Disposed

Shri. Abdul Khalique Ansari v. the State of Maharshtra and 2 Ors.

Bombay HC19 Mar 2014WP/859/2014

Case brief

AI extract

What is this about?

The Court disposed of petitions against orders rejecting subsequent occupants' claims for alternate accommodation near pipelines. The Court framed a term of undertaking allowing the Corporation to proceed with eviction while safeguarding original occupants' rights.

What did the court decide?

The petitions were disposed of based on an undertaking by petitioners to vacate premises and surrender allotted accommodation if a valid transfer from an original occupant is established in the future

Shri. Abdul Khalique Ansari Vs the State of Maharshtra… — Landlord and Tenant | Bombay HC (2014)

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dss

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wpl 107.14 -G(7,8& 9)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION (L) NO.107 OF 2014

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Amboo Salim Abdul Bari ] Siddiqui, Adult, Indian Inhabitant ] having address at Shop/hutment ] No.796(MG 472), Vatsalatai Naik ] Nagar, Chembur, Mumbai-71 ].. Petitioner

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vs.

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1] The State of Maharashtra ] through Govt. Pleader ] High Court, O.S. Bombay ]

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2] Municipal Corporation of ] Greater Mumbai, ] Mahanagar Palika Marg ] CST, Mumbai 400 001 ] 3] Assistant Municipal ] Commissioner, M(West) ] Ward, M (West), Ward Office ] Sadguru Acharya Marg, ] Chembur, Mumbai-400 071 ].. Respondents

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WITH

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WRIT PETITION (L) NO.108 OF 2014

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Anu Hassan Qureshi ] Adult, Indian Inhabitant, having ] his address at hutmentNo.708 ] Vatsalatai Naik Nagar, Chembur, ] Mumbai-400 071 ].. Petitioner

vs.

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1]	The State of Maharashtra through Govt. Pleader	] ]
	High Court, O.S. Bombay	]
2]	Municipal Corporation of Greater Mumbai,	] ]
	Mahanagar Palika Marg	]
	CST, Mumbai 400 001	]
3]	Assistant Municipal	]
	Commissioner, M(West) Ward, M (West), Ward Office Sadguru Acharya Marg, Chembur, Mumbai-400 071 WITH WRIT PETITION (L) NO	] ] ] ].. .109	Respondents OF 2014
Abdul	Khalique Ansari	]
Adult, his ad Plot N Chem	Indian Inhabitant, having dress at Shop/hutment No.795 o.13, Vatsalatai Naik Nagar, bur, Mumbai-400 071	] ] ] ]..	Petitioner
	vs.
1]	The State of Maharashtra through Govt. Pleader High Court, O.S. Bombay	] ] ]
2]	Municipal Corporation of Greater Mumbai, Mahanagar Palika Marg CST, Mumbai 400 001	] ] ] ]
3]	Assistant Municipal	]
	Commissioner, M(West) Ward, M (West), Ward Office Sadguru Acharya Marg, Chembur, Mumbai-400 071	] ] ] ]..	Respondents

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Mr.Ajit Shah with Mr. Arun Panickar for Petitioner

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Mr. D.J. Khambata, Advocate General with Mr. R.J. Mane for Respondent No.1

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Mr. S.U. Kamdar, Senior Advocate with Ms. Trupti Puranik for Respondent-Corporation

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CORAM : ANOOP V. MOHTA AND M. S. SONAK, JJ.

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DATE: MARCH 19, 2014

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ORAL JUDGMENT :- (Per Anoop V. Mohta, J.)

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1] Heard, finally by consent of all the parties.

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2] All these Petitions can be disposed of, as the issues' involve are common and interconnected and revolving around Public Interest Litigation No.140 of 2006 ( Janhit Manch and ors vs. State of Maharashtra and ors. ) and order passed therein from time to time, apart from the orders in other connected matters.

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3] The basic order dated 14 October 2009, whereby it is

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recorded as under:-

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We passed the order on 29.7.2009 and appointed a Committee headed by the Chief Secretary of the State. It is not disputed that the pipes carrying water from the source to Mumbai citizens are more than hundred years old, and they carry water for 160 kilometers. The Ninety kilometers of the pipes are over the ground and sixty kilometers are underground. There are hutments constructed by illegal encroachers in an around the pipes.

