Dhanraj Bhagirath Gotwal v. State of Maharashtra & Ors.

3.8. It is pertinent to note that in the eviction proceedings before Respondent No.2-Deputy Collector, the Petitioner never raised his grievance of entitlement to a larger area in respect of his structure over and above 120 sq.ft. which stood certified in the Annexure-II prepared on 29.06.2007. However before the appellate authority i.e. the Divisional Commissioner, Konkan Division the Petitioner for the first time raised a grievance of being entitled to an additional area of 60 sq.ft. in addition to the area notified in Annexure-II prepared on 29.06.2007. The grievance for entitlement to additional area was raised for the first time in the August 2011 before the appellate authority.

3.9. Petitioner made an application to Respondent No. 2 competent authority for re-measurement of the structure occupied by the Petitioner. Respondent No. 2, on receiving directions vide letter dated 23.08.2011 from the Additional Collector (Encroachments), Mumbai Suburban District held a hearing on 19.09.2011 and carried out remeasurement of the Petitioner's structure on 22.09.2011 and certified that the Petitioner was in occupation of the structure admeasuring 18 feet x 10 feet totalling to 180 sq. ft. By order dated 15.03.2011 Respondent No. 2 confirmed and certified that the Petitioner had 5 of 17 made an application for use of additional area of 60 sq.ft. in respect of his structure for residential purpose and sought eligibility of the additional area in Annexure-II prepared by the competent authority.

3.10. On 30.04.2011 Respondent No.4 entered into an agreement with the Petitioner for providing temporary alternate accommodation in respect of the structure occupied by the Petitioner which was notified at Sr. No. 28 in Annexure-II recording the area as 120 sq. ft. However it was also stated in the agreement that representation of the tenant for claiming a larger area of 180 sq.ft. was pending before the competent authority. This agreement was entered into to implement the re-development project and reserving the Petitioner's right to a higher area.

3.11. In the order dated 01.10.2011 the appellate authority i.e. the Divisional Commissioner, Konkan Division directed the Petitioner to vacate the structure. However it was directed that prior to vacation and demolition of the structure as directed, the competent authority shall once again get the measurement done from the concerned authority with prior intimation to the Petitioner, prepare panchnama and take photographs from all angles, document the dimensions and structure.

3.12. The order dated 15.03.2012 was challenged by Respondent No. 4 - Developer before Respondent No. 3-SRA. SRA, 6 of 17 after hearing the parties passed order dated 10.04.2014 confirming the area of the Petitioner's structure admeasuring 12 feet x 10 feet as measured in 2007 at the time of preparation of Annexure-II.

4. Mr. Ranjit D. Shinde, learned counsel appearing for the Petitioner has vehemently made the following submissions:-

(i) that SRA erroneously relied on Annexure-II prepared in the year 2007 which erroneously records the area of the Petitioner's structure as 120 sq.ft.;

(ii) that SRA ought to have considered that there is no premises admeasuring 120 sq.ft. area in the building constructed by Respondent No. 4 for rehabilitation of the members of the society;

(iii) that SRA failed to consider that Annexure-II is required to be modified in respect of the Petitioner's premises after following due process of law;

(iv) that SRA ought to have considered that

Respondent No. 4 himself had agreed to provide an area of 180 sq.ft. to the Petitioner if the concerned authority certified the same;

(v) that the impugned order dated 10.04.2014 is perverse and against the principles of natural justice;

(vi) that the impugned order dated 10.04.2014 passed by the learned Secretary, SRA is beyond limitation and beyond jurisdiction as the SRA has no power and authority to pass the said order; 7 of 17

(vii) that the measurement of the Petitioner's premises has been done by the concerned authority in the presence of Respondent No. 4 and there is no objection regarding measurement and panchnama drawn by the authority;

(viii) that SRA ought to have considered that there was no challenge to the measurement report and panchnama drawn up by the concerned authority and the same had attained finality and therefore revising the same is beyond the scope of the objections filed by Respondent No. 4;

(ix) that SRA failed to consider that remeasurement of the Petitioner's premises was done by the concerned authority after giving proper notice to all parties concerned and after following due process of law and on remeasurement the area was found to be 180 sq. ft.;

(x) that SRA ought to have considered that remeasurement of the Petitioner's structure was carried out pursuant to the order passed by the Administrator and Divisional Commissioner, Konkan Division in appellate proceedings filed by the petitioner.

