*1* wp.1335.1631.11.903.905.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1335 OF 2011 Swargam R. Ramaswamy and others. ..Petitioners -Versus- The Administrator and Divisional Commissioner, Konkan Division and others. ..Respondents WITH WRIT PETITION (Lodging) NO.1631 OF 2011 Laxman Bhumayya Sambari and others. ..Petitioners -Versus- The Administrator and Divisional Commissioner, Konkan Division and others. ..Respondents .......... Mr.Y.E.Mooman i/b M.B.Gawde, for the Petitioners in both petitions. Ms.T.Puranik, for the Respondent No.2/BMC. Mr.P.K.Dhakephalkar, Senior Advocate a/w Mr.Aftab Diamondwala, Ms.Sheetal Angane i/b Divya Shah Associates, for the Developer. Mr.Prashant Naik, for the Respondent No.3/Society. Mr.J.G.Reddy, for the Respondent No.5/SRA. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 13th September, 2011. P.C.: 1 These Writ Petitions are filed by the Petitioners who are held to be eligible slum dwellers. They are praying for issuance of a writ of certiorari to call for record and proceedings in relation to their appeals and to quash and set aside the orders dated 12.05.2011. By the impugned orders, all that has been directed is that these eligible slum dwellers should shift to the temporary alternate accommodation offered to them in terms of the Letter of Intent or accept compensation in lieu thereof which *2* wp.1335.1631.11.903.905.sxw is determined at Rs.7,000/- per month or else these slum dwellers would forcibly be evicted from the existing premises. 2 Mr.Mooman, learned counsel appearing for the Petitioners, firstly contended that the eligible slum dwellers are being shifted from the existing premises although they are not in any manner obstructing or coming in way of the scheme and its effective implementation. These persons are occupying a portion of the land on which buildings of saleable component are to be constructed and it is not as if the rehabilitation building cannot be constructed because of the Petitioners occupying the existing premises. In such circumstances, their eviction was unnecessary and uncalled for. Further, the Petitioners are being offered temporary alternate accommodation in the premises located at Meenatai Thakeray Flower Market, Near Kamgar Stadium, Senapati Bapat Marg, Mumbai-400013 which premises are not habitable and fit for their occupation. If the premises are not in habitable condition and fit for residence, then, the authorities can make appropriate arrangement including enhancing the compensation in lieu of transit accommodation as was done in the case of slum dwellers forming a part of this very scheme. Reliance is placed on the order passed by Hon’ble Mr. Justice V.M.Kanade on 14.01.2011 in Writ Petition Nos.8881/2010 and 8882/2010. 3 Mr.Mooman submits that the orders passed by the competent authority and the appellate authority do not ensure the availability of permanent alternate accommodation. Therefore, the Petitioners apprehend that they may not get permanent alternate accommodation as assured by the authorities with all necessary amenities. Further, the SRA scheme in this case is vitiated by irregularities and fraud which is being investigated by the competent authorities. Therefore, there is no need to throw out or evict the existing occupants and unsettle them suddenly. For *3* wp.1335.1631.11.903.905.sxw all these reasons, the impugned orders be set aside. 4 Mr.Reddy, learned counsel appearing for the SRA, Mr.Dhakephalkar, learned Senior Counsel appearing for the Developer, so also, Mr.Naik, learned counsel appearing for the Society argue that there is no substance in these Writ Petitions inasmuch as these Petitioners have been held to be eligible and other members of the Cooperative Housing Society of which these Petitioners are members, have vacated their existing premises and shifted to the transit accommodation and/or accepted the compensation in lieu thereof. They have no grievance with regard to the implementation of the scheme nor do they have any apprehension that they will not be given the permanent alternate accommodation as assured in terms of the scheme. Therefore, all submissions and arguments now canvassed are delaying tactics. When substantial number of slum dwellers from the total occupants have been shifted to the transit accommodation, the scheme cannot be obstructed by few slum dwellers. The argument that the Petitioners are occupying the saleable component is not well founded because the plan would indicate that the Developer has to construct the D.P. Road and hand it over to the Corporation and that cuts through the property. Further, if the construction activity has to be undertaken, large number of materials and equipments are to be brought at site and their effective movement and the construction activity will be hampered because of presence of the slum dwellers at site. If the site is vacant, the construction activity can be expedited. For all these reasons and when the competent authority has found no substance in any of these contentions, that this Court should proceed to dismiss the Writ Petitions. 5 With the assistance of the learned counsel appearing for the parties, I have perused the petitions and all annexures thereto including *4* wp.1335.1631.11.903.905.sxw the affidavits placed on record. There is much substance in the contentions of the learned counsel for the Respondents that the Petitioners cannot be allowed to continue at site when none of their rights are in any way affected nor are they prejudiced. They are slum dwellers who are held to be eligible for permanent alternate accommodation. Majority of them have accepted temporary or transit accommodation or have taken monetary benefit as provided by the scheme. They have moved out of the premises enabling the Developer to demolish the premises and it is only the Petitioners who are squatting and continuing at site although the transit accommodation is provided to them and the Developer is also ready and willing to give monthly compensation in lieu thereof to such persons and temporarily rehabilitate them at sites notified in paragraphs 9 and 10 of the affidavit filed on behalf of the Developer. A perusal of the affidavit that has been placed on record on behalf of the Developer would indicate that in paragraphs 8 and 9, the Developer has pointed out that the Slum Rehabilitation Authority sanctioned and approved the transit camp situate at Meenatai Thakeray Flower Market with necessary amenities for this project. If that is not acceptable, then, alternate transit camp can be made available to them within the radius of three kilometres from the site. 6 The request of Mr.Mooman that the compensation of Rs. 7,000/- in lieu of transit accommodation is too meager and therefore, same be enhanced, cannot be granted because the order passed by Hon’ble