Bombay High Court
Khairun Bi Alimuddin Shaikh And Ors vs Slump Rehabilitation Authority And Ors on 4 August, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
501-502-OSWPL-37570-2022+F.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 37570 OF 2022
Basera CHSL ...Petitioner
Versus
Slum Rehabilitation Authority ...Respondent
WITH
WRIT PETITION NO. 9302 OF 2023
Vali Mohammed Ibrahim Kherani & Ors ...Petitioners
Versus
Slum Rehabilitation Authority through Chief ...Respondents
Executive Officer
WITH
WRIT PETITION NO. 9305 OF 2023
Khairun Bi Alimuddin Shaikh & Ors ...Petitioners
Versus
Slum Rehabilitation Authority through Chief ...Respondents
Executive Officer
Digitally
signed by
ASHWINI
ASHWINI GAJAKOSH
GAJAKOSH Date:
Mr Rajesh Kanojiya, for the Petitioner in WPL/37570/2022.
2023.08.05
16:45:29
+0530
Ms Pragya Mishra, with Rohan Surve, for the Petitioners in
WP/9302/2023 & WP/9305/2023.
Mr Jagdish G Aradwad (Reddy), for Respondents Nos. 1 & 2 in
WPL/20054/2023 & WPL/20058/2023 and Respondent Nos. 1
to 5 in WPL/37570/2023.
Mr Mayur Khandeparkar, with Aditya Miskita, Neha Mehta &
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Aayushi Gohil, i/b MT Miskita & Co, for Budhpur Buildcon Pvt
Ltd.
Mr Sukanta Karmakar, AGP, for the Respondent-State.
Mr PG Lad, with Sayli Apte & Shreya Shah, for the Respondent-
MHADA.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 4th August 2023 PC:-
1. This is a most regrettable state of affairs. Writ Petition (L) No. 37570 of 2022 is by a society and nine others. It is to be finally numbered by the next date. Writ Petitions No. 9302 of 2023 and 9305 of 2023 are by individuals.
2. We have before us separately, a submission from the Registry. It makes for the most disturbing reading.
3. The project in question is an enormous project at village Kolekalyan, Bandra Kurla Complex. The original developer of the slum rehabilitation project was Housing Development and Infrastructure Pvt Ltd ("HDIL") which is now in all kinds of difficulties and has a resolution professional. Budhpur Buildcon has a Letter of Intent ("LOI") from Slum Rehabilitation Authority ("SRA") which is now represented before us. Maharashtra Housing and Area Development Authority ("MHADA") confirms through Mr Lad, that SRA is the special planning authority.
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4. The submission from the Registry indicates that when this matter was first moved before us for an urgent listing and ad-interim relief, we declined circulation. But then in the written submission to the Registry, the Advocates purported to set out what according to them was "orally observed" by this Bench including the utterly remarkable statement attributed to us that because the Petitioners are slum dwellers, they have no right to be heard. We are also alleged to have said that the Petitioners can approach the Registry for taking appropriate steps, whatever that is supposed to mean. These statements are demonstrably incorrect as are all other statements attributed to us. We could never have said that slum dwellers have no locus. That would be contrary to 40 years of law and the statute apart from several dozen of our own judgments brought in Petitions before us by slum dwellers and societies.
5. But what is not mentioned is that there is another large group of matters in which we made a 54 page order on 19th and 20th June 2023. For completeness and since these Petitioners are given, as we shall presently see, to moving Bench after Bench and Court after Court, we append a copy of that order to this order.
6. Apart from anything else, in that order we noticed that there is wholesale misdealing and racketeering in not only SRA rehab tenements but also in slum rehabilitation entitlements. There is at least one instance noted in that order of a person similarly situated as these Petitioners who is said to have received a staggering amount of Rs. 3.26 crores as transit rent from the earlier developer. Others are said to be trafficking in rehab tenements that were already Page 3 of 8 4th August 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: 501-502-OSWPL-37570-2022+F.DOC constructed. Individuals have obtained multiple allotments. Sometimes there are multiple allotments in the same project or across different projects by different members of the same family. Then there are people who have received amounts in double digit lakhs but cannot explain why these are received. We took the trouble of asking for the assistance of the Resolution Professional of HDIL and he is currently coordinating with SRA and Budhpur Buildcon to reconcile financial records. In the meantime, SRA is carrying out an extensive audit. We also had a report from SRA itself which we noted showing the extent of wrongdoing throughout SRA projects.
7. These Petitioners have moved at least, by our count, four different Benches including the Hon'ble the Chief Justice, the bench headed by the Hon'ble Mr Justice Shukre, the Hon'ble Mr Justice NR Borkar sitting singly and now we are told today itself in a writ before the Hon'ble Mr Justice Milind Jadhav. The submission from the Registry shows us that the application was at any cost to avoid a listing before this Bench despite the fact that we have passed our order of 19th and 20th June 2023 as a common order in at least 15 Writ Petitions and it covers this very project site.
8. These Petitioners are directly located on that portion of the project site that is scheduled immediately next for rehab development.
9. The submission before us is simply that these persons cannot be evicted from site and the project must be brought to a standstill at their instance.
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10. To begin with they claim to be tenants of MHADA. This is stoutly denied by Mr Lad for MHADA who says that the record itself shows that they are trespassers on MHADA land and are therefore covered by the SRA project.
11. Then there is a challenge to the LOI issued to Budhpur Buildcon asserting that this society namely the Basera Co-operative Housing Society Limited is the only registered society. But this is a misdescription because even before us on 19th and 20th June 2023 there were at least three societies including two represented by Mr Rebello and Ms Mistry. We heard them as well.
12. The next argument seems to be that transit rent has 'not been decided'. This is factually incorrect and Mr Reddy on behalf of SRA points out that not only has rent been decided but that HDIL claims to have paid rent at that rate and Budhpur Buildcon for its part has accepted the amount that is payable as transit rent. The argument that transit rent "has not been decided" is utterly incorrect.
13. Then there is an argument that Budhpur Buildcon should at the instance of this one society be removed from the project because its LOI was subject to conditions to be fulfilled in three months. But this society is not the only society on site and it makes no difference to us whether it is registered or is proposed. We are concerned with all the slum dwellers on site.
14. In the general scheme of slum rehabilitation law, no exception can be made for these persons. We do not propose to reinvent Page 5 of 8 4th August 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: 501-502-OSWPL-37570-2022+F.DOC settled law of several decades' standing. There is no dispute that a survey has been carried out of the structures. This is the initial requirement in any slum rehabilitation project. After this comes the process of determining eligibility. Eligibility is based on documents. It has nothing whatever to do with the continuance of structures on site. Those who are found eligible will receive according to the directions and under supervision of the SRA, transit rent from the date they vacate, Permanent Alternative Accommodation Agreements ("PAAA") after they vacate and other benefits as required under the Letter of Intent and under SRA law. Those who are found ineligible are not entitled to these benefits. In either case, demolition must proceed.
15. What is now being suggested is self-contradictory, viz., that transit rent must be paid in advance before vacating, a PAAA must be paid in advance before vacating, that eligibility somehow depends upon the continuance of structures and that in any case since Budhpur Buildcon's appointment is challenged, there is nobody to pay transit rent and therefore the Petitioners cannot be evicted. To describe this as mischievous is an understatement.
16. Our order of 19th and 20th June 2023 points out the numbers involved. There are 1,336 slum dwellers in transit camps. There are another 111 slum dwellers who were Petitioners before us. The entire project covers a vast area of over 70,000 sq mtrs. Of the original 2,965 slum dwellers, 2,622 have been found eligible. Of these, 996 have been rehabilitated already. Another 1,428 are awaiting rehabilitation and 1,336 slum dwellers are in transit camps.
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17. According to the Petitioners, all this must be brought to a halt because of their demands and if they do not receive orders in one Court they will simply go to some other Court, and if not that Court, then to yet another Court and so forth until the end of the chapter and until they receive a favourable order.
18. We deprecate the conduct of the Petitioners in what is clearly an attempt at forum shopping.
19. Since learned Advocate for the society seriously wishes to urge before us that Budhpur Buildcon has no authority at all in law to continue as a developer, that MHADA and not SRA is the designated planning authority, that there can be no slum rehabilitation project but that this must be a MHADA redevelopment project, and since this matter was mentioned at 10:30 am today and only for that reason and so as to not disadvantage the Advocates for the Basera society and the individuals in the other two Petitions, we will list the matter first on board on Tuesday, 8th August 2023. After it was mentioned this morning, we kept it at 12:30 pm and asked the Petitioners to give notice to all. This is how Mr Khandeparkar for Budhpur Buildcon, Mr Reddy for SRA and Mr Lad for MHADA are in Court today. Undoubtedly, they will need to take a closer look at the Petitions also.
