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2008 DIGILAW 160 (BOM)

Bilal Ismail Bhayat v. M. M. R. D. A.

2008-02-01

D.Y.CHANDRACHUD

body2008
JUDGMENT : 1. The Plaintiffs seek an injunction restraining the Mumbai Metropolitan Region Development Authority and its Executive Engineer who are arrayed as Defendants from demolishing four shops belonging to the Plaintiffs in implementation of an order passed on 23rd November, 2007 by the Executive Engineer. 2. The subject matter of the suit is four shops described as Shop Nos.2, 3, 4 and 5 situated opposite Lalit Bhavan in an area known as Anthony Compound, C.D. Barfiwala Road, Mumbai 400058. The area of these shops admeasures, according to the Plaintiffs about 1700 sq. ft. The Executive Engineer issued three notices dated 31st October, 2005 under Section 3 (Z-2) of the Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 calling upon the Plaintiffs to produce evidence showing that Shop Nos.3, 4 and 5 were constructed prior to 1st January, 1995. The Plaintiffs submitted a reply claiming inter alia tenancy of the said shops since 1996. A writ petition was filed by the Plaintiffs. The Petition was disposed of on 18th September, 2006 by a Division Bench with the observation that the First Defendant herein was still to act on the representation submitted by the Plaintiffs and the Petition was premature. On 7th September, 2007 an order was passed by the Second Defendant holding that the Plaintiffs were eligible for rehabilitation in the form of one shop at Oshiwara. The other two shops were held to be non-eligible and an order of demolition was passed. A suit was instituted by the Plaintiffs in order to challenge the order dated 7th September, 2007. By an order dated 11th October, 2007 a Learned Single Judge issued ad interim directions holding that the property had not been declared as a slum area. Consequently, this Court was of the view that the Defendants were ill advised to invoke the powers under Section 3 (Z-2) of the Slum Act, 1971. An order of status quo was consequently passed until the hearing of the Motion. However, it was made clear that this shall not preclude the Defendants from taking action in respect of the suit structure in accordance with some other provision of law, if they were empowered so to do and that question will have to be considered independently on merits. Two notices dated 12th October, 2006 and one notice dated 2nd November, 2007 have been issued under Section 351 of the Mumbai Municipal Corporation Act, 1888. Two notices dated 12th October, 2006 and one notice dated 2nd November, 2007 have been issued under Section 351 of the Mumbai Municipal Corporation Act, 1888. Replies were submitted by the Plaintiffs' advocate. On 23rd November, 2007 an order has been passed by the Second Defendant holding that one of the shops is eligible for alternate commercial accommodation which is offered at a rehabilitation site at Oshiwara, Goregaon. Insofar as the other three shops are concerned, there is a finding to the effect that the Plaintiffs have failed to submit documents in support of their claim. The Plaintiffs were informed that the shops would be liable to be demolished upon the expiry of 15 days of the receipt of the order. 3. In support of the Notice of Motion, it has been urged on behalf of the Plaintiffs that the Second Defendant has no power to issue a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888. The contention is that the Second Defendant can issue a notice only when the First Defendant requires land for an infrastructure project such as the construction or widening of a road. The submission is that even in such a case the Defendants cannot invoke powers under Section 351. Moreover, it has been submitted that in the notices that were issued to the Plaintiffs, it was not stated that the land was required for the purpose of road widening or road construction. The land under which the shops are situated is stated to be of private ownership. An affidavit in reply has been filed on behalf of the Defendants in which it has been submitted that the Mumbai Metropolitan Region Development Authority has in consultation with the Municipal Commissioner of the Municipal Corporation of Greater Mumbai undertaken the improvement of the existing road, the construction of a missing link and the construction of an underpass at Saiwadi Junction for a corridor from the junction of the Western Express Highway and from Tipu Sultan Chowk to Sant Namdeo Chowk. This work, it has been stated also includes the work of N.S. Phadake Marg from Gokhale Bridge to the Western Express Highway. For the aforesaid project, it is contended that the Metropolitan Commissioner of the First Defendant is deemed to be the Municipal Commissioner under the Mumbai Municipal Corporation Act, 1888 and is authorized to exercise all the powers of the Municipal Commissioner. For the aforesaid project, it is contended that the Metropolitan Commissioner of the First Defendant is deemed to be the Municipal Commissioner under the Mumbai Municipal Corporation Act, 1888 and is authorized to exercise all the powers of the Municipal Commissioner. Moreover, it has been submitted that under Section 4(a) of the MMRDA Act, 1974, the Metropolitan Commissioner can delegate his powers and in fact he has delegated his powers particularly under Section 351, 298 and 488 of the Mumbai Municipal Corporation Act, 1888 to the