1 wp964-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.964 OF 2011 Vijay Krishna Karete & Ors .. Petitioners versus State of Maharashtra .. Respondents Mr.R.A.Thorat a/w Mr.H.S.Anand i/by Anand Charanbir for the petitioners. Mr.P.N.Patil for respondent No.3. Mr.Dhakephalkar, Sr. Advocate a/w Mr.Chirag Balsara and Mr.Iqbal for respondent No.4. Mr.D.A.Nalawade for respondent No.5. CORAM : S.C.DHARMADHIKARI, J. 06th September 2011. P.C.: . This petition under Article 226 of the Constitution of India, challenges the order of the Administrator and Divisional Commissioner, Konkan Division, Mumbai dated 4th February 2011 dismissing the appeal of the petitioners and confirming the order of the competent authority. 2 The appeal under section 35 of the Maharashtra Slum Areas (Improvement, Clearance and Rehabilitation) Act, 1971 (for short 2 wp964-11.doc Slum Act) was directed against the order of the Assistant Municipal Commissioner, F/North Ward of the Municipal Corporation and the competent authority dated 30th October 2010. From the order itself, it is clear that the Appellate Authority was aware that the issue as to whether the respondent No.4-developer is liable to be removed or should be removed, cannot be decided by the competent authority so also by the Appellate Authority. That is a decision which has to be taken by the Slum Rehabilitation Authority under section 13(2) of the Slum Act. The present status is that the developer has not been removed. 3 The decision/resolution of the Co-operative Society has been challenged before the Co-operative Court and the matter is pending. Presently, there is an Administrator of the Co-operative Society. In these circumstances, when the petitioners and appellants are held to be eligible and will be given permanent alternate accommodation in terms of the policies and rules which are framed by the Authorities, then, they cannot continue at site, but, must move in the transit accommodation or accept compensation in lieu thereof. However, it is argued on behalf of the 3 wp964-11.doc petitioners by Mr.Thorat that the Slum Rehabilitation Authority has not taken any decision on the application made by the Society seeking removal of the developer-respondent No.4 to this writ petition. That application is pending for a long time and if the petitioners are directed to be removed from the site or vacate the premises in their possession and move to the transit accommodation, but, ultimately there is no developer and no development, then, the scheme cannot go ahead. If the scheme cannot go ahead in the absence of any developer, then, there is no point in directing the petitioners eviction or seeking any undertaking from them that they must vacate the premises. In such circumstances, he prays that the petitioners possession in respect of existing premises may be protected till the Slum Rehabilitation Act takes a decision on the pending application for removal of the respondent No.4-developer. 4 Mr.Nalawade, appearing on behalf of the Slum Rehabilitation Authority submits that upon the application that is received by the Society under section 13(2) of the Slum Act, they will have to call for the remarks of the developer and after giving due opportunity to 4 wp964-11.doc all concerned a decision will be taken. The Slum Rehabilitation Authority would require atleast eight weeks from today to take a decision on the application seeking removal of the respondent No. 4-developer. 5 Mr.Dhakephalkar, learned senior counsel appearing on behalf of the respondent No.4-developer submits that whatever may be the outcome of the proceedings before the Slum Rehabilitation Authority and particularly with regard to the removal of the developer, the petitioners cannot resist their eviction and must move out and there are transit accommodations available for them. In that transit accommodation others have moved and the petitioners are merely making an excuse of the pendency of proceedings before the Slum Rehabilitation Authority and buying time to abide by the order of the competent authority. These are nothing, but, delaying tactics and they should not be allowed to obstruct the implementation of the scheme. 6 Having heard the learned counsel appearing for the parties at some length, I am of the opinion that the impugned orders do not 5 wp964-11.doc require any interference under Article 226 of the Constitution of India. A reading of the petition and annexures thereto, leave me in no doubt that the petitioners are not going to be left high and dry. They are beneficiaries of the Slum Rehabilitation Scheme and have been found eligible to the benefits thereof. All that is directed at this stage is that they must move out of the existing premises and shift to the transit accommodation made available by the respondent No. 4-developer or accept the compensation in lieu thereof. Such an arrangement is transitory and interim in nature. By moving out and shifting to said transit accommodations, the petitioners in no way lose their right to get permanent alternate accommodation in terms of the Scheme and all benefits of the Scheme would then follow. It is not as if by moving out of existing premises and enabling them to be demolished, that their rights in any way are jeoparadised or lost. In such circumstances, while upholding the impugned orders, it is directed that the petitioners shall not be forcibly evicted from their existing premises for a period of eight weeks from today. Within such period, the Slum Rehabilitation Authority should take a decision on the pending application seeking removal of the respondent No.4-developer. All contentions and pleas in relation to 6 wp964-11.doc the said application of all parties are kept open. Petition is disposed off. 7 Needless to state that if ultimately the Slum Rehabilitation Authority decides to change the developer or removes the existing developer, then, the petitioners will have to abide by the orders and directions of the Slum Rehabilitation Authority or the competent authority in that behalf subject ofcourse to their legal rights. If the petitioners are called upon to abide by the impugned orders, it would be open for them to urge before the Slum Rehabilitation Authority that as the developer has been removed, there is no question of the petitioners being forcibly evicted from their existing premises. All pleas in relation thereto are also kept open. Equally, if the application of the society seeking removal or change of developer is required, the competent Authority can enforce its order by forcibly evicting the petitioners from their existing premises including by breaking open the locks on their premises. (S.C.DHARMADHIKARI, J)