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20. We have also in our previous orders anticipated precisely this issue of different people going to different Courts and getting conflicting orders, and therefore directed that all applications must be made before this Court (or as per the extant roster). The Petitioners will therefore not proceed with any other matter in any other Court and Advocates in all three Petitions assure us that they will not press any of the other Petitions between today and Tuesday, 8th August 2023. That statement is accepted and noted as an undertaking to the Court.
21. Since there is a record from the Registry, a copy of this order is also to be forwarded to Shri HM Bhosale, Registrar, Judicial-I and the Prothonotary and Senior Master, Shri SB Bhansali, for completeness.
22. List the matter first on board on 8th August 2023.
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KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc Shephali REPORTABLE 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. 9655 OF 2023 IN WRIT PETITION NO. 3483 OF 2021 WITH INTERIM APPLICATION NO. 140 OF 2021 Sattar Malang Shaikh & Ors ...Petitioners Versus Apex Grievance Redressal Committee & Ors ...Respondents WITH WRIT PETITION (L) NO. 480 OF 2020 Ranjit Inder Dulgaj & Ors ...Petitioners Versus Page 1 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc 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 Versus The Slum Rehabilitation Authority & Ors ...Respondents WITH WRIT PETITION NO. 727 OF 2020 WITH Page 2 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc 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 IN WRIT PETITION (L) NO. 2217 OF 2019 WITH INTERIM APPLICATION NO. 523 OF 2019 Page 3 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc 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. 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 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 Page 4 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc 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 Atiqa Noor Mohd Shaikh & Ors ...Petitioners Versus The Slum Rehabilitation Authority & Ors ...Respondents WITH WRIT PETITION (L) NO. 35621 OF 2022 Maqsood Ahmed Shaikh ...Petitioner Versus Page 5 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc The Slum Rehabilitation Authority through Chief ...Respondents Executive Officer Mr Yousuf Khan, for the Petitioners in WPL/2217/2019. Ms N Baig, i/b Yousuf Khan, for the Petitioners in WPL/803/2020. Mr S Mansuri, for Petitioners in WPL/30845/2022 Mr Ankit Lohia, for the Applicant in IAL/9655/2023. Mr Karl Tamboly, with Swapnil Khatri & Avinash Kumar Mishra, for the Applicants (Hussain Hasan Khan & Ors). Mr GP Khan, for the Petitioners in WPL/727/2020. 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, for the Applicants/ Petitioners in WP/3517/2021. Mr Nitesh Acharya, with Altaf Khan & Supriya Ghadge, for the Petitioner in WP/3531/2021 & WPL/25057/2021. Mr Altaf Khan, with Supriya Ghadge, for the Petitioner in WPL/480/2020 & WPL/720/2020.
Mr Kunal Dwarkadas, with Tushar Kochale, Ajay Jankar, Bhavika Solanki & Binjal Somania, for the Petitioners in WP/3279/2022, WPL/7486/2023, WPL/7714/2023 & IA/720/2023. Mayur Khandeparkar, with Aditya Miskita, Viren Miskita, Neha Mehta, Aayushi Gohil & Akshay Dayalkar, 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 Page 6 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc WP/7714/2023, WP/3483/2021, WPL.480/2020, 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, I/B Abhijeet Desai, i/b Desai & Desai Legal, for Respondents Nos. 6 and 7 in WP/727/2020.
Mr Ronghe, for Respondent Nos. 11 to 14, 17, 18, 20, 21 in WP/3483/2021, for Respondents Nos. 8 to 12 in WP/3517/2021 & for the Applicant in 12 in IA/17766/2022. Mrs Rathina Maravarman, with Akanksha Hambir, for the Respondent-Central Bank of India.
Ms Amita Kamble, i/b Kshitija Wadatkar & Associates, for Respondent No. 25, in WP/3517/2021, for Respondent No. 24 in WPL/480/2021, for Respondent No. 19 in WPL/720/2020 & for Respondent No. 34 in WP/3483/2021.
Mr Yogesh Patil, with Abhijit Patil i/b Vijay Patil, for the Respondent-
AGRC in WP/25057/2021, WP/3531/2021, 3517/2021. Mr Girish Utangale, with Saurabh Utangale & Rohan Sawant, for the Respondent-MHADA in all Petitions.
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 Karmarkar, AGP, for the Respondent State in WPL/803/2020 and WPL/35590/2022.
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 Shantanu M Shetty, i/b Manohar V Shetty, in IA/ 140/2021 for some of the parties.
Mr Shashikant Surana, i/b Madhur Surana, for the Resolution Professional.
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CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 19th & 20th June 2023
PC:-
1. Something is rotten in the state of the SRA. This case for the first time gives us numbers. And these numbers are not only frightening but they point to what we can only describe as an ongoing fraud on statute at various levels, and widespread trafficking in free-of-cost slum rehabilitation tenements. Even with these numbers, there are many things still unknown and to be investigated.
2. To set the stage for what follows, we have reference to our order of 22nd March 2022, over a year ago. We took an unusual step in that order for we first released it on draft on that date and then in final form two days later on 24th March 2022 after all before us had an opportunity to make suggestions on the factual aspects. We reproduce the relevant portions of the order of 22nd March 2022:
CORAM: G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 22nd March 2022 (in draft)
24th March 2022 (final)
PC:
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KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc (This order was dictated in Court on 22nd March 2022, and was expressly stated to be made available in draft for corrections and necessary changes. The present order is after discussion in court. A separate order dated 24th March 2022 has been dictated and uploaded, setting out these circumstances and further particulars.)
1. This order is likely to be the first of several directions we believe are going to be necessary for the progress of the SR scheme on plots bearing CTS Nos. 5370 (pt.), 5371 (pt.), 5372 (pt.), 5373 (pt.), 5390 (pt.) 7643 (pt.) and 4207 (pt.) of Village Kolekalyan, Bandra- Kurla Complex, Mumbai H/E Ward. The project is vast: it covers 70,242.37 sq mts, equivalent to about 17.35 acres. There were 2,965 slum dwellers here. Of these, 2,622 were found eligible for rehabilitation. Of those, 996 have been rehabilitated already; 1,428 others await rehabilitation. About 1,336 slum dwellers are in transit camps, and 1,286 persons are on transit rent. About 3,896 tenements (including surplus tenements) are to be constructed.
2. Before us, there are 111 slum dwellers as Petitioners. The original developer HDIL has been -- for want of a better word -- extinguished.
(a) There are seven slum SRA societies. Most are unregistered. Almost all are non-functional.
(b) SRA and the other authorities must now proceed to take action in accordance with law to have these societies registered.
(c) We expect the CEO, SRA or the Deputy Registrar, Cooperative Societies, SRA to issue the necessary directions in this behalf. We do so because we fully anticipate requiring the Societies to be active and able to participate in the time ahead.
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(d) The CEO, SRA and the Deputy Registrar are at liberty to apply to this Court if any assistance is needed.
(e) On the question of registration of the unregistered societies, all applications must, in the first instance, be made to this Court in these proceedings and not to any other court or tribunal. We do not want our orders in these matters to be met with conflicting orders from any other quarter.
3. Budhpur Buildcon now comes in as a recognized co- developer. It is confronted with several question, including, importantly for our immediate purposes, its liability for transit rent arrears and other aspects relating to its being the successor co-developer for the entire SR project. This use of the word 'co-developer' should not be misconstrued. The earlier developer, HDIL, has fallen by the wayside. The expression 'co-developer' used for Budhpur Buildcon is only clarificatory, i.e. that it is not entirely an outsider developer coming in for the first time.
4. One of the most significant complications in this SR scheme is that a fundamental facet, namely the transit rent payable to eligible slum dwellers, has never been fixed. We find this is utterly extraordinary. It has put the eligible slum dwellers at a very considerable disadvantage. It is evidently an unviable situation because the demand for transit rent and arrears is one of the primary demands in all these Petitions.
