Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.741 OF 2013
1 Lashkaria Construction Pvt. Ltd. ]
a Private limited company incorporated ]
under the provisions of Companies Act, ]
1961, having its office at 102, Diamond ]
Apartment, Near Techweb Centre, New ]
Link Road, Jogeshwari (West), Mumbai. ]
2 Mr. Mohd. Hasam Yasin Lashkaria ]
Director of Lashkaria Construction Pvt. Ltd. ]
having his office at 102, Diamond ]
Apartment, Near Techweb Centre, New ]
Link Road, Jogeshwari (West), Mumbai. ] .. Petitioners.
V/s.
1 State of Maharashtra ]
2 The Principal Secretary, Housing ]
Department, Gov. of Maharashtra, ]
having his office at Mantralaya, Mumbai. ]
3 Slum Rehabilitation Authority ]
an Authority, constituted under the ]
provisions of Slum Act, having its ]
office at Administrative Building, ]
Prof. Anant Kanekar Marg, ]
Bandra (E), Mumbai 400 051. ] .. Respondents.
Mr. Arif Bookwala, Sr. Advocate with Mr. S. G. Surana for the Petitioner.
Mr. D. J. Khambatta, Advocate General with Mr. Milind More, Addl. G.P.,
for Respondent Nos. 1 and 2.
Mr. V. D. Patil, for Respondent No.3.
CORAM: MOHIT S. SHAH, C.J. &
M.S.SANKLECHA,J.
RESERVED ON: 9 JANUARY 2015.
PRONOUNCED ON : 12 MARCH 2015.
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Per Court:
This Petition under Article 226 of the Constitution of India
challenges the order dated 24 April 2012 of the State Government. The
impugned order cancels the Circular dated 12 November 2010 issued by
the Slum Rehabilitation Authority (SRA), State Government letter dated 5
October 2010 being a direction under Section 3K(i) of the Maharashtra
Slum Areas (Improvement, Clearance and Development) Act, 1971 (the
Act) and Letter of Intent (LOI) dated 23 November 2010 issued by the
Chief Executive Officer, Slum Rehabilitation Authority (SRA) issued in
favour of the Petitioner.
2 Briefly, the facts leading to this Petition are as under:
rd
(a) On 23 July, 2007, the State Government adopted a new housing
policy for township development within the State Maharashtra. The
objective of the housing policy was to ensure redevelopment of
slums by adopting a cluster approach in a time bound manner with
a view to improve the health standards and living conditions of the
slum dwellers.
th
(b) In the light of the above policy, on 6 February, 2010, the Petitioner
submitted a proposal to the SRA for cluster development/ special
township development project under Section 3K of the Slum Act.
The SRA in turn, sought necessary directions from the Government
of Maharashtra under Section 3K of the Slum Act apropos the
proposal submitted by the Petitioner.
(c) On 5 October 2010, the State Government accepted / approved
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Petitioner's proposal for cluster development and issued directives
to the SRA under Section 3K of the Slum Act.
(d) On 16 October 2010, the SRA sought clarification from the State
Government whether the consent of the 70% of the slum
dwellers should be obtained sectorwise. The Government of
Maharashtra by its communication dated 11 November 2010 inter
alia directed the SRA to exercise its discretion in deciding whether
to obtain consent of 70% slum dwellers either sectorwise or for the
land being developed as a whole. On 12 November 2010, the SRA
issued circular No.119 inter alia, providing for obtaining consent of
the slum dwellers sectorwise.
(e) On 22 November 2010, the SRA informed the Petitioner to pay land
premium of Rs.349.44 Crores being 25% of the land cost.
Consequent to the above, on 23 November 2010, the Petitioner paid
a sum of Rs.52.42 Crores by way of part payment of the land
premium.
(f) Consequent to the above, the SRA issued LOI to the Petitioner on 23
November 2010 in respect of its proposal for cluster re
development on 5.13 lakh sq. mtrs of land in Village Malwani,
Malad in Mumbai.
(g) On 7 May 2011, as directed by the State Government on 6 May
2011, the SRA cancelled LOI dated 23 November 2010 issued to the
Petitioner without issuing any show cause notice. Being aggrieved,
the Petitioner filed Writ Petition No.1230 of 2011 in this Court.
