Usha Dhondiram Khairnar And 6 Ors vs State Of Maharashtra And 4 Ors on 28 September, 2016

[Cites 2, Cited by 0]

Bombay High Court

Usha Dhondiram Khairnar And 6 Ors vs State Of Maharashtra And 4 Ors on 28 September, 2016

The Petitioners claim to be eligible project affected persons. It is common ground that some of the Petitioners have disassociated themselves from this litigation. Therefore, the relief shall be confined to such of the Petitioners who are pursuing the Aswale 2/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc cause.

2 It is stated that these Petitioners were allotted flats in the building which is managed and administered by Respondent No.4 - Co-operative Housing Society. The flats were allotted by the 3rd Respondent to this Writ Petition. The 3rd Respondent is the Chief Executive Officer - Slum Rehabilitation Authority ("SRA" for short). He is appointed under the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 (for short the "SLUM Act"), for the resettlement and rehabilitation of eligible slum dwellers and the project affected persons.

3 It is stated that the 5th Respondent - Developer undertook the development of the property. He was responsible for handing over possession of the residential units which are in a habitable condition for the rehabilitation of eligible slum dwellers as also the project affected persons.

4 It is the claim of the Petitioners that they have been allotted the flats pursuant to a lottery which was drawn by the SRA. The Petitioners were handed over the physical possession of Aswale 3/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc these flats. They are in habitable condition but today the Petitioners' stand deprived of basic amenities such as electricity and water supply that is because of the high handed actions of the 5th Respondent-Developer. The Petitioners state that they have lodged complaints not only with the SRA but equally the local Police Station, Senior Inspector of which is now impleaded as Respondent No.2.

The Petitioners rely upon a allotment letter, copy of which is annexed as Exhibit-A to the Petition. These Petitioners who have been allotted the respective tenements have relied on Annexures-A to G of the Writ Petition. Respondent No.3 addressed a letter on 1st July, 2016 to 4th Respondent Society informing it about allotment of the flats / tenements to the Petitioners and also directing them not to cause any hindrance or obstruct the Petitioners in taking possession of the allotted flats.

Annexure-H is a copy of this letter.

6 On 7th July, 2016, the 3rd Respondent requested the 2nd Respondent-Police station to give police protection while taking possession of the flat. Annexure-I is the copy of the letter dated 7 th Aswale 4/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc July, 2016. It is stated that Respondent No.2 along with Petitioner Nos.1 to 5 and 7 have taken possession of the allotted flats on 22nd August, 2016 and found that the same was not in habitable condition only because of lack of basic amenities such as electricity and water connection. There was some damage caused to the flooring and doors. That was recorded in a Panchanama.

The Panchanama drawn on 22nd August, 2016, contents of which were not known to the Petitioners as a copy thereof was not provided, according to the Petitioners' counsel's records as to how Respondent No.5 acted high handedly and was assisted by the members of the Co-operative Housing Society.

7 The complaint which has been made to the local Police Station dated 23rd August, 2016 sets out the names of five persons who acted at the behest of Respondent No.5 and caused damage to the property so also disconnected electricity and water supply.

Annexure-J is a copy of the complaint.

8 A representation was forwarded to Respondent No.2 by one Nav Chetna Justice Forum. This Forum was approached by the Petitioners. The representation prayed that an FIR be Aswale 5/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc registered against these accused. However, neither reconnection of the watter supply or electricity has been made nor the Petitioners have been accommodated. The Petitioners complain that having vacated their earlier accommodation, today they are deprived of their entitlement. There is no dispute that they are project affected persons. The Petitioners complain that in the ensuing festivals they would have no accommodation and for them to perform any religious ceremony etc. It is in these circumstances that they apply and pray for issuance of writ of mandamus or any other appropriate writ or directions directing Respondent No.3 to forthwith ensure reconnection of the electricity and water supply and for grant of the same take such steps as are permissible in law.

9 The Writ Petition relies upon those letters of allotment and in which it is indicated as to how each of these Petitioners are project affected persons. The allotment letters, according to the Petitioners refer to a lottery, record of which is to be found in a document dated 26th May, 2016. However, some of the project affected persons applied in writing that they have been allotted certain flats / tenements but their orders of allotment be modified Aswale 6/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc that is how on 1st June, 2016, the tenements on 12 th / 13th floors which are meant for them are allotted by a lottery system. The date of this lottery system, according to the Petitioners, is to be found in this allotment letter. There is a clear reference therein to the tenement numbers and which are on 12 th /13th floor. The Assistant Registrar of the 3rd Respondent has signed these letters.

