Bombay High Court
Surindersingh G. Abrol And 4 Ors vs The State Of Maharashtra And 5 Ors on 30 October, 2018
Author: A.K. Menon
Bench: A.K. Menon
hcs
wp2978.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2978 OF 2018
Surindersingh G. Abrol and Ors. .. Petitioners.
Vs.
The State of Maharashtra & Ors. .. Respondents.
Mr.Prasad Pathare i/b Rajesh D. Bindra for the Petitioners.
Ms.G.R. Shastri Addl. G.P. for the State.
Mr.Vijay Patil for Respondent No.3.
Mr. G.W.Mattos for Respondent No.2.
Mr.Sharan Jagtiani with Ms.Dhawani Bokaria i/b Purnanand & Co. for
Respondent No.5.
Ms.Pooja Yadav for the Respondent - Corporation.
CORAM : A.K. MENON, J.
DATED : 30TH OCTOBER, 2018.
P.C. :
1. The challenge in this petition is to the order dated 6th October, 2017 passed by the Additional Collector & Appellate Authority, Mumbai. The petitioners are occupants of the structures situate at C.S. No.2(pt) and 89(pt) Salt Pan Division, Mumbai City admeasuring area 6550.75 sq. mtrs. Situate and being at Punjabi Colony, J.K. Bhasin Road, Sion Koliwada, GTB Nagar, F.N. Ward, Mumbai and are aggrieved by the order dated 27th March, 2018 passed in Appeal No.No.86 of 2017 under Section 35(1A) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("Slum 1/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 ::: wp2978.18.odt Act").
2. The impugned order dated 6th October, 2017 was passed in three appeals. Respondent No.3 - Additional Collector, Mumbai rejected all appeals and as a result the petitioners approached the Grievance Redressal Committee. They claim to be in occupation of commercial structures on land bearing 2(pt) and 89(pt) of Salt Pan Division, Mumbai City District, Sion Koliwada, Mumbai. They, along with other occupants have formed a proposed society being respondent no.6 and proposed society has appointed respondent no.5 as a developer for redevelopment of the plot. There are about 325 occupants. The scheme is being implemented on land belongs to the Mumbai Municipal Corporation. Annexure II has been certified by the Competent Authority, 300 occupants have vacated the structures in their occupation and are co-operating with the respondent no.7 which leaves only 25 persons who are non co-operative. The petitioners are eligible persons but they have failed to vacate the structures in their occupation and as a result respondent no.3 approached the Competent Authority for adopting proceedings under Section 33, 33A and 38 of Slum Act.
3. After hearing parties, the petitioners were directed to vacate the premises in 48 hours by the Designated Authority and Assistant Commissioner. The petitioners thereafter filed the appeals and the Additional Collector & Appellate Authority, Mumbai City heard the appeals and vide order dated 6th October, 2017 rejected the appeals. They have challenged 2/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 ::: wp2978.18.odt the impugned order dated 6th October, 2017 on the basis that they had lost faith in respondent no.4 - the Assistant Commissioner alleging that their application was liable to be transferred to the Additional Collector & Appellate Authority, Mumbai City. The said application was therefore filed pending such transfer, despite which the impugned order dated 6th October, 2017 had been passed. The petitioners allege miscarriage of justice and violation of principles of natural justice. It is further alleged that Respondent no.6 developer has not executed the agreements for permanent alternate accommodation and the transit accommodation offered to the petitioners was insufficient. The petitioners have alleged violation of several notifications and circulars on the part of Respondent No.6 - society. Respondent no.3 -
developer had allegedly reduced area of rehab premises.
4. After hearing parties, the impugned order records that the Grievance Redressal Committee was not convinced that the order impugned has been passed is inappropriate as alleged by the petitioners. It also records that the petitioners have contended that the copies of relevant documents have not been provided to them, the contention was vague and it is no where pleaded when such copies have been applied for. As regards additional area, there is nothing in the pleadings of the petitioners save and except for the contention that the petitioners were entitled to additional area in view of Circular No.70 of SRA. It was observed that the issue pertaining to additional area lay within jurisdiction of the CEO SRA and it was not necessary to go 3/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 ::: wp2978.18.odt into that aspect in these proceedings under sections 33 and 38. It is also observed that the written submissions filed by the petitioners were silent on the aspect on which grounds the order of respondent no.3 - Additional Collector requires inteference. The Apex Grievance Redressal Committee found that 300 slum dwellers had vacated the premises and having accepted rehab tenements and they have moved to rehab tenements. In these circumstances the AGRC was of the view that remaining persons cannot be allowed to delay the project. The Committee came to the finding that the petitioners were delaying rehabilitation of slum dwellers and accordingly rejected the appeals. The order is dated 27th March, 2018. This petition is, however, is filed in September 2018. There is no explanation for delay in filing present petition, even assuming the challenge was otherwise meritorious.
