Bombay High Court
Gopal Dinkar Vanave vs Apex Grievance Redressal Committee ... on 19 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-OS:1181
Sonali Mane WP(L)-40285-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 40285 OF 2022
1. Mr. Gopal Dinkar Vanave }
2. Mr. Shekhar Gopal Vanave }
Annexure - II Sr. No.2, }
Both residing at }
Rehab Building Wing-D, Room No.1508, }
Jankalyan Co-op. Housing Society Ltd. }
Village Kurla, Taluka Kurla, }
Match Factory Lane, Kurla (West) }.. Petitioners
Versus
1. Apex Grievance Redressal Committee }
Slum Rehabilitation Authority }
having its office at Administrative Building }
Anant Kanekar Marg, 'D' Block, }
Bandra (East), Mumbai-400 051 }
2. Tehsildar-2 (Special Cell) }
Slum Rehabilitation Authority }
having its office at Administrative Building }
Anant Kanekar Marg, 'D' Block, }
Bandra (East), Mumbai-400 051 }
MANE
SONALI
DILIP 1/19
Digitally signed by
MANE SONALI DILIP
Date: 2024.01.22
15:18:40 +0530
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Sonali Mane WP(L)-40285-2022.doc
3. Assistant Registrar Co-operative Society }
(Easter/Western Suburb), }
Slum Rehabilitation Authority }
having its office at Administrative Building }
Anant Kanekar Marg, 'D' Block, }
Bandra (East), Mumbai-400 051. }
4. Sangita Balu Zimal }
Annexure - II Sr. No.44, }
Jankalyan SRA Co-op. Housing Society Ltd. }
Village Kurla, Taluka Kurla, }
Match Factory Lane, Kurla (West) }
Mumbai-400 070. }
5. Jankalyan SRA Co-op. Housing Society Ltd. }
Village Kurla, Taluka Kurla, }
Match Factory Lane, Kurla (West) }
Sion (East), Mumbai-400 022. }
6. Accord Builders }
Omkar House, Off Eastern Express Highway, }
Opp. Sion-Chunabhatti Signal, }
Mumbai-400 070. } .. Respondents
...
Mr. Hamid Ahmed a/w Mr. Abdul Rehman i/b MZ & Associates
for Petitioners.
Mr. Anoop Patil for Respondent No.1-AGRC.
Mr. Jagdish G Aradwad (Reddy), for Respondent Nos. 2 & 3 -
SRA.
Mr. Chintamani K. Bhangoji, for Respondent No.4.
2/19
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Sonali Mane WP(L)-40285-2022.doc
Mr. Shakeeb Shaikh a/w Mr. Vishal Makwana i/b Diamondwala
& Co., Respondent No.6.
...
CORAM : SANDEEP V. MARNE J.
RESERVED ON : 12 JANUARY, 2024.
PRONOUNCED ON : 19 JANUARY, 2024.
JUDGMENT:
-
1. Rule. Rule is made returnable forthwith. With the
consent of the learned counsel appearing for parties,
Petition is taken for final disposal.
2. The Writ Petition is filed by Petitioners aggrieved by
the Order dated 19 December 2022 passed by Apex
Grievance Redressal Committee (AGRC) upholding the
Order dated 13 October 2022 passed by Tahsildar-2 (Special
Cell) Slum Redevelopment Authority (Tehsildar). Also
challenged is the Order dated 18 November 2022 passed by
Assistant Registrar, Co-operative Societies (SRA), by which
it is held allotment of tenement No. D-1508 made in favor of
Respondent No. 4-Sangita Balu Zimal is valid and the direct
allotment made by the developer in respect of the same
Sonali Mane WP(L)-40285-2022.doc
tenement to Petitioners is invalid. On the complaint of
Respondent No.4, Tehsildar passed an Order dated 13
October 2022 holding Petitioners to be an unauthorized
occupant in respect of tenement No. D-1508 and has
directed him to hand over the possession thereof to the
estate officer of SRA. The Petitioners filed an Appeal before
the AGRC, which has been rejected by Order dated 19
December 2022. Petitioners have accordingly filed the
present Petition challenging the AGRC's Order dated 19
December 2022, Tehsildar's Order dated 13 October 2022
and Assistant Registrar Order's dated 18 November 2022.