Second Defendant by an Office Order dated 10th January, 2005. It has been submitted that the authority of the First Defendant has been duly considered and upheld in a judgment of this Court in Appeal from Order 688 of 2006. It has been submitted that the structures of the Plaintiffs are obstructing construction of the missing link noted earlier and all structures adjacent to the suit structure have been demolished. As a result, it has been submitted that the Plaintiffs' structures are the only ones remaining in the stretch of the proposed road and it is in the public interest that the structures be demolished. The contention of the Defendants is that even assuming that the lands on which the structures of the Plaintiffs stand are private lands, these structures are unauthorized and are required to be demolished in the public interest. If the land is in fact found to be a private land, due compensation would be paid to the legitimate owner of the land and it has hence been urged that the issue as to the acquisition of land is a separate and independent matter from the demolition of unauthorized structures in the occupation of the Plaintiffs. Finally, it has been submitted that the policy of the MMRDA is to offer rehabilitation to persons who are affected by road projects even though their structures may be unauthorized. However, irrespective of the area occupied by the unauthorized structures a new commercial structure to the extent of 225 sq. ft is allotted by way of rehabilitation to the affected persons. An affected person, it has been submitted, consists of one household. According to the Defendants, the Plaintiffs produced one shop Act licence in which all the shop numbers are mentioned and all the shops are being used for one business carried on in the name and style of Sharp Graphics. An affected person, it has been submitted, consists of one household. According to the Defendants, the Plaintiffs produced one shop Act licence in which all the shop numbers are mentioned and all the shops are being used for one business carried on in the name and style of Sharp Graphics. Hence, it has been submitted that the Plaintiffs would be entitled to one rehabilitation unit of 225 sq. ft. The eligibility for rehabilitation, it has been submitted, is determined by the Deputy Collector (Encroachments) Andheri and rehabilitation is offered after receipt of the decision of eligibility, duly certified in Annexure – II. The Plaintiffs, as per the list at Annexure II, have been held to be entitled to one rehabilitation unit which has been offered. 4. The Mumbai Metropolitan Region Development Authority Act, 1974 was enacted in order to form the area of Brihan Mumbai and certain areas around into a Mumbai Metropolitan Region and to provide for the establishment of an authority for the purpose of planning, co-ordinating and supervising the proper, orderly and rapid development of areas in the region and for executing plans, projects and schemes for such development. Section 3 provides for the establishment of the Mumbai Metropolitan Region Development Authority; Section 4 for the composition of the authority and Section 4-A enunciates the powers and duties of the Chairman. Sub section (1) of Section 4-A provides that the chairman of the authority shall supervise and control all the activities on behalf of the authority and shall exercise such powers and perform such duties as are conferred upon him by the Act and by the Regulations as may be framed. Clause (a) of Sub Section (2) next provides that the Metropolitan Commissioner is to be the Chief Executive Officer. The Metropolitan Commissioner is empowered by a general or special order to direct that such of the powers, functions or duties as are delegated to him as aforesaid or under Section 7 shall be exercised or performed by such of the officers of the authority as may be specified in the order. The Metropolitan Commissioner is vested with the power to supervise and control all the officers and servants of the authority. Section 12 lays down the functions of the Metropolitan Authority which consists of securing the development of the Mumbai Metropolitan Region according to the regional plan. The Metropolitan Commissioner is vested with the power to supervise and control all the officers and servants of the authority. Section 12 lays down the functions of the Metropolitan Authority which consists of securing the development of the Mumbai Metropolitan Region according to the regional plan. For that purpose the authority has been vested with various functions including the power to review a project or scheme for development which may be proposed, executed or completed in the region; to formulate and sanction schemes for development; to execute projects and schemes; co-ordinate the execution of projects and schemes and prepare and implement schemes for providing alternative accommodation and for the rehabilitation of the persons displaced by projects and schemes of the authority. Under Section 14 the Metropolitan Authority is empowered to issue directions to any legal or other authority or person notwithstanding anything contained in any other law for the time being in force. Section 17 of the Act empowers the authority to provide amenities within Brihan Mumbai. Sub sections (1) and (2) of Section 17 are material for the purposes of the present case and provide as follows : “”17. Power of Authority to provide