into the question as to whether, under the policy of 1996, the encroachers are entitled to any rehabilitation or not. It would be for the authorities to decide the same."
6. Thereafter, the matter came up before this Court on several occasions, and it appears from the perusal of the orders passed by this Court that directions were given from time to time for implementation of the order of the Court dated 9th July 1999. On 24th April, 2000, the learned Additional Advocate-General appearing on behalf of the State, submitted that some more time be granted to the State in order to carry out the order dated 9th July, 1999. He prayed that the time be extended by one year, so that all encroachments should be removed by the end of April, 2001. This Court observed that considerable time had been given to the State to implement the Order of this Court, and the Court was anxious to see that the encroachments on the roads are removed as early as possible. Accordingly, it was directed that the encroachments on the roads, as shown in the Layout Plan and as detailed in paragraph 5 of the Order dated 9th July, 1999, be removed latest by 15th June, 2000. The other encroachments were to be removed by 31st October, 2000. From the Order of this Court dated 20th July, 2000, it appears that the Court was anxious about removal of the encroachments on the road and appropriate directions were given from time to time. The other encroachments had also to be removed, but for that, further time was given. It was also made clear that while removing encroachments from the places other than the roads and public places, the Corporation will act in accordance with law and follow such procedure as it is required to follow in law, before removal of such encroachments. The Court expressed no opinion on the question as to whether removal of encroachments from a public place required compliance with any other procedure than a notice, such as hearing the parties, etc.
7. On October 11, 2000, it was pointed out to the Court by the Counsel appearing on behalf of the State that the Government had undertaken a scheme for the rehabilitation of the encroachers. The said scheme was strongly objected to by the Counsel appearing for the petitioners who stated that the Government should not be permitted to convert plots reserved for garden, open ground, schools, cemetery, etc., into building sites for the rehabilitation of encroachers, because that would really amount to rewarding the encroachers at the cost of law-abiding citizens. This Court also expressed concern in the matter as to how the Government could justify such a scheme which involved conversion of such plots which are reserved for public utilities into building sites for the purpose of rehabilitating encroachers, which really amounted to binding the law to reward a wrong-doer at the cost of law-abiding citizens and tax-payers who pay for the development and betterment of the area. It was also made clear in that order that the Order dated 9th July, 1999 had attained finality and had to be implemented. It was, however, made clear that the Government should not take shelter under any order of this Court to justify its action of converting play-grounds, green belt, etc., into building sites for rehabilitation of encroachers under the Slum Rehabilitation Scheme. In fact, the Court observed that the Government may consider rehabilitating such encroachers in areas where enough land was available to construct planned colonies, without in any way adversely affecting the rights, interest and the facilities provided to law-abiding citizens and tax payers in a planned locality covered by the Town Planning Scheme.
8. We are informed that against the Order of this Court dated October, 11, 2000, a Special Leave Petition was preferred before the Supreme Court praying for a stay of the order of this Court dated October 11, 2000. The interveners herein, being the petitioners before the Supreme Court, had asked for a stay of the order of demolition of structures occupied by the members of the interveners who had erected structures on plots reserved for play-ground, garden, school, etc., situate in area known as "Daulat Nagar", Santa Cruz (West). It is stated in the affidavit filed by petitioner No. 2, which was affirmed on 1st December, 2000, and filed in reply to the Notice of Motion, that the Supreme Court declined to grant any ad-interim injunction when the matter came up before the Court on 16th October, 2000. When the Special Leave Petition came up before the Court on 6th November, 2000, the petitioners therein withdrew the Special Leave Petition.
9. At this stage, it may be noticed that on the 6th May, 1999, one Janata Rahivasi Mandal, Chunabhatti, filed a Chamber Summons for allowing it to intervene in the matter, and the said prayer was granted. Later, on 9th November, 2000, one Vikas Welfare Society also prayed for being allowed to intervene in the Writ Petition. Mr. Naphade, learned Counsel, appeared on behalf of Vikas Welfare Society. In the Notice of Motion, the interveners prayed that the Order of this Court dated 9th July, 2000, read with the Order dated 11th October, 2000, and also other orders be clarified -
(1) so as to exclude from its purview slum-dwellers who are on the lands which are not reserved for gardens, schools, play-grounds and recreation grounds.
and (2) rehabilitation in-situ and development of the lands which are reserved for the purposes other than play-ground, garden and recreation grounds permissible under Slum Rehabilitation Scheme, if plans are sanctioned therefor by the Slum Rehabilitation Authority.