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Apparently, there is threat to the security as well to the health of the citizens of Mumbai. According to the Corporation, there are more than 15000 hutments either adjacent to the pipeline or even at the place over it. The Committee has made and has chalked out a plan by which the hutments would be removed by 2015 and the eligible encroachers would be rehabilitated. This plan has been signed by the Chief Secretary, the Finance Secretary and the D.G.P., of the State and is part of an affidavit filed by the Deputy Secretary to the Government of Maharashtra. We accept the affidavit and the plan and direct that the plan shall be implemented in accordance with the report of the Committee. In addition to this, we direct the D.G.P.,to take all steps and measures which are necessary to protect the pipes and ensure that the water reaching Mumbai through these pipes is not polluted or used for any purpose which would endanger the lives of the citizens of Mumbai. The directions are given in the context of the security of the country and also of Mumbai which has experienced some of the worst terrorists attacks in recent past. With these observations, the writ petition is disposed of. In view of disposal of the main petition, the chamber summons does not survive, same is also disposed of.

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4] The urgent requirement therefore is to implement the orders by the Respondent-Corporation and other concerned authorities, by removing illegal hutments/encroachments in and around the pipelines. There is no question of delaying the eviction process. This Court, from time to time, refused to entertain Petitions and not even granted protection to such slum dwellers/structures.

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5] The Respondent-Corporation, based upon the same,

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started to evict/demolish the alleged illegal structures/hutments phase-wise. They are also rehabilitating eligible dwellers/encroachers/occupants. The said process has been in progress till this date.

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6] On 2^nd January 2012, the Respondent/State of Maharashtra has announced a Policy called “Transfer of Hutments eligible for protection” [Government Resolution No.SIMP2010/C.R.1 Slum Imp-1 dated 2^nd January, 2012] [www.maharashtra.gov.in, index number :2012010214364520001] (for short, “the Policy”). This is in reference to earlier Government Circulars. In view of this Policy, the Respondent-Corporation proceeded further and providing, after due enquiry and decision, to the eligibles', the alternate accommodation under the scheme called “Project Affected Persons (PAP)”. The Corporation, accordingly, after rehabilitating them demolished many hutments/structures, phase-wise.

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7] The issue arose with regard to the disputes about the present occupiers, who are not original occupants of the hutments/structures. The Respondent-Corporation, therefore,

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wpl 107.14 -G(7,8& 9)

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issued notices and directed the concerned occupants to submit their say/reply to justify their entitlement of PAP. The Petitioners/ Occupants, accordingly, submitted their documents in support of their case. However, the Respondents by impugned order dated 8^th January 2014, rejected the claim/case of the occupants/Petitioners and thereby directed them to vacate the premises and/or give vacant possession within three weeks, on the ground, there are no valid documents placed/submitted on record in support of the transfer of the hut/structure from the original/eligible occupier who was in occupation prior to 1.1.1995.

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8] Therefore, the Petitioners have filed the present Petitions. This Court, after considering the Government Policy and the earlier orders, granted interim relief to consider the rights and entitlement of present Occupants. There is no issue with regard to the existence of the structures prior to 1.1.1995. The issue is of production of valid transfer documents by present occupants. The decision, therefore, is required to be taken based upon the material available which may include and/or involve various questions of facts and verification of documents. As recorded above, there are more than fifteen thousand such occupants/slum dwellers are involved. The Respondent-Corporation cannot delay the

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eviction/demolish drive within prescribed period. Therefore, even a Notice of Motion is taken out by the Respondent-Corporation for extension of time, in view of the difficulties which they have been facing to decide the issue with regard to such present occupants, who are in possession based upon the subsequent documents.

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9] Therefore, in this background, the learned Advocate General Mr. D. J. Khambatta, appeared and on instructions, submitted that some arrangement needs to be made, as there is no mechanism and remedy and/or procedure available at this stage to decide such issue and/or disputed questions of facts, with regard to the entitlement of subsequent purchasers, based upon existing Policy. Terefore, subject to clarification and/or interpretation, if any, at this stage, he also submitted that the Court to pass appropriate order in the interest of project as well as in the interest of present occupants, like the Petitioners.

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10] Ultimately, the suggestion of taking an undertaking, from the individual occupant, is made and accordingly draft undertaking is prepared, which is a part of the order and reads thus:-

UNDERTAKING

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I, the undersigned Shri............................ residing at

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Zopadi No..........., Vatsalatai Naik Nagar, Chembur, Mumbai-400 071 undertake herewith that M.C.G.M has offered me the Flat No......... Floor No........., Bldg. No....... M/s. D.B. Reality, Mahul, Chembur in M/West Ward limit on ownership basis. In lieu of my present occupied structure which is required by the M.C.G.M. for the TANSA PIPELINE YOJANA and M.C.G.M. has given me offer letter under no. Kr.SAAM/P /OD…................/PARI dated ….....

