1 APPL.755.11-WP.1446.11(3).sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION APPEAL (L) NO. 755 OF 2011 IN WRIT PETITION NO.1446 OF 2011 Shashi Laxman Kadam ...Appellant Vs. Red Stone Realtors & Ors. ...Respondents Mr.Shailesh Naidu i/b. T.R. Yadav for Appellant Mr. K. T. Jain for Respondent No.1 Ms. Geeta Joglekar for Respondent No.2 V. Parshurami for Respondent No.3 VI.Mr. P.G. Lad, AGP for Respondent No.4 CORAM : MOHIT S. SHAH, C.J. AND MRS. ROSHAN DALVI, J. Date : 1 DECEMBER 2011. P.C. 1. This appeal challenges the order dated 10 October 2011 of the learned single Judge of this Court rejecting the appellant’s writ petition under Article 226 of the Constitution challenging various orders pertaining to the redevelopment of land belonging to the Maharashtra Housing And Area Development Authority (MHADA), Mumbai. By the said redevelopment, 247 tenants of MHADA, having flats each admeasuring 156 sq. ft, have been allotted and put into possession of flats admeasuring 300 sq. ft each. Hence while the appellant and the other tenants were tenants of the flats admeasuring 156 sq. ft each, the appellant and the other 246 persons have now become owners of the newly constructed flats admeasuring 300 sq. ft each. The tenanted premises occupied by the appellant and 246 other tenants have already 2 APPL.755.11-WP.1446.11(3).sxw been demolished. The learned trial Judge has dismissed the writ petition not merely on the ground that the petition has become infructuous, but also on the ground that the appellant having taken benefit of the newly constructed permanent alternate accommodation admeasuring 300 sq. ft on ownership basis in place of dilapidated flat of MHADA admeasuring 156 sq. ft., which the appellant was occupying on tenancy basis, it is not open to the appellant to approbate and reprobate. 2. The learned Counsel for the appellant submits that the appellant and other 246 tenants are also aggrieved by the demand to pay the premium of Rs. 18,56,12,970/- for which the Minister for Revenue has permitted Respondent No.1 to merely give an Indemnity Bond. It is submitted that respondent No.1 alone is required to pay the premium to the State. 3. The learned Counsel for respondent No.1 states that apart from having paid Rs.1,85,61,297/- to the District Collector in part compliance of the order dated 6 September 2007 of the Revenue Minister, the appellant has already given an Indemnity Bond and that in the event any further amount becomes payable towards premium in connection with the land in question, the Respondent No.1 shall pay such amount and that under no circumstances the appellant or any of the rehabilitated tenants / occupants shall be made to pay the said amount. The learned Counsel for respondent No.1 has further stated that the arrears of lease rental for the land in question shall be paid by respondent No.1. 4. Learned Counsel for respondent No.1 as well as the learned Counsel for the Mumbai Municipal Corporation, the learned Counsel for the MHADA and the learned Government Pleader have also opposed the appeal and submitted that the scheme is for the benefit of 247 tenants of MHADA for 3 APPL.755.11-WP.1446.11(3).sxw their rehabilitation by giving them newly constructed 300 sq. ft flats in lieu of flats of 156 sq. ft on tenancy basis and hence they cannot be allowed to raise objections after availing of the benefits under the scheme. 5. It is further submitted that the challenge levelled by the appellant against the order dated 23 June 2010 of MHADA at Exhibit-P is also misconceived as the permanent alternative accommodation allotted to the appellant is constructed under the permission dated 7 November 2008 read with modification dated 23 June 2010 and, therefore, the challenge is misconceived. It is also submitted that the appellant has no locus standi to challenge the said order dated 23 June 2010 which only modifies two of the conditions and imposed two further conditions. 6. Having heard the learned Counsel for the parties we are of the view that the learned single Judge committed no error in dismissing the Petition. The appellant having taken advantage of allotment of newly constructed flat admeasuring 300 sq. ft on ownership basis in lieu of dilapidated flat admeasuring 156 sq. ft on tenancy basis, cannot be allowed to set at naught the entire scheme since as many as 247 tenants including the appellant have been given this advantage. 7. However, Respondent No.1 has fairly agreed to file an undertaking in terms of what has been stated hereinabove. Mr. Jain learned Counsel on behalf of respondent No.1 states that the undertaking of respondent No.1 will be filed in the course of the day. 8. As regards the appellant’s challenge to the communication dated 23 June 2010 Exhibit-P, we find substance in the contention made on behalf of 4 APPL.755.11-WP.1446.11(3).sxw the respondents that the appellant having taken advantage of the scheme of rehabilitation, it is not open to the appellant to challenge the communication dated 23 June 2010. It is, therefore, clarified that we may not be treated to have expressed any opinion on merits of the said challenge. 9. The appeal stands dismissed. 10.The undertaking filed by the learned Counsel for the respondent No.1 is accepted and taken on record. CHIEF JUSTICE ROSHAN DALVI, J.