3. Briefly stated, facts of the case are that SRA undertook
the exercise of rehabilitation of Slum located on Plot bearing
CTS No. 106, 106/1 to 5, 107, 107/1 to 9, 108, 109 (pt),
111(pt), 111/1 to 70, 77 80 to 132 and 112 (pt) of village
Kurla, Mumbai. Respondent No. 6 came to be appointed as
the Developer and a Letter of Intent (LoI) came to be issued
on 9 September 2009 for implementation of the Slum
Rehabilitation Scheme. It is Petitioner's case that in the
original Annexure-II, his name was included in the list of
eligible slum dwellers. It appears that in that Annexure - II,
Sonali Mane WP(L)-40285-2022.doc
name of Respondent No.4 was also included but she was
held ineligible with a remark 'find production of proof prior
1.1.95'. It appears that all slum structures, including that of
Petitioner and Respondent No. 4, have been demolished and
rehabilitation building has been constructed and as many as
438 eligible slum dwellers have already been accommodated
in the rehab building.
4. It appears that Respondent No.6-Developer had four
vacant rehab tenements for being allotted to eligible slum
dwellers. The Order passed by the Assistant Registrar on 18
November 2022 records that as against four available rehab
tenements, 21 eligible slum dwellers were waiting for
allotment.
5. In the above background, it appears that Petitioner
was left out in the process of allotment of rehab tenement.
Respondent No.6-developer sent a proposal dated 22 July
2021 to the Assistant Registrar Co-operative Societies
(SRA), stating that one rehab tenement in D-wing of the
building was available for allotment and Petitioners were
eligible for allotment of the same. The Developer therefore
requested the Assistant Registrar to depute an Officer for
Sonali Mane WP(L)-40285-2022.doc
allotment of the said tenement by lottery system. It appears
that no decision was taken on the letter dated 22 July 2021.
During pendency of that proposal, it appears that the
Developer sent letter dated 1 March 2022, in reply to
Assistant Registrar's letter, stating that four rehab
tenements were reserved for four eligible slum dwellers viz.
Kisan Sonba Kondhalkar, Sangita Balu Zimal (Respondent
No. 4), Pandurang Gulabrao Atkari and Chandrakant Sopan
More/ Bhiva Ananda Varkhade. The Developer further stated
that the said four slum dwellers were included in the
eligibility list but their cases remained pending for re-
verification and therefore their names were not included in
the list of allotment. The developer further submitted that
after re-verification of eligibility, the four reserved
tenements would be allotted to the aforementioned four
slum dwellers. Despite assurance given in letter dated 1
March 2022 and in the absence of any decision being taken
by the Assistant Registrar on previous proposal dated 21
July 2021, Respondent No.6-Developer, on his own, allotted
tenement No. D-1508 to Petitioner and an intimation to that
effect was given to the Assistant Registrar vide letter dated
24 March 2022.
Sonali Mane WP(L)-40285-2022.doc
6. On 28 March 2022, the Assistant Registrar issued
Form No. 1 stating that two slum dwellers viz Manoranjan
Dattaram Khandekar and Rakhi Vikas Shinde were due for
conduct of lottery in respect of two out of four reserved
tenements and that issue of verification of eligibility of
Respondent No.4 and Chandrakant Sopan More was
pending and their lottery would be conducted after receipt
decision on their eligibility. In Form No. 1, the Assistant
Registrar clearly stated that unilateral allotment of
tenement No. D-1508 in the name of Petitioners by the
Developer was invalid and the tenement would be allotted
by lottery system. It appears that a decision with regard to
the eligibility of Respondent No.4 was received by way of
supplementary Annexure-II vide letter dated 25 May 2022
and accordingly, the Assistant Registrar conducted a lottery
on 24 June 2022 and allotted tenement No. D-1508 in the
name of Respondent No.4 vide allotment letter dated 24
June 2022. Respondent No. 4 noticed that Tenement D-1508
was allotted to Petitioners and therefore made a complaint
before Tehsildar, (SRA). Tahsildar issued notice to the
Petitioners and after hearing both sides, passed an Order
dated 13 October 2022 directing Petitioners to vacate
Sonali Mane WP(L)-40285-2022.doc
tenement No. D-1508. In the meantime, the Assistant
Registrar also conducted hearing on Petitioners' application
and rendered a decision on 18 November 2022 holding
allotment of tenement No. D-1508 in favor of Respondent
No. 4 to be valid and consequently allotment made by the
developer in Petitioner's name as invalid. Petitioners
preferred Appeal before AGRC challenging Tehsildar's
decision of eviction. The AGRC however rejected the Appeal
by Order dated 19 December 2022, which is subject matter
of challenge in the present Petition.
