Bombay High Court
Ahmad Dawood Surve And 14 Ors vs The Maharashtra Housing And Area ... on 23 June, 2023
Author: Neela Gokhale
Bench: G. S. Patel, Neela Gokhale
P1-OSWPL-8288-2022 WITH ASWP-9845-2022.DOC
Gitalaxmi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 8288 OF 2022
WITH
(CIVIL APPELLATE JURISDICTION)
WRIT PETITION NO. 9845 OF 2022
Ahmad Dawood Surve & Ors ...Petitioners
Versus
The Maharashtra Housing and Area
Development Authority & Ors ...Respondents
Mr Amol Gatne, for the Petitioners.
Ms Dhruti Kapadia, for the Respondent-SRA.
Mr Ashutosh M Kulkarni, with Siddharth Shitole, for the
Respondent-MHADA.
Mr Milind More, Addl. GP, for the Respondent-State.
Mr Shashikant Surana, i/b Madhur Surana, for Respondent No. 4.
Dr Abhinav Chandrachud, with Ashish Suryavanshi, i/b Manoj
Pandey, for Respondent No. 5.
Mr Kunal Punjabi, i/b Ravleen Sabharwal, for Respondent No. 6.
Mr Ahmed Surve, with Abhijit Patil & Yogesh Patil, i/b Vijay Patil,
for AGRC in WP/9845/2022.
CORAM G. S. Patel &
Neela Gokhale, JJ.
DATED: 23rd June 2023 PC:-
1. The Application is for modification of our order dated 21st June 2023 seeking a continuance of the ad-interim protection, i.e., to Page 1 of 7 23rd June 2023 ::: Uploaded on - 24/06/2023 ::: Downloaded on - 25/06/2023 13:58:01 ::: P1-OSWPL-8288-2022 WITH ASWP-9845-2022.DOC continue the order restraining demolition of the Petitioners' commercial structures.
2. These 15 Petitioners have quite needlessly enjoyed an ad- interim protection far too long. That order is now obstructing the completion of the project and adversely affecting others entitled to re-accommodation, both commercial and residential. The Petitioners were offered commercial premises, but they want preferential treatment and insist that they must be given out-of-turn priority and must be allotted road-facing, ground floor commercial premises. Mr Surana for the Developer had made it clear, as had the public authorities, that the Petitioners, if they agree to be accommodated, could only be treated on parity with all others entitled to accommodation on the question of allotment, and could expect to receive no special or preferential treatment. This is entirely correct.
3. We do not see why the Petitioners should demand not only a right to be re-accommodated, a matter that is far from decided, and, simultaneously, also demand almost as a matter of right that they be given preference over all others. Mr Surana had told us on the last occasion that there are 35 commercial units to be accommodated on the ground and first floors of the new building. Of these, the Petitioners are 15. What the Petitioners effectively seek is that they will take up all or most of the road-facing ground floor premises. The rights of others already entitled in law to the newly built commercial premises are, we are supposed to believe, immaterial. And this is when the entitlement of the Petitioners to any re-
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4. To put this into perspective. The Petitioners were originally encroachers. Their illegal structures were demolished because they came in the way of road widening. They were allotted pitches on a by MHADA, the Maharashtra Housing & Area Development Authority. MHADA says this was temporary. The new pitches are also in the road line and need to be removed for road-widening. Only on account of this allotment, the Petitioners, ignoring the fact that their origins are in illegal occupancy of public land, claim they are now entitled to (a) receive free of cost on ownership basis enlarged permanent alternate commercial tenements; and (b) because their pitches were (inevitably) on the road, they must receive road-facing, ground-floor alternate premises. The question of entitlement depends on whether the MHADA allotment gives them any rights. But there is a second layer of consideration: these Petitioners all occupy small units, around 140 sq ft or 160 sq ft, but less than the threshold occupancy. Mr Surana has said repeatedly that larger alternate premises are available the Petitioners can be accommodated in premises with 50% additional area but the Petitioners, because their existing units are below the threshold, will have to pay for the additional area. This, too, the Petitioners refuse to do.
5. Therefore, what the Petitioners want is: (i) an acceptance of their claim without dispute; (ii) free of cost larger area on ownership basis; and (iii) preference in allotment (road-facing, ground floor). Until everyone including the Court simply caves in and accepts all Page 3 of 7 23rd June 2023 ::: Uploaded on - 24/06/2023 ::: Downloaded on - 25/06/2023 13:58:01 ::: P1-OSWPL-8288-2022 WITH ASWP-9845-2022.DOC this, we are told, the Petitioners are entitled to block and hold up all re-development work, prejudice countless others (not even joined), cause significant prejudice to many who are off-site on transit rent somewhere else and so forth to the end of the chapter.
