Bombay High Court
Waman P. Hule Through Poa Vinay W. Hule vs Apex Grievance Redressal Committee on 7 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-OS:7862
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.14017 OF 2024
1. Waman P. Hule
through it's General Power of Attorney
...
Vinay Waman Hule
2. Sandeep P. Mayekar Petitioners
Versus
1.Apex Grievance Redressal Committee
2. Slum Rehabilitation Authority
3. M/s. Mighty Engineers, Developers &
Contractors through its proprietor -Uday
Desai
4. Om Siddhivinayak Sahakari Gruh
Nirman (Prop)
5. Libania Joseph Dias
6. Inder Radheshyam Gupta
7. Chandravati Radheshyam Gupta
8. Anita Anil Surve
9. Mr. Lalit Rajaram Dhawade
10. Smt. Sulochana Vishnu Patil
11. Sadanand Bhikaji Mayekar
12. Chetan Vinayak Gurav
13. Mr. Jerold Carvalho
14. Mrs. Sujata Subhash Patil
15. Mr. Ganpat V. Bendal
16. Mr. Sujit Rajaram Dhawade
17. Mrs. Arkejala P. Joseph
18. Mr. Lakshman Jaiswar
19. Smt. Christaline Falex Dsouza
20. Mrs. Mary Fernandes
21. Mr. John Alex Dsouza
22. Mr. Manual Salvador Lemos
Digitally
signed by
MEGHA
23. Mr. Shekhar Raghunath Mahakal
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
24. Krishna Arjun Borkar
2024.05.10
16:14:01
+0530
Megha 1/17
::: Uploaded on - 10/05/2024 ::: Downloaded on - 24/05/2024 22:16:46 :::
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25. Mr. Jerome Peter Dias
26. Arjan Singh Jhavermal (since decease)
through Dharmdas Arjansingh Malkani
27. Deputy Collector (Encroachment and
Removal) Dharavi Division, Mumbai
28. Asst. Commissioner (G North Ward),
Harishchandra Yeole Marg, Dadar (W),
Mumbai-28.
...Respondents
...
Mr. Sanjeev Deore with Ms Suchita Pawar, Mr. Jithendra Pagare and Mr.
Navin Singh for the Petitioners.
Mr. Mayur Khandeparkar i/b. Mr. Abhijit Patil for Respondent No.3.
Mr. Vishal Hegde with Mr. R.P. Shirole, Mr. Akshay Naik and Ms Pranita
Dhumak for Respondent No.4.
Mr. Abhijit P. Kulkarni with Ms Sweta Shah and Mr. Gaurav Sahane for
Respondent Nos.1 and 2.
Mr. Vishal Thadani, AGP for Respondent No.27-State.
Mr. Sagar Patil for Respondent No.28-MCGM.
CORAM : SANDEEP V. MARNE, J.
DATED : 7 MAY 2024.
Oral Judgment :
1. Rule. Rule made returnable forthwith and with the consent
of the learned counsel appearing for parties, Petition is taken up for
hearing.
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2. By this petition, the Petitioners challenge order dated 12
January 2021 passed by the Chief Executive Officer of Slum
Rehabilitation Authority (CEO/SRA) as well as the order dated 5 April
2024 passed by the Apex Grievance Redressal Committee (AGRC).
3. The petition concerns implementation of Slum
Rehabilitation Scheme (SRS) on Plot No.881, Mahim, TPS No. IV,
Calcutta Wala Chawl, S.K. Bole Marg, near Siddhi Vinayak Temple,
Dadar (W), Prabhadevi, Mumbai. The Petitioners' grievance is that false
and fabricated documents in the form of General Body Resolution (GBR)
dated 4 April 2011 and 24 April 2012 were brought into existence and
were notarised on 31 July 2012, which commenced the process of land
acquisition for the purpose of implementation of the subject SRS.
