MUNICIPAL COMMISSIONER, MUNICIPAL CORPORATION OF GREATER MUMBAI AND ORS.versusPANNA MAHESH CHANDRA DAVE AND ANR.

                         [2020] 5 S.C.R. 59                             59


        MUNICIPAL COMMISSIONER, MUNICIPAL                               A
      CORPORATION OF GREATER MUMBAI AND ORS.
                                 v.
        PANNA MAHESH CHANDRA DAVE AND ANR.
           (Special Leave Petition (C) No. 18065 of 2018)               B
                        JANUARY 31, 2020
            [N. V. RAMANA, VINEET SARAN AND
                V. RAMASUBRAMANIAN, JJ.]
      Municipalities:
                                                                        C
       Demolition of Chawl – By Municipal Corporation – Writ
Petitions by one land-owner and 11 tenants – High Court directed
allotment of alternative sites to the tenants and directed
consideration of TDR to the land-owner – Appeal to Supreme Court
– Held: Municipal Corporation having conceded before High
                                                                        D
Court to grant TDR to the land-owner, should not have come in
appeal – In respect of 7 tenants, the Corporation has agreed to
give alternate sites – So far as the remaining 4 tenants are
concerned, direction of the High Court is not liable to be interfered
with – Bombay Municipal Corporation Act.
      Dismissing the petitions, the Court                               E

      HELD: 1. In so far as persons claiming to be the owners
of the land are concerned, the Municipal Corporation itself had
conceded before the High Court that they were willing to offer
TDR. After having stated so, the Municipal Corporation ought
not to have come up with a special leave petition in respect of         F
the land-owners. [Paras 15 and 16] [68-E-F; 69-B-C]
      2.In so far as the eleven tenants are concerned, the
Corporation agreed both before the High Court and before this
Court that four of them are entitled to alternate accommodation.
Therefore, the special leave petitions filed in respect of those        G
four have also been disposed of by the Order dated 05.12.2018.
[Para 17] [69-C-D]
     3. In the affidavit of objections filed to the Report of the
High Court Legal Services Committee, the Corporation has
conceded that three out of the remaining seven tenants are also         H
                               59
60            SUPREME COURT REPORTS                         [2020] 5 S.C.R.


A    eligible. Therefore, ultimately the dispute has boiled down only
     to four tenants. [Para 18] [69-E]
           4. The High Court has recorded a finding of fact that the
     Municipal Corporation demolished the superstructures and took
     possession in a high handed manner. The Legal Services
B    Committee has recorded a finding that the superstructures were
     in existence from a period prior to 1961. These findings of fact
     cannot be interfered with by this Court in a special leave petition
     under Article 136 of the Constitution of India, unless the findings
     shock the conscience of the Court. The findings of the High
     court are not perverse. Therefore, there is absolutely no grounds
C    to interfere with the judgment of the High Court. [Para 19] [69-
     D-G]
            CIVIL APPELLATE JURISDICTION : Special Leave Petition
     (Civil) No. 18065 of 2018.
D          From the Judgment and Order dated 16.04.2018 of the High
     Court of Judicature at Bombay in Writ Petition (L) No. 3085 of 2017.
           With
          Special Leave Petition (Civil) No. 18212, 18289, 18399, 18599,
     18336, 18376, 18210 of 2018.
E
           Shekhar Naphade, Sr. Adv., Mrs. Suchitra Atul Chitale, Ms. Tanvi
     Kakar, Ansh Pandey, Mrs. Preeti Purandare, Advs. for the Petitioners.
            Siddharth Bhatnagar, Sr. Adv., Ankit Yadav, Aditya Sidhra,
     Nirnimesh Dube, Shashibhushan P. Adgaonkar, Rahul Chitnis, Sachin
     Patil, Advs. for the Respondents.
F
           The Judgment of the Court was delivered by
           V. RAMASUBRAMANIAN, J.
            1. Challenging a common order passed by the High Court of
     Judicature at Bombay in a batch of twelve writ petitions, granting the
G    relief of allotment of alternative site to the petitioners in eleven writ
     petitions (tenants) and granting the relief of consideration of a request
     for grant of TDR (Transferable Development Rights)/DRC
     (Development Right Certificate) to the petitioners in one writ petition
     (owners of the land), the Municipal Corporation of Bombay has come
H    up with the present special leave petitions.
 MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.                           61
 PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]

