: 1 : WP-2532-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2532 OF 2010 Ramphal Hukumchand Kandera ..Petitioner v/s. The State of Maharashtra & Ors. .. Respondents ......... Mr. S.G. Kudle for the petitioner Mrs. Uma Palsule-Desai for respondent no.3 ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 20th JUNE, 2011. P.C. : 1. Heard Counsel for the parties. The petitioner has challenged the communication issued by the Additional Collector (Removal & Encroachment) and competent Officer, Andheri, dated 1st December 2009. The said communication has been sent by the competent Authority to the Assistant Commissioner K/W ward, Mumbai Municipal Corporation in response to the letter received from advocate for the petitioner, in the context of the order passed by the Assistant Commissioner K/West ward dated 1st August, 2009. 2. It is not in dispute that the petitioner’s structure has been demolished. Counsel appearing for respondent nos. 1 and 3 has relied : 2 : WP-2532-10=.sxw on the reply affidavit filed by the Deputy Collector, competent Authority and on instructions states that demolition of structure belonging to the petitioner has been carried out by the Corporation. The Corporation considered the decision of the Assistant Commissioner of the Corporation in the proceedings held on 1st August, 2009. After hearing the parties, it is noted as follows. “Accordingly, the hearing was kept on 01.08.2009 when the following persons were present in the chamber of the undersigned. 1. Shri U.K. Sheth, Asstt. Engr. (Maintenance) 2. Shri M. V. Chougule, Advocate 3. Shri A.R. Shaikh, Advocate Both advocates appeared on behalf of Adv. S.G. Kudle, Advocate (on record) for petitioner. 4. Shri Ramphal Kendera (Petitioner) Hearing started at 11.15 a.m. At the outset, the advocates submitted written submission on behalf of the petitioner. The land (road) under reference falls in the Collector layout. The eligibility of the hutment dwellers existing on the road was decided by the office of Dy. Collector (Encroachment) at the time of S.R.A. Project and accordingly the Annexure – II was issued by his office. The eligible hutment dwellers were given alternate accommodation by the developer of S.R.A. and the road was handed over to MCGM free of encroachment. The : 3 : WP-2532-10=.sxw non-eligible hutment dwellers have again encroached on the same road and hence the notices under Maharashtra Slum Act were issued. Being a Govt. layout and as the earlier eligibility is decided by the office of Dy. Collector (Encroachment), the eligibility of the petitioner is to be decided by the office of Dy. Collector (Encroachment). These facts are explained to the advocates and they are advised to approach the office of Dy. Collector (Encroachment) for deciding the eligibility of the petitioner as per the order of the Hon. High Court”. (emphasis supplied) 3. In the context of the observation made by the Assistant Commissioner, the matter was considered by the Additional Collector who in turn in his impugned communication, has adverted to the fact that the location of the structure was under D.P. Road Scheme and S.R.A. scheme with regard to the said location was considered in August, 1998. In all, 77 structures were standing on the said location. The eligibility of the concerned occupants was considered by the Additional Collector and it was found that only 58 occupants were eligible to get alternative accommodation, as their structures were affected by the DP Road project. The names of 58 persons have already been enlisted in annexure ‘2’. : 4 : WP-2532-10=.sxw 4. In substance, the stand of the Deputy Collector is that the structure in question, which has since been demolished by the Corporation has come up on the location after the implementation of D.P. Road Scheme in August, 1998 and name of the petitioner does not find place in annexure 2 thereof. If this is the position, the question of petitioner getting any benefit, much less, relief of alternative accommodation in view of the affected structure, does not arise. The petitioner, however, relies on the decision of the division bench, unreported order passed in Writ Petition No.325 of 2001, in the case of Suresh Nagar SEA Co-op. Housing Society Ltd. & Ors. Vs. The State of Maharashtra & Ors. We fail to understand as to how this decision will come to the aid of the petitioner. In the present case, indisputably, the structure has come up after the D.P. Road Scheme was implemented. The observation made in the unreported order, on which strong reliance is placed, indicates that the petitioners, whose structures are not considered as affected structures and were held to be ineligible, were merely given opportunity to submit a separate S.R.A. scheme and same was to be considered by the appropriate Authority on its own merit in accordance with the provisions of law. 5. To get over this position, Counsel for the petitioner has invited our attention to the Government Order dated 14th November, 2005 bearing : 5 : WP-2532-10=.sxw No. Alternate 2005/Case No.107/removal of hutments-2. The said Government Order reads thus :- “GOVERNMENT ORDER In pursuance of the Government decision under Reference, the guidelines have been fixed for rehabilitation of the slum dwellers who are going to be affected under Mumbai Urban Transport Project and alongwith MUTP project, the MUIP project is also initiated and hence the policy decision taken in respect of rehabilitation of the slum dwellers who are going to be affected under Mumbai Urban Transport Project is also made applicable to the Mumbai Urban Infrastructural Project. The provisions of the above Government decision will be made applicable only to those hutments / slums which are in existence till 2000”. 6. The argument clearly overlooks that the Government Order is applicable only in respect of development of MUTP and MUIP projects. This Government Order, therefore, will be of no avail to the present petitioner. Indeed, the Government Order refers to the fact that the hutments / slums which are in existence till 2000, should be provided alternate accommodation. The occupants of hutments / slums, who are in existence till 2000, shall be rehabilitated because of being affected by the concerned projects. As aforesaid, since the subject structure was not standing on any of the stated projects, the question of granting : 6 : WP-2532-10=.sxw any benefit of this Government Order to the petitioner does not arise. 7 Accordingly, petition is dismissed. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)