Mohan Yeshwant Padawe And 3 Ors vs The State Of Maharashtra And 39 Ors
2023 Latest Caselaw 10089 Bom

2023:BHC-OS:11158-DB                                                                906-OSWP-2737-2018.DOC




                                                                                                              Arun


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     ORDINARY ORIGINAL CIVIL JURISDICTION
                                              WRIT PETITION NO. 2737 OF 2018


                           Mohan Yeshwant Padawe & Ors                                          ...Petitioners
                                Versus
                           The State of Maharashtra & Ors                                     ...Respondents


                           Mr AM Saraogi, with Amit C Dubey, i/b AM Saraogi, for the
                                Petitioner.
                           Mr Anoop Patil, with Pooja Yadav, i/b Sunil Sonawane, for the
                                MCGM.
                           Mr Abhay L Patki, Addl GP, for State.
                           Mr Mohit Khanna, with Dipti Sawant, Priyanka Desai & Aditya
                                Lele, for Respondents Nos. 41-43.
                           Mr SK Dhekale, Court Receiver, present.


                                                         CORAM      G.S. Patel &
                                                                    Kamal Khata, JJ.

                                                         DATED:     3rd October 2023
                           PC:-

    ARUN

RAMCHANDRA 1. The Petition was originally filed in 2018. There were four SANKPAL

Digitally signed by ARUN Petitioners. They obtained an ad-interim order against RAMCHANDRA SANKPAL Date: 2023.10.04 10:11:47 +0530 disconnection of water and electricity to their premises and that continued for the next five years till 2023.

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2. The first order by this Bench was of 24th August 2023. It is only on account of subsequent developments that we need to now reproduce that order as part of today's order. The nine-page order of 24th August 2023 reads thus:

"1. There are four Petitioners. They came to court in 2018, five years ago now, claiming that water and electricity to their premises was being abruptly disconnected. They said that they had received notices under Section 354 of the Mumbai Municipal Corporation Act, 1888 ("MMC Act") that the structures in which they occupied premises were dilapidated and needed to be pulled down. Through the Petition, apart from the municipal authorities, a developer named Sanghavi Grih Nirman Pvt Ltd was Respondent No. 4 and then Respondent Nos. 5 to 40 were individuals said to also be residing there.

2. The Petition as originally filed proceeded on the basis that the Petitioners and Respondent Nos. 5 to 50 were the original "residents" of this plot of land, City Survey No. 13, FT No. 1274, TPS IV, Mahim, G/ South Ward Mumbai - 400 016. There was no clear statement about the basis on which these persons were entitled to occupation, whether as tenants or otherwise

3. More importantly, the Petition proceeded directly in paragraph 2 itself, to a narrative about a redevelopment proposal. The first sentence of paragraph 2 is materially misleading because it said that the occupants decided to redevelop the building, postulating that they had some right in law to do so to begin with. This will become important shortly. There is a reference to an agreement of 7th February 2009. The fact that the Petitioners and others like them were tenants in a MHADA chawl is not mentioned. The fact that the property is privately owned by Respondent Nos. 41 to 43 is not mentioned. The owners,

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the Nagwekars were not even joined as a parties to the Petition. It was only on their intervention that very recently in 2023, they came to be joined to the petition.

4. The Petitioners moved the Vacation Bench on 25th May 2018 and obtained an order on a statement made on behalf of the Municipal Authorities that power and water supply would be reconnected. The Court stated that these parties could occupy at their own risk.

5. There the matter remained for years together until 29th September 2022, when a bench of which one of us, GS Patel J, was a member with Gauri Godse J, had before it an Interim Application No. 1885 of 2021 seeking that the 25th May 2018 order be vacated. That Interim Application was by the Municipal Corporation of Greater Mumbai ("MCGM"). It was only then that a few further facts emerged, including, importantly, that these persons are not occupying the original structures at all. They are in a transit building, a matter of some consequence even to law under the MMC Act. We considered the application moved by the MMC and found that nobody had asked for the 2018 interim order to be vacated until 2021. We held that if at all, it would be the developer who would be interested in having that ad interim order of 2018 vacated. The developer did not even appear. The owners were not parties. It is only thereafter that the Nagwekars sought impleadment and which was subsequently allowed.

6. Now we have a much clearer picture. There were originally 103 tenants or occupants. Not at all of them occupied cessed premises. Today, the four Petitioners and some 14 others continue in this transit building.

7. Before we go further, a word about these transit buildings. As the name suggests, these buildings are necessarily temporary. They do not have a life beyond three to five years and the Nagwekars' Affidavit says in terms that

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the buildings were constructed in 2006 with a life of five years. We are well past that time. We dislodge immediately any notion the Petitioners might have of applying the MCGM policy, circular and the judgment of this Court of structural audit and a reference to the Technical Advisory Committee ("TAC"). That cannot apply to transit buildings. The reason is axiomatic. Transit buildings are by the very nature of their construction and by structural design temporary and not meant to last beyond three to five years. There is no question of repairs or of these buildings being made permanent. Even the planning permissions that are granted for transit buildings are not granted in the same manner or subject to the same stringent requirements as they are for permanent constructions. We have only a few days ago noted that the attempt to apply the law on the TAC in structural audits to transit buildings is not only an inversion of law but is a perversion of the law. We do not propose to allow it.

