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2025 DIGILAW 607 (BOM)

NEELESH RAMKARAN YADAV v. State of Maharashtra

2025-03-20

A.S.GADKARI, KAMAL KHATA

body2025
JUDGMENT : A.S. GADKARI, J. 1) By the present Petition under Article 226 of the Constitution of India, the Petitioners have impugned (i) Order dated 20 th January 2025 (Exh.‘S’) passed by the Apex Grievance Redressal Committee (A.G.R.C.) i.e. Respondent No.3; (ii) Order dated 15 th April 2024 (Exh.‘M’) passed by the Slum Rehabilitation Authority (SRA) i.e. Respondent No.2 and (iii) Notice dated 23 rd February 2024 (Exh.‘I’) issued by the Deputy Collector (Special Cell), Slum Rehabilitation Authority i.e. Respondent No.4 herein, under Section 33 & 38 of The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (S.R. Act) pertaining to the writ structure and for consequential interim reliefs. 2) Heard Mr. Singh, learned counsel for Petitioners, Ms. Sawant, learned A.G.P. for Respondent No.1, Ms. Bhosale, learned counsel for Respondent Nos.2 & 4, Ms. Goswami, learned counsel for Respondent No.3 and Mr. Chinoy, learned senior counsel for Respondent No.5. Perused entire record produced before us. 3) Brief facts : 3.1) It is the case of the Petitioners that, they are in use and occupation of part or portion of larger piece of land or property, on which the Respondent No.3 has approved Slum Rehabilitation Scheme (S.R. Scheme) of two societies, namely (i) Ramdas Nagar Joseph Patel Wadi SRA CHS (Proposed) and (ii) Joseph Patel Estate Navdurga Rahiwasi Seva Sangh Sahkari Grihnirman Sanstha (Proposed), i.e. Respondent Nos. 6 & 7 respectively. The Petitioners have their livestock (buffaloes and cows) and are running their stables for last several decades. The Respondent No.5 is appointed and approved to be developer of the said Slum Rehabilitation Scheme of the said two Societies. 3.2) Subject matter of the Petition is a part or portion of larger property admeasuring 8047.9 sq.mtrs., situated on various CTS numbers in village Versova, Taluka Andheri, Mumbai Suburban District. The Petitioner No.1’s cattle stable (Tabela) is numbered as Structure No. 420 (Stable structure) and other structures facilitating ancillary use of the structure No. 420, being godown and residential structure of the Petitioner No.1, identified on the said plan as Structure Nos. 415 to 418. The Petitioner No.2’s cattle stable (Tabela), which was constructed by his forefather, comprises of one godown and several residential rooms as well as cattle shed (Tabela) for which he has paid Assessment Tax since the year 1961-62. The said structures of Petitioner No.2 are identified and numbered as Structure Nos. 415 to 418. The Petitioner No.2’s cattle stable (Tabela), which was constructed by his forefather, comprises of one godown and several residential rooms as well as cattle shed (Tabela) for which he has paid Assessment Tax since the year 1961-62. The said structures of Petitioner No.2 are identified and numbered as Structure Nos. 404, 405, 409, 410, 414 & 419 (Tabela). 3.3) That, prior to 1961 the grandfather of Petitioner No.1 Shri Shivnath Yadav and similarly father of Petitioner No.2 were in occupation and possession of piece and parcel of land bearing CTS No. 1165 of village Versova, Taluka Andheri and they were engaged in the business of Dairy Farming by keeping milching cattle such as buffaloes and cows. It is the case of the Petitioners that, their predecessors constructed their respective cattle sheds of 72 and 10 cattle respectively, for which the cattle Controller of State granted license in the year 1976. The area of cattle sheds is admeasuring 2860 and 1333 sq.ft. respectively. The said cattle sheds were duly assessed in the name of their predecessors prior to datum line of 1961-62. 3.4) That, by way of ancillary use to facilitate storage of fodder for the 72 cattle, the Petitioner No.1 has also constructed two godowns admeasuring 300 sq. feet and two residential structures adjoining thereto admeasuring 455 sq.ft.. The said godowns and residential structures are also in existence prior to 1961-62 and are assessed by the concerned Authority of the Corporation. The father of Petitioner No.2 has also similarly constructed one godown and residential rooms. The said cattle sheds, godowns and residential structures are the subject matter of present Petition (writ structures). 