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2019 DIGILAW 498 (GUJ)

Bhaidas Shyamrao Devare v. State of Gujarat

2019-04-30

A.Y.KOGJE

body2019
JUDGMENT : 1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state. Learned Advocate, Mr. Kaushal Pandya waives service of rule on behalf of the respondent No.2. 2. These petitions are filed under Article-226 of the Constitution of India in connection with the redevelopment scheme of the respondent – Authorities for the purpose of constructing dwelling units situated in the slum area, which are occupied by the petitioners. 3. As the subject matter of both the petitions are identical, at request of learned Advocate for the petitioners, petitions are taken up for joint hearing. 4. Necessary facts are recorded from the lead matter, i.e. Special Civil Application No.5082 of 2019. 5. 3. As the subject matter of both the petitions are identical, at request of learned Advocate for the petitioners, petitions are taken up for joint hearing. 4. Necessary facts are recorded from the lead matter, i.e. Special Civil Application No.5082 of 2019. 5. Five petitioners, who claim to be residing and occupying the “Pakka” constructed tenements situated at Panchshil Nagar of TP Scheme No. 7 (Anjana), have filed these petitions as prayed interalia as under: (B) Be pleased to issue appropriate writ, order or direction and be pleased to quash and aside the illegal, illogical, discriminatory, discriminatory and arbitrary action of the respondent authorities of taking decision to undertake the redevelopment work in respect of the dwelling units of the petitioners situated at Umiya Nagar (Panchshil Nagar), Umiya Mata Temple, Bhatena Road, Surat situated at TP Scheme No.7 (Anjana) being Final Plot No. 184 and the said action may be declared as violative of Article 14 and 21 of the Constitution of India and violative of various clauses and provisions of the Notification dated 18/07/2013, and therefore the said notification dated 29/11/2018 published in the Sandesh Daily News Paper dated 30/11/2018 may kindly be quashed and set aside, in the interest of justice; (C) Be pleased to issue appropriate writ, order or direction and be pleased to quash and aside the illegal, illogical, discriminatory, discriminatory and arbitrary action of the respondent authorities of declaration of the dwelling units of the petitioners situated at Umiya Nagar (Panchshil Nagar), Umiya Mata Temple, Bhatena Road, Surat situated at TP Scheme No.7 (Anjana) being Final Plot No. 184 wherein the petitioners are residing with their families as slum clearance areas vide notification / resolution dated 29/11/2018 published in the Daily News Paper 'Sandesh' dated 30/11/2018 and that too the said decision has been taken without hearing the petitioners, without issuance of notice and therefore the same may kindly be quash and set aside and the respondents may kindly be restrained from demolishing / removing the tenements of the petitioners situated in the aforesaid area, as per the details mentioned at Annexure-A, and be pleased to further hold that as the decision of the respondent authority to implement the aforesaid notification is without issuance of notices, without hearing the petitioners/ affected parties and as the same is in breach of principles of natural justice and the same has been done in breach of the Gujarat Slum Rehabilitation Policy, 2013, the said decision / action of the respondents may kindly be declared as illegal, illogical, arbitrary, discriminatory and violative of Article 14 and 21 of the Constitution of India, and the same may kindly be quashed and set aside, in the interest of justice; (D) Be pleased to issue appropriate writ, order or direction and be pleased to hold that as the tenements of the petitioners-dwelling units of the petitioners situated at Umiya Nagar (Panchshil Nagar), Umiya Mata Temple, Bhatena Road, Surat situated at TP Scheme No.7 (Anjana) being Final Plot No. 184 are not slums and the tenements of the petitioners are not dangerous for occupation of the petitioners and their families and therefore be pleased to hold that the respondents, their officers, agents, servants and employees have no right or authority to demolish / remove the same for implementing notification / resolution dated 29/11/2018 published in the Daily News Paper 'Sandesh' dated 30/11/2018 and be pleased to hold that as the tenements of the petitioners are not situated in dirty areas and they are not the slums, and therefore, be pleased to hold that it would not be open for the respondent authorities to undertake any procedure for declaration of the same as slum areas as per the notification dated 18.07.2013 as well as per Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973; ALTERNATIVELY; (C) Be pleased to issue appropriate writ, order or direction and be pleased to restrain the