According to Petitioners the said GBRs are fabricated by erroneously
showing names of bogus persons, who physically do not have any slum
structure on the subject plot. It is Petitioners' case that Respondent No.3-
Developer was shown to have been illegally appointed on the strength of
the said Resolutions dated 4 April 2011 and 24 April 2012. According to
Petitioners since the very appointment of Respondent No.3-Developer as
per the said Resolutions is ab initio void, the subject SRS cannot be
implemented through proposal submitted by Respondent No.3. It is
alleged that Petitioner No.1 has been raising grievances in respect of
erroneous implementation of the subject SRS through Respondent No.3-
Developer by fabricating the resolutions, consent letters, etc. and that
authorities have not paid any heed to the repeated complaints made by
Petitioner No.1.
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4. The further grievance of Petitioners is in respect of the GBR
subsequently adopted on 23 October 2019, in which appointment of
Respondent No.3 as Developer has been confirmed. According to
Petitioners, the said General Body Meeting (GBM) of 23 October 2019
was clandestinely conducted without issuing any notice to the structure
occupiers on the subject plot. According to Petitioners, it is a mandatory
requirement under instructions issued in Form-16 appended to
circular/order dated 12 November 2013 of CEO/SRA to publish notice of
holding GBM in local newspapers in Marathi and Hindi language 7 days
prior to holding of the meeting. Inviting my attention to the response
received to the query raised under the Right to Information Act, 2005,
Petitioners contend that no such notice was issued in newspapers in
respect of alleged GBM held on 23 October 2019. That no police
protection was sought for the said GBM which again is a mandatory
requirement under the instructions issued by CEO/SRA. Petitioners
therefore contend that the GBM of 23 October 2019 itself is illegal and
cannot be acted upon.
5. So far as Resolution adopted by the General Body in the
meeting held on 23 October 2019 is concerned, it is sought to be
contended that several persons, whose names are not included in
Annexure-II were permitted to participate in the meeting and their votes
were counted for the purpose of showing majority support to
implementation of subject SRS through Respondent No.3. With the above
grievances the Petitioners had filed Writ Petition (L) No.28070 of 2020
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before this Court, which came to be withdrawn on 3 November 2020 with
liberty to file a fresh representation to CEO/SRA to challenge legality and
validity of proposal for redevelopment of subject plot. It appears that in
pursuance of the liberty so granted by this Court, a representation was
addressed to CEO/SRA, who proceeded to reject the same by order dated
12 January, 2021. The said decision of CEO/SRA was unsuccessfully
contested by Petitioners before AGRC, which has rejected Petitioners'
application by order dated 5 April 2024. Aggrieved by the decisions of the
CEO/SRA and AGRC, Petitioners have filed the present petition.
6. Mr. Deore, the learned counsel appearing for the Petitioners
has taken me through several documents to demonstrate as to how the
initial GBR of 2012 is fabricated. He would also demonstrate the
illegalities in the GBM held on 23 October 2019. Taking me through the
minutes of GBR dated 23 October 2019, he would submit that four
persons viz. Vrinda Naik, Libiyana Diaz, Sujata Patil and Jerold Carvalho
had no right to participate in the GBM on account of the fact that they
have no semblance of right in respect of any structures located in the plot.
According to Mr. Deore, the said four persons have already been granted
the benefit of rehabilitation in respect of some other project in the year
2003 and were deliberately included in the GBM on 23 October 2019 for
the purpose of artificial inflation of number of voters voting in support of
the proposal. He would further submit that the names of the said four
persons are not included in the certified Annexure-II dated 19 July 2022.
That despite this position, AGRC has recorded a factually erroneous
finding that names of all slum dwellers are included in Annexure-II 19 July
2022. He would therefore submit that the order of the AGRC clearly
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suffers from the vice of perversity. Mr. Deore would further submit that
in addition to the above four persons, there are additionally 8 persons,
who did not have any right to participate in GBM of the Society dated 23
October 2019. He would highlight the cases of four persons viz. Blaze
Dias, Divakar Dudhwadkar, Santosh Radhesham Gupta and Pahad Singh.
Mr. Deore would further submit that names of multiple family members
of the same family are deliberately included in the GBM dated 23 October
2019 for the purpose of showing majority. He would submit that if the
names of said 12 individuals are deleted from the total 32 votes, only 20
votes are required to be considered as have been cast in support of the
proposal, which does not cross the number of 51% considering the total
number of structures in the plot as 57.