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By an order dated 30 November 2011 passed in Writ Petition
No.1230 of 2010, the orders of the State Government dated 6 May
2011 and of the SRA dated 7 May 2011 were set aide. However,
liberty was given to the State of Maharashtra to take appropriate
action if it so desires only after following the principles of natural
justice i.e. issue show cause notice to the Petitioner.
(h) Consequent to the above, on 10 February 2012 a show cause notice
was issued to the Petitioner, seeking to cancel the LOI dated 23
November 2010 and the circular No.119 dated 12 November 2011
issued by the SRA. The Petitioners' responded to the notice.
However, by the impugned order dated 24 April 2012, show cause
notice was confirmed, resulting in cancellation of the LOI dated 23
November 2010 and circular No.119 dated 12 November 2010
issued by the SRA, as a consequence of directions dated 5 October
2010 issued by the State Government, was also cancelled.
3 It is the Petitioner's contention that the issues arising in this
Petition are no longer res integra in view of the judgment of this Court in
Writ Petition No.1165 of 2012 (M/s. Sterling Buildcon Pvt. Ltd. & another
V/s. State of Maharashtra and Others) rendered on 24 September 2013. It
is submitted that this Court in M/s. Sterling Buildcon (supra) had set
aside an order dated 24 April 2012 passed by the State Government. This
resulted in Government directives dated 8 October 2010, Circular dated
12 November 2010 of SRA and provisional LOI dated 7 December, 2010
issued in favour of M/s. Sterling Buildcon (supra) being upheld. It is
submitted that on the above ground alone, the Petition be allowed.
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4 This is not a case where a common impugned order had been
issued in case of M/s. Sterling Buildcon (supra) and the Petitioner.
Although, the impugned orders are both dated 24 April 2012, they are in
fact two different orders – one in case of the Petitioner and the other in
case of M/s. Sterling Buildcon. In these circumstances, it may not be
appropriate to apply the decision of this Court in M/s. Sterling Buildcon
(supra) without comparing the facts in both the cases.
5 In support of its submission that the facts in its case are
identical to the facts of M/s. Sterling Buildcon (supra), the Petitioner
highlighted the following facts:
(a) Both the Petitioner and M/s. Sterling Buildcon had submitted
similar proposal to the State Government and SRA for cluster
development;
(b) The directives given by the State Government to the SRA under
Section 3K(i) of the Slum Act dated 5 October 2010 in respect of
the Petitioner and dated 8 October 2010 in respect of M/s. Sterling
Buildcon are similar;
(c) The circular No.119 dated 12 November 2010 issued by the SRA
was a general circular applicable to both i.e. M/s. Steling Buildcon
and the Petitioner;
(d) On the basis of the above, an LOI was issued by the SRA to the
Petitioner on 23 November 2010 and on 7 December 2010 to M/s.
Sterling Buildcon;
(e) Thereafter, show cause notices were issued by the State
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Government dated 10 February 2012 to the Petitioner and dated
2 March 2012 to M/s. Sterling Buildcon. Both the notices were
identical, calling upon the parties to show cause as to why LOI
issued should not be cancelled and also why the Circular No.119
issued by the SRA should not be cancelled. This was essentially on
the ground that the SRA Circular was contrary to the State
Government directions dated 5 October 2010 in case of the
Petitioner and dated 8 October 2010 in case of M/s. Sterling
Buildcon ; and
(f) The impugned order dated 24 April 2012 by the State Government
on the show cause notice issued to the Petitioner was on the same
date i.e. 24 April 2012 when the order was passed in case of M/s.
Sterling Buildcon. The impugned order canceling the LOI dated
23 November, 2010 issued by the SRA, the Circular No.119 dated
12 November 2010 issued by the SRA as well as the State
Government letter dated 5 October 2010 in the case of Petitioner.
This impugned order is submitted, is identical to the order passed
in the case of M/s. Sterling Buildcon.
In the above facts, it is contended that the order of this Court
rendered on 24 September 2013 in case of M/s. Sterling Buildcon (supra)
applies to the facts of the present case and the Petition be allowed.
