Bombay High Court
Housing Development And ... vs State Of Maharashtra And 68 Ors on 6 February, 2015
Author: A.S. Oka
Bench: A.S. Oka, A.K. Menon
1 wp-2499.13.os
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2499 OF 2013
WITH
WRIT PETITION NO.926 OF 2013
Housing Development and Infrastructure
Ltd. and Anr. ... Petitioners
Vs.
State of Maharashtra and Ors. ... Respondents
-----------------
Mr. D.D. Madon, Senior Counsel a/w Mr. S.G. Surana, for the
Petitioners in W.P. No.2499 of 2013 and W.P. No.926 of 2013.
Mr. V.S. Tiwari, AGP for the Respondent No.1 - State in W.P. No.2499 of
2013.
Mr. Milind More, Additional Government Pleader, for the Respondent
Nos.1, 2 and 3 in W.P. No.926 of 2013.
Mr. Vijay Dinkarrao Patil, for the Respondent Nos.2, 3 and 4 in W.P.
No.2499 of 2013.
Mr. A.V. Anturkar, Senior Counsel i/by Mr. Nitesh S. Acharya, for the
Respondent No.5 in W.P. No.2499 of 2013.
Mr. Jagdish G. Reddy a/w Ms. Neha Wadhwa, for the Respondent No.4
in W.P No 926 of 2013.
Mr. Girish D. Utangale a/w Mr. Akhil Kubade i/by M/s. Utangale & Co.,
for the Respondent No.5 - MHADA in W.P No.926 of 2013.
CORAM : A.S. OKA &
A.K. MENON, JJ.
DATE : 6th, 9th and 10th FEBRUARY, 2015
ORAL JUDGMENT (Per A.S. Oka, J.)
. These petitions were taken up for final disposal out of turn 1 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 2 wp-2499.13.os as the same were specially assigned to this Bench in the light of the order dated 2nd May, 2014 of the Apex Court under which a direction was issued to dispose of these petitions as expeditiously as possible.
FACTS OF THE CASE- WRIT PETITION NO.2499 OF 2013
2. It is necessary to firstly deal with the facts of the case in Writ Petition No.2499 of 2013. By this Petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the Judgment and Order dated 2nd July 2013 passed by the High Power Committee in Appeal No.28 of 2012 which is filed by the Respondent Nos.5 to 69.
3. The issue concerns the land bearing CTS Nos.4207 (Part), (for short "said land") of village Kole Kalyan, Bandra, Taluka Andheri, Mumbai Suburban District. The fifth respondent- Co-operative Housing society is formed by the slum dwellers occupying structures on the said land. The subject matter of dispute is the Scheme for rehabilitation of slum dwellers (for short the SR Scheme) on the said land under Regulation No.33(10) of the Development Control Regulations for Greater Mumbai, 1991 (for short "DCR"). On 13 th October 2003, Annexure-II of the proposed SRA Scheme was issued containing the list of eligible hutment dwellers/occupants who were entitled to seek permanent accommodation in the developed property. The first 2 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 3 wp-2499.13.os petitioner in W.P. No.2499/2013 is the developer of the SR scheme. A Letter of Intent was issued by the Slum Rehabilitation Authority (for short 'SRA') on 29th July 2006 in the name of the fifth Respondent Society. It appears that the scheme of the fifth respondent - society was clubbed with the scheme with some other schemes. The case of the first petitioner-Developer in W.P. No.2499 of 2013 is that 88 members of the fifth respondent-society who were held as eligible for the allotment of permanent accommodation sold/transferred/assigned their existing structures to the first petitioner and valuable consideration was paid by the first petitioner to the said slum dwellers.
4. It will be necessary to state as to how the matter arose before the High Power Committee (for short "HPC") constituted by the State Government. An application was made by the fifth respondent-
society before the HPC seeking various directions against the petitioners. The said application was disposed of by order dated 3 rd October 2009. The HPC referred in the said order to the order passed by this Court on 6th December 2005 in Writ Petition No.2375 of 2005.
The HPC issued a direction to the Assistant Registrar SRA shall register the fifth respondent-society on compliance being made within a period of four weeks. Further direction was issued to the The Chief Executive Officer (for short "CEO") of the second respondent- Slum 3 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 4 wp-2499.13.os Rehabilitation Authority (for short "SRA") constituted under the Maharashtra Slum Area (I C &R) Act, 1971 (for short "the said Act of 1971) to ensure that eligible members of the fifth respondent-society shall be allotted rehab tenements in the rehab building ready for occupation.
5. In Writ Petition No.2582 of 2009 filed in this Court by six slum dwellers, an affidavit was filed on behalf of the first petitioner setting out the details of the transactions allegedly made by the eligible members of the society with the first petitioner. By order dated 1 st February 2010, Writ Petition No.2582 of 2009 was permitted to be withdrawn with liberty to file a suit. It appears that on 14 th January 2010, notices were issued to some of the members of the fifth respondent - society calling upon them to appear before the SRA. There was another petition filed being Writ Petition No.1423 of 2010 by the fifth respondent-society. In the said petition, the grievance appears to be in relation to the non-allotment of the tenements to six of its members. The order of this Court dated 28 th September 2010 shows that the petition was disposed of with a direction to the SRA to look into the issues raised by the fifth respondent-society which was the petitioner in the said petition.
4 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 5 wp-2499.13.os
6. There was an order made by the Secretary of the SRA on 16th November 2011 directing the Deputy Registrar of the SRA to allot rehab tenements to Mr. Maskur Alam Siddiqui and six others (the petitioners in Writ Petition No.2582 of 2009) within a period of 15 days from the date of grant of the Occupation Certificate.
7. It appears that the first petitioner made an application No.131 of 2012 before the HPC. In the said application a prayer was made for issuing directions to the SRA to dispose of the application made by the first petitioner and to submit a report to the HPC and to cancel the eligibility of the slum dwellers who have allegedly transferred their structures to the first petitioner. The said application was disposed of by the HPC by order dated 21 st July 2012. The HPC directed the Secretary/ SRA to take a decision on the complaints/ representations made by the first petitioner within a period of one month from the said date. A direction was also issued that till then, the allotment shall not be made by the SRA to the members of the fifth respondent-society.
8. The order dated 29th August 2012 was passed by the SRA on the basis of the said directions of the HPC. The operative part of the said order reads thus:
5 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 6 wp-2499.13.os "15. Considering the aforesaid facts of the case, this Authority is of the view that the 88 Members of the Navjeevan Nagar SRA CHS Ltd. have sold their respective tenement to the Developer M/s. HDIL and therefore, they cannot be held eligible under the subject S.R. Scheme and therefore, their eligibility stands cancelled and the order dated 09.04.2012 passed by the Deputy Registrar/ SRA stands revoked/ cancelled.
