New Janta Sra Chs Ltd.Secretary Of Ashok ... vs State Of Maharashtra Through, The High ... on 26 September, 2019

[Cites 102, Cited by 1]

Bombay High Court

New Janta Sra Chs Ltd.Secretary Of Ashok ... vs State Of Maharashtra Through, The High ... on 26 September, 2019

Equivalent citations: AIRONLINE 2019 BOM 1091, 2019 (6) ABR 679

1. This is a case of a sizable chunk of State Government's land, abutting the sea situated at Mahim within the Mahim Bay at Mumbai, occupied by slums. The Government however is nowhere in the scene, either to remove the slums or to rehabilitate the slum dwellers. Eventually the slum dwellers stepping into the shoes of their sentinel, decided to redevelop this land by appointing a developer in 2006. Thereafter, it has been rounds and rounds of litigation before different forums and twice before this Court. The reason being obvious, there being two groups of slum dwellers and two rival developers, having strong commercial interest considering the nature of the land and probably its proximity to the sea. The Government as also the different authorities under it, in the scheme of things, seem to be silent spectators, to the happenings between the slum dwellers and different developers. It is a sorry state of affairs for the slum dwellers, when their genuine interest stand superseded by extraneous interest. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 :::

pvr 6 final New Janata.doc It, however, needs to be acknowledged that the ingenuity of the parties and prolixity has sprouted some legal issues, a legal appetite at the bar and surely in the circumstances, not a very heartening task for the Court, albeit the erudition and scholarship at the bar in arguing these issues.

Challenge

2. These are two petitions filed under Article 226 of the Constitution of India. Writ Petition no.2349 of 2018 is filed by New Janta SRA CHS Ltd. challenging two orders, first impugned order being an order dated 17 May 2016 passed by the Chief Executive Officer, Slum Rehabilitation Authority (for short 'the CEO-SRA') rejecting its application for change of developer made under Section 13(2) of the Maharahstra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short 'the Slums Act'). This order of the CEO- SRA was challenged by the petitioner before the Apex Grievances Redressal Committee, constituted under the Slums Act (for short 'the AGRC"). By the second impugned order dated 11 January 2018, the AGRC has confirmed the order passed by the CEO SRA rejecting the petitioner's application no.110 of 2016 as also dismissed petitioner's ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 7 final New Janata.doc another application whereby the petitioner had inter-alia prayed that the Letter of Intent (for short 'the LOI') issued by the Slum Rehabilitation Authority (for short 'the SRA') in favour of respondent no.5-Shree Nidhi Concept Relators Pvt. Ltd. , as the developer for the slums scheme, be set aside.

3. The second petition (Writ Petition no.2285 of 2018) is filed by M/s.SLK Buildcon Pvt.Ltd., the new developer who was appointed by the petitioner-New Janta, to replace Respondent No. 5, who has also challenged the said impugned orders of the CEO-SRA and the orders as passed by the AGRC, as challenged in the first petition. The challenge in both these proceedings being common, these petitions were heard together and are being decided by this common judgment. Petitioner's Case

4. The factual antecedents giving rise to the dispute between the parties as contended by the petitioner are required to be noted. For convenience, reference is made to the facts, on record of the petition filed by New Janta SRA Co-op. Housing Society Ltd (proposed). The parties are referred as arrayed in the said writ petition. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 :::

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5. The petitioner- New Janta SRA Co-op. Housing Society Ltd (proposed) is a society formed by the slum dwellers on the land in question. Respondent no. 5- Shree Nidhi Concept Relators Pvt. Ltd is company incorporated under the Companies Act 1956, and was appointed by the petitioner as a developer to undertake the slum rehabilitation scheme, for the petitioner. Respondent No. 7 is- SLK Buildcon Pvt Ltd who is sought to be appointed by the petitioner to replace respondent no. 5. Respondent no 8 and 9 are also proposed co- operative societies of the slum dwellers on the adjoining lands and who have joined the petitioner to form a composite slum rehabilitation scheme.

6. The controversy in the present proceedings concerns the redevelopment of slums as per Regulation 33(10) of the Development Control Regulations for Greater Bombay (for short 'DCR 33(10)') framed under the Maharashtra Regional Town Planning Act, 1966, on land belonging to the Government of Maharashtra (Collector's land) being Plot bearing C.S.no.1500(Pt), 2116(Pt) and 2124 (Pt) in aggregate admeasuring about 20465.72 sq.meters. which was notified as slums under Section 4 of the Slums Act and occupied by about 1263 slum dwellers. The slum dwellers on these plots have formed three ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 9 final New Janata.doc societies namely the petitioner - New Janta SRA CHS Ltd., respondent no.8-Nav Kiran CHS and respondent no.9 - Hind Ekta CHS.

7. These societies passed separate resolutions in June 2006 in their respective General Body Meetings appointing respondent no.5- Nidhi Concept Realtors Pvt. Ltd. as a developer and respondent no.6- Ms.Sheetal Nikhare, as the architect to undertake and implement a slum rehabilitation scheme (for short 'a Slum Scheme'). This slum scheme concerns a larger land involving all the said three societies. The slum scheme was to be initially undertaken on C.S.No.1500 (Pt) admeasuring about 6876.26 sq. meters as per the provisions of DCR 33(10).

8. In pursuance of the said General Body Resolutions, these societies entered into separate development agreements dated 17 October 2006 with respondent no.5 as also executed necessary power of attorney in favour of respondent no.5 to undertake the slums scheme.

9. Respondent no.5 through respondent no.6 on 27 August 2008 submitted a proposal with the SRA to implement a composite ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 10 final New Janata.doc scheme under DCR 33(10) for the said three societies on plot C.S.No.1500 (Pt).

10. In December 2009 a revised proposal was submitted by respondent no.5 by amalgamation of the area of C.S.no.2124 (pt) and 2116 (pt) admeasuring about 13478.32 sq.meters, in the slum scheme submitted on 27 August 2008 (aggregating to about 21354.58 Square meters (referred to as 'larger land'). The petitioner contends that respondent nos.5 and 6, however, did not take any further steps for the next several years, not even for the purpose of verification of eligible and non-eligible slum dwellers. The petitioner has contended that after about four years of the appointment of respondent nos.5 and 6, on 8 June 2010 the Deputy Collector and the Competent Authority, issued a certified Annexure II for a total of 1263 slum dwellers in the three societies, out of which 804 slum dwellers were found to be eligible slum dwellers. The details of which are as under:-

                   Society             Total Slum Dwellers       Eligible Slum
                                                                 Dwellers
                   New Janta SRA       669                       400
                   CHS (Petitioner)
                   Nav Kiran CHS       294                       204
                   (Respondent No.8)
                   Hind Ekta CHS       300                       200
                   (Respondent No.9)
                   Total               1263                      804




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11. It is the petitioners' case that after the issuance of Annexure II in June 2010, till April 2014 no concrete steps were taken by respondent no.5 for implementation of the slum rehabilitation scheme on the larger land, creating a belief in the slum societies that respondent no.5 lacks capability to implement the slum scheme on the larger land. The petitioner has contended that to misguide all stakeholders, respondent no.5 however, furnished an undertaking dated 10 April 2014 to the petitioner that it would obtain a 'Letter of Intent' (LOI) to implement the slum scheme latest by 30 June 2014 and in the event, it fails to do so, it would resign as a developer and would withdraw from the subject scheme.

12. The petitioner however on 15 June 2014 passed a resolution in its general body meeting removing respondent no.5 as developer, for the reason that since its appointment in 2006 respondent no.5 has caused an inordinate delay to implement the slum scheme, on the larger land, despite an undertaking furnished by respondent no.5 on 10 April 2014 that a LOI would be obtained by 30 June 2014. In the said general body meeting the petitioner decided to appoint SLK- Buildcon Private Limited-respondent no.7 (petitioner in the companion petition) as a new developer to undertake implementation of the slum scheme. The petitioner also entered into a development agreement ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 12 final New Janata.doc with the new developer and executed a power of attorney in its favour. Respondent no.5 was accordingly informed of the said decision. By petitioner's letter dated 27 June 2014 the decision of the petitioner removing respondent no.5 and appointing respondent no.7, was also communicated to the CEO SRA, with a request to remove respondent no.5 as a developer of the society. The petitioner has contended that the petitioner's decision dated 15 June 2014 removing respondent no.5 and 6 as the developer was not challenged by respondent nos.5 and 6 before any authority at any time and thus has attained finality.

13. The petitioner contends that, the other two societies, also passed general body resolutions on 19 May 2014 and 22 June 2014 terminating the appointment of respondent no.5 as a developer. However, this was not accepted by respondent nos.8 and 9 who has stated that it was only one faction of the slum dwellers, who passed such a resolution and that respondent no.8 and 9 are supporting re- development by respondent no.5.

14. The petitioner has stated that respondent no.5 despite being aware of its removal on 6 June 2014, nonetheless submitted an application with the SRA for issuance of a Letter of Intent (LOI), necessary to implement the slum scheme. It is stated that this was done ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 13 final New Janata.doc on false documents showing the support of the societies and that in fact it was a fraud played by respondent no.5.

15. The CEO-SRA, on 11 July 2014 made an endorsement on the first draft-report for issuance of an LOI directing the Assistant Registrar of the Co-operative Societies to hold general body meeting of the society to ascertain whether respondent no.5 had continuous consent of more than 70% of the eligible slum dwellers or otherwise. The Assistant Registrar accordingly by his communication dated 15 July 2014 directed the Societies to call for a General Body Meeting of all the eligible slum dwellers, to elect the Chief Promoter and the Managing Committee members and to consider whether respondent no.5 had the consent of more than 70% of the eligible slum dwellers.

16. Some of the slum dwellers being aggrieved by the said communication of the Assistant Registrar approached the Divisional Joint Registrar of Co-operative Societies, in a Revision Applications. These revisions were allowed by the Divisional Joint Registrar by an order dated 11 September 2014, who set aside the said communication dated 15 July 2014 of the Assistant Registrar.

17. The petitioner and some of the members of the society being aggrieved by the order dated 11 September 2014 passed by the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 14 final New Janata.doc Divisional Joint Registrar, filed writ petitions before this Court. By an order dated 18 December 2014 passed in a batch of writ petitions (Writ Petition No.8412 of 2014 and others) the writ petitions were allowed, upholding the communication dated 15 July 2014 issued by the Assistant Registrar which was issued in pursuance of CEO-SRA's letter dated 11 July 2014.

18. In pursuance to the orders of this Court, the Assistant Registrar issued a letter dated 13 January 2015 directing the petitioner to conduct a fresh general body meeting. Another letter dated 19 January 2015 came to be issued by the Assistant Registrar informing the petitioner that the subject of the proposed general meeting would not be to change the developer, but after electing the Chief Promoter to ascertain if respondent no.5 had the support of more than 70% of the eligible slum dwellers. Further a letter dated 23 January 2015 was issued by the Assistant Registrar directing the petitioner to hold General Body meeting on 8 February 2015/9 February 2015 listing out the subjects to be placed before the General Body.

19. Respondent no.5 being aggrieved by the said direction of the Assistant Registrar to hold a general body meeting, as also some slum dwellers who also felt aggrieved by the said communication, filed ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 15 final New Janata.doc applications before the High Power Committee (for short 'HPC') on 20 January 2015 challenging not only the notice for holding general body meeting on 8 February 2015 but also challenged, the direction dated 11 July 2014 of the CEO SRA to hold a general body meeting. In the said application respondent no.5 also prayed for directions to the CEO SRA to issue a Letter of Intent (LOI) in its favour.

20. The HPC, on hearing the parties, by its order dated 27 February 2015 allowed the application filed by respondent no.5, by setting aside the decision of the CEO-SRA, whereby the Assistant Registrar was called upon to hold a general body meeting of the petitioner to ascertain support of 70% slum dwellers to respondent no.5. The HPC held that there was no willful delay on the part of respondent no.5 and the LOI at the behest of respondent no.5 should be processed further.

21. The petitioner being aggrieved by the above decision of the HPC filed Writ Petitions (WPL 673 of 2015 and WPL 674 of 2015) before this Court interalia contending that appointment of respondent no.5 as a developer, was unanimously terminated by the petitioner on 15 June 2014 in its general body meeting. It was contended that it was also terminated by the other two societies for the reason of inordinate ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 16 final New Janata.doc delay on the part of respondent nos.5 and 6 in undertaking the slum scheme and it was so intimated to the CEO-SRA. It was contended that out of 400 eligible slum dwellers more than 70% of the slum dwellers had submitted to the CEO-SRA duly sworn affidavits confirming the removal of respondent no.5 thereby withdrawing their consent to the appointment of respondent no.5. This Court by an order dated 21 September 2015 dismissed the said writ petitions however, permitted the SRA to take a decision uninfluenced by any observations and conclusions in the impugned order of the HPC and the said orders passed by the High Court. In paragraph 30, 33, and 34 this Court observed thus:-

"30. ... ...... It has also found that there is a procedure laid down for the change of developers under the slum rehabilitation scheme. Moreover the CEO could have taken action u/s. Maharashtra Slum Area Act,1971."

33. We do not read Paragraphs 11 and 12 of the impugned order in the manner suggested by Mr.Dhakephalkar and Mr.Khambata. We do not think any mandate flows from the observations and findings of the HPC or that the SRA is therefore bound to issue the LOI. These observations must be read in context and if so read, we are of the opinion that they are made in the course of reminding the SRA about its duties and functions in law. Beyond that, the HPC has not done anything. In Paragraph 12 of the impugned order the HPC has reminded the SRA that the main object of implementation of Slum Rehabilitation Scheme is to uplift/improve the standard of living of the slum dwellers who are staying in slums for years together and if the proposal is delayed, the valuable rights of the slum dwellers for improvement of their dwelling conditions would be defeated and the very purpose of the Slums Act would fail and will be frustrated. We clarify that such observations will not bind the SRA when it is taking a decision on the application submitted by Respondent No.8. If the SRA is the final decision making authority and such power vests in its, then no court, tribunal or committee can control or regulate it. None can ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 17 final New Janata.doc direct the SRA to take a particular decision in a particular manner. There is enough guidance for the SRA in provisions of Slums Act,Rules, DCR etc. Further the object and purpose of the Act is known to the SRA. Eventually, the decision is to be taken by its highest executive functionary. The SRA is the statutory authority and therefore, must take an independent decision uninfluenced by any observations made in any order. Therefore, the impartiality and independence is expected from it. In such a situation there is no basis for the apprehensions expressed by the learned Senior Counsel for the Petitioner"

34. We accordingly hold that the SRA will take a decision uninfluenced by any observations and conclusions in the impugned order and including an order of this Court."

(emphasis supplied)

22. Petitioner contends that by the above order of this Court all issues were left open to be decided by the CEO SRA. The petitioner thus contends that the said order did not conclude any issues on the inordinate delay on the part of respondent no.5 in implementing the slum scheme nor the said order concluded any issue on the consent of the 70% slum dwellers to the appointment of respondent no.5. It is stated that no issue in regard to the capability of respondent no.5 was gone into by the High Court in passing the said order and all these issues were left open to be decided by the SRA.

23. In pursuance of the said order dated 20 September 2015 passed by this Court, the petitioner moved an application dated 10 October 2015 before the CEO-SRA under Section 13(2) of the Slums Act, interalia praying to terminate the appointment of respondent no.5, ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 18 final New Janata.doc as the developer, owing to inordinate delay caused by respondent no.5 in implementation of slums scheme on the larger land and praying that the application dated 6 June 2014 filed by respondent no.5 for issuance of LOI and for implementation of the slum scheme be rejected.

24. The CEO SRA thereafter passed an order dated 17 December 2015, thereby directing the Assistant Registrar to conduct a fresh election of all the three societies to elect the managing committee members and once the "managing committees" of these societies are elected, then such "managing committees" elected by the majority of the slum dwellers, will take appropriate decision in respect of the slum rehabilitation scheme.

25. The CEO SRA also by his letter dated 29 September 2015 informed the Principal Secretary, Housing Department, Government of Maharashtra that without holding fresh elections of these three societies, it was not possible to consider the prayers as made in the application for change of developer since there were rival factions within three societies and it was not clear which faction has majority support of the eligible slum dwellers. Petitioner has stated that although on one hand the CEO SRA initiated the process of conducting fresh elections to the Managing Committee by directing the Assistant ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 19 final New Janata.doc Registrar, however, on the other hand the SRA arbitrarily issued a letter of intent dated 5 February 2016 in favour of respondent nos.5 and 6 as a developer and architect respectively to undertake slum redevelopment of the three societies. This was done without awaiting the outcome of the elections of the three societies. However, although the LOI was issued on 5 February 2016, it was specifically mentioned in the LOI as under:-

"41. This LOI will have no bearing whatsoever on any parallel proceedings under any section of the Maharashtra Slum Areas (I.C. A & D. R) Act, 1971"

26. The petitioner contends that there was no legal bar for the CEO SRA, to take steps to decide petitioner's application dated 10 October 2015 submitted under Section 13(2) of the Slums Act, as also for invalidating the LOI. It is contended that respondent no.5 also could not have claimed any equity on the ground of the LOI being issued and/or to assume a position that there was any approval of the SRA for continuation of respondent no.5 as a developer. Petitioner contends that anything done by respondent no.5 in pursuance of the LOI including making any expenditure on any count, could not have created any equities in favour of respondent no.5 as the LOI itself was conditional.

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27. Accordingly, between 17th to 20th March,2016 elections of the three societies were held in the presence of the Assistant Registrar, whereby the Chief Promoter of the three societies were elected.

28. Consequent to the said elections, the petitioner again passed a resolution dated 26 March 2016 in its managing committee approving the general body resolution dated 15 June 2014 removing respondent no.5 as developer on the ground of inordinate delay on the part of respondent no.5 in implementing the slums scheme and/or inaction for past several years.

29. In pursuance of the managing committee resolution, the petitioner moved another application dated 15 April 2016 with the CEO SRA under Section 13(2) of the Slums Act interalia praying for removal of respondent no.5 as developer and in the alternative for carving out petitioner's plot of land to be developed independently. This application of the petitioner was stated to be supported by the affidavits of 300 slum dwellers out of the total 400 slum dwellers. On 5 May 2016 the CEO SRA heard all the parties on the petitioner's application under Section 13(2) and reserved orders.

30. The CEO SRA by the first impugned order dated 17 May 2016 dismissed the petitioner's application interalia holding that there ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 21 final New Janata.doc was no willful delay on the part of respondent no.5. It was observed that the general body resolution of the Petitioner-society dated 15 June 2014 terminating respondent no.5 as the developer was passed at the instance of the rival developer who wanted to take over the slum scheme so as to take benefit of the decision taken by the Maharashtra Coastal Zone Management Authority in its meeting dated 31 January 2014 whereby the said authority held that land beyond 100 meters CRZ line from the high tide line of Mahim Bay and creek, will not fall under the ambit of CRZ notification of the year 2011. The petitioner has contended that the impugned order dated 17 May 2016 was passed by the CEO SRA also taking into consideration certain documents that were filed by respondent no.5 under the cover of its letter dated 8 May 2016, after the hearing of the Section 13(2) application was closed by the Chief Executive Officer-SRA on 5 May 2016. It is stated that on 9 May 2016 respondent no.5 surreptitiously placed on record the following documents:-

"i. Letter dated 28th July,2009 addressed by the Respondent No.6, M/s.S.S.Associates Architect & Interior Designer to Additional Collector.

ii. Letter dated 06th March,2010 addressed by M/s.S.S.Associates Architect & Interior Designer to Additional Collector.

iii. Copy of GBR dated 07.05.2014 of New Janta CHS. iv. Copy of GBR dated 03.05.2014 passed by Hind Ekta CHS.

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                  v.       Copy of GBR dated 04.05.2014 passed by Nev Kiran
                  CHS.
                  vi.      Copy of the minutes of the decision of the HPC dated
                  05.03.2016.

31. According to the petitioner these documents, as placed on record by respondent no.5 on 9 May 2016 are forged and fabricated and were submitted with malicious intention of falsely demonstrating before the SRA, that respondent no.5 has support of requisite number of slum dwellers. It is contended that these documents were never part of the record till 9 May 2016, also they were never referred during the oral arguments. It is contended that respondent no.5 had not given any justification for not producing the said documents in any of the earlier proceedings. It is contended that some persons shown to have signed the resolutions dated 3 May 2014, 4 May 2014 and 7 May 2014 have already expired. It is contended that this was more pertinent as this Court in its order dated 18 December 2014 passed in Writ Petition 8412 of 2014 had observed that the development agreement with respondent no.5 was terminated by the petitioner as per resolution in the general body meeting dated 15 June 2014. It is contended that when it was so observed by the High Court respondent no.5 never felt need to refer to the existence of the said resolution dated 3 May 2014, 4 May 2014 and 7 May 2014 before the High Court. It is contended that the purported ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 23 final New Janata.doc general body meetings held on 3 May 2014, 4 May 2014, 7 May 2014 were only attended by 550 members out of total strength of 1258 members. Petitioner also contends that these resolutions have no sanctity inasmuch several persons signed twice and several persons whose names were present in certified annexure-II had put their signatures, for which there was no justification in facts and in law.

32. On the above backdrop the petitioner being aggrieved by the order dated 17 May 2016 passed by the CEO SRA approached the AGRC in two separate applications (Application 83 of 2016 and application 110 of 2016). By application no.83 of 2016 the petitioner interalia prayed for quashing of LOI dated 5 February 2016 issued by the SRA in favour of respondent nos.5 and 6. By application no.110 of 2016, the petitioner prayed for quashing of the order dated 17 May 2016 passed by the CEO-SRA on the petitioner's application under Section 13(2) of the Slums Act.

33. Also an additional affidavit dated 7 July 2016 was filed by the petitioner before the AGRC highlighting the illegalities of respondent no.5. The petitioner contends that during the pendency of the proceedings before the AGRC, the petitioner discovered some startling facts which showed respondent no 5, playing a fraud on the authorities, namely that respondent no.5, had in fact transferred its ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 24 final New Janata.doc entire shareholding to one Omkar Realtors in the year 2015-16 without obtaining permission of the SRA. Petitioner contends that this was sufficient to render the LOI issued in favour of respondent no.5 to be non-est and void ab initio. It is submitted that transfer of shares was effected gradually and in the manner as set out in paragraph 28(w) of the petition, which reads thus:-

"i. At the time of incorporation of Respondent No.5 in September,2006, the authorized share capital was Rs.1,00,000/- lakh divided into 10,000 shares held by Mohanlal Senghani and Chandulal Senghani ("Senghanis") ii In 2008, the authorized share capital was increased to Rs.5,00,000/-.

iii Mr.Paras Porwal was introduced as a shareholder with the increase in shareholding by 50,000 shares. iv The Senghanis sometime in March,2015 sold their entire shareholding in respondent No.5 to one Ronie Porwal. v On 25.01.2016 (around one week prior to issuance of the LOI on 05.02.2016) around 1,24,50,000/- shares of face value of Rs.12,45,00,000/- were issued to Omkar Realtors. vi. On 27.07.2016, another 51,00,000 shares of face value of Rs.5,10,00,000/- were issued to Omkar Realtor in Respondent No.5, thereby taking the shareholding of Omkar Realtor in Respondent no.5 to 99.44%."

34. The petitioner contends that respondent no.5 thus not only assigned and transferred complete control of respondent no.5 to Omkar Realtors but effectively transferred the entire slum scheme to Omkar Realtors which was impermissible in law being in derogation of DCR 33(10) read with Appendix IV. The petitioner in these circumstances filed an other affidavit dated 17 November 2016 before the AGRC bringing the facts to the notice of AGRC.

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35. The AGRC hearing the parties on the said application filed by the petitioner and on all the issues so urged, by the second impugned order dated 11 January 2018, confirmed the orders passed by the Chief Executive Officer, SRA, dismissing both the said applications of the petitioner.

36. The petitioner being aggrieved by the said order dated 17 May 2015 passed by the Chief Executive Officer, SRA as confirmed by the AGRC by the impugned order dated 11 January 2018, has filed the present petition interalia praying for the following reliefs.

"(a) Issue a writ of certiorari or any other similar writ quashing/setting aside the common order dated 11.01.2018 Exh.'A' passed by the High Power Committee, Govt. of Maharashtra dismissing the Application No.83 of 2016 (seeking quashing of the aforesaid LOI dated 05.02.2016) and Application No.110 of 2016 (seeking quashing of the order dated 17.05.2016) filed by the Petitioner/Applicant Society;

and

(b) Allow the prayers made by the Petitioner/Applicant Society before the HPC in Application No.83 of 2016 and Application No.110 of 2016, including but not limited to:

i. Quashing/setting aside the Letter of intent (LOI) dated 05.02.2016/revised LOI dated 08.03.2017 issued by the SRA in favour of Respondent No.5 and 6 for implementation of Slum Rehabilitation Scheme in respect of land admeasuring about 20,

465. 72 sq. meters comprising CS Nos. 1500 (pt), 2116 (pt) and 2124 (pt) in Mahim Division, Mumbai; and ii. Quashing/setting aside the order dated 17.05.2016 passed by the CEO/SRA and allow the application dated 15.04.2016 filed by the Petitioner/Applicant Society u/s. 13(2) ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 26 final New Janata.doc of the Slums Act by granting the prayers made therein; and

(c) Pass an interim/ad-interim order staying the operation of the impugned orders dated 11.01.2018 (being Exhibit A) and the order dated 17.05.2016 passed by the CEO, SRA pending the hearing and final disposal of the present petition; and

(d) Pass an interim/ad-interim order staying the LOI/revised LOI issued by the SRA to Respondent Nos.5 and 6 and direct the SRA not to issue any further permission/sanction etc. to Respondent Nos.5 and 6 in respect of the Slum Rehabilitation Scheme on the Larger Land, pending the hearing and final disposal of the present petition; and restrain respondent No.5 from carrying out any further work on site & restrain Respondent No.5 from taking any moneys towards the said scheme from investors / financial institutions.

(e) Pass any other order as this Hon'ble Court may deem fit in the facts and circumstances of the case."

As noted above, SLK Buildcon is also before the Court in the companion petition, assailing these orders passed by the CEO-SRA and AGRC. Case of the Slum Rehabilitation Authority (Respondent Nos.2 to 4):-

37. On behalf of the Slum Rehabilitation Authority (respondent nos.2 to 4), a reply affidavit of Mr.Padmakar Rokade, Deputy Collector is filed supporting the decision of the CEO-SRA as also the AGRC. The SRA has contended that it is a planning authority for implementation of slum rehabilitation project as established under the provisions of Chapter I-A of the Slums Act, constituted with aims, object and functions of implementing the slums rehabilitation schemes/ projects in the Mumbai City and suburban district and to provide ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 27 final New Janata.doc permanent alternate accommodation to the eligible slum dwellers free of cost and without consideration as per slum rehabilitation scheme. It is stated that the slum dwellers, residing on the plot of land in question admeasuring 7876 sq.meters had formed the said three societies as noted above, and these societies in their respective general body meeting held on 3 June 2006, 9 June 2006 and 15 June 2006 had appointed respondent no.5 as their developer for implementation of the slum scheme on the said land under the amended Development Control Regulation (DCR) 33(10). It is stated that the societies also executed respective development agreements, power of attorneys, and common as well as individual consents in favour of respondent no.5. That respondent no.6-architect had submitted a slum scheme proposal in respect of the subject property with the SRA which was complete in all respect, and was duly accepted by the office of SRA on 27 August 2008. Accordingly, as per the procedure a computerized number was issued and LOI scrutiny fee of Rs.5555/- was also paid. It is stated that on a representation dated 29 September 2008, of the architect-respondent no.6 as made on behalf of respondent no.5, the Government of Maharashtra/Revenue and Forest Department issued directions on 28 July 2009 to the Collector, Mumbai City to carry out survey of the subject property and accordingly, after the survey of the subject property, C.S.Number was given to the subject property being ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 28 final New Janata.doc C.S.No.2124(pt) which is situated between C.S.No.1500(pt) and C.S.No.2166(pt). It is submitted that after numbering of the property as C.S.no.2124(pt), the members of the said three societies held general body meetings on 23 August 2009 and resolved that the remaining 827 slum dwellers residing on the adjacent plot of land admeasuring 13478 sq.meters bearing C.S.No.2116(pt) and 2124(pt) shall also join the slum scheme alongwith the slum scheme earlier submitted on 27 August 2008 for 502 slum dwellers residing on the plot of land admeasuring 7876 sq.meters bearing C.S.no.1500 and thus, the slum scheme was submitted for larger portion of the subject property admeasuring about 21354 sq.meters collectively. It is stated that thereafter respondent no.6-architect and respondent no.5 submitted a proposal for amalgamation of the land of the said three societies with additional slum dwellers. The total slum dwellers would be 480 slum dwellers of the petitioner, 211 slum dwellers of Nav Kiran SRA CHS (proposed) and 136 slum dwellers of Hind Ekta SRA CHS (proposed), including those residing on the adjacent plot of land bearing C.S.no.2166 (pt) which is contiguous to C.S.no.1500(pt). The earlier proposal was in respect of 502 slum dwellers. It is stated that the said proposal was submitted alongwith the revised draft Annexure- II and the revised slum plan. This proposal for amalgamation was accepted by the office of the SRA, since it was complete in all respect. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 :::

pvr 29 final New Janata.doc Respondent no.5 also paid additional LOI scrutiny fees on 4 December 2009.

38. The SRA has stated that the Executive Engineer/SRA forwarded revised draft Annexure-II consisting of 1329 slum dwellers alongwith the revised slum plan to the Deputy Collector/SRA and who in turn by letter dated 4 February 2010 forwarded the same to the Additional Collector, Mumbai City. It is stated that the Additional Collector then forwarded the same to the Deputy Collector (Encroachment & Rehabilitation) and the Competent Authority, Dharavi Division, Mumbai, since the subject land belonged to the State Government. It is stated thereafter the Deputy Collector and the Competent Authority on 8 June 2010 issued certified Annexure-II qua the three societies, artifying that there are 1263 slum dewellers and out of which 804 slum dwellers were declared as eligible for allotment of a permanent alternate accommodation. Also that out of said 804 eligible slum dwellers 658 that is 82% gave their consents in favour of respondent no.5 to be the developer. It is stated that as per 669 slum dwellers were found residing on the property of New Janta SRA CHS (proposed) and out of which 400 were declared as eligible, while 294 slum dwellers were found residing on the property of Nav Kiran SRA CHS (proposed) out of whom 204 were declared as eligible and in so ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 30 final New Janata.doc far as respondent no.9-Hind Ekta SRA CHS (proposed) was concerned, 300 slum dwellers were found residing there and out of which 200 were declared as eligible. It is stated that as per the said certified Annexure-II the subject property/land was admeasuring 21315 sq.meters as owned by the Government of Maharashtra and it is a censused slum.

39. The SRA has stated that as per LOI report of the Engineering Department of SRA dated 4 July 2014, the area of the subject property was admeasuring 20465 sq.meters and was affected by major 60.8 wide D.P. Road, leaving area admeasuring 13338 sq.meters and after deducting the said D.P. Road area, the net plot area was admeasuring only 7126 sq.meters and out of which 30% of the plot is affected by Metro-III project and thus the actual plot area for implementation of slum scheme on the subject property was only 4988 sq.meters and the subject property was also affected by CRZ and all these aspects were affecting the viability of the Slum scheme. It is stated that the LOI report also states that from Mahim to Dadar, coastal area has been declared as Bay and which was reducing the CRZ line from 500 meters to 100 meters. It was stated that the subject plot of land was expected to be free from CRZ line consequent to the order passed by this Court on 15 November 2013 in Writ Petition No.327 of ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 31 final New Janata.doc 2013 (Deepak Rao Vs. State of Maharashtra), in pursuance of which the Maharashtra Coastal Zone Management Authority passed a resolution in its meeting on 31 January 2014 that land beyond 100 meters CRZ line on the high tide line of Mahim Bay and creek will not fall under the ambit of CRZ Notification of the year 2011. It is stated that considering all these aspects, the CEO-SRA in the impugned order dated 17 May 2016 passed on Section 13(2) application of the petitioner held that in view of the hurdles and due to the provisions of CRZ and reservation of D.P. Road and other various reservations on the subject property, delay has been caused in implementation of slum scheme on the subject property, and the delay cannot be attributed to the said developer. It is stated that the CEO-SRA therefore, rejected the application filed by the petitioner and other societies for termination of the appointment of respondent no.5 as developer. It is stated that CEO- SRA has rightly come to a conclusion that in the General Body meetings of the three societies of the slum dwellers held on 3 May 2014, 4 May 2014 and 7 May 2014 respectively, the said societies reaffirmed the appointment of respondent no.5 as their developer. It is stated that the documents submitted by respondent no.5 were part of SRA records and therefore, there is no violation of principle of natural justice. Referring to the decision of the AGRC, it is stated that the AGRC followed principles of natural justice by granting an opportunity of hearing to ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 32 final New Janata.doc the petitioner on all the documents. It is submitted that by following due process of law the SRA had issued a LOI pm 5 February 2016 in favour of and other necessary permissions like IOD (dated 28 June 2016) and C.C. (dated 22 February 2018) for the Slum Scheme in question. It is stated that considering all these facts, the CEO-SRA passed an order dated 17 May 2016 rejecting the application filed by the petitioner and other societies under Section 13(2) to terminate the appointment of respondent no.5 as developer and declined to approve the appointment of respondent no.7 as new developer. It is stated that the order passed by the AGRC being a well reasoned order has appropriately confirmed the order passed by the CEO-SRA. It is stated that the AGRC has rightly considered the issue of transfer of shares in respondent no.5 and considering the provision of Sections 56 and 58 of the Companies Act, the AGRC is correct in coming to a conclusion that there is no bar for transfer of shares in a company incorporated under the Companies Act. It is stated that the office order dated 23 March 2015 issued by the SRA, does not restrict transfer of shares in a company, as in case of such transfer, transfer fees are payable at the rate of 5% to the SRA by the Developer. It is stated that in the present case respondent no.5 has submitted all relevant documents showing the change of shareholding for the purpose of issuance of Annexure-III to the SRA and respondent no.5 continues to be on record of the SRA ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 33 final New Janata.doc as the developer for implementation of Slum Rehabilitation Scheme on the subject property. It is stated that the transfer fee shall be recovered by SRA from respondent no.5 as per the SRA norms for transfer of shares. It is stated that considering concurrent findings of both the authorities below, the petition needs to be rejected and in the interest of slum dwellers who are awaiting for their permanent alternate accommodation under the Scheme since 2006. It is stated that even as per the record of SRA more than 50% of the slum dwellers have already vacated their respective tenements and shifted elsewhere by accepting rent in lieu of transit accommodation. Case of Respondent nos.5 and 6 (Shree Nidhi Concept Realtors Pvt.Ltd.):-

40. On behalf of respondent no.5 a reply affidavit of Mr.Vijay Kunder, authorised signatory of respondent no.5 is placed on record. Respondent no.5 has contended that AGRC has taken into consideration all relevant facts right from appointment of respondent no.5 as developer in the year 2006. Paragraph 4 of the reply sets out complete sequence of events, contending that the AGRC has rightly upheld the order dated 17 May 2016 passed by the CEO-SRA. Respondent no.5 has stated that substantial progress is made by respondent no.5 towards expeditious implementation of the slum scheme and that an amount of Rs.36,17,79,000/- has already been ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 34 final New Janata.doc expended on payment of rent for transit accommodation to the slum dwellers. It is contended that 393 slum dwellers forming part of the petitioner have also accepted rent for transit accommodation from respondent no.5 and the slum dwellers have also executed possession receipts in favour of respondent no.5, which would show that the slum dwellers of the petitioner society are not in favour of change of developer. Referring to the sanctioned layout plan dated 28 June 2016 in regard to rehabilitation building, it is contended that respondent no.5 shall endeavour to complete construction of the rehabilitation building and put the eligible slum dwellers in possession of permanent alternate accommodation. In paragraph 7 it is stated that an amount of Rs.63,78,28,700/- has been spent on various counts which includes transit accommodation, bank guarantee, IOA deposit, revalidation fees and land premium. It is stated that also huge amounts are spent towards securing various permissions for implementation of the slum scheme, towards getting the plot numbered as Cadastral Survey Number etc. Respondent no.5 has stated that 74.63% of the eligible slum dwellers and 71% of the overall slum dwellers are in support of the implementation of the slum scheme by respondent no.5 and have shifted to temporary alternate accommodation awaiting to be rehabilitated at the earliest. In paragraph 9 of the affidavit, respondent no.5 has stated that respondent no.7 who is alleged to be a developer ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 35 final New Janata.doc implementing the slum scheme in the adjoining area to the scheme in question, is responsible to create hatred, distrust and enmity between the slum dwellers with malafide intention and ulterior motive to derive undue benefit for itself with the sole purpose of hijacking the scheme in question. It is stated that the petitioner has filed series of proceedings at the instance of and/or as actively supported by respondent no.7. It is stated that Section 13(2) of the Slums Act provides the power for change of developer only when land has been, or is being, redeveloped by the owner/developer in contravention of plans, duly approved or any restrictions or conditions imposed under sub-section (10) of Section 12 or has not redeveloped within time, if any specified under such condition. It is submitted that respondent no.5 has taken substantial steps and actions in furtherance of the scheme and as there is no contravention of the plan or any delay on the part of respondent no.5 in implementation of the slum scheme, Section 13(2) of the Slums Act would not be applicable. In paragraph 11 of the reply affidavit, respondent no.5 has set out in detail the sequence of events in a tabular form. In paragraph 12 of the reply affidavit in sub-paragraphs (a) to (y), respondent no.5 has set out the reasons for which the petition would not require interference.

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pvr 36 final New Janata.doc

41. Respondent no.5 has stated that earlier an order dated 14 July 2014 was passed by the CEO-SRA on the proposal dated 11 July 2014 of the Assistant Registrar of Societies which itself was based on the resolution dated 15 June 2014 and letter dated 27 June 2014 of the petitioner. It is stated that in the order dated 21 September 2015 passed by the Division Bench of this Court in Writ Petition (lodg) No.673 of 2015, the order passed by the High Power Committee dated 5 March 2015 was not disturbed, which had held that the resolution of termination of respondent no.5 was not legally passed by the petitioner society. It is stated that the resolution dated 15 June 2014 passed by the petitioner cannot any more be relied upon and in fact the petitioner is being estopped from doing so. It is contended that the present petition is based on a purported resolution dated 26 March 2016 passed by the new Managing Committee which once again reiterates the General Body resolution dated 15 June 2014. It is stated that there is no legal ground for the petitioner to pass a resolution against respondent no.5.

42. In so far as the rights of the shareholders of respondent no.5 who transferred their shares, it is contended that there is no restriction for such transfer either under the provisions of the Slums Act or the Development Control Regulations or under the General Body ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 37 final New Janata.doc Resolution of the said societies, or even the development agreement entered with the societies. It is stated that had there been a restriction on transfer of shares by the shareholders of respondent no.5, the petitioner would have taken care to stipulate such conditions under the Development Agreement. It is stated that the terms and conditions of the Development agreement in this regard are clear and unambiguous which, in no manner restrict the rights of respondent no.5 to change the share pattern of respondent no.5. It is stated that additionally the petitioner and respondent nos.8 and 9 societies have also executed three power of attorneys all dated 18 October 2006 authorizing respondent no.5 to do various acts and deeds for the purpose of implementation of slum scheme. It is stated that the power of attorney's also empower and authorize respondent no.5 to appoint its substitute or substitutes. It is contended that further Articles 10 to 38 of Articles of Association of respondent no.5 allowed transfer of shares. It is stated that even the provisions of the Companies Act,1956 and the Companies Act,2013 also provide for transfer of shares of a private/public limited company incorporated under the said Acts. In this context, respondent no.5 has referred to the provisions of Section 108 to 110 of the 1956 Act and Section 56 of the 2013 Act. It is stated that the change in shareholding pattern of respondent no.5 cannot be the ground for change of developer under Section 13(2) of the Slums ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 38 final New Janata.doc Act. It is stated that respondent no.5 is a company which was earlier incorporated under the Companies Act,1956 and it is now deemed to be incorporated and governed by the Companies Act,2013 and its Articles of Association, which governs the transfer of shares. It is stated that under the Companies Act, a private or public limited company is a separate juristic entity, which has separate and independent existence in law and hence, a company being body incorporate can enter into legally binding transactions with third parties and it can sue and be sued in its own name in regard to such transaction. It is stated that respondent no.5 being a juristic person, is liable directly for the transaction entered with third parties. It is stated that the rights and liabilities of a company as a juristic entity and those of its shareholders are distinct and separate and the shareholders of a company are not directly liable to the third parties for any act done by the company and the transaction entered into with a party. It is thus contended that respondent no.5 being appointed as a developer by the said three societies under their respective resolutions and in pursuance thereto a development agreement being entered into by the societies with respondent no.5 as also power of attorney's being executed in favour of respondent no.5, binding contracts have come into existence between the three societies on one hand and respondent no.5 on the other hand and inter se rights of the parties are governed by those contracts. These ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 39 final New Janata.doc agreements entered between respondent no.5 and the three societies do not give rise to any contract between the three societies and shareholders and respondent no.5. It is thus stated that the allegations of inordinate delay are required to be explained by respondent no.5 and not by their (old/new) shareholders. It is stated that the share transfer in accordance with the Companies Act as well as Articles of Association is valid transfer in the eyes of law. It is stated that such transfer of shares by the shareholders of respondent no.5 to a third party does not amount to transfer or sale of the said project as alleged.

