Bombay High Court
Merit Magnum Construction (Formerly ... vs The State Of Maharashtra And 6 Ors on 9 March, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
Merit Magnum Construction & Anr v State of Maharashtra & Ors
6-OSWP-565-2020++J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL JURISDICTION
WRIT PETITION NO. 565 OF 2020
WITH
INTERIM APPLICATION NO. 2370 OF 2020
WITH
INTERIM APPLICATION NO. 817 OF 2023
WITH
INTERIM APPLICATION NO. 815 OF 2023
WITH
INTERIM APPLICATION NO. 818 OF 2023
WITH
INTERIM APPLICATION NO. 814 OF 2023
WITH
INTERIM APPLICATION (L) NO. 5189 OF 2023
IN
WRIT PETITION NO. 565 OF 2020
1. Merit Magnum
construction,
SHEPHALI
SANJAY (formerly known as Vimal Builders) a
MORMARE registered partnership firm having its
Digitally signed by
SHEPHALI SANJAY
MORMARE
office at Godrej Coliseum, A Wing,
Date: 2023.03.10
10:08:13 +0530 1301, 13th Floor, Behind Everard Nagar,
Off, Eastern Express Highway, Sion
East, Mumbai 400 022.
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2. Nainesh K Shah,
Partner of Petitioner No. 1, having his
office at Godrej Coliseum, A Wing,
1301, 13th Floor, Behind Everard Nagar,
Off, Eastern Expres Highway, Sion
East, Mumbai 400 022 ...Petitioners
~ versus ~
1. The State of Maharashtra,
through the Principal Secretary,
Housing Department, Mantralaya,
Mumbai 400 032
2. Chief Executive Officer,
Slum Rehabilitation Authority,
having office at Administrative Bldg,
Anant Kanekar marg, Bandra (E),
Mumbai 400 051.
3. Municipal Corporation of
Greater Mumbai,
Mahanagar Palika, Opp. CST, Mumbai
400 001.
4. Kalidas Kolambakar,
4, GD Ambekar Marg, Police Colony,
Sathe Nagar, Mumbai 400 014.
5. Wadala Village Welfare Co-
Operative Housing Society,
Nalanda Institute (Balwadi), Wadala,
Sewri X-Road, Wadala, Mumbai 00 031.
6. Nayab Tehsildar, SRA,
having office at Fifth Floor,
Administrative Bldg, Anant Kanekar
Marg, Bandra (E), Mumbai 400 051.
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7. Deputy Collector, SRA,
having office at Fifth Floor,
Administrative Bldg, Anant Kanekar
Marg, Bandra (E), Mumbai 400 051.
8. Apex Redressal Grievance
Committee,
a Committee established by
Government of Maharashtra having his
office at First Floor, Administrative
Building, Anant Kanekar Marg,
Bandra (East), Mumbai 400 051. ...Respondents
WITH
WRIT PETITION (L) NO. 5359 OF 2023
Neil Joseph Serrao,
Grandson of late Lily Dominic Serrao,
residing at House No. 844, 1st Floor,
Old Wadala Gaotha, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031. ...Petitioner
Adivas Mumbaika Shetkari
Samiti/ NYAS,
through its Founder & Chief Trustee,
Deepak Vidyadhar Patil, having its
Corresponding address at Charlie
Baptista House, 37/A, Anjaline,
Kolovery Gaothan, Village Kolekalyan,
Taluka Andheir, Mumbai Suburban
District, Kalina, Santacruz (East), ...Authority
Mumbai 400 029. Holder
~ versus ~
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1. Municipal Commissioner,
Municipal Corporation of Greater
Mumbai, having its office at Municipal
Head Office, Mahapalika Marg, Fort,
Mumbai 400 001
2. Assistant Commissioner,
the Nodal Officer, Municipal
Corporation of Greater Mumbai,
F/North Ward, 96, Bhau Daji Road,
Matunga (East), Mumbai 400 019