In the alternative, it was prayed that the Order dated 9th July, 2000, read with Order dated 11th October, 2000 and other orders passed in the Writ Petition be modified so as to exclude from its scope the slum dwellers who are on the plots other than the plots reserved for gardens, schools, playgrounds and recreation grounds. Though there is no specific order on record allowing the intervention application, Mr. Naphade was fully heard in the Writ Petition.
10. It appears from the Order of this Court of 6th December, 2000 that in view of the submissions advanced before this Court, the learned Additional Advocate-General, appearing for the Slate, was requested to inform the Chief Executive Officer, Slum Rehabilitation Authority, Mumbai, to appear before this Court, either in person or through Counsel, on 13th December, 2000 to inform this Court whether the roads from which the structures had been removed pursuant to the orders of this Court be got cleared by the Slum Rehabilitation Authority, It was also directed to file a reply to Notice of Motion No, 375 of 2000 in this Writ Petition filed by Vikas Welfare Society. It further appears from the order of this Court dated 31st January, 2001 that the petitioners in this Writ Petition prayed for time to file a detailed affidavit. They also wanted to challenge the decision/Notification, etc., issued by respondent No. 1, which permits parks, play-grounds, etc., to be utilised for the purposes of rehabilitation of slums. The petitioners were also allowed to amend this Writ Petition to challenge the aforesaid decision/Notification, etc. Pursuant to the permission granted by this Court, the petitioners amended this Writ Petition, and added a prayer for issuance of a Writ of Certiorari calling upon respondents Nos. 1 to 9 to produce records and details regarding the General Slum Rehabilitation Scheme for Greater Bombay and particular Slum Rehabilitation Scheme applicable to the lands covered in Town Planning Scheme VI and Town Planning Scheme II of Santa Cruz (W), and to quash and set aside the General Slum Rehabilitation Scheme and particularly Slum Rehabilitation Scheme in relation to lands covered by Town Planning Scheme VI and Town Planning Scheme II, and the Notification dated 15th October, 1997. The Slum Rehabilitation Authority was added as respondent No. 9 in the Writ Petition. It would appear from the facts stated above that the Writ Petition was filed by the petitioners challenging various Resolutions of the Government regularising encroachments made on the lands covered by the Town Planning Scheme. The Writ Petition proceeded on the basis that the State and its authorities were not removing the unauthorised structures as they were bound to do, and by executive decisions, such unauthorised occupation was being regularised in blatant disregard of the Statutes and Rules. At a later stage, it appeared that a Slum Rehabilitation Scheme had been formulated, and, therefore, it had become necessary for the petitioners to challenge that Scheme as well. That is why the Slum Rehabilitation Authority was added as respondent No. 9 in this Writ Petition. There was reference to the Slum Rehabilitation Scheme also in the affidavit filed by the interveners in support of Notice of Motion No. 375 of 2000, in which it was contended that the Slum Rehabilitation Scheme was a statutory Scheme, and the plans were sanctioned strictly as per Development Control Regulation 33(10) to construct buildings for rehabilitation of poor slum-dwellers under the Slum Rehabilitation Scheme, which was statutorily recognised. Of course, the primary relief, which the interveners wanted in the Notice of Motion, was that the authority should not be permitted to misinterpret the orders of this Court, and evict slum dwellers who were not covered by the orders.
11. The Slum Rehabilitation Authority appeared and filed an affidavit-in-reply, which has completely changed the complexion of the case. It is stated in the affidavit-in-reply filed on 30th January, 2001, and affirmed by Mr. Subhash Pandit Joshi, the Executive Engineer of the Slum Rehabilitation Authority, added respondent No. 9, that since there were several slums in the Bombay City and Bombay Suburban District, and no basic amenities were provided to the slum-dwellers who were residing in the slums for many years, the Government of Maharashtra decided to rehabilitate the slum-dwellers and to re-develop the slums. It framed Development Control Regulations in the year 1991 which came into force with effect from 25th March, 1991 known as "S.R.D. Scheme" under Development Control Regulation No. 33(10). The said Regulation provided that if more than 70% hutment dwellers formed a proposed Co-operative Society, they could submit a proposal for re-development with 2.5 Floor Space Index under the said Regulation.