43. Respondent no.5 has stated that in any case it has complied with the provisions of the Slums Act relating slum rehabilitation scheme including the submission of Annexure III alongwith all its requirements namely shareholding pattern, balance- sheet and other related documents and only on consideration of these documents, the SRA has issued letter of intent dated 5 February 2016. Respondent no.5 accordingly prays that the petition be dismissed. Case of Respondent nos.8 and 9 (Nav Kiran CHS and Hind Ekta CHS):-

44. Respondent no.8 has opposed this petition. A reply affidavit of Mr.Mehmood Ahmed Shaikh, Chairman of respondent no.8, dated 20 August 2018 is placed on record. Respondent no.8 has stated ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 40 final New Janata.doc that the AGRC has passed the impugned order after giving a complete opportunity to the petitioner of presenting their case and granting a full-fledged hearing for several days. It is stated that the impugned order is a well reasoned and speaking order considering all the grievances of the petitioner. It is stated that the present proceedings are initiated by the petitioner at the behest of respondent no.7 who is a rival developer who is playing mischief and trying to create obstacles and hindrances in the smooth implementation of the sanctioned slum scheme. It is stated that such action on the part of respondent no.7 is in total disregard to the interest of the petitioner and respondent nos.8 and 9. Respondent no.8 has stated it never intended to change respondent no.5 as developer and in fact by a generay body resolution dated 3 May 2014 respondent no.8 has confirmed the appointment of respondent no.5. It is stated that some of the disgruntled members of respondent nos.8 and 9 and of the petitioner have formed parallel societies in the same names. It is stated that the convener of the society passed the resolution on 25 June 2014 purportedly terminating the appointment of respondent no.5 and purportedly appointing a new developer-respondent no.7. It is stated that based on such resolution dated 15 June 2014, the said parallel society made an application before respondent no.1 for change of developer. It is stated that consequent thereto an order dated 14 July 2015 came to be passed by ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 41 final New Janata.doc the Chief Executive Officer, which was challenged by respondent nos.8 and 9. The said proceedings continued from various authorities and finally culminated and rested in the order dated 21 September 2015 passed by this Court in Writ Petition (lodg) No.673 of 2014 and Writ Petition (lodg) No.674 of 2014. It is stated that thereafter, the parallel societies made a fresh application for change of the developer before the CEO-SRA on 10 October 2015 on which the CEO-SRA passed an order dated 17 December 2015 directing the societies to hold election so as to sort out the issue as to which of the societies is before respondent no.2. It is stated that election of the managing committee was conducted on 19 March 2016. A new managing committee of the petitioner society came to be appointed. It is stated that the managing committee of respondent nos.8 and 9 continued their support in favour of respondent no.5. It is stated that the new managing committee of the petitioner did not get support from the slum dwellers and it was only the managing committee of the petitioner which had supported appointment of new developer-respondent no.7. The managing committee of the petitioner in these circumstances filed a fresh application for change of developer based on the resolution of the managing committee and not on the basis of a fresh resolution passed in general body meeting. It is stated that in fact what the managing committee of the petitioner did, was to cleverly affirm and ratify the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 42 final New Janata.doc purported resolution dated 15 June 2014 to file an application for change of developer. It is stated that the present writ petition is thus clearly filed at the behest and instance of respondent no.7 who is trying to take over the project from respondent no.5. It is thus contended that the writ petition ought not to be entertained.

45. Respondent no.9 has also opposed this petition. A reply affidavit of Mehrunnisa Shaikh, Secretary of respondent no.9 is filed. This affidavit is similar to the affidavit filed on behalf of respondent no.8. In short both respondent nos.8 and 9 are supporting the redevelopment of the slums by respondent nos.5 and 6. Rejoinder Plea of the Petitioner:-

46. On behalf of the petitioner, a rejoinder affidavit dated 4 September 2018 is filed, interalia disputing the contention of respondent no.5, that it has support of 70% of the slum dwellers. It is contended that taking recourse to a simple calculation it would show that respondent no.5 has consent of only 68.24% of the slum dwellers. It is stated that when letter of intent was issued in favour of respondent no.5, there was no amalgamation in respect of the plots bearing C.S.No.2116 (pt) and 2124 (pt) on 14 December 2009, of the plots of three societies. It is stated that amalgamation of the plots was done by ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 43 final New Janata.doc CEO-SRA subsequent to letter of intent dated 5 February 2016 which procedure is contrary to the provisions of the Slums Act. It is stated that none of the terms of the LOI contemplates any amalgamation of the subject plot. It is stated that there are 669 slum structures of the petitioner society out of which respondent no.5 has purportedly obtained consent of 496 slum dwellers, however only 396 slum dwellers have appended their signatures on the common consent submitted by respondent no.5. It is contended that respondent no.5 has miserably failed to explain the long delay of eight years in implementation of SRA scheme. It is stated that the reservation on the subject land cannot be a valid reason for justifying the delay as these reservations were in existence even at the time when respondent no.5 was appointed as the developer. It is stated that the said position as existed in the year 2006 continued to be the same also in the year 2016 when the LOI was issued in favour of respondent no.5. It is stated that even the LOI acceptance report as also the revised LOI which has been issued by the SRA mentions about these reservations. It is stated that the revised LOI issued by the SRA records that the reservation of 60.80 mtrs wide D.P. Road as per the DP Plan 1991 overlaps the reservations as per DP Plan 2034. It is stated that in view thereof, respondent no.6 had proposed to keep the land under reservation open and unbuilt till such time the DP Plan 2034 is finalized. It is thus submitted that the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 44 final New Janata.doc reasons given by respondent no.5 for delay in implementation of slum scheme is an hogwash and feeble attempt on the part of respondent no.5 to justify his inaction for timely implementation of the slum scheme. It is stated that even in the sanction layout respondent no.5 has continued to show, the reservation of proposed 60.80 wide DP road. It is stated that respondent no.5 has purportedly obtained and secured the CRZ and environmental clearance only on 21 October 2016 and 12 May 2017 respectively, that is subsequent to issuance of LOI dated 5 February 2016. It is stated that this itself negates the contention of respondent no.5 that the slum scheme was delayed on account of reservation or the CRZ issues. It is stated that there was no change in the circumstances between the year 2008, when respondent no.5 submitted a proposal to implement the composite scheme under DCR 33(10) for the three societies on C.S.No.1500(pt) (admeasuring about 7876.26 sq.mtrs) and the year 2016, when the LOI was issued in favour of respondent no.5. It is thus stated that application dated 4 December 2012 made by respondent no.5 to the Principal Secretary, Urban Development Department for reduction of the width of proposed DP road to 30.40 mtrs. was of no relevance as the reservation continued in the DP 1991 and in the DP 2034 the said DP road is reduced from 60.80 mtrs. to 13.40 mtrs. It is stated that in view of Condition 41 (supra) of the LOI, respondent no.5 cannot claim any ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 45 final New Janata.doc equity. It is stated that respondent no.5 totally misinterpreted the order dated 5 March 2015 passed by the HPC and the order dated 21 September 2015 passed by this Court. It is stated that in fact by the order passed by this Court, all issues were left to be urged before the CEO-SRA who is observed by the Court to be the competent authority. It is reiterated that resolution dated 3 May 2014, 4 May 2014 and 7 May 2014 as relied on by respondent no.5 were false and fabricated inasmuch as a general body meeting was held at the office of the respondent no.5. It is stated that CEO-SRA in passing an order dated 17 May 2016 had expressly relied upon these resolutions without giving any opportunity to the petitioner to respond the same. The petitioner has set out the reasons as to why these resolutions are false and fabricated. It is stated that Omkar Developers acquired shareholding in respondent no.5 only in the year 2016 and therefore, the purported resolutions dated 3 May 2014, 4 May 2014 and 7 May 2014 could never have ratified by the appointment of Omkar Developers. It is denied that the petition is being pursued by some disgruntled members who have formed parallel societies, and the said contention is totally misconceived. It is stated that the change of shareholding pattern is nothing but a backdoor entry to a new developer which is not permitted in law. The contention of respondent no.5 that 896 slum dwellers are shifted to temporary accommodation ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 46 final New Janata.doc or they have accepted rent from respondent no.5, is also denied stating that there is no material to that effect as placed on record.

47. The petitioner has also filed rejoinder dated 4 September 2018 to the affidavits in reply filed by respondent nos.8 and 9, denying the case of respondent nos.8 and 9 as pleaded in the reply affidavits. Writ Petition of Respondent No.7-SLK Buildcon:-

48. At this stage it would be appropriate to refer to the prayers in the companion writ petition (Writ Petition no.2285 of 2018) filed by respondent no.7-(M/s.SLK Buildcon Pvt. Ltd.) who is also aggrieved by rejection of the application no.83 of 2016 and application no.110 of 2016 filed by the New Janata before the AGRC. SLK Buildcon has prayed for the following reliefs:-

(a) Issue a writ of certiorari or any other similar writ quashing/setting aside the common order dated 11.01.2018 Exh.'A' passed by the Apex Grievance Redressal Committee/HPC, Govt. of Maharashtra whereby the Application No. 83 of 2016 (seeking quashing of the aforesaid LOI dated 05.02.2016) and Application No.110 of 2016 (seeking quashing of the order dated 17.05.2016) filed by Respondent No. 7 has been dismissed; and

(b) Consequentially allow the prayers made by Respondent No.7 before the Apex Grievances Redressal Committee/HPC, Govt. of Maharashtra in Application No. 83 of 2016 and Application No. 110 of 2016.

(d) Issue a writ certiorari or any other similar writ quashing/setting aside the order dated 17.05.2016 passed by the CEO/SRA and allow the application dated 15.04.2016 filed by the Petitioner/Applicant Society u/s. 13 (2) of the Slums Act by granting the prayers made therein; and ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 47 final New Janata.doc

(e) Issue a writ of certiorari or any other similar writ quashing/setting aside the Letter of Intent ("LOI") dated 05.02.2016/revised LOI dated 08.03.2017 issued by the SRA in favour of Respondent Nos. 5 and 6 for implementation of Slum Rehabilitation Scheme in respect of land admeasuring about 20,

465. 72 sq. meters comprising CS Nos. 1500 (pt), 2116 (pt) and 2124 (pt) in Mahim Division, Mumbai; and

(f) Pass an interim/ad-interim order staying the operation of the impugned orders dated 11.01.2018 (being Exhibit A) and the order dated 17.05.2016 passed by the CEO, SRA pending the hearing and final disposal of the present petition; and

(g) Pass an interim/ad-interim order staying the LOI dated 05.02.2016/revised LOI dated 08.03.2017 issued by the SRA to Respondent Nos.5 and 6 and direct the SRA not to issue any further permission/sanction etc. to Respondent Nos.5 and 6 in respect of the Slum Rehabilitation Scheme on the Plot, pending the hearing and final disposal of the present petition; and

(h) Pass an interim/ad-interim order restraining Respondent No.5 from carrying out any further work on Plot restrain Respondent No.5 from taking any moneys towards the said scheme from investors/financial institutions, and

(i) Pass any other order as this Hon'ble Court may deem fit in the facts and circumstances of the case and interest of justice."

49. Respondent no.5 has filed a reply affidavit opposing the petition of respondent no.7. As also respondent nos.8 and 9 have filed reply affidavit opposing the petition. There are also rejoinder affidavit filed by respondent no.7 to the reply affidavits.

50. As the contentions as raised in this petition are almost similar to the one's as urged on behalf of New Janata-the petitioner, it is not necessary to separately refer and repeat the contentions of the parties.

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pvr 48 final New Janata.doc Submissions on Behalf of Petitioner -New Janata:-

51. Mr.Madon, learned Senior Counsel for the petitioner has made the following submissions in supporting the prayers:

52. At the outset it is submitted that the Chief Executive Officer of SRA and AGRC ought not to have relied upon the resolution dated 3 May 2014, 4 May 2014 and 7 May 2014 for the reason that these were false and fabricated documents, as the purported general body meetings never took place. It is not possible that these meeting could have been held at the registered address of respondent no.5 (at the relevant time), as the same was not large enough to accommodate all the eligible members of the societies who are about 800. Also that the resolutions bear the signatures of individuals who were deceased on the date when the said resolutions were claimed to have been passed by the societies and that there are death certificates of the said members with the petitioner. It is submitted that some members have signed twice. It is submitted that these resolutions surfaced for the first time only on 9 May 2016 from the custody of respondent no.5 and these resolutions were neither produced nor relied upon by any parties including respondent no.5 in any proceedings prior to 9 May 2016. In supporting this submission, it is submitted that even in the earlier ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 49 final New Janata.doc round of litigation when an order dated 18 December 2014 was passed by this Court in Writ Petition No.8410 of 2014 and connected matters, these resolutions were neither relied nor any reference was made to these resolutions. In fact this Court observed that the development agreement was terminated in the year 2014 and a new developer by name SLK was appointed to redevelop the said property while referring to the General Body Resolutions dated 11 May 2014, 15 June 2014 and 22 June 2014 passed by respondent no.8, petitioner and respondent no.9 respectively. It is contended that neither respondent no.5 nor the rival factions of the petitioner, respondent nos.8 and 9 have challenged these resolutions and hence, these resolutions have attained a finality. It is submitted that in none of the proceedings even in Writ Petition no.8410, 8412 and 8414 of 2014, which were disposed of by an order dated 18 December 2014, there was any reference or mention of the alleged resolutions dated 3 May 2014, 4 May 2014 and 7 May 2014. Moreover, in the said petitions, there is mention of general body meetings dated 11 May 2014, 15 June 2014 and 22 June 2014 wherein it was unanimously decided to terminate the appointment of respondent no.5 and to appoint respondent no.7 as new developer. It is submitted that even in the subsequent writ petition being Writ Petition (Lodg) No.673 of 2015 filed by respondent no.9 herein, in paragraph 7, there were similar averments and thus, it is clearly seen that these ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 50 final New Janata.doc resolutions of May 2014 as relied by respondent No.5 have seen the light of the day only on 9 May 2016. It is submitted that these resolutions were not even served on the petitioner, when under a covering letter dated 8 May 2016 they were purported to be submitted to the CEO-SRA on 9 May 2016. It is submitted that the petitioner became aware of the covering letter and these resolutions only from the order dated 17 May 2016 passed by CEO-SRA. The petitioner hence did not have any opportunity to deal with these documents.

53. It is submitted that even assuming that these resolutions are genuine, the petitioner, respondent nos.8 and 9 had held meetings on 11 May 2014, 15 June 2014 and 22 June 2014 whereby the appointment of respondent nos.5 and 6 were terminated. It is nobody's case that respondent nos.5 and 6 have thereafter been reappointed. It is submitted that the members of respondent nos.8 and 9 have filed an application under Section 13(2) of the Slums Act for removal of respondent no.5 and appointment of respondent no.7 as developer and that these applications are still pending. It is submitted that it was not permissible for the newly appointed managing committee of respondent nos.8 and 9 to act contrary to the general body resolution supporting respondent no.5. It is submitted that the petitioner impugned the purported resolutions of May 2014 before the AGRC, ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:54 ::: pvr 51 final New Janata.doc however the AGRC failed to render any cogent findings on the contention of fabrication as raised by the petitioner.

54. The conclusion of the AGRC that respondent nos.5 and 6 still have consent of more than 70% slum dwellers, is an incorrect finding without application of mind. It is submitted that the AGRC ought to have considered that at every stage respondent no.5 prevented the holding of general body meeting of all three societies knowing fully well that at such meeting they would not have the requisite support. It is contended that the rival factions of respondent nos.8 and 9 in collusion with respondent no.5 and 6 are contending before this Court that the explanation justifying the signatures of such deceased individuals on the purported resolutions as furnished in the affidavit filed before the AGRC be accepted, so as to justify the order of the AGRC, by reading its order in consonance with the affidavit filed by them. It is submitted that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit. In support of this submissions, Mr.Madon, learned Senior Counsel has referred to the decision of the Supreme Court in "Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors."1 1 (1978)1 SCC 405 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 52 final New Janata.doc

55. It is next submitted that the impugned order passed by the CEO -SRA is in clear breach of principles of natural justice, this for the reason that on 5 May 2016 the proceedings before the CEO-SRA were closed for orders, however, respondent no.5 through its advocate addressed a letter dated 8 May 2016, filed on 9 May 2016 with the CEO-SRA interalia producing certain additional documents. It is submitted that the covering letter recorded that additional documents were being filed in accordance with the direction given on 5 May 2016 by CEO SRA when no such permission was either sought or granted for submission of additional documents by the CEO SRA. It is submitted that roznama dated 5 May 2016 does not mention any such order/direction being made on 5 May 2016 permitting any additional document to be filed by any of the parties. It is thus submitted that no opportunity was granted to the petitioner to respond to the said documents before CEO-SRA. It is submitted that despite the fact that these documents were filed for the first time on 9 May 2014 and were not referred at the hearing before CEO SRA, nonetheless CEO-SRA in its order has referred to the arguments purportedly advanced by the Advocate for respondent no.5 on the basis of these documents. It is thus submitted that these documents have been received as valid evidence and have gone into the decision making process forming one ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 53 final New Janata.doc of the basis of the impugned order dated 17 May 2016 passed by the CEO-SRA. It is thus submitted that there is clear breach of the principles of natural justice in passing the order referring to the material not furnished to the petitioner. In support of this contention, Mr.Madon has placed reliance on the decision of the Supreme Court in

(i)Shantidevi Kamaleshkumar Yadav vs. State of Maharashtra & Ors. 2 and (ii) Suresh Dhanuka Vs. Sunita Mohapatra3. Mr.Madon has also relied on the decision of this Court in M/s.Platinum Realty & Anr. Vs. The State of Maharashtra4

56. It is next submitted that the CEO-SRA relying on the May 2014 General Body Resolutions of the three societies, purportedly showing support to respondent No.5 and 6 infact would amount to a gross breach of the principles of natural justice at the very first adjudication. This basic breach of the principles of natural justice and of an unfair trial cannot be remedied in appeal. Mr.Madon has submitted that the nature of violation as aforesaid was categorically brought to the attention of AGRC and the AGRC in these circumstances ought to have remanded the matter back to CEO-SRA for considering the dispute afresh, on the said documents produced subsequent to the 2 (2008)9 SCC 718 3 (2012)1 SCC 578 4 Writ Petition No.638 of 2015, order dt.6.7.2015 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 54 final New Janata.doc closure of the hearing by respondent no.5. However, the AGRC failed to relegate the matter back to respondent no.2 on the ground that the petitioner has eventually been afforded an opportunity to respond to the new documents. It is submitted that it is settled proposition of law that the initial defect of breach of the principles of natural justice cannot be cured in appellate proceedings. To support this submission Mr.Madon has placed reliance on the decision of the Supreme Court in Institute of Chartered Accountants of India Vs. L.K.Ratna & Ors. 5 and to the decision of this Court in Partha Ghosh & Anrs. Vs. Insitute of Chartered Accountants of India6 and in Associated Tube Wells Ltd. Vs. R.B.Gujarmal Modi7.

57. In regard to the transfer of shareholding in respondent no.5, Mr.Madon would submit that when the petitioner, respondent nos.8 and 9 executed the development agreement dated 17 October 2006 in favour of respondent no.5, 100% of the shareholding of respondent no.5 was held and controlled by Mohanlal Senghani and Chandulal Senghani. It is submitted that although the development agreement was entered with respondent no.5, the said developer was appointed only because the members had reposed faith in the 5 (1986)4 SCC 537 6 2009(3) Bom.CR 610 7 AIR 1957 SC 742 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 55 final New Janata.doc promoters namely Senghani family which exercised complete control over respondent no.5 and hence, in effect the consents were given by the slum dwellers in favour of the Senghani family. It is submitted that in the year 2008, the share capital of respondent no.5 increased from Rs.1,00,000/- to Rs.5,00,000/-, however, the shareholding of respondent no.5 continued to remain with the Senghani family. It is submitted that in the year 2012 the share capital of respondent no.5 was increased and 50,000 new shares were allotted to Mr.Paras Porwal who effectively became a 50% shareholder in respondent no.5- company. Mr.Madon would submit that in March 2015, the Senghani family sold their entire shareholding to Mr.Ronnie Porwal, consequently respondent no.5 was entirely controlled by the Porwal family. It is submitted that the petitioner and respondent nos.8 and 9 had executed consent in favour of respondent no.5 only because the Senghani family controlled the said company. It is thus submitted that in the year 2015 after the sale of the shareholding, respondent no.5 was a new entity, in favour of which no consents were executed. According to Mr.Madon, this amounted to sale of the slum scheme by Senghani family in favour of Porwal family (M/s.Omkar Realtors) which was not permissible interalia by virtue of SRA Office Order dated 12 March 2015. It is submitted that these vital facts were not brought to the notice of the SRA, the petitioner or respondent nos.8 and 9. Mr.Madon would submit ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 56 final New Janata.doc that thereafter on 25 January 2016 the majority shareholding of respondent no.5 was sold to M/s.Omkar Realtors and a fresh allotment of 1,24,50,000 shares valued at Rs.12,45,00,000/- was made in favour of M/s.Omkar Realtors, whereby it became 99.20% shareholder of respondent no.5. It is submitted that the petitioner, respondent nos.8 and 9 were again not informed of these changes in the shareholding pattern as also no official intimation of such change was also given to SRA. Thus, according to Mr.Madon, these changes in the shareholding pattern are clearly hit by the office order dated 23 March 2015 issued by the SRA, whereby any change in partners/directors, or their shareholding was required to be intimated to SRA within thirty days as also premium is required to be paid, failing which a fine equal to 5 times of the value of the land is leveyed on the developer. Mr.Madon would submit that, respondent No.5 having not complied with these orders of the SRA, such a change in the shareholding ought not to have been accepted by the CEO-SRA. On this count alone, it ought to have held by the AGRC that respondent no.5 was not entitled to be continued as a developer of the petitioner and respondent nos.8 and 9 societies. It is submitted that also AGRC despite being aware of this change carried out by respondent no.5 in its shareholding and directorial pattern, failed to pass necessary directions in accordance with the office order. This was valid ground for termination of the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 57 final New Janata.doc appointment of respondent no.5 also under Section 13(2) of the Act. It is submitted that even the premium which was required to be paid having not been paid, has caused substantial loss to the public exchequer. It is submitted that, infact there is breach at two stages by respondent no.5, firstly when the shareholding changed hands from Senghani family to Porwal and from Porwal's to M/s.Omkar Realtors, when respondent no.5 was bound to inform the SRA. It is submitted that even every change in the directorial pattern post 2015 was required to be informed to SRA by respondent no.5.

58. Mr.Madon submits that this was effectively a sale by respondent No.5 of the right to implement the slum rehabilitation scheme to a third party, for which no permission was obtained by Omkar Realtors or respondent no.5 before issuance/sale of shares. It is thus submitted that respondent no.5 did not have the necessary financial capability nor the experience to implement the slum scheme and therefore, respondent no.5 altered its shareholding pattern in order to comply with the requirements of Annexure III. It is for this reason shares of respondent no.5 were first sold by the Senghanis to Porwals and subsequently M/s.Omkar Realtors was inducted only with an intention to sell the rights, to implement the Slum Scheme which is expressly prohibited. Mr.Madon would hence submit that the AGRC ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 58 final New Janata.doc erred in rejecting the contention of the petitioner in respect of such transfer/sale of the slum scheme by Senghanis to Porwal and then to M/s.Omkar, on the ground that there was no bar for transfer of shares under the Companies Act.

59. It is submitted that the petitioner's contention is not that there would be any bar on transfer of shares under the Companies Act, what the petitioner objects is the manner in which the composition/ control/management of respondent no.5 had undergone a complete change between March 2015 and January 2016, which was done to circumvent the procedure prescribed under the Slums Act. It is submitted that it is settled principle of law that what cannot be done directly cannot be done indirectly. Mr.Madon would submit that Omkar Realtors has indirectly purchased the slum scheme, sale of which was otherwise prohibited under the Slums Act. In support of these contentions, Mr.Madon relied on the decision of the Supreme Court in "State of Rajasthan & Ors. VS. Gotan Lime Stone Khanji Udyog Pvt.Ltd. & Anr"8 and "Estate Officer, UT, Chandigarh & Ors. Vs. Esys Information Technologies Pte.Ltd."9

60. Mr.Madon would next submit that delay in implementation of slum scheme is a ground for setting aside the appointment of 8 (2016)4 scc 469 9 (2016)12 SCC 582 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 59 final New Janata.doc developers under Section 13(2) of the Slums Act. It is submitted that respondent no.5 was appointed as a developer in the year 2006 and after being so appointed, respondent no.5 took no steps whatsoever between 2006-2008. It is submitted that only in August 2008, respondent no.5 submitted a proposal with the SRA to implement a composite scheme on plot no.1500 (pt) and the proposal was thereafter revised in December 2009 to include CTS No.2116 (pt) and 2124 (pt) and Annexures II was certified in the year 2010. It is submitted that thereafter, no steps whatsoever were taken by respondent no.5 for implementation of the Slum scheme on the subject property from 2010 (from issuance of Annexure II) till April 2014. It is submitted that, in view of the inordinate delay in implementation of the slum scheme, an undertaking/letter dated 10 April 2014 was furnished by respondent no.5 to the petitioner, respondent nos.8 and 9 interalia assuring the societies that it would complete the work of redevelopment and that it would obtain the letter of intent for implementation of the slum scheme latest by 30 June 2014, failing which, respondent no.5 would itself resign as a developer and withdraw from the slum scheme. It is submitted that the reasons furnished by respondent no.5 for justifying the inordinate delay in implementation of the slum scheme were that the land was affected by development plan road (DP Road) and part of the said land fell under CRZ were misconceived. It is submitted that ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 60 final New Janata.doc these reservations were existing even in 2006 when respondent no.5 was appointed as a developer. It is submitted that only when the petitioner addressed a letter dated 31 May 2014 to the Architect- respondent No.6 and respondent no.5, interalia calling upon respondent no.6 not to represent the petitioner before the SRA or any other Government office or produce any document on behalf of the petitioner or obtain any sanction on their behalf, that respondent no.6 submitted an application dated 6 June 2014 to the SRA for issuance of the LOI and subsequently Annexure III was issued on 4 February 2016 and an LOI was issued on 5 February 2016. It is submitted that pertinently the very same reservations are also reflected in the LOI which was issued by CEO SRA, which would show that the reservation of D.P. Road, CRZ etc. were always in existence. This is also borne out from the LOI itself, which records that respondent no.5 is required to obtain clearances from MCZMA and MOEF before seeking grant of commencement certificate for the first building in the layout. In supporting this submission, Mr.Madon has placed reliance on the decision of this Court in Hi Tech India Construction Vs. Chief Executive Officer, Slum Rehabilitation Authority, Mumbai10

61. The next submission of Mr.Madon is in regard to the actions taken by Omkar Realtors subsequent to acquiring 99.20% of the 10 2013(3) Mh.L.J. 707 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 61 final New Janata.doc shareholding in respondent no.5 on 25 January 2016. It is submitted that within 10 days of Omkar Realtors coming into the picture, the SRA issued Annexure-III, surprisingly despite there being no written communication whatsoever from Omkar Realtors and SRA interalia informing the SRA about the change of registered address as also about the change in shareholding. This according to the petitioner, is seen from Annexure-III issued by SRA which refers to the address of Omkar Realtors as address of respondent no.5.

62. The next submission of Mr.Madon, learned Senior Counsel for the petitioner is on the errors in the orders passed by the CEO-SRA and the AGRC. It is submitted that despite a clear direction contained in the order dated 21 September 2015 passed by the Division Bench in Writ Petition (l) no.673 and 674 of 2015 directing that " SRA will take a decision uninfluenced by any observations and conclusions in the impugned order and including an order of this Court ", and further in Clause 41 of the LOI stating as "The LOI will have no bearing whatsoever on any parallel proceedings under any section of the Maharashtra Slum Area (I, C and R) Act,1971", SRA has wrongfully not only referred to the order of HPC but also made it the basis of his finding in context of viability. The CEO-SRA has observed that the aspect of viability of the same was considered by the HPC in paragraph ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 62 final New Janata.doc (8) of the order dated 27 February 2015. It is submitted that in view thereof, respondent no.2 was of the view that there is no willful delay and non performance on the part of respondent no.5.

63. It is next submitted that the facts and circumstances of the case would require interference of this Court in writ jurisdiction, this for the reason that the SRA was not an expert body but merely a planning authority under the MRTP Act as also under the Slums Act and as a planning authority the SRA is expected to strictly follow the rules and regulations and in case of any deviation, interference in exercise of power under Article 226 and 227 would be warranted. It is submitted that in any event when civil consequences ensue, there is hardly any distinction between an administrative or quasi judicial order. It is submitted that Supreme Court in " Rajesh Kumar & Ors. Vs. D.Commissioner of Income Tax & Ors. "11 has held that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated. It is submitted that the impugned order passed by CEO SRA in exercise of powers conferred under Section 13(2) of the Slums Act, in essence is a quasi-judicial function in respect of which jurisdiction of even civil court is barred by virtue of Section 42 of the Slums Act. It is submitted that there are several findings which 11 (2007)2 SCC 181 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 63 final New Janata.doc are contained in the impugned order passed by the CEO-SRA, which are perverse and contrary to not only Appendix IV of Development Control Regulation for Greater Mumbai, 1991 but also to the record of SRA.

64. It is submitted that even the Apex Grievance Redressal Committee has failed to consider relevant facts and records of the SRA and the findings that "there were hurdles due to the provisions of the CRZ and reservations of DP Road" and "various other reservations" as made in the orders passed by AGRC are contrary to the record of the SRA and in particular to the LOI Scrutiny Report dated 14 July 2014 and to the letter of intent dated 5 February 2016. It is submitted that respondent no.5 was attempting to set up a new case so as to justify inordinate and willful delay in implementation of the slum scheme which were contrary to the record, as the reservation enumerated in the LOI scrutiny report existed at all material times right from respondent No.5's appointment as a developer.

65. It is submitted that the primary point is of inordinate delay on the part of respondent no.5 in commencing with the slum scheme, there is no justification whatsoever in explaining such delay. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 :::

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66. Mr.Madon would submit that considering the above submissions, the petition needs to be allowed.

Submissions on behalf of Petitioner- SLK Buildcon Pvt Ltd.:-

67. Dr.Saraf, learned Counsel for the petitioner in Writ Petition No.2285 of 2018 and for respondent no.7 in Writ Petition No.2349 of 2018, in supporting the submissions of Mr.Madon, has made the following submissions:-

68. At the outset, it is submitted that the slum rehabilitation scheme is not an ordinary development agreement, under which the right to implement and execute a slum scheme can be transferred or assigned. This considering the statutory scheme as also the guidelines issued by the authorities. It is submitted that a slum scheme approved for any particular slum rehabilitation area, is a developer specific scheme, approved in favour of a particular developer who has consent of 70% of the slum dwellers and who fulfills the criteria and has the financial ability to execute the scheme. It is submitted that it is thus not open to a developer whose scheme has been approved to, directly or indirectly, assign or transfer the right to execute the scheme or to substitute some other developer in his place to execute and implement that scheme.

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69. It is submitted that 70% consent in favour of a particular developer is the sine qua non and a fundamental pre-condition for presentation of a scheme. It is mandatory to have 70% consent at the time of making of the application and is not permitted to be acquired subsequently.

70. It is submitted that the entire legislative scheme and the guidelines as also the decisions of the Courts, make it apparent that once the scheme in favour of a particular developer is sanctioned, it is to be taken to a logical end. It is submitted that when a particular scheme is being considered, no other scheme can be simultaneously considered, and once a scheme is sanctioned, either the developer completes the development in accordance with the scheme or if the developer fails to do so, the developer is replaced by the authority and then the authority itself undertakes the development in accordance with Section 13(2) of the Slums Act. It is thus submitted that neither the slum dwellers nor the developer has any right to replace/substitute the developer without intervention and permission of the authority. A new developer, if appointed, would have to be assessed on the same basis as originally required before sanction of the scheme including the support of 70% of the slum dwellers.

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71. It is submitted that if the developer is permitted to directly or indirectly replace or substitute someone else in his place or to transfer or assign the benefits of the scheme, the same would defeat the object and scheme of the legislation, and would have far reaching consequences. It may lead to rendering a slum scheme, an ordinary marketable or tradable right/benefit and it would lead to a situation that the developer does not have a mandatorily required support of the slum dwellers but is permitted to undertake a scheme. There may also be circumstances where an entity which does not have financial ability may put up another entity to get a slum scheme approved and may thereafter acquire rights from that entity, this would defeat the entire object and purpose of introducing the various safeguards and preconditions. In making these above submissions Dr.Saraf has referred to the provisions of the Slums Act and the provisions of General Slum Rehabilitation scheme, relevant guidelines for implementation of slum rehabilitation scheme, to the relevant provisions of Development Control Regulations and the decisions of the Supreme Court in Susme Builders Pvt. Ltd. Vs. CEO SRA & Ors. 12; in Pramila Suman Singh Vs. State of Maharashtra 13 and the decisions of this Court in "Awdesh Vasistha Tiwari Vs. Chief Executive Officer, Slum 12 (2018)2 SCC 230 13 (2009) 2 SCC 729 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 67 final New Janata.doc Rehabilitation Authority"14, in "Atesham Ahmed Khan V. Lakadawala Developers Pvt. Ltd.15 and in "Lokhandwala Pvt. Ltd. Vs. State of Maharashtra"16

72. It is next submitted that the restrictions set out in circular dated 23 March 2015 issued by the SRA also does not imply that by transfer of shares or partners, the slum scheme can be transferred or assigned without following the procedure under Section 13(2) of the Slums Act. It is submitted that in the present case, this circular has not been complied, even the payments required to be made under the circular. It is submitted that even the development agreement between respondent no.5 and slum dweller societies prohibits any transfer as provided in Clause 43 of the said agreement.

73. It is next submitted that when the statute mandates that something should be done in a particular way, even when there are no negative words, the thing cannot be done in any other way. It is submitted that this is a rule of implied prohibition. In supporting this contention, reliance is placed on the decision of Jamal Uddin Ahmad V. Abu Saleh Najmuddin17; Center for Public Interest Litigation Vs. Union 14 (2006)4 Mah L.J. 282 15 (2011)3 Mah.L.J.604 16 (2011)3 Mh.L.J. 469 17 (2003)4 SCC 257 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 68 final New Janata.doc of India & Anr.18

74. It is submitted that if any devise or method is adopted to achieve something indirectly which is otherwise not permissible under a Statute, the same is a fraud on the Statute. It is submitted that it is well settled principle of law that the statutory provisions of the Act shall not be evaded by shift or contrivance and to carry out effectually the object of a Statute, it must be construed to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined. In support of this submission, reliance is placed on the decision in Shrisht Dhawan (Smt) Vs. Shaw Bros.19; Jagir Singh Vs. Ranbir Singh20, and the decision of Delhi High Court in The Associated Journal Ltd. & Anr. Vs. Land and Development Office 21

75. It is submitted that if a corporate entity is being abused as a cloak to defeat law and play fraud, such a veil should be pierced to see the persons behind such entity. It is submitted that where a device of incorporation is used for an illegal or improper purpose, the court is entitled to lift the veil, the concept of a corporate entity cannot be used to commit an illegality or defraud people, and where such an entity is 18 (2003)7 SCC 532 19 (1992)1 SCC 534 20 (1979)1 SCC 560 21 Writ Petition (C) 12133/2018 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 69 final New Janata.doc being used to achieve such an end, the corporate character of such an entity can be ignored to see the reality behind the corporate veil. In support of his submission, reliance is placed on the decision of the Supreme Court in (i) "Vodafone International Holdings BV Vs. Union of India & Anr.22, (ii) CIT Vs. Sri Meenakshi Mills Ltd. 23; (iii) Workmen V. Associated Rubber Industry Ltd.24; (iv) Delhi Development Authority Vs.Skipper Construction Co.(P) Ltd. & Anr.25

76. Dr.Saraf has also made submissions on the factual aspects of the matter including an inordinate delay of respondent No.5 in implementing the slums scheme and on how respondent no.5 would not be eligible to continue as a developer which are submissions similar to the submission as made by Mr. Madon. Submissions of behalf of respondent Nos.2 to 4 (SRA):-

77. Mr.Jagtiani learned counsel for respondent no. 2 to 4 - Slum Rehabilitation Authority (SRA) has made the following submissions :-

78. It is submitted that the petitioner's case of breach of 22 (2012)6 SCC 613 23 (1967)1 SCR 934 24 (1985)4 SCC 114 25 (1996)4 SCC 622 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 70 final New Janata.doc principles of natural justice in the CEO passing the impugned order, is misconceived. This for the reason that in appeal the AGRC had granted an opportunity to all the parties to make submissions on all the documents which were submitted on behalf of the parties before the CEO, SRA. It is submitted that the petitioner did not make any specific submissions with respect to the three documents namely letter dated 26 May 2009 addressed by Office of Collector and District Magistrate Mumbai City to Additional Secretary Revenue, letter dated 28 July 2009 addressed by Revenue and Forest Department to Collector and letter dated 6 March 2010 addressed by respondent No.6 to Additional Collector. In regard to the petitioner's submission with respect to documents namely Minutes of the Special General Body Meeting dated 3 May 2014 of Hind Ekta CHS (P.) (Respondent No.8) and Minutes of the Special General Body Meeting dated 4 May 2014 of Navkiran CHS (P) (Respondent No.9) and copy of the Special General Body Meeting dated 7 May 2014, that these documents are fabricated, it is submitted that the submissions of the petitioner are appropriately dealt in the impugned orders passed by the AGRC. Mr.Jagtiani has contended that the decisions as relied on behalf of the petitioner to support its case that there is breach of the principles of natural justice are in applicable in the facts of the case. Mr.Jagtiani would submit that in any event it is settled principle of law that a fair appeal would cure an unfair trial. In ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 71 final New Janata.doc support of his submissions, reliance is placed on the decision of the Privy Council in Ferd Dawson Calvin vs. John Henry Brownlow Carr & Ors.26. It is submitted that this decision considers the law laid down in Leary vs. National Union of Vehicle Builders 27 which has been referred by the Supreme Court in the decision in Institute of Chartered Accountants of India vs. L.K. Ratna & Ors. 28. It is submitted that the decision in Ferd Dawson Calvin vs. John Henry Brownlow Carr & Ors. (supra) has also been followed by the Division Bench of this Court in Air India Corporation vs. Richard Rashid Khan 29 and noticed by the Supreme Court in the case of State Bank of Patiala and Ors. Vs. S.K. Sharma30. It is submitted that the decision of Privy Council in Ferd Dawson Calvin vs. John Henry Brownlow Carr & Ors. (supra) has also been followed by the Privy Council in Lloyds vs. McMahon31 which is also noticed by a Full Bench of this Court in Shantilal Ambalal Mehta vs. M.A. Rangaswamy32 and the Supreme Court in Kanwar Natwar Singh vs. Director of Enforcement and Ors.33.

79. Mr.Jagtiani referring to the above decisions, would submit that there cannot be any complaint of the petitioner on this count, as 26 (1980) A.C. 574 27 (1971) 1 Ch. 34 at 49 28 AIR 1987 SC 71 29 (1983) 1 LLJ 125 Bom.