6 The aforesaid submission is opposed by the State Government
on the ground that there are fundamental differences in the facts in this
Petition from that existing in M/s. Sterling Buildcon. The State
Government pointed out the following distinguishing features in the
present case which would warrant the Petition not being entertained:
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(a) In M/s. Sterling Buildcon, the Petitioner had obtained
written consent of 3839 slum dwellers out of 7000 slum dwellers
covering in area of 1,89,470.50 sq. mtrs. Further, 1470 slum
dwellers had shown their willingness to appoint M/s. Sterling
Buildcon (supra) for re development. Thus, 71% of the 7000 slum
dwellers had given their consent for redevelopment. As against the
above, the Petitioner have been able to obtain consent of only 1286
slum dwellers out of 17000 slum dwellers. Although, the Petitioner
do claim that a further 1871 slum dwellers have given consent to
the Petitioner being the developer, no evidence of the same is
forthcoming.
(b) The ownership/ development rights over the land in case of the
Petitioner is with Maharashtra Housing Area & Development
Authority (MHADA) and Municipal Corporation of Greater Mumbai.
As against the above, M/s. Sterling Buildcon has
ownership/development rights over almost 50% of the land which
is part of its cluster development ;
(c) Consequent to the passing of the impugned order dated 24 April
2012, the Petitioner had accepted the amount of Rs.52.41 Crores
being the premium amount paid by it as a refund. On the other
hand, in the case of M/s. Sterling Buildcon (supra), the refund of
land premium was not accepted by it and it continued to be with
the SRA; and
(d) Further, the Petitioners have been changing the time within which
the requisite consent of slum dwellers would be obtained from the
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slum dwellers. To begin with a few weeks time on 6 February
2010 to obtain consent of the slumdweller's society and thereafter
to obtain consent of slum dwellers, a reasonable time is originally
sought during adjudication proceedings which is thereafter
extended to about 18 months in the impugned order and about two
years before this Court. This conduct itself disentitles them to
any relief in writ jurisdiction.
In view of the above, it is submitted that the facts in the
present case are completely different from that existing in M/s. Sterling
(supra) and in view of the above differences, it is clear that the Petitioner
is not in a position to comply with the LOI dated 23 November 2010 and
the directions dated 5 October 2010 passed under Section 3(k) of the
Slum Act. Therefore, the benefit of this Court's decision in M/s. Sterling
Buildcon (supra) should not be extended to the Petitioner.
7 As against the above, it was contended on behalf of the
Petitioner that the above distinctions as made out are of no consequence
and it is submitted as under:
(a) The Petitioner has obtained consent of about 30 to 35% of the
17000 slum dwellers. In any case, the consent is required to be
filed/ submitted after Annexure II has been issued by the
Competent Authority as held in M/s. Sterling Buildcon (supra) by
the Court. This stage has not yet been reached. Therefore, at this
stage, the aforesaid distinction sought to be made in the facts is
immaterial;
(b) So far as ownership of land is concerned, it does not make any
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difference to the requirement of obtaining the consent of the slum
dwellers. Thus, the distinction is of no consequence; and
(c) The refund of land premium of Rs.52.41 Crores was accepted by the
Petitioner as a consequence of the impugned order. However, the
Petitioners are ready to furnish an undertaking to pay the amounts
as directed by this Court. This taking of refund cannot be held
against the Petitioner as it is consequence of the impugned order. It
is the impugned order which is a subject matter of challenge before
this Court.
8 It is not disputed that this Court in its decision rendered in
M/s. Sterling Buildcon (supra) on 24 September 2013 while allowing the
Petition had factored in the following distinguishing features pointed out
by the State. In particular, at paragraph 47, it was observed as under:
“ There is no dispute about the fact that the petitioner has
already obtained consent of 3749 slum dwellers out of 7000
slum dwellers in the slum spread over 1.89 lacs sq. mtrs., out of
which for almost 88000 sq. mtrs. of land the petitioner has
acquired ownership/development rights. The petitioner, thus,
has obtained consent of almost 55% of all the slum dwellers.