respondents from carrying out any demolition drive or any further procedure on the basis of the Notification dated 29/11/2018 published in the Sandesh Daily News Paper dated 30/11/2018 and be pleased to restrain the respondents from carrying out any demolition drive and / or any action and therefore appropriate writ, order or direction may kindly be issued in this regard; (D) By way of interim order, be pleased to restrain the respondents, their officers, employees, servants, agents, from undertaking further procedure of removal / demolition of the dwelling units / tenements of the petitioners situated at Umiya Nagar (Panchshil Nagar), Umiya Mata Temple, Bhatena Road, Surat situated at TP Scheme No.7 (Anjana) being Final Plot No. 184 as per the details of the tenements mentioned at Annexure-A in view of the Notification dated 29/11/2018 published in the Sandesh Daily News Paper dated 30/11/2018 and be pleased to restrain the respondents from taking demolition drive and be pleased to restrain the respondents from demolition / removal of the dwelling unit of the petitioners, pending admission and final disposal of this petition; 6. The petitions are filed to challenge to legality and validity of the decision of the respondent – Authorities to implement the Public-Private Partnership (PPP) Scheme in respect of tenements situated at Umiya Nagar (Panchshil Nagar), Umiya Mata Temple, Bhatena Road, Surat situated at TP Scheme No.7 (Anjana). 7. Learned Advocate for the petitioners submitted that the main contention of the petitioners is that there are no circumstances existing which would require the area to fall in the category for which the re-development under the PPP would be necessary. 8. It is submitted that on the basis of the property tax bills of the petitioners that the petitioners are occupying the tenements which cannot be treated as dangerous for occupation. If so, the petitioners are ready and willing to carry out repair work, but the petitioners may not be evicted of the entire area. So as to put up the new construction under the scheme and thereafter, provided accommodation in the newly constructed area. The petitioners also indicated that practical problem may be faced by the petitioners in future for residing in the multi-storied building with the Authority proposes to erect under the PPP scheme. 9. Learned Advocate for the respondent in its reply stated that the hutment dwellers were occupying the lands were shifted by the Corporation while implementing the town planning Scheme either on road or where they are situated at Khadi and where there is a flood and were required removal and for rehabilitating them these all lands were used by the Corporation. Therefore, the Corporation was required to remove those hutment dwellers. On an humanitarian ground the competent authority had decided to allot the plot of land to such hutment dwellers in the land bearing Final Plot No. 184 of Town Planning Scheme No. 7 (Anjana). According to the record of the Corporation on 20.05.2016 total 1400 huts (7000 population) were situated on the said Final Plot No. 184 of T. P. Scheme No. 7 (Anjana). Hutment dwellers have not fully paid the amount as determined by the competent authority of the Surat Municipal Corporation for the alloted plot. Therefore, no Sanad has been issued to any of the occupiers. As on date there are about 1400 hutment dwellers having Kachcha / pakka building which is very congested which can be seen from the Photographs. Hutment dwellers have not fully paid the amount as determined by the competent authority of the Surat Municipal Corporation for the alloted plot. Therefore, no Sanad has been issued to any of the occupiers. As on date there are about 1400 hutment dwellers having Kachcha / pakka building which is very congested which can be seen from the Photographs. In view of all these aspects the Corporation has, therefore, decided to implement the “Mukhya Mantri Gruh Yojana”, now included in Pradhan Mantri Awas Yojana in respect of the land in question along with others. 10. Respondents No. 2 and 3 have convened joint meeting with the leaders of th slums, elected leaders and the officers of the respondent NO. 2 and 3 under the Chairmanship of the Deputy Municipal Commissioner (P &D) during 21.7.2014 to 25.7.2014 to notify the slum area under the Gujarat Rural Urban Housing Scheme through 'PPP' Project to rehabilitate the slum areas which were selected and notified as notified slums. The meeting with the leaders of the area of Anvarnagar, Ambedkarnagar, Vivekanandnagar and Umiyanagar (Panchshilnagar), Slum Hutment Dwellers who are situated on Final Plot Nos. 117 of T.P. Scheme No.7 (Anjana), Final Plot No. 118 of T.P. Scheme No.7 (Anjana), Final Plot No. 181 of T.P. Scheme No.7 (Anjana) and Final Plot No. 184 of T.P. Scheme No.7 (Anjana) were called on 23.7.2014 and 24.7.2014 which