Full Judgment Text
CRIAPPLN1010-17+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1010 OF 2017
Harshad Anil Kale and anr. ...Applicants
Versus
The State of Maharashtra (through the
Economic Offences Wings)
…Respondent
WITH
WRIT PETITION NO. 3417 OF 2017
Nilesh Modi ...Petitioner
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors.
…Respondents
WITH
WRIT PETITION NO. 2870 OF 2018
Vanmala Kharat & anr. ...Petitioners
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors. …Respondents
WITH
CRIMINAL APPLICATION NO. 117 OF 2018
IN
WRIT PETITION NO. 3417 OF 2017
Ravindra B. Mhatre ...Applicant
In the matter between
Nilesh Modi ...Petitioner
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors.
…Respondents
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WITH
CRIMINAL APPLICATION NO. 968 OF 2017
IN
CRIMINAL APPLICATION NO. 1010 OF 2017
Chitra A. Salunke ...Applicant
In the matter between
Harshad Anil Kale and anr. ...Applicants
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors. …Respondents
Mr. Karansingh Rajput a/w Kunawal Waghmare for the
Applicant in APL No.1010/2017 and for the
Respondent/MCGM in Writ Petition Nos.3471/2017
and 2870/2018.
Mr. Kevic Setalwad, Senior Advocate, a/w Sunny Punamia I/
b Harsh Agrawal, for the Petitioner in WP
No.2870/2018.
Mr. Subhash Jha, a/w Sanjana Pardeshi, Sunny Puamia I/b
M/s. SSP Legal for the Petitioner in WP No.3417/2017.
Mr. F. R. Shaikh, APP a/w Ms. S. D. Shinde, APP for the
State.
Mr. Rizwan Merchant, Senior Advocate, I/b Mr. Pradeep
Havnur, for the Intervenor/Applicant in APPA
No.968/2017 and APPW No.117/2018 and for
Respondent no.2 in WP No.3417/2017 and WP
No.2871/2018.
Mr. Niteen Pradhan a/w Abhiit Desai, I/b M/s. Desai Legal
for Respondent no.4/SRA in WP No.3417/2017.
CORAM: RANJIT MORE &
N. J. JAMADAR, JJ
th
RESERVED ON: 26 AUGUST, 2019
th
PRONOUNCED ON: 19 SEPTEMBER, 2019
ORDER:- (Per N. J. Jamadar)
1. These criminal application and writ petitions have been
preferred for quashment of the First Information Report
(“FIR”) bearing CR No.44 of 2016 registered with Govandi
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Police Station, Mumbai (EOW CR No.38 of 2016) and the
consequent proceedings, being RCC No.578/PW/2017
th
pending on the fle of 47 Metropolitan Magistrate Court,
Mumbai, arising out of the registration of the said FIR for the
offences punishable under Sections 406, 420, 465, 467, 468,
471 read with Section 34 of the Indian Penal Code, by the
accused who have been arraigned therein.
2. As the very action of registration of the FIR is called in
question, apart form the merits of the matter having bearing
upon the question of quashment of the subject FIR and the
consequent proceedings, we have heard the learned Counsels
for the parties on the aspect of justifability of registration of
the FIR, in the absence of prior examination of the matter by
the High Power Committee, now designated as the Apex
Grievance Redressal Committee (“AGRC”) under Section 35 of
the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (“the Slum Act, 1971”).
3. The brief factual matrix giving rise to the instant
application and the petitions can be stated as under:
A scheme under the Slum Act, 1971 for rehabilitating
slum dwellers in a housing society, under the name and style
of Shri. Sant Balumama Sahakari Grahnirman Sanstha
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(proposed) (hereinafter referred to as “the Society”) was
initially conceived and commenced in the year 2006. M/s.
Srushti Raj Enterprises (India) Ltd. (“M/s. Shrushti Raj”) was
then appointed as the developer for the said scheme
(hereinafter referred to as “original SRA scheme”). In the year
2010, a proposal came to be submitted for Cluster
Development Slum Rehabilitation Scheme, for development of
approximate 1,89,000 sq. mtrs. of land, including the land
upon which the “society” was proposed, at village Borla,
Taluka Chembur, Mumbai Sub-urban District, Mumbai
(hereinafter referred to as “the Cluster Development Scheme”).
Certain proceedings were initiated by M/s. Srushti Raj, the
developer of the original scheme, and M/s. Sterling Buildcon
Pvt. Ltd. (“M/s. Sterling”), the developer of the Cluster
Development Scheme, to which we shall make a reference a
little later. As the draft Annexure-II, containing names of 159
slum dwellers was published by the offcers of the Municipal
th
Corporation of Greater Mumbai, on 16 April, 2015, certain
allegations of improper, unjustifed and fraudulent inclusion
of the members therein were made.
The FIR:
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4. On 16 February, 2016, Advocate Smt. Chitra Anant
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Salunke (hereinafter referred to as “the frst informant”)
lodged a report with the Director General of Police, Anti
Corruption Bureau, Mumbai, alleging a large scale fraud in
the SRA Scheme relating to Shri. Sant Balumama Housing
Society. The substance of the allegation was that one
Vanmala Kharat, wife of Yuvraj Hanumat Kharat (the then
Deputy Treasurer of the society), usurped the powers of the
offce bearers of Shri. Sant Balumama Housing Society, upon
the death of one Arun Tukaram Jadhav, the then Secretary.
Vanmala Kharat arrogated offce of the President of the said
society for her husband. Vanmala Kharat initially established
a rapport with the builder, namely, Nilesh Modi of M/s.
Sterling and subsequently blackmailed him. Vanmala Kharat,
in connivance with the builder and offcers of the Municipal
Corporation and Slum Rehabilitation Authority, gave false and
fabricated receipts of membership of the society to the
persons who were not otherwise eligible slum dwellers by
accepting huge amount from them. The persons, who were
having one tenement were shown to possess multiple
tenements. Ineligible slum dwellers and those who were not
at all residing on the land in question were shown to be the
slum dwellers. It was further alleged that for causing
wrongful gain to Mr. Nilesh Modi, by showing the consent of
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more than 70% members of the proposed SRA society, the
ineligible persons were shown to be members and the list of
the slum dwellers was infated in pursuance of a conspiracy
by the said Vanmala Kharat, her associates, developer Mr.
Nilesh Modi and the offcers of Municipal Corporation of
Greater Mumbai, especially, Mr. Harshad Anil Kale, the then
Assistant Commissioner, and Mr. Sayyad Iqbal Ahmad Kadir,
the then Rent Controller.
5. On the basis of the said report initially a crime was
registered at Gowandi police station (CR No.44 of 2016) and
subsequently it came to be transferred to Economic Offences
Wing (EOW CR No.38 of 2016). In all 12 persons including
applicants/petitioners herein, namely, Mr. Harshad Kale, Mr.
Sayyad, Mr. Nilesh Modi, Smt. Vanmala Kharat and Mr. Yuvraj
Kharat have been arraigned as accused therein.
Applications and Petitions:
6. In the backdrop of the initiation of the prosecution in
the aforesaid fashion, Mr. Harshad Kale and Mr. Sayyad, the
offcers of the Mumbai Municipal Corporation have invoked
the inherent powers of this Court for quashment of the FIR
by fling Criminal Application No.1010 of 2017. The
applicants assert that they had issued the public notice of
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draft Annexure II, inviting suggestions and objections in
respect of Shri. Sant Balumama Co-operative Housing Society,
th
on 16 April, 2015, in adherence to the order passed by this
Court in Notice of Motion (L) No.204 of 2014 in Writ Petition
No.1165 of 2012. The applicants aver that there was no
element of criminal conspiracy as in terms of the aforesaid
th
order dated 14 August, 2014, passed by this Court, the
developer was granted one year's time to obtain the consent of
70% of eligible slum dwellers. What the applicants had done,
in discharge of their offcial duties and in compliance of the
order passed by this Court, was just to publish the draft
Annexure-II inviting suggestions and objections. Thus, the
allegations against the applicants are ex facie false and
motivated. The frst informant has lodged the report mala fde.
The frst informant has no concern with, much less interest
in, the said scheme.
7. It is further averred that in view of the binding judicial
pronouncements of this Court, the police could not have
registered the FIR without the matter having been frst
examined by the High Power Committee, constituted
pursuant to orders of this Court for consideration and
determination of grievances in respect of the SRA schemes.
This haste in registering the FIR, in defance of the orders of
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this Court, has caused grave miscarriage of justice and thus
on this count, as well as on the merits, the FIR deserves to be
quashed.
8. Writ Petition No.3417 of 2007 is fled by Mr. Nilesh Modi
of M/s. Sterling, whose proposal for cluster development has
been approved. After narrating the history of the said slum
development scheme and the various orders passed by this
Court, in pursuance of which the development of the said
scheme has ultimately commenced, the petitioner asserts that
the driving force behind the prosecution is erstwhile
developer, namely, M/s. Srushti Raj, who lost out on the
development of the scheme. It is alleged that the frst
informant has been set up by M/s. Srushti Raj. The
allegations in the FIR are stated to be patently false, baseless
and unworthy of investigation. The very registration of the
FIR is, in fact, an egregious disobedience of the series of
orders passed by this Court which mandate the consideration
of the grievances by the High Power Committee before any FIR
is registered in the matter of allegations of criminality in the
development of slum rehabilitation schemes.
9. Writ Petition No.2870 of 2018 is fled by the accused
Vanmala Kharat and Yuvraj Kharat. The quashment of the
FIR and the consequent proceedings is sought on the count
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of the breach of the binding orders of this Court in the matter
of registration of the FIR and alleged malafde report by the
frst informant at the behest of M/s. Shrushti Raj.
10. The applicants and petitioners thus seek the quashment
of the FIR and the consequent proceedings.
11. In contrast, the frst informant has fled an application
being Criminal Application No.968 of 2017 in Criminal
Application No.1010 of 2017, seeking the permission to
intervene in the matter and resist the prayer of the applicants
to quash the FIR. Mr. Ravindra Mhatre, another local
resident, has fled Application No.117 of 2018 in Writ Petition
No.3417 of 2017, raising similar contentions.
12. We have heard Mr. Rajput, the learned Counsel for the
applicants (in Application No.1010/2017) and for Respondent
no.3/MCGM (in Writ Petition Nos.3417/2017 and
2870/2018), Mr. Setalwad, the learned Senior Counsel for
the petitioners (in WP No.2870/2018), Mr. Jha, the learned
Counsel for the Petitioner (in WP No.3417/2017), Mr.
Merchant, the learned Senior Counsel for the frst
informant/intervenor (in Application No.968/2017 and
Application No.117/2018) and for Respondent no.2 (in WP
No.3417/2017), Mr. Pradhan, the learned Counsel for
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Respondent no.4/SRA in WP No.3417/2017 and Mr. Shaikh
the learned APP for the State, at considerable length. The
parties have also tendered written submissions.
Resume of history of litigation:
13. Before we advert to record and deal with the
submissions advanced by the learned Counsels, in order to
appreciate the controversy in a correct perspective, it would
be apposite to note the history of litigation in the matter of
rival claims to develop the original scheme and cluster
development scheme.
13.1 The original developer M/s. Shrushti Raj
fled Writ Petition No.879 of 2012, assailing the order dated
th
10 January, 2012 passed by the Chief Executive Offcer, SRA
(respondent no.2 therein), whereby the development proposal
fled by M/s. Sterling (respondent no.3 therein) was directed
to be considered and that of the M/s. Shrushti Raj was not
favourably considered, and the said petitioner was directed to
submit NOC from the owners of the plots within four weeks
and/or to submit a copy of the award passed by the
competent authority, if any, as alleged by them, within
four weeks. It was further directed that if the petitioner
failed to comply with the above terms, its proposal shall
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stand recorded i.e. rejected.