Further, under the S.R. Scheme the Developer cannot purchase the rehab tenement and therefore, this Authority directs the Deputy Chief Engineer/SRA to forfeit and take the possession of the 88 rehab tenement from the developer M/s. HDIL as and when the same are ready and keep the said tenements in the custody of the SRA strictly for allotting to the deserving PAPs."
9. It is against this order that the fifth to sixty ninth respondents preferred Appeal No.28 of 2012. Before the said appeal was preferred, it appears that the said respondents filed Writ Petition (L) No.2320 of 2012 in this Court. By order dated 24 th September 2012, a Division Bench of this Court permitted the petitioners in the said petition to withdraw the said petition with liberty to move the HPC against the the decision of the SRA. Perhaps, it is on the basis of the liberty which was granted by this Court that the said appeal was preferred by the contesting respondents.
10. By order dated 6th October 2012, the HPC noted that the Chairperson and the two Members of the said Committee cannot be impleaded as party respondents to the said appeal and on the ground of mis-joinder of the parties, the said appeal was dismissed. The said order 6 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 7 wp-2499.13.os was challenged by the said respondents in W.P. (L.) No.2467 of 2012. By order dated 9th October 2012, this Court directed the restoration of the said appeal on the basis of the statement made by the petitioners in the said petition that the names of the Members of the HPC will be deleted from the Memorandum of appeal. By restoring the appeal and by recording the statement of the said respondents, the petition was disposed of by this Court. Thereafter, on said appeal, the impugned Judgment and order dated 2nd July 2013 has been passed.
11. Now, it will be necessary to make a reference to the impugned Judgment and order passed by the HPC. The said order holds that the SRA could not have ventured to give findings on the issues of civil nature relating to the veracity of certain payments made by the first petitioner to the eligible members of the fifth respondent-
society. The relevant part of the said order reads thus:
"The Secretary/SRA's Order dated 29.8.2012 declaring the eligible Slum Dwellers of Appellant No.1 i.e. Navjeevan Rahivasi SRA CHS Ltd as non protected occupiers of their dwelling structures without right of rehabilitation on extraneous grounds that they had purportedly received certain payments from respondent No.4 i.e. Developer is thus set aside for reasons enumerated above. It is further directed that SRA to take appropriate measures for time bound in situ rehabilitation of all eligible Slum Dwellers of Appellant No.1 i.e. 1 Navjeevan Rahivasi SRA CHS Ltd under on going Slum Rehabilitation Scheme.
In view of the above the appeal stands disposed off."
7 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 8 wp-2499.13.os
12. Thus, the net result of the impugned order is that apart from setting aside the order of SRA dated 29 th August 2012, the HPC directed the SRA to take appropriate measures for rehabilitation of the eligible slum dwellers who are the members of the fifth respondent-
society in the ongoing SR Scheme.
FACTS OF THE CASE- WRIT PETITION NO.926 OF 2013
13. In Writ Petition No.926 of 2013, there are various prayers .
The learned Senior Counsel appearing for the petitioners fairly stated that in this Petition, the petitioners are not pressing prayer clauses (a) and (b). As far as prayer clauses (c) and (d) are concerned, essentially there is a challenge to the policy of the State Government as reflected from Government Resolution dated 2nd January, 2012 permitting the sale of the premises by the slum dwellers. We must note here that the learned AGP tendered across the bar GR dated 22 nd July, 2014 and submitted that the said GR dated 2nd January, 2012 has been superseded. In any event, for the reasons which we will recorded hereafter, we have come to a conclusion that the petitioners are not affected in any manner by GR dated 2 nd January, 2012 and therefore, the challenge in terms of prayer clauses (c) and (d) will really be academic. Thus, none of the substantive prayers are required to be dealt with on merits. Hence, it is not necessary to deal with the averments made in the said Petition.
8 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 9 wp-2499.13.os SUBMISSIONS OF THE PETITIONERS IN WRIT PETITION NO.2499 OF 2013
14. As far as Writ Petition No.2499 of 2013 is concerned, the learned Senior Counsel representing the petitioners pointed out that on 19th January, 2013, HPC closed the matter after hearing the submissions. He pointed out that there is a delay of six months in deciding the appeal by the HPC. He submitted that apart from the gross delay, submissions which were even not canvassed before the High Power Committee have been taken into consideration by HPC. His submission is that though there were no submissions made based on Sections 3X, 3Y and 3Z of the said Act of 1971 before the HPC, the said provisions have been considered as if submissions have been made by the petitioners on the basis of the said provisions. He invited our attention to the relevant grounds in the writ petition in which specific contentions have been raised that the submissions which were not canvassed before it have been considered by the HPC. He pointed out that though the submissions which were not canvassed by the learned counsel representing the petitioners before the HPC have been considered, in fact, some of the submissions which were actually made have not been dealt with. He invited our attention to Writ Petition No.2582 of 2009 filed by some of the members of the fifth Respondent -
Navjeevan Society. He pointed out that after a reply was filed by the 9 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 10 wp-2499.13.os first petitioner pointing out the execution of several documents of transfer by the members and the substantial amounts received by large number of members by way of consideration, by order dated 1 st February, 2010, the said members who were the petitioners were permitted to withdraw the Petition with liberty to file a suit. He pointed out that the petitioners never availed of the liberty granted to them by filing a civil suit. He submitted that instead of availing the remedy of filing civil suits in which the questions of fact in relation to the sale deeds and other documents executed by the members of the Navjeevan Society could have been gone into, they have filed further proceedings which ought not to have been entertained. He pointed out that it is not disputed that the members of the said society have received valuable consideration from the petitioners. He urged that the petitioners had to take the step of acquiring right, title and interest of the members of the said society as the implementation of the project was being delayed on account of policy of non-cooperation adopted by the members of the society. He submitted that the intention of the petitioners of entering into the said transactions with the members of the fifth respondent -
society was to ensure that the SR Scheme is implemented expeditiously.