5. There is a government resolution or SRA authorities or circular no 153 dated 6th June 2015. There is a methodology prescribed for ascertaining the transit rent that ought to be fixed, possibly as some sort of a standard fixation where there is no agreement between a society and a developer. The rate that is fixed inter alia depends on the area, i.e. the locality of the SR project. Obviously rates will Page 10 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc vary across the city. But it also depends on the date, i.e. what is the time at which this monthly transit rent must be fixed. A transit rent fixed in 2004 is obviously not going to be the same as one fixed in 2022. Transit rent is payable from the date when a person vacates the structure. Different people have vacated at different times. But this does not mean that each one is entitled to a different rate. We must therefore fix the rate from the earliest vacating of a slum structure. We will adopt the same principle as we find in the circular of 2015 even though we will be asking the transit rent rate to be fixed for a date prior to the circular.
6. Mr Chetan Chaudhari from the SRA is available. He is the Assistant Registrar of SRA. Our first direction is for Mr Chaudhari to take on this exercise of fixing the transit rent on the principle that underlies the GR/Circular of 2015 and taking the date when the first structure was vacated with due regard to the locality of the SR scheme. This will apply to all eligible slum dwellers. It will not be varied. In this context, we note:
(a) There are 1,336 slum dwellers in transit camps who do not, for that reason (being in transit camps), receive transit rent.
(b) HDIL is said to owe Rs.53 crores as Transit Camp charges to SRA.
(c) HDIL has filed an affidavit (p. 146) setting out amounts it has paid to some slum dwellers. There is an earlier order of this Court (p. 166) that indicates that the transit rent should be Rs.10,000/- per month.
11. At this stage, we note that HDIL has apparently or may have made some payments on some basis that is not apparent from the record and is not reflected in the required documents (the Permanent Alternate Page 11 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc Accommodation Agreements etc) to some of the Petitioners or to other slum dwellers.
(a) Mr Chaudhari will be entitled to call for this information from each of the Petitioners and we expect the Petitioners to be candid about the amounts that they may have received. We make it clear that if it is later found that they have received more than their fair share, we will not hesitate to take appropriate steps. In doing this exercise we do not expect the individual Petitioners to approach Mr Chaudhari. It will be the Advocates on records in each of these Petitions who will make the appropriate representations and submissions on behalf of their respective clients to Mr Chaudhari and they will do so by 25th April 2022.
(b) We note that between last day 22nd March 2022 and 24th March 2022, Mr Khandeparkar for Budhpur Buildcon Pvt Ltd has been able to put altogether some documentation showing what the previous developer HDIL had apparently paid to some eligible slum dwellers. We have not addressed that documentation today. He submits that the Resolution Professional of HDIL also has papers showing what amounts are paid. This will be of relevance of Mr Chetan Chaudhari of the SRA conducting the exercise set out in our 22nd March 2022 order to decide what are the net arrears of transit rent payable to eligible slum dwellers. We will permit Mr Chaudhari to call for these records from both Budhpur Buildcon Pvt Ltd and Resolution Professional of HDIL.
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(c) Budhpur Buildcon and the Resolution Professional of HDIL (who has taken charge of all documents etc) may thus place the relevant records before Mr Chaudhari for this purpose.
14. The question of eligible slum dwellers other than the Petitioners remains. They will have to be dealt with on the same footing. However, this is likely to be logistically more complex and will undoubtedly demand more time from Mr Chaudhari and whoever he picks to be part of his team to complete all these tasks. We will pass separate directions about other slum dwellers at a later stage, i.e. those who are not Petitioners before the Court. This however does not mean that if another eligible slum dweller learns about this process that slum dweller cannot approach Mr Chaudhari. He can and he may, provided that person is an eligible slum dweller and on transit (i.e. has vacated the slum structure in question). In order to facilitate this we propose that an appropriate notice will be drafted by Mr Chaudhari and will be published in three local newspapers in different languages so that publicity is given. Notices may also be pasted at various locations on site. However, Mr Chaudhari is not expected to take up these cases or representations immediately. He may defer these applications until after the exercise vis-à-vis the Petitioners is completed. Mr Chaudhari will undoubtedly maintain a record of who (other than the Petitioners) has applied and whose application is pending."
(Emphasis added)
3. The other directions are not immediately material. On 29th March 2023, we made another order dealing with the same project.
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"1. Ms Mistry appears for the Petitioners. Mr Rebello appears for Petitioners in the connected matter. Mr Khandeparkar appears for the new Developer Budhpur Buildcon Pvt Ltd. The present Interim Application (L) No. 5663 of 2023 seeks this relief in prayer clause(a):
"(A) That this Hon'ble Court exercising powers under Article 226 of the Constitution of India, 1950, be pleased to direct the Respondent - Slum Rehabilitation Authority to conduct site visit of Rehab Building Nos.
3D, 3C, 1B, 2A, 2B and other Rehab building in Patthar Nagar Ekta SRA CHSL, Bharat Nagar, Bandra (E), Mumbai - 400 051 and to submit a Report of the occupants / residents therein on record of this Hon'ble Court with and further directions to SRA to evict the trespassers and to allot these Rehab Units to Patthar Nagar Ekta SRA CSHL to eligible slum dwellers as per Circular No. 162 dtd. 23.10.2015 of the SRA."
2. Budhpur Buildcon supports the prayer. To state it as compactly as possible, the Petitioners apprehend that ineligible third parties have been put into possession of certain slum rehab buildings.
3. Mr Khandeparkar's response is that this is not true of any rehab building constructed by Budhpur Buildcon. For those buildings the procedure mandated by law is being followed and will be followed including conducting a lottery. He cannot, however, speak for what has been done for rehab buildings constructed by the 6th Respondent, Housing Development and Page 14 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc Infrastructure Pvt Ltd ("HDIL"), the original and now beleaguered original Developer.
4. Developers come and developers go. Our concern is with the implementing authority, the Slum Rehabilitation Authority ("SRA"). It seems to us inconceivable that SRA can say that it is unaware of what has been done on a site that is under or supposed to be under its direct control and supervision. We do not want speculation. We are surprised that every time an application is made, SRA only instructs its Advocates to seek time to obtain instructions. Surely the officers of SRA must have records and must know who is in possession of what portion of which SRA rehab building. If the answer is that the SRA does not know, then perhaps even more stringent action is now called for against every officer of SRA and perhaps a replacement of the whole SRA structure itself. We give SRA one week and no more, irrespective of any intervening public holidays which will not be used as an excuse, to give us a list by 6th April 2023 of every single HDIL rehab building and of the name and occupancy of every single person in those HDIL rehab buildings. The persons must be specifically identified. The room or rooms they are occupying must be specifically noted. We require SRA to inform us whether these persons are in authorized or unauthorized occupation of these premises in the rehab building.
5. We are also making it clear that we refuse to recognise or acknowledge second-tier encroachments or trespassers, i.e., any alleged rights by those who have wrongfully or unlawfully entered into rehab premises. The entire structure of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 is predicated upon making available to those who are in their inception in unlawful occupation of or use of parts Page 15 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc of public lands or other lands certain noted benefits. One of these is free of cost alternative housing. We say nothing about the correctness or wrongness of this policy of giving someone something free for what is in its inception an illegality. That is a matter of policy. But we certainly will not countenance one illegality being piled on top of another and being given further rights, i.e., to those who are trespassers in SRA rehab buildings being conferred or given rights of continued occupation and possession.
6. We are constrained to say this because if the rights of those third-party trespassers are acknowledged, then it comes at the very real cost of those who are entitled in the first place to rehabilitation. It simply cannot be that this process of displacement continues indefinitely and that these trespassers in rehab premises effectively get a hugely valuable and marketable asset at the cost of those entitled to rehabilitation. SRA must ensure that the welfare purpose and object of the statute is in fact carried through. As a first step, but by no means the last, it will give us a list of all these occupancies in the HDIL rehab buildings.
7. Before Mr Reddy applies, we reject an application for an extension of time. For the present this can be in the form of a report and need not be on affidavit.
8. The list must also state the name of the initial allottee of the HDIL rehab premises. All persons in occupation of any premises in the HDIL rehab premises are directed by this order to co-operate with the SRA. Any act of obstruction will be seen as an act of disobedience of orders of this Court.
9. Finally, to ensure that things do not spiral out of control, no other Court is to entertain or accept any Page 16 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc application, suit or other proceeding against SRA or any other developer in respect of the HDIL rehab buildings. Any application in that regard must be made in this Writ Petition in this Court. If necessary, the SRA will be entitled to request necessary police assistance and this will be made available to it by the local police authorities acting on production of an authenticated copy of this order without insisting on a certified copy.
10. List the matter on 6th April 2023."
(Emphasis added)
4. To proceed systematically, we identify the distinct areas of controversy in the various applications that are listed before us. That are as many as 26 separate proceedings. Ms Mistry, who appears in one of them, it is hard to say which, has compiled a list and we take this on record and marked it "M1" for identification with today's date. A copy is annexed to this order for future reference. In this order, we refer to it as the "Mistry List".
