Ravindra V Shedge vs Enquiry Officer, M- Ward, ...
2023 Latest Caselaw 3029 Bom

                                                                          23-ASWPST-7404-2023.DOC




                       Shephali



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                      WRIT PETITION (ST) NO. 7404 OF 2023


                       Ravindra V Shedge                                                  ...Petitioner
                            Versus
                       Enquiry Officer, M-Ward Municipal Office & Ors                 ...Respondents


                       Mr Mayur Khandeparkar, with Abhay Parab, for the Petitioner.
                       Mr Santosh Parad, with RY Sirsikdar, for the MCGM.
                       Mr Jagdish G Aradwad (Reddy), with Ashwini B Jadhav, for
                            Respondents Nos. 3 & 4 (SRA).


                                                     CORAM     G.S. Patel &
SHEPHALI
SANJAY                                                         Neela Gokhale, JJ.

MORMARE DATED: 28th March 2023 Digitally signed by SHEPHALI SANJAY PC:-

MORMARE Date: 2023.03.29 09:43:54 +0530

1. We are constrained to grant urgent ad-interim relief against any form of further work on the land owned by the Municipal Corporation of Greater Mumbai ("MCGM") in this slum redevelopment scheme under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971.

2. The project is of mammoth proportions. Land ownership varies from area to area. The project has been the subject of litigation for nearly 10 years. Our attention is drawn to a detailed order and judgment of a Division Bench of this Court (Mohit S

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Shah, CJ and MS Sanklecha, J) of 24th September 2013. That was the Petition filed by the developer, Sterling Buildcom. The State Government, which is supervising the scheme inter alia under Section 3K of the Slum Ac, had cancelled the provisional Letter of Intent to the developer. That was challenged before the Division Bench. The cancellation was inter alia set aside but this came with conditions attached. Some of those are set out in paragraph 55 of that judgment which we find at page 207. The Respondents were inter alia directed to complete the process of certifying Annexure II within one year. That is the process of certifying persons eligible or ineligible for slum rehabilitation. That would have been by September 2014. We are at the end of March 2023 and that has not yet been done. Instead, time has been extended twice but even those deadlines have gone and they went as far back as 31st December 2015. A certification process requires (i) a survey of the structures on site; (ii) identification (by biometric methods) of individual claimants; and (iii) a scrutiny of the documents produced by the claimants to see if they meet the prescribed criteria of eligibility, but which is necessarily related to the structure in question.

3. But what the MCGM seems to propose without certifying Annexure II and without carrying out or conducting the very preliminary work necessary, i.e., a site survey of the structures, is simply to evict people. Thus, when it comes to 'certifying Annexure II', these already-evicted persons are simply not on site, and neither are their structures. But Mr Khandeparkar's speculation is that the MCGM is going about in this manner because the fewer the certified slum dwellers on site, the higher the premium the MCGM can demand from a developer.

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4. Mr Khandeparkar also tells us that this Petition is just one of 207 identical Petitions filed or being filed. He has a list. In all these cases, the Petitioners are sought to be excluded entirely from the slum rehabilitation scheme, the very one being supervised by the State Government, by the simple device of not surveying the structures. According to Mr Khandeparkar, the formula is simple: if the structure is gone, just taken out of the equation, no question of 'certifying' eligibility arises, because nothing remains in respect of which a person can be held to be 'eligible'. If the structure is itself is gone then there is no question of a person undergoing a biometric verification or validation or of verifying his documents because there is no structure against which that validation or verification or scrutiny can be done. And certification will be claimed to be completed by this process of entirely unlawful exclusion.

5. Mr Parad, learned Advocate for the MCGM, seeks time to take instructions. We do not know why instructions have not been obtained. We say this because, with a great deal of enthusiasm, a preliminary objection to the maintainability of the Petition was raised by saying that the Petition assails an order of the City Civil Court of 21st December 2022 in a statutory appeal, and therefore this Division Bench could not take up the Petition. The submission is entirely wrong. It is rejected outright, and we are not going to entertain it a second time. This is a statutory appeal. There is nothing to do with which court passed the order. It certainly does not explain the conduct of the MCGM. What it does however reveal is that the Petitioner's grievances have been known to the MCGM at least from February 2018 when the first order was passed by the enquiry officer and then from 21st December 2022 when the order

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came to be passed in the statutory appeal giving the Petitioner and others time until this evening to vacate.

6. Prima facie conduct of the MCGM requires far more explanation than is currently made available to us. It is not possible to allow the MCGM to proceed with the eviction and demolition in such circumstances. This will conceivably irretrievably -- and irreversibly -- prejudice hundreds of persons who are on site. There can be no urgency on the part of the MCGM because it has done absolutely nothing since 2013, i.e., for the last 10 years and we see no reason why it should claim any great urgency now.

7. It is impossible in a situation like this to make nice distinctions of the kind MCGM seems to claim. We are concerned with the MCGM ownership portion of the entire scheme of redevelopment being undertaken at village Ghatla, Khardeo Nagar, Chembur, Mumbai 400 071 on CTS Nos. 41, 71, 72, 73, 74, 84, 85, 86, 87 and 781; and we are concerned with MCGM's compliance in letter and spirit of this Court's direction to complete the process of certification; which must and can only mean, a process contemplated by law.

8. There is to be no further work of removal of structures or eviction persons from the site until further orders of the Court. At best the MCGM is permitted to begin after sufficient notice the process of conducting a physical survey of the structures. No structure is to be demolished nor is any person to be evicted or

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removed without previous permission of this Court. This order will continue until the next date.

9. All Affidavits in Reply are to be filed and served on or before 31st March 2023.

10. List the matter first on board along with all 207 other Petitions on 5th April 2023.

11. If the survey is not shown to have been done we propose to issue Rule and confirm this stay regarding the MCGM portion of the land until there is compliance with the Division Bench order.

12. We also make it clear to this Petitioner and all other Petitioners that should we find that the Petitions proceed on a misrepresentation, we will have no hesitation in vacating the stay forthwith, dismissing the Petitions and even imposing costs.

 (Neela Gokhale, J)                                        (G. S. Patel, J)





                               28th March 2023