Bombay High Court
Abdul Majid Vakil Ahmad Patvekari And ... vs The Slum Rehabilitation Authority Pune ... on 31 August, 2021
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally signed
by VIDYA
VIDYA SURESH AMIN
SURESH Date:
2021.09.09
AMIN 18:14:54
+0530
5.WP3983_2021.docx
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3983 OF 2021
Abdul Majid Vakil Ahmad Patvekari & Ors. ... Petitioners
vs.
The Slum Rehabilitation Authority & Ors. ... Respondents
Mr. Nikhil Wadikar i/b. Mr. Rajesh Katore for the petitioners.
Mr. Deepak R. More for respondent no. 1.
Mr. B.V. Samant, AGP for the State.
Mr. S.K. Mishra, Senior Advocate a/w. Mr. Pralhad D. Paranjape and
Mr. Kaustubh Deogade for respondent nos. 4 and 5.
C0RAM : DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE : AUGUST 31, 2021
ORDER :
The petitioners, who are three in number, are aggrieved by the public notice dated May 21, 2021 issued by respondent no. 1- the Slum Rehabilitation Authority, Pune and Pimpri Chinchwad Area (for short "SRA"), by which the petitioners along with other slum dwellers are sought to be rehabilitated, being affected by the Pune Metro Rail project, undertaken by respondent nos. 4 and 5.
2. The case of the petitioners is quite peculiar, which is to the effect that the petitioners, who are having their hutments on the Government land (slums), ought to be rehabilitated either on the same land or in the vicinity. At the outset, we must observe that 1/11
5.WP3983_2021.docx we were quite astonished at such plea. We would, however, certainly examine the tenability of such plea in the following discussion.
3. The relevant facts need be noted:
The petitioners contend that they are residents of 'Kamgar Putala Zopadpatti Vasahat', situated on Final Plot No. 806 and 806A, Topkhana, Shivaji Nagar, Pune (for short "the slum land"). Admittedly, this is a slum on the State Government's land. As the land was encroached by hutments, it came to be notified as a slum under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The petitioners state that under the State's policy, being slum dwellers, they have a status of being protected occupiers, who would be required to be rehabilitated by allotment of a free of cost permanent alternate accommodation, in case the land below the slum is sought to be utilized for public purpose.
4. The petitioners are also members of a Slum Society known as "Shri Satguru Jangali Maharaj Slum Rehabilitation proposed Co- operative Housing Society", which in its representative capacity as as per the slum development rules, had submitted a proposal to the SRA for redevelopment of the said slum land. The slum society also appointed a developer named 'Ishwar Constructions Pvt. Ltd.', 2/11
5.WP3983_2021.docx to undertake a redevelopment and rehabilitation project on the same land. According to the petitioners, such developer had submitted a proposal to the SRA, however, the project did not commence for certain reasons.
5. The petitioners contend that in the intervening period, that is, sometime in the year 2014, the respondent Nos.4 and 5 conceived a Metro Rail for Pune. The announcement of the Pune Metro Rail Project was made in the year 2016. In 2019, the petitioners learnt that a metro track from Vanaz to Ramwadi was proposed to pass through the slum land occupied by the petitioners, which was to divide the slum plot into two parts. The slum land was proposed to be used for the metro project. The petitioners contend that the slum dwellers society had opposed passing of the Pune Metro through the slum land, so did the developers. They also suggested realignment of the metro track, however, sans success. The petitioners contend that on these issues the slum society has already approached this Court in Writ Petition No. 8495 of 2019, seeking directions against respondent nos. 1 to 5 for relocating the proposed Slum Rehabilitation Project within a radius of 2 kms. Such petition is stated to be pending.
