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B.P. Colabawalla, J—In both Writ Petitions, Petitioner No. 1 is a Co-operative Housing Society and Petitioner Nos. 2 to 8 are members thereof and occupants of the property bearing C. T. S No. 190/1 to 8 at village - Ghatkopar, Taluka - Kurla, Mumbai Suburban District, admeasuring approximately 958.75 sq. mtrs. (hereinafter referred to as the "said property"). Writ Petition (L) No. 2605 of 2015 has been filed under Article 226 of the Constitution of India seeking a direction against the State Government to forthwith constitute and notify the Grievance Redressal Committee (GRC), as defined under Section 2(c-c) read with Section 35(1A) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as "Slum Act"). The Petitioners have also prayed that the interim protection granted to the Petitioners be extended till the constitution of the GRC and till its Appeal before it is taken for admission. The alternative prayer sought is for a declaration that the said property is not a "Census Slum Colony" within the meaning of "Census" under Regulation 33(10) of the Development Control Regulation, 1991 ("DCR, 1991"). As a consequence, challenge is also laid to the common eviction order dated 11th June, 2015 passed by Respondent No. 3 under Sections 33 and 38 of the Slum Act as well as the order dated 10th August, 2015 passed in Appeal from the common order of eviction.
As far as Writ Petition 2042 of 2015 is concerned, the Petitioners have (i) challenged the letter dated 22nd May, 2015 (Exh. B. thereto) issued by Respondent No. 3 [Dy. C.O. - EM], and (ii) sought a direction to the Mumbai Housing and Area Development Board to execute in favour of the Petitioners, a conveyance deed of the superstructures on the said property, as well as a lease agreement in relation to the said property. Since the Petitioners have filed both Writ Petitions, and the facts are also the same, by consent of parties, both Writ Petitions are being disposed of by this common order and judgment.
Petitioner No. 1 is a Society having Room Nos. 1 to 8 situated on land bearing C. T.S. No. 190/1 to 8 of village -Ghatkopar, Taluka-Kurla, MSD plus tit-bit land with a total area admeasuring approximately 958.75 sq. mtrs. Room Nos. 1 to 8 situate on the said property are occupied by Petitioner Nos. 2 to 8 who are members of the 1st Petitioner society. According to the Petitioners, the said property and admeasuring 958.75 sq.mtrs., was allotted to them by Respondent No. 1 along with eight rooms situated on it. According to the Petitioners, Respondent No. 1 had constructed eight rooms on the said property prior to 1965, and hence, the same are authorized constructions. In a nutshell, it is the case of the Petitioners that presently Respondent Nos. 4 - society and 5 - developer are implementing a Slum Rehabilitation Scheme under modified DCR 33(10) on a plot land belonging to Respondent No. 1 bearing C. T.S. No. 190/9. According to the Petitioners, they are neither slum dwellers nor encroachers, and yet, their names/premises have been fraudulently included in the list of Annexure-II in the Slum Rehabilitation Scheme of the neighbouring Respondent No. 4 - society. According to the Petitioners, their premises are not a part of C. T. S No. 190/9(Pt) on which the redevelopment scheme is going on. In this regard, the Petitioners have approached this Court by filing Writ Petition (L) No. 1416 of 2015 challenging their wrongful inclusion in Annexure-II dated 14th June, 2010 and Letter of Intent (LOI) dated 6th February, 2009 issued by the S. R.A. This Writ Petition is pending before another Bench of this Court.
On the basis that the Petitioners find place in Annexure-II, the Competent Authority (Respondent No. 3) passed the impugned eviction order dated 11th June, 2015 under Sections 33 and 38 of the Slum Act for the purposes of implementing the Slum Rehabilitation Scheme. This eviction order dated 11th June, 2015 was confirmed by the Appellate Authority (Respondent No. 2) vide its order dated 10th August, 2015 in Appeal No. 61 of 2015. It is in these circumstances that the Petitioners have approached this Court, inter alia, challenging the said orders.