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A Division Bench of this Court, by order dated 11
May, 2012, disposed of the petition by granting the petitioners
therein an opportunity to approach the High Power
Committee in respect of their grievances including those
raised in the said petition. We are informed that the special
leave petitions fled against the said order came to be
th
dismissed by the Supreme Court on 8 September, 2015.
13.2 M/s. Sterling and Mr. Nilesh Modi fled Writ
th
Petition No.1165 of 2012, assailing the order dated 24 April,
2012 passed by the State Government, whereby the circular
th
dated 12 November, 2010 and the provisional Letter of Intent
th
dated 7 December, 2010, both issued by the Slum
Rehabilitation Authority in favour of the petitioners therein,
came to be cancelled. The action of the State Government
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cancelling its own letter dated 8 October, 2010 under which
the petitioners proposal for slum rehabilitation scheme was
approved by the Government, was also assailed therein.
13.3 A Division Bench of this Court by the judgment
th
and order dated 24 September, 2013, allowed the petition in
the following terms.
“55. In the result, the impugned order dated 24 April 2012 is
quashed and set aside.
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(1) It is declared that the Government approval dated 8
October 2010 read with Government letter dated 11 November
2010 and the SRA circular dated 12 November 2010 are in
accordance with the provisions of the Slum Act, including
sections 3A and 3K thereof.
(2) As a consequential direction, the respondents are
directed to treat the circular dated 12 November 2010 and the
provisional LOI dated 7 December 2010 issued by SRA as
subsisting with modifcation that the petitioner shall be
permitted to submit draft Annexures II for slum dwellers,
other than those for whom the petitioner had already
submitted the draft Annexures II by 31 March 2014.
(3) Within one year from the date of Competent Authority
certifying Annexures II, the petitioner shall obtain consent in
writing of 70% of the eligible slum dwellers as already
provided in clause 2.17 of the Government Approval dated 8
October 2010, which shall also be treated as subsisting with
the clarifcations contained in Government letter dated 11
November 2010, accepting the suggestions of SRA made in
SRA letters dated 16 October and 3 November 2010.”
(emphasis supplied)
13.4 The Special Leave Petition CC No.2807 of 2014
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preferred against the said judgment and order dated 24
September, 2013, was dismissed by the Supreme Court by
th
order dated 7 March, 2014.
13.5 The Division Bench of this Court passed further
order in Notice of Motion (L) No.204 of 2014 in Writ Petition
No.1165 of 2012. Paragraphs 10 to 12 of the said order dated
th
14 August, 2014, read as under:
“10. The MCGB shall, therefore, proceed to certify Annexures-
II in light of the above without insisting for any NOC from the
Estate Department in respect of payment of 25% premium or
without insisting for consent of 70% of the eligible slum
dwellers which consent is to be provided by the Petitioners
within one year from certifcation of Annexures-II, as was
already provided in paragraph 55 of our judgment dated 24
September 2013.
11. Learned counsel for the Petitioners has placed on
record a statement indicating the proposed co-operative
housing societies of the slum dwellers for which the MCGB
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has already displayed provisional Annexure-II. These societies
are as under :
(i) Kashinath Patil Wadi and Mukti Nagar (SRA) CHS
(proposed),
(ii) Vaibhav Nagar (SRA) CHS Ltd;
(iii) Om Asha Kiran (SRA) CHS (proposed);
(iv) Sai Vitthal Rukmini (SRA) CHS (proposed);
(v) Bhramhandev MS Patil Wadi (SRA) CHS (proposed)
and
(vi) Surya Kiran (SRA) CHS (proposed)
In respect of items societies at sr.nos.(i) to (iv) above, the fnal
certifcation will be done by MCGB by 15 September 2014 and
in respect of (v) and (vi) above the certifcation shall be done
by MCGB by 31 December 2014. For other sixteen proposed
co-operative housing societies, the MCGB shall make
certifcation by 31 December 2015 at the rate of four societies
per quarter.
12. Accordingly, present Notice of Motion (L) No.204 of
2014 stands allowed in above terms. Notice of Motion (L)
No.479 of 2014 taken out for clarifcation/modifcation of our
order dated 24 September 2013 by MCGB stands dismissed.”
(emphasis supplied)
13.6 Special Leave Petition Nos.26546 and 26547 of
2014, preferred against the said order, were disposed of by the
th
Supreme Court by order dated 24 September, 2014 with the
following modifcation:
“Shri. Shyam Divan, learned Senior Counsel appearing
for the frst respondent, on instructions, states that frst
respondent has already paid the frst installment of 25% of
the land premium payable to the Slum Rehabilitation
Authority (S.R.A.). Keeping in view the aforesaid made by
Shri. Shyam Divan, we declined to entertain these special
leave petitions.
In respect of Societies at serial Nos.(i), (iii) and (iv), as
stated in the impugned order, the fnal certifcation shall be
done by MCGB on or before 30.11.2014.”
14. In the backdrop of the aforesaid orders, it becomes
abundantly clear that the legal rights of M/s. Sterling to
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develop the cluster development scheme, including the SRA
scheme of Shri. Sant Balumama Housing Society (proposed)
attained fnality. Conversely, the clam of M/s. Shrushti Raj to
develop the original scheme did not pass muster. M/s.
st
Sterling was permitted to submit draft Annexure-II by 31
March, 2014. The MCGM was directed to make certifcation of
st
draft Annexure-II by 31 December, 2015. Liberty was given to
M/s. Sterling to obtain consent in writing of 70% of the
eligible slum dwellers, within one year from Competent
Authority certifying Annexure-II. The subsequent action of
the concerned authorities as well as the offce bearers of the
society and the developers are required to be considered in
the backdrop of the aforesaid crystallization of the rights and
obligations.
Submissions :
15. Mr. Jha, the learned Counsel for the petitioner
(WP3417/17) submitted that the initiation of the prosecution
based on the FIR lodged by the frst informant is an atrocious
abuse of process of law. By placing reliance upon the
judgments of this Court in the cases of (i) Tulsiwadi
Navnirman Co-op. Housing Society ltd. and another Vs.
1
State of Maharshtra and ors. , (ii) Shailesh Gandhi vs.
1 2008(1) BCR 1.
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2
State of Maharashtra and others and (iii) Sayed Anwar
3
Ahmed and anr. vs. State of Maharashtra and others it
was vehemently urged that the FIR and the consequent
proceedings initiated without an examination by, and
recommendation of, High Power Committee are wholly
unsustainable and unjust as well. The offcers, who brazenly
registered the FIR, in teeth of the law laid down by this
Court, in a series of judgments which mandate the
examination of the grievances as regards the SRA scheme by
the High Power Committee, have committed not only an
illegality but a wilful contempt of this Court. Thus, the FIR
and the consequent proceedings deserve to be quashed on
this count alone and the concerned offcers are liable to be
proceeded against in contempt jurisdiction, urged Mr. Jha.
16. Mr. Jha, further submitted that the sole purpose of the
instant prosecution is to derail the cluster development
scheme, which has been allotted to the petitioner, despite the
challenge to the said allotment having been negatived
repeatedly, and up to the Supreme Court. As the
continuation of the prosecution is being cited as an
hindrance in granting permission for the petitioner to carry
2 2010(2) BCR 408.
3 2017 SCC Online Bom. 3972.
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on the development, the instant prosecution deserves to be
quashed and set aside to prevent the abuse of law and secure
ends of justice.
17. Mr. Setalwad, the learned Senior Counsel for the
petitioners (Writ Petition No.2870/2018) submitted that the
fact that the investigation on the basis of the FIR lodged by
the frst informant has been shown to be completed qua the
petitioners in Writ Petition and a charge-sheet has been fled
against the petitioners does not preclude this Court from
quashing the FIR and the consequent proceedings, even at
this stage, in exercise of inherent powers. Mr. Setelwad
assailed the initiation and continuation of prosecution, sans
prior examination and consideration of the grievances by the
High Power Committee, in terms of the law laid down by this
Court in the aforesaid cases. It was further urged that, even
on merits, the proceedings deserve to be quashed as they are
nothing but the abuse of process of law.
18. In the alternative, Mr. Setalwad, submitted that even at
this stage there is no hindrance in directing the High Power
Committee to examine the substance of the grievance, raised
in the FIR, and submit a report thereof. Amplifying the
submission it was urged that the core allegation that
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ineligible person were shown in the draft Annexure-II and the
number of slum dwellers has been infated, squarely falls
within the mandate assigned to High Power Committee.
19. Mr. Niteen Pradhan, the learned Counsel for
respondent no.4/Slum Rehabilitation Authority (WP
No.3417/2017) supported the contention of the applicants/
petitioners. Mr. Pradhan would urge that in view of the Full
Bench judgment in the case of Tulsiwadi (supra) and the
circular issued by the Government, the investigating agency
was enjoined to make over the report submitted by the frst
informant to the High Power Committee for further
examination and recommendation, if any. The registration of
FIR, without such examination and recommendation
according to Mr. Pradhan can be stated to be without
jurisdiction. In view of the judgment of the Supreme Court in
4
the case of A.R. Antulay vs. R. S. Nayak and another ,
the registration of the FIR and the consequent investigation,
leading to the fling of charge-sheet is non-est in the eye of law
and is of no consequence, being without jurisdiction.
20. The learned APP, however, supported initiation and
continuation of the prosecution. Since an element of
criminality is found and the investigating agency has lodged
4
( 1988) 2 SCC 602.
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charge-sheet against the petitioners in Writ Petition No.2870
of 2017 and further investigation under Section 173(8) of the
Code of Criminal Procedure (“the Code”) is under-way, at this
stage, according to the learned APP, the exercise of inherent
power to quash the proceedings is unwarranted.
21. Mr. Merchant, the learned Senior Counsel for the frst
informant/respondent no.2 stoutly countered the
submissions on behalf of the applicants/petitioners. It was
urged with tenacity that the broad proposition that no FIR
could be registered without the grievance being frst
examined by High Power Committee is totally misconceived.
Taking us through the judgments of this Court in the cases of
Tulsiwadi (supra) and Shailesh Gandhi (supra) a
painstaking effort was made to bolster up the submission
that neither the Full Bench judgment in the case of
Tulsiwadi (supra) nor the Division Bench judgment in the
case of Shailesh Gandhi (supra) laid down a proposition of law
that even when a cognizable offence is made out in the matter
of development of slum rehabilitation scheme, the
police cannot register a crime. Banking upon certain
observations in the cases of Tulsiwadi (supra) and Shailesh
Gandhi (supra), it was submitted that a proper appreciation
of the ratio of the said judgments would indicate that where
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serious offences are committed in the matter of execution of
SRA schemes, this Court has directed that the matter must
be investigated by the competent investigating agency. What
has been left to the High Power Committee is the
consideration of the grievances in administrative matters. Mr.
Merchant would urge that High Power Committee is neither
statutorily empowered nor competent to investigate into
serious allegations of fraud and the like offences.
22. As regards the judgment of this Court in the case of
Sayed Anwar (supra), it was urged that the facts of the said
case are quite distinct and, thus, the ratio therein would not
govern the facts of the instant case.
23. As the investigating agency has already fled the charge-
sheet against accused Vanmala Kharat (petitioner in Writ
Petition No.2870/2018) and the competent criminal Court has
taken cognizance of the offences, at this stage, even the
suggestion to direct the examination of the matter by the High
Power Committee was stated to be in derogation of
fundamental principles of criminal jurisprudence. The High
Power Committee cannot be placed at a higher pedestal than
a Court of competent jurisdiction, empowered to take
cognizance of the offence. The High Power Committee cannot
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sit in judgment over the existence or otherwise of criminality
in the alleged transactions, of which the concerned Magistrate
has already taken cognizance. Entrusting such power to an
extraneous agency is inconceivable under the scheme of the
Code, in accordance with which only, the investigation,
enquiry and trial of the offences must proceed. This factor,
according to Mr. Merchant, takes the instant case out of the
purview of the direction in the case of Shailesh Gandhi
(supra) as in the said case, the Division Bench had directed
the examination of 87 complaints by High Power Committee
except the one's which are already before the Court of
competent jurisdiction. Thus, the learned Counsel for the frst
informant submitted that none of the petitions deserve to be
countenanced.
