Bombay High Court
Moinuddin Pashamiya Shaikh vs Slum Rehabilitation Authority on 8 August, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
901-OSWPL-7714-2023.OSWP.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 7714 OF 2023
Moinuddin Pashamiya Shaikh ...Petitioner
Versus
Slum Rehabilitation Authority ...Respondent
WITH
WRIT PETITION NO. 3483 OF 2021
WITH
INTERIM APPLICATION (L) NO. 16183 OF 2023
IN
WRIT PETITION NO. 3483 OF 2021
WITH
INTERIM APPLICATION (L) NO. 9655 OF 2023
IN
WRIT PETITION NO. 3483 OF 2021
WITH
INTERIM APPLICATION (L) NO. 5663 OF 2023
AMOL IN
PREMNATH
JADHAV
Digitally signed by WRIT PETITION NO. 3483 OF 2021
AMOL PREMNATH
JADHAV
Date: 2023.08.10
10:58:20 +0530 WITH
INTERIM APPLICATION NO. 140 OF 2021
Sattar Malang Shaikh & Ors ...Petitioners
Versus
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Apex Grievance Redressal Committee & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 480 OF 2020
Ranjit Inder Dulgaj & Ors ...Petitioners
Versus
The Slum Rehabilitation Authority & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 720 OF 2020
Raziya Barsati & Ors ...Petitioners
Versus
The Slum Rehabilitation Authority & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 803 OF 2020
WITH
INTERIM APPLICATION NO. 629 OF 2020
IN
WRIT PETITION (L) NO. 2217 OF 2019
Shaikh Chand Ali Dastagir & Ors ...Petitioners
Versus
Housing Development and Infrastructure Pvt Ltd ...Respondents
& Ors
WITH
WRIT PETITION (L) NO. 7486 OF 2023
Fariuddin Hilaluddin Shaikh ...Petitioners
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Versus
The Slum Rehabilitation Authority & Ors ...Respondents
WITH
WRIT PETITION NO. 727 OF 2020
WITH
NOTICE OF MOTION NO. 2 OF 2020
IN
WRIT PETITION NO. 727 OF 2020
Isthari Gandamal & Ors ...Petitioners
Versus
Housing Development and Infrastructure Pvt Ltd ...Respondents
& Ors
WITH
WRIT PETITION NO. 3729 OF 2022
WITH
INTERIM APPLICATION NO. 720 OF 2023
IN
WRIT PETITION NO. 3729 OF 2022
Khan Zainuddin Chandmiya & Ors ...Petitioners
Versus
Slum Rehabilitation Authority & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 2217 OF 2019
WITH
INTERIM APPLICATION NO. 629 OF 2020
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IN
WRIT PETITION (L) NO. 2217 OF 2019
WITH
INTERIM APPLICATION NO. 523 OF 2019
IN
WRIT PETITION (L) NO. 2217 OF 2019
WITH
INTERIM APPLICATION NO. 129 OF 2021
IN
WRIT PETITION (L) NO. 2217 OF 2019
WITH
INTERIM APPLICATION (L) NO. 16410 OF 2023
IN
WRIT PETITION (L) NO. 2217 OF 2019
WITH
INTERIM APPLICATION (L) NO. 17766 OF 2022
IN
WRIT PETITION (L) NO. 2217 OF 2019
Istari Ramayya & Ors ...Petitioners
Versus
Housing Development and Infrastructure Pvt Ltd ...Respondents
& Ors
WITH
WRIT PETITION NO. 3531 OF 2021
Abdul Hamid Khan ...Petitioner
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Versus
The Slum Rehabilitation Authority & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 25057 OF 2021
Abdul Munaf Abdul Sattar Shaikh & Ors ...Petitioners
Versus
The Slum Rehabilitation Authority & Ors ...Respondents
WITH
WRIT PETITION NO. 3517 OF 2021
WITH
INTERIM APPLICATION (L) NO. 8648 OF 2023
IN
WRIT PETITION NO. 3517 OF 2021
Shanaazbano M Shaikh & Ors ...Petitioners
Versus
Apex Grievance Redressal Committee & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 30845 OF 2022
Madian Tajudin Shaikh & Ors ...Petitioners
Versus
Housing Development And Infrastructure Pvt ...Respondents
Ltd & Ors
WITH
WRIT PETITION (L) NO. 35590 OF 2022
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Atiqa Noor Mohd Shaikh & Ors ...Petitioners
Versus
The Slum Rehabilitation Authority & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 35621 OF 2022
WITH
INTERIM APPLICATION (L) NO. 16142 OF 2023
IN
WRIT PETITION (L) NO. 35621 OF 2022
Maqsood Ahmed Shaikh ...Petitioner
Versus
The Slum Rehabilitation Authority through Chief ...Respondents
Executive Officer
WITH
WRIT PETITION (L) NO. 37570 OF 2022
Basera Co-operative Housing Society Ltd ...Petitioner
Versus
Slum Rehabilitation Authority ...Respondent
WITH
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9302 OF 2023
Vali Mohammed Ibrahim Kherani & Ors ...Petitioners
Versus
Slum Rehabilitation Authority through Chief ...Respondent
Executive Officer
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Mr RR Kanoja, for the Petitioner in WPL/37570/2022.