7. Mr. Deore would further submit that under Circular 144, it is
the duty of the concerned officers of SRA to minutely scrutinise the
proposal. That the said officials have failed to perform their duties
deliberately and have erroneously accepted and processed the proposal
which on the face of it does not show 51% consent. In order to highlight
undue haste and favouritism shown for processing the proposal of
Respondent No.3-Developer, he would invite my attention to the letter
dated 7 August 2000 of Assistant Registrar, Co-operative Society, SRA
(ARS), by which the ARS directed the Chief Promoter and Respondent
No.3-Developer to remain present before him with relevant documents on
10 August 2020. That the ARS did not conduct any site visit, which is a
mandatory requirement and within three days, he issued NOC dated 13
August 2020.
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8. On above broad objections Mr. Deore would submit that
impugned orders passed by CEO/SRA and AGRC are required to be set
aside and the Society needs to be given an opportunity to adopt proper
Resolutions in a validly conducted meeting so as to implement SRS in
respect of the subject plot in a legal and proper manner.
9. Mr. Hegde, the learned counsel for Respondent No.5 would
support the petition and adopt the submissions canvassed by Mr. Deore.
10. Mr. Khandeparkar, the learned counsel for Respondent
No.3-Developer would oppose the petition. He would point out that the
initial GBRs dated 4 April 2011 and 24 April 2012 were restricted only for
the purpose of land acquisition. That the proposal of Respondent No.3-
Developer for implementation of the subject SRS is based on the GBR
dated 23 October 2019 and that therefore the decision taken by the
Society in the said meeting dated 23 October 2019 would be relevant for
the purpose of determining validity of the implementation of the subject
SRS. Mr. Khandeparkar would explain each of 4+4=8 cases highlighted
by Mr. Deore. He would submit that Annexure-II in respect of the
subject SRA has been finalised, which includes names of 38 eligible
persons, out of whom 25 eligible persons have executed consent letters
/affidavits, which constitutes more than 65% consents.
11. Mr. Khandeparkar would further submit that Petitioner No.1
has been repeatedly indulging in several litigations with a view to ensure
stalling of the subject SRS. That initially when CEO/SRA decided
Petitioner's complaint on 12 January 2021 Respondent No.4-Society had
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actually opposed the complaint filed by Petitioner No.1. That after being
elected on the Managing Committee of the Society, now Petitioner No.1
has lodged multiple attacks on the subject SRS. He would take me
through various proceedings filed by/at the behest of Petitioner No.1 for
stalling the subject SRS. He would pray for dismissal of the petition.
12. I have also heard Mr. Kulkarni, the learned counsel
appearing for Respondent Nos. 1 and 2, Mr. Thadani, the learned counsel
appearing for Respondent No.27 and Mr. Sagar Patil, the learned counsel
appearing for Respondent No.28.
13. It must be observed at the very outset that this is the second
petition which this Court is required to adjudicate in a gap of one week
concerning the same parties and the same scheme. Petitioner No.1 was
also a Petitioner in Writ Petition (St) No.13323 of 2024 and it was filed by
41 slum dwellers challenging the letter of intent issued by SRA for
implementation of the subject SRS. After extensively hearing all the
parties, this Court proceeded to reject the petition by order dated 24 April
2024.
14. Now the present petition is in respect of the allegations by
Petitioners about conduct of GBMs of 2012 and 2019 and decisions taken
therein. They contend that since the same are ab initio void, therefore the
subject SRS deserves to be disbanded with grant of liberty to the Society
to implement the same afresh.
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15. So far as the Petitioners' grievance with regard the GBRs
dated 4 April 2011 and 24 April 2012 is concerned, in my view it is not
necessary to go into the issue of correctness of the said resolutions, in
view of the fact that the proposal for implementation of the subject SRS is
lodged, processed and accepted on the basis of GBR dated 23 October
2019. So what is material for the purpose of deciding the validity of the
subject SRS is GBR dated 23 October 2019.