3.5) It is the case of the Petitioners that, the office of Additional Collector, Mumbai has levied ‘Non Agricultural Assessment Tax’ on the said plot of land. The Petitioners have also got electricity connection way back by the concerned electricity provider. The Petitioners have also been provided with Ration Card by the concerned Authority. 3.6) The Petitioners further assert that, at the instance of and on instigation of Respondent No.5, the Respondent No.4 targeted the Petitioners by issuing a impugned Notice dated 23 rd February 2024, under Sections 33 & 38 of S.R. Act, wherein the Petitioner No.1’s name appears at Sr. Nos. 14 to 17 & 19. The name of Petitioner No.2 appears at Sr. Nos. 9 to 13 & 18. Nos. 14 to 17 & 19. The name of Petitioner No.2 appears at Sr. Nos. 9 to 13 & 18. The said Notice was also issued to various other individuals residing in the said locality and it was a common action by the Respondent No.3 at the behest of Respondent No.4. 3.7) By the said Notice the Respondent No.4 called upon the Petitioners to attend the hearing on 6th March 2024 and to submit their say in the proceedings initiated against them under Sections 33 & 38 of S.R. Act. The Petitioners filed their detailed say dated 6 th March 2024 to the said Notice. The Respondent No.5 also filed its written say dated 18 th March 2024 in the said proceedings. 3.8) The Respondent No.4 thereafter passed Order dated 15 th April 2024 under Section 33 & 38 of S.R. Act. By its Order the Respondent No.4 held that, the Petitioners were not cooperating in the redevelopment of the said S.R. Scheme and therefore they were directed to vacate their huts / structures and give its possession to the Respondent No.5 within a period of 30 days therefrom. 3.9) Feeling aggrieved by the said Order dated 15 th April 2024, the Petitioners preferred two separate Appeals / Applications bearing Application No. 83 of 2024 and Appeal No. 05 of 2024 respectively, before the Respondent No.3. The Respondent No.3 after hearing the learned Advocates for the respective parties was pleased to dispose of the Appeal / Application preferred by the Petitioners with certain directions by its impugned Order dated 20 th January 2025. By the said Order the Respondent No.3 was pleased to uphold the Order passed by the Respondent No.4 under Sections 33 & 38 of S.R. Act. The Petitioners feeling aggrieved by the said Order dated 20 th January 2025 passed by the Respondent No.3, Order dated 15 th April 2024 passed by the Respondent No.4 and the issuance of Notice dated 23 rd February 2024 has preferred present Petition. 4) Mr. Singh, learned counsel appearing for Petitioners submitted that, the Regulation No. 33(10)(6) of Development Control and Promotion Regulations for Greater Mumbai, 2034 (DCPR 2034) are not applicable to the Petitioners, as the structures of the Petitioners are stables. 4) Mr. Singh, learned counsel appearing for Petitioners submitted that, the Regulation No. 33(10)(6) of Development Control and Promotion Regulations for Greater Mumbai, 2034 (DCPR 2034) are not applicable to the Petitioners, as the structures of the Petitioners are stables. He submitted that, the Petitioners have challenged the Scheme of S.R.A. itself, as the structures of the Petitioners cannot be included in the S.R. Scheme of the said two Societies. He submitted that, the Petitioners had challenged the entire scheme of the Slum Redevelopment of the said two Societies before the Respondent No.3. However, the Respondent No.3 did not exercise its lawful jurisdiction vested in it and therefore the impugned Order dated 20 th January 2025 passed by the Respondent No.3 is bad in law. He submitted that, both the Authorities below have committed an error in not appreciating the said aspects and therefore the impugned Orders necessarily are to be set-aside by allowing the Petition. 