Ms N Baig, i/b Yousuf Khan, for the Petitioners in WPL/803/2020.
Ms B Sayed, with Rohan Surve, for the Petitioner in WP/9302/2023 &
WP/9305/2023.
Mr Vijay Kurle, for the Petitioner in WPL/37208/2022 &
WPL/20881/2023.
Mr Shaijad Mansuri, for Petitioners in WPL/30845/2022
Ms Gulnar Mistry, with Niytesh Acharya, Altaf Khan & Supriya
Ghadge, for the Petitioners in WP/3483/2022 and for the
Applicants in IAL/5663/2023.
Mr Akash Rebello, with Nitesh Acharya, Altaf Khan & Supriya
Ghadge, for the Applicants/Petitioners in WP/3517/2021.
Mr Nitesh Acharya, with Supriya Ghadge, for the Petitioner in
WPL/35621/2022.
Mr Altaf Khan, with Nitesh Acharya & Supriya Ghadge, for the
Petitioners in WP/3531/2021 & WPL/25057/2021.
Mr Altaf Khan, with Supriya Ghadge, for the Petitioner in
WPL/3590/2022, WPL/480/2020 & WPL/720/2020.
Mr Kunal Dwarkadas, with Tushar Kochale & Bhavika Solanki, for
the Petitioners in WP/3279/2022, WPL/7486/2023,
WPL/7714/2023 & IA/720/2023.
Mayur Khandeparkar, with Aditya Miskita, Neha Mehta & Aayushi
Gohil, i/b M/s. MT Miskita & Co, for Respondent No. 10 in
WPL/7714/2023, for Respondent No. 49 in WP/3483/2021, for
Respondent No. 39 in WPL/480/2020, for Respondent No. 34 in
WPL/720/2022, for Respondent No. 13 in WPL/803/2020, for
Respondent No. 10 in WPL/7486/2023, for Respondent No. 10 in
WP/727/2020, for Respondent No. 10 in WP/3729/2022, for
Respondent No. 41 in WPL/22172019, for Respondent No. 8 in
WP/3531/2021, for Respondent No. 6 in WPL/25057/2021, for
Respondent No. 13 in WPL/30845/2022, for Respondent No. 5 in
WPL/35590/2022 & for Respondent No. 5 in WPL/35621/2022.
Dr Milind Sathe, Senior Advocate, with Jagdish G Aradwad
(Reddy), for Respondent No. 2 in WP/3483/2021.
Mr Jagdish G Aradwad (Reddy), for Respondent Respondent-SRA in
WP/7714/2023, WP/3483/2021, WPL.480/2020,
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WPL/2217/2019, WPL/25057/2021, WP/3517/2021,
IAL/17766/2022 & IAL/12676/2022.
Mr Advait Kulkarni, i/b Jay & Co, for Respondent No. 29 Punjab
National Bank in WPL/7714/2023.