 30   (1996) 3 SCC 364
 31   (1987) AC 87
 32   1977 SCC OnLine Bom 69
 33   (2010) 13 SCC 255




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the AGRC has fully and exhaustively heard all the parties at length on all the documents and even on the documents in regard to which the petitioner complained that they were not furnished before the CEO, SRA. It is submitted that the AGRC has found that even after consideration of these documents, there is no need to remand the matter back to the CEO, SRA and that there was no infirmity alleged or otherwise in the orders which are passed by the CEO, SRA warranting interference by the AGRC. It is thus submitted that there is no denial of natural justice to the petitioner and the defect if any in the proceedings before the CEO, SRA was duly cured by the AGRC with a practical alternative of rehearing the parties instead of remanding back the matter to the CEO, SRA. It is submitted that the AGRC had the jurisdiction to reconsider on merits all the issues considered by the CEO, SRA as well as issues which were not raised by the petitioner before the CEO, SRA and which were raised by the petitioner before the AGRC and thus no prejudice was caused to the petitioner on account of the CEO, SRA considering the 7 documents filed on 8 May 2015 without notice to the petitioner as alleged. As a hearing was granted to the petitioner on all these documents and even otherwise on grounds which were not raised by the petitioner before the CEO, SRA as argued by the petitioner before the AGRC, which have been exhaustively dealt with, in the impugned order dated 11 January 2018 passed by the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 73 final New Janata.doc AGRC. Hence the petitioner's contention that there is any breach of the principles of natural justice, cannot be accepted.

80. Mr.Jagtiani would next submit that on a reading of Rules 7 and 8 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Grievance Redressal Committees) Rules, 2014, it is clear that the AGRC has the requisite jurisdiction to reconsider and hear de novo, all issues raised by the parties, whether such issues were raised before the CEO, SRA or not. It is submitted that the relevant provisions of these rules provide for the powers of the AGRC to call for records, require attendance of any person, direct any officer to undertake inspection, engage third parties to undertake inspection, initiate proceedings suo moto (Rule 7(2)(iv)), undertake local inspection (Rule 7(3)), and hear new points of fact raised by the appellant before the AGRC. It is submitted that the AGRC has discretion under Rule 8(2) of the said Rules to dispose of an appeal by remanding it back for disposal as per the provisions of the Slums Act and respective DCRs to the concerned officer or authority. It is submitted that the AGRC has, by recording reasons chosen not to remand the matter back to the CEO, SRA.

81. Mr.Jagtiani would submit that the AGRC also considered ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 74 final New Janata.doc submissions of the petitioner in respect to change in shareholding of respondent No.5 which were never made before the CEO, SRA or in the applications filed before the AGRC. It is submitted that as such the proceedings before the AGRC were in the nature of a continued trial where parties were heard de novo with respect to several issues, including those which were never raised before the CEO, SRA but were argued at the first instance before the AGRC.

82. Mr.Jagtiani has submitted that no prejudice was caused to the petitioner, in as much as the AGRC has given the petitioner and other parties sufficient opportunity to deal with all documents filed before the CEO, SRA. Referring to the decision of the Supreme Court in Aligarh Muslim University & Ors. vs. Mansoor Ali Khan 34, it is submitted that mere lack of opportunity to be heard would not suffice and the same must be coupled with prejudice. It is submitted that no material has been furnished and no pleadings have been made by the petitioner with respect to prejudice suffered. It is thus contended that there is no prejudice to the petitioner on account of the CEO, SRA taking on record and considering the documents filed after the matter was closed after hearings.





 34 (2000) 7 SCC 529




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83. Mr. Jagtiani would next submit that apart from the above submissions, it is well settled that the interference of the Writ Court in Slum Rehabilitation matters must be limited to issues which remain unresolved despite the remedy of appeal being exhausted. It is submitted that in the present case, the dispute was fully and substantially heard and disposed of by the appellate authority namely the AGRC and no grievance is made that any dispute remains unresolved after the disposal of the said appeals. To support the submissions, reliance is placed on the full bench of this Court in Tulsiwadi Navnirman Coop. Housing Society Ltd. and Ors. vs. State of Maharashtra and Ors.35.

84. It is next submitted that the statutory scheme prescribed under the Slums Act expressly permits the change in shareholding of the developer appointed in respect of a slum rehabilitation area. Mr.Jagtiani has referred to Section 3V of the Slums Act which prescribes the power of the Slum Rehabilitation Authority to make regulations consistent with the Slums Act and the rules made thereunder, for all or any of the matters to be provided under the Slums Act by regulations and generally for all other matters for which provisions is, in the opinion of the SRA, necessary for the exercise of its 35 2007(6) Mh.L.J. 851 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 76 final New Janata.doc powers and the discharge of its functions under the Act. He refers Section 3A of the Slums Act which empowers the Slum Rehabilitation Authority to take necessary actions in order to achieve the object of rehabilitation of slums. It is submitted that the Slum Rehabilitation Authority in exercise of the aforesaid powers, had issued Office Order bearing No. SRA/CEO/office order 19/2015 dated 23 rd March 2015 in regard to 'Fees payable after change of Developer / Partner / Director while Implementing the Slum Rehabilitation Scheme' ("Office Order"). It is submitted that this office order acknowledges and notes that 'Sometimes the Partnership Firm, Joint Venture or Company is totally replaced or taken over by new partners of Directors. The said Office Order also identifies at Clauses (II) to (IV) different categories of changes that may take place in the partnership firm/company which is undertaking the slum rehabilitation scheme. It is submitted that in order to effectively regulate the same, the office order requires the developer to intimate the said changes to the SRA and make payment of fees/charges for carrying out the same. The office order also prescribes for imposition of a fine on account of failure to intimate the said changes within the prescribed time. It is submitted that Clause (IV) of the said office order provides for intimation and payment of fees on account of retirement of any partner / Director proportionate to the share of incoming partners when the Developer is a partnership firm or ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 77 final New Janata.doc a Private Limited Company / or LLP. Clause (IV) of the Office order therefore, permits change in shareholding of the developer on payment of charges as per Clause (I) of the office order. It is submitted that on a plain reading of the office order, it is clear that the office order under the Slums Act always permitted and continues to permit a change in the shareholding of the developer entity. It is submitted that it was never the case of respondent No.8 SLK Buildcon Pvt. Ltd. before the AGRC that change in controlling shareholding is not permitted under the Slums Act and rules and regulations made thereunder. It is submitted that on the contrary, as recorded in the impugned order dated 11 January 2018, it was respondent No.7's case that the change in shareholding is illegal in as much as it was not intimated to the SRA and for which applicable fees were not paid as per the said office order. It is submitted that it is also not the petitioner's case that the said office order is illegal or ultra vires the Slums Act and in fact, there is no challenge to the office order in these petitions.

85. It is submitted that the purpose of the said office order was to regulate the change in partnership/directorship/shareholding of the developer, in respect of which there was an observable lacunae. It is thus submitted that the Slums Act read with the said office order permits the change in shareholding of the developer which is a private ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 78 final New Janata.doc limited company. Mr.Jagtiani would submit that the office order clarifies the position in this regard and makes it expressly clear that change in shareholding is permitted by the developer who is required to intimate the fact of the change to the SRA. It is submitted that a failure to give such intimation within the prescribed time, does not result in the termination of the developer's right to continue with the slum rehabilitation scheme. This for the reason that Clause (I) of the office order prescribes the consequences of the failure to intimate such change i.e. a fine equal to five times the applicable charge. It is submitted that even Clause (VIII) makes it clear that the termination of a non-performing developer by the CEO, SRA is distinct from the ambit of the office order which only contemplates a fine to be paid for failure to make the said intimation. It is contended that in fact the fees payable for change in shareholding is linked to the percentage of shareholding which is undergoing change and a higher fee is recovered if there is a substantial change in the shareholding of the developer.

86. It is next submitted that the corporate and legal identity of the developer, which is a private limited company, does not change on account of change in shareholding 'even if the same is a change of controlling shareholding' of the developer. It is submitted that a change in the shareholding of the developer is not in derogation to the Slums ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 79 final New Janata.doc Act and the same does not amount to a change in the developer which is prohibited except in accordance with Section 13 of the Slums Act. It is submitted that in the affidavit filed on behalf of SRA dated 17 September 2018, it is categorically stated that respondent No.5 has submitted all relevant documents showing the change in shareholding for the purpose of issuance of Annexure III to the SRA and even as on date respondent No.5 is continuing to be on record of the SRA as developer for implementation of slum rehabilitation scheme on the subject property and transfer fee shall be recovered by SRA from respondent No.5 as per SRA Norms in respect of transfer of shares. It is thus submitted that as such the change in shareholding by the developer will not result in any revenue loss as submitted by the petitioner and the position in this regard is clearly covered by the Office Order. It is submitted that the statutory scheme prescribed under the Slums Act also permits the change in shareholding of the developer appointed with respect to a slum rehabilitation scheme, even after the consent is given by the society of slum dwellers.

87. In the alternative de hors the office order dated 23 March 2015, Mr. Jagtiani would submit that the change in shareholding of respondent No.5 does not amount to a change in the developer in respect of the slum rehabilitation scheme. In this context, it is ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 80 final New Janata.doc submitted that in Section 3(B)(6) refers to a developer as including a company incorporated under the Companies Act, 2013. Any reference to a company under the Companies Act, 2013 necessarily means that under no circumstances can it be conferred with the identity of its shareholders. To support the submissions, reference is made to the decision of the Supreme Court in Bacha F. Guzdar v. CIT36 wherein it is held that the company is a juristic person and is distinct from the shareholders wherein the supreme Court has referred to Halsbury's Laws of England, Volume 6 (3rd Ed.), page 234 as to the law regarding the attributes of shares.

88. It is submitted that applying these general principles of corporate law, a company is (subject to very limited exceptions) a separate juristic person enjoying perpetual succession and where the developer is a company a mere change in shareholding does not alter the identity of the company i.e. the developer. It is submitted that a company registered under Indian legislation is entitled to alter its shareholding in the manner prescribed under the Companies Act, 2013 and invite subscription to its shares. It is submitted that this is a prerogative of the company and is not expressly, or by necessary implication, restricted by the Slums Act. The Slums Act and the 36 AIR 1955 S.C. 74 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 81 final New Janata.doc statutory scheme prescribed thereunder, contemplates and permits companies to participate in the rehabilitation of slum areas, permits, by necessary implication, all corporate actions which a company is entitled to undertake. Thus it is submitted that there is a legal presumption that the legislature was presumed to be aware of the separate juristic status of a company which enjoys perpetual succession, and inferring an implied restriction to the change in shareholding under the Slums Act militates against the legal presumption in as much as if the legislature, being cognizant of this position, would have prohibited a change in controlling shareholding of a developer if that was its intent.

89. It is next submitted that the contention as urged on behalf of the petitioner that the corporate veil be lifted to ascertain whether the separate legal entity of a company is being used to perpetrate a fraud or circumvent the application of applicable law, is misconceived. This for the reason that a change in shareholding of respondent No.5 does not amount to a change of developer, either directly, or indirectly. It is submitted that such a change is not a fraud on the statute, i.e. the Slums Act. It is hence submitted that there is no merit in the petitioner's submission that there is a change in the identity of the developer or that the consent given to the developer stands vitiated on account of change in the shareholding of respondent No.5. It is ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 82 final New Janata.doc accordingly submitted that on all these counts the petitions be rejected. Submissions on behalf of Respondent No.5 :-

90. Mr.Ravi Kadam, learned Senior Counsel for respondent No.5 has made the following submissions:-

91. Mr. Kadam at the outset, has argued on the object and intention of the Slums Act to contend that the intention of legislation is to make better provision for the improvement and clearance of slum areas in the State and their redevelopment and for protection of occupiers from eviction and distress warrants. Referring to the long title and the Preamble of the Act, it is submitted that the Slums Act is a social welfare legislation framed with the object of tackling and addressing the social evil of slums. It is submitted that the Slums Act is not permanent legislation, but a temporary measure enacted to solve such social problems. It is submitted that the object and nature of the Slums Act being a temporary measure, was first recognized by a Division Bench of this Court in State of Maharashtra vs. Shri Mahadeo Pandharinath Dhole and Others37. It is submitted that after 1991 and pursuant to the Afzalpurkar Committee, Chapter I-A was introduced into the Slums Act by Maharashtra Act IV of 1996 and was further 37 AIR 1980 Bombay 348 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 83 final New Janata.doc amended by Maharashtra Act VI of 1997. It is submitted that Section 3A, which was brought under these amendments, contemplated the constitution of a Slum Rehabilitation Authority, which under Section 3A(3) had expansive regulatory power to survey and review existing positions regarding slum areas; to formulate schemes for rehabilitation of slum areas; to get the Slum Rehabilitation Scheme implemented and to do all such other acts and things necessary for achieving the objects of rehabilitation of slums. It is submitted that DCR 33(10) was also introduced into the 1991 Development Control Regulations for providing additional incentives (FSI) for slum development, subject to the conditions therein and the conditions as set out in Appendix IV. It is thus submitted that looking at all these legislative developments, it is apparent that it always was (and more particularly after 1996), the Act's object to expedite and eventually complete the rehabilitation of slums at the earliest without any delay. It is submitted that for these reasons, the impugned actions must be assessed and tested by this Court, principally keeping in mind, the fact that the decisions in the present case were taken by the authorities in pursuance of the Act's objects of hastening slum eradication and rehabilitation.

92. In regard to the petitioner's contention that there was willful delay on the part of respondent no.5 in implementing the slums ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 84 final New Janata.doc scheme, Mr.Kadam would submit that the case of the petitioner in this regard is unfounded and is appropriately rejected by both the Authorities below. It is submitted that between 2006 to 2008, respondent no.5 took steps to obtain individual and irrevocable consent from the members of the three societies and executed individual agreements as also obtained documents for draft Annexure II between 2006 to 2008. In 2008 a proposal was submitted to SRA for implementing the composite scheme which was acted upon by the SRA in 2008. Thereafter respondent no.5 in pursuance of the desire of the members of adjoining plot to join the scheme, an application was made by respondent no.5 to the authorities for C.S. numbers for these unnumbered plots, and after allotment of C.S. numbers, a revised proposal for implementing a composite scheme to input new survey numbers (C.S.no.2124). This revised proposal and respondent no.5's mandate as developer for the revised scheme was ratified by all societies in separate general body meetings. SRA also acted upon this proposal and issued a report on the same and in turn the Deputy Collector and the competent authority issued Annexure II report which was forwarded to the SRA and thereafter to the Engineering Department in 2013. Respondent no.5 also took steps seeking rejection of the proposed D.P. Road as an effort to clear reservations. Thereafter on 6 June 2014, respondent no.5 applied for LOI which was in ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 85 final New Janata.doc pursuance of respondent no.5's assurance that it would complete the work of redevelopment and for that it would obtain LOI for implementation of slum scheme latest by 30 June 2014. On respondent no.5's application for LOI on 6 June 2014, a draft was prepared on 23 June 2014 and put up for approval of the Engineering Department on 26 June 2014 and thus respondent no.5 was well on course to obtain LOI by 30 August 2014.

93. It is submitted that realizing that if LOI is issued in favour of respondent no.5, the entire case of the petitioner on delay would be lost, the process was stymied and delayed by the petitioners themselves via a purported GBR dated 15 June 2014 by which the petitioner appointed SLK Buildcon/respondent no.7 and also complaints dated 18 June 2014 and 27 June 2014 were made. It is submitted that as the draft LOI was approved which was in fact complete and pending since 26 June 2014, the same was illegally deferred by the CEO, SRA with an erroneous direction to hold meetings to determine who should be the developer. It is submitted that the attempts were made to derail the composite scheme being submitted by the petitioner and delayed the implementation between June 2014 to February 2016. It is submitted that substantial time and effort of respondent no.5 was expended in proceedings before the Divisional Joint Registrar in 2014 and the writ ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 86 final New Janata.doc proceedings arising from the order of the Divisional Joint Registrar from 2014. It is submitted that there were proceedings in 2014 before the HPC to set aside the CEO's illegal order dated 14 July 2014 to defer processing of respondent no.5's LOI and directions to hold meeting. It is further submitted that writ petitions were filed in 2015 seeking quashing of HPC's order dated 5 March 2015 which in turn had set aside the CEO's order of 14 July 2014 for deferral of respondent no.5's LOI proposal. It is submitted that even these writ petitions were dismissed. It is submitted that thereafter, second round of litigation was initiated by the petitioner under Section 13(2) before the CEO SRA. It is submitted that because of these intervening events, respondent no.5 could only obtain the LOI which was finally issued on 5 February 2016 the approval of which was pending since 23 June 2014. It is submitted that since nearly 70% of the eligible slum dwellers have acted in furtherance of the scheme and a substantial number of their structures, have been demolished and thereafter, environmental clearance and development permissions i.e., IOA and CC for rehab building for the scheme were also obtained. It is submitted that all these facts plainly demonstrate that respondent no.5 has taken concrete steps to complete the scheme and obtain the LOI. It is submitted that in fact it is the petitioner who had thwarted the scheme at the eleventh hour by the petitioner's meeting so convened on 15 July 2014 to ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 87 final New Janata.doc appoint a rival developer and generated litigation which could be resolved only in a time period of two years. It is submitted that in these circumstances, there was no justifiable basis that would warrant termination of respondent no.5's appointment.

94. It is submitted that the CEO SRA has rightly observed as under:-

(a) In view of the CRZ notified area, the 60.80 mtrs. wide DP Road, the proposed metro line and available area being only 25% for rehabilitation

(b) These constraints entailed that area available for actual construction on site was hardly sufficient for rehabilitation of eligible slum dwellers.

(c) That there was substance in the submission of respondent No.5 that the June, 2014 termination was at the behest of the rival developer who wanted to takeover the subject SR Scheme after resolution of CRZ issue and that there was no willful delay on the part of respondent no.5.

(d) That in the facts of the case, the slum dwellers ought not to be allowed to revoke the consent since there is no wilful delay.

95. It is submitted that these findings thereafter were ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 88 final New Janata.doc considered by AGRC which was itself a body comprised of experts such as the Additional Municipal Commissioner, Vice President MHADA, Additional Chief Secretary, Housing Department etc. It is submitted that after considering the material on record and CEO's findings, the AGRC also reached a similar reasoned decision that there was no case for terminating respondent no.5's appointment. It is submitted that it is a possible view which has been taken by both the authorities and on this count the petition would not require any interference.

96. It is next submitted that the petitioner has failed to make out a case to disturb the concurrent findings of fact under Article 226 of the Constitution. This submission is being supported by contending that the petitioner whilst impugning these findings, does not suggest that these findings are perverse or they are such that no reasonable body of persons would arrive at. It is submitted that the thrust of the petitioner's case as borne out by record and from their submissions is that these findings are erroneous, and that the reservations were already present, when respondent no.5 was appointed as a developer. It is submitted that this contention of the petitioner is per se unfounded. It is submitted that these challenges are ex-facie challenges of fact and are ordinarily not entertained by the Court in exercising writ jurisdiction. It is submitted that in the teeth of concurrent findings that ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 89 final New Janata.doc held that delay cannot be attributed to respondent no.5, such concurrent findings on facts ought not to be disturbed, unless a case is made out to establish perversity or that they evince conclusions that no reasonable body would arrive at. It is submitted that even insufficiency of evidence is not a basis for interdicting concurrent findings. This submission is being supported by relying on the decision of the Supreme Court in Union of India Vs. Mustafa38 and in BSNL vs. Bhurumal39. It is submitted that the petitioner's reliance on Hi Tech India Construction Vs. SRA (supra) is misplaced since this judgment infact confirms that the High Court does not interfere in cases where concurrent findings of the SRA and HPC are based on possible views.

97. It is next submitted that the petitioner's submissions that the CEO SRA was influenced by the HPC's order dated 29 February 2015, is also incorrect and cannot be accepted. This for the reason that the CEO SRA considered the LOI report dated 23 June 2014 and thereafter recorded his own view. It is submitted that after considering these conditions, the CEO SRA was of the view that the scheme itself was not viable due to these hurdles. As it is submitted that as a passing remark, the CEO SRA has also remarked that a similar conclusion had also been drawn by the HPC in its earlier order of 29 February 2015. It 38 (1998)6 SCC 79 39 (2014)7 SCC 177 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 90 final New Janata.doc is submitted that this passing observation was made in addition to his own findings and does not detract from his independent assessment carried out, as clearly seen from the CEO's order. Submissions on Natural justice :-

98. It is submitted that the petitioner's contention that there is breach of principles of natural justice when the petitioner was not granted an opportunity to deal with three General Body Resolutions dated 3 May 2014 (of respondent no.8), dated 4 May 2014 (of respondent no.9) and 7 May 2014 (of the petitioner) is misconceived.

It is submitted that there has been no breach of principles of natural justice, as also, this contention of the petitioner is false for the reason, since the CEO SRA has specifically recorded the fact that respondent no.5's counsel during his arguments, had made submissions on these three GBRs. It is submitted that whilst arguments were advanced by the learned Counsel on these GBRs during the hearing, copies of the same were only tendered pursuant to the CEO's directions after the hearing. This is clear from the observations as made by the CEO regarding the arguments as made on behalf of respondent no.5. It is thus submitted that the plea as urged on behalf of the petitioner that these issues were not argued is ex-facie false. It is submitted that the petitioner has disputed the factum of an oral direction being given by the CEO to ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 91 final New Janata.doc submit the document, however, the petitioner has not disputed the specific case of respondent no.5 in the pleadings before the AGRC that it's counsel had made submissions and referred to and relied upon these three GBRs during the hearing before the CEO-SRA. The Court's attention in this regard is drawn to respondent no.5's reply dated 28 July 2016 (page 1032 of the paper book) to contend that it has not been rebutted by the petitioner and reference is made to rejoinder affidavit dated 3 August 2016 paragraph 13 thereof (page 1140 of the paperbook). It is submitted that the CEO SRA recorded his findings that there was no willful delay upon an assessment of the facts of the scheme and the LOI report 14 July 2014. It is submitted that a plain reading of the CEO-SRA's order demonstrates that his findings, that there was no willful delay, were independent and not dependent on the May 2014 GBRs. It is submitted that even the AGRC's findings that there was no willful delay, are based on the other materials and not the May 2014 GBRs. Thus, there is no case made out for establishing de facto prejudice, necessary to claim a breach of principles of natural justice. To support this contention Mr.Kadam has relied on the decision in Haryana Financial Corporation & Anr. Vs. Kailash Chandra 40 and on the decision in Aligarh Muslim University Vs. Mansoor Ali Khan41. It is submitted that GBRs were relied upon by the CEO, SRA to hold that the 40 (2008)9 SCC 31 41 (2000)7 SCC 529 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 92 final New Janata.doc societies had purported to terminate in June 2014 at the rival developer's behest. It is next submitted that in May 2014, GBRs always formed a part of the SRA's record maintained in respect of the scheme and this position has been confirmed by the SRA in its affidavit in reply (paragraph 10) which has not been disputed. It is submitted that it is on this premise the CEO SRA was well within his rights even as a Planning Authority to consider and assess this material.

99. It next submitted that the petitioner lacks locus to challenge the GBRs of 3 May 2014, 4 May 2014 since they relate to respondent nos.8 and 9, who support the scheme of respondent no.5.

100. It is submitted that even before the HPC, the petitioner's substantive case on these May 2014's GBRs being fabricated, was vague as borne out by its written submissions. It is submitted that the petitioner's case that the May 2014 General Body Meetings were held inside respondent no.5's office at Hindu Colony, Dadar, is also contrary to the minutes of the General Body Meetings itself, which clearly state that the same were held on the ground floor of the said premises. It is submitted that the minutes, attendance register etc. are on record, hence, the allegations and submissions as made on behalf of the petitioner that the meetings never took place, are clearly erroneous, ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 93 final New Janata.doc false and contrary to the record. It is next submitted that inspite of an opportunity being granted, the petitioner did not even attempt to dispute the authenticity of the other documents that is the documents other than 2014 General Body Resolutions of the petitioners and respondent nos.8 and 9 of the societies. Without prejudice it is submitted that apart form the case of inordinate delay in the Section 13(2) application, the petitioner was also allowed to raise further contentions on alleged fraud in regard to GBRs of May 2014 and change in shareholding of respondent no.5 and the AGRC also decided these issues though the same could not be raised under Section 13(2) and were certainly not part of the show cause notice dated 20 April 2016 issued by the CEO, SRA to respondent no.5. It is submitted that affidavits were filed during the period 7 July 2016 to 9 August 2017 by the parties before the AGRC in Application no.83 of 2016 and 220 of 2016. Even on this count there can be no grievance that the proceedings were not substantive.

101. Mr.Kadam, thereafter, has made extensive submission that reliance on behalf of the petitioner on the decision in L.K.Ratna (supra) is misconceived. Mr.Kadam's submission on this issue are similar to the submissions of Mr. Jagtiani. Mr. Kadam would add that L.K.Ratna (supra) was also distinguished by the Supreme Court in United ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 94 final New Janata.doc Planters Vs. K.G.Sangameswaran42 wherein the Supreme Court held that L.K.Ratna (supra) would not strictly apply in cases where the Appellate Authority could come to its own conclusion irrespective of the findings recorded in the domestic equity. Mr.Kadam would submit that in Jayantilal Vs. RBI43 the Constitution Bench held that a post decisional hearing by the Appellate Authority was sufficient to cure an initial defect of non-grant of hearing. It is submitted that Partha Ghosh & Anr. Vs. Institute of Chartered Accountants of India 44 was also the case of a Chartered Accountant which follows L.K.Ratna (supra). It is submitted that AGRC Rules,2014 enable the AGRC to do its own fact finding, and further entertain new points of fact. It is clear from Rule 7(2) which enables the AGRC to call for any record or require attendance of any person to facilitate and expedite disposal of the Appeals. It is submitted that the AGRC is competent to call for records, persons and materials necessary to arrive at its own finding on facts. Rule 7(6) of the AGRC Rules,2014 enables the AGRC to exercise jurisdiction to entertain new points of facts. It is submitted that in the present case the AGRC has exercised its discretion in favour of the petitioner and permitted it to deal with the additional documents brought on record and additionally canvass new points of facts and law 42 (1997)4 SCC 741 43 (1996)9 SCC 650 44 (2009)3 Bom.C.R. 610 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 95 final New Janata.doc in appeal namely the alleged fraud in GBRs and change in shareholding. It is submitted that in all, 14 affidavits were filed before the AGRC. It is submitted that in these circumstances, the petitioner has clearly had a 'fair deal' before the AGRC and can hardly contend a violation of the principles of natural justice.

102. It is submitted that in any case it is well settled that an Appeal is a continuation of the trial proceedings as held in Kamla Devi V. Kushal Kanwar & Anr.45 and thus the Appeal Court / Authority can consider all the material at the trial stage as also the additional material produced at the appellate stage, as also subsequent events interalia to do complete justice between the parties, to enable the Appeal Court to pronounce judgment in a more satisfactory manner or for any other substantial cause. In making this submission, reliance is placed on the decision of the Supreme Court in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das 46 and the decision in Pasupuleti Venkateswarlu Vs. The Motor & General Traders 47. It is submitted that the AGRC by allowing the petitioner to raise additional contentions such as fraud in the alleged GBRs and change in shareholding, has given every conceivable opportunity to the petitioner.



 45 (2006)13 SCC 295
 46 (2008)8 SCC 511
 47 (1975)1 SCC 770




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It is submitted that the petitioner has, therefore, failed to show a real prejudice to it and hence the contention about violation of principles of natural justice is completely misconceived, untenable and liable to be rejected. It is submitted that the petitioner's reliance on the decision of Suresh Dhanuka's case (supra), on the decision in Platinum Realty (supra), then on Associated Tubewells Ltd. Vs. Gujarmal Modi (supra), and the decision in Shantidevi Yadav Vs. State of Maharashtra (supra) are misplaced.

SUBMISSIONS ON CHANGE IN SHAREHOLDING :-

103. It is submitted that the fundamental fallacy in SLK Buildcon's argument is that the Slums Act does not forbid and/or prohibit the appointment of a company and/or corporate entity as a developer. It is submitted that the fact that the statute and the law permits a company to be appointed as a developer, itself indicates the State legislature's acceptance that a company enjoys a separate juristic identity as an artificial person with a common seal and perpetual succession. It is submitted that by law, it enjoys identity distinct from its shareholders, and further the transactions between the company and third parties are not transactions between the shareholders and third parties. To support this submission, reliance is placed on the decision in ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 97 final New Janata.doc Bacha Guzdar Vs. CIT48 and on the decision in Bakul Kapadia Vs. Bank of India49.

104. It is submitted that the person who submitted the proposal and who has been issued an LOI remains the same namely respondent no.5 and thus the developer remains the same. It is submitted that the SRA has considered respondent no.5's application and considered it fit to implement the scheme.

105. It is next submitted that the SRA has issued Office Order no.19/2015 dated 23 March 2015 and the subject of the order being "fees payable after change of developer/partner/director whilst implementing the slum rehabilitation schemes." It is submitted that the subject itself establishes the order's purpose of collecting fees and not to accord permission. It further indicates that this order operates whilst the scheme is being implemented, and the implementation of the scheme only arises after issuance of the LOI. It is submitted that a bare reading of this order dated 23 March 2015, further establishes that changes in shareholding are to be intimated post facto to the SRA within 30 days, and there is no requirement to seek prior permission.

It is submitted that failure to notify is met with a fine and not a refusal 48 (1955)1 SCR 876 49 (1994)1 Bom CR 313 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 98 final New Janata.doc of permission or refusal to recognize changes. It is submitted that a failure to pay this fine is curable and not a defect that strikes at the root of the LOI. It is submitted that as and when the SRA raises a demand for premium on respondent no.5, it will pay the same to SRA. It is submitted that payment of premium as per the said order dated 23 March 2015 is a matter entirely between the SRA and respondent no.5 and the slum dwellers who merely have a right of rehabilitation, would thus have no concerned with the same. It is submitted that even the SRA confirms in paragraph 11 of its affidavit dated 17 September 2018 that there is no restriction on transfer of shares. It is submitted that there is no challenge to this office order of CEO SRA dated 23 March 2015 in the petition and in the absence of challenge it must be presumed to be valid and part of the statute. It is thus submitted that it is quite clear that there can be no basis for contending that there is a fraud on statute that is Slums Act, DCR 33(10) and Appendix IV when the same does not and cannot bar transfer of shares which is a subject matter within the exclusive domain of the Companies Act,1956.

106. It is next submitted that the power to frame legislation regarding incorporation, regulation and winding up of companies/corporations being juristic entities, is exclusively conferred on Parliament under Entries 43 and 44 of List I to Schedule VII to the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 99 final New Janata.doc Constitution of India. On the other hand the State legislatures do not have any such powers under the List II or III of the Schedule VII to the Constitution of India. It is thus submitted that notwithstanding the absence of a bar, the Act must be interpreted keeping in mind the general principle that the State does not possess legislative competence to enact a bar that would override the Companies Act which provides for free transferability of shares. It is submitted that the case of the petitioner that there is an implied bar under the Slums Act, DCR 33(10) and Appendix IV of the DC Regulations proceeds on a patent misreading of the Act.

107. It is submitted that the slum occupants do not have a right, title or interest in the land that is sought to be rehabilitated as a slum and also they do not possess a right to decide which society or developer implements the scheme, they only possess a right to a tenement. In supporting this, reliance is placed on paragraphs 12 and 13 of the decision in Awdesh Tiwari V. CEO (supra). It is submitted that the petitioner-society and SLK Buildcon have failed to make out a case as to how a change in shareholding would defeat the rights of the slum occupants to tenements in the scheme.

108. It is next submitted that the law is well settled that a bar ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 100 final New Janata.doc on transfer should not be readily inferred especially when the transfer has no relevance or nexus to the object of the regulatory act in question. It is submitted that the bar on transfer operates as expropriatory legislation and must be strictly construed and it must be clear and unambiguous. It is submitted that the scheme under the LOI requires respondent no.5 to develop the slum area and the change in its shareholding would have no impact on this purpose. This submission is supported by referring to the decision in DLF Wutab Enclave Complex Educational Charitable Trust Vs. State of Harayana50.

109. It is next submitted that the SRA has confirmed that changes in shareholding were intimated to it alongwith Annexure III, and even the AGRC has arrived at such a finding. This is clear from the affidavit as filed on behalf of the SRA (page 2097) and also from paragraph 14 of the HPC order dated 11 January 2018. It is submitted that the allegation of the petitioner that the SRA mysteriously learnt of the same without being intimated amounts to an allegation that an office of the SRA colluded with respondent no.5, and such an allegation amounts to an allegation of personal malafides against the officer concerned. It is submitted that it is well settled that an enquiry into personal malafides cannot be carried out in the absence of the person 50 (2003)5 SCC 622 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 101 final New Janata.doc against whom the malafides are attributed and the malafides must also be established with cogent material and pleaded with material particulars. It is submitted that the petitioner has failed to do so. It is thus submitted that the allegations of malafides are bogus, afterthought and must be rejected in limine. In support of this contention, reliance is placed on the decision in State of Bihar Vs. P.P.Sharma51

110. Without prejudice to the aforesaid submissions, it is submitted that the Authority cannot travel beyond the allegations of the show cause notice and expand the scope of the proceedings. It is submitted that in the present case, the SRA issued a show cause notice dated 20 April 2016 to seek an explanation on the cause for delay, and thus the case for change of shareholding traveled beyond the notice and must be ignored. In support of this submission, reliance is placed on the decision in Bhor Industries Vs. Union52; Babubhai Patel Vs. Collector of Customs53; Nirmal Realtors vs. SRA54

111. It is submitted that the allegations and issue relating to a change in shareholding were first raised by the Petitioner in its appeal and through an additional affidavit filed after the institution of its 51 (1992) Supp (1) SCC 222 52 (2011)266 ELT 444 53 (1993)68 ELT 734 54 2017 SCC Online Bom 9201 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 102 final New Janata.doc appeals. It is submitted that no reason or cause was supplied for making these new allegations in appeal. It is submitted that even the AGRC application no.83 of 2016 filed by the petitioner to challenge the LOI was on the ground of delay only and not on the ground of change of shareholding. It is submitted that further, the prayer in application no.83 of 2016 seeking quashing and setting aside of LOI was specifically on the ground of inordinate delay of 9 years. It is thus submitted that thus plainly this issue was beyond the scope of the original proceedings and considering the legal position, it must be ignored.

112. It is next submitted that the petitioner has sought to pitch a case that the slum occupants had reposed faith in the original shareholders. It is submitted that there is no such case pleaded either before the CEO-SRA or before the AGRC. It is submitted that every document has been executed with respondent no.5 and further more such an inquiry would proceed on disputed questions of fact that cannot be gone into under Article 226 of the Constitution.

113. It is next submitted that SLK Buildcon has sought to pitch a case that Clause 43 of the development agreement forbids changes in respondent no.5's shareholding which is plainly misconceived as SLK ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 103 final New Janata.doc has no locus to rely on the development agreement, and further the petitioner itself has not made submissions on this count. It is submitted that lastly the clause itself does not constitute a bar to a change in shareholding. It is submitted that, in fact a majority of the slum dwellers in the scheme, have vacated their structures including 237 eligible members out of 402 eligible members of the petitioner society and the scheme is being implemented and these events have taken place inspite of changes in the shareholding which itself reflects that slum dwellers per-se have no objection.

114. It is next contended that reliance on behalf of SLK Buildcon-respondent no.7 on the decision in Susme Builders Pvt.Ltd. Vs. CEO SRA & Ors. (supra) is misplaced as in the said case inspite of being granted LOI in the year 1995, the developer had not implemented the scheme for nearly 23 years. It is submitted that in this context where willful delay had already been found, the Supreme Court held that the developer had not bothered to implement the scheme but instead carried out changes in shareholding.

115. It is next submitted that the petitioner is estopped considering the provisions of the development agreement dated 17 October 2006 from making a prayer for carving out. A reference in ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 104 final New Janata.doc that regard is made to Clause 5 of the agreement and to Clause 14 of the agreement, to contend that the office bearers and members of the petitioner-society had requested respondent no.5 to undertake a slum rehabilitation work. It is submitted that by virtue of Clause 5 of the agreement, all the recitals would form inseparable part of the agreement. It is submitted that Clause 14 specifically provides that there can be no objection from the members of the said societies for transfer / assignment of the benefits thereunder by the developer in favour of any third party. It is submitted that Clause 19 gives right to respondent no.5 to implement the scheme through its own funds or taking financial assistance from third party. It is thus submitted that after having agreed to the terms and conditions, the petitioner cannot approbate and reprobate by contending that the shareholders of respondent no.5 could not have sold their shares to third parties, and such change in shareholding amounts to change of developer and for this reason respondent no.5 ought to be removed as a developer.

116. Mr.Kadam has also made submissions in regard to maintainability of these proceedings contending that the proceedings filed by the petitioner pursuant to the Managing Committee Resolution dated 26 March 2014 are not maintainable. According to Mr.Kadam, the petitioner has pleaded ex facie false and misleading case. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 :::

pvr 105 final New Janata.doc Mr.Kadam has submitted that on 26 March 2016 the managing committee of the petitioner held a meeting to ratify the purported GBR dated 15 June 2014. It is submitted that by the said resolution dated 26 March 2016 it was interalia resolved by the Managing Committee to appoint Mr. Mohammed Farooq Abdul Razzaque Kazi to make an application under Section 13(2) to the CEO SRA to challenge the LOI dated 5 February 2016 before the HPC and to appoint SLK Buildcon Pvt.Ltd. as a new developer. It is submitted that thus the Managing Committee decision dated 26 March 2016 has been deliberately sought to be portrayed as GBR dated 26 March 2016. It is therefore, submitted that the petitioner has not come to Court with clean hands and with Suppressio Veri Suggestio Falsi and therefore, is not entitled to any discretionary and equitable reliefs under Article 226 of the Constitution.

117. It is next submitted that the application under Section 13(2) of the Slums Act can be only filed if the GBR is passed in that regard. It is submitted that in the present case, the application is filed on the basis of the Managing Committee Resolution dated 26 March 2016 by the Honorary Secretary, hence, at the best it is a petition/proceedings filed by any individual slum dweller who is the elected secretary of the petitioner to the management committee ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 106 final New Janata.doc resolution dated 26 March 2016 which not not maintainable in law. It is further submitted that the petitioner's reliance on GBR dated 15 June 2014 is clearly misconceived as the same was held to be invalid as held in paragraph 10 of the order dated 5 March 2015 passed on Application No.3 and 4 of 2015 as confirmed by this Court.

118. It is submitted that the petitioner has realised that it cannot rely on the management committee's resolution and therefore, falsely couched the same as GBR in the proceedings for change of developer under Section 13(2).

119. It is submitted that it was a matter of record that the general body meeting dated 15 June 2016 was convened and held in contravention of law and without authorised representative to be present and thus the resolution passed in the said meeting was wholly illegal and a nullity. It is further submitted that it is well settled that the contention of validity of the decision that is null and void can be set up wherever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. It is thus submitted that the proceedings initiated by the petitioner on the basis of GBR dated 15 June 2014 are without lawful authority. It is therefore, submitted that application no.83 of 2016 filed under Section ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 107 final New Janata.doc 13(2), GBR dated 5 April 2016 and Application no.110 of 2016 were liable to be ignored on this ground alone.

Submission on General Body Resolution dated 7th May-2014 :-

120. It is submitted that the LOI dated 5 February 2016 was issued by SRA to respondent no.5 on the basis of proposal dated 27 August 2008 and revised proposal dated 4 December 2009 which were submitted on the basis of GBRs of all the three societies held in 2006 and 2009, stated to be the first and second GBR's respectively, as also the individual consents given by 658 out of 804 eligible slum dwellers which constituted 81.84% in favour of respondent no.5. That the petitioner has not challenged the GBRs of 2006 and 2009 as also the individual consent as given by the slum dwellers. The LOI report clearly refers to the proposal dated 27 August 2008 and 4 December 2009 as also to the said individual consents. It is submitted that for this reason the challenge in application No. 83 of 2016 as also in the present petition to the LOI dated 5 February 2016 on the basis of alleged fraud in the GBRs of May-2014 is misconceived and untenable.

121. It is next submitted that the petitioner lacks locus to challenge the GBRs dated 4 May 2014 and 3 May 2014 of respondent ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 108 final New Janata.doc nos. 8 and 9. These GBRs admittedly do not pertain to the petitioner who is solely assailing this GBRs. Respondent nos. 8 and 9 whose resolutions have been challenged by the petitioner have no grievance as they are supporting the implementation of the rehabilitation scheme being undertaken by respondent no.5.