Out of the remaining slum dwellers, about 1149 slum dwellers,
are such who have already expressed their willingness and
desire for redevelopment, but they had earlier submitted
proposals through other developers, which proposals have
already been rejected by the SRA as far back in January 2012.
Thus, more than 70% of the slum dwellers have expressed their
readiness and willingness for redevelopment and are keen to
obtain rehab tenements. The petitioner was given LOI on 7
December 2010 for providing not only 4900 rehab tenements
to the eligible slum dwellers, each tenement admeasuring 269
sq.ft. but similar tenements to about 1846 project affected
persons. Both these rehab tenements to the slum dwellers and
projected affected persons are to be provided by the petitioner
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free of cost. Besides the petitioner is to provide free of cost
primary school building, secondary school building and college
building, library, health center, fire station, police chowky, office
buildings and Municipal staff quarters to Municipal
Corporation and MHADA with builtup area of about 25,000
sq. mtrs. besides providing roads, playgrounds and recreation
areas over 48,000 sq. mtrs, of land.
Besides, the petitioner is going to pay amount of
premium of about 92.91 crore approximately, out of which the
petitioner has already paid amount of premium of about 13.94
crore approximately being the first installment of 15% of the
amount of premium as per the Government circular dated 2
July 2010. The amount is still lying with the SRA and the
petitioner has not withdrawn the same, though offered by SRA
under the impugned order dated 24 April 2012. It is in the
background of the aforesaid facts that we have considered issues
raised in the petition.
Besides, also the fact that almost 50% of the land belonged to the
Petitioner M/s. Sterling Buildcon and consequently, had a prior claim for
slum redevelopment on the land belonging to it (see para 17 (i) of the
judgment dated 24 September 2013 in M/s. Sterling Buildcon). In the
present facts, all the aforesaid factors which weighed with the Court in
allowing the Petition in M/s. Sterling Buildcon (supra) are not present.
However, although the above factors were taken into consideration, we
have to examine the law laid down in the above decision and whether the
same is fact specific or generally applicable.
9 Let us first consider the first objection – viz: the Petitioner
does not have the requisite consent of the slum dwellers as possessed by
the Petitioner in M/s. Sterling Buildcon (supra). The contention of the
Petitioner that in any case, the occasion to submit the consent of the slum
dwellers has not yet arisen, for the reason that it is only after annexure II
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has been issued by the competent authority would that occasion arise.
This Court in M/s. Sterling Buildcon (supra) had negatived the contention
of the State that the Petitioner is required to obtain consent of 70% of the
eligible slum dwellers before obtaining annexure II and has observed in
paragraphs 38 to 42 of judgment dated 24 September 2013 as under:
“ 38: The contention of the State Government that the
petitioner should have been required to obtain consent of 70%
of the eligible slum dwellers before obtaining annexure 2 flies
in the face of the Government's own Directive dated 8 October
2010, wherein the Government specifically directed as under:
“2.17: It will be mandatory for the developer
M/s. Sterling Buildcon Pvt. Ltd. to obtain consent of
70% eligible slum holders within a period of 1 year
from the date of receipt of Annexure 2 for the present
scheme at Mauje Borla, Tal. Chembur and to enter
into individual agreements with eligible beneficiaries
and to start the work of the scheme failing which
said project may be reviewed at Govt. level.”
(emphasis supplied)
39: It is necessary to note that at the hearing learned Advocate
General proceeded on the basis of the aforesaid translation of
clause 2.17 of the Government approval dated 8 October 2010,
original of which is in Marathi. In fact, in the other matter
raising somewhat similar controversy being Writ Petition 741
of 2013, when a similar clause 2.17 came up for consideration,
learned Advocate General objected to the translation furnished
by that petitioner and the learned Advocate General submitted
that the correct translation of clause 2.17 in the said writ
petition is as under:
“ 2.17 For SRA Scheme at at village Malwani
M/s.Lashkaria Construction Pvt.Ltd. is appointed
developer in principle. It will be mandatory for the
developer in the proposed scheme after the date of
obtaining Annexure II within one year to obtain
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70% individual consent of the eligible slum
dwellers and enter into individual agreements and
accordingly commence work. If the developer fails
to do so the Government will review the scheme at
the State Government level.”