      2. We have heard Mr. Shekhar Naphade, learned senior counsel             A
appearing for the Municipal Corporation of Bombay and Mr. Siddharth
Bhatnagar, learned senior counsel appearing for the contesting private
respondents.
       3. The private respondents herein filed writ petitions on the file
of the High Court of Judicature at Bombay challenging the demolition           B
of the superstructures put up by them on a plot of land bearing CTS
Nos.4009/1 to 4009/7 at Village Dahisar, Taluka Borivali, MSD Mumbai
400068. The case of the respondents 1 to 3 in Special Leave Petition
(C) No.18376 of 2018 (who were the petitioners in Writ Petition
No.3090 of 2017) was a little different from the case of the petitioners
in the other 11 writ petitions.                                                C
        4. The case of the petitioners in Writ Petition No.3090 of 2017
(Respondents 1 to 3 in Special Leave Petition (C) No.18376 of
2018), was that the aforesaid land originally belonged to one Mr.
Dattatray Mahadev Angare as per the City Survey Record; that upon
the death of the original owner, his wife Sushila was recorded as the          D
owner in the revenue records in the year 1983; that upon Sushila’s death
on 15.03.1995, the names of her legal heirs, including the name of her
son Mr. Suresh Angare were entered in the revenue record; that the
said Suresh Angare died on 31.01.2008 leaving behind him surviving,
his widow and two sons, who were the petitioners in Writ Petition              E
No.3090 of 2017; that those legal heirs thus became the owners of the
aforesaid plot and the superstructures standing thereon; that the family
of Dattatray Mahadev Angare had put up 11 structures, in the year
1955, on the said plot of land and the same was named as Jeevan Ganga
Chawl; that those structures were let out to tenants; that in the year
1961, the superstructures were also assessed by the Municipal                  F
Corporation; that the owners were regular in paying tax to the Municipal
Corporation, from the year 1961; that in view of the said assessment,
the Chawl became a protected structure within the datum line of year
1962; that therefore the Chawl cannot be demolished or removed
without providing permanent alternative accommodation to the tenants;          G
that vide a notice dated 13.02.1979 issued under Section 351 of the
Bombay Municipal Corporation Act, the Corporation Authorities claimed
that 3 of those structures were illegally constructed and were liable to
be demolished; that challenging the said notice, Sushila Dattatray Angare
filed a civil suit and obtained an injunction against demolition; that again
the Municipal Corporation issued notice dated 23.06.2008 to four tenants       H
62            SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A    on the ground that Bharucha Road was to be widened and that those
     four tenants will be allotted alternate accommodation at Anand Nagar
     Municipal Market; that those four tenants expressed unwillingness to
     accept the alternative accommodation at that point of time; that
     thereafter Municipal Corporation again issued a notice dated 02.07.2016
     to those four tenants offering a fresh allotment in the Municipal Retail
B
     Market; that subsequently the Corporation issued proceedings dated
     11.04.2017 cancelling those allotments on the ground that those four
     allottees did not take possession; that again on 11.10.2017, the
     Corporation issued a fresh notice to those four tenants to vacate the
     premises within seven days; that on 26.10.2017, the officials of the
C    Municipal Corporation suddenly landed up in the premises along with a
     police force from Dahisar Police Station and started demolishing the
     superstructures in which the tenants were carrying on business; that
     thereafter the officials of the Corporation forcibly removed all the eleven
     tenants from the premises and demolished their structures; that the
     officials of the Corporation did not even permit the tenants to remove
D
     their valuables including cash, furniture and fixtures from the premises
     and that therefore after issuing a legal notice, the writ petitioners were
     conceded to approach the High Court.
            5. While what is stated above, was the case of the petitioners in
     W.P. No. 3090 of 2017, the case of the petitioners in the other writ
E    petitions was that they are tenants in respect of the 11 structures put
     up in the premises and that they have been forcibly evicted and the
     structures demolished without following due process of law.
            6. The Corporation filed separate affidavits in reply to each of
     the writ petitions contending inter alia that Padmakar Javle Road, which
F    is parallel to Dahisar Railway Station at East, provides the only access
     to the commuters approaching the Railway station; that the width of
     the road was only 5 meters; that considering the narrowness of the
     road and considering the need to allow access to fire brigade and
     ambulance in case of any untoward incident, the Municipal
G    Commissioner, by his proceeding dated 15.01.1974 prescribed a Regular
     Line for the said Padmakar Javle Road upto 13.40 meters, in terms of
     the provisions of Section 297(1) of the Bombay Municipal Corporation
     Act; that when the Corporation took steps for widening the road, a few
     people approached the City Civil Court and those who were found
     eligible were granted alternative premises; that the Municipal Corporation
H    received a letter dated 10.03.2010 from the Deputy Collector and
 MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.                       63
 PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]

