Bombay High Court
Capt. Dr Rahul Ramchandra Wagh And 6 Ors vs The State Of Maharashtra And 10 Ors on 17 April, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
16-OSWP-2904-2019+.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2904 of 2019
WITH
CHAMBER SUMMONS NO. 31 OF 2018
IN
WRIT PETITION NO. 2904 OF 2019
Capt Dr Rahul Ramchandra Wagh & Ors ...Petitioners
Versus
The State of Maharashtra & Ors ...Respondents
Ms Manjiri Parasnis, for the Petitioner in WP/2904/2019.
Mr Amit Shastri, AGP, with Himanshu Takke, AGP, for Respondent
No. 1-State.
Mr Sagar Patil, for Respondent No. 9- MCGM.
Mr Amir Arsiwala, i/b Piyush Deshpande, for the Respondent-Society.
Mr Karl Tamboly, with Jasmine Kachalia, Tejasvi Sarvaiya, Viren
Mandhle & Sahil Singh, i/b Wadia Ghandy & Co, for
Respondent No. 13.
Mr Karan Bhide, with Sharad Bandal, Ritesh K Jain, Krishkumar
Jain, Hitesh Mishra, i/b Amit Mehta, for Respondent No. 14.
Mr Rohaan Cama, with Swapnil Khatri, for Respondents Nos. 15 &
16.
Ms Tejasvi Sarvaiya, with Viren Mandhle & Sahil Singh, i/b Wadia
ASHWINI
HULGOJI Ghandy & Co, for Respondent No. 17.
GAJAKOSH
Ms Manisha Jagtap, with Karan Rajane, for Respondent No. 1-
Digitally signed
by ASHWINI MHADA.
HULGOJI
GAJAKOSH
Date: 2023.04.18
10:42:49 +0530
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 17th April 2023 Page 1 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:42:16 ::: 16-OSWP-2904-2019+.DOC PC:-
1. This is the remaining part of the much-troubled Patra Chawl redevelopment project. It relates to the claims of the original occupants/tenants.
2. The claims themselves are divisible into two categories. There is a claim for compensation termed as transit rent. We understand this expression to be comprehensive and to include all other monetary assurances such as corpus contribution, shifting charges and any other forms of compensation.
3. The second aspect of the matter is about the completion of the building called R-9 which is the permanent alternate accommodation for the eligible occupants/tenants.
4. The second aspect is perhaps more easily dealt with. Ms Jagtap on instructions states that as presently advised, the outer date for completion of construction of building R9 is May 2024. However, the Maharashtra Housing and Area Development Authority ("MHADA") proposes to and is making every effort to see to it that the construction is completed in 2023 itself. Neither Ms Jagtap nor her officers are able to make a firm commitment to an earlier date of completion; they only say that efforts are being made in that direction. This is noted.
5. The question of compensation is more difficult and requires us to set out a few facts. We thereafter propose to make a few observations and suggestions and also issue a few directions. We do Page 2 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:42:16 ::: 16-OSWP-2904-2019+.DOC this in the common interest of all concerned, i.e., the occupants/tenants and MHADA.
6. The occupants are now in two lots. Ms Parasnis represents four occupants. Others propose to join and even without waiting for a formal Interim Application we allow Ms Parasnis to add other Petitioners to the Petition. We dispense with reverification. The necessary amendments are to be carried out without need of reverification by 27th April 2023. We do this because it really makes very little difference to the outcome and is probably better that the maximum number of entitled persons are before the Court.
7. All these individual Petitioners are members of the Goregaon Siddharth Nagar CHSL. This immediately raises a question of why the individual Petitioners have even had reason to come to Court separately. Ms Parasnis rightly says that she would prefer to stay away today from a deeper investigation into the facts since progress is being made but her instructions are that the individuals believed that the Society was not only insufficiently active in pursuing the cause but was also supporting the developer, Guru Ashish, 11th Respondent, which is now defunct and has been removed from the project.
8. What is relevant is that there are 672 or 673 persons in all who are members of the society and are entitled to permanent reaccommodation. They are entitled also to receive such transit rent as may be decided.
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9. We come now to an outlining of the possible legal and jurisprudential question that may fall for determination at some later point. We have explained to Ms Parasnis why we do not believe it should be addressed immediately. The question is this. As part of its No Objection Certificate ("NOC") from MHADA and as part of its Development Agreement with the Society, Guru Ashish had a contractual obligation to pay certain amounts towards transit rent (including shifting charges etc). It fell into arrears. Guru Ashish has now exited the picture. MHADA has taken over part of Guru Ashish's obligation, i.e., the obligation to construct and develop the building for permanent alternate accommodation for the eligible occupants/tenants. Does MHADA, by operation of law or otherwise, assume the entirety of the burden and obligations of Guru Ashish to whom it had given an NOC?
10. This is by no means an easy question. MHADA is not only a planning authority, but within the framework of The Maharashtra Housing and Area Development Act, 1976 ("MHADA Act") is also a regulator. We do not think that it is possible to say simply and without a much deeper analysis that MHADA will necessarily and in every circumstance assume and take over the entire financial burden of a defaulting private developer. However, we leave that question open for the present. If necessary we will address it more fully at a later stage once we have heard both sides.
11. Instead, we proceed to more immediate and perhaps more practical concerns. Ms Jagtap states that MHADA has been scrutinizing the documents of those who are found eligible. This Page 4 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:42:16 ::: 16-OSWP-2904-2019+.DOC exercise has become necessary because, as she points out, some of the original eligible occupants have either passed away or may have moved on and have in the meantime sold or assigned or otherwise transferred their interest. Claims are now being made by third parties or even agents. MHADA is not prepared to entertain these third party transferees, let alone their agents, and rightly so. It has a certain policy in place regarding the amount of compensation towards transit rent that is being paid to those who are still found eligible. A period has also been determined, that is to say from what date compensation will be paid by MHADA.
