1. The writ petitioner has filed this petition seeking following reliefs:
(a) that by a Writ of Mandamus or any other writ in the nature of mandamus the communication bearing No. SAF/D/165.SR/Slum, dated 3rd June 2010 issued by the Respondent No. 2 be quashed and set aside.
(b) that the Hon'ble Court be pleased to issue a Writ of mandamus or any other writ in the nature of mandamus directing directing the Respondents to issue Annexure-II in favour of the Petitioner society in respect of property CTS No. 446(pt), 473(pt), 474(pt), 475(pt) and 476(pt) of Parel Sewree Division, Sewree Cross Road, Sewree, Mumbai-400015;
(c) this Hon'ble Court be further pleased to issue the writ of mandamus or any other writ in the nature of mandamus directing the Respondent No. 1, 2 and 3 not to grant any permission to the Respondent No. 6 and 7 so far as C.T.S No. 446, 473, 474, 475 and 476 of Parel Sewree Division, Sewree Cross Road, Sewree, Bombay-400 015 is concerned;”
2. It is too well settled to require repeated reference to the judgment of the Hon'ble Supreme Court that when the three prayers as above are only for issuance of a writ of mandamus, that writ is issued where there is proven and established legal right. If any reference is required, the following passage from the judgment of the Hon'ble Supreme Court in the case of The Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem, Development Corporation Ltd. AIR 2013 SC 1241, is enough:
“14. It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal.
15. Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having her requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand.”
3. The petitioner claims to be a proposed society of occupants. These occupants on the property are more particularly described in petition paragraph 1. The above property has been declared as slum under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The first respondent is the Municipal Corporation of the City of Mumbai and governed by the Mumbai Municipal Corporation Act, 1888. It is the owner of the said property and the two officials, namely, respondent Nos. 2 and 3 are incharge of managing and administering the same. The fourth respondent is the competent authority under the Slum Act. The fifth respondent is a State official but claiming to be attached to the fourth respondent authority. Respondent Nos. 6 and 7 are private parties and stated to be developing the property.
4. The petitioners are seeking to quash a communication dated 3 July, 2010, whereby the Corporation informed it that its proposal is treated as closed. Now, at the instance of the petitioners, the steps to develop the property cannot be taken. From paragraph 4 of the petition, it is apparent that the writ petition is filed at the instance of M/s. Hi Cons Shelters with whom the petitioners had an agreement. This developer and who is really the petitioner before us, had submitted the proposal and paid some scrutiny fees. He claimed that the proposal was first in point of time and, therefore, should have been processed and taken to its logical end. The respondent No. 4 addressed a letter at that time to the owner of the property/competent authority to prepare what is styled as Annexure-II. It was at the instance of that proposer M/s. Hi Cons Shelters that all these steps were taken. We are really not concerned with the contents of paragraphs 1 to 8 of the petition. What the petitioners proclaim is that even they are entitled to be rehabilitated being occupants of slum structures. Therefore, as and when the property is developed the same should be developed or redeveloped bearing in mind their occupation and their rights as eligible slum dwellers. Thus the proposed society of slum developers requested the Corporation to accommodate it in any redevelopment proposal or scheme.
5. What the petitioners are aggrieved by is the fact that they cannot now play any role in such redevelopment nor they find themselves in a position to assert their alleged right to engage and involve a developer as noted above. Pertinently, that developer has given up its claim.
6. Now, it has been clarified that the Municipal Corporation of Greater Mumbai who is the owner of the property will redevelop the property itself and, therefore, if any developer or builder has been engaged that does not mean that the Municipal Corporation has given up its right as an owner in the property. The Municipal Corporation even today has assured us through senior counsel Mr. Kamdar that it is the owner of the property. The property is being developed under Development Control Regulation No. 33(7) of the Development Control Regulations for Greater Mumbai, 1991, by the Municipal Corporation itself. In such redevelopment proposal and scheme, the members of the petitioners and who are eligible to permanent alternate accommodation would be duly accommodated.
7. In the above circumstances, we do not give any weightage to what the respondent No. 7 would say in his affidavit. Once the petitioners have no legal right and vesting in themselves, they being only occupants of slum like structures erected and constructed illegally on the property, then, all the more we are disinclined to exercise our writ jurisdiction at their instance.
8. The petition is devoid of merits and is dismissed. We dismiss the petition also because same relief was sought in the earlier round of litigation and possibly encouraged by some observation in the earlier order, the present petition is filed.