He invited our attention to Section 3E of the said Act of 1971. He also invited our attention to Regulation 33(10) of the said DCR and in particular Clause 1.18 of Appendix IV to Regulation 33(10). He urged 10 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 11 wp-2499.13.os that on conjoint reading of Clause 1.18 with Section 3E, the intention of the legislature seems to be that once a person who is held to be eligible in a SR scheme to receive a tenement creates third party rights in respect of his tenement, his right to get accommodation in the SR Scheme is forfeited. He urged that in this case, though there may not be any transaction made by the members of the fifth respondent-society in relation to the tenements which were to be allotted to them in the redeveloped property, the same analogy will have to be applied in this case where the members have transferred their right, title and interest in the original structures/huts to the first petitioner. He submitted that by the same analogy, by entering into the said transactions, the members of the society have forfeited their right to obtain allotment of tenements in the redeveloped buildings. He urged that merely because the petitioners are parties to the transaction, the petitioners cannot be prevented from taking recourse to a remedy under Article 226 especially when the petitioners have categorically stated before this Court which is recorded in one of the earlier orders that the petitioners will not claim the possession of the tenements in the redeveloped property which were to be allotted to the members who have created rights in favour of the petitioners. He states that the said tenements can be used by SRA or the concerned authority for the benefit of other project affected persons. He submitted that this conduct of the 11 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 12 wp-2499.13.os petitioners is consistent with the fact that the petitioners parted with the large amounts to the members only to ensure that there is a progress made in the implementation of the Slum Rehabilitation Scheme. He urged that the real issue was whether the members of the society have forfeited their right to secure permanent accommodation.
He urged that HPC was under an obligation to consider this aspect as the SRA found that in the light of the transactions admittedly entered into by the members, they have forfeited their right to allotment of permanent accommodation. He also pointed out the conduct of the fifth respondent society in Writ Petition No.2499 of 2013. He pointed out that there is an affidavit filed on 30 th June, 2014 by the Secretary of the fifth respondent making scandalous and contemptuous allegations against the Hon'ble the Chief Justice of this Court. He pointed out that a copy of Writ Petition filed in the Apex Court by the fifth respondent has been annexed to the said affidavit in which the nature of allegations made is much more serious. He pointed out the order of the 1st Court which specifically records that the Bench dealing with these Petitions shall take into consideration such conduct.
15. He would, therefore, urge that this Court will have to hold that the order of HPC is illegal and the same will have to be set aside.
He urged that after having accepted large consideration from the petitioners and after having failed to file a suit for declaration or any 12 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 13 wp-2499.13.os other appropriate relief, the concerned members of the fifth respondent
- society are not entitled to permanent accommodation. He also submitted that in any event, apart from delay of six months in passing the order, the HPC has taken into consideration the submissions which were never urged and, therefore, the appeal would require reconsideration by the HPC.
SUMBMISSIONS OF THE RESPONDENTS
16. The learned counsel appearing for the SRA supported the impugned order of HPC. The learned AGP, apart from pointing out that the GR dated 2nd January, 2012 has been superseded, supported the impugned order. The learned Senior Counsel representing the fifth respondent supported the impugned order.
ALLEGATIONS AGAINST THE HON'BLE THE CHIEF JUSTICE
17. Before we deal with the submissions on merits, as noted in one of the earlier orders of Division Bench of this Court, it will be necessary to deal with the allegations made in the affidavit of Shri Maskur Alam Siddiqui, the Secretary of the fifth respondent - society. A copy of Civil Writ Petition filed by the said society before the Apex Court is also annexed. However, due to subsequent events, it is not necessary for us to go into the said allegations. The learned Senior Counsel representing the fifth respondent on Friday 6 th February, 2015 stated 13 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 14 wp-2499.13.os before the Court that on Thursday, 5 th February 2015, he had called the said Maskur Alam Siddiqui (who had filed the objectionable affidavit) to his office. He stated that the said deponent has realised the mistakes committed by him. Therefore, he tendered an affidavit dated 6 th February, 2015 of the said Shri Maskur Alam Siddiqui affirmed before a Notary Public. In the said affidavit, it is stated that the fifth respondent desires to withdraw the affidavit dated 30th June, 2014 and even the Writ Petition filed before the Apex Court. In paragraph 3 of the said affidavit, the deponent has tendered his own apology and he has also tendered an apology on behalf of the members of the society. The deponent is the Secretary of the fifth respondent - society. In paragraph 4 of the affidavit, he has stated that he will tender his unconditional apology before the Hon'ble the Chief Justice. The learned Senior Counsel prayed that the apology may be accepted. He made a statement in the afternoon of 6th February, 2015 that on Monday 9th February 2015, the deponent will appear before the Hon'ble the Chief Justice and will tender an apology. Today (on Monday 9th February 2015) before we started further dictation of the Judgment, the learned counsel appearing for the fifth respondent states that accordingly Shri Maskur Alam Siddiqui, the Secretary of the society appeared before the Hon'ble the Chief Justice. He has unconditionally withdrawn the allegations made against the Hon'ble the Chief Justice and he has tendered an 14 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 15 wp-2499.13.os unconditional apology to the Hon'ble the Chief Justice. He states that the apology has been tendered for himself and on behalf of the members of the fifth respondent society. We accept the said statements.
18. There is a clear undertaking to withdraw the Writ Petition filed before the Apex Court a copy of which has been annexed to the affidavit dated 30th June, 2014. The fifth respondent will have to file a compliance affidavit within a period of two weeks from today placing on record the order of withdrawal of the said Writ Petition.
19. It is true that one of the earlier orders passed by the 1 st Court records that an opportunity was given to the Secretary of fifth respondent to withdraw the said allegations but he declined to do so.
Now, an unconditional apology has been tendered not only to this Court but also to the Hon'ble the Chief Justice in the open Court. Considering the statements made in the affidavit dated 6 th February, 2015, we are of the view that the apology tendered deserves to be accepted subject to compliance with the assurance and undertaking given to this Court to withdraw the Writ Petition filed before the Apex Court. The fifth respondent could have avoided all this. Though, the apology is belated, we have decided to show mercy without going into the question whether the said respondent deserves it. Therefore, it is not necessary 15 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 16 wp-2499.13.os for us now to deal with the controversy.
CONSIDERATION OF SUBMISSIONS
20. It will be necessary to make a reference to the relevant provisions of the said Act of 1971. In this Petition, we are concerned with Chapters 1A and 1B thereof. It will be necessary to make a reference to Chapter 1B. Section 3X defines "dwelling structure" to mean a structure used as a dwelling or otherwise and includes an out-
house, shed, hut or other enclosure or structure, whether of bricks, masonry, wood, mud, metal or any other material whatsoever. Clause
(c) of Section 3X defines "protected occupier" to mean an occupier of a dwelling structure who holds a photo-pass. Section 3Y deals with issuance of photo-pass and maintenance of a Register. Sub-section (1) of Section 3Y reads thus :-
"3Y. (1) The Government or any officer generally or specially authorised by it in this behalf shall, after verifying certain documents or records, as may be prescribed, issue a photo-pass for the purposes of this Act, in the prescribed format to the actual occupier of a dwelling structure, in existence on or prior to 1st January, 1995."
(emphasis added)
21. We must note here that by Maharashtra Act No.9 of 2014, Sub-Section (1) of Section 3Y has been amended. In place of the date "1st January, 1995", the date "1st January, 2000" has been substituted.