5) Per contra Mr. Khandeparkar, learned Advocate appearing for Respondent No.5, vehemently opposed the Petition and submitted that, the stables of the Petitioners are situated in the midst of the said Scheme and by taking undue advantage of its position, the Petitioners are not co-operating with a view to extract more benefits from the Respondent No.5, than permissible under the law. He submitted that, the competent Authority of the Respondent No.2 has held the Petitioners to be ineligible for any benefits arising out of the said Scheme. That, the Petitioners are only squatters, but are dictating their own terms to the Respondent No.5 even for an amicable settlement. He submitted that, there were in all 426 hutments, out of which 350 hutments have been vacated by them. That, redevelopment of the said slum has been undertaken by the Respondent No.5 under Regulation No. 33(10) of the DCPR 2034. That, the rights of hutment dwellers are protected in Clause No.VI of the said Regulation. That, sub-clause 1.16(vi) of Clause No.VI of the said Regulation provides that, if the concerned slum dwellers did not join the rehabilitation scheme till the building permission to the project is given, such slum dwellers will completely loose the rights to any built up tenement and their tenement shall be taken over by the SRA and shall be used for the said purpose, as stated in the said provisions. He submitted that, though the Petitioners did not participate in the said Scheme by exhibiting indifferent approach, the Respondent No.3 in its impugned Order has issued certain directions benefiting the Petitioners and despite that, the Petitioners are not satisfied with it. He therefore prayed before this Court to dismiss the Petition in its entirety. 6) Perusal of record indicates that, the Respondent No.5 is the developer of the said Slum Rehabilitation Scheme of (i) Ramdas Nagar Joseph Patel Wadi SRA CHS (Proposed) and (ii) Joseph Patel Estate Navdurga Rahiwasi Seva Sangh Sahkari Grihnirman Sanstha (Proposed), i.e. Respondent Nos. 6 & 7 herein. The said S.R. Scheme has been approved by the Respondent No.2, as per the provisions of S.R. Act. 7) There are total 426 slum dwellers, out of which 235 slum dwellers are held to be eligible, 149 slum dwellers were held to be eligible for payment and the eligibility of 17 slum dwellers is still undecided. The Petitioners have been held to be ineligible slum dwellers in the Certified Annexure – II under the aforesaid S.R. Scheme as they did not operate with the competent Authority who conducted the Survey. 7.1) Record further indicates that, the Respondent No.5 till date incurred an amount of more than Rs. 27 crores towards the approvals and transit rent for the occupants in the above Scheme. In addition to the said amount already incurred by the Respondent No.5, it is also liable to pay an amount of approximately Rs. 75,00,000/- p.m. towards transit rent to the members of the said two Societies, till it hands over the Permanent Alternate Accommodation to its members. Record reveals that, till today approximately 414 structures/hutments from the said two Societies have been demolished and more than thousand persons are out of their respective tenements. The delay at the instance of the Petitioners in stalling the implementation of the said S.R. Scheme causes great prejudice to the Respondent No.5 and the occupants of the said hutments who have already vacated their tenements. The slum dwellers are facing greater hardship due to uncertainty of completion of the said S.R. Scheme. 7.2) The competent Authority of Respondent No.2 carried out survey of the said slum and prepared Annexure-II as per the provisions of law. The premises of Petitioner No.1 at Sr. Nos. 14 to 17, were found to be locked and Sr. No.19 was found to be a stable. 7.2) The competent Authority of Respondent No.2 carried out survey of the said slum and prepared Annexure-II as per the provisions of law. The premises of Petitioner No.1 at Sr. Nos. 14 to 17, were found to be locked and Sr. No.19 was found to be a stable. The locked premises of Petitioner No.1 indicates that, he was not residing at the said premises when the survey was carried out. 7.3) As far as Petitioner No.2 is concerned, his predecessors name appears at Sr. Nos. 9 to 13 & 18 in the list annexed to the Notice. It appears that, the Petitioner No.2 did not disclose his name to the competent Authority and has been held to be ineligible for said premises. As far as Sr. No. 18 is concerned, it is shown as a stable and the name thereof as Karan Yadav. The Petitioner No.2 has also been held to be ineligible for the said premises at Sr.No.18. 8) Record clearly indicates that, the writ structures are patently and thoroughly illegal and unauthorized. There is no decree of any Court of competent jurisdiction, declaring / holding the Petitioners to be the owners of the land beneath the writ structures. We therefore find substance in the contention of the learned Advocate for Respondent No.5 that, the Petitioners are only squatters at the said place. 