Bombay High Court

Yadav Sherbahadur vs The Apex Grievance Redressal Committee on 23 January, 2024

Author: Sandeep V. Marne

Bench: Sandeep V. Marne

2024:BHC-OS:1556

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          ORDINARY ORIGINAL CIVIL JURISDICTION

                                   WRIT PETITION (L) NO. 2244 OF 2024
             Yadav Sherbahadur & Ors.                                       .. Petitioners
                  vs.
             The Apex Grievance Redressal
             Committee & Ors.                                               .. Respondents
                                              ...
             Mr. Nitin Gaware Patil, a/w. Anand P. Sangvikar, for the Petitioners.
             Mr. Vishal Thadani, Addl. GP., for the State, for Respondent No.2.
             Mr. Cherag Balsara, i/b. Zishan Quazi, for Respondent No.3.
                                              ...

                               CORAM: SANDEEP V. MARNE, J.

                               DATE          : 23rd JANUARY, 2024.


             P. C.:

1. By this Petition, Petitioners challenge Order dated 18 th January, 2024 passed by the Apex Grievance Redressal Committee ("AGRC") rejecting Appeal No. 260 of 2023 filed by the Petitioners and confirming the Order dated 10th November, 2023 passed by the Deputy Collector and Competent Authority under the provisions of Sections 33 and 38 of the Maharashtra Slum Areas (improvement, clearance and redevelopment) Act, 1971 ["the Slums Act, 1971"].

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2. I have heard Mr. Gaware, learned counsel appearing for the Petitioners. So far as the Petitioner No.1 is concerned, there are essentially four grievances sought to be aired. Firstly, it is contended that Petitioner No.1 is running a flour mill in the existent structure and that he is entitled to be granted alternate structure conforming to the circular issued by Municipal Corporation of Greater Mumbai ("MCGM") on 27th December, 1976 so as to put the same to use as a flour mill as per planning norms of MCGM. Here, the grievance of Petitioner No.1 is that as of now the developer has not got sanctioned plans for construction of flour mill for being allotted to Petitioner No.1. That, the AGRC has erroneously relied upon the mere readiness expressed by the Developer for handing over area admeasuring 12.32 square meters after necessary amendments in the plans. That very fact that the plans are required to be amended, contains an implied admission that as of now, there is nothing in the sanctioned plan which can be allotted to Petitioner No.1 for use as flour mill.

3. The second grievance of Petitioner No.1 as canvassed by Mr. Gaware is that the location of this current structure of Petitioner No.1 is such that the same is not required to be demolished as of now for the purpose of construction of either sale

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component building or composite building. It is contended that the existing structure of Petitioner No.1 can be retained as the same does not come in the way of construction of either sale component or the composite building. This grievance is common to Petitioner Nos. 2 and 3 as well.

4. The third grievance which again is common in respect of all three Petitioners, is failure on the part of Respondent-Developer to follow stipulations of Circular No.210 which mandates the developer to submit a bar chart, to deposit the advance rent of two years and PDC cheques for remaining period and to implement the programme phase wise.

5. The fourth grievance, which again is common in respect of all three Petitioners, is that the Respondent Developer has not demolished the other structures at the site and he is selectively attempting to demolish three structures of Petitioners when the demolition is not even warranted for execution of project as of now.

6. Mr. Balsara, learned counsel appearing for Respondent No.3-Developer has placed on record Affidavit to deal with various grievances sought to be expressed by the Petitioners.

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7. I have considered the submissions canvassed by learned counsel appearing for parties. So far as Petitioner No.3 is concerned, it is admitted position that he is yet to get his eligibility declared. In paragraph 4 of the Petition there is a clear admission that Petitioner No.3 has been held ineligible in Annexure-II. Therefore, it is incomprehensible as to how Petitioner No.3 could have filed the present Petition.

8. So far as Petitioner No.2 is concerned, in paragraph 6 of the Petition, it is pleaded that he has purchased the structure by way of Notarized Agreement on 13th January, 2020. From paragraph 6 of Affidavit filed by Respondent No.3, it appears that the name of earlier occupier Mr. Haldankar Shankar appears at Sr. No. 265 in Annexure-II in respect of the structure which is apparently purchased by Petitioner No.2. Thus, as of now name of Petitioner No.2 is not reflected in Annexure-II. It is unknown as to what steps taken by Petitioner No.2 to get his name reflected in Annexure-II despite alleged purchase transaction having taken place more than four years ago on 13th January, 2020. In absence of his name being reflected in Annexure-II, I am of the view that even Petitioner No.2 does not have any locus to file present Petition.