Consideration:
24. We have given careful consideration to the submissions
advanced across the bar. We have also perused the material
on record. Since the fate of the issue raised in the instant
application/petitions turns upon the correct construction of
the law enunciated by this Court in the cases of Tulsiwadi
(supra), Shailesh Gandhi (supra) and Anwar Sayed (supra)
and extensive reliance has been placed on the observations in
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the said judgments, in support of the rival submissions, we
deem it appropriate to refer to those judgments at the outset.
25. To start with, the Full Bench decision in Tulsiwadi
(supra). The Full Bench after noticing the spate of litigation
concerning the slum rehabilitation schemes, the diverse
issues involved therein, the necessity of adjudication by Slum
Rehabilitation Authority and State Government and alternate
mechanism for dealing with those grievances, instead of the
parties being forced to invoke the writ jurisdiction of this
Court for every grievance, directed that the State Government
must devise a mechanism to deal with the grievance,
supervise and issue directions.
26. The directions of this Court in paragraphs 113 and 114
are of material signifcance and they read as under:
“113. Till such time as the Legislature or the State
Government makes changes or amendments, it would be just,
fair and proper to direct that a Monitoring
Agency/mechanism should be set up by the State so that the
power to supervise and issue directions available in the Slum
Act can be exercised effectively. The State Government as also
the Slum Rehabilitation Authority has not opposed this
course during oral arguments. Hence, we are of the view that
the State should immediately establish a monitoring agency.
It is necessary to do so for the following reasons:-
114. That apart, with a view to remove all apprehensions in
the minds of slum dwellers and other aggrieved parties, we
suggested to the learned Advocate General that the State
should immediately set up a monitoring agency/mechanism
so that the power to supervise and issue directions available
in the slum Act can be exercised effectively. In all fairness,
learned Advocate General stated that directions be issued in
that behalf. The State should immediately put a monitoring
agency in place.
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…......….....
c) It would be of utmost importance that the
Government sets up high power committee, consisting
of a person, preferably a Principal Secretary, to be
nominated by the Secretary, who shall be assisted by
Chief Executive Offcer / SRA, CEO / Vice President of
MHADA and CEO / Vice President of MMRDA and
Commissioner of Municipal Corporation, Gr. Mumbai.
d) That any complaint about eligibility of slum
dwellers, eligible slum dwellers being denied tenement,
developers not undertaking and completing the project
as per the permission and approval so also within the
stipulated time frame, transit accommodation being
unavailable or not provided for etc. shall be addressed
to this Committee and grievances be looked into by it
accordingly. The Courts cannot be approached
straightway unless and until above mentioned
Committee is frst moved by the aggrieved person in
the form of an application / complaint in writing. If the
grievance is not redressed or complaint /
representation is not attended to, then and in that
event this Court can be approached under Article 226
of the Constitution and not otherwise. Ordinarily, no
person can approach this Court directly without
exhausting the above remedy.”
(emphasis supplied)
27. The Full Bench, answered the reference, inter alia, as
under:
“118. In the result, we answer the question framed
hereinabove as under:-
…...........
D) As far as disputes and questions involving the
slum dwellers and Slum Rehabilitation Authority/Public
Body/State, Cooperative Housing Society of Slum Dwellers
and Developers, Registered Cooperative Housing Society of
Slum Dwellers on one hand and proposed Cooperative Society
on the other, Developers and S.R.A./State, a Writ petition
under Article 226 of the Constitution of India would not lie or
would be entertained unless and until the parties exhaust the
remedy of approaching the High Powered Committee referred
to above.
E) The only exception that can be made to Clause
(D) above, is with regard to Writ petitions challenging the
validity and legality of the Rules, Regulations and Policy
Circulars/ directives issued under the Statutory provisions or
the vires of the Statutory provisions themselves. In such
cases, the Court would not insist upon exhaustion of
remedies stipulated above. Similarly, if a High Powered
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Committee/ Authority refuses to act on the representations/
applications despite proof of the same having been received,
then, in appropriate cases, directions can be issued to the
said Authority. However, the parties must satisfy this Court
that they had made a grievance with regard to inaction of
High Powered Committee to the State Government and it has
also refused to issue any directions to either that Authority or
SRA. Thus, if the State inaction is also alleged, then, the
petition can be entertained. However, grant of relief would
depend upon this Court satisfying itself about the
promptness or sense of urgency shown by the aggrieved party
apart from its bonafdes in approaching this Court.
…............”
28. In the case of Shailesh Gandhi (supra), a public interest
litigation was fled with the assertion that a major fraud was
being perpetrated on the citizens, the slum dwellers and the
State by hiacking a welfare scheme to the beneft of the few at
the cost of the public at large. Several complaints, including
that of commission of serious offences in execution of the
slum rehabilitation schemes were lodged but neither they
were properly investigated nor the culprits were brought to
justice. It was thus prayed that a special investigation team be
directed to be set up for examination of those complaints,
furnish adequate staff to the team to complete those
investigations, expeditiously, and also to take action against
all the erring offcers and the individuals who were involved in
those fraudulent activities.
29. The Division Bench of this Court adverted to the Full
Bench judgment in the case of Tulsiwadi (supra), and the
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th
notifcation issued by the State Government dated 15
November, 2007, constituting the High Power Committee in
furtherance of the directions in the said case and the action
taken by the said High Power Committee on the matters
referred to it. Thereafter, the Division Bench made the
following observation:
“16. We have already mentioned in some details the nature
of these complaints and the necessity for examining them in
accordance with law. 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.........”
30. Ultimately, the Court disposed of the petition by issuing
certain directions to the State Government. The observations
and directions relevant for the determination of the issue
raised in the instant petition, are as under:
“16....... 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
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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. In our view, 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. Thus,
while disposing of this Writ Petition, we issue the following
directions:
(a) All these 87 complaints, except the one's which are
already before the Court of Competent Jurisdiction, would be
examined by the members of the High Powered Committee
constituted by the State and the Committee upon the inquiry
and examination of the relevant records shall record its
opinion.
(b) ….. (c) …... (d) …...
(e) Wherever element of criminality is involved,
particularly in cases of fraud, impersonation or like cases, the
investigation would be handed over to an appropriate agency
which shall then proceed with the matter in accordance with
law and without being infuenced in any manner whatsoever
by the position or status of the person involved in the case.
(f) 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 fnds
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.”
(emphasis supplied)
31. The case of Sayed Anwar (supra) arose out of an order
passed by the learned Magistrate directing investigation under
Section 156(3) of the Code on a complaint fled by the
respondent therein alleging commission of offences
punishable under Sections 452, 465, 466, 468, 471, 420 read
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with Section 34 of the Indian Penal Code in the execution of a
slum rehabilitation scheme. The Division Bench of this Court,
dealt with two issues: (1) the principles which are to be kept
in mind by the Magistrate in passing an order under Section
156(3) of the Code and the pre-requisites for exercise of the
said power, (2) the necessity of referring a complaint alleging
the commission of the offences in the matter of a slum
rehabilitation scheme to the High Power Committee, before a
prosecution is initiated on the strength thereof.
32. On the second aspect, the Division Bench followed the
decision of this Court in the case of Shailesh Gandhi (supra)
and further expounded the law as under:
“28. In the city of Mumbai, there are large number of such
Complaints fled concerning execution and implementation of
several Rehabilitation Schemes which are being implemented
in Mumbai. In view of the law laid down by the decision of
this Court in Shailesh Gandhi Vs State of Maharashtra and
Others, the aggrieved party must frst approach the High
Power Committee. As directed by the said Judgment, if the
High Power Committee fnds that there is an element of
criminality and particularly in cases of fraud, impersonation
and like cases, the High Power Committee will ensure that
the investigation will be handed over to the appropriate
agency. As stated earlier, the Complaint in the present relies
on so called draft prepared containing names of the eligible
slum dwellers. If the complainant has any grievance about
the names included in Annexure – II, he can always approach
High Power Committee. The said Committee can direct setting
of criminal law in motion if it fnds element of criminality.”
(emphasis supplied)
33. With the aforesaid observations, the Division Bench,
quashed and set aside the FIR in the said case with liberty to
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the complainant therein to fle appropriate proceedings before
the High Power Committee for redressal of the grievances.
34. In the backdrop of the enunciation of the aforesaid
position, the submissions now fall for consideration.
Undisputedly, pursuant to the directions of this Court in the
case of Tulsiwadi (supra), the State Government has
constituted a High Power Committee by the notifcation dated
th
15 November, 2007. It is also incontestible that the
subsequently circulars have been issued advising the
investigating agencies to forward the complaints alleging
commission of offences in the execution of slum rehabilitation
schemes to the High Power Committee. By way of illustration,
th
the letter dated 6 August, 2016 addressed by the Home
Department to the Director General, Anti-Corruption Bureau,
makes a reference to the judgments of this Court in the case
of Tulsiwadi (supra) and Shailesh Gandhi (supra) and the
constitution of the High Power Committee by notifcation
th
dated 15 November, 2007 and advises that the complaints
received by the Anti-Corruption Bureau or Economic Offences
Wing or the local police stations, wherein allegations are made
about irregularities in slum rehabilitation scheme, shall be
placed before the High Power Committee and based on the
recommendations of the High Power Committee, further
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actions be taken. It is incontrovertible that in the case at
hand the FIR lodged by the frst informant/respondent no.2
has been registered without prior examination by, and
recommendation of, the High Power Committee.
35. The learned Counsel for respondent no.2 would urge
that the necessity of the examination of the complaint by the
High Power Committee to fnd out the existence of the
criminality as was sought to be urged by the petitioners, does
not fnd support in the judgments of either Tulsiwadi (supra)
or Shailesh Gandhi (supra).
36. In all fairness to the learned Counsel for respondent
no.2, it must be noted that though, Tulsiwadi (supra) did not
specifcally deal with the question as to whether the existence
or otherwise of an element of criminality ought also to be
examined by the High Power Committee, yet, one of the
questions, which was directed to be referred to, and
considered by the High Power Committee was “the complaint
about the eligibility of slum dwellers and eligible slum
dwellers being denied tenement” (paragraph 114 Clause (d)).
37. The gravamen of the indictment, in the instant
prosecution, is that the number of eligible slum dwellers have
been infated from 74 to 169. Thus, the genesis of the dispute
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is in the eligibility of the slum dwellers for rehabilitation in
the proposed society. The offences are alleged to have been
committed in showing ineligible persons as eligible slum
dwellers, by making wrongful gain, and in the process, forging
and fabricating documents. Thus, the core question as to
whether the draft Annexure-II has been prepared faithfully
and in accordance with the governing provisions of eligibility
and entitlement for rehabilitation is a matter which squarely
falls within the ambit of the mandate of High Power
Committee.
38. Undoubtedly, the Full Bench did not specifcally advert
to the question as to whether the FIR ought not be registered,
despite there being allegations of commission of cognizable
offence, before the matter is examined by the High Power
Committee. However, the underlying purpose of the directions
to constitute a High Power Committee to examine the
grievances cannot be lost sight of. The issues involved in the
execution and implementation of slum rehabilitation scheme
are complex. Not only the stakes are high, having regard to
the scarcity of land in Mumbai and the price it commands,
but also the stakeholders are multiple. There are disputes
inter se between the slum dwellers. There are disputes as to
who are the true representatives of the slum dwellers, when
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there are different factions. There is competition amongst the
developers. Various means are adopted to wean away the
maximum number of slum dwellers for bagging the project.