10 Reliance is also placed upon the complaint and the statement which is recorded by the local Police Station. The SRA would not have sought intervention of the Police Station unless it was satisfied that there is an high handed act of the developer.

The developer was directed to hand over the keys of these tenements so that the same could be handed over to the eligible slum dwellers. The first letter of the SRA, according to Mr. Nalawade appearing for the Petitioners records that as to how despite repeated request, the developer did not hand over the keys of the project affected persons' tenements. The matter was discussed with the Secretary of the SRA on 14 th June, 2016 and the developer was directed to stop work of the sale component unless he takes the requisite steps and hands over the keys of the tenements. The letter of the SRA also permits the Assistant Aswale 7/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc Registrar to take forcible possession of these tenements. It is in these circumstances that the Senior Police Inspector, according to the Petitioners, was requested by the SRA itself to register an FIR against the developer for not handing over of the keys to the Government / SRA.

11 Mr. Nalawade places reliance upon the statements which had been recorded and copy of which is to be found at page nos.45 and 46 of the paper book. There are several affidavits which have been filed in reply but before we set out their contents, it would be proper to refer to one Chamber Summons which was lodged on 8th September, 2016 by the Applicants. They requested that either they should be impleaded as party Respondents or they should be permitted to intervene at the hearing of the present Writ Petition. These Applicants prayed that they have also filed substantive Petitions. They have relied upon certain documents.

In support of the Chamber Summons, an affidavit was filed by Applicant No.6 and she says that the Petitioners are not occupants of the property namely final plot No. 568, Jalan Wadi, Dadar, Mumbai i.e. the property owned by Respondent No.5. The occupants thereof have formed Respondent No.4 society and 5 th Aswale 8/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc Respondent is also appointed as a developer. The slum scheme was approved on 31st March, 2006 and Letter of Intent and revised Letter of Intent are relied upon. It is claimed that the Applicants are shown as eligible and in that regard reliance is placed on Annexure-II and several orders of the Competent Authority. It is therefore disputed that the Petitioners are entitled to the allotment letters or should be handed over possession of the tenements prior to these Applicants. The Applicants have to be rehabilitated at the same site. They claim a right in that regard.

They have also questioned the contents of the letter dated 19 th May, 2016. They have also filed a substantive Petition and we have heard Mr. Kamat, the learned counsel for the Petitioners in that Petition.

12 We have substantive affidavits in Writ Petition (L) No.2397 of 2016. The Secretary of Respondent No.4 Society has filed an affidavit and while raising the issue of maintainability of this Writ Petition on the ground that there is an alternate remedy available to the Petitioners of approaching the High Power Committee, what is asserted is that the Petitioners are project affected persons in other slum scheme and Respondent No.3- SRA Aswale 9/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc has allotted the tenements in rehab building /component because the Petitioners are project affected persons. True it is that some tenements are earmarked in present rehab component for rehabilitation of the project affected persons. However, what has been alleged is that final plot No.568, Jalan Wadi, Town Planning Scheme-IV, Ashirwad SRA CHS Ltd, Jalan Wadi, Bhavani Shankar Road, Dadar Mumbai is owned by Respondent No.5. It is occupied by near about 146 slum dwellers plus five occupants of contravening structures. Thus, there are 151 slum dwellers. The Competent Authority has held 122 occupants as eligible and eligibility of remaining 29 slum dwellers is pending for consideration with the Competent Authority. As on today Respondent Nos.3 and 4 are not able to allot 17 rehab tenements to 17 eligible slum dwellers of the 4th Respondent Society. Till, all eligible slum dwellers are not accommodated / rehabilitated in the present slum scheme, neither Respondent No.3 nor Respondent No.5 can allot such rehab tenements to other slum dwellers of another slum scheme and by way of project affected persons tenements. Thus, the Petitioners are not entitled to allotment of tenements in the rehab components. Respondent No.3 cannot allot these rehab tenements to the occupants of other slum scheme Aswale 10/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc till all eligible slum dwellers are rehabilitated. These slum dwellers were at the same site and therefore, they have right to be rehabilitated in that very site. Several documents are also relied upon and the copies there have been annexed to the affidavit-in- replies.