In this background, the thrust of Mr. Anturkar''s argument, learned senior counsel appearing on behalf of the Petitioners, is that the said property of the Petitioners is not a "censused slum" and neither has it been declared as a "slum" and therefore DCR 33(10) cannot apply to the facts of this case. If this be the case, then, there is no question of including the names of the Petitioners in Annexure-II, is the submission. Consequently, the eviction order passed by Respondent No. 3 and which was confirmed by Respondent No. 2, are contrary to law and ought to be set aside, is the submission of Mr. Anturkar.
On the other hand, Mr. Thorat, learned senior counsel appearing on behalf of Respondent No. 5 - Developer and Ms. Wandrewalla appearing on behalf of Respondent No. 4 - society, submitted that this Writ Petition, is yet another attempt by the Petitioners to thwart the Slum Rehabilitation Scheme. They submitted that at the behest of these eight Petitioners, the Slum Rehabilitation Scheme is sought to be thwarted at every juncture and is prejudicing over 200 slum dwellers. Mr. Thorat, was at pains to point out that the Petitioners have indulged in a barrage of litigation to ensure that the Slum Rehabilitation Scheme is some how scuttled and not implemented. Mr. Thorat pointed out to us the barrage of litigations that have been instituted by the Petitioners without any success. This conduct of the Petitioners would indicate that they are espousing the cause of a rival builder, was the submission of Mr. Thorat. As far as the contention of Mr. Anturkar that the said property is not a "censused slum", and therefore, DCR 33(10), and consequently Annexure-II would not apply, Mr. Thorat submitted that this issue stands concluded by an order dated 1st December, 2014 of a learned single Judge of this Court in First Appeal No. 382 of 2012 between the same parties. He submitted that this order dated 1st December, 2014 was challenged before the Supreme Court without any success. After this, even a Review Petition, seeking a review of the order dated 1st December 2014, was dismissed by this Court imposing costs on the Petitioners. He, therefore, submitted that as far as this issue is concerned, it has now attained finality and it was not open for the Petitioners to canvas the same once again before this Court.
We have heard the learned counsel at length and perused the papers and proceedings in these Writ Petitions as well as the orders/letter impugned therein. On the issue that the said property is not a "censused slum", we find considerable force in the arguments of Mr. Thorat that this issue has been concluded and attained finality. On 17th September, 2010 the Petitioners filed a suit in City Civil Court, Bombay ("BCCC") being Suit No. 2150 of 2010 in which a declaration was sought that the LOI issued in favour of Respondent No. 4 - society and Respondent No. 5 - developer, is illegal and bad in law. The Petitioners also sought deletion of their names from Annexure-II and for removal of the said property from the list in Annexure-III. This Suit came to be rejected by the BCCC under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that the BCCC had no jurisdiction to entertain the suit. The reason why the BCCC came to the aforesaid conclusion was inter alia that Section 42 of the Slum Act prohibited a Civil Court from entertaining any matter in respect of which the Appellate Authority, Competent Authority, Grievance Redressal Committee or the Tribunal was empowered by or under the Slum Act, to determine. Being aggrieved by this order of the BCCC, the Petitioners preferred First Appeal No. 382 of 2012. Whilst dismissing this First Appeal, this Court at paragraph 15 of its order dated 1st December, 2014 observed as under:-
"15). It has been the contention of the appellants that, since none of the plots of land under reference are declared or notified as "slum" or "census slum areas", the provisions of the Slum Act, the bar under Section 42 thereof, shall not apply. Mr. Thorat, the learned Senior Counsel appearing for respondent No. 6 submits that, the argument of the appellants is completely misplaced. He draws distinction between a general scheme of redevelopment under Section 3-B of the Slum Act and the scheme under Regulation 33(10) of D.C. Regulations. He refers to the D.C. Regulation-33 for the purpose. The relevant part thereof i.e. Regulation 33(1)(II)(i) reads as under :-
"(i) For this purpose, slums shall mean those censused, or declared and notified, in the past or hereafter under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. Slums shall also mean areas/pavement stretches hereafter notified as Slum Rehabilitation Areas."
