Bombay High Court

Usha Dhondiram Khairnar And 6 Ors vs State Of Maharashtra And 4 Ors. And ... on 28 September, 2016

Bench: S.C. Dharmadhikari

                                                     903.writ petitionl.2397.16.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                ORDINARY ORIGINAL CIVIL JURISDICTION




                                                             
                       WRIT PETITION (L)NO. 2397 OF 2016


    Smt Usha Dhondiram Khairnar and Others                    ..Petitioners




                                                            
                 Vs.
    State of Maharashtra and Others                           ..Respondents




                                               
                                            WITH
                                      
                   CHAMBER SUMMONS (L)NO. 296 OF 2016
                                    IN
                     WRIT PETITION (L)NO. 2397 OF 2016
                                     
    Archana Yogesh More and Others                            ..Applicants
    IN THE MATTER BETWEEN
         
      



    Smt Usha Dhondiram Khairnar and Others                    ..Petitioners
                 Vs.
    State of Maharashtra and Others                           ..Respondents





                                            WITH

                       WRIT PETITION (L)NO. 2446 OF 2016

    Mrs. Archana Yogesh More and Others                       ..Petitioners





                 Vs.
    Slum Rehabilitation Authority and Others                  ..Respondents


    Mr. D. A. Nalawade a/w Mr. Ravindra A. Lokhande,for the
    Petitioners in WPL. No. 2397/16.


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                                                           903.writ petitionl.2397.16.doc


    Mr. Ashish Kamat a/w Mr. Ekant Desai, for the Petitioners in
    WPL.2446/16 and Applicants in CHSWL.296/16.




                                                                                          
                                                                  
    Mr. Dushyant Kumar, AGP, for Respondent Nos. 1 and 2 State in
    WPL.2397/16.




                                                                 
    Mr. Abhijit P. Kulkarni, for Respondent No.3 in WPL.2397/16 and
    for Respondent Nos. 1 to 4 in WPL.2446/16.




                                                    
    Mr. S. G. Surana a/w Mr. Madhur Surana, for Respondent No.4 in
    WPL.2397/16 and for Respondent No.5 in WPL.2446/16.
                                      
    Mr. Sanjay Jain a/w Mr. Mayur Khandeparkar i/b Mr. Yogesh
                                     
    Bandal, for Respondent No.5 in WPL.2397/16 and for Respondent
    No.6 in WPL. 2446/16.
         


                                            CORAM :- S.C. DHARMADHIKARI &
      



                                                     B.P.COLABAWALLA , JJ.

DATE :- SEPTEMBER 28, 2016.

ORAL JUDGMENT: (Per S. C. DHARMADHIKARI, J.)

WRIT PETITION (L) No.2397 of 2016.

The Petitioners claim to be eligible project affected

persons. It is common ground that some of the Petitioners have

disassociated themselves from this litigation. Therefore, the relief

shall be confined to such of the Petitioners who are pursuing the

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cause.

2 It is stated that these Petitioners were allotted flats in

the building which is managed and administered by Respondent

No.4 - Co-operative Housing Society. The flats were allotted by the

3rd Respondent to this Writ Petition. The 3rd Respondent is the

Chief Executive Officer - Slum Rehabilitation Authority ("SRA" for

short). He is appointed under the Maharashtra Slum Areas

(Improvement, Clearance And Redevelopment) Act, 1971 (for

short the "SLUM Act"), for the resettlement and rehabilitation of

eligible slum dwellers and the project affected persons.

3 It is stated that the 5th Respondent - Developer

undertook the development of the property. He was responsible

for handing over possession of the residential units which are in a

habitable condition for the rehabilitation of eligible slum dwellers

as also the project affected persons.

4 It is the claim of the Petitioners that they have been

allotted the flats pursuant to a lottery which was drawn by the

SRA. The Petitioners were handed over the physical possession of

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these flats. They are in habitable condition but today the

Petitioners' stand deprived of basic amenities such as electricity

and water supply that is because of the high handed actions of the

5th Respondent-Developer. The Petitioners state that they have

lodged complaints not only with the SRA but equally the local

Police Station, Senior Inspector of which is now impleaded as

Respondent No.2.