13 It is also argued on the basis of this affidavit by Mr. Surana that these Writ Petitions involve disputed questions of fact and therefore must not be entertained by us. Then, what we have on record is the affidavit of the developer. The developer apart from urging that no Writ Petition lies against private parties has pointed out that it is both the owner and the developer, it has adopted the stand of the society. It has confirmed number of persons who are stated to be eligible. The issue of eligibility of the remaining persons / slum dwellers is pending and hence it is prayed that this Court should not allow the writ petitioners to use and occupy the premises. It is then stated that 5 th Respondent is also developer of another slum scheme. A proposal has been submitted to the SRA for clubbing of the present slum scheme with that of another slum scheme that was approved by SRA by issuing revised Letter of Intent dated 23 rd May, 2014. Now, Aswale 11/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc because of such clubbing, the 5th Respondent was obliged to provide 72 residential, 18 commercial and 3 R/C tenements so also 30 project affected persons tenements. Mr. Jain appearing in support of this affidavit and for Respondent No.5 submits that the 3rd Respondent had transferred 22 project affected persons tenements to another slum scheme of Gulmohar SRA Co-operative Housing Society situated at Antop Hill, Wadala, Mumbai. There is also a list forwarded of such slum dwellers who claimed that they are eligible and their documents have to be verified by the Competent Authority.

14 It is in these circumstances that once there are 122 eligible occupants in the slum scheme as on today the eligibility of remaining 29 is pending that this Court should not grant any relief to the Petitioners. The SRA is adopting pressure tactics and at the instance of the present Petitioners. It is also claimed by Mr. Jain on the strength of this affidavit that on 11th July, 2016 the SRA had agreed to wait for a period of 60 days so that the pending eligibility issue can be decided and thereafter appropriate directions would be issued.

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903.writ petitionl.2397.16.doc 15 There is an affidavit styled as additional affidavit of the Petitioners. It is stated that an order was passed by this Court on 14th September, 2016 pursuant to which an inspection of few files was taken. The Assistant Registrar of the Co-operative Societies and Executive Engineer have not granted inspection of some other and crucial so also relevant files. Circular Nos. 99 and 134 are relied upon to submit that SRA conducted a lottery in accordance therewith. The Executive Engineer of SRA had written a letter dated 26th May, 2016 to the Assistant Registrar of the Societies informing that all project affected persons flats are ready for allotment. Thereafter, the Assistant Registrar conducted a lottery on 26th May, 2016 and allotted 11th floor flats of the 4th Respondent Society. The Petitioners submitted that when they visited these allotted flats, they found that some people were residing therein. Therefore, they informed the SRA to re-

allot the flats. That is how another lottery was conducted by the Assistant Registrar and he alloted the flats on and from 12th floor.

16 It is asserted that these tenements are meant for rehabilitation of project affected persons only. It cannot be therefore argued and contrary to the official documents that these tenements were not meant for the project affected persons or that Aswale 13/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc project affected persons generated from the others slum scheme, cannot be accommodated in the current or present slum scheme.

The Petitioners have pointed out as to how for the past more than 10 to 12 years they are waiting for allotment. Now, by the collusive acts, this Court should not permit defeating of their allotment.

17 We were waiting for the most crucial affidavit and that was of 3rd Respondent - SRA.

ig That came to be filed on 21 st September, 2016. In that, the Chief Executive Officer justifies the steps taken till date so also decisions of his predecessor. He justifies and supports the lottery conducted and that is on the basis that wide publicity was given to the said lottery. The events from 2006 till date have been cataloged. However, thereafter the deponent states that the 5th Respondent was told by the revised Letter of Intent dated 23rd May, 2014 to keep aside 30 tenements for accommodating project affected persons. The record shows that the developers have accepted all conditions of final revised Letter of Intent. Now, he cannot be heard to say anything contrary thereto or inconsistent therewith. It is in these circumstances that the SRA denies the allegation of the developer of exerting pressure and to obtain completion certificate and Aswale 14/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:22 :::

903.writ petitionl.2397.16.doc occupation certificate for the tenements constructed on 11 th / 14th floor of the said building. It is stated that part occupation certificate up to 11th to 14th floor was issued way back in the year 2012 namely on 2nd August, 2012. After allotment of the project affected persons tenements to the eligible slum dwellers of the other SRA slum rehabilitation scheme, the slum dwellers who have held eligible under the subject scheme objected on the ground that they would be deprived of rehabilitation at site. The 5 th Respondent-Developer also objected on the ground that the issue of eligibility of 29 occupants who are presently held ineligible is pending before the Competent Authority.