4.1. He has therefore sought for quashing and setting aside of the impugned order dated 10.04.2014.

5. PER CONTRA, Mr. Shivraj Kunchge, learned counsel appearing for Respondent No. 4 - Developer has made the following 8 of 17 submissions to oppose the petition:-

(i) that the petition is not maintainable as the impugned order dated 10.04.2014 passed by Respondent No. 3-SRA can be challenged before the High Power Committee and / or the Petitioner is also entitled to file statutory Appeal under Section 35 of the said Act before the Apex Grievance Redressal Committee and therefore, the petition be dismissed in limine;

(ii) that it is denied that the Petitioner was having commercial premises admeasuring 180 sq. ft. as on 01.01.1995 [eligibility cut - off date, as per then prevailing rules or on the date of preparation of Annexure-II] or on 01.01.2000 [eligibility cut off date] and therefore the petitioner is not entitled for 'commercial premises' admeasuring 180 sq. ft.;

(iii) that Annexure-II in respect of the subject slum

Scheme under reference was prepared on 29.06.2007 by the Dy. Collector (Enc./Rem.) & competent authority – Chembur Div., wherein the Petitioner was declared eligible for 'commercial premises' admeasuring 120 sq. ft;

(iv) that Annexure II dated 29.06.2007 was duly published alongwith the area and shown to the occupants included in the said rehabilitation scheme, including the Petitioner; that the petitioner participated actively in the entire process of redevelopment, which can be seen from 9 of 17 the letter dated 29.06.2007 issued by the Dy. Collector (Enc./Rem) - Chembur, wherein the Petitioner was included at Sr. No. 28 in Annexure– II, that he was aware and it was within his knowledge about the preparation of Annexure-II dated 29.06.2007 wherein he was shown eligible for 120 sq. ft 'commercial premises';

(v) that if at all the Petitioner was aggrieved by the said area of 120 sq. ft area, he had the remedy to file Appeal u/S. 35 of the Act to challenge the same; however, no such steps were taken by the Petitioner;

(vi) that it is only 3 years after Annexure-II was prepared and notified, in the month of August 2010, the Petitioner carried out illegal alteration and addition to his and his son's commercial structures shown at Sr. No. 28 and 27 in Annexure-II against which the Developer and the Society, both, filed written complaints dated 24.08.2010 and 28.07.2011 with the Dy. Collector (Enc./Rem.); the Developer also filed a further written complaint dated 06.01.2012 with the Secretary, SRA and Addl. Collector (Enc./Rem.); that in response to the complaint dated 06.01.2012, the Addl. Collector (Enc./Rem.) by letter dated 02.02.2012 directed the Deputy Collector (Enc./Rem.), Chembur Division to probe the matter and submit a report;

(vii) that the Petitioner and his son have illegally and unauthorizedly carried out alteration and addition 10 of 17 to the two commercial structures after preparation of Annexure–II and therefore the Petitioner is not entitled to any additional area over and above that was certified in Annexure-II;

(viii) that in 2011, eviction proceedings were initiated against the Petitioner and his son for noncooperation and causing hindrance to the implementation of the redevelopment scheme; that by order dated 25.04.2011, the Deputy Collector (Enc./Rem.) and competent authority, Chembur Division passed eviction order u/s. 33 and 38 of the said Act against the Petitioner and his son; that the eviction order dated 25.04.2011 was subsequently confirmed by the First Appellate Authority i.e. Administrator and Divisional Commissioner, Konkan Division vide order dated 01.10.2011;

(ix) that it is only during the arguments before the

First Appellate Authority i.e. Administrator and Divisional Commissioner, Konkan Division. Petitioner for the first time raised an objection with respect to area dispute of his commercial structure considering which the First Appellate Authority by its order dated 01.10.2011 directed Deputy Collector (Enc./Rem.) and Competent Authority to conduct measurement of the Petitioner's structure prior to demolition by conducting panchnama and taking photographs from all angles to document the dimensions and existence of the Petitioner's premises and copies of 11 of 17 the same be given to the Petitioner for his record and purpose; that this direction does not entitle the Petitioner to claim a higher area even if it was found to be above 120 sq. ft; that whether the Petitioner was entitled to a higher area could only be the subject of an adjudication depending upon several facts;

(x) that Petitioner's reliance on panchnama dated

22.09.2011 is not sacrosanct for determining his eligibility for a higher area; the higher area noted in the panchnama was as a result of the unauthorized and illegal construction and extension carried out by the Petitioner; that there were several complaints filed against the Petitioner for such illegal construction;

(xi) that the developer has completed the entire redevelopment project and rehabilitated all eligible slum dwellers except the Petitioner after obtaining full occupation certificate dated 28.04.2017 and has handed over the buildings to the Society; that in the rehab building, the developer has kept reserved one shop No. 6 admeasuring 120 sq. ft. for the Petitioner as per his eligibility notified in Annexure-II;

(xii) that the Petitioner has not produced any documentary evidence to prove his entitlement to 180 sq. ft.; further there is no averment in the petition that he even possesses any documentary evidence to prove that his structure was admeasuring 180 sq. ft. at the time of preparation 12 of 17 of Annexure-II;

(xiii) that under such circumstances, the Deputy

Collector [Enc./Rem.] Chembur and thereafter, Additional Collector [Enc./Rem.] - Eastern Suburbs holding Petitioner eligible for 180 sq. ft. commercial premises, that too solely relying upon the panchnama prepared after 5 years after preparing the Annexure–II by ignoring the complaints of alteration and addition filed against the Petitioner is illegal, null and void; hence therefore, the order passed by the Secretary, SRA holding the Petitioner eligible for 120 sq. ft. is correct and valid;

6. I have heard the learned counsel appearing for the respective parties. Submissions made by the parties are on pleaded lines.