Thereafter, the Government of Maharashtra, in exercise of powers conferred under Section 31(1) of the MRTP Act, issued guidelines on 3rd June, 1992 for the Slum re-development on the lands occupied by the existing slums which are zoned or reserved for public purposes in the revised Development Plan of Greater Bombay. According to the deponent, the said Policy Guidelines were sanctioned by the Government of Maharashtra after following the prescribed procedure and were published in the Government Gazette vide Notification dated 3rd June, 1992. The said Guidelines, which have been annexed as Exhibit 'B', disclose that the Government, in accordance with Section 31(1) of the MRTP Act, had proposed to sanction Policy Guidelines to which objections were invited. Thereafter, they were duly published in the Official Gazette. After setting out the facts in the preamble, the Guidelines categorised the existing slums into several categories, and Category II is of particular relevance to this case. This category consists of lands reserved/ designated/allotted for existing or proposed non-buildable reservations such as recreational ground, play-ground, garden, park and any other open users in the Final Development Plan occupied by "existing slums" to the extent of more than 25% of the area under such non-buildable reservations. If the area occupied by the existing slum is less than, 25% of the area of the site, no re-development scheme on the site shall be undertaken, and slum dwellers from such areas shall be shifted and sites occupied by them cleared for the designated/reserved amenity. Any plot admeasuring up to 1000 sq. mtrs. independently located or in a cluster occupied by existing slums will have to be cleared by shifting the slum-dwellers. However, if the area, either independently located or in a cluster, is 1001 square metres or more, such sites may be allowed to be developed for slum re-development in accordance with Regulation 33(10), read with Appendix-IV of the said Regulations, subject to the condition that the ground area of the land so used shall not be more than 67% of the reservations, leaving 33% clear thereafter for those reservations. The Guidelines were published in the Official Gazette on 3rd June, 1992.
12. Development Control Regulation No. 33(10) was further amended on 15th October, 1997, and published in the Maharashtra Government Gazette on the same day. This became necessary, because, by Notification dated 16th October, 1995, the Slum Rehabilitation Authority had been appointed under the provisions of Section 3-A of the Maharashtra Slum Area (Improvement, Clearance and Re-development) Act, 1971 (hereinafter referred to as "the Slum Act"). The said Authority had been granted the status of a Planning Authority for the purpose of Slum Rehabilitation, and was, therefore, empowered to initiate modification to the Development Control Regulations. The Government of Maharashtra had directed the authority to initiate a proposal for modification in regard to slum development, and, accordingly, the authority on 15th March, 1996, decided to initiate the said modification to the said Regulations. Suggestions/Objections were invited pursuant to notice published in the Maharashtra Government Gazette dated 25th April, 1996. After considering the suggestions/objections, the Authority at its meeting held on 20th July, 1996 approved the said modification with some amendments, and submitted the revised modification to the State Government for final sanction on 25th July, 1996. Revised modification was published for inviting objections/suggestions from the public, and after considering such objections, etc., the Government sanctioned the revised modification, except Clauses 6.1 to 6.26 of Annexure IV of Development Control Regulation No. 33(10) of the said revised modification.
13. Development Control Regulation No. 33(10), as amended, provided that for the re-development of slums, including pavements, whose inhabitant's names and structures appear in the electoral roll prepared with reference to 1st January, 1995 or a date prior thereto, but where the inhabitants stay at present in the structure, the provisions of Appendix IV shall apply on the basis of a tenement in exchange for an independently numbered structure. Paragraph II of the Regulation defines 'Slum' to mean those slums which were censused, or declared and notified, in the past or hereafter under the Slum Act. 'Slums' shall also mean areas/pavement stretches hereafter notified as Slum Rehabilitation Areas. Paragraph II(ii) lays down that if any area fulfils the conditions laid down in Section 4 of the Slum Act to qualify as slum Area, and has been censused or declared and notified shall be deemed to be and treated as Slum Rehabilitation Areas. Such Slum Rehabilitation Area shall also include area declared as such by the Slum Rehabilitation Authority under Section 4 of the Slum Act.