Mr Vijay Singh, with Abhijeet Desai, i/b Desai & Desai Legal, for
Respondents Nos. 6 and 7 in WP/727/2020.
Mr Ravikant Purohit, for Respondent No. 5 in WP/9302/2023.
Ms Akanksha Hambir, i/b Rathina Maravarman, for the Respondent-
Central Bank of India.
Mr Abhijit Patil, i/b Vijay Patil, for the Respondent-AGRC in
WP/25057/2021, WP/3531/2021, 3517/2021.
Mr SB Gore, AGP, for the Respondent State in WPL/7714/2023.
Mr LT Satelkar, AGP, for the Respondent State in WP/3483/2023,
WPL/720/2020, IA/629/2020, WPL/7486/2023,
WPL/30845/2022 & WPL/35621/2022.
Mr Hemant Haryan, AGP, for the Respondent State in
WPL/480/2020.
Mr Sukanta Karmakar, AGP, for the Respondent State in
WPL/803/2020 and WPL/35590/2022.
Mr Amit Shastri, AGP, for the Respondent-State in WP/727/2020.
Mr Milind More, Addl. AGP, for the Respondent State in
WP/3729/2022.
Mr Kedar Dighe, AGP, for the Respondent State in WP/3531/2021 &
WPL/25057/2021.
Mr Dushyant Kumar, AGP, for the Respondent-State in
WPL/25057/2021.
Mr Sagar Patil, for the Respondent-BMC in all Petitions.
Mr PG Lad, with Sayli Apte & Shreya Shah, for the Respondent-
MHADA in all Petitions.
Mr Shashikant Surana, i/b Madhur Surana, for the Resolution
Professional.
Mrs Rucha Ambekar, Section Officer, Office of the Court Receiver, is
present.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 8th August 2023 Page 8 of 13 8th August 2023 ::: Uploaded on - 10/08/2023 ::: Downloaded on - 10/08/2023 21:51:30 ::: 901-OSWPL-7714-2023.OSWP.DOC PC:-
1. The affidavit and compilation are to be filed in the Registry. If this Petition is not finally numbered with all objections removed by the next date, it will stand dismissed.
2. Writ Petitions Nos. 9302 of 2023, 9305 of 2023 and Writ Petition (L) No. 37570 of 2022, will be listed along with Writ Petition (L) No. 7714 of 2023 and connected matters on 13th September 2023.
3. The case of the Petitioners in the present three Writ Petitions is that the Basera society is the only registered society and, therefore, has a priority right over everyone else to decide who is to be the developer recognised by Slum Rehabilitation Authority ("SRA"). The second question raised is that since the society and the individuals in the two companion Petitions claim to be "tenants" of Maharashtra Housing and Area Development Authority ("MHADA"), then, there is no possibility of these structures being included in the SRA scheme.
4. On behalf of MHADA, Mr Lad states that there is already a No Objection Certificate ("NOC") issued, and that SRA is unquestionably the special planning authority for the entire project. This has in fact been stated on affidavit. He further clarifies that while the Petitioners and the society members may be residing in certain MHADA quarters, these were given to them temporarily and for transit. All of them were initially trespassers on public Page 9 of 13 8th August 2023 ::: Uploaded on - 10/08/2023 ::: Downloaded on - 10/08/2023 21:51:30 ::: 901-OSWPL-7714-2023.OSWP.DOC property. They acquire no greater right by virtue of being accommodated in MHADA buildings. These are the rival considerations that we will take into account.
5. But what the Petitioners seek is that while these affidavits are being filed and questions being determined, there must be an interim relief fashioned by this Court which would have the effect of bringing to a halt all further progress of the scheme. As we have elsewhere noted, this covers a staggering 70,000 sq mts and involves over 3,000 persons to be accommodated in rehabilitation. Several thousand tenements are yet to be built. There are the additional complications as noted in our 54-page order of 19th and 20th June 2023 regarding the amounts spent by the previous developer. All of this makes no difference to the present Petitioners who seek in prayer clause (D) of the Basera CHSL Petition ::that:
"(D) Pending the hearing and final disposal of this Writ Petition, this Hon'ble Court may be pleased to stay the effect, implementation, operation of:-
(i) Letter of Intent dated 13th October 2022 being SRA/ENG/828/HE/ MMRDA/LOI [Exhibit-D];
(ii) appointment of Respondent No.2 [M/s.