3. Assistant Commissioner
(Estate),
Mumbai Corporation of Greater
Mumbai, F/North Ward, Annexe
Building, 4th Floor, Mahapalika Marg,
Opp. CSMT Railway Station, Fort,
Mumbai 400 001
4. Chief Executive Officer,
Slum Rehabilitation
Authority,
having its Office at Administrative
Building, Anant Kanekar Marg, Bandra
(East), Mumbai 400 051
5. Collector and District
Magistrate,
having its office at Old Custom House,
Shahid Bhagat Singh March, Fort,
Mumbai 400 001
6. Merit Magnum ...Respondents
Construction,
(formerly known as Vimal Builders),
through its Partners (1) Kishor Shah,
(2) Nainesh Kishor Shah, & (3) Vimal
Kishor Shah, having its office at Godrej
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Everard Nagar, Off Eastern Express
Highway, Sion (East), Mumbai 400 022
WITH
WRIT PETITION (L) NO. 5360 OF 2020
1. Stanley James Farro,
Grandson of late Luis Farro, residing in
House No. 844/2, Old Wadala
Gaothan, Dadar Naigaum Division,
Sewri-Wadala Scheme No. 57, Mumbai
City Urban District, F/North Ward,
Wadala (West), Mumbai 400 031
2. Elima John Barretto,
daughter of late Magrete John Baretto,
residing in House No. 863/1, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
3. Archie Ignatius Serrao,
grandson of late SD Serrao, residing in
House No. 863/2, Old Wadala
Gaothan, Dadar Naigaum Division,
Sewri-Wadala Scheme No. 57, Mumbai
City Urban District, F/North Ward,
Wadala (West), Mumbai 400 031
4. Vidya Mallet Serrao,
great-grand-daughter-in-law of late
Mary Theriza Dominic Serrao, residing
in House No. 863-A/1, Old Wadala
Gaothan, Dadar Naigaum Division,
Sewri-Wadala Scheme No. 57, Mumbai
City Urban District, F/North Ward,
Wadala (West), Mumbai 400 031
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5. Trisa Jem Disoza,
residing in House NO. 865/2 & 3, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
6. Anthony Dominic Barretto,
grandson of late Andrina alias Andrex
Sabestian Barretto, residing in House
Nos. 865/5 & 6, Old Wadala Gaothan,
Dadar Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward,
Wadala (West), Mumbai 400 031
7. Allwyn Ignatius Fernandes,
grandson-in-law of late Francis
Fernandes of late Walter Francis
Fernandes, residing in House No.
876/3, Old Wadala Gaothan, Dadar
Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
8. Sebastian Joseph D'souza,
son of late Joseph J D'Souza, residing
in House No. 879-A/4 & 5, Old Wadala
Gaothan, Dadar Naigaum Division,
Sewri-Wadala Scheme No. 57, Mumbai
City Urban District, F/North Ward,
Wadala (West), Mumbai 400 031
9. Angeline Raphael Gomes,
residing in House No. 879-A/1/2, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
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Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
10. Flora Neville Tixeira,
Transferee late Lily Dominic Serrao,
Transferor, residing in House No.
844/4, Old Wadala Gaothan, Dadar
Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
11. Roger Edward Quadros,
through Transferee residing in House
No. 844/5, Old Wadala Gaothan, Dadar
Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
12. Theresa Dominic Vera,
great-grant-daughter-in-law of Ajmera
Sayar Fera, Transferee of late Santan
Manuel Pereira, residing in House No.