In this backdrop, often the allegations and counter-
allegations, including that of fraud and forgery of documents,
are made. At the root of the controversy is often the eligibility
of a person to get a tenement in the scheme. The necessity of
examination and consideration of the grievances by the High
Power Committee is required to be appreciated in the
backdrop of these complexities, apart from the allegations of
administrative lapses, connivance and complicity of the
offcers and offcials who are involved in the execution of these
projects.
39. The observations of this Court in the case of Shailesh
Gandhi (supra), extracted above, are rather unequivocal. The
Division Bench has, in terms, observed that a kind of
preliminary examination of the complaints would be
necessary before actual investigating machinery is put in
motion. The Court was alive to the fact that the grievances
may or may not involve an element of criminality and, thus, it
was observed that “there might be matters which can be
remedied and corrected at the departmental level, while in
other complaints, element of criminality may be involved
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which requires proper investigation by the concerned
authorities”. Ultimately, the Court issued an operative
direction that those 87 complaints, except the one's which
were already before the Court of competent jurisdiction, would
be examined by the members of the High Power Committee
and it was further directed that wherever an element of
criminality is involved particularly in the case of fraud,
impersonation or like cases the investigation would be handed
over to the proper investigating agency which would then
proceed in the matter in accordance with law. The High
Power Committee was further directed to take assistance of
Additional Commissioner of Police nominated by Director
General of Police, Maharashtra.
40. In the backdrop of the aforesaid observations and
directions, which unmistakably indicate that the Division
Bench of this Court consciously entrusted the examination of
the matters involving the element of criminality as well to the
High Power Committee, with a clear mandate that whenever
such an element of criminality is found the investigation
would be handed over to the proper investigation agency, we
fnd it rather diffcult to accede to the submission of Mr.
Merchant that Shailesh Gandhi (supra), also directly does not
deal with the prior examination of the complaints by the High
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Power Committee.
41. An attempt was made to wriggle out of the situation by
putting forth a submission that those directions were limited
to the cases of 87 complaints, which the Division Bench was
dealing with, and they cannot be construed as laying down a
proposition of law. We are not persuaded to agree with this
submission for reasons more than one. The directions are
required to be read in the context of the judgment of this
Court in the case of Tulsiwadi (supra) in pursuance of which
the High Power Committee has been constituted. It can not
be urged that the object and reasons for which the High
Power Committee was directed to be constituted do not hold
the feld in the complaints post Shailesh Gandhi (supra).
Secondly, the aforesaid directions in the case of Shailesh
Gandhi (supra) have been subsequently followed by this Court
as being operative and binding even in other complaints, in
the case of Sayed Anwar (supra).
42. As observed earlier, the genesis of the prosecution is in
the inclusion and the exclusion of the names in the draft
th
Annexure-II published on 16 April, 2015. Thus, the
endeavour on behalf of the respondents to distinguish the
aforesaid pronouncement in the case of Sayed Anwar (supra),
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on facts, also does not deserve any countenance.
43. There is no quarrel with the proposition that when a
report about the commission of cognizable offence is lodged,
the investigating agency is bound to register an FIR. The
Constitution Bench Judgment of the Supreme Court in the
5
case of Lalita Kumari vs. Governmet of Uttar Pradesh & ors.
sets at rest the controversy and ordains that if the
information discloses commission of a cognizable offence, the
registration of FIR is mandatory under Section 154 of the
Code and no preliminary enquiry is permissible in such a
situation. Yet, in certain situations, compliance of certain
pre-requisites or conformity with certain requirements, before
registration of FIR is not unknown to law. The interdict on
registration of FIR by the investigating agency, initiation and
continuation of the prosecution may be in the nature of
statutory bar, where the governing enactment provides that
FIR shall not be registered unless a prior action is taken or
approval of an authority is obtained.
44. It would be contextually relevant to note that in the case
6
of State of Haryana and others vs. Bhajanlal and others, the
Supreme Court has indicated, by way of illustration, a
5 (2014) 2 SCC 1.
6 1992 (Supp.) (1) SCC 335.
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category wherein the power to quash the prosecution under
Section 482 of the Code could be legitimately exercised, being;
“6. Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceeding and/or where there is a
specifc provision in the Code or the concerned Act, providing
effcacious redress for the grievance of the aggrieved party.”
45. In the case at hand, evidently there is no statutory bar.
However, this Court, having regard to the complexities of the
slum rehabilitation scheme, the multiple stakeholders therein
and the ultimate deleterious impact on the rights of the slum
dwellers for whose rehabilitation, the Slum Act, 1971 has
been enacted, directed that the matter needs to be examined
by the High Power Committee before a prosecution is initiated.
The institution of a prosecution often entails collateral
consequnces, like the delay in the execution of the project as
in the case at hand. Ultimately, the genuine and eligible slum
dwellers are deprived of the benefcial provisions of the Act
and the scheme thereunder.
46. It is imperative to note that such preliminary
examination, by the orders of the Court, is also not something
which has not been hitherto resorted to. A proftable
reference, in this context, can be made to the judgment of the
Surpreme Court in the case of Jacob Mathew vs. State of
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7
Punjab, wherein in the context of criminal medical
negligence, the Supreme Court, inter alia, directed that the
investigating offcer should, before proceeding against the
doctor accused of rash and negligent act or omission, obtain
an independent and competent medical opinion preferably
from a doctor in a Government Service, qualifed in that
branch of medical practice who can normally be expected to
give an impartial and unbiased opinion applying the Bolam
test to the facts included in the investigation.
47. The judgment of the Supreme Court in the case of
Jacob Mathew (supra) was expressly approved by the
Constitution Bench in the case of Lalita Kumari (supra),
wherein it was observed as under:
“115. Although, we, in unequivocal terms, hold that Section
154 of the Code postulates the mandatory registration of FIRs
on receipt of all cognizable offence, yet, there may be
instances where preliminary inquiry may be required owing to
the change in genesis and novelty of crimes with the passage
of time. One such instance is in the case of allegations
relating to medical negligence on the part of doctors. It will be
unfair and inequitable to prosecute a medical professional
only on the basis of the allegations in the complaint.”
48. In view of aforesaid enunciation of the legal position, we
are not persuaded to accede to the submission of Mr.
Merchant that once a report of cognizable offence is lodged,
the matter completely falls in the realm of the investigating
7 (2005) 6 SCC 1.
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agency and, thus, a further enquiry by an extraneous agency
like High Power Committee is not legally permissible. In view
of the unequivocal observations of this Court in the case of
Sayed Anwar (supra), now the person complaining of the
commission of offences in the execution of the slum
rehabilitation schemes, under the Act, must frst approach
the High Power Committee and it is not open to the
investigating agency to directly initiate the prosecution on the
basis of such a report.
49. This propels us to the submission on behalf of the
respondent that since the investigation in the instant
prosecution has reached an advanced stage; culminating in
fling of the charge-sheet against Vanmala Kharat and Yuvraj
Kharat, and even the learned Magistrate has taken cognizance
of the offences, at this juncture, examination of the matter by
the High Power Committee is legally impermissible, and may
not serve any purpose as well.
th
50. Respondent no.2 lodged FIR on 26 February, 2016.
The judgment in the case of Sayed Anwar (supra) was
th
pronounced on 28 February, 2017. However, the charge-
th
sheet was lodged by the investigating agency on 13 April,
2017. Thus, in strict sense, the investigating agency cannot be
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heard to state that since the pronouncement of the High
Court in the case of Sayed Anwar (supra) came subsequent to
the registration of the FIR, there is no infrmity in the
prosecution.
51. We are, however, inclined to deal with the submission on
behalf of the respondents that once cognizance of the offences
has been taken by the Court of competent jurisdiction, the
High Power Committee cannot examine the matter as a
superior forum. Since the learned Magistrate has taken
cognizance of the offences, albeit the charge-sheet having
been fled against few of the accused, the High Power
Committee cannot now examine the matter to fnd out as to
whether there is an element of criminality, urged the learned
Counsel for the respondents.
52. First and foremost, so far as the powers of this Court to
quash the proceedings, in exercise of inherent jurisdiction,
the fling of the charge-sheet cannot operate as an
impediment. If the Court fnds that the initiation of the
prosecution suffers from the vice of abuse of the process, the
fact that the matter has advanced to the stage of fling of the
charge-sheet and taking of the cognizance of the offences by
the Court, is of no signifcance.
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53. The reliance placed by Mr. Jha, the learned Counsel for
the petitioner on a judgment of the Supreme Court in the case
of Anand Kumar Mohatta vs. State (Government of NCT of
8
Delhi) , wherein it was observed that there is nothing in the
words of Section 482 which restricts the exercise of the power
of the Court to prevent the abuse of process of Court or
miscarriage of justice only to the stage of the FIR and that it
is settled principle of law that the High Court can exercise
jurisdiction under Section 482 of Cr.P.C. even when the
discharge application is pending with the Trial Court. It was
further observed that it can be said that the abuse of process
caused by FIR stands aggravated if the FIR has taken the
form of a charge-sheet after investigation.
54. The question which, however, warrants serious
consideration is whether it would be proper for this Court to
quash the proceedings at this stage, when investigation is
complete and charge-sheet has been lodged on the premise
that the FIR ought not to have been registered without the
matter having been frst examined by the High Power
Committee. It is in the interest of public justice that an
offence should not go uninvestigated if not unpunished.
Indeed, if certain offences have been committed in the
8
2018 SCC Online SC 2447.
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preparation of Draft Annexure-II, the perpetrators must be
prosecuted and punished, if found guilty. Viewed through
this prism, the progress made in the prosecution till date may
not be rendered worthless provided an element of criminality
is found by High Power Committee. We do not fnd any
impediment in the examination of the matter, even at this
stage, by the High Power Committee.
55. Without professing to question or dilute the binding
effcacy of any of the aforesaid judgments, namely, Tulsiwadi
(supra), Shailesh Gandhi (supra) and Sayed Anwar (supra), in
the peculiar facts of the case, in our view, the examination of
the matter at this stage by the High Power Committee neither
for the purpose of fnding out as to whether the act of taking
cognizance of the offences by the Magistrate is correct, nor in
the capacity of the superior forum, as was sought to be urged
on behalf of the respondents, but in discharge of its mandate
to examine the grievance of alleged illegalities in preparation
of the draft Annexure-II and also to fnd out element of
criminality, if any, may not be out of place. The High Power
Committee, can very well examine all the aspects of the
matter, uninfuenced by the opinion formed by the
investigating agency, and submit a report to this Court. Such
a report, may also assist this Court in appreciating the
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contentions raised by the parties, on the merits of the mater.
We are thus inclined to pass the following order:
: O R D E R :
(a) The Senior Police Inspector, Economic Offences
Wing, Housing-II, Mumbai, is directed to place the
FIR bearing EOW No.38 of 2016 (CR No.44 of 2016,
registered with Gowandi Police Station) along with
the relevant documents, before the High Power
Committee (Apex Grievance Redressal Committee)
for examination and consideration within three
weeks from today.
(b) The High Power Committee (Apex Grievance
Redressal Committee) shall deal with the said FIR
and the material placed before it by the Senior
Police Inspector (EOW), in accordance with law,
after providing an opportunity of hearing to the
persons whom it deems necessary to hear and
thereupon submit a report to this Court, especially
on the aspect of an element of criminality,
particularly on the aspect of fraudulent inclusion of
the names in the draft Annexure-II, if any, as
expeditiously as possible, preferably within three
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months from the date of placing of the FIR and
material before it by EOW.
(c) Stand over after four months.
(d) In the meanwhile, there shall be stay to the trial in
RCC No.578/PW/2017 arising out of EOW CR
No.38 of 2016 (CR No.44 of 2016, Govandi Police
th
Station) pending before 47 Metropolitan
Magistrate Court, Mumbai, and further
investigation in the said crime, till the next date.
[N. J. JAMADAR, J.] [RANJIT MORE, J.]
