Bombay High Court
Pandurang Narayan Sawant And 14 Ors vs The State Of Maharashtra And 5 Ors on 23 October, 2018
Author: A.K. Menon
Bench: A.K. Menon
hcs
wp1981.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1981 OF 2018
Pandurang Narayan Sawant & Ors. .. Petitioners.
Vs.
The State of Maharashtra & Ors. .. Respondents.
Mr.Vaibhav Sugdare with Ishwar Ahuja i/b C.K. Tripathi for the Petitioners.
Mr. R.J. Mane AGP for Respondent Nos.1, 2 and 4.
Mr.S.G. Surana with Mr.Madhur Surana for the Respondent No.5.
Mr.Ashish Kamat i/b Mr.Parag Shah for the Respondent No.6.
CORAM : A.K. MENON, J.
DATED : 23RD OCTOBER, 2018.
P.C. :
1. By this petition, the petitioners, who are 15 in number and who are the occupants of structures bearing CTS No.237, Village Kanjur situate at Sahyadri Nagar, Quarry Road, Bhandup (W), Mumbai, have challenged the order passed by the Grievance Redressal Committee dismissing the appeal under Section 35(1A) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("the Act").
2. The petitioners had filed an appeal No.636 of 2018 challenging the orders dated 22nd March, 2018 passed by the Additional Collector, (Encroachment & Removal) and Competent Authority - Respondent No.1 1/9 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:21:13 ::: wp1981.18.odt and order dated 1st January, 2018 and notice dated 13th October, 2017 issued by the Deputy Collector, (Encroachment & Removal) & Competent Authority - Respondent No.2 under Sections 33, 33A and 38 of the Act. They also sought protection against coercive action of eviction of the petitioners pending the appeal. The Grievance Redressal Committee declined to grant relief and dismissed the appeal.
3. Mr.Sugdare, learned counsel appearing on behalf of the petitioners submitted that the petitioners are land owners and own the land on which structures of the petitioners are situate and occupied by them and therefore, they could not be evicted. This submission was made when the matter was heard on 9th October, 2019 on which date the petitioners sought extension of time to carry out certain amendments. Time was granted and the amendments were carried out. The petitioners were also directed to produce the original conveyance deed(s) under which they claim as owners. Today, none of these documents are forthcoming. Mr.Sugdare fairly stated that the suits on title have been filed in the City Civil Court and some documents have been filed in the City Civil Court, however, these agreements were not registered deeds of conveyance. In the circumstances, presently I am unable to accept the contention that the petitioners are owners of the land beneath the structures.
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4. Mr.Sugdare then submitted that notice under Section 33A was defective inasmuch Section 33A sets out procedure for allotment of tenement to slum dwellers who were not willing to join the scheme. In the instant case, he submitted that the petitioners who are slum dwellers in occupation of structures forming part of the scheme were eligible for permanent alternate accommodation but they did not join the Scheme willingly and in respect of such persons. Section 33A requires the Chief Executive Officer, Slum Rehabilitation Authority or any designated officer by him to direct eviction but prior to that, the petitioners were entitled to written communication that, after such action they were not eligible for transit tenement or for the reconstructed tenement by drawing lots, but shall be entitled only to what is available after others have chosen their tenements and further if they do not join the scheme by the time the building permission was given to the first building, they would lose the right to any built-up tenement. Furthermore, they would be entitled to only pitch of about 3 mtrs. x 3.5 mtrs., elsewhere, if and when available, and construction thereon will have to be carried out by slum dweller on their own.
5. Mr.Sugdare submitted that no such notices as contemplated under Section 33A, (e) and (f) have been issued to the petitioners and therefore, the impugned action of seeking eviction is without following due process of law. He invited my attention to Exhibit-G6 (Page 126-SSS) being a letter 3/9 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:21:13 ::: wp1981.18.odt dated 7th August, 2017 whereby the SRA had called upon the Deputy Collector - Respondent No.1 to issue notice taking action under Section 33A. However, thereafter the office of the Additional Collector (Encroachment/Eviction) had vide letter dated 9th October, 2017 called upon the Deputy Collector to follow the provisions of Section 33A (a) and (f) and in particular clauses (e) and (f). Mr.Sugdare submitted that these provisions have not been complied with and therefore the impugned order is liable to be quashed and set aside. These were grounds taken by way of amendment and were not part of the grounds urged before the Grievance Redressal Committee.
6. Mr.Surana, learned counsel appearing on behalf of the respondent no.5, opposed the petition on the ground that the contentions taken up by the petitioners are only by way of afterthought and out of 15 petitioners, petitioner nos.2, 3, 4, 5, 8, 9, 11, 14 and 15 have executed tripartite agreements with respondent nos.5 and 6. Petitioner nos.2, 3, 4, 5 and 6 have also accepted rent and compensation for transit accommodation. Mr.Surana submitted that respondent no.6 has purchased the property upon which scheme was being implemented by a registered deed of conveyance dated 1st October, 2010. The property was purchased from the original owners and the SRA has approved the slum scheme and issued the Letter of Intent on 16th January, 2014 approving building plan of rehab building and issued 4/9 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:21:13 ::: wp1981.18.odt intimation of approval on 18th December, 2014. He submitted that out of 269 occupied structures, 218 structures have already been demolished, 32 structures were not required to be demolished and 19 structures were now facing demolition of which 15 structures were being occupied by the petitioners.. He submitted that the challenge is without any merit.