He also relies upon three decisions of Division Bench of our High Court in (i) Amba Chawl Wadi Rahiwasi Seva Sangh, registered society Vs. Municipal Corporation of Greater Mumbai and Others, (2005) 3 ALLMR 889 , (ii) Om-Sai Darshan Cooperative Housing Society (Proposed) and Chandrakant Ramchandra Thakur Vs. The State of Maharashtra, SRA Section and Others, (2007) 1 BomCR 476 , and (iii) Mr. Balasaheb Arjun Torbole and Others Vs. The Administrator and the Divisional Commissioner, Konkan Division and Others, (2011) 1 BomCR 304 : (2010) 112 BOMLR 4224 . It had been contended before the Division Bench that, provisions of the Slum Act cannot be invoked unless there is a declaration made under Section 4, that the land is a slum area. The Division Benches found the submission without merits.
16). In Amba Chawl''s case (supra), our High Court held that,
"It is very clearly mentioned in the Regulation 33 quoted above that a slum under the Regulation 33 means (I) which is already censused prior to coming into force of Slums Act, 1971; (2) Slums declared and notified as such under any other appropriate law which can include the M.R.T.P. Act (3) Slum declared and notified under the provisions of the Slums Act, 1971. There is nothing in this regulation therefore to infer that after coming into force of the Slums Act, 1971 all other statutory provisions or regulations or rules would stand abrogated in so far as declaration and development of slums is concerned."
17). The same view was taken with further elaboration in Om-Sai Darshan''s case (supra), in following manner:
"19. A General Scheme under section 3-B of the Slum Act can be framed either by the Government or by SRA with the prior approval of the State Government. However, the scheme under clause 33(10) is to be approved in individual cases by the SRA. Clause (II) of Annexure to the said Regulation provides that for the purpose of Regulation 33(10), a slum means that area which is either censused or one which is declared and notified under the Slum Act. It provides that the slum shall also mean areas pavement stretches hereafter notified as slum rehabilitation areas. The clause provides that if any area fulfills conditions laid down in section 4 of the Slum Act to qualify as a slum area and has been either censused or declared and notified as slum, it shall be deemed to be and treated as Slum Rehabilitation Area. The said clause also provides that censused means those slums located on lands belonging to Government, any undertaking of Government, or to Brihan Mumbai Municipal Corporation and incorporated in the records of the land owning authority as having been censused in 1976, 1980 or 1985 or prior to 1st January, 1995. Thus, for the purpose of scheme under Regulation 33(10), the following areas are Slum Rehabilitation Areas; (a) any area which fulfills the conditions laid down in section 4 of the Slum Act which is declared and notified as such and (b) slum rehabilitation area declared as such by the Slum Rehabilitation Authority fulfilling the conditions laid down in section 4of the Slum Act to qualify as slum area and/or required for implementation of any slum rehabilitation project. Regulation 33(10 contemplates that there can be redevelopment of slums including pavements. The slums are defined by clause II. The slums mean either censused slums or slums declared and notified as such under the Slum Act. Clause II also defines the word censused which means slums located on lands belonging to Government, any undertaking of the Government or Mumbai Municipal Corporation and incorporated in records of the land owning authority as having been censused in 1976, 1980 or 1985 or prior to 1st January, 1985."
"20. On plain reading of the Annexure to Regulation 33(10) it is obvious that for sanction of a scheme governed by the said Regulation in respect of a parcel of land, it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area in exercise of power under section 3-C(1) of the Slum Act. The Slum Rehabilitation Scheme can be sanctioned in respect of a slum as defined in Clause II of Annexure to Regulation 33(10). Under the said Annexure there can be a scheme for a viable stretch of pavement also. The learned Single Judge deciding Ramkali''s case was not concerned with a scheme under D.C. Regulation No. 33(10)."