The Petitioners rely upon a allotment letter, copy of

which is annexed as Exhibit-A to the Petition. These Petitioners

who have been allotted the respective tenements have relied on

Annexures-A to G of the Writ Petition. Respondent No.3

addressed a letter on 1st July, 2016 to 4th Respondent Society

informing it about allotment of the flats / tenements to the

Petitioners and also directing them not to cause any hindrance or

obstruct the Petitioners in taking possession of the allotted flats.

Annexure-H is a copy of this letter.

6 On 7th July, 2016, the 3rd Respondent requested the 2nd

Respondent-Police station to give police protection while taking

possession of the flat. Annexure-I is the copy of the letter dated 7 th

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July, 2016. It is stated that Respondent No.2 along with

Petitioner Nos.1 to 5 and 7 have taken possession of the allotted

flats on 22nd August, 2016 and found that the same was not in

habitable condition only because of lack of basic amenities such as

electricity and water connection. There was some damage caused

to the flooring and doors. That was recorded in a Panchanama.

The Panchanama drawn on 22nd August, 2016, contents of which

were not known to the Petitioners as a copy thereof was not

provided, according to the Petitioners' counsel's records as to how

Respondent No.5 acted high handedly and was assisted by the

members of the Co-operative Housing Society.

7 The complaint which has been made to the local Police

Station dated 23rd August, 2016 sets out the names of five persons

who acted at the behest of Respondent No.5 and caused damage to

the property so also disconnected electricity and water supply.

Annexure-J is a copy of the complaint.

8 A representation was forwarded to Respondent No.2

by one Nav Chetna Justice Forum. This Forum was approached by

the Petitioners. The representation prayed that an FIR be

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registered against these accused. However, neither reconnection

of the watter supply or electricity has been made nor the

Petitioners have been accommodated. The Petitioners complain

that having vacated their earlier accommodation, today they are

deprived of their entitlement. There is no dispute that they are

project affected persons. The Petitioners complain that in the

ensuing festivals they would have no accommodation and for them

to perform any religious ceremony etc. It is in these

circumstances that they apply and pray for issuance of writ of

mandamus or any other appropriate writ or directions directing

Respondent No.3 to forthwith ensure reconnection of the

electricity and water supply and for grant of the same take such

steps as are permissible in law.

9 The Writ Petition relies upon those letters of allotment

and in which it is indicated as to how each of these Petitioners are

project affected persons. The allotment letters, according to the

Petitioners refer to a lottery, record of which is to be found in a

document dated 26th May, 2016. However, some of the project

affected persons applied in writing that they have been allotted

certain flats / tenements but their orders of allotment be modified

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that is how on 1st June, 2016, the tenements on 12 th / 13th floors

which are meant for them are allotted by a lottery system. The

date of this lottery system, according to the Petitioners, is to be

found in this allotment letter. There is a clear reference therein to

the tenement numbers and which are on 12 th /13th floor. The

Assistant Registrar of the 3rd Respondent has signed these letters.

10 Reliance is also placed upon the complaint and the

statement which is recorded by the local Police Station. The SRA

would not have sought intervention of the Police Station unless it

was satisfied that there is an high handed act of the developer.

The developer was directed to hand over the keys of these

tenements so that the same could be handed over to the eligible

slum dwellers. The first letter of the SRA, according to Mr.

Nalawade appearing for the Petitioners records that as to how

despite repeated request, the developer did not hand over the keys

of the project affected persons' tenements. The matter was

discussed with the Secretary of the SRA on 14 th June, 2016 and

the developer was directed to stop work of the sale component

unless he takes the requisite steps and hands over the keys of the

tenements. The letter of the SRA also permits the Assistant

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Registrar to take forcible possession of these tenements. It is in

these circumstances that the Senior Police Inspector, according to

the Petitioners, was requested by the SRA itself to register an FIR

against the developer for not handing over of the keys to the

Government / SRA.