What is most material is Section 3Z which reads thus :-
16 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 17 wp-2499.13.os "3Z. Protection, relocation and rehabilitation of protected occupiers (1) Notwithstanding anything contained in this Act, on and after the commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Second Amendment) Act, 2001, no protected occupier shall, save as provided in sub-section (2), be evicted, from his dwelling structure.
(2) When, in the opinion of the State Government, it is necessary, in the larger public interest, to evict the protected occupiers from the dwelling structures occupied by them, the State Government may, subject to the condition of relocating and rehabilitating them inn accordance with the scheme or schemes prepared by the State Government in this behalf, evict them from such dwelling structures:
Provided that, if any of the protected occupiers does not comply with the terms and conditions of the scheme for relocation and rehabilitation, such occupier shall forfeit the claim for such relocation and rehabilitation and shall become liable for eviction without being relocated and rehabilitated."
22. Even in Sub-Section (1) of Section 3Z, there was a corresponding amendment made by the Maharashtra Act No.9 of 2014.
The said amendment is made by Section 3 of the said Act of 9 of 2014.
Section 3 reads thus :-
"3. In section 3Z of the principal Act, in sub-section (1), for the words, brackets and figures "the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Second Amendment) Act, 2001" the words, brackets and figures "the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Amendment) Act, 2014" shall be substituted."
17 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 18 wp-2499.13.os
23. Thus, the said Act of 1971 confers protection on protected occupiers. Protected occupier is one who is an actual occupier of a dwelling structure in existence on or prior to 1 st January, 2000 (earlier 1st January, 1995). Thus, under Sub-Section (1) of Section 3Z, there is a complete protection granted to a protected occupier from eviction from his dwelling structure. Only exception to Sub-Section (1) is Sub-
Section (2) which we have quoted earlier. Protected occupiers can be evicted only when in the opinion of the State Government it is necessary in the larger public interest to do so. However, the said power of the State Government is subject to the condition of relocating and rehabilitating the protected occupiers in accordance with the scheme or schemes prepared by the State Government in this behalf.
Thus, even if the State Government, in larger public interest, decides to evict the protected occupiers, the said right of the State Government is subject to relocating and rehabilitating the protected occupiers in accordance with the scheme or schemes prepared by the State Government. The proviso to Sub-Section (2) is also of some importance for deciding the case in hand. It provides that the right of a protected occupier to claim such relocation or rehabilitation is forfeited only when the protected occupier does not comply with the terms and conditions of the scheme for relocation and rehabilitation. Section 3E is also relevant which reads thus:
18 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 19 wp-2499.13.os "3E. Restrictions on transfer of tenements.
(1) The tenements allotted to the persons under the Slum Rehabilitation Scheme shall not be transferred by the allottee thereof by way of sale, gift, exchange, lease or otherwise for a period of first ten years commencing from the date of allotment of the tenement. After the expiry of the said period of ten years, the allottee may, with the permission of the Slum Rehabilitation Authority, transfer such tenement in accordance with the prescribed procedure.
(2) If the tenement is transferred by the allottee in contravention of the provisions of sub-section (1), the Competent Authority shall, by order, direct the eviction of the person in possession of such tenement in such manner and within such time as may be specified in the order, and for the purpose of eviction, the Competent Authority may use or cause to be used such force as may be necessary:
Provided that, before issuing any order under this sub-section, the Competent Authority shall give a reasonable opportunity to such person to show cause why he should not be evicted therefrom."
24. It will be also necessary to make a reference to Section 3B of the said Act of 1971. Section 3B reads thus :-
"3B. Slum Rehabilitation Scheme.
(1) The State Government, or the Slum Rehabilitation Authority concerned with the previous sanction of the State Government, shall, prepare a general Slum Rehabilitation Scheme for the areas specified under sub-
section (1) of section 3A, for rehabilitation of slums and hutment colonies in such areas.
(2) The General Slum Rehabilitation Scheme prepared under sub-section (1) shall be published in the Official Gazette, by the State Government or the concerned Slum Rehabilitation Authority, as the case may be, as the Provisional Slum Rehabilitation Scheme for the are specified under section 3A(1), for the information of general public, inviting objections and suggestions, giving reasonable period of not less than thirty-days for 19 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 20 wp-2499.13.os submission of objections and suggestions, if any, in respect of the said Scheme.
(3) The Chief Executive Officer of the Slum Rehabilitation Authority shall, consider the objections and suggestions, if any, received within the specified period in respect of the said Provisional Scheme and after considering the same, and after carrying out such modifications as deemed fit or necessary, finally publish the said scheme, with the approval of the State Government or, as the case may be, the Slum Rehabilitation Authority in the Official Gazette, as the Slum Rehabilitation Scheme;
(4) The Slum Rehabilitation Scheme so notified under sub-
section (3) shall, generally lay down the parameters for declaration of any area as the slum rehabilitation area and indicate the manner in which rehabilitation of the area declared as the slum rehabilitation area shall be carried out. In particular, it shall provide for all or any of the following matters, that is to say,-
(a) the parameters or guidelines for declaration of an area as the slum rehabilitation area;
(b) basic and essential parameters of development of slum rehabilitation area under the Slum Rehabilitation Scheme;
(c) provision for obligatory participation of the landholders and occupants of the are declared as the slum rehabilitation are under the Slum Rehabilitation Scheme in the implementation of the Scheme;
(d) provision relating to transit accommodation pending development of the slum rehabilitation are and allotment of tenements on development to the occupants of such area, free of cost;
(e) scheme for development of the slum rehabilitation areas under the Slum Rehabilitation Scheme by the landholders and occupants by themselves or through a developer and the terms and conditions of such development; and the option available to the Slum Rehabilitation Authority for taking up such development in the event of non-participation of the landholders or occupants;
(f) provision regarding sanction of Floor Space Index and transfer of development rights, if any, to be made available to the developer for development of the slum 20 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 21 wp-2499.13.os rehabilitation area under the Slum Rehabilitation Scheme;
(g) provision regarding non-transferable nature of tenements for a certain period, etc. (5) Fo r the purposes of this Chapter, the State Government may register any person or an association of persons, or a partnership firm registered under the Partnership Act, 1932 or a company registered under the Companies Act, 1956, as a Developer in the prescribed manner."
25. We must note here that Section 3B deals with a General Slum Rehabilitation Scheme for the areas specified under sub-section (1) of section 3A. Sub-Section (4) provides for contents of a General Slum Rehabilitation Scheme. As pointed out earlier, Sub-Section (2) of Section 3Z contemplates not only a general scheme under Section 3B but also scheme or schemes prepared by the State Government. In the present case, it is not in dispute that the scheme which is sought to be implemented is provided in clause 10 of the Regulation 33 of the DCR.
