1 WP-L-1005-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION [L] NO.1005 OF 2011 Vasant Ramchandra Jadhav and ors. ..Petitioners Vs The Slum Rehabilitation Authority and ors. ..Respondents -- Mr.S.B.Deshmukh i/b.Mr.P.S.Sethi, for petitioners. Mr.R.J.Mane, AGP for respondent nos.2, 7 and 8. Mr.Rishi Mishra, for respondent no.3. Ms.M.S.Kumbhar, for respondent no.4. Ms.T.H.Puranik, for respondent no.5. -- CORAM : R.G.KETKAR, J. (Vacation Court) DATE : 12 th MAY, 2011 P.C: The petitioners have challenged (i) Letter of Intent ( for short “LOI”) dated 12 th July, 2010, (ii) Intimation of Approval (for short “IOA”) dated 16 th October, 2010 and (iii) Commencement Certificate (for short “CC”) dated 20 th April, 2010. The petitioners have also prayed for setting aside the directions issued by the Slum Rehabilitation Authority (for short “SRA”) to the Additional Collector (Encroachment/Removal) as mentioned in the 2 WP-L-1005-11.odt order dated 24 th November, 2010. Apart from that, petitioners have also challenged order dated 24 th November, 2010 passed by the Deputy Collector (Encroachment/Removal) and finally the order dated 19 th April, 2010 passed by the seventh respondent – Administrator and Divisional Commissioner. 2] Heard Mr.S.B.Deshmukh, learned counsel for the petitioners, Mr.R.J.Mane, learned AGP for respondent nos.2, 7 and 8, Mr.Rishi Mishra, learned counsel for respondent no.3, Ms.M.S.Kumbhar, learned counsel for respondent no.4, Ms.T.H.Puranik, learned counsel for respondent no.5. 3] Mr.Deshmukh, on instructions, seeks permission to delete the name of respondent no.4 from the petition. Permission to delete the name of petitioner no.4 from the petition is granted at the risk of petitioners. Mr.Deshmukh, on instructions, further undertakes to withdraw the suit bearing No.1047 of 2011 filed by the petitioners in the City Civil Court, Mumbai on or before 15 th June, 2011. The undertaking is accepted. 4] Mr.Deshmukh contended that basically as per the provisions of Regulation 33(10) of the Development Control Regulations for Greater Mumbai, 1941 (D.C.R.) read with Appendix IV, the developer has no option but to provide transit camp. He submits that even the LOI dated 12 th July, 2010 and IOA dated 16 th October, 2010 impose this condition. It is 3 WP-L-1005-11.odt submitted that it is not open to the developer to pay compensation in lieu of the transit accommodation. In so far as the resolution passed by respondent no.3 Society dated 6 th June, 2010 is concerned, he submitted that after passing of that resolution the LOI was issued on 12 th July, 2010 and IOA was issued on 16 th October, 2010. Neither the LOI nor IOA permits the developer to pay compensation in lieu of providing transit accommodation. The developer has not prayed for amendment of the relevant clauses in the LOI and IOA. He, therefore, submitted that the developer is estopped from relying upon the resolution passed by the Society. In support of this submission, he invited my attention to clause 7 of LOI dated 12 th July, 2010 as also clauses 13 and 19 of IOA. He also invited my attention to Appendix IV under DCR 33(10) to contend that there is no provision to pay the compensation in lieu of providing transit accommodation. In support of this submission, he relied upon the Division Bench judgment of this Court in the case of Shailesh Gandhi Vs. State of Maharashtra, 2010(2) Bom.C.R.408. 5] On the other hand, learned counsel for respondent no.4 – Developer has submitted that the petitioners instituted Suit No.1047 of 2011 in the City Civil Court, Mumbai wherein identical prayers are made. The petitioners took out Draft Notice of Motion praying for injunction restraining defendant no.1 S.R.A. and the Deputy Collector from evicting the petitioners and demolishing the suit premises of the petitioners. 4 WP-L-1005-11.odt 6] The learned Judge of the City Civil Court refused the ad-interim relief on 6 th May, 2011. While refusing the ad-interim relief, learned Judge of the City Civil Court has considered the merits of the case and declined to grant ad-interim relief. She, therefore, submitted that the petitioners cannot simultaneously prosecute parallel remedies one in the City Civil Court and another by filing petition in this Court. She further submitted that the petitioners are signatories to the common consent letter given by eligible slum dwellers. She also invited my attention to common consent letter of the slum dwellers and, in particular, clause 5 thereof, wherein, all the slum dwellers agreed that they are ready to reside in transit accommodation or in lieu thereof they are ready to accept the rent. Not only that, the petitioner no.4 is signatory to the General Body Resolution dated 6 th June, 2010. In so far as resolution dated 6 th June, 2010 is concerned, compensation of Rs.7,000/- per month was fixed and it was further resolved that the developer will pay compensation of eleven months at a time. She, therefore, prayed that the petitioners are now precluded from raising these contentions as the petitioners have not challenged either the consent letter or the General Body Resolution dated 6 th June, 2010 or even the order dated 6 th May, 2011 passed by the City Civil Court. 