Abbas Hussain vs The Slum Rehabilitation ...
2023 Latest Caselaw 10383 Bom

                                                           927-OSIAL-5005-2023 IN WP-3617-2021.DOC




                                                                                                     Arun



                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION
                             INTERIM APPLICATION (L) NO. 5005 OF 2023
                                                            IN
                                       WRIT PETITION NO. 3617 OF 2021


                    Abbas Hussain & Ors                                                ...Applicants
                         In the matter between
                    Mukhtar Ahmed Idris & Ors                                         ...Petitioners
                         Versus
                    The Slum Rehabilitation Authority & Ors                         ...Respondents


                    Mr Akash Rebello, with Supriya Ghadge & Altaf Khan, i/b Ashif
                         Hussain, for the Petitioners.
                    Mr Anoop Patil, for Respondent No.1-SRA.
                    Mr Abhay Patki, Addl AGP, for State.
                    Mr Anuj Narula, i/b Jhangiani Narula & Asso, for Respondent No.3-
                         developer, Online present.


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

                                                  DATED:     9th October 2023
ARUN
                    PC:-
RAMCHANDRA
SANKPAL


Digitally signed
by ARUN
RAMCHANDRA
SANKPAL

1. On 28th June 2023 a Division Bench of which one of us was a Date: 2023.10.10 10:14:00 +0530 member (GS Patel, J) passed the following order.

"1. The prayer is for a disbursement of an amount of Rs. 1.54 crores by the Prothonotary and Senior Master of this court. That amount came to be deposited in court pursuant

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

to an order made by the Division Bench of this court on 6th December 2021 disposing of the Petition. A copy of that order is at pages 105 to 107. The IA does not seek any modification of that order nor further reliefs. There is no question of restoring the Petition to file. It is only a formal application for a direction to the Registry to permit the disbursement of Rs. 1.54 crores.

2. Mr Rebello tenders a list showing the 89 applicants and the amounts that are due to each of them from this Rs. 1.54 crores. The disbursement will have to be made in accordance with this list, a copy of which is taken on record and marked "X" for identification with today's date; but this will necessarily have to be subject to some level of verification by SRA because we have in other matters recently noticed that many persons who are allotted rehab premises have illicitly transferred these premises. We do not want a situation where a disbursement from the court is taken by somebody who is not entitled to it. This is therefore only an exercise to ensure that the action of the court is in accordance with law.

3. We take it that the list tendered by Mr Rebello is in consonance with the order passed by the Registrar on 11th August 2022, a copy of which is at page 189, Exhibit "M" and which has Annexures from page 192 onwards. This will need to be reconciled and verified in any case. If there is a discrepancy between Mr Rebello's list and the list prepared by the Registrar, it is the list of the Registrar that will prevail.

4. SRA will therefore take the list tendered by Mr Rebello and visit the tenements in the rehab buildings to ascertain that these are the persons who are the allottees of the premises, that their names appear on Annexure II and that no other persons are in possession of the premises allotted to the original Annexure II persons.

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

5. Once that is done, the disbursements can proceed to those who are so verified.

6. We expect the SRA to complete the process of a site inspection and of a verification of the list tendered by Mr Rebello within three weeks.

7. List the matter for directions on 18th July 2023. This is without prejudice to any appeals that may have been filed against the Registrar's orders."

2. On 18th July 2023 we noted that Slum Rehabilitation Authority ("SRA") had made a report. Then on 8th August 2023 we passed the following order:

"1. We require the Slum Rehabilitation Authority ("SRA") to complete the exercise that we had attempted to begin on 28th June 2023. There cannot be continued delay. We do not want an assessment only of these 89 Petitioners. The entire SRA rehab building or buildings will have to be inspected by SRA.

2. The reasons are obvious. All those in rehab buildings must be treated equally. There cannot be a differentiation for or against the Petitioners alone. It is, therefore, insufficient for SRA to tell us that it has inspected only the tenements said to be occupied by these 89 Petitioners. It must inspect the entire rehab building, and we are told that there are 174 tenements, if it has not already done so. If already done, it need not be repeated. The other reason is the information that Mr Narula for the developer seeks to put on affidavit, which is that apart from these Petitioners, there are at least 20 other cases of tenants who have illicitly sold or transferred the rehab premises and another 84 tenants who have illicitly given these on rent or licence basis.