16. I have gone through the minutes of the GBR adopted on 23
October 2019. The minutes reveal that the meeting was attended by 32
individuals and various resolutions including the one for implementation
of the subject SRS and for appointment of Respondent No.3-Developer
are adopted in the said meeting. According to Mr. Deore, 12 persons
unauthorisedly participated in the said meeting. He has particularly
highlighted the cases of four individuals viz. Vrinda Naik, Libiyana Diaz,
Sujata Patil and Jerold Carvalho, whose names are not reflected in the
certified Annexure-II dated 19 July 2022. Mr. Deore has particularly
attacked the finding of AGRC that upon comparison of certified
Annexure-II with the GBR dated 23 October 2019, names of same slum
dwellers are reflected in both the documents. Here, it appears that Mr.
Deore is correct in view of the fact that names of Vrinda Naik, Sujata Patil
and Jerold Carvalho are not reflected in Annexure-II dated 19 July 2022.
In my view though the finding of the AGRC is not factually correct,
However, it is not necessary to interfere in the impugned decision in view
of the following position explained by Mr. Khandeparkar.
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17. It appears that name of Vrinda Naik, Sujata Patil and Jerold
Carvalho are not included in certified Annexure-II dated 19 July 2022 and
the same are kept undecided due to pendency of writ petition filed by
them in this court. It appears that by order dated 15 September 2022, this
Court has already directed the Competent Authority to decide their
eligibility. It appears that in pursuance of order passed by this Court a
decision is taken by the Competent Authority declaring the said persons
as ineligible. It therefore cannot be stated that the said three persons have
absolutely no connection with the subject SRS. Whether they are
ultimately found eligible or not is something which would not have any
reflection on their participation in GBM dated 23 October 2019. So far as
Libiana Diaz is concerned, there appears to be some dispute of ownership
between her and Mr. Prasad, whose name is reflected in final Annexure -II
at Serial No.8. On account of pendency of title dispute it appears that the
status of Libiana is shown in Annexure-II as 'undecided' therefore it
cannot be contended that Libiana Diaz had no authority to participate in
the GBM dated 23 October 2019.
18. So far as the cases of four other individuals viz. Blaze Dias,
Divakar Dudhwadkar, Santosh Gupta and Pahad Singh are concerned,
Mr. Khandeparkar has explained their position by submitting a Note
before this court and their position is clarified as under:-
"Blaze Dias : According to the petitioner, Blaze Dias
is the original owner, but Sheryl Dias was present at
the time of GBR and executed consent. The Blaze
Dias and Sheryl Dias are brother sisters, and Sheryl
Dias was always occupying the subject structure. Her
name reflects in the final A-II at serial no.24 as an
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eligible slum dweller. Hence she was rightly present in
the GBR and given consent.
Divakar Dudhwadkar : As per the petitioner, the
structure is in the name of Divakar Dudhwadkar and
consent is given by Divakar, but the same is signed by
his wife Suchita Dudhwadkar. The Slum Structure is
always considered jointly owned by Husband and
Wife. At the time of GBR, Divakar Dudhwadkar was
paralyzed, and he expired on 23.06.2021. Suchita
Dudhwadkar is currently shown as a non-eligible slum
dweller at serial no.37 of Annexure-II.
Santosh Radhesham Gupta: As per the petitioner,
Santosh Gupta's father and mother are already
rehabilitated somewhere else. Hence, his consent
should not have been obtained. The name of Santosh
Gupta reflects in the final A-II at serial No.26 since his
structure is a part of the scheme he rightly attended
the GBR through his wife. His structure is currently
non-eligible.
Pahad Singh: As per the petitioner, his mother was the
owner of the structure, and after her demise, the
meeting should have been attended by her husband
and not her son Pahad Singh. Since the structure
exists at the site, Pahad Singh attended the meeting.
Even the final Annexure II consists of the name of
Pahad Singh at serial no.14 as non-eligible slum
dweller."
19. While this Court is not expected to go into the issue of
entitlement of any of the individuals to receive the benefit of subject SRS,
the limited issue that needs to be considered is whether there is any
palpable legality in GBR dated 23 October 2019 which warrants
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interference of this Court in exercise of writ jurisdiction under Article 227
of the Constitution of India.
