1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.100 OF 2009 M/s Anadrade Motors ..Appellant -versus The Additional Collector (Eng./Rem) & Competent Authority & ors .. Respondents Mr. C.S.Balsara, i/b M/s Legal Associates for the appellant Mr.N.V.Walavalkar, Sr.Advocate i/b Mr. M. M. Malvankar for respondent No.2. Mr G.D. Utangale, i/b Utangale and Co. for respondent Nos 4 and 5. Mr. R.A. Dada, Sr. Advocate with Mr. D.D.Madan, Sr.Advocate i/b Mr. S.A. Savant, for respondent No.7. Mr. C.U.Sing, Sr. Advocate with Mr. Rajiv Matkar for respondent Nos 6 and 9. Ms N.V. Masurkar with Mr N.R. Prajapati for respondent Nos l0. Ms Sharmila Deshmukh for respondent Nos l9. CORAM: J. N. PATEL & R. G. KETKAR JJ. DATED: 26th March,2009 P.C. 1. Heard. 2. This Letters Patent appeal (LPA) takes an exception to the judgment and order dated March 2 6, 2009, passed by the learned Single Judge in Writ Petition No.1708 of 2009. By the said judgment and order, the learned Single Judge dismissed the writ petition filed by appellant, challenging the judgment and order dated January l9, 2009, passed by the Administrator and the Divisional Commissioner, Konkan Division, Mumbai, in an appeal preferred under section 35 of the Maharashtra Slum Area (I.C & R) Act, 1971 (for “Act”) 3. The Administrator and the Divisional Commissioner, dismissed the appeal preferred by the appellant against the judgment and order dated 2lst August,2008, passed by the Assistant Commissioner, G(south) Municipal Corporation of Greater Mumbai. By communication dated April 3, 2007, the Deputy Collector Slum Rehabilitation Authority (SRA), Bandra, called upon the Assistant Commissioner being the competent authority to take action under section 33 and 38 of the Act, against the non participating tenants pertaining to Shri Siddhi Sagar Co.Op. Housing Society. Pursuant thereto, show cause notice was served on the appellant on September 26, 2007 under section 33 of the Act to show cause why the 3 appellant should not be evicted from the present structure which is affected by SRA Scheme and also 120 feet DP Road and proposed Best Bus stand. 4. On August 4,2006, Letter Of Intent was issued to the Project and inspite of the requests from the society and the developer, the appellant did not co-operate for joining the scheme and also did not agree to shift into the transit accommodation. Accordingly the appellant was held as non participant. The appellant gave reply to the show cause notice and was heard by Assistant Commissioner G Ward. The Assistant Commissioner considering the objections recorded that during visit of Deputy Municipal Commissioner Zone II on July 24, 2008, it was observed that the structure of the appellant is coming in the road alignment and construction of Best Bus Stand, foot path. Fixing of electrical poles is already held up due to existence of garage of the appellant. The Assistant Commissioner perused the orders of the City Civil Court, the commissioner of Konkan Division and also of this Court in respect of group of l7 Slum Dwellers who were opposing the scheme and who were non participant. He also 4 observed that the structure of the appellant is essentially required in public interest as it comes in the road alignment. He accordingly directed the appellant to vacate and shift to the transit shop to be provided by the developer/ society within the stipulated period of l4 days failing which action u/s 33 of the Act will be initiated. 5. This order was challenged before the Administrator and the Divisional Commissioner, Konkan Division, Mumbai by filing appeal under section 35 of the Act. That appeal was dismissed by order dated January, 19, 2009. The Administrator and the Divisional Commissioner, considered the communication dated November 7, 2007, addressed by Member Secretary, Maharashtra Coastal Central Zone Management Authority (for short M.C.C.Z.M.A), the compliance letter dated February 11, 2008, addressed by A.V. Vora Associates Pvt. Ltd to the Additional Director of Ministry of Environment and Forest, Government of India, (M.O.E.F.) as also clearance accorded by M. O. E. F. under communication dated March 4, 2008. The Administrator and the Divisional Commissioner, recorded that on the one hand, the 5 appellant is challenging the scheme on the basis of C. R. Z issue and on the other hand he seeks two commercial structures in addition to option for buying additional area. He also accepted the submission made on behalf of the respondent that removal of the structure of the appellant is an immediate necessity in the public interest for development of the proposed public utilities and due to the existence of the garage of the appellant, work of construction of foot path, fixing of pole etc is held up. On these and among other grounds, he dismissed the appeal preferred by the appellant. 