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2022 Supreme(Bom) 538

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, MADHAV J. JAMDAR, JJ.
Rashtriya Chemicals & Fertilizers Ltd. - Petitioner
Versus
Chief Executive Officer, SRA, Prof. Anant Kanekar Marg & Others - Respondents
Writ Petition No. 741 of 2014 with Notice of Motion Nos. 90 of 2018 & 53 of 2016
Decided On : 09-03-2022

Advocates Appeared:
For the Petitioner:Mr. Anoshak Daver, with M.S. Bodhanwalla, Sheroy M. Bodhanwalla & Sakshi Sharma, i/b M.S. Bodhanwalla & Co., Advocates & Solicitors.
For the Respondents:Mr. Jagdish G. Aradwad (Reddy), Mr. Girish Godbole, with Gargi Bhagwat, i/b M/s Divekar Bhagwat & Co., Dr. Milind Sathe, Senior Advocate with Harish Pandya, Yuvraj Choksy & Pagya Dahiya, i/b Khaitan & Co., Mr. Milind More, Additional GP.

Headnote:

Constitution of India - Article 226 - Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 – Tenements - Possession of Property - Land is claimed by RCF as having been allotted to it. RCF claims an entitlement to all these lands and says specifically, to put it as compactly as possible, that these lands were acquired by the State for RCF or its predecessor-in-title, Fertilizer Corporation of India Limited (“FCI”) specifically for staff quarters and staff housing. It says that once these lands vested in and were transferred to RCF, a wholly-owned undertaking of the Central Government, there was no possibility at all of any of these lands being subjected to the discipline of Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 - Despite this position, RCF says slum housing societies — including those represented by Mr. Godbole — were allowed to be constructed here, i.e., in situ on CTS – Held, Land is recorded in name of the Government of Maharashtra and the petitioner has not utilized the land for the purpose it was granted - I say that encroachment/slums have come up over the said land - I further state that the slums are censused slums as defined by Regulation 33(10) of Development Control Regulation (DCR) 1991 - what we are actually being asked to decide is nothing but a title suit. We cannot embark on any such enquiry in a Writ Petition under Article 226 of the Constitution of India - It is simply not possible to grant the Petitioner, RCF, the kind of relief that it seeks - There is no manner of doubt on the record as it stands that CTS No.200 is encroached by slums - Slum societies have already come up. It is not possible to shift them. RCF has not been able to conclusively establish title to CTS No.200 or to show that this is an undisputed position – Ordered accordingly.

JUDGMENT :

G.S. Patel, J.

1. Rule was issued on 8th December 2014. There are Affidavits up to the stage of Rejoinder.

2. By its order of 14th February 2020, the Supreme Court expedited the hearing of two Notices of Motion in the Writ Petition. One of those Motions was for interim relief. The other was to expedite the Writ Petition. Since we decided to take up the Writ Petition itself, and have disposed of it by this order on a priority basis, we believe this adequately addresses the order of the Supreme Court.

3. We have heard Mr. Daver for the Petitioner, Rashtriya Chemicals And Fertilizers Ltd (“RCF”), Mr. Godbole for Respondents Nos. 4 to 6, 8 and 10 to 12, all cooperative housing societies of erstwhile slum dwellers, Dr. Sathe, who appears for Respondents Nos. 13, 14 and 15, all entities who are developers. The SRA, the Deputy Collector and the Collector, Mumbai Suburban District are Respondents Nos. 1 to 3 and are represented respectively by Mr. Aradwad (Reddy) for SRA and Mr. More, Additional Government Pleader for the State.

4. The dispute pertains to a fairly substantial tract of land, at village Wadhavali, Maravali, Chembur. The larger area is spread over several CTS or Survey Numbers. Relief is sought in respect of CTS No. 200.

5. This land is claimed by RCF as having been allotted to it. RCF claims an entitlement to all these lands and says specifically, to put it as compactly as possible, that these lands were acquired by the State for RCF or its predecessor-in-title, the Fertilizer Corporation of India Limited (“FCI”) specifically for staff quarters and staff housing. It says that once these lands vested in and were transferred to RCF, a wholly-owned undertaking of the Central Government, there was no possibility at all of any of these lands being subjected to the discipline of Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 (“the Slum Act”). Despite this position, RCF says slum housing societies — including those represented by Mr. Godbole — were allowed to be constructed here, i.e., in situ on CTS No.200. In other words, this area was subject to first, a declaration of the area as a slum, followed by the sanction of a slum rehabilitation scheme with everything that this contemplates, including a table survey of slum structures, then an assessment of eligibility and a preparation of list of eligible persons in form Annexure-II and then construction of rehab tenements for the erstwhile slum dwellers, as also free-sale buildings as an incentive to Dr. Sathe’s clients.

6. It is in this context that RCF seeks the following reliefs (as amended) :

    “a. That this Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, to call for the records of the Petitioner’s case and to go into the legality and propriety thereof and to quash and or set aside the orders passed by and the permissions granted by the Respondents Nos. 1 to 3 to the Respondent Nos. 4 to 12 Societies and to the Respondents Nos. 13 to 15 including the Commencement Certificate dated 14th October 2015 granted to the Respondent Nos. 13 to 15 by Respondent No.1.

b. That this Hon’ble High Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus to direct the Respondent Nos. 1 to 3 not to grant any permission, NOC/LOI to Respondent Nos. 4 to 12 Societies and to the Respondent Nos. 13 to 15 including any Commencement Certificate for development/redevelopment of CTS No.200 under any proposed or approved SRA Scheme.

c. That this Hon’ble High Court be pleased to issue a Writ of Prohibition or a Writ in the nature of Prohibition, prohibiting the Respondent Nos. 1 to 3 from granting any permission to Respondent Nos. 4 to 12 Societies and the Respondent Nos. 13 to 15 for development/re-development of CTS No.200 under any proposed or approved SRA Scheme including the Commencement Certificate dated 1

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