INTERIM APPLICATION (L) NO. 9655 OF 2023 IN WRIT PETITION NO. 3483 OF 2021
5. Before we proceed, we take up this Interim Application. It seems to us to be a complete outlier. The Applicant one Abdul Rahim Shaikh makes various allegations of illegality. His IA is at Sr. No. 18 of the Mistry List.
6. Mr Shaikh is many things. These include being a PIL litigant in some other proceedings, and he is, he claims, in addition and according to his self-portrait in paragraph 1 of the IA, a social worker Page 17 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc and "Ex-working President of All India National Civil and Environmental Protection Trust, New Delhi" as also an "Ex Deputy Director of Major Crime Press", allegedly a weekly news journal from Mumbai. Others say that Shaikh omits to mention that he is a former employee of Housing Development and Infrastructure Pvt Ltd ("HDIL"), the original developer, which has since been subjected to different investigations and is now before the National Company Law Tribunal under a Resolution Professional.
7. Shaikh's prayer is that we should investigate illegalities committed by members of some slum societies and direct the registration of an FIR against slum dwellers and developers and recover possession or rehab tenements/rooms. Why we should do this in his Interim Application is unclear. Indeed, the Interim Application requires no intervention from us because it rejects itself on these assertions. We do not need the assistance of Mr Shaikh. We do not know what his credentials are. We do not see how he has the slightest concern with any of these matters. If he is an eligible slum dweller, he will receive the benefits of slum rehabilitation. If he is not, he will not. But just because he is a slum dweller and "a social activist", an expression that these days is used to mean anything and everything or nothing at all, we refuse to entertain such widely worded prayers. For all his claims to various good deeds, Mr Shaikh forgets that he is an applicant before a Writ Court and we are not investigating at his instance disputed questions of fact. We are not satisfied with Shaikh's credentials or motives. We are not persuaded that his intervention is in any way necessary or even remotely useful. We decline to be prisoners of his agenda, whatever that might be.
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8. The Interim Application is rejected.
ISSUES RAISED
9. The various proceedings in the Mistry List deal with distinct aspects. There are some who complain they have not received transit rent for different periods of time. There are others who say that allotments of permanent alternate accommodation or the conduct of lotteries for permanent alternate accommodation have been incorrectly or improperly done. Then there are persons to say that they have not yet been allotted permanent alternate accommodation.
10. Finally, there is the question of occupancies of the slum rehab accommodations that have already been constructed by HDIL. This is arguably the most serious. Even SRA complains, as we shall presently see, that there are wholesale illegalities in many occupancies. There are problems with monitoring the persons in actual possession of rehab tenements: there are trespassers, illegal transfers, transmissions to heirs, illicit multiple occupancies and more.
11. This is by no means a rigid or fixed listing.
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12. It is not practicable to take up all these issues at every hearing. Some will require close monitoring at regular intervals. Others may only need a few orders periodically. Some of the questions before us, as we point out a little later, are contingent on (or tied to) the answers to others.
13. For these reasons, towards the end of this order, we have set out a preliminary sequencing of questions. Again, this is not rigid, and may change at any time. We have attempted this so that the hearings are focussed, organized and so that the advocates before us can prepare accordingly.
BACKGROUND
14. To understand how some of these problems have arisen, a very short background, though we have repeated this frequently, is necessary. This is unrelated to the specific site conditions that we noted in our order of 22nd/24th March 2022.
15. Encroachments on public lands owned by the Government or some authority are everywhere. There existence is undeniable. Over the last half-century, these encroachments have proliferated. There is also material, not just anecdotal, but part now of record of this Court in other matters, that there is no basis for the assumption that everybody who lives in a slum is, only for that reason, impoverished.
Page 20 of 5419th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc By definition in law, all structures in all slums are unauthorised. If a structure is authorised, it cannot be a slum, although it may be surrounded on all sides by a sea of slums and slum-like conditions. Recently, that peculiar mixing up of authorised and unauthorised structures on a single tract of land has generated a separate set of questions. We are addressing that in other cases. For this order, we confine ourselves to unauthorised structures. For our purposes, therefore, all these are encroachments, i.e., acts of trespass, the initial entry on the land not being juridical, such as the law recognises.
16. Slums present an enormous social, civil engineering and civic planning problem. It has significant political and economic overtones too. Many come to the city in search of work and a livelihood. They vote with their feet. The city remains a powerful magnet, and this phenomenon has been the subject of much sociological study and discussion. Some move into slums because of life circumstances. What the city does not provide is a systematic form of affordable housing. Over time, these slums 'solidify'. They acquire the trappings of permanency. Not all are only shanties. Some are constructions of brick and cement. In the larger ones, we see roads, bus routes, schools, places of worship and individuals gain documentation related to their 'addresses'. These are, therefore, often called 'informal settlements' -- settlements because they are indeed that, and 'informal' for lack of planning, development and building permissions. They remain 'slums' in law.
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17. This is where the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("the Slum Act") comes into play. The Act establishes what we may call a system or a protocol for slum re-development. It is not necessary to examine these in detail, and all these are well known: the identification of a slum, the resultant Slum Act notification/s, a survey of the structures and so forth. A developer builder is typically chosen by slum society and obtains a Letter of Intent from the Slum Rehabilitation Authority ("SRA"). There is the preparation of what is called the Annexure II a list of those who are eligible for the benefits of slum rehabilitation. These benefits include transit rent being paid to them while redevelopment is going on and then the assurance of a free-of-cost tenement of a prescribed size. The development is not done by the SRA itself, which is the special planning authority (under the Maharashtra Regional & Town Planning Act, 1966). The so-called public-private partnership paradigm contemplates the developer first constructing the permanent rehab tenements; and while that is under way, compulsorily taking on the financial burden of providing transit rent or making available transit accommodation to those entitled to permanent rehab accommodation. The benefit and consideration for the developer is the FSI made available for 'free-sale' units, developments for sale in the open market. The right to start and continue free-sale unit construction is linked to the progress on rehab tenements: as the latter gets complete, the developer gains phased rights to build the former.
18. Three aspects stand out. First, that the slum re-development, i.e., the provision of rehab tenements is in situ. Second, that the Page 22 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc rehab tenements are provided free of all cost on ownership basis. True, there is a supposed 'lock-in' period of ten years within which the rehab tenement cannot be transacted, but that has never been monitored. Third, there is in place no systematic method or protocol of foolproof identification of those entitled to rehab benefits. Some sort of biometric verification is said to be in place but only relatively recently, from 2016. There is no Aadhaar or UIDAI-based identification, and none at all of family members.
19. It is this trifecta or -- if we may be forgiven the latitude -- this 'unholy trinity' that lies at the heart of the colossal problems with slum re-development today. That the Slum Act is a welfare legislation is undeniable. It held out a promise: homes for the 'needy', an augmentation of housing stock in the city and, therefore, the gradual reduction of slums across the city. That promise has not been kept. Slums have not diminished. If anything, they have increased; and they increase daily. Conditions in many slums are of the utmost squalor and indignity.
20. In Abdul Majid Vakil Ahmad Patvekari & Ors v Slum Rehabilitation Authority & Ors,1 a Division Bench of this Court of Dipankar Datta CJ (as he then was) and GS Kulkarni J made these observations:
8. On the other hand, learned counsel for the respondents supported their actions as assailed. It is their common submission that the petitioners, being encroachers on the Government land, only because of the beneficial policies of the State Government are required to be 1 2021 SCC OnLine Bom 13719 : (2022) 2 Mah LJ 382 Page 23 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc considered as protected slum dwellers for rehabilitation by providing of a permanent alternate accommodation at public cost. It is submitted that the petitioners cannot assert any right to remain on the same plot of land and in fact they ought to be content with their rehabilitation, being made at Hadapsar and Viman Nagar, which are also areas within the Pune Municipal Corporation limits. It is their contention that the petitioners are causing unnecessary obstruction in the execution of the public project in the absence of any legal right to remain on the land in question. It is submitted that this petition is also wholly untenable, as for the same cause the petitioner-Society has already approached this Court and the petition is pending. It is, therefore, submitted that this petition apart from not being bona fide is an abuse of the process of law, which deserves to be dismissed with cost.