7. I have heard Mr. Hamid Ahmed, the learned counsel
appearing for the Petitioners. He would submit that the
allotment of tenement No. D-1508 made in the name of
Petitioners is valid. That the proposal for allotment of the
tenement to Petitioners was made at a prior point of time by
the developer on 22 July 2021. That as on 22 July 2021,
Respondent No. 4 was not even declared eligible. That the
Assistant Registrar sat over the proposal dated 22 July 2021
and did not take any decision thereon. Therefore, the
developer was left with no choice but to allot the tenement
to Petitioners who were awaiting such allotment for several
Sonali Mane WP(L)-40285-2022.doc
years and gave an intimation of such allotment to the
Assistant Registrar by letter dated 24 March 2022. That the
Assistant Registrar cannot be permitted to take benefit of
his own wrong by declaring Petitioners' allotment as invalid.
That there is no dispute about the eligibility of Petitioners to
receive rehab tenement. That since eligibility of Respondent
No.4 is declared subsequent to sending of the proposal in
respect of Petitioners, the allotment made in favor of
Petitioners cannot be declared invalid. That Petitioners have
been residing in the tenement No. D-1508 since March 2022
and it would be arbitrary to direct Petitioners eviction for
the purpose of accommodating the subsequent allotment of
Respondent No. 4. That Respondent No.4 can always be
allotted other rehab tenement in the vicinity and Petitioners'
ouster from tenement No. D-1508 is not at all warranted. He
would therefore pray for setting aside the Orders passed by
the Assistant Registrar, Tehsildar, and AGRC.
8. Mr. Bhangoji, the learned counsel for Respondent No.4
would oppose the Petition and submit that the allotment
unilaterally made by the developer in favor of Petitioners is
void and no rights ensue in favor of Petitioners on the basis
Sonali Mane WP(L)-40285-2022.doc
of such void allotment. He would submit that the developer
has no right to make unilateral allotment, which can only be
made by the Assistant Registrar, SRA. That the allotment in
favor of Respondent No.4 is validly made by the Assistant
Registrar. Inviting my attention to Clause 42 of the LoI, Mr.
Bhangoji would submit that the developer was under
obligation to allot tenements by drawl of lots in the presence
of representative of Assistant Registrar. That the allotment
rehab tenement is to be made strictly in accordance with
seniority list prepared with reference to the date of
demolition of huts. That the hut of Respondent No.4 is
demolished on 9 August 2008 and she has a prior claim of
allotment over Petitioners.
9. Mr. Aradwad (Reddy), the learned counsel appearing
for Respondent Nos. 2 and 3-SRA would also oppose the
Petition and submit that the allotment unilaterally made by
the developer in favor of Petitioners is ab initio void and
cannot be taken cognizance of. He would submit that only
Assistant Registrar is competent to make allotment by drawl
of lots and that no other tenement is available in the rehab
buildings for allotment either to Petitioners or to
Respondent No.4. He would further submit that Petitioners
Sonali Mane WP(L)-40285-2022.doc
can be allotted PAP tenements in the vicinity. Drawing my
attention to the Affidavit filed on 30 October 2023 by
Assistant Registrar, he would submit that 442 PAP
tenements are available in the Eastern Suburb of Mumbai
City and that Petitioners can choose any of the such 442 PAP
tenements for allotment.
10. Mr. Anoop Patil, the learned counsel appearing for
AGRC would also oppose the Petition and support the Order
passed by AGRC. He would draw my attention to the finding
record by the Assistant Registrar that 21 eligible Slum
Dwellers were awaiting allotment as against only four
vacant rehab tenements. That Petitioners cannot score
march over their senior counterparts by seeking a direct
illegal allotment from the developer. That developer has no
authority to make such direct allotment.