12. We make it clear that it is not for us to decide the amount of compensation or the period. Since this is being done by MHADA, these are matters of policy and are best left to the executive in its wisdom. The judiciary will not encroach upon executive privilege in that regard. There is no decision-making process that is brought before us for judicial review and thus it is not possible for this Court to simply dictate to MHADA what compensation ought to be paid and from when. We are therefore only noting that there is a policy in place.
13. Ms Jagtap states on instructions that the papers of 500 persons were scrutinised by the committee. Then, the claims of 175 persons were scrutinised for the purposes of payment of compensation and these persons have been given compensation as per the policy from March 2022.
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14. Ms Parasnis's complaint is that this has not received widest publicity, although Ms Jagtap says that there are in fact camps being conducted at site. But we believe Ms Parasnis is correct that after they were evacuated from site, original occupants have scattered and dispersed all over the city. Not all of them reside in or around Goregaon. They may well be elsewhere. The society does have an office. It also has records of the names of members and their current addresses.
15. We propose to deal with the issue of giving notice. We do so because we believe, and some of this is from past experience, that if there is not adequate notice, there will always be somebody who comes to Court and attempts to disrupt the entire scheme.
16. The positive direction to MHADA is therefore to issue a notice about its policy and its proposal, the procedure for making claims and so on and this is to be done in prominent vernacular and English newspapers namely Loksatta, Maharashtra Times and Times of India. We realise that these are expensive, but we believe this is in one sense an expense that will be less than a future expense in further litigation.
17. But we will go further. That notice itself may mention a dedicated internet link or URL, which we will provide. This will be a permanent link on the Bombay High Court website with a mention on the front panel of the Bombay High Court website. The entire notice will be available for viewing 24x7 until further orders of the Court.
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18. In addition, MHADA will ensure that Ms Parasnis herself is given a copy of the notice and proposals and other necessary documents so that she can communicate these to all the Petitioners. A copy is also to be given to the learned Advocate for the society and a printed copy of the notice is to be affixed on the society notice board as well.
19. The notices that are to be sent to Ms Parasnis and the Advocate for the society must be both in English and in Marathi. Similarly, the notice for publication on the website of the High Court will be in both languages.
20. We will keep the matter on 20th April 2023 so that MHADA can give us a proposed draft of the notice that is to be issued so that there is no controversy in that regard either.
21. Special provision will have to be made in the case of original occupants/tenants who have passed away. We anticipate that in many cases there will be rival claims from the heirs of the original eligible occupants/tenants. MHADA should not be caught in the cross fire amongst rival claims. For this reason, MHADA must take the appropriate administrative decisions internally so that all amounts that are found to be payable to a deceased eligible occupant or tenant are separately maintained not only in accounts but in a separate account. They are to be maintained until the question of entitlement is resolved. This resolution will follow the usual pattern. In other words, the claimant must either bring forward an NOC and relinquishment from all other heirs. Secondly, this NOC will have to Page 7 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:42:16 ::: 16-OSWP-2904-2019+.DOC be accompanied by the necessary affidavits and full-spectrum indemnities in favour of MHADA. It is also possible for all the heirs (again with supporting affidavits and indemnities) to agree that they will all be entitled either equally or in specified shares to the amount of compensation and to such shared rights in the premises to be finally allotted. Lastly, MHADA will of course act upon any document that is issued by a Court of competent jurisdiction pertaining to succession such as an heirship certificate, succession certificate, letters of administration, probate etc. MHADA will also be entitled at any stage to seek the assistance of the Court in regard to the premises, i.e., if it is thought necessary to protect the premises by appointing the Court Receiver of the premises so that there cannot be any later claims or adverse actions.
22. In previous orders we have dealt with claims made by private contractors who were putting up free sale components and their case that they were entitled to Occupation Certificates. We are not disturbing those orders today. But we had indicated even at that time that there may well be issues between MHADA and the private contractors/ developers of free sale buildings regarding monetary issues. We make it clear that we have not addressed or entered into that aspect of the matter at all and both MHADA and the special high power committee are entitled to proceed in accordance with law in that regard.
23. We say this because we understand that at least one of Ms Parasnis's clients is or was extremely enthusiastic at some point about challenging the entire MHADA NOC of ten years ago. To Page 8 of 9 17th April 2023 ::: Uploaded on - 18/04/2023 ::: Downloaded on - 18/04/2023 21:42:16 ::: 16-OSWP-2904-2019+.DOC what purpose is difficult to understand because it is impossible now to achieve a roll back of things that were done at some distant point in time. That would also be self-defeating, and as we explained in that order, while a person may believe that there is a point of principle, sometimes such principles are expensive, and they should certainly not come at the expense of others who do not share the same views. It is for this reason that we are endeavouring to lend our assistance to a completion of this very problematic and long- standing issue of the Patra Chawl redevelopment.
24. In the course of identification process, we have suggested to Ms Jagtap that our officers may use the Society's membership list or the list of 175 or the list of 500 mentioned above and to apply to it whatever available biometric data they can to prevent duplicate and fraudulent claims from being made hereafter. We believe this will be necessary not only to avoid further needless litigation but for the protection of the officers of MHADA themselves.
25. All suits and other proceedings that are pending before Single Judges of this Court or other Courts will proceed unaffected by this order and on their own merits.
26. List the matter on 20th April 2023 on the supplementary board for the purposes of finalising the notice to be issued.
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