1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL (L) NO.140/2009 IN WRIT PETITION NO.2616/2008 Shantabai @ Nilo Babu Rathod APPELLANT VS. The Commissioner & Ors. RESPONDENTS Mr.S.A.Sawant ,A.P.P. Ms.A.R.Joshi for B.M.C. CORAM: DR.D.Y.CHANDRACHUD,J. & MRS.MRIDULA BHATKAR,J. 21st March,2009. P.C. . Admit. Learned counsel for the respondents waives service. With the consent of learned counsel, taken up for hearing and final disposal. 1] The appeal arises out of an order passed by the learned Single Judge on 27/1/2009 dismissing the Petition that was instituted by the Appellant under Article 226 of the Constitution of India for impugning the correctness of an order passed by the Additional Municipal Commissioner on 25/6/2008. 2 2] The dispute falls within a narrow compass and relates to the eligibility of the appellant,who is a widow, for the allotment of alternate accommodation. Certain facts are not in dispute. The case has a chequered history and there was more than one round of proceedings before the Municipal Corporation. In an affidavit filed by the Municipal Corporation on 28/5/2007 in Writ Petition no.(L) 738/2007 instituted by the appellant, the Municipal Corporation was on record before this Court with a statement that the structure of the appellant was in existence in 1999 and was situated at Walmiki Nagar, Road no.5, Chembur. The structure was demolished on 19/3/1999 for the beautification of the road. The appellant moved an application on 27/5/1999 for the grant of alternate accommodation. It appears from the record that the appellant relied upon several documents in support of her contention that she was in occupation of the structure since 1980. The documents which were produced by the appellant include the electoral rolls for the years 1980,1988 and 1995 and her election identity card for the year 1987. The Senior Colony Officer of M-West Ward endorsed the proposal for providing alternate accommodation to the appellant recording that after the documents were scrutinised, it was found that all of them pertain prior to 1/1/1995 and that the name of the appellant was also found in the electoral roll as of that date. Hence the Senior Colony Officer stated that she was eligible to get alternate accommodation in lieu of the structure which had been demolished on 19/3/1999. 3] Despite this, the claim of the appellant was rejected. The orders of the Dy.Commissioner dated 11/12/2006 and 28/9/2007 were 3 challenged in Writ Petition no.884/2008 by the appellant. The learned Single Judge remanded the proceeding back to the Additional Commissioner with the following directions. '' If the Additional Commissioner holds that the petitioner is eligible,then,irrespective of whatever is the prevalent policy,the authorities shall treat the petitioner as project affected person and allot her permanent accommodation either in the same project or in the vicinity of the same and such allotment shall also be made within two weeks from the date of disposal of her representations favourably.' ' 4] On remand an order was passed by the Additional Municipal Commissioner rejecting the request of the appellant. The Additional Municipal Commissioner by his order dated 25/6/2008 observed as follows:- '' In the instant case,it appears that she has produced the documentary evidence such as the voters list of 1980, ration card,voters list of 1.1.1988, enumeration of hutments in 1990, Voters list of 1995, Identity card issued by Election Commission of India as on 1.1.1995 in support of her claim that she was residing at the place where she has claimed. There is no documentary evidence on record to show that,notice for removal of the hutments and her reply or other corroborating evidence to show that her hutment was demolished in the year 1999 except the panchanama conducted by local residents dated 26.06.2001.'' Thus, despite taking notice of the documents which have been produced by the appellant the Additional Municipal Commissioner was of the view that there was no documentary evidence to show that 4 the hutment of the petitioner was demolished in 1999. This statement in the order of the Additional Municipal Commissioner is obviously contrary to the record because, as already noted earlier in an affidavit filed before this Court on 28/5/2007 by the Municipal Corporation it was admitted that the structure of the appellant was demolished in 1999 for the purpose of a project relating to the road. For convenience of reference the statement in the earlier affidavit of the Municipal Corporation is extracted here-in-below. '' a) I say and submit that the Petitioner' s structure was in existence in the year 1999 and was situated at Valmiki Nagar, Chembur, M/West Ward. The said structure was demolished on 19/3/1999and the said area was affected for beautification of the road which was under development at that time.'' 5] In these circumstances the Additional Municipal Commissioner was not justified in arriving at the conclusion that there was nothing to indicate that the structure of the appellant had been demolished in the year 1990. 6] The Additional Municipal Commissioner has also relied on a Government Resolution dated 11/7/2001 from which he has proceeded to infer that unless the person concerned was shown in the voters list as on 1/1/1995, was residing in the same hutment as on that day and continued to reside until the date of the Government Resolution he would not be eligible. 5 7] We have perused the original text of the Government Resolution dated 11/7/2001 in Marathi during the course of the hearing . The said Government Resolution deals with the question of photo passes. The Government Resolution cannot,therefore,adversely affect the case of the petitioner. 8] Significantly in the impugned order of the Additional Municipal Commissioner the genuineness and authenticity of the documents which have been relied upon by the appellant has not been doubted. In that view of the matter the basis on which the claim of the petitioner has been rejected is erroneous. We are,therefore,of the view that the respondent has acted arbitrarily in declining to allow the claim of the appellant for grant of alternate accommodation in compliance with the previous order of this Court dated 30/4/2008. The respondent shall now proceed to grant suitable alternate accommodation to the petitioner subject to due compliance with all other requirements, in accordance with law. 9] The respondent shall do so within a period of 3 months from today. The Petition is accordingly disposed of. In the circumstances there shall be no order as to costs. DR.D.Y.CHANDRACHUD,J. 6 MRS.MRIDULA BHATKAR,J.