1 wplod2319-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.2319 OF 2011 Kamala Chinkendi & Ors. .. Petitioners Versus The State of Maharashtra and Ors. .. Respondents Mr.Y.E.Mooman with Ms.M.B.Gawde for petitioners Mr.Mattos, AGP for State of Maharashtra Mr.Chirag Balsara i/b. Divya Shah & Associates for respondent No.4 Mr.J.G.Reddy with N.P.Zatte for respondent No.4 (SRA) Ms.T. Puranik for respondent No.2 BMC CORAM : S.C.DHARMADHIKARI, J. 21st October, 2011. P.C.: 1] By this petition the petitioners are challenging the orders of the appellate authority confirming that of the competent authority evicting them from the premises which are in their possession and occupation. It is stated that each of these petitioners are found to be eligible for commercial premises. They are also offered compensation in lieu of transit accommodation. This ia part of the scheme covered by my orders in W.P.2315 of 2011 with other connected petitions. 2 wplod2319-11.doc 2] The only issue which was remaining for being considered was the identity of the premises which are to be offered to the petitioners as permanent alternate accommodation. In the morning session, time was sought by Mr.Balsara to produce sanctioned plans. At the request of developer and Mr.Balsara the matter was kept back and sanctioned plans are produced now. On perusal of the same by learned Counsel for petitioners so also by Mr.Balsara, it is apparent that the petitioners have been offered permanent alternate accommodation at the same site and in the rehabilitation component. They are also paid the amount of compensation in lieu of transit accommodation and the cheques in that behalf have been handed over today in the Court. 3] Mr.Mooman submits that being commercial premises and the petitioners being required to move their articles and moveables some time be given so as to enable them to shift elsewhere by accepting the compensation in lieu of the transit accommodation. It is stated that on account of ensuing Diwali 3 wplod2319-11.doc festival, some reasonable time be granted. 4] On the other hand, it is pointed out that out of the total commercial tenaments only these nine occupants have not shifted and that is holding up the development work at site. 5] After hearing both sides, in my view, the essential grievance of the petitioners has been answered inasmuch the permanent alternate accommodation has been identified on the plans and it is stated by Mr.Balsara that a copy thereof will be forwarded to Mr.Mooman on or before 22nd October 2011. 6] Secondly even the cheques for compensation in lieu of transit accommodation have been handed over. Now in terms of the request made by Mr.Mooman appearing for petitioners and after hearing the contesting respondents on this issue, I am satisfied that interest of justice is served if time to vacate till 30th November 2011 is granted to all the petitioners and the impugned orders of the competent authority as confirmed by the appellate authority shall not be enforced and executed till that 4 wplod2319-11.doc date, after which it will be open for the competent authority to take forcible possession of the premises in possession of the petitioners and if necessary by breaking open the locks that have been fixed thereon. As far as the petitioner No.1 is concerned, viz., Kamla Chinkendi it is stated by Mr.Mooman on instructions that her existing shop premises admeasure 216 sq.feet whereas Annexure II identifies the area which is to be allotted to her as permanent alternate accommodation as 112 sq.feet. There is deficit of about 114 sq.feet. Ms.Puranik appearing for Corporation therefore, states on instructions that what has been stated in the Annexure II is correct area and it could be that the petitioner No.1 has inflated her claim by putting up certain portion or areas during the time the notice issued by competent authority and the order passed thereon and until the date of disposal of the petition. To my mind, it is not for this Court to resolve the issue as it is essentially factual. The petitioner No.1 presently be given the permanent alternate accommodation in terms of area mentioned in Annexure II but that would be without prejudice to her rights and contentions and upon actual measurement if the petitioner No.1 is found entitled to more 5 wplod2319-11.doc area, then, respondent Nos. 2 and 5 would ensure that respondent No.4 developer provide petitioner No.1 with the corrected area. The petitioner No.1 will produce all the relevant documents in relation to the measurement and if any measurement is requirement to be carried out on the site the same shall be done by the Estate Department of G-South ward of Municipal Corporation. 7] The measurements shall be carried out in the presence of the petitioner No.1, representative of developer, by the concerned Engineer and if he is of the opinion that any portion has been added up or the claim is inflated in any manner, he is free to make such observations as are permissible in law in his report. 8] Needless to state that all contentions of the petitioner No.1 in relation to the report that would be prepared and the measurement at site including her right to impugn it are kept open. It is pointed out by Mr.Mooman and Mr.Balsara appearing for petitioners and developers respectively that the earlier orders 6 wplod2319-11.doc with regard to execution of documents and agreements in relation to the permanent alternate accommodation present some difficulty and the Registering Authority is not registering the documents because the details in relation to the permanent alternate accommodation have not been inserted and there are some blanks in the documents. The details such as tenament number, floor number having not been mentioned, the documents cannot be registered and my attention is invited to section 20 of the Registration Act in this behalf. 