7. Mr.Surana further submitted that in Writ Petition No.723 of 2016, the Society of which 15 petitioners are members had sought to challenge the order passed by the Deputy Collector (Encroachment and Removal) and Competent Authority and the order passed in appeal. The Court observed that the Appellate Authority in that case had found 70 persons non-co-operative of whom 60 persons were eligible and 10 persons ineligible. Holding that it was their duty to remove themselves, the Court directed respondents to cause removal of 60 non-co-operative occupants and file a compliance report. He submitted that this order was subject matter of challenge before the Supreme Court which disposed of the petition after providing for payments to be made to those eligible persons of the amount of rent payable. On account of certain delay in payment of rent, further application came to be made and the Supreme Court increased the amount payable by a sum of Rs.1,00,000/-. In effect, Mr.Surana submitted that these persons were similarly placed and were entitled to alternate accommodation and most of them have vacated the premises and as on date of hearing only five persons were in occupation. 5/9 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:21:14 :::
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8. Mr.Sugdare, learned counsel had relied upon the judgment of the Supreme Court in Abhijit Pawar vs. Hemant Madhukar Nimbalkar and Anr. 1 he submitted that the Supreme Court held that a pure question of law can be raised at any stage of proceedings and that non compliance with Section 33A (e) and (f) was one such objection that can be raised even at that stage. He also relied upon the judgment of Dipak Babaria and Anr. vs. State of Gujarat and Others2 which in paragraph 61 observed that if the statute provides for a thing to be done in particular manner, then it has to be done in that manner and in no other manner. This proposition was laid down in Taylor vs. Taylor (1875) LR 1 Ch D 426. He submitted that in view of express provisions of Section 33A, the authority concerned were bound to follow.
9. Mr.Surana, learned counsel meanwhile relied upon the order dated 18th September, 2018 passed in Writ Petition No.2569 of 2018 and companion Writ Petition (L) No.2467 of 2018 in which case similarly placed persons had challenged the orders of eviction passed by the Grievance Redressal Committee in respect of structures in their occupation. That these writ petitions came to be dismissed since in similar circumstances wherein the petitioners have already been entered into tripartite agreement and 1 (2017) 3 SCC 528 2 (2014) 3 SCC 502 6/9 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:21:14 ::: wp1981.18.odt collected the amount of Rs.1,32,000/- each, the Developer in that case was directed to file an undertaking in this Court to continue to pay rent till such time as permanent alternate accommodation is provided and undertake to put the petitioners in possession of such premises upon occupation certificate being issued. The two other petitions have been filed by some of the petitioners in the said Writ Petition No.2569 of 2018 being Writ Petition (L) No.3217 of 2018 and Writ Petition (L) No.3221 of 2018 in which the very same petitioners urged different grounds inter alia as to alleged non compliance of section 33A. Those petitions were also rejected while observing that the provisions of Section 33A have been duly complied with.
10. I have heard learned counsel for the parties and perused the documents with their assistance. Mr.Surana has filed compilation of documents in which he has annexed the Index-II in respect of Registered Deed of Conveyance between original owners and respondent nos.5 and certain irrevocable consents given by the petitioners and others. All 15 petitioners figure in list of 240 persons, all of whom had signed the consent. In addition, he submitted that petitioner nos.2, 3, 4, 5, 6, 8, 9, 10, 11, 14 and 15 had already signed tripartite agreements with the respondent nos.5 and 6 in respect of permanent alternate accommodation and have been paid a sum of Rs.1,32,000/- each. He relied upon copies of these agreements which are part of compilation from Item Nos.3 to 13. Item No.14 is bank statement 7/9 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:21:14 ::: wp1981.18.odt which records payments made to some of these petitioners as also photocopies of the cheques made out to these petitioners. Thus, it is seen that the contention taken up in these petitions are but an attempt to delay implementation of the scheme.
11. In the present case the suits on title are pending but no registered document has been produced by the petitioners in support of their claim to ownership. I refrain from making any further observations on this aspect, however, it would be appropriate to mention the fact that several petitioners have already executed agreements and have accepted monies clearly indicates that the contention apropos non-compliance with Section 33A (e) and (f) have no substance, firstly, because they have already executed the agreements and acted upon them by accepting money and secondly, since the contention as to non compliance with Section 23A has now been taken up for the first time in the writ petition. It is evident from the order dated 1st January, 2018 Exhibit-J paragraph 4 that the petitioners were informed under Section 33A (e) that they would not be eligible for transit camp or tenement by drawing lots and paragraph 5 of the order it is stated that out of 20 petitioners which included 15 petitioners herein were also informed that if they do not accept the premises offered till permission is obtained for the first building of the scheme they would lose their right to get any accommodation. Thus, the order itself records compliance with Section 33A 8/9 ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:21:14 ::: wp1981.18.odt and these orders were duly served upon the petitioners through their Advocates. In my view, there is no substance in the challenge. Needless to mention the Respondent shall ensure that the eligible Petitioners are provided permanent alternate accommodation under the scheme and rent for permanent alternate accommodation in the meanwhile. For the aforesaid reasons, this is not case which calls for interference under the writ jurisdiction of this Court. Hence I pass the following order :
(a) Petition is dismissed. Dismissal of the Writ Petition shall not prejudice the rights of the petitioners' entitlement in the scheme.
(b) No order as to costs.
(c) At this stage Mr.Sugdare seeks continuation of the ad-interim reilef granted on 13th July, 2018. Considering the reasons recorded in the order and that the petitioners are only 15 in number as against total of 269 members in the scheme and majority are now being affected by virtue of this ad-interim order, there is no justification in continuing the same. Request is declined.
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