8. Of the 103 tenants, as many as 63 are off-site now in MHADA camps. Another 10 non-cessed tenants are off-site in accommodation for which they have made their own private arrangements. Another 12 non-cessed tenants stay in alternate accommodation (that is to say not on transit rent). These 12 were among the parties to the Petition who have since moved out. Only 18 continue today in these transit buildings.

9. Mr Kamat on behalf of the Nagwekars states that the original developer was one Jankie Developers. Respondent No. 4 was an associate or co-developer. That development agreement has been terminated. The development agreement was with the owners the Nagwekars and was terminated by the Nagwekars. It was not a decision of the tenants, nor theirs to take. This is all a matter of record.

10. He also has instructions to state that exactly on the

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same terms as are offered to all other tenants, those in the present transit building, i.e., the four Petitioners and the 14 others will be given permanent alternate accommodation agreements, i.e., agreements assuring them of ownership- basis redeveloped homes. They will also have the choice of moving out to transit accommodation of their choice or of their liking but against payment by the Nagwekars of transit rent of Rs. 30,000/- per month (which according to us it is eminently fair) and 12 months being paid in advance. This will be payable from the date of possession of the transit building. Alternatively, these 18 persons will have the choice of not receiving transit rent but of shifting to transit accommodation in a 5 km radius which the Nagwekars will show them. The Nagwekars will be bound and held to an undertaking to pay the licence fees or rental for that alternate accommodation directly to the licensors or landlords. Mr Kamat however makes it clear that these 18 persons will be treated exactly on parity with all other tenants. His instructions are that the Nagwekars are prepared to show the available alternative premises to the 18 persons so that they can take an informed decision and requests that the Court should fix a timeline within which this choice must be exercised and also a date by which these premises in the transit building must be vacated.

11. We have repeated requests to adjourn the matter for Mr Saraogi's convenience. We are making it clear that this is the last time that we are going to do this. If Mr Saraogi is unavailable, the answer is not that one of his perfectly competent juniors will come to Court and seek an adjournment every Thursday but that they will carry on with the matter when it reaches. We now make it abundantly clear that this is the last time we will accommodate Mr. Saraogi and we will not any longer be able to arrange our docket to his diary. It will be the other way around. It is indeed regrettable that we are compelled

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to have to record something like this but it is equally unavoidable.

12. We are making it abundantly clear that we require the four Petitioners to be present in Court tomorrow because it is also our experience that very often the Petitioners in a case do not come to Court or are kept from coming to Court so that yet another adjournment is obtained on the ground that instructions are required. We will not adjourn the matter beyond tomorrow under any circumstances.

13. This has nothing at all to do with what Mr Kamat says or does not say. Our concern is not with the Nagwekars at all, let alone for any developer that the Nagwekars may have chosen. The numbers shown to us tell their own story and are indeed alarming. These are only 18 of 103 people and the future prospects, homes, dreams, livelihoods and futures of the others are jeopardised by these 18 people -- at precisely zero cost to themselves. Without paying a single rupee out of their pockets, they have sat on an ad interim order from 25th May 2018 right till 2023 and for no good reason. That has to end. We do not know what has happened to the people of this city that they no longer have the slightest concern about their own neighbours and others in their society. There are dozens of others who are out on transit rent or in transit accommodation and are forced to stay there indefinitely. Already, five years are lost, possibly for no fault of these tenants; but their continued obstruction only heaps on further delay.

14. We do not accept the argument that a tenant has the right to choose a developer or the right to dictate the terms of the redevelopment. These four people do not have the authority to speak on behalf of anybody else. This is not a PIL. There is no leave obtained under Order I Rule 8 of the CPC to sue in a representative capacity. We reject out of

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hand the submission faintly attempted before us even today that there are many others who have not received large amounts in transit rent. These four Petitioners will speak for themselves and for no one else.

15. We are making it clear that we intend to fix a date and we will not be unreasonable in that regard, by which time these Petitioners and others in the building must vacate the premises. If they fail to do so, we will enforce that order through our Court Receiver and with the assistance of the police authorities apart from vacating the ad interim order and directing mandatorily the disconnection of power and water supply. We find it utterly incongruous and astonishing that these 18 people can without spending a single rupee on development, prejudice the futures of dozens of other tenants. Even now it is clear that not one of these four Petitioners has either the readiness or the willingness to make a single rupee's contribution towards the redevelopment of these buildings or to the reaccommodation of the other tenants. We have made this abundantly clear in the past and we do so now as well: if these tenants claim that they have these great rights, they will first establish their bona fides by depositing in Court the entire expenditure on transit rent for the other tenants who are off-site, in advance, for the next 24 months, before we will afford them a hearing.