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And I have accepted the Allotment Letter and I have read the terms and conditions of the above referred Allotment Letter/Offer Letter and they are acceptable to me. I have also accepted that, I don't have ownership of Hutment/Flat/ Room in M.C.G.M. jurisdiction, Mumbai. In future if any Hutment/Flat/ room of my ownership is found, in M.C.G.M. jurisdiction, I shall return the above mentioned alloted flat of M/s. D.B. Reality to M.C.G.M. without any terms and conditions.

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I have produced the documents of structure of the said hutment which is presently in my possession.

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I am unable to produce the original occupier of the

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wpl 107.14 -G(7,8& 9)

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said premises in occupation prior to 01.01.1995 and the documents produced by me are not registered under the provisions of Indian Registration Act.

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In view of above, I hereby given an undertaking that

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if any dispute is raised above the structure of the said premises by the original occupier then I shall be liable to defend such action as may be initiated by the original occupier and in an event it is found that there is no valid transfer in my favour then in that event I will surrender the said PAP premises to the Bombay Municipal Corporation.

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I, hereby undertake to abide by condition/policy point mentioned in the Govt. Circular regarding transfer of protected hutment u/no. Zopsu-2010 pra.kra 1 zopsu-1, Mantralayha, Mumbai-32 dated 02 January 2012 & if any case the interpretation as mentioned in the above GR goes against my favour, I will abide and surrender the PAP alloted to me by M.C.G.M. & will not claim any compensation in this case for the same.

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I, hereby undertake to abide by all the terms and conditions mentioned thereon and ready to complete the formalities of surrendering the present existing structure in my occupation to the M.C.G.M., after paying all the

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outstanding dues etc.

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In this regard, I also indemnify Municipal Commissioner and concerned staff of M.C.G.M. from any litigation, if arise in future for the same.

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Date:Place:Name of Occupier.

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It is made clear that this policy is also the basis for this order, which,

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if modified and/or amended, the required modification, if necessary, shall be made in this order and so also in the undertaking. This order cannot be read to mean superseding the Government policies and/or its requirement covering eligibility criteria and others, so announced from time to time. This order is an agreed arrangement, based upon the policies, in the interest of all, is subject to modification/clarification. Liberty to apply for modification and/or clarification of order.

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11] All the concerned parties have agreed for this arrangement and so also for the terms of the undertaking. The whole purpose of this undertaking is that the Respondent-

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Corporation can go ahead with the eviction process, in view of the earlier orders passed by the Court. The present occupants/Petitioners are also entitled to shift by vacating the existing structures and any right of erstwhile/original occupier is also taken care of in case of any disputes with the present Occupants which has to be adjudicated in accordance with law, if necessary.

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12] The arrangement and the terms of undertaking, therefore, in our view, are sufficient, for the time being, to handle and tackle the situation by keeping rights of all the parties open.

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13] It is made clear that in case of similar disputes and/or such dispute with regard to the erstwhile/original occupier with the present occupier, is required to be considered in accordance with law. This arrangement will take care of such disputes/situation also.

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14] The learned senior counsel appearing for the Respondent-Corporation, on instructions, made a statement that in view of above and subject to the undertaking given by the respective occupants and/or vacation/handing over of the hutments/structures, the Respondent-Corporation will provide them alternate accommodation (PAP) within two weeks. After getting

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possession by the occupants/Petitioners, will vacate the the respective premises/structure in question. The RespondentCorporation, thereafter shall be free to proceed as per the directions issued by this Court from time to time.

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15] The learned senior counsel appearing for the Petitioners made further clarification, on instructions, that this arrangement and terms/undertaking are only for “Tansa Pipeline Project”.

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16] In view of the above, all these Petitions are disposed of accordingly with liberty. There shall be no order as to costs.

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17] This order be treated as also an order in pending Public Interest Litigation No.140 of 2006 ( Janhit Manch and ors vs. State of Maharashtra and ors.

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(M. S. SONAK, J.) (ANOOP V. MOHTA, J.)

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Shri. Abdul Khalique Ansari v. the State of Maharshtra and 2 Ors.

Case brief

What is this about?

What did the court decide?

Shri. Abdul Khalique Ansari v. the State of Maharshtra and 2 Ors.

Case brief

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What did the court decide?

What the court decided

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