3. We need a detailed tabulated statement of the SRA

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

following a physical inspection showing who is in possession. This is to done be in terms of paragraph 4 of our 28th June 2023 order which reads thus:

"4. SRA will therefore take the list tendered by Mr Rebello and visit the tenements in the rehab buildings to ascertain that these are the persons who are the allottees of the premises, that their names appear on Annexure II and that no other persons are in possession of the premises allotted to the original Annexure II persons."

4. If any of those persons are Petitioners, that will be separately marked in table. The last column in the table will also include a summary of the information provided by Mr Narula, so that all information is gathered together in one place. After that, we will make the necessary directions including in regard to the withdrawal from the amount deposited in this Court.

5. Mr Patil for the SRA states on instructions that the inspection and the resultant chart will be completed in all respects by 20th August 2023.

6. List the matter on 28th August 2023.

7. Mr Narula's Affidavit is to be filed in the Registry."

3. Mr Patil tells us that a comprehensive report is now made. Mr Narula for the developer has the first report but not the second report. A copy is to be given to him.

4. The issue that now presents itself is of much wider impact. Among the Petitioners, there are four persons who are original

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

allottees but who are not physically in occupation or possession of the rehab tenements. The reasons differ.

5. One case is where, with the 'assistance' of the builder, and we use that word as loosely as possible, two tenements were swapped. There are two cases where the allottees returned to their village but their sons or children seem to have been given out the premises on Leave and License to some third parties. That is illegal. The last instance is one where the allottee is back in the village but some unknown person has executed some document of transfer.

6. The allottees are among the 90+ Petitioners. Mr Rebello's Attorney, Mr Khan, will need to take instructions whether he can continue to represent these four allottees. Their case may stand on a completely different footing. We also do not see how, between the Petitioners, some may claim one set of rights to the exclusion of others, and yet all are represented by the same advocates. It is in Mr Khan's interest to separate those with a common interest.

7. The remaining 90 odd Petitioners now claim, through Mr Rebello, that they should be allowed to withdraw the amount deposited and to distribute it. But the question before us is who is to certify the amount for distribution. The Petitioners cannot self- certify the amount that is to be distributed amongst themselves. The SRA itself is not in a position to certify the amount. This can only be done by the Assistant Registrar of Societies in respect of the Petitioners excluding the four cases we have mentioned above.

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

8. The Assistant Registrar of cooperative societies is also with the SRA. Mr Patil's case is that he will take appropriate instructions in that regard. We need to know whether the Assistant Registrar can in fact certify the amounts that can be withdrawn pro-rata from the amount deposited in Court.

9. This means that the statement from the Assistant Registrar will be of the aggregate entitlement until September 2023 and thereafter a computation of how the various entitled persons are to be given a pro-rata distribution of the amount deposited in Court. Unless we have this on Affidavit, we are not prepared to permit a withdrawal.

10. We believe that is now an opportune moment when some steps need to be taken regarding these illegal transfers of SRA's rehab tenements. We have previously noted that this is the direct result of the policy that has been deprecated by this Court of providing a marketable high-value asset free of cost to encroachers and trespassers on public lands.1 In paragraphs 23 to 26 of the 20th June 2023 order in Moinuddin Pashamiya Shaikh v Slum Rehabilitation Authority,2 after noting the previous authorities, this Division Bench (GS Patel & Neela Gokhale JJ) held:

1 See: (1) Abdul Majid Vakil Ahmad Patvekari & Ors v Slum Rehabilitation Authority & Ors, 2021 SCC OnLine Bom 13719 : (2022) 2 Mah LJ 382; (2) High Court on its own Motion (in the matter of Jilani Building at Bhiwandi) v Bhiwandi Nizampur Municipal Corporation & Ors, 2022 SCC OnLine Bom 386 : 2022:BHC-AS:4075-DB; (3) Sapphire Enterprises & Ors v State of Maharashtra & Ors, Order dated 17th April 2023 in Writ Petition No 1654 of 2021; (4) Moinuddin Pashamiya Shaikh v Slum Rehabilitation Authority, and connected matters, order dated 20th June 2023, 2023:BHC-OS-5471-DB.

