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Judgment
A.K. Menon, J.—Writ Petition no. 1236 of 2011 and Writ Petition 2370 of 2012 can be conveniently disposed by this common Order. Petition no. 1236 is filed by the Petitioners for quashing and setting aside the impugned order dated 2nd May, 2011 passed by the Hon''ble Minister of State for Revenue, State of Maharashtra in Revision Application No. LCS-2609/Appeal/Case No. 194J-3. The facts in brief are as follows:-
Petitioner No. 1 is a Co-operative Housing Society registered under the Maharashtra Co-operative Housing Societies Act of Slum Dwellers residing on plot bearing CTS No. 629 of Bandra Village, Mumbai. Petitioner No. 1 had resolved to redevelop Plot bearing CTS No. 629 (part), Bandra (East), Mumbai ("Petitioner''s Plot"). Petitioner No. 2 is the developer appointed by Petitioner No. 1 for redevelopment of the property under the provisions of amended Development Control Regulations 33(10). Petitioner No. 2 has implemented the Slum Rehabilitation Scheme on behalf of Petitioner No. 1 and all the eligible slum dwellers/members of petitioner No. 1 society have been rehabilitated by allotting them permanent alternate accommodation by Petitioner Society. The Respondents 1 to 3 are the State of Maharashtra, Minister for State for Revenue and the Collector respectively. Respondent no. 4 is the Slum Rehabilitation Authority.
By the impugned order, Respondent No. 2 has allowed a Revision Application by Respondent no. 5 viz. Bandra Arunoday Cooperative Housing Organization and has set aside an Order dated 14th October, 2009 issued by the Additional Commissioner, Konkan Division and also an Order of District Collector, Mumbai Suburb dated 31st October, 2008 and 3rd June, 2009.
Plot bearing no. CTS No. 341 (part) Bandra (E), Mumbai is adjacent to Petitioners Plot, is admeasuring 2631.75 sq. mtrs. was allotted to Respondent no. 5 on 19/12/1983 ("Respondent''s Plot") on "as is where is" basis and at the time of been encroached upon by about 10 slum dwellers. The Additional Collector (Encroachment) as well as Government of Maharashtra had directed Respondent No. 5 Society to rehabilitate all the said 10 slum dwellers who had encroached upon the Respondents Plot.
It seems the Respondent no. 5 vide Resolution dated 8th July, 2006 decided to redevelop the portion admeasuring 307.10 sq. mtrs. which was actually occupied by the 10 slum dwellers out of the total area admeasuring 2631.75 sq. mtrs. Thereafter, it appears that by a tripartite agreement dated 20th September, 2006 between Respondent No. 5 society and the Petitioner no. 1, it was agreed to jointly develop the portion of adjacent property admeasuring 307.10 sq. mtrs. The Additional Collector (Encroachment) meanwhile, submitted a supplementary Annexure II on 5th February, 2007 stating that there were 13 slum dwellers residing on the Respondents Plot and occupying the area admeasuring 290.50 sq. mtrs. (as against 370.10 Sq. metres) and out of them 11 slum dwellers were shown as eligible while the remaining two were shown as ineligible under the SRA scheme.
The Petitioners states that on the basis of Annexure-II, the Petitioners had applied for revised LOI in respect of the area admeasuring 290.50 sq. mtrs. even though Respondent No. 5 agreed to hand over area admeasuring 307 sq.mtrs. The Managing Committee of Respondent No. 5 society then purported to cancel/withdraw the Resolution dated 8th July, 2006 and passed a new Resolution dated 5th June, 2008. The agreement dated 20th September, 2006 came to be canceled. It appears that thereafter on 28th September, 2008, the Managing Committee once again decided to implement the SRA scheme along with the Petitioner no. 1 on the adjacent property and passed Resolution No. 3 whereby passed further resolution in respect of 290.50 sq. mtrs.