were attended by the leaders of the Slums, Municipal Counselors of the area and officers of the respondents No. 2 and 3 whereby the leaders of the slums have put-forward the objections, suggestions and demand before the Committee headed by the Municipal Commissioner. In the said meeting dated 24.7.2014, the hutment dwellers of Umiyanagar (Panchshilnagar) were present and even concerns raised by the said hutment dwellers were considered and addressed by the respondent corporation. From the perusal of the said photographs and the minutes of the meeting dated 24.07.2014, it is crystal clear that the ample opportunity of hearing was given to the hutment dwellers of Umiyanagar (Panchshilnagar) and even due compliance of principle of natural justice was followed by the respondent corporation as prescribed under the Act, 1973. 11. The Court has perused the submissions and perused the records. It appears that the Notification has been issued under Section-11, which is evident from the Annexure-E to the petition. 11. The Court has perused the submissions and perused the records. It appears that the Notification has been issued under Section-11, which is evident from the Annexure-E to the petition. In the Public Notice issued, it is recorded that pursuant to the Public Advertisement dated 06-08-2014 and Advertisement dated 20-05-2016, the majority of the hutment dwellers have accepted proposal for redevelopment of the land after duly satisfied with the report prepared by the Committee so constituted. The area in question is at Item No.5. The redevelopment under the same scheme was also subject matter of challenge in the PIL being Writ Petition (PIL) No.129 of 2017, wherein the Division Bench of this Court has held as under. The contention raised in the present petitions were identical to the contention raised in the PIL. The Division Bench has dealt with such contention and held in Para-9, 10 and 11 as under: “9. The contention of the learned advocate appearing for the petitioner is that the building in the areas in question which are used for the human habitation is not found to be unfit and for determining whether the building is unfit for human habitation, no survey is conducted and the respondent Corporation has not followed the criteria prescribed under Section 3(1) (b)(i) and Section 3(2) of the Act of 1973. However, from the submissions canvassed by the learned counsel appearing for the respondent Corporation and from the affidavit-in-reply filed by it, it is revealed that the respondent Corporation has taken the decision to redevelop the areas in question and declared as slum areas in the impugned notification, not because of the building situated in the said areas are unfit for human habitation but the said areas are declared as slum areas because of the in sanitary conditions of the said areas. Such areas are overcrowded and, therefore, the submission of the learned advocate for the petitioner is misconceived and the same cannot be accepted. 10. It is the specific case of the respondent Corporation that Gujarat Slum Rehabilitation Policy – PPP 2013 aims to provide constructed houses with area admeasuring 30 sq. meters as per the Notification dated 19.07.2017 with all basic civic amenities to the beneficiaries and confer ownership rights of the house to the beneficiaries free of cost after a period of 15 years. meters as per the Notification dated 19.07.2017 with all basic civic amenities to the beneficiaries and confer ownership rights of the house to the beneficiaries free of cost after a period of 15 years. The idea behind the policy is to provide better living facilities to the underprivileged people and also to improve socio economic and environmental situation of the cities. The said scheme further provides that during the period the land is being developed and houses are constructed thereon, the eligible persons would be given alternate accommodation as selected by the private developer and such persons would be shifted back to the newly built houses on completion of the construction work. 11. At this stage, it is required to be noted that as per the affidavit dated 17.09.2018 filed by the Deputy Municipal Commissioner of the respondent Corporation, more than 90% of the hutment dwellers situated in the areas in question have submitted their Forms to the respondent Corporation with necessary details. Thus, majority hutment dwellers have accepted the proposal of redevelopment. Hence, the submission canvassed by the learned advocate for the petitioner is misconceived and the same cannot be accepted.” 12. The Court has perused the Affidavit filed and is satisfied that the respondent Authorities have complied with the requirement of law, where the respondents No. 1 and 2 which is clearly reflected in the Affidavit on record, more particularly Para-5 and 6. The Court has also perused the photographs produced on record along with the details which clearly indicate that the petitioners are not right in contending that area occupied by them does not require redevelopment. 