Competent Authority Borivali stating that the ownership of the land        A
affected by the road widening, vested with State Government; that out
of the 11 structures demolished by the Corporation, 4 were found to
belong to persons who were eligible for alternative accommodation; that
however even those persons had approached the Court by filing writ
petitions; that those four persons did not accept the alternative
                                                                           B
accommodation despite repeated offers and, hence, the offer had to
be withdrawn; that out of the remaining structures, 4 were found only
to be illegal shanties and the names of persons claiming to be the
owners of these shanties, are not reflected in Annexure II prepared
by the Deputy Collector; that the Corporation was willing to grant
necessary benefits such as TDR to the original owner of the plot of        C
land which is affected by the road widening scheme; that the first
respondent in Special Leave Petition (C) No.18376 of 2018 attended
the meeting convened in this regard on 11.11.2017, but failed to contact
the office of the Chief Engineer (DP); and that therefore the writ
petitions were liable to be dismissed.
                                                                           D
       7. After considering the pleadings and the contentions advanced
on both sides, the High Court found that it was not even the case of
the Municipal Corporation that they followed due process of law before
demolishing the structures and that the action of the Municipal
Corporation in demolishing the superstructures and taking forceful
possession was high handed. But instead of granting the relief of          E
restitution, the High Court granted one set of reliefs to the persons
claiming to be the owners of the land and another set of reliefs to the
tenants. It is enough to extract the operative portion of the order of
the High Court to show the nature of the reliefs granted. It reads as
follows:                                                                   F
          “(i) It will be open for the petitioners in Writ Petition
               (L) No.3090 of 2017 to make an Application to the
               Municipal Commissioner for grant of TDR
               (Transferable       Development        Rights)/DRC
               (Development Right Certificate) in respect of the           G
               area out of the road widening. If such an Application
               is made, the Municipal Corporation or its
               appropriate authority shall decide the same within
               a period of 60 days from the date of filing of the
               Application. The decision taken thereon shall be
               communicated to the petitioners immediately                 H
64            SUPREME COURT REPORTS                          [2020] 5 S.C.R.


A                   thereafter. We clarify that we have made no
                    adjudication on the title claimed by the said
                    petitioners;
                (ii) As regards the petitioners in all the other Writ
                     Petitions, we direct the Mumbai Municipal
B                    Corporation to allot to the said Petitioners tenements
                     having the size equal to that of their demolished
                     tenements. The premises offered shall be in a vicinity
                     of the demolished premises. The premises shall be
                     such that the same will have a frontage on any of
                     the main road;
C
               (iii) The allotment of the premises shall be made to the
                     said Writ Petitioners as expeditiously as possible and
                     in any event on or before 30 June, 2018;
               (iv) We make it clear that the allotment will have to be
D                   made free of cost. However, it will be open for the
                    Municipal Corporation to impose appropriate terms
                    and conditions;
                (v) The Petitions are disposed of with the aforesaid
                    directions;
E
               (vi) All concerned to act upon an authenticated copy of
                    this order.
            8. Before proceeding further, it must be recorded that the High
     Court was actually convinced to order restitution, but the High Court
F    refrained from doing so only due to the fact that a public road had
     already been constructed on the land. In other words, the High Court
     actually balanced the private interests of the respondents-herein and
     the public interest.
            9. Despite the fact that the High Court merely granted limited
G    reliefs and despite the fact that even according to the Corporation, four
     out of eleven tenants were eligible for alternative accommodation, which
     was in fact offered to them, the Municipal Corporation came up with
     twelve special leave petitions against the common order passed in
     twelve writ petitions. The only substantial questions of law sought to
     be raised by the petitioners were (i) whether the High Court could
H    have overlooked the readiness and willingness on the part of the
 MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.                         65
 PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]