11 Mr. Nalawade places reliance upon the statements

which had been recorded and copy of which is to be found at page

nos.45 and 46 of the paper book. There are several affidavits

which have been filed in reply but before we set out their contents,

it would be proper to refer to one Chamber Summons which was

lodged on 8th September, 2016 by the Applicants. They requested

that either they should be impleaded as party Respondents or they

should be permitted to intervene at the hearing of the present

Writ Petition. These Applicants prayed that they have also filed

substantive Petitions. They have relied upon certain documents.

In support of the Chamber Summons, an affidavit was filed by

Applicant No.6 and she says that the Petitioners are not occupants

of the property namely final plot No. 568, Jalan Wadi, Dadar,

Mumbai i.e. the property owned by Respondent No.5. The

occupants thereof have formed Respondent No.4 society and 5 th

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Respondent is also appointed as a developer. The slum scheme

was approved on 31st March, 2006 and Letter of Intent and

revised Letter of Intent are relied upon. It is claimed that the

Applicants are shown as eligible and in that regard reliance is

placed on Annexure-II and several orders of the Competent

Authority. It is therefore disputed that the Petitioners are entitled

to the allotment letters or should be handed over possession of the

tenements prior to these Applicants. The Applicants have to be

rehabilitated at the same site. They claim a right in that regard.

They have also questioned the contents of the letter dated 19 th

May, 2016. They have also filed a substantive Petition and we

have heard Mr. Kamat, the learned counsel for the Petitioners in

that Petition.

12 We have substantive affidavits in Writ Petition (L)

No.2397 of 2016. The Secretary of Respondent No.4 Society has

filed an affidavit and while raising the issue of maintainability of

this Writ Petition on the ground that there is an alternate remedy

available to the Petitioners of approaching the High Power

Committee, what is asserted is that the Petitioners are project

affected persons in other slum scheme and Respondent No.3- SRA

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has allotted the tenements in rehab building /component because

the Petitioners are project affected persons. True it is that some

tenements are earmarked in present rehab component for

rehabilitation of the project affected persons. However, what has

been alleged is that final plot No.568, Jalan Wadi, Town Planning

Scheme-IV, Ashirwad SRA CHS Ltd, Jalan Wadi, Bhavani Shankar

Road, Dadar Mumbai is owned by Respondent No.5. It is occupied

by near about 146 slum dwellers plus five occupants of

contravening structures. Thus, there are 151 slum dwellers. The

Competent Authority has held 122 occupants as eligible and

eligibility of remaining 29 slum dwellers is pending for

consideration with the Competent Authority. As on today

Respondent Nos.3 and 4 are not able to allot 17 rehab tenements

to 17 eligible slum dwellers of the 4th Respondent Society. Till, all

eligible slum dwellers are not accommodated / rehabilitated in the

present slum scheme, neither Respondent No.3 nor Respondent

No.5 can allot such rehab tenements to other slum dwellers of

another slum scheme and by way of project affected persons

tenements. Thus, the Petitioners are not entitled to allotment of

tenements in the rehab components. Respondent No.3 cannot

allot these rehab tenements to the occupants of other slum scheme

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till all eligible slum dwellers are rehabilitated. These slum

dwellers were at the same site and therefore, they have right to be

rehabilitated in that very site. Several documents are also relied

upon and the copies there have been annexed to the affidavit-in-

replies.

13 It is also argued on the basis of this affidavit by

Mr. Surana that these Writ Petitions involve disputed questions of

fact and therefore must not be entertained by us. Then, what we

have on record is the affidavit of the developer. The developer

apart from urging that no Writ Petition lies against private parties

has pointed out that it is both the owner and the developer, it has

adopted the stand of the society. It has confirmed number of

persons who are stated to be eligible. The issue of eligibility of the

remaining persons / slum dwellers is pending and hence it is

prayed that this Court should not allow the writ petitioners to use

and occupy the premises. It is then stated that 5 th Respondent is

also developer of another slum scheme. A proposal has been

submitted to the SRA for clubbing of the present slum scheme

with that of another slum scheme that was approved by SRA by

issuing revised Letter of Intent dated 23 rd May, 2014. Now,

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because of such clubbing, the 5th Respondent was obliged to

provide 72 residential, 18 commercial and 3 R/C tenements so

also 30 project affected persons tenements. Mr. Jain appearing in

support of this affidavit and for Respondent No.5 submits that the

3rd Respondent had transferred 22 project affected persons

tenements to another slum scheme of Gulmohar SRA Co-operative

Housing Society situated at Antop Hill, Wadala, Mumbai. There is

also a list forwarded of such slum dwellers who claimed that they

are eligible and their documents have to be verified by the

Competent Authority.