122. It is next submitted that the challenge to GBR dated 7 May 2014 of the petitioner could not have been raised directly before the AGRC, but was required to be challenged in proceeding before a proper forum.

123. It is submitted that the petitioner's challenge to its own GBR dated 7 May 2014 is not only misconceived and untenable but the same is false and frivolous. This for the reason that by November-2017 the AGRC proceedings were closed for orders, at which point of time 237 eligible members out of 402 eligible members of the petitioner (i.e. 58.96% members) had accepted the rent by cheque from respondent no.5. Further 385 members out of petitioner's 671 total members which includes the eligible, ineligible and undecided members (which amounted to 57.38% members) had also accepted rent cheques from respondent no.5. It is submitted that this is a fact which has been recorded by the AGRC in the impugned order dated 11 January 2018 in ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 109 final New Janata.doc para no. 16. It is submitted that in any case there is no challenge in the petition to the said findings of the AGRC which clearly shows the overwhelming support to the scheme enjoyed by respondent no.5. Hence, the challenge to the LOI dated 5 February 2016 on the basis of alleged fraud in the GBR dated 7 May 2014 is liable to be rejected.

124. It is submitted that the General Body Meetings of May, 2014 of all the three societies in fact took place on 3 May 2014, 4 May 2014 and 7 May 2014 respectively in compound of the building Ganesh Bhuvan, Plot no. 71, Hindu Colony, Dadar (East), Mumbai. It is submitted that the minutes of attendance register etc. were on record of the SRA. Hence, the allegations of the petitioner that meetings never took place is incorrect, false and contrary to the record. It is submitted that the minutes of the said 3 GBRs of May, 2014 were duly submitted to the SRA in 2014 and were part of the SRA records. This is also confirmed in para 10 of the affidavit dated 17 September 2018 filed by Mr. Padmakar Rokade, Deputy Collector, SRA in the present petition. Thus, the submissions of the petitioner that the 3 GBRs of May, 2014 never took place as the GBRs surfaced for the first time on 9 May 2016 as the same were not relied upon in Writ Petition No. 8410 of 2014 is false and frivolous. It is submitted that due to inadvertence the said three GBRs of May, 2014 were not referred or brought on ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 110 final New Janata.doc record of the earlier proceedings. Nonetheless, the same were on record of the SRA.

Alternatively and without prejudice to the above submissions, it is submitted that the petitioners challenge to the GBR dated 7 May, 2014 is on three grounds. Firstly, that the meetings allegedly took place in the office of the developer. Secondly, that eight persons out of 206 members had signed twice which indicated foul play and thirdly, that signature of 2 persons were on the document who are apparently deceased.

125. It is submitted that the allegations of the petitioner were dealt by respondent nos. 8 and 9 in para 17 and 18 of the affidavit both dated 18 August 2017, filed before the AGRC wherein respondent nos. 8 and 9 stated that the legal heirs of deceased members had attended the said meetings and sign on the attendance registers and hence there was no fraud as alleged by the petitioner. It is submitted that also in para 24 of the affidavit dated 6 August 2016, filed by respondent no.5 before the AGRC as also in paras 66 to 71 of the written submissions filed before the AGRC, it was submitted that respondent no.5 had no role to play in holding the said GBRs and that, in any event, the legal heirs of the eligible members would be allotted rehabilitation ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 111 final New Janata.doc tenements.

126. It is submitted that in any case 2 out of 4 dead persons were the members of the petitioner namely Ms. Lily A. Koli and Ms. Rukaiya Begum. It is thus submitted that the petitioner has no locus to make allegations about two other dead persons Mr. Mujib Hasan Khan and Mr. Prakash Govind Tamore who were members of respondent nos. 8 and 9 respectively. It is next submitted that the alleged case of fraud in GBRs before the AGRC of about 4 persons is being improvised to 26 persons in this petition as seen from list of dates submitted on behalf of the Petitioner in Writ Petition No.2349 of 2018 which is impermissible in law. A factual issue of such nature cannot be pleaded for the first time in writ petition and which has amounted to improvising the case at subsequent stage by the petitioner, when the same was not pleaded before the AGRC nor it pleaded in the Writ Petition, but directly in the list of dates. As such allegations do not form part of the writ petition, the respondent no.5 had no chance contesting such a case even in the arguments.

127. In the alternative it is submitted that the petitioner does not have locus to challenge GBRs of respondent nos.8 and 9 on the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 112 final New Janata.doc basis of allegations that about 21 persons out of the 26 persons are not members of petitioner. This for the reason that respondent nos. 8 and 9 are supporting the scheme being undertaken by respondent no.5.

128. It is next submitted that in any case the allegations which are made by the petitioner in regard to these persons whether being members of the petitioner's or not and the allegations of fraud and forgery are required to be pleaded with material particulars. The petitioner is required to establish who committed the alleged fraud/forgery in what manner. On vague allegations, that eight signatures are appearing twice is insufficient to allege case of forgery against respondent no.5 and to allege that it has fabricated documents. In supporting to the submissions reliance is placed on the decision of Hon'ble Supreme Court in Bishundeo Narain Vs. Seogeni Rai55.

129. The next submission is that the General Body meetings pertaining to the said GBRs were held in the compound of the building Ganesh Bhavan and not in the office of respondent no. 5 on the 1 st floor of Ganesh Bhavan, as alleged by the petitioner. It is submitted that at the relevant time, the office of respondent no. 5 was admittedly on the 1st floor of the said building. In this context, it is submitted from the 55 AIR 1951 SC 280 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 113 final New Janata.doc reading of the minutes of General Body meetings dated 3 rd May, 2014, 4th May, 2014 and 7th May, 2014 of respondent nos. 9 and 8 and of the petitioner, clearly show that the same were not held in the office of respondent no. 5 on the 1 st floor of the building, but on the ground floor, i.e., compound of the said building. It is submitted that the General Body Meetings were held on 3 rd May, 2014, 4th May, 2014 and 7th May, 2014 and were attended by the respective members of these Societies. It is submitted that hence all the 800 eligible members never attended the meeting on one day. These meetings were independently held on these different dates, and the compound of the said property was sufficient to hold the said meetings. Hence, the allegation of the petitioner and more particularly as made in the submissions that it was not possible for the meetings to be held in the registered office of respondent no. 5, as the same was not large enough to accommodate all 800 eligible members of the said three Societies, is clearly erroneous and contrary to record.

130. In the alternate, it is submitted that in impugning only 12 signatures, namely, 5 persons signing twice plus the signatures of two dead persons, the petitioner has accepted the signatures of the remaining members on the GBR dated 7 th May, 2014 of the petitioner- society. It is submitted that at the best the grievance of the petitioner ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 114 final New Janata.doc can be that the consent of 12 persons must be disregarded in a GBR unanimously passed by all the members present and voting. Thus, the doubts cast by the petitioner on the holding of the GBMs of May 2014 of the three Societies are clearly misconceived and are required to be rejected.

131. It is submitted that the GBRs dated 11 th May, 2014 and 15th June, 2014 of respondent no. 8 and the petitioner and the GBR dated 22nd June, 2014 of respondent no. 9 as passed in the said meetings convened by the purported meeting conveners were also subject matter of challenge in Application Nos. 3 of 2015 and 4 of 2015. It is submitted that the High Power Committee by its order dated 5 th March, 2015 held the said GBR's to be illegal and invalid. It is submitted that the said orders of H.P.C. were also upheld by this Court in its judgment dated 21st September, 2015 passed in Writ Petition No.673 and 674 of 2015, and the said judgment of this Court has attained finality, as the same was not challenged. It is submitted that consequently there was no requirement in law for respondent no.5 to once again get respondent no. 5's appointment confirmed in as much as once the GBRs dated 11th May, 2014, 15th June, 2014 and 22nd June, 2014 were held to be illegal, the purported termination was of no consequence and hence a status quo ante, namely, the status prior to General Body Resolutions ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 115 final New Janata.doc dated 11th May, 2014, 15th June, 2014 and 22nd June, 2014 was restored. It is submitted that in fact after the elections of the three Societies held in March 2016, if the said three Societies wanted to terminate the appointment of respondent no. 5 and to appoint respondent no. 7-SLK Buildcon in respondent nos. 5's place, then it was statutorily incumbent for these Societies to pass fresh General Body Resolutions in that behalf and that too by following a procedure namely requiring the presence of the representative of the Assistant Registrar SRA as per circular no.169 dated 31 st December, 2015 (Page 1139 of the compilation of documents-IV). It is submitted, however, thereafter the petitioner's General Body did not pass a resolution but the Managing Committee passed the resolution dated 26 th March, 2016 thereby purporting to reiterate the General Body Resolution dated 15 th June, 2014 of the petitioner-society which was already declared to be illegal and invalid by the High Power Committee and which orders were upheld by this Court. It is, therefore, submitted that the challenge to the LOI and the Application under section 13(2) by the petitioner on the basis of resolution of the Managing Committee dated 26 th March, 2016 were clearly untenable in law and were rightly rejected.

132. It is submitted that in fact the AGRC in the impugned order dated 11th January, 2018 in paragraph 16 has clearly observed that ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 116 final New Janata.doc during the pendency of the matter before HPC, 644 structures of the occupants were demolished and that out of these 644 demolished structures, structures of 205 occupants were of the members of the petitioner-society.

133. It is submitted that respondent no. 5 or respondent nos. 8 and 9 are not justifying the impugned order dated 11 th January, 2018 passed by AGRC on the basis of affidavits filed by these respondents before the AGRC or in this Court and for this reason, the decision of Supreme Court in Mohinder Singh Gill & Anr. (supra) would not be applicable in this circumstances. It is submitted that the doctrine of proportionality is now well settled and the Courts have held that administrative actions or quasi judicial decisions can be tested on the touchstone of doctrine of proportionality. To support this contention, reliance is placed on the decision of Supreme Court in Om Kumar & Ors. Vs. Union of India56 and in the case of Johnson and Johnson vs. State57.

134. It is next submitted that the GBR of May 2014 is not the basis of issue of LOI dated 5 th February, 2016. In this context, it is submitted that even assuming without admitting that 12 signatures of 56 (2001) 2 SCC 386 57 (2014) 3 Mh. L.J. 428 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 117 final New Janata.doc the petitioner's members are irregular or vitiated, the Court certainly possesses the discretion to sever and disregard the same from the signatures appended to the attendance sheet of the GBR dated 7 th May, 2014 especially since the said GBR did not lead to issuance of LOI dated 5th February, 2016. It is submitted that the said LOI was issued pursuant to the LOI Report dated 14th July, 2014, which itself refers to the proposals dated 27th August, 2008 and 4th December, 2009 which were submitted in pursuance to the GBR of 2006 and 2009 and consents of 658 out of 804 eligible slum dwellers, i..e, about 81.84% to the Slum Redevelopment Scheme of respondent no. 5. It is thus submitted that the consent held by respondent no. 5 was more than the required minimum of 70% and thus minor irregularities and infirmities in GBR of May 2014 (which do not lead to the LOI) do not vitiate the scheme. In supporting this submission, reliance is placed on the decision of Supreme Court in Balasaheb Arjun Torbole vs. Administrator58.

135. It is next submitted that GBRs of May 2014 are not the only basis of which the impugned order dated 17 th May, 2016 of CEO, SRA or the order dated 11th January, 2018 of AGRC are passed. Therefore, the challenge to the LOI and the impugned orders must fail.


 58 (2015) 6 SCC 534




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136. Submissions on Reliefs under Article 226 of the Constitution :-

Mr. Kadam learned senior counsel for respondent no. 5 has made submissions on the reliefs as prayed for in the present petition and the reasons these reliefs ought not to be granted. It is submitted that grant of reliefs in this Petition would entail a complete destruction of the scheme and cause a manifest injustice to the members of respondent nos. 8 and 9 and majority of the members of the petitioner.

It is submitted that the slum scheme in question is being implemented in respect for one large slum spread on 3 contiguous plots of land bearing CS Nos. 1500 (pt.), 2116 (pt.) and 2124 of Mahim Division totally admeasuring about 20,465.72 sq. Mtrs. Situate at Mahim (Est), Mumbai. It is submitted that the said property belongs to the Government of Maharashtra. It is submitted that out of 1263 slum dwellers thereon, as of September, 2018, 808 slum dwellers are found eligible for rehabilitation under the Slums Act read with Regulation 33(10) of Development Control Regulation 1991. The Court's attention is drawn to the prayers as made by the petitioner before the CEO, SRA and the AGRC to submit that the prayers as made would establish that the real purpose for the petitioner is to break the composite scheme in order to have a plot of land carved out therefrom and destroy the whole composite scheme or at least delay the same, for reason best ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 119 final New Janata.doc known to the petitioner. It is submitted that the prayer of the petitioner throughout, before the authorities below as also this Court is to carve out a plot of land from LOI issued in favour of respondent no. 5 which is contrary to the statutory scheme to rehabilitate entire slum area at a stretch and not piecemeal over individual plots which is borne out from. Firstly, the provision of Section 4(1) of the Slums Act which would provide that rehabilitation of slums is area specific and not plot specific. Secondly, Clauses 1.3 and 1.15 of Appendix IV of DCR, 1991, as applicable to the present scheme, contemplate implementation of slum scheme over a viable stretch at one place. It is submitted that the idea was to have entire area rehabilitated at a stretch as opposed to piecemeal rehabilitation as canvassed by the petitioner. It is submitted that this would also result in better town planning/layout, which is again in larger public interest. In making the submission, reliance is placed on the decision of Supreme Court in Balasaheb Tarbole (supra).

It is submitted that carving out of the property as sought by the petitioner would cause manifest injustice to all the occupants as since November 2017 nearly 70% of the occupants had already acted in furtherance of the composite scheme as envisaged. It is thus submitted that discretion under Article 226 ought not to be exercised in cases where a majority of slum dwellers have vacated their structures which have been demolished. Any interference in this stage would be ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 120 final New Janata.doc manifestly against the interests of the occupants whose structures have been demolished and who are awaiting the completion of the scheme.

In support of this submission, reliance is place on the decision of Division Bench of this Court in Vasant Kheraj Bhanushali vs. Goregaon Siddharth Nagar Sahakari59. It is submitted that the decision is applicable with full force, as in the present case during the pendency of the matter before the AGRC, 644 structures of occupants were demolished and of these demolished structures, structures of 205 occupants of the petitioner were also demolished. It is submitted that by August, 2018, 896 occupants out of 1263 occupants (eligible and ineligible), i.e., 70.94% have accepted rent from respondent no. 5. It is further submitted that these occupants have allowed their structures to be demolished in further to the composite scheme under the LOI and who are now awaiting completion of the scheme. Hence, interference at this stage at the behest of the petitioner would be manifestly against the interests of all these occupants and against public interest and the objects of the Slums Act. For this reason, even interim order dated 13 th April, 2018 passed by this Court in present Writ Petitions directing that respondent no. 5 cannot claim equities would not circumscribe, the Court's discretionary jurisdiction to consider whether the passing of any adverse order would be contrary and manifestly against the interests of 59 (2011) 3 Mh. L.J. 433 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 121 final New Janata.doc the occupants whose structures are demolished and who are awaiting completion of the scheme.

137. It is submitted that even otherwise the petitioner lacks the requisite majority for change of developer. It is thus submitted that for change of developer, a requisite majority of 70% of the slum's eligible occupants must give their consent and even when such majority support is obtained, the proposal for change must be considered and assessed by the SRA to determine what is in the best interest of all these stakeholders including the occupants especially on a contiguous stretch of land. To support this argument, reference is made to Appendix IV Clause 1.15 of DCR, 1991, and the decision of the Division Bench of this court in Lokhandwala Infrastructure Pvt. Ltd. vs. State of Maharashtra (supra) (paragraphs 10 and 15). It is submitted that the Division Bench has held that proposals for change of developer must be strictly assessed in order to ensure that managing committees of societies do not further their own interests. It is submitted that the ratio in this decision is squarely applicable to the present case since the Petition has been filed on the basis of a purported Managing Committee Resolution dated 16th March, 2016. It is thus submitted that while examining the case for changing the developer, discretion and jurisdiction under Article 226 must be exercised in favour of the larger ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 122 final New Janata.doc public interest of all the occupants and stakeholders.

138. It is next submitted that in the matter of planning, the Court must give greater deference to the views of Planning Authority (SRA) and also AGRC whose members are having requisite knowledge/ expertise and experience to decide the matters of development and planning and the views expressed by such competent authorities in a decision may not be interfered in writ jurisdiction. To support this submission, reliance is placed on the decision of Supreme Court in Anand Buttons vs. State of Haryana60.

139. Submissions on behalf of respondent nos.8 and 9 (Nav Kiran CHS and Hind Ekta CHS) :-

Mr.Shyam Mehta, the learned senior counsel for respondent nos.8 and 9 at the outset submits that the respondent nos.8 and 9 have no intention to change respondent no.5 as the developer for the project. Mr. Mehta has referred to a list of dates pointing out complete sequence of events in the list of dates submitted by him, to submit that at all material times respondent no.8 and 9 as a society intended to support development only at the hands of respondent no.5.


 60 (2005) 9 scc 164




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It is submitted that the GBRs and all applications made on behalf of the respondent nos.8 and 9 as being pointed out by the petitioner are not the actual resolutions or any decisions of the GBRs of respondent nos.8 and 9. It is his submission that the contention of the petitioner that on 11 May 2014 meeting was held of respondent no.8 and 9 to terminate appointment of respondent no.5 and appoint respondent no.7 SLK Buildcon as a new developer, is totally misconceived in as much as these meetings were not convened by the Chief Promoters of the society but were purportedly convened by some disgruntled members of respondent nos. 8 and 9. It is further submitted that purportedly meetings were not held in accordance with circular No. 80 dated 15 February 2008, in as much as they were not held in the presence of the Authorized Representative of the Assistant Registrar, SRA. The proceedings were also not video-graphed. Also notices convening alleged meetings at no point of time were placed on record. Event the attendance sheet does not bear address of venue, date and time of the purported meetings. It is his submissions that the CEO-SRA as also the AGRC has appropriately recorded reasons to reject the applications of the petitioner filed under section 13(2) of the Slums Act. It is submitted that the contentions urged on behalf of the petitioner that application filed by the petitioner under section 13(2) was maintainable as there is no requirement of consent of 70% of the Slums ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 124 final New Janata.doc developers under the circular dated 15 February 2008 is a misconceived and narrow interpretation of the said circular. Mr. Mehta has also drawn my attention to application pointing out location of the each plots. He has also drawn attention to the intervention application filed on behalf of the respondent no.8 before the Chief Executive Officer, to submit that right from inception respondent no.8 has taken a position that the case of the petitioner to change respondent no.5 as a developer, is untenable. It is submitted that in the present case the scheme is required to be considered in its entirety and the concurrent findings as recorded by the both authorities in rejecting 13(2) application would not warrant any interference. Mr. Mehta's submissions on all the other counts are similar to the ones made by Mr. Kadam learned senior counsel for respondent no.5 and more particularly as to how in the facts and circumstances of the case the slum re- development in question is required to be considered as a composite scheme, as rightly dealt by both the authorities below in rejecting the petitioner's application and appeal respectively. Questions for determination :-

140. On the above conspectus, whether the petitioner was entitled for change of a developer under the provisions of Section 13(2) of the Slums Act, would require determination of the following ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 125 final New Janata.doc questions:-

(I) Whether the findings and conclusion of the CEO-SRA and the AGRC, that the requirement of consent of 70% slum dwellers agreeing for redevelopment of slums in question, stood complied, qua the slum redevelopment proposal, submitted by respondent no.5 on behalf of the petitioner and respondent nos.8 and 9, can be said to be perverse and illegal ?

(II) Whether transfer of shareholding in respondent No.5 by Shenghanis in favour of Porwals and by Porwals in favour of M/s.Omkar Realtors, would amount to induction of a new developer contrary to the statutory procedure to appoint a new developer; and/or whether it would amount to illegal sale of a slum scheme by one developer to another ?

(III) Whether the concurrent findings of the CEO-SRA and the AGRC that there is no delay/willful delay on the part of respondent no.5 in implementing the slum scheme, can be said to be perverse and illegal, so as to warrant an approval under Section 13(2) of the Slums Act to change respondent no.5 as a developer ?

(IV) Whether the orders passed by the Chief Executive Officer-

SRA on the petitioner's application under Section 13(2) and as confirmed by the AGRC, are in any manner vitiated on the ground of breach of principles of natural justice ?

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 Reasons and Conclusions :-

141. To answer the above questions, it would be necessary to note the relevant statutory background which concerns slum redevelopment and implementation of slum schemes.

142. The State Legislature with an object to make better provision for improvement and clearance of slum areas in the State and their redevelopment enacted the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 ('Slums Act'). Chapter I-A of the Slums Act provides for slum rehabilitation scheme, under which Section 3A provides for appointment of a Slum Rehabilitation Authority by the State Government which shall be body corporate having perpetual succession and common seal with power to contract, acquire, hold and dispose of property, both movable and immovable, and to do all things necessary for the purposes of Slums Act and which may sue and be sued by its corporate name. Sub-section (3) of Section 3A provides for the following powers, duties and functions of the Slum Rehabilitation Authority:-

(a) to survey and review existing position regarding slum areas;

(b) to formulate schemes for rehabilitation of slum areas;

(c) to get the Slum Rehabilitation Scheme implemented;

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 (d)      to do all such other acts and things as may be necessary for

achieving the objects of rehabilitation of slums.

Section 3A sub-section (5) of the Slums Act provides that the SRA may appoint Committees consisting of its members and experts to facilitate its working and "speedy implementation of the scheme prepared under section 3B of the Act." Section 3B of the Slums Act, provides for preparation of a general slum rehabilitation scheme for the areas specified under sub-section (1) of Section 3A for rehabilitation of slums and hutment colonies in such areas. Sub Section (4) of Section 3B provides for the parameters for declaration of any area as the slum rehabilitation area and the parameters and the manner in which it can be provided therefor. Section 3C is the power of the Chief Executive Officer after publication of slum rehabilitation scheme to declare the slum rehabilitation area. Section 4 provides for a declaration of an area as "slum areas", when the competent authority is satisfied any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighborhood, by reason of the area having inadequate or no basic amenities, or being insanitary, squalid, overcrowded or otherwise; or the buildings in any area, used or intended to be used for human habitation are in any respect, unfit for human habitation; or by reasons of dilapidation, overcrowding, faulty ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 128 final New Janata.doc arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or convenience of the public of that area, in such a situation the Competent Authority may, by notification in the Official Gazette, declare such area to be a slum area by following the procedure. Chapter III of the Slums Act provides for slum improvement. Chapter IV provides for slum clearance and redevelopment under which Section 13 which is a relevant provision which would provide for change of the developer in case the redevelopment is not being undertaken within the time. As the basic controversy in the present proceedings falls under this provision it would be appropriate to extract the said provision which reads thus:-

"Section 13. Power of Competent Authority to redevelop clearance area (1) Notwithstanding anything contained in sub-section (1) of section 12 the Competent Authority may, at any time after the land has been cleared of buildings in accordance with a clearance order, but before the work of redevelopment of that land has been commenced by the owner, by order, determine to redevelop the land at its own cost, if that Authority is satisfied that it is necessary in the public interest to do so.

(2) Where land has been cleared of the buildings in accordance with a clearance order, the Competent Authority, if it is satisfied that the land has been, or is being, redeveloped by the owner thereof in contravention of plans duly approved, or any restrictions or conditions imposed under sub-section (10) of section 12, or has not been redeveloped within the time, if any, specified under such conditions, may, by order, determine to redevelop the land at its own cost:

Provided that, before passing such order, the owner shall be ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 129 final New Janata.doc given a reasonable opportunity of showing cause why the order should not be passed."

(emphasis supplied)

143. After noting the relevant provisions of the Slums Act, the provisions of the Development Control Regulations for Greater Bombay,1991 are required to be noted as these provisions concern the redevelopment of the slums. The petitioner's proposal for re- development of the slums was also made, interalia under these provisions.

Development Control Regulation 33(10)( DCR 33(10)) provides for eligibility for redevelopment scheme (slum scheme) and provides that for redevelopment of slums, in regard to which the provisions of Appendix IV shall apply. It would be necessary to note the relevant contents of the DCR 33(10) which reads thus:-

33 [(10)(I) Eligibility for redevelopment Scheme. -

(a) For redevelopment of slums including pavements, whose inhabitants' names and structures appear in the electoral roll prepared with reference to 1st January, 1995 or a date prior thereto, but where the inhabitants stay at present in the structure, the provisions of Appendix IV shall apply on the basis a tenement in exchange for an independently numbered structure.

(b) Subject to the foregoing provisions, only the actual occupants of the hutments shall be held eligible, and the so called structure-owner other than the actual occupant if any, even if his name is shown in the electoral roll for the structure, shall have no right whatsoever to the reconstructed tenement against that structure.

(II) Definition of Slum, Pavement, and Structure of hut. -

          (i)     For this purpose, slums shall mean those censused, or declared




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and notified, in the past or hereafter under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. Slums shall also mean areas/pavement stretches hereafter notified as Slum Rehabilitation Areas.

(ii) If any area fulfills the conditions laid down in section 4 of the Maharashtra Slum Areas (Improvement Clearance and Redevelopment) Act, 1971 to qualify as slum areas and has been censused or declared and notified shall be deemed to be and treated as Slum Rehabilitation Areas.

(iii) Sum rehabilitation area shall also mean any area declared as such by the Slum Rehabilitation Authority through preferably fulfilling conditions laid down in section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to qualify as slum areas and/or required for implementation of any slum rehabilitation project. [Any area where a project under slum Rehabilitation Scheme has been approved by the CEO/SRA shall be deemed Slum rehabilitation area.

(iv) Any area required or proposed for the purpose of construction of temporary or permanent transit camps and so approved by the Slum Rehabilitation Authority shall also be deemed to be and treated as Slum Rehabilitation Areas, and projects approved in such areas by the Slum Rehabilitation Authority shall be CARBPdeemed to be Slum Rehabilitation Projects.

(v) A pavement shall mean any Municipal/Government/ Semi-

Government pavement, and shall include an viable stretch of the pavement as may be considered viable for the purpose of Slum Rehabilitation Scheme.

(vi) A structure shall mean all the dwelling areas of all persons who were enumerated as living in that one numbered house in the electoral roll of the latest date, upto 1st January, 1995 and regardless of the number of persons, or location of rooms or access.

(vii) A composite building shall mean a building comprising both rehab and free-sale components or parts thereof in the same building.

(viii) Censused shall mean those slums located on lands belonging to Government, any undertaking of Government, or Brihan Mumbai Municipal Corporation and incorporated in the records of the land owning authority as having been censused in 1976, 1980 or 1985 or prior to 1st January, 1995.

(III) Joint ownership with spouse. -

The reconstructed tenement shall be of the ownership of the hutment- dweller and spouse conjointly, and shall be so entered and be deemed to be so entered in the records of the co-operative housing society, including the share certificates or all other relevant documents. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 :::

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         (IV)     Denotification as Slum Rehabilitation Area.-

Slum Rehabilitation Authority on being satisfied that it is necessary so to do, or when directed by the State Government, shall denotify the slum rehabilitation area.]"

144. Certain provisions of Appendix IV are also required to be noted which reads thus:-

"[APPENDIX IV

1. Applicability of the provisions of this Appendix The following provisions will apply for redevelopment/ construction of accommodation for hutment/pavement-dwellers through owners/ developers/co-operative housing societies of hutment/pavement- dwellers/public authorities such as MHADA, MIDC, MMRDA etc./ Non- Governmental Organisations anywhere within the limits of Brihan Mumbai. However, NGO should be registered under the Maharashtra Public--Charitable Trusts Act, 1961 and the Societies Registration Act, 1960 at least for the last five years or be certified by Nirmala Niketan College of Social Work. Notwithstanding anything contained above, the said NGO's name should also be got approved by SRA.

Right of the Hutment Dwellers 1.1 Hutment-dwellers, in the slum or on the pavement, eligible in accordance with the provisions of Development Control Regulation 33(10) shall, in exchange for their structure, be given free of cost a residential tenement having a carpet area of 20.90 sq. m. ( 225 sq.ft.) including balcony, bath and water closet, but excluding common areas.

"1.14 A Slum Rehabilitation Project shall be considered preferably when submitted through a proposed or registered co-operative housing society of hutment dwellers on site. The said society shall include all the eligible hutment dwellers on site when applied therefore, and/ or other eligible and allotted by Slum Rehabilitation Authority, as members of the society.

1.15 Where 70 percent or more of the eligible hutment-dwellers in a slum or pavement in a viable stretch at one place agree to join a rehabilitation scheme, it may be considered for approval. [Provided that nothing contained herein shall apply to Slum Rehabilitation Projects undertaken by the State Government or Public authority or as the case may be a Govt. company as defined in Sec. 617 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 132 final New Janata.doc of the Companies Act 1956 and being owned and controlled by the State Government.] 1.16 In respect of those [eligible] hutment-dwellers on site who do not join the Project willingly the following steps shall be taken :-

(i) Provision for all of them shall be made in the rehabilitation component of the scheme.

(ii) The details of the actual tenement that would be given to them by way of allotment by drawing lots for them on the same basis as for those who have joined the Project will be communicated to them in writing by the Managing Committee of the Co-operative Housing Society [if it is registered or the developer, and in case of dispute, decision of the CEO / SRA shall be final and binding on all the parties concerned.]

(iii) The transit tenement that would be allotted to them would also be indicated alongwilh those who have joined the Project.

(iv) If they do not join the scheme within 15 days after the approval has been given to the Slum Rehabilitation Project on that site, then action under the relevant provision including sections 33 and 38 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 as amended from time to time, shall be taken and their hutments will be removed, and it shall be ensured that no obstruction is caused to the scheme of the majority of persons who have joined the scheme willingly.

(v) After this action under the foregoing clause is initiated, they will not be eligible for transit tenement along with the others, and they will not be eligible for the reconstructed tenement by lots, but they will still be entitled only to what is available after others have chosen which may be on the same or some other site.

(vi) If they do not join till the building permission to the Project is given, they will completely lose the right to any built-up tenement, and their tenement shall be taken over by the Slum Rehabilitation Authority, and used for the purpose of accommodating pavement-

dwellers and other slum dwellers who cannot be accommodated in city etc.

(vii) A pitch of about 3m x 3.5m will be given elsewhere if and when available, and construction therein will have to be done on their own. 1.17 The Managing Committee of the proposed as well as registered Co-operative housing society of hutment dwellers shall have women to the extent of one-third of the total strength and actual members on the committee at any time.

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2. BUILDING PERMISSION FOR SLUM REHABILITATION PROJECT --- 2.1 The proposal for each Slum Rehabilitation Project shall be submitted to the Slum Rehabilitation Authority with all the necessary documents, no-objection certificates, and the plans as may be decided by the Slum Rehabilitation Authority from time to time. 2.2 The approval to the Project shall be given by the Slum Rehabilitation Authority within a period of 30 days from the date of submission of all relevant documents. In the event of a failure by Slum Rehabilitation Authority to do so, the said approval shall be deemed to have been given, provided the Project is in accordance with the provisions in this Appendix.

2.3 The Slum Rehabilitation Authority while giving the approval may lay down terms and conditions as may be necessary. 2.4 The Slum Rehabilitation Authority shall adopt the procedure laid down in the Maharashtra Regional and Town Planning Act, 1966 for giving building permission to any Slum Rehabilitation Project under this Scheme.

2.5 On compliance with the terms and conditions, the building permission shall be given, in accordance with the provisions under section 45 of the Maharashtra Regional and Town Planning Act, 1966 to the Project under the Slum Rehabilitation Scheme, first to the Rehabilitation component and thereafter to the Freesale component subject to the provisions in clause below.

2.6 Correlation between Rehabilitation and freesale components :

Building permission, for 10 percent of built up areas of both the rehab and freesale components may be given simultaneously and thereafter proportionately or as may be decided by the Chief Executive Officer, Slum Rehabilitation Authority.

2.7 Where there is no builder-developer but the Project is implemented directly by an NGO of established reputation, Chief Executive Officer, Slum Rehabilitation Authority may sanction 20 percent of the freesale component right in the beginning without waiting for any expenditure on the rehabilitation component, but the approval for remaining part of freesale component will be given only after at least 30 percent of rehabilitation component is completed on site.

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pvr 134 final New Janata.doc 2.8 As soon as the approval is given to the Project, the no objection certificate, for building permission, of the landowning authority shall be given in respect of that slum located on lands belonging to any department, undertaking, agency of the State Government including MHADA, or any local self-Government such as the Municipal Corporation within 30 days after the intimation of such approval lo the Project is communicated. In the event of its not being given within the period, it shall be deemed to have been given.

2.9 Occupation certificate shall not be held up only for want of lease documents to be executed, in all slum rehabilitation projects taken up on lands belonging to any department, undertaking, agency of the State Government, including MHADA, and any local self-Government such as the Municipal Corporation.

3.14 Amalgamation/Subdivision Of Plots and Balancing Of FSI Thereon :

Any land declared as slum rehabilitation area or on which slum rehabilitation project has been sanctioned , if it is spread on part or parts of C.S. Nos. or CTS Nos. or S. Nos shall be treated as natural amalgamation/ subdivision/s of that C.S. or CTS or S. No. or F.P. No. for which no separate approval for amalgamation/subdivision of land would be necessary.

3.15 Boundaries and the measurement of plot areas of the Slum Rehabilitation Area shall be declared by the competent authority after actual measurement of plot area on site and the same shall be adopted for planning purpose for calculation of density and floor space index. 3.16 The Chief Executive Officer, Slum Rehabilitation Authority may if required, adjust the boundary of the plot declared as slum rehabilitation area so as to suit the building design and provide proper access to the Project.

3.17 After approval is given to the Slum Rehabilitation Project, the area may be further subdivided if necessary to earmark separate plots for the rehab component and the freesale component. The Plot area and the built-up area in terms of square metres on the said plot shall be separately mentioned in the lease agreements and Record of Rights."

(emphasis supplied)

145. A "Schedule" has been incorporated in Appendix IV to ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 135 final New Janata.doc provide for 'Policy Guidelines for the Development Plan of Grater Bombay for implementation of lands allocated to various users designated/reserved sites occupied by slums'. These guidelines have categorized the lands situated in Bombay which are under slums, falling under different zones and the purpose for which the land under the development plan are intended to be used.

146. Further a procedure for submission, processing and approval of slum rehabilitation scheme has been notified, to provide that all slums and pavements whose inhabitants' names and structures appeared in the electoral roll prepared with reference to 1 January 1995 or a date prior thereto and who are actually occupants of the hutments are eligible for the slum rehabilitation scheme. Clause (2) of the Procedure provides for 70% or more of the eligible hutment- dwellers in a slum or pavement in a viable stretch at one place, have to show their willingness to join Slum Rehabilitation Scheme and come together to form a co-operative housing society of all eligible hutment- dwellers, through a resolution to that effect. As there is some relevance and as this procedure was adopted in the present case, it would be apposite to note this procedure as contained in Clauses 1 to 15 which read thus:-

Procedure for submission, processing and approval of Slum Rehabilitation Schemes:

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pvr 136 final New Janata.doc "1. All slums and pavements whose inhabitants' names and structures appear in the electoral roll prepared with reference to 1-1-1995 or a date prior thereto and who are actual occupants of the hutments are eligible for the Slum Rehabilitation Scheme.

2. 70% or more of the eligible hutment-dwellers in a slum or pavement in a viable stretch at one place have to show their willingness to join Slum Rehabilitation Scheme and come together to form a cooperative housing society of all eligible hutment-dwellers through a resolution to that effect. The following resolution should be adopted:

(a) Resolution electing a chief promoter.

(b) Resolution giving the chief promoter authority to apply for reservation of name for cooperative housing society.

(c) To collect share capital (Rs.50/- per member for slum societies) and Re 1/- as entrance fee and to open account in Mumbai District Central Cooperative/Maharashtra State Cooperative Bank Ltd. (any branch)

3. The chief promoter, office-bearers and the members of the proposed Society should collect the documents such as 7/12 extract and the PR card of the plot on which the slum is situate. They should then get the plot surveyed/measured and prepare map of the plot showing slum structures therein with the help of surveyors attached to the office of Additional Collector (Encroachment) or the Deputy Collector (Encroachment) of the zone.

4. While undertaking the survey, they should collect the information of the proposed members/slum-dwellers and fill up land occupied by the slum-dwellers, number and type of structures such as residential, industrial, commercial, amenity structures, etc. and the list of eligible and ineligible occupants and consent of the slum-dwellers to join the Scheme. Earlier the promoter/cooperative housing society had to first approach the different competent authorities namely Additional Collector for the slums on government and private lands and the land-

owning authorities for the slums on different public authority lands, for obtaining certified Annexure II, before they could put in application for Slum Rehabilitation Scheme to SRA. As a simplification measure, this procedure is now discontinued and Annexure II format is now required to be filled by the promoter/cooperative housing society itself for submitting building proposal to SRA, so that the scrutiny of the proposal and certification of Annexure II can start simultaneously. Annexure II needs to be submitted in duplicate. As a measure of further simplification, Additional Collector (Encroachment) is being designated as the sole competent authority for deciding eligibility and for taking eviction action against non-participants in Slum Rehabilitation Schemes.

5. The chief promoter and the office-bearers of the proposed society should then apply for name reservation of the proposed cooperative ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 137 final New Janata.doc housing society along with the self-prepared Annexure II and the required resolutions to the Assistant Registrar of Cooperative Societies. To facilitate this, office of the Assistant Registrar has been started in SRA itself. It is no longer necessary to approach different offices of the Cooperation Department for this purpose. The Assistant Registrar/SRA will issue a letter reserving the name for the proposed cooperative housing society and permission to open a bank account in the proposed society's name.

6. While the above steps are being taken, the decision to search a competent developer to act as a promoter has to be taken up by the proposed cooperative housing society of slum-dwellers. The society itself or an NGO/developer/owner can take up Slum Rehabilitation Scheme as a promoter.

7. The promoter so chosen has to enter into an agreement with every eligible slum-dweller while putting up slum rehabilitation proposal to SRA for approval. SRA is in the process of trying to evolve standard formats for the following four types of agreements required in the Scheme, with the approval of the State Government.

(a) Consent-cum-agreement between the promoter and the slum- dwellers.

(b) Development rights/agreement to lease between the promoter and the land-owning authority.

(d) Lease agreement between the land-owning authority and the cooperative society of free-sale tenement buyers.

8. The promoter has also to appoint an architect in consultation with the proposed cooperative housing society of slum-dwellers to prepare the plans of development of the slum area as per DCR-33(10). It is expected that the architect ensures community participation in preparation of the building plans. All required documents such as building plan, layout plan, PR card, etc. along with Annexure I, Annexure II and Annexure III are to be submitted to SRA by the architect along with an application for the Slum Rehabilitation Scheme. A checklist of all such documents required for submission is available in SRA office.

9. Annexure-I gives details about ownership of land, details of plot area, details of existing hutments and their type, computation of tenement density, extent and type of reservations, amenities, FSI available, number of tenements to be constructed including calculation of TDR etc.

10. Annexure III is prescribed to assess the financial capability of the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 138 final New Janata.doc promoter. The items contained in Annexure III are self-explanatory. Keeping in view the sensitivity of this information, it is kept strictly confidential by SRA.

11. After a pre-security by a designated engineer of SRA, to ensure completeness of the proposal submitted, so far as documents are concerned, proposals are accepted. Then a computerised file number is allotted to the Scheme on payment of scrutiny fees which are charged at half (sic) file number is allotted to the Scheme on payment of scrutiny fees which are charged at half the rate of the Municipal Corporation's general building permission fees. Upon acceptance, the scrutiny of Annexures I, II and III start simultaneously in the Building Permission Wing, Eligibility Certification Wing and Accounts & Finance Wing respectively."

12. Earlier, Letter of Intent conveying approval to the scheme, approval to the layout, building-wise plan approval (Intimation of Approval) and Commencement Certification were different stages of approval in the scheme, each having a long validity period. To speed up the actual commencement of building construction work on site, architects have been advised to submit slum rehabilitation proposals complete in all respects to enable SRA to give all the four approvals, at least for the first rehabilitation building, at one go. The validity period of the approval has been reduced from one year to 3 months. Circular number 4 dated 27th August, 1997 has been issued by SRA detailing the simplified procedure (Appendix-D).