6. There is no justice in this, no equity, no fairness. There is simply no concern for others already entitled in law to the benefits of re-development.
7. Above all, the Petitioners forget one basic factor: their entitlement is emphatically not dependent on the continuance of their structures on site. The reason is plain. Everything about how the Petitioners came into MHADA-allotted pitches is officially documented. The Petitioners' background and initial shifting is now and is a part of the record. The allotment of pitches is known. The areas under occupation are known. Nobody denies the facts. If the Petitioners are right, they will get the re-accommodation (on parity with others). If they fail, they will not get re-accommodation. Either way, the structures must go. They cannot be allowed to continue. There is simply no connection or nexus between the continued existence of the structures in-situ and the entitlement claimed by the Petitioners.
8. The request for a continued stay is therefore nothing but a thoroughly unacceptable pressure tactic on everyone, including the Court itself, to succumb to the Petitioners' demands.
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9. We therefore decline to continue the ad-interim order. The SRA can proceed in accordance with law.
AT 2:30 p.m.
10. Mentioned by Mr Gatne.
11. The same request is repeated. At the cost of repetition, the stay order at the instance of these Petitioners adversely affect several dozens of others awaiting reconstruction and possession of the reconstructed premises.
12. Meanwhile, the Developer represented by Mr Surana is paying roughly Rs. 7 lakhs per month towards transit rent. The offer that the Petitioners will by Tuesday deposit Rs. 9 lakhs in Court is hardly sufficient. It says nothing about the prejudice already caused, and it assumes that one month is sufficient recompense. It is not. As noted above, they have enjoyed protective orders far too long and there is no attempt made to even offer to compensate anyone for this delay without the Petitioners being able to satisfy the Court that they are entitled to a priority. As we have also noted whether the Petitioners are at all entitled to the reliefs that they seek, namely that a portion be carved out for them in the project or that the scheme should be sanctioned under some other provision of the Development Control Regulations and made separately applicable to the Petitioners is not even established. In this the Petitioners have lost sight of the fact that their origins are in illegal encroachments. They were temporarily shifted to the site in question by MHADA Page 5 of 7 23rd June 2023 ::: Uploaded on - 24/06/2023 ::: Downloaded on - 25/06/2023 13:58:01 ::: P1-OSWPL-8288-2022 WITH ASWP-9845-2022.DOC and they somehow imagined that because of that they have now gathered special or preferential rights over others.
13. Over the last several weeks we have made every effort to have these Petitioners accommodated including noting a statement by Mr Surana that they can be accommodated in the redeveloped building under the present scheme, as it stands. But even that is not enough for these Petitioners. They insist is that they must not only be re- accommodated in larger premises but that they will get to decide where the allotments to them will be, i.e., all 15 of them will, in preference to the 20 others, receive premium road-facing ground floor commercial premises. We find this approach thoroughly unreasonable from every perspective. We do not see how the eviction of the Petitioners can be indefinitely restrained and the completion of the project be delayed equally indefinitely. There is already considerable prejudice caused because of this delay to others. SRA itself is handicapped in not being able to supervise the completion of the project. These projects are meant for welfare of all and not for their personal, narrow and private benefits.
14. Mr Gatne asks for a temporary continuance to approach the Supreme Court. We decline to continue the order for this reason either. Evidently, every available excuse is being made to continue this order, and no heed is paid at all to anything we have said earlier in this order, dictated in open Court.
15. We have repeatedly made it clear to the Petitioners that we will see to it that they are re-accommodated provided they agree to Page 6 of 7 23rd June 2023 ::: Uploaded on - 24/06/2023 ::: Downloaded on - 25/06/2023 13:58:01 ::: P1-OSWPL-8288-2022 WITH ASWP-9845-2022.DOC be treated exactly on parity with all others entitled to or eligible for re-accommodation. The Petitioners will not be discriminated against. No prejudice will be visited on them. By the same token, it is not possible to grant the Petitioners special benefits or privileges especially at the cost of others. The request for stay is declined.
16. Mr Surana shows us a photograph of the construction which is complete and is held up only because of these 15 persons whose structures are on the strip of land required for road-widening right in front of the building. The building sits literally atop these structures. The plans require their removal and the widening of the road because the new building is much larger, with a greater density of occupation and the public planning authorities must make provisions for necessary infrastructure including road width. Again, the Petitioners do not seem the least bit concerned about any of this. Because they have not been removed, the whole project is held up and cannot be completed. The photograph is taken on record and marked "S1" for identification with today's date.
17. The matter is listed just a few days hence. It is open to the Petitioners to make an application at any time accepting parity and treatment on par with all others before that date.
18. List the matter on Tuesday, i.e., 27th June 2023.
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