16. By tomorrow we require from Mr Kamat an exact list with the names in a tabulated form of those who are presently in occupation of the transit building so that there is no ambiguity. The unit numbers must be correctly and exactly identified. The alternative sites they are being shown must also be identified and communicated to us. We have too long operated in generalities. This must now come down to specifics.

17. We are also making it abundantly clear that as

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currently advised, we propose that the building will be entirely vacated no later than by 26th September 2023. On this we will hear no argumentation from the Petitioners. If there is slightest argument about this, we will not postpone the date, we will advance it.

18. As to the question of any allegation regarding an accumulation of arrears, we will pass separate directions in that regard.

19. All Affidavits to be filed in the Registry.

20. List the matter first on board on 25th August 2023."

3. The very next day we passed another order. It is reproduced below (without its annexures). The order of 25th August 2023 reads thus:

"1. Mr. Kamat tenders a tabulated statement in two parts. Table A is a list of the tenants/occupants presently residing in the temporary transit camp, i.e., the subject matter of Writ Petition No. 2737 of 2018. There are 18 such persons. The second table shows available transit accommodation and there are 21 units.

2. This tabulation is presently taken on record and marked "X-2" for identification with today's date.

3. We have briefly considered the rival submissions and proposed a workable alternative so that the 18 persons in transit have the choice of either taking transit accommodation or transit rent. This was indicated in our order yesterday and reflected a submission that came from Mr Kamat for the owners.

4. Some further directions will be required to ensure that this works in a proper, structured and a non- controversial fashion. Particularly, there must be transparency in the process of the transit accommodation

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and fairness in the choice that is given to these 18 persons.

5. We have required Mr Kamat to suggest a working method for this purpose and also to give us a sketch plan of the site showing the location of the present transit building so that there is no ambiguity about this going forward.

6. Mr Datar is for the other 14 Respondents namely, Prasad Ramchandra Borkar, Lata Gajanan Shitalkar, Ashabai Rajaram Kir, Vijay Gajanan Surve, Padmakar Ramchandra Gajne, Budhaji Vishnu Dalvi, Manohar Shantaram Nagwekar, Manjari Manohar Palav, Anant Lahu Borkar, Ramchandra Lahu Borkar, Sugdha Suresh Kir, Ashabai Rajaram Kir, Kamlakar Sitaram Nagwekar and Anandibai Yeshwant Padave. Their names are shown at serial nos. 5 to 18 of Table A of the sheet tendered by Mr Kamat marked "X-2". The Advocate on Record will file the Vakalatnama by Monday, 28th August 2023.

7. Mr Kamat states that his information is that Petitioner No. 4 has passed away. He is correct in saying that the benefits will accrue to the heirs of Petitioner No. 4 provided there are sufficient indemnities and affidavits made known under the names of the heirs. Mr Saraogi will take instructions in regard to Petitioner No. 4 and any other Petitioners. Mr Datar will similarly take instructions for any of the other 14 Respondents.

8. List the matter high on board on 29th August 2023."

4. Then on 30th August 2023, in open Court when some of the Petitioners were present, and were represented at that time by Mr Saraogi, we passed a detailed 31-page order. To this there were several annexures including a note submitted by Mr Kamat for the developer. For completeness, and of unavoidable necessity this entire 31-page order (without annexures) is reproduced below.

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"1. The order today will substantially dispose of the present Writ Petition No. 2737 of 2018. It is kept at a later date only for compliance.

2. Two things must be noted at the beginning. There are other persons who claim to be similarly situated as the present four Petitioners. Not all of them are parties before this Court. Some are represented by Mr Datar. We are told that they have filed a separate Writ Petition. To avoid all misunderstanding, we clarify that our directions are limited to this matter and any other Petition filed through Mr Datar's attorneys by any other person will have to proceed on merits unaffected by these directions. This clarification is necessary because, as the following directions will show, we have not found a way to confine ourselves to the present four Petitioners or the present individual Respondents. Rather, we have dealt with the class that they represent. But having said that, we obviously cannot determine the rights or contentions of a party who is not before us in a petition that is not within the roster of this Court. Hence this clarification.

3. The second aspect of the matter is equally necessary and that is to examine first the prayers that are sought in the Writ Petition. These are prayer clauses (a),

(b) and (c) at pages 14 and 15 and they read as follows:

"a) that this Hon'ble Court be pleased to pass appropriate writ, order and direction directing quashing of the alleged notice allegedly issued under the provisions of Section 354 of M.M.C. Act dated 28.4.2018 on such terms as this Hon'ble Court may deem fit and proper.

b) that this Hon'ble Court be pleased to issue appropriate writ, order and direction directing the Respondents No.2 and 3 to forthwith restore the electricity and water supply to the premises of the

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Petitioners and more particularly, the transit camp accommodation situated at Hastikar Wadi , Janki Bhavan, Patra Shed, Transit Camp, Hastikar Marg. Old Prabhadevi, Mumbai 400 025 on such terms as this Hon'ble Court may deem fit and proper.

c) that this Hon'ble Court be pleased to issue appropriate writ order and directing the Respondents No.2 and 3 not to take any action upon the Notice issued under the provisions of Section 354 of M.M.C. Act dated 28.4.2018 and also direct necessary enquiry against the Respondent No.4 and subject to such enquiry, necessary action be initiated against the Respondent No.4 on such terms as this Hon'ble Court may deem fit and proper."

