Bombay High Court
Savitri Tiwari And 3 Ors vs Abbas Hussain And Ors on 12 January, 2024
Author: G.S. Patel
Bench: G.S. Patel
2024:BHC-OS:687-DB 916-OSIAL-5005-2023 IN WP-3617-2021.DOC
Ashwini
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
WITH
INTERIM APPLICATION (L) NO. 29839 OF 2023
IN
INTERIM APPLICATION (L) NO. 5005 OF 2023
IN
WRIT PETITION NO. 3617 OF 2021
Savitri Tiwari & Ors ...Applicants/
Ori Petitioners
In the matter between
Abbas Hussain & Ors ...Applicants/
(Orig
Petitioners)
In the matter between
Mukhtar Ahmed Idris & Ors ...Petitioners
Versus
The Slum Rehabilitation Authority & Ors ...Respondents
Page 1 of 15
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Mr Akash Rebello, with Altaf Khan (through VC), Ashif Husain &
Deepika Oswal, for the Petitioner and Applicant in
IAL/5005/2023.
Mr Mohan Chavan, for the Applicant in IAL/29839/2023.
Dr Birendra Saraf, Advocate General, i/b Anoop Patil, for
Respondent No 1-SRA.
Mr Nitesh Acharya, for Respondent No 4.
Mr Anuj Narula, i/b Jhangiani Narula & Associates, for Respondent
No 3-Developer, (appeared online).
Dr Birendra Saraf, Advocate General, with Abhay Patki, Addl
GP, for the Respondent-State.
Ms Sweta Shah, with Gourav Shahane, i/b Abhijit Kulkarni, for the
Respondent-AGRC.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 12th January 2024
PC:-
INTERIM APPLICATION (L) NO. 29839 OF 2023:
1. The Interim Application seeks the deletion of four names per
persons who are not entitled to transit rent. There is no opposition
to the Interim Application. It is made absolute and is disposed of
accordingly with liberty to adopt appropriate proceedings before the
competent authority.
INTERIM APPLICATION (L) NO. 5005 OF 2023:
2. The Interim Application is to be finally numbered before the
next date.
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3. The Interim Application is filed by one of the Petitioners. He
seeks that the amount of Rs 1.54 crores deposited in this Court be
disbursed to the Petitioners as provided in or the order dated 6th
December 2021 made in this Writ Petition and pro-rata as per the
order of 11th August 2022 passed by the Assistant Registrar, Slum
Rehabilitation Authority ("SRA"). The order of 11th August 2022
is the apportionment order.
4. The High Court order of 24th November 2021 is by a
Division Bench of which one of us (GS Patel J) was a member. A
copy is annexed at page 116. Now in this order we noted in
paragraph 10 as follows:
"10. Mr Narula on instructions obtained in Court now
consents to this request for distribution on a without
prejudice basis, saying that this is limited to 62 Petitioners.
He reserves his right, wisely, to canvas his arguments on
merits against others, not these Petitioners. Accordingly,
the Advocate for the Petitioners will furnish to the
Prothonotary and Senior Master a tabulated statement of
the names of 62 Petitioners, their bank account numbers
and the IFSC Codes for their respective bank accounts. The
tabulation will also show the amount that is to be remitted
to each of the Petitioners. The Prothonotary and Senior
Master is requested to start making disbursements in serial
order according to this tabulation at his earliest
convenience. We understand that there may be some
operational restrictions as to the numbers of transfers that
can be effected at the same time. If necessary, the
Prothonotary and Senior Master may issue written
instructions to his bank to directly issue remittances from
the Prothonotary and Senior Master's account to the
Petitioners' accounts."
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5. Then, by an order of 28th June 2023 in this Interim
Application, we said:
"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
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.
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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.
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."
6. Then this was followed by an order of 8th August 2023,
which reads thus:
"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,
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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
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."
7. A lengthier order followed on 9th October 2023, in which we
noted that a report had been made by the SRA. Paragraphs 3 to 10,
and 11 read thus:
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"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 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 88
Petitioners/Applicants. 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 84 odd Petitioners/Applicants 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
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respect of the Petitioners excluding the four cases we have
mentioned above.
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 June
2021 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:
"23. And we go further. We take it as
firmly settled that the right to shelter is
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).
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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
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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.
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
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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."
(Emphasis in the original)
8. We now have the report of the SRA. There is a tabulated
statement. It shows all those who are eligible slum dwellers. This
includes the Petitioners.
9. Mr Narula was instructed to file a fairly hefty Affidavit in the
developer says it had independently carried out a verification.
Nobody authorised that. But the Affidavit says there are 22 slum
dwellers who have illegally transferred flats. Documents of transfer
are shown. It then says in paragraph 7 that 84 slum dwellers have
illegally rented out flats. Another 60 allegedly have additional rooms
and tenements, and seven couples have separate flats claiming
independent entitlements. Various lists are annexed but these are
unhelpfully not correlated to the SRA master list at all. It is
impossible to tell which Petitioner is being referenced.
