Smt. Rukminibai Krishna Shigwan vs Adinath Builders And Developers ...
2005 Latest Caselaw 279 Bom

JUDGMENT

H.L. Gokhale, J.

1. Both these petitions are filed to seek appropriate alternative accommodation in lieu of the structures which were occupied by the petitioners earlier as claimed by them. The issue involved in both these petitions is almost similar as also the facts and, therefore, it will be advisable to decide both petitions together.

2. The petitioners in both these petitions are claiming this alternative accommodation under the scheme of the State Government framed for the purpose of slum re-development/ rehabilitation. Both these peetitioners were occupying their structures in a chawl known as Sakharam Paste chawl, Ghatkopar (East). There is no dispute that in the scheme of re-development any such occupant of a slum could claim right of rehabilitation in a tenament of 225 sft. provided he or she is in a position to establish that they are occupying the concerned structure in the slum prior to 1st January 1995. As far as the petitioner in W.P.No.492 of 2000 is concerned, it is her case that although her father in law is allotted a tenament in the scheme of rehabilitation, she is entitled to a separate tenament. Similarly in W.P.No.685 of 2000, the contention of the petitioner is that although his brother is allotted a tenament in the scheme of rehabilitation, he is entitled to a separate tenament. The case of the respondents in the first case was that the petitioner and her father in law were occupying only one structure. Similarly, the case of the respondents in the second matter was that the petitioner and his brother were occupying one structure and not two structures. This being the position, the stand of the respondent was that the petitioner in either case was not entitled to two separate tenaments.

3. To advance the submission that the petitioner in the first case is entitled to a separate tenament, reliance is placed by Mr. Shah, learned Counsel for petitioners on an order dated 15th January 1999 issued by the Dy. Collector (Encroachment). This order in para two thereof records that the concerned hutment colony had in all 70 members and 65 out of them had given their consent to the scheme of rehabilitation. It also records that all those 65 hutment dwellers were shifted to alternate accommodation in transit camp. Only five of them had not given their consent and had lodged complaints against being sent to the transit camp. The name of the petitioner in W.P.492 of 2000 appears at serial No.2 and the name of the petitioner in W.P.685 of 2000 appears at serial No.1 respectively in this list of five. The order further records that all those five persons were called for considering their view points. Both these petitioners remained present. Petitioner in W.P.685 of 2000 Mr.Pawar filed written statement. The petitioner in W.P. 492 of 2000 Mrs. Shigwan declined to give anything in writing. Mr. Hingu, who appeared for the developer, therefore, submitted before the officer that an order be passed to remove these hutments, since those structures were creating difficulties. Accordingly, an order was passed by the officer concerned that those structures be removed and they be shifted to the transit accommodation.

4. Mr. Shah, learned Counsel for the petitioners submits that this order clearly implies that the two petitioners were occupying structures separate from their relatives. He relies upon the electoral roll of 1993 in both the cases, wherein it is shown that as per the electoral roll, as against the names of petitioners one room number is mentioned whereas against the name of respective relative another room number is mentioned. Thus in the case of Rukhminibai Shigwan the room occupied by her is shown as G-9 whereas the one occupied by her father in law is shown as G-8. Mr. Shah also relies upon the voters' cards given by the Election Commission which also has similar entries. He further submits that there were separate ration cards for the two families. Similarly, in the case of Mr. Pawar who is petitioner in W.P.No.685 of 2000, the name of the original petitioner Waman Pawar appears against room No.G-5 whereas that of his brother appears against room No.G-4. Here also the voters cards are relied upon which have similar entries.