8.1) The land beneath the writ structures is admittedly owned by the Respondent No.5. Merely because the predecessors of the Petitioners have illegally and unauthorisedly erected stables on the writ properties, according to us, they ipso facto do not become owner of the suit plot, to dictate their terms to the landlords. The Petitioners therefore at the most, are entitled for the benefits as per the Scheme of the Government and the Rules framed thereof. However, the Petitioners cannot dictate their terms to the Respondent No.5-landlord. 8.2) The Petitioners have been held to be ineligible by the competent Authority for any benefit of the said S.R. Scheme and therefore they are not entitled for any benefit, which is being given to other slum dwellers in the said Scheme. However, the Petitioners cannot dictate their terms to the Respondent No.5-landlord. 8.2) The Petitioners have been held to be ineligible by the competent Authority for any benefit of the said S.R. Scheme and therefore they are not entitled for any benefit, which is being given to other slum dwellers in the said Scheme. 9) Assuming for the sake of argument that, the structures erected by the Petitioners are tolerated structures, once the Slum Rehabilitation Scheme is sanctioned by the Slum Rehabilitation Authority as contemplated under Section 3(a)(b) & (c) of the said Act, the suit structures of the Petitioners gets merged in the said Scheme and they have no independent right dehors the Scheme. Therefore the plea of having a tolerated structure does not survive. 9.1) Record clearly indicates that, the Petitioners are obstructing the implementation of the said Slum Rehabilitation Scheme, unwilling to co- operate and are demanding more benefits than permissible under the law and given to other similarly situated slum dwellers. They have also turned down all reasonable offers from the Respondent No.5-developers. 10) Regulation 33(10)(VI) deals with Right of the Hutment Dwellers. Sub Clause 1.16 (vi) of the said Regulation provides that, if any of the hutment dweller do not join the S.R. Scheme 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 SRA, and used for the purpose of accommodating the pavement-dwellers and other slum dwellers who cannot be accommodated in situ etc. 10.1) In the present case as noted earlier, the Petitioners are found to be non co-operating members of the S.R. Scheme of the said two Societies, development of which is undertaken by the Respondent No.5 and therefore they are not entitled for any benefit. 10.2) The Division Bench of this Court in case of Om-Sai Darshan Co-operative Housing Society (Proposed) and Another Vs. State of Maharashtra and Others, 2006 SCC OnLine Bom 480 : (2007) 1 Bom CR 476, while considering the Scheme under Regulating 33(10) and Appendix IV thereof, in para No.25 has held as under :- “25. 10.2) The Division Bench of this Court in case of Om-Sai Darshan Co-operative Housing Society (Proposed) and Another Vs. State of Maharashtra and Others, 2006 SCC OnLine Bom 480 : (2007) 1 Bom CR 476, while considering the Scheme under Regulating 33(10) and Appendix IV thereof, in para No.25 has held as under :- “25. ……………..As per the provisions of Annexure to Regulation 33(10) and Appendix IV, once a scheme submitted by a proposed society for slum rehabilitation is sanctioned, then the eligible slum dwellers who are not members of the society and who have not consented to the said society implementing the scheme are entitled to permanent accommodation in the redeveloped building. Once such a proposal is approved and is in force, the members who are in minority cannot purport to form a society and submit their own proposal. None of the eligible hutment dwellers have any right save and except a right to get an accommodation of 225 sq.ft. in the event the scheme under Regulation 33(10) is implemented. Their right is confined to securing accommodation on the basis of a pre- existing eligible structure and they cannot insist that the development should be carried out by a society which is of their choice especially when a valid proposal of a proposed society which is supported by 70 per cent of the eligible hutment dwellers has already obtained approval to the slum rehabilitation scheme……………” 11) With regard to the contention of the Petitioners that, their stables do not form part of the SR Scheme, the same is without merit and does not appeal to us. As a matter