9. Having heard the learned counsel for the parties and having perused the record, at the outset, we may observe that the petitioners, who initially encroached on the Government land and who had remained on the same for sometime so as to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed or they be provided a permanent alternate accommodation within the vicinity. In our clear opinion, any encroachment on public land at the threshold ought not to be tolerated and prompt action is required to be taken to remove such encroachment, more particularly when those who are custodians of the public land are well aware that encroachments for long periods will clothe the encroachers with rights to seek rehabilitation at public costs under the prevalent Government policies.
It is not new that valuable Government land on account Page 24 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government's holding, causing a serious cascading effect, namely, that whenever land is required for any public purpose, the Government is required to acquire the same from private holdings, causing an unwarranted burden on the public exchequer and a sheer waste of the tax payers money. This for the reason that the Government despite its mighty machinery did not protect its valuable land and permitted to be encroached to be developed by the slum dwellers and their developer, with the Government nowhere in the picture. Such inaction, in our opinion, amounts to grossest violation of the public trust doctrine as a result of the patent abuse of the powers vested in such Government machinery in not protecting public property. We also have a grave doubt about the policy of the State Government which rewards the encroachers of the public land by a free of cost accommodation. In our opinion, such policies qua the Government land not only violate the 'principles of equality' but certainly fall foul of the doctrine of public trust. We wonder as to whether at any point of time an audit in regard to the encroached Government land or lands belonging to public authorities in the State of Maharashtra was undertaken. As to how many such lands have vanished due to encroachment and as to what steps have been taken to preserve such lands are questions which need to be answered to "we the people", and accountability fixed for negligence in this regard. We say so, as there can be no two opinions that even land for important public institutions and other government utilities is not available, which certainly has adversely affected the very functioning of such institutions in a democratic set up. We hope that the Government awakens on such issues Page 25 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc before it is too late and restores all the encroached Government lands for the benefit of public and strictly to be used for public purposes. This would certainly require a genuine political will and consciousness towards larger public benefit.
10. The petitioners occupying Government land cannot take such an adamant stand as canvassed by them, when they are occupying Government land. Mere rights of rehabilitation cannot be recognized to be equivalent to a right of ownership or as if it is some compensation being offered to the slum dwellers for their encroachment and occupation of Government land. This is neither the intention nor the object even of the slum legislation and slum policies of the State Government. The insistence of the petitioners if accepted and that too in the context of the 'State' undertaking such public projects, it would be impossible to plan any such project using the Government land for the benefit of the public at large.
(Emphasis added)
21. In High Court on its own motion (in the matter of Jilani Building at Bhiwandi) v Bhiwandi Nizampur Municipal Corporation & Ors, 2 the same Division Bench said:
7. In the above paragraphs, we have noted our previous directions only to point out the anxiousness of the Court on the burning issues, with the sole focus of saving human lives so as to bring about a regime of respectable and dependable living in the city by having lawful and authorized structures, only to realize that, for the concerned law enforcing agencies everything mattered, 2 2022 SCC OnLine Bom 386 : 2022:BHC-AS:4075-DB.Page 26 of 54
19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc except the mandate of law and the Court's orders. We are seriously concerned about such state of affairs. The common impression that is being created is that municipal officers or those who are concerned with implementing the municipal laws, function on a premise that for such matters, they are, law unto themselves, and the regime of "the rule of law" as set down by the Constitution and the laws, and the binding effect of the Court orders hardly mattered to them, needs to be completely wiped out. Any power vested with such authorities is coupled with a binding duty towards the society at large. We may observe that the municipal authorities cannot be pawns at the hands of land mafia, elected representatives and their own Corporators who appear to be totally disinterested in taking action against growing slums which is apparent, considering the large number of slums in the city. In fact, there is a clear impression that their action has encouraged slums and encroachments on public lands, obviously such inaction is for extraneous reasons. As far as the civic administration is concerned, in our opinion, primacy has to be given to the strictest implementation of the municipal laws, so as to prevent unauthorized and illegal constructions, prevent land grabbing by slum mafia, protecting government land and land belonging to statutory bodies. Also there is a need to do away with such policies which confer a premium illegality in favour of the encroachers, by granting them a windfall of State largesse, namely, a gift of valuable government land in the form of tenements on Government lands wherever situated. This is nothing but legalizing encroachments on prime public lands, in a manner nullifying the "public trust doctrine" and catering to private gains in the teeth of the well established Constitutional requirements while dealing with State largesse. By such mechanism, valuable public lands are Page 27 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc gone forever. Given the financial burden on the public exchequer it is impossible for the government to acquire such prime land for any public requirement except at an unimaginable burden on the public exchequer. If such land acquisition cannot be achieved, in that case, is it not the duty of the State to save these lands from being thrown to the encroachers and private gains? Is it necessary that the encroachers are rehabilitated on the same land, when others who want to purchase a small dwelling unit are required to go miles away from such prime places, where encroachments on public land happen with impunity? There cannot be such an imbalance in the societal position in which the citizens are placed when Article 14 of the Constitution stares at the State. Merely because the slums turn into potential 'vote banks' such policy of rehabilitation on hypothetical cut off dates is being implemented under the garb of slum rehabilitation. This, in our opinion, is a mockery of the public trust doctrine. We were constrained to make these observations, as not only these larger issues stare at us in plethora of litigations reaching the Courts, but also for the reason that the building collapse with which we are concerned has taken place in a purported rehabilitation and/or a slum area.
(Emphasis added)
22. We cited Jilani Building in our order of 17th April 2023 in Sapphire Enterprises & Ors v State of Maharashtra & Ors. 3 As a bench of coordinate strength, we are bound by the ratio in both Patvekari and Jilani Building; but we go further, lest it be argued that the 'observations' in Patvekari and Jilani Building are not binding, and 3 Writ Petition No. 1654 of 2021. Page 28 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc we emphatically re-affirm those observations. We adopt them as our own. It is our understanding that these are not stray observations in passing but set out the correct position in law and under the Constitution.
23. And we go further. We take it as firmly settled that the right to shelter is part of the right to life.4 But there is no fundamental right to trespass. There is no fundamental right to squat. There is no fundamental right under the Constitution to rehabilitation at the very site of trespass or squatting. Both decisions cited commend the need for the statute -- the Slum Act -- to revisit this, and point out that it has no basis at all under the Constitution. Rather, it is against fundamental Constitutional precepts. Equally importantly, while the State may have an obligation to provide shelter, it has no Constitutional obligation to provide a marketable asset to anyone; and most emphatically not to someone whose initial entry on the land is illegal and unlawful. And yet this is precisely what the existing slum rehabilitation policy contemplates and promises. We are forced to ask, what is this if not the distribution of state largesse? One that comes at a very real public cost? Public lands for common public good are rendered unavailable. Every slum dweller is now confident in the assurance that the State will give him not just shelter but a high value marketable peace of real estate entirely free of cost.
24. And there is an inherent injustice built into any such scheme:
those who lawfully purchase housing must take loans, pay interest, and carry this burden for decades. But those who simply encroach 4 See: Olga Tellis v Bombay Municipal Corporation, (1985) 3 SCC 545.Page 29 of 54
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25. We are putting this as plainly as possible. There is now concrete evidence before us that shows wholesale trafficking and illicit dealing in this free-of-cost asset -- because it is free. The question of whether rehabilitation should be in-situ is more complex. It involves a consideration of eviction, translocation, displacement, provision of underlying infrastructure and transport to places of work and more. It is not our purpose today to venture into those areas of policy beyond the findings returned in the decisions we have cited and our reaffirmation today of those findings.
26. It is this promise of free housing that we are now forced to question.
STATUTORY PROVISIONS REGARDING REHAB TENEMENTS
27. To explain the background more fully and leaving aside the more problematic question of transfers of slum hutments (an issue Page 30 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc that we will address later), allotted rehab premises have a ten-year lock-in period, which means they cannot be transacted for that period of time. The provision is in Section 3E (part of Section 3D in Chapter I(A) of the Slum Act):
"3E. Restrictions on transfer of tenements (1) The tenements allotted to the persons under the Slum Rehabilitation Scheme shall not be transferred by the allottee thereof by way of sale, gift, exchange, lease or otherwise for a period of first ten years commencing from the date of allotment of the tenement. After the expiry of the said period of ten years, the allottee may, with the permission of the Slum Rehabilitation Authority, transfer such tenement in accordance with the prescribed procedure.
(2) If the tenement is transferred by the allottee in contravention of the provisions of sub-section (1), the Competent Authority shall, by order direct the eviction of the person in possession of such tenement in such manner and within such time as may be specified in the order, and for the purpose of eviction, the Competent Authority may use or cause to be used such force as may be necessary:
Provided that, before issuing any order under this sub-section, the Competent Authority shall give a reasonable opportunity to such person to show cause why he should not be evicted therefrom."