5. On behalf of the respondents, the petition is opposed by Mr.Jagtiani, appearing for respondent no.5 - developer and who has filed an affidavit in reply to oppose the petition. In the affidavit it is stated that permanent alternate accommodation that is to be provided to petitioner nos.1, 2, 4 and 5 is ready and that the petitioner nos.1, 2, 4 and 5 were entitled to it is submitted that occupation certificate has been obtained. At the hearing it is stated that in relation to permanent alternate accommodation to be provided to petitioner no.3 the occupation certificate is yet to be received. Moreover, petitioner no.3 claims to be successor-in-title of one Jaisingh 4/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 ::: wp2978.18.odt Gurmukhsingh, who was treated to be eligible person. It is contended that the society is registered with The Registrar of the Co-operative Societies and there is joint development agreement dated 20th July, 2006 entered into between respondent no.5 and one M/s.Vardhaman Developers to jointly develop the property. Thereafter respondent no.5 is said to have obtained necessary approval and petitioner nos.1, 2, 4 and 5 being members of one family were occupying commercial tenements. The break up of area that each of the petitioner nos.1, 2, 4 and 5 are entitled is disclosed in paragraph 7(viii) of the affidavit. It is stated that the petitioners have amalgamated their respective premises and are carrying on business in the name of Mini Mahal Restaurant and Bar. It is contended that each of the petitioners are entitled to only 225 sq. ft. carpet area or the existing area whichever is less as certified. They were entitled to purchase additional area not exceeding the existing area at the market rate. In these circumstances, petitioner nos.1, 2 and 4 were entitled to one commercial apartment of 225 sq. ft. and petitioner no.5 to commercial premises of 190 sq. ft.
6. It is submitted that by four agreements dated 1st August, 2016 between respondent no.5 and petitioner nos.1, 2, 4 and 5, additional area was agreed to be sold against payment of consideration. That in the meantime respondent no.5 permitted the petitioners to carry out fit-outs. It is alleged that no payments were forthcoming, only a part payment of Rs.10,00,000/- has been made and balance is still remaining to be paid and therefore 5/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 ::: wp2978.18.odt agreements executed on 1st August, 2016 came to be terminated for non payment of consideration on or about 16th May, 1970.
7. The drafts of permanent alternate accommodation had been provided but on account of non co-operation the respondent no.5 approached the competent authority seeking reliefs under Sections 33, 33A and 38. Respondent No.5 after calling upon the petitioners to vacate the premises has offered Rs.15,000/- per month to each of the petitioners in lieu of the transit accommodation but they have failed to vacate the premises.
8. Furthermore, four separate suits have been filed in the City Civil Court challenging the termination. Meanwhile as far as petitioner no.3 is concerned, the eligible person was Jaisingh Gurmukhsingh who was also called upon to execute an agreement of permanent alternate accommodation. As against entitlement of Jaisingh Gurmukhsingh, one Papinder Singh Batra has claimed to be successor in title and has called upon respondent no.5 to enter into agreement. Respondent No.5 has expressed willingness to execute an agreement of permanent alternate accommodation with the said person claiming to be successor in title provided he obtains prior clearance from SRA to include his name.
9. On behalf of respondent no.5 Mr.Jagtiani submitted that the petitioners are now misusing the facility provided to them for fit-outs and despite disputing in paying balance consideration, they are now refusing to vacate the structures in their occupation. He submitted that respondent no.5 was at 6/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 ::: wp2978.18.odt all times were ready to honour the commitment, however, on account of the obstructive attitude of the petitioners and failure to pay balance consideration in respect of the additional area, the agreement came to be terminated. Considering the scope of challenge, I am of the view that the petitioners cannot be permitted to obstruct further progress and once having participated in the scheme and having offered alternate premises and rent in view thereof and the petitioners having agreed to accept such alternate premises and also purchased additional area they are now reluctant in going through with the transaction as agreed upon. Admittedly, the suits have been filed in the Bombay City Civil Court and these suits will proceed.
10. Having heard learned counsel for the parties and having perused the record I am of the view that no interference is called for in the writ jurisdiction of this Court, apart from the fact there is no explanation of delay in approaching this Court after the impugned order is passed in this petition. I do not find any substance in the petitioners' contention that the impugned order was passed hurriedly or by alleged loss of confidence of respondent no.1 it was incumbent upon respondent no.1 to transfer application to the Collector. In my view these are only attempts to delay the proceedings. As seen from the impugned order, respondent no.1 has observed that allegations in the appeals are vague and submissions do not disclose what documents were not furnished. Apropos the dispute pertaining to the area and in 7/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 ::: wp2978.18.odt relation to Circular No.70, it is for the petitioners to approach CEO SRA in this respect as observed in the impugned order. In the circumstances as far as entitlement of respondent no.3 is concerned, it is not possible for this Court to enter upon controversy of entitlement and this involve disputed questions of fact. In the circumstances the petition has no merit and I pass the following order :
(a) Petition is dismissed.
(b) No order as to costs.
(A.K. MENON,J.) 8/8 ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 00:07:13 :::