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1010 OF 2017
Harshad Anil Kale and anr. ...Applicants
Versus
The State of Maharashtra (through the
Economic Offences Wings)
…Respondent
WITH
WRIT PETITION NO. 3417 OF 2017
Nilesh Modi ...Petitioner
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors.
…Respondents
WITH
WRIT PETITION NO. 2870 OF 2018
Vanmala Kharat & anr. ...Petitioners
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors. …Respondents
WITH
CRIMINAL APPLICATION NO. 117 OF 2018
IN
WRIT PETITION NO. 3417 OF 2017
Ravindra B. Mhatre ...Applicant
In the matter between
Nilesh Modi ...Petitioner
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors.
…Respondents
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WITH
CRIMINAL APPLICATION NO. 968 OF 2017
IN
CRIMINAL APPLICATION NO. 1010 OF 2017
Chitra A. Salunke ...Applicant
In the matter between
Harshad Anil Kale and anr. ...Applicants
Versus
The State of Maharashtra (through the
Economic Offences Wings) and ors. …Respondents
Mr. Karansingh Rajput a/w Kunawal Waghmare for the
Applicant in APL No.1010/2017 and for the
Respondent/MCGM in Writ Petition Nos.3471/2017
and 2870/2018.
Mr. Kevic Setalwad, Senior Advocate, a/w Sunny Punamia I/
b Harsh Agrawal, for the Petitioner in WP
No.2870/2018.
Mr. Subhash Jha, a/w Sanjana Pardeshi, Sunny Puamia I/b
M/s. SSP Legal for the Petitioner in WP No.3417/2017.
Mr. F. R. Shaikh, APP a/w Ms. S. D. Shinde, APP for the
State.
Mr. Rizwan Merchant, Senior Advocate, I/b Mr. Pradeep
Havnur, for the Intervenor/Applicant in APPA
No.968/2017 and APPW No.117/2018 and for
Respondent no.2 in WP No.3417/2017 and WP
No.2871/2018.
Mr. Niteen Pradhan a/w Abhiit Desai, I/b M/s. Desai Legal
for Respondent no.4/SRA in WP No.3417/2017.
CORAM: RANJIT MORE &
N. J. JAMADAR, JJ
th
RESERVED ON: 26 AUGUST, 2019
th
PRONOUNCED ON: 19 SEPTEMBER, 2019
ORDER:- (Per N. J. Jamadar)
1. These criminal application and writ petitions have been
preferred for quashment of the First Information Report
(“FIR”) bearing CR No.44 of 2016 registered with Govandi
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Police Station, Mumbai (EOW CR No.38 of 2016) and the
consequent proceedings, being RCC No.578/PW/2017
th
pending on the fle of 47 Metropolitan Magistrate Court,
Mumbai, arising out of the registration of the said FIR for the
offences punishable under Sections 406, 420, 465, 467, 468,
471 read with Section 34 of the Indian Penal Code, by the
accused who have been arraigned therein.
2. As the very action of registration of the FIR is called in
question, apart form the merits of the matter having bearing
upon the question of quashment of the subject FIR and the
consequent proceedings, we have heard the learned Counsels
for the parties on the aspect of justifability of registration of
the FIR, in the absence of prior examination of the matter by
the High Power Committee, now designated as the Apex
Grievance Redressal Committee (“AGRC”) under Section 35 of
the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (“the Slum Act, 1971”).
3. The brief factual matrix giving rise to the instant
application and the petitions can be stated as under:
A scheme under the Slum Act, 1971 for rehabilitating
slum dwellers in a housing society, under the name and style
of Shri. Sant Balumama Sahakari Grahnirman Sanstha
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(proposed) (hereinafter referred to as “the Society”) was
initially conceived and commenced in the year 2006. M/s.
Srushti Raj Enterprises (India) Ltd. (“M/s. Shrushti Raj”) was
then appointed as the developer for the said scheme
(hereinafter referred to as “original SRA scheme”). In the year
2010, a proposal came to be submitted for Cluster
Development Slum Rehabilitation Scheme, for development of
approximate 1,89,000 sq. mtrs. of land, including the land
upon which the “society” was proposed, at village Borla,
Taluka Chembur, Mumbai Sub-urban District, Mumbai
(hereinafter referred to as “the Cluster Development Scheme”).
Certain proceedings were initiated by M/s. Srushti Raj, the
developer of the original scheme, and M/s. Sterling Buildcon
Pvt. Ltd. (“M/s. Sterling”), the developer of the Cluster
Development Scheme, to which we shall make a reference a
little later. As the draft Annexure-II, containing names of 159
slum dwellers was published by the offcers of the Municipal
th
Corporation of Greater Mumbai, on 16 April, 2015, certain
allegations of improper, unjustifed and fraudulent inclusion
of the members therein were made.
The FIR:
th
4. On 16 February, 2016, Advocate Smt. Chitra Anant
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Salunke (hereinafter referred to as “the frst informant”)
lodged a report with the Director General of Police, Anti
Corruption Bureau, Mumbai, alleging a large scale fraud in
the SRA Scheme relating to Shri. Sant Balumama Housing
Society. The substance of the allegation was that one
Vanmala Kharat, wife of Yuvraj Hanumat Kharat (the then
Deputy Treasurer of the society), usurped the powers of the
offce bearers of Shri. Sant Balumama Housing Society, upon
the death of one Arun Tukaram Jadhav, the then Secretary.
Vanmala Kharat arrogated offce of the President of the said
society for her husband. Vanmala Kharat initially established
a rapport with the builder, namely, Nilesh Modi of M/s.
Sterling and subsequently blackmailed him. Vanmala Kharat,
in connivance with the builder and offcers of the Municipal
Corporation and Slum Rehabilitation Authority, gave false and
fabricated receipts of membership of the society to the
persons who were not otherwise eligible slum dwellers by
accepting huge amount from them. The persons, who were
having one tenement were shown to possess multiple
tenements. Ineligible slum dwellers and those who were not
at all residing on the land in question were shown to be the
slum dwellers. It was further alleged that for causing
wrongful gain to Mr. Nilesh Modi, by showing the consent of
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more than 70% members of the proposed SRA society, the
ineligible persons were shown to be members and the list of
the slum dwellers was infated in pursuance of a conspiracy
by the said Vanmala Kharat, her associates, developer Mr.
Nilesh Modi and the offcers of Municipal Corporation of
Greater Mumbai, especially, Mr. Harshad Anil Kale, the then
Assistant Commissioner, and Mr. Sayyad Iqbal Ahmad Kadir,
the then Rent Controller.
5. On the basis of the said report initially a crime was
registered at Gowandi police station (CR No.44 of 2016) and
subsequently it came to be transferred to Economic Offences
Wing (EOW CR No.38 of 2016). In all 12 persons including
applicants/petitioners herein, namely, Mr. Harshad Kale, Mr.
Sayyad, Mr. Nilesh Modi, Smt. Vanmala Kharat and Mr. Yuvraj
Kharat have been arraigned as accused therein.
Applications and Petitions:
6. In the backdrop of the initiation of the prosecution in
the aforesaid fashion, Mr. Harshad Kale and Mr. Sayyad, the
offcers of the Mumbai Municipal Corporation have invoked
the inherent powers of this Court for quashment of the FIR
by fling Criminal Application No.1010 of 2017. The
applicants assert that they had issued the public notice of
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draft Annexure II, inviting suggestions and objections in
respect of Shri. Sant Balumama Co-operative Housing Society,
th
on 16 April, 2015, in adherence to the order passed by this
Court in Notice of Motion (L) No.204 of 2014 in Writ Petition
No.1165 of 2012. The applicants aver that there was no
element of criminal conspiracy as in terms of the aforesaid
th
order dated 14 August, 2014, passed by this Court, the
developer was granted one year's time to obtain the consent of
70% of eligible slum dwellers. What the applicants had done,
in discharge of their offcial duties and in compliance of the
order passed by this Court, was just to publish the draft
Annexure-II inviting suggestions and objections. Thus, the
allegations against the applicants are ex facie false and
motivated. The frst informant has lodged the report mala fde.
The frst informant has no concern with, much less interest
in, the said scheme.
7. It is further averred that in view of the binding judicial
pronouncements of this Court, the police could not have
registered the FIR without the matter having been frst
examined by the High Power Committee, constituted
pursuant to orders of this Court for consideration and
determination of grievances in respect of the SRA schemes.
This haste in registering the FIR, in defance of the orders of
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this Court, has caused grave miscarriage of justice and thus
on this count, as well as on the merits, the FIR deserves to be
quashed.
8. Writ Petition No.3417 of 2007 is fled by Mr. Nilesh Modi
of M/s. Sterling, whose proposal for cluster development has
been approved. After narrating the history of the said slum
development scheme and the various orders passed by this
Court, in pursuance of which the development of the said
scheme has ultimately commenced, the petitioner asserts that
the driving force behind the prosecution is erstwhile
developer, namely, M/s. Srushti Raj, who lost out on the
development of the scheme. It is alleged that the frst
informant has been set up by M/s. Srushti Raj. The
allegations in the FIR are stated to be patently false, baseless
and unworthy of investigation. The very registration of the
FIR is, in fact, an egregious disobedience of the series of
orders passed by this Court which mandate the consideration
of the grievances by the High Power Committee before any FIR
is registered in the matter of allegations of criminality in the
development of slum rehabilitation schemes.
9. Writ Petition No.2870 of 2018 is fled by the accused
Vanmala Kharat and Yuvraj Kharat. The quashment of the
FIR and the consequent proceedings is sought on the count
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of the breach of the binding orders of this Court in the matter
of registration of the FIR and alleged malafde report by the
frst informant at the behest of M/s. Shrushti Raj.
10. The applicants and petitioners thus seek the quashment
of the FIR and the consequent proceedings.
11. In contrast, the frst informant has fled an application
being Criminal Application No.968 of 2017 in Criminal
Application No.1010 of 2017, seeking the permission to
intervene in the matter and resist the prayer of the applicants
to quash the FIR. Mr. Ravindra Mhatre, another local
resident, has fled Application No.117 of 2018 in Writ Petition
No.3417 of 2017, raising similar contentions.
12. We have heard Mr. Rajput, the learned Counsel for the
applicants (in Application No.1010/2017) and for Respondent
no.3/MCGM (in Writ Petition Nos.3417/2017 and
2870/2018), Mr. Setalwad, the learned Senior Counsel for
the petitioners (in WP No.2870/2018), Mr. Jha, the learned
Counsel for the Petitioner (in WP No.3417/2017), Mr.
Merchant, the learned Senior Counsel for the frst
informant/intervenor (in Application No.968/2017 and
Application No.117/2018) and for Respondent no.2 (in WP
No.3417/2017), Mr. Pradhan, the learned Counsel for
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Respondent no.4/SRA in WP No.3417/2017 and Mr. Shaikh
the learned APP for the State, at considerable length. The
parties have also tendered written submissions.
Resume of history of litigation:
13. Before we advert to record and deal with the
submissions advanced by the learned Counsels, in order to
appreciate the controversy in a correct perspective, it would
be apposite to note the history of litigation in the matter of
rival claims to develop the original scheme and cluster
development scheme.
13.1 The original developer M/s. Shrushti Raj
fled Writ Petition No.879 of 2012, assailing the order dated
th
10 January, 2012 passed by the Chief Executive Offcer, SRA
(respondent no.2 therein), whereby the development proposal
fled by M/s. Sterling (respondent no.3 therein) was directed
to be considered and that of the M/s. Shrushti Raj was not
favourably considered, and the said petitioner was directed to
submit NOC from the owners of the plots within four weeks
and/or to submit a copy of the award passed by the
competent authority, if any, as alleged by them, within
four weeks. It was further directed that if the petitioner
failed to comply with the above terms, its proposal shall
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stand recorded i.e. rejected.
th
A Division Bench of this Court, by order dated 11
May, 2012, disposed of the petition by granting the petitioners
therein an opportunity to approach the High Power
Committee in respect of their grievances including those
raised in the said petition. We are informed that the special
leave petitions fled against the said order came to be
th
dismissed by the Supreme Court on 8 September, 2015.
