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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, SHALINI PHANSALKAR JOSHI, JJ.
Jai Ganesh SRA CHS (prop.) - Petitioners
Versus
State of Maharashtra – Respondents
W.P. No. 2270 of 2014
Decided On : 28-07-2016
The Court held that the Slum Rehabilitation Authority (SRA) could not have refused to take further steps or the State, through its competent authority, refused to carry forward the notification to its logical end, merely because an endorsement was made in the notification that the Restoration Act was applicable to the land and as per rules, necessary permission should be taken. The Court directed the SRA and the State to consider the petitioners' application and take up the draft Annexure – II for finalisation in accordance with law within a period of four months from the date of receipt of a copy of the judgment.
Fact of the Case:
The petitioners, a proposed society of slum dwellers, submitted a proposal to the SRA for redevelopment of slums existing on a plot of land. The SRA accepted the proposal and assigned a computer number to the said proposal. However, the SRA then informed the petitioners that a member of the Scheduled Tribes owned the land on which the slum rehabilitation project proposed by the petitioners was to be implemented. The petitioners challenged the SRA's decision, arguing that the Slum Act would prevail over the provisions of section 36A of the Maharashtra Land Revenue Code, 1966 (the Code), which prohibits the transfer of occupancy of a tribal to a non-tribal without prior permission of the Collector or the State Government.
Finding of the Court:
The Court held that the Slum Act would apply to the subject lands and on slums thereto and that the SRA could not have refused to take further steps or the State, through its competent authority, refused to carry forward the notification to its logical end, merely because an endorsement was made in the notification that the Restoration Act was applicable to the land and as per rules, necessary permission should be taken. The Court directed the SRA and the State to consider the petitioners' application and take up the draft Annexure – II for finalisation in accordance with law within a period of four months from the date of receipt of a copy of the judgment.
Issues: Whether the Slum Act would prevail over the provisions of section 36A of the Code, which prohibits the transfer of occupancy of a tribal to a non-tribal without prior permission of the Collector or the State Government.
Ratio Decidendi: The Court held that the Slum Act would apply to the subject lands and on slums thereto and that the SRA could not have refused to take further steps or the State, through its competent authority, refused to carry forward the notification to its logical end, merely because an endorsement was made in the notification that the Restoration Act was applicable to the land and as per rules, necessary permission should be taken. The Court directed the SRA and the State to consider the petitioners' application and take up the draft Annexure – II for finalisation in accordance with law within a period of four months from the date of receipt of a copy of the judgment.
Final Decision: The Court allowed the writ petition and directed the SRA and the State to consider the petitioners' application and take up the draft Annexure – II for finalisation in accordance with law within a period of four months from the date of receipt of a copy of the judgment.
S. C. Dharmadhikari, J.
1. Rule. Respondents waive service. By consent, Rule made returnable forthwith.
2. By this writ petition under Article 226 of the Constitution of India, the petitioners are claiming the following declaration:-
“(a) That this Hon'ble Court be pleased to declare that:
(i) …..
(ii) …..
(iii) the provisions of the Slum Act will prevail over the provisions of section 36A of the MLR Code insofar as there is any conflict between the provisions;
(iv) a Slum Rehabilitation Scheme can be implemented on land declared as a Slum Rehabilitation Area under section 3C of the Slum Act even if such land is owned by a member of a Scheduled Tribe;
(v) …..
(b) That this Hon'ble Court be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction in the nature of Certiorari under Article 226 of the Constitution calling for the records and proceedings relating to the notification dated 7th August, 2012 (at Exhibit B hereto) in so far as it makes redevelopment on Slum rehabilitation area subject to permission under the Maharashtra Restoration of Land to Schedule Tribe Act, 1975 and communication dated 26th February, 2013 (at Exhibit E hereto) and after going through the legality, validity and propriety thereof the same be quashed and set aside insofar as it questions the legality of the Petitioners' proposal dated 8th January, 2013 on the ground that the said proposal is to be implemented on land owned by a member of the Scheduled Tribes;
…..”
3. The petitioners are also claiming certain incidental and ancillary declarations.
4. The above reliefs are claimed in the following background:-
5. The plot of lands bearing CTS No. 677/A (part), 610/A/1C (part) of village Malad (East), Taluka Borivli admeasuring 2330.10 square meters was declared as a slum rehabilitation area under section 3C of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as “the Slum Act”).
6. Petitioner no. 1 being a proposed society of the slum dwellers submitted a proposal to the second respondent Slum Rehabilitation Authority (for short “the SRA”) dated 8th January, 2013 for redevelopment of these plots. The scrutiny fees have been accepted and a number has been assigned to the petitioners' proposal by the SRA.
7. The petitioners have then pointed out as to how the proposal came to be submitted. It is stated that the said land is shown in the relevant revenue records as owned by a member of the Scheduled Tribe.
8. On 2nd October, 2010, in a General Body Meeting of petitioner no. 1, a resolution was passed approving the redevelopment of slums existing on the said plot of land. In the same meeting, resolutions were passed appointing petitioner no.2 as the Chief Promoter and M/s. Harasiddh Corporation as the developer for the said slum redevelopment project.
9. On 26th October, 2010, a development agreement was entered into between the developer M/s. Harasiddh Corporation and petitioner no. 1.
10. On 26th October, 2010, petitioner no. 1 granted a power of attorney to the partners of M/s. Harasiddh Corporation authorising them to take all steps with respect to implementation of the said slum redevelopment project.
11. The said M/s. Harasiddh Corporation has, by an agreement dated 11th August, 2010, agreed to purchase from the tribal owners all their rights, title and interest in the said slum land, with consent to develop the same as a SRA project, and have paid the tribal owners the entire consideration amount as agreed.
12. On 28th November, 2011, a proposal was submitted to respondent no. 2 on behalf of the petitioners to notify plot of land bearing CTS No. 677/A (part) and 610/A/1 C (part) as alum rehabilitation areas in order to implement the said alum redevelopment project.
13. On 7th August, 2012, respondent no. 2 passed an order under section 3C of the Slum Act notifying CTS N
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