1 wpl2627.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 2627 OF 2010 Jagannath Chandayya Punja Shetty & Ors. .....Petitioners. Vs. M/s. Housing Development and Improvement India Pvt. Ltd. & Ors. ......Respondents. Ms. Shabana F. Sathe for the Petitioners. Mr. Rajesh C. Shah with Mr. Satyen Vora and Mr. Sanmish Gala i/by M/s. Markand Gandhi & Co. for Respondent No.1. Mr. Vijay D. Patil for Respondent No.3. CORAM : DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE : JUNE 9, 2011 P.C.: The Petition under Article 226 of the Constitution is by two Petitioners. The subject matter of the Petition is a Slum Redevelopment Scheme under DCR 33(10). The petitioners seek an order of the Court, directing that they should be allotted commercial premises in the redevelopment. 2 During the course of the hearing, counsel appearing for the developer has placed on the record a copy of Annexure-II prepared by 2 wpl2627.10.sxw ssm the Deputy Collector (Encroachment and Removal) certifying the names of the eligible slum dwellers. The names of the First and Second Petitioners appeared at Serial No.229 and 222 respectively and each of them has been held to be eligible for the allotment of residential accommodation. As a matter of fact, it is common ground that both the Petitioners were allotted residential accommodation. However, the contention before the Court is that the First Petitioner was carrying on business under the name of “Durga Snacks Stall” and that the agreement which was entered into by the developer on 26 July 2002 makes a clear reference to this fact. 3 The First Petitioner had moved the High Power Committee some time in 2008 with his grievance in respect of the non-allotment of commercial accommodation. From the order of the High Power Committee dated 21 February 2009, it appears that the First Petitioner was absent. Before this Court it has been urged on behalf of the First Petitioner that at the relevant time, he had suffered a stroke and was unable to remain present before the Committee. Before the Committee, the brother of the First Petitioner appeared. The Committee merely observed that Annexure II certified the name of the First Petitioner as eligible for the allotment of residential premises in 3 wpl2627.10.sxw ssm the rehabilitation building and hence, no question would arise for the allotment of commercial accommodation. At the present stage, from the material on the record, it appears that both the Petitioners were found eligible for participating in the Slum Rehabilitation Scheme, but Annexure-II certified them as being only eligible to receive residential accommodation. In so far as the First Petitioner is concerned, the agreement for development that was entered into by the developer refers to him as carrying on business in the name of “Durga Snacks Stall”. According to the First Petitioner, apart from the residential structure, he was also carrying on business in the commercial structure and that is why the developer had entered into agreement with him in those terms. In proceedings under Article 226 of the Constitution, it would not be possible for this Court to determine the issue. The High Power Committee has, in its order dated 21 February 2009, also not referred to the fact that the agreement between the developer and the First Petitioner makes a reference to the commercial business that was being carried on by the First Petitioner. In this view of the matter, we are of the view that it would only be appropriate and proper if the competent authority, namely, the Deputy Collector, (Encroachment and Removal), who had certified Annexure-II is directed to once again scrutinize the claim of the First Petitioner for 4 wpl2627.10.sxw ssm the allotment of commercial premises. Counsel appearing on behalf of the Developer has submitted that while it is true that the agreement that was entered into with the First Petitioner refers to the First Petitioner carrying on the business of a snacks stall, the developer was bound by the list of certified documents in Annexure-II. Counsel appearing on behalf of the Developer has stated that the agreement which contains a plan of the premises to be allotted to the First Petitioner also refers to residential premises and that this would be further amplified by the body of the agreement. We are of the view that all these factual issues should be considered by the competent authority. 4 We accordingly dispose of this Petition by directing that the First Petitioner shall, within a period of two weeks from today, produce before the Deputy Collector (Encroachment and Removal) all the documentary evidence that he may seek to rely upon in support of his contention that he is entitled to the allotment of commercial premises. The Deputy Collector (Encroachment and Removal) shall duly consider the material which is produced by the First Petitioner and determine as to whether Annexure-II, in so far as it pertains to the First Petitioner, requires any modification. This exercise shall be 5 wpl2627.10.sxw ssm completed within a period of eight weeks from the date on which the First Petitioner produces all the necessary documentary material before the competent authority together with any representation that the First Petitioner may seek to submit. In the event that the First Petitioner is held entitled to the allotment of commercial accommodation, the Slum Rehabilitation Authority shall take necessary steps in accordance with law to implement Annexure-II as certified by the competent authority. The Petition is accordingly disposed of in the above terms. There shall be no order as to costs. 5 A copy of this order shall be forwarded to the Deputy Collector (Encroachment and Removal) by the Petitioners together with the representation. 6 No relief has been sought in so far as the Second Petitioner is concerned at the hearing of thes proceedings, since the Court has been informed that an Appeal filed by the Second Petitioner is pending before the Deputy Collector (Encroachment and Removal). (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)