1 (WP 9810 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9810 OF 2010 Vijay Jagad and Ors. ...Petitioners Vs. The State of Maharashtra & Ors. ...Respondents ----- Mr.Abhay Patki i/b. Mr. Pradip Gaikwad for Petitioners Mr. Anil Singh a/w Rajesh Kachare i/b.M/s. Dahibhavkar & Co. for Respondent No.6 Mr.C.D. Utangale i/b. M/s. Ugangale & Co. for Respondent No.4 Mr.V.A.Thorat , Senior Counsel i/b. Mr. Laxman Kokate for Respondent No.5 Mr.S.N. Bhosale -AGP for Respondent Nos.1, 2 and 3. ----- CORAM: V.M. KANADE J. DATED: 1ST FEBRUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioners and the learned senior counsel appearing on behalf of the Respondent Nos.5 and 6. 2. The Petitioners are aggrieved by an order passed by the Administrator and Divisional Commissioner, Kokan Division, Mumbai in their appeal filed under 35 of the Maharashtra Slum Areas (Improvement, Clearance 2 (WP 9810 of 2010) and Redevelopment) Act 1971(hereinafter referred to as “the said Act”). A scheme was sanctioned and Annexure II was issued on 22nd December, 2006. The Letter of Indent was issued in 2009. According to the learned counsel appearing on behalf of the Respondent Nos. 5 and 6, 23 occupants, out of 30 have already vacated the premises. This is, however, seriously disputed by the learned counsel appearing on behalf of the Petitioners. Thereafter, an eviction notice under section 33 of the said Act was issued against the petitioners herein on 21st December, 2009 and order was passed by the Divisional Commissioner, Kokan Division, Mumbai on 16th September, 2009. The Petitioners challenged the said eviction notice by filing an appeal before the Divisional Commissioner. The Divisional Commissioner again remanded the matter back to the Competent Authority for afresh consideration and the direction was given to decide the eligibility of the Petitioners. The Competent Authority, thereafter, again passed an order, directing the Petitioners to vacate the premises. This order was again challenged by the petitioners by filing the appeal before the Divisional Commissioner. The 3 (WP 9810 of 2010) Divisional Commissioner, however, confirmed the order of the Collector. Being aggrieved by the aforesaid order, the Petitioners have filed this petition under Article 226 and 227 of the Constitution of India. 3. The grievance of the Petitioners is that in appeal, the Divisional Commissioner has directed the Petitioners to vacate the premises and accept the sum of Rs.7,500/- which is offered by the developer and, thereafter, he has directed the competent authority to reconsider the documents submitted by the Petitioners herein and decide within 30 days and make recommendation to the SRA for modification of the Annexure II. It was submitted that for the purpose of determination of the eligibility, the structures have to be in existence and, therefore, the order directing the Petitioners to vacate the structures could not have been passed; and secondly, for the purpose of determination of eligibility. The matter purely between the Petitioners and the competent authority, and Respondent Nos. 5 and 6 were not concerned with in any manner, in the same and till such time, eviction of the premises cannot be ordered. 4 (WP 9810 of 2010) 5. On the other hand, the learned senior counsel for the Respondent nos. 5 and 6 submitted that the Petitioners had initially not joined the scheme, and as a result the provisions of Annexure IV -1.16 will be applicable and, therefore, the Divisional Commissioner had authority to give the said directions. It was submitted that an amount of Rs.7,500/- was offered to the Petitioners by way of compensation. It was submitted that those Petitioner who had found to be eligible, their names would be added to the Annexure II and would be get the permanent alternate accommodation, as provided under the Rules and Regulations. It was submitted that the order passed by the Divisional Commissioner was in accordance with the Rules and Regulations. The learned counsel for the Respondent No.6 submitted that so far as the compensation to Petitioners 1 and 5 is concerned, though the compensation was offered, but the same was not accepted. He submits that he is ready to pay the compensation to them as and when they vacate the premises. 5 (WP 9810 of 2010) 6. After having heard the learned counsel for the Petitioners, and the Respondent Nos. 5 & 6, in order to ensure the presence of the Petitioners to be noted while the structure is in existence, a direction was given by this Court to the Deputy Collector to depute two officers along with two independent persons and to verify whether the Petitioners are in possession of the said structures and prepare a report of inventory and submit the same before this Court on the next date. Accordingly, a report has been prepared and it has been submitted to this Court. The said report be made part of this petition. The parties are at liberty to take out the copy of the said report. In view of this report, now, the fear and apprehension expressed by the Petitioners are of no use, since, now during the existence of the structures, the survey has been conducted. As the Petitioners did not join the scheme, the question whether they are eligible or not is to be decided by the competent authority. However, in my view, till such time, it will not be necessary to stay the development of the project. Though there is a dispute as to whether the other occupants have vacated their premises or not, the fact remains that the LOI was 6 (WP 9810 of 2010) issued in the year 2009 and scheme was sanctioned on 22.12.2006 and, therefore, in my view, no case is made out for granting stay to the order of eviction or interfering with the impugned order passed by the Divisional Commissioner. Needless to mention that the Petitioners will have to be paid the compensation as agreed between the parties for a period of 22 months in advance. Those Petitioners who are declared as ill- eligible, are at liberty to take out appropriate proceedings for challenging the said order and in the event, they succeed in the proceedings taken out by them and are declared to be eligible, even these persons will have to be accommodated. 7. With these directions, the writ petition is disposed of. 8. The learned counsel for the Petitioners seeks stay of this order for a period of two weeks, in order to challenge the said order. Since the scheme was sanctioned in 2006, it would not be appropriate to stay this order for an indefinite period. However, stay for a period of two weeks' time is granted to the Petitioners 7 (WP 9810 of 2010) to enable them to file an appeal in this Court. (V.M. KANADE J.)