856/6, Old Wadala Gaothan, Dadar
Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
13. Jude Vincent Patel,
Occupier of Late Dhanubai Francis
D'Souza, residing in House No. 878-
A/1, Old Wadala Gaothan, Dadar
Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
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14. Bhajahari Basori Mondal,
Transferee of late Francis Gonsalves,
residing in House No. 879A-4, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
15. Itor Anthony SerraoLate,
Occupier late Monica Enas Periera,
residing in House No. 880/3, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
16. Melwyn Patrick Gracious,
Occupier of late Monica Enan Pereira,
residing in House No. 880/4, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
17. Sharon Ganesh Iyer,
grand-daughter of late Antony Philips
Prera, residing in House No. 866, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
18. Mohammed Salim
Rehmatulla Shaikh,
Transferee of Abdul Latif Abdul
Rehman, carrying out small-scale retail
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commercial activities from Bakery No.
860-A, Old Wadala Gaothan, Dadar
Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
19. Maruti Gunaji Shelar,
son of late Gunaji Vithal Shelar,
residing in House No. 879/3, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
20. Pradeep Balkaran Chauhan,
one of the legal heirs of late
Shamsunder Mangal, changed to RS
Chauhan Bottle Shop, carrying out
small-scale retail commercial activities
from Shop No. 1, Old Wadala Gaothan,
Dadar Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
21. Vijay Hiralal Jain,
one of the legal heir of late Habibullah
Noor Shaffi, carrying out small-scale
retail commercial activities from Shop
No. 2, Old Wadala Gaothan, Dadar
Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
22. Akram,
one of the legal heir of late Mohd
Munirao Mohd Anif, carrying out
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small-scale retail commercial activities
from Shop No. 3, Old Wadala Gaothan,
Dadar Naigaum Division, Sewri-Wadala
Scheme No. 57, Mumbai City Urban
District, F/North Ward, Wadala
(West), Mumbai 400 031
23. Dalpat Singh Gopal Singh
Rathod,
purchaser from Madhukar Shankar
Sawant, carrying out small-scale retail
commercial activities from Shop No. 5,
Geeta Medical & General Store, Old
Wadala Gaothan, Dadar Naigaum
Division, Sewri-Wadala Scheme No. 57,
Mumbai City Urban District,
F/North Ward, Wadala (West),
Mumbai 400 031
24. Anant Shivram Devlekar,
son of Anandibai Shivram Devlekar,
residential-cum-commercial, carrying
out small-scale retail commercial
activities from Shop No. 6, Old Wadala
Gaothan, Dadar Naigaum Division,
Sewri-Wadala Scheme No. 57, Mumbai
City Urban District, F/North Ward,
Wadala (West), Mumbai 400 031
25. Abdul Rashid Abdul Majid,
Kerosene Supplier, Shop No. 4, Six
Sops Patra Shed, Wadala Sewri Cross
Road, Mumbai 400 031 ...Petitioners
~ versus ~
1. Municipal Commissioner,
Municipal Corporation of Greater
Mumbai, having its office at Municipal
Head Office, Mahapalika Marg, Fort,
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Mumbai 400 001
2. Assistant Commissioner,
the Nodal Officer, Municipal
Corporation of Greater Mumbai,
F/North Ward, 96, Bhau Daji Road,
Matunga (East), Mumbai 400 019
3. Assistant Commissioner
(Estate),
Mumbai Corporation of Greater
Mumbai, F/North Ward, Annexe
Building, 4th Floor, Mahapalika Marg,
Opp. CSMT Railway Station, Fort,
Mumbai 400 001
4. Chief Executive Officer,
Slum Rehabilitation
Authority,
having its Office at Administrative
Building, Anant Kanekar Marg, Bandra
(East), Mumbai 400 051
5. Collector and District
Magistrate,
having its office at Old Custom House,
Shahid Bhagat Singh March, Fort,
Mumbai 400 001
6. Merit Magnum
Construction,
(formerly known as Vimal Builders),
through its Partners (1) Kishor Shah,
(2) Nainesh Kishor Shah, & (3) Vimal
Kishor Shah, having its office at Godrej
Everard Nagar, Off Eastern Express
Highway, Sion (East), Mumbai 400 022 ...Respondents
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A PPEARANCES
for the petitioner Mr Aspi Chinoy, Senior Advocate,
in wp/565/2020 and with Mayur Khandeparkar,
for the respondents Hrushi Narvekar, Aneesa
in wpl/5359/2023 and Cheema,Samit Shukla, Parag
wpl/5360/2023 Kabadi, Abhishek Kothari &
Anish Shahapurkar, i/b DSK
Legal.
