Bombay High Court
Ambika S.R.A. Sahakari Grih Nirman ... vs Santosh Tukaram Patil And 30 Ors on 13 February, 2023
Bench: G.S. Patel, Neela Gokhale
8-OSWPL-26976-2022+.DOC
Shivgan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH ORDINARY ORIGINAL CIVIL JURISDICTION
NILESH SHIVGAN
SHIVGAN Date:
2023.02.15
11:48:07 WRIT PETITION (L) NO. 26976 OF 2022
+0530
Santosh Tukaram Patil & Ors ...Petitioners
Versus
Slum Rehabilitation Authority & Anr ...Respondents
WITH
INTERIM APPLICATION (L) NO. 31847 OF 2022
Ambika SRA Sahakari Grih Nirman Sanstha ...Applicant
(Proposed)
In the matter between
Santosh Tukaram Patil & Ors ...Petitioners
Versus
Slum Rehabilitation Authority & Anr ...Respondents
WITH
INTERIM APPLICATION (L) NO. 31836 OF 2022
Bhagyoday CHS (Proposed) ...Applicant
In the matter between
Santosh Tukaram Patil & Ors ...Petitioners
Versus
Slum Rehabilitation Authority & Anr ...Respondents
Mr Mayur Khandeparkar, with Zulfikar Jariwala, Ganesh Ambekar
i/b MDP & Partners, for the Petitioners.
Mr Cherag Bulsara, with Leena Shah, Dipen Furia i/b M/s Shah &
Furia Associates, for the Applicants / Proposed Respondent No. 6
in IAL/31836/2022 in WPL/26976/2022.
Mr Siddhant Dhavale, i/b Dinesh Kadam for SRA.
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8-OSWPL-26976-2022+.DOC
Mr Sharan Jagtiani, Senior Counsel, with Kiran Jain, Ish Jain,
Akshay Patil, Akshay Doctor, Vinayak Siraskar, Duj Jain &
Mahek Jain i/b Kiran Jain & Co, for Respondent No. 3.
Mr Himanshu Takke, AGP with SB Gore AGP, for the State of
Maharashtra.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 13th February 2023 PC: -
1. Writ Petition (L) No. 26976 of 2022 is filed by 26 individuals. Respondent No. 3 is Ambika Developers, the owner-developer of the Slum Rehabilitation Project. Interim Application (L) No. 31847 of 2022 is by the Ambika SRA Sahakari Griha Nirman Sanstha (Proposed), a housing society. Another Interim Application (L) No. 31836 of 2022 is by the Bhagyoday CHS (Proposed).
2. For the purposes of this order, we are not concerned with the Interim Applications by the two societies.
3. Before we proceed further, we direct that before the next date of hearing the Petitions and the Interim Applications are to be finally numbered with all filing defects cured.
4. The Petition has these reliefs:
"a) That this Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari calling for the records pertaining to the above mater and after examining the legality and Page 2 of 9 13th February 2023 8-OSWPL-26976-2022+.DOC propriety thereof, be pleased to quash and set aside the impugned Orders dated 6.5.2017 and 7.3.2022 passed by the Respondent Nos.2 and 5 respectively (Exhibits S and T respectively hereto);
b) That this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus thereby permanently restraining the Respondents from in any manner taking any steps towards treating the said land more particularly described in Exhibit 'A' hereto as slum rehabilitation area and implementing any slum rehabilitation scheme on the same;
c) That this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ order or direction directing the Respondent No. 4 to immediately cause an investigation to be carried out by the concerned Anti-
Corruption/Vigilance Department of the Police by constituting a Special Investigation Team (SIT) into the conduct of the Respondent Nos. 1, 2 and 3 and all their respective concerned officers and subordinates as to the manner in which the said property has been declared as a 'slum rehabilitation area' by overlooking all the facts narrated in this Petition and the records relating to the said property."
5. On the last occasion, we briefly heard Mr Khandeparkar and Mr Jagtiani. From this discussion, it emerges that neither of the impugned orders of 7th March 2022 (by the President of the SRA in Appeal) or 6th May 2017 (by the CEO of the SRA) deals with sufficient clarity or precision about fundamental factual aspects.
6. We put this into perspective. On the project site, there are even now standing certain 'chawl-like structures'. That these were the subject of various leases by the original owners, the AH Wadia Page 3 of 9 13th February 2023 8-OSWPL-26976-2022+.DOC Charities, is also not contentious. We have seen documentation that shows the names of at least some of the Petitioners as 'tenants' in an agreement with the 3rd Respondent, Ambika Developers. Unfortunately, that agreement does not precisely state what premises are covered by these tenancies. It only lists the names of some individuals and describes them as 'tenants'.
7. This is important because Mr Jagtiani's case for Ambika Developers is that the Petitioners are not in fact in the chawl-like structures at all. According to him, they occupy unauthorised structures adjacent to, abutting or located in the area around the chawl- like structures. It is his submission that by claiming to be in occupation of the chawl-like structures, the Petitioners are unlawfully obstructing the Slum Rehabilitation Project and seeking protection to their entirely unauthorized structures. Mr Khandeparkar on the other hand maintains that the Petitioners are all occupy and use identifiable premises in the chawl-like structures. These chawl-like structures, he submits, are not only authorised but have been the subject of the lease agreements and rent payments. They have been in existence for a very long time, although he cannot say precisely when in respect of each one of the chawls. This does not matter, he submits, because the chawl-like structures the Petitioners occupy have been in existence longer than the Ambika Developers.
