SHIVAJI KRISHNA ZUNJARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE, returnable forthwith. Counsel appearing on behalf of the respondents waive service. By consent taken up for hearing and final disposal.

(2.) BOTH these petitions are directed against an order passed by the Slum rehabilitation Authority on 8th April, 2004, holding that the petitioners were ineligible to participate in a Slum Rehabilitation Scheme. In the circumstances, notices have been issued to the petitioners to vacate the premises. In order to appreciate the controversy which arises in these proceedings, it would at the very outset be instructive to advert to the provisions of the Development Control Regulations for Greater Mumbai, more particularly, Regulation 33 (10 ). By a notification dated 15th October, 1997, in exercise of powers conferred by sub-section (2) of section 37 of the Maharashtra Regional Town Planning Act, 1966, the State Government sanctioned certain modifications in development Control Regulation 33 (10) read with Appendix IV thereto. Clause 1 defines the eligibility for participating in a redevelopment scheme and provides as follows;

(3.) ). From these provisions it is clear that the primary condition which is stipulated for eligibility to participate in a redevelopment scheme is that the name of the inhabitant of a structure situated in a slum must appear in the electoral roll prepared with reference to 1st January, 1995, or a date prior thereto. Secondly, it is necessary that the inhabitant must reside in the structure. Thirdly, only the actual occupants of hutments are eligible and, the right of structure owner other than the actual occupant must give way to the right of the occupant even if the name of the owner of the structure is shown in the electoral roll. The owner of the structure, it has been clearly specified, shall have no right whatsoever to the reconstructed tenement against that structure. Clause 1. 5 of Appendix IV then provides as follows: "1. 5 A certified extract of the relevant electoral roll shall be considered adequate evidence to establish the eligibility of a person provided he is found residing in the structure. This is to avoid the possibility of persons who have left structure coming back to claim free tenement under the scheme even though they have in the normal course left the slum and gone away into a proper non-slum or area or out of Brihan Mumbai. If hutment dwellers are found resident in the structure, but the names are on the electoral roll on or prior to 1st January, 1995 at another slum/pavement site in Brihan Mumbai, they shall be considered eligible but only at the place of present residence. In Case of doubt or dispute, the decision of the Competent Authority to be appointed by the government in Housing and Special Assistance Department shall be final and binding on all the parties concerned. " (emphasis supplied ). Finally, it would be necessary to refer to Clause 1. 12, in that it provides an important condition which has a bearing on the present case: "1. 12. Automatic cancellation of Vacant Land Tenure-If any land or part of any land on which slum is located is under Vacant Land Tenure the said tenure/lease created by Brihan Mumbai Municipal Corporation or municipal Commissioner shall stand automatically terminated as soon as a slum rehabilitation scheme, which is a public purpose, on such land is prepared and submitted for approval to the Slum Rehabilitation authority. Any arrears of dues to be collected by Brihan Mumbai Municipal Corporation shall not be linked to the issue of any certificate or noc relating to the Slum Rehabilitation Project. " constitutional imperatives