By order dated 31st October, 2008, the Collector, Mumbai Suburban District decided to resume the area of 290.5 sq. mtrs. land. in order to implement a Slum Rehabilitation Scheme and rehabilitate eligible Slum dwellers. This Order was challenged by the Petitioners by filing an appeal bearing No. 276/2009 under Section 247 of the Maharashtra Land Revenue Code, 1966 and after hearing the parties, the appeal was rejected on 14th October, 2009 confirming the order passed by the Collector resuming the land. It further appears that 3rd June, 2009 the Review Petition No. 11/3A/A-851 filed by Respondent No. 5, was rejected by the Collector and order of resuming of land was confirmed. The Collector then resumed the land and demolished the structures occupied by the slum dwellers. Petitioner No. 2 commenced and completed construction of a free sale Building upon the portion admeasuring 290.50 sq. mtrs.
Respondent No. 5, meanwhile filed a Revision Application before the Hon''ble Revenue Minister, State of Maharashtra, Mantralaya, Mumbai and Application bearing No. 115/2010 before the High Power Committee challenging the SRS. On 21st May, 2011 the High Power Committee dismissed the application. During the pendency of the Revision Application, the Petitioners filed yet another Writ Petition No. 1020 of 2010 in this Court praying that Respondent No. 4 SRA be directed to implement the order of the Collector dated 12th March, 2010 by which work carried out by Petitioner No. 2 on adjacent property was directed to be stopped.
The said petition was disposed of on 6th September, 2010 whereby the Revision was directed to be disposed of expeditiously and within two months. It is stated that the Revision Application was heard by then Revenue Minister, however, before an order was passed, a new incumbent assumed office and the matter came up before the new Minister. The matter was not personally heard by the said new Minister who apparently directed parties to file Written Submissions if they so desired. Respondent No. 5 then filed Writ Petition (Lod) No. 757 of 2011 with a limited prayer to direct the Revenue Minister to hear the Revision application.
This Court by order dated 2nd May, 2011 recorded a statement of learned A.G.P. for the State that the Revision Application would be disposed of within four weeks. The Petitioner no. 2 then filed a detailed Written Submission on 11/5/2011. On 3rd June, 2011 the Petitioners were surprised to receive the impugned order dated 2nd May, 2011 allowing the Revision application and setting aside the order of the order of the Additional Commissioner, Konkan Division resuming the land admeasuring 295.50 sq. mtrs.
From the impugned order, it appears that the Written Submission have not been considered at all and the Order came to be passed without personally hearing the Petitioners. The Petitioner No. 2 had meanwhile constructed a 10 floor building on the portion of land admeasuring 290.5 sq. mtrs. and third party interest was created by the petitioners. The Petitioner therefore, challenges the order passed by the Revenue Minister in respect of the 290.50 sq. mtrs.
Mr. V.B. Latke, Undersecretary, Revenue & Forest Department, Mantralaya, Mumbai has filed an affidavit in reply dated 7th October, 2011 to this petition wherein the contents of the petition are generally denied. It is material to note that there is no denial of contention of the petitioners that no opportunity of hearing had been granted by the 2nd Respondent and that the Revision Application had been heard by the Predecessor of the 2nd Respondent and that the 2nd Respondent while passing the Impugned order has not even considered the written submissions given by the Petitioners.
An affidavit in Re-joinder has been filed by one Chetan Bhadra, on behalf of the Petitioner No. 2, who is the Developer. Petitioner No. 2 states that Respondent No. 5 and Petitioner has constructed a building on the suit property by following due process of law and by obtaining necessary permission i.e. LOI, IOA, CC, etc. from the concerned authorities and also paid premium of Rs. 15,16,410/-, Rs. 9,47,800/- and Rs. 13,26,860/- in respect of the suit land. It is stated that the building has been completed upto 10th floor and third party rights are said to have been created. These statements have not been controverted. In any event, a perusal of the record that Respondent No. 2 had not granted a personal hearing and appears to have proceeded on the basis of hearing conducted by his predecessor The impugned order is also assailed on the ground that it appears to have been back dated to 2/5/2011, the date when the matter was before this Court.