20. Considering the position as discussed above in respect of 8
individuals highlighted by Mr. Deore, I am unable to hold that the
Resolution adopted by the GBM on 23 October 2019 is so palpably wrong
that interference in the implementation of the subject SRS is warranted in
the facts and circumstances of the present case.
21. By now the process of preparation of certified Annexure-II
has been completed. In fact, Mr. Deore has placed on record certified
Annexure-II dated 19 July 2022 which apparently consists of 37 eligible
persons. It appears that one Mr. Lucy Lobo has also been added in the
certified Annexure-II increasing the total number at 38. Mr.
Khandeparkar has placed on record consent letters of 25 individuals, who
are held to be ineligible in certified Annexure-II dated 19 July 2022. Thus
seeing from any angle I am unable to find any semblance of truth in the
allegation of absence of 51 % consent for implementation of subject SRS
through Respondent No.3-Developer.
22. Mr. Deore has relied upon judgment of this Court in
Moghiben Bhachubhai Gami and Ors. vs. The Apex Grievance Redressal
Committee and Ors., Writ Petition (L) No.16593 of 2023 . In my view the
said decision would have no application to the facts and circumstances of
the present case. In Moghiben (supra), the issue was about termination of
appointment of Developer and directing conduct of meeting of slum
dwellers under the supervision of ARS for appointment of new
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Developer. In the meeting so conducted in pursuance of the order passed
by the CEO/SRA, a new Developer was appointed. The observations
made by this Court in paragraph 27 of the Judgment relate to locus of
some of the Petitioners, who did not have any structures on the subject
plot and who have no right to participate in the voting in the GBM of the
Society. In the present case, it cannot be contended that the 8 persons,
whose cases have discussed above have absolutely no connection with any
structure located on the subject plot. Whether they are eligible or not is
something which is an altogether different aspect. There are total 57
structures on the plot and the scheme will have to be implemented in
respect of the said 57 structures. How many individuals would be
declared eligible, which is something an altogether different aspect. It is
possible that occupiers of all 57 structures may not prove themselves
eligible and the excess structures constructed may have to be transferred
as PAP tenements to SRA. For the purpose of conduct of initial GBM,
persons who have some connection with the structures on the plot can
definitely participate in the voting process and merely because they are
subsequently declared ineligible, the same would not have any effect on
the validity of the decision adopted in the initial GBM.
23. In the present case, upon certification of the final Annexure-
II, as many as 65% eligible slum dwellers have executed consent letters for
implementation of subject SRS through Respondent No.3-Developer. In
my view, therefore the technical objections that are sought to be raised by
Petitioners in respect of GBR dated 23 October 2019 cannot be a valid
reason for opposing implementation of the entire SRS.
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24. Mr. Deore has also relied upon decision of the Division
Bench in Lokhandwala Infrastructure Pvt. Ltd. vs. State of Maharashtra
and Ors., in Writ Petition (Lodging) No.792 of 2014 decided on 20 June
2014. In my view the Judgement is rendered in peculiar facts and
circumstances of the case where there were mass illegalities and this
Court noticed that as many as 534 signatures on the GBR were not
genuine and 247 signatures were made by persons, who were not
members of the Society. This Court itself has made it clear in paragraph
No.11 of the Judgment that the decision has rendered in the peculiar facts
and circumstances of that case. In my view therefore, the judgment in
Lokhandwala (supra) cannot be relied upon for the purpose of drawing an
inference that there are large scale illegalities in implementation of the
SRS involved in the present petition.
25. After having considered the entire conspectus of the case I
am of the view that no serious flaw can be traced in the orders passed by
the CEO/SRA and AGRC.