13. In the slum rehabilitation scheme, the promoter is required to deposit Rs.20,000/- per rehabilitation tenement with SRA as per the time-schedule laid down by Chief Executive Officer of SRA. Promoter is also required to pay an amount of Rs.840/- per sq.m. for the built-up area over and above the normally permissible FSI, for the rehabilitation and free-sale tenements. After elaborate discussions with all concerned, suitable deferments on the statutory payments and flexibility in the installments of such payments have been provided by SRA. (Circular No. 7 dated 25th November, 1997 is at Appendix-E).

14. Providing temporary transit accommodation to the slum- dwellers, during the construction of rehabilitation and free-sale tenements, is the responsibility of the promoter. SRA facilitates obtaining constructed transit tenements, if available, by recommending the same for allotment to MHADA. SRA also helps in getting no objection certificates from public authorities on nearby identified public authority lands, for putting up temporary transit structures. These structures are required to be demolished and cleared after completion of the slum rehabilitation scheme.

15. While applying for occupation certificate of rehabilitation building, the architect is expected to give the details of tenements allotments, done by the cooperative society by drawing lots, in the joint names of the head of the household (pramukh) and his/her spouse. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 :::

pvr 139 final New Janata.doc SRA will generate computerised identity cards in the joint names of pramukh and spouse and hand over the same to each allottee family. The card will clearly mention that the rehabilitation tenements cannot be sold/leased/assigned or transferred in any manner for ten years (except to legal heirs) and tenements illegally transferred will be taken over by SRA. Any change of allotment within the members of the cooperative society, has also to be with the prior permission of SRA."

147. The format for submitting the scheme as per modified DCR 33(10) is contained in Appendix "C" at Annexure I which interalia requires the details of existing hutments to be set out alongwith statement of details of area of each commercial establishment, the documentary evidence for different commercial tenements or any other amenities like school, gymnasium, religious structures etc. Also an area statement providing for area of the plot, deduction for set back area, proposed road, deduction of fiscal provision, buildable/non buildable deduction, deduction for 5% amenities open space to arrive at no plot area is required to be set out. There is a separate column for computation of rehabilitation free sale area. Clause 27 of the said form provides for cost of the project to be set out. Next is Annexure II which is a certificate issued by the Competent Authority who can be the Ward Officer of MCGM or a Chief Officer of MHADA or the Deputy Collector (Encroachment) certifying the area as contained in the C.S.Number to be a censused slum colony of Municipal / Mhada/ Government record or is notified as slum under Section 4(1) of the Slums Act, or is ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 140 final New Janata.doc declared a slum at a private land under Section 4(1) of the Slums Act. The total number of structures which are protected as per the Government policy and who will be eligible for free alternate accommodation as per DC Regulation 33(10). The classification of these slum dwellers into residential and commercial and also a certification of the percentage of the slum dwellers who have consented for slum rehabilitation scheme. It also provides for list of hutment dwellers and the other details such as carpet area for commercial user as appended to the said survey. Annexure III is the proforma to be submitted for the assessment of the financial capabilities of the developer to execute the slum rehabilitation scheme and would require particulars to be submitted in regard to item 1.11 as set out in proforma.

148. From the provisions of the Slums Act and the above rules and regulations, it can be clearly seen that the object and intention is to provide to the slum dwellers at large a decent roof over their head by removing them from unhygienic slums which is the basic necessity for a normal human existence. This is also the constitutional scheme. It would be necessary to note the observations of the Supreme Court in Shantistar Builders vs. Narayan K. Totame & Ors. ,61 in which the 61(1990) 1 SCC 520 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 141 final New Janata.doc Supreme Court held that difference between the need of an animal and a human being for shelter has to be kept in view. For an animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect - physical, mental and intellectual. This is also the theme which would flow from different provisions of the Slums Act namely to ameliorate the pathetic and miserable condition of the slum dwellers and to ensure that the slum dwellers residing in such unhygienic and inhabitable conditions are granted a decent shelter. The Supreme Court in the said decision although in the context of the Urban Land (Ceiling and Regulation) Act, which was also a social welfare legislation, in paragraphs 9 and 10 has observed thus:-

"9. Basic needs of man have traditionally been accepted to be three- food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect - physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud- built thatched house or a mud- built fire-proof accommodation .

10. With the increase of population and the shift of the rural masses to urban areas over the decades the ratio of poor people without houses in the urban areas has rapidly increased. This is a feature which has become more perceptible after independence. Apart from the fact that people in search of work move to urban agglomerations, availability of amenities and living conveniences also attract people to move from rural areas to cities. Industrialisation is equally responsible for ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 142 final New Janata.doc concentration of population around industries. These are feature which are mainly responsible for increase in the homeless urban population, Millions of people today live on the pavements of different cities of India and a greater number live animal like existence in jhuggis."

(emphasis supplied)

149. Similarly the Division Bench of this Court in " The State Of Maharashtra vs Mahadeo Pandharinath Dhole"62 made the following observations:-

"A dream situation would, of course, be total absence of any slums. But there seems to be a long way to go to realize the same. In the meanwhile, slums have arisen and do crop up. Necessity knows no law. But to accept these slums as they are would be the very negation of the duties of a modern welfare State. Since overnight clearance of slums appears to be a problem beyond the immediate reach of the State and the State Legislature has rightly chosen the next rest step viz. to regulate and control the slums and to see to it that these do not become a source of danger to health, safety and convenience not only of the slum dwellers but also the surrounding areas and to also see to it that these do not become a source of nuisance to the public."

150. The endevour of the Court would be to decide these petitions on the touchstone of the above legal principles and the provisions of law so as to ascertain as to whether the impugned orders warrant any interference.

Some admitted facts in regard to the slum scheme in question :-

151. Having noted the statutory complexion and the various facets relevant for a slum rehabilitation scheme, some admitted facts are required to be noted so as to answer the issues which have fell for 62 AIR 1980 Bom 348 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 143 final New Janata.doc determination.

152. The land is notified as slums under Section 4 of the Slums Act and the subject matter of the slum rehabilitation scheme is the land in C.S.No.1500 (pt), 2166 (pt) and 2124 (pt) of Mahim Division admeasuring 20465.74 sq.meters and owned by the State Government. It is also not in dispute that there were 1263 slum dwellers. It is also not in dispute that the slum dwellers have formed three proposed societies namely the petitioner-New Janta SRA CHS Ltd., respondent no.8- Nav Kiran CHS and respondent no.9-Hind Ekta CHS, out of which 400 slum dwellers are found to be eligible for providing alternate accommodation from the petitioner-society, 204 slum dwellers from respondent no.8-Nav Kiran CHS and 200 slum dwellers from respondent no.9-Hind Ekta CHS. In all about 804 slum dwellers are found to be eligible, who are residing on these notified slums. That the petitioner, respondent nos.8 and 9 societies have passed separate general body resolutions dated 3 June 2006, 9 June 2006 and 15 June 2006 appointing respondent no.5 as a developer and respondent no.6 as an architect to implement the slum rehabilitation scheme. It is also not in dispute that respondent no.5 was formerly incorporated on 19 September 2006, that is three months after the resolutions were passed in the general body meeting of these three societies. Thereafter a ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 144 final New Janata.doc development agreement dated 17 October 2016 was entered between each of these societies and respondent no.5 as also a power of attorney was issued by the societies in favour of respondent no.5 and respondent no.6-Architect. It is not in dispute that on 27 August 2008, respondent no.5 through respondent no.6-Architect submitted a proposal with the SRA to implement a composite scheme under DCR 33(10) for these three societies on the land bearing C.S.No.1500 (pt) admeasuring about 7876 square meters. Also on 27 August 2008 an acceptance report was prepared by the Superintendent of the Engineering Department, SRA, on a proposal submitted by respondent no.5 and development planning remarks came to be made, that the land is situated in the residential zone and falls under CRZ and is not reserved for any public purpose. It was also noted that for an Annexure II, the applicant (respondent No.5) has submitted a list of tenants/slum dwellers, required under Annexure II and a consent/resolution from the society of the slum dwellers that more than 70% have given their consent, was also recorded. Further, it is also not in dispute that a General Body Resolution was passed by the petitioner and respondent nos.8 and 9 - societies to include certain other slum dwellers who had become members of these societies and who were occupying the adjacent land namely C.S.no.2166 (pt) and 2124 (pt) admeasuring 13478.32 sq.meters in the said scheme and in pursuance thereto an ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 145 final New Janata.doc acceptance report was prepared by the Executive Engineer, SRA dated 14 December 2009. That a revised proposal dated 27 August 2008 was submitted by respondent no.5 through its architect-respondent no.6 for amalgamation of area of C.S.No.2116 (pt) and 2124 (pt) in the slum scheme. Thus a revised proposal came to be submitted increasing the members of the slum dwellers, who came to be added in the scheme and who would also become eligible for permanent alternate accommodation, if found eligible as per the eligibility norms. On 8 June 2010 the Deputy Collector/Competent Authority, issued a report and certified Annexure II for total 802 eligible slum dwellers out of 1362 slum dwellers. The report states that respondent no.5 almost has consent of 658 eligible slum dwellers which is more than about 70% and in fact stated to be 82%.

153. It is also not in dispute that the land was affected by CRZ notification, since it was within 500 meters from the high tide line. It was affected by the reservation for the DP road of 60.8 meters having an area of 13338.83 sq. meters which would reduce the plot area to 7126.89 sq.meters, also out of this, 30% of the plot was to be affected by the proposed Metro-III project. Hence, actual plot area for rehabilitation was 4988 sq.meter which was 25% of the total area. There were also reservations such as education complex, for St. Xavier ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 146 final New Janata.doc Institute. On 14 July 2010 the certified Annexure II dated 8 June 2010 was forwarded by the certifying authority to SRA.

Also in July, 2012 in regard to Mahim Bay within which the land in question would fall, and in regard to the exemption of the land from CRZ Notification, a writ petition filed by one Deepak Rao (Writ Petition no.1263 of 2012) was pending before this Court. The claim in the writ petition was made in pursuance of the 2011 CRZ notification, as to whether it would change the development requirements qua the land falling within the Bay of Mahim, which was earlier restricted to 500 meters from the High Tide Line. The contention of the petitioner therein was that the rules for development would be required to be considered now by applying the norms of 100 meters from high tide line and not 500 meters. This was to have a direct bearing on the development potential in respect of the land in question. This Court disposed of the writ petition with a direction to Maharashtra Coastal Zone Management Authority (MCZMA), to grant hearing to Deepak Rao and pass an appropriate orders on his representation. The Maharashtra Coastal Zone Management Authority, in turn referred the matter to Ministry of Environment, Forest and Climate Change and National Coastal Zone Management Authority for clarification. On 4 December 2012, also an application was made by respondent no.5 to ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 147 final New Janata.doc the Principal Secretary, Urban Development Department for reduction of width of the proposed DP road to 30.3 meters in view of reduction in traffic in pursuance to construction of Bandra-Worli Sea Link road.

154. On 6 February 2013 Annexures were forwarded by the Deputy Collector, SRA to the Engineering Department. Also a second writ petition was filed by Mr.Deepak Rao on 25 November 2013 (Writ Petition No.327 of 2013) which came to be disposed of with a direction to MCZMA to take decision on the representation of Deepak Rao and to interpret the word 'Bay' as per 2013 CRZ notification and other relevant notifications. Pursuant to the High Court's direction the MCZMA in its meeting dated 31 January 2014, for the first time declared that the land beyond 100 meters of high tide line of Mahim Bay and Creek would not fall within the restrictive ambit of the CRZ notification. On 6 June 2014, as per the assurance given to the societies on 10 April 2014 respondent no.5 applied to the CEO SRA for a LOI for the slum scheme. On 4 February 2016 SRA certified Annexure III in favour of respondent no.5. On 5 February 2016 the SRA issued a letter of intent in favour of respondent no.5 which was interalia incorporates Condition 31 that LOI will have no bearing on any parallel proceedings under any section of the Slums Act. On 12 April 2015, respondent no.5 applied to SRA for intimation of approval (IOA) for implementation of ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:55 ::: pvr 148 final New Janata.doc scheme to enable respondent no.5 to commence construction. On 28 June 2016 the SRA authorities submitted IOA report for issuance of revised LOI to respondent no.5 for approval of CEO SRA. On 8 march 2017, the SRA issued a revised LOI to respondent no.5. On 22 February 2018 the SRA issued commencement certificate of rehabilitation building no.1.

155. Having noted the admitted facts, relevant to the proposal on the file of the SRA, it needs to be stated that in regard to an endeavour of the petitioner to have a general body meeting and to pass a resolution to remove respondent No.5 as the developer and thereafter approach the CEO, SRA, there are whole lot of facts which included not only resolutions being passed, but proceedings adopted by the slum dwellers before various authorities ultimately culminating into filing of writ petitions before this Court and adjudication of these writ petitions as noted in detail above. All these facts would necessarily call for discussion in dealing with the questions falling for determination which are addressed below :-

156. Q.I Whether the findings and conclusion of the CEO- SRA and the AGRC, that the requirement of consent of 70% slum dwellers agreeing for redevelopment of slums in question, stood complied, qua the slum redevelopment proposal, submitted by respondent no.5 on behalf of the petitioner and respondent nos.8 and ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 149 final New Janata.doc 9, can be said to be perverse and illegal ?

On a bare reading of the statutory scheme under the DCR 33(10) it is quite clear that the requirement for a slum scheme is that 70% of the slum dwellers come together and apply to the SRA for redevelopment of the slum after formation of a proposed co-operative housing society. Such an application is usually made by the proposed society after appointment of a developer which would be considered by the SRA. The position in law in regard to the requirement of 70 % of the slum dwellers coming together at the "threshold" and so as to make a valid application is no more res-integra. Some decisions in this regard can be referred.

In Awdesh Vasistha Tiwari & Ors. Vs. Chief Executive Officer, Slum Rehabilitation Authority,63, a Division Bench of this Court in regard to the requirement of 70 % of the slum dwellers coming together and forming a co-operative society observed thus :

20. If the entire scheme under Regulation 33(10) is perused it is obvious that if 70% of the slum dwellers on a particular area come together and apply after formation of proposed co-operative housing society, the said application has to be independently considered in accordance with law. The scheme does not contemplate simultaneous consideration of such an application made by a proposed society with an Application subsequently made by another proposed society relating to same land. The Applicant-society has to have 70% support which obviously two societies cannot have. The Application received first is to be processed first independtly. If it fails to get 70% support, Second Application can be examined. The obvious intention is to avoid unhealthy competition between the different builders who are interested in supporting such societies. If 63 2006(4) Mh.L.J. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 150 final New Janata.doc such a course of simultaneous consideration is permitted to be adopted, unscrupulous persons and builders will try to win over the hutment dwellers who have supported the application made earlier by another society. Therefore, it is not desirable that an application which is earlier made and the one which is subsequently filed should be considered together. That is not the scheme provided under D.C. Regulation 33(10). It is necessary that the application which is first received in respect of a particular property by the SRA should be processed and decided first. After decision of the first Application, the second Application made by another society can be considered depending on the result of the first Application. The reason is that none of the societies have any right, title and interest in respect of the property. Such a course will prevent the unhealthy competition between the builders or between the leaders of two groups in a slum area.

(emphasis supplied)

157. In Atesham Ahmed Khan & Ors. Vs. Lakadawala Developers Pvt. Ltd. & Ors.64 the Division Bench of this Court in regard to the requirement of 70% of the slum dwellers observed thus :

At the stage when an application is submitted before the Slum Rehabilitation Authority, the application, as it stands, must indicate that the applicant fulfills the requirement of the requisite consent of 70% of the slum dwellers. The claim of the applicant is thereupon subject to scrutiny. But before the question of scrutiny arises, the application must on its face indicate that it fulfills the requirement of 70% consents.

(emphasis supplied)

158. It is clear that the requirement of 70% of the slum dwellers coming together is at the stage when an application is submitted before the Slum Rehabilitation Authority, and when such an application is made it should fulfill the requirement of requisite consent of 70% of the slum dwellers. In a recent judgment of the Supreme Court 64 2011(3) Mh.L.J. 604 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 151 final New Janata.doc in Susme Builders Private Limited Vs. Chief Executive Officer, Slum Rehabilitation Authority & Ors. (supra), the Supreme Court has recognised the requirement of 70% of the slum dwellers coming together to make an application. Following are the relevant observations :

Whether support of 70% of the slum dwellers is mandatory and whether slum dwellers are entitled to withdraw their consent;

58. It would be important to note that under 1991 DCR, which were initially applicable to this project, a scheme for rehabilitation could be initiated where more than 70% of the eligible hutment dwellers on the land agreed to the redevelopment scheme by becoming members of a cooperative society. Thereafter, the scheme was to be considered by the authorities for implementation. Relevant portion of the DCR reads as follows:

"Initiation of the scheme, - Where more than 70% of the eligible hutment dwellers on the land agree to join the redevelopment scheme and become members of the cooperative society, the scheme should be considered for implementation."

59. Under Development Control Regulation 33(10) of 1991 DCR, the essential requirement was that at least 70% of the slum-dwellers had to form a society with a view to redevelop the slum area. In case 70% slum-dwellers did not join, there could be no rehabilitation scheme. As far as the present case is concerned it is not disputed that more than 70% slum-dwellers had formed Respondent 3 Society. It is the admitted case of the parties that 800 out of 867 slum-dwellers formed Respondent 3 Society, which is 92.27%.

60. The 1991 DCR were amended in 1997. Clause 1.15 of Appendix IV of the amended DCR provided that 70% or more of eligible hutment dwellers in a slum must agree to join a rehabilitation scheme before it can be considered for approval.

61. It is thus obvious that under the amended DCR, not only 70% or more of the eligible hutment dwellers must first agree to join a rehabilitation scheme before it is taken up for consideration, but the owner/developer or cooperative society must also enter into individual agreements with each of these eligible hutment dwellers. We may also point out that the amended DCR in clause 1.16 of Appendix IV provides that even in respect of those eligible hutment dwellers who do not join the project willingly, the developer/builder has to make ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 152 final New Janata.doc provision for accommodation of these hutment dwellers in the scheme. They are entitled to the same benefits as the hutment dwellers who actually join the scheme. They are also entitled to similar transit accommodation as is allotted to those who willingly join the scheme. Further, the regulations also provided that if such hutment dwellers do not join the scheme and do not accept the transit accommodation or the completed premises, then they can be removed from their hutments and it will be ensured that these hutment dwellers do not cause any hindrance to the project.

62. Very lengthy arguments were addressed by learned counsel on the issue whether 70% support of the slum dwellers is mandatory. A large number of authorities have also been cited but, in our view, it is not necessary to refer to the various authorities because the bare provisions of law are sufficient to decide this issue. A bare reading of DCR of 1991 makes it absolutely clear that under the said DCR at least 70% of the slum dwellers/occupiers have to get together and form a Society for the purpose of slum re-development scheme. Therefore, unless 70% slum dwellers agree to form a Society, the provisions of the Slums Act could not be invoked to frame an SRD scheme. Under the amended DCR of 1997, there is a change and the change is that now the developer/owner was required to enter into agreements with 70% of the slum dwellers and unless 70% of the slum dwellers agree, the slum rehabilitation scheme cannot be entertained. The magic figure remains at 70%. The idea behind it is that more than 2/3 of the occupiers must agree for the rehabilitation scheme.

(emphasis supplied)

159. Also in Vasant Kheraj Bhanushali & Ors. vs. Goregaon Siddharth Nagar Sahakari Grih Nirman Sanstha Ltd. & Ors. 65, the Division Bench of this Court in regard to the requirement of 70% has observed thus:

"11. As regards the allegation that there was an assignment by the new developer in breach of the provisions of the tripartite agreement, it has been stated before the Court that on 4 January 2010 an agreement for project management was entered into by the developer with HDIL. That agreement has since been cancelled on 26 July 2010. In that view of the matter, the submission would cease to have any practical 65 2011 (3) Mh. L.J. 433 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 153 final New Janata.doc relevance. Finally, it has been urged that the scheme does not have the support of 70% of the occupants. In this regard, it is common ground before the Court that the High Powered Committee had called upon MHADA to carry out a physical verification of the consents of the existing tenants. There is a finding of fact that 70% of the occupants have consented to the scheme. In a project such as the one which is involved in the present case, there is always a shifting body of occupants, consisting of persons who are willing to shift loyalties to rival builders against a promise of better incentives. Consents once given cannot be allowed to be revoked at the whim and fancy of individual occupants. If that was to be allowed, no scheme for redevelopment could be successfully implemented. Though none of the Petitioners had furnished their consents, what is material is that there is a determination of fact that 70% of the existing occupants have consented to the scheme."

160. Having noted the position in law, to consider as to whether in the facts of the present case, the requirement of consent of 70% slum dwellers was fulfilled, in respondent no.5 submitting the slum redevelopment proposal, some factual background is required to be noted. Respondent No.5 was unanimously appointed by the petitioner and respondent No.8 and respondent No.9-societies by general body resolution passed in June 2006. Thereafter on 17 October 2006 independent development agreements were entered between the petitioner and respondent No.5 as also between respondent Nos.8 & 9 and respondent No.5 and subsequent to which a composite proposal for redevelopment of the slums was filed by respondent No.5 on 27 August 2008 and further on 23 August 2009. These three societies also passed general body resolutions to include the adjacent lands CTS No.2116 (PT), 2124(PT), admeasuring 13478.32 sq. mtrs.

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pvr 154 final New Janata.doc

161. This indicates that there was no dispute till this point of time on anything much less any dispute on 70 % of the slum dwellers coming together not only appointing respondent no 5 but also submitting slum rehabilitation scheme through respondent no.5. It can thus be said that the basic requirement of 70% of the slum dwellers consenting, stood satisfied in submitting the slum redevelopment proposal. Nonetheless after this many things happened and how far they would be relevant to the proposal already submitted can be seen from the following discussion.

162. It appears that there was some activity in the petitioner's camp leading to a disquiet and in pursuance of which respondent No.5 furnished an undertaking to the petitioner dated 10 April 2014 that a L.O.I. would be obtained by respondent No.5 by 30 June 2014, however the same could not be obtained. At the same time, there appeared to be also some activity of discomfort against respondent No.5 amongst a group of slum dwellers belonging to respondent Nos.8 and 9. However despite respondent No.5 assuring that LOI would be obtained before 30 June 2014, on 30 May 2014 the Managing Committee of the petitioner held a meeting and decided to terminate the services of respondent No.6-Architect. Thereafter on 15 June 2014, ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 155 final New Janata.doc a general body meeting of the petitioner was convened and a resolution was passed to terminate appointment of respondent No.5 as a developer and appointing respondent No.7- M/s.SLK Buildcon Private Limited, as a new developer for implementing the slum scheme. Accordingly the petitioner addressed a letter to the CEO, SRA, on 27 June 2014 requesting to remove the name of respondent No.5 from the record of SRA and substitute the name of respondent No.7 as a new developer. A copy of the said letter was also forwarded to the Assistant Registrar, Co-operative Societies, SRA with a request to call for a special general body meeting as required by circular No.80 issued by the SRA, to ascertain as to which of the developers would have consent of more than 70% of the eligible slum dwellers and depute a representative nominated from the office of the SRA to participate in the special general body meeting of the petitioner.

163. In pursuance to the above letter of the petitioner, the Assistant Registrar by his letter dated 15 July 2014 addressed to the petitioner informed that the petitioner's request to hold general body meeting was approved. The petitioner was directed to call a general body meeting of all the eligible slum dwellers with an agenda for appointment of Managing Committee Members and other committee members and verify whether respondent No.5 continued to enjoy ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 156 final New Janata.doc consent of 70% eligible slum dwellers and if not take a decision regarding consent for appointment of respondent No.7 as a new developer. This action initiated by the letter dated 15 July 2014 of the Assistant Registrar (SRA) did not find favour with some of the slum dwellers who approached the Divisional Joint Registrar Co-operative Society, challenging the said letter dated 15 July 2014 issued by the Assistant Registrar by filing a revision application on 18 July 2014. On 1 August 2014 an interim order was passed by the Divisional Joint Registrar inter-alia granting a stay to the operation of the said letter dated 15 July 2014. Ultimately on 11 September 2014 the Divisional Joint Registrar allowed this revision application filed by the slum dwellers, whereby he quashed and set aside the letter dated 15 July 2014 issued by the Assistant Registrar permitting the petitioner to convene a general body meeting. This decision of the Divisional Joint Registrar was challenged by some of the slum dwellers before this Court in Writ Petition No.8410 of 2014, Writ Petition No.8414 of 2014 and Writ Petition No.8412 of 2014 which came to be decided by a judgment and order dated 18 December 2014 rendered by the learned Single Judge. The learned Single Judge set aside the said orders passed by the Divisional Joint Registrar inter-alia observing that the Divisional Joint Registrar had no jurisdiction qua the procedure adopted by the CEO, SRA as the Assistant Registrar, SRA had acted on the instructions ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 157 final New Janata.doc of the CEO, SRA. The District Joint Registrar hence could not have gone into the validity of the action being initiated by the Assistant Registrar.

164. On a reading of the said order passed by this Court, it appears that the petitions were filed by the meeting conveners/ organizers of respondent No.9 Hind Ekta CHS. As seen from paragraph 5[A] of the order, it was the case of these meeting conveners, that by a resolution passed by the general body meeting on 27 June 2014 appointment of respondent No.5 was terminated and respondent No.7 M/s.SLK Buildcon Private Limited was appointed as a new developer. It is in this context, observations are made by the Court in paragraph 9 referring to the case of the petitioner, that initially in the year 2006 respondent No.5 was appointed by the proposed society and the agreement has been terminated in the year 2014 and new developer respondent No.7 M/s.SLK Buildcon was appointed to redevelop the property. However what is pertinent is to note the observations of the Court on the disputes regarding appointment and termination of the developer. The Court observed as under:-

"The record indicates that the proposed society has not been registered and there are rival claims by the members of the society regarding the appointment and termination of the developers. Several applications/ complaints from the members of the proposed society were received by the SRA in this regard. The CEO, SRA in the light of the disputes regarding the appointment and termination of the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 158 final New Janata.doc developers to redevelop the property and in view of circular Nos.72 and 80 came to the conclusion that fresh general body meeting of the proposed society be held in the presence of the representatives of the SRA in order to ascertain which of the developers has consent of more than 70% eligible slum dwellers and accordingly, by his order dated 11 July 2014 directed the Assistant Registrar - SRA to hold general body meeting of the proposed society."

165. In pursuance of the orders passed by this Court, the Assistant Registrar issued a letter dated 13 January 2015 to the petitioner and respondent Nos.8 and 9 calling upon the petitioner to call for a general body meeting as per circular No.80. By a further letter dated 23 January 2015 the Assistant Registrar informed the petitioner that a meeting convened on 31 January 2015 by the petitioner be cancelled, as complaints were received in regard to the said meeting which was to be held on the Nokarda ground, Fishermen Colony, near Raheja Hospital, Sion-Mahim Link Road, which was a open ground and the general body meeting could create a law and order situation. Thereafter on 23 January 2015 public notices were issued by the authorized officers informing that the general body meeting of the eligible slum dwellers of the petitioner would be held on 8 February 2015 at 11.00 a.m. with an agenda to appoint Chief Promoter and other committee members, open bank account and whether respondent No.5 had consent to act as a developer. On 28 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 159 final New Janata.doc January 2015 respondent No.5 and slum dwellers filed application Nos.3 of 2015 and 4 of 2015 before the High Power Committee challenging the notice for holding a general body meeting on 8 February 2015 as also challenging the order dated 14 July 2014 of the CEO, SRA making an endorsement on draft LOI report prepared by Engineering Department for meeting of the society is to be held. A relief was also prayed by respondent No.5 that respondent No.2 be directed to issue LOI in favour of respondent No.5. By an order dated 30 January 2015 passed by the High Power Committee, a status-quo order was granted and eventually meeting convened on 8 February 2015 could not be held. On 5 March 2015, application No.3 of 2015 and application No.4 of 2015 were allowed by the High Power Committee and the order dated 14 July 2014 passed by the Chief Executive Officer, SRA was set aside. This order passed by the High Power Committee was challenged by respondent No.9 in Writ Petition (L.) No.673 of 2015 and Writ Petition (L.) No.674 of 2015. A Division Bench of this Court by its judgment and order dated 21 September 2015 dismissed the said writ petitions directing that the SRA shall take a decision uninfluenced by conclusions in the impugned order dated 5 March 2015 passed by the High Power Committee and including the orders of this Court. Certain observations made by the Division Bench interalia considering circular No.80 would have relevance and are ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 160 final New Janata.doc required to be noted:-

"24. For properly appreciating the rival contentions we must refer to the two Circulars and which are relied upon by both the Petitioners and the SRA. The first Circular is to be found at page 234 of WP No.674 of 2015. That Circular is dated 15th February, 2008 and bears No.80. The subject of this Circular issued by the SRA would show that it deals with the presence of the representative of the SRA at a meeting and where the slum dwellers of the proposed Society or any Association would elect or select Chief Promoter and Developer. The Circular observes that when slum rehabilitation schemes are proposed and proposals from the proposed societies of slum dwellers are received and thereafter permissions are sought to reserve the name and allot a code number,so as to open a bank account with such request and proposals, the minutes of the meeting convened to elect the Chief Promoter, the Developer, an Architect and authorization letter in their favour, power of attorney and development agreement are relied upon. However, whenever there are further steps taken on the basis of these documents and relying upon them, it is experienced that several disputes arise and inter alia regarding the election of the Chief Promoter, the Developer etc. There are complaints received from the affected parties by the SRA in this regard . All this goes to show that the progress and implementation of the slum rehabilitation scheme is affected and puts a question mark on its future. Therefore, it is directed that once the Annexure II is prepared, then a meeting which will be convened to elect a Chief Promoter, the Developer and the consent of the Developer, it would be mandatory that at such meeting convened representatives of the SRA are present, further video recording of the proceedings of the meeting has to be carried out. This Circular enlists the subjects or the agenda items for the meeting, the notice period and other ancillary issues and directions with regard thereto. The notice has to be issued to those who should remain present and participate in accordance with this Circular. These directions be issued to all concerned so that they abide by.

25. Circular No.148 has been issued on 2nd February 2015 and that refers and relies upon the prior Circular No.80 and thereafter states that the proceedings of the meeting and which would be convened to discuss the above agenda items should be transparent. An impartial Presiding Officer must conduct the meeting. That is why the SRA further directs that the meeting must be convened strictly in accordance with prior Circular. This Circular goes ahead and directs the Department of Cooperation, Government of Maharashtra to ensure that it must depute an official so as to preside over the Meeting. Thus, the meeting be convened and proceedings thereat now to be held under the control and supervision of the statutory Authority.

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26. These Circulars are issued by the SRA in order to ensure that the Cooperative Housing Societies (Proposed) of the slum dwellers elect a Chief Promoter, a Developer and thereafter preparatory steps taken should not then be questioned by filing complaints and applications etc. That would delay the implementation of the slum rehabilitation scheme. That is why all such meetings and to elect the Chief Promoter and Developer etc. have to be held in terms of these directions contained in two Circulars.

29. Precisely, for the reasons and which take care of a situation like the present one that this Court directed in the said judgment that if one proposal or one scheme is under consideration of the SRA, then it must take that scheme to its logical end, it must convey either issuance of LOI or refusal. When that scheme is under consideration of the SRA, no other scheme should be considered by the SRA parallely and consideration of more than one scheme at the same time leads to confusion and chaos and may lead to avoidable disputes and complaints. There could be claims and assertions and which would go contrary to the object and purpose sought to be achieved by the Slums Act. If the slum rehabilitation schemes can be framed and implemented and equally planning laws have been amended so as to ensure that people residing in unhygienic and inhabitable conditions obtain a decent accommodation, then such schemes have to be expeditiously framed and implemented. It is part and parcel of prudent urban planning to avoid proliferation of slums in mega cities like Mumbai. The general impact on sanitation and hygiene in a city like Mumbai and caused by slums is tremendous. We have witnessed several scenes of garbage and waste thrown around particularly in slums. Slum or slum like structures which are constructed and spring up on public properties and lands are a risk to the health and safety of the residents of the city as a whole. That is a reflection on planning. That is why SRA as a single Authority has been given several powers including that of the Planning Authority and of registration of Societies under the Maharashtra Co-operative Societies Act. A single window system is carved out and SRA must therefore take a decision and monitor and supervise implementation of the slum rehabilitation scheme. This is a scheme with public and private participation. If an opportunity is given to the slum dwellers to choose a developer after forming a Society and submit a proposal to the SRA for its sanction, then a single proposal being taken to the logical end serves the object of the Act better. In the present case, we do not see why the SRA did not take a decision on the application made by Respondent No.8 expeditiously. It could have independently satisfied itself about the financial power of the Respondent No.8 to implement the slum rehabilitation scheme and construct buildings by developing the property. If Respondent No.8 did not have the requisite support or the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 162 final New Janata.doc financial strength to take the scheme ahead, then nothing prevented the SRA from taking an appropriate decision including rejecting the Application seeking the LOI. However, the SRA allowed the decision to be postponed and indefinitely. It allowed the Petitioners thereafter to set up a rival claim. It also allowed itself to be converted into a full fledged dispute redressal forum and to decide issues arising out of the Slums Act as also Maharashtra Cooperative Societies Act 1960. That is why the HPC reminded the SRA of its duties in law. We do not see the direction of the nature given by the HPC to be contravening any provision of law.

30. We have perused that order of the HPC and we find that what the impugned order really holds is that the SRA had before it a full fledged application of Respondent No.8. The HPC considered the rival contentions and thereafter found that it is undisputed that when the scheme was submitted by the Developer - Respondent No.8, he claimed support of 82 % of the eligible slum dwellers out of total 804. There is a complaint that no progress was made at site and that is why a group of people supported and formed another Society with another developer who was interested in developing /implementing subject slum rehabilitation scheme, that is what the intervention of the Petitioners is termed by the HPC. The HPC then did not go into the issue whether the alleged resolution of termination of the authority of Respondent No.8 as Developer has been passed by the proposed Society in the presence of Assistant Registrar of SRA. It has also found that there is procedure laid down for change of developer under the slum rehabilitation scheme. Moreover, the Chief Executive Officer could have taken action under section 13(2) of the Slums Act.

31. We do not intend to express any opinion, much less, final on the contention and which was canvassed before the HPC and possibly found favour with it. All that we wish to emphasize is that if an application is made by Respondent No.8 and it claims to enjoy support of 82 % of the eligible slum dwellers, then, it was incumbent upon SRA to take that application to its logical end and conclusion. This is the expectation of the HPC from the SRA, more so, when the SRA could have taken note of any complaint with regard to the alleged inaction of Respondent No.8. It is empowered to do sounder section 13 of the Slums Act. Hence eventual direction of the HPC to SRA cannot be faulted or interfered with.

34. We accordingly hold that the SRA will take a decision uninfluenced by any observations and conclusions in the impugned order and including an order of this Court.

35. We therefore proceed to dismiss this Petition and having clarified as above, we do not find that the HPC's order can be termed ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 163 final New Janata.doc as vitiated, by errors apparent on the face of the record or perverse nor the HPC has exceeded its power and jurisdiction."

(emphasis supplied)

166. The observations of the Division Bench in paragraphs 29, 30 and 31 are significant, recording that respondent No.5 in submitting the proposal to the SRA had a support of 82% of the eligible slum dwellers. The Division Bench also made serious observations in the SRA delaying to take a decision on the proposal/scheme of respondent No.5. The consequence of the above writ petitions being dismissed, was that the High Court upheld the orders dated 5 March 2015 passed by the High Power Committee on application Nos.3 of 2015 and 4 of 2015, whereby, the High Power Committee set aside the order dated 14 July 2014 passed by the CEO-SRA, as also the action initiated by the Assistant Registrar to hold a general body meeting on 8 February 2015. It is on this backdrop the CEO-SRA was directed to take an independent decision without being influenced by the orders of the High Power Committee. Thus the situation which emerged was that the general body meeting which was to be held on 8 February 2015 to purportedly decide the purported fate of respondent No.5 did not take place and there was no termination of respondent No.5 as would be required to be undertaken even assuming that circular No.80 as issued by the SRA was to be applied. This factual position is compounded by ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 164 final New Janata.doc a letter dated 10 October 2015 of the petitioner being an application to respondent No.2 made under Section 13(2) of the Slums Act inter-alia praying for a relief, to terminate respondent No.5 as a developer; to reject the application dated 6 June 2014 of respondent No.5 for issuance of an LOI; for a direction to the Assistant Registrar to conduct a fresh general body meeting of the society, to ascertain as to whether respondent No.5 had continuous support of 70% of eligible slum dwellers for implementation of the slum rehabilitation scheme on the subject land and for a direction that the Additional Collector/Deputy Collector (Encroachment and Removal) and the Competent Authority to re-verify Annexure-II dated 8 June 2010 and submit a report.

167. Accordingly, on 17 December 2015 the CEO-SRA passed an order directing the Assistant Registrar to hold fresh elections of the three societies and if the newly elected "managing committees" submit application to the SRA, then a decision would be taken on such application as per rules. Consequently, the Assistant Registrar Mr. K.S. More, came to be nominated as an authorized officer to conduct elections of the society on 1 February 2016. This time the meeting as called by the Assistant Registrar came to be stayed by an order dated 28 January 2016 passed by the Hon'ble the Chief Minister.

In the meantime following the procedure and probably ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 165 final New Janata.doc also the observations of the Division Bench (supra), the SRA granted a LOI in favour of respondent No.5 on 5 February 2016.

On 12 February 2016 the stay granted by the Hon'ble Chief Minister was vacated which was in pursuance of a report dated 29 January 2016 of the CEO to the Principal Secretary, that there are two factions in the society and it was not possible to ascertain whether respondent No.5 is enjoying majority support. The consequence is that the notice dated 16 January 2016 issued by the Assistant Registrar and nominating Mr.K.S. More, as an authorized officer to conduct the elections stood revived. Accordingly, on 17 March 2016, 19 March 2016 and 20 March 2016 elections of the three societies were held. On 26 March 2016 the newly elected committee members of the petitioner called for a meeting and resolved that the earlier decision to remove respondent No.5 as a developer be re-confirmed. However no such resolution was passed by the managing committees of respondent no. 8 and 9.

168. Consequent thereto on 28 March 2016 only the petitioner addressed a letter to the CEO, SRA informing that the newly elected Chief Promoter has terminated appointment of respondent No.5 and respondent No.6 and that the CEO should not accept, process or give ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 166 final New Janata.doc any form of sanction to respondent No.5 and respondent No.6.

169. Thereafter on 1 April 2016 it was only the petitioner who filed an application before the High Power Committee (application No.13 of 2016) praying for quashing of the LOI dated 5 February 2016 issued by the SRA to respondent No.5. Also on 15 April 2016 the petitioner filed an application under Section 13(2) of the Slums Act before the CEO, SRA inter-alia praying to terminate/remove appointment of respondent No.5 as developer of the petitioner's society complaining of inordinate delay of 10 years in implementation of slum rehabilitation scheme on the subject property, and prayed that the CEO direct the Engineering Department of SRA to carve out the plot of the petitioner society being CTS. No.2116 (part), 2124(part) of Mahim Division from the LOI dated 5 February 2016.

It is pertinent that the CEO, SRA had categorically observed in his order dated 17 December 2015 that the decision of the newly elected "Managing Committees" of the societies would be relevant. However admittedly there was only one managing committee of the petitioner seeking removal of respondent No.5. It cannot be overlooked that the proposal submitted by respondent No.5 with the consensus of more than 70% of the slum dwellers was a consolidated ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 167 final New Janata.doc proposal of all the three societies and the lands in this regard.

