IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No. 325 of 2008 Yamuna Mahadev Shinde ..Petitioner vs. 1. Slum Rehabilitation Authority and others ...Respondents Mr.P.G.Karande with Mr.S.S.Redekar for petitioner. Mr.I.G.Reddy with Mr.Jaideep Deo for respondent no.1. Mr.A.M.Saraogi with Mr.S.K.Chaurasia for intervenor. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 23th April, 2008 23th April, 2008 23th April, 2008 P.C. P.C. P.C. 1. Since all contesting parties are before me the petition is taken up for admission and disposed off. 2. The writ petition challenges the order passed by the Competent Authority, copy of which is annexed at Exh.J to this writ petition. By order dated 3rd December, 2007 the Competent Authority has held that the petitioner has not been able to produce any record of her occupation of the structure prior to 1st January, 1995 (cut off date). The finding is that one Shivlakhan Jagai Yadav was the original occupant. The name of the petitioner is not appearing in the electoral roll nor in the electricity bill prior to 1st January, 1995. Further, according to him, the inhabitant’s name and structure must be there prior to the cut off date and that is how the issue of eligibility must be answered. 3. Mr.Karande appearing for the petitioner contends that the premises were originally occupied and stood in the name of the said Shivlakhan J.Yadav, who was the tenant. He expired on 16th May, 1996 at his native place in Jounpur District of Uttar Pradesh. The petitioner started occupying the structure in question from 13th June, 1997. The electoral roll and other documents for the year 1995 shows the name of the original tenant in voters’ list at Sr.No.810. The suit was filed by the petitioner being R.A.D. Suit no.1080 of 1999 in Small Causes Court against the landlords and it was decreed in favour of the petitioner. Declaration is that the petitioner is the lawful tenant. The petitioner was dispossessed forcibly by some antisocial elements and, therefore, he filed a suit under sec.6 of the Specific Relief Act in the City Civil Court being Suit No.1119 of 1999. That was decreed on 18th September, 2001. At the time of preparation of Annexure II, the name of the petitioner is shown at Sr.No.103. She was not held eligible because the documents were not produced. The petitioner appeared before the Deputy Collector (Encroachment) and requested that the issue of eligibility be decided but the Deputy Collector passed an order on 21st August, 2007 holding that the petitioner was not eligible. There upon a writ petition was filed in this Court, being Writ Petition no.2195 of 2007 and that was decided on 31st October, 2007. The petitioner says that the Competent Authority was directed to re-examine and determine the issue of eligibility and pass order afresh. 4. It is urged by Mr.Karande that in the mean while a Full Bench of this Court in a decision reported in 2008(1) Bom.C.R.1 ( Tulsiwadi Navnirman Coop.Housing society Ltd. and another Vs. State of Maharashtra and others) clarified the position as regards slum rehabilitation scheme and eligibility criteria and in para 37 observed that the provisions of D.C.Regulations and more particularly regulation 33(10) contemplates that only actual occupants of the hutments shall be eligible and so-called structure-owner other than the actual occupants, even if his/her name is shown in the electoral roll for the structure, he or she would have no right to reconstructed tenement against that structure. 5. The submission is that the authority proceeded on an erroneous basis that both occupants and structure must be reckoned as of the cut off date and even if the original occupant has surrendered, relinquished or transferred his rights in favour of somebody else and the structure may be existing before the cut off date but eligibility of the occupant is to be decided independent thereof and he must produce necessary documents of his occupation prior to the cut off date. The submission is that this is contrary to the Full Bench decision. 6. Mr.Saraogi appearing for the applicant in support of the chamber summons contends that the applicant has moved this Court because he apprehends that the petitioner may usurp his right in the premises and only the applicants are eligible for the tenement under the scheme. The petitioner cannot be held so eligible. The applicants claim to be occupying the structure prior to 1995 and even thereafter. They would should produce the documents to support their occupation. 7. When this aspect was brought to the notice of the learned Counsel appearing for the Slum Rehabilitation Authority and it was also pointed out that there was no affidavit in reply controverting the averments in the writ petition, Mr.Reddy would urge that this is a fit case where the Competent Authority must be directed to re-examine the issue in the light of law laid down by this Court in the above mentioned decision. He submits that the Full Bench decision although rendered in the month of November, 2007 could not be noticed and, therefore, this Court must pass appropriate orders and directions. 8. In these circumstances, it would be desirable and in the interest of justice that the matter is remitted back to the Competent Authority/Deputy Collector (ENC). The order under challenge is quashed and set aside. The matter must now be decided by the Competent Authority in the light of law laid down by this Court and D.C.Regulations so also considering all the material that is are being produced by the petitioners so also the applicants. Interest of justice would be further subserved if instead of this Court going into the rival contentions, the Competent Authority examines them. Thus, both the petitioner Yamuna Mahadev Shinde and the applicants who are appearing in support of the Chamber Summons are heard by the Competent Authority and it passes an order afresh without being influenced by its earlier directions. All contentions of both sides are expressly kept open. This Court has merely recorded the rival contentions but has not decided the controversy. Both sides to appear before the Competent Authority on 30th April, 2008 and the Competent Authority to render the decision afresh within a period of three weeks from the date of appearance. Ad-interim order granted by this Court reserving the tenement shall continue and one tenement shall be continued to be earmarked/reserved in the scheme and shall not be allotted, if not already allotted, until the Competent Authority renders its decision. 9. Petition disposed off in the above terms. No costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)