WP-LOD-14-11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.14 OF 2011 Dina Asim Tapovan & Ors .. Petitioners Versus Goregaon Siddharth Nagar Sahakari Grih Nirman Sanstha Ltd & Ors .. Respondents Mr.M.M.Vashi i/by P.Y.Shankar for the petitioner. Mr.S.H.Doctor i/by Y.R.Naik for respondent No.1. Mr.G.W.Mattos, A.G.P for the State. Mr.A.A.Kumbhakoni a/w Mr.A.G.Dande, Swati Sagrekar & Sandesh Shukla i/by Legasis Partners for respondent No.3. CORAM: S.C.DHARMADHIKARI, J. DATE : 2nd FEBRUARY 2011 P.C. Heard both sides. Mr.Vashi appearing for the petitioner seeks leave to amend in terms of the draft handed over. Leave is sought to implead some of the occupants/members of the building/structure on the subject immovable property. Amendment be carried out within a period of one week from today. Amendment be carried out in terms of draft amendment and amended copy be served on all parties within this period. WP-LOD-14-11 2 2 This petition under Article 226 of the Constitution of India is directed against the order passed by the Executive Engineer (Housing Ghatkopar Division) of the Maharashtra Housing and Area Development Board which is the unit of the Maharashtra Housing and Area Development Authority. 3 The proceedings that are initiated are under section 95-A of the Maharashtra Housing and Area Development Act, 1976. 4 During the course of arguments Mr.Vashi invited my attention to the averments in the petition and particularly to para 11 wherein it is stated that a writ petition has been filed challenging the re-development scheme itself. That writ petition is pending before a Division Bench of this Hon’ble Court and is scheduled for hearing tomorrow i.e 3rd February 2011. There is another writ petition being Writ Petition Lodging No.2690 of 2010 challenging the re-development scheme sanctioned by the respondent No.2 for Siddharth Nagar. It is stated that two writ petitions and one notice of motion seeking restoration of an earlier writ petition bearing No.1478 of 2009 are all clubbed together. WP-LOD-14-11 3 5 On a query from the Court as to whether this Court can go into rival contentions with regard to the re-development scheme and its validity and legality when, it is not disputed that the same is subject matter of pending writ petitions before the Division Bench both sides fairly stated that these contentions cannot be dealt with in this petition. Further, during the course of arguments I noticed that the contentions of the petitioner while raising a challenge to the proceedings under section 95A of the Act are overlapping and pertain to the merits of the re-development scheme and its feasibility, validity and legality. 6 In such circumstances, I am of the opinion that the present petition need not be kept pending. If the re-development scheme itself is upheld by the Division Bench, then, all the petitioners will have to abide by the orders passed by the Division Bench subject ofcourse to their legal rights to challenge the same in accordance with law. However, to permit them to re-agitate the issues which form part of the Division Bench proceedings even after they are over would only prolong and delay the implementation of the re-development scheme. In such circumstances and to avoid conflicting orders and observations, it would be in the interest of justice to dispose off this writ petition by directing that the respondent No. 2 which is the unit of the Maharashtra Housing and Area Development WP-LOD-14-11 4 Authority will not initiate any steps or act in furtherance of the order and proceedings under section 95A of the Maharashtra Housing and Area Development Act, 1976 and forcibly evict the petitioners from their existing structures for a period a period of eight weeks from the date the Division Bench disposes of the pending writ petitions. 7 I am disposing off this petition as I have concluded that the arguments of both sides are more or less common to the proceedings before the Division Bench, it would not be thereafter fair to deprive the beneficiaries of the re-development scheme and permit the petitioners to raise a challenge to the consequential orders of their eviction and dispossession. Therefore, it would be in the interest of justice to further direct that if the petitioners before me do not succeed in their challenge to the re-development scheme before the Division Bench, then, subject to their legal rights as afore-noted and for the period specified above, they will be permitted to occupy the existing structures but thereafter they will have to hand over vacant and peaceful possession thereof to the respondent No.2 or the competent authority failing which the competent authority can forcibly evict them from the premises including by breaking open the locks and seals thereon. The competent authority can take such assistance if necessary from the local police station, which shall be WP-LOD-14-11 5 rendered to it. 8 In other words, the petitioners on their failure to obtain any favourable orders shall have to hand over physical possession of the premises presently in their occupation and use to the authority as directed above failing which authority can exercise the powers which are set out in the foregoing paragraphs. This is only to ensure that there is no further obstruction, interference and delay in implementation of the scheme. 9 While disposing of this writ petition it is clarified that I have not expressed any opinion on the merits of the contentions and particularly with regard to the legality and validity of the re-development scheme. It is clarified that such of the petitioners to this petition who are not parties to the pending writ petition before the Division Bench will also have to abide by this order and directions and the authorities can exercise the powers referred to above as against them as well. 10 Writ petition is disposed off in the above terms. No costs. (S.C.DHARMADHIKARI, J)