8. The impugned Appellate order does not consider this factual dispute at all. A copy of that order is at page 203 at Exhibit T. There was one more issue raised in that appeal and also before us but which is now no longer material. This is the argument once advanced by the Page 4 of 9 13th February 2023 8-OSWPL-26976-2022+.DOC Petitioners that their lands were in a gaothan area and therefore could not be the subject matter of a Slum Rehabilitation Project. There is a return filed by the State Government that says that the land is not a gaothan. Mr Khandeparkar has instructions not to press this point further in view of his affidavit.
9. Before the Appellate Authority, the Petitioners contended that certain Imla Maliks constructed these chawls and rented them out to the appellants (the Petitioners and others like them). The Petitioners also claim that their documents were not considered by the CEO of SRA. The impugned Appellate order notes the finding returned that the entire site was not conducive or fit for human habitation and local site conditions justified the declaration of the area as a Slum Rehabilitation Area within the meaning of Chapter 1-A of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("the Slum Act").
10. The Appellate Authority framed three points for decision. The first related to locus. The second was about the procedure followed by the CEO of SRA. The third was whether the order impugned in appeal (of the CEO of SRA) required interference.
11. On any reading of this order, it appears that the factual points that are now canvassed before us and which we obviously cannot resolve were never considered and do not form part of the Appellate order's findings. Paragraph 18 notes that the CEO of the SRA found that the Petitioners did not adduce proof of payment of municipal taxes. But this does not go the necessary distance.
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12. Mr Khandeparkar's argument is fundamentally this. That if the Petitioners are indeed occupying the chawl-like structures that were the subject matter of the original leases, the Petitioners cannot be treated on par with slum dwellers as if their structures are "unauthorized". There can be no question of the SRA examining 'eligibility'. What rights they would have in any redevelopment is also uncertain, but they simply cannot be subjected to the restrictions and conditions of a Slum Rehabilitation Project, whether it is under Chapter 1-A or some other provision of the Slum Act.
13. Everything seems to us to turn on a correct factual identification of what is it that each of the 26 Petitioners are in fact occupying. We note that Mr Jagtiani has more than one string to his bow because he proposes to argue even if these 26 Petitioners are in chawl-like structures, they are nonetheless, on a correct reading of Chapter 1-A, required to be subjected to the discipline of the Slum Rehabilitation Project in question. That question is of course left open and is not being decided today, especially since Mr Khandeparkar says it has no substance whatsoever.
14. But as a matter of fact, before we make any order, we must know with absolute certainty what is it that the Petitioners are actually occupy. Are they in the chawl-like structures, as Mr Khandeparkar says? Or are they, as Mr Jagtiani would have it, in some unauthorized structure outside the chawls? This is not a factual determination we can make. We therefore require the CEO of SRA to return to us a factual report in regard to each of these 26 Petitioners. The CEO is of course entitled to take the assistance of such officers Page 6 of 9 13th February 2023 8-OSWPL-26976-2022+.DOC within the SRA establishment as he thinks fit. The Petitioners will place before the CEO of SRA the documents that they have in their possession. We permit the CEO to also conduct an actual physical site inspection. We make it clear that we are not ordering a "survey" either as understood under the Slum Act or under the Maharashtra Land Revenue Code, 1966. This is an inspection for the purposes of this order. In his report, the CEO of SRA would be well advised to include photographs of the structures in question, as also the chawls.
15. Mr Jagtiani claims to have certain documents, or at least access to certain documents. that relate to the Petitioners. Prominent among these is a slum of Photo Pass in respect of the at least one. This has not yet been placed on Affidavit. We do not know how Ambika Developers came upon this document or in what context. It is open to the Developers to place documents before the CEO of SRA but if there is a document such as a Photo Pass then this must be accompanied by an Affidavit on behalf of Ambika Developers showing how Ambika Developers obtained this document and from where.
16. Rival documentation may not accurately identify the position on site. It is for this reason that we are not expecting the CEO of SRA to make a ruling or pass an order but only to make a report about his factual finding. Obviously, the documents that are placed before the CEO of SRA must be in an organized fashion so that they can be referenced by the CEO of SRA in a systematic manner. Each Petitioner must therefore submit a separate completion of all documents.
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17. Operationally, we are not going to permit either side to take adjournments to put in additional documents or to constantly come up with new documents. We will give each of them two weeks until 1st March 2023 to submit the documents to the CEO of SRA and to simultaneously exchange them. The CEO must afford the parties a brief hearing but only for the limited purpose of explaining the documents so that there is no misunderstanding going forward.
18. We request the CEO of SRA to give us his report by 27th March 2023.
19. In the meantime, if there is any ambiguity or if there is clarification required, we grant liberty to both sides to apply to Court urgently for necessary directions.
20. The CEO of SRA is also at liberty to call for documents from the planning authority in question to establish inter alia the date of construction of the chawls. This may be required to establish whether the chawls were put up prior to what is called the datum line. This may also be required in relation to other structures. All planning authorises, including the MCGM and MHADA if it is at all concerned, are required to co-operate with the CEO of SRA and to provide the necessary information on request.
21. Given this conspectus, this necessarily means that there is to be no possible eviction or removal of these 26 Petitioners from their present structures, whatever those may be, nor any demolition until 21st March 2023.
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22. List the Petition on 29th March 2023.
(Neela Gokhale, J) (G. S. Patel, J)
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