for the petitioner Ms Sulendra John Farro
in wpl/5359/2023 and
wpl/5360/2023
for respondent no.1- Mr Hemant Harayan, AGP, with
STATE in wp/565/2020 Amit Shastri, AGP.
for the applicant in Mr Ranjeet Thorat, Senior
ia/818/2023 Advocate, i/b Kuldeep Singh.
for the applicant in Mr AS Khandeparkar, Senior
ia/814/2023 Advocate, i/b Kuldeep Singh.
for the applicant in Mr Kuldeep Singh.
ia/815/2023,
ia/816/20223 &
ia/817/2023
for respondent no.1- Mr Himanshu Takke, AGP.
STATE in
wpl/5359/2023 and
wpl/5360/2023.
for respondent no. 4 Mr Abhishek Bhat, i/b SK Legal
in wp/565/2020 Associates LLP.
for respondent- Mr Sagar Patil.
MCGM
for respondent no. Mr Jagdish G Aradwad (Reddy).
8- AGRC
for respondent-SRA Mr Vijay Patil.
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CORAM : G.S. Patel &
Neela Gokhale, JJ.
DATED : 9th March 2023 PC:-
1. We are told that of the 64 persons (60 municipal tenants and four VLTs), all but one have been evacuated from the project site.
The structures are demolished. One person continues because the young child in the family is presently sitting for the 10th standard board examination and the family has therefore been given an extension of time to vacate. That is appropriate and we are therefore not making any peremptory orders in that regard.
2. Mr Chinoy for the Petitioners submits two additional Affidavits. The Affidavit from page 668 to 670 of Nainesh Shah and affirmed on 6th March 2023 has a list of the municipal tenants and the VLTs. This Affidavit is to be filed in the Registry.
3. The second Affidavit, also of 6th March 2023 of Nainesh Shah, which is from page 671 to 677 has several Exhibits that were earlier given to us in a compilation. We had required these to be placed on Affidavit so that they could be referenced. That second Additional Affidavit is also to be filed in the Registry.
4. We turn to that the second Additional Affidavit now. Paragraph 3 of that Affidavit tells us that the plot has five buildings. These are Rehab Building No.1, Wing 'A' ("RB 1A"), and Rehab Page 13 of 23 9th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc Buildings Nos. 2, 3, 4 and 5. The construction of Rehab Building No. 2 is complete. There is an Occupation Certificate ("OC") dated 3rd October 2013. RB 1A is nearing completion. About 98% is complete. It can accommodate 201 units (188 rehab residential units, 11 rehab commercial units and two balwadis). The developer is in the process of obtaining an Occupation Certificate ("OC"). This has been held up for reasons set out in the Affidavit and which we will consider immediately.
5. To complete the status aspect, construction of Rehab Buildings Nos. 3, 4 and 5 is yet to commence but will be done in the schedule as set out in the Affidavit of 9th January 2023.
6. As regards the OC for RB 1A, the issues are set out in paragraph 4 and its sub-paragraphs. It appears that the Chief Fire Officer ("CFO") granted a No Objection Certificate ("NOC") on 10th July 2012. That NOC required that open space be maintained around the structure inter alia for fire tender movement. Within the open space access way requirement, there are 22 slum structures. Their existence impedes the clear movement along the access way. There are two Transit Buildings temporarily housing slum dwellers. Details of occupancies are at Exhibit "C". These structures also come in the way of complete compliance with the CFO requirements. Transit Buildings Nos. 1 and 2 are also in close proximity to RB 1A. A map showing the 22 slum structures and the two Transit Buildings is annexed at Exhibit "D" at page 689. The two transit buildings and the slum structures in the CFO access route are shown in this map in orange.
