AJN 18-OS-WP(L)624.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.624 OF 2011 Uttam Sadashiv Shelte & Ors. ... Petitioners Vs. The State of Maharashtra & Ors. ... Respondents Mr. Parvinder Singh Seth for the petitioners. Ms. Uma Palsule Desai, A.G.P. for respondents 1, 2 and 6. Mr. B.V. Phadnis for respondent 3. Mr. A.G. Damle i/b Sanjay Gawde for respondent 4. Mr. Hemant P. Ghadigaonkar for respondent 5. CORAM: MRS. RANJANA DESAI & R.G. KETKAR, JJ. DATED : 18TH APRIL, 2011. P.C.:- 1. The petitioners state that they are dissatisfied by the eviction order passed by respondent 1 – Deputy Collector (Enc / Rem), Andheri Division under the provisions of AJN 18-OS-WP(L)624.11 2 Sections 33 and 38 of the Maharashtra Slum Areas (Improvement, Removal and Redevelopment) Act, 1971 (for short, “the Slum Act”). The petitioners have prayed that the permissions granted by the Slum Rehabilitation Authority (for short, “the SRA”) to respondent 4- Developer for constructing 150 sq. feet transit tenements be quashed and this court should declare that the minimum transit tenement carpet area for Development Control Regulation 33(10) (for short, “DCR-33(10)”) projects should not be less than 225 sq. feet. The prayers indicate that the grievance of the petitioners is about the area of transit accommodation offered to them. 2. We have heard learned counsel for the petitioners at some length. He only raised grievance about the area of transit accommodation. He submitted that the petitioners are being offered transit accommodation admeasuring only 150 sq. feet which is not as per DCR-33(10). The petitioners are entitled to accommodation admeasuring 225 sq. feet. He drew our attention to DCR-33(10), more AJN 18-OS-WP(L)624.11 3 particularly to clause (C) of Regulation 17(II) under Appendix – VII-B, which reads as under : “17. Wherever TDR arising out of slum rehabilitation project is received, the relaxation as required shall be given for such slum TDR on the same basis as for free sale component in the slum rehabilitation project. I. xxx xxx xxx II. Following clause shall be added at Serial No.(14) after Serial No.(13) of DCR No.33:- (14) Provisions relating to Transit Campt tenements for Slum Rehabilitation Scheme. (A) xxx xxx xxx (B) xxx xxx xxx (C) The additional FSI could be used for construction of transit camp tenements having a carpet area of 20.90 sq. mts. (225 sq.ft.) with the same specifications as for permanent slum rehabilitation tenements which will be used for the purpose of accommodating hutment- dwellers in transit on account of Slum Rehabilitation Scheme for 10 years on rent to be fixed by the Chief Executive Officer of AJN 18-OS-WP(L)624.11 4 the Slum Rehabilitation Authority. After that period, the tenements can be used by the owner for any purpose.” 3. We have also heard Mr. Damle, learned counsel appearing for respondent 4-Sagar Developers, who are developing the said property. He took us through the affidavit filed on behalf of respondent 4. He drew our attention to Regulation 6.1 and submitted that the petitioners are entitled to premises admeasuring 150 sq. feet. The said Regulation reads as under : “6. Relaxations in building and other requirements. 6.1 A multi-purpose room shall be allowed with size upto 12.5 sq. meters with a minimum width of 2.4 meters.” 4. He submitted that all other occupants have shifted to transit accommodation admeasuring 150 sq. ft. However, the petitioners and few others have refused to shift to the transit accommodation due to which the project cannot be AJN 18-OS-WP(L)624.11 5 made operational. It is stalled. 5. In the circumstances of the case, we are not inclined to go into the question as to what should be the area of transit accommodation. We find that the permission of the Slum Rehabilitation Authority and of the Mumbai Municipal Corporation – K/E West Ward was granted in the year 2007. We are informed that as of today, out of 140 occupants, 121 occupants have cooperated with the developer. They have either shifted to the transit accommodation or are taking compensation per month. If the petitioners wanted to challenge the area of the transit accommodation, they should have approached the authorities or adopted appropriate proceedings at the earliest. In fact, in the appeal filed under Section 35 of the Slum Act against the eviction orders, the petitioners did not even raise this ground. This ground is raised for the first time in this court. Mr. Damle, counsel for respondent 4-Developer submitted that if the petitioners shift to the transit accommodation admeasuring 150 sq. AJN 18-OS-WP(L)624.11 6 feet, which is offered to all other occupants, the permanent accommodation would be made available to them as soon as the project is completed. He submitted that all efforts will be made to complete the construction expeditiously. He also submitted that respondent 4- Developer is prepared to enter into registered agreement with all the occupants. This offer is not acceptable to the petitioners. We are, therefore, of the opinion that the petitioners are unnecessarily trying to delay completion of the project. They have approached this court at a belated stage. Entertaining such a challenge which was never raised before, will only delay the completion of the project. Respondent 2 has taken note of this fact and observed in his order dated 21/3/2011 that the petitioners' apprehension of uncertain period of completion cannot be accepted in view of the fact that they themselves have not been co-operating by vacating their structures. In our opinion, respondent 2 has rightly confirmed order dated 13/10/2010 passed by the Deputy Collector (Enc / Rem) and Competent Authority directing AJN 18-OS-WP(L)624.11 7 eviction of the petitioners. No case is made out for interference with the said order. Hence, the petition is rejected. 6. At this stage, counsel for the petitioners seeks stay of this order. Order is stayed for a period of two weeks subject to each of the petitioners filing an undertaking that, should the petitioners not succeed in the special leave petition, they shall, within one week from the date of the order passed on special leave petition, vacate the premises occupied by them and shift to the transit accommodation or vacate the said premises and accept the compensation. The undertakings shall be filed within one week from today. 7. Needless to say that if the undertakings are not filed within one week from today, the stay shall stand vacated automatically. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.]