7. I have perused the pleadings filed by the respective parties. In the present case the Petitioner is challenging the order dated 10.04.2014 passed by the SRA in respect of the eligibility of the Petitioner for additional area of 60 sq.ft. in addition to the certified area in Annexure -II of 120 sq.ft. It is seen that one of the principle reason for denial of the Petitioner's claim is the notified Annexure-II statement in respect of the Petitioner's eligibility which came to be prepared in 2007. There is no dispute about this proposition and date, this is an admitted position. Thus in 2007 as per the Petitioner's eligibility and following the due process of law Petitioner was indeed 13 of 17 entitled for alternate accommodation for 120 sq.ft. in respect of the Petitioner's structure which admeasured 120 sq.ft. The impugned order records that when Annexure-II was prepared and the eligibility determined, the SRA carried out measurement and survey of the Petitioner's structure, which had that time admeasured 12 ft. x 10 ft. i.e. 120 sq.ft. It is further seen that the Petitioner has never objected or claimed any additional area in addition to 120 sq.ft. after preparation of Annexure-II. Once Annexure -II was in public domain and if the Petitioner was aggrieved about notification of an incorrect area statement therein, it was incumbent upon the Petitioner who has much later in 2011 raised a grievance and challenged the area in the Annexure-II statement. In the present case it is seen that only after Annexure-II statement was prepared, the Petitioner and his son (who claimed to have held the adjoining structure) carried out large scale alteration in both the structures and converted the existing two structures into three structures so as to claim additional eligibility of one more structure. That apart while carrying out alteration, the Petitioner also increased the existing area of his structure and included the open area on the rear side of the structure inside the physical boundaries of his structure so as to claim a holding of 180 sq.ft. It is seen that when the Petitioner carried out large scale alteration, the Respondent No. 4 - Developer and the Respondent No.5- Society, both approached the Respondent No.3 by written complaints. All that the 14 of 17 Petitioner is now stating in the Petition is that there is an erroneous recording of the area of the Petitioner's structure in the Annexure-II. The entire Petition is silent about the Petitioner's conduct and more specifically the complaints filed against the Petitioner after preparation of Annexure-II statement.

8. The Petition is devoid of material particulars; admittedly there is gross delay and laches on the part of the Petitioner who has approached the Court by the present Petition in the year 2016. If the Petitioner was indeed aggrieved with the erroneous recording of the area statement in respect of his structure there was no reason for the Petitioner to have remained silent thereafter in 2007. In fact after going through the pleadings it is clearly apparent that the Petitioner has indulged in alteration of the area of his structure notified in Annexure-II and has attempted to increase the said area by including the open space on the rear side of the existing structure in the year

2007. Apart from delay and laches the Petitioner is also guilty of suppression. The Petitioner has not placed on record any substantive evidence to prove his eligibility for a higher area. It is true that the Competent Authority had directed that before demolition of the Petitioner's structure the area should be re-measured and placed on record. This measurement was carried out in the year 2012 before demolition of the Petitioner's structure for the purpose of re- 15 of 17 development. Admittedly, in the year 2012 because of the large scale alteration carried out by the Petitioner the area of the Petitioner's structure was 180 sq.ft. Merely because at the time of measurement before demolition the area of the structure was 180 sq.ft. does not entitle the Petitioner to claim that the actual area was 180 sq.ft. and the Annexure-II needs rectification. It is well documented on the basis of complaints to the Respondent No.3 - SRA that the Petitioner and his son both, indulged in large scale unauthorised alteration of the structures to claim additional benefit as well as additional area. However, all this was done by the Petitioner and his son after notification of the areas in Annexure-II statement in respect of their structures. In so far as the subject structure of the Petitioner is concerned, the entire case of the Petitioner is based upon the measurement carried out of the said structure before demolition. This however in the eyes of this Court is not only inadequate but no substantive material or evidence to prove that the Petitioner is entitled to the additional 60 sq.ft. area. There is no documentary evidence and/or any such material evidence placed before this Court for seeking entitlement of the additional area of 60 sq.ft. It is pertinent to note that, even in the eviction proceedings in the year 2011, the Petitioner never raised a grievance of occupation of 180 sq.ft. area in respect of the subject structure. The impugned order dated 10.04.2014 has been therefore passed correctly by the Respondent No.3 Competent 16 of 17 Authority in consonance with the facts of the Petitioner's case. It does not call for any interference whatsoever.

9. In view of the above discussion and findings, the Writ Petition stands dismissed. The Petitioner is directed to pay costs of Rs.15,000/- to the High Court Legal Services Committee, High Court Mumbai as cost of the Petition. [ MILIND N. JADHAV, J. ]