Page 14 of 239th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc
7. Obviously, this problem has to be resolved in the interest of all concerned, particularly those entitled to rehabilitation and re- accommodation in RB 1A. The developer issued letters on 1st December 2022 and 30th January 2023 to the occupants of the slum structures and the transit buildings to vacate these and assured transit rent of Rs.15,000/- per month for 11 months. The developer also wrote on 10th February 2023 to the Slum Rehabilitation Authority ("SRA") for assistance. The occupants of these structures refused to vacate. There are apparently police complaints. The Petitioners have responded.
8. The developer says that because these structures cannot be demolished, there is a cascading effect. As a result: the CFO'S NOC remains without compliance. Consequently, RB 1A will not receive an OC. Therefore, those who are eligible and entitled to permanent alternate re-accommodation in RB 1A cannot be shifted there. There is, too, the continued fire risk because movement of fire tenders is impeded. The continuance of the slum structures and the two transit buildings is therefore jeopardizing the whole project.
9. The Affidavit seeks the assistance of the Court and then in paragraph 6 and sub-paragraph (a) to (d) suggests the following:
"(a) The Petitioners are ready and willing to pay transit rent of a sum of Rs.15,000/- per month (as being paid to other slum dwellers), to the occupants of Transit Building Nos. 1 and 2, upon them handing over vacant and peaceful possession of their tenements to the Petitioners, till the time they are given permanent rehabilitation;
(b) Out of the 22 obstructing structures: 9 structures are Page 15 of 23 9th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc occupied by persons whose names appear in the Annexure II, 12 structures are occupied by persons whose eligibility process is pending or their names do not appear in the Annexure II and 1 structure is a toilet. In so far as the 9 structures are concerned, they will be provided with the same transit rent of a sum of Rs.15,000/- per month for a period of 11 months from the date of handing over vacant possession of the structure for demolition till the time they are given permanent rehabilitation. In so far as the 12 structures are concerned, the Petitioner No.1 is ready and willing to provide them with the same transit rent as the 9 structures set out above, till the time they are given permanent rehabilitation, however: [I] on a strictly without prejudice basis; [ii] subject to the occupants of these 12 structures forthwith and immediately filling appropriate applications to secure their eligibility with the BMC and the BMC deciding the same within a period of 3 months; [iii] subject to the occupants of these 12 structures forthwith giving indemnities in favour of the Petitioners with regard to indemnifying the Petitioners in relation to all benefits received by them from the Petitioners, in the event they are found not to be eligible by the BMC;
(c) Prior to vacation/demolition of the 22 structures, the BMC carry out a survey in respect of the structures that do not form a part of the Annexure II and thereafter proceed with the demolition of the same;
(d) The vacation and demolition be undertaken under within a period of 4 weeks the supervision of the Asst Commissioner of BMC (F/North) and the SRA Nodal Officer who has been assigned this project, who will be entitled to use police assistance, if required."
10. We will dispense with the requirement for a formal Interim Application with sub-paragraphs 6(a) to (d) as prayers and will Page 16 of 23 9th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc consider these as the reliefs that are sought. This is also noted in a separate two-page note with annexures that is handed up by Mr Khandeparkar and which we take on record for completeness marking it "K1" for identification with today's date.
11. To begin with, we do not think that the Matunga police station should be entertaining police complaints in this regard at all when the matter is pending before the High Court. The Petitioners must place a copy of this order before the Matunga police station. Any person affected or with a grievance must approach this Court by filing an Interim Application in this Writ Petition.
