1 WP9939/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9939 OF 2010 Shaikh Noor Mohd. Bashir and others .... Petitioners. v/s Deputy Collector (Enc/Rem) of Competent Authority, Andheri, Bandra (East) and others .... Respondents. Mr. Uday Warunjikar i/b Mr. Mahindra Deshmukh for the Petitioners. Mr. S.N. Bhosale, AGP for Respondent No.1. Mr. S.G. Surana for Respondent Nos. 2 and 3. CORAM: V. M. KANADE, J. DATE : 24th January, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioners and the learned Counsel appearing on behalf of Respondent Nos. 2 and 3. 2. Petitioners are aggrieved by the order passed by the Administrator and Divisional Commissioner, Konkan Division, Mumbai dated 8/12/2010, who was pleased to dismiss the appeal filed by the Petitioners under section 35 of the 2 WP9939/2010 Maharashtra Slum Areas (I.C. & R) Act, 1971 with a direction to the Petitioners to vacate their structures within seven days and further direction was given to the Society/Developer to provide rent for 30 months to the eligible appellants in the said appeal. 3. Brief facts are that, in this case, respondent No.3 – Society and respondent No.2 – Developer obtained approval from the Slum Redevelopment Authority. According to the Society and Developer, they had about 80% slum dwellers in their favour and after establishing this fact before the said authority, the scheme was approved. It is an admitted position that there are about 200 structures on the said land and the Society and the Developer have entered into agreements with 80% slum dwellers. Some of the Petitioners also have entered into such agreements with the Society and Developer. Developer has agreed to pay Rs 6,000/- per month for residential premises and Rs 8,000/- per month for commercial premises. Petitioners herein, did not thereafter cooperate with the Society and the Developer and preferred an appeal before the Maharashtra Slum Area Authority. Their contention, however, was not accepted by the authority and, therefore, they have preferred this Writ Petition. 4. Mr. Warunjikar, the learned Counsel appearing on behalf of the Petitioners invited my attention to clauses 8 and 9 of the LOI and submitted that clauses 8 and 9 of the 3 WP9939/2010 LOI specifically lay down that the Developer is under an obligation to provide transit camp accommodation to the slum dwellers and it is submitted that that the Developer and the Society had failed in its legal obligation to provide transit camp accommodation. He also invited my attention to the map of the said area and pointed out that it was easily possible for the developer to permit the Petitioners to stay at the site and complete the construction work. He submitted that, practically, four storeys have been completed and within a couple of months the entire building would be over and it would not be necessary to evict the petitioners from the site. He also submitted that the contention of the Society and Developer that they had majority of the slum dwellers with them is incorrect and that the appeal has been filed by these Petitioners before the High Power Committee on 13/1/2011 and the said appeal is pending. It is, therefore, submitted that unless transit camp accommodation is constructed and Petitioners are shifted there, Petitioners could not be evicted from the site and alternatively it is submitted that it was possible for the Developer to construct the building without evicting the Petitioners from the site. It is further submitted that so far as the amount which was offered by the Developer is concerned, the said amount was inadequate and in that price, it is not possible now for the Petitioners to obtain alternative accommodation and they would have to search alternative accommodation at the place out side Mumbai. It is submitted that most of the children of the Petitioners are schooling going children and 4 WP9939/2010 they would have to search for another school. 5. On the other hand, Mr. Surana the learned Counsel appearing on behalf of respondent Nos. 2 and 3 invited my attention to the order passed by Additional Collector. He submitted that in the said order it is clearly mentioned that out of 149 eligible slum dwellers, 121 occupants had given their consent in writing and, therefore, 81.20% slum dwellers had given their consent to the said scheme. He submitted that number of Petitioners who have filed Petition in this Court also had entered into agreements with the Developer and had given their consent. It is then submitted that it is not possible to develop the property without shifting the Petitioners from the site. He submitted that since the building which was to be redeveloped was a composite building, it is not possible to retain the slum dwellers at the site. It is then submitted that construction of transit accommodation was not a mandatory condition either under the Regulations or under the LOI. It is then submitted that Society has passed a unanimous resolution accepting Rs 6000/- per month for residential premises and Rs 8000/- per month for commercial premises as compensation in lieu of transit accommodation and 133 occupants have accepted the said compensation and vacated their premises. The learned Counsel also relied upon the order of this Court (Coram: S.J. Vazifdar, J.) in Ravindra J. More v/s. M/s Spark Developers1. He submitted that, in the said order, the 1 Order dated 7/4/2008 in AO No.244/2008 in NM No.270/2008 in LC Suit No.409 of 2008. 5 WP9939/2010 learned Judge had observed that though LOI refers to temporary accommodation since the unanimous resolution was passed by the Society to accept the cash in lieu of transit accommodation, it is not possible to provide alternative accommodation at the premises. 6. After having heard the learned Counsel for the Petitioners and the learned Counsel appearing on behalf of respondent Nos. 2 and 3, in my view, prima facie, more than 50% of the slum dwellers have accepted cash in lieu of the alternative accommodation and have vacated their premises. Most of the Petitioners also entered into agreement with the Developer, though, now, they felt that they would be in a position to persuade the builder not to evict them from the site and to continue with the construction/redevelopment of the building without shifting them. In my view, it is for the Developer and his team of architect and contractors to decide whether it is possible to complete the construction work without shifting the slum dwellers. It would not be possible for this court to go into that aspect and to persuade the Developer to permit the Petitioners to stay at that site. Ultimately, after the construction and redevelopment of the building, Petitioners also will get permanent alternative accommodation free of cost alongwith all amenities. In my view, therefore, though there is a condition in the LOI that Petitioners have to be provided with alternative accommodation, since the Society has unanimously passed the resolution and accepted the 6 WP9939/2010 cash compensation, it would not be proper to stop the construction work which has already commenced and the Developer has constructed almost four storeys. At the highest, Petitioners may persuade the Developer to increase the amount of compensation which he has offered. Hence, it is not possible to interfere with the order passed by the appellate authority. 7. Writ Petition is dismissed. 8. It is clarified that the Petitioners may pursue other remedies which are available under the law. Request is made by the Counsel for the Petitioners that interim relief may be continued for some time. Counsel for Respondent Nos. 2 and 3 submits that payment of cash compensation is a condition precedent before demolition of the premises. Hence, at this stage, it would not be possible to grant any further time. Request for continuation of the interim relief for some time is, therefore, rejected. (V.M. KANADE, J.) 7 WP9939/2010