1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2089 OF 2011 Anant Bhikusheth Palkar & Ors. .. Petitioners V/s State of Maharashtra & Ors. .. Respondents Mr.P.G.Sawant and Mr.Vasant G.Salvi for the petitioners. Ms.Aparna Vhatkar, AGP for Respondent No.1. Mr.G.D.Utangale i/by Utangale & Co.for Resp.Nos.2, 4, 6 & 7. Mr.S.G.Surana for Respondent No.8 & 9. CORAM: SMT.RANJANA DESAI & R.G.KETKAR, JJ. DATE : 17/03/2011 P.C.: (Per R.G.KETKAR, J.) 1. Heard Mr.P.G.Sawant, learned counsel for the petitioners. Ms.Aparna Vhatkar, AGP for Respondent No.1, Mr.G.D.Utangale, learned counsel .for Respondent Nos.2, 4, 6 & 7 and Mr.S.G.Surana, learned counsel for Respondent Nos.8 & 9. 2. The petitioners have challenged the order dated 05.02.2011 passed by the High Powered Committee (for short HPC). This petition is instituted by 45 occupants of the slum, which was declared as such on 30.08.1977 under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and 2 Redevelopment) Act, 1971 (for short ‘the Act). The land is of private ownership. On 15.01.2007 the Additional Collector (Enc/Rem) and the Competent Authority issued Annexure-II certifying that out of 86 eligible slum dwellers 69 eligible slum dwellers gave consent for the proposed development. On 13.05.2009, a Letter of Intent (for short ‘LOI’) was issued by the Slum Rehabilitation Authority (for short ‘SRA’). Clause 22 thereof provided that the Developer has to submit the agreement of atleast 70% of eligible slum dwellers before requesting for the commencement certificate. On 01.07.2009 the building plans were approved by the SRA. 3. The petitioners moved the HPC for cancelling the Slum Rehabilitation Scheme (for short ‘SRS’) sanctioned by the SRA. On 16.01.2010 the HPC disposed of the said application on the ground that before issuance of commencement certificate the developer has to submit individual consent of 70% eligible slum dwellers to the SRA and therefore the HPC was of the view that the petitioners herein can take inspection of the said consents after their submission to SRA and further they would be at liberty to approach the HPC if they find any irregularities. The application 3 was dismissed as premature. 4. On 06.02.2010, the Deputy Collector (Enc/Rem) and the Competent Authority passed an order under Sections 33 and 38 of the Act, thereby directing the petitioners to accept alternate transit arrangement made by the Developer and give vacant possession of the land under their structures to the Developer. This order was challenged by the petitioners by filing appeal under Section 35 of the Act before the Administrator and the Divisional Commissioner, Konkan Division, Konkan. By order dated 30.06.2010 appeal was dismissed and the order dated 06.02.2010 was upheld. The petitioners were given 7 days time to vacate their structures by accepting the rent offered by the Developer. 5. The petitioners preferred two Writ Petitions before this Court, viz.Writ Petition No.1333 of 2010 and Writ Petition (L) No.1615 of 2010. By its separate order dated 08.12.2010 in Writ Petition No.1333 of 2010 this Court directed the SRA to verify whether the scheme propounded by the Developer has the consent of 70% of the eligible slum dwellers. The Developer and the Society were directed to furnish individual agreements to the SRA and the SRA was to decide the same by 31.12.2010. The petitioners were 4 given liberty to move the HPC, if they were aggrieved by the decision of the SRA. This Court further directed that upon determination of the SRA, the commencement certificate shall be deferred for two weeks to enable the petitioners to move the HPC. In a separate order that was passed in Writ Petition (L) No.1615 of 2010 challenging the eviction order passed under Sections 33 and 38 of the Act, this Court held that in the event the SRA comes to the conclusion that the scheme has consent of 70% of the slum dwellers, the order of eviction would have to be necessarily enforced. On the other hand, if the SRA were to find that 70% of the occupants have not supported the scheme, the scheme would not be implemented. 6. The petitioners thereafter moved this Court by filing the Writ Petition (L) No.112 of 2011 raising grievance that they they have not received any communication as to whether the SRA has taken any decision in pursuance of the directions issued by this Court on 08.12.2010. During the course of hearing, learned counsel appearing on behalf of the Society and the Developer placed on record a letter dated 14.12.2010 addressed by the Developer to the SRA by which the copies of the individual agreements were 5 forwarded. A report was submitted by the Head Clerk in the SRA that the 77 photo-copies of the agreements which were duly notorised were submitted by the Developer. On 30.12.2010, the Executive Engineer-III recorded that the Head Clerk of the SRA verified the said 77 individual agreements and after due verification it was found that the said individual agreements are 86.05% of the eligible slum dwellers which is more than the required of atleast 70% eligible slum dwellers. In view of this the Court relegated the petitioners to approach the HPC. Pursuant to this, the petitioners preferred Application No.30 of 2011as also Appeal No.4 of 2011. The said application as also the appeal have been dismissed by the HPC by the impugned order passed on 05.02.2011. 7. In support of this petition Mr.Sawant contended that the Respondent No.3 Developer has not actually obtained individual consent of 70% eligible slum dwellers and consequently, the authorities below committed serious error. He submitted that since the Developer has not obtained consent of 70% eligible slum dwellers, the SRS cannot be implemented. 8. On the other hand Mr.Surana supported the impugned orders. In 6 addition, he submitted that the petitioners have approached the Bombay City Civil Court Bombay by filing the Suit No.244 of 2011 challenging the agreements. 9. We have considered the rival submissions made by the learned counsel appearing for the parties. From the material on record, it is evident that on 14.12.2010 the Respondent No.8 Developer submitted 77 individual agreements of eligible slum dwellers out of 86 slum dwellers to the SRA. These individual agreements were verified by the Head Clerk of SRA and to that effect report was made on 27.12.2010. On 30.12.2010 the Executive Engineer-III recorded that the Head Clerk of the SRA verified said individual agreements and after due verification it was found that the said individual agreements are 86.06% of eligible slum dwellers. In Paragraph No.11 of the impugned order the HPC came to the conclusion that there are total 109 slum dwellers and out of that 86 slum dwellers were held eligible in Annexure II. Out of these 86 eligible slum dwellers, 77 eligible dwellers gave consent and consequently, the SRS is supported by 86%. 10.While disposing of the application on 16.01.2011 the HPC had earlier directed the petitioners to take inspection of said consent 7 after their submission to the SRA. The petitioners have not brought on record any material to indicate that they took inspection of these agreements, or that those agreements are not genuine. The authorities attached to the SRA have consistently held that the scheme is supported by 86% eligible slum dwellers. We therefore do not find any merit in the submissions advanced on behalf of the petitioners. Since the petitioners have already approached the City Civil Court by filing the suit challenging the agreements, we express no opinion on this aspect. 11.In the result, we find no substance in this petition and the same is dismissed. (R.G.KETKAR, J.) (SMT.RANJANA DESAI, J.)