12. The structures that come in the way of the CFO access route are broadly of two descriptions. There are, first, the transit buildings. Then there are the slum structures. The transit buildings were meant as temporary accommodation in any case. They are in no sense permanent accommodation, and they have not even been constructed as such. Those in transit accommodation -- and we clarify this to mean those legitimately in transit accommodation, not illegal or unlawful transferees -- in the two transit buildings, must be prepared to move either to some other transit building or to accept transit rent if alternative transit accommodation is not available. These persons cannot claim any permanent rights in the transit building.
13. The slum structures on the access way, are of course to be treated like all slum structures everywhere. They need to be surveyed and the eligibility of the occupants of those structures, Page 17 of 23 9th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc whether residential, commercial or a combination of the two must be assessed. This will address the question of whether these persons are entitled to re-accommodation or not.
14. In either scenario, as regards the slum structures, demolition must proceed, though certainly in a systematic organized and planned manner. There can be no question of allowing the slum structures to continue at the present location or of regularising them there. That would bring the entire project to a halt. What the Petitioners are suggesting now is a temporary or a bridge provision even regarding those whose eligibility is as yet undecided.
15. To be perfectly clear, of the 22 slum structures, there are already 9 persons who have been found to be eligible. Twelve other occupants are yet to have their eligibility finally decided. One structure is a toilet block. In regard to the 12 persons in the slum structures whose eligibility process is pending, the Petitioner has offered on Affidavit to pay transit rent at the rate of Rs.15,000/- per month to each of the occupants for 11 months in advance from the date of delivery of vacant possession and on a without prejudice basis. If those persons are ultimately found to be eligible, then they will be undoubtedly be entitled to the execution of a Permanent Alternate Accommodation Agreement ("PAAA"), participation in a lottery for allotment and in the meantime transit rent at a rate offered to others or to transit accommodation as may be available. Before demolition, however, the Municipal Corporation of Greater Mumbai ("MCGM") must carry out a survey of all these 22 structures and have them precisely mapped.
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16. While the suggestion is that the survey should be limited to those structures that are not part of the Annexure II, we believe this may cause confusion. The survey should clearly indicate of all 22 structures and should indicate which of the structures have passed through the eligibility process and which of the structures/occupants are yet pending a decision on eligibility.
17. As regards the transit buildings, the developers make a similar offer of payment of Rs.15,000/- per month for 11 months rent in advance. There is no question, as we noted, of these persons claiming permanent rights of occupancy in the transit buildings.
18. There are 155 persons in occupation in the two transit buildings, transit Building No.1 and transit Building No.2. Their names are given at pages 684 and 685. Their names, transit room numbers and the floor on which those transit rooms are all noted.
19. We direct the SRA to prepare a proforma notice which will clearly indicate a date by which the transit buildings are to be evacuated or vacated by each occupant. The time for this will not be less than three weeks from the date of the notice. The notice will clearly state that each of the persons in occupancy will be entitled to 11 months' advance transit rent of Rs.15,000/- per month. The notice must also mention the present main writ petition number 565 of 2020 and must clearly state that any application must be made before this Court in an Interim Application and not before the City Civil Court or to any police authority. None of the persons in the transit building can claim any rights independent of the project or Page 19 of 23 9th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc any right to permanent alternate accommodation in or continued occupancy of the transit buildings. The notice must also state that if there is non-compliance such persons may be forcibly evicted. A copy of the notice must be pasted on each of the transit buildings in more than one location apart from being left at or pasted on the door of each of the rooms in those premises.
20. It is not possible to accelerate this process or to require these persons to move out within a shorter period of time. Indeed, even three weeks might be too short at a time; we will consider that later, if need be.
21. The Registrar General is requested to forward a copy of this order to the Registrar of the City Civil Court both in Mumbai and in Dindoshi intimating the Registry of those Courts that under no circumstances are those Courts to entertain any applications whether for stay or otherwise in regard to this project. We are taking the liberty of saying this because the consequences of a stay obtained by one person will have much wider consequences and might well result in the stoppage or the delay of the entire project, thereby prejudicing several hundreds of other who are waiting for the rehabilitation.