4. We had previously noted in our fairly detailed order dated 24th August 2023 that on 25th May 2018, a Vacation Bench of this Court granted an ad-interim relief that has continued till today of reconnection of water and electricity supply. The Petitioners (and presumably others like them) were permitted to continue in occupation at their own risk.

5. We turn next to a delineation of the parties before us in this Writ Petition. There are four Petitioners. Respondents Nos. 5 to 40 are also all individuals. We are told that their interests align with those of the Petitioners. The 1st Respondent is the State of Maharashtra. The 2nd Respondent is the Municipal Corporation of Greater Mumbai ("MCGM"). The 3rd Respondent is the Brihanmumbai Electricity Supply and Transport ("BEST") Undertaking and was joined because of the ad- interim reliefs that were then sought and in view of the prayers that we have set out above. The 4th Respondent, Sanghavi Grih Nirman Private Limited has gone out of the picture. It used to be the developer. It has never appeared.

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Respondents Nos. 41 to 43 are the owners of the plot in question and are represented by Mr Kamat.

6. On behalf of the Petitioners, Mr Saraogi has made it clear that while he represents these four Petitioners, their interests and those of other individuals are common even if some of the others may be represented by Mr Datar.

7. The property in question is City Survey No. 13, Final Plot No. 1274, Town Planning Scheme No. 4, Mahim, G/South Ward, Mumbai 400 016. It is a fairly substantial property by all accounts. In our order of 24th August 2023, we noted some of the background to the matter. Amongst other things, we noted that there was an earlier Interim Application ("IA") filed by the MCGM to vacate the ad-interim order. That came to be dismissed on 29th September 2022 by a Bench of which one of us, GS Patel J, was a member. We noted while dismissing that IA that the Developer had made no such application to vacate the ad-interim order. At that time, the owners, i.e., the Nagwekars, Respondent Nos. 41 to 43, were not parties before us. They were subsequently joined.

8. Mr Kamat has made submissions on why the ad- interim order needs to be vacated and more importantly why the building that the Petitioners and others like them occupy must be vacated.

9. To put this into some additional context. On the one hand there are four Petitioners. There are 14 others said to be represented by Mr Datar, making a total of 18. Then there are, we were told yesterday, nine additional people who claim certain entitlements. We were told yesterday that these nine additional persons were still in the building in question but today the update is that they are elsewhere, i.e., not on site. There is, therefore, no

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question of them being vacated or evicted. Their other rights will remain.

10. To lend an overall perspective, we must note that there were a total 103 tenants. This gives us some idea of the scale of the project and the problems involved.

11. It is common ground that Sanghavi Grih Nirman Pvt Ltd has all but abandoned the project. It has made no appearance before us. It has not contested this Petition at any time. We will not thereafter entertain any application regarding this project from Respondent No. 4.

12. Matters may have been considerably more complicated had the Nagwekars, Respondents Nos. 41 to 43, in their capacity as owners expressed helplessness, inability or even a refusal to do anything further. But that is not how matters have unfolded before us. Mr Kamat makes it clear that these owners now propose, with whatever external financial support they are able to get, to complete the redevelopment of their own property themselves.

13. Accepting this statement at face value is insufficient. There has been considerable discussion on this in Court and while our directions that follow will deal with each of these aspects more fully and in detail, at the broadest length, any such redevelopment involves the following factors:

i. Making provisions for temporary or transit accommodation or transit rent for tenants; ii. Execution and registration of permanent alternative accommodation agreements with these tenants.

iii. Delivering possession of the permanent alternative accommodation tenements.

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14. We clarify that it is not our concern whether these tenants are to be rehoused on a tenancy basis or on ownership basis. That is a matter of negotiation between the owners and the tenants and it is certainly outside the remit of a writ court. There is also the question of payment of additional amounts such as shifting charges or a hardship allowance, all to be contractually determined between the two rival groups. Lastly, there is the question of completion on a schedule of the rehab or reaccommodation buildings for the tenants and of giving them possession with occupation certificates of the rebuilt premises. On this aspect, we must clarify that it has been our view, and so expressed in judgments that possession must mean possession with an occupation certificate ("OC"), and an occupation certificate necessarily means a certification that the structure is fit for human occupation and possession. That in turn means there must be functioning facilities such as lifts, municipal water supply, power connections, complete finishing of the structure and all civil works and so forth.

15. As it happens, we are not required to address the merits of the matter to pronounce in favour of one or the other of these contestants. The reason is that over the last few days something resembling a consensus or partial consensus seems to have emerged that appears to us to be a viable solution in the interests of all concerned.