11. Mr. Shakeeb Shaikh, the learned counsel appearing for
Respondent No. 6-Developer would however justify the
action of the developer in allotting rehab tenement No. D-
1508 in favor of Petitioners. He would submit that
mentioning of tenement No. D-1508 as reserved for
Respondent No. 4 in the letter dated 1 March 2022 was a
Sonali Mane WP(L)-40285-2022.doc
mistake on the part of Respondent No.6. That the mistake
was corrected by sending a letter dated 24 March 2022 to
the Assistant Registrar mentioning the details of only the
balance three tenements after allotment of tenement No. D-
1508 in the name of Petitioner No.1. That the decision of
eligibility of Respondent No. 4 was received only in the form
supplementary Annexure-II vide letter dated 25 May 2022
by which time, the concerned tenement was already allotted
to Petitioners. This is how Respondent No. 6 justifies the
allotment of tenement No. D-1508 in favor of Petitioners.
12. Rival contentions of the parties now fall for my
consideration.
13. There is no dispute to the position that both Petitioners
and Respondent No. 4 are eligible to receive permanent
alternate accommodation in the form of tenement in rehab
building. Unfortunately, requisite numbers of tenements are
not available for allotment to all eligible slum dwellers in the
rehab building constructed by Respondent No.6. This is the
reason why Petitioners and Respondent No.6 have locked
horns over allotment of tenement No. D-1508.
Sonali Mane WP(L)-40285-2022.doc
14. Conditions in the LoI issued to Respondent No. 6
prescribe that allotment of rehab tenements is to be done by
drawl of lots conducted in the presence of a representative
of Assistant Registrar, SRA. In this regard it would be
apposite to reproduce Para-42 of the LoI issued to the
developer on 9 September 2009 which reads thus:
"42. That the allotment of rehabilitation tenements to the eligible
slum dwellers in the scheme, shall be made by drawing lots in
present of the representative of the Assistant Registrar of Societies
(SRA) and statement of rehab tenements allotted to the eligible
slum families in the rehabilitation building with corresponding
tenements no. in rehab / composite building and Sr. No. In
Annexure - II etc. Duly certified by the concerned society of slum
dwellers and assistant Registrar (SRA) shall be submitted before
requesting for occupation permission of respective rehab
tenements."
15. Thus the Respondent No.6-developer did not have
authority to unilaterally make allotment of any tenement to
any slum dweller. By the time the question of making
allotment to Petitioner came up, as many as 438 rehab
tenements to eligible slum dwellers had taken place and the
developer was thus well versed with the procedure of
allotment. This is the reason why Respondent No.6 sent a
proposal to the Assistant Registrar by letter dated 22 July
2021 requesting for deputation official of SRA for allotment
of one tenement in D-Wing by drawl of lots. In that letter,
Sonali Mane WP(L)-40285-2022.doc
the developer expressed the intention of allotting the said
tenement in the name of Petitioner. The fact that the
developer requested the deputation of an officer of Assistant
Registrar (SRA) for allotment of the tenements through
lottery would imply full knowledge on its part that it did not
have any authority to unilaterally make allotment of said
tenement in D-Wing to Petitioners. No doubt, the Assistant
Registrar did not act on the letter dated 22 July 2021. The
Assistant Registrar ought to have informed Respondent No.
6 that allotment in favor of Petitioner No.1 alone was not
warranted in the light of several other slum dwellers
awaiting allotment of tenements. As a matter of fact, letter
dated 24 March 2022 sent by the developer to the Assistant
Registrar indicates that as many as 17 slum dwellers were
awaiting allotment of rehab tenements, whose list was
available in order of dates of demolition of their huts. On the
contrary, the Order of the Assistant Registrar dated 18
November 2022 would indicate that 21 eligible Slum
Dwellers are awaiting allotment of rehab tenements. In such
circumstances the developer could not have selectively sent
a proposal for allotment of tenement in D-Wing in the name
of Petitioners alone.