5. As against these submissions of petitioners Mr. Hingu, learned Counsel who appeared for the Developer of the property and the society of hutment dwellers submitted that the question was whether the party occupied an independent structure. He submitted that the voter cards or electoral roll cannot be considered as piece of evidence to show that the structures occupied were separate. In fact, he points out that on the identity cards, the number of the structure occupied by Rukhmini Shigwan is shown as NX-3-8/16 and the same number appears in the identity card of her father in law. He points out that as per the survey carried out by the authorities of the Government, only one structure is noted to have been existing where Rukhminibai and her father in law were staying together. As against the electoral roll of 1993, Mr. Hingu has pointed out that voters list from 1977 onwards i.e. for the years 1977, 1983, and 1988 all through out the names of Rukhminibai and her father in law were shown against only one room. For that matter, even in the electoral roll of 1995, Rukhminibai and her father in law and all relatives wee shown as staying in one room i.e. Room No.G-8. The fact remains as pointed out by Mr. Hingu that all through out Rukhminibai and her father in law were shown staying in one room except in the electoral roll of 1993. That apart, as emphasised by him, the structure occupied by them as per the census is only one and one structure number is reflected in the identify cards of both Rukhminibai as well as her father in law.

6. Similar is the position in case of original petitioner Waman Pawar in W.P.No.685 of 2000. In his case also whereas in 1993 he and his brother are shown occupying two different rooms, on the other hand in the electoral rolls of 1977, 1983, 1985 and 1995 they are all shown occupying one room. That apart, the room occupied by him has been numbered as NX-5-4/12 and that is the number which appears against the names of all the family members of original petitioner Waman Pawar in the census made by the authorities concerned. Mr. Hingu points out that as in the case of Rukhminibai here also though the electoral roll of 1993 shows Waman Pawar and his brother occupying two different huts i.e. G-4 and G-5, the number of structure mentioned in the identity cards is one and the same. Mr. Hingu, therefore, submits that what is material is the identity of the structure occupied by the party concerned. As against a structure in the slum another tenament is to be provided for all those occupying the premises concerned. He points out that in spite of this position both the petitioners have litigated sufficiently for this purposes having filed a suit in the City Civil Court earlier and thereafter the present petition.

7. Mr. Shah, learned Counsel appearing for the petitioners relies upon a Government Resolution of 15th October 1997 and particularly annexure thereof which is relatable to the Development Control Regulations No. 3(10). This clause gives the eligibility for the re-development scheme. The same reads as under:-

(a) for redevelopment of slums including pavements whose inhabitants' named and structures appear in the electoral roll prepared with reference to 1st January 1995 or a date prior thereto, but where the rehabitants stay at present in the structure, the provisions of Appendix IV shall apply on the basis of a tenament in exchange for an independently numbered structure."

8. Mr. Shah submits that this clause lays down the eligibility for redevelopment. The clause lays down that inhabitants in such structures whose names appear in the electoral roll on 1st January 1995 or a date prior thereto are eligible for rehabilitation. Mr. Shah, therefore emphasises on the roll of 1993. He, however, ignores the last part of this clause which says that the provisions of Appendix IV

"Eligibility for redevelopment scheme:-

all apply on the basis of a tenament in exchange for an independently numbered structure. This being the position in both the matters what we notice is that both the petitioners and their relatives were not occupying two separately numbered structures. They are undoubtedly eligible to go and stay in the alternate accommodation which will be given against their single structure after the building meant for rehabilitation is ready. However, this permanent alternative tenament is to be given in exchange for an independently numbered structure. All the family members will be entitled only to one tenament since all of them were occupying only one numbered structure. As far as this aspect is concerned, the rule is clear and so also the facts and therefore, merely because an order was passed by the officer seeking removal of encroachment on 15th January 1999, that order cannot be stretched to contend that the petitioners were occupying separate independent structures. This order will have to be read as it is which states that these people were creating difficulties to vacate and, therefore, their names are mentioned and they are asked to vacate. In their defence at that time they have not stated that they were occupying independently numbered structures. This order in our view, cannot carry forward their case any further. In view of what is stated above, we do not find any merit in either of the two petitions. Both the petitions stand dismissed.

9. In view of the dismissal of the petitions, the motions therein stand disposed of.

8. By virtue of an interim order passed by this Court in W.P.No.492 of 2000, Rukhminibai has been occupying an alternate temporary accommodation. Mr. Shah states that since her children are studying in school, she may not be evicted from that transit accommodation for a period of eight weeks. We accept this request. Rukhminibai will not be asked to vacate the transit accommodation for a period of eight weeks from today.