10. Dr Saraf, learned Advocate General who appears at our
instance, says that the entire exercise of overhauling and
streamlining the SRA records and internal processes is under way. A
separate tender for digitization has been floated. This will now make
available perhaps for the first time a digital easily searchable and
accurate database not only of projects but of entitlements and
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eligible persons. Once this is tallied to biometric authentication,
allegations of this kind, which are typically made, will become a
thing of the past.
11. But we really fail to see the purpose of Mr Narula's Affidavit
until we come to the first line of paragraph 12 at page 260 because it
is here that this developer, perhaps tapping into some long-forgotten
vein of sanctimony, says that "no transit rent is payable to slum
dwellers who have indulged in such malpractices". That phrasing is
inspirational and stirring but that is not its intent. It is a cleverness
meant to occludes the fact that it is the developer who is in arrears
of transit rent in the first place. We fail to see how a developer can
avoid an obligation to pay transit rent by alleging malpractices on the
part of certain slum dwellers when no attempt is made to co-relate
these to the list of Petitioners or to those who are eligible. What
about the Petitioners or slum dwellers who have not allegedly
"indulged in such malpractices"? Who are they? Why would they
not be entitled to arrears of transit rent? The developer's silence on
affidavit on this aspect is more eloquent than any lawyer's phrasing.
12. Dr Saraf assures us that action is being taken against those
who have illegally transferred, let out or otherwise trafficked in
rehab tenements. Even in this regard, Mr Narula's Affidavit is less
than convincing because transfers may be of three types. The first is
of course an illicit transfer within the lock-in or prohibited period.
But if the transfer is after the ten-year lock-in period it is not
prohibited. In any event a transfer to a third party must be
distinguished from transmission by a deceased allottee to that
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allottee's heirs. The Affidavit of the Developer makes no such
distinction.
13. Dr Saraf is correct in saying that the distribution should be
made through SRA only to eligible persons, viz., those persons
whose names appear on Annexure-II as eligible. This, he submits,
and we think correctly, is the only sound basis on which to proceed.
Now if it is found that there is a particular claimant for a rehab flat
who is not the allottee or is otherwise ineligible, no doubt SRA will
take the necessary steps to get that person to establish how he is
entitled to the transit rent and, if he is found to be in illicit
occupation will move against that person even to the extent of
recovering possession of the rehab tenement.
14. Dr Saraf is also correct in pointing out that the transit rent
question is a liability that arises not after the allotment of rehab
tenements but for a period (self-evidently) when eligible persons
were out on transit. There is little to be gained, therefore, from the
developer saying that now that people are in rehab tenements they
have allegedly trafficked in them. This does not absolve the
developer of the liability to pay transit rent for the period for which
it was due.
15. The correct course of action, in our view, therefore would be
to direct that the entire amount of Rs 1.54 crores should be paid over
by the Prothonotary and Senior Master to the SRA. Then, on the
basis of its own records and lists including the Annexure-II and the
apportionment that has been worked out by the Assistant Registrar,
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the SRA will begin to make disbursements to those persons who are
eligible -- and only to those persons who are eligible.
16. We make it clear that we are not inclined to make any order at
all prohibiting the withdrawal or the disbursement to those who are
entitled to it and most emphatically not because the developer has
made certain allegations. Before we will countenance those
allegations, obviously we would require the developer to
demonstrate its bona fides, i e, to make a deposit of the entire
amount of transit rent. It is in this regard that we required the
deposit of Rs 1.54 crores in the first place. It can hardly be suggested
that the SRA is now embarking on an exercise to grant benefits to
those who are not entitled to them. Any such submission has only to
be stated to be rejected. Equally, if the submission by the developer
is that the SRA cannot be trusted to make disbursement to and only
to eligible persons then frankly this is a reason for cancellation of the
Letter of Intent ("LOI") of the developer. No developer can be
heard to say or even suggest that the SRA cannot be trusted to make
proper transit rent disbursements but can only be trusted to issue
Letters of Intent and permissions to a developer.
17. If there is a further order by the Assistant Registrar for an
additional deposit, we expect that the developer will make that
deposit with the SRA. If it fails to do so, the developer can rest
assured that an identical order of deposit will be made by this Court
and our order will be accompanied by a default provision for (a)
recovery as an order of the court and possibly (b) cancellation of the
LoI. The developer will note this.
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18. At this stage, Mr Narula states on instructions the additional
amount ordered by the Assistant Registrar will be deposited within
two months from today. The statement is noted and accepted as an
undertaking to the Court.
19. The Interim Application is disposed of in these terms with
liberty to the parties to apply.
(Kamal Khata, J) (G. S. Patel, J)
12th January 2024