16. There is an updated note from Mr Kamat. We take this on record and mark it "X-2" for identification with today's date but this is only a reference point. We are not making this an order of the Court in the form in which it stands. There are portions of it that we accept and there are other parts of it that we are required to modify. There is also a sketch plan of the site. This is taken on record and marked "X-3" for identification. Soft copies of the note and the plan are appended to this order.

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17. To give an idea of the location on site, the plan tells us that the disputed occupancies, and we use that word in its widest sense, are in a transit camp located at the front of the site of the proposed rehab building and sale building complex. The expression 'transit camp' is perhaps somewhat misleading. This is actually a transit building, but being constructed as a transit building, it necessarily has a limited life of three to five years. It has long outlived that life. It is undoubtedly -- and this is now not seriously disputed before us -- in so bad a structural condition that it cannot be allowed to continue, apart from the fact that its continuance blocks the redevelopment that is proposed. To continue in that building would be hazardous and unsafe and in any case, there is no one any longer before us who is claiming a vested right to continue permanently in the transit building because Mr Saraogi for the Petitioners clearly accepts that none of the Petitioners are opposed to redevelopment. All that they seek is an assurance and monitoring under a public authority that the redevelopment is done in a systematic manner with the rights of the tenants being protected. That is reasonable and since that demand seems to be fairly met by Mr Kamat's proposal, we proceed to the set of directions.

18. The note from Mr Kamat breaks up the occupants into four different categories by colour. This is a somewhat unusual approach but it is certainly convenient. We will therefore refer to these occupants or tenants as the white tenants, the blue tenants, the orange tenants and the green tenants. Those are the colours that Mr Kamat has used and they are the easiest point of reference.

19. Those shown in white are the nine occupiers or tenants who are undoubtedly entitled to transit rent or transit accommodation. This requires some explanation and some part of this was covered in our 24th August

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2023 order but we will return to this momentarily. There are four persons shown in blue. We examined this list yesterday and found that these persons need to submit additional documents because there are claims by heirs of the original tenants or occupants. The concern is that neither the MCGM nor the owner who is undertaking development should later face claims from others without sufficient heirship documents and indemnities. As such, the rights of the original tenants in respect of these persons whose names are in blue highlights are not being contested. Those in orange highlight are persons who have passed away. Their heirs are required to submit additional documents, again on the same principle.

20. The last category, in green colour, is of nine persons who have left the transit building. Yesterday, it was claimed that they are still in the building, but we will accept the factual position that they are not because Mr Kamat has made it clear that the fact that they have left the transit building does not mean that they have lost their entitlement to transit rent at the stipulated rate.

21. The Nagwekars agree that all persons whether they are in transit rent or being provided transit accommodation are uniformly entitled to a one-time payment of Rs 10,000/- as shifting charges. We accept this figure.

22. So far as the first category of persons is concerned, i.e., the nine tenants and occupiers as also the four persons who are required to submit original documents have an option from the Nagwekars. They may either accept transit rent at Rs 30,000/- per month or they may choose one of the 17 available transit accommodations that are shown in Annexure 'B' to the note. This was a concern and it is addressed by paragraph 9 of the note. We had asked Mr Kamat to take instructions as to how these

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13 persons would be allowed to inspect the 17 available premises and what was to be done if more than one person chose the same accommodation. The answer seems to be, and we will have to accept this, that on 2nd September 2023 and 3rd September 2023 (the dates may be extended if this order is delayed in being released), the Nagwekars will make travel arrangements to take these persons to the various locations from the transit camp to those destinations and back. We take it that the Nagwekars will make sufficient provision for reasonable food and drink while on the way since this is likely to take some time. If any of these 13 persons opts for a transit accommodation, they must indicate so no later than by 5th September 2023. Every one of them who chooses to opt for transit accommodation must indicate a first, second and third preference. Now this is precisely the problem that we foresaw about rival persons making claims to the same alternative accommodation. This is not a matter that we wish to leave to the tenants internally to resolve because that will never be resolved. Nor can we ask the owners, the Nagwekars, to intercede because that will be another area of friction. We note that there is no prayer for a Court Receiver, but it is only an order to give effect to what appears to be a consensual resolution of the problem that we take the liberty and exercise our discretion to direct that these choices will be forwarded by the Nagwekars to the Court Receiver, Bombay High Court immediately and no later than by 6th September 2023 (or as suitably extended). No later than by 9th September 2023 (also extendable if necessary), the Court Receiver must conduct a lottery in the Court Receiver's office. This lottery will be conducted after giving notice to the Advocates for the parties and whose Vakalatnamas are before us. That lottery system will be in respect of the 17 premises that are chosen and the first, second and third preference choices.

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We will require that the lottery proceeding to be videographed so that there is no controversy about this at any later stage. The Receiver will then draw up a final list of allotments. That will be forwarded to the Advocates for the parties. At the time of the lottery, the Court Receiver will ensure that there is an attendance sheet and that the persons other than Advocates attending all show some photo identification.

23. We make it clear that we are not compelling any party to necessarily accept alternative accommodation. Every one of these parties has the option of choosing to take transit rent at Rs 30,000/- per month.

