2007 Supreme(Bom) 1565

IN THE HIGH COURT OF BOMBAY
SWATANTER KUMAR, C.J. DR. D.Y. CHANDRACHUD, J. &
S.C. DHARMADHIKARI, J.
Tulsiwadi Navnirman Coo - Petitioners
versus
State of Maharashtra and others .. Respondents
WRIT PETITION NO. 1326 OF 2007
Decided on: 1ST NOVEMBER, 2007

Headnote:Maharashtra Regional and Town Planning Act, 1966 - Section 22(m)-Maharashtra Slum Areas (Improvement Clearance and Re-development) Act, 1971, Sections 42, 3-A and 3-K (amended in 1996, 1997 and 2001)-Development Control Regulations for Brihan Mumbai, 1991, Regulation 33(9), (10), Appendix IV, Clause 1.5-Implementation of Scheme or project-Obstructed by dwellers due to inaction by S.R.A. and State Government-Petition under Article 226-Held, that a petition under Article 226 would not be entertained unless and until parties exhaust remedy of approaching High Powered Committee.-Broadly, the disputes which are brought before the Court and highlighted by the facts in the two petitions noticed above are between slum dwellers themselves, slum dwellers and developer in a rehabilitation project who is not acceptable to a particular group or section of slum dwellers, they propose name of another developer and last but not the least between the slum dwellers, developers and the B.M.C. and S.R.A. This is a common complaint. The implementation of the scheme or project is obstructed and often comes to a complete half on account of inaction by the S.R.A. and the State Government. They do not take any cognisance of common grievances, for example, removal of the Minority or obstructing occupants from the site etc. On some occasions, they refuse to intervene. The allegation is that SRA or State sides with one group or the other. Resultantly all disputes land up in the Court and that is how petitions under Article 226 of the Constitution of India, are filed.

       There are several such matters which have been grouped together. It is in the backdrop of such factual and other disputes and complaints with regard to implementation/non implementation of the schemes and projects meant for slum dwellers that the following questions were formulated, for being answered in this reference, by the Division Bench :

       (a) Whether, a private party can seek resolution of dispute and claim relief entirely falling in the private domain, under the garb of Public Authority not functioning?

       (b) Whether Municipal Corporation or S.R.A. are responsible for defaults, under the schemes of Slum Redevelopment or under Urban Renewal Schemes?

       In the result, Court answers the question framed hereinabove as under :

       (A) While exercising the jurisdiction and powers under Article 226 of the Constitution of India in matters concerning Rehabilitation of Slum Dwellers and schemes framed under relevant statutes, distinct yardsticks cannot be carved out nor separate parameters laid down by the Court.

       (B) However, the limits and restrictions which are placed on the writ jurisdiction of the Court by authoritative pronouncements of Supreme Court would govern the writ petitions challenging the orders, actions/inaction of the authorities in charge of implementing and/or monitoring the slum rehabilitation scheme.

       (C) It is clarified that ordinarily a petition under Article 226 of the Constitution of India can be filed and depending upon the facts and circumstances of each case, the Court can decide to intervene, even if, alternate remedy provided above is not exhausted by the petitioner. However, such intervention should be minimum and the Court must abide by the rule of caution and prudence enunciated by the Supreme Court in this behalf. In exceptional and deserving cases, the Court would exercise its powers and no general rule can be laid down in that behalf.

       (D) As far as disputes and questions involving the slum dwellers and Slum Rehabilitation Authority/Public Body/State, Co-operative Housing Society of Slum Dwellers and Developers, Registered Co-operative Housing Society of Slum Dwellers on one hand and proposed Co-operative Society on the other, Developers and S.R.A./State, a writ petition under Article 226 of the Constitution of India would not lie or would be entertained unless and until the parties exhaust the remedy of approaching the High Powered Committee referred to above.

       (E) The only exception that can be made to Clause D above, is with regard to writ petitions challenging the validity and legality of the Rules, Regulations and Policy Circulars/directives issued under the Statutory provisions or the vires of the statutory provisions themselves. In such cases, the Court would not insist upon exhaustion of remedies stipulated above. Similarly, if a High Powered Committee/Authority refuses to act on the representations/applications despite proof of the same having been received, then, in appropriate cases, directions can be issued to the said Authority. However, the parties must satisfy the Court that they had made a grievance with regard to inaction of High Powered Committee to the State Government and it has also refused to issue any directions to either that Authority or S.R.A. Thus, if the State inaction is also alleged, then, the petition can be entertained. However, grant of relief would depend upon the Court satisfying itself about the promptness or sense of urgency shown by the aggrieved party apart from its bona fides in approaching the Court.

       (F) Needless to State that the rule of prudence and caution evolved by the Supreme Court with regard to exhaustion of alternate remedy would always be applicable. If the disputes and questions raised involve factual aspects or necessitate leading of oral and documentary evidence, then, this Court can refuse to interfere in writ jurisdiction leaving open to the parties, remedy of suit in competent Civil Court or Arbitration.

       (G) It is clarified that purely private disputes or those involving contractual rights, brought before the Court by way of writ petitions, will have to be ordinarily resolved by recourse to civil suit or arbitration and this principle would apply even to petitions where the State, S.R.A., B.M.C., MAHADA etc. are impleaded as parties.

       (H) An exhaustive category of such cases and disputes cannot be framed and the general principles governing writ jurisdiction would be applicable having regard to the fact in each case.