Pooja Enterprises and another vs Chief Executive Officer and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 150

IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
M/s. Pooja Enterprises another..... Petitioners.
Versus
The Chief Executive Officer others..... Respondents.
Writ Petition No. 352 of 2000, decided on 29-2-2000.
Advocates appeared :
Siraz Rahimtulla with Vaibhav Krishna and Nachiket G. Bhatt, for petitioners.
S.G. Surana, for respondent Nos. 1 and 2.
J.S. Kini, for respondent No. 3.

Headnote:-Sections 3-B, 3-C(1) and (2)Petitioners developing "Slum Rehabilitation Area" under Scheme framed under Section 3- B-No declaration by competent Authority under Section 3-C(1) as slum area-Special Tribunal had no jurisdiction to entertain the appeal under Section 3o C(2).-Under Section 3-B(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act a general scheme is prepared by the Slum Rehabilitation Authority for the area under its jurisdiction. Under Section 3-C(1), the Competent Authority after the general scheme has come into force can declare any other area in the area of its jurisdiction as a slum rehabilitation area. Under Section3-A Authority is created under the Act for the purpose of framing a scheme under Section 3-8. Under Section 3-C the Competent Authority after the said scheme has come into force under Section 3-8 is empowered to declare any other area as a slum rehabilitation area. Thus, Sections 3-8 and 3-C operate in two different fields. Once that be so, it is the scheme as framed under Section 3-8 which would be applicable insofar where the area was already declared as a slum area by virtue of the deen1ing provisions there is no conflict between Section 3-B and Section 3-C. Section 4 does not con1e into play once a general scheme is prepared under Section 3-B. Once the Mah. Specified Co-op. Societies Elections to Committee Rules, 1971 Authority is created for such area or areas under Section 3-A it has to frame a Scheme under Seclion3-B. Under Section 3oC after a general scheme is prepared if the Competent Authority is satisfied that circumstances exist in respect of any area justifying its declaration as slum rehabilitation area under the said scheme (general scheme), declare such area as slum rehabilitation area. On such happening, a person aggrieved by the said order would have a right to appeal under Section 3-C(2). There being a valid scheme, the Respondent No.4: President, Maharashtra Slum Areas (l.c. & R) Special Tribunal at Mumbai had no authority or jurisdiction to entertain the Appeal as the Competent Authority had not declared any area as a slum area under Section 3-C of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act.

JUDGMENT - F.I. REBELLO, J.:---Rule.

2.Learned Counsel for respondents waive service. By consent, heard forthwith.

3.The petitioners approached this Court to impugn order dated 2nd February, 2000 passed by the President, Maharashtra Slum Area (I.C. and R.) Special Tribunal, Mumbai. By the said order the tribunal was pleased to grant interim relief in terms of prayer Clause (a) which reads as under :-

"Pending the hearing and final hearing of this appeal the respondents be restrained by an order and injunction of this Honourable Court from carrying on any Slum Rehabilitation work of any nature whatsoever without Slum Rehabilitation declaration under section 3-C(1) of Maharashtra Slum Areas Act, in respect of C.T.S. Nos. 1492 of 1527 at Village Kirol, Ghatkopar (W), Mumbai."

The said appeal was filed before the tribunal purportedly under section 3-C(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, hereinafter referred to as the Slum Redevelopment Act.

4.At the hearing of the petition it is principally contended on behalf of the petitioners that the 4th respondent had no jurisdiction to grant any relief as there was no order passed under section 3-C(1) of the Slum Redevelopment Act and consequently the order is without jurisdiction and liable to be quashed and set aside. It is further contended, the permission granted was subsequent to the area being declared as a slum area under section 4 of the Slum Redevelopment Act and a general scheme had been framed for the area. Once it was so declared the Slum Clearance Scheme as framed by notification of 16th October, 1997 was applicable. The petitioners applied for permission which was granted and as such the petitioners are entitled to carry on with the work. It is further contended that pursuant to the permission granted, petitioners have constructed transit accommodation. No Objection Certificate for the transit accommodation has been obtained. The persons entitled to be rehabilitated have shifted to the transit accommodation and the area has been cleared. The petitioners obtained Letter of Intent on 7th April, 1999. Commencement Certificate for Building A-1 was also given on 7th April, 1999. Pursuant to that construction has also commenced. It is pointed out that the petitioners by agreeing to the terms imposed have agreed to rehabilitate the persons covered by the project. It is further pointed out that out of 87 persons entitled 78 of them have had written agreements with the petitioners to avail of the benefit. In this context it is contended that as more than 70% of the persons entitled have agreed to the scheme and the area declared as Slum Rehabilitation Area permission was legally granted and as such the petitioners are within their jurisdiction to carry out the scheme. In these circumstances, it is contended that the order of the 4th respondent is without jurisdiction and or discloses error of law apparent on the face of the record and consequently this Court should interfere in the exercise of its extra ordinary jurisdiction under Articles 226 or 227 of the Constitution of India.

On behalf of the respondent No. 3, who is a person covered by the scheme and has an agreement with the petitioner, it is contended by his learned Counsel that the Government of Maharashtra by a notification in the Maharashtra Gazette of 19th April, 1998 has framed the general scheme. Once the scheme is framed, it is contended that the petitioners were bound to apply under section 3-C of the Slum Redevelopment Act for development of the area. They having not so applied are not entitled to go ahead with the construction until permission is obtained.

5.I have heard learned Counsel for the petitioners-respondent Nos. 1 and 2 and respondent No. 3. To deal with the issue which arises herein certain dates and events will have to be referred to. On 20th February, 1991 the Development Control Regulations for Greater Bombay, 1991 were published. The regulations came into force

Click Here to Read the rest of this document