24. We also make it clear that even after the lottery it is open to any tenant/occupant to decline to take the allotted premises without assigning reason and to opt for the transit rent at Rs 30,000/- per month. That decision must be communicated to the Court Receiver and to the advocates for the Petitioners within 72 hours of the lottery result being declared.

25. If a person does take alternate accommodation, then the obligation of the Nagwekars is to ensure that the transit accommodation is made fully available to such allottee until permanent alternate accommodation is provided. It is then for the Nagwekars to pay the licence fee, lease rent or rent for this alternative accommodation and to continue to do so irrespective of what it costs (whether more than Rs 30,000/- per month or less) until delivery of final possession.

26. As to the terms of payment of transit rent, we note Mr Kamat's statement, and this we will take as an undertaking to the Court, that all tenants who are vacating or presently elsewhere on self-chosen accommodation (i.e., not in transit accommodation provided by the Nagwekars) will be paid transit rent at Rs 30,000/- per

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month (in addition to the shifting charges) for 12 months in advance. This payment is to be made preferably by online transfer and it is the responsibility of the tenants or their Advocates to forward the bank details to the Advocates for the Nagwekars. This has to be done no later than by 11th September 2023 (also extendable). The reason we insist on online payment is to avoid any further controversy such as dishonoured cheques or delayed delivery of pay orders or demand drafts. We understand that there may be an occasion when the online transfer might be delayed. Sometimes there may be a technical issue with the online banking system. We make allowance for this and afford five bank working days' grace in case a payment is delayed for any reason whatsoever. If, however, there is no payment after that grace period, this will constitute an 'Event of Default' or EoD. There are subsequent directions in regard to the consequences of the EoD and on which we have heard submissions from both Mr Kamat for the Nagwekars and Mr Saraogi for the Petitioners.

27. To complete this portion of it, the persons whose names appear at Serial Nos. 7, 11, 14, 15 and 16 of the chart at Annexure 'A' are required to submit documents establishing their heirship and entitlement to premises. As an illustration, at Serial No. 7 is the entry of Respondent No. 11. The old name in the Petition was Ashabai Rajaram Kir. The new name in the Petition is Surekha Ravindra Kir. But the heir was one Lata Rajaram Kir. As we noted, therefore, there will need to be the necessary indemnities, documents of succession or heirship and, where applicable, a No Objection Certificate ("NOC") from other heirs. This will be of some consequence even to those whose names are shown in blue highlight at Serial Nos. 4, 6, 10 and 12 of the chart at Annexure 'A'. For example, at Serial No. 4, and that is a reference to

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Petitioner No. 4, the name in the Petition is Raghunath Ganpat Kir. The claim is by Sunil Raghunath Kir but Sunil is only one of five heirs of Raghunath. Thus, Sunil will need to provide an indemnity, NOC of the other heirs or their consent and other necessary documents.

28. We clarify that we do not insist that the claim must be in the name of one particular person. It is entirely possible and permissible for multiple heirs to claim equal undivided rights between themselves in which case this will be communicated to the owner's Advocates with the appropriate documentation and the same amount of Rs 30,000/- per month divided equally between the heirs will be made available to them. They may also agree to take a Permanent Alternate Accommodation Agreement ("PAAA") jointly in their names and permanent alternative accommodation can be made available when ready to all heirs together.

29. Operationally, this raises one other problem because we do not think it is possible to fix a time frame within which heirship documents can be obtained from a court of law. These things take time, sometimes months. But it should not be that these tenants, after several months, find themselves without a remedy or a recourse and therefore we clarify that even for the persons from whom additional documents are required, those in blue and orange highlights, even pending the submission of those documents, the developer will deposit the amount of transit rent at Rs 30,000/- per month plus shifting charges with the Prothonotary and Senior Master of this Court. When making that deposit, it must be clearly stated against which particular original tenant such a deposit is being made. Once the heirship documents, indemnities, consents or NOCs are obtained an application may be made directly to the Prothonotary and Senior Master without requiring an IA provided the

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praecipe has endorsed on it a no-objection of the Nagwekars' Advocates for the withdrawal of the amount deposited.

30. In Annexure 'A' of the list, those whose names are in green, Respondents Nos. 5, 6, 7, 27, 36 and 39 are admittedly eligible and are entitled to receive transit rent on parity. The same procedure will follow for these persons who have passed away as for those whose names are shown in orange, i.e., the requirement of a deposit with the Prothonotary and Senior Master of this Court.

31. As regards the persons in green and these are shown at Serial Nos. 19 to 27 of Annexure 'A', they are all off-site. They have not received transit rent although they are entitled to it. The owners may not be aware of the dates on which these nine persons actually vacated the transit building. There may well be a claim for a prior period. We, therefore, temporarily direct that these nine persons will be paid at this rate, i.e., shifting charges plus Rs 30,000/- per month for 12 months along with the others from the date when all have vacated the building. If there is any prior claim these nine persons are at liberty to approach the Nagwekars providing sufficient proof of the date on which they vacated and on the date on which they took up residence elsewhere. If there is a dispute about that past amount, contentions are left open for appropriate proceedings. We do not see how we can make any further order in that regard in the present proceedings.