18). The third decision cited of Balasaheb Torbole''s case (supra), refers with approval the decision in Om-Sai Darshan''s case (supra). The relevant observations at paragraph-18 are as follows:-
"18. The third submission is that the private plot has not been declared as a slum rehabilitation area under Section 3C and hence, it was not open to the SRA to sanction the scheme. There is no merit in the submission. The plot of land with which the Petitioners are concerned, is of private ownership and has been declared as a slum by the Competent Authority under Section 4 of the Slums Act. The expression "slum" in DCR 33(10) means slums which are censused or declared and notified in the past or thereafter under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment Act, 1971). In Om Sai Darshan Co-operative Housing Society v. State of Maharashtra, a Division Bench of this Court held that for sanctioning a scheme governed by Regulation 33(10), it is not necessary to have a declaration of a particular parcel of land as a slum rehabilitation area under Section 3C(1) of the Act."
In view of the aforesaid discussion, the Court, at paragraph 20 upheld the finding of the BCCC that the suit was barred under section 42 of the Slum Act. Thus, the issue canvassed by Mr. Anturkar, has been expressly dealt with by this Court in First Appeal No. 382 of 2010 and answered against the Petitioners. Further, this order dated 1st December, 2014 was sought to be challenged before the Supreme Court by filing SLP No. 1629-1630 of 2015 which was ultimately withdrawn on 6th February, 2015 and even a Review Petition seeking review of the order dated 1st December, 2014 was dismissed by the learned single Judge on 27th April, 2015. Therefore this issue was canvassed by the Petitioners all the way to the Supreme Court without any success and has attained finality. Once this very contention is negated, Mr. Thorat is correct in contending that the same cannot once again be canvassed before us.
Faced with this situation, Mr. Anturkar submitted that these observations cannot be relied upon as ultimately this Court in First Appeal No. 382 of 2012 came to the conclusion that the BCCC was correct in holding that it had no jurisdiction to entertain the suit filed by the Petitioners. Since the Court ultimately ruled that it had no jurisdiction, these observations do not bar us from considering his contention once again, was the submission. We find this argument wholly without merit. Whilst deciding the issue of jurisdiction, the Court was called upon to decide the very issue that is now canvassed before us. This issue was specifically negated by this Court after relying upon three decisions of Division Benches of this Court. We, therefore, are unable to take cognizance of the argument of Mr. Anturkar, that we can examine this issue once again. As noted earlier, the order of this Court dated 1st December, 2014 was sought to be challenged before the Supreme Court by filing a SLP, which was ultimately withdrawn by the Petitioners. This issue, therefore, in our opinion, has attained finality and cannot now be agitated once again before us. Even otherwise, for the bar under section 42 of the Slum Act to apply, it was incumbent upon the Courts to consider the merits of the rival contentions, particularly whether the Petitioners'' piece or parcel of land can be included in the Slum Scheme being implemented on plot No. 190/9. The structures which are in occupation of the Petitioners as well as the land on which they are situate, could not be included was the assertion. That has been negated in fact and in law after which the Courts concluded that the bar under section 42 applies and the civil court has no jurisdiction to try the suit. Thus the jurisdictional facts are answered against the Petitioners throughout.