of fact and law, the Division Bench of this Court in PIL Writ Petition No.2565 of 2005 along with other connected Petitions in its Order dated 30 th January 2020, in para No. 15 has held as under :- “15. Since we want to ensure that the entire scheme takes effect within the time limits set in the proposals and expected by us, in the first instance, in order to test the bonafides and to ensure completion of the first phase process, we place these matters on 12.6.2020. Finally, we direct that shifting of cattle from Mumbai and Mumbai suburbs to Dapcherry would be undertaken in a phase-wise manner. Finally, we direct that shifting of cattle from Mumbai and Mumbai suburbs to Dapcherry would be undertaken in a phase-wise manner. In the first phase, the cattle from Mumbai city would be shifted to Dapcherry and in the second phase, the cattle from other Municipal areas including Kalyan Dombivali, Mira Bhayander and Thane would be carried out. We also clarify that while the cattle may be shifted from the areas in Mumbai city and municipal limits, our order and direction does not in any manner touch, muchless conclude, the issue of right, title and interest of the persons carrying on the dairy business qua the land. That issue will be decided independent of our directions in these matters.” 11.1) The said Order has been upheld by the Hon’ble Supreme Court in Special Leave to Appeal (C) No(s). 2525-2526/2021, by its Order dated 16 th April 2021. The relevant paragraphs from the Order of the Hon’ble Supreme Court are reproduced herein-below for the ready reference :- “Needless to observe that the order of status quo stands merged in the final (impugned) order passed by the High Court. In other words, consequent to rejection of this special leave petition, no restriction operates against the State authorities to take action as per law. Realizing this position, learned counsel for the petitioner(s) prays for at least eight weeks’ time to remove themselves from the prohibited area and, in particular, to stop the activities prohibited in terms of Notification dated 01.07.2006. If the petitioner(s) voluntarily do not remove themselves from the prohibited area in terms of notification dated 01.07.2006 and refrain from doing prohibited activity threat within eight weeks from today, the State authorities may proceed against such offenders in accordance with law. The fact that petitioners have not availed of alternative site offered by the State Government cannot be cited as a reason to defer the implementation of prohibition order vide notification dated 01.07.2006. That cannot brook delay any more. We further make it clear that we are not examining the correctness of the stand taken by the State Government regarding offering an alternative site at Dapchari or any other location. That cannot brook delay any more. We further make it clear that we are not examining the correctness of the stand taken by the State Government regarding offering an alternative site at Dapchari or any other location. Such allotment, needless to mention shall be strictly as per law.” 11.2) According to us, even if the Petitioners were not a party before this Court or a member of the Bombay Milk Producers Association, the decision rendered by this Court in the said PIL and upheld by the Hon’ble Supreme Court is binding upon the Petitioners. Therefore, the contention of the Petitioners that, their stable structures are not covered by the present S.R.Scheme, is rejected. 12) The Hon’ble Supreme Court in the case of Central Council for Research in Ayurvedic Sciences and Another Vs. Bikartan Das and Others, 2023 SCC OnLine SC 996, while enumerating the extraordinary jurisdiction under Article 226 of the Constitution of India and more particularly when it comes to issuance of writ of certiorari, in para Nos. 51 & 52 has held as under :- “51. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking. 52. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.” 13) After perusing entire record, this Court is of the considered view that, both the Authorities below have not committed any error while passing the impugned Orders. There are a concurrent findings recorded by both the Authorities below. This Court finds that, there is no error or illegality committed by both the Authorities below, either on facts or in law while passing the impugned Orders. 14) Petition is devoid of any merits and is accordingly dismissed.