14. Appendix IV to Development Control Regulation No. 33(10), as amended by Notification dated 15h October, 1997, provides inter alia, that eligible hutment-dwellers taking part in the Slum Rehabilitation Scheme shall have to be rehabilitated according to the provisions in the Appendix. It may be in situ and in the same plot as far as possible. Clause 7. 9 of Appendix IV provides that Slum Rehabilitation Project can be taken up on Town Planning Scheme plots also, after they are declared slums/slum rehabilitation area.
15. On 9th April, 1998, a General Slum Rehabilitation Scheme for the entire Greater Bombay was published in the Maharashtra Government Gazette after following the procedure of inviting objections, suggestions, etc. from the general public and after considering such objections and suggestions.
16. The affidavit further states that in the meeting held on 3rd May, 2000 for the implementation of the Slum Rehabilitation Scheme, the Government of Maharashtra took a decision for the rehabilitation of slum-dwellers in Daulat Nagar, Santa Cruz, Mumbai, and to implement the Slum Rehabilitation Scheme. By Resolution dated 12th May, 2000, a Monitoring Committee had been appointed. On the same day, the Slum Rehabilitation Authority sanctioned the Slum Rehabilitation Schemes on several Final Plots, of which particulars are given in paragraph 8 of the affidavit, which were part of Town Planning Scheme VI and Town Planning Scheme II. Letter of intent was issued on 25th May, 2000, and the Layout approved on 20th September, 2000.
17. In view of these facts, it was contended on behalf of respondent No. 9 and the interveners that in view of the amendment of Development Control Regulation 33(10), and in view of the Slum Rehabilitation Scheme prepared by the Slum Rehabilitation Authority under the Slum Act, there can be no objection to the rehabilitation of the slum-dwellers even on Final Plots covered by Town Planning Schemes. In the case of Plots admeasuring upto 1000 square metres in respect of which there was any non-buildable reservation such as recreation ground, play-ground, etc., the slum-dwellers had to be shifted, and the plot cleared of encroachments. In respect of similar plots having a total area of 1001 square metres or more, if more than 25% of the area under such non-buildable reservation was occupied, the said sites may be allowed to be developed for slum re-development, subject to the condition that the ground area of the land so used shall not be more than 67% of the reservation, leaving 33% clear thereafter for these reservations.
18. Counsel for the petitioners strongly opposed the stand taken by added respondent No. 9, the Slum Rehabilitation Authority. It will be noticed that the validity of Regulation 33(10) of the Development Control Regulations has not been specifically and categorically challenged in this Writ Petition, and what has been challenged is the General Slum Rehabilitation Scheme for the entire Greater Bombay published on 9th April, 1998. But in the last part of prayer (b) (1), the Notification dated 15th October, 1997 is mentioned, which is the Notification amending Regulation 33(10). The prayer is so worded that even the Counsel for the respondents did not notice that there was a challenge to the amendment of Regulation 33(10), and proceeded to advance his submissions on the basis that the amendment to Regulation 33(10) was not challenged.
19. We find considerable difficulty in this Writ Petition in going into the very important issues now raised for the first time by added respondent No, 9. The Writ Petition was filed with a view to secure an order of removal of encroachments which had remained on the roads, lands and plots which were subject to reservations. The plea of the petitioners was that the State and its authorities were not performing their legal obligations under the various statutes, and that they should be called upon to remove the encroachments. They also challenged the action of the Government in regularising such encroachments from time to time by executive decisions in breach of the laws. The picture, as it now emerges after filing of the affidavit-in-reply by the Slum Rehabilitation Authority, is that Regulation 33(10) has been amended from time to time, and in view of the appointment of the Slum Rehabilitation Authority under the Slum Act, the provisions have been amended so as to give effect to and implement the Slum Rehabilitation Scheme propounded by the Slum Rehabilitation Authority. The petitioners contend that they had no notice of this, and therefore, they could not challenge the Slum Rehabilitation Scheme or the amendment to the Development Control Regulations. The petitioners, in particular, submitted that before the Slum Rehabilitation Scheme is applied to any particular area or region, that area or region must be declared to be a slum or a slum rehabilitation area. The Scheme, as also the Development Control Regulations, refer to censused slums. It is their submission that there is no material on record to show that the slums in question are censused or that they were ever declared to be slums either under the Slum Act or under the Development Control Regulations or that they were even declared as slum rehabilitation area. It is submitted that the entire Greater Bombay cannot be treated as a slum, and even if the General Slum Rehabilitation Scheme has to be implemented in particular areas, those areas must first be declared as slum/slum rehabilitation area. If a proposal to declare them as slum or slum rehabilitation area is notified, members of the public will have an opportunity to oppose their declaration as slum/slum rehabilitation area.