As far as Writ Petition No. 2042 of 2015 is concerned, we are of the view that the declarations sought therein cannot be granted in favour of the Petitioners. By a letter dated 21st January, 2015 the Chief Officer of the Mumbai Housing and Area Development Board informed the Petitioners that conveyance of buildings/chawls was being undertaken through them and if they had not obtained a conveyance in their favour, the Petitioners should submit their conveyance proposal along with the necessary papers. According to the Petitioners, they submitted their documents on 9th February, 2015 but instead of executing a conveyance in favour of the Petitioners, the Mumbai Housing and Area Development Board issued the impugned letter dated 22nd May, 2015 cancelling/recalling their letter dated 21st January, 2015. We fail to see how the relief sought can be granted under Article 226 of the Constitution of India. Before any conveyance was executed in favour of the Petitioners, the letter dated 21st January, 2015 was withdrawn by the Mumbai Housing and Area Development Board on 22nd May, 2015. This conveyance was also only with reference to the superstructures and not of the land on which they are situate. Admittedly, the land belongs to Respondent No. 1. This land, along with the structures thereon, are a part of the Slum Rehabilitation Scheme which is being implemented by the authorities for the benefit of over 200 slum dwellers. Admittedly, the Petitioners'' names appear in Annexure - II and they are found eligible under the scheme. On the scheme being implemented, they would get their respective rehab tenements. In view of this factual background, we find that the declarations sought in this Writ Petition are wholly misplaced and without any merit.
We also find considerable force in the argument of Mr. Thorat that the Petitioners have been indulging in a barrage of litigation to somehow thwart and/or scuttle the Slum Rehabilitation Scheme. In this regard we must note the litigations that have been initiated by the Petitioners herein, and which are as under:-
"(i) On 5th May, 2010 the Petitioners filed Writ Petition No. 1118 of 2010 in this Court, inter alia seeking a direction not to include the name of the Petitioners, including the said property, in any project, development/redevelopment under the Slum Rehabilitation Scheme. A direction was also sought against Respondent No. 3 therein (C.O. Mumbai Housing and Area Development Board) to decide the matter of granting conveyance, lease agreement in respect of the said property in favour of the Petitioners. On 31st May, 2010 the Petitioners, without notice to the Respondents, withdrew the aforementioned Writ Petition before the Registrar of this Hon''ble Court. We fail to see how this Writ Petition could have been allowed to be withdrawn by the Registrar, without obtaining orders of this Court. We seriously doubt that the Registrar of this Court has any such powers. Be that as it may, it is undisputed that the same has been withdrawn.
(ii) During the pendency of Writ Petition No. 1118 of 2010, the Petitioners filed Appeal No. 680 of 2010 under Section 35 of the Slum Act challenging Annexure-II and the LOI issued in favour of Respondent No. 4 - society. Thereafter, on 19th June, 2010 the Competent Authority revised Annexure-II to include the name of Petitioner Nos. 2 to 8 showing them as eligible beneficiaries under the SRA scheme. This was again challenged by the Petitioners by filing Appeal No. 719 of 2010 before the Appellate Authority under the Slum Act. Both these Appeals were dismissed on the ground of jurisdiction.
(iii) Thereafter, on 17th September, 2010 the Petitioners filed a suit in City Civil Court, Bombay being Suit No. 2150 of 2010. In this suit a declaration was sought that the LOI issued in favour of Respondent No. 4 - society and Respondent No. 5 - developer, is illegal and bad in law. The Petitioners also sought deletion of their names from Annexure-II and for removal of the said property from the list of Annexure-III. This Suit was dismissed by the BCCC on the ground that it had no jurisdiction to entertain the Suit.
(iv) Being aggrieved by this order, the Petitioners preferred First Appeal No. 382 of 2012 to this Hon''ble Court. This First Appeal was ultimately dismissed on 1st December, 2014 upholding the order of the City Civil Court, Bombay.
(v) Being aggrieved thereby, the Petitioners filed a SLP before the Hon''ble Supreme Court. This SLP was dismissed, as withdrawn on 6th February, 2015.
(vi) Thereafter, the Petitioners filed a Review Petition in First Appeal No. 382 of 2012 which was also dismissed on 27th April, 2015 with costs.
(vii) It has also been brought to our notice that the Petitioners have filed several other Petitions, as well, challenging the vires of Regulation 33(10) of DCR, 1991 as well as Section 354-AAA of the Mumbai Municipal Corporation Act, 1888.