(Emphasis added)
28. There is a corresponding provision in Development Control Regulation 33(10)(VI)(1.18).
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29. Although Section 3E quoted above speaks of eviction and the use of force, the proviso tells us that opportunity to show cause must be afforded.
HDIL REHAB TENEMENTS AND THE SRA REPORT
30. Following our previous directions, the SRA has put together a report. This is now the heart of the matter. The report is not confined to the present project site, but covers all HDIL-built rehab tenements across all erstwhile HDIL project sites. 5 This means that the following numbers will need to be revised for our purposes going forward. We take the present figures illustratively. The report says that 95 SRA teams surveyed a total of 8,679 rehab tenements originally constructed by HDIL. They used available records. Of the 8,679 rehab tenements only 3,483 continued in 2023 to be occupied by the original allottees. The legal heirs of original allottees were found in another 704. Fully 2,353 tenements were either rented or occupied by 'relatives' of original allottees or were closed or what were called amenity tenements. The teams also found that 1,484 tenements had been sold by original allottees and were occupied by purchasers. Nobody knows and can say for sure whether these sales were after the ten-year lock-in-period (and which case they would be permissible) or within that ten-year lock-in-period (in which case they were be illegal). But perhaps what is remarkable about these 5 It is not necessary to examine at length the history of Housing Development & Infrastructure Ltd, HDIL. It had staggering amounts of saleable area and land reserves under its control. After investigations into its affairs were launched in 2020, many of its slum re-development projects stalled. HDIL is under a Corporate Insolvency Resolution Process (CIRP).
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31. But that is not all. In as many as 655 rehab tenements there are trespassers.
32. This is precisely why we began this order as we did. There is something very rotten here. There is clearly ongoing trucking in rehab tenements in a manner not contemplated by the statute at all.
BUDHPUR BUILDCON'S INTERIM APPLICATION:
ALLEGATIONS OF TRAFFICKING IN REHAB ENTITLEMENTS
33. The substitute developer is Budhpur Buildcon (apparently part of the Adani Group). It is represented by Mr Khandeparkar. Budhpur has filed Interim Application No. 16410 of 2022. This Interim Application is at Sr. No. 16 of the Mistry list. The prayer in this is for a modification of our order of 22nd March 2022 essentially asking for directions to call for all documents including of the persons named in the Annexure II to--
"verify whether any of the slum dwellers have sold, surrendered, gifted, exchanged, leased out, traded or dealt with in any manner with their entitlement to their rehab tenement or entitlement of rehabilitation in the slum scheme and if so to pass orders under Section 3E."Page 33 of 54
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34. This stands on a different footing from the SRA report, which deals with actual occupancies in the already constructed rehab buildings. Budhpur Buildcon's Interim Application deals with trafficking in entitlements to rehab.
35. What is the material that Budhpur brings to Court to establish this? We must remember that Budhpur is, as a developer, downstream from the original developer HDIL. It is a later entrant, not the original developer. What HDIL did is a matter of historical record that Budhpur must accept going forward. But it is necessary to ascertain with precision who HDIL dealt with and precisely for what and when.
36. Mr Khandeparkar tells us that there are people who have been "paid of by HDIL", i.e., who have transacted their entitlements ('surrendered their tenancies') and sold these to HDIL for consideration and despite this continue to demand transit rent as if they are yet entitled to rehabilitation. Paragraph 5 of his Interim Application from page 22 onwards and running all the way to page 37 is a list of 64 persons who have said to have given up their tenancy rights.
37. Some of the figures are alarming. The person at Sr. No. 1, one Salim Abdul Shaikh whose name features at Sr. No. 11 in Annexure II and is the 5th Petitioner in Writ Petition (L) No. 2217 of 2019 complaining of non-payment of transit rent has apparently received from HDIL a sum of Rs. 2,36,50,000/- for such a surrender. Or so it is alleged.
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38. There are others. All of them are Petitioners in one or another matter and this list goes on to Sr. No. 64. We take it that the tabulation in paragraph 5 of the Budhpur IA is only a sampling and is not a complete list but we have to begin somewhere, so might as well with these 64.
39. Budhpur Buildcon's Interim Application says, illustratively, that there are some persons whose names are on Annexure II but who have been paid quite significant amounts of money by HDIL (by cheque). The question is what these payments were for. Budhpur Buildcon is an inheritor of HDIL's actions. It can only point to what is available to it today. That is a set of ledger accounts that Budhpur Buildcon has obtained. But this is only partly helpful and only to the extent that it prima facie indicates a payment. The narrative in a ledger account is of HDIL's making and does not on its own establish as against the payee slum dweller that the payment was indeed for the purpose set out in the ledger account.
40. Let us consider two examples. One is in the case of Mohan L Raj who is a Petitioner in Writ Petition No. 3483 of 2021. He is the 9th Petitioner. Page 97 of Budhpur Buildcon's Interim Application says, as we noted that an amount of Rs. 14 lakhs was paid and in addition there was payment of another amount of Rs. 11 lakhs but it mentions one Ansari Mohamad Rizwan. The ledger account says that this was purchased of tenancy rights at 30/10. Ms Mistry says that Rs. 14 lakhs was indeed received. The ledger account is from 1st April 2006 to 31st March 2007. Her instructions are to say this was Page 35 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc not towards purchase of tenancy rights but was transit rent payable in advance.
41. Another instance is that of one Manoj Waghdare. He is one of the Petitioners in Writ Petition No. 3517 of 2021 where he is the 4th Petitioner. His name is at page 114 of Budhpur Buildcon's Affidavit and it is said that he received Rs.15 lakhs by cheque "being purchase of tenancy rights" for 60 plot 10, presumably meaning hut No. 60 on Plot No. 10. In the Petition, Waghdare accepts that an amount of Rs. 14,90,000/- was in fact paid to him but Mr Rebello on his behalf points out that this was transit rent in advance. Mr Rebello also points out that this had to be transit rent in advance because Waghdare delivered vacant possession of the hut some time in November 2006. The ledger accounting year that is shown is only the financial year in question. It means, in Mr Rebello's submission, that in the financial year 1st April 2006 to 31st March 2007 an amount of roughly Rs. 15 lakhs was paid to Waghdare as transit rent in advance.
RESOLUTION PROFESSIONAL OF HDIL:
42. How is this to be reconciled? That is the issue before us. It is only the HDIL records that can shed some light. The master record seems to be the accounts maintained or kept by HDIL in regard to this project. Now it is clear that HDIL also had several lenders who funded HDIL not only generally but also for specific projects. Which lender gave money for this project is also presently unclear.
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43. This is where we will need the assistance of the Resolution Professional ("RP") of HDIL, Mr Abhay Narayan Manudhane. He is present. It is he who has custody of HDIL papers and records including financial records. We require his cooperation for the benefit not of Budhpur but of the SRA. After all, it is SRA's Annexure II that will now need to be corrected or modified if what Mr Khandeparkar says is correct. That ascertainment can only be done from the HDIL records. Mr Surana represents the RP in some of the Writ Petitions.
44. Mr Manudhane tells us through Mr Surana that the HDIL records in his charge are by no means complete. He is not in a position to identify whether he has complete records for a particular project or a particular individual in a particular project. He also informs the Court that he has submitted a resolution plan, conceived as a hybrid "a combination of a resolution plan and a liquidation plan" to the NCLT and that this is pending approval. So far, he has not been discharged. We cannot of course interfere with that process. We would only request the RP to coordinate with Budhpur Buildcon and Mr Chaudhary of the SRA to make available to both of them such records as can be identified, and which are with the RP relating not to HDIL generally but to this particular project.
45. The RP also tells us that the bulk of the record is digitized and therefore should be easy to identify and sort. We are making no orders for preservation of records because that is beyond our remit. So long as there is a tracing of records being received from the RP Page 37 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc officially by Budhpur Buildcon and copied to Mr Chaudhari of SRA that should be enough.
46. This will then have to be followed with a forensic exercise identifying person by person the purpose of the payments that have been made.
47. Our apprehension is that even if this exercise is completed, one might not be able to say for certain what the purpose of a particular payment is. The benefit of doubt in such a case would invariably go to the person whose name is on Annexure II and we do not see how in a Writ court we could microscopically deal with individual claims like this.