Municipal Corporation to grant the benefit of TDR to the original            A
owner of the plot of land; and (ii) whether the High Court was
right in overlooking the prescription of a Regular Line way back
in the year 1974 for the widening of the road from 5 meters to
13.40 meters.
       10. Though the aforesaid questions would not technically qualify      B
as substantial questions of law of public importance, this Court ordered
notice in the special leave petitions and also granted a stay of operation
of the impugned judgment, on 30.07.2018 when the special leave
petitions came up for hearing.
       11. Subsequently on 05.12.2018 this Court disposed of four special    C
leave petitions which arose out of writ petition Nos.3087, 3089, 3092
and 3095 of 2017, on the short ground that the Municipal Corporation
had itself found the petitioners therein to be eligible for allotment of
alternate accommodation. After so disposing of four out of twelve writ
petitions on 05.12.2018, this Court proceeded to direct the Secretary        D
of the Bombay High Court Legal Services Committee to examine the
relevant records and to submit a report about the eligibility of the other
tenants to alternate accommodation. This order was passed in view of
the stand taken by the Municipal Corporation that the other tenants were
not eligible for alternate accommodation as per the guidelines of the
Mumbai Municipal Corporation. It will be useful to extract the order         E
dated 05.12.2018 passed by this Court as follows:
      “Applications seeking exemption from filing official
      translation of Annexures are allowed.
      Heard the learned Senior counsel appearing for the                     F
      petitioners and the learned counsel appearing for the
      respondents.
      The respondents-herein filed Writ Petitions before the High
      Court of Judicature at Bombay claiming that they are the
      owners of the land and structures which were taken away                G
      by the Mumbai Municipal Corporation for widening of road
      without paying any compensation to them.
      After hearing the parties, the High Court has disposed of
      the Writ Petitions with the following directions which are
      extracted below:-                                                      H
66     SUPREME COURT REPORTS                       [2020] 5 S.C.R.


A         (i) xx xx xx xx
         (ii) As regards the petitioners in all the other Writ
              Petitions, we direct the Mumbai Municipal
              Corporation to allot to the said petitioners tenements
              having the size equal to that of their demolished
B             tenements. The premises offered shall be in the
              vicinity of the demolished premises. The premises
              shall be such that the same will have a frontage on
              any of the main roads;
        (iii) The allotment of the premises shall be made to the
C             said Writ Petitioners as expeditiously as possible and
              in any event on or before 30th June, 2018.
        (iv) We make it clear that the allotment will have to be
             made free of cost. However, it will be open for the
             Municipal Corporation to impose appropriate terms
             and conditions.
D
     The Mumbai Municipal Corporation challenged the
     impugned order of the High Court by way of filing Special
     Leave Petitions before us.
     Mr. Shekhar Naphade, learned Senior counsel appearing for
E    the petitioners submitted that out of eleven respondents, who
     filed Writ Petitions before the High Court, four persons
     namely (i) Shri Bhimsen P. Singh, (ii) Mr. Anil Surajman
     Shukla, (iii) Mr. Muniram Shivpujan Gupta and (iv) Mr.
     Kantilal Girdhar Gandhi are eligible for allotment of
     alternative premises at a suitable place, as per the policy of
F    the Mumbai Municipal Corporation, if they comply the
     conditions imposed by the said Corporation.
     Therefore, Special Leave Petition No.17082/2018, Special
     Leave Petition No.18331/2018, Special Leave Petition
     No.18403/2018 and Special Leave Petition No.18384/2018
G    are disposed of recording the statement made by the learned
     Senior counsel for the petitioners.
     So far as remaining seven respondents are concerned, four
     of them are not eligible as per the guidelines of the Mumbai
     Municipal Corporation and rest of the three are ineligible
H    as per the Slum Rehabilitation Act.
 MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.                         67
 PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]

