Respite for 72 refugee families who were denied govt housing allotted to them
The Kasturba Nagar CHS Ltd. ….Petitioner
Kisan A. Maheshwari (Since Deceased through legal heirs) and Ors. …. Respondent
W.P. No. 3439 of 2014
Date of Judgment: 13/03/2018
Forum: Bombay High Court
Judge: R.D. Dhanuka, J.
In 1968, the Dalit Hindu Refugees had formed the Kasturba Housing Society and asked the Government to procure land to build flats for them. This Government allotted land was to be used by the Petitioners i.e. the builders to deliver homes to the Refugees. But they failed on their obligations and were held to have grossly violated the rights of the refugees since they failed on delivering flats to most of the original members, delivered only 48 of the 72 flats promised and that too after a huge delay.
The petitioner society defrauded many tenements by forging signatures on sale deeds and by not transferring flats to the legal heirs, and used the residential premises land for commercial use without permission from the concerned authorities and on various other grounds. Since the last 20 years, the refugees have been struggling, living in slums or tents, doing menial jobs and fighting over their right to the allotted housing.
Finally, rays of Justice dawned on the 72 refugee families when the Bombay High Court passed an Order to take back the land allotted in 1977 to a corrupt Society (Petitioners in the case) for denying the rightful benefits to the people for whom the land was allotted (Respondents).
Summary of Facts:
The Petitioner is a Builder who was allotted a Plot measuring 2787.5 sq. yards at Chembur by the State of Maharashtra on 17th October, 1977 for the purpose of constructing 72 tenements for the ‘displaced persons members’ only. Pursuant to this, he entered into an agreement with the Additional Director, B.S.D. agreeing to various ‘Terms and Conditions’ mentioned therein. He obtained the necessary permissions for Construction. However, building could not be constructed within two years.
The Respondent No.1 is one of the 71 original members of the petitioner who were originally refugee who migrated from Karachi (Pakistan) during the period of partition of the country and belong to the Scheduled Caste, and represents the original members who were to be allotted tenements as per the agreement.
The petitioner was granted extension of time up to 30th November, 1985 by the learned Additional Collector, B.S.D. Even then, out of 72 tenements, only 48 could be constructed in terms of agreement dated 17th October, 1977. Very few of these flats were actually allotted to the Respondent No.1.
Due to serious violation of the Agreement with the Government, an Order dated 21st June, 2002 was passed by Collector, Mumbai Suburban District to resume the land allotted to Petitioner back to the Government. Various Writ Petitions were filed subsequently by the Petitioner challenging the above order; however they were directed to other authorities for disposal.
Finally, the High Court accepted the petition of the Petitioner and passed a Judgment dated 13/03/2018 thereby disposing off the petition and upholding the order of the authorities based on the following submissions of both the parties.
Submissions of the Petitioner:
It was submitted by Petitioner society that on basis of available FSI and TDR, 17 tenements can be build and allotted to members on the waiting list, provided they pay construction cost as per present market rate.
It was submitted that there were 20 members in the waiting list due to non-payment of construction money, out of which 11 were expelled by passing Resolution by Petitioner and Court’s order. Thus, in all, 9 are kept in the waiting list.
It was submitted by the Petitioner that the members who expired, their legal heirs did not come forward and did not request the Petitioner to accept them as members of the society.
It was further submitted that gross hardship would be caused to Petitioners and members of Society if Order of Revenue Ministry upholding order of Authority for resumption of land is not set aside. None of the respondents shall be benefited if land is resumed to the State Government.
It is further submitted that Respondent No.1 has been opposing the petition with vested interest and that the Petitioner is ready to admit him as member if he is ready to pay present market price for construction.
It is further submitted that the Petitioner has not violated any Terms and Conditions of agreement entered into with State Government and conditions of allotment of land and that some transfers of tenements by members of society to third parties was not in control of the petitioner.
Gross violation of terms and conditions of Agreement entered with the State Government for construction on a piece of land- Held that even though it causes prejudice to the rights of the other party, land resumed to the State Government due to gross violation of Agreement by the Petitioner and enough liberty already granted-defrauded by forging signatures on sale deed to sell tenements to outsiders- residential land used for commercial purposes held as violation of agreement-permission of Additional Commissioner not sought for such use-delay in construction- non delivery of tenements- most tenements held by family members of ex-chairman of society- order of authorities confirmed by High Court-Writ dismissed.
Submission of the Respondent:
It is submitted by the Respondent that:
The Agreement clearly mentioned that the allotment has to be strictly made to ‘displaced persons members’ only. However, petitioner violated this condition by allotting tenements to outsiders and that too without permission of the Collector, B.S.D.
Construction of 72 tenements for residential purposes was to be completed within 2 years as per the approved layout. However, the petitioner kept on extending time limit on one or other pretext.
The petitioner has used the ground floor of the buildings/premises for commercial purposes without obtaining any necessary permission from the Collector, BSD.
Several tenements constructed by the petitioner are being used for commercial use and are allotted illegally and unfairly.
Several original members defrauded including one Mr. Khimji Lakhia who was shown to have executed a sale deed in favour of an outsider. However, the signature on such Sale Deed was forged. Thus, large scale fraudulent activities carried on by the petitioner thereby violating conditions of agreement with State Government.
As held by the Hon’ble High Court:
The Court rightly acknowledged that the petitioner was subject to the 16 conditions of the Agreement. Despite many extensions, only 48 out of 72 tenements could be constructed. However, out of the 48 tenements, very few were occupied by original members. The Petitioner himself gave NOC in favour of such member for transfer of flats to third party. Also, Several tenements were used for commercial purposes without the permission of Addition Collector, B.S.D. for change of user. The petitioner could not justify these breaches in front of any authority.
It was also observed by the Court that many original members were not allotted the tenements, and that most of them were occupied by the family members of the ex chairman of the society.
In light of such grave violations, the Court held that all authorities had rightly rendered the findings of the fact against the petitioner for violation of the terms and conditions and passed an order of resumption of the land. Also, the Court did not accept the submission of the Petitioner that resumption of land to State Government would be prejudicial to rights of original members as enough indulgence and liberty was already granted by the State Government to them. The Court also acknowledged the fact that the petitioner had forged the signature of a member on the agreement after his demise and sold the flat.
The Court, in the same light, dismissed the Petition with no order to costs.order