26. Before parting, it must be observed that multiple attacks are
being launched in respect of the subject SRS particularly at the behest of
Petitioner No.1. It would be necessary to make a quick reference to
proceedings that have been filed by or at the behest of Petitioner No.1
particularly after notices under the provisions of Sections 33 and 38 of
Slum Areas (Improvement And Clearance) Act, 1956, were issued for
clearance of the slum structures. It appears that when Petitioner No. 1
had made representation before the CEO/SRA, Respondent No.4-
Society had opposed the application and supported implementation of
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subject SRS through Respondent No.3-Developer. It appears that after
CEO/SRA rejected the representation by order dated 12 January 2021,
Petitioner No.1 came to be elected on the Managing Committee of the
Society. Therefore, the Society, which all along supported
implementation of the subject SRS through Respondent No.3-Developer,
decided to seek its termination under the provisions of Section 13(2) of
the Slums Act and filed application dated 12 October 2022. That
application came to be rejected by order dated 8 December 2022. As held
in the judgment dated 24 April 2024 filing of proceedings under Section
13(2) of the Slums Act seeking termination of the Developer postulates
valid appointment of the Developer. Despite this, Petitioner No.1 along
with others, initiated proceedings before the AGRC challenging the LOI
issued in favour of Respondent No.3-Developer in January 2023 after
Society's application under Section 13(2) of the Slums Act was rejected.
The AGRC rejected the challenge to LOI by order dated 5 April 2024,
which became subject matter of challenge in Writ Petition (stamp)
No.13323 of 2024. This Court dismissed the Petition by order dated 24
April 2024. The Society represented by Petitioner No.1 continued its
litigation spree against Developer by filing an appeal before the AGRC
challenging the order dated 8 December 2022. The said challenge came
to be repelled by AGRC by order dated 5 April 2024, which is challenged
in a separate petition, which is listed before me today. It appears that
Petitioners are also pursuing proceedings before the ARS who has issued
notice dated 5 April 2024 to the Chief Promoter of the Society as well as
Respondent No.3-Developer for conducting a hearing to go into the
allegations of fabricated GBRs and consents. Mr. Deore would seek to
clarify about notice dated 5 April 2024 by submitting that then ARS had
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conducted a hearing and had closed the proceeding for orders on 27
March 2023. He would submit that the notice dated 5 April 2024 is not
attributable to any complaint filed by the Petitioners. However, upon
being queried, Mr. Deore, after taking instructions from the Petitioners,
who are present before the Court, would submit that approaches were
made to the ARS for the purpose of pursing the proceedings further so as
to get the final order in the matter. Perusal of the notice dated 5 April
2024 would indicate that Petitioners seek to raise the very same grievance
about bogus GBRs, false signatures and lack of majority for appointment
of Developer before ARS. This conduct on the part of the Petitioners in
pursuing remedies before the ARS and also raising same points before the
AGRC and now before this Court is seriously deprecated. This is how the
subject SRS is kept under a continuous litigation process particularly at
the behest of Petitioner No.1.
27. Both the Petitioners are held eligible in the certified
Annexure-II dated 15 July 2022 and they will receive benefit of the subject
SRS in the form of PAA as well as transit rent. The purpose for
implementation of SRS is required to be borne in mind, which is to ensure
that the slum dwellers are rehabilitated by allotting them PAA. Since both
Petitioners will be granted PAA in addition to all other benefits of
implementation of SRS, their anxiety in filing repeated litigations
challenging implementation of the Scheme is incomprehensible. Prayers
made in the present petition would leave no manner of doubt that the real
intention behind instituting series of litigations is possibly to implement
the subject SRS through another Developer of their choice. In my view
rights and entitlement of a slum dweller in a slum rehabilitation scheme is
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extremely limited. So long as grant of PAA and transit rent is guaranteed
to individual slum dweller, it is not for him/her to indulge into litigation
seeking change of Developer. Ignoring this aspect, Petitioners have been
repeatedly indulging in litigations in their quest to get the subject SRS
implemented through another Developer. In my view this tendency of the
Petitioners needs to be curbed, this time by imposing costs for filing
baseless petition. Mr. Deore would however request for making the costs
easy considering the background of Petitioners as slum dwellers. Though
costs are being made easy only on account of request made by Mr. Deore,
it is expected that the Petitioners, particularly Petitioner No. 1, stops his
endless litigation spree in his quest to seek control over the SRS.
28. The Writ Petition is accordingly dismissed. Rule is
discharged.
[SANDEEP V. MARNE, J.]