 2      Supra fn. 1, item (4).




                                9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

23. And we go further. We take it as firmly settled that the right to shelter is part of the right to life. But there is no fundamental right to trespass. There is no fundamental right to squat. There is no fundamental right under the Constitution to rehabilitation at the very site of trespass or squatting. Both decisions cited commend the need for the statute -- the Slum Act -- to revisit this, and point out that it has no basis at all under the Constitution. Rather, it is against fundamental Constitutional precepts. Equally importantly, while the State may have an obligation to provide shelter, it has no Constitutional obligation to provide a marketable asset to anyone; and most emphatically not to someone whose initial entry on the land is illegal and unlawful. And yet this is precisely what the existing slum rehabilitation policy contemplates and promises. We are forced to ask, what is this if not the distribution of state largesse? One that comes at a very real public cost? Public lands for common public good are rendered unavailable. Every slum dweller is now confident in the assurance that the State will give him not just shelter but a high value marketable peace of real estate entirely free of cost.

24. And there is an inherent injustice built into any such scheme: those who lawfully purchase housing must take loans, pay interest, and carry this burden for decades. But those who simply encroach get tenements at the site of encroachments -- free. In this very High Court, what are we to tell our staff who may be in need of housing? That the optimal solution in Mumbai is for them to go ahead and encroach or commit trespass, confident in the assurance of being given, sooner or later, 'free in-situ housing'? The most telling response to this injustice, far more than the words in all our judgments and orders, is the expression on the faces of those who are refused housing loans.

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

25. We are putting this as plainly as possible. There is now concrete evidence before us that shows wholesale trafficking and illicit dealing in this free-of-cost asset -- because it is free. The question of whether rehabilitation should be in-situ is more complex. It involves a consideration of eviction, translocation, displacement, provision of underlying infrastructure and transport to places of work and more. It is not our purpose today to venture into those areas of policy beyond the findings returned in the decisions we have cited and our reaffirmation today of those findings.

26. It is this promise of free housing that we are now forced to question.

(Emphasis added)

11. The allotment of free-of-cost ownership rehab housing is supposedly accompanied by a transfer restriction, i.e., no transfers for 10 years. There may be some transmissions such as to heirs that may be permissible but other transfers are not. SRA does not seem to have any mechanism in place at all for controlling these transfers. If it does, it is not working, because otherwise we would not have these cases. Aadhar-based and biometric authentication is one possible solution but we also believe it is now necessary to find a means by which the SRA and the State Government is vested with summary powers to evict any person who is not the original allottee and not an heir of the allottee and is impermissibly in occupation and possession of a free of cost ownership rehab tenement. We say this because it seems to us that there is wholesale racketeering in this city and trafficking in rehab tenements.

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

12. The loss is colossal. In Moinuddin Shaikh itself we had noted the very high number of illicit transfers in slum rehab projects by one developer alone (HDIL). We had noted how attempts were made to get double allotments or separate allotments for husband and wife or within the same family and even how one person was getting allotment in separate projects. Our concern is not of course the developer but that this represents a significant loss to the SRA, to the State Government itself and all law-abiding citizens. If there is such illegal trafficking in rehab tenements then we see no reason why the SRA and the State Government should not have a provision, Draconian though it may be, in support of the primacy of the rule of law to ensure that those premises are resumed by SRA or the State in vacant possession condition. They can possibly be used as PAP houses or for other public purposes. In a city that is chronically starved of adequate affordable housing, it seems to us utterly unbalanced to permit individuals to profiteer at public expense like this. We would request the assistance of the learned Advocate General in this regard. We are clear that we ourselves will not frame a policy nor will we direct the framing of a particular kind of policy. We will however, go the necessary distance to identify the areas that need to be addressed by the State Government. We also believe that it is fully within the remit of our powers under Article 226 of the Constitution of India and indeed it is our duty to enforce and uphold the provisions of the law including the restriction on transfer and make appropriate orders for the removal of persons found to be in unauthorised occupation.

9th October 2023

927-OSIAL-5005-2023 IN WP-3617-2021.DOC

13. Mr Patil will take instructions. A copy of the second report is to be given to Mr Narula by the end of the week. Mr Narula is at liberty to file a separate Affidavit dealing with the second report.

14. List the matter on 26th October 2023.

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





                               9th October 2023