Bombay High Court
Mohanish Mohan Chikhalkar And Anr vs Dignity Realty And 8 Ors on 2 March, 2022
Bench: G.S. Patel, Madhav J. Jamdar
27-OSWPL-2650-2022.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 2650 OF 2022
Mohanish Mohan Chikhalkar & Anr ...Petitioners
Versus
Dignity Realty & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 26363 OF 2021
Mohanish Mohan Chikhalkar & Anr ...Petitioners
Versus
Dignity Realty & Ors ...Respondents
Mr Saurish Shetye, with Priya Singh, i/b ABS Global Legal
Associates, for the Petitioners.
Mr Amit Shastri, AGP, for the Respondent-State.
Mr Mayur Khandeparkar, with Aditya Miskita, i/b Dushyant
Lilani, for Respondent No. 1.
ASHWINI
HULGOJI Mr Swapnil Bangur, i/b Mrityunjay Barai, for Respondent No. 2.
GAJAKOSH Mr Vijay Patil, for SRA.
Mr Vijay Patil, for Respondents Nos. 3,5 & 8-AGRC, in
WPL/2650/2022.
Digitally signed
by ASHWINI
HULGOJI
GAJAKOSH
Date:
Mr Jagdish G Aradwad (Reddy), for Respondents Nos. 3 to 5, in
2022.03.03
19:24:01 +0530
WPL/26363/2021.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 2nd March 2022
Page 1 of 8
2nd March 2022
27-OSWPL-2650-2022.DOC
PC:-
1. This short order is intended to clarify the questions or matters on which we will require Mr Aradwad (Reddy) to take instructions from SRA.
2. The context of this order is set out in our 18th November 2021 which reads thus:
"1. The 1st Petitioner is the son of the 2nd Petitioner. They claim to have a commercial premises and are eligible under the SRA scheme in question to be allotted commercial premises in the redeveloped or newly developed SRA Rehab building. The Petitioners have already been allotted one room 505, but this is a residential tenement. The CEO of the SRA has, by his order of 9th November 2021, held that if the Petitioners can establish that they are also entitled to a commercial unit in the rehab structure, they will get it. The Petitioners have appealed against this order to the AGRC saying that there is no question of their having a commercial unit in addition to the residential tenement in the rehab structure. Their eligibility and entitlement is only to the commercial unit in the rehab building.
2. But the Additional Collector has, on an application by the Petitioners, determined by an order dated 8th October 2021 that the Petitioners are eligible only for a commercial unit in the rehab building and not to a residential tenement at all. This order is in conflict with the order of the CEO of the SRA (apart from the question of whether the CEO of the SRA can decide eligibility at all). Mr Bulsara for the 1st Respondent developer says that the developers intends to assail the Additional Collector's 8th Page 2 of 8 2nd March 2022 27-OSWPL-2650-2022.DOC October 2021 order before the AGRC. He states that an appeal will be filed within one week from today.
3. Let the AGRC dispose of the appeal filed by the Petitioner against the order dated 9th November 2021 passed by the CEO of SRA along with the appeal to be filed as noted above by the 1st Respondent developer against the order dated 8th October 2021 passed by the Additional Collector.
4. We request the AGRC to dispose of both Appeals within a period of four weeks after the date of filing of the appeal by the 1st Respondent developer.
5. Until next date, the existing structure of the Petitioner is not to be demolished.
6. List the matter on 4th January, 2022.
7. Liberty to the parties to apply, should the need arise."
3. It now transpires that the Petitioners have been found eligible for a commercial structure and their names feature in a supplementary Annexure-II. The original Annexure-II was of 27th October 2016. In the original Annexure-II, all slum dwellers were eligible. What was to be constructed was a rehab building plus a community hall and the temple. The occupation certificate for the rehab building came on 15th March 2021. There were 88 residential tenements, 13 commercial premises, and four were residential-cum- commercial.
4. It is clear from this that the Petitioners' eligibility for a commercial structure came after the occupation certificate for the rehab building.
Page 3 of 82nd March 2022 27-OSWPL-2650-2022.DOC
5. There is a policy in place that contemplates precisely such a situation, i.e., where a supplementary Annexure-II follows an occupation certificate and possession to others, on some individual's eligibility being favourably decided at such a late stage. This is based not only on a reading of DCR 33(10) but also a Circular No. 163 dated 2nd November 2015. Paragraph 3 of the Circular says that in such cases where it is "not possible to accommodate an otherwise eligible slum dweller in the scheme in question because eligibility happens after allocation of rehab apartments by lottery", a Project Affected Person ("PAP") tenement should be given to such persons, if available, in a nearby scheme or division. This stands to reason: it is not physically possible to redraw the scheme or its boundaries, or to prepare amended plans.