Sonali Mane WP(L)-40285-2022.doc
16. Be that as it may. It is common ground that the
Assistant Registrar did not act on developer's proposal
dated 22 July 2021. Neither any officer was appointed for
conduct of lottery, nor such lottery was ever conducted. It
appears that the developer unilaterally put Petitioners in
possession of tenement No. D-1508. The exact date on which
possession was granted by the developer to Petitioners is
not known as the letter dated 24 March 2022 states that
allotment has been made. The letter dated 24 March 2022
was sent to the Assistant Registrar by the developer merely
to inform that the allotment was already made. This shows
that the allotment was made and possession was handed
over prior to 24 March 2022.
17. In my view, such action on the part of Respondent
No.6-developer is totally illegal and ab initio void. The
Assistant Registrar has rightly treated such allotment to be
invalid. It has no existence in the eyes of the law.
18. Another glaring and arbitrary action on the part of the
developer is noticed in the light of the developer addressing
letter dated 1 March 2022 representing to the Assistant
Registrar about the reservation of four tenements for four
Sonali Mane WP(L)-40285-2022.doc
slum dwellers including Respondent No.4 and in
clandestinely allotting one of the four tenements to
Petitioner on 24 March 2022. If one of the four tenements
was reserved for Respondent No.4 as undertaken in the
letter dated 1 March 2022, it is unfathomable as to how
Respondent No. 6 could have allotted tenement No. D-1508
to Petitioners on 24 March 2022. Respondent No. 6 has
attempted to wriggle out of consequences arising out of its
arbitrary action by contending in the Affidavit in reply as
under:
"However, inadvertently, this Respondent vide its Letter
dated 2 March 2022 addressed to Assistant Registrar SRA,
mentioned that Tenement D-1508 is reserved for the
allotment to the Respondent No.4."
Here it is clarified that the letter dated 1 March 2022 is the
same as is referred to in para 12 of the Affidavit in reply of
Respondent No. 6 as the letter was received by Assistant
Registrar on 2 March 2022. Having committed illegality in
unilaterally allotting tenement No. D-1508 to Petitioners
contrary to the assurance given in the letter dated 1 / 2
March 2022 to the Assistant Registrar about reservation of
the same for Respondent No.4, the Developer is now
Sonali Mane WP(L)-40285-2022.doc
attempting to contend that representation of reservation of
tenement for Respondent No. 4 was a mistake on its part.
19. After considering overall conspectus of the case, I am
of the view that unilateral allotment of tenement No. D-1508
by Respondent No. 6-developer in the name of Petitioners is
invalid. No error therefore can be traced in the Orders
passed by the Assistant Registrar, Tehsildar and AGRC.
Petitioners must vacate the tenement as the same has been
validly allotted in the name of Respondent No.4 by the
Assistant Registrar-SRA by conducting a lottery on 24 June
2022.
20. I am aware of the fact that Petitioners will have to
suffer on account of mistakes and illegalities committed on
the part of Respondent No. 6-developer. However mere
allotment and occupation of tenement No. D-1508 by
Petitioners for sometime cannot be a ground to legitimate
unauthorized allotment. It must be borne in mind that
Respondent No. 4 is made to suffer for the last one and half
years as she is unable to take possession of the tenement
allotted to her. Upon vacation of tenement No. D-1508 by
Sonali Mane WP(L)-40285-2022.doc
Petitioners, they need to be allotted another PAP tenement
by SRA in an expeditious manner. For inconvenience and
loss suffered by Petitioners on account of vacation of
tenement No. D-1508, Respondent No.6-developer is
required to be saddled with exemplary costs for
unauthorized allotment made by it to Petitioners.
21. I accordingly proceed to pass the following Order:
ORDER
I. The impugned Orders passed by the Assistant
Registrar, Tehsildar and AGRC are upheld.
II. Petitioners shall vacate tenement No. D-1508 and hand
over its possession to the Estate Officer of SRA within
four weeks from today.
III. Petitioners shall forthwith choose one PAP tenement
made available by SRA for allotment and upon such
choice being exercised through a written application,
SRA shall make allotment of such PAP tenement to
Petitioners within two weeks of receipt of such written
application.
Sonali Mane WP(L)-40285-2022.doc
IV. Respondent No. 6 shall pay the costs of Rs. 1,00,000 to
Petitioners within four weeks from today.
22. With the above directions, Writ Petition is dismissed.
Rule is discharged. There shall be no Orders as to
Costs.
[SANDEEP V. MARNE J.]
