1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1256 OF 2010 Makranipada Residents Welfare Association & Ors. .. petitioners V/s Members, High Power Committee & Ors. .. Respondents Mr.Mihir Desai for the petitioners. Mr.G.D.Utangale for Respondent No.2. Mr.Milind More, AGP for Respondent Nos.1, 3 & 6. Mr.M.U.Pandey for Respondent No.5. CORAM: SMT. RANJANA DESAI & R.G.KETKAR, J.J. ORDER RESERVED ON : 26.04.2011 ORDER PRONOUNCED ON: 04.05.2011 ORDER: (Per R.G.Ketkar, J.) 1. The petitioners have preferred this petition challenging (i) the letter of Intent (for short LOI) dated 10.08.2009, (ii) Intimation of Approval (for short IOA) dated 06.11.2009, (iii) permission dated 23.02.2010 granted in favour of Respondent Nos.3 and 4 to construct the transit housing, as also the commencement certificate and the sanctioned plans. The petitioners have also challenged the order dated 20.03.2010 passed by the High Powered Committee (for short HPC) under the Slum Rehabilitation Scheme (for short SRS) in the application No.1091 of 2009. 2. The petitioners are residents of Makranipada, having area of 9661.31 2 Sq.meters. The said area is located at CTS Nos.571, 571/1-19, 574, 574/1-11, 575, 575/1-15, 576, 576/1, 577, 577/1. It is the case of the petitioners that on 24.12.2005 the Respondent No.5 Developer executed individual agreements with the slum dwellers. On 05.03.2006 71 slum dwellers had withdrawn their consent. On 02.08.2006 Annexure II was certified by the Deputy Collector (Encroachment/Removal) Mumbai Suburban District (Western Suburb). It was found that there are total 441 slum dwellers, out of which, 221 slum dwellers are eligible slum dwellers and remaining 220 slum dwellers are not eligible slum dwellers. It is the case of the petitioners that even before certification of Annexure II on 02.08.2006, 71 slum dwellers had withdrawn their consent on 05.03.2006. In view thereof, the developer does not have support of 70% eligible slum dwellers. 3. Annexure II was revised on 14.08.2007 by the Deputy Collector (Encroachment/Removal) Mumbai Suburban District. In addition to the earlier 221 slum dwellers the Deputy Collector came to the conclusion that 76 slum dwellers are also eligible. Thus, out of 441 total number of slum dwellers 297 (221 + 76) slum dwellers are eligible slum dwellers. On 10.08.2009 LOI was issued by the SRA. IOA was issued on 06.11.2009. Pursuant to the complaint received, about the certification of Annexure II the Secretary of SRA adressed a letter to the Additional Collector 3 (Encroachment/Removal) requesting the later to submit his opinion on the complaints, after carrying out the necessary enquiry. 4. The petitioners filed Application No.1091 of 2009 before the HPC for cancelling the various permissions and sanctions granted in favour of Respondent Nos.3 and 4. By order dated 20.03.2010 the HPC directed Respondent No.4 Developer to immediately submit individual agreements of minimum 70% of eligible slum dwellers and only thereafter the SRA should process the application of the Developer for the commencement certificate. Pursuant to this, the 5th Respondent submitted the proposal on 21.03.2010 enclosing therewith xerox copies of the individual agreements of 219 eligible slum dwellers with the SRA. This was verified on 23.03.2010 by the Respondent No.3 herein – the Additional Collector (Encroachment/Removal) and submitted a report wherein it was certified that the 5th Respondent has support of 220 slum dwellers out of 297 eligible slum dwellers. Thus, the 5th Respondent has support of 73.73% of the eligible slum dwellers. 5. Mr.Desai contended that basically even before the first certification of Annexure II on 02.08.2006 as many as 71 eligible slum dwellers had withdrawn their consent on 05.03.2006. If that be so, the 5th Respondent does not have the support of 70% of eligible slum dwellers and consequently all the permissions and sanctions in favour of the 5th Respondent Developer are 4 liable to be cancelled. On the other hand learned counsel Mr.M.U.Pandey submitted that the contention raised by the petitioners that on 05.03.2006 71 eligible slum dwellers had withdrawn their consent, is factually incorrect. He invited our attention to the affidavit of Kailaschandra Babulal Deora, partner of the 5th Respondent. In paragraph 6 thereof it was set out that though in the petition, the case is made out that 71 slum dwellers had withdrawn their consent, however before the HPC it was their case that 46 eligible slum dwellers had withdrawn their consent. It is further asserted that none of the said 46 slum dwellers or any other slum dweller has addressed any notice or letter to the 5th Respondent terminating and/or withdrawing their individual agreements. It is further asserted that once the slum dwellers have joined the SRS by giving the individual consent and after executing the individual agreements, they cannot withdraw the consent. Mr.Panday further invited our attention to the additional affidavit made by Mr.Deora and in particular paragraph No.3 thereof, wherein it is asserted that not a single slum dweller has given any notice to Respondent No.5 cancelling the agreement or withdrawing the consent. Mr.Pandey submitted that no rejoinder is filed disputing the averments made in the two affidavits filed by Mr.Deora. 6. We have considered the rival submissions made by learned counsel appearing for the parties. It is not in dispute that Respondent No.1 entered into the 5 individual agreements with the eligible slum dwellers on 24.12.2005. However, the case of the petitioners is that 71 eligible slum dwellers had withdrawn their consent on 05.03.2006 even before the certification of Annexure II on 02.08.2006. In support of this submission, Mr.Desai relied upon the communication dated 05.03.2006 which is at Exh. “C” on page Nos. 97 to 100. However, no material is produced by the petitioners to substantiate that this is duly served on the 5th Respondent. On the other hand, as noted earlier, Mr.Deora has specifically asserted that no notice withdrawing the consent was ever served on the 5th Respondent Developer. There is no rejoinder filed by the petitioners disputing the said assertions. It is therefore not possible for us to accept the contention of the petitioners that they had withdrawn their consent by communication dated 05.03.2006. 7. From the material on record, it is evident that Annexure II was certified and it was found that there are total 441 slum dwellers, out of which 297 slum dwellers are eligible. Out of these 297 eligible slum dwellers, 220 eligible slum dwellers have given their consent which represents more than 70% support. In view thereof, we do not find any substance in the petition. Petition fails and the same is dismissed. (R.G.KETKAR, J.) (SMT.RANJANA DESAI, J.)