1 mss WP1187 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1187 OF 2011 SUBHASH MAKUND WADEKAR .. PETITIONER Vs. ASST. COMMISSIONER G/NORTH OFFICE, MCGM & ORS. .. RESPONDENTS Mr. V. V. Salunkhe i/b Rajeev Matkar for the petitioner Mrs. T. H. Puranik for BMC Mr. P. Y. Shankar for R-2. CORAM: S. C. DHARMADHIKARI, J. DATED: 17/10/2011 P.C. Heard Mr. Salunkhe appearing for the petitioner, Mrs. Puranik, learned advocate appearing on behalf of the 1st respondent and Mr. Shankar, learned advocate appearing for the developer. The added respondent 4 is duly served but none is appearing on behalf of the said respondent. 2. The petition is directed against an order passed by the 2 mss WP1187 Administrator and Divisional Commissioner, Kokan Division, Mumbai, dismissing the petitioner’s Appeal No. 676 of 2010. By the order dated 18/2/2011 Respondent No. 3 has held that the petitioner’s grievance that the direction to him to vacate the premises so as to enable the authorities to demolish them and redevelop the property is without any basis and his appeal has been rejected. Further, by the order impugned, respondent 3 dealt with two appeals bearing Nos. 6762010 and 677/2010. The First appeal was directed against the order holding the petitioner ineligible for residential premises which have since been demolished. Further, the Second appeal was directed against the notices and order dated 18/12/2008, 20/4/2009, 31/3/2009 and 30/4/2010. 3. All throughout the petitioner has been arguing that he is eligible for permanent alternate accommodation as he was residing in the structure which structure was existing on site prior to the cut off date (i.e. prior to 1st of January, 1995). The petitioner’s argument was that he produced the necessary record to show the existence of structure including the extract of the voter’s list, ration card, architect’s plan, voter’s identity card etc. 3 mss WP1187 4. Both the authorities have held that this does not conclusively prove the existence of the structure as on the cut off date. Mr. Salunkhe, learned advocate appearing for the petitioner urged that if the voter’s list from 1985 onwards would show that the petitioner was residing in the structure and the said structure is described with all details, hence it cannot be said that he resides in a property / land without there being any structure. Further, this is a clear case where the documents would indicate that the structure was existing on site prior to the cut off date. 5. It is not possible to accept this contention because when the petitioner challenges the order before the appellate forum at the same time he executes an agreement with respondent 2 developer. In the agreement entered into on 9/7/2002 this is what is stated: “This Agreement is entered into onthe 9thday of July, 2002 between Shri Mukund Vithal Wadekar, having a stall of about 30 sq. ft. at Bhantewadi Rehvasi Sangh, college Galli, Dadar (West), Mumbai 400 028, hereinafter known as “Claimant” and M/s. Omega Investment & properties Ltd., having their office at 34-B, Jolly Maker 4 mss WP1187 Chambers-2, Nariman Point, Mumbai-400 021, hereinafter known as “Developer”. Whereas the claimant is having a stall but he does not have eligibility of approval from SRA in Annexure II and also does not have any proof of being in existence prior to 1.1.1995. However, the claimant declares that he has already submitted his application for eligibility to SRA and the same is under their consideration.” 6. This is demonstrating that the petitioner claims a stall stated to be existing at site. The stall is about 30 sq. ft. However, before the authorities, his argument is that he was residing in a residential structure and the said structure was in existence on the cut of date. Both the authorities have referred to the fact that the petitioner could not prove the existence of the structure. The structure was standing in the name of Mrs. Jayshree Dhuri. The contesting parties pointed out that the mother of the petitioner Mrs. Mahananda Wadekar sold the structure to Mrs. Dhuri and accordingly Mrs. Dhuri has been held eligible in the Annexure-II and allotted permanent alternate accommodation in rehab building ‘A’. Thus what the petitioner claims in terms of the agreement at page 22 and which is extracted is as 5 mss WP1187 above. Whereas he argues before the authorities that there was a residential structure which was in his occupation and possession and which structure was existing as on the cut off date. 7. Now, when the authorities have observed that the structure which was stated to be existing belonged to the petitioner’s mother and the said structure has been sold already to Mrs. Jayshree Dhuri, then all the more, the petitioner’s case in writ jurisdiction cannot be accepted. This is not a forum where disputed questions of fact can be resolved nor can this court discard the findings rendered by both authorities based as they are on the material that has been produced by the petitioner himself. For all these reasons this is not a fit case for interference in the writ jurisdiction. 8. Petition is dismissed. (S. C. DHARMADHIKARI, J.)