WP. 435, 437, 438-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 435 OF 2011 Pramila Premnath Dubey ...Petitioner Vs. The Administrator & Divisional Commissioner, Konkan Division, Mumbai & Ors. ...Respondents AND CIVIL WRIT PETITION No. 437 OF 2011 Mane Vaijanta Ananda ...Petitioner Vs. The Administrator & Divisional Commissioner, Konkan Division, Mumbai & Ors. ...Respondents AND CIVIL WRIT PETITION No. 438 OF 2011 Pandey Shanti Ramakanth ...Petitioner Vs. The Administrator & Divisional Commissioner, Konkan Division, Mumbai & Ors. ...Respondents *** Ms. Y. E. Moomun i/b Ms. Manish B. Gawade, for the Petitioner. Mr. D. A. Nalawade, AGP for the Respondent No.3. Mr. S. G. Surana, for Respondent No.5. Mr. P. K. Dhakephalkar, Sr. counsel a/w Mr. Chirag Balsara, Altaf Diamondwala & Sheetal Angne i/b Divya Shah Associates, for Respondent No. 6. *** WP. 435, 437, 438-11 - 2 - CORAM: V. M. KANADE J. DATE : FEBRUARY 17, 2011 P.C. 1. The petitioner is challenging the order passed by the Administrator & Divisional Commissioner, Konkan Division, Mumbai dated 18th December, 2010. By the said order, the appeals filed by the petitioners against the orders passed by the Assistant Commissioner, “G” South Ward, were dismissed. 2. Brief facts are that respondent Nos. 5 and 6 issued Letter of Intend on 6th September, 2008 which was partly amended on 21st January, 2009. On 9th July, 2010 a show-cause notice was issued under Section 33 of the Maharashtra Slum Areas (Improvement Clearance & Redevelopment) Act, 1971 by the respondent No.2 and the petitioners were asked to vacate the premises. Again by an order dated 8th September, 2010, the petitioners were asked to vacate the premises within 7 days, which order was confirmed in appeal. 3. The learned counsel appearing on behalf of the petitioner submits that so far as the premises in which they were residing at the moment are concerned, it is not necessary to demolish the said premises, since those premises will not come within the area where rehab buildings WP. 435, 437, 438-11 - 3 - are to be constructed and without demolishing these structures, respondent Nos. 5 and 6 could very well carry on their construction. It is then submitted that in view of Condition Nos. 7, 8, 18 and 42 of the LOI, the Developers, respondent Nos. 5 and 6 were under legal obligation to construct a permanent alternate accommodation on the site. It is also submitted that in view of Clause 18 and 42 of the LOI, the construction had to be done in a phased manner. It is therefore, submitted that taking into consideration the map and the sanction plan, it was not necessary to demolish the premises in which the petitioners are residing. It is further submitted that alternate accommodation, offered at the Meenatai Thakare Flower Market, is open almost for 24 hours and as a result the premises were not habitable. It is also submitted that the “Leave & License” Agreement which was executed by the Developer with the residents had expired and it was not renewed. It is further submitted that there was no guarantee that the Developer would give permanent accommodation and there was every possibility that if the premises in which the petitioners are residing, were demolished, the petitioners would be left high and dry, without getting any permanent alternate accommodation. It is further submitted that so far as other sites which were mentioned in the affidavit are concerned, there was no averment that at those place it was legally WP. 435, 437, 438-11 - 4 - permissible to accommodate the petitioners herein. 4. On the other hand, the learned counsel appearing on behalf of the respondent submitted that it was not necessary to construct a transit accommodation only at the site, if alternate accommodation made available near the site is permissible. It is submitted that in the impugned order one of the condition which was imposed by the Appellate Authority was to make a transit accommodation which is habitable and equipped with necessary amenities be made available to the petitioners herein. It is then submitted that so far as construction is concerned, this has to be done in a phased manner and the necessary permission which was granted, was shown by the learned counsel. 5. In my view, no case is made out for interfering with the impugned order, passed by the Administrator & Divisional Commissioner. It is an admitted position that 1820 people have already been shifted to the alternate accommodation which was offered and the construction has started. Respondent Nos. 5 and 6 have offered other alternate accommodation to the petitioners. Looking at the relevant provisions, more particularly Annexure IV and provisions relating to transit accommodation, in my view, it is not that the transit accommodation should be constructed on the site and a discretion is WP. 435, 437, 438-11 - 5 - vested with the Developer, either to provide the transit accommodation at the site or on area which is close to the site. The Administrator & the Divisional Commissioner also imposed the necessary condition in the operative part of the order, which reads as under- “1. Appeals are disallowed with the directions to the developer to communicate to the appellants the offer of rent or transit accommodation which is habitable and equipped with necessary amenities by giving their clear description and address at the earliest. The appellants shall opt and accept the relevant option with regard to rent or transit accommodation and shall vacate their premises within 7 days from receipt of communication from the developer. If the appellants fail to vacate their premises within the abovementioned period on the ground of habitability, the Competent Authority shall evict the appellants as per law after satisfying himself about the habitability of the transit accommodation as offered by the developer. 2. No order as to costs. 3. Parties be informed accordingly.” 6. From the aforesaid operative part of the order, it can be seen that only after the Developer communicates to the appellants i.e. petitioners herein, the offer of rent or transit accommodation which is habitable and equipped with necessary amenities, the earliest, opportunity thereafter given to the appellants/petitioners herein to opt and accept all relevant options. Further it is observed that the Competent Authority shall evict the appellants after satisfying himself about the WP. 435, 437, 438-11 - 6 - habitability of the transit accommodation, as offered by the Developer. There are, therefore, sufficient safeguards provided in the operative order of the Appellate Authority to protect the interest of the petitioners herein. 7. The learned counsel for the petitioners urged that the respondent Developer had not registered any agreement with the petitioners and therefore, there was no guarantee that they would get permanent accommodation. On the other hand, Mr. P. K. Dhakephalkar, learned Senior Counsel made a statement after taking instructions from the client that respondent Nos. 5 and 6 undertake to enter into a registered agreement with the petitioners, after the rehabilitation buildings are ready and specific flats are allotted to the petitioners. In view of this statement, merely because at this stage an agreement is not registered, that would not be a ground for not handing over vacant possession of the premises. 8. In this view of the matter, no case is made out for interfering with the impugned order while exercising jurisdiction under Art. 226 and 227 of the Constitution of India. All the three writ petitions are, therefore, dismissed. 9. At this stage, the learned counsel appearing on behalf of the petitioner in all the petitions seeks stay of this order. In my view, it WP. 435, 437, 438-11 - 7 - would be appropriate if this order is stayed for a period of two weeks from today. [ V. M. KANADE J.]