It will be material to refer to Clause 10 of Regulation 33 which reads thus :-
"Regulation 33(10) I. Eligibility for redevelopment Scheme.-(a) For redevelopment of slums including pavements, whose inhabitants, names and structures appear in the in the electrol roll prepared with reference to 1 st 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."
21 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 22 wp-2499.13.os
26. Clause 2 under the Regulation 33(10) contains expanded definition of "Slum" for the purposes of Slum Rehabilitation Scheme.
However, definition of "Slum" under the said Clause 2 is not the subject matter of controversy in the case in hands. As Regulation 33(10) refers to Appendix IV, it will be necessary to make a reference to Appendix IV which incorporates detailed provisions relating to the Slum Rehabilitation Scheme under Regulation 33(10). Clause 1 of the Appendix IV deals with the rights of the hutment dwellers. Clause 1.1 is relevant which reads thus :-
"1.1 Hutment dwellers, in the slum or on the pavement, eligible in accordance with the provisions of Development Control Regulation 33(10) shall, in exchange for their structure, be given free of cost a residential tenement having carpet area of 20.90 sq.m.
(225 sq.ft.) [25.00 sq.m. (269 sq.ft.)] including balcony, bath and water closet, but excluding common areas."
27. Thus, the hutment dwellers who are eligible in accordance with the provisions of Regulation 33(10), are entitled in exchange of their original structures, to residential tenements free of cost. It will be necessary to make a reference to Clause 1.16 of Appendix IV. Clause 1.16 deals with those eligible hutments-dwellers on the site who do not join the Project willingly. Clause 1.16 reads thus :-
"1.16 In respect of those (eligible) hutments-dwellers on site who do not join the Project willingly the following steps shall be taken :
(i) Provision for all of them shall be made in the rehabilitation component of the scheme.
22 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 23 wp-2499.13.os
(ii) The details of the actual tenement that would be given to them by way of allotment by drawing lots for them on the same basis as for those who have joined the Project will be communicated to them in writing by the Managing Committee of the Co-operative Housing society. [If it is registered or the developer, and in case of dispute, decision of the CEO/SRA shall be final and binding on all the parties concerned.]
(iii) The transit tenement that would be allotted to them would also be indicated along with those who have joined the Project.
(iv) If they do not join the scheme within 15 days after the approval has been given to the Slum Rehabilitation Project on that site, then action under the relevant provisions including sections 33 and 38 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 as amended from time to time, shall be taken and their hutment will be removed, and it shall be ensured that no obstruction is caused to the scheme of the majority of persons who have joined the scheme willingly.
(v) After this action under the foregoing clause is initiated, they will not be eligible for transit tenement alongwith the others, and they will not be eligible for the reconstructed tenement of lots, but they will still be entitled only to what is available after others have chosen which may be on the same or some other site.
(vi) If they do not join till the building permission to the Project is given, they will completely lose the right to any built-up tenement, and their tenement shall be taken over by the Slum Rehabilitation Authority and used for the purpose of accommodating pavement- dwellers and other slum dwellers who cannot be accommodated in city etc.
(vii) A pitch of about 3m x 3.5 m will be given elsewhere if and when available, and construction therein will have to be done on their own."
28. Thus, the scheme under Regulation 33(10) provides for giving an opportunity to the eligible slum dwellers to join the scheme at two different stages. The first stage is till the expiry of period of 15 days 23 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 24 wp-2499.13.os from the date of approval. The second stage is till the date building permission is given. Even if the eligible slum dwellers refuse to join the scheme even at the second stage, the tenements which are to be allotted to them under Clause 1 will be taken over by the SRA. However, even to such eligible slum dwellers, there is a provision made to allot a pitch of about 3m x 3.5m if and when available, on which they will have to make a construction at their own cost. It will be also necessary to make a reference to Clause 1.18 on which heavy reliance was placed by the learned Senior Counsel appearing for the petitioners which reads thus :-
"1.18 Restriction on Transfer of Tenements. - The tenement obtained under this Scheme cannot be sold/ leased/assigned or transferred in any manner for a period of ten years from the date of allotment/ possession of the tenement. In case of breach of conditions, except transfer to legal heir, the tenement will be taken over by Slum Rehabilitation Authority."
29. Prohibition or restriction put by Clause 1.18 is in relation to the sale, lease or assignment or transfer of a tenement obtained in the scheme for a period of ten years from the date of allotment/possession of the tenement.
30. Thus, to summarize, there is a complete protection to the protected occupiers from eviction under Sub-Section (1) of Section 3Z of the said Act of 1971. The eviction of the protected occupier can be made by the State Government provided conditions in Sub-Section (2) 24 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 25 wp-2499.13.os of Section 3Z are satisfied and that also subject to relocating or rehabilitating them. Proviso to Section 3Z makes it clear that the right of relocation and rehabilitation stands forfeited only if the protected occupier does not comply with the terms and conditions of the scheme for relocation and rehabilitation. Section 3E is already quoted above.
However, the consequences provided in Section 3E will come into operation only if a tenement allotted to the protected occupier under a Slum Rehabilitation Scheme is transferred as provided therein. There is no provision either under the said Act of 1971 or in the Scheme under Regulation 33(10) which provides that a right of an eligible slum dweller to rehabilitation or relocation is lost or forfeited, if he transfers his protected dwelling structure.
31. As far as a scheme under Regulation 33(10) is concerned, it confers a right on a hutment dweller who is eligible in accordance with the provisions to an allotment of a tenement as specified in Clause 1.1 of Appendix IV free of cost. The contingency in which the said right can be forfeited or withdrawn is provided in Clause 1.18 which is on par with Section 3E. Moreover, Clause 1.16 makes it very clear that an eligible hutment dweller who does not join the scheme of rehabilitation even at the second stage is entitled to allotment of a pitch as provided in Sub-Clause (vii) thereof.
25 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 26 wp-2499.13.os
32. As pointed out earlier, now there is an amendment made to Chapter 1B of the said Act of 1971. Earlier, the protected occupiers of the dwelling structures in existence on 1st January, 1995 were protected.
Now, the protection has been extended to occupants of such structures in existence on 1st January, 2000.