Mr. Tulzapurkar, appearing on behalf of the Slum Rehabilitation Authority, added respondent No. 9, submitted that under Clause 7.9 of Appendix IV of Development Control Regulation 33(10), the slums are those censused or declared under the Slum Act. He also relied on Clause II(ii), and submitted that if any area fulfils the conditions laid down under Section 4 of the Slum Act, 1971 to qualify as slum area, and has been censused or declared and notified, it shall be deemed to be and treated as slum rehabilitation area. He, therefore, submitted that it is not necessary that a slum or a slum rehabilitation area has to be declared as such. If it is shown that the slum is a censused slum, and fulfils the conditions of Section 4 of the Slum Act, that may be sufficient. In the instant case, respondent No. 9 has relied upon Exhibit "E-1" which includes Schedule-Two certificate. From the said Schedule-Two, it appears that pursuant to the High Court's order to remove encroachments, some action was taken. Government of Maharashtra on 12th May, 2000 decided to implement the Slum Rehabilitation Scheme for rehabilitating the slum-dwellers and for implementation of the said decision, the Deputy Collector (Encroachments), Andheri, agreed to issue Certificate Schedule Two upto 15th May, 2000, but that was not done, and thereafter, as per the decision of the meeting presided over by the Commissioner, Greater Mumbai, Municipal Corporation, on 23rd May, 2000, and as per the same, the work of examination (scrutiny) was done immediately. Upon scrutinising the available record, the Additional Collector (Encroachments), Mumbai and Mumbai Suburban District, issued a certificate Schedule Two in the matter. It is stated that the hutments situated on plots of Town Planning Scheme VI, Daulat Nagar, Santa Cruz, are spread over the land of the ownership of the Municipal Corporation and Government of Maharashtra, and the same are censused hutments. It is also mentioned that in Daulat Nagar area, the work of survey as per the order of the High Court was completed during the period from 20th March, 1999 to 12th April, 1999 by the Office of the Tahsildar (Encroachments), Andheri, and on the basis of the particulars received upon carrying out survey, the certificate Schedule Two was prepared. In the said slum area as per survey, there are 3980 huts, and out of which cases of 3458 huts have been examined, and out of them 2678 huts are eligible for getting protection.
Counsel for the petitioners submitted that such a certificate, as annexed to the affidavit of added respondent No. 9, does not establish that the slum is a censused slum. From the certificate itself, it appears that some survey was being done pursuant to the orders passed by this Court from time to time, and in that connection, some verification was done. This is sought to be relied upon for the purpose of showing that the slum is a censused slum.