(viii) After all this, the Petitioners have filed Writ Petition (L) No. 1416 of 2015 in which a declaration is sought that inclusion of the Petitioners and their premises in Annexure-II dated 14th June, 2010 in respect of the Slum Rehabilitation Scheme approved by the SRA, is a fraud, illegal, null and void and violates the Petitioner''s right under Articles 14, 19 and 21 of the Constitution of India and that the inclusion of the Petitioners and their premises in Annexure-II and the LOI dated 6th February, 2009 be set aside. As stated earlier, this Writ Petition is pending before another the Division Bench of this Court in which no ad-interim reliefs are granted to the Petitioners.
(ix) In the meanwhile, the Deputy Chief Officer (Marketing), by show cause notices dated 30th April, 2014 and 7th May, 2015 initiated eviction proceedings against the Petitioners under Sections 33 and 38 of the Slum Act, 1971. After the show cause notices were issued, a hearing was given to the Petitioners and thereafter Respondent No. 3 passed the common eviction order dated 11th June, 2015 against the Petitioners for the purpose of implementing the Slum Rehabilitation Scheme. This eviction order was challenged in Appeal, without any success. This is how Writ Petition (L) No. 2605 of 2015 has come before us. The Petitioners have also filed another Writ Petition No. 2042 of 2015 in which a challenge is laid to the letter dated 22nd May, 2015 issued by the Deputy Chief Officer (E. M. MH & AD Board), under which the Petitioners were informed that the letter sent to them to execute the conveyance deed stands cancelled."
On going through both the Writ Petitions, one thing becomes clear. The property on which the SRA scheme is being implemented (including the property which is occupied by the Petitioners), belongs to Respondent No. 1. Revised Annexure-II dated 14th June, 2010 includes the names of Petitioner Nos. 2 to 8 showing them as eligible beneficiaries under the SRA scheme. It would, therefore, follow, that on the scheme being implemented, Petitioner Nos. 2 to 8 would get their respective tenements in the rehabilitation building. It is not as if the Petitioners have been declared ineligible, and would therefore, be left out in the lurch. Looking at the barrage of litigation that has been unleashed by the Petitioners herein, and that too without any success, we are clearly of the view that these Writ Petitions is one more attempt to thwart and/or scuttle the Slum Rehabilitation Scheme which has been propounded for the benefit of over 200 slum dwellers. We are afraid that we cannot be a party to this action. The Slum Rehabilitation Scheme is being opposed by the Petitioners tooth and nail on every conceivable ground, the reasons of which are not far to see. We are clearly of the view that these Writ Petitions are nothing but an abuse of the process of the Court. In this view of the matter, we are not inclined to exercise our extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India in favour of the Petitioners. This is not a case where justice lies on the side of the Petitioners for us to exercise our extraordinary equitable jurisdiction. The Petitioners, by filing one proceeding after another, have been trying to thwart and scuttle the Slum Rehabilitation Scheme. This, in our opinion, has to stop here.
In this view of the foregoing discussion, we are clearly of the view that this is not a fit case for us to exercise our equitable jurisdiction under Article 226 of the Constitution of India in favour of the Petitioners. The Writ Petitions are accordingly dismissed with costs quantified at Rs. 1,00,000/- (rupees one lakh only) in each Petition, payable to the respective Respondents, within a period of two weeks from today. If the costs are not paid within the aforesaid period, it shall be recovered as arrears of land revenue. We also direct that a copy of this order be placed in the papers and proceedings in Writ Petition (L) No. 1416 of 2015 and which is being heard by another Division Bench of this Court.
After the order is pronounced, the Petitioner''s advocate prays that the interim protection running in their favour till today, be continued for a further period of four weeks to enable the Petitioners to approach the Hon''ble Supreme Court of India. The contesting Respondents vehemently opposed this request on the ground that the Petitioners have engaged and involved them in fruitless, frivolous and vexatious litigations. Having heard the counsel on this point, we find substance in the objection of the Respondents. The request is therefore refused.