Bombay High Court
Stanley James Farro vs Municipal Commissioner Of Greater ... on 24 February, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
P1-OSPWL-5359-2023+.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.5359 OF 2023
Neil Joseph Serrao & Anr ...Petitioners
Versus
Municipal Commissioner, BMC & Ors ...Respondents
WRIT PETITION (L) NO.5360 OF 2023
Stanely James Farro & Ors ...Petitioners
Versus
Municipal Commissioner, BMC & Ors ...Respondents
Ms Sulendra Farro, for the Petitioner in both WPs.
Mr Ashish Kamath, Senior Advocate, with Hrushi N, Parag
Kabadi, Tanya Mehta, Vaibhavi Bhalerao, Anish S, i/b DSK
Legal, for the Respondent No. 6 in both WPs.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 24th February 2023
AMOL
PREMNATH
JADHAV
PC:-
Digitally signed
by AMOL
PREMNATH
JADHAV
Date: 2023.02.27
11:24:04 +0530
1. Not on board. Mentioned. Taken on board.
2. This is the second attempt by the same set or class of Petitioners to stop the rehabilitation project despite a series of orders going back to 2018. We have dealt with these in detail by our Page 1 of 5 24th February 2023 P1-OSPWL-5359-2023+.DOC orders dated 1st December 2021, 22nd November 2022 and then more recently in January and February 2023. There are as we have noted, apart from slum dwellers, 60 Municipal Tenants and four Vacant Land Tenure persons. Some of these have previously claimed that their lands are in Gaothan areas, that they are Adivasis, that they are not actually tenants of the Municipal Corporation of Greater Mumbai ("MCGM"), that the MCGM is only their 'caretaker' (a concept that does not exist in municipal law) and so on. Previous orders were challenged up to the Supreme Court without success. There are orders of the Supreme Court of 24th January 2022 and 11th February 2022 dismissing Special Leave Petitions
3. Mindful of the fact that this is a very large project with more than 700 displaced persons awaiting rehabilitation, we made it clear that our primary -- and perhaps only -- objective was to ensure that these displaced persons received transit rent in time and were able to get possession of their reconstructed, redeveloped or rebuilt homes on a schedule. Left unsupervised, the project would have meandered on for even longer than it already has. For this reason, we did not dispose of the Petition but have kept it periodically on board to supervise this phase, i.e. the rehab phase of the project. This has necessarily involved supervising the systematic evacuation of persons from structures that need to be removed. They being moved into transit accommodation or being paid transit rent and then there will be their phased move into rebuilt homes.
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4. Every group that opposes the project stands before us and says that it is not opposed to redevelopment but then proceeds to do precisely that. In paragraph 34 of our order of 22nd November 2022, noticing how different applications were being made in different for a, causing confusion, we directed that all applications relating to the project should be made by way of an Interim Application in this matter. A previous set of Petitions or a previous Petition filed through Ms Farro came to be rejected by us. At that time, we were told that her clients were municipal occupants in a Gaothan area, and that the MCGM was merely a caretaker.
5. Now it seems that two fresh Petitions have been filed. They were mentioned this morning before another Bench. That Bench was shown our order. It directed that the matter be mentioned before us. Yet again, at 2:30 pm the matters were needlessly mentioned before that Bench, which issued the same directions. It is only thereafter that the matter is mentioned before us.
6. The application today is for a stay of the ongoing and long- planned demolition of existing structures with persons being moved out. Nobody who is eligible is being forced onto the streets. Transit rent is offered. Permanent Alternate Accommodation Agreements ("PAAAs") are being executed and put in place. We have already made it clear that we will look into any special entitlements in law for municipal tenants, i.e., factors that may legitimately distinguish them in a project like this from others who are slum dwellers or encroachers on public or private lands. This does not mean that fresh objections can constantly be taken by groups whose previous Page 3 of 5 24th February 2023 P1-OSPWL-5359-2023+.DOC applications or petitions have failed. We are now told that under Development Control and Promotion Regulations 2034 ("DCPR") the development falls under DCR 33(16) and therefore the present Petitioners must be excluded from the project. We are also now told that these persons are Adivasis. These are all points that were available to the Petitioners even previously. None of these are subsequent events. It is not possible for Petitioners to reagitate the same rights by constantly invoking new grounds again and again. Principles analogous to res judicata must undoubtedly apply. The argument about these Petitioners' lands being Gaothan lands has been taken before and has failed. Other arguments of special treatment have failed up to the Supreme Court. The present arguments were available at all those times.
7. What these objectors (who say they are not objectors) do not seem to realise is that their objections come at the very real cost of others who are waiting for possession of their rebuilt homes. If these objections continue and if they are allowed to delay the project, those other displaced persons must continue in transit. Their long- delayed promise of rebuilt homes recedes further and further in time. That is not a situation we are prepared to accept at the instance of these individuals. We have already said we will look into the question of how municipal tenants should be classified in distinction to slum dwellers. But this does not mean that Petitioners like the present ones can claim to be excluded from the project and, in the meantime, seek a stay on the in-progress evacuation. This is a process that began decades ago. It can come as no surprise. We have previously rejected the submission of these persons being unaware Page 4 of 5 24th February 2023 P1-OSPWL-5359-2023+.DOC of the project. We have seen the scale of the project and the construction in photographs.
8. Notably, none of these 'objectors' are willing to bear the very real financial cost of other affected persons continuing in transit. Other affected persons are not even joined to such petitions.
9. No interim relief.
10. These Petitions will be listed with the other Petitions on the 9th March 2023.
(Neela Gokhale, J) (G. S. Patel, J)
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24th February 2023