(emphasis supplied)
40: Hence on the question of alleged default on the part of the
petitioner, it is clear that the time limit to obtain 70%
individual consent of eligible dwellers is one year from the date
of obtaining Annexure 2 from the Competent Authority i.e.
certification of Annexure 2 by the Competent Authority after
the developer submits the draft Annexure 2, as provided in
guidelines. This certification is admittedly not done even in
respect of draft Annexure 2 submitted by the petitioner in
respect of 3489 slum dwellers even before the impugned order
was passed.
It is clarified that the finding that the consent of 70% of
the eligible slum dwellers is required to be given within one
year from the date of certification of Annexure 2 by the
Competent Authority is only applicable to the Township
Development Scheme (and not to individual slum rehabilitation
scheme) in view of special directives of the State Government
under section 3K(1) of the Slum Act.
41: It is necessary to note that Clause 2.17 by itself does not
prescribe any time limit for the petitioner to submit draft
Annexure 2 to the Competent Authority. Learned Advocate
General would however submit that merely because clause 2.17
of the Government Directive does not prescribe any time limit,
it does not mean that the draft Annexure 2 can be submitted at
any point of time, but it must be submitted within reasonable
time.
42: Even after accepting the above submission, we cannot over
look the fact that the provisional LOI was issued by SRA on 7
December 2010 and even before expiry of six months, the State
Government exparte cancelled the provisional LOI and all the
approvals granted in favour of the petitioner. The petitioner,
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therefore, has not been given an opportunity to submit the draft
Annexure 2 of eligible slum dwellers within reasonable time.
There is considerable substance in the submission of the learned
counsel for the petitioner. Once SRA cancelled the LOI on 7 May
2011 and thereafter there has been litigation and subsequent
order dated 24 April 2012 of the State Government, the
petitioner has not been able to obtain any further consent and
therefore the petitioner needs to be given at least further six
months time to submit the draft Annexure 2 of other slum
dwellers, without obtaining their consent at this stage.”
Therefore, the failure of the Petitioner to obtain consent of 70%
eligible slum dwellers or more at this stage could not result in cancellation
of the LOI dated 23 November 2010, Circular dated 12 November 2010
issued by the SRA and State Government letter dated 5 October 2010 as
held in the impugned order.
10 So far as the second distinction sought to be made by the
State is concerned namely the ownership/ development rights over almost
50% of the land belonged to the Petitioner in the case of M/s. Sterling
Buildcon (supra) while this is not so in the present case. The ownership of
land and/or development rights over the land in respect of a slum
rehabilitation area certainly puts the party who owns it in a better
position. This in view of the provisions of the Slum Act which provides
that the owner of the land would have a prior claim for slum
redevelopment of its land. This Court in M/s. Sterling Buildcon (supra)
had taken a view that it may not be in the best interest of all to set the
clock back as the Petitioner therein had certainly a prior claim to
redevelop in respect of over 50% of the land to be developed under
cluster redevelopment. In this case, the Petitioner does not make any such
claim. However, there is no requirement that for the purposes of cluster
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development, atleast 50% of the land must be owned by the Developer.
This factor by itself cannot disentitle the Petitioner from participating in
cluster development as there is no such requirement in the SRA Circular
as well as the State Government directives dated 5 October 2010.