13.2 M/s. Sterling and Mr. Nilesh Modi fled Writ
th
Petition No.1165 of 2012, assailing the order dated 24 April,
2012 passed by the State Government, whereby the circular
th
dated 12 November, 2010 and the provisional Letter of Intent
th
dated 7 December, 2010, both issued by the Slum
Rehabilitation Authority in favour of the petitioners therein,
came to be cancelled. The action of the State Government
th
cancelling its own letter dated 8 October, 2010 under which
the petitioners proposal for slum rehabilitation scheme was
approved by the Government, was also assailed therein.
13.3 A Division Bench of this Court by the judgment
th
and order dated 24 September, 2013, allowed the petition in
the following terms.
“55. In the result, the impugned order dated 24 April 2012 is
quashed and set aside.
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(1) It is declared that the Government approval dated 8
October 2010 read with Government letter dated 11 November
2010 and the SRA circular dated 12 November 2010 are in
accordance with the provisions of the Slum Act, including
sections 3A and 3K thereof.
(2) As a consequential direction, the respondents are
directed to treat the circular dated 12 November 2010 and the
provisional LOI dated 7 December 2010 issued by SRA as
subsisting with modifcation that the petitioner shall be
permitted to submit draft Annexures II for slum dwellers,
other than those for whom the petitioner had already
submitted the draft Annexures II by 31 March 2014.
(3) Within one year from the date of Competent Authority
certifying Annexures II, the petitioner shall obtain consent in
writing of 70% of the eligible slum dwellers as already
provided in clause 2.17 of the Government Approval dated 8
October 2010, which shall also be treated as subsisting with
the clarifcations contained in Government letter dated 11
November 2010, accepting the suggestions of SRA made in
SRA letters dated 16 October and 3 November 2010.”
(emphasis supplied)
13.4 The Special Leave Petition CC No.2807 of 2014
th
preferred against the said judgment and order dated 24
September, 2013, was dismissed by the Supreme Court by
th
order dated 7 March, 2014.
13.5 The Division Bench of this Court passed further
order in Notice of Motion (L) No.204 of 2014 in Writ Petition
No.1165 of 2012. Paragraphs 10 to 12 of the said order dated
th
14 August, 2014, read as under:
“10. The MCGB shall, therefore, proceed to certify Annexures-
II in light of the above without insisting for any NOC from the
Estate Department in respect of payment of 25% premium or
without insisting for consent of 70% of the eligible slum
dwellers which consent is to be provided by the Petitioners
within one year from certifcation of Annexures-II, as was
already provided in paragraph 55 of our judgment dated 24
September 2013.
11. Learned counsel for the Petitioners has placed on
record a statement indicating the proposed co-operative
housing societies of the slum dwellers for which the MCGB
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has already displayed provisional Annexure-II. These societies
are as under :
(i) Kashinath Patil Wadi and Mukti Nagar (SRA) CHS
(proposed),
(ii) Vaibhav Nagar (SRA) CHS Ltd;
(iii) Om Asha Kiran (SRA) CHS (proposed);
(iv) Sai Vitthal Rukmini (SRA) CHS (proposed);
(v) Bhramhandev MS Patil Wadi (SRA) CHS (proposed)
and
(vi) Surya Kiran (SRA) CHS (proposed)
In respect of items societies at sr.nos.(i) to (iv) above, the fnal
certifcation will be done by MCGB by 15 September 2014 and
in respect of (v) and (vi) above the certifcation shall be done
by MCGB by 31 December 2014. For other sixteen proposed
co-operative housing societies, the MCGB shall make
certifcation by 31 December 2015 at the rate of four societies
per quarter.
12. Accordingly, present Notice of Motion (L) No.204 of
2014 stands allowed in above terms. Notice of Motion (L)
No.479 of 2014 taken out for clarifcation/modifcation of our
order dated 24 September 2013 by MCGB stands dismissed.”
(emphasis supplied)
13.6 Special Leave Petition Nos.26546 and 26547 of
2014, preferred against the said order, were disposed of by the
th
Supreme Court by order dated 24 September, 2014 with the
following modifcation:
“Shri. Shyam Divan, learned Senior Counsel appearing
for the frst respondent, on instructions, states that frst
respondent has already paid the frst installment of 25% of
the land premium payable to the Slum Rehabilitation
Authority (S.R.A.). Keeping in view the aforesaid made by
Shri. Shyam Divan, we declined to entertain these special
leave petitions.
In respect of Societies at serial Nos.(i), (iii) and (iv), as
stated in the impugned order, the fnal certifcation shall be
done by MCGB on or before 30.11.2014.”
14. In the backdrop of the aforesaid orders, it becomes
abundantly clear that the legal rights of M/s. Sterling to
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develop the cluster development scheme, including the SRA
scheme of Shri. Sant Balumama Housing Society (proposed)
attained fnality. Conversely, the clam of M/s. Shrushti Raj to
develop the original scheme did not pass muster. M/s.
st
Sterling was permitted to submit draft Annexure-II by 31
March, 2014. The MCGM was directed to make certifcation of
st
draft Annexure-II by 31 December, 2015. Liberty was given to
M/s. Sterling to obtain consent in writing of 70% of the
eligible slum dwellers, within one year from Competent
Authority certifying Annexure-II. The subsequent action of
the concerned authorities as well as the offce bearers of the
society and the developers are required to be considered in
the backdrop of the aforesaid crystallization of the rights and
obligations.
Submissions :
15. Mr. Jha, the learned Counsel for the petitioner
(WP3417/17) submitted that the initiation of the prosecution
based on the FIR lodged by the frst informant is an atrocious
abuse of process of law. By placing reliance upon the
judgments of this Court in the cases of (i) Tulsiwadi
Navnirman Co-op. Housing Society ltd. and another Vs.
1
State of Maharshtra and ors. , (ii) Shailesh Gandhi vs.
1 2008(1) BCR 1.
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2
State of Maharashtra and others and (iii) Sayed Anwar
3
Ahmed and anr. vs. State of Maharashtra and others it
was vehemently urged that the FIR and the consequent
proceedings initiated without an examination by, and
recommendation of, High Power Committee are wholly
unsustainable and unjust as well. The offcers, who brazenly
registered the FIR, in teeth of the law laid down by this
Court, in a series of judgments which mandate the
examination of the grievances as regards the SRA scheme by
the High Power Committee, have committed not only an
illegality but a wilful contempt of this Court. Thus, the FIR
and the consequent proceedings deserve to be quashed on
this count alone and the concerned offcers are liable to be
proceeded against in contempt jurisdiction, urged Mr. Jha.
16. Mr. Jha, further submitted that the sole purpose of the
instant prosecution is to derail the cluster development
scheme, which has been allotted to the petitioner, despite the
challenge to the said allotment having been negatived
repeatedly, and up to the Supreme Court. As the
continuation of the prosecution is being cited as an
hindrance in granting permission for the petitioner to carry
2 2010(2) BCR 408.
3 2017 SCC Online Bom. 3972.
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on the development, the instant prosecution deserves to be
quashed and set aside to prevent the abuse of law and secure
ends of justice.
17. Mr. Setalwad, the learned Senior Counsel for the
petitioners (Writ Petition No.2870/2018) submitted that the
fact that the investigation on the basis of the FIR lodged by
the frst informant has been shown to be completed qua the
petitioners in Writ Petition and a charge-sheet has been fled
against the petitioners does not preclude this Court from
quashing the FIR and the consequent proceedings, even at
this stage, in exercise of inherent powers. Mr. Setelwad
assailed the initiation and continuation of prosecution, sans
prior examination and consideration of the grievances by the
High Power Committee, in terms of the law laid down by this
Court in the aforesaid cases. It was further urged that, even
on merits, the proceedings deserve to be quashed as they are
nothing but the abuse of process of law.
18. In the alternative, Mr. Setalwad, submitted that even at
this stage there is no hindrance in directing the High Power
Committee to examine the substance of the grievance, raised
in the FIR, and submit a report thereof. Amplifying the
submission it was urged that the core allegation that
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ineligible person were shown in the draft Annexure-II and the
number of slum dwellers has been infated, squarely falls
within the mandate assigned to High Power Committee.
19. Mr. Niteen Pradhan, the learned Counsel for
respondent no.4/Slum Rehabilitation Authority (WP
No.3417/2017) supported the contention of the applicants/
petitioners. Mr. Pradhan would urge that in view of the Full
Bench judgment in the case of Tulsiwadi (supra) and the
circular issued by the Government, the investigating agency
was enjoined to make over the report submitted by the frst
informant to the High Power Committee for further
examination and recommendation, if any. The registration of
FIR, without such examination and recommendation
according to Mr. Pradhan can be stated to be without
jurisdiction. In view of the judgment of the Supreme Court in
4
the case of A.R. Antulay vs. R. S. Nayak and another ,
the registration of the FIR and the consequent investigation,
leading to the fling of charge-sheet is non-est in the eye of law
and is of no consequence, being without jurisdiction.
20. The learned APP, however, supported initiation and
continuation of the prosecution. Since an element of
criminality is found and the investigating agency has lodged
4
( 1988) 2 SCC 602.
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charge-sheet against the petitioners in Writ Petition No.2870
of 2017 and further investigation under Section 173(8) of the
Code of Criminal Procedure (“the Code”) is under-way, at this
stage, according to the learned APP, the exercise of inherent
power to quash the proceedings is unwarranted.
21. Mr. Merchant, the learned Senior Counsel for the frst
informant/respondent no.2 stoutly countered the
submissions on behalf of the applicants/petitioners. It was
urged with tenacity that the broad proposition that no FIR
could be registered without the grievance being frst
examined by High Power Committee is totally misconceived.
Taking us through the judgments of this Court in the cases of
Tulsiwadi (supra) and Shailesh Gandhi (supra) a
painstaking effort was made to bolster up the submission
that neither the Full Bench judgment in the case of
Tulsiwadi (supra) nor the Division Bench judgment in the
case of Shailesh Gandhi (supra) laid down a proposition of law
that even when a cognizable offence is made out in the matter
of development of slum rehabilitation scheme, the
police cannot register a crime. Banking upon certain
observations in the cases of Tulsiwadi (supra) and Shailesh
Gandhi (supra), it was submitted that a proper appreciation
of the ratio of the said judgments would indicate that where
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serious offences are committed in the matter of execution of
SRA schemes, this Court has directed that the matter must
be investigated by the competent investigating agency. What
has been left to the High Power Committee is the
consideration of the grievances in administrative matters. Mr.
Merchant would urge that High Power Committee is neither
statutorily empowered nor competent to investigate into
serious allegations of fraud and the like offences.
22. As regards the judgment of this Court in the case of
Sayed Anwar (supra), it was urged that the facts of the said
case are quite distinct and, thus, the ratio therein would not
govern the facts of the instant case.
23. As the investigating agency has already fled the charge-
sheet against accused Vanmala Kharat (petitioner in Writ
Petition No.2870/2018) and the competent criminal Court has
taken cognizance of the offences, at this stage, even the
suggestion to direct the examination of the matter by the High
Power Committee was stated to be in derogation of
fundamental principles of criminal jurisprudence. The High
Power Committee cannot be placed at a higher pedestal than
a Court of competent jurisdiction, empowered to take
cognizance of the offence. The High Power Committee cannot
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sit in judgment over the existence or otherwise of criminality
in the alleged transactions, of which the concerned Magistrate
has already taken cognizance. Entrusting such power to an
extraneous agency is inconceivable under the scheme of the
Code, in accordance with which only, the investigation,
enquiry and trial of the offences must proceed. This factor,
according to Mr. Merchant, takes the instant case out of the
purview of the direction in the case of Shailesh Gandhi
(supra) as in the said case, the Division Bench had directed
the examination of 87 complaints by High Power Committee
except the one's which are already before the Court of
competent jurisdiction. Thus, the learned Counsel for the frst
informant submitted that none of the petitions deserve to be
countenanced.
