-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1533 OF 2005 WRIT PETITION NO.1533 OF 2005 WRIT PETITION NO.1533 OF 2005 Bader Begum Abdul Aziz & ors. .. .. Petitioners v/s. The State of Maharashtra & ors. .. Respondents Ms.Shakuntala Joshi with Mr.Ditendra Mishra for petitioners. Mr.G.D.Utangale for res.No.3. Mr.D.D.Madon with Mr.S.M.Kazi for res.Nos.4 & 5. Mr.C.U.Singh with Mr.G.S.Tripathi, Applicant in Chamber Summons No.170 of 2005. ----- W I T H WRIT PETITION NO.871 OF 2006 WRIT PETITION NO.871 OF 2006 WRIT PETITION NO.871 OF 2006 Shaista Majid Khan .. .. Petitioner v/s. State of Maharashtra & ors. .. Respondents Mr.D.D.Madon with Mr.S.M.Kazi for petitioner. Mr.M.M.More, AGP for res.Nos.1 & 2. Mr.G.D. Utangale for res.No.3. Ms.Shakuntala Joshi with Mr.D. Mishtra for res.Nos.5 to 11. ---- CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & S.R. DONGAONKAR, JJ. S.R. DONGAONKAR, JJ. S.R. DONGAONKAR, JJ. DATED : 7th April 2006 DATED : 7th April 2006 DATED : 7th April 2006 P.C. : P.C. : P.C. : 1. The first of these two petitions is filed by 7 persons who claim to have been residing in a plot of land situated at Bandra (East). This plot is being developed under the SRA scheme by the 4th respondent-Housing Society formed by the occupants -2- of that plot and respondent No.5 is the developer. The case of the petitioners is that though they were all very much on the concerned plot of land, the alternative accommodation is not being given to them. Emphasis was laid by the petitioners on the documents which were signed by the Housing Board when all the efforts started initially by the 4th respondent-Society. A document was entered into with the 4th respondent-Society and it showed the names of the persons whose rights were recognised. Reliance is placed on the list of hutment dwellers as per Appendix-2 which was drawn on 8th August 2001. Now, reliance is also placed on an order which has been passed by the Slum Rehabilitation Authorities (or the SRA) based on these documents that the petitioners are required to be given the alternative accommodation. 2. As against this case of the petitioners, the submission of respondent Nos.4 and 5 is that these petitioners had left the concerned plot of land and were not occupying these hutments when they were demolished in the year 2002. All those who were occupying the hutments in the year 2002 were provided alternative accommodation in the transit arrangement and will be accommodated when -3- the final construction takes place. It is pointed out by respondent Nos.4 and 5 that the petitioners had taken some consideration at that time and were interested in a Madrasa being built in the particular locality, which, of course, is being built. 3. The second petition is Writ Petition No.871 of 2006 which is a cross petition filed by the builder of this particular scheme and it seeks to challenge the order dated 27th February 2006 which has been passed by the SRA directing the Society and the builder to provide accommodations to these 7 petitioners from the 1st petitioner. The submission of the Society and the developer is based on the provisions contained in Clause 1 of the Annexure to D.C. Regulation 33(10) framed under the MRTP Act. Clause 1 of D.C.Regulation 33(10) provides as under:- "1. Eligibility for redevelopment Scheme 1. Eligibility for redevelopment Scheme 1. Eligibility for redevelopment Scheme.- (a) For redevelopment of slums including pavements, whose inhabitants’ names and structures appear in the electoral roll prepared with reference to 1st January, 1995 or a date prior thereto, but where the inhabitants stay at present in the -4- structure, the provisions of Appendix IV shall apply on the basis of a tenement in exchange for an independently numbered structure. (b) Subject to the foregoing provisions, only the actual occupants of the hutments, shall be held eligible, and the so called structure - owner other than the actual occupant if any, even if his name is shown in the electoral roll for the structure, shall have no right whatsoever to the reconstructed tenement against that structure. " 4. The submission of the developer and the Society is that under this clause what is required is that the person concerned must be staying in the particular hutment and he must continue to be staying until the structures are demolished. The eligibility of the persons is to be decided on their names appearing in the electoral roll on 1st January 1995. From clause 1 (b) of the D.C. Regulations, it is seen that if the name of the person concerned is shown in the electoral roll but if he is not occupying at the relevant time, he will not be eligible. By consent this petition -5- is heard finally alongwith the first petition. 5. Ms.Joshi, learned Counsel appearing for the petitioners in Writ Petition No.1533 of 2005, has relied upon various documents. These documents are ration cards, bills of water charges and the electoral roll of 1998. The fact, however, remains that these persons are not in a position to controvert the statement of the Society and the developer that they were not in the hutments concerned when they were demolished and in fact, they had shifted much earlier. 6. Mr.C.U. Singh, learned Counsel appearing for the intervenors, who are some of the occupants of this plot of land, has pointed out that these claimants are, in fact, quite well off. They have their own property at Malad and have shifted there and are trying to make out the case on the basis of these documents, which should not be entertained. 7. We have noted the submissions of rival parties. The scheme of the provisions is to rehabilitate the persons who continue to be residing in the hutments, and their names being shown in the electoral roll on 1st January 1995 is -6- a factor to be considered. Sub-clause (b) of Clause 1 of D.C. Regulation 33(10) makes it clear that even if somebody’s name is in the electoral roll on 1st January 1995, but he is not actually in the hutment, he will not be eligible. It is not a property right created under the Act or under the Rules. It is a scheme of tolerance and accommodations meant for deserving persons and not persons who want to merely claim a right on the basis of the documents. 8. In view of what is stated above, there is no substance in the petition filed by the claimants. Writ Petition No.1533 of 2005 will, therefore, stand dismissed. 9. As far as Writ Petition No.871 of 2006 is concerned, we have heard the respondents and in our view, the order passed by the SRA will have to be interfered for the reason that this very important factor has not been considered and the authority has gone only on the basis of the documents of 2001 and Appendix-2 which were tendered to it and not on the fact that whether the persons concerned were occupying the hutments or not. -7- 10. In the circumstances, we will have to set aside the order passed by the SRA which is challenged in this petition. We accordingly set aside the order dated 27th February 2006 passed by the SRA and allow this petition in terms of prayer (b). 11. Both the petitions stand disposed of. 12. Ms.Joshi applies that the status quo granted earlier be continued. Mr.Madon points out that the buildings which were meant for rehabilitation have all been constructed and the persons concerned have shifted. The only thing remains to be done is that the occupation certificate is to be granted by the SRA. It will not be granted for eight weeks. 13. Certified copy expedited. (H.L. GOKHALE, J.) (H.L. GOKHALE, J.) (H.L. GOKHALE, J.) (S.R. DONGAONKAR, J.) (S.R. DONGAONKAR, J.) (S.R. DONGAONKAR, J.)