1 (WP 8881 of 2010 with WP 8882 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8881 OF 2010 Sahu Devilal Shankarlal ....Petitioner vs. The Administrator and Divisional Commissioner and Ors. ....Respondents WITH WRIT PETITION NO.8882 OF 2010 Shivshankar Bux Ram Manohar Singh ....Petitioner vs. The Administrator and Divisional Commissioner and Ors. ....Respondents ----- Mr.Y.E. Mooman i/b. Ms.M.B. Gawde for Petitioner Mr. J.G. Redidd for Respondent Nos.3 and 4 Mr.S.G. Surana for Respondent No.5 Mr.Chirag Balsera a/w Altaf Diemandwala with Sheetal Angne for Divya Shah Associates for Respondent No.6 Mr.J.P. Xavier for Respondent No.2 ----- CORAM: V.M. KANADE J. DATED: 14TH JANUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of 2 (WP 8881 of 2010 with WP 8882 of 2010) the Petitioners and the learned Counsel for the Respondents at length. 2. By these two petitions, the Petitioners are challenging an order passed by the Administrator and Divisional Commissioner, Kokan Division, Mumbai dated 13.10.2010 who was pleased to dismiss the appeal filed by the Petitioners herein. 3. Brief facts are as under. The Petitioners are occupants of premises, situated at Gopal Nagar, Pandurang Budhkar Marg, Worli, Mumbai – 400 036. The entire area has been declared as slum and the Slum Rehabilitation Scheme has been approved. The LOI has been issued by the Respondent No.3 in favour of Respondent Nos. 5 and 6. The show cause notice dated 9th July, 2010 was issued under section 33 of the Maharashtra Slum Area (IC & R) Act, 1971 (hereinafter referred to as “the said Act”). The reply 3 (WP 8881 of 2010 with WP 8882 of 2010) was given and the matter was heard finally and by order dated 21st September, 2009, the Respondent No.2 directed the Petitioners to accept the money as offered by the Respondent No.6 and hand over the possession within 48 hours. An appeal against this order was preferred by the Petitioners which appeal was also dismissed. Being aggrieved by the aforesaid two orders, the present two petitions have been filed. 4. The learned counsel appearing on behalf of the Petitioners has invited my attention to the conditions of LOI and the impugned order and submitted that the Petitioners are challenging the said order, essentially on the two grounds. It was firstly submitted that it was not necessary for the Petitioners to vacate the site. In support of the said submission, he invited my attention to the various conditions in the LOI and also submitted that simultaneously in a phase manner the construction 4 (WP 8881 of 2010 with WP 8882 of 2010) could be carried out by the Respondents. The learned counsel for the Petitioners also invited my attention to the map in support of the said submission. Reliance was also placed on the clauses 18 and 42 in support of the submission that demolition was required to be done in a phase manner. 5. On the other hand, the learned counsel for the Respondents submitted that out of a total area of 25547.27 sq.mtrs., the developer was required an area of 12501.87sq.mtrs was unbuilt area since there was reservation on the part of the area and road has to be constructed by the developer, and to be given free of cost to the BMC. It was submitted that the contention of the Petitioners that the transit accommodation could be constructed on the salable area also was not acceptable. It was submitted that out of 2000 occupant of the said slum, 1638 occupants have already been shifted to the 5 (WP 8881 of 2010 with WP 8882 of 2010) alternate accommodation. It was also submitted that three sites were earmarked for alternate accommodation to the Petitioners which was also an area of 3 kilometers from this site. 6. The learned counsel for the Petitioner invited my attention to the judgment of the Learned Single Judge in the case of Ravindra J. More vs. M/s. Spark Developers & Ors. dated 7th April,2008, in which the Learned Single Judge of this Court had held that compensation in lieu of transit accommodation could be granted and it was not mandatory to provide for transit accommodation at site. So far as the demolition which was required in the phase manner is concerned, the learned counsel for the petitioners submitted that perusal of the clause 18 and 42 clearly indicates that the construction of the rehabilitation structure was to be done in the phase manner. 6 (WP 8881 of 2010 with WP 8882 of 2010) 7. The learned counsel for the society submitted that the Society had passed a resolution on 18.3.2008 accepting Rs.7,000/- p.m. as compensation in lieu of transit camp. It was also submitted that 2/3rd of the entire occupants had already shifted to the alternate accommodation or had accepted money in lieu of the transit accommodation which was offered. It was submitted that therefore, no case was made out for interfering with the impugned order. 8. After having heard both the learned counsel at length, in my view, it will not be possible to interfere with the order passed by the Appellate Authority. In the present case, it is an admitted position that the society had passed its resolution accepting Rs.7,000/- p.m. as a compensation in lieu of the transit accommodation. The map annexed to the reply, filed by the Respondent No.6 clearly shows that a D.P. Road has to be constructed by 7 (WP 8881 of 2010 with WP 8882 of 2010) the developer and has to be handed over free of cost to the BMC. Both these structures are partly falling on the said D.P. Road. If the terms and conditions of the LOI are read as a whole, it does appear that construction of a transit accommodation at the site is not a mandatory condition for the purpose of a transit accommodation of the said development of the slum nor does it reflect that the construction of the buildings on the site can be done in the phased manner. Once a letter of intent is issued, it is for the developer to see how the said construction is to be carried out. If each and every slum dweller who is occupying the premises starts raising objections and starts contending that his possession should not be disturbed, then it will not be possible for the developer to continue with the construction. 9. Hence, submissions made by the learned counsel for the Petitioners cannot be accepted. However, in my 8 (WP 8881 of 2010 with WP 8882 of 2010) view, since in the reply filed by the Petitioners, they have mentioned that they would be required to spent about an amount of Rs.15,000/- to Rs.20,000/- p.m. for the purpose of obtaining alternate accommodation and since the Respondents’ counsel also have submitted that though the society has fixed Rs.7,000/- as compensation to be paid in lieu of transit accommodation, they stated in the affidavit in reply that they are ready to increase the amount of compensation. 10. In the present case, therefore, in my view, it would be appropriate if the Petitioners are offered compensation in lieu of transit accommodation at the rate of Rs.20,000/- p.m. for a period of 22 months. The Petitioners, however, shall file an undertaking in this Court that they will vacate the premises and hand over the quite and peaceful possession of the said premises within six weeks from today. If the said undertaking is 9 (WP 8881 of 2010 with WP 8882 of 2010) not filed, then in that event, the Respondents shall evict them forcibly after taking the help of police, if necessary and they shall also be liable under the provisions of the Contempt of Courts Act. Secondly, the Respondent Nos. 5 and 6 shall enter into an agreement with the Petitioners stating therein that they shall give permanent alternate accommodation in the buildings which are constructed on the site. They shall also indicate the period within which the said buildings will be constructed and the possession shall be handed over to them. The said agreement shall be registered with the Office of the Sub-Registrar of Assurances. The Agreement shall be in the usual format of the SRA. The said agreement shall be lodged for registration within four weeks from today. 11. With these directions, the writ petitions are disposed of and the orders passed by the Appellate Court are confirmed. If the project is not completed 10 (WP 8881 of 2010 with WP 8882 of 2010) within 22 months, a provision shall be made in the agreement regarding continuation of payment of money in lieu of transit accommodation as mentioned hereinabove. (V.M. KANADE J.)