20. We have considered the said exhibit and Schedule Two Certificate produced by respondent No. 9, and we must say that the comments of the petitioners are fully justified. We are not satisfied on a perusal of Exhibit 'E-1' to hold that it establishes that the slum is a censused slum. If the slum is not a censused slum, then the question will be whether the same has been declared or notified as a slum under the Slum Act. There appears to be no material on record to show that the slums in question in the Daulat Nagar area have been notified or declared under the Slum Act. Moreover, there is no material on record to satisfy the Court that the slums fulfil the conditions laid down in Section 4 of the Slum Act so that they can be deemed to be Slum Rehabilitation Area. Though there is a mention in the affidavit filed on behalf of added respondent No. 9 that slum rehabilitation schemes on several plots in Daulat Nagar falling under Town Planning Schemes have been sanctioned, the sanctioned schemes have not been brought on record. The question of implementing the General Slum Rehabilitation Scheme in the area in question will arise only if the Court is first able to find out whether the slums are censused slums or whether they have been declared as slums or slum rehabilitation area under the Slum Act. As we have pointed out earlier, the entire complexion of the case has changed after an affidavit-in-reply was filed by the added respondent No. 9, the Slum Rehabilitation Authority, which has brought on record various amendments, notifications and schemes for rehabilitation of slum-dwellers. We must say that the questions that arise in view of the amendment of the Development Control Regulations and the framing of the Slum Rehabilitation Scheme are of great importance. In the instant Writ Petition, the petitioners had no knowledge of these amendments and schemes when the Writ Petition was filed, and even the other respondents did not throw any light on this aspect of the matter. Now, we find that it may not be advisable for this Court to go into the important issues that arise in the absence of sufficient reliable material on record. On the basis of incomplete facts, grave injustice may result if we proceed to examine the very important issues that arise in this case. The question as to whether the amendment of Regulation 33(10) is valid, whether the Slum Rehabilitation Scheme is framed in accordance with law, whether the right of slum-dwellers will over-ride the rights of law-abiding citizens, who are tax and rate-payers, and whether the amendment of the Regulations and the framing of the Scheme to achieve this objective can be upheld or should be struck down as being unreasonable or arbitrary, require serious consideration. There is no material to show whether the slums in question are censused, or whether they were ever declared as slums or slum rehabilitation area. Nor is there any material to show whether they fulfil the conditions under Section 4 of the Slum Act, so that if they are shown to be censused, they can be deemed to be slum rehabilitation area even without a formal declaration. The slum rehabilitation schemes said to have been sanctioned on several plots in the area covered by Town Planning Schemes are not on record. On the basis of the record as it is before us in this Writ Petition, we are not inclined to go into these important issues, and we, therefore, leave it to the parties to agitate these matters in appropriate proceeding, where the parties may go fully prepared to agitate these issues. However, there are certain directions that we can give in this Writ Petition, keeping in view the Slum Rehabilitation Scheme. No one has contended before us that encroachments can be permitted on the roads and pavements. Even if such encroachers may be found to be entitled to rehabilitation, that would not justify their presence on the roads, footpath, etc. Similarly, in terms of the General Slum Rehabilitation Scheme, in areas covered by Slum Rehabilitation Scheme, any plot under reservation, being less than 1000 square metres in area, has to be cleared of these encroachments. Only such plots which have an area of 1001 square metres or more may be available for rehabilitation of slum-dwellers if the encroachment is over an area which is more than 25% of the total area of the plot. Since we have not expressed any opinion on the validity of the General Slum Rehabilitation Scheme, nor have we expressed any opinion as to its applicability to the Town Planning Scheme areas, we shall, for the present, proceed on the basis that they are valid. This is, of course, subject to the right of the parties to challenge their validity in a duly constituted proceeding.
21. In the circumstances, we dispose of this Writ Petition with the following directions:--
(1) The State of Maharashtra and its authorities shall remove all encroachments from the D. P. Roads and footpaths in Daulat Nagar area. The road shall include its flanks and the entire width as shown in the Development Plans.
(2) Any plot under reservation having an area of less than 1000 square metres shall also be cleared of all encroachments, without exception.
(3) In respect of plots under reservation having area of 1001 square metres or more, all encroachments shall be removed, if encroachment over the plot is over an area less than 25% of the total area of the plot.
(4) It is open to the petitioners to challenge the validity of Development Control Regulation 33(10) and the General Slum Rehabilitation Scheme formulated by respondent No. 9 is a duly constituted proceeding.
(5) The State of Maharashtra and its authorities are further directed to see to it that the area from which encroachments are removed are not again encroached upon by anyone. If it is brought to the notice of the Court that the areas having been cleared of encroachments have again been usurped by encroachcrs, the Station House Officer of the Police Station within whose jurisdiction that area falls, shall be held personally responsible and answerable to the Court. We direct that the Station House Officer of each Police Station shall lake appropriate steps to see to it that no further encroachments take place on public lands or plots under reservation, and that encroachments should not re-appear on plots and areas from where they have already been removed, or may be removed, pursuant to this judgment and Order.
Nothing said in this Judgment shall be construed as expression of opinion on the issues relating to the validity of the impugned notifications conferring right of rehabilitation on slum-dwellers, the various amendments to the Development Regulations or the General Slum Rehabilitation Scheme or the decisions taken thereunder or notification issued. The questions arc left open.
22. This Writ Petition is disposed of in the above terms. Rule discharged.
23. Notice of Motion is dismissed having become infructuous.