Consideration:
24. We have given careful consideration to the submissions
advanced across the bar. We have also perused the material
on record. Since the fate of the issue raised in the instant
application/petitions turns upon the correct construction of
the law enunciated by this Court in the cases of Tulsiwadi
(supra), Shailesh Gandhi (supra) and Anwar Sayed (supra)
and extensive reliance has been placed on the observations in
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the said judgments, in support of the rival submissions, we
deem it appropriate to refer to those judgments at the outset.
25. To start with, the Full Bench decision in Tulsiwadi
(supra). The Full Bench after noticing the spate of litigation
concerning the slum rehabilitation schemes, the diverse
issues involved therein, the necessity of adjudication by Slum
Rehabilitation Authority and State Government and alternate
mechanism for dealing with those grievances, instead of the
parties being forced to invoke the writ jurisdiction of this
Court for every grievance, directed that the State Government
must devise a mechanism to deal with the grievance,
supervise and issue directions.
26. The directions of this Court in paragraphs 113 and 114
are of material signifcance and they read as under:
“113. Till such time as the Legislature or the State
Government makes changes or amendments, it would be just,
fair and proper to direct that a Monitoring
Agency/mechanism should be set up by the State so that the
power to supervise and issue directions available in the Slum
Act can be exercised effectively. The State Government as also
the Slum Rehabilitation Authority has not opposed this
course during oral arguments. Hence, we are of the view that
the State should immediately establish a monitoring agency.
It is necessary to do so for the following reasons:-
114. That apart, with a view to remove all apprehensions in
the minds of slum dwellers and other aggrieved parties, we
suggested to the learned Advocate General that the State
should immediately set up a monitoring agency/mechanism
so that the power to supervise and issue directions available
in the slum Act can be exercised effectively. In all fairness,
learned Advocate General stated that directions be issued in
that behalf. The State should immediately put a monitoring
agency in place.
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…......….....
c) It would be of utmost importance that the
Government sets up high power committee, consisting
of a person, preferably a Principal Secretary, to be
nominated by the Secretary, who shall be assisted by
Chief Executive Offcer / SRA, CEO / Vice President of
MHADA and CEO / Vice President of MMRDA and
Commissioner of Municipal Corporation, Gr. Mumbai.
d) That any complaint about eligibility of slum
dwellers, eligible slum dwellers being denied tenement,
developers not undertaking and completing the project
as per the permission and approval so also within the
stipulated time frame, transit accommodation being
unavailable or not provided for etc. shall be addressed
to this Committee and grievances be looked into by it
accordingly. The Courts cannot be approached
straightway unless and until above mentioned
Committee is frst moved by the aggrieved person in
the form of an application / complaint in writing. If the
grievance is not redressed or complaint /
representation is not attended to, then and in that
event this Court can be approached under Article 226
of the Constitution and not otherwise. Ordinarily, no
person can approach this Court directly without
exhausting the above remedy.”
(emphasis supplied)
27. The Full Bench, answered the reference, inter alia, as
under:
“118. In the result, we answer the question framed
hereinabove as under:-
…...........
D) As far as disputes and questions involving the
slum dwellers and Slum Rehabilitation Authority/Public
Body/State, Cooperative Housing Society of Slum Dwellers
and Developers, Registered Cooperative Housing Society of
Slum Dwellers on one hand and proposed Cooperative Society
on the other, Developers and S.R.A./State, a Writ petition
under Article 226 of the Constitution of India would not lie or
would be entertained unless and until the parties exhaust the
remedy of approaching the High Powered Committee referred
to above.
E) The only exception that can be made to Clause
(D) above, is with regard to Writ petitions challenging the
validity and legality of the Rules, Regulations and Policy
Circulars/ directives issued under the Statutory provisions or
the vires of the Statutory provisions themselves. In such
cases, the Court would not insist upon exhaustion of
remedies stipulated above. Similarly, if a High Powered
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Committee/ Authority refuses to act on the representations/
applications despite proof of the same having been received,
then, in appropriate cases, directions can be issued to the
said Authority. However, the parties must satisfy this Court
that they had made a grievance with regard to inaction of
High Powered Committee to the State Government and it has
also refused to issue any directions to either that Authority or
SRA. Thus, if the State inaction is also alleged, then, the
petition can be entertained. However, grant of relief would
depend upon this Court satisfying itself about the
promptness or sense of urgency shown by the aggrieved party
apart from its bonafdes in approaching this Court.
…............”
28. In the case of Shailesh Gandhi (supra), a public interest
litigation was fled with the assertion that a major fraud was
being perpetrated on the citizens, the slum dwellers and the
State by hiacking a welfare scheme to the beneft of the few at
the cost of the public at large. Several complaints, including
that of commission of serious offences in execution of the
slum rehabilitation schemes were lodged but neither they
were properly investigated nor the culprits were brought to
justice. It was thus prayed that a special investigation team be
directed to be set up for examination of those complaints,
furnish adequate staff to the team to complete those
investigations, expeditiously, and also to take action against
all the erring offcers and the individuals who were involved in
those fraudulent activities.
29. The Division Bench of this Court adverted to the Full
Bench judgment in the case of Tulsiwadi (supra), and the
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th
notifcation issued by the State Government dated 15
November, 2007, constituting the High Power Committee in
furtherance of the directions in the said case and the action
taken by the said High Power Committee on the matters
referred to it. Thereafter, the Division Bench made the
following observation:
“16. We have already mentioned in some details the nature
of these complaints and the necessity for examining them in
accordance with law. 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.........”
30. Ultimately, the Court disposed of the petition by issuing
certain directions to the State Government. The observations
and directions relevant for the determination of the issue
raised in the instant petition, are as under:
“16....... 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
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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. In our view, 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. Thus,
while disposing of this Writ Petition, we issue the following
directions:
(a) All these 87 complaints, except the one's which are
already before the Court of Competent Jurisdiction, would be
examined by the members of the High Powered Committee
constituted by the State and the Committee upon the inquiry
and examination of the relevant records shall record its
opinion.
(b) ….. (c) …... (d) …...
(e) Wherever element of criminality is involved,
particularly in cases of fraud, impersonation or like cases, the
investigation would be handed over to an appropriate agency
which shall then proceed with the matter in accordance with
law and without being infuenced in any manner whatsoever
by the position or status of the person involved in the case.
(f) 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 fnds
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.”
(emphasis supplied)
31. The case of Sayed Anwar (supra) arose out of an order
passed by the learned Magistrate directing investigation under
Section 156(3) of the Code on a complaint fled by the
respondent therein alleging commission of offences
punishable under Sections 452, 465, 466, 468, 471, 420 read
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with Section 34 of the Indian Penal Code in the execution of a
slum rehabilitation scheme. The Division Bench of this Court,
dealt with two issues: (1) the principles which are to be kept
in mind by the Magistrate in passing an order under Section
156(3) of the Code and the pre-requisites for exercise of the
said power, (2) the necessity of referring a complaint alleging
the commission of the offences in the matter of a slum
rehabilitation scheme to the High Power Committee, before a
prosecution is initiated on the strength thereof.
32. On the second aspect, the Division Bench followed the
decision of this Court in the case of Shailesh Gandhi (supra)
and further expounded the law as under:
“28. In the city of Mumbai, there are large number of such
Complaints fled concerning execution and implementation of
several Rehabilitation Schemes which are being implemented
in Mumbai. In view of the law laid down by the decision of
this Court in Shailesh Gandhi Vs State of Maharashtra and
Others, the aggrieved party must frst approach the High
Power Committee. As directed by the said Judgment, if the
High Power Committee fnds that there is an element of
criminality and particularly in cases of fraud, impersonation
and like cases, the High Power Committee will ensure that
the investigation will be handed over to the appropriate
agency. As stated earlier, the Complaint in the present relies
on so called draft prepared containing names of the eligible
slum dwellers. If the complainant has any grievance about
the names included in Annexure – II, he can always approach
High Power Committee. The said Committee can direct setting
of criminal law in motion if it fnds element of criminality.”
(emphasis supplied)
33. With the aforesaid observations, the Division Bench,
quashed and set aside the FIR in the said case with liberty to
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the complainant therein to fle appropriate proceedings before
the High Power Committee for redressal of the grievances.
34. In the backdrop of the enunciation of the aforesaid
position, the submissions now fall for consideration.
Undisputedly, pursuant to the directions of this Court in the
case of Tulsiwadi (supra), the State Government has
constituted a High Power Committee by the notifcation dated
th
15 November, 2007. It is also incontestible that the
subsequently circulars have been issued advising the
investigating agencies to forward the complaints alleging
commission of offences in the execution of slum rehabilitation
schemes to the High Power Committee. By way of illustration,
th
the letter dated 6 August, 2016 addressed by the Home
Department to the Director General, Anti-Corruption Bureau,
makes a reference to the judgments of this Court in the case
of Tulsiwadi (supra) and Shailesh Gandhi (supra) and the
constitution of the High Power Committee by notifcation
th
dated 15 November, 2007 and advises that the complaints
received by the Anti-Corruption Bureau or Economic Offences
Wing or the local police stations, wherein allegations are made
about irregularities in slum rehabilitation scheme, shall be
placed before the High Power Committee and based on the
recommendations of the High Power Committee, further
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actions be taken. It is incontrovertible that in the case at
hand the FIR lodged by the frst informant/respondent no.2
has been registered without prior examination by, and
recommendation of, the High Power Committee.
35. The learned Counsel for respondent no.2 would urge
that the necessity of the examination of the complaint by the
High Power Committee to fnd out the existence of the
criminality as was sought to be urged by the petitioners, does
not fnd support in the judgments of either Tulsiwadi (supra)
or Shailesh Gandhi (supra).
36. In all fairness to the learned Counsel for respondent
no.2, it must be noted that though, Tulsiwadi (supra) did not
specifcally deal with the question as to whether the existence
or otherwise of an element of criminality ought also to be
examined by the High Power Committee, yet, one of the
questions, which was directed to be referred to, and
considered by the High Power Committee was “the complaint
about the eligibility of slum dwellers and eligible slum
dwellers being denied tenement” (paragraph 114 Clause (d)).
37. The gravamen of the indictment, in the instant
prosecution, is that the number of eligible slum dwellers have
been infated from 74 to 169. Thus, the genesis of the dispute
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is in the eligibility of the slum dwellers for rehabilitation in
the proposed society. The offences are alleged to have been
committed in showing ineligible persons as eligible slum
dwellers, by making wrongful gain, and in the process, forging
and fabricating documents. Thus, the core question as to
whether the draft Annexure-II has been prepared faithfully
and in accordance with the governing provisions of eligibility
and entitlement for rehabilitation is a matter which squarely
falls within the ambit of the mandate of High Power
Committee.
38. Undoubtedly, the Full Bench did not specifcally advert
to the question as to whether the FIR ought not be registered,
despite there being allegations of commission of cognizable
offence, before the matter is examined by the High Power
Committee. However, the underlying purpose of the directions
to constitute a High Power Committee to examine the
grievances cannot be lost sight of. The issues involved in the
execution and implementation of slum rehabilitation scheme
are complex. Not only the stakes are high, having regard to
the scarcity of land in Mumbai and the price it commands,
but also the stakeholders are multiple. There are disputes
inter se between the slum dwellers. There are disputes as to
who are the true representatives of the slum dwellers, when
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there are different factions. There is competition amongst the
developers. Various means are adopted to wean away the
maximum number of slum dwellers for bagging the project.
