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INTERIM APPLICATION (ST) NO. 5553 OF 2024

1. This Interim Application seeks reliefs inter alia under Section 340 of the Code of Criminal Procedure, 1973 ("CrPC") on the basis that there has been a fraud on the Court, by persuading this Court to accept that the Maharashtra Housing & Area Development Authority ("MHADA") had filed an Affidavit dated 17th February 2023, though no such Affidavit is found in the physical record and proceedings. According to Mr Kurle, the impeached Affidavit purports to say that MHADA had withdrawn its cancellation of a No Objection Certificate ("NOC") granted to the Slum Rehabilitation Authority ("SRA"). According to him, the land in question purportedly under a slum scheme is MHADA land, that the Petitioners are MHADA tenants and there is therefore no question of them being included in a slum scheme or of MHADA giving any NOC to the SRA. Certainly, there is no question of 23rd February 2024 Abdul Aziz Ashraf Baig & Ors v AGRC & Ors 921-aswp-1048-2024++J-F.doc MHADA literally cancelling any NOC it may have granted in the past. All this is, Mr Kurle submits, based only on a non-existent MHADA Affidavit, one that was never filed and is not to be found in the record. He points to a response from the Registry confirming that no such Affidavit is found in the record and proceedings.

2. Mr Lad on behalf of MHADA has taken instructions. He says that the Affidavit dated 17th February 2023 by MHADA regarding the NOC to SRA was indeed affirmed. A copy of that Affidavit in Writ Petition (L) No 2217 of 2019 is at Exhibit "C" to this Interim Application. The Affidavit is dated 17th February 2023. It was affirmed by one Sanjaykumar Naryan Bhosale, the then Deputy Engineer of MHADA. Mr Bhosale is personally present in Court today. He confirms before us that the contents of the Affidavit are not only true but also that he indeed affirmed it and gave it to Utangale & Company for filing. The learned Advocate on behalf of Utangale & Company says that no physical copy was filed but, following administrative directions of this Court, the Affidavit was e-filed in Writ Petition No 2217 of 2019 sometime in February 2023. Copies were served on all other Advocates. It is pointed out to us today that the SRA had referenced this very Affidavit in an Affidavit that the SRA has filed in Writ Petition No 3614 of 2022 through one Umesh Bodake, Executive Engineer. That Affidavit is dated 14th August 2023. The MHADA Affidavit is annexed at Exhibit "R3" at page 139 of the SRA Affidavit. There is also a reference at page 138 to a government directive on the basis of which the MHADA Affidavit was filed. The Developer confirms that a copy of Mr Bhosale's Affidavit was served on the Developer as well by Utangale 23rd February 2024 Abdul Aziz Ashraf Baig & Ors v AGRC & Ors 921-aswp-1048-2024++J-F.doc & Company by an email on 20th February 2023. A copy of that email is shown to us.

23rd February 2024 Abdul Aziz Ashraf Baig & Ors v AGRC & Ors 921-aswp-1048-2024++J-F.doc

63. But the filing or non-filing of an Affidavit is one thing. Its contents are another. Mr Kurle is right in this respect that the contents of this Affidavit make for very interesting reading, but, unfortunately, not from his perspective. There is no manner of doubt that this Affidavit was pursuant to our directions in our order of 22nd March 2022, referred to above. The SRA said that MHADA had originally issued an NOC of 16th November 2005 and 1st June 2006 inter alia in respect of CTS No 7643 (part). Then MHADA had attempted to cancel this NOC on 13th April 2018 and 31st July 2018. The SRA complained that the NOC had not been reinstated. Mr Bhosale filed the Affidavit of 17th February 2023 to explain this position. He agreed that the NOCs were granted on 16th November 2005 and 1st June 2006. He agreed that MHADA had on 13th April 2018 and 31 July 2018 said that since the land was owned by MHADA, i.e., CTS No 7643 (part), MHADA had taken a policy decision to, and this is important, "implement the slum scheme by itself on its own land" and therefore told SRA not to grant further permissions. Then in paragraph 4, Mr Bhosale said that the State Government called for a report from MHADA inter alia in respect of CTS No 7643 (part). On 27th April 2022, the State Government wrote to the SRA with a copy to MHADA saying that once the scheme was sanctioned by SRA, the land-owning authority in the present case, MHADA could not cancel its NOC given on 16th November 2005 and 1st June 2006 for the MHADA-owned plots. The State Government said there was no provision in law to cancel such an NOC once given by the land-owning authority. In paragraph 5, Mr Bhosale confirmed that MHADA's letters of 13 April 2018 and 31 July 2018 revoking the NOC would stand withdrawn and of no effect.

70. The difficulty with this approach is clear from the Affidavit of Mr Bhosale. That order of withdrawal has not been set aside. The interim order will not survive today. Subsequent events, particularly those noted in Mr Bhosale's Affidavit, have overtaken events. This includes the State Government communication of 27th April 2022.

71. Mr Kurle realises this. He therefore says that the State Government communication of 27th April 2022 is also itself separately under challenge. In other words, according to him, the State Government could never have permitted a MHADA-owned 23rd February 2024 Abdul Aziz Ashraf Baig & Ors v AGRC & Ors 921-aswp-1048-2024++J-F.doc property to be taken up for slum redevelopment by the SRA. But this is at something of a remove from what even the 19th March 2019 order said. That order did not hold (as it could not have done) that no slum redevelopment is ever possible on MHADA-owned land. Paragraph 3 in the highlighted portion above expressed only a prima facie view to the limited extent that without the consent of MHADA, the slum scheme could not be implemented. In other words, if there was consent of MHADA (in the form of the original NOCs of 2006-2007 which were reinstated) then there was no impediment to the slum scheme. Consequently, the 19th March 2019 order says precisely the opposite of what Mr Kurle is attempting to canvass. It holds that a slum scheme on MHADA- owned land is possible; it just needs the NOC of MHADA.