amenity within Brihan Mumbai – Notwithstanding anything contained in this Act or the Mumbai Municipal Corporation Act or any other law for the time being in force, the Authority may, in consultation with the Municipal Commissioner of the Brihan Mumbai Municipal Corporation, prepare any project or scheme with a view to provide an infrastructure within the territorial limits of the Brihan Mumbai Municipal Corporation and execute the same. Explanation :- For the purposes of this section, the term “infrastructure” shall also mean and include streets, roads, bridges and any other means of transport and communication, and activities related or incidental for the execution of such infrastructure project or scheme and shall not include other items specified in sections 61 and 63 of the Mumbai Municipal Corporation Act, 1888 (Bom. III of 1888). III of 1888). (2) For the purposes of preparation and execution of a project or scheme under sub- section (1), the Metropolitan Commissioner and the Authority shall be deemed to be the Municipal Commissioner and the Corporation, respectively, under the Mumbai Municipal Corporation Act, 1888 (III of 1888) and the Maharashtra Regional and Town Planning Act, 1966, and shall, respectively, exercise the powers of the Municipal Commissioner and the Corporation under the said Acts.” Section 17 of the Act is prefaced by a non-obstante clause which gives overriding effect to the provision not merely over other provisions of the Act, but over the Mumbai Municipal Corporation Act and any other law for the time being in force. The Authority is empowered to prepare a project or scheme involving the provision of infrastructure within the territorial limits of the Brihan Mumbai Municipal Corporation and ensure the execution of such a scheme. The expression “infrastructure” is defined in the widest possible terms to mean and include streets, roads, bridges and any other means of transport and communication and activities related or incidental to the execution of an infrastructure project. This, however, is not to include other items specified in Sections 61 and 63 of the Mumbai Municipal Corporation Act, 1888. The effect of sub section (2) of Section 17 is to bring about a deeming fiction. The fiction created by the legislation is that the Metropolitan Commissioner and the Authority are deemed to be the Municipal Commissioner and the Municipal Corporation respectively under the Mumbai Municipal Corporation Act, 1888 and the Regional and Town Planning Act of 1966, for the purpose of preparing and executing a project or scheme. The State legislature was conscious of the need to provide an adequate infrastructure for the city of Mumbai nearly three decades ago when the Act was enacted. That legislative need was translated into a statutory enactment. The object of the legislation is sought to be fulfilled by conferring wide powers for preparing, executing and implementing schemes for infrastructure. The legislature is conscious of the needs of the times and legislature was conscious of the fact that within the Mumbai Metropolitan Region, there was a multitude of planning agencies each vested with a separate area of jurisdiction. The execution of infrastructural projects was liable to be retarded if numerous agencies each with a separate area of jurisdiction were to exercise control and supervision. The execution of infrastructural projects was liable to be retarded if numerous agencies each with a separate area of jurisdiction were to exercise control and supervision. The object of Section 17, therefore, is to ensure that all powers should be focused within the umbrella of a single authority, the MMRDA, so as to facilitate the efficient execution of an infrastructural project. The basis on which the legislation was enacted in 1974 has even a stronger foundation today where the Metropolitan area is subject to the gravest possible stress of urbanization. The interpretation which the Court must place on the provisions of Section 17 must therefore be purposive in its nature and character. The purpose which the legislature intended to achieve ought not to be retarded but must be furthered by the process of judicial interpretation. The natural and logical interpretation of the provisions of Section 17 is that when the authority prepares a project or scheme with a view to provide infrastructure within the territorial limits of the Municipal Corporation, both the Metropolitan Commissioner and the authority are deemed to be respectively the Municipal Commissioner and the Corporation and are vested with all the powers under the Corporation Act of 1888 and the Regional and Town Planning Act of 1966 save and except for those that are specifically carved out. 5. The MMRDA has formulated a policy under which persons who are displaced in the course of the implementation of infrastructural projects are rehabilitated through the provision of alternate accommodation. Such alternate accommodation and measures of rehabilitation are provided even to persons whose occupation or structures are unauthorized. The provision of alternate accommodation to unauthorized occupants is a matter of social policy. In a matter involving a balance between private rights and public interest, the interpretation of the Court must weigh in favour of ensuring that the implementation of public projects conceived in the interest of developing the infrastructure of the Metropolitan