14 It is in these circumstances that once there are 122

eligible occupants in the slum scheme as on today the eligibility of

remaining 29 is pending that this Court should not grant any

relief to the Petitioners. The SRA is adopting pressure tactics and

at the instance of the present Petitioners. It is also claimed by Mr.

Jain on the strength of this affidavit that on 11th July, 2016 the

SRA had agreed to wait for a period of 60 days so that the pending

eligibility issue can be decided and thereafter appropriate

directions would be issued.

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                                                          903.writ petitionl.2397.16.doc


    15                 There is an affidavit styled as additional affidavit of

the Petitioners. It is stated that an order was passed by this Court

on 14th September, 2016 pursuant to which an inspection of few

files was taken. The Assistant Registrar of the Co-operative

Societies and Executive Engineer have not granted inspection of

some other and crucial so also relevant files. Circular Nos. 99

and 134 are relied upon to submit that SRA conducted a lottery in

accordance therewith. The Executive Engineer of SRA had

written a letter dated 26th May, 2016 to the Assistant Registrar of

the Societies informing that all project affected persons flats are

ready for allotment. Thereafter, the Assistant Registrar

conducted a lottery on 26th May, 2016 and allotted 11th floor flats

of the 4th Respondent Society. The Petitioners submitted that

when they visited these allotted flats, they found that some people

were residing therein. Therefore, they informed the SRA to re-

allot the flats. That is how another lottery was conducted by the

Assistant Registrar and he alloted the flats on and from 12th floor.

16 It is asserted that these tenements are meant for

rehabilitation of project affected persons only. It cannot be

therefore argued and contrary to the official documents that these

tenements were not meant for the project affected persons or that

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project affected persons generated from the others slum scheme,

cannot be accommodated in the current or present slum scheme.

The Petitioners have pointed out as to how for the past more than

10 to 12 years they are waiting for allotment. Now, by the

collusive acts, this Court should not permit defeating of their

allotment.

17 We were waiting for the most crucial affidavit and that

was of 3rd Respondent - SRA.

ig That came to be filed on 21 st

September, 2016. In that, the Chief Executive Officer justifies the

steps taken till date so also decisions of his predecessor. He

justifies and supports the lottery conducted and that is on the

basis that wide publicity was given to the said lottery. The events

from 2006 till date have been cataloged. However, thereafter the

deponent states that the 5th Respondent was told by the revised

Letter of Intent dated 23rd May, 2014 to keep aside 30 tenements

for accommodating project affected persons. The record shows

that the developers have accepted all conditions of final revised

Letter of Intent. Now, he cannot be heard to say anything

contrary thereto or inconsistent therewith. It is in these

circumstances that the SRA denies the allegation of the developer

of exerting pressure and to obtain completion certificate and

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occupation certificate for the tenements constructed on 11 th / 14th

floor of the said building. It is stated that part occupation

certificate up to 11th to 14th floor was issued way back in the year

2012 namely on 2nd August, 2012. After allotment of the project

affected persons tenements to the eligible slum dwellers of the

other SRA slum rehabilitation scheme, the slum dwellers who

have held eligible under the subject scheme objected on the ground

that they would be deprived of rehabilitation at site. The 5 th

Respondent-Developer also objected on the ground that the issue

of eligibility of 29 occupants who are presently held ineligible is

pending before the Competent Authority.

18 Paragraph no.7 of this affidavit at running page

no.212 reads as under:-

" 7:- It is to be mentioned that as per clause 1.3 of Appendix IV of regulation 33 (10) of DCR, 1991, " All eligible hutment dwellers taking part in the slum rehabilitation scheme shall have to be rehabilitated according to the provisions in this

Appendix. It may be in situ and in the same plot as far as possible.

