1 WP7763-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7763 OF 2010 Rajesh Eknath Bhalekar and ors. ..Petitioners Vs M/s.Earth Worth Construction Pvt. Ltd. and ors. ..Respondents -- Mr.R.Rajaram Mohan Roy i/b.Mr.S.C.Shah and Ratna Rao, for petitioners. Mr.Prakash Ganwani i/b.M/s.Solomon & Co., for respondent no.1. Mr.V.S.Gokhale, AGP for respondent State. Mr.G.W.Mattos, for respondent no.4. -- CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. DATE : 20 th APRIL, 2011 P.C. (Per R.G.Ketkar, J.): The petitioners have challenged the Letter of Intent (for short “LOI”), Letter of Approval (for short ”LOA”) as also Commencement Certificate (for short “CC”) granted by respondent no.3 – Slum Rehabilitation Authority (for short “SRA”) and the fourth respondent – Maharashtra Housing Area and Development Authority (for short “MHADA”) to respondent no.1 M/s.Earth Worth Construction Pvt. Ltd. for redevelopment work over land survey no.610 (part), Riddhi Siddhi C.H.S. (proposed), Saibaba Nagar, 2 WP7763-10.sxw Bandra (E), Mumbai (for short “the suit property”). The petitioners contended that they were running shop premises being Rajesh Bidi Shop situate in the suit property. On 21 st April, 1997, the Chief Officer of MHADA issued no objection certificate to Mr.John Dantas, Architect of the first respondent, in order to enable the Society of slum dwellers to obtain approval to the proposed housing scheme, building plans and and issue of Commencement Certificate by the SRA. After the SRD proposal is approved by the SRA, a formal lease deed in respect of the suit property covered by the SRD proposal shall be entered into by the MHADA Board. It is the case of petitioners that the said letter is, in fact, not signed by the Chief Officer of MHADA and the same has been issued without any official stamp thereon. 2] On 29 th October, 1997, LOI was issued by the SRA to the second respondent - Society on the terms and conditions set out therein. On the same day, LOA was issued by the SRA to the Architect of the first respondent and the first respondent was allowed to construct the proposed structures under Section 45 of the Maharashtra Regional Town Planning Act, 1966. The CC was issued by the third respondent – SRA to the first respondent to commence the work upto plinth level subject to the compliance of the conditions laid down in LOI dated 29 th October, 1997. 3] The learned counsel for the petitioners submitted that initially, Writ Petition No.2481 of 2005 was filed by 78 original members. Mother of petitioners by name Smt.Sunanda Bhalekar was petitioner no.61 in that petition. She had not signed the consent terms and the petition was 3 WP7763-10.sxw disposed of in terms of the consent terms on 18 th October, 2006. Since she had not signed the consent terms, the consent terms are not binding on her. The petitioners, therefore, have filed this petition challenging the LOI, LOA and CC. The petitioners submitted that the LOI, LOA and CC are null, void, illegal and are not binding upon the petitioners. In the alternative, the petitioners have claimed that they are entitled to shop premises admeasuring 225 sq. ft. in lieu of their shop premises which was subsequently demolished. 4] On the other hand, learned counsel for respondent nos.1 and 2 submitted that the petitioners are not entitled to maintain the present petition. In the first place, petitioners’ mother along with 78 others had instituted Writ Petition No.2481 of 2005 in this Court. In that petition, consent terms were arrived at on 17 th October, 2006. Those consent terms were signed by the petitioners’ advocate and the advocates for respondent nos.4 and 5. The petition was disposed of in terms of consent terms on 18 th October, 2006. Though the mother of petitioners did not sign the consent terms, nonetheless, since the petitioners’ advocate had signed the consent terms, it is binding on the mother of the petitioners being petitioner no.61 in that petition. He further submitted that no grievance was made about the consent terms at any point of time and the same were never challenged till date. Apart from that, he submitted that the petitioners instituted S.C. No.1138 of 2010 before the City Civil Court, Dindoshi, Mumbai and sought stay of demolition notice dated 13 th May, 2010. On 15 th May, 2010, the learned Judge directed maintenance of status-quo till 19 th May, 2010. In the meantime, the High Power Committee had passed 4 WP7763-10.sxw order on 14 th September, 2009 and 23 rd April, 2010. Being