Bombay High Court
Pragati Pandurang Kamble vs Enquiry Officer And Ors on 10 July, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
18-WP-4284-2023+.DOC
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4284 OF 2023
Ravindra V Shedge ...Petitioner
Versus
Enquiry Officer, M-Ward, Municipal Office & Ors ...Respondents
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WRIT PETITION NO. 4194 OF 2023
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Mr Mayur Khandeparkar, with Abhay Parab, Pooja Rane, S. Sable &
Nikhita Ghosalkar, for the Petitioner in all Petitions.
Mr Ram Apte, Senior Advocate, with RY Sirsikar, for the
Respondent-MCGM.
Mr Jagdish Aradwad (Reddy), for Respondent No. 3 & 4-SRA.
Mr Jeetendra Waghmare, Senior Colony Officer, M/East is present.
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Mr Manish Suryawanshi, Colony Officer, M/East is present.
Mr Vijay Padave, Rent Collector M/Eest is present.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 10th July 2023
PC:-
1. In this group of Petitions, we are dispensing with a need to
show the short title of these Petitions. That listing of short titles is
itself of 45 pages and is therefore no longer needed. The individual
Petitions will be shown by their Petition numbers.
2. We first made an order in the lead Petition on 28th March
2023. At that time, we granted ad-interim relief in the form of
further work on the Municipal Corporation of Greater Mumbai
("MCGM") owned land in respect of the portion at village Ghatla,
Khardeo Nagar, Chembur, Mumbai 400 071. We noted that the
project has in litigation for nearly 10 years. This is a Section 3K
project under the Maharashtra Slum Areas (Improvement,
Clearance And Redevelopment) Act, 1971 ("Slum Act") Scheme.
There is a long round of history of previous litigations.
3. The immediate compliant before us on 28th March 2023 was
that the MCGM proposed, without certifying an Annexure II and
without conducting a site survey inspection, to simply evict people.
We noted that the conduct of the MCGM required far more
explanation. We held that it would not possible to allow the MCGM
to proceed with an eviction and demolition which would prejudice
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hundreds of persons on site. We noted the precise CTS numbers in
paragraph 7 of our order of that date and then said that there will be
no further work of removal of structures or eviction of persons from
site until further orders of this Court. We permitted MCGM to
begin after sufficient notice the process of the physical survey of the
structures but did not permit demolition of structure or the eviction
of the persons.
4. There were other orders thereafter and then we passed an
order dated 9th July 2023. We noted on that date that there was no
compliance with the directions to the MCGM to complete the
preparation of Annexure-II. We demanded that the MCGM do so
within the time frame that we set. Almost ten years had elapsed
without compliance of previous orders of this Court. We were told
that the process of Annexure-II will take some time. We said that
the matter would be listed on 12th June 2023 when Mr Apte for the
MCGM was to give us the names of some officers who would work
on completing Annexure-II by 15th July 2023.
5. On 12th June 2023, Mr Apte tendered a list of four officers.
We took this list on record. They were to commence the preparation
of Annexure-II immediately.
6. The complaint today by Mr Khandeparkar for the Petitioners
is that the Annexure-II said to have been prepared by the MCGM,
and which Mr Apte says is still in draft, is wholly inadequate. None
of the names of these 206 Petitioners are shown on the Annexure-II.
All their structures are simply shown as Staff Quarters and nothing
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more. The attempt is to deprive these persons of all eligibility to free
of cost ownership premises on rehabilitation.
7. Mr Khandeparkar's argument is that these persons, all now
retired employees of the MCGM, by virtue of having received Photo
Passes in a censused slum and under the Section 3K Scheme must
be treated on parity with all other eligible slum dwellers listed in
Annexure-II. They are entitled to receive all the benefits of
rehabilitation including permanent alternate accommodation. This
basic statutory right cannot be denied to them by (mis)describing
their premises as Staff Quarters.
8. We have been taken through a series of orders relating to this
project, but between Mr Khandeparkar and Mr Apte there are
competing submissions as to what this Court has previously
permitted in regard to premises under occupation by retired
MCGM's Class-IV Staff. Our attention is also drawn to a decision of
a Division Bench of this Court of AS Oka, J (as he then was) and RI
Chawla, J in DJ Rane and others vs. The Municipal Commissioner and
Ors.1 This is said to refer to a certain policy by which Class-IV
employees were assured free of cost ownership accommodation, but
this benefit was not extended to the employees or officers in a higher
grade.
9. Reference is also made to Government Resolution ("GR")
and a Circular. The GR of 16th May 2015 is relied on by Mr
Khandeparkar to say that the issuance of a Photo Pass (in Item 3 at
1 2018:BHC-OS:7131-DB : 2018 SCC OnLine Bom 1050 : 2018 (4) ABR
132.