7] The learned counsel for respondent no.4 further submitted that area of 580.52 Sq. meters only is available for redevelopment and it would not be possible for the developer to provide transit accommodation. She submitted that in view of the common consent letter and General Body Resolution of the Society, respondent no.4 has paid the compensation as 5 WP-L-1005-11.odt agreed between the parties. She, therefore, submitted that no illegality is committed by respondent no.4 in not providing the transit accommodation. In support of this submission, she relied upon order dated 7 th April, 2008 passed by this Court (Coram:S.J.Vazifdar, J.) in Appeal From Order No.244 of 2008. She also submitted that there are total 56 slum dwellers out of which, 44 slum dwellers are eligible and 48 slum dwellers have vacated the structures. She, therefore, submitted that this is not a case where powers under Article 226 of the Constitution of India should be exercised by this Court. 8] The learned counsel for respondent no.4 – Developer made a statement that the respondent no.4 has dispatched cheques covering eleven months’ compensation qua petitioner nos.1 to 3 on 10 th May, 2011. In so far as petitioner no.4 is concerned, she has accepted the compensation for eleven months on 15 th July, 2010. The statements made by learned counsel for respondent no.4 are recorded. 9] I have considered rival submissions given by learned counsel for the parties. After perusing the plaint, the reliefs claimed in the suit instituted by the petitioners and in the present petition, are identical. It is also not in dispute that petitioners took out draft Notice of Motion in the suit praying for injunction restraining the SRA and the Deputy Collector from vacating the petitioners and demolishing the structures. Learned Judge of the City Civil Court, in paragraphs 7 and 8 of the order dated 6 th May, 2011 recorded that 6 WP-L-1005-11.odt the petitioners are also signatories to the common consent letter. They are also member of the third respondent – Society. They cannot challenge the LOI and IOA without challenging the General Body Resolution of the Society. He has also considered the size of the plot for development and observed that for want of space, transit camp cannot cannot be constructed on the plot for the slum dwellers. The learned Judge also considered the order dated 7 th April, 2008 passed by this Court in Appeal From Order No.244 of 2008 and declined to grant ad-interim relief. In paragraph 9 of that order, the learned Judge also recorded that on perusal of the papers, it can be gathered that plaintiffs’ claim is not maintainable for absence of jurisdiction. From perusal of the order passed by the City Civil Court it is evident that the learned Judge did not decline to grant the ad- interim relief only on the ground of absence of jurisdiction but the learned Judge also declined to grant the ad-interim relief after considering the merits of the case. 10] Even otherwise, I find that the petitioners are signatories to the common consent letter. Clause 5 of the consent letter also provides for payment of compensation in lieu of transit accommodation. One of the petitioners, namely petitioner no.4 has participated in the General Body Meeting wherein, in lieu of transit accommodation, compensation was agreed between the parties. It is not in dispute that the petitioners are members of the third respondent – Society. It is also not in dispute that they have not challenged the validity of the General Body Meeting and its resolution. I, therefore, do not find that the petitioners have made out a 7 WP-L-1005-11.odt case for entertaining the petition. The reliance placed by learned counsel for the petitioners on clause 7 of the LOI and clauses 13 and 19 of the IOA as also Appendix IV under D.C.R. 33(10) is not well founded. This is to be appreciated on the backdrop of the fact that the petitioner no.5 is not found eligible. The learned counsel for the petitioners has prayed for deleting the petitioner no.4 from this petition. As noted earlier, there are total 56 slum dwellers out of which, 44 are found eligible and 48 have vacated their structures. Only petitioner nos.1 to 3 herein are opposing the redevelopment project. The reliance placed by learned counsel for the petitioners on the judgment of Division Bench of this Court in the case of Shailesh (supra) and in particular, paragraph 16 thereof is also not well founded. In that case, availability of option to the developer either to provide transit accommodation or to pay compensation in lieu thereof was not raised and consequently, the said issue was not decided. In view thereof, in my opinion, this is not a case for exercising powers under Article 226 of the Constitution of India by this Court when the petitioners are the signatories to the common consent letter as also they have not challenged the resolution of the General Body Meeting and the order dated 6 th May, 2011 passed by the City Civil Court, Mumbai. 11] In the result, Writ Petition fails and the same is dismissed. [R.G.KETKAR, J.]