1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 280 OF 2010 1. Mr. Baba Hadsuv & anr. ... Petitioners vs. 1. Slum Rehabilitation Authority & 6 ors. ... Respondents Mr. S.G. Surana for the petitioners. Mr. D.D. Madon, senior counsel, Mr. T. Jariwala, Ms. Jyoti Ghag i/b Thakore Jariwala & Associates for the respondent No.6. Mr. D.A. Nalawade, GP, for the respondent Nos.1 to 4 & 7. CORAM : J. N. PATEL & A.P. BHANGALE, JJ. DATE : 06TH APRIL, 2010 P.C. : Heard learned counsel. 2. The petitioners have approached this court impugning the decision of the High Power Committee on the Application No.286 of 2008 which came to be rejected by the High Power Committee as not maintainable, by its order dated 18th September, 2009. It is a case of 2 the petitioners that the petitioners propose to redevelop the slum located on the land bearing CTS No.6/1 (Part) of village Mandala, Yashwantrao Chavan Nagar, Ekta Nagar, Veer Jijamata Bhosale Marg, Mankhurd, Mumbai - 400043. The petitioner No.1 is the Chief Promoter of the proposed slum dwellers society which, according to the petitioners, consists of 1235 slum dwellers out of which the petitioners have the consent of more than 864 slum dwellers which, according to the petitioners, constitutes more than 70% of the slum dwellers in the area. The petitioners made a proposal to the SRA which was forwarded to the Additional Collector (Encroachments/Removal) & Competent Authority for verification, approval and certification. It is a case of the petitioners that the respondents, without considering the case of the petitioners, have approved the proposal of one Yashwantrao Nagar Cooperative Housing Society (Proposed), who are respondent No.5 and who have appointed respondent No.6 as their developer. It is contended by the petitioners that the High Power Committee, rather than examining the case of the petitioners-society, summarily rejected the same mainly on the ground that the City Civil Court, Mumbai has already adjudicated this matter in detail and passed an order on 11th December, 2008 in 3 Suit No.4003 of 2007 filed by the petitioners and that the said order was challenged before the High Court and that this fact was not brought to the notice of the High Power Committee on 13th August, 2009, which lead to the Committee issuing a direction to the SRA not to grant any further approvals till the application is heard by the Committee. The High Power Committee, in the impugned order, not only negated the stay granted, but even dismissed the application as not maintainable which was filed challenging the order passed by the SRA in the matter. 3. On the other hand, it is the contention of the respondent No.6 that the petitioner-society does not qualify for carrying out redevelopment project for the reason that it does not have the required number of slum dwellers as their members. It is contended that in all there are 1400 slum dwellers on the portion of the land which is proposed to be redeveloped by the petitioner-society, whereas the petitioner-society has projected that it has 1235 slum dwellers and claimed that 864 members of the petitioner-society constitute more than 70% of the slum dwellers and, therefore, they are entitled to carry on with the redevelopment of the portion of the land. Factually 4 speaking, the petitioners have only 65% as their members. 4. Considering the facts and circumstances of the case, it is not disputed that the petitioners were the first to move the respondent- SRA with the proposal to redevelop the portion of the land, but their application came to be rejected by the respondent-SRA on the ground that they do not have the mandate of more than 70% of the slum dwellers in the area. 5. We are not concerned as to the rival contentions and claims made by the parties as regards the number of slum dwellers on the portion of land and their respective members. What we find from the impugned order is that the High Power Committee, rather than scrutinizing the claim of the petitioners on merits, was influenced by the fact that in the suit filed by the petitioners in the City Civil Court, Mumbai being Suit No.4003 of 2007, the court had passed an order on 11th December, 2008 wherein the interim relief sought by the petitioners came to be rejected. It has been brought to our notice by the learned counsel for the petitioners that the petitioners have withdrawn the Suit from the City Civil Court, Mumbai with liberty to 5 file a fresh Suit and have placed on record, the order passed by the court in the Suit on 16th August, 2008, which reads as under : “Sunita Khamkar for plaintiff submitted an application for withdrawing the suit, permission granted to withdraw the suit. Suit be disposed of as withdrawn with permission to file fresh suit if necessary. Suit be registered for statistical purpose.” 6. Therefore, on 18th September, 2009, when the respondent-High Power Committee took up the Application No.286 of 2008 filed by the petitioners for adjudication, it did not take into consideration that the petitioners had withdrawn the Suit from the City Civil Court, Mumbai and, therefore, the said interim order rejecting the prayer of the petitioners for granting interim relief cannot be considered to be an order which has been passed on merits. The respondent-High Power Committee ought to have examined the case of the petitioners, without being influenced by the fact that the petitioners have, on earlier occasion, approached the City Civil Court, Mumbai in the matter as the said Suit has not been finally decided and came to be withdrawn. Therefore, any order passed in an interim application 6 made in such a Suit would not operate as res judicata. 7. We, therefore, quash and set aside the impugned order and direct the High Power Committee to decide the application of the petitioners on merits, after giving sufficient opportunities to the parties of hearing in the matter, It is made clear that in case any party does not cooperate with the High Power Committee and seeks unnecessary adjournments, it will be open to the High Power Committee to proceed ex-parte against such a party. It is expected that the High Power Committee will take a final decision in the matter within a period of 12 weeks from the date of communication of this order. Petitioners to communicate this order to the High Power Committee. 8. The Petition stands disposed of accordingly. ( J. N. PATEL, J.) ( A.P. BHANGALE, J.)