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2017 Supreme(Bom) 566
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, J.
Slum Rehabilitation Authority and Ors. - Petitioners
Versus
Smt. Kantabai Vasant Ahir and Ors. - Respondents
WRIT PETITION NO. 8949, 8948, 8947, 8946 OF 2015
Decided On : 28-04-2017
Mr. P.S. Dani, Senior Advocate i/by Mr. Vijay Killedar for the Petitioners in Writ Petition No.8949 of 2015, Writ Petition No.8948 of 2015 and for Respondent No.2 in Writ Petition No.8946 of 2015, Writ Petition No.8947 of 2015.
Mr. Y.S. Jahagirdar, Senior Advocate i/by Mr. S. A. Inamdar for the Petitioners in Writ Petition No.8946 of 2015 and Writ Petition No.8947 of 2015.
Mr. A.Y. Sakhare, Senior Advocate i/by Mr. P. V. Dube for the Respondent Nos.1 to 9 in Writ Petition No.8949 of 2015 and Writ Petition No.8948 of 2015 and for Respondent Nos.4 to 12 in Writ Petition No.8946 of 2015 and Writ Petition No.8947 of 2015.
Important Point - The function of the government in establishing a Corporation under the Act is neither executive nor administrative. It is legislative process indeed.
Headnote:Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - Section 3D – Petitions herein have been filed by the Slum Rehabilitation Authority, Pune challenging the various orders - Whether the Appellants proved that they are persons aggrieved as contemplated under Section 12(4) of the Slum Act - Whether the Respondents have adopted the due process of law while issuing the impugned order - The conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has neither the attraction of logic nor the support of law - The function of the government in establishing a Corporation under the Act is neither executive nor administrative - It is legislative process indeed - No judicial duty is laid on the government in discharge of the statutory duties. The government did publish the proposal by a draft notification and also considered the representations received - It was only then a decision was taken to exclude Ulhasnagar for the time being - That decision became final when it was notified under Section 3(2) - The Court cannot sit in judgment over such decision - It cannot lay down norms for the exercise of that power - It cannot substitute even “its juster will for theirs - The impugned order dated 12.03.2015 passed by the Slum Tribunal in so far as it sets aside the Slum Rehabilitation Area Declaration Order under Section 3C as also the Slum Clearance Order under Section 3D to the extent of 1045.50 sq.mtrs. is required to be quashed and set aside and is accordingly quashed and set aside. Resultantly the Slum Area Declaration and the Slum Clearance Order would apply to the entire area of 5168.50 sq.mtrs.
Result – The above Writ Petitions are accordingly allowed.
1. Rule in all the Petitions, with the consent of the Learned Counsel for the parties made returnable forthwith and heard.
2. The above Petitions take exception to the order dated 12.03.2015 passed by the Learned President of the Maharashtra Slum Areas (I.C. & R.) Tribunal in Appeal No. 25 of 2014 and Appeal No. 24 of 2014. By the said order, the said Appeals came to be partly allowed and the Slum Rehabilitation Area Declaration Order dated 24.05.2006 issued under Section 3C and the Slum Clearance Order under Section 3D of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as “the Slum Act”) to the extent of the area of 1045.50 sq.mtrs. came to be set aside. However the said Declaration and Clearance order was sustained in so as the area of 4123 sq.mtrs. is concerned.
3. The above Writ Petition No.8949 of 2015 and Writ Petition No. 8948 of 2015 have been filed by the Slum Rehabilitation Authority, Pune (“SRA” for the sake of brevity) challenging the said orders dated 12.03.2015. The remaining two Petitions i.e. Writ Petition No. 8946 of 2015 and 8947 of 2015 have been filed by the owner of the lands in question one Tukaram Sopanrao Mulik challenging the same order dated 12.03.2015 passed by the Slum Tribunal. Since the challenge in all the above Petitions runs parallel and since the Petitions involve common questions of fact and law, they are heard together.
By the consent of the Learned Counsel for the parties, Writ Petition No. 8949 of 2015 is treated as the lead matter.
4. The lands involved in the above Petitions are Survey Nos.27 and 28 at Wadgaon Sheri (Ramwadi), Mulik Vasti, Pune admeasuring 4123 sq.mtrs. The said lands were occupied by structures. The said land came to be declared as slum by a notification issued under Section 4(1) of the Slum Act. The said declaration was published by the Competent Authority in the Government Gazette on 10.11.1983 and copy thereof was made available for perusal of the public by affixing the same at conspicuous places in the said area and panchanama to that effect came to be prepared.
5. The Slum Rehabilitation Authority for Pune, Pimpri and Chinchwad area i.e. SRA came to be established under Section 3A of the Slum Act on 30.06.2005. After its establishment, the SRA prepared a Slum Rehabilitation Scheme for the city of Pune which was under Section 3B of the Slum Act. The said Slum Rehabilitation Scheme interalia defined the constitution of the SRA, its scope and powers under the Slum Act, its obligations towards the slum dwellers as also towards the owners and the developers. After its establishment, the SRA conducted a survey to interalia prepare a list of eligible and ineligible slum dwellers from amongst the persons who had their structures on the land in question. The SRA accordingly carried out a detailed survey by visiting the site. The Respondent Nos.1 to 9 herein who have their structures on the lands in question participated in the said survey and showed their willingness to be the part of the said scheme. In pursuance of the said survey, the first list of slum dwellers came to be published on 18.04.2006 by affixing the same at a conspicuous place in the said area. In terms of the Government Resolution dated 08.09.2001, a notice came to be published on 12.05.2006 calling for objections from the aggrieved slum dwellers in respect of the list prepared of the eligible slum dwellers by the SRA vide Annexure-II. The Respondent Nos.1 to 9 herein whose structures are situated on the lands in question approached the SRA vide their objections dated 26.05.2006, 21.06.2006, 20.07.2006 and 07.08.2006. After considering the objections of the Respondent Nos.1 to 9, the SRA published another list on 16.05.2007. In the said list the Respondent Nos.1 to 9 herein were declared as eligible.
6. The SRA thereafter in its capacity as a slum rehabilitation authority passed an order under Section 3C of the Slum Act whereby an area admeasuring
