Oral Judgment:

By an order dated 110.2008 A.M.Khanwilkar, J. noted that a question of law, which I will refer to shortly, arises in the present case. The learned Judge noted that if the question is answered in favour of the Petitioner it could necessarily follow that the impugned action would not have been taken against the Petitioner.

The learned Judge further observed that as a short question is involved, instead of admitting the petition it would be appropriate that it is kept for final disposal at the admission stage. Accordingly, and with the consent of the parties, the Writ Petitions are disposed of finally at the admission stage.

2. Further, the question involved in both the Writ Petitions is common. Both the Writ Petitions are therefore disposed by this common order.

3. There are six Petitioners in Writ Petition No.2225 of 2008 and four Petitioners in Writ Petition No.2239 of 2008. Respondent nos.2 and 3 are The Administrators and Divisional Commissioner, Konkan Division, Mumbai and The Chief Executive Officer, Slum Rehabilitation Authority, Bandra, Mumbai. Respondent no.4 M/s.Shree Gajraj Housing Nirman Pvt. Ltd. is a developer appointed by a Co-operative Housing Society.

4. The Petitioners in both the Writ Petitions have challenged an order dated 29.8.2008 passed by Respondent no.2 upholding an order dated 10.2007 passed by the Deputy Collector (Encroachment and Removal) and Competent Authority, Bandra, Mumbai, under Sections 33 and 38 of the Maharashtra Slum Areas (I.C.&R.) Act, 1971.

5. On 112.2004 Respondent no.4 the developer and the Co-operative Housing Society, made a proposal to the Slum Rehabilitation Authority for a scheme to redevelope the property under Regulation 33(10) under the scheme of the Development Control Regulations, 1991 under the Maharashtra Regional and Town Planning Act, 1966. On 2.2006 the Additional Collector (Encroachment) issued the Annexure II. Upon complying with the provisions, 1054 applications were received alleging that they were eligible to be accommodated under the proposed scheme. The Annexure II is issued in respect of 808 persons who were found eligible. It is important to note that 784 out of these 808 persons found to be eligible, constituting about 97%, gave their consent for the development of the property as per the said proposal.

6. All the six petitioners in Writ Petition No.2225 of 2008 have been found to be eligible whereas, four Petitioners in Writ Petition No.2239 of 2008 have been found to be ineligible. The Petitioners in Writ Petition No.2239 of 2008 have filed appeals before the authorities, which are pending. By this order, I propose protecting their rights in the event of their being found to be eligible ultimately.

7. On 29.5.2006 a letter of intent was issued by the Slum Rehabilitation Authority, which is a planning authority under the Maharashtra Regional and Town Planning Act, 1966, in favour of Respondent no.4. The scheme involves the construction of three rehabilitation buildings. Two of these buildings comprise of a ground and twelve upper floors. The third rehabilitation building comprises of a ground and seven upper floors. The Letter of Intent was revised on 28.2006. On 10.2006 the Slum Rehabilitation Authority, issued the I.O.D. On 110.2006 the commencement certificate was issued.

8. It is important to note that in order to enable the construction of the first rehabilitation building, transit camps were made available and 300 persons have already been shifted to the transit camp. This was part of the first phase which involved construction of the first building. Thus, these 300 persons are already out of their homes, in the said transit camps. The construction of the building has been completed. Certain finishing works remains to be completed and the completion certificate also remains to be issued.

9. To proceed with the next phase, the Petitioners were required to shift from their existing accommodation. They however refused to vacate the