32. The 12 month period is only an initial period. Mr Kamat's projection and we clarify that this is not an undertaking to the Court, is that the rehab building should be completed and ready for occupation in roughly 18 months. As we said, it is not possible to hold anybody to this date rigidly. But it does mean that for the purposes of transit rent, an additional six months' transit rent will

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have to be paid to these persons who have either opted for it or who are entitled to it and this payment must be made 15 days before the 12 month period expires. This is liable to be renewed subject to further directions as to interest, etc. until possession is delivered of the nature described above to the tenants/occupants.

33. It is tentatively proposed that the Nagwekars will be able to apply for an OC within 18 months of issuance of a revised Commencement Certificate ("CC"). That date is uncertain, but we will accept it and that CC application is to be made if not already done by 11th September 2023. To this end and as a direction to the MCGM, we direct that the MCGM will not insist upon the NOC of the previous architect or the previous developer since that entity is before us but has been utterly non-responsive for the past four years. We clarify that Respondent Nos. 41 to 43, or any entity that they nominate, their architects and their project management consultants will be entitled to make applications to the MCGM and the MCGM will permit these applications and will permit any rectifications to the online records and registers as required to facilitate the project going forward.

34. We began this order by pointing out that ultimately the public authority, i.e., the MCGM must supervise this. We have asked Mr Patil to give us the designation of an officer who will function as a nodal officer to see the project through. He tells us that on behalf of the Assistant Commissioner of the G/South Ward, the Assistant Engineer (B&F) will be the Nodal Officer. He is to be kept informed and copied on all applications the Nagwekars make to any Department of the MCGM. He is to oversee the systematic and orderly rehabilitation of the tenants/occupants. He must maintain a complete record from now on of the entire project including all details of the tenants/occupants where they presently are, their

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identities, identification and so on. The nodal officer will also function as an initial grievance redressal authority in matters pertaining to a non-receipt of transit rent or similar issues in the interregnum.

35. This takes us to what is probably the most difficult aspect of the matter namely directions for the consequences on the occurrence of an EoD. If transit rent is not paid within the cure period that is one EoD. But failure to deliver possession of the rehab units must necessarily constitute an EoD but this is an altogether more difficult aspect. There may be factors beyond the control of the Nagwekars that delay the final delivery of the rehab premises.

36. In this we are mindful of a rather peculiar situation in law. The Nagwekars are not third-party developers; they are owners of the land and as such, we see no vision by which a landowner can be deprived of ownership rights because there is a default. If developer holding an NOC under a Maharashtra Housing and Area Development Authority ("MHADA") redevelopment or a Letter of Intent ("LOI") under a Slum Rehabilitation Authority ("SRA") re-development, matters might have been much easier. The NOC or the LOI could be cancelled or revoked at any time for default. But ownership rights in property cannot be dealt with in this fashion. Mr Kamat understands and appreciates the conflicting equities. On the one hand there is the concern of the Court to ensure that its order is not meaningless. There has to be some real bite to it. It must be enforceable. That means there must be some real specified consequences to a default. But these cannot go to the extremity of ejecting an owner from ownership property. He therefore suggests and we think this is reasonable in the circumstances of the case that if there is a payment in default, the developers will pay not only the defaulted amount but interest at the rate of 12%

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per annum on the enhanced amount. We accept this as an undertaking to the Court. The second submission is that if there is a delay in delivery of possession of the rehab units for reasons that are attributable to the Nagwekars, then a flat compensatory fee of Rs 50,000/- will be paid and be payable to each of the occupants or tenants. To clarify such a default may be a failure to pay in a timely manner any charges of the MCGM for providing a municipal water connection. It certainly extends to a failure to pay up all property taxes that may be due in respect of the property. But if there are additional compliances demanded or there are additional delays in processing applications, these may not be within the control of the owners. Therefore, this provision for additional amounts whether one terms them liquidated damages or an additional compensation is only applicable where there is clearly a default on the part of the owner in the development process.

37. The Nagwekars have agreed that the tenants will get reaccommodation on an ownership basis of 315 sq ft. This is noted.

38. Mr Saraogi submits, we believe correctly, that this amount of Rs 30,000/- per month cannot be fixed for all time whether with or without interest. If this project is delayed beyond 24 months, then the base amount must be increased because it will be impossible for tenants who are outside to find alternate accommodation at the old rate of Rs 30,000/- per month. The submission is correctly placed. We will not fix a figure but we will include an increase of 10% after 24 months to the figure of Rs 30,000/- per month. That is to say that if the OC is not applied for within 18 to 24 months of the date of re- issuance of the CC, the amount of transit rent will go up by 10%.

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39. We believe these provisions now completely protect the interests of the tenants or occupants in the transit building or buildings. They are now to be vacated. The transit building is clearly not fit for human habitation. We had told Mr Saraogi that we would not be unreasonable in the time that we afford them to vacate since they have been here under an ad-interim order for a considerable period. We had earlier indicated 26th September 2023 but we extend that date to 30th September 2023. All possession must be delivered vacant to the Nagwekars or their representatives by 5.00 pm on that date. Only for compliance with this aspect of the matter we list the matter before us first on board on 3rd October 2023.