6. The Petitioners have a hut being used for commercial purposes. It stands in the way of the provision of parking spaces for the rehab building. If Mr Shetye's submission is to be accepted to amend the plans and revisit the entire scheme, clearly the other slum dwellers who are in occupation of the rehab building, with an occupation certificate, would be affected. Therefore, Mr Shetye's submission would result in his having to join every single one of these affected persons. We do not see any possibility of a wholesale reconfiguring of an already developed scheme and slum rehabilitation project for a single individual. It is indeed true that the developer has availed of all the benefits under the scheme (additional FSI for free-sale units and so on), but this is the entitlement in statute for the developer completing the rehab component. That has been done. Consequently, the Petitioners' cannot now have the option of claiming that the project being Page 4 of 8 2nd March 2022 27-OSWPL-2650-2022.DOC revisited, plans be amended, and amenities promised and assured to the rehab building occupants be reduced or taken away. It is also not as if the Petitioners do not have the benefit of an extant policy directed precisely at such situations. This is where the Circular referred to above begins to operate. Mr Shetye's submission in this regard will have to be rejected.
7. In our view, the Petitioners' hut -- which is on the planned and required rehab parking area space -- cannot be allowed to be continue. This is a common misunderstanding about slum rehabilitation projects, viz., that until eligibility is finally favourably decided in favour of the claimant, the structure in question must not be demolished. That is not the frame of the slum rehabilitation law. We have addressed this question before, but we do so again since it is Mr Shetye's submission that the Petitioners' hutment should not be disturbed on account the Petitioners being found eligible for another commercial unit. The present slum rehabilitation law contemplate in situ re-development of areas notified and declared as slums under the Slum Act. The underlying policy has recently been sharply criticised by a Division Bench of this Court in High Court on its own motion (In Re: Jilani Building at Bhiwandi) v Bhiwandi Nizampur Municipal Corporation & Ors.1 That aspect is not the issue before us; we only note that the State's slum rehab policy, even if Constitutionally valid, is not immune to even judicial criticism. But within the frame of the statute as it currently stands, slum rehabilitation projects are required to follow a certain, defined 1 Judgment dated 26th February 2022 in Suo Motu PIL No 1 of 2020. GS Kulkarni J delivered the lead judgment. The Hon'ble the Chief Justice Dipankar Datta rendered a separate but concurring judgment.
Page 5 of 82nd March 2022 27-OSWPL-2650-2022.DOC progression. There is a conceptual difference between determining the existence of a slum structure or hutment within the boundaries of a notified slum area and a slum rehabilitation scheme, and the determination of an individual's eligibility. The existence of a slum structure is decided by a physical survey. If there is no structure, there can be no claim of eligibility in respect of it by any person. Once the existence of structures is determined by the survey, comes the question of deciding eligibility. This is an assessment (i) on the basis of certain defined policy criteria and guidelines and (ii) documentary evidence to show that the claimant falls within those criteria holding him or her to be 'eligible' for allotment of a unit (residential or commercial, or both) in the to-be constructed rehab building. If a person is eligible, the entitlement to allotment in a rehab building (and, in the meantime, other benefits such as transit rent or accommodation) automatically follows; and the hutment cannot be allowed to stand. If the person is held to be ineligible, then there is no entitlement to any rehab benefits -- and again, the structure cannot continue. Thus, the determination of eligibility one way or the other has nothing at all to do with the physical continuance of the structure. Eligibility is linked to a structure whose prior existence on site has been previously recorded and found by the initial survey. Thus, there is no warrant at all for saying that "until eligibility is decided, the structure cannot be demolished or must be protected." Indeed, that is emphatically not the frame of the law. And there is a wider public purpose behind this that is all too often forgotten by such claimants. We cannot ignore that there are often hundreds of persons who have already vacated and are in transit awaiting the development and delivery of possession of their newly constructed rehab homes. The interests of that vast body of persons Page 6 of 8 2nd March 2022 27-OSWPL-2650-2022.DOC cannot be allowed to be compromised by one or two persons coming in the way of completion of the project. Those who insist on their structures being protected from demolition must realize that their plea for relief comes at the very real cost of their fellow slum- dwellers who are already in transit anxiously awaiting the completion of the project. We are not even considering the equally oft-repeated plea of developers and builders complaining of delay and that they are losing money; for these developers are in the project for profit and they must surely have factored in some delays in their cost projections. That is not the public interest in any sense of the expression at all. The public interest consideration lies in the condition of those already in transit accommodation or receiving transit rent, and of a delay in project completion being forced upon them for no fault of their own.
8. With this in mind, as our order of 18th November 2021 shows, the Petitioners are already in occupation of a residential tenement. It is not as if they are rendered without shelter. There is now no doubt about the Petitioners' entitlement under the policy to a PAP commercial tenement. To get this, the Petitioners will have to give up their residential rehab tenement, and about this there is also no controversy, as Mr Shetye readily accepts this position.
9. The question is really of availability of a PAP tenement and its location, when this can be allotted to the Petitioners and when they can be put in possession of it. On this question, only to lend certainty, we require SRA to give specific instructions to Mr Reddy before the next date. We will also require an Affidavit from Page 7 of 8 2nd March 2022 27-OSWPL-2650-2022.DOC Respondent No. 1 Developer that commercial tenement as per the eligibility of the Petitioner is not available in the redevelopment scheme and how to ensure temporary rehabilitation of the Petitioners till PAP tenement is made available to them.
10. We will pass the other consequential directions thereafter.
11. List the matter on 9th March 2022 for orders.
12. All concerned will act on production of a digitally signed copy of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
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2nd March 2022