SHAILESH GANDHI VS. STATE OF MAHARASHTRA & ORS.
2009-ALL MR-6-266
(A) Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act (1971), S.3-A - Discretion vested with Slum Rehabilitation Authority (SRA) - Great element of discretion is vested with the SRA and it must exercise its power not only with higher degree of caution and fairness but should ensure that the Scheme, meant for upliftment of the poor living in slum, is not abused by the powerful lobby of developers with the aid and favour of the Government functionaries.
Great element of discretion is vested with the SRA and it must exercise its power not only with higher degree of caution and fairness but should ensure that the scheme, meant for upliftment of the poor living in slum, is not abused by the powerful lobby of developers with the aid and favour of the Government functionaries. The very fact that such large number of complaints were received out of which the authorities and courts have found prima facie material shows that certainly the system is not working effectively and is unable to achieve the real purpose sought to be achieved by the enforcement of the provisions of the Act.
The schemes under the Act are large in number which is increasing day by day. Keeping in view the nature of complaints that have been received by the authorities, it is clear to us that there could be some complaints which can be dealt with departmentally, while there are other serious complaints which have the element of criminality. There are cases where frauds have been committed, signatures have been forged and even identities of genuine slum dwellers have been changed by impersonation or other methods, which will squarely fall in the field of criminal jurisprudence and therefore, are matters for proper investigation. There cannot be any doubt that where a complainant has filed a complaint, he sets the machinery of criminal justice into motion and it is for the investigating authorities to proceed with the matter in accordance with law. The State Government, SRA and /or the investigating agency cannot on any ground whatsoever justify that they keep the complaint pending for years together without any result and/or action against the officers/ officials and the developers or any other persons who are involved in commission of such crimes or illegalities or improprieties. Certainly, the officers and the officials who have been instrumental or have been aiding such acts by omission or commission, must be brought to book and must face the legal consequences.
2007(6) Mh.L.J. 851 & 1997(1) SCC 151 - Ref. to. (Paras 9, 12)
(B) Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act (1971), S.3-A - Constitution of India, Art.226 - Public Interest Litigation - Maintainability of - Government departments dealing with matters of Public importance and Schemes intended to benefit Slum dwellers - Fraud, forgery, cheating, mispresentation, impersonation and hijacking of SRA Schemes to benefit of builders, are the facets which will squarely fall within the ambit of P.I.L. (Para 15)
(C) Constitution of India, Art.226 - Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act (1971), S.3-A - Criminal P.C. (1973), S.156(3) - Injustice to slum dwellers - Investigation - Complaints indicating administrative or departmental irregularities, need detailed inquiry - Complaints in substance and nature indicating serious lapses and even element of criminality - Held, there would be every need for their proper examination by a specialized investigating agency or appropriate authority to avoid injustice to the Slum dwellers and even in the larger public interest - Complaints, therefore, directed to be examined by High Powered Committee constituted by State assisted by Additional Commission of Police.
All the Government departments concerned are dealing with matters of public importance and the schemes which are intended to benefit the slum dwellers. Fraud, forgery, cheating, misrepresentation, impersonation and hijacking of the SRA Schemes to the benefit of builders as alleged, are the facets which will squarely fall within the ambit of PIL.
The complaints, except the one's which purely indicate administrative or departmental irregularities need detailed inquiry. In their substance and nature, they indicate serious lapses and even element of criminality. Thus there would be every need for their proper examination by a specialized investigating agency or appropriate authority to avoid injustice to the slum dwellers and even in the larger public interest. Transparency is one of the essential features of proper governance or public administration. The departments of the Government before the court are dealing with the problems of public significance and social upliftments. Thus, fairness in action of these departments would be essential.
Held, it is neither permissible nor possible for this Court to examine these 87 complaints on their merit and supervise their inquiry or day to day investigation. It is, therefore, essential that some directions must be issued in regard to the proper investigation and disposal of these complaints and that too expeditiously. It is apparent from the record that there are different types of complaints which would require to be dealt with and investigated by different authorities. A kind of preliminary examination of all these complaints, therefore, would be necessary before actual investigating machinery is put in motion. There might be matters which can be remedied and corrected at the department level, while in other complaints, element of criminality may be involved which requires proper investigation by the concerned authorities. It is the duty of the court to ensure that rule of law prevails and the serious matters are not scuttled by administrative authorities or are not delayed in a manner which would completely render the complainant's grievances incapable of being redressed and remedied. The most appropriate way to handle these matters would be to issue certain directions and leave it open to the Authorities concerned to proceed in accordance with law while ensuring that all the matters are examined judiciously and persons responsible for committing illegalities and acting in an unfair manner are brought to book.
All these complaints would be examined by the High Powered Committee assisted by the Additional Commissioner of Police nominated by Director General of Police, Maharashtra, expeditiously. In the event this Committee finds that illegalities or irregularities coupled with the element of criminality justify passing of certain interim directions with regard to stopping, regulating or even cancelling the development schemes, in order to achieve the object of settlement of genuine slum dwellers and the public interest, it would be free to do so, subject to the orders that may be passed by the Courts of Competent Jurisdiction.
(Paras 15, 16)
