Bombay High Court
dgm 1 910-wpl-276-13.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.276 OF 2013
Housing Development and Infrastructure
Ltd. Ltd. (HDIL) and anr. .... Petitioners
vs
State of Maharashtra and ors. .... Respondents
Mr. S.G. Surana for the petitioners.
Mr. M. More, AGP for respondents 1 to 3.
Mr. Girish Uttangale for respondents 4 and 5.
CORAM: MOHIT S. SHAH, C.J.
AND ANOOP V. MOHTA, J.
DATE : March 15, 2013
P.C.:
Learned counsel for the petitioners submits that Government
Resolution dated 2 January 2012 (page 338A) has to be read in the light of
the provisions of Section 3E of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 which reads as under:-
“3E The tenements allotted to the persons under the Slum
Rehabilitation Scheme shall not be transferred by the
allottee thereof by way of sale, gift, exchange, lease or
otherwise for a period of first ten years commencing from
the date of allotment of the tenement. After the expiry of
the said period of ten years, the allottee may, with the
permission of the Slum Rehabilitation Authority, transfer
such tenement in accordance with the prescribed
procedure.”
1/5
::: Downloaded on - 13/05/2013 14:08:06 :::
Bombay High Court
dgm 2 910-wpl-276-13.sxw
2 It is submitted by learned counsel for the petitioners that once a
hutment holder who is found to be eligible and whose name is included in
Annexure II for getting a rehab tenement in Slum Rehabilitation Scheme,
because he is found to be residing in the hut before and on 1 January 1995
he gets a right of allotment of rehab tenement to be constructed under the
Slum Rehabilitation Scheme. It is submitted that accordingly once a
person's name is included in the list of eligible persons in Annexure II, the
prohibition against transfer under Section 3-E will apply to all such eligible
persons whose names are included in Annexure II. It is submitted that the
object of imposing such restriction was to ensure that the persons for whose
benefit the Slum Rehabilitation Scheme is prepared should themselves
occupy the rehab tenements and they should not make profit out of transfer
of such rehab tenements, whether by way of sale, gift, exchange, lease or
otherwise. It is submitted that if the persons whose names are included in
the list of eligible persons in Annexure II are considered as entitled to
transfer their right to get allotment, before the tenements are actually
allotted to them by issuance of allotment letter upon completion of
construction of rehab tenements, it will defeat the very purpose of framing
the Slum Rehabilitation Scheme and the object of enactment of The
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act,
1971.
3 It is further submitted by the learned counsel for the petitioner
that in case the aforesaid interpretation is not accepted, the Government
Resolution dated 2 January 2012 will be contrary to the provisions of
Section 3-E of the Maharashtra Slum Areas (Improvement, Clearance and
2/5
::: Downloaded on - 13/05/2013 14:08:06 :::
Bombay High Court
dgm 3 910-wpl-276-13.sxw
Redevelopment) Act, 1971. It is submitted that executive instructions cannot
override the statutory provisions.
4 The relevant portion of Government Resolution dated 2 January
2012 reads as under :
“1) As per the provisions of the Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act,
1971 the hut structure which is existing on 1/1/1995 and
prior to that date and existing at present will be liable for
protection. Similarly, the hut existing at present after
1/1/1995 decided for some important projects like
MUTC/MUIT/Airport project and Dharavi Project, hut will
also be liable for protection. Whether the hut which has
been transferred is protected hut or not for deciding the
same, the only evidence is the entry of existence of the hut
on the said qualifying date in the concerned voters list will
be acceptable. For that purpose it is also necessary that the
said hut should be in existence at present.
2) The hutment holder who is residing at present
in the original protected tenant existing above qualifying
date will be actually residing minimum prior to one year
then that protected hut can be transferred in his name. For
that purpose for deciding the eligibility of such hutment
holder after verifying his residence in the said hut prior to
minimum one year of such hutment holder should be
verified on any of the evidence prescribed as per
Government Resolution no.SI-1220/C.No.200(1)/SI-1
Housing Department dated 8/11/2001. However, it is
necessary to verify the evidence that the protected tenant is
in the name of original resident of the voters list before the
qualifying date in the matter where the said hut has been
transferred by purchase or any other legal manner to the
present resident. Similarly, it is necessary to submit the
proves/evidences that about the residence of present
resident.
3) It will be necessary for the purpose who is
3/5
::: Downloaded on - 13/05/2013 14:08:06 :::
Bombay High Court
dgm 4 910-wpl-276-13.sxw
getting protected hut transferred to give the undertaking that
there is no other hut or house on rental or ownership basis
in his name or his/ her wife/husband or minor children
within the area of concerned local self Government
institutes like Municipal Corporation/
Municipality/Municipal Council, if any controversy will be
observed in it, transfer should be denied. Similarly,
Competent Authority after collecting the photo pass of the
protected hutment dweller who is selling the hut should
cancel the same and he should be declared disqualified for
getting the benefit of any Slum Rehabilitation/
Redevelopment Scheme.
4) Transfer of only one hut can be made on the
name of the person or family getting the protected hut
transferred.
5) After the transfer of protected hut if original
hutment holder is having photo pass it should be transferred
in the name of the person who came to reside there and
photo pass fee and other arrears be collected from him. If
the person who has come to reside presently got transferred
the hut from original hutment holder / protected tenant or
otherwise from whom he has purchased if he is not having
photo pass while regularizing the transfer, after issuing him
new photo pass, photo pass fees and other fees be recovered
from him.”
(emphasis supplied)
5 Clause (6) of the Government Resolution provides for transfer
fee. The rates for transfer fees depend on the city where the huts are located
and also the use for residential and non residential. For transfer of huts in
Mumbai and in Suburban area, the transfer fee is Rs.40,000/- for residential
use hut and Rs.60,000/- for non residential and joint use hut. The same fees
are prescribed for cities like Thane, Pune, Pimpri Chinchwad and Nagpur.
4/5
::: Downloaded on - 13/05/2013 14:08:07 :::
Bombay High Court
dgm 5 910-wpl-276-13.sxw
6 It is clarified that pendency of this writ petition does not
preclude the Slum Rehabilitation Authority and the concerned Cooperative
Housing Societies of hutment dwellers and/or the developer who are
implementing the Slum Rehabilitation Scheme, from allotting rehab
tenements constructed by the petitioners to those persons whose names were
shown as eligible persons in Annexure II for the concerned SRA Project,
about whose eligibility there is no dispute and who have not transferred
their right to allotment of rehab tenements after inclusion of their names as
eligible persons in Annexure II.
7 The petitioners shall also supply the official translation of the
Government Resolution dated 2 January 2012 within two weeks from today.
Let all the respondents file their affidavits in reply within three weeks.
8 The learned counsel for the petitioners will be at liberty to file
praecipe for listing of connected matters.
Stand over to 15 April 2013.
CHIEF JUSTICE
(ANOOP V. MOHTA, J.)
5/5
::: Downloaded on - 13/05/2013 14:08:07 :::
No comments:
Post a Comment