In view of the above facts I say that the allotment of PAP tenements done to the eligible PAP of the other S. R.

Scheme would be withdrawn and they would be allotted

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PAP tenements in the nearby completed S. R. Scheme which are in possession of SRA. The PAP tenements of the present

S. R. Scheme would be converted into regular rehab

tenements and the same would be thereafter allotted to the eligible slum dwellers of the subject S. R. Scheme.

I say that the 3 Petitioners who were given possession

of PAP tenements, have returned the keys and have requested allotment of PAP tenements in the other S. R. Scheme."

19 It is in these circumstances it is submitted that the

SRA had followed the proper procedure for accommodating the

project affected persons from other scheme. It has followed a

transparent procedure and this Court therefore should pass the

appropriate orders.

20 Mr. Kulkarni, the learned counsel appearing for the

SRA submitted that consistent with the stand in the present

affidavit, the SRA will abide by the directions as are issued by this

Court. The SRA would not deprive those eligible for rehabilitation

from their right. It would follow a fair and transparent procedure.

It would take requisite decision after hearing all affected parties.

On a query from us as to how when the Highest Executive Officer

of SRA having disclosed its stand on merits and justified the

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action, can now be expected to render an impartial, unbiased

decision, Mr. Kulkarni, on instructions, states that this Court can

direct the Secretary of the SRA who is equally a High Power

Official and he shall now take requisite steps in accordance with

law. He shall strictly follow and apply the defined and settled

policies, circulars and render a decision. Meaning thereby, he

would pass an order assigning reasons.

However, Mr. Nalawade appearing for the Petitioners

submits that it is too late in the day for now SRA cannot change its

stand. This clearly means that it has failed to protect the

entitlement of the Petitioners. The SRA cannot conveniently

change sides and now align with the developer or the society

members. That itself means that the Petitioners are at the mercy

of some of these officials of SRA or developers. The Petitioners are

said to be project affected and yet shifted from one scheme to

another endlessly. They are awaiting allotment and which would

fructify into taking physical possession of the units which they

had already taken but with basic amenities. Then allotment

without all this has no meaning. This Court therefore should not

allow SRA now to adopt a different or inconsistent stand but must

direct it to ensure that all basic amenities are provided to the

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Petitioners. Mr. Nalawade has also relied on affidavit-in-rejoinder

and all Annexures thereto which include an order passed by this

Court in a Writ Petition. It is submitted that to that Writ Petition

and equally to an FIR registered pursuant thereto, the developers'

partner is a party/ accused. He is now been allowed to dictate

terms. It is the developer who has been proceeded against in

criminal law but he is influencing all the decisions. It is in these

circumstances that some Petitioners have been forced to withdraw

from the proceedings.

22 We have therefore extensively heard Mr. Nalawade

and other counsel and perused the entire record with their

assistance in both Writ Petitions. There are some documents

annexed and we have perused them, as well.

23 We are unable to agree with the Respondents and

particularly Respondent Nos. 4 and 5 that the SRA cannot take

such measures, as are permissible in terms of its policies, rules,

regulations, including the circulars and provisions of law to

ensure rehabilitation of project affected persons. It is entirely for

the SRA to take such decision and while taking it, it can also

consider the Appendix IV of Regulation 33 (10) of D. C.

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Regulations, 1991. The clause 1.3 of Appendix IV is reproduced

in paragraph no.7 of the affidavit of SRA at running page no.212.

24 We do not think that the developer and slumdwellers'

society can dictate the SRA in such cases and matters. If that is

the designated authority, then, it must act strictly in terms of its

own policy, circulars, rules, regulations and the SLUM Act. These

are guiding the SRA and in ensuring that all such slum dwellers

who are languishing in slums for decades together and if found

eligible are rehabilitated, how the rehabilitation package evolved

for them has to be implemented and worked out, is entirely left to

SRA.