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9. Thus, as and when Petitioner Nos.2 and 3 get their eligibility declared by filing appropriate proceedings, they would be in position to agitate their grievances. As of now, the Petition cannot be entertained at the behest of Petitioner Nos. 2 and 3.

10. These leaves the four grievances sought to be canvassed on behalf of Petitioner No.1. So far as the grievance of Petitioner No.1 about non demarcation area for use as flour mill in the sanctioned plan is concerned, Respondent No.3 has stated in paragraph 4 of Affidavit as under:-

"4. I say and submit that, with respect to Petitioner no. 1 i.e. structure at Sr. no. 138 in Annexure II, the Respondent No. 3 has made a provision for flour mill at Shop No.27 admeasuring 12.32 square meters (equivalent to 132.6 square feet) in the approved plan as per the Intimation of Disapproval dated 21st June, 2023 bearing No. H- E/ STGOVT/ 0047/ 20110716/ AP/ COM-1. The Architect certificate dated 22.1.2024 confirming same with enclosed ground floor plan is attached hereto and annexed as Annexure "A".

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11. Architect Certificate at Annexure A to the Affidavit reads thus:

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12. Even Respondent No.2 has stated in paragraph 43 of the Affidavit qua Petitioner No.1 as under: -

"43. Applicants further contended that, Applicant No. 1 is running Flour Mill and Respondent No. 2 Developer has not made provision for Flour Mill under subject S R scheme. However, as per records of Engineering Department/SRA, Respondent No. 2 has made a provision for Commercial Tenement of area admeasuring 12.32 sq meters on Gr Floor which is open to sky. The same will be handed over to Applicant No. 1 after necessary amendment in the plans as per provision of DCOR 20354 for "flour Mill location".

13. Thus, Respondent No.3 Developer has undertaken to provide area admeasuring 12.32 square meters on ground floor to Petitioner No.1 which can be used as flour mill. At Page 9 of the Affidavit, the location of the area which is proposed to be allotted to Respondent No.1 has also been indicated. Though as of now, the plans are yet to be amended for the purpose of converting the said area for being use as a flour mill. I am of the view that the execution project need not be withheld till the plans are amended. As of now Petitioner No.1 is expected to execute Permanent Alternate Accommodation Agreement ("PAAA") with the Developer

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in respect of the alternate premises. If Petitioner No.1 is not ultimately granted possession of the alternate occupation as agreed in the PAAA, the Petitioner No.1 can vent his grievance in that regard in appropriate proceedings. As of now, there is no need to stall the entire project for the purpose of ensuring that the change in use in respect of area admeasuring 12.32 square meters is sanctioned by the MCGM before the structure of Petitioner No.1 is demolished. Interest of Petitioner No.1 after vacation of the existing structure are being sufficiently protected as Petitioner No.1 would be paid transit rent from the date of vacation of the structure. This takes care of the first grievance of Petitioner No.1.

14. So far as the second grievance of non existence of necessity to demolish the structure of Petitioner No.1 is concerned, in my view, this is something which cannot be gone into either by the Deputy Collector or the AGRC while deciding the issue under the provisions of Sections 33 and 38 of the Slums Act. The Deputy Collector exercises limited jurisdiction while deciding the Application under Sections 33 and 38 of the Slums Act. Whether the particular structure is or is not required to be immediately demolished is something which cannot be decided in proceedings initiated under Sections 33 and 38 of Slums Act. In this regard, the reliance of Mr. Balsara, the judgment of this Court in Andrade

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Motors vs. Additional Collector (Eng. /Rem) and Competent Authority and Others1 appears to be apposite, this Court held in paragraphs 10, 12 and 14 of the judgment as under:

"10. As the point was raised, the Authority below in the impugned orders, considered the aspect of applicability of CRZ Regulations to the land. The contention that the structures in question are not urgently required to be demolished, just cannot be permitted to raise on this count under this proceedings initiated under Section 33 of the Act. Once the Scheme is sanctioned based upon the material available at the appropriate time by considering all these aspects, unless that is disturbed or set aside, at this stage, in my view, the action of eviction just cannot be halted on these grounds.