13. The Court has also perused the photographs produced on record along with the details which clearly indicate that the petitioners are not right in contending that area occupied by them does not require redevelopment. 13. It appears that in the notification dated 6.8.2014 the respondent No.2 has notified the hutments of the Anvarnagar, Ambedkarnagar, Vivekanandnagar and Umiyanagar (Panchshilnagar), Slum area as notified slum under sub-section (1) of Section 3 of the Act, 1973 and invited the objections and suggestions under Section 11 of the Act, 1973, as the said Anvarnagar, Ambedkarnagar, Vivekanandnagar and Umiyanagar (Panchshilnagar) hutments dwellers were selected during the meeting dated 25.6.2014 on the ground that conjunction of the houses and space constraints due to the existing design and layout and more particularly, due to uncleanness lack of ventilation which may lead to health hazardous and security issues, the respondents No. 4 and 5 have decided and resolved to notify the said slum areas to be included under the Mukhya Mantri Gruh (Gujarat Rural Urban Housing) Yojana”, now included in Pradhan Mantri Awas Yojana and to rehabilitate through the 'PPP Project' to rehabilitate the said slums and hutments on the very said place under the 'PPP' Project. 14. From the record, it appears that on 30.8.2013 the General Board of Surat Municipal Corporation passed Resolution being Resolution No.1149 of 2013 resolving to redevelop the slums and also to construct EWS Residential premises as per the 'Mukhya Mantri Gruh Yojna' which was approved by the Urban Housing & Urban Development Department of the State Government on 18.7.2013. At the time when the matter was placed before the General Board, survey details of slums located on Surat Municipal Corporation land, Government land and private land, where the slums are located were considered which was to the tune of 399. It is also resolved to do necessary further work in pursuance of re-development as per Resolution dated 18.7.2013. Urban Housing & Urban Development Department, Sachivalaya, Gandhinagar, issued the Notification dated 30.8.2013 under clause-(j) of Section 2 of the Gujarat Slum Area (Improvement & Clearance and Re- Development) Act, 1973 ('Slum Act' for short), stating inter-alia that the Prescribed Authority for the areas of different Municipal Corporation constituted under the Gujarat Municipal Corporation Act, 1949, will be as per Schedule-1 to the said Notification wherein 9 Members were prescribed as Prescribed Authority in Municipal Corporation and Urban Development Authority. Urban Development & Urban Housing Department of the State of Gujarat by Notification dated 24.9.2013 issued Notification under Section 56 of the Slum Act authorizing the Prescribed Authority to exercise the power of the State Government vested in it under sub-section (1) of Section 3. In the meeting of the Prescribed Authority dated 25.6.2014 it was decided to first re-develop 14 slums located on 9 lands of the ownership of the Corporation which includes 3 lands which are the subject matter of this petition. In the said 14 slums, 9 lands of the Corporation are involved. 15. From the records, it also appears that the Prescribed Authority called for further objections and the suggestions from various persons and the same were considered by the Prescribed Authority. Though the objections and the suggestions were called for under Section 3 & 11 of the Slum Act, the Notification was issued only under Section 3. The said objections and suggestions were called for in respect of redevelopment of the land as per Chapter-V of the Slum Act. Though no formal notification was issued under Section 11 of the Act, the objections and suggestions were called for under Sections 3 & 11 both indicating that the land is to be redeveloped. As regards Anvarnagar, Ambedkarnagar and Khwajanagar are concerned, the occupiers of the said area have cooperated with the Corporation and approximately 90% have agreed for re-development. However, as regards the present petitioner - Umiyanagar (Panchshilnagar) is concerned they have not allowed the Corporation to distribute the forms or to make survey. So far as the land in question is concerned it is reserved for “site for slum clearance” and the Corporation is entitled to re-develop the property as per the Slum Up-gradation Act since the area in question has already been declared as slums. 16. In view of the aforesaid discussion, no case is made out for interference into the ongoing process of redevelopment under the PPP scheme. 17. In view of the above, the petitions deserves to be and are hereby dismissed. Rule is discharged with no order as to costs.