9] Having perused the said provisions with the assistance of the learned Counsel for the parties, I requested Mr.Mattos learned AGP appearing for State, who appears in the in some other matter to assist the Court by taking instructions on this aspect. Hence, leave to amend the petition is granted. Amendments be carried out forthwith. Mr.Mattos informs the court that the Registering Authority is careful and cautious because if the details in relation to flat number/ tenament number, room number and floor number having not been inserted, there is every likelihood of number of slum dwellers 7 wplod2319-11.doc being increased or inflated than permissible limits set out in Annexure II and the scheme in this behalf so as to obtain benefits of FSI etc. and, therefore, the documents are deliberately kept incomplete. 10] To my mind, everything depends upon the facts and circumstances emerging in each case. No general rule can be laid down. The registering authority should in such circumstances be aware of the fact that it is the instrument on which stamp duty has been calculated and which is to be registered. The underlying transaction is something which is out of the powers of such authority. However, if there is any doubt in their mind, they can always bring it to the notice of SRA and the State and then appropriate corrective measures can be adopted. However, when the registration of documents is sought in relation to schemes where permanent alternate accommodation to the existing occupants and slum dwellers is offered in situ, then, when the rehabilitation building in which he or she is to be accommodated is identified with sufficient details and clarity and his/her entitlement is also crystalised, then, merely because 8 wplod2319-11.doc details in relation to flat and tenament number are not inserted by itself and without anything more should not be a ground to refuse registration. All the more, when there are other documents placed on record. This difficulty is presented to me because it is stated that lots are drawn after the construction is complete and they are not drawn either by the developers or the authorities but the cooperative society to which the buildings are handed over. Al beit, all this is done under the supervision of authorities. Therefore, until that stage is reached, the tenament number or flat number is not possible to be ascertained and inserted. The Registration of a document which guarantees permanent alternate accommodation is an assurance to slum dwellers that their claim has been accepted and the registration doubly assures them that the instrument/ document being registered the claim will be known to parties; who are or may be dealing with the subject property. In such circumstances, it is always possible for the state and SRA to find out a solution by issuing clarifications, circulars and guidelines. The Authorities may also consider issuing guidelines to Registration authorities. The guidelines may include such protection and measures so 9 wplod2319-11.doc that the developer do not enter into and execute multiple documents in relation to same flat and to avoid that registering authority may obtain such indemnities so as to protect and secure claim of innocent third parties. 11] Needless to clarify that once the plans are taken, are inspected and referred to in the subject order does not mean that they cannot undergo any modification and change and, therefore, further needless to clarify that any such changes or modifications in the sanctioned plan would always be subject to rights of permanent alternate accommodation which are assured to all those whose names are appearing in Annexure II or who are otherwise found eligible. 12] The Authorities (State and Registration) should consider the aforesaid and take a decision as expeditiously as possible and within a period of three months from today. 13] In the aforesaid circumstances, time till 30th November is granted to vacate the premises on the undertakings from the 10 wplod2319-11.doc petitioners to this Court in the following terms being furnished/ filed in this Court within one week from today. The undertaking shall state that:- (a) The petitioners and their family members alone are in possession and occupation of the premises and that none other has been inducted or shall be inducted nor the premises would be transferred or parted with possession; (b) The petitioners together with their family members shall vacate the existing premises before 30th November 2011 so as to facilitate the redevelopment project; (c) If the petitioners fail to vacate the existing premises and hand over vacant and peaceful possession thereof by 30th November 2011, the competent authority shall be at liberty to execute the eviction order, if required, with due police protection; (d) The petitioners are agreeable to shift themselves, either to the transit accommodation, which is being provided by 11 wplod2319-11.doc the Developer, or if it is not suitable to them, to shift themselves to any other accommodation which is made available by the Developer within a radius of three kilometres; (e) If the petitioners do not wish to avail of either the transit accommodation or the accommodation being provided to them by the Developer as mentioned in clause (c) above, then, the petitioners may accept the monetary compensation in lieu thereof from the Developer. (f) It is clarified that the protection/ extension will be available only if the petitioners give undertaking as aforesaid within the stipulated time. 14] The writ petition is disposed off accordingly. No costs. (S.C.DHARMADHIKARI, J)