33. Thus, the intention of the legislature is to be to protect the protected occupier from eviction. The intention is that if due to exigency of a larger public interest, such a protected occupier is required to be evicted, he can be evicted provided he is either rehabilitated or relocated in accordance with a Scheme. However, the right conferred on such protected occupier under Sub-Section (2) of Section 3Z is forfeited only if the protected occupier does not comply with the terms and conditions of the scheme for relocation and rehabilitation. The only other provisions which take away the right of the protected occupier to get a tenement free of costs is Section 3E and Clause 1.18 of Appendix IV to Regulation 33(10). The said provisions apply only when after allotment of a tenement under the SRA scheme, the slum dweller or protected occupier transfers the same. In such a case, the tenement will be taken over by the SRA. However, no such forfeiture is attracted when they transfer their original dwelling structures. The case made out in the present Petition is that in the year 26 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 27 wp-2499.13.os 2006-2007, 88 members of fifth respondent - society transferred or assigned their original huts which were protected. Annexure II was issued on 13th October, 2003. Therefore, all 88 members who purportedly entered into the transactions were admittedly protected occupiers by virtue of Sub-Section (1) of Section 3Z of the said Act of 1971. All of them were protected from eviction in accordance with Section 3Z. In the event, larger public interest requires their eviction, they are entitled to relocation or rehabilitation under a scheme as a matter of right. There is no dispute that a right had accrued to 88 members to protect the possession of their respective structure as they were in possession thereof on 1st January, 2000. The said right could be taken away or forfeited only in accordance with either Section 3E or clause 1.18 of the Appendix IV to Regulation 33(10). The rights accrued under Section 3Z of the said Act of 1971 to them cannot be taken away by virtue of a purported sale of their protected dwelling structures and that also to a developer appointed to implement a scheme under the Regulation 33(10).
34. At this stage, it will be necessary to make a reference to Application No.131 of 2012 made by the petitioners before the HPC.
The order passed by HPC dated 21st July, 2012 has been annexed. In the said application, the prayer was that the eligibility of 88 members 27 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 28 wp-2499.13.os who have sold, transferred or assigned their rights in original house or structure should be cancelled. The case made out by the petitioners is that by virtue of the said transactions entered into in the year 2006- 2007, the said 88 members had lost their right to obtain allotment of a permanent accommodation.
35. It is true that there may not be a specific provision either in the said Act of 1971 or under the scheme under Regulation 33(10) which prohibits "contracting out". It will be necessary to make a reference to the decision of the Apex Court in the case of Nagindas Ramdas vs. Dalpatram Ichharam @ Brijram And Ors. 1. The Apex Court was dealing with the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Before the Apex Court, a decision of the Division Bench of the Gujarat High Court was relied upon. In paragraph 18 of the said decision, the Apex Court observed thus :-
"18. In Rasiklal Chunilal's case (supra), a Division Bench of the Gujarat High Court has taken the view that in spite of the fact that there is no express provision in the Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure. If we may say so with respect, this is a correct approach to the problem."
(emphasis added) 1 1974 (1) SCC 242 28 of 43 ::: Downloaded on - 07/05/2015 18:31:35 ::: 29 wp-2499.13.os The Apex Court specifically approved the aforesaid view taken by the Gujarat High Court by observing that it was the correct approach to the problem. Therefore, the Apex Court held that prohibition against contracting out can also be read by implication into the provisions of a statute consistently with the public policy underlying the welfare measure. It will be also necessary to make a reference to another decision of the Apex Court in the case of Shri Lachoo Mal vs. Shri Radhey Shyam2. In the said decision, the Apex Court has quoted with approval the observations made by Halsbury's Laws of England, Volume 8, Third Edition and in particular paragraph 248 thereof. The relevant part of paragraph 6 of the said decision of the Apex Court reads thus :-
"6. ............... In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in Paragraph 248 at page 143:
"As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void."
In the footnote it is pointed out that there are many statutory provisions expressed to apply "notwithstanding any agreement to the contrary", and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of
2. 1971(1) SCC 619 29 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 30 wp-2499.13.os covenant (Law of Property Act, 1925). Section 23 of the Indian Contract Act provides "The consideration or object of an agreement is lawful, unless - it is forbidden by law; or 69 7 is of such a nature that, if permitted, it would defeat the provisions of any law or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." It has never been the case of the respondent that the consideration or object of the agreement which was entered, into in June 1963 was forbidden by law. Reliance has been placed mainly on the next part of the section, namely, that it is of such a nature that it would defeat the provision of any law and in the present case it would be Section 1-A of the Act."
(emphasis supplied)
36. In Paragraph 248, a general rule is laid down by Halsbury that any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament and he can contract himself out of the Act, unless it is shown that such an agreement is in circumstances of the particular case contrary to the public policy.
37. The public policy reflected from the provisions of the said Act of 1971 and in particular Section 3Z is to ensure that a protected occupier can be evicted from his dwelling house only in larger public interest provided he is rehabilitated or relocated under a scheme. It is provided in the scheme under Regulation 33(10) that an eligible 30 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 31 wp-2499.13.os hutment dweller is entitled to self-contained residential accommodation of the requisite area free of cost. Even if he does not join the scheme, he gets a small pitch on which he can construct upon. A judicial notice will have to be taken of the fact that in the City of Mumbai, the cost of such constructed self-contained accommodation granted by way of rehabilitation is very high running into lacs. An indefeasible right is conferred by the said Act of 1971 on a protected occupier against eviction. That right can be taken away only in the larger public interests provided he is either relocated or rehabilitated. The intention is to confer the said right on a person who was occupying a dwelling structure on 1st January, 1995 or 1st January, 2000 as the case may be. If the sale transactions of the protected dwelling structures are allowed to be executed, it will virtually permit an unscrupulous developer or any other person to defeat the rights conferred on the protected occupiers.
It is quite possible that anti social elements may force the protected occupiers of slums to give up their right to claim permanent accommodation by forcing them to enter into such transactions. The protected occupiers can be evicted only when it is required in larger public interest. Such sale transactions by the eligible occupants/ protected occupiers in respect of their original dwelling structures are completely against the very object of the said Act of 1971 and contrary to the public policy. Therefore, a prohibition on contracting out by 31 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 32 wp-2499.13.os effecting a transfer of a hutment or a dwelling structure will have to be read by implication in the statute consistently with the public policy underlying the provisions of the welfare statute (the said Act of 1971).
Thus, the petitioners cannot get any relief on the basis of the sale transactions which are prohibited.
38. Now, we again turn to the facts of the case. The learned Senior Counsel appearing for the petitioners invited our attention to the order passed by this Court in WP No.2582 of 2009. We have already pointed out that the petitioners therein were permitted to withdraw the Petition with liberty to file a civil suit. A copy of the said Petition is annexed. We find that the said Petition was filed by six eligible members of the fifth respondent society. The said Petition was filed for implementation of the directions given by the HPC under the order dated 3rd October, 2009. We have perused the affidavit-in-reply filed to the said Petition.
39. In the said reply to the said Petition, it is pointed out that consideration as stated in the said reply has been paid to the six petitioners. In fact, in the second affidavit, more particulars of the transactions in relation to only six petitioners have been set out. It will be also necessary to make a reference to the order of the HPC dated 3 rd October, 2009. The said order records that though the petitioners were 32 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 33 wp-2499.13.os served, none appeared for them. The operative part of the order passed by the HPC reads thus:
"5. Considering the aforesaid facts and circumstances and in the interest of natural justice the Assistant Registrar of SRA is hereby directed to register the applicant's society on compliance of documents from the society within a period of 4 weeks. The CEO, SRA is also directed to ensure that the eligible members of the applicant society shall be allotted the rehab tenements in the five rehab buildings ready for occupation."