170. The question is, whether on the above backdrop, can it be said, that consensus of 70% of the slum dwellers was lacking, qua the appointment of respondent No.5 as the developer and the slum scheme as submitted by respondent no.5, so that it can be held that respondent no.5 ought to have been removed by the SRA and that too exercising powers under Section 13(2) of the Slums Act. In my opinion, certainly the answer would be in the negative. This for two fold reasons. Firstly for the reason that the petitioner is not disputing the fact that the petitioner's society is part of a composite slum rehabilitation scheme along with two other societies, namely respondent Nos.8 and 9, and that the proposal which was submitted by respondent No.5 for redevelopment was a composite proposal in respect of lands, inhabited by slum dwellers/ members of these three societies, the lands being amalgamated. It is not in dispute that respondent Nos.8 and 9 are not supporting the petitioner to change the developer and it is for this reason the petitioner chose to stand alone to take all necessary actions to remove respondent Nos.5 and 6, overlooking the fact that what is relevant under DCR 33(10) read with the procedure for submission of processing and approval of slum rehabilitation scheme is that consent ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 168 final New Janata.doc of 70% or more of the eligible slum dwellers is necessary for maintaining an approval for an application for redevelopment of a slum. Clause 2 of the said procedure categorically provides that 70% or more of the eligible slum dwellers in a viable stretch at one place have to show their willingness to join a rehabilitation scheme and come together to form a co-operative housing society of all eligible slum dwellers through a resolution to that effect. However once the slum scheme was submitted, the society if it intended to change the developer then it can be done only on the grounds as specified under section 13(2) of the Slums Act for the reasons the SRA may find proper, applying the norms and the provisions of law, which would permit change of the developer. It is nobody's case that when respondent No.5 submitted the initial and the modified proposal, respondent No.5 had a consent of more than 70% of the slum dwellers of these three societies, in fact it was 82%.

171. It certainly cannot be at the ipse dixit of either the managing committee or the general body that a developer can be changed at any stage of the Scheme. Surely valid reasons are necessary to change the developer, as there are serious civil consequences to remove a developer in the midst of the procedure as put into motion. In this context even in Susme Builders Pvt.Ltd. (supra), the Supreme ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 169 final New Janata.doc Court approving the decisions of this Court has sounded a word of caution, as observed in paragraph 86 of the report, which reads thus:-

"86. Our attention was drawn to various judgments of the Bombay High Court that consent once given by the slum dwellers should not be permitted to be withdrawn. It was also brought to our notice that the Bombay High Court has consistently held that voting inter se developers should not be done. It has been the consistent view of the Bombay High Court that in case voting is done, then this will lead to developers trying to buy out the slum dwellers and then no rehabilitation scheme would attain fruition. We totally agree with the aforesaid views of the Bombay High Court. We must remember that slum dwellers normally belong to the poorest section of the society. They can be tempted to change their mind. In the present case itself, the slum dwellers shifted from Susme to J.G. Developers for two reasons - (i) Susme had delayed the project and (ii) J.G. Developers made a promise that it would give a flat of 344 sq. ft./419 sq. ft. area, which promise was obviously a false promise. The view of the Bombay High Court that consent once given should not be permitted to be withdrawn, is absolutely the right view. Otherwise, a person may give consent one day, withdraw it the second day and review the consent the third day, leaving the Scheme in a perpetual state of flux. For the aforesaid reasons, we agree with the Bombay High Court that there should be no inter se bidding between the builders. The proper course is that the scheme of the developer who is the first choice, should be placed before the slum dwellers and if it gets 70% votes, then the Scheme can be considered, but if it does not get 70% consent, then obviously, the second developer can be considered. However, competitive bidding should not be done because that can lead to a very unholy practice of developers trying to buy out the slum dwellers, which is also not in the interest of the rehabilitation scheme.

(emphasis supplied)

172. Thus the SRA has to exercise due caution and only after considering the facts and circumstances of the case, justifying the removal of the developer, such an order can be passed as would be permissible in law. In the present case, it is quite clear that the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 170 final New Janata.doc petitioner intends to now disassociate itself from respondent Nos.8 and 9 when already there is a amalgamated proposal/slum rehabilitation scheme which was subject matter of consideration with the CEO- SRA. For this purpose 70% would be required to be considered qua the proposal as submitted by respondent no.5, namely of all the three societies, though initially these were independent general body resolutions of society to appoint respondent No.5. Admittedly, the members of respondent Nos.8 and 9 who are 404 in number are not with the petitioner. In any case it is only the managing committee resolution of the petitioner which is being pressed into service by the petitioner to contend that it has 70% majority to remove respondent Nos.5 and 6. It needs to be emphasized that when respondent No.5 was initially appointed it was a collective decision of the three societies as taken in their general body resolutions, in pursuance of which respondent No.5 acted and changed its position. Considering all these facts in my opinion, the petitioner's contention that 70% of the slum dwellers have lost confidence in respondent No.5, cannot be accepted and such a contention as one of the grounds to remove respondent Nos.5 and 6 is required to be rejected.

173. The above observations are supported by the decision of the Supreme Court in Balasaheb Arjun Torbole & Ors. Vs. The ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 171 final New Janata.doc Administrator & Divisional Commissioner & Ors.66. In this case, a similar contention as raised in the present petition fell for consideration of the Supreme Court as seen from paragraph 2 of the decision which reads thus:-

"In other words, the major grievance of the appellants is that the respondents have wrongly treated that there exists a consent for redevelopment from 70% of the occupants. Such claim, according to appellants, must be rejected and the appellants should be allowed to have the redevelopment through a cooperative of occupants of private plots exclusively. The other contention of the appellants is that their does not exist any valid Annexure II with respect to the private plots."

In rejecting the said contention, in paragraphs 21, 22, 23 the Supreme Court observed thus:-

"21. When in aggregate consent of 70% or more slum dwellers has been obtained, the essential purpose of slum rehabilitation scheme cannot be put to peril on the ground that certain procedures were not strictly followed or some steps were against the procedures prescribed in the guidelines for preparation of Annexure II in a prescribed format. From the documents submitted and shown at the stage of hearing it has been noticed that even subsequent claims of some slum dwellers that they are eligible for rehabilitation have been verified and many have been allowed on the basis of relevant documents because it is not infrequent that at the time of one particular checking or verification some dwellers may be absent and might have gone to some other place. Clearly the process of preparation of the list described as Annexure II and its verification is meant to find out the claims of genuine slum dwellers who may be eligible for benefits under the slum rehabilitation scheme. Such beneficial provisions meant to ameliorate the poor condition of slum dwellers, in our considered 66 (2015) 6 SCC 534 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 172 final New Janata.doc view, should not be jettisoned only on technical grounds or procedural infirmities unless the persons coming to the court and seeking relief through writ petition are able to show that they have suffered injustice or legal injury.

22. In the present case, the only legal injury to appellants as per submissions of Mr. Parikh is that if the private plots were treated as separate slum area, the residents of these plots alone could have formed and carried out development scheme through their own cooperative society and gained some advantages including monetary. Such a plea is too far-fetched to establish legal injury to the appellants who claim to be slum dwellers and on such plea, in our considered view the appellants could not have been granted relief in writ jurisdiction which has been rightly denied to them, albeit for other reasons, after considering all their pleas on merits.

23. The only other substantial issue raised by Mr. Parikh that there could have been no clubbing of private lands with municipal lands for purpose of counting consent of 70% of the slum dwellers is also found to be without any merits. Mr. Divan rightly relied upon DCR of 1991 and particularly clause 1.15 of Appendix IV which clearly shows that 70% or more of the eligible hutment dwellers in a slum or pavement in a viable stretch at one place can agree to join a rehabilitation scheme. There is no merit in the submission on behalf of the appellants that the clause "in a viable stretch at one place" should be read only in conjunction with the word 'pavement' and not the word 'slum' although the use of the word 'or' between slum and pavement clearly shows both have to be treated at same footing and therefore both are qualified by the clause "in a viable stretch at one place". Clause 3.14 providing for amalgamation/sub- division of plots of Appendix IV of the DCR 1991 also goes a long way to support the submission that the statutory provisions clearly permit natural amalgamation/sub- division of plots for the sanction of slum rehabilitation project as well as for planning of Floor Space Index (FSI) thereto. Clause 7.7 and 7.8 in the same Appendix D lend further support to the aforesaid arguments of Mr. Divan."

Thus considering the statutory scheme, it can be very well said that ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 173 final New Janata.doc once a developer is appointed, it is within the powers of the SRA on a proper verification and scrutiny of the facts and applying the rules and the law to take an appropriate decision on any proposal to change the developer and/or the viability of a new developer being appointed in the facts of a given case. This more particularly has to be seriously considered when the land belongs to a public body and/or the Government. A slum dweller would always have limited rights of rehabilitation in the manner as recognised under the statutory scheme and nothing more.

174. It thus cannot be accepted more particularly considering the provisions of Section 13(2) of the Slums Act that a slum society at its sole discretion and /or without any control and regulations by SRA can change the developer. If such a course of action is made permissible, considering the hard realities and the hundreds of developers being available to take over such schemes, it would create a chaos and it is likely that a situation is created, that the slum rehabilitation scheme never takes off and it is entangled into fights between two factions within the society and/or two rival developers. This is certainly not the object of the legislation. It would be too far- fetched to read such draconian rights available to the Managing Committee or to general body of a society without any regulation, ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 174 final New Janata.doc supervision and control of the SRA to change the developer. The SRA has all the powers not only to regulate and control such situations but to take a decision as to what is in the best interest of the slum dwellers and intended to achieve the object of the legislation.

175. Secondly it is not in dispute that the application of the petitioner for change of respondent no.5-developer was under Section 13(2) of the Slums Act. Having noted this provision in the foregoing paragraphs, Section 13(2) of the Slums Act would come into play only when the developer fails to adhere to the provisions of the development permissions granted by the SRA and a change of developer can be sought only when there is an inordinate delay or the construction carried on, is contrary to the sanctioned plans and/or the permissions. Considering this clear position falling under Section 13(2), in the context of this factual controversy as raised by the petitioner in regard to the consent of 70% of the slum dwellers being not available to respondent no.5, I am of the clear opinion that the view taken by both the authorities, in not accepting the petitioner's contention, is required to be held to be correct and valid.

176. Be that as it may, what is paramount for consideration in the facts of the present case is that, all this what has happened at the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 175 final New Janata.doc behest of slum dwellers who are occupying Government land and not any private property. In such a situation, under the provisions of the Act, once it is the Government land, surely the SRA is the custodian of the rights of the slum dwellers to be rehabilitated, by undertaking slum rehabilitation scheme. In this context, it would be apposite to note the observations of the Division Bench of this Court in Lokhandwala Infrastructure Pvt. Ltd. and another vs. State of Maharashtra and ors. (supra) when the Court taking note of the lands belonging to Government and Municipal Corporation which are declared as slum, observed thus:-

"10. The execution of Slum Rehabilitation Schemes is impressed with a public character. The lands on which the Scheme is sought to be sanctioned and implemented may be lands belonging to the Municipal Corporation or to the State of Maharashtra or, for that matter, its instrumentalities such as the Maharashtra Housing and Area Development Authority. The title to the land does not vest in the society or in its members at the stage when the Scheme is propounded and subjected for sanction. Where it owns the land, the Municipal Corporation of Greater Mumbai is the authority responsible for issuing a certification of Annexure II containing the list of eligible occupants who can participate in the Scheme. The interest of the Municipal Corporation as the owner of the land is recognized by conferring upon the Municipal Corporation the role of verifying and authenticating who are the actual and genuine occupants of the land as on 1 January 1995. Public land is sought to be utilized in order to further the object of providing dignified accommodation to those living in slums. The co-operative societies of slum dwellers and developers through whom the Slum Rehabilitation Scheme is sought to be implemented facilitate the implementation of the Scheme. The agreements or ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 176 final New Janata.doc arrangements that may be arrived at between them cannot be treated at par with purely private or contractual agreements entered into in respect of land belonging to private individuals. The State as the owner of the land upon which a slum is situated has a vital public interest in ensuring that the object for which the land is utilized subserves the purpose of rehabilitation of the slum dwellers. It is in that context that diverse provisions are made by the Development Control Regulations to regulate every stage of the Slum Rehabilitation Scheme, from the submission of the proposals, the evaluation of proposals, scrutiny and verification, grant of sanctions and the actual implementation of the Scheme. Though a dispute between the co-operative society and its developer has a private element, it is not as if that a recourse to private law remedies is the only available form of redress. The Slum Rehabilitation Authority as the authority which is vested with the power to regulate the implementation of the Scheme and the owners of the land such as the Municipal Corporation or, as the case may be, the State Government are vital components in the implementation of the Slum Rehabilitation Scheme. Their statutory powers to ensure that the Scheme is not misused and is utilized to subserve the public purpose underlying the Scheme is not trammeled by private contractual arrangements.

15. Now undoubtedly, a developer who has been appointed by a co-operative society is required to fulfill the mandate of DCR 33(10) by securing the implementation of the scheme. Where a developer fails to implement the scheme, that would not preclude the society which represents the interests of hutment dwellers from proceeding to terminate the contract with the developer. The act of termination may, as in the present case, give rise to a private dispute to which a remedy may be available in accordance with the rights which the contractual arrangement creates between the parties. But, where the society seeks to appoint a new developer, it would be necessary that a proper verification and scrutiny is made of the authenticity of the proposal and of the grounds on which the society seeks to enter into a new contractual arrangement. Section 13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 inter alia contemplates that where the Slum Rehabilitation Authority is ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 177 final New Janata.doc satisfied that the land has not been developed within the time, if any, specified under such conditions as have been prescribed, the authority may determine to develop the land by entrusting it to any agency recognized by it for the purpose. It was urged on behalf of the co-operative society that Section 13(2) operates where a letter of intent is issued to the developer and would have no application where as in the present case a letter of intent was yet to be issued. We are not prepared to accept the submission which has been urged on behalf of the society that a proposed society of slum dwellers is entitled without any scrutiny or regulation of its activities by the statutory authorities to enter into and terminate development agreements at its own whim and fancy without any application of mind by the authorities concerned. To accept such a submission would only lead to a situation of chaos in the implementation of Slum Rehabilitation Schemes. Members of the managing committees of the societies which are still proposed societies would then be at liberty to pursue their own private ends and to switch loyalties between rival builders on considerations of exigency. Once the proposal has been submitted to the authority under DRC 33(10), the authorities are entitled to scrutinize whether a proposal involving the change of a developer is in the interest of the slum dwellers; whether the developer would fulfill the needs and requirements of the scheme and has the necessary capacity to do so and whether the new developer has the consents of 70% of the slum dwellers. There is absolutely no merit in the submission that while the initial proposal needs to have the consents of 70% of the slum dwellers, a proposal for a change or substitution of a developer need not possess the requisite majority. The acceptance of such a submission would only defeat the object and purpose of the provisions made in DCR 33(10) and Appendix IV and would result in rendering the schemes subject to misuse. Such an interpretation cannot be accepted. We are clearly of the view that the dispute between a society and the developer does not lie purely in the realm of a private contractual dispute. The dispute has an important bearing on the proper implementation of the Slum Rehabilitation Scheme. The dispute has consequences which go beyond the private interests of the society and the developer. The scheme involves ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 178 final New Janata.doc other stake-holders in the process including the land owning public bodies and the slum dwellers whose interests are sought to be protected by the scheme."

(emphasis supplied)

177. Thus having perused the findings as recorded by the authorities below in my opinion, no case is made out by the petitioner to hold that the respondent no 5 lacked the support of 70% of the slum dwellers so as to render the development proposal as submitted by respondent no.5 to be invalid.

178. The Court also cannot shut its eyes to the fact that about 644 hutments are already demolished out of which 205 structures are of the members of the petitioners who consented for demolition of their structures. Also interim rent is being received by those eligible slum dwellers who have vacated their premises and/ or whose hutments are demolished. All these facts clearly weaken the claim of the petitioner of having 70 % consent to remove respondent no. 5. If this was to be the case, 205 members of the petitioner together with the members of respondent no. 8 and 9 could never have accepted vacating of their hutments and demolition of their structures and they would have independently adopted proceedings against respondent no. 5. For these reasons, I find myself in complete agreement on what has been urged on behalf of the SRA, respondent no 5 and 6 and respondent no ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 179 final New Janata.doc 8 and 9 on this issue.

179. Q.II Whether transfer of shareholding in respondent No.5 by Shenghanis in favour of Porwals and by Porwals in favour of M/s.Omkar Realtors, would amount to induction of a new developer contrary to the statutory procedure to appoint a new developer; and/or whether it would amount to illegal sale of a slum scheme by one developer to another ?

On this issue it is the petitioner's case that initially its members reposed confidence in one Mr. Mohanlal Shenghani and Mr. Chandulal Shenghani who held 100% of the shareholding in respondent No.5 and hence, they had appointed respondent No.5 as the developer (a company incorporated under the Companies Act, 1956). The petitioner has contended that in the year 2012 share capital of respondent No.5 was increased, whereby 50,000 shares of respondent No.5 were allotted to Mr.Paras Porwal who effectively became 50% shareholder in respondent No.5 company, however, the petitioner was not informed of such change in the shareholding. The petitioner has stated that subsequently the entire shareholding of Shenghanis was transferred in favour of one Mr.Ronnie Porwal and respondent No.5 was completely controlled by the Porwal family. The petitioner contends that Porwals transferred their entire shareholding in favour of M/s. Omkar Realtors and a fresh allotment of 12450000 shares valued at about Rs.12.45 Crores was made in favour of ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 180 final New Janata.doc M/s.Omkar Realtors.

180. The case of the petitioner is that this transfer of shareholding is illegal and primarily for two reasons. Firstly it amounts to inducting/appointing a new developer, not selected and appointed by the slum dwellers by this mechanism of transfer of shareholding. It is urged that this is contrary to the basic statutory framework under DCR 33(10) read with the procedure for submission of processing and approval of slum rehabilitation scheme. Secondly such transfer is in the teeth of the office order No.19 of 2015 dated 23 March 2015 issued by the SRA.

181. Per contra, the SRA as also respondent No.5 have contended that there is nothing illegal in transfer of the shareholding in a company incorporated under the Companies Act, as also there is no prohibition for such transfer either under the Slums Act or D.C.R. 33(10) and even under the office order dated 23 March 2015 issued by the SRA.

182. To appreciate this issue, some basic requirements for appointing a developer would be required to be stated. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 :::

pvr 181 final New Janata.doc

183. Section 3A of the Slums Act empowers the SRA to take necessary action in order to achieve the object of rehabilitation of slums. As noted above Section 3D confers a power to do all such other acts and things, as will be necessary for achieving the object to ameliorate the poor condition of the slum dwellers by rehabilitation of the slum dwellers.

184. The Slums Act in Section 2 (c-a) defines "Developer" to mean a Developer registered under Section 3B. Section 3B(5) reads as under :-

"For the purposes of this Chapter, the State Government may register any person or association of persons, or partnership firm registered under the Partnership Act, 1932 or a company registered under the Companies Act, 1956, as a Developer in the prescribed manner".

(emphasis supplied)

185. It is not in dispute that under the provisions of DCR 33(10) read with the procedure for submission, processing and approval of Slum Rehabilitation Scheme, a proposed co-operative society of slum dwellers is permitted to appoint a developer, who is required to submit Annexure-III, which is in regard to the financial capability of such developer being appointed. The necessary information to be submitted is under Items 6, 7, 9 & 10, would be as follows:-

"6. Name and Address of the Developer.

7. Status of the Developer's Firm ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 182 final New Janata.doc (Proprietary/Partnership/Company)

9. Whether Income Tax Clearance Certificate for the last three consecutive years including that of the last year attached ?

10. Whether Audited Statements of last three consecutive years of Accounts attached ?

If yes,

(i) Year ........

(ii) Year .......

(iii) Year ......."

186. Section 3B of the Slums Act provides for a power to make regulations empowering the SRA to make regulations consistent with the Act and the Rules made thereunder and for all or any of the matters to be provided under the Act by regulations and generally for all other matters in the opinion of the SRA, necessary for the exercise of its powers and the discharge of its functions under the Slums Act.

187. The SRA exercising powers under the Slums Act has issued an Office Order No.SRA/CO/Office Order 19/2015, dated 23 rd March 2015, providing for fees payable after change of Developer/Partner/Director while implementing the Slum Rehabilitation Scheme. The said order read thus :-

"OFFICE ORDER Slum Rehabilitation Authority has frequently noticed the Instances wherein after the submission of Schemes by Developer / Partnership firm / Company / Joint Venture etc., changes are effected by these entities in the Shares / Stakes etc. of their respective Partners / Directors etc. at different stages of the Scheme. Sometimes, the Partnership Firm, Joint Venture or Company is totally replaced or taken over by new partners of Directors. Up-till now SRA has not formulated any procedure to recognize such change for effective and accountable Implementation of the S.R. Scheme. It is felt necessary ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 183 final New Janata.doc that Slum Rehabilitation Authority should be made aware of such changes immediately so as to effectively supervise the redevelopment work. Henceforth, whenever there is any change in Partner / Director etc. or their Shares / Holdings etc. the following procedure should be followed :-

I. All changes have to be intimated to SRA within 30 days of making formal change, failing which, a fine equal to 5 times below shall be charged.

II. In the event of change of Partner / Director in Partnership Firm / Company, Society / Trust or LLP of developer, their officials from the concerned Registration Authority/s, Registrar of Firms, Registrar of Companies (RoC), Registrar of Society, Charity Commissioner, etc. about having taken changes in the ownership on record shall be submitted on record of SRA within 90 days from the dated of such changes.

III. In the event of change of developer, 5% of Land cost of sale plot area (i.e. approximately 50% of the net scheme area calculated as per ASR (Annual Schedule of Rates) payable thereon on should be recovered from the new Developer. IV. The charges mentioned in Clause (I) hereinabove, shall also be payable in the event of retirement of any Partner / Director proportionate to the share of incoming partner when the Developer is a partnership firm or a Private Limited Company / or LLP.

V. The newly appointed Developer shall deposit the amount mentioned in clause (I) and (II) hereinabove as per Rules, Regulations of SRA before issuance of LOI/revised LOI or further approval by SRA.

VI. These charges are applicable for changes in developer or in share holding patterns in developer company / organisation / partnership etc. after the stage of formal submission of the scheme.

VII. The newly appointed developer shall indemnity SRA and its officers against any litigation in future. VIII. The Circular will not be applicable in cases where non- performing developer in terminated by the CEO/SRA at the request of society.

IX. The charges mentioned in clause (I) and (II) shall not be payable if the changes are effected on account of death of Sole Developer or Partner or Director etc., towards legal heir

(s) of the same.

The guidelines prescribed hereinabove shall be followed by all the concerned henceforth scrupulously. "

(emphasis added) On a reading of the aforesaid office order issued by the SRA as also from the statutory scheme, it is clear that the SRA ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 184 final New Janata.doc acknowledges that sometimes "Partnership Firms", "Joint Venture" or "Company" is replaced or taken over by new partners or directors. The office order also identifies in clauses (II to IV) the nature of changes that may take place in the Partnership Firm/Company undertaking the Slum Rehabilitation Scheme. It also requires the developer to intimate changes to SRA and make payment of fees for carrying out the same.

This office order also prescribes for imposition of fine on account of failure to intimate the said changes within the prescribed time.

188. Clause 4 of the Office Order provides for intimation and payment of fees on account of retirement of any partner/director proportionate to the share of the incoming partners when the developer is a partnership firm or a private limited company/LLP. Clause 4 therefore permits change in the shareholding of the developer if it is a private limited company incorporated under the Companies Act, on payment of charges as per clause 1, and that such changes to be intimated to SRA within 30 days of making formal change failing which a fine equal to 5 times shall be charged.

This office order as issued under the Slums Act, therefore does not prohibit any change in the shareholding of a company appointed as a developer. The petitioners have not challenged the legality of this office order. The sole purpose of the office order is to ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 185 final New Janata.doc regulate the change in partnership/directorship/shareholding of the developer. In any case the legal and/or juristic identity of the developer as an artificial person, when it is a company incorporated under the companies Act, does not change on account of change in shareholding and even when the shareholding is of such a nature that it becomes a controlling shareholding in a company so appointed. It is well settled that a company which is an artificial person with a common seal and perpetual succession has a identity distinct from its shareholders and the transaction between the company and third parties are not transactions between the shareholders and third parties.

189. In Bacha F. Guzdar vs. Commissioner of Income-tax (supra), the Supreme Court taking a review of law on this proposition, observed thus:

"7. .......The company is a juristic person and is distinct from the shareholders. It is the company which owns the property and not the shareholders. The dividend is a share of the profits declared by the company as liable to be distributed among the shareholders. (.....) This statement does not justify the contention that shareholders are owners of a divisible sum or that they are owners of the property of the company. (...) There is nothing in the Indian law to warrant the assumption that a shareholder who buys shares buys any interest in the property of the company which is a juristic person entirely distinct from the shareholders."

9. It was argued that the position of shareholders in a company is analogous to that of partners inter se. - This analogy is wholly inaccurate. Partnership is -merely an association of persons for carrying on the business of partnership and in law the firm name is a compendious method of describing the partners. Such is, however, not the case of a company which stands as a separate juristic entity distinct from the shareholders. In Halsbury's Laws of England, Volume 6 (3rd Ed.), page 234, the law ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 186 final New Janata.doc regarding the attributes of shares is thus stated :

" A share is a right to a specified amount of the share capital of a company carrying with it certain rights and liabilities while the company is a going concern and in its winding up. The shares or other interest of any member in a company are personal estate transferable in the manner provided by its articles, and are not of the, nature of real estate. "

10. In Borland's Trustee v. Steel Brothers &,Co. Ltd.(1), Farwell J. held that "a share in a company cannot properly be likened to a sum of money settled upon and subject to executory limitations to arise in the future ; it is rather to be regarded as the interest of the shareholder in the company, measured, for the purposes of liability and dividend, by a sum of money ........" It was suggested that the dividend arises out of the profits accruing from land and is impressed with the same character as the profits and that it does not change its character merely because of the incident that it reaches the hands of the shareholder. This argument runs counter to. the definition of agricultural income which emphasizes the necessity of the recipient of income having a direct and an immediate rather than an indirect and remote relation with land. To accept this argument will be tantamount to saying that the creditor recovering interest on money debt due from the agriculturist who pays out of the produce of the land is equally entitled to the exemption. In fairness to Mr. Kolah it must, however, be stated that the contention was not so broadly put but there is no reason why one should stop at a particular stage and not pursue the analogy to its logical limits."

190. The Madras High Court in Naga Brahma Trust vs. Translanka Air Travels P. Ltd. (supra) has held that a company possess a separate juristic character from its shareholders and as such, a change in shareholding of the lessee does not amount to transfer of the leasehold rights.

191. This apart it would be too far-fetched to accept that the Slums Act which is a State Legislation creates an embargo for transfer of the shares in a company governed under the Companies Act as also permissible under the provisions of the said Act. (See Section 56, 58 & ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 187 final New Janata.doc Section 62 of the 2013 Act). The Slums Act and the Companies Act fall under different legislative powers of the respective legislatures as also both these legislations operate in different fields. I am thus of the clear opinion that there was no impediment whatsoever for Shengani to transfer the shareholdings in favour of Porwal and then from Porwal to M/s. Omkar Realtors.

192. As a sequel to the above discussion, the contention as urged on behalf of the petitioner that corporate veil of respondent no. 5 is required to be lifted to find out who is the actual developer undertaking the scheme, in my opinion, is not well founded. Even otherwise the SRA is on record to state in its affidavit dated 17 th September, 2018 that respondent no. 5 has submitted all relevant documents showing the change in shareholding for the purpose of reference (Annexure III to the SRA Scheme) and even as on date respondent no. 5 is continuing to be on record of SRA as a developer for implementation of slum scheme on the subject property and that transfer fees shall be recovered by SRA from respondent no. 5 as per the norms in respect of transfer of shares. SRA has also submitted that change in shareholding in the present case will not result in any revenue loss as contended by the petitioners and that office order has become applicable and recovery in that regard would be effected from ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 188 final New Janata.doc respondent no. 5. Thus the contention of the petitioners of lifting of the corporate veil relying on the decision of Vodafone International Holdings BV (supra); CIT Vs. Sri Meenakshi Mills Ltd. (supra); and Delhi Development Authority Vs.Skipper Construction Co.(P) Ltd. & Anr. (supra) is unfounded. Even otherwise these decisions hence are wholly inapplicable in the facts of the present case.

193. The contention as urged on behalf of the petitioner as also on behalf of SLK Buildcon, that change in the shareholding has in fact enabled a developer, who was not appointed by the slum dwellers, to gain a entry into the project in a manner which is alien to the Slums Act and which has resulted into commercial dealing of a slums scheme at the hands of the developers, also cannot be accepted. In my opinion, once the statutory scheme under the Slums Act and DCR 33(10) permits a company registered under the Companies Act to be appointed as a developer, this would necessarily include all necessary attributes which are associated with the juristic existence of such person, which would interalia include change in the shareholding as permissible under the Companies Act. A consequence emerging from such change of shareholding in a company would be required to be accepted as a change integral to such a company. Change in the shareholding in a company would not alter the legal character of the company and its ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 189 final New Janata.doc obligation to perform its contractual obligations towards the Society, under a development agreement which would remain unaltered and at all material times enforceable against the company, appointed as a developer under the Slums Act or the D.C. Regulations, to undertake a Slum Scheme. It, therefore, cannot be conceived that mere change in the shareholding of a developer-company would tantamount to commercial dealing and/or transfer of a slums project at the hands of such developer against the wishes of the slum dwellers society. By appointing a company as a developer, the slum dweller society is deemed to have accepted its contractual association with a juristic entity and despite the change in the shareholding, the juristic entity of a developer so appointed, would always remain legal and valid. Moreover this argument as urged on behalf of the petitioner is in the teeth of the petitioner's own recognition of the juristic identity of respondent no. 5 in entering into a development agreement with respondent no.5 and not its promoters, and all legal consequences which are attributed and arising under such legal relationship with respondent no. 5, needs to be recognised, even for the purposes of the Slums Act. Even Clause 43 of the development agreement entered between the petitioner and respondent no.5 cannot be construed to mean that it would not permit a change in the shareholding of respondent no.5. Thus, there is no illegality whatsoever in the AGRC ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 190 final New Janata.doc rejecting such contention as urged on behalf of the petitioner that transfer of the shareholding has amounted to an illegal dealing by respondent no. 5 of the slum scheme in question in favour of M/s. Omkar Realtors.

194. There is another vital facet of which the petitioners are unmindful in objecting to a change of shareholding namely, that such a mechanism as available to a company (legal person) to alter its shareholding and to invite more capital in a given situation would come to the aid and benefit of the slum dwellers society. This in as much as it is likely, that such a corporate developer can make available more specialised resources, including financial which would ultimately benefit the slum scheme which may not be always possible for an individual developer or a partnership firm. In the present case, it is quite clear that the share capital of respondent no. 5 has gradually increased and M/s.Orbit Realtor is now holding substantial shareholding than what Shengani's were holding in respondent no. 5 when the development agreement came to be entered by the petitioner with respondent no. 5 at which time Shengani was holding only 50000 shares. All these beneficial effects of the company being appointed as a developer are relevant and stand impliedly recognised in the said Office Order isued by the SRA. Thus the contention as urged on behalf of the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 191 final New Janata.doc petitioner and SLK Buildcon relying on the decisions in Susme Builders Pvt.Ltd. Vs. CEO SRA & Ors. (supra); Pramila Suman Singh Vs. State of Maharashtra (supra) and Awdesh Vasistha Tiwari Vs. Chief Executive Officer, Slum Rehabilitation Authority (supra), Atesham Ahmed Khan V. Lakadawala Developers Pvt. Ltd. (supra) and Lokhandwala Pvt. Ltd. Vs. State of Maharashtra (supra) to contend that there there is circumvention of the established procedure of appointment of developers under the Slums Act read with DCR 33(10) in view of the change in the shareholding, cannot be accepted. In any event, these are not the decisions which lay down any absolute proposition that shareholding in a company who has been appointed as developer cannot be transferred. Even in Susme (supra) in regard to the transfer of shareholding the Supreme Court in making observations in paragraph 80 of the decision does not reach to a conclusion that transfer of shareholdings is not permissible. What has been commented is in regard to the conduct of Susme, that despite the change in the shareholding, it treated the slum dwellers as a means of making money which was purely in the facts of the said case. Following are the observations of their Lordships:-

80. We may also add that though Susme may have remained the same entity in name, there have been, at least, three changes in the promoters of Susme and these transfers of shareholdings obviously must have been done for consideration. It is more than obvious that Susme, as a legal entity, was treating the slum dwellers only as a ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 192 final New Janata.doc means of making money and, therefore, we are clearly of the view that Susme is not entitled to any relief.

195. The next contention as urged on behalf of the petitioner relying on various decisions as noted above that what could not be directly done by Shenganis or Porwal, namely transfer of a slum scheme, has been achieved indirectly by transfer of shareholding also cannot be accepted. Once the legislation and the Statutory scheme itself permits such transfer in the shareholding, there is no question of petitioners contending that the slum scheme was being dealt, as a marketable or tradeable commodity interse between the shareholders.

196. The petitioners have next contended that change in the developer ought to be only by following a procedure under the Rules and in no other manner. To support this contention, on behalf of the petitioner reliance is placed on the decision in Jamal Uddin Ahmad V. Abu Saleh Najmuddin (supra); Center for Public Interest Litigation Vs. Union of India & Anr. (supra) which lay down that when the statute mandates that something is to be done in a particular way, the things cannot be done in any other way. As discussed above, this argument of the petititoners cannot be accepted. It would be untenable to accept that by transfer of shares, the statutory provisions of the Act stand evaded by such shift or contrivance applying the principle as laid down ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 193 final New Janata.doc by Abbot,C.J. in Fox Vs. Bishop of Chester67. Consequently, in the facts of the present case, the decision in Shrisht Dhawan (Smt) (supra); Jagir Singh Vs. Ranbir Singh and the decision of Delhi High Court in The Associated Journal Ltd. & Anr. Vs. Land and Development Office would have no application, as it cannot be said that there is any fraud on the statute, in the absence of any prohibition to transfer the shareholding in a developer company under the scheme of the Slums Act.

197. It needs to be observed that the contention on the change in the shareholding was raised by the petitioners and SLK Buildcon before AGRC. It was not a ground on which the petitioner moved the CEO SRA to remove respondent no. 5 and on the basis of which the show cause notice dated 20th April, 2017, was issued to respondent no.

5. Respondent no. 5 would accordingly be right in its contention that the issue of change of shareholding though raised by the petitioner before AGRC in the additional affidavit and not even in the grounds in fact was not within the ambit of adjudication of the show cause notice which had taken place before CEO SRA. In my opinion, in any case, such an argument on the change in the shareholding being canvassed on behalf of respondent no. 7-SLK Buildcon, who came to be appointed 67 (1824)2 B&C 635 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 194 final New Janata.doc as a new developer by the petitioners is totally untenable. Respondent no. 7-SLK Buildcon has no locus to urge such a contention and more particularly when SLK Buildcon is a company incorporated under the Companies Act.

198. Respondent no. 5 would also be right in contending that the contentions of the petitioner on change of shareholding in fact militated against Clause 5 and 14 of the Development Agreement entered between the petitioner and respondent no. 5 wherein the petitioner has accepted to appoint respondent no. 5 as a developer. It certainly does not show that it was Shengani who was appointed as developer but it was respondent no. 5-Shee Nidhi Concept Relators Pvt. Ltd., who was appointed as a developer. In any event such a contention also cannot be held to be relevant to Section 13(2) of the Slums Act.

199. As a sequel to the above discussion, the second question is required to be answered in the negative so as to hold that the transfer of shareholding in respondent no. 5 in favour of Omkar Realtors is legal and valid and would not amount to an illegal transfer of a slum scheme.

200. Q.III Whether the concurrent findings of the CEO-SRA ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 195 final New Janata.doc and the AGRC that there is no delay/willful delay on the part of respondent no.5 in implementing the slum scheme, can be said to be perverse and illegal, so as to warrant an approval under Section 13(2) of the Slums Act to change respondent no.5 as a developer ?

To decide this question at the cost of some repetition, some background facts are required to be restated. As noted above it is not in dispute that not only the petitioner but respondent no.8 and 9, being the proposed societies of the slum dwellers unanimously appointed respondent no.5 as the developer in June 2006. A development agreement dated 17 October 2006 was entered by these societies with respondent no.5 to undertake a slum redevelopment scheme. A consequent power of attorney was also issued in favour of respondent no.5. Undoubtedly slums in question which are scattered on three plots are not small slums as noted above. Qua the petitioner, there were 669 tenements and initially the total slum dwellers/hutments in respect of these three societies were 1263 hutments, who were required to be surveyed as per the procedure, to determine the eligibility of these slum dwellers, to be housed in a permanent alternate accommodation. For this a long procedure was required to be undertaken. It appears from the record that between the period October 2006 to August 2008, respondent no.5 took necessary steps to secure individual irrevocable consents from the members of these three societies. This included respondent no.5 entering into individual agreements with the slum ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 196 final New Janata.doc dwellers which itself was a substantial task. After obtaining all the relevant documentary evidence, a draft Annexure II was required to be prepared which also required preparation of plans. The following form of Annexure II would indicate the intricate details which are required to prepare an Annexure II as prescribed under the Schedule to Appendix IV of the DCR which reads thus:-

Annexure II Sr. Name of Name and separate User - Carpet area Documentary Whether If Remarks of the No. Head of Structure Number Residental / of Non Evidences for Individual Individua Competent Family appearing in Electoral Commercial/ Residential (I) Separate slum l dweller Authority on occupying Roll (Specify the year or Residential- User prior Identity (ii) dweller has has Eligibility as per Hut at the Electoral Roll the cum- to 1/1/95 Carpet area (iii) consented consente Approved DCR Present as Structure No and the Commercial Existence prior for the d for the 33(10) verified Serial No. reflected in Amenity to 1/1/95 in scheme Scheme on site Electoral Roll) Structures/re case of Non (Yes/No.) his gulations Residential signature structures Users /Thumb Impressi on Year Sr. No. Structur Eligible Carpet of in e No. in (if not Area in Elect Elector Elector reasons case of oral al Roll al Roll ) Non Reside ntial Users Certified Chief Promoter of CHS/Owner/Developer/NGO Signature of Ward Officer (M.C.G.M.) C.O. (MHADA)/Collector Note : Separate Commercial User shall be considered only if it is in a separate built-up premises and not through a common wall. Dy. Collector (Enc.)/Addl.

with Seal Every page of Annexure II should be signed.

N. B. Strike out what is not applicable.

201. It is not in dispute that respondent no.5 thereafter on 27 August 2008 submitted a proposal through its Architect - respondent no.6 to the SRA for implementing a " single composite slum ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 197 final New Janata.doc rehabilitation scheme" under DCR 33(10), for rehabilitating the slum dwellers of the three societies, on a plot bearing C.S.no.1500 (pt) admeasuring 7876.26 sq.meters. Such a proposal is required to be submitted in 'Annexure I' which interalia includes the developer setting out details of the exiting hutments; their eligibility; zone; reservation as per development plan alongwith survey remarks; lay out; sub division;

amalgamation; area statement; deduction for set back area; proposed road; computation of tenement density; computation of free sale areas, built up areas for rehabilitation, exclusion for FSI computation, and amongst several other details the cost of the project under different heads. On submission of the first proposal, the Superintendent Engineering (SRA) and the AE (SRA) issued a report which was endorsed by the Executive Engineer. Clause 3 of the report regarding the development plan remarks, recorded that the land was affected by Coastal Zone Regulations. It was also recorded that consent of more than 70% of the slum dwellers has been obtained as stated in Clause 4.

202. It is also not in dispute that slum dwellers who were occupying adjoining land admeasuring 11176 sq.meters also intended to join the slum scheme of the petitioner and respondent nos.8 and 9. The petitioner had no objection for this. However, this adjoining land lacked a City Survey number (C.S.Number). The architect of ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 198 final New Janata.doc respondent no.5 was therefore, required to make an application to the Collector for allotment of C.S.Number for the said adjoining land. On 17 October 2008 after undertaking an exercise of measuring the land, correspondence ensued between the Collector and the Additional Chief Secretary. Finally, on 28 July 2009, the Additional Chief Secretary (Revenue) granted approval to the Collector for allotment of C.S.number to the unnumbered plot to be shown in the State Government's name. Accordingly, C.S. no.2124 was granted to the adjoining land admeasuring 11176 sq.meters. C.S.no.2124 (pt) was situated between C.S.No.1500 (pt) and C.S.No.2116 (pt).

203. On account of the numbering of the plots respondent no.5 submitted a revised proposal for amalgamation of land bearing C.S.no.2116 (pt) and 2124 (pt) total admeasuring to 13478.32 sq.meters in addition to the original proposal dated 27 August 2008. Consequently on 23 August 2009 separate general body meetings were held by respondent nos.8 and 9 reconfirming appointment of respondent no.5 as a developer. It was also resolved to include other slum dwellers of the adjoining lands to be part of the scheme. In pursuance to the fresh consent being accorded, on 4 December 2009 respondent no.5 submitted a proposal for amalgamation of C.S.No.2116 (pt) and 2124 (pt) admeasuring 13478.32 sq.meters with ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 199 final New Janata.doc the original scheme submitted in respect of C.S.no.1500(pt) which was admeasuring 7876.26 sq. meters.