Mr. Justice Kanade has been rendered in the peculiar facts brought to his notice. His Lordship clarified in further order made on 18.01.2011 in those very petitions that his earlier order dated 14.01.2011 shall not be treated as precedent for the future cases and for the very slum dwellers who are part of the scheme. Therefore, the request to enhance *5* wp.1335.1631.11.903.905.sxw the compensation amount without any material in that behalf, cannot be accepted. If the Petitioners do not wish to shift to the transit accommodation at Meenatai Thakeray Flower Market, they may shift to any of the other accommodations which are made available within the radius of three kilometres of the project site as pointed out in the affidavit of the Developer. If the Petitioners do not wish to claim either of these accommodations as transit accommodations, then, they are free to accept monetary compensation in lieu thereof. However, in no case under Article 226 of the Constitution of India, the Petitioners can be allowed to continue at site and particularly when the impugned orders are not vitiated by an error apparent on the face of record or perversity. The authorities have scrutinized the claims of these Petitioners and held them eligible. Once the eligible slum dwellers have to move out so as to facilitate construction and redevelopment, then, their request either to permit them to continue to occupy the existing premises or enhance the compensation as consideration to vacate the same, cannot be accepted. This would mean that this Court substitutes its opinion with that of the authority in-charge of implementing the scheme. This Court cannot rewrite the agreements which have been executed by parties and which have not been challenged or questioned in any manner. Once solemn assurances and obligations are put in writing, then, it is not for this Court to consider any further matters as they are contractual in nature. When majority of the members of the very Cooperative Housing Society of which the Petitioners are part of, accepted the terms offered by the authorities, as also, by the Developer, then, the Petitioners cannot be permitted by a writ court to make further claims and seek benefits and advantages which are not guaranteed to others in the scheme. Therefore, when others have moved out without any apprehension that their rights are affected, then, *6* wp.1335.1631.11.903.905.sxw the contentions of parties like the Petitioners cannot be accepted. The Writ Petitions will have to be dismissed and are, accordingly, dismissed. 7 The only apprehension remains that the Petitioners may not be offered permanent alternate accommodation because the agreements executed with them are not registered. Some of the agreements are not finalized and executed, are the complaints. After taking instructions from the Developer, Mr.Dhakephalkar makes a statement that irrespective of the fact that whether the agreements are registered or not, each of the slum dweller who is found eligible will be given permanent alternate accommodation and if any agreement remains to be registered, same will be registered within a period of two weeks from today. But, in any case, no eligible slum dweller will be deprived of the scheme, they will be given accommodation on permanent basis on par with others who have moved out and cooperated in the development at site. There will be no discrimination amongst the slum dwellers on the ground that they have challenged the orders in this Court evicting them from the premises. Even the Slum Rehabilitation Authority has assured the Court that the eligible slum dwellers will be rehoused on permanent basis in terms of the scheme and by enforcing the terms and conditions incorporated in the Letter of Intent. Then all the more, this apprehension is not well founded. All statements as above are accepted as undertakings to this Court. 8 In the result, both the Writ Petitions are dismissed. No costs. 9 At this stage, Mr.Mooman prays that the Petitioners should not be forcibly evicted for a period of two weeks at least so as to enable them to challenge this order in a higher court and/or to make alternate arrangement for accommodation. 10 In my view, considerable time has gone and others who are similarly situated are awaiting fruits of the scheme and they are *7* wp.1335.1631.11.903.905.sxw cooperating and have moved out. It has been pointed out repeatedly that despite making available transit accommodation, so also, expressing willingness to make payments, the Petitioners who are held eligible are not coming forward, but keep on making complaints which are found to be false and bogus. Today, more than 1933 slum dwellers have entered into agreements and have vacated and shifted to the transit accommodation. In such circumstances, the request of Mr.Mooman cannot be granted and it is, accordingly, rejected. 11 At this stage, Mr.Mooman, prays for two months time to vacate the existing premises. This request is opposed by Mr.Dhakephalkar and he submits that at the most only two weeks time may be granted because the entire construction activity has been halted. 12 In the facts and circumstances of the case, time of four weeks from today is granted to vacate the premises on the undertakings from the Petitioners to this Court in the following terms being furnished/ filed in this Court within one week from today. The undertakings shall state that:- (a) The Petitioners and their family members alone are in possession and occupation of the premises and that none other has been inducted or shall be inducted nor the premises would be transferred or parted with possession. (b) The Petitioners together with their family members shall vacate the existing premises before 11th October, 2011 so as to facilitate the redevelopment project. (c) If the Petitioners fail to vacate the existing premises and handover vacant and peaceful possession thereof by 11th October, 2011, the competent authority shall be at liberty to execute the eviction order, if required, with *8* wp.1335.1631.11.903.905.sxw due police protection. (d) The Petitioners are agreeable to shift themselves, either to the transit accommodation, which is being provided by the Developer, or if it is not suitable to them, to shift themselves to any other accommodation which is made available by the Developer within a radius of three kilometres. (e) If the Petitioners do not wish to avail of either the transit accommodation or the accommodation being provided to them by the Developer as mentioned in clause (c) above, then, the Petitioners may accept the monetary compensation in lieu thereof from the Developer. 13 It is clarified that this protection/extension will be available only to those Petitioners who give the undertaking as aforesaid within the stipulated time. (S.C. Dharmadhikari, J)