22. Mr Khandeparkar points out that there may be some persons amongst the 155 in transit buildings who may be immediately entitled to permanent alternate accommodation in an already constructed rehab building. Such persons must be clearly identified by the SRA so that they can be moved to their permanent rehab Page 20 of 23 9th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc homes. For such persons no question of transit rent for 11 months will arise, but they will be entitled to transit rent only for such duration until they are actually put in possession of their permanent alternate accommodation.
WRIT PETITION (L) NO. 5359 OF 2023 AND WRIT PETITION (L) NO. 5360 OF 2023:
23. Ms Farro states that one of the structures proposed to be demolished is a bakery. Her request is that some arrangement be made to allow that person to temporarily set up a bakery so that he can earn a livelihood until he is given permanent alternate commercial premises. We proceed for now on the footing that this person is eligible although this is not clearly stated before us. Everything is subject to his eligibility. We leave it open to the person who is one of the Petitioners, to make an appropriate application to the MCGM. That application is to be considered urgently. We however make it clear whether the MCGM says so or not, any such application will be on a no equities basis, meaning that the person/baker cannot claim to continue in any temporary arrangement permanently or beyond a period after which structure is required to be removed.
24. Mr Thorat and Mr Khandeparkar appear for some of the municipal tenants whose homes have been demolished after they vacated it. They say that some of their clients are being offered premises considerably smaller than what the original municipal tenants occupied. They also submit that a municipal tenant cannot Page 21 of 23 9th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc be equated for any purposes with a slum dweller, since the occupancy of the municipal tenant is not unauthorised and since the structure itself of which the person is in occupation is not illegal or in any sense an encroachment. They therefore say there cannot be subjected to the discipline of the Slum Rehabilitation Act, 1971which is meant for those in illegal occupation or those who have encroached and whose structures and occupancies are in their inception unauthorised. On this basis, the submission is that municipal tenants who had large premises cannot now be expected to shift to smaller premises. At the very least, they must receive rehabilitation premises in any rehabilitation or rehousing programme of an area at least equivalent to what they used to occupy, if not larger.
25. There is a second aspect to this as well. The original municipal tenant may have passed away and his heirs may have split the premises, whether for convenience or otherwise into smaller component units or tenements. Mr Thorat submits that there is a policy of the MCGM that recognises such a splitting of an original occupancy/tenements.
26. It is Mr Thorat's submission that each of these occupants must be separately reckoned and must be separately entitled to premises. Here his argument is not that the claimant should now get area-for-area or inch-for-inch but that each of the claimants of the smaller area should now get a larger area.
Page 22 of 239th March 2023 Merit Magnum Construction & Anr v State of Maharashtra & Ors 6-OSWP-565-2020++J.doc
27. Mr Thorat's submission is contested both by Mr Chinoy for the developer and Mr Sagar Patil for the MCGM. They say there is no such policy. We are merely noting these submissions. We are expressing no view on this.
28. That said, we do not think it would be appropriate for either Mr Thorat or Mr Khandeparkar to make an application on this basis before the MCGM because that would undoubtedly lead to yet another round of litigation. It would be more efficient if those submissions were to be put in the form of an Interim Application on behalf of specifically identified municipal tenants before this Court in this Writ Petition. We say this because in the present Writ Petition the developer, all the authorities including MCGM, and all claimants are already parties and there need not be any further delay for matters like service, etc.
29. Mr Thorat and Mr Khandeparkar say that it will take about a week to prepare file and serve the Interim Applications. We give them liberty to inform the Court Associate when the Interim Applications are filed so that the matter can be immediately listed thereafter for directions.
30. Subject to this liberty, we list the Petition itself for further orders on 10th April 2023.
(Neela Gokhale, J) (G. S. Patel, J)
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