On the other hand, Respondent No. 5 submits that the orders dated 31st October, 2008 and 3rd June, 2009 contemplate the resumption of land and vesting the said land with the Government. The Petitioners have not challenged the said order. Moreover, the Petitioners were heard while passing the order under Section 258 of the M.L.R. Code on 3rd June, 2009.
Writ Petition No. 2370 of 2012
In this Petition filed by Respondent No. 5 (in Writ Petition 1236 of 2011), the Petitioner challenges the order dated 21st May, 2011 passed by the High Power Committee, Government of Maharashtra rejecting the said Petitioner plea for (a) cancelling the LOI issued to Petitioner no. 2 in Petition 1236, (b) exclusion of the are of 290.5 Sq. Metres from the Slum Redevelopment Scheme and (c) restraining the Respondents in the above Petition from carrying out any further construction. Petitioner No. 2 M/s. Sai Enterprises in Writ Petition No. 1236 of 2011, who has constructed the building, is not a party to Writ Petition No. 2370 of 2012. Prayers seeking restraint on construction, it appears will not survive in view of the uncontroverted statement of Petitioner No. 2 in the Petition no. 1236 that (a) construction has been completed upto 10th floor, (b) third party rights have been created and (c) Occupation certificate has been issued in respect of the constructed premises.
As far as the impugned Order in Petition no. 2370 i.e. the decision of the High Power Committee is concerned, the same appears to have been passed after opportunity of hearing was given to the Petitioner. Apart from the bare statement that notice was sent to their Advocates and that they were unaware of the hearing, there is no material that supports the petitioner''s contention. Admittedly, hearing of the application was on 20th November, 2010. Notice to the effect was sent to their Advocate on 5th November, 2010. The fact remains that on 19th November, 2010 an application was made by the Petitioner for adjournment of the hearing of which they had notice. Thereafter, a fresh date was fixed on 24th December, 2010 and once again notice was issued on 20th December, 2010.
The Petitioner contends that notice dated 20th November, 2010 was received on 21st November, 2010 and the next notice dated 20th December, 2010 was not served upon the said Petitioner. Having applied for an adjournment on 19th November, 2010, the Petitioner was aware of the fact that the High Power Committee had issued a notice for hearing pursuant to which a hearing was fixed on 21st December, 2010.
The Petitioner has also not produced any material to support the contention that their Advocates did not receive notice or that their advocates did not communicate the contents of the notice to them. There is no explanation whatsoever as to why this Petitioner made no efforts to ascertain the status of hearing between 19th November, 2010 till September, 2011. No application was made for ad-interim relief in the Petition no. 2370 although the petition was listed on 13th January, 2012.
A personal hearing ought to been granted by Respondent no. 2. In the case Automotive Tyre Manufacturers Association Vs. The Designated Authority and Others, , the Apex Court observed that a personal hearing enables the authority to observe demeanor of the parties and clear doubts during the course of hearing. If one person hears and another decides, a personal hearing becomes an empty formality. The Court further observed that even written arguments are no substitute for oral hearing. Giving a personal hearing before a final order is passed is essential for ensuring compliance with basic principle of Audi alteram partem. In the present case, one Minister heard the application and his successor passed the order. Such an order does not comply with the principles of natural justice and, therefore, liable to be set aside. As far as the developer i.e. Petitioner No. 2 in Petition no. 1236 is concerned it is not is dispute that he has been allowed to construct the building after following due process and obtaining necessary permissions. For the reasons aforestated, the impugned dated 2nd May, 2011 in Writ Petition No. 1236 of 2011 is, therefore, liable to be quashed and set aside. Rule is made absolute in terms of prayer clause (b) in Writ Petition No. 1236 of 2011. No case is made out for interference in Writ Petition No. 2370 of 2012 and the same is dismissed. There will be no Order as to costs.