48. It is for Budhpur Buildcon to decide on a reconsideration of its financial projections, etc., where lies its greater interest. It seems to us that the present exercise vis-à-vis those persons who have come to Court and whose names are on Annexure II is more an exercise in damage control and in minimizing or containing loss. It is for Budhpur Buildcon to decide whether it wants to draw a line and say that those who have come to Court and whose names are on Annexure II will now continue to receive transit rent and be entitled to rehabilitation irrespective of what HDIL did with or about those persons in the past. This is obviously not something that we can compel from Budhpur Buildcon. This is a commercial decision for Budhpur Buildcon to take. If Budhpur Buildcon believes that this is not in its interest, then the other exercise will have to be undertaken, Page 38 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc however long and however painstaking it may be, of going through the records on a case to case basis.
49. It is for this reason that we will have to separate the issues of claims for transit rent and rehabilitation of those Petitioners who have come to Court in that regard from the question of what we will broadly call 'reclaiming the HDIL rehab buildings'.
BUDHPUR'S IA: ALLEGATIONS OF FRAUD AND DOUBLE BENEFIT
50. Paragraph 6 of the Budhpur Buildcon Interim Application then speaks of cases of slum dwellers (including Petitioners) who have, according to Budhpur Buildcon committed fraud or impersonation and submitted fabricated documents to SRA, thus lodging claims towards payment of transit rent, arrears of transit rent and entitlements to rehab housing. Now this is something that needs to be put on the right track. It points to glaring systematic failure and a failure to use available methods and technologies.
(a) Paragraph 6(a) speaks of a person who is a petitioner in two Writ Petitions claiming rent twice.
(b) There is another case in paragraph (b) of a person who has passed away, but after his death, on duplicate Pan cards and documents, her bank account was opened in a Cooperative Bank at Lalbaug and transit rent is being collected by him. A total of Rs. 1.19 crores has gone out in this fashion.
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(c) Another person is a Petitioner in two Writ Petitions but has opened two bank accounts (one with the same extremely cooperative bank at Lalbaug), another with another bank with different photograph, and is collecting transit rent twice.
(d) There is some dispute about a person whose signatures do not match.
(e) Another person using the same photographs opened two different bank accounts (again at the very same Lalbaug branch of this cooperative bank) but with different Aadhar Cards despite having already surrendered his tenancy to HDIL and having received consideration.
(f) We are told that there are also cases where both husband and wife have separately claimed entitlements.
51. Dr Sathe agrees that everyone of these instances will have to be investigated. We will require Mr Chaudhari to supervise although we do not expect him to personally undertake the scrutiny, he may select his team for that purpose. But we are clear that if there is found to be a fraud then the criminal machinery must be put into motion and the SRA must cancel all allotments without exception, apart from taking steps for recovery.
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52. The preceding discussion tells us that there are broadly three dimensions to the matter and three separate sets of orders and inquires that lie ahead.
(a) The first is the set of directions that are required in regard to what we will call the rehab tenements already constructed by HDIL. These are the subject matter of the SRA report tendered by Dr Sathe to which we have made reference above.
(b) There is a far more complicated question in regard to the claims for transit rent by those whose names appear on Annexure II, also briefly highlighted above.
(c) The third category of persons are those represented by Mr Tamboly. These are or claim to be transferees from original holders or occupants of hutments. But these transferees' names are not on Annexure II. What they seek is the displacement of their transferors from Annexure II and the inclusion of the transferees' name instead.
(i) There is an overlap with the first category
because some of Mr Tamboly's clients and
perhaps all are in occupation of rehab
tenements in HDIL-constructed rehab
buildings.
(ii) SRA will need to assess this at two levels.
First, whether the allotment of the rehab Page 41 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc tenements and possession of the rehab tenements was given to the so-called transferees. If so, their present possession will need to be protected and they should not be subjected to coercive action or forcibly recovery.
(iii) Second, the SRA will need to assess whether the transfers are beyond the 10-year lock-in-
period under Section 3E and the corresponding provision of the DCR. In that case too, possession would need to be protected.
(iv) It is a different matter if no possession of any rehab tenement has been given and that there is merely a claim to being a transferee of a hutment.
(v) Mr Chaudhari and the SRA will therefore assess each case independently bearing these factors in mind.
(vi) Prima facie, we cannot simply allow Mr Tamboly's application for the asking. That would be contrary to the Slum Act and later classifications and circulars.
(vii) Those applicants must make applications to SRA and in this case, should be made to Mr Chaudhari, the special officer we have appointed for this process. Mr Chaudhari Page 42 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc may in turn delegate the consideration of those applications by an order in writing to any other suitably qualified officer or officers. Obviously, the SRA will follow the necessary procedure of giving notice and hearing to both transferor and transferee before making an order.
(viii) All orders that SRA or Mr Chaudhari or his team may pass in this regard, if challenged, must be brought before this Court in an appropriate Interim Application or Writ Petition and are not to be taken to Civil Courts seeking broader injunctions. This Court is monitoring the progress for the benefit of the slum dwellers and therefore we believe this order is appropriate.
(ix) The SRA and Mr Chaudhari will bear in mind an additional complications that might arise in the sense that one of Mr Tamboly's transferees may seek to knock out a claimant such as the once represented by Ms Mistry or Mr Rebello. Even that will necessarily have to be considered. Those proceedings can therefore separately continue.
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RECEIVERSHIP
53. The narrative about the SRA rehab buildings tells us that urgent steps are undoubtedly necessary to assist SRA. We say this because we asked all concerned for their views on the possibility of the appointment of a Receiver of the rehab buildings. With one voice, all agreed that this would be of great assistance and would prevent further transgressions.
54. SRA has what Dr Sathe describes as an ongoing or a rolling problem: rehab tenements are constantly changing hands whether under occupation of licensees, tenants, trespassers, or others. If all the tenements are brought into he custody of the Court, then that provides a date-line beyond which all transfers without permission are prohibited. We are of course not requiring the Receiver to take physical possession of any premises at this stage. The Receiver would, it was suggested, take only notional or symbolic possession. That was our intention to begin with.
55. The advantages to this are many apart from the properties being in custodia legis and thus providing a reference deadline moving forward. We do realise that there is no prayer in any matter for the appointment of a Receiver but in exercise of our writ jurisdiction and given that we are seeking to assist a public authority in discharge of its statutory functions, we believe we are well within our rights to make that order. It prejudices nobody and assists the statutory authority.
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56. Naturally, this order would need to be carefully calibrated to allow permissible transfers or transmissions (on heirship, etc). But that being said, it seems to us that one of the biggest problems that SRA faces is this: when it comes transfers of rehab tenements, SRA just does not know. That is an unacceptable state of affairs. It should never be permitted to continue.
57. Consequently, we appoint the Court Receiver, High Court, Bombay as the receiver of all HDIL's tenements constructed on the project site and as identified by the SRA. The appointment is in respect of the HDIL rehab tenement buildings only on this particular project and no other.
58. No transfers of tenements in the rehab buildings are permitted except:
(a) those by original allottees who have completed their 10 year lock-in-period and
(b) by heirs and legal representatives of the original allottee by means of transmission.
(c) For post-10-years lock-in period transfers, while these may be permissible and we are still operating within the existing statutory framework, SRA's NOC is required and that process must be followed. A copy of the transfer document must be given to SRA and SRA must maintain records including with biometric identification and Aadhar verification of the transferees for used in future transfers.Page 45 of 54
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(d) As regards transmission to heirs, we see no reason why this should not be permitted provided SRA takes the necessary precautions such as asking for valid representation to the estate, NOCs from all heirs, copies of death certificates, etc. That is a procedural matter for SRA to work out, but we do not believe that transmission even within the 10-year lock-in-period falls afoul of Section 3E. It is not a voluntary transfer inter vivos.
59. As regards the trespassers or illegal occupancies, SRA must identify them and start proceedings against them in accordance with law.
60. The existing third party transferees must be now further identified to segregate those who are beyond the 10-year period. SRA will now have to start calling for documents and verifying them.
61. For the rehab tenements where there are said to be legal heirs, SRA must complete an update its record to satisfy itself about heirship.
62. Where there are tenements that have been rented or occupied by "relatives", it seems to us clear that the statute does not permit transfers to relatives merely because they are relatives. Transmission on heirship is one thing. Transfer to 'relatives' is another. In this country, everybody is a 'relatives' of everybody else. Cousins are Page 46 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc brothers, nieces are daughters, and then there are the 'regarded brothers' and 'regarded sisters' (to say nothing of 'rakhi brothers'). We do not accept that 'relatives' have any entitlement beyond heirship transmission.