aggrieved by these orders, the petitioners preferred Writ Petition No.4248 of 2010 in this Court. The said petition was dismissed in default on 26 th July, 2010 and the same is not restored till date. 5] He further submitted that by present petition, the petitioners are claiming allotment of shop admeasuring 225 sq. ft. in lieu of their 60 sq ft. shop which was demolished. Having regard to clause 5.3 of Appendix IV under D.C. Regulation No.33(10) of Development Control Regulation for Greater Mumbai, 1991 (for short D.C.R.) the petitioners are not entitled to claim 225 sq. ft. area and are entitled to get equivalent area of their original structure namely 60 sq. ft. He submitted that respondent no.1 is ready and willing to offer shop premises admeasuring 60 sq. ft. on ground floor of Rehab building as and by way of permanent accommodation. He submitted that respondent no.1 is willing to deliver possession of the said premises within 15 days from the issue of occupation certificate by SRA. He further submitted that respondent no.1 is ready and willing to pay the petitioner compensation at the rate of Rs.6,000/- per month from 15 th June, 2010 till the date of delivery of permanent alternate accommodation. He also contended that the petitioners are challenging various permissions sanctioned in favour of respondent nos.1 and 2. The scheme is composite namely, it comprises construction of residential as well as nonresidential premises. The wife of petitioner no.2, petitioner no.3 and petitioner no.4 have taken benefit of the scheme in the sense that they have accepted permanent alternate residential accommodation to the extent of 225 sq. ft. He, therefore, submitted that it is not open for the petitioners to challenge 5 WP7763-10.sxw composite scheme having accepted the benefits thereunder qua residential premises. 6] We have considered the submissions advanced by learned counsel for the parties. We find that wife of petitioner no.2, petitioner no.3 and petitioner no.4 have taken benefit of the composite scheme. Apart from that, mother of petitioners Smt.Sunanda Bhalekar was one of the petitioners in Writ Petition No.2481 of 2005. The said writ petition was disposed of in terms of the consent terms dated 17 th October, 2006. It is not in dispute that Smt.Sunanda Bhalekar did not sign the consent terms. It is also not in dispute that the advocate for petitioners had signed those consent terms and this Court disposed of the said Writ Petition on 18 th October, 2006. The petitioners never challenged the validity of the consent terms till date. We are of the opinion that since advocate for all petitioners had signed the consent terms, the same are binding on the mother of petitioners as well. The submission of petitioners that letter dated 21 st April, 1997 issued by the Chief Officer of MHADA is a forged document, is also not convincing. Learned counsel for MHADA submitted that pursuant to this letter, in fact, several permissions/sanctions have been granted by the MHADA and therefore, contention of the petitioners that the said NOC is a forged document is unacceptable. We find merit in the submission of learned counsel for MHADA. 7] As noted earlier, learned counsel for respondent no.1 submitted that respondent no.1 is ready and willing to offer shop premises admeasuring 60 sq. ft. on the ground floor of Rehab building, as the petitioners were in 6 WP7763-10.sxw possession of shop having actual area of 60 sq. ft. Respondent no.1 is willing to deliver possession of the said premises within 15 days from the issue of occupation certificate by SRA. The question is whether petitioners are entitled to shop admeasuring 225 sq. ft. or 60 sq. ft. Clause 5.3 of Appendix IV under DCR 33(10) reads as under :- “5.3 Built up area for commercial/office/shop/economic activity upto 20.90 sq.m (225 st.ft.) carpet area or actual area whichever is less, shall be provided to the eligible person free of cost as part of the rehabilitation Project. Any area in excess of 20.90 sq. mt. to the extent of existing area may, if required, be sold on preferential basis at the rate for commercial area in the free sale component.” In view of the aforesaid clause, we are of the opinion that the petitioners are entitled to shop premises admeasuring 60 sq.ft. on ground floor of Rehab building as and by way of alternate and permanent accommodation. Subject to above, we do not find any substance in the present petition. The same is, accordingly, dismissed. [R.G.KETKAR, J.] [SMT.RANJANA DESAI, J.]