18 Paragraph no.7 of this affidavit at running page no.212 reads as under:-

" 7:- It is to be mentioned that as per clause 1.3 of Appendix IV of regulation 33 (10) of DCR, 1991, " All eligible hutment dwellers taking part in the slum rehabilitation scheme shall have to be rehabilitated according to the provisions in this Appendix. It may be in situ and in the same plot as far as possible.

In view of the above facts I say that the allotment of PAP tenements done to the eligible PAP of the other S. R. Scheme would be withdrawn and they would be allotted Aswale 15/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

903.writ petitionl.2397.16.doc PAP tenements in the nearby completed S. R. Scheme which are in possession of SRA. The PAP tenements of the present S. R. Scheme would be converted into regular rehab tenements and the same would be thereafter allotted to the eligible slum dwellers of the subject S. R. Scheme.

I say that the 3 Petitioners who were given possession of PAP tenements, have returned the keys and have requested allotment of PAP tenements in the other S. R. Scheme."

19 It is in these circumstances it is submitted that the SRA had followed the proper procedure for accommodating the project affected persons from other scheme. It has followed a transparent procedure and this Court therefore should pass the appropriate orders.

20 Mr. Kulkarni, the learned counsel appearing for the SRA submitted that consistent with the stand in the present affidavit, the SRA will abide by the directions as are issued by this Court. The SRA would not deprive those eligible for rehabilitation from their right. It would follow a fair and transparent procedure.

It would take requisite decision after hearing all affected parties.

On a query from us as to how when the Highest Executive Officer of SRA having disclosed its stand on merits and justified the Aswale 16/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

903.writ petitionl.2397.16.doc action, can now be expected to render an impartial, unbiased decision, Mr. Kulkarni, on instructions, states that this Court can direct the Secretary of the SRA who is equally a High Power Official and he shall now take requisite steps in accordance with law. He shall strictly follow and apply the defined and settled policies, circulars and render a decision. Meaning thereby, he would pass an order assigning reasons.

However, Mr. Nalawade appearing for the Petitioners submits that it is too late in the day for now SRA cannot change its stand. This clearly means that it has failed to protect the entitlement of the Petitioners. The SRA cannot conveniently change sides and now align with the developer or the society members. That itself means that the Petitioners are at the mercy of some of these officials of SRA or developers. The Petitioners are said to be project affected and yet shifted from one scheme to another endlessly. They are awaiting allotment and which would fructify into taking physical possession of the units which they had already taken but with basic amenities. Then allotment without all this has no meaning. This Court therefore should not allow SRA now to adopt a different or inconsistent stand but must direct it to ensure that all basic amenities are provided to the Aswale 17/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

903.writ petitionl.2397.16.doc Petitioners. Mr. Nalawade has also relied on affidavit-in-rejoinder and all Annexures thereto which include an order passed by this Court in a Writ Petition. It is submitted that to that Writ Petition and equally to an FIR registered pursuant thereto, the developers' partner is a party/ accused. He is now been allowed to dictate terms. It is the developer who has been proceeded against in criminal law but he is influencing all the decisions. It is in these circumstances that some Petitioners have been forced to withdraw from the proceedings.

22 We have therefore extensively heard Mr. Nalawade and other counsel and perused the entire record with their assistance in both Writ Petitions. There are some documents annexed and we have perused them, as well.

23 We are unable to agree with the Respondents and particularly Respondent Nos. 4 and 5 that the SRA cannot take such measures, as are permissible in terms of its policies, rules, regulations, including the circulars and provisions of law to ensure rehabilitation of project affected persons. It is entirely for the SRA to take such decision and while taking it, it can also consider the Appendix IV of Regulation 33 (10) of D. C. Aswale 18/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

903.writ petitionl.2397.16.doc Regulations, 1991. The clause 1.3 of Appendix IV is reproduced in paragraph no.7 of the affidavit of SRA at running page no.212.

24 We do not think that the developer and slumdwellers' society can dictate the SRA in such cases and matters. If that is the designated authority, then, it must act strictly in terms of its own policy, circulars, rules, regulations and the SLUM Act. These are guiding the SRA and in ensuring that all such slum dwellers who are languishing in slums for decades together and if found eligible are rehabilitated, how the rehabilitation package evolved for them has to be implemented and worked out, is entirely left to SRA.