204. The record would indicate that surely none of the societies much less the petitioner had any grievance upto this stage which itself consumed about three and half years. Thus the contention of the petitioner that there was a delay since the year 2006 is ex-facie untenable.

205. It needs to be stated that this new proposal was thereafter processed by the Assistant Engineer of the SRA and the Executive Engineer of the SRA. On 8 June 2010, the Deputy Collector (Encroachment & Removal)/Competent Authority, issued an Annexure II Report" certifying total 804 eligible slum dwellers out of 1263 slum dwellers. The report recorded that respondent no.5's appointment has the consent of 658 eligible slum dwellers which was about 82% as also noted in paragraph 12 of the order passed by the AGRC.

206. It is not in dispute that the petitioner and the other two societies (respondent nos.8 and 9) at all material times were aware that the land, subject matter of the proposal for slum redevelopment, was affected by Coastal Zone Regulation (CRZ) Notification issued by ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 200 final New Janata.doc the Ministry of Environment and Forests, Government of India, as the land was within 500 meters from the High Tide Line. Also that there was a reservation of 60.80 meters wide D.P. Road of an area of 13,338.83 sq.meters reducing the net plot area to 7126.89 sq.meters. There was also a proposed Metro Line-3 to pass through the land in question and about 30% of the plot area was affected by the Metro line. There was also a reservation for educational complex and St. Xavier Institute. It is accepting these reservations a proposal was submitted by respondent No.5 for redevelopment of the slums in question.

207. All these issues of various reservations as noted above would become relevant if one considers the; " Policy guidelines for the Development Plan for Greater Bombay for implementation of lands allocated to various users designated/reserved sites occupies by slums"

framed by the State Government in exercise of powers under Section 31(1) of the MRTP Act. Under these guidelines there are different categories of lands classified as Category I to Category VIII. The policy specifies as to how the different categories of land are to be developed.

It appears that the Annexure II was also being processed by SRA in consultation with the Collector.

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208. At this juncture it is required to be noted that the land in question being part of the Mahim Bay, and which was admittedly hit by the CRZ notification dated 19 February 1991 issued by the MOEF, was also a subject matter of an alteration qua the 500 meters High Tide line (HTL) restriction. This on account of issuance of another notification dated 6 January 2011 by the MOEF superseding the earlier CRZ notification dated 19 February 1991, in consequence of the MOEF approving a CZMP (Coastal Zone Management Plan) for Mumbai. By the said notification dated 6 January 2011 the Central Government declared the following areas as CRZ and imposed (from the date of the notification) certain restrictions on the setting up and expansion of industries, operation, process and the like in the CRZ.

(i) the land area from High Tide Line (hereinafter referred to as the HTL) to 500 mts on the landward side along the sea front.

(ii) CRZ shall apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea and the distance up to which development along such tidal influenced water bodies is to be regulated shall be governed by the distance up to which the tidal effects are experience which shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the driest period of the year and distance up to which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans. The expression tidal influenced water bodies was defined to mean the water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds connected to the sea or creeks and like.

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 209.             The      2011   CRZ   notification,   hence,      restricted       the

construction upto 500 meters from the HTL on the landward side of sea front. However, as far as "Bay" was concerned, restriction was reduced from 500 meters to 100 meters. This surely was one of the important factors which would weigh with the SRA, in considering the slum redevelopment proposal as submitted by respondent no.5, more particularly, the land being a government land. As noted it so happened that in or about July 2012 one Deepak Rao filed Writ Petition 1623/2012 before this Court raising issues concerning the Mahim Bay.

An order was passed by this Court on 1 November 2012 directing the Maharashtra Coastal Zone Authority to hear the said petitioner and pass appropriate orders on his representation. As no action was taken, Mr. Deepk Rao filed another petition (WP No. 327 of 2013) in this Court. On 25 November 2013 an order came to be passed on the said writ petition recording Mr. Rao's contention that 2011 CRZ notification having superseded the old 1991 notification, the land of Mr. Deepak Rao fell beyond 100 meters from the Mahim Bay. As the MCZMA despite a long wait was not getting any clarification from the National Coastal Zone Authority (NCZMA) the Court observed that the MCZMA cannot indefinitely wait and a decision either way is required to be taken. The order dated 25 November 2013 passed by this Court in the said writ petition was deliberated in the 86 th meeting of the MCZMA ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 203 final New Janata.doc held on 27 November 2013 and thereafter in the 88 th meeting held on 31 January 2014 the said authority observed as under :

                  o        The work of preparation of new CZMPs as per the
                  provisions of the        CRZ Notification, 2011 was under
                  process by the State Government           through          MoEF

authorized agencies. The appointed MoEF authorized agencies would take atleast one year to submit draft CZMPs to MCZMA.

o The Hon'ble High Court of Mumbai while passing the orders in WP No. 647 of 2012, WP No. 1694 of 2013 and WP No. 11595 of 2012 had observed that project proponet could not be expected to wait, merely because MCZMA and NCZMA were going to revise the CZMP in accordance with the CRZ notification 2011.

o Further, National Hydrographic Office, Dehradun, which is one of the MoEF authorized agency vide letter dated 28th September 2013 had clarified that as per their records, Mahim bay was considered as 'Bay' and was also depicted as 'Bay' on official navigational chart.

o The CRZ map prepared by IRS, Chennai, indicated that the project site is beyond 100 m from CRZ line from the HTL of Mahim bay and creek. The HTL line demarcated by the IRS was same as in the old CZMP approved by MoEF for the same location.

(emphasis supplied) It was therefore held that the project site of Mr.Deepak Rao was situated outside CRZ area that is beyond 100 mts. line from HTL of Mahim Bay and creek as per the 2011 CRZ Notification. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 :::

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210. The above decision of the MCZMA taken on 31 January 2014 was a significant development in respect of lands falling within the Mahim Bay as a new development potential was now available due to the alternation of the CRZ norms from 500 mts. HTL to 100 mts. HTL. The grievance of the petitioner is that respondent no.5, delayed the slums scheme awaiting the potential that would be available in view of this change in the CRZ Rules in as much as the petitioner was at all material times aware of the reservations and restrictions.

211. The above contention of the petitioner is unfounded. It cannot be conceived that respondent no.5 would be aware in 2006 that in 2011 a CRZ notification would be issued by the MOEF which would possibly alter development potential in respect of such lands. However, the moment such a potential become available it cannot go unnoticed and more particularly for those like respondent no.7-SLK Buildcon, would like to reap commercial gains which would be so available. Slums on the Government land and the Government having turned a blind eye to safeguard public interest on such lands, is an ideal situation for developers to look for business by undertaking a slum redevelopment scheme when there is likelihood of a large free sale area, which would be available and that too in a prime location. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 :::

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212. The above developments in regard to the CRZ were destined to cause difficulties with the SRA qua the petitioner's project. This for the reason that the petitioner who did not appear to have any complaint on the slums scheme being processed by the SRA authorities as submitted by respondent no.5, invited a letter from respondent no.5 dated 10 April 2014 which was addressed by Mr.Senghani (then Director of respondent no.5) to the petitioner, that a Letter of Intent be obtained by respondent no.5 by 30 June 2014 and satisfactory progress be achieved to start the construction, failing which a no objection would be handed over to the society by respondent no.5.

213. It also appears that respondent no.8, respondent no.9 and the petitioner held General Body Meetings on 3 May 2014, 4 May 2014 and 7 May 2014 reconfirming respondent no.5's appointment. Holding of such a meeting is although disputed by the petitioner, however, the same is not disputed by respondent no.8 and 9 who are whole- heartedly supporting the redevelopment at the hands of respondent no.5. In my opinion, the challenge to the General Body Meeting dated 7 May 2014 by the petitioner before the AGRC did not appear to be on a sound footing inasmuch as the challenge was on the ground that the meeting was attended by two persons who are dead and that certain ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 206 final New Janata.doc persons had signed the minutes of the meeting twice. The AGRC has recorded a finding of fact disapproving such assertion of the petitioner that if these meager number of slum dwellers if are to be excluded from the said meeting, it would certainly show that the others had agreed to continue their support to respondent no.5. These observations of the AGRC are as under:-

"With regard to documents at Serial No. (iv) to (vi) the contention raised by Applicant New Janta SRA CHS (P) that four Slum Dwellers whose signatures appear in the General Body Meeting dated 3rd May 2014, 4th May 2014 and 7th May 2014 passed by the respective Societies, had already expired. This Committee is of the view that even if this contention is correct then also it would make negligible difference in the 81% of consent given by the eligible Slum Dwellers to Respondent No.3 Shree Nidhi Concept Realtors Pvt. Ltd.

Further contention of the Applicant New Janta SRA CHS (P) that there are several instances where one person has signed twice for himself and several others and Slum Dwellers whose names are started to have been present at the meeting, however their names do not feature/appear in Certified Annexure-II issued by the Concerned Authority are vague statements.

However by the said Special General Body Resolution dated 3rd May 2014, 4th May 2014 and 7th May 2014 passed by respective committee members of the said societies have re- confirmed the appointment of Respondent No.3 Shree Nidhi Concept Realtors Pvt Ltd.

Therefore this Committee is of view that there is no question of remanding the matter back to CEO/SRA for hearing in respect of the aforesaid seven documents as ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 207 final New Janata.doc this committee has heard the concerned parties at length, therefore it will not achieve useful purpose but will further delay the implementation of S. R Scheme."

214. The three societies on 15 May 2014 had in fact approached the Assistant Registrar, SRA for reservation of the co-operative society names. As informed by respondent no.5 to the petitioner and respondent nos.8 and 9, respondent no.5 on 6 June 2014 [ which was prior to the expiry of the assurance as given by respondent no.5 (Director Mr.Senghani) to the petitioner in the letter dated 10 April 2014], applied to the SRA for issuance of a LOI..

215. It cannot be conceived that the letter of intent to be received from the authority is like respondent no.5 receiving something instantly across the counter. Thus, respondent no.5's letter dated 10 April 2014 issued to the Society and more particularly assurances in the last paragraph, are required to be read in the context of the scheme of things, which effectively meant that appropriate steps would be taken by respondent no.5, so that a letter of intent can be received and an endeavour can be made to start the work. The petitioner's reading of the last paragraph of this letter of respondent no.5, that once before 30 June 2014 respondent no.5 failed to receive a LOI, then it should give a NOC, is a total misreading of the said letter. The letter is required to be ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 208 final New Janata.doc read in its entirety and not in bits and pieces as sought to be done by the petitioner.

216. However what was happening behind closed doors at the petitioner's end and the reason for the petitioner demanding an assurance as given by respondent no.5 in the letter dated 30 April 2014, appeared to be something else and which comes to light when suddenly with no previous background of any complaint/representation to the SRA, the petitioner held a General Body Meeting on 15 June 2014, terminating respondent no.5's appointment and instantly appointing respondent no.7- SLK Buildcon to be its developer. Admittedly, when such a meeting was held, the petitioner was only a proposed society. There was no observer of the SRA (Assistant Registrar, Co-operative Society SRA) appointed to remain present at such a meeting, as per the requirement of Circular No.80, issued by the SRA. On the basis of this resolution, the petitioner by letter dated 27 June 2014 approached the CEO SRA informing of the appointment of respondent no.7-SLK Buildcon on the ground that since 2006 respondent no.5 had not taken any steps for implementation of the slum scheme. The CEO SRA was requested to take further necessary steps in the matter within 15 days on receipt of the representation and recognize respondent no.7 SLK Buildcon as the new developer. In the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 209 final New Janata.doc meantime it appears that the Engineering Department had put up the proposal of respondent no.5 before the CEO SRA for approval of the draft LOI. The CEO SRA however did not take any decision on the proposal and instead directed the Assistant Registrar to call for a meeting of the Society to ascertain whether respondent no.5 should be the developer or it should be the new developer so appointed. It appears that this was wholly unwarranted to delay the decision on the LOI.

217. Be that as it may the Assistant Registrar accordingly informed the petitioner and respondent nos. 8 and 9, of its decision to hold General Body meetings by his letter dated 15 July 2014. This was the starting point of the first round of litigation. The Chief Promoters challenged the communication dated 15 July 2014 of the Assistant Registrar by filing Revision Application no.296, 297 and 298 of 2014 before the Divisional Joint Registrar under Section 154 of the Co- operative Societies Act. The Divisional Joint Registrar by an order dated 11 September 2014 set aside the impugned communication dated 15 July 2014. This decision of the Divisional Joint Registrar was challenged before this Court in Writ Petition nos.8410, 8412 and 8413 of 2014 before this Court. By a judgment and order dated 18 April 2015 this Court allowed the said writ petitions by setting aside the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 210 final New Janata.doc order dated 11 September 2014 passed by the Divisional Joint Registrar.

218. Apart from the above litigation, the Chief promoters of these three societies as also respondent no.5 challenged the decision of the CEO SRA dated 14 July 2014, to the effect that the Engineering Department's proposal to take a decision on the LOI, be deferred after the meetings of the societies are held, by filing proceedings before the High Power Committee being application nos.3 and 4 of 2015. On 5 March 2015 HPC by a reasoned decision set aside the orders dated 14 July 2014 of the CEO-SRA to postpone the meetings and directed the CEO SRA to take a decision on the proposal of respondent no.5 for issuance of a LOI. The High Power Committee in so directing held that the General Body Resolution of the petitioner dated 15 June 2014 was illegal and in violation of Circular 80 of the SRA. It was also observed that the record indicated that respondent No.5 had consent of 82% of the eligible slum dwellers and that there was no willful delay on the part of respondent no.5. This order passed by the High Power Committee was challenged before this Court in writ petition nos.673 and 674 of 2015 filed by respondent no.8-Hind Ekta. The Division Bench of this Court by an order dated 21 September 2015 dismissed both the said writ petitions interalia directing the CEO SRA to take a ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 211 final New Janata.doc decision uninfluenced by the observations and conclusions in the orders passed by the High Power Committee and including the orders of this Court. The Division Bench also has commented in its order as noted above that the SRA delayed taking decision on respondent No.5's proposal.

219. Thereafter the CEO SRA initiated steps to hold elections of the three societies. On 17th December, 2015 the CEO directed that elections be held of all the three societies and opined that if newly elected managing committees separately or a single managing committee submits any application to the SRA then decision would be taken on the applications as per rules. This initiated further litigation in as much as again applications were filed before High Power Committee praying for setting aside of the communication dated 17 December, 2015 issued by the CEO SRA and that the Assistant Registrar be restrained from holding proposed General Body Meetings.

220. However, during the pendency of the above proceedings the SRA processed the proposal of respondent no.5. A financial certification of respondent no. 5 (Annexure III) was issued by the SRA in favour of respondent no. 5 on 4 February 2016. This on the background of respondent no. 5 making payment of Rs.8,89,06,000/- ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 :::

pvr 212 final New Janata.doc to the SRA towards land premium payable in respect of the scheme and also a bank guarantee of Rs.3.11 crores being furnished to the SRA. Consequently, on 5 February 2016 a Letter of Intent (LOI) was issued by the SRA in favour of respondent no. 5 to undertake the slum scheme in question for the three societies. However, the same was interalia with one of the following condition:

"This LOI will have no bearing whatsoever on any parallel proceeding under any section of the Maharashtra Slum Areas (I.C. & R) Act 1971."

221. On 17 March 2016 General Body Meeting of the petitioner was held by the Assistant Registrar and the managing committee was elected. Similarly such meetings were held for respondent nos.8 and 9. The Managing Committee of the petitioner thereafter on 26 March 2016 held a meeting whereby it ratified the earlier General Body Resolution dated 15 July 2014 to remove respondent no. 5 and appoint respondent no. 7 SLK Buildcon. It needs to be noted that General Body Meeting of the petitioner-society dated 15 June 2014 was observed to be not in accordance with Circular 80 by the High Power Committee in its decision dated 5 March 2015 and as upheld by the Division Bench of this Court in its decision dated 21 September 2015 in WP (L) 673 and 674 of 2015 and thus the said General Body Meeting of the petitioner society could not be of any relevance.

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222. There was a further litigation in as much as the Chief Promoter of the petitioner now filed Application No. 83 of 2016 before the High Power Committee (AGRC) interalia praying for setting aside of the Letter of Intent (LOI) dated 5 February 2016 issued in favour of respondent nos. 5 and 6 and also making a prayer that the SRA be directed to terminate appointment of respondent no. 5 for inordinate delay. There was another prayer that the SRA be directed to carve out the petitioner's plot of land from the LOI issued in favour of respondent no. 5. This application of the petitioner before the HPC indicates the petitioner's disassociation with respondent nos. 8 and 9 and its contention that the petitioner should be treated independent of respondent no. 8 and 9 in regard to the slum rehabilitation scheme in question.

223. Despite approaching the High Power Committee in the aforesaid application filed on 1 April 2016, the petitioner filed an independent application with the CEO SRA under section 13(2) of the Slums Act interalia praying for similar reliefs namely that appointment of respondent no. 5 be terminated for inordinate delay to the extent of undertaking redevelopment qua the petitioner's society and that the Engineering Department be directed to carve out petitioner's plot of ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 214 final New Janata.doc land from LOI and not to entertain any applications of respondent nos. 5 and 6.

224. The CEO SRA by the impugned order dated 17 May 2016 rejected the petitioner's application filed under section 13(2). This order (impugned order no. 1) passed by the CEO SRA was challenged by the petitioner before the High Power Committee (AGRC) in Application No. 110 of 2016 which was filed on 19 May 2016 which came to be adjudicated by the impugned order dated 11 January 2018, which also decided the earlier application no. 83 of 2016 filed by the petitioner whereby both these applications came to be dismissed leading to the filing of the present petitions.

225. The AGRC in the impugned order dated 11 January 2018 considering the factual matrix and the documents has recorded a finding that there were impediments in implementation of the slum scheme in question due to the CRZ issues, reservations etc. It was also held that once it is a composite scheme to carve out the petitioner's plot was not a feasible proposition.

226. The above conspectus of facts in my opinion would not indicate that there was any defiant neglect on the part of respondent ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 215 final New Janata.doc no. 5 requiring it to be removed as a developer on the ground of inordinate delay as alleged before the authorities by the petitioner.

227. In my opinion, having noted in detail these facts, this is a case where the petitioners are to be themselves blamed to delay the redevelopment having resorted to infighting and unwarranted litigation, possibly at every stage. The two factions being created in the petitioner society as also within respondent nos. 8 and 9 and their actions of not being united has severely affected their own project. It is unfortunate that the slum dwellers fell prey of being misguided and mislead at the hands of few amongst them who were to ruin the prospects of early redevelopment.

228. It is a clear position on record that now the petitioner is a lone crusader against respondent nos. 5 and 6. Respondent nos. 8 and 9 having fallen apart and are strongly supporting respondent nos. 5 and 6. Thus the situation is such that in a composite scheme where all the three societies initially stood together, and when much progress was being made on the official front at the hands of respondent nos. 5 who spent substantial amounts, the request of the petitioner to carve out the petitioners plot and permit the petitioner to re-undertake the entire exercise by the newly appointed developer-respondent no. 7, was ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 216 final New Janata.doc wholly unjustified and unwarranted as rightly held by both the authorities below.

229. The Court also cannot be unmindful that LOI is already issued in favour of respondent no.5 on 5 February 2016. Further also a permission is granted to commence construction of rehabilitation buildings. Respondent no. 5 had paid the second installment of Rs.15,56,00,000/- towards 25% of the land premium to the SRA. The first installment of 8.89 crores was paid on 25 January 2016. Further on 8 March 2017 a revised LOI was issued in favour of respondent no.

5. This apart on 12 May 2017 the State Environment Assessment Authority also issued a environmental clearance in favour of respondent no. 5 and after the impugned orders passed by the AGRC on 22 February 2018 a commencement certificate was granted for rehabilitation of building no. 1.

230. It needs to be observed that the powers conferred on the SRA to consider an application under section 13(2) are required to be exercised considering the totality of the facts and circumstances of the case. The slum dwellers who have a limited right to have a permanent alternate accommodation once having appointed a developer, the legislature has left it to the due consideration of the SRA to consider as ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 217 final New Janata.doc to whether a genuine case is made out to remove the developer who was appointed by nobody but the very slum dwellers who have moved the SRA for the change of the developer. As observed the developer cannot be changed at the whims and fancies of the slum dwellers or their co-operative societies. It certainly cannot be so casual as in a given case the developer having changed his position would be faced with civil consequences causing him a serious prejudice although in a contractual set up with the slum society. It is therefore a onerous task for the SRA to examine the case carefully before passing any order under section 13(2) of the Slums Act. The legislative intent in providing the powers under section 13(2) is neither to generate any private contractual litigation nor to give rise to any litigation on the slum scheme. The object of the legislation is to bring about an improvement and clearance of the slums and their effective redevelopment so as to uplift the slum dwellers from unhygienic and substandard living conditions and provide them a decent accommodation.

231. In these circumstances, the reliance on behalf of the petitioner on the decision of Division Bench of this Court in Hi Tech India Construction vs. Chief Executive Officer, Slum Rehabilitation Authority (supra) would not assist the petitioners. Moreover, this ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 218 final New Janata.doc decision in paragraph 17 holds that if the decision of SRA or High Power Committee, if is a possible view, and if the petitioners are unable to establish their case on any malafides or otherwise, the finding of the authorities should not be interfered. Admittedly this is not the case where malafides are pleaded by the petitioner much less proved. The findings as recorded by both the authorities are borne out by the record. Both the authorities have taken a holistic view of the matter on this count.

232. In any event, the petitioners in my opinion ought not to have been so bold to make prayers to carve out their plot, from the composite scheme, as if they are the owners of the land, when the land itself belongs to the State Government and when the slum dwellers would have a limited right to be re-housed in the redeveloped premises. Hence, such a prayer for carving out of the plot as made by the petitioner was most inappropriate.

233. It is often seen that slum dwellers on public land in the city of Mumbai are left completely misguided, uncontrolled and directionless in the absence of the public bodies or the Government extending their helping hand to do anything for them. In fact the entire decision to deal with this land was graciously left by the Government at ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 219 final New Janata.doc the discretion of the slum dwellers who in turn are left playing at the hands of extraneous elements, when it came to redevelopment of the slums. The Government negligently does not play any role to safeguard such prime land and encroachments being consciously overlooked by the otherwise strong Government machinery, these lands become notified and protected slums. Still the Government turns a blind eye to take steps to alleviate the slums and resettle the slum dwellers, so that they can be accommodated to live in human conditions. In fact such neglect and apathy on the part of the authorities has brought about this precarious situation of the city facing large slums. Thus, eminently there is an urgent requirement of a robust institutional framework and effective steps to be taken so that the objective of proper urban planning leading to social and economic development can be achieved. It is for this reason this Court in Galaxy Enterprises vs. State Maharashtra68 has made the following observations:

"3. There is a wealth of decisions of the Supreme Court and this Court emphasizing on the expeditious and effective rehabilitation of slum dwellers, who live in inhuman conditions, so as to achieve in letter and spirit, the object and intention of a fairly old State legislation namely the "Maharashtra Slum Areas (Improvement , Clearance and Redevelopment) Act 1971". Nonetheless, considering the volumes of disputes still reaching the Courts, it can certainly be said that time is ripe, if not too late, to ponder, whether things are realistically working in the right direction, to eradicate slums and rehabilitate the slum dwellers, with the desired efficacy and expedition. This not only at the hands of the authorities but also at the hands of the other stake holders. The vital issue which has often led to controversy and disputes, is on the rules permitting, the selection 68 2019 SCC OnLine Bom 897 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 220 final New Janata.doc and appointment of developers to undertake a Slum Rehabilitation Scheme, being conferred on the slum dwellers, who are hardly expected to know the nitty-gritty of the slum redevelopment schemes. It is seen that the so called leaders of the slum dwellers who are themselves in need to be rehabilitated, are often lured by developers and their agents, and once a developer is appointed, what normally prevails is a constant fear of incertitude and skepticism amongst the slum dwellers, leading to disputes on variety of issues affecting their final rehabilitation. Such issues not only frustrate the very object of a speedy slum redevelopment but completely derail the slum schemes. It can be seen that scores of slum schemes have remained incomplete for years together and are languishing on such issues, either in litigation before Courts and/or before the authorities. These schemes need not face such ordeal, including of an unending litigation. To change the developer is no answer as even this process involves dispute resolution and ultimately lengthy litigation from one forum to another.

"Can the Slum Rehabilitation Authority not have a robust panel of bonafide developers who have genuine business interest to redevelop slums, of course with commercial benefits as conferred under the rules, and who can be appointed by an open and fair scheme of selection and allotment of slum projects and who would be accountable to the Authority?"

It is high time that learning from the past experiences, the burden on the ill equipped slum dwellers to be responsible to appoint developers and pursue the redevelopment scheme is removed and to do away the ordeal of the slum dwellers to go on knocking the doors of different authorities for years together when the developers fail to perform. The redevelopment to be undertaken professionally and in a time bound manner is the need of the day, even to fulfill the ideals which the Government intends to achieve. What is necessary is the initiative of a redevelopment, by genuine, honest and trustworthy developers appointed through the Slum Authority or any other Special Body created for the said purpose and not to leave it to the slum dwellers to re-develop the slums. This for the reason that the slum dwellers are supposed to be merely interested in their rehabilitation and can have no other interest. All these efforts are necessary, as a step forward to achieve an object of having an ideal city free of slums. It cannot be countenanced that the slums be redeveloped only when the slum dwellers feel the need of a redevelopment and the Government Authorities cannot initiate redevelopment and cannot initiate a suo motu action in that behalf. It is hence, for the Government and the Slum Authority to give its anxious consideration to these issues and in its wisdom to device a substantial, nay a full proof mechanism by undertaking a study and identify these grey areas, so that the helping hand as extended by the legislature in providing this beneficial law as far back in 1971 that is almost 50 years back is held strongly and firmly by all concerned. It is never too late."

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234. For the above reasons, question no. 3 is required to be answered in the negative confirming the findings of the authorities, as I find that there is neither a delay nor any willful delay on the part of respondent no. 5 to undertake the slum scheme as held by the authorities.

235. Q.IV Whether the orders passed by the Chief Executive Officer-SRA on the petitioner's application under Section 13(2) and as confirmed by the AGRC, are in any manner vitiated on the ground of breach of principles of natural justice ?

On this count the impugned orders are interalia being assailed by the petitioner primarily on the following contentions:-

That the general body resolution dated 3 May 2014, 4 May 2014 and 7 May 2014 (Petitioner's society's resolution) of the Societies were not part of the record before the CEO-SRA as they were placed on record by an application dated 8 May 2014 received by CEO on 9 May 2014, which was after the CEO SRA closing the hearing on the Section 13(2) application on 5 May 2016. It is contended that there is a breach of the principles of natural justice in the CEO SRA taking these GBRs into consideration. That these were false and fabricated documents, as several individuals have signed twice and some persons who have signed had already expired. These resolutions were not earlier pressed into service in the previous round of litigation and therefore, surely ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 222 final New Janata.doc these were fabricated documents. These resolutions in any case could not have been relied by the CEO SRA in passing the impugned order, as subsequent meeting was held on 15 June 2014 by the petitioner, when the appointment of respondent nos.5 and 6 was terminated. Even the AGRC has failed to render any findings on the contention of fabrication. Respondent nos.5 and 6 justifying that such resolutions were passed, cannot be accepted in view of the decision of the Supreme Court in Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. (supra). Even AGRC has erred in not accepting the petitioner's contention that breach of the principles of natural justice could not have been remedied in the appeal before AGRC. The AGRC ought to have remanded the matter back to CEO SRA/respondent no.2. The petitioner has contended that respondent no.5 could not have been appointed on the day when initial resolutions were passed appointing respondent no.5 as the developer on 3 June 2006, 9 June 2006 and 15 June 2006 as Respondent no.5 was not incorporated as a company. This aspect has been completely overlooked by both the authorities.

236. Thus broadly it is the petitioner's contention that there is a breach of principles of natural justice when copies of the said GBRs were not supplied to the petitioner and nonetheless referred by the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 223 final New Janata.doc CEO SRA in his order. The petitioner has contended that the order of CEO SRA would stand vitiated being in breach of the principles of natural justice by referring to these GBRs, copies of which were placed on record subsequent to closing of hearing by CEO SRA. The petitioner contends that even if the AGRC has considered the petitioner's challenge on this issue, nonetheless the initial breach of the principles of natural justice cannot be cured even if the remedy to assail the order passed by the CEO SRA, was available to the petitioner before the AGRC. In short, the contention is that a fair appeal would not cure an unfair trial. This argument is strongly supported on behalf of the petitioner relying on the decision of the Supreme Court in Institute of Chartered Accountants of India Vs. L.K.Ratna & Ors. (supra).

237. The Court is required to consider these contentions as urged on behalf of the petitioner on two counts, firstly, whether the facts indicate any breach of principles of natural justice and secondly, on the legal principle as urged on behalf of the petitioner, referring to the decision in Institute of Chartered Accountants of India Vs. L.K.Ratna & Ors. (supra).

238. In so far as the first count, the petitioner's contention that there is breach of principles of natural justice on the ground that the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 224 final New Janata.doc petitioner had no opportunity to deal with the three General Body Resolutions dated 3 May 2014, 4 May 2014 and 7 May 2014, in my opinion, this contention of the petitioner cannot be accepted for more than one reason. In the impugned order dated 11 May 2016 passed by the CEO SRA, it has been clearly recorded and as a matter of fact, on behalf of respondent no.5 these three resolutions were referred during the course of the submissions, when no objection was taken on behalf of the petitioner. The CEO SRA in this regard has made the following observations:-

Now the question arises as to when there is no wilful delay the Respondent No.3 should be terminated or not on the request of Applicant society. In this regard Advocate Joglekar for Respondent No.3 submitted that Applicant and as well as other two societies repose confidence in Respondent No.3 and ratified all the agreements, Power of Attorney and other documents executed in favour of Respondent No.3 in the year 2006 by passing Resolution in the month of May 2014 and surprisingly within a period of two months all these societies passed a Resolution for termination of Respondent No.3. The copies of Resolutions passed by Applicant society and two other societies on 04/05/2014, 03/05/2014 and 07/05/2014 are submitted on record. From these copies it appears that all the three societies have ratified the appointment of Respondent No.3 as developer.

From these facts there appear to be much substance in submission of Advocate for Respondent No.3 that all the three societies passed Resolution in the month of June 2014 for termination of Respondent No.3 as developer at the instance of rival developer who wanted to take over the subject S.R. Scheme due to the Resolution of MCZMA dated 31/01/2014."

(emphasis supplied)

239. The second reason being that the said resolutions were relevant in the context of the contention as urged on behalf of ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 225 final New Janata.doc respondent no.5 that it has support of all the three societies. In my opinion, in view of the clear factual position which was available on record that respondent nos.8 and 9 supported respondent no.5 to be a developer, and as to what happened subsequent to the General Body meeting held on 7 May 2014 (petitioner's GBR), it cannot be said that there was any breach of the principles of natural justice. Further, even assuming that these documents of GBR were not available to the petitioner, it has not caused any prejudice to the petitioner so as to make such a complaint.

240. Even the contention of the petitioner that these GBR's are false and fabricated, cannot be accepted. The AGRC has rightly observed that merely because there are some persons who have signed twice (not a substantial majority to change the nature of these GBR's) or in place of names of two dead persons there are signatures made, which are explained to be the signatures of the legal representatives of these dead persons. These factual observations cannot be held to be perverse, to label these documents as fabricated.

241. I am also unable to agree with the petitioner's submission that there is any breach of principles of natural justice for the reasons of these documents not being furnished to them, for the reason that the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 226 final New Janata.doc remedy before the AGRC is the remedy of a full-fledged appeal which is a continuation of the proceeding before the CEO-SRA, in which the AGRC has entertained issues which were not canvassed by the petitioner even before the CEO SRA. The AGRC has considered the case of the petitioner on the breach of the principles of natural justice and whether there was any prejudice which was caused to the petitioner by not furnishing the documents, as placed on record by respondent no.5 before the CEO-SRA on 5 May 2016. Once on the petitioner's appeal an opportunity of a proper hearing was granted to the petitioner, on all the counts and a decision is rendered it cannot be said that the breach of principles of natural justice remains unremedied.

242. It needs to be observed that the AGRC has complete powers as an appellate authority to consider all the issues touching the dispute even if they were not raised before the CEO-SRA, as can be clearly seen from the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Grievance Redressal Committee Rules 2014 (for short 'the AGRC Rules 2014') and more particularly Rule 6, 7 and 8. It would be appropriate to note the relevant provisions of the Slums Act pertaining to constitution of AGRC and AGRC Rules to appreciate the nature of the jurisdiction being exercised by the AGRC. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 :::

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 Section 35 reads thus:-

          35. Appeals

[(1) Except as otherwise expressly provided in this Act, any person aggrieved by any notice, order or direction issued or given by the Competent Authority, may appeal to the Appellate Authority, who shall be a person holding a post not below the rank of Additional Collector, in respect of the areas of Municipal Corporations and "A" Class Municipal Councils, and not below the rank of Deputy Collector, in respect of areas of other Municipal Councils, to be notified by the State Government, within a period of thirty days from the date of issue of such notice, order or direction.] [(1A) Any person, -

(a) aggrieved by any notice, order or directions issued or given by the Appellate Authority under sub-section (1), within a period of thirty days from the date of issue of such notice, order or direction;

[(b) for the purpose of resolving any dispute in relation to matiers regarding the declaration of Slum Rehabilitation Area under section 3C and order of slum clearance under section 12 or order under section 13 against the owner or developer not undertaking and completing the project as per the permission and approval so also within the stipulated time frame or order regarding eviction of the slum dweller from Slum Rehabilitation Area under section 3D, by the Chief Executive Officer and about eligibility of slum dweller, eligible slum dweller being denied tenement, transit accommodation being unavailable or not provided and likewise.] may file an appeal before the Grievance Redressal Committee constituted by the State Government, by notification in the Official Gazette, for such area and consisting of the Chairperson and such number of members as the Government may deem fit. The qualifications of the Chairperson and the members of the Committee and the procedure to be followed for transacting its business shall be such as may be prescribed.] (2) Every appeal under this Act shall be made by petition in writing accompanied by a copy of the notice, order or direction appealed against.

[(3) Any appeal shall not operate as a stay order appealed from except so far as the Appellate Authority may grant by reasoned order, not shall execution of any order be stayed by reason only of an appeal having been preferred from, but the Appellate Authority may for sufficient cause order stay of execution of such order and if the notice, order or direction against which appeal is made and is set aside by Appellate Authority on an appeal disobedience thereto shall not be deemed to be an offence.] ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 228 final New Janata.doc (4) No appeal shall be decided under this section unless the appellant had been heard or has had a reasonable opportunity of being heard in person or through a legal practitioner.

(5) The decision of the [Grievance Redressal Committee] on appeal shall be final and shall not be questioned in any court." The AGRC Rules relevant in the present context reads thus:-

6. Presentation, registration and admission of appeals before Grievance Redressal Committee (1) Every Appeal shall be presented by the Appellant or, as the case may be, by his Lawyer, to the Registrar of the Grievance Redressal Committee.

(2) Every Appeal shall be typewritten and submitted along with relevant Exhibits and Annexures.

(3) Every Appeal shall specify the names and addresses of all the Appellants and the Respondents.

(4) Every Appeal shall state the cause of action and also grounds of Appeal on which the decision is sought from the said Committee. (5) Every Appeal shall state, the ad-interim relief or interim relief which the Appellant seeks from the said Committee. (6) Every Appeal shall be filed by one person unless the said Committee permits more than one person to join together and file a joint appeal if so satisfied, having regard to the cause and the nature of relief prayed for or reason of common interest.

(7) Every Appeal shall be accompanied by the order or direction or notice (either in original or a certified copy thereof) in respect of which the Appeal is made to the said Committee.

(8) Every Appeal shall be in the requisite pro-forma as may be in the specified by the Grievance Redressal Committee stating cause of action and synopsis of dates and events.

(9) Every Appeal shall be supported by an Affidavit on stamp paper of appropriate value and duly sworn before the Competent Authority or the Notary verifying the correctness and genuineness of the facts stated therein to establish identify of the Appellant.

(10) Every Appeal, complete in all respect, shall be filed only after affixing the requisite court fee stamp for fee payable as per rule 10.

7. Appearance of Parties and Hearing by Grievance Redressal Committee (1) Persons competent to appear before Grievance Redressal Committee-

Every Appellant may appear before the Grievance Redressal Committee in person or through any person holding his duly attested power of attorney or through a Lawyer who has been duly authorized by the Appellant and where the State Government or Semi-Government ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 229 final New Janata.doc Office is the Appellant, it may be represented through a Gazetted Officer or a Lawyer who has been duly authorized by the State Government or Semi-Government Office to represent it before the said Committee.

(2) Notices to parties for appearances before Grievance Redressal Committee-

(a) After an Appeal for admission or hearing or final hearing is registered, a clear notice of at least three days shall be served on all parties concerned calling upon them to appear before the Grievance Redressal Committee on the date specified in the said notice. Every such notice issued by the Grievance Redressal Committee shall be served in accordance with the provisions of section 36 of the Act;

(b) The notice shall also state that if the parties concerned do not appear before the Grievance Redressal Committee on the date specified in the said notice or any subsequent date to which the admission or hearing or final hearing may stand adjourned, the Grievance Redressal Committee may deal with such Appeal in appropriate manner as it deems fit with regard to the facts and circumstances of such Appeal;

(c) The Appeals for admission or hearing or final hearing before the Grievance Redressal Committee may be heard on such priorities as may be decided by the Chairperson or as may be directed by the Hon'ble High Court of Judicature at Bombay or Hon'ble Supreme Court of India. Further, Appeals filed by the Senior Citizens, Physically Challenged Persons, Single Woman or Widows and persons with serious ailments may also be listed and disposed off on priority by the Committee;

(d) The Grievance Redressal Committee shall be entitled to call for any record or require attendance of any person to facilitate and expedite the disposal of the Appeals. The Grievance Redressal Committee shall also be entitled to direct any officer of the State Government or Semi-Government Office or of the Slum Rehabilitation Authority, as the case may be, to undertake inspection of records and produce them before the Grievance Redressal Committee;

Provided that, the said Committee may also engage a Third Party to undertake such inspection of records as may be required for the expeditious disposal of Appeals before the said Committee;

Provided further that, the Grievance Redressal Committee shall record the specific reasons, in writing, requiring the engagement of a Third Party to undertake such inspection of records and the expenses of such inspection of records undetaken by the Third Party shall be borne by the Appellant or Respondent concerned or as may be directed by the said Committee;

Provided also that, the Grievance Redressal Committee may initiate any proceedings suo moto and given such orders and directions as may be deemded necessary, including, inter alia, for service of notices to all affected parties concerned and invite reply on the issues involved in the proceedings in such forms as it may direct, so as to ensure compliance to the provisions of the Act or observance of the Development Control Regulations:

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pvr 230 final New Janata.doc Provided also that, the Grievance Redressal Committee may, at its discretion, designate any person whom the said Committee considers appropriate to present the case of a party which cannot present its Appeal or afford to engage its representative; (3) Local inspection by Grievance Redressal Committee.-

(a) The Chairperson or any Member if so directed by the Chairperson, may, suo moto or on an application by any party in an Appeal before the Grievance Redressal Committee, visit any place for local inspection if it is necessary for hearing of an Appeal before the said Committee;

(b) The local inspection will be undertaken on an application of any party in an Appeal and upon that party depositing in advance the requisite expenses with the Slum Rehabilitation Authority an amount to meet the travelling and incidental expenses as may be decided by the said Committee;

(c) The Chairperson or Member so authorized may make notes of the local inspection and such notes will be provided to all the parties to an Appeal and shall form part of the proceedings of the Appeal before the Grievance Redressal Committee.

(4) Assistance to Grievance Redressal Committee by persons possessing special knowledge-

The Grievance Redressal Committee may, for the purposes of expeditious disposal of grievances in any Appeal, choose one or more persons possessing special knowledge of any matter to assist it in the completion of proceedings and if require, direct the Slum Rehabilitation Authority to pay to such person an honorarium as may be decided by the said Committee.