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page 5 of the GR) is sufficient in law to establish entitlement to
permanent alternative accommodation in the rehab unit especially
when read with Sections 3X(b) and 3Y of the Slum Act as also
certain conditions (notably condition 83) of the Letter of Intent
itself.
10. Specifically, he points out that the MCGM is at no loss. The
Developer is bound to provide to the MCGM 10,000 sq mts built up
area as Staff Quarters, and this is over and above the premises that
are to be constructed for rehabilitation of these 206 persons (among
others) as permanent alternative rehabilitation accommodation.
11. Mr Apte places reliance on the MCGM Circular of 4th
February 2012 to say that it had been noticed that many workers or
employees of the MCGM were holding on to the Staff Quarters
beyond the period of their employment and that this could not be
permitted.
12. In the first place, since we will need to consider the GR and
Circular and we do not expect the matter to end here, it having
travelled via Review Petitions at least once to the Supreme Court,
we will need official translations of the relevant GR and Circulars so
that these can be accurately quoted in any subsequent order. We are
prepared to interpret the GR and Circular as they stand but quoting
them in Marathi would be less than respectful to the Supreme
Court.
13. In any case, for this purpose alone, we would request the
State Government to ensure that the official translations are always
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made available so that accuracy is not sacrificed in orders of the
Court especially in contentious matters like these.
14. We note Mr Apte's submission that in a detailed judgment of
this Court delivered by Division Bench on 6th January 2017 in Writ
Petition No. 957 of 2013, More Jeevan Yashwant and 82 Ors vs
MCGM and Ors2 and connected matters (also referenced in the
Division Bench order in DJ Rane, supra), the submission that has
been made today by the Petitioners was expressly rejected. Mr
Khandeparkar contests this reading of the Division Bench judgment.
It is pointed out to us that a Review Petition failed as did a Special
Leave Petition.
15. Mr Apte submits that the Division Bench in More Jeevan
Yashwant noted that the Supreme Court had deprecated the increase
in tendency to hold on to Government property. The Supreme
Court noted the increase in unauthorized occupation of
Government premises. According to Mr Apte, the Division Bench
specifically permitted -- and in fact required -- the MCGM to
proceed against all former employees under Section 105B and
related provisions of the Mumbai Municipal Corporation Act, 1888
("MMC Act"). They were also entitled to recover penalty,
damages, and compensation. Paragraph 54 of the Division Bench
judgment is heavily relied on by Mr Apte. In any case, Mr Apte says,
there was an explicit rejection of the claim being made that the
Petitioners could continue in occupation of these premises. Mr
Khandeparkar's submission appears to be that the protection that
2 2017:BHC-OS:146-DB : 2017 SCC OnLine Bom 10101 (2017) 4 Bom
CR 532.
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sought by the petitioners in More Jeevan Yashwant and which was
denied was only against the provisions of the MMC Act and in their
capacities as erstwhile employees of the Municipal Corporation. He
points to other portions of the very same judgment to say that when
it came to identification or the conferment of entitlement under the
provisions of Slum Act whether by virtue of holding a Photo Pass,
Section 3X, Section 3Y or the relevant portions of the Letter of
Intent, the very same Division Bench judgment said that the entire
project could proceed according to law under the Slum Act.
16. Today, the Petitioners do not claim to be entitled to continue
in occupation nor to substitute premises in their capacity as
employees or former employees of the MCGM. What they do
contend is that they are now protected by the operation of the Slum
Act, because they have each been issued a Photo Pass. This has
immediate consequences whether under the GR in question or
under the statute itself. It simply cannot be that a Photo Pass, issued
with a specific statutory purpose under the Slum Act, is treated as
inconsequential or irrelevant for the purposes of slum
redevelopment.
17. The answer to this from Mr Apte (and he does not accept that
all the Petitioners do indeed have Photo Passes), is that the photo
passes were nothing more than an administrative convenience to
prevent persons from trafficking in or transferring the premises that
they occupied.
18. We do not believe these Petitions can be kept pending much
longer. We need an Affidavit from the MCGM setting out the GRs
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and the specific policy in question applicable to Grade-IV
employees. The present GR and Circular referred to above are to be
annexed with official translations. That Affidavit is to be filed and
served by 21st July 2023. Mr Apte states that the copy of Annexure-
II will be annexed with the Affidavit.
19. A response from the Petitioners is permitted by 4th August
2023. We propose to take up the Petitions on 8th August 2023 when
they will all be listed high on the Supplementary Board.
20. Previous orders to continue until the next date.
(Neela Gokhale, J) (G. S. Patel, J)
10th July 2023