25 We do not see how builders, developers or owners and members of the slumdwellers' societies can dictate the SRA in such matters. It is unfortunate that the SRA finds itself completely helpless in the present state of affairs. It seeks assistance of the Police Station and Police force has to be brought so as to control and regulate these slum dwellers. Their activities have caused a nuisance according to the Petitioners and they are therefore responsible in depriving the Petitioners of these basic Aswale 19/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

903.writ petitionl.2397.16.doc amenities as noted above. We are of the firm opinion that it is the SRA which is responsible for causing these state of affairs. Its own officers have to be blamed for inviting adverse comments / remarks from the Court for their flipflop has resulted in two groups of slum dwellers fighting with each other. One is placed against other and in very ugly and nasty fight for grabbing the property. We do not know who is assisting the either groups but we are sure that this defeats the very purpose and object of the act and schemes meant for rehabilitation of slum dwellers. Added to that is the inefficiency and ineptitude of the SRA. If an officer from the Indian Administrative Service is chosen to head the SRA and is styled as Chief Executive Officer, we do not see how he is expressing helplessness and while supporting the earlier act has now stated that the allotment of project affected persons (PAP) tenements to the eligible project affected persons would be withdrawn and they would be allotted project affected persons tenements carved out in a nearby completed scheme. The PAP Tenements in other schemes are in possession of SRA. The project affected persons tenements of present SRA scheme would be converted in regular tenements and thereafter they would be allotted to eligible slum dwellers of subject scheme, is what is Aswale 20/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

903.writ petitionl.2397.16.doc indicated in paragraph no.7 of the affidavit filed in the present Petition.

26 We do not allow the SRA to take a decision like this and contrary to the principle of natural justice, fairness and equity. If they now intend to withdraw the allotment letters issued to the Petitioners and desire to accommodate them in some other scheme nearby, then, that decision cannot be reached or allowed to be reached in the manner stated by the SRA before us. Equally, the SRA cannot at the instance of any developer / owner or society of slum dwellers take a decision contrary to its defined and settled policies, circulars, rules and regulations. We, therefore, direct that no such decision as is intended to be taken now in paragraph no.7 shall be taken or reached without hearing all affected parties and particularly the Petitioners.

27 In accordance with the statements made by Mr Kulkarni, we direct the Secretary of SRA before whom each of these parties shall appear to pass a reasoned order at the conclusion of a personal hearing and as expeditiously as possible.

Such an order should be passed within six weeks from the date of receipt of a copy of this order but without being influenced by any Aswale 21/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

903.writ petitionl.2397.16.doc of the earlier decisions or the stand in the affidavits of the parties.

The Secretary must take a decision only in accordance with law.

Before such decision is taken or the order is passed and communicated, he shall hear the parties. He shall allow them to rely on such documents and records, as are in possession of the parties as also the SRA. We do not expect anybody to influence the decision of the SRA hereafter. Neither the pendency of any proceedings before the Competent Authority or the FIR's registered or steps taken in pursuance thereof shall influence the SRA in taking a decision as SRA is in-charge of implementing the Slum Rehabilitation Schemes and equally protecting the rights and interests of project affected persons.

28 We do not think that any relief or direction other than the above can be granted for it is not possible for us to resolve the disputed questions of fact. Whether allotments in favour of the Petitioners were justified on the touch stone of the above policies and circulars or whether the SRA can act as contended by developer and society are matters which must be dealt with and left to be decided by the SRA alone. It is on these lines that we have issued the above directions. The Writ Petitions stand disposed off accordingly. There will be no order as to costs.

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903.writ petitionl.2397.16.doc 29 We also do not countenance any interference in the affairs of the SRA by the State Government-through its departments or Ministries much less by Minister of Housing either at the Cabinet or State level. We do not think that political interference in matters to be decided by executive will carry any rehabilitation package or scheme for rehabilitation of slum dwellers further or forward and if it is not to be defeated or frustrated no Ministers and in-charge of any Department much less Housing should interfere with the working and functioning of the SRA. The Secretary therefore should ignore any interference by the Ministry till date or hereafter.

30 Needless to clarify that we have expressed no opinion on the rival contentions and each one of them are kept open for being raised at the hearing as directed above.

31 In view of the disposal of the Writ Petitions, nothing survives in the Chamber Summons (L) No.296 of 2016 and the same is accordingly disposed off as such.

(B. P. COLABAWALLA, J.) (S. C. DHARMADHIKARI , J.) Aswale 23/23 ::: Uploaded on - 04/10/2016 ::: Downloaded on - 05/10/2016 00:10:23 :::

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