SSK/911 1 WP.4377.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4377 OF 2010 Fakir Mohd. Ali Hasan & Ors. ....Petitioners Versus Administrator & Divisional Commissioner & Ors. ...Respondents Mr. Abhay D Parab, Advocate for the petitioners. Ms. P. S. Cardozo, AGP for respondent no.1. Mr. A. Y.Sakhare, Sr. Counsel i/b. R. A. Malandkar, Advocate for respondent no.2. Mr. Vijay Patil, Advocate for respondent no.3. Mr. S. U. Kamdar i/b. Dharam & Co., Advocate for respondent nos.4 & 5. Mr. R. D. Sony with Ms.Uma Shankar, Advocate for respondent no.6. CORAM : RANJIT MORE, J. DATED : 13th APRIL, 2011. P.C.: Heard Mr. Parab, learned counsel for the petitioner, Ms. Cardozo, learned AGP for respondent no.1. Mr. Sakhare, learned senior counsel for respondent no.2, Mr. Patil, learned counsel for respondent no.3, Mr. Kamdar, learned senior counsel for respondent nos.4 & 5 and Mr. Soni, learned counsel for respondent no.6. 2. The petitioners have impugned the order dated 6th May, 2010 of the Administrator and the Divisional Commissioner, Konkan Division, SSK/911 2 WP.4377.10 Mumbai under Section 35 of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971 (in short “the Act”) passed in Appeal No. 977 and 978 of 2009. By the said order, the petitioners’ appeals were disallowed and the order dated 15th December, 2009 passed by the Assistant Commissioner, “E” Ward, Municipal Corporation Greater Mumbai - the Competent Authority appointed under the Act came to be confirmed. 3. The petitioners are the slum dwellers residing on a land which is admittedly belonging to the Municipal Corporation Greater Mumbai. This land is being redeveloped under the provisions of DC 33(10) of the Development Control Rules, 1991 made under Bombay Municipal Corporation Act. The two societies viz. Narialwadi Zopadpatti Welfare Society and Ashiyana Co-operative Housing Society were fighting for rights to implement the slum scheme in respect of the said land. Ultimately, the litigation was fought up to the Apex Court and the Slum Rehabilitation Authority in pursuance of the orders of the High Court and the Apex Court re-examined the issue and by Speaking Order dated 19th August, 2006 granted approval to Ashiyana Co-operative Housing Society to implement the Slum Scheme. 4. The Assistant Commissioner- the Competent Authority thereafter by his order dated 15th December, 2009 directed the eviction of the SSK/911 3 WP.4377.10 petitioners under Section 33 of the said Act. This order is passed after issuance of the notice and granting an opportunity of hearing to the petitioners. The order of the competent authority came to be challenged before the Administrator and the Divisional Commissioner under Section 35 of the Act and as stated above petitioners’ appeals were disallowed and, therefore, the petitioners came before this Court. 5. Mr. Parab, learned counsel for the petitioners submitted that the Slum Rehabilitation Authority illegally sanctioned the scheme of redevelopment in favour of Ashiyana Co-operative Housing Society. He also submitted that 70% of the slum dwellers are not in favour of the implementation of scheme by Ashiyana Co-operative Housing Society. He further submitted that Annexure “II” is not issued to Ashiyana Co-operative Housing Society. The objection about the illegality of the Slum Rehabilitation Scheme was overruled by the Lower Appellate Authority on the ground that the petitioners in appeals under the provisions of Section 35 of the said Act cannot challenge the legality of the scheme. I find no error in the finding of the Lower Appellate Authority, as the petitioners remedy to challenge the legality or otherwise of the scheme is before the Slum Rehabilitation Authority or High Power Committee. The Appellate Authority i.e. the Administrator and Divisional Commissioner under the provisions of Section 35 of the said Act cannot go into the validity of the scheme. SSK/911 4 WP.4377.10 6. Since the petitioners are the slum dwellers and are residing on the land in question, they are held to be eligible for permanent alternative accommodation. Mr. Kamdar, learned senior counsel, at this stage makes a statement that the petitioners subject to their vacating the structure shall be given transit accommodation at the site immediately and after completion of the project shall be entitled to alternative permanent accommodation in accordance with the scheme. This statement is accepted. In view of the said statement, in my view, the petitioners’ grievance about action under Section 33 and 38 of the said Act will no more survive. 7. Mr. Parab, learned counsel for the petitioners submitted that the scheme is already under challenge before the High Power Committee. Mr. Kamdar, learned senior counsel, on the contrary submitted that the petitioners challenge to the scheme before the High Power Committee is already rejected. I do not want to express any opinion about the legality/validity of the Rehabilitation Scheme. Suffice it to say that the scope of the appeal under Section 35 of the Act is very limited. As per this scope, I have examined the matter and I do not find any ground to interfere with the impugned order in writ jurisdiction of this Court under Article 227 of the Constitution of India. The Petition is, therefore, dismissed. SSK/911 5 WP.4377.10 8. Mr. Parab, learned counsel for the petitioners at this stage seeks order of status-quo for a period of two weeks. Mr. Kamdar, learned senior counsel, opposed this. However, in the interest of justice and in order to enable the petitioners to approach the Higher Court, the parties are directed to maintain status-quo as of today for a period of two weeks from today. (RANJIT MORE, J.)