12. The issue of the Petitioner's entitlement pursuance to Circular No. 70 dated 30th December, 2004 and issue of CRZ, affecting the scheme are kept open for appropriate challenge by appropriate proceedings. In my view, the Authority under Section 33 of the Act, has very limited power and jurisdiction. It only requires to consider if the person though directed not shifting or vacating the plot in question and as it affecting the progress of the scheme/project, after hearing such person, to pass order of eviction. This Authority has no jurisdiction and authority to

1(2009) Bom CR 120

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test the validity of SRA Scheme and Letter of Intent already issued on such issues.

14. The Authority under Section 33 of the Act, is not empowered to interfere with the final sanctioned scheme. Therefore, no question to deal with the various challenges raised about the CRZ and the entitlement of extra area/structures, merely because the Petitioner has raised such issues and resisted by the other side, that itself noway enlarge the scope and purpose of Section 33 of the Act and related Rules. Even otherwise, the Petitioner's remedy is elsewhere."

15. In my view, therefore, it is not for Petitioner No.1 to decide as to which structure should be demolished when. If the developer requires clearance of the entire slum for execution of the project, the decision of the developer cannot be tested and it is not for the Courts to decide as to which structure should be demolished when. The developer is liable to pay transit rent immediately upon vacation of the structure and therefore it is for the developer to decide as to which structures are required to be demolished. This Court in exercise of jurisdiction under Article 227 of Constitution of India cannot go into the correctness of timeline to be fixed for demolition of various structures in a project. Therefore the second grievance sought to be raised by Petitioner No.1 is baseless and deserves rejected.

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16. So far as third grievance about non payment of two years' advance rent is concerned, in my view, the issue is premature as of now. Petitioner No.1 has so far as not shown willingness to execute PAAA with the Developer. His structure is yet to be vacated. His entitlement to receive transit rent to begin from the date of vacation of the structure. Notwithstanding the said position, the Developer has stated in paragraph 5 of the Affidavit as under:-

5. I further say and submit that with respect to Petitioner no. 1 i.e. structure at Sr. no. 138 in Annexure II, a notarized agreement for permanent alternate accommodation between the petitioner no. 1 and Respondent no. 3 shall be executed twenty - four hours before the date of vacating the said structure. The Respondent no.3 also agrees to pay a total advance rent of Rs. 4,92,000 (Rupees Four Lac Ninety Two Thousand) for two year (which is calculated at the rate of Rs.20,000/- per month for the 1st year and Rs.21,000/- per month for the 2nd year). The same shall be paid to the Petitioner no. 1 twenty-four hours before the date of vacating his structure at par with the other eligible slum dwellers. The Respondent no. 3 also agrees to pay Rs.

30,000/- (Rupees Thirty Thousand) to Petitioner no. 1 (since eligible) towards brokerage and shifting charge."

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17. Thus, the Respondent No.3-Developer is willing to pay advance rent for two years at the rate of Rs.20,000/- per month for the first year and Rs.21,000/- per month for the second year to Petitioner No.1. The Developer is also willing to pay Rs.30,000/- towards brokerage and shifting charges to Petitioner No.1. Mr. Balsara makes a statement that immediately upon execution of PAAA and on handing over possession of structure to Petitioner No.1, the amount of Rs.4,92,000/- would be paid to Petitioner No.1. This takes care of the third grievance sought to be agitated by Petitioner No.1.

18. So far as the fourth and last grievance raised by the Petitioner No.1 about discriminatory treatment being meeted out with regard to the demolition of structure at the site, I am of the view this Court cannot go into that aspect. It is for the Developer to decide as to which structures require demolition for the purpose of effective execution of the project. So far as Petitioner No.1 is concerned, his entitlement is to receive transit rent begins immediately upon vacation of the structure. Therefore, the fourth grievance sought to be agitated by Petitioner No.1, merits no consideration.

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19. Mr. Gaware, has sought to submit that Petitioner No.1 is entitled to receive transit rent of Rs.50,000/- per month. In my view, there is an alternate remedy of filing proceedings before the Assistant Registrar, Co-operative Society, Slum Rehabilitation Authority, under Circular No. 153 with regard to the quantum of rent. It is for the Petitioner No.1 to file appropriate proceedings in that regard.

20. I, therefore, do not find any case for interference being made out by Petitioner No.1 in the decisions of Deputy Collector and AGRC.

21. Considering the overall conspectus of the matter, I am not inclined to interfere in the impugned decisions of the Deputy Collector and the AGRC. Writ Petition being devoid of merit and is dismissed without order as to costs.

Digitally signed by GANESH GANESH SUBHASH SUBHASH LOKHANDE LOKHANDE Date: