Bombay High Court
Sugra Begum vs State Of Maharashtra Through The Govt. ... on 31 July, 2020
Author: B. P. Colabawalla
Bench: S.J. Kathawalla, B.P. Colabawalla
TOMBS OSWP3127.19.doc
Dhanappa IN THE HIGH COURT OF JUDICATURE AT
I. Koshti BOMBAY
Digitally signed ORDINARY ORIGINAL CIVIL JURISDICTION
by Dhanappa I.
Koshti
WRIT PETITION NO. 3127 OF 2019
Date: 2020.07.31
17:01:15 +0530
Sugra Begum Abdul Gani Shaikh, ]
aged about 76 years, Through her C.A. ]
Sajid R. Khan, presently residing at ]
Room No.7, 1st Floor, 158, Kachwala ]
Building, Null Bazar, Mumbai 400003 ]
But permanently residing at Ground ]
Floor, Sharafally Mamooji Chawl ]
bearing CS No.3573, located at Gujar ]
Street, Bhendi Bazar, Mumbai 400003 ] ... Petitioner
Versus
1 State of Maharashtra, Through the ]
Govt. Pleader, High Court, A.S., ]
Mumbai representing the office of ]
the Urban Development Department, ]
Mantralaya, Mumbai. ]
2 The Collector, Mumbai City, having ]
office at Old Custom House, SBS Road ]
Mumbai ]
3 Mumbai Municipal Corporation, ]
Through its Commissioner, having ]
his Office at BMC HQ, Opp. C.S.T., ]
Mumbai ]
4 The Director (Engineering Services ]
and Projects), Member-Secretary, ]
High Power Committee, BMC, having ]
office at 4th Floor, BMC HQ, Opp.CST, ]
Mumbai. ]
5 MHADA, Through its CEO, having ]
SR Pasha, Sr PS 1/32
TOMBS OSWP3127.19.doc
office at Griha Nirman Bhavan, ]
Bandra (East), Mumbai ]
6 MBR&R Board, Mumbai, Through its ]
CO, having office at 1st Floor, 89/95, ]
Rajani Mahal Bldg., Tardeo, Mumbai ]
7 The Maharashtra State Board of Waqf ]
through its CEO, having office at ]
Panchakki, Aurangabad ]
8 Saifee Burhani Upliftment Trust, ]
Through its Trustees, having its ]
registered office at 47/49, Raudat ]
Tahera Street, Ground Floor, ]
Bhendi Bazar, Mumbai - 400 003 ].Respondents
ALONGWITH
CHAMBER SUMMONS NO. 27 OF 2018
IN
WRIT PETITION NO. 3127 OF 2019
Mohammed Suleman Gain ]
Indian Muslim of Mumbai having his ]
address at 153, Saifee Jubilee Street ]
ground floor, shop No.7, Bhendi Bazaar ]
Mumbai 400 003. ].Applicant /
Intervenor.
IN THE MATTER BETWEEN
Sugra Begum Abdul Gani Shaikh, ]
aged about 76 years, Through her C.A. ]
Sajid R. Khan, presently residing at ]
Room No.7, 1st Floor, 158, Kachwala ]
Building, Null Bazar, Mumbai 400003 ]
But permanently residing at Ground ]
Floor, Sharafally Mamooji Chawl ]
bearing CS No.3573, located at Gujar ]
SR Pasha, Sr PS 2/32
TOMBS OSWP3127.19.doc
Street, Bhendi Bazar, Mumbai 400003 ] ... Petitioner
Versus
1 State of Maharashtra, Through the ]
Govt. Pleader, High Court, A.S., ]
Mumbai representing the office of ]
the Urban Development Department, ]
Mantralaya, Mumbai. ]
2 The Collector, Mumbai City, having ]
office at Old Custom House, SBS Road ]
Mumbai ]
3 Mumbai Municipal Corporation, ]
Through its Commissioner, having ]
his Office at BMC HQ, Opp. C.S.T., ]
Mumbai ]
4 The Director (Engineering Services ]
and Projects), Member-Secretary, ]
High Power Committee, BMC, having ]
office at 4th Floor, BMC HQ, Opp.CST, ]
Mumbai. ]
5 MHADA, Through its CEO, having ]
office at Griha Nirman Bhavan, ]
Bandra (East), Mumbai ]
6 MBR&R Board, Mumbai, Through its ]
CO, having office at 1st Floor, 89/95, ]
Rajani Mahal Bldg., Tardeo, Mumbai ]
7 The Maharashtra State Board of Waqf ]
through its CEO, having office at ]
Panchakki, Aurangabad ]
8 Saifee Burhani Upliftment Trust, ]
Through its Trustees, having its ]
registered office at 47/49, Raudat ]
Tahera Street, Ground Floor, ]
SR Pasha, Sr PS 3/32
TOMBS OSWP3127.19.doc
Bhendi Bazar, Mumbai - 400 003 ].Respondents
Mr. Bhavesh Parmar with Mr. Vivekanand i/b Mr.
Devmani Shukla for the Petitioner.
Mr. Himanshu Takke, AGP, for the Respondent Nos.l &
2 - State.
Ms. P.H. Kantharia, with Ms. Vandana Mahadik for
MCGM.
Mr. Virag Tulzapurkar, senior advocate with Ms. S.
Srikrishna, Ms. Nanki Grewal and Mr. Denzil i/b Wadia
Ghandy & Co. for the Respondent No.8.
CORAM : S.J. KATHAWALLA, &
B.P. COLABAWALLA,, JJ.
DATE: 31st JULY, 2020
ORAL JUDGMENT : [ PER B. P. COLABAWALLA, J. ]
1. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks a direction against the respondent authorities to take appropriate legal action, including revoking / cancelling or withdrawing the permission and sanction given to the Respondent No.8 - Trust vide Letter of Intent (LOI) dated 10th August, 2011, Intimation of Disapproval (IOD) dated 30th April, 2015 and Commencement Certificate (CC) dated 28th SR Pasha, Sr PS 4/32 TOMBS OSWP3127.19.doc August, 2015, based upon the petitioner's complaints dated 12th July, 2017 and 15th October, 2017.
2. Before dealing with the facts, it would be apposite to refer to the parties herein. The petitioner is an individual residing at Room No.7, 1st Floor, 158, Kachwala Building, Null Bazar, Mumbai 400003. She claims her permanent residence at a premises admeasuring approximately 342.62 square feet on the Ground Floor, Sharafally Mamooji Chawl bearing CS No.3573, located at Gujar Street, Bhendi Bazar, Mumbai 400003 (for short "the said premises"). Respondent No.1 is the State of Maharashtra and Respondent No.2 is the Collector of Mumbai City. Respondent No.3 is the Municipal Corporation of Greater Mumbai (MCGM) and Respondent No.4 is the Director of the High Power Committee (HPC) of the MCGM. Respondent No.5 is MHADA and Respondent No.6 is the MBR&R Board. Respondent No.7 is the Maharashtra State Board of Waqf through its CEO having their office at Aurangabad. Respondent No.8 is the Saifee Burhani Upliftment Trust i.e. the contesting respondent.
3. The brief facts that give rise to the present SR Pasha, Sr PS 5/32 TOMBS OSWP3127.19.doc controversy are in quite a narrow compass. The facts are really undisputed. Respondent No.8 is a Public Charitable Trust that is registered under the Maharashtra Public Trusts Act, 1950. On 5th November, 2009, Respondent No.8 executed a Deed of Conveyance and acquired right, title and interest in a plot of land and structures thereon mentioned in the said Deed. It is the case of the petitioner that in the said Deed of Conveyance (the First Schedule thereto), there is a specific reference to the plot of land and structure used by the petitioner (the said premises) and it is clarified that the said plot of land and structure used by the petitioner is not being conveyed in favour of the Respondent No.8. This is presumably on the fact that the said plot of land and structure has four tombs admeasuring 14 feet X 25 feet (i.e. approximately 350 square feet) covered by walls and which tombs belong to the ancestors of the petitioner's family. The petitioner's family also perform their religious rituals and take care of the said tombs through their personal presence for the last many years.
4. Be that as it may, Respondent No.8 was entrusted in redeveloping the congested buildings in the Bhendi Bazar area by SR Pasha, Sr PS 6/32 TOMBS OSWP3127.19.doc implementation of a Cluster Redevelopment Scheme / Urban Rural Scheme under Regulation 33(9) read with Appendix IIIA of the Development Control Regulations for Greater Mumbai, 1991 (For short "DCR, 1991"). For carrying out this redevelopment, on or about 22nd July, 2011, the Government of Maharashtra, through its Urban Development Department, gave its in principle approval on the total plot area of 39,585.03 square meters at various CS numbers of Bhuleshwar Division, Bhendi Bazar, Mumbai. This was done as per the recommendations of the HPC. Pursuant to this, on 8th August, 2011, Respondent No.8 was also issued a LOI. Thereafter, on 24th November, 2011, MHADA prepared a list of certified tenants / occupants and it is the case of the petitioner that her name is reflected in the said list at Sr. No. 9.
5. Pursuant to the LOI being issued, on or about 30th April, 2015, the requisite authority also issued an IOD in favour of Respondent No.8 and thereafter, also issued a CC on 28th August, 2015.
6. There is no dispute that the re-development of Bhendi SR Pasha, Sr PS 7/32 TOMBS OSWP3127.19.doc Bazar involves the rehabilitation of approximately 3200 residential families and approximately 1200 commercial / retail businesses and affects the lives of around 20,000 people residing/working there presently. It is also not in dispute that Respondent No.8 has obtained irrevocable consents of more than eighty per cent of the total tenants / occupants in the Bhendi Bazar area, including from the petitioner. A total of 2,441 tenants / occupants have shifted out of the Bhendi Bazar area. For implementation of this cluster re-development, Respondent No.8 has notionally divided the Bhendi Bazar area into nine sub- clusters. As on date, Respondent No.8 has already commenced construction.
7. As far as the petitioner is concerned, she is one of the occupants of a premises admeasuring 342.62 square feet which is located on the ground floor of a dangerous and dilapidated building in sub-cluster 1 known as Sharafally Mamooji Chawl located at 176-180A Saifee Jubilee Street and 165/175 Mutton Street. Construction of sub-cluster 1 has already started and all the tenants / occupants, with the exception of the petitioner (who surrendered possession only on 2nd August, 2017 pursuant to the SR Pasha, Sr PS 8/32 TOMBS OSWP3127.19.doc orders of this Court as set out hereinafter), have vacated their respective premises.
8. As mentioned above, on a portion of the said premises on the ground floor there were four private graves / tombs. Since the petitioner was wrongfully refusing to vacate the said premises, Respondent No.8 filed a writ petition before this Court being Writ Petition (L) No. 1726 of 2017 against Respondent Nos.5 and 6 herein seeking a direction to cause the vacation of the petitioner from the said premises. This was for the reason that the premises were in a dangerous condition and construction was going on around the said premises. This writ petition was disposed of by this Court vide its order dated 17th July, 2017. In the said order, this Court directed the petitioner to vacate the said premises within two weeks' and directed Respondent Nos.5 and 6 to take all necessary steps for vacating the petitioner from the said premises, including taking police assistance, if necessary. This order passed by the High Court was challenged before the Hon'ble Supreme Court without any success. The SLP filed by the petitioner herein was dismissed by the Hon'ble Supreme Court on 31st July, 2017. On the dismissal of the SLP, on SR Pasha, Sr PS 9/32 TOMBS OSWP3127.19.doc 2nd August, 2017, the petitioner vacated the said premises and executed a letter of possession in favour of the Respondent No.8. From all this material, it is now clear that the petitioner is no longer in possession of the said premises.
9. The learned advocate for the petitioner has pointed out the above facts and has submitted that the petitioner was in use, occupation and possession of the said premises situated at Sharafally Mamooji Chawl, Building No.180, Ground floor, Saifee Jubilee Street, Bhendi Bazar, Mumbai - 400003 and has right, title and interest over the said premises and is a certified monthly tenant of the said premises. The said room / structure is situated at property bearing CS No. 3573. The learned advocate further submitted that the petitioner's husband was the monthly tenant of the original landlord Sharafali Momooji who, vide a Deed of Conveyance dated 5th November, 2009, transferred the said property to the Trust. The learned advocate further pointed out that the petitioner has four tombs admeasuring 14 ft. X 25 ft. (i.e. 350 square feet approximately) in the said premises / structure which belong to the ancestors of the petitioner's family wherein the petitioner's family have been performing religious SR Pasha, Sr PS 10/32 TOMBS OSWP3127.19.doc rituals and taking care of the said tombs through personal presence and administration for the last many years and it is a private property of the petitioner and a heritage structure that deserves to be protected and preserved. He further submitted that in the Deed of Conveyance executed on 5th November, 2009 in favour of the Trust, there is a specific mention in paragraph 7 to a Deed of Waqf dated 30th August, 1950 and the said Deed of Waqf also refers in its third schedule, to the petitioner's premises as mentioned in the Deed of Conveyance. He submitted that how the Trust acquired right, title and interest in the plot of land and structures thereupon vide a Deed of Conveyance dated 5th November, 2009 when the same Deed of Conveyance specifically refers to the Deed of Waqf dated 30th August, 1950 and the properties of the Waqf, was beyond his comprehension. He submitted that the authorities have failed and overlooked the aforesaid serious wrong and illegality under the law.
10. The learned advocate for the Petitioner then submitted that in the IOD issued in favour of the Trust, condition Nos.19 and 21 were not complied with, i.e. no work should be started unless the existing structures are demolished and the SR Pasha, Sr PS 11/32 TOMBS OSWP3127.19.doc tenants are shifted after execution of permanent alternate accommodation agreements. He contended that no such agreement was executed with the petitioner despite repeated requests, and respondent No.8 failed to provide to the petitioner the relevant annexures mentioned in the permanent alternate accommodation agreement. In the absence of the annexures, the petitioner could not finalize the agreement and in the given circumstances, no prudent man would have executed the agreement in the absence of such relevant annexures, was the submission.
11. The learned advocate thereafter contended that condition No. 20 of the IOD states that breach of any of the conditions would lead to the IOD being revoked and the CC being withdrawn, along with further legal action being taken under the provisions of law. He submitted that though these conditions were not complied with, no action was taken against the respondent No.8-Trust. The respondent No.8-Trust has openly flouted and is flouting the said conditions which has also led to the untimely death of 33 persons and 18 persons being grievously injured in the Husaini Building collapse which was also one of the SR Pasha, Sr PS 12/32 TOMBS OSWP3127.19.doc buildings to be redeveloped by the Trust. It is his submission that the petitioner filed several complaints with the authorities concerned, pointing out the wrongs and illegalities committed by the Trust, but to no avail. No action was taken against the Trust and the petitioner submits that the authorities are hand in glove with the Trust and chose to turn a deaf ear to the complaints filed by the petitioner.
12. The petitioner's advocate then pointed out that pursuant to an order of this Court dated 17th July 2017, (in a petition filed by the Trust against the petitioner herein), the petitioner complied with the said order and handed over temporary physical possession of the petitioner's premises to the Trust for the redevelopment process. He submitted that despite an assurance given by the Trust to protect and safeguard the tombs situated in the petitioner's premises, the Trust has not taken sufficient safeguards to protect the tombs of which possession was taken from the petitioner pursuant to the order of this Court. The four tombs are of the petitioner's ancestors and are heritage structures which deserve to be protected and preserved. The Trust was and is damaging the four tombs and SR Pasha, Sr PS 13/32 TOMBS OSWP3127.19.doc not taking proper safeguards to protect them, was the submission.
13. The learned advocate further pointed out that in a letter dated 13th October, 2017, addressed to MHADA, the petitioner stated that the Trust were and are making provisions for affixing the door leading to Mutton Street, by partially demolishing the wall immediately opposite the existing door leading to Saifee Jubilee Street, ignoring the religious and sentimental values of the petitioner. The location of the door and the wall in and around the four tombs has religious significance and value as it is common knowledge that all persons following the Islam religion offer prayers/Namaz facing the West, since Mecca Medina are located in the West. Post the aforesaid wrongful and illegal shifting of the door, persons have to make entry from the West wherein the Mutton Street is located, making it difficult and irrational as people would be able to enter when prayers are in progress. The learned advocate submitted that employees/trustees of the Trust belong to the Shia sect of Islam and have therefore shown absolute disrespect and scant regard for the religious sentiments of the petitioner belonging to SR Pasha, Sr PS 14/32 TOMBS OSWP3127.19.doc the Sunni sect of Islam.
14. The last submission canvassed on behalf of the petitioner was that the Trust has also failed to execute the permanent alternate accommodation agreement with the petitioner. The draft agreement supplied to the petitioner was without enclosures/annexures referred to in the draft agreement and, therefore, no prudent person including the petitioner could have and can have agreed to the execution of the same without first considering the annexures. The learned advocate stated that the Trust is not providing the relevant annexures and by sending letters to the petitioner that they are willing to execute the agreement at any time, the Trust is trying to create a false impression in the mind of the Court that it is the petitioner who is not co-operating with the re-development process and that she is the only person who is to blame for the delay and hindrance in the re-development process. It is in these circumstances that the petitioner is constrained to file the present petition seeking necessary reliefs against the respondents, was the submission. SR Pasha, Sr PS 15/32
TOMBS OSWP3127.19.doc
15. Before completing his arguments, the learned advocate appearing on behalf of the petitioner also brought to our attention page 260 of the paper book (a plan annexed at Exh"G" to the affidavit in reply of respondent No.8 dated 22nd December, 2017) and submitted that next to the tombs are three retail shops. The learned advocate on instructions made an offer that the petitioner is willing to take two of the retail shops adjoining the said tombs as her residence in lieu of two rooms allotted to her on the said land so that the issue with reference to the entrance to the Darga / tombs could be sorted out.
16. On the other hand, Mr. Tulzapurkar, the learned senior advocate for the respondent No.8-Trust, submitted that it is a Trust created by virtue of a Trust Deed dated 6th April, 2009 in accordance with law. On 5th November, 2009, vide a Deed of Conveyance, the Trust acquired right, title and interest over a property / plot admeasuring 39,585.03 square meters, including the petitioner's premises. In 2011, the re-development proposal was accepted by the Trust and the entire procedure was carried out in accordance with law and the plan was an approved and sanctioned plan. All the relevant documents were submitted and SR Pasha, Sr PS 16/32 TOMBS OSWP3127.19.doc all the steps and procedures were duly complied with. It was a cluster re-development project which included 9 sub-clusters to be re-developed as a part of the Urban Renewal Scheme and the petitioner's premises was a part of sub-cluster 1 which was to be redeveloped. Out of a total of 54 tenants, 53 tenants vacated their premises and executed permanent alternate accommodation agreements with the Trust, except the petitioner whose premises was in sub-cluster 1 and was to be re-developed first. The entire building, except the ground floor of the petitioner was to be demolished, but because of the non- cooperation of the petitioner, the redevelopment work could not be and cannot be carried out. It was further submitted that vide an order dated 17th July, 2017, the petitioner was asked to hand over temporary physical possession of her premises to the Trust as the entire building was demolished except the petitioner's premises and the entire work of re-development was stalled because of the petitioner's premises. It was made abundantly clear that the four tombs belonging to the petitioner won't be touched or damaged and the status quo qua the four tombs of the petitioner would be maintained and that she would be handed back the tombs in the same condition and position as given by her SR Pasha, Sr PS 17/32 TOMBS OSWP3127.19.doc once the re-development work was complete. Mr. Tulzapurkar also pointed out that the petitioner was even given a cheque of Rs.18,00,000/- as advance rent for the next three years being Rs.50,000/- per month in lieu of the transit accommodation.
17. Mr. Tulzapurkar submitted that even after handing over physical possession of the petitioner's premises, the petitioner has left no stone unturned to try and stall the redevelopment process one way or the other by filing several frivolous litigations. The petitioner has been visiting the site alleging that the four tombs are being damaged by the Trust. Mr. Tulzapurkar once again reiterated before us that the four tombs will be preserved and protected and that they have also stated the same on affidavit. He however pointed out that the petitioner has not removed her belongings completely and it is not possible to start the work near the tombs in order to build structures to protect the tombs unless the petitioner removes her belongings and lets the work happen smoothly without creating unnecessary obstacles. It is submitted that the petitioner needs to have trust in respondent No.8 like the other tenants and accept the word of respondent No.8 that the tombs would not be damaged. SR Pasha, Sr PS 18/32
TOMBS OSWP3127.19.doc
18. With regard to the petitioner's contention that the opening of the door from Mutton Street has made the offering of prayers/namaz difficult and irrational, Mr. Tulzapurkar submitted that the opening of the door from Mutton Street is a part of the approved and sanctioned plan as it is much wider than the old Saifee Jubilee Street and provides better light, ventilation and access to the petitioner's premises. The petitioner herself mentioned in the petition that the tombs are of her ancestors and it is a private property of the petitioner. As it is a private property, the petitioner can offer the prayers without any hindrance or disturbance by closing the door while offering the prayers, was the submission of Mr. Tulzapurkar.
19. Regarding the issue of non-execution of the permanent alternate accommodation agreement is concerned, Mr. Tulzapurkar submitted that because of the petitioner's unwillingness to execute the permanent alternate accommodation agreement, it has not been executed till date. The Trust has time and again sent letters (more particularly the letters dated 13th September 2017 and 6th November, 2017) SR Pasha, Sr PS 19/32 TOMBS OSWP3127.19.doc calling upon the petitioner to execute the said agreement. All the other 53 tenants have executed the permanent alternate accommodation agreements and have also been provided with transit accommodation or rent. It is only the petitioner who has not executed the same despite the annexures to the agreement also being forwarded to the petitioner. In fact, the petitioner has also been given a cheque of Rs.18,00,000/- as advance rent in lieu of the transit accommodation. The Trust has always been and is still willing to execute the permanent alternate accommodation agreement with the petitioner and has also categorically stated that the four tombs would be protected from damage and wastage. The attitude of the petitioner to stall the work of redevelopment and bring it to a standstill is neither reasonable nor necessary/called for. The petitioner's SLP challenging the order of the Hon'ble Bombay High Court to hand over temporary physical possession of her premises to the Trust was also dismissed by the Hon'ble Supreme Court. Even after handing over possession, the petitioner has been trying to interfere with the redevelopment process by raising false allegations against the Trust. Till date, the development work has not been completed and with the adamant attitude of the petitioner, the completion of SR Pasha, Sr PS 20/32 TOMBS OSWP3127.19.doc the sub-cluster 1 also is getting unnecessarily delayed. For all these reasons, Mr. Tulzapurkar submitted that there is absolutely no merit in the above writ petition. He submitted that if any orders are passed in the present writ petition, it would be contrary to the public interest, especially taking into consideration that the entire Cluster Re-development Project would be affected and more particularly the tenants, including the petitioner, who have already vacated their respective premises. He submitted that the petitioner has left no stone unturned to thwart the re-development in order to blackmail and pressurize Respondent No.8 to give into her illegal demands. He, therefore, strongly urged that not only the petition be dismissed, but the same be done by imposing exemplary costs upon the petitioner.
20. As far as the offer of the petitioner regarding the allotment of retail shops is concerned, Mr. Tulzapurkar, the learned senior counsel appearing on behalf of respondent No.8, submitted that this offer cannot be accepted by respondent No.8. He submitted that firstly what was occupied by the petitioner were residential premises and what is allotted to her are also SR Pasha, Sr PS 21/32 TOMBS OSWP3127.19.doc residential premises. Now, with this new offer, she seeks allotment of retail premises which cannot be done. Secondly, and more importantly, Mr. Tulzapurkar submitted that these retail premises are not available for allotment to the petitioner as they have already been allotted to some other parties. In these circumstances, he submitted that the Trust is not in a position to accept the offer made on behalf of the petitioner.
21. We have heard the learned counsel for the parties at great length. We have also perused the papers and proceedings in the present petition along with its annexures. We have also carefully perused the three affidavits filed on behalf of respondent No.8 dated 22nd December, 2017, 15th January, 2018 and 21st November, 2019 respectively.
22. As far as the issue with reference to safeguarding the tombs is concerned, we find that this grievance is adequately taken care of. In fact, in the earlier writ petition filed by Respondent No.8 herein (seeking vacation of the petitioner from the said premises), this Court has recorded a statement on behalf of the Trust that they are not touching the said four tombs whilst SR Pasha, Sr PS 22/32 TOMBS OSWP3127.19.doc undertaking re-development. In fact, in the affidavit filed on 21st November, 2019 (in the present writ petition), it is once again stated on oath that the building has been demolished and the construction of sub-cluster 1 (where the said building was located) has already started. It is further stated that construction over the said tombs has already started and completed upto the first floor. It is thereafter repeated and reiterated that the said four tombs have not been and will not be touched to ensure that they are not damaged. Respondent No.8 has made every arrangement to ensure the safety of these tombs as more particularly set out in their affidavit dated 22nd December, 2017, and as more particularly stated in paragraphs 8, 9 and 10, which read as under:-
"8. I say that all allegations with respect to damage being caused to the said Graves are baseless. In fact, due to the obstruction being caused by the Petitioner this Respondent has not been able to demolish the said premises in its entirety. However, to ensure that the said Graves are not damaged, this Respondent has made temporary arrangements by installing props to support the already dilapidated and dangerous walls and a wooden plank has been put to support the ceiling. These are however temporary measures, which have been necessitated because of the obstruction being caused by the petitioner. Annexed hereto and marked as Exhibit "E" are photographs showing the props and wooden plank installed by Respondent No.8. These photographs also show the dilapidated and dangerous condition of the walls surrounding the said Graves and the ceiling.SR Pasha, Sr PS 23/32
TOMBS OSWP3127.19.doc
9. Additionally, Respondent No.8 has also done shore piling work on two sides of the said Graves which will protect the said Graves from the construction being carried out below ground level around the said Graves. Plan showing the manner in which the shore piling has been done is annexed hereto and marked as Exhibit "F".
10. I state and submit that Respondent No.8 wanted to take further steps to protect the said Graves by installing a metal box cover over the said Graves and complete the shore piling work from third side of the said Graves. However, the petitioner has been causing a hindrance and has been obstructing Respondent No. 8 from doing the same. The petitioner is also refusing to remove her belongings from the said premises. I say that this conduct of the petitioner clearly reflects that the petition is nothing but an attempt by the petitioner to cause harassment to the Respondent No.8 cause obstruction in the redevelopment and to arm twist Respondent No.8. I say that on this ground alone, the petition should be dismissed. I say that the temporary propping and wooden planks will not protect the graves in the long run and for the said Graves to remain protected while the redevelopment is going out it is necessary that the metal box be installed over the said Graves and the remainder of the said premises be demolished. I say that Respondent No. 8 can redevelop the said Building only once the said Graves are protected with the metal box and the shore piling work on the third side is also completed."
23. We accept the statements made on oath by Respondent No. 8 as undertakings given to this Court that they will ensure that during the course of re-development, the four tombs which are the tombs of the ancestors of the petitioner, shall not be damaged in any manner whatsoever. For ensuring the safety of the tombs, the Trust can undertake the shore piling work and also protect the tombs with a metal box, if so required. SR Pasha, Sr PS 24/32
TOMBS OSWP3127.19.doc The Petitioner shall not cause any hinderance in that regard and immediately remove all her belongings from the said premises so that the re-development can proceed unhindered.
24. As far as the issue regarding the entrance to the premises is concerned, namely, from Mutton Street instead of Saifee Jubilee Street, we find this grievance to be of no substance. It is not in dispute that as per the approved plans, the said tombs would be retained and upon redevelopment the petitioner will be given new premises at the same location. The alleged access to the tombs from Saifee Jubilee Street is no longer available for the simple reason that as part of the re-development of the said Scheme / Cluster Development, the roads therein have been realigned and Saifee Jubilee Street does not form part of the sub- cluster 1 where the said premises of the petitioner are located. Further, and more importantly, in the proceedings filed in the Small Causes Court at Mumbai, the petitioner has categorically admitted that the said tombs belong to the ancestors of the family of the petitioner and the said graves are private property and not public property or a public religious place. This being the case, we find considerable force in the argument of Mr. Tulzapurkar SR Pasha, Sr PS 25/32 TOMBS OSWP3127.19.doc that no hindrance would be caused or religious sentiments ignored or affected by giving an entrance from Mutton Street instead of Saifee Jubilee Street. This is for the simple reason and as correctly submitted by Mr. Tulzapurkar, that this not being a religious public place, and being the private property of the petitioner, the door from Mutton Street could always be closed by the petitioner at the time of offering prayers/namaz at the tombs to ensure that no other person is walking in and out of the said premises while the prayers are being offered. We, therefore, do not find any merit in the contention of the petitioner that changing the entrance to the said premises from Saifee Jubilee Street to Mutton Street would in any way affect the religious sentiments of the petitioner. Furthermore, we cannot lose sight of the fact that in the entire re-development, the roads in the said Scheme/Cluster Redevelopment Project have been realigned and Saifee Jubilee Street does not form a part of the sub-cluster 1 where the premises of the petitioner are situated. We, therefore, find absolutely no merit in the aforesaid contention.
25. As far as the permanent alternate accommodation agreement is concerned, we find from the record that SR Pasha, Sr PS 26/32 TOMBS OSWP3127.19.doc Respondent No.8 had on several occasions tried to hand over the draft permanent alternate accommodation agreement to the petitioner along with the annexures thereto vide it letters dated 13th September, 2017 and 6th November, 2017. In fact, in the affidavit dated 22nd December, 2017, a categorical statement is made in paragraph 15 thereof that Respondent No.8 is and has always been willing to execute the said agreement with the petitioner.
26. As far as the offer made by the petitioner for allotment of retail shops in place of residential premises is concerned, Mr. Tulzapurkar has already explained why this offer cannot be accepted. We can only take the aforesaid offer into consideration if there was a consensus between the parties on this issue. If both parties had agreed, there would have been no difficulty. However, considering that Mr. Tulzapurkar has specifically stated before the Court that the retail premises/shops (of which the petitioner seeks allotment) are already allotted to some other parties, there is no question of us passing any order in that regard. At the end of the day, such an order can only be passed by the Court if parties agreed to the same and not SR Pasha, Sr PS 27/32 TOMBS OSWP3127.19.doc otherwise.