40. Thus, there was a direction issued by the HPC to the CEO, SRA to ensure that eligible members of the fifth respondent shall be rehabilitated in tenements in five rehab building ready for occupation.
The Petition which was filed by six members of the fifth respondent society was for implementation of the order of HPC dated 3 rd October 2009. The submission of the learned Senior Counsel appearing for the petitioners is that the said six members were the members of the Managing Committee and one of them was the Chief Promoter and therefore, the Petition was filed on behalf of the society.
41. It will be necessary to make a reference to the order dated 28th September, 2010 passed by the Division Bench of this Court in Writ Petition No.1423 of 2010 filed by the fifth respondent - society. The grievance in the said Petition was about the non allotment of tenements to the six members whose names were in the list of members who were eligible for rehabilitation. It will be necessary to make a reference to 33 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 34 wp-2499.13.os the submission made across the bar by the first petitioner who is the developer which is noted in the order dated 28 th September 2010.
Paragraph 2 of the said order reads thus :-
"2. The learned counsel for the developer submits that Writ Petition No.2582 of 2009 filed by the concerned six persons has already been disposed of on 1 February 2010 by permitting those petitioners to file suit with respect to the subject matter of the petition for similar reliefs."
42. Thus, it was contended that Writ Petition No.2582 of 2009 filed by the concerned six persons was disposed of with liberty to file a suit with respect to the subject matter of the petition for similar reliefs.
Notwithstanding the said objection of the present petitioners, this Court disposed of the Petition by passing the following order :
"6. This petition is disposed of. The SRA shall look into the grievance posed in this petition in relation to the issues raised in letter dated 11 February 2010. It is clarified that we have not gone into the merits of the controversy or the rival contentions raised in this petition. All issues are kept open."
43. In the earlier said Petition, it is not the contention of the petitioners that the said Petition filed by the six members was on behalf of the fifth respondent society. Nevertheless even after considering the objection of the Petitioners quoted above, this Court directed SRA to look into the grievances made in the application.
34 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 35 wp-2499.13.os
44. The Secretary of SRA passed an order dated 16 th November, 2011 on the basis of the order of the Division Bench. The relevant operative part of the said order is on page 161 which reads thus :-
"16. Considering the aforesaid facts brought to the notice of this Authority as well as after perusing the record of the subject S.R. Scheme this Authority pass following orders:
i) The Executive Engineer-III, SRA is directed to ensure that Respondents developer, comply with the necessary conditions as enumerated in Letter dated 11/2/2010 issued by SRA for grant of Occupation Certificate within a period of 15 days.
ii) The Deputy Registrar, SRA is directed to allot rehab tenements to Mr. Maskur Alam Siddiqui and 6 others within a period of 15 days from the date of grant of Occupation Certificate."
45. Thus, a direction was issued to SRA to allot rehab tenements to seven occupants within a period of 15 days from the date of grant of Occupation Certificate. We must note that a Writ Petition being Writ Petition No.750 of 2012 was filed by the petitioners for challenging the said order. The said Writ Petition was withdrawn on 21st January, 2013 presumably in view of the order of SRA dated 29 th August 2012.
46. Then comes the order dated 21st July, 2012 passed by the HPC on the basis of application No.131 of 2012 made by the petitioners. We have already referred to prayer made in the said 35 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 36 wp-2499.13.os application. The contention in the said application was that those members who have transferred or assigned their rights in old huts or structures have lost their right of allotment of the permanent tenements by way of rehabilitation. Therefore, a direction was issued to SRA to take a decision on the complaints/representations made by the present petitioners. On the basis of this direction, by order dated 29 th August, 2012, the SRA passed the following order :-
"15. Considering the aforesaid facts of the case, this Authority is of the view that the 88 Members of the Navjeevan Nagar SRA CHS Ltd. have sold their respective tenement to the Developer M/s. HDIL and therefore, they cannot be held eligible under the subject S.R. Scheme and therefore, their eligibility stands cancelled and the order dated 09.04.2012 passed by the Deputy Registrar/SRA stands revoked/ cancelled.
Further, under the S.R. Scheme the Developer cannot purchase the rehab tenement and therefore, this Authority directs the Deputy Chief Engineer/ SRA to forfeit and take the possession of the 88 rehab tenement from the developer M/s. HDIL as and when the same are ready and keep the said tenements in the custody of the SRA strictly for allotting to the deserving PAPs."
Thus, the SRA recorded a finding that the first petitioner was not entitled to purchase the tenements and, therefore, the Secretary of SRA was directed to take the possession of the 88 rehab tenements from the petitioners as and when the same are ready. It was held that the eligibility of 88 members is cancelled. It is perhaps because this order that the Writ Petition No.750 of 2012 filed by the 36 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 37 wp-2499.13.os petitioners was withdrawn. The order dated 29 th August, 2012 was sought to be challenged by the fifth respondent - society by filing a Writ Petition (L) No.2320 of 2012. By order dated 24 th September, 2012, the Writ Petition was disposed of as withdrawn by granting liberty to the fifth respondent to move the HPC. It is on the basis of this order that the appeal on which the impugned order was passed was preferred by the contesting the fifth to sixty ninth respondents. Therefore, we see no merit in the submission that the issue of entitlement as far as the 88 members was concluded by the order dated 1 st February, 2010 in Writ Petition No.2582 of 2009.
47. Now, we turn to the impugned order. There may be some justification in the submissions made by the learned Senior Counsel appearing for the petitioners as regards the delay in disposal of the appeal by HPC. The appeal was heard on 19 th January, 2013, and the order was pronounced on 2nd July 2013.