63. Where premises are closed, SRA must issue notices to the original allottees and if there is no answer within a reasonable period of time SRA can then proceed in accordance with law to resume possession.
64. For amenity tenements, SRA will have to follow its processes in accordance with its existing policies and circulars.
65. We note that the report that Dr Sathe submitted actually covers not just this project but all HDIL projects across the city. These numbers will change because we are restricting ourselves only to this particular project for all purposes. It may be that it will serve as a template for future orders and other projects but we will deal with those separately as and when we are asked to do so.
66. Dr Sathe offers to submit a list of the tenements in these categories that relate to this particular project. That list is to be filed by Monday, 26th June 2023 and will be taken on record and marked "S1" for identification with today's date.
67. The Court Receiver is requested not to ask for an advance deposit in the facts and circumstances of the case. The Court Receiver will coordinate with the SRA advocates and the Court Page 47 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc Receiver will place a board on the exterior of each of the buildings in questions until further orders of the Court. Budhpur of course will need to be kept informed for these developments periodically claims for transit rent/allotment.
68. At present we only request the RP who is before us to render all assistance to Mr Chaudhari of the SRA and to representatives of Budhpur Buildcon in making available the necessary HDIL records relating to this project.
69. Once this data has been gathered, it will then need to be analysed and then all will have to be heard on what that data analysis reveals.
OPERATIVE DIRECTIONS: OTHER CLAIMS
70. The claims for transit rent and allotment and the supporting material need to be collated and organized. There are far too many applications and Petitions. Within one Petition, there are multiple Petitioners with different claims. It is impossible for a Court to proceed in this fashion. We therefore, request Ms Mistry and Mr Rebello between them to coordinate with the advocates for all the applicants and all the Petitioners and those advocates will render all assistance from Ms Mistry and Mr Rebello. We request them to prepare as comprehensive a tabulation as possible which must show the name of the Petitioner, where the Petitioner features in the array of parties in the Writ Petition with details of that Petition number, details of the original hut, serial number on Annexure II, and, Page 48 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc perhaps most importantly what, according to the Petitioners are the details of the amounts already received and the amounts that are being claimed. Without this it is impossible for either SRA or Budhpur Buildcon to address uncertain claims coming from different directions like this. It will also be impossible for Mr Chaudhari and the RP to do this collation and to provide the necessary documentation. This tabulation is, therefore, as regards the transit rent and allotment claims of the essence and should be done at the earliest possible.
71. We clarify that we have not asked Ms Mistry and Mr Rebello to do any exercise other than collate the material that is on record before the Court. We say this because we are not widening the scope of any of these Petitions that are before us today. Some Petitioners have come to Court and have organised themselves to do so. We refuse to expand this to others who have sat by and have not troubled to come to Court. We are only going to deal with parties who are before the Court in regard to the transit rent and allotment claims. Otherwise, the entire exercise is unmanageable.
RECOMMENDATIONS
72. At the head of this unusually lengthy order, we identified what we perceive is the cause of much of this disruption. Our directions have remained within the framework of the statue and the policy as it currently stands. But we believe we would be utterly remiss in discharging our duties if we did not point out that there is now a need to revisit this policy of 'free housing'. We are fully Page 49 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc conscious that we cannot issue a mandamus or a direction to frame a policy, let alone frame it in a particular manner. We are also not striking down or reading down any portion of the existing statute. What we have done is to identify what, according to us, is the cause of the issue that has been presented to us in so graphic a manner. We dare say that nobody has yet seen numbers like these before to fully understand the dimensions of the problem.
73. The Slum Act is of 1971. It has been significantly amended. After 1995, it was supposed to have generated in two or three years a large stock of housing or affordable housing of several hundreds of thousand homes. It held out the promise of a more organised city and with a gradual reduction in slums. We do not believe that empirical or anecdotal evidence would support a statement that the city is now slum free. Slums continue. Project after project is sanctioned. There seems to no end to this. Much broader questions will have to be addressed but the immediate problem that presents itself to us quite starkly is the built in assurance of a capital asset being given free of cost for what is essentially an illegality and an act of trespass on public land.
74. We only suggest that this policy needs to be reconsidered appropriately at the highest level. There may be many viable solutions. For instance, and this is only an illustration or an example and nothing further, instead of the delivery of a marketable asset (even with a lock-in-period). if what is provided is a right of user that has no market value, this would operate as an automatic disincentive to the trafficking. A lock-in-period may be defined, but after that the Page 50 of 54 19th & 20th June 2023 ::: Uploaded on - 05/08/2023 ::: Downloaded on - 06/08/2023 02:05:03 ::: KOLEKALYAN SRA PROJECT - BUDHPUR BUILDCON-HDIL 20230620-2-oswpl-7714-2023+-F4.doc allottee should not be allowed to capitalise on the asset. He may be allowed to receive the cost of construction with an appropriate indexation and the rest of the transfer price could be directed to be given to SRA as a premium for future work. SRA has ongoing needs. The transferee of such an allotment would, however, be deemed to have purchased the asset because he or she would have paid market value and, therefore, downstream transfers would be permissible provided SRA is not only kept informed so that its records are updated but that an appropriate premium or fee is paid to SRA for every subsequent transfer. How that amount should be paid and to what extent is a matter of policy. There maybe many views on this. But that SRA should be entitled to some amount for every transfer seems to us clear because these rehab constructions have been put up a specific purpose that involves SRA as a public authority. They are not in that sense private developments meant for free market sale. That is a distinction that should always be born in mind.
75. At the cost of repetition, we have only included this somewhat unusual passage as a possible approach. We are emphatically not able to compel it. But we do commend a reconsideration, if thought fit, of this aspect of the matter.
76. Having said that, portions of Section 3E with appropriate modification require retention. In particular the sub-clause for eviction, with some corresponding change to the proviso, perhaps to provide for a jurisdictional restriction. The attempt should be to prevent the ongoing trafficking and profiteering in what is essentially government property.
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77. The other suggestion that we are compelled to make in light of what we have noticed is that SRA must evolve an internal protocol or mechanism for biometric identification and Aadhaar- based identification.
78. We suggest that SRA must now more aggressively use biometric identification and Aadhar-based identification and Aadhar and Mobile and OTP based authentication not only for the head of the family but for all adults and Aadhar identification for all minors as well. This is the only way to prevent individuals from obtaining benefits in multiple schemes or multiple times in the same scheme or husband and wife and different family members obtaining separate benefits. Mr Sathe tells us that from 2015 onwards there is biometric record keeping but only for the head of the family. This is only partly useful. There are cases where a married couple, though entitled to a single rehab unit have acquired one in each spouse's name. There are also cases where for want of a coordinated biometric or Aadhar data base and record keeping persons have obtained rehab units in multiple schemes in different places.
79. Obviously, the biometric and Aadhaar identification can be done even for those in existing rehab tenants. It is not necessarily restricted to further projects. Anyone who is found to have illicitly obtained multiple rehab units must face action including, we believe, summary eviction from because that is nothing but a fraud on statute.
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80. Similar would be the case if immediate members of a family have obtained multiple rehab units. The biometric identification cannot also, we believe, be restricted to the head of the family but must extend to all family members involved.
MHADA NOC
81. For completeness of record, we note Mr Khandeparkar's statement in relation to the erstwhile claim of MHADA. It had revoked its NOC because MHADA was the owner of the land. In an Affidavit of 17th February 2023 filed by one Sanjaykumar Bhosle, in Writ Petition (L) No. 2217 of 2019, it was said on behalf of MHADA that the NOC has been reinstated. Paragraph 6 says that the NOCs dated 16th November 2005 and 1st June 2006 for the MHADA owned plots are valid and subsisting. Subsequent letters of 13th April 2018 and 31st July 2018 by MHADA revoking the NOCs are withdrawn and of no effect. This statement is noted.
COPY TO THE LEARNED ADVOCATE-GENERAL AND PRINCIPAL SECRETARIES
82. In view of the observations we have made, we request the Registry to forward a copy of this order to the learned Advocate General and to the Principal Secretary, Law and Judiciary and to the Principal Secretary, Housing.
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83. On the next date, we expect to receive an update from Mr Surana, Mr Chaudhari and Budhpur Buildcon as to the progress being made in regard to the financial records of HDIL. We trust that this will be enough time for Ms Mistry and Mr Rebello to be able to put together a tabulation of the various claims that we have before us in this group of matters.
84. List the matter on 24th July 2023.
85. All office objections in all matters are to be removed by the next date.
(Neela Gokhale, J) (G. S. Patel, J)
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