area is not thwarted. Orders of injunction in such cases are liable to seriously disrupt the completion of public projects and lead to interminable delays that affect the interest of ordinary citizens for whose benefit infrastructural projects are intended. That is not to postulate that an illegality on the part of the authority must be condoned. Orders of injunction in such cases are liable to seriously disrupt the completion of public projects and lead to interminable delays that affect the interest of ordinary citizens for whose benefit infrastructural projects are intended. That is not to postulate that an illegality on the part of the authority must be condoned. The underlying emphasis, however, must be to ensure that technical defences are not put forth to defeat the schemes for the development of infrastructure which are conceived in the public interest. The balance between private and public interest is justly drawn by the legislature and the implementation of the regulatory norms must be entrusted to its delegate. The view which I have taken accords with a similar view which was taken by Mr. Justice D. B. Bhosale in a judgment rendered on 23rd November, 2006 in Appeal from Order 688 of 2006. 6. It has been urged on behalf of the Plaintiffs that the Metropolitan Commissioner of the First Defendant would have to take recourse to the powers conferred by Sections 298 and 299 of the Mumbai Municipal Corporation Act, 1888 and that recourse to the provisions of Section 351 is without jurisdiction. The submission cannot be accepted for the reason that the underlying assumption in the argument is that an unauthorized construction is a matter of no significance to the development of infrastructure. Clearly the position is to the contrary. The MMRDA as the statutory authority which is vested with the powers of the Municipal Commissioner under the Mumbai Municipal Corporation Act, 1888, when a project of infrastructure is being developed is equally concerned with unauthorized construction. A proliferation of unauthorized constructions is liable to obstruct seriously the implementation and execution of an infrastructural project. The acquisition of land, where a part of the land on which infrastructural amenities are to be developed, is a matter entirely distinct from regulatory provisions which are intended to ensure that unauthorized constructions are dealt with in accordance with law. Section 17 of the MMRDA Act, 1974 does not fetter the powers which are conferred upon the Metropolitan Commissioner and those that are available to him by the deeming fiction provided in Sub section (2) of the provision. Section 17 of the MMRDA Act, 1974 does not fetter the powers which are conferred upon the Metropolitan Commissioner and those that are available to him by the deeming fiction provided in Sub section (2) of the provision. When the Metropolitan Commissioner of the First Defendant is vested with the exercise of powers of the Municipal Commissioner and when the authority is conferred with the jurisdiction to exercise the powers conferred upon the Municipal Corporation, all powers of the Commissioner and of the Corporation can be exercised. The powers are laid down by the legislature. Judicial interpretation cannot cut down the width and ambit of the statutory provisions contained in Section 17 of the Act. That would be impermissible. 7. For all these reasons, I am of the view that the challenge to the jurisdiction of the First Defendant to initiate action under Section 351 of the Mumbai Municipal Corporation Act, 1888 is without any basis or foundation. The Defendants were entitled to exercise such powers by virtue of the provisions of Section 17 of the MMRDA Act, 1974. 8. The Plaintiffs are, however, aggrieved by the decision of the First Defendant to provide only one shop or commercial premises in lieu of the existing accommodation. The contention of the Plaintiffs is that they are entitled to a separate accommodation in respect of each of the commercial premises in their occupation. This is a matter which, in my view, ought to be left to the determination of the competent authority. It would be open to the Plaintiffs to produce such documentary material as is in their possession and custody before the competent authority of the First Defendant and a decision shall be taken thereon expeditiously in accordance with law. Should the First Defendant require any factual determination to be made by any other authority of the State, it would be open to the First Defendant to take the assistance of such other authority. There should, however, in my view, be no stay in the meantime which would have the effect of retarding the implementation of the project which is being carried out by the First Defendant. There should, however, in my view, be no stay in the meantime which would have the effect of retarding the implementation of the project which is being carried out by the First Defendant. The First Defendant has already stated that the Plaintiffs have been held to be eligible to the allotment of premises consisting of one shop and it would be open to the Plaintiffs in the meantime to take possession thereof after complying with all the requirements under the law. Subject to the aforesaid clarification, I am of the view that the Plaintiffs are not entitled to any further relief. The Notice of Motion shall accordingly stand disposed of. Ordered accordingly.