1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5552 OF 2010 WITH CIVIL APPLICATION NO.2482 OF 2010 Janardhan Radhasharan Gupta ..Petitioner Vs. Administrator and Divisional Commissioner Konkan Division and others ..Respondents ......... Ms.Anjali Awasthi i/b.Mr.R.B.Jagbhawe, for petitioner. Mr.Jokhim Reis with Mr.Gautam Bhagwat i/b.M/s.Divekar & Co., for respondent no.5. Mr.R.M.Patne, AGP for respondent no.6. ......... CORAM: A.S.OKA, J. DATE : 15th OCTOBER, 2010. P.C. : Submissions made by learned counsel for the parties have been heard. Challenge in this petition is to the order of the Appellate Authority in the Appeal under Section 35 of the Maharashtra Slum Areas (I.C. & R.) Act, 1971. By the said order of the Appellate Authority, the order of eviction passed under Section 33 and 38 of the said Act has been confirmed. 2] It will be necessary to make reference to the facts of the case. The proceedings for eviction were initiated at the instance of the developer 2 appointed to execute a Slum Rehabilitation Scheme. The contention before the competent authority was that the scheme of rehabilitation has been approved and Annexure II has been notified on 6 th August, 2007. It was contended that a Letter of Intent was issued on 17 th November, 2007. To enable the developer to start the work of redevelopment, notices were issued and transit accommodations were offered to the eligible persons, in the alternative, amount equivalent to rent was offered in lieu of transit accommodation. Objection was raised to the eviction proceedings. The competent authority passed order of eviction which has been confirmed by the impugned order by the Appellate Authority. 3] Learned counsel appearing for the petitioner submits that the Appeal made by the petitioner before the third respondent – Slum Rehabilitation Authority on the issue of eligibility is pending. Learned counsel for the petitioner pointed out that though the area of premises presently held by the petitioner is approximately 530 sq. feet, the entire carpet area of the said premises is not considered and an area of 17.00 sq. meters has been recorded in the Annexure II as against the actual area of 49.239 sq. meters. Learned counsel for the petitioner pointed out that what is offered by the developer as a transit accommodation is only having an area 150 sq. ft. Learned counsel for the petitioner submits that there is no power vested in the authority to pass order of eviction and demolition when the proceeding of Appeal is still pending adjudication before the S.R.A. She further submitted that in view of the sub-regulation 1.16 of Appendix IV, the competent authority had no power to pass an order of eviction. 3 4] Learned counsel appearing for the SRA states that the pending proceeding regarding the claim of eligibility can be decided expeditiously. Learned counsel for the fifth respondent invited attention of this Court to the affidavit dated 8 th October, 2010. In the said affidavit, it is stated that as the appeal has been filed by the petitioner to the Slum Rehabilitation Authority, the fifth respondent is willing to provide a temporary transit accommodation to the petitioner, pending decision on the eligibility and if the petitioner is declared eligible, till the allotment of rehabilitation tenement, transit accommodation will be provided. It is stated that the temporary transit accommodation having area of 150 sq. feet (carpet area) will be provided, which has been more particularly described in paragraph 6 of the affidavit, provided that the petitioner vacates his structure on or before 20 th October, 2010. In paragraph 7 of the affidavit, it is stated that the fifth respondent is ready and willing to pay Rs.9,000/- per month if the petitioner is willing to make his own arrangement for transit accommodation. 5] Learned counsel for the petitioner pointed out that apart from the fact that the petitioner cannot be evicted, it is impossible for the petitioner to carry on his business in a small area of 150 sq. feet as against the area held by him admeasuring 530 sq. feet. 6] I have given careful consideration to the submissions. In the affidavit of the fifth respondent, it is pointed out that out of the total 311 structures in the said slum colony, except 7 structures, all the remaining structures have been vacated. It is pointed that the occupants of the said structures have either shifted to temporary transit accommodation offered by the fifth 4 respondent or have accepted the compensation for making their own arrangements for transit accommodation. It is not in dispute that the petitioner is held as ineligible and an appeal before the SRA is pending. If the petitioner succeeds in the appeal, it is obvious that the petitioner will be entitled to a transit accommodation in accordance with law as well as a permanent accommodation in accordance with law. Though, as of today, the petitioner is not eligible, the fifth respondent has offered a temporary transit accommodation admeasuring 150 sq. feet carpet area to the petitioner, which the petitioner has declined to accept. If the petitioner succeeds in proving eligibility, the petitioner can always insist for allotment of a regular transit accommodation. Even though the petitioner is held ineligible, the fifth respondent has offered a temporary transit accommodation. As stated earlier, substantial numbers of the structures have been already vacated and only because appeal preferred by the petitioner is pending before SRA, the entire process of redevelopment cannot be stopped. It must be stated that Annexure II was published on 6 th August, 2007 and the appeal against the said order has been in filed in the pendency of this petition. It is not possible to find fault with the impugned order of eviction. 7] In view of the aforesaid factual situation, this is not a case where the writ jurisdiction can be invoked. To take care of the dispute regarding the area, the third respondent will have to measure the structure presently held by the petitioner after notice to the concerned parties. Appeal pending before the third respondent will have to be expedited. 5 8] Hence, I pass the following order:- i. Writ petition is rejected. ii. Statements made by the fifth respondent in the affidavit dated 8 th October, 2010 are accepted. iii. Appeal preferred by the petitioner before SRA shall be decided by the fourth respondent within four weeks from today. iv. Before carrying out demolition of the structure held by the petitioner, the concerned Officer of the third respondent shall carry out measurement of the structure held by the petitioner after notice to the concerned parties. v. There will be no order as to the costs. 9] On the prayer made by learned counsel for the petitioner, the ad- interim order granted on 29 th July, 2010 shall continue to operate for a period of two weeks from today. 10] Civil Application No.2482 of 2010 does not survive. The same stands rejected. [A.S.OKA, J.]