40. We request the Court Receiver to depute staff to remain present on site on 30th September 2023. The police authorities at Dadar Police Station will provide the necessary support. They will act upon production of an authenticated copy of this order. If any person refuses to willingly vacate, the Court Receiver is authorised by this order to forcibly remove that person and his or her belongings from the site by 30th September 2023. No application is to be made by any person in respect of this transit building before any Civil Court but must be made by means of an IA before this Court in this matter.

41. What remains is the execution of a PAAA. Now here we must bear in mind that Mr Datar's clients may have other grievances. That does not mean that we can permit them to continue in the building while those rights are being agitated at some distant point of time. The PAAAs with all tenants being exactly on parity are to be executed on or before 30th September 2023. Those who wish to do so may do so on a without prejudice basis and may agitate any other rights in any other proceeding that they may have already adopted. But the execution of a PAAA is otherwise undoubtedly necessary, most of all to

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protect the interests of the tenants/occupants themselves. We clarify that the execution of these PAAAs cannot be used by the Nagwekars as an argument in equity against those who have executed them on a without prejudice basis.

42. It goes without saying that if any person refuses to execute the necessary PAAA, that person will be required to vacate the premises but all entitlements whether to shifting charges or transit rent will not be made payable but will be deposited in Court instead.

43. All amounts deposited will be invested in accordance with the usual practices of the registry, initially for a period of six months.

44. At this stage, we are presented with the scenario of an OC actually being received. If that does happen, then those who are out on transit accommodation or out on transit rent or in transit accommodation must immediately and without delay take possession of the permanent alternate accommodation and, in any case, within 72 hours of possession with the OC being offered. We make it clear that this is however subject to the rehab permanent alternative accommodation building being complete in all respects with running water, electricity supply, lifts where necessary and completion of all civil works.

45. If by the time the OC is received, any of the claimants have not been able to establish heirship, then possession of the rehab tenement is not to be given to any individual but will be given to the Court Receiver and will be subject to further orders in the Writ Petition or in any further proceeding once those heirship documents are made available.

46. Liberty to the parties to apply.

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47. List the matter on 3rd October 2023, first on board, for directions."

5. The reason for this replication will become obvious shortly.

6. The Court Receiver points out in a fresh Report tendered today and which is taken on record that none of the persons who were shown the alternative accommodations opted for it. Therefore, there was no question of conducting a lottery. Every one of those persons opted instead to take transit rent.

7. The Receiver points out that the entire building has been evacuated or got vacated. The Nagwekars have possession of the entire structure. This position is undisputed.

8. On behalf of the owners/the Nagwekars we are told that four persons have not executed Permanent Alternate Accommodation Agreements ("PAAAs"). It is only for that reason that they have not been paid transit rent. It is stated on behalf of the Nagwekars, and we accept this statement as an undertaking to the Court, that upon execution of the PAAAs, these four persons will receive their transit rent from the date that their premises were evacuated or vacated in terms of the PAAAs or, as the case may be.

9. Now as to the reason for this detailing of previous orders. Mr Saraogi tells us that very shortly after the previous order, and indeed in Court itself, the four Petitioners demanded that Mr Saraogi return the papers and they discharged Mr Saraogi and his Advocate on record. That is most regrettable because we have, as the

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preceding orders show, done everything possible to protect the interests not only of the four Petitioners but all other tenants who were similarly situated. None have been prejudiced.

10. The matter is listed today on its adjourned date. That is to say, it is not listed today on circulation sought by any of the parties. Necessarily, therefore, every one of the four Petitioners is aware or must be reasonably be deemed to be aware of today's listing. We have also taken the precaution of calling out in open Court the names of each of the four Petitioners. None are present. We will not indulge these Petitioners by giving a fresh notice to them. As we have noted, the Petition was substantially disposed of by our order of 30th August 2023. We have noted the further undertaking in respect of the four persons who have not signed the PAAAs.

11. No further orders are thus required in the present matter.

12. As to the cost of the Court Receiver, the matter was not formally lodged. We reasonably estimate the costs of the Court Receiver to be around Rs. 75,000/-. The amount will be paid to the Court Receiver by the Nagwekars within one week from today. The Court Receiver is not required to pass accounts.

13. The Receiver is entitled to seek separate directions on the administrative side from the Court Receiver Committee in the event that there is any question of adjustment or appropriation of the amounts.

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14. The additional compliance Affidavit is to be filed in the Registry.

15. The Court Receiver thus formally stands discharged.

16. It goes without saying that the Nagwekars and the Municipal Authorities have liberty to apply to the Court in case of any difficulty.

17. It is noted that on the last occasion, Mr Patki has appeared for the State Government and not for the Municipal Corporation of Greater Mumbai ("MCGM").

 (Kamal Khata, J)                                           (G. S. Patel, J)





                               3rd October 2023