(5) Non-appearance of parties before Grievance Redressal Committee-

(a) The Grievance Redressal Committee may, while hearing Appeal comes to a conclusion that the Appellant has consistently remained absent at the time of hearings, either in person or through his Lawyer, without sufficient reasons, decide to dismiss such Appeal, for default or proceed ex parte to decide the Appeal.

(b) The Grievance Redressal Committee shall not grant any adjournment unless satisfied for sufficient cause for grant of adjournment. The Grievance Redressal Committee may also adjourn the admission hearing or final hearing of the Appeal suo moto, on such terms, as it may think fit and at any stage of the proceeding for reasons to be recorded in writing by the said Committee. All such orders adjourning the hearing of Appeal shall be signed by the Chairperson and Members present in the sitting of the said Committee. (6) Arguments of new point of facts before Grievance Redressal Committee.-

(a) The Appellant shall also file a brief Statement about Appeal, in writing, at least three days before the Appeal is fixed for final hearing before the Grievance Redressal Committee. ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 :::

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                 (b)     The Appellant shall not be entitled to argue any new

point at the time of admission, hearing or final hearing which is not included in his Appeal, unless specifically permitted by the Grievance Redressal Committee:

Provided that, no such permission shall be given to the Appellants unless due notice thereof has been given in advance to the Respondent:

Provided further that, no application or document from the Appellants shall be received by the Registrar without specific directions of the Grievance Redressal Committee after appearance of the Respondent.

(7) Stay orders and its operation -

The Grievance Redressal Committee may, subject to the provisions of sub section (3) of section 35 of the Act, after an Appeal is entered in the Register of Appeals and on the application of the Appellant for the grant of ad-interim relief, admit the Appeal ether ex parte or after hearing the Respondents, pass an order to stay the operation of any order, notice or direction against which the Appeal is filed for such period as may be stated in the order with or without any conditions including of such security amount as may be required to be forwarded to the Slum Rehabilitation Authority:

Provided that, no Appeal shall be admitted and no order of stay be passed by the Grievance Redressal Committee unless,-

(i) the Grievance Redressal Committee is satisfied that substantial financial losses or non-pecuniary damages may accrue to the Appellant;

(ii) the Grievance Redressal Committee is satisfied that there is prima facie contravention of the provisions of the Act, rules made thereunder and the Development Control Regulation, if any;

(iii) the Grievance Redressal Committee is of the opinion that it is necessary to do so in the larger public interest.

(8) Procedure for restoration of Appeal by Grievance Redressal Committee--

If any appeal is decided by the said Committee in the absence of either party to it, the party remaining absent may, within 30 days of the date of the decision, apply to the said Committee for getting ex parte decision set aside stating grounds thereof. If the said committee is satisfied that there are sufficient grounds for setting aside the ex parte decision, the said committee may set it aside and restore the appeal on such terms as it may deem fit and proceed to decide it on merits on hearing both sides.

(9) Procedure in case of death of party in Appeal before Grievance Redressal Committee--

Where one of several Appellants or the parties at whose instance an Appeal was filed before the Grievance Redressal Committee dies during pendency of the Appeal, and the right to continue the proceedings does not survive to the surviving appellants or where the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 232 final New Janata.doc sole appellant or the party at whose instance the appeal is filed dies and right to sue the proceeding survives, the Grievances Redressal Committee, on an specific application being made in that behalf by the legal representative of the deceased cause him to be impleaded in the proceeding within ninety days of the date of death, and may proceed with the Appeal. The same procedure shall be followed if a respondent or opponent dies pending the proceeding.

(10) Procedure where no legal representative is impleaded as party before Grievance Redressal Committee--

If the legal representative of a deceased Appellant does not apply as aforesaid, then such appeal shall abate :

Provided that, the legal representative of the deceased Appellant may apply to get the abatement set aside within sixty days form the date of such abatement by showing sufficient cause therefore, and the said Committee may, if satisfied with the sufficient cause shown by such legal representative, set aside the order of abatement of the Appellant and implead the legal representative in the proceeding on such terms as it may impose and proceed with such Appeal, on merits.

8. Orders and directions of Grievance Redressal Committee (1) Orders of the Grievance Redressal Committee--

(a) The Orders of the Grievance Redressal Committee shall be signed and dated by the Chairperson and all members. Where the order of the said Committee is by majority, it shall be similarly signed and dated by the Chairperson and the members forming the majority and the dissenting Chairperson or member, as the case may be, shall record his opinion on the findings on which he dissents and thereafter with its inclusion, the copy of findings on which he dissents and thereafter with its inclusion, the copy of the order in an Appeal may be sent to all the parties and shall be displayed on the notice board of the concerned Grievance Redressal Committee.

(b) The Grievance Redressal Committee may pass order, within ninety days of the conclusion of the arguments by all the parties or after submission of brief Statement in writing by the parties, whichever is earlier.

(c) The orders passed or direction issued by the Grievances Redressal Committee shall be binding on all the parties and it shall be implemented or complied with by all the parties and within the time frame stipulated therein and if so directed, the parties and within the time frame stipulated therein and if so directed, the parties shall be required to report compliance of the same to the Grievance Redressal Committee.

(2) Remand of cases by Grievance Redressal Committee--

The Grievance Redressal Committee may dispose of an Appeal, by remanding it back for disposal as per provisions of the Act or respective Development Control Regulations to the concerned officer or authority.

(3) Manner of execution of orders or directions of the Grievance Redressal Committee--

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                 (a)     All orders or directions of the Grievance Redressal

Committee under the Act shall be executed in the same manner in which similar orders or directions would have been executed, as if it were passed by the State Government;

(b) The Grievance Redressal Committees shall pass its orders and directions all the place of its designated office and shall be forthwith uploaded by the Registrar on the Website of respective Slum Rehabilitation Authority."

243. It is thus clear that the jurisdiction of the AGRC is that of an appellate authority and a person who is aggrieved by any of the decision or direction of the Competent Authority-CEO SRA, can maintain an appeal before the AGRC. This apart Section 35(1A)(b) clearly provides that any order passed under Section 13 of the Slums Act against an owner or developer not undertaking and completing the project as per the permission and approval as also within the stipulated time frame, can approach the AGRC which would exercise appellate powers. Sub-section (5) of Section 35 clearly provides that the decision of the Grievance Redressal Committee on appeal shall be final and shall not be questioned in any Court. It is well established that an appeal is continuation of a trial proceedings. This would entitle a person aggrieved by an order passed by the Competent Authority - CEO SRA to urge all contentions before the AGRC and the AGRC would have authority and jurisdiction to set aside such orders. This would also mean that the AGRC can look into the contentions even of breach of principles of natural justice at the hands of the competent authority. In ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 234 final New Janata.doc this context it would be profitable to note the observations of the Supreme Court in Kamla Devi V. Kushal Kanwar & Anr. wherein it is observed that an appeal is a continuation of the original proceedings. In effect when the entire proceedings being before the Appellate Authority, it would certainly have an authority and jurisdiction to review the evidence. It was observed that a right of appeal carries with it a right of rehearing on law as well as facts, unless the statute conferring the right of appeal limits the rehearing in some way. The Court in this context in paragraphs 12, 13 and 15 has observed thus:-

"12. An appeal, as is well known, is the right of entering a superior court invoking its aid and interposition to redress an error of the Court below. The central idea behind filing of an appeal revolves round the right as contra- distinguished from the procedure laid down therefor.

13. This Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Others69, opined (AIR p.224, para8):

"8. The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd., uphold the principle that a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins C.J. in Nana Bin Aba V. Sheku Bin Andu to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication."

14..... .. .. ..

15. In Shiv Shakti Coop. Housing Society v. Swaraj Developers 70, this Court held : (SCC p.669, para 17) 69AIR 1953 SC 221 70AIR 2003 SC 2434 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 235 final New Janata.doc "17. Right of appeal is statutory. Right of appeal inherits in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in The State of Kerala v. K.M. Charia Abdulla and Co. , the distinction between right appeal and revision is based on differences implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. .. .. .. ."

These principles are also recognized in the subsequent decision of the Supreme Court in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) By LRS. (supra)

244. I am not persuaded to accept the submission as urged on behalf of the petitioner that even assuming that the trial was not a fair trial before the CEO SRA and/or it was in the breach of the principles of natural justice, the remedy and/or an opportunity of an appeal, did not cure the defect of an unfair trial. The law in this regard as discussed hereafter has undergone a substantial change. The decision of the Supreme Court in Institute of Chartered Accountants of India Vs. L.K.Ratna & Ors. (supra) would be required to be considered in the facts of that case. Considering the principles in this regard as laid down in several other decisions, it cannot be said that an absolute legal principle prevails that an unfair trial can never be cured by a fair ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 236 final New Janata.doc appeal. It will certainly depend upon the facts of each case. The principle of law which would emerge, is that even if there is a defect in the proceedings of a trial, on the ground of non compliance of principles of natural justice, and that if such a complaining party before the appellate authority, could urge all these contentions, which can be gone into by the Appellate Authority, then it would not be as a matter of absolute legal principle permissible for a person so complaining to contend that the breach persists and orders of the trial authority still stand vitiated being in breach of the principles of natural justice. This for the reason that the defect which had arisen in the initial proceedings stood remedied and cured in an appeal, before the appellate authority, which by hearing the party on such ground can pass appropriate orders.

245. This apart now the principles of law are also well settled that it now cannot be a simplicitor complaint of the breach of principles of natural justice. What would go to the root of the matter is as to whether such breach as complained has caused any prejudice to the complainant. If there is no prejudice, and if it is seen that none of the rights of the complainant are affected, then surely it would not be permissible for such a person to then urge such a plea, that merely because certain documents were not considered or he was not granted ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 237 final New Janata.doc a hearing on a particular issue, it would render the order a nullity. Both the above principles can very well be discerned from the several decisions which I discuss herein below. Hence, the contention of the petitioner solely relying on the decision of the Supreme Court in Institute of Chartered Accountants of India Vs. L.K.Ratna & Ors. (supra), in my opinion, is not well founded. The following discussion will aid the above proposition.

246. In Institute of Chartered Accountants of India vs. L.K. Ratna (supra) the Supreme Court was concerned with the legality of a disciplinary order against a Chartered Accountant, against whom there were allegations of a professional misconduct and whose professional reputation was at stake. If the initial order was to be upheld it would have caused a serious prejudice to him. It is in this context, the Supreme Court observed that the immediate consequence of the initial order was of importance and that the damage caused by the initial order was irreversible or could not have afforded a complete restitution, then the widest appellate power would not be sufficient to undo the damage. Referring to Leary vs. National Union of Vehicle Builders (supra) it was observed as under:

"The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall, [1974] 42 D.L.R. (3d) 323. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practioners Disciplinary Committee, [1974] 1 N.Z.L.R. 29 and so was the Court of ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 238 final New Janata.doc Appeal of New Zealand in Reid v. Rowley, [1977] 2 N.Z.L.R. 472. But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. "Not all the King's horses and all the King's men" can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.

26. Upon the aforesaid considerations, we are of definite opinion that a member accused of misconduct is entitled to a hearing by the Council when, on receipt of the report of the Disciplinary Committee, it proceeds to find whether he is or is not guilty. The High Court is, therefore, right in the view on this point."

Thus, the fulcrum of these observations is a immediate serious injury being caused by an initial order not capable of being entirely erased when the error is corrected in a subsequent appeal.

247. The observations of Megarry J. in Leary vs. National Union of Vehicle Builders (supra) were reconsidered by the Privy Council in Ferd Dawson Calvin Vs. John Henry Brownlow Carr & Ors. 71 in which 71 (1980) a.c. 574 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 239 final New Janata.doc the Privy Council held that the proposition was too broadly stated in Leary (supra) and it can be applicable only in some cases. The following observations are required to be noted:-

"The plaintiffs second argument can be stated, for purposes of description, as being that such defects of natural justice as may have existed as regards the proceedings before the stewards, were not capable of being cured by the appeal proceedings before the committee, even though, as was not contested before this Board, these were correctly and fairly conducted. The defendants contend the contrary. This part of the argument involved consideration of a wide range of authorities of this Board, and in Australia, Canada, England and New Zealand. As regards decisions of this Board of conflict was said to exist between Annamunthodo v. Oilfields Workers Trade Union 1961 AC 945 and Pillai v. Singapore City Council 1968 1 W.L.R. 1278, each of which has been followed by other decisions. There was also said to be a conflict between Annamunthodo's case, and the High Court in Australian Worker's Union v. Bowen (No.2) 77 C.L.R. 601, a conflict giving rise to difficulties for Australian State Courts. Other individual decisions were cited which it appears difficult to reconcile.

Although, as will appear, some of the suggested inconsistencies of decisions disappear, or at least diminish, on analysis, their Lordship recognize and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi- judicial, can be "cured" through appeal proceedings. The situation in which this issue arises are too diverse, and the rules by whether they are governed so various, that this must be so. There are, however, a number of typical situations as to which some general principle can be stated. First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned. Examples of this are De Verteuil v. Knaggs 1918 A.C. 557, Posluns v. Toronto Stock Exchange and Gardiner 1965 53 D.L.R. 193; In re dark and Onatario Securities Commission 1966 56 D.L.R. 585; In re Chromex Nickel Mines Ltd. 1970 16 D.L.R. 273; and see also Ridge v. Baldwin 1964 A.C. 40, per Lord Reid.

At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:56 ::: pvr 240 final New Janata.doc etc.) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage. This was the result reached by Megarry J. in Leary v. National Union of Vehicle Builders 1971 Ch. 34. In his judgment in that case the Judge seems to have elevated the conclusion thought proper in that case into a rule of general application. In an eloquent passage he said at p. 49;

'If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? ... ... As a general rule ... I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.' In their Lordships' opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first - probably branch - level an essential condition of justice. But to seek to apply it generally overlooks, in their Lordships' respectful opinion, both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those whether have joined in an organization, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect."

(Emphasis supplied in this Note)

248. The Supreme Court in State Bank of Patiala and Ors. vs. S.K. Sharma (supra) has referred to Ferd Dawson Calvin vs. John Henry Brownlow Carr & Ors. (supra) and has agreed with the Ferd Dawson Calvin principle. The Supreme Court observed as under:

14. We may now consider the decision of the Privy Council in M.Vasudevan Pillai v. City Council of Singapore [1968 (1) W.L.R.1278]. The facts of this case are rather involved. The Singapore Municipal Ordinance provided that in a case of misconduct which in the opinion of the head of the department merited dismissal the head of the department should outline the case to the president or the deputy president and hold an enquiry.

The record of enquiry shall thereafter be considered by the ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 241 final New Janata.doc president or the deputy president who was entitled to cause such further enquiry as he may think appropriate and then make his final decision. If the decision was to dismiss the employee, the decision was to be conveyed by the head of the department to the employee who was given a right of appeal to the Establishments Committee. The appellants were daily rated unskilled labourers. On the allegation of misconducts an enquiry was held by the head of the department wherein the appellants participated. Thereafter, the deputy president asked certain questions from the head of the department and the latter supplied the necessary information. This was not disclosed to the appellants. They were dismissed. On appeals a de novo hearing was afforded to the appellants by the Establishments Committee. Thereupon the appellants brought an action in Singapore Courts which ultimately reached the Privy Council. he Privy Council recalled in the first instances the statement of law on this subject as stated by Lord Reid in Ridge v. Baldwin to the effect that unless the conditions of service are governed by a statute or statutory rules principles of natural justice have no place in a dispute between master and servant. The statement from Ridge runs thus:

"The law regarding master and servant is not in doubt There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none But if he does so in a manner not warranted by the contract he must pay damages for breach of contract So the question in a pure case of master and servant does not at all depend on whether the master has heard-the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them."

15. On the facts of the appeal before them, the Privy Council held, in the first instance, that at the stage of the deputy president asking questions and the head of the department supplying him information, the principles of natural justice had no application. Alternately, they held that even if the said principles did apply, even then it must be held that the said violation was cured by what happened before the Establishments Committee [i.e., on appeal] Since there was a re-hearing before the Establishments Committee and evidence was called de novo and also because no grievance was made with to the proceedings before the Establishments Committee, the invalidity arising from the violation of principles of natural justice at the earlier stage was cured. This decision was referred with approval in 1980 by the Privy Council in Calvin v. Carr [1980 A.C.574] in the following words:

"Their Lordships regard this as a decision that in the context, namely one of regulations concerning establishments procedures, justice can be held to be done if, after all these procedures had been gone through, the dismissed person has ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 242 final New Janata.doc had a fair hearing and put his case. It is thus an authority in favouring the existence of the intermediate category, but not necessarily one in favour of a general rule that first instance defects are cured by an appeal. Their Lordships are also of opinion that the phrase 'hearing of evidence de novo,' though useful in that case, does not provide a universal solvent. What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after it has been gone through the complainant has had a fair deal of the kind that he bargained for."

....... .......

Having considered the principles emerging from the above cases, we are inclined to say that the aforesaid statement of law in Calvin v. Carr, stated with reference to Vasudevan Pillai, is the appropriate one to adopt as a general rule - and we are supported by the decisions of this Court in saying so. We must s however, forewarn that decisions on the applicability of the principles of possible nor necessary to refer to all of them, particularly in view of the recent Constitution Bench judgments. We will refer only to a few of them to explain our view point.

(emphasis supplied)

249. The decision in Ferd Dawson Calvin (supra) was also followed by a Full Bench of this Court, in Shantilal Ambalal Mehta vs. M.A. Rangaswamy (supra). The relevant observations of Shantilal Ambalal Mehta (supra) are as under:-

"83. With respect, we find it difficult to accept the broad proposition enunciated in Megarry J.'s judgment that a subsequent fair hearing by an appellate body does not cure the deficiency of natural justice in the trial body as being one of general application(...)

86. Thus where a breach of the principles of natural justice is alleged, the question must firstly be judged in the light of the constitution of the statutory body which has to function in accordance with the rules laid down by the Legislature. Secondly, when there are no such rules or the rules, if any, are silent, there must be a minimum requirement which must be satisfied consisting of the person concerned being given an opportunity of making a ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 243 final New Janata.doc representation or statement in respect of the charge against him to allay the suspicions of the authority competent to take action and thirdly, the person concerned must have a notice of the proceeding against him whether he chooses to appear or not. What is the nature of the hearing which is required to be given will vary according to the relevant rules applicable in each case, It is true that natural justice requires that "no man shall be condemned unheard", but in finding out whether a breach of this rule has been committed or not, the scope of the enquiry has always been only whether the person concerned has been given a reasonable opportunity of being heard and whether nature of the opportunity given was sufficient to meet the requirements of natural justice in each case. (...) In most cases the powers of the appellate tribunals are co-extensive with the power and jurisdiction of the trial tribunal. If there is any defect in the proceeding of the trial tribunal arising out of violation or non-compliance with any of the principles of natural justice, and the appellate tribunal is under the appropriate rules empowered to cure that defect, it will be difficult for the person concerned to contend that the order of the trial tribunal should be totally ignored as a nullity on the ground that there has been a breach of the principles of natural justice before the trial tribunal.[...] It is not, therefore, possible for us to agree with the broad proposition made by Megarry J. that the deficiency of natural justice in the trial body could not be cured by any subsequent fair hearing by the appellate body and that the decision of the trial body should, therefore, be treated as void.

101. Mr. Bhabha had referred to decision of the Supreme Court of Canada in King v. University of Saskatchewan [1969] S.C.R. (Supreme Court of Canada) 678, in which Spence J. held that if there is an absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the Senate Appeal Committee. The view taken by Spence J. in this case did not appeal to Megarry J. in Leary's case and he declined to follow it.

102. With respect, we agree with the reasoning of Spence J. which turned upon the construction of the provisions of the University Act having regard to which he took the view that if there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the appeal committee because, as we have already pointed out, whether the breach complained of could be remedied in appeal was a matter which must be determined in the light of the relevant provisions or regulations dealing with the remedies and their scope open to a person who is affected by the decision complained of."

(emphasis supplied) ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 244 final New Janata.doc

250. In Air India Corporation vs. Richard Rashid Khan (supra) this Court allowed an appeal filed by Air India corporation against an order quashing the order of removal made by the General Manager of Air India, removing the respondent from service. The Court, referring to the judgment of the Full Bench in Shantilal Ambalal Mehta (supra) held as under:-

62. It may be pointed out that the decision of the Supreme Court in Delhi Municipal Committee case, does not consider the question as to whether in a matter like the instant one, where there is an appellate authority which is capable of going into the question as to whether a person has been deprived of any opportunity to show cause and where the appellate authority is itself entitled to take into consideration something which the delinquent was prevented from putting forth before the authority which made the termination or dismissal order, it musts necessarily follow that the impinged order was before to be quashed merely on the ground that before the trial authority the person had been deprived of an opportunity to show cause. It is an established proposition that an appellate authority has normally the same powers as the original authority and if, in our view, a breach of any principle of natural justice can be remedied by the appellate jurisdiction, it will not be obligatory on the High Court to necessarily quash the order of the trial authority merely on the ground that there is a breach of natural justice. The question has been considered at some length in a Full Bench decision of this Court in Shantilal v. H. A. Rangaswami (1977) Mah. LJ 587, in which the Full Bench has taken the view that if there is any defect in the proceeding of the trial Tribunal arising out of violation of or non-compliance with any principle of natural justice and the appellate Tribunal is, under the appropriate rules, empowered to cure the defect, it will be difficult for the person concerned to contend that the order of the trial Tribunal should totally be ignored as a nullity on the ground that there is a breach of the principles of natural justice before the trial Tribunal.

It has been held by the Full Bench that if a decision which, it is contended, is vitiated by violation of the principles of audi alteram partem could be subjected to scrutiny by the appellate Tribunal, it cannot be equated with a void decision as a decision without jurisdiction is.


                                                       (emphasis supplied)




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251. In Kanwar Natwar Singh vs. Director of Enforcement and Ors. (supra), the Supreme Court considered whether a noticee served with show cause notice under Rule 4(1) of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 is entitled to demand all the documents in possession of the Adjudicating Authority including those documents upon which no reliance has been placed to issue a notice requiring him to show cause why an inquiry should not be held against him. The Supreme Court held that the appellant is not entitled to documents which are not relied upon by the Adjudicating Authority. Referring to the decision in Lloyds vs. McMahon (supra) it was observed as under:-

"20. In Lloyd vs. McMahon (1987) AC 625, Lord Bridge observed:

'My Lords, the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure attainment of fairness.

21. As Lord Reid said in Wiseman vs. Boardman (1971) AC 297:

For a long time the courts have, without objection from Parliament, supplemented procedure laid down in ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 246 final New Janata.doc legislation where they have found that to be necessary for this purpose....

22. It is thus clear that the extent of applicability of principles of natural justice depends upon the nature of inquiry, the consequences that may visit a person after such inquiry from out of the decision pursuant to such inquiry."

252. The decision of the Supreme Court in L.K.Ratna (supra) was also distinguished by the Supreme Court in " The United Planters Association of Southern India Vs. K.G.Sangameswaran & Anr .72 wherein the Supreme Court held that the decision in L.K.Ratna (supra) would not strictly apply in cases where the appellate authority can come to its own conclusion de' hors the findings rendered by the first authority.

253. Adverting to the above clear position in law, it needs to be observed that there cannot be an abstract proposition that a fair appeal cannot cure an unfair trial. This would certainly depend upon in the facts and circumstances of each case. In the present case, it is quite clear that AGRC has given sufficient opportunity to the parties including the petitioner, to urge all their pleas and assert their contentions, not only in respect to the documents but on all other issues. The AGRC considering these pleas as also matters which were not argued before the CEO SRA, has rendered its findings on all the issues. The petitioner having urged fresh/new pleas before the AGRC, 72 (1997)4 SCC 741 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 247 final New Janata.doc which were not urged before the CEO-SRA cannot blow hot and cold in the same breath.

254. In any case as now the requirement of law would not be mere assertion that there is breach of principles of natural justice but what is required to be satisfied is that the breach of the principles of natural justice has caused prejudice to the complaining party. If the petitioner is not in a position to show any prejudice, the mere argument of breach of the principles of natural justice cannot be sustained. It can certainly observed that no prejudice was either pleaded or caused to the petitioner as sufficient opportunity was granted to the petitioner by AGRC. In this context the Supreme Court in Aligarh Muslim University & Ors. vs. Mansoor Ali Khan (supra) has held that mere lacking of opportunity to be heard, would not be sufficient and the same must be coupled with the prejudice. The Supreme Court in paragraph 21, 24, 25 has observed thus:-

21. As pointed recently in M.C. Mehta Vs. Union of India (1999 (6) SCC 237), there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary.

[...] [...]

24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 248 final New Janata.doc K.L. Tripathi Vs. State Bank of India ( 1984(1) SCC 43), Sabyasachi Mukherji, J. ( as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed: quoting Wade Administrative Law, (5th Ed.PP.472-475) as follows: ( SCC p. 58 para

31) "....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth".

Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala Vs. S.K. Sharma ( 1996(3) SCC 364). In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. State of M.P. ( 1996(5) SCC 460).

25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above,- there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.

(Emphasis supplied in this Note) ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 249 final New Janata.doc

255. Also in Canara Bank vs. Debasis Das, (2003) 4 SCC 557, the Supreme Court reiterated the test of prejudice observing as under:-

10. It is to be further noted that in the appeal before the Appellate Authority findings of the Inquiry Officer were challenged and, therefore, the question of any prejudice does not arise. Since employee had the opportunity to meet the stand of the Bank, it was to his advantage, and opportunity for personal hearing was also granted, though Regulation 6(18) does not even speak to grant such an opportunity. Keeping in view what was observed in B. Karunakara's case (supra) there was no question of violation of principles of natural justice.

27. It is to be noted that at no stage the employee pleaded prejudice. Both Learned Single Judge and the Division Bench proceeded on the basis that there was no compliance of the requirement of Regulation 6(18) and, therefore, prejudice was caused.

In view of the finding recorded supra that Regulation 6(18) has not been correctly interpreted, the conclusions regarding prejudice are indefensible.

256. Adverting to the above principles of law, it needs to be stated and as noted above, there is no material whatsoever either in the pleadings or otherwise that the petitioner has suffered any prejudice on account of the CEO SRA considering the said General Body Resolution of May 2014, the facts in this context are discussed in extenso in the foregoing paragraphs which clearly show that the petitioner would not have succeeded in the plea of respondent no.5 not being supported by 70% of the slum dwellers qua the composite scheme in making the proposal and/or revised proposal to the SRA.

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257. In the above circumstances, I do not find that there is any merit in the contentions as urged on behalf of the petitioner, on the issue of breach of principles of natural justice. Consequently I do not find that the order of the CEO-SRA on the petitioner's application under Section 13(2) as confirmed by the AGRC are in any manner vitiated by illegality.

Interference under Article 226 of the Constitution :-

258. The respondent would be correct in contending that exercise of powers by the Writ Court in the SRA matters must be limited to the matters which remain unresolved despite the remedy of an appeal being exhausted more particularly when the full fledged hearing complying the principles of natural justice was granted before AGRC on all the issues. The Full Bench of this Court in Tulsiwadi Navnirman Coop. Housing Society Ltd. and Ors. vs. State of Maharashtra and Ors. (supra) in this context observed as under:-

115. In the result, we are of the opinion that writ jurisdiction is available in matters of Rehabilitation of Slum Dwellers but the limits of exercise of power should be confined and restricted to matters, which remain unresolved despite the remedies of Appeals etc. being exhausted. Similarly, in the illustrations given by learned Advocate General, this Court can be approached only if the decision of SRA or State is permissible for being interfered with on the settled principles in writ jurisdiction. We have given illustrations and categories of case wherein a prerogative writ may be issued so as to ensure smooth and effective implementation of Slum Rehabilitation Scheme. However, the writ jurisdiction will not be available where the dispute is essentially private or contractual and the State Government, SRA and other local ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 251 final New Janata.doc bodies are impleaded as parties only to file writ petition. In other words, when the main relief is not sought against these bodies, yet, they have been impleaded as parties and the dispute is mainly and essentially between private parties involving purely private law, then, writ petition is not the remedy.

116. [...] They broadly agree with the conclusion that the intent of the Legislature is minimum obstacles and obstructions in the way of implementation of Slum Rehabilitation Scheme. All provisions and measures are intended at smooth and expeditious implementation of the scheme so as to achieve removal of encroachment and demolition of structures on pavements and public lands. Therefore, interference by the Court should be minimum and bearing in mind the above intent.

(emphasis supplied) Applying the above principles it can be clearly seen from the facts, there is hardly any scope for this Court to exercise its extraordinary discretionary jurisdiction to interfere in the findings of fact concurrently recorded by the authorities below. Respondent nos. 2 to 4, 5, 8 and 9 would be correct in their contentions that this is not a case where the High Court should exercise jurisdiction to disturb the concrete findings of fact as arrived by both the authorities in the impugned orders. The law in this regard being well settled can also be seen from the following decisions:-

259. In Union of India & Anr. vs. Mustafa & Najibai Trading Co.73, the Supreme Court has reiterated the principles the High Court would follow in exercising its jurisdiction under Article 226 and 227 of 73 1998 SCC 79 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 252 final New Janata.doc the Constitution. In paragraph 21 the Supreme Court observed thus:

"21. While exercising its jurisdiction under Articles 226 and 227 of the Constitution it is not open to the High Court to re-appreciate the evidence produced before the subordinate tribunal and on the basis of such re- appreciation of the evidence to arrive at a finding different from that recorded by such tribunal. The finding of fact recorded by the subordinate tribunal can be interfered with by the High Court only if it is found to be based on no evidence or if such a finding can be regarded as perverse. The high Court cannot convert itself into a court of appeal. Reference, in this context, may be made to the decision of this Court in Collector of Customs, Madras & Ors. v. D. Bhoormall, 1974 (2) SCC 544, wherein it has been said:-

37. Even if the Division Bench of the High Court felt that this circumstantial evidence was not adequate enough to establish the smuggled character of the goods, beyond doubt, then also, in our opinion that was not a good ground to justify interference with the Collector's order in the exercise of the writ jurisdiction under Article 226 of the Constitution. The function of weighing the evidence or considering its sufficiency was the business of the Collector or the appellate authority which was the final tribunal of fact. "For weighing evidence and drawing interference from it", said Birch, J. in R. V. Madhub Chunder "there can be canon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts elicited". It follows from this observation that so long as the Collector's appreciation of the circumstantial evidence before him was not illegal, perverse or devoid of common sense, or contrary to rules of natural justice, there would be no warrant for disturbing his finding under Article 226."

Similarly, in Indru Ramchand Bharvani & Ors. v. Union or India & Ors., 1988 (4) SCC 1, this Court has said:-

"It must be reiterated that the conclusions arrived at by the fact- finding bodies, the Tribunal or the statutory authorities, on the facts, found that cumulative effect or preponderance of evidence cannot be interfered with where the fact- finding body or authority has acted reasonably upon the view which can be taken by any reasonable man, courts will be reluctant to interfere in such a situation. Where, however, the conclusions of the fact- finding authority are based on no evidence then the question of law arises and that may be looked into by the courts but in the instant case the facts are entirely different.

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260. In Bharat Sanchar Nigam Ltd. vs. Bhurumal 74, the Supreme Court held that only when the findings are perverse or when it is a case of no evidence the Court can interfere. In paragraph 20 the Court observed thus:

"20. It is apparent that the aforesaid findings are findings of fact. Such findings are not to be interfered with by the High Court under Article 226 of the Constitution or by this Court under Article 136 of the Constitution. Interference is permissible only in case these findings are totally perverse or based on no evidence. Insufficiency of evidence cannot be a ground to interdict these findings as it is not the function of this court to reappreciate the evidence. It was because of this reason that learned counsel for the appellant made frontal attack on the findings of the courts below endeavoured to demonstrate that there was perversity in the fact finding by the CGIT which was glossed over by the High Court as well."

261. The project being a composite project would have its peculiarity. In this context, it would be necessary to refer the decision of the Division Bench of this Court in Sajid Abdul Sattar Urankar & Ors. vs. State of Maharashtra & Ors.75 (supra). In paragraph 5, considering that the project was a composite project, the Court made the following observations:

"5. In the present case, the properties comprised in CS 1101 and CS 1102 are being redeveloped under DCR 33(7) as part of a composite project. Amalgamation of the two plots has been sanctioned. Since the project is being treated as a composite project of redevelopment, the total number of occupants involved is 105, comprised of 88 occupants of CS 1102 and 17 occupants of CS 1101. None of the occupants of CS 1102 has made any complaint and, as a matter of fact, all of them have shifted out of their erstwhile tenements so as to facilitate the process of redevelopment. Similarly, 7 of the 17 occupants of CS 1101 have also shifted out. Therefore, even if all the 10 Petitioners were to be treated as persons who have not consented to the scheme for redevelopment that would not make any difference to the computation of the figure of 74 7 SCC 177 75 2011 (5) Mh. L.J. 131 ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 254 final New Janata.doc seventy percent. Besides, senior counsel appearing on behalf of the developer points out that not all the 10 Petitioners were eligible occupants. In a judgment of a Single Judge of this Court (Smt. Ranjana Desai,J.) in Fathima Michael Pillai vs. Rajendra Rameshchandra Chaturvedi & anr., 1998 (6) LJ 1001 the Court held that where three plots had been amalgamated the consent of seventy percent of all the tenants put together would have to be taken into consideration in order to satisfy the requirement of Section 95A(2) of the MHADA Act, 1976. Counsel for the Petitioners submits that for the purpose of DCR 33(7) each building must be considered separately and the consents of seventy percent of the occupants of every building must be taken separately. The submission cannot be accepted. Once there is an amalgamation of two properties, as in this case, a composite scheme of redevelopment is envisaged. Seventy percent of the tenants/occupants taken in the scheme as a whole must indicate their consents. The scheme is to enure to the benefit of the entire body of them. To require consents to be obtained individually for each building in a composite scheme will defeat the purpose of the scheme, besides being tardy. This will virtually amount to a veto being conferred on a small group of occupants to obstruct the scheme though the large body of them in excess of seventy percent has agreed. The island city of Mumbai has numerous congested areas where it is desirable in the interests of urban planning to execute composite redevelopment of adjoining properties. Where this is sought to be achieved, the requirement of seventy percent must apply to the occupants taken as a whole."

262. It needs to be stated that this is certainly not a case and more particularly when a composite scheme of such peculiar nature was being implemented by respondent no.5, that a new developer ought to be permitted to take over one part of the scheme namely slums portion of the petitioner-Society. This would amount to defeating the scheme as originally proposed on behalf of the three societies, and being implemented by respondent no.5. The relief if granted would cause a serious prejudice to a large group of slums dwellers and that too who are occupying the Government land and who have now vacated their structures and are residing in the transit accommodation, ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 ::: pvr 255 final New Janata.doc awaiting a permanent abode. In these circumstances a test of "due consideration" to all the factors, which would unsettle the scheme would be required to be applied. The Court cannot adopt an approach that the consolidated scheme as submitted would stand extinguished, creating further serious complications. This Court would thus be loath to exercise its discretionary jurisdiction in the absence of any patent illegality touching the slum rehabilitation scheme and would not lightly interfere in the findings recorded by the authorities who have taken a plausible view of the matter on all counts. The substantial steps so far taken on the scheme also cannot be overlooked.

263. In Vasant Kheraj Bhanushali & Ors. (supra), the Division Bench held that the actual progress of a slum scheme becomes relevant. The Court observed as under:-

"12. For all these reasons we are of the view that there is no merit in the submissions. There is also substance in the contention urged on behalf of the society and the developer that there has been a delay in instituting these proceedings under Article 226. The work of development has already progressed. Out of the 672 occupants, the present developer claims to have the consents of 571 occupants. Documents have been registered with 472 of the occupants. The structures of 412 occupants have already been demolished and they have either shifted to transit accommodation or are in receipt of payment in lieu thereof. The construction work is already in progress. In this view of the matter, it would be manifestly against the interest of the occupants whose structures have been demolished and who are now awaiting the completion of the scheme, for this Court to intervene in exercise of the jurisdiction under Article 226. However, we have also considered the merits of the contentions and have found that there is no substance in the grievances of the Petitioners."

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264. In my opinion, what would weigh with the Court is the larger public benefit. The facts and circumstances would indicate that such fragmenting of the scheme would result in an irreparable injury not only to the slum dwellers but also to respondent no.5 who has already invested substantial time, energy and money and who is to now to commence construction of the rehabilitation buildings. During the pendency of the proceedings before AGRC, about 644 structures of the slum-dwellers are already demolished which includes 205 structures in the petitioner society. Respondent no.5 has also parted large amounts which include payment of the interim rent to the slum dwellers for temporary alternate accommodation.

265. It also needs to be emphasized that the requirement of 70% of the slum dwellers agreeing for redevelopment of slum by appointing a developer and thereafter the developer taking substantial steps to forward the scheme by changing his position, cannot be overlooked. It cannot be accepted that the scheme taken as a whole, the minority slum dwellers can render nugatory the initial will of the majority (70%) of the slum dwellers and more particularly when the scheme has progressed as in the present case, and the absence of any illegalities.

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266. There are number of decisions which were cited on behalf of the parties. I have referred to the relevant decisions which were sufficient, in my opinion, to address the issues. No doubt the decisions which are cited lay down certain proposition of law which are well established and with which there cannot be any disagreement.

However, for the purposes of this case, they are wholly academic, requiring no further discussion.

CONCLUSION

267. As a sequel to the above discussion I am clearly of the opinion that there is no illegality in the findings recorded in the impugned orders passed by the CEO SRA and AGRC. Both the petitions fail. They are accordingly rejected. No costs.

268. The SRA is directed to take steps to recover all the amounts including penalty, if any, from respondent no.5 strictly as per the "SRA Office Order No.19 of 2015 dated 23 March 2015" which shall be done within a period of two months from today. Considering the interest of the slum dwellers who are awaiting rehabilitation, respondent no.5 is directed to commence construction of the rehabilitation buildings as expeditiously as possible and complete the construction within a period of two years from the land being vacated by the remaining slum dwellers. The authorities are directed to do all the needful to enable respondent no.5 to commence construction.

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 269.             PARTING NOTE

As there has been some delay, in pronouncing this judgment, I am reminded of the insightful words of Krishna Iyer, J. in "L.I.C. Vs. D.J.Bahadur & Ors." 76 His Lordship speaking for the Bench offered "A Word of Explanation". I would be failing in my duty if I do not refer to the observations, which read as under:-

"Krishna Iyer, J.

A Word of Explanation

1. A preliminary divagation has become necessary since applications and enquiries had been made more than once about the postponement of the judgment. The first anniversary of the closure of oral submissions in the above case is just over; and this unusual delay between argument and judgment calls from me, the presiding judge of the bench which heard the case, a word of explanation and clarification so that misunderstanding about the judges may melt away in the light. A better appreciation of this court's functional adversities and lack of research facilities will promote more compassion than criticism and in that hope I add this note.

2. The judicature, like other constitutional instrumentalities, has a culture of national accountability. Two factors must be highlighted in this context. A court is more than a Judge; a collegium has a personality which exceeds its members. The price a collective process, free from personality cult, has to pay is long patience, free exchange and final decision in conformity with the democracy of judicial functionality. Sometimes, when divergent strands of thought haunt the mentations of the members, we pause, ponder and reconsider because we follow the words of Oliver Cromwell commended for courts by Judge Learned Hand: "My brethren, I beseech you, in the bowels of Christ, think it possible that you may be mistaken."

Utter incompatibility exists between judicial democracy and dogmatic infallibility; and so, in this case, we have taken time, more time and repeated extension of time to evolve a broad consensus out of our initial dissensus. Not procrastination but plural toil is the hidden truth behind the considerable interval.


 76 AIR 1980 SC 2181




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3. Secondly, when important issues demand the court's collective judgment an informed meeting of instructed minds, in many ways, is a sine qua non. But the torrent of litigation flooding the court drowns the judges in the daily drudgery of accumulated dockets. To gain leisure for fundamental reflections with some respite from paper-logged existence and supportive research from trained law clerks is a 'consummation devoutly to be wished' if the final court is to fulfil its tryst with the Constitution and country. The Indian judicial process, sui generis in some respects, has its problems, Himalayan in dimension but hardly appreciated in perspective and in true proportions two of which have been mentioned by me in extenuation of the great gap between closure for judgment and its actual pronouncement....." The above words are realized to be true in the judicial functioning even this day.

(G.S.Kulkarni, J.) ::: Uploaded on - 10/10/2019 ::: Downloaded on - 20/04/2020 00:12:57 :::

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