      However, learned Senior counsel submits that in case those             A
      seven respondents produce relevant material, the Municipal
      Corporation, after examining the material and if it is
      satisfied, they are willing to extend the benefit as per the
      regulations and rules.
      In view of the stand taken by the learned Senior counsel for           B
      the Corporation, we direct the parties to appear before the
      Secretary, Legal Services Authority of the Bombay High
      Court and the said Authority will examine the relevant records
      produced by the petitioners as well as the respondents and
      submit a report before this Court about their eligibility in
      accordance with the guidelines of the State Government as              C
      well as the Municipal Corporation/Slum Development
      Authority.
      We direct the parties to approach the Secretary, Legal
      Services Authority of the Bombay High Court within a week’s
      time from the date of receipt of the order to enable the said          D
      Authority to decide and submit a report expeditiously
      preferably within a period of eight weeks from the date of
      communication of this order. List the other Special Leave
      Petitions after Report is received from the Legal Services
      Authority of the Bombay High Court.”                                   E
       12. Pursuant to the said order, the Secretary of the High Court
Legal Services Committee, Bombay filed a report dated 07.02.2019.
The important findings recorded in the Report of the High Court Legal
Services Committee are (1) that the assessment certificate issued by
the Corporation shows the existence of superstructures from a period         F
prior to 1961 (2) that some of the respondents in the special leave
petitions were issued with notices under Section 3Z(2)(i) of the Slum
Act and that they are eligible for permanent alternative accommodation,
as they have produced electricity bill Gumasta Licence etc. from a
period prior to 1995 while the cut-off date was only 01.01.2000 and
(3) that the other respondents are also eligible for permanent alternative   G
accommodation, as their superstructures were duly assessed in the year
1961 and indisputably, those structures were demolished on 26.10.2017.
       13. The Municipal Corporation has filed an affidavit of objections
to the Report of the High Court Legal Services Committee. It is claimed
in the said affidavit that the respondents did not produce any proof of      H
68             SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A    existence of superstructures prior to the Datum Line of 1962; that the
     shop owners failed to submit any valid, legal proof; that the land under
     reference was not declared as a slum under the Slum Act; that the
     owner of the land Smt. Geeta Angare had not submitted the names of
     the eligible tenants; that out of 11 structures, the occupants of 4
     structures were already found eligible for alternate accommodation; that
B
     out of the remaining 7 structures, 3 have been assessed to tax and that,
     therefore, in addition to the 4 structures declared eligible earlier, 3 more
     may become eligible for alternative accommodation.
            14. Drawing our attention to the various documents and also to
     the Report of the High Court Legal Services Committee, it was
C    strenuously contended by Mr. Shekhar Naphade that the grant of
     alternate accommodation cannot be claimed by the respondents as a
     matter of right, unless they fulfill the parameters fixed by the Municipal
     Corporation and that the ad-hoc identification of parties for the grant
     of alternate accommodation without any supporting documents would
D    create huge disparities. The learned Senior Counsel has also assailed
     the findings of the High Court Legal Services Committee on the ground
     that those findings were not supported by any documentary evidence.
            15. We have carefully considered the contentions of the learned
     senior counsel for the Municipal Corporation. We should point out at
E    the outset that the legal heirs of the original owner of the land were
     the petitioners in one writ petition and eleven persons claiming to be
     the tenants, were the petitioners in the other writ petitions. Insofar as
     persons claiming to be the owners of the land are concerned, the
     Municipal Corporation itself had conceded before the High Court that
     they were willing to offer TDR. In paragraph 15 of the affidavit in reply
F    filed by the Municipal Corporation in Writ Petition No. 3090 of 2017, it
     was stated by the Municipal Corporation as follows:
           “I say that the respondents Nos.2 to 4 are willing to grant
           the necessary benefit such as TDR to the rightful owner of
           the plot of land which is affected by road widening scheme.
G          I say that the petitioner No.1 had contacted the officers at
           R/North Ward as regarding the issuance of TDR. The
           petitioner No.1 had attended the meeting in Asst. Municipal
           Commissioner, R/North office on 11th November, 2017, when
           she was informed that she has to contact the office of Chief
H          Engineer (DP) along with relevant papers. I say that the
 MUNICIPAL COMM, MUNICIPAL CORP OF GREATER MUMBAI v.                              69
 PANNA MAHESH CHANDRA DAVE [V. RAMASUBRAMANIAN, J.]

       petitioner had agreed and given assurance to the respondent                A
       that she will contact the said office for granting her TDR in
       lieu of land being acquired for the purpose of road
       widening. I understand that petitioner No.1 has not
       contacted the office of Chief Engineer (OP) for the reasons
       best known to her.”
                                                                                  B
       16. After having stated so in their affidavit in reply, the Municipal
Corporation ought not to have come up with a special leave petition
even in respect of Writ Petition No.3090 of 2017. In fact one of the
two substantial questions of law sought to be raised, which we have
extracted earlier, also concedes the position taken the Corporation that
the respondents 1 to 3 in Special Leave Petition No.18376 of 2018 are             C
entitled to relief. Therefore, we do not know how and why the
Corporation is blowing hot and cold.
       17. Insofar as those eleven tenants are concerned, the
Corporation agreed both before the High Court and before this Court
that four of them are entitled to alternate accommodation. Therefore,             D
the special leave petitions filed in respect of those four have also been
disposed of by the order dated 05.12.2018.
      18. Therefore, we are left only with seven tenants. In the
affidavit of objections filed to the Report of the High Court Legal
Services Committee, the Corporation has conceded that three out of                E
those seven tenants are also eligible. Therefore, ultimately the dispute
has boiled down only to four tenants.
       19. The High Court has recorded a finding of fact that the
Municipal Corporation demolished the superstructures and took
possession in a high handed manner. The Legal Services Committee                  F
has recorded a finding that the superstructures were in existence from
a period prior to 1961. These findings of fact cannot be interfered with
by this Court in a special leave petition under Article 136 of the
Constitution of India, unless the findings shock our conscience. The
findings of the High court are not perverse. Therefore, we find absolutely        G
no grounds to interfere with the judgment of the High Court. Hence,
the special leave petitions are dismissed. No costs.


Kalpana K. Tripathy                                        Petitions dismissed.

                                                                                  H