6. The petitioners have categorically contended in paragraph 4(k) of the petition that during the pendency of the petition filed by the slum society, the SRA has issued a notification in the month of 3/11
5.WP3983_2021.docx February, 2021 proposing to relocate the eligible slum dwellers at sites identified at Hadapsar and Viman Nagar. According to the petitioners, such migration from the current residence to Hadapsar and Viman Nagar is prejudicial to their interest, as these sites are quite far away from the present location of the slum land. The petitioners, therefore, raised objections with the SRA. It is their contention that despite such objections, the SRA proceeded and published a notice dated 26 February, 2021 stating it to be the last opportunity being given to the eligible slum dwellers to shift and vacate the slum plot. Thereafter, another notice dated 21 May, 2021 was issued by the SRA notifying that the 'rehabilitation and relocation drive' will start from 24 May, 2021 and would be completed by 31 May, 2021. By such notice, the project affected persons including the petitioners were called upon to remain present for allotment and registration of the tenements proposed to be provided to them by the SRA. They were informed that after such registration process is complete, the slum dwellers would be immediately required to vacate the irrespective hutments and to forthwith migrate on or before 31 May, 2021. The petitioners along with other slum dwellers, however, did not remain present for the said registration. The petitioners contend that consequent thereto, the officers of the SRA visited their hutments and called upon the petitioners to leave the plot, as the plot was to be utilized for the 4/11
5.WP3983_2021.docx Metro rail project. Being aggrieved by such actions on the part of the SRA, the petitioners have approached this Court praying for the following reliefs:
"a) The Hon'ble Court be pleased to stay the effect of the Public Notice dated 21.05.2021 bearing no. Zoprupa/781/2021 to the extent of the petitioners and the slum dwellers mentioned in Exhibit L;
b) The Hon'ble Court be pleased to direct the respondents that, in the event after completion of the project of the respondent no. 5 any space is left on the said Final Plot No. 806 and 806A, Kamgar Putala Vasahat, Shivaji Nagar, Pune-
411 005; the said petitioner and all the slum dwellers be rehabilitated and relocated on the same plot;
c) Alternatively, in the event after completion of the said project of the respondent n. 5 no space is left for rehabilitation, then the Hon'ble Court be pleased to direct the respondent nos.1 and 2 to introduce a scheme under which all the petitioners and the other slum dwellers be rehabilitated within radius of 2 kms. from the location of their current residence;
d) The Hon'ble Court may be pleased to direct the respondents that, pending the present petition the petitioners and the other slum dwellers mentioned in Exhibit L, shall not be forced to evict their huts possessed on the said Final Plot No. 806 and 806A of Kamgar Putala Vashahat, Shivajinagar, Pune;
e) Interim and ad-interim reliefs in terms of prayer clause
(a) and (d) may kindly be granted."
7. Mr. Wadikar, learned counsel for the petitioners would submit that the impugned action on the part of the SRA to rehabilitate the petitioners at Hadapsar and Viman nagar is arbitrary for the reason that these sites are far away from the present land where the petitioners have their hutments. It is his submission that the petitioners have made a representation for realignment of the 5/11
5.WP3983_2021.docx metro track, so that the slum land can be saved and rehabilitation project as entrusted by the Society of the slum dwellers to the developer proceeds and is completed. Learned counsel for the petitioners is, however, unable to point out any provision in law to support such contention that merely because a slum has come up on the Government land, it would entitle the petitioners to prevent the Government from utilizing its own land for such public purpose and agree to a realignment of the rail project. He is also unable to point out any vested right of the slum dwellers to seek rehabilitation on the very same plot or in the vicinity.
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 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 6/11
5.WP3983_2021.docx 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 bonafide 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 of the negligent approach of the 7/11
5.WP3983_2021.docx 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 8/11
5.WP3983_2021.docx 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 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.
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11. It may also be observed that, it is not the case that the petitioners are denied benefit of rehabilitation. In fact they were called upon by several notices to take allotment of alternate premises. However, the petitioners have taken an unreasonably adamant stand of refusing to accept the said benefit. Be that as it may, if the petitioners are not interested to have permanent alternate premises offered to them free of cost, it is deemed that they have relinquished such benefit, and in that event, the SRA would not have any obligation to grant them any allotment.
12. We are also surprised as to how the petitioners can maintain this petition when their slum society itself has approached this Court in a writ petition as noted above, seeking similar reliefs, which is pending adjudication. We thus feel that this petition is not filed bonafide and it appears to have been filed at the behest of certain persons who are interested in the slum project to be undertaken on the said land. In these circumstances, to us, this petition appears to be a patent abuse of the process of law.
13. For the above reasons, we have no hesitation but to dismiss this petition. It is accordingly rejected. However, in the present facts, it cannot be dismissed simplicitor; it needs to be dismissed with costs quantified at Rs.5,000/- which be deposited by the 10/11
5.WP3983_2021.docx petitioners through their Advocate with the Bar Council of Maharashtra and Goa to be utilized for the Advocates Welfare Fund. A copy of the order be forwarded by the Registry to the Secretary, Bar Council of Maharashtra and Goa.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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