27. Before parting, we must mention that we do not think that the reliefs sought for in the present petition for cancellation of the LOI, IOD and CC carry any weight. We cannot lose sight of the fact that this is the entire cluster re-development of Bhendi Bazar and already 2441 tenants / occupants have shifted out and are waiting for their respective permanent alternate accommodation. Prima facie we are of the opinion, and agree with Mr. Tulzapurkar that this petition is nothing but another attempt to merely obstruct the entire re-development project. In larger public interest, we cannot allow the petitioner to do so. It is now well settled that in writ jurisdiction, it is not sufficient that a party should come to this Court and make out a case that a particular order / action is not valid. In order to get relief from the Court in writ jurisdiction, one must not only come with clean hands, not suppress any material fact, show utmost good faith, but he must also satisfy the court that making of the order will do justice and that justice lies on his side. In this respect, it would be apposite to refer to the observations of a Division Bench of this Court (M.C. Chagla, C.J. and S.T. Desai, J. as they then were) in SR Pasha, Sr PS 28/32 TOMBS OSWP3127.19.doc the case of The State of Bombay Vs. Morarji Cooverji [1958 LXI BLR 318]. The observations of the Division Bench [At page 332 of the report] are as under:-
"But it is not sufficient that a party should come to this Court and make out a case that a particular requisition order is not valid. In order to get that relief from the Court on a writ petition, not only must he come with clean hands, not only must he not suppress any material facts, not only must he show the utmost good faith, but he must also satisfy the Court that the making of the order will do justice and that justice lies on his side."
28. Looking to the facts of this case, we are clearly of the view that making any order regarding the cancellation of the LOI, IOD or CC would not do any justice and certainly justice does not lie on the side of the petitioner to seek those reliefs. In fact, if any relief as sought is granted and that too at this late stage, we are of the view that it would do great injustice to the thousands of tenants who have already vacated their premises to ensure that the cluster re-development of the Bhendi Bazar area is taken to its logical conclusion. In these circumstances and looking to the totality of the facts of the case, we pass the following order:-
(i) We accept the statements made on oath by Respondent No. 8 as undertakings given to SR Pasha, Sr PS 29/32 TOMBS OSWP3127.19.doc this Court that they will ensure that during the course of re-development, the four tombs (and which are the tombs of the ancestors of the petitioner) shall not be damaged in any manner whatsoever. For ensuring the safety of the tombs, the Trust can undertake the shore piling work and also protect the tombs with a metal box, if so required. The Petitioner shall not cause any hinderance in that regard and immediately remove all her belongings from the said premises so that the re-
development can proceed unhindered;
(ii) respondent No.8 shall enter into a Permanent Alternate Accommodation Agreement with the petitioner in the same form as is done with the other tenants of the building in which the petitioner was originally residing. This agreement shall be entered into by respondent No.8 with the petitioner within a period of two (2) weeks from today;
(iii) barring the aforesaid directions, no other relief as sought for in the writ petition is granted and qua those reliefs, the writ SR Pasha, Sr PS 30/32 TOMBS OSWP3127.19.doc petition is dismissed.
29. The Writ Petition is accordingly disposed of in the aforesaid terms.
30. There is also a Chamber Summons filed by an intervener Mohammad Suleman Gain being Chamber Summons (L) No. 471 of 2017 (Chamber Summons No.27 of 2018). The prayers in this Chamber Summons is to permit the applicant/ intervener to intervene in the above Writ Petition and to direct the petitioner to add and implead the applicant/ intervener as a party respondent in the above Writ Petition. We have gone through the Chamber Summons and the affidavit in support thereof. From the affidavit in support we find that the intervener has filed his independent proceedings being L. C. Suit No.2176 of 2017 against respondent No.8 as well as the petitioner herein. We find that the grievances raised in the affidavit in support of the present Chamber Summons are also forming part of L. C. Suit No. 2176 of 2017 filed by the intervener against respondent No.8 and the petitioner herein. The intervener, having adopted his independent proceedings, can raise all his grievances in those SR Pasha, Sr PS 31/32 TOMBS OSWP3127.19.doc proceedings. We therefore do not find any necessity in allowing the intervener to intervene in this Writ Petition. The Chamber Summons is accordingly dismissed. No order as to costs.
B. P. COLABAWALLA, J. S. J. KATHAWALLA, J.
SR Pasha, Sr PS 32/32