6. Against this order, the appellant preferred writ petition and the said writ petition was dismissed by the learned Single Judge by the impugned order dated March, 6, 2009. It is also relevant note at this stage that the appellant preferred writ petition No.2918 of 2009 in this Hon'ble Court. For the purpose of determining the controversy in the present appeal, prayers in the petition are reproduced for ready reference. (a) that this Hon'ble Court be pleased to issue a writ of certiorari 6 or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, calling for the records and proceedings leading the passing of the order dated 19th January 2009 and after examining the legality and validity thereof, to quash and set aside the same. b) that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India against the Respondents. (i) ordering and directing the MOEF to withdraw and set aside the said permission dated 4th March,2008 in respect of plot No.911(p5), as the same falls within CRZ-I; (ii) ordering and directing the SRA to withdraw and set aside the aforesaid intimation of Approval dated 6th November 2006 (Exh.PP hereto) and Commencement Certificate 7 (CC) dated 15th April 2008 (Exh.QQ hereto) issued in respect of plot No.991 (pt). 7. On March 24, 2009 on the motion made by the learned counsel for the appellant he was allowed to withdraw the petition with liberty to approach the appropriate forum including with the prayer for extension of time. Shri.Chirag Balsara, learned counsel for the appellant made a grievance that the contention raised by the appellant as to whether plot bearing CS No.99l (part), falls in CRZ I or not is not considered by the learned Single Judge. The learned Single Judge has also not decided the issue regarding entitlement of the appellant to the benefits of circular No.70 dated December 30, 2004. On the other hand learned counsel for the respondents supported the order of the learned single Judge as also the authorities below. 8. It is to be noted that the petition before the learned Single Judge, squarely arose out of the show cause notice served on the appellant on September, 26, 2007, issued under section 33 of the Act and it was not open to the appellant to 8 agitate the issue whether the City survey No.991 falls in CRZ-I, or otherwise. In fact the appellant filed substantive writ petition No.2918 of 2008 in this Hon'ble Court and agitated that issue. However, the appellant withdrew the said writ petition on March 24, 2009 and intended to agitate that issue in the present LPA. This is wholly impermissible. Not only that the appellant also challenged the order dated January 19, 2009 passed by the Administrator and the Divisional Commissioner in the said writ petition as it would be evident from the perusal of the prayer clause (a) referred hereinabove. The learned Single Judge in para l0 of the judgment has considered that the validity of the report cannot be decided in the present petition under section 33 of the Act. Apart from that the learned Single Judge also recorded about the applicability of the circular dated No.70 dated December 30, 2004 can be gone into by the appropriate authority. On these two aspects, no adverse finding was recorded by the learned Single Judge, against the appellant. We find no infirmity in the impugned judgment and order. 9. The appeal fails and is accordingly dismissed. 9 10. The prayer of the appellant is to protect the petitioner's right so as to enable the petitioner to approach the Supreme Court. This is strongly contested by the respondents on the ground that the respondents under the rehabilitation scheme are willing to give accommodation to the appellant which he is entitled and that because of the pending litigation l70 tenants from the slum dwellers from last two years are either in transit camps or being paid compensation after their hutments have been demolished which is causing undue hardship in implementing the rehabilitation scheme. 11. In view of this fact situation, we are not inclined to grant any interim protection to the appellant whose right stands fully secured and has nothing to loose in the matter and it will not be equitable to do so. Therefore, the prayer of the appellant stands rejected. In view thereof, civil Application No.120 of 2009 also stands dismissed. 12. In the result the appeal fails and is accordingly dismissed. 10 ( J.N. Patel J.) (R.G. Ketkar J.)