In this backdrop, often the allegations and counter-
allegations, including that of fraud and forgery of documents,
are made. At the root of the controversy is often the eligibility
of a person to get a tenement in the scheme. The necessity of
examination and consideration of the grievances by the High
Power Committee is required to be appreciated in the
backdrop of these complexities, apart from the allegations of
administrative lapses, connivance and complicity of the
offcers and offcials who are involved in the execution of these
projects.
39. The observations of this Court in the case of Shailesh
Gandhi (supra), extracted above, are rather unequivocal. The
Division Bench has, in terms, observed that a kind of
preliminary examination of the complaints would be
necessary before actual investigating machinery is put in
motion. The Court was alive to the fact that the grievances
may or may not involve an element of criminality and, thus, it
was observed that “there might be matters which can be
remedied and corrected at the departmental level, while in
other complaints, element of criminality may be involved
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which requires proper investigation by the concerned
authorities”. Ultimately, the Court issued an operative
direction that those 87 complaints, except the one's which
were already before the Court of competent jurisdiction, would
be examined by the members of the High Power Committee
and it was further directed that wherever an element of
criminality is involved particularly in the case of fraud,
impersonation or like cases the investigation would be handed
over to the proper investigating agency which would then
proceed in the matter in accordance with law. The High
Power Committee was further directed to take assistance of
Additional Commissioner of Police nominated by Director
General of Police, Maharashtra.
40. In the backdrop of the aforesaid observations and
directions, which unmistakably indicate that the Division
Bench of this Court consciously entrusted the examination of
the matters involving the element of criminality as well to the
High Power Committee, with a clear mandate that whenever
such an element of criminality is found the investigation
would be handed over to the proper investigation agency, we
fnd it rather diffcult to accede to the submission of Mr.
Merchant that Shailesh Gandhi (supra), also directly does not
deal with the prior examination of the complaints by the High
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Power Committee.
41. An attempt was made to wriggle out of the situation by
putting forth a submission that those directions were limited
to the cases of 87 complaints, which the Division Bench was
dealing with, and they cannot be construed as laying down a
proposition of law. We are not persuaded to agree with this
submission for reasons more than one. The directions are
required to be read in the context of the judgment of this
Court in the case of Tulsiwadi (supra) in pursuance of which
the High Power Committee has been constituted. It can not
be urged that the object and reasons for which the High
Power Committee was directed to be constituted do not hold
the feld in the complaints post Shailesh Gandhi (supra).
Secondly, the aforesaid directions in the case of Shailesh
Gandhi (supra) have been subsequently followed by this Court
as being operative and binding even in other complaints, in
the case of Sayed Anwar (supra).
42. As observed earlier, the genesis of the prosecution is in
the inclusion and the exclusion of the names in the draft
th
Annexure-II published on 16 April, 2015. Thus, the
endeavour on behalf of the respondents to distinguish the
aforesaid pronouncement in the case of Sayed Anwar (supra),
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on facts, also does not deserve any countenance.
43. There is no quarrel with the proposition that when a
report about the commission of cognizable offence is lodged,
the investigating agency is bound to register an FIR. The
Constitution Bench Judgment of the Supreme Court in the
5
case of Lalita Kumari vs. Governmet of Uttar Pradesh & ors.
sets at rest the controversy and ordains that if the
information discloses commission of a cognizable offence, the
registration of FIR is mandatory under Section 154 of the
Code and no preliminary enquiry is permissible in such a
situation. Yet, in certain situations, compliance of certain
pre-requisites or conformity with certain requirements, before
registration of FIR is not unknown to law. The interdict on
registration of FIR by the investigating agency, initiation and
continuation of the prosecution may be in the nature of
statutory bar, where the governing enactment provides that
FIR shall not be registered unless a prior action is taken or
approval of an authority is obtained.
44. It would be contextually relevant to note that in the case
6
of State of Haryana and others vs. Bhajanlal and others, the
Supreme Court has indicated, by way of illustration, a
5 (2014) 2 SCC 1.
6 1992 (Supp.) (1) SCC 335.
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category wherein the power to quash the prosecution under
Section 482 of the Code could be legitimately exercised, being;
“6. Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceeding and/or where there is a
specifc provision in the Code or the concerned Act, providing
effcacious redress for the grievance of the aggrieved party.”
45. In the case at hand, evidently there is no statutory bar.
However, this Court, having regard to the complexities of the
slum rehabilitation scheme, the multiple stakeholders therein
and the ultimate deleterious impact on the rights of the slum
dwellers for whose rehabilitation, the Slum Act, 1971 has
been enacted, directed that the matter needs to be examined
by the High Power Committee before a prosecution is initiated.
The institution of a prosecution often entails collateral
consequnces, like the delay in the execution of the project as
in the case at hand. Ultimately, the genuine and eligible slum
dwellers are deprived of the benefcial provisions of the Act
and the scheme thereunder.
46. It is imperative to note that such preliminary
examination, by the orders of the Court, is also not something
which has not been hitherto resorted to. A proftable
reference, in this context, can be made to the judgment of the
Surpreme Court in the case of Jacob Mathew vs. State of
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7
Punjab, wherein in the context of criminal medical
negligence, the Supreme Court, inter alia, directed that the
investigating offcer should, before proceeding against the
doctor accused of rash and negligent act or omission, obtain
an independent and competent medical opinion preferably
from a doctor in a Government Service, qualifed in that
branch of medical practice who can normally be expected to
give an impartial and unbiased opinion applying the Bolam
test to the facts included in the investigation.
47. The judgment of the Supreme Court in the case of
Jacob Mathew (supra) was expressly approved by the
Constitution Bench in the case of Lalita Kumari (supra),
wherein it was observed as under:
“115. Although, we, in unequivocal terms, hold that Section
154 of the Code postulates the mandatory registration of FIRs
on receipt of all cognizable offence, yet, there may be
instances where preliminary inquiry may be required owing to
the change in genesis and novelty of crimes with the passage
of time. One such instance is in the case of allegations
relating to medical negligence on the part of doctors. It will be
unfair and inequitable to prosecute a medical professional
only on the basis of the allegations in the complaint.”
48. In view of aforesaid enunciation of the legal position, we
are not persuaded to accede to the submission of Mr.
Merchant that once a report of cognizable offence is lodged,
the matter completely falls in the realm of the investigating
7 (2005) 6 SCC 1.
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agency and, thus, a further enquiry by an extraneous agency
like High Power Committee is not legally permissible. In view
of the unequivocal observations of this Court in the case of
Sayed Anwar (supra), now the person complaining of the
commission of offences in the execution of the slum
rehabilitation schemes, under the Act, must frst approach
the High Power Committee and it is not open to the
investigating agency to directly initiate the prosecution on the
basis of such a report.
49. This propels us to the submission on behalf of the
respondent that since the investigation in the instant
prosecution has reached an advanced stage; culminating in
fling of the charge-sheet against Vanmala Kharat and Yuvraj
Kharat, and even the learned Magistrate has taken cognizance
of the offences, at this juncture, examination of the matter by
the High Power Committee is legally impermissible, and may
not serve any purpose as well.
th
50. Respondent no.2 lodged FIR on 26 February, 2016.
The judgment in the case of Sayed Anwar (supra) was
th
pronounced on 28 February, 2017. However, the charge-
th
sheet was lodged by the investigating agency on 13 April,
2017. Thus, in strict sense, the investigating agency cannot be
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heard to state that since the pronouncement of the High
Court in the case of Sayed Anwar (supra) came subsequent to
the registration of the FIR, there is no infrmity in the
prosecution.
51. We are, however, inclined to deal with the submission on
behalf of the respondents that once cognizance of the offences
has been taken by the Court of competent jurisdiction, the
High Power Committee cannot examine the matter as a
superior forum. Since the learned Magistrate has taken
cognizance of the offences, albeit the charge-sheet having
been fled against few of the accused, the High Power
Committee cannot now examine the matter to fnd out as to
whether there is an element of criminality, urged the learned
Counsel for the respondents.
52. First and foremost, so far as the powers of this Court to
quash the proceedings, in exercise of inherent jurisdiction,
the fling of the charge-sheet cannot operate as an
impediment. If the Court fnds that the initiation of the
prosecution suffers from the vice of abuse of the process, the
fact that the matter has advanced to the stage of fling of the
charge-sheet and taking of the cognizance of the offences by
the Court, is of no signifcance.
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53. The reliance placed by Mr. Jha, the learned Counsel for
the petitioner on a judgment of the Supreme Court in the case
of Anand Kumar Mohatta vs. State (Government of NCT of
8
Delhi) , wherein it was observed that there is nothing in the
words of Section 482 which restricts the exercise of the power
of the Court to prevent the abuse of process of Court or
miscarriage of justice only to the stage of the FIR and that it
is settled principle of law that the High Court can exercise
jurisdiction under Section 482 of Cr.P.C. even when the
discharge application is pending with the Trial Court. It was
further observed that it can be said that the abuse of process
caused by FIR stands aggravated if the FIR has taken the
form of a charge-sheet after investigation.
54. The question which, however, warrants serious
consideration is whether it would be proper for this Court to
quash the proceedings at this stage, when investigation is
complete and charge-sheet has been lodged on the premise
that the FIR ought not to have been registered without the
matter having been frst examined by the High Power
Committee. It is in the interest of public justice that an
offence should not go uninvestigated if not unpunished.
Indeed, if certain offences have been committed in the
8
2018 SCC Online SC 2447.
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preparation of Draft Annexure-II, the perpetrators must be
prosecuted and punished, if found guilty. Viewed through
this prism, the progress made in the prosecution till date may
not be rendered worthless provided an element of criminality
is found by High Power Committee. We do not fnd any
impediment in the examination of the matter, even at this
stage, by the High Power Committee.
55. Without professing to question or dilute the binding
effcacy of any of the aforesaid judgments, namely, Tulsiwadi
(supra), Shailesh Gandhi (supra) and Sayed Anwar (supra), in
the peculiar facts of the case, in our view, the examination of
the matter at this stage by the High Power Committee neither
for the purpose of fnding out as to whether the act of taking
cognizance of the offences by the Magistrate is correct, nor in
the capacity of the superior forum, as was sought to be urged
on behalf of the respondents, but in discharge of its mandate
to examine the grievance of alleged illegalities in preparation
of the draft Annexure-II and also to fnd out element of
criminality, if any, may not be out of place. The High Power
Committee, can very well examine all the aspects of the
matter, uninfuenced by the opinion formed by the
investigating agency, and submit a report to this Court. Such
a report, may also assist this Court in appreciating the
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contentions raised by the parties, on the merits of the mater.
We are thus inclined to pass the following order:
: O R D E R :
(a) The Senior Police Inspector, Economic Offences
Wing, Housing-II, Mumbai, is directed to place the
FIR bearing EOW No.38 of 2016 (CR No.44 of 2016,
registered with Gowandi Police Station) along with
the relevant documents, before the High Power
Committee (Apex Grievance Redressal Committee)
for examination and consideration within three
weeks from today.
(b) The High Power Committee (Apex Grievance
Redressal Committee) shall deal with the said FIR
and the material placed before it by the Senior
Police Inspector (EOW), in accordance with law,
after providing an opportunity of hearing to the
persons whom it deems necessary to hear and
thereupon submit a report to this Court, especially
on the aspect of an element of criminality,
particularly on the aspect of fraudulent inclusion of
the names in the draft Annexure-II, if any, as
expeditiously as possible, preferably within three
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months from the date of placing of the FIR and
material before it by EOW.
(c) Stand over after four months.
(d) In the meanwhile, there shall be stay to the trial in
RCC No.578/PW/2017 arising out of EOW CR
No.38 of 2016 (CR No.44 of 2016, Govandi Police
th
Station) pending before 47 Metropolitan
Magistrate Court, Mumbai, and further
investigation in the said crime, till the next date.
[N. J. JAMADAR, J.] [RANJIT MORE, J.]
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