11 However, it is submitted by the State Government that in any
event the conduct of the Petitioners disentitles the Petitioner to any relief
in these proceedings as set out herein below:
(a) It is emphasized that the area of this Cluster Development is huge/
mamoth i.e. 5.13 lakh sq. mtr. In view of the decision of this Court
in Awdesh Tiwari v/s. Chief Executive Officer 2006 (4) Mah. Law
Journal 282 – once a developer submits a proposal then the person
concerned has a monopoly and others are prevented from
submitting proposal for redevelopment of the land in issue. Thus,
in such circumstances, it is expected of the applicant of the project
for cluster development to be candid and forthright. It is not open
to an applicant to make loose statements and, thereafter go back
on the same, bringing the entire project to peril or
unreasonably delay it. In this case, the Petitioner on 6 February
2010 had promised to produce the requisite consent of the
remaining slum dwellerssociety within a few weeks. Thereafter,
during adjudication proceedings, the Petitioner originally sought a
reasonable time to obtain the requisite consent of slum dwellers and
thereafter stated that it would obtain the consent within 18 months
while before us the Petitioner states that it will obtain the consent
of requisite slum dwellers within two years from the date of the
order of this Court ; and
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(b) The Petitioner has taken the refund of the premium paid by it on
passing of the impugned order, while the Petitioner in M/s. Sterling
Buildcon (supra), had not accepted the refund of the land premium
which had been paid. It continued to be with SRA. This is the factor
which would indicate the Petitioner in M/s. Sterling Buildcon
(supra) was involved in the project by not taking the refund while
challenging the order. In this case, the Petitioner took the refund
immediately after the passing of the impugned order dated 24 April
2012 and are now taking the chance of getting the impugned
orders quashed.
12 We find considerable substance in the aforesaid submissions
made by the learned Advocate General. As per the settled position, writ
jurisdiction is discretionary. The writ remedy is an extra ordinary
prerogative remedy which is not to be exercised by this Court merely
because, the Petitioner has shown some illegality in the impugned order.
In fact, the Supreme Court in State of Maharashtra v/s. Prabhu 1994
(2) SCC 481 in paragraph 4 has observed as under:
“ 4: Even assuming that construction placed by the High
Court and vehemently defended by the learned Counsel for
respondent is correct should the High Court have interfered
with the order of Government in exercise of its equity
jurisdiction. The distinction between writs issued as a matter of
right such as habeas corpus and those issued in exercise of
discretion such as certiorari and mandamus are well known
and explained in countless decisions given by this Court and
English Courts. It is not necessary to recount them. The High
Courts exercise control over Government functioning and ensure
obedience of rules and law by enforcing proper, fair and just
performance of duty. Where the Government or any authority
passes an order which is contrary to rules or law it becomes
amenable to correction by the courts in exercise of writ
jurisdiction. But one of the principles inherent in it is that the
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exercise of power should be for the sake of justice. One of the
yardstick for it is if the quashing of the order results in greater
harm to the society then the court may restrain from
exercising13 the power.”
The project in hand is for rehabilitation of about 17000 slum
dwellers. The Petitioner has not been stead fast with regard to the time
required for obtaining requisite consent of slum dwellers. Initially, it was
a reasonable time and thereafter within 18 months during adjudication
proceedings and now at the hearing before us that the Petitioner states
that it would require 2 years time to obtain consent of 70% of the slum
dwellers. Soon after passing of the impugned order on 24 April 2012, the
Petitioner also took the refund of the deposit of Rs.52.41 Crores. Thus,
without putting the deposit amount of Rs.52.41 Crores at stake, unlike
M/s. Sterling Buildcon (supra), as indicted above, the Petitioner has kept
cluster development of the lands as large as 5.13 lakh sq. mtrs in limbo.
Without having made any progress in implementation of the project,
without anything at stake and without any equity in its favour the
Petitioner wants restoration of all the orders, conferring on the Petitioner
the monopoly to redevelop 5.13 lakh sq. mtrs. of land with no ownership
rights over the same (albeit with liability to rehabilitate 17,000 slum
dwellers on the site). In such extra ordinary circumstances and in these
peculiar facts, we will not exercise our extra ordinary discretionary
jurisdiction in favour of the Petitioner.
13 For the aforesaid reasons, the Petition is dismissed . Since
the Writ Petition is disposed of, Chamber Summons No.109 of 2013 for
intervention does not survive and the same is disposed of as infructuous.
(M.S.SANKLECHA,J.) CHIEF JUSTICE
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After the judgment is pronounced, the learned Counsel for
the Petitioners pray that the adinterim stay granted by order dated
24 April 2013 of this Court be continued for twelve weeks to enable the
Petitioners to move the Apex Court in accordance with law. The learned
Counsel for the Respondents opposes the same. In the facts and
circumstances, since the adinterim relief has been operative since 24
April 2013, the same shall be continued for a period of eight weeks from
today.
CHIEF JUSTICE
(M.S.SANKLECHA,J.)
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