48. Before we advert to the findings recorded by HPC, we must note here that the issue canvassed in Writ Petition No.2499 of 2013 is a legal issue as regards the legal effect of the purported transfer or sale of the original structures made by 88 members of the fifth respondent -
society. On interpretation of the provisions of said Act of 1971 and the 37 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 38 wp-2499.13.os scheme under Regulation 33(10), we have already decided the said issue. Therefore, assuming that the learned senior counsel appearing for the petitioners is right in submitting that some of the contentions which were never raised have been taken into consideration by the HPC and that the contentions which were raised were not considered, no purpose would be served by remanding the matter for fresh consideration of the HPC. The learned senior counsel appearing for the petitioners did not dispute that the submissions made by the petitioners have been correctly recorded in paragraph 5 of the impugned order of the HPC. Perusal of the findings recorded by HPC in paragraph 7 of the impugned order shows that the HPC considered the provisions of Sections 3X and 3Y of the said Act of 1971. In paragraph 8 of the impugned order, the HPC has dealt with the concept of protected occupier. In paragraph 9, an observation is made by the HPC that the transfer of such dwelling structures by the occupiers along with right of rehabilitation has been recently permitted by the State Government under the Government Resolution dated 2nd January, 2012. It is pointed out that the said Government Resolution permits transfer in favour of another slum dweller and not to any developer of a Slum Rehabilitation Scheme. It will be necessary to note the observations made in paragraph 9 of the impugned order which reads thus :
"9. The findings of Secretary, SRA stand infirm in the backdrop of the above mentioned provisions of Section 38 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 39 wp-2499.13.os 3X, Section 3Y and Section 3Z of Maharashtra Slum Areas (IC&R) Act, 1971. Further Government Resolutions and circulars etc issued from time to time incorporating Guidelines/Instructions which need to be observed by Competent Authorities and Appellate Authorities while determining eligibility of concerned Slum Dwellers, do not include grounds where rights of rehabilitation of protected occupiers have been bought over by the developer of a Slum Rehabilitation Scheme. The transfers of such dwelling structures by protected occupier along with their right of rehabilitation has been recently permitted by the State Government through a Transfer Policy issued vide Housing Departments G.R.No. Zopusu/ 2010/C.R-1/Zopusu-1 dated 2.1.2012 to only other Slum Dwellers and not to any Developer of a Slum Rehabilitation Scheme. In fact if the transfer of dwelling structures by such protected occupiers to developers of Slum Rehabilitation Scheme were to be permitted, it would be directly be adversarial to their rights of rehabilitation which are ensured under Section 3X, Section 3Y and Section 3Z of the Maharashtra Slum Area (IC&R) Act, 1971."
49. HPC has observed that the eligibility of the slum dwellers can be decided only after verification of certain documents or records as may be prescribed by the provisions of the Act of 1971 and not on the basis of any other set of documents like the one relied upon by the petitioners. HPC went on to observe that "even its contemplation is fraught with dangerous implication regarding consent required from 70% eligible slum dwellers and, therefore, will defeat the very object of the Slum Rehabilitation Scheme". Thus, by holding that the transactions relied upon by the petitioners would defeat the right of eligible slum dwellers, the order of the Secretary of SRA was set aside. We find that 39 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 40 wp-2499.13.os the ultimate conclusion drawn by the HPC is very consistent with the view which we have taken in earlier paragraphs of this judgment.
50. It will be also necessary to make reference to the order dated 3rd July, 2013 passed by this Court in Writ Petition No.926 of 2013 along with Notice of Motion No.140 of 2013 in Writ Petition No.2499 of 2013. Obviously, the said order is passed at admission stage and there is no final adjudication made by the Division Bench. The Division Bench has referred to the order passed in Writ Petition No.2582 of 2009 on 21st January, 2010. Paragraph 9 of the said order records prima facie observation that the case of 88 persons was considered by this Court in Writ Petition No.2582 of 2009. We have already referred to the said petition which was filed by six members and the stand taken by the petitioners in earlier proceedings that it was a petition filed by the six members. We have already made a reference to subsequent orders passed by the SRA as well as subsequent orders of this Court. Reliance is placed on certain observations made by this Court in the said order dated 3rd July, 2013. This Court has expressed a prima facie view that the slum dwellers who have not transferred their tenements to the developer, stand on higher footing than the 88 slum dwellers who have transferred their right, title and interest. The observations in the said order are only prima facie observations and, 40 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 41 wp-2499.13.os therefore, no reliance can be placed on the said observations when this Court is finally deciding the writ petitions on merits.
51. It is true that the petitioners have relied upon the transactions to which they are parties which are contrary to law and illegal. Though the petitioners may be party to the transactions which are illegal, we have considered the case of the petitioners on merits.
We are not throwing out the case of the petitioners on the ground that they are not entitled to invoke a remedy under Article 226 of the Constitution of India though the said remedy is always a discretionary and equitable remedy.
52. From the affidavits on record we find that there is some dispute as regards for the purpose for which certain amounts were paid to 88 eligible slum dwellers by the Petitioners. The only question which arises for consideration in Writ Petition No.2499 of 2013 is whether the eligible slum dwellers are deprived of their right to allotment of the permanent accommodation under the scheme of Section 33(10).
Therefore, it is not necessary for us to go into the disputed question as to whether the payments were made by way of consideration for surrender of their rights in respect of their original structures or whether the payments were made for the reasons pleaded by the fifth 41 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 42 wp-2499.13.os respondent - society and its members. All these issues can be decided in appropriate proceedings which may be filed by the parties in accordance with law.
53. As far as Writ Petition No.926 of 2013 is concerned, we have noted that some of the prayers have not been pressed by the petitioners in this petition. As far as the Government Resolution dated 2nd January, 2012 is concerned, apart from the statement made by the learned AGP across the bar that the same has been superseded, even going by the case made out by the petitioners, in no manner they are adversely affected by the Government Resolution dated 2 nd January, 2012. The said Government Resolution has not been used by the HPC to hold against the petitioners. The HPC has referred to the said Government Resolution by observing that after 2 nd January, 2012 it may be possible for the eligible slum dwellers to transfer their rights to another slum dwellers and not to the developer. As we find that the petitioners are no way affected by the Government Resolution dated 2 nd January, 2012, at the instance of the petitioners, it is not necessary to go into the legality and validity of the said Government Resolution.
That is the reason why we are not inclined to consider any relief prayed for in Writ Petition No.926 of 2013. However, we make it clear that the issues raised by the petitioners in the said Petition are not adjudicated 42 of 43 ::: Downloaded on - 07/05/2015 18:31:36 ::: 43 wp-2499.13.os upon by this Court and the said issues can be always raised by the petitioners in appropriate proceedings. It will be also open to the petitioners to pray for the same reliefs, if an occasion for doing that arises.
54. In view of what we have held above, Writ Petition No.2499 of 2013 must fail. Accordingly, we pass the following order : -
ORDER
(i) Writ Petition No.2499 of 2013 is hereby rejected. Rule is discharged with no order as to costs;
(ii) Subject to the observations made in companion petition, Writ Petition No.926 of 2013 stands disposed of.
(iii) It is obvious that as a result of this judgment and order, the consequences provided in the order of the Apex Court dated 13th January, 2014, in Special Leave Petition No.25833 of 2013 follow within a period of one month from the date on which this judgment and order is uploaded;
(iv) The parties concerned to act on the authenticated copy of this order.
(A.K. MENON, J ) (A.S.OKA, J )
43 of 43
::: Downloaded on - 07/05/2015 18:31:36 :::