25 We do not see how builders, developers or owners and

members of the slumdwellers' societies can dictate the SRA in

such matters. It is unfortunate that the SRA finds itself

completely helpless in the present state of affairs. It seeks

assistance of the Police Station and Police force has to be brought

so as to control and regulate these slum dwellers. Their activities

have caused a nuisance according to the Petitioners and they are

therefore responsible in depriving the Petitioners of these basic

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amenities as noted above. We are of the firm opinion that it is the

SRA which is responsible for causing these state of affairs. Its own

officers have to be blamed for inviting adverse comments /

remarks from the Court for their flipflop has resulted in two

groups of slum dwellers fighting with each other. One is placed

against other and in very ugly and nasty fight for grabbing the

property. We do not know who is assisting the either groups but

we are sure that this defeats the very purpose and object of the act

and schemes meant for rehabilitation of slum dwellers. Added to

that is the inefficiency and ineptitude of the SRA. If an officer

from the Indian Administrative Service is chosen to head the SRA

and is styled as Chief Executive Officer, we do not see how he is

expressing helplessness and while supporting the earlier act has

now stated that the allotment of project affected persons (PAP)

tenements to the eligible project affected persons would be

withdrawn and they would be allotted project affected persons

tenements carved out in a nearby completed scheme. The PAP

Tenements in other schemes are in possession of SRA. The project

affected persons tenements of present SRA scheme would be

converted in regular tenements and thereafter they would be

allotted to eligible slum dwellers of subject scheme, is what is

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indicated in paragraph no.7 of the affidavit filed in the present

Petition.

26 We do not allow the SRA to take a decision like this and

contrary to the principle of natural justice, fairness and equity. If

they now intend to withdraw the allotment letters issued to the

Petitioners and desire to accommodate them in some other

scheme nearby, then, that decision cannot be reached or allowed

to be reached in the manner stated by the SRA before us. Equally,

the SRA cannot at the instance of any developer / owner or society

of slum dwellers take a decision contrary to its defined and settled

policies, circulars, rules and regulations. We, therefore, direct

that no such decision as is intended to be taken now in paragraph

no.7 shall be taken or reached without hearing all affected parties

and particularly the Petitioners.

27 In accordance with the statements made by

Mr Kulkarni, we direct the Secretary of SRA before whom each of

these parties shall appear to pass a reasoned order at the

conclusion of a personal hearing and as expeditiously as possible.

Such an order should be passed within six weeks from the date of

receipt of a copy of this order but without being influenced by any

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of the earlier decisions or the stand in the affidavits of the parties.

The Secretary must take a decision only in accordance with law.

Before such decision is taken or the order is passed and

communicated, he shall hear the parties. He shall allow them to

rely on such documents and records, as are in possession of the

parties as also the SRA. We do not expect anybody to influence

the decision of the SRA hereafter. Neither the pendency of any

proceedings before the Competent Authority or the FIR's

registered or steps taken in pursuance thereof shall influence the

SRA in taking a decision as SRA is in-charge of implementing the

Slum Rehabilitation Schemes and equally protecting the rights

and interests of project affected persons.

28 We do not think that any relief or direction other than

the above can be granted for it is not possible for us to resolve the

disputed questions of fact. Whether allotments in favour of the

Petitioners were justified on the touch stone of the above policies

and circulars or whether the SRA can act as contended by

developer and society are matters which must be dealt with and

left to be decided by the SRA alone. It is on these lines that we

have issued the above directions. The Writ Petitions stand

disposed off accordingly. There will be no order as to costs.

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    29                 We also do not countenance any interference in the

affairs of the SRA by the State Government-through its

departments or Ministries much less by Minister of Housing either

at the Cabinet or State level. We do not think that political

interference in matters to be decided by executive will carry any

rehabilitation package or scheme for rehabilitation of slum

dwellers further or forward and if it is not to be defeated or

frustrated no Ministers and in-charge of any Department much

less Housing should interfere with the working and functioning of

the SRA. The Secretary therefore should ignore any interference

by the Ministry till date or hereafter.

30 Needless to clarify that we have expressed no opinion

on the rival contentions and each one of them are kept open for