Budhpur Buildcon Pvt Ltd] as "Co-Developer" of Petitioner Society and Respondent No.3 [M/s HDIL] as developer on the Suit Property."
In prayer clause (F) the relief sought is thus:
"(F) Pending the hearing and final disposal of this Writ Petition, this Hon'ble Court may be pleased to restrain the Respondent No.5 [In-charge Tehsildar-1(Special Desk), Page 10 of 13 8th August 2023 ::: Uploaded on - 10/08/2023 ::: Downloaded on - 10/08/2023 21:51:30 ::: 901-OSWPL-7714-2023.OSWP.DOC SRA] and Respondent No.7 [Competent Authority and Land Manager-Mumbai Housing And Area Development Board, MHADA] from exercising their powers as Competent Authority in respect of the Petitioner Society's SRA Scheme plot of land under reference in any manner."
In the Petitions by the individuals, the interim relief sought is worded as follows:
"(B) Pending the hearing and final disposal of this Writ Petition this Hon'ble Court may be pleased to stay the effect, implementation, operation of the impugned order bearing No.TEH-1 [SP.Desk]/33/38/Basera/Kavi/23/32177 dated 18th July 2023 passed by Tehsildar-1 [Special Desk], Slum Rehabilitation Authority in all manners qua the Petitioners."
6. What these Petitioners do not seem to realise is that when deciding on interim relief, the usual threefold considerations must be borne in mind. There must be a firmly established prima facie case. Then comes the question of balancing equities and finally the question of the Petitioners demonstrating irretrievable injury and prejudice.
7. There is certainly no prima facie case that has been made out so far given the complexity of the facts at hand. As regards the question of balance of convenience, it is not merely these Petitioners, i.e., this society or these few Petitioners. We have to bear in mind the interest of several thousands of others including other societies, some of them said to be on this very plot. But the Page 11 of 13 8th August 2023 ::: Uploaded on - 10/08/2023 ::: Downloaded on - 10/08/2023 21:51:30 ::: 901-OSWPL-7714-2023.OSWP.DOC final determinant in refusing interim relief must be the question of irretrievable prejudice and injury.
8. Mr Khandeparkar, on the last occasion, appearing for Budhpur Buildcon stated on instructions that all eligible Petitioners in these three Petitions would receive 11 months' transit rent in advance and have available to them for execution and registration Permanent Alternative Accommodation Agreements ("PAAA") on the same terms as all others. This answers the questions of both balance of convenience and irretrievable prejudice. There is no prejudice that is caused to the Petitioners if relief is refused because their entitlements in law, one way or the other, are not only capable of being compensated but are being compensated immediately. Repeatedly, the Petitioners say they are not opposed to re- development. But they want to be able to dictate the nature of the re-development and the identity of the developer. Mr Lad for MHADA maintains that no such submission can be accepted from or on behalf of those who were originally trespassers on public land.
9. Finally, we are not in the least convinced by this persistent attempt to dislodge a particular developer or builder. In case after case, we have found that these attempts are usually driven by competing forces. It is quite a different thing if a group or a society says that a particular builder has committed default and that SRA should take action. But the entire attempt here seems to be to say that this particular developer should not be appointed and that raises a serious doubt in our minds as to the bona fides of these Petitions.
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10. However, we will keep these contentions open and hear both sides after MHADA and SRA have filed their Affidavits. That is to be done by 28th August 2023.
11. All Respondents are at liberty to file Affidavits in Reply in these three Petitions by 8th September 2023. The one thing which we can assure every eligible person is that no person who is eligible will be denied any benefits of the slum rehabilitation scheme. Equally, we will not permit persons who are trespassers to gain undue advantage of the entire slum rehabilitation policy.
12. Ms Mistry and Mr Rebello clarify that they have not appeared for any society but for other individuals.
13. List these Petitions on 13th September 2023 with the main matter.
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