Bombay High Court
Dyna Estate Pvt. Ltd. And Anr vs State Of Maharashtra And 7 Ors on 22 December, 2020
Author: Nitin Jamdar
Bench: Nitin Jamdar, Milind N. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 2672 OF 2020
1. Dyna Estate Pvt. Ltd.
A company incorporated under
the Companies Act, 1956.
having office at 501, Tulsiani Chambers,
Nariman Point, Mumbai 400 021.
2. Dr. Babasaheb Ambedkar Nagar Sahakari
Griha Nirman Sanstha (Proposed)
Through its Chief Promoter Mr. Vilas
Jagannath Gurav residing at Plot
bearing C.S.No.65897/B,
Sadhu D.L.Vaswani
Marg, Colaba, Mumbai 400 005. ... Petitioners
Versus
1. State of Maharashtra,
Government of Maharashtra,
Mantralaya, Mumbai.
2. Slum Rehabilitation Authority
having office at Anant Kanekar Marg,
Bandra Kurla Complex, Bandra (E),
Mumbai 400 051.
3. The Chief Executive Officer, SRA,
having office at Anant Kanekar Marg,
Bandra Kurla Complex, Bandra (E),
Mumbai 400 051.
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4. Executive Engineer, SRA,
having office at Anant Kanekar Marg,
Bandra Kurla Complex, Bandra (E),
Mumbai 400 051.
5. Precaution Properties Pvt. Ltd.
having office at 70, Nagindas Master
Road, Fort, Mumbai 400 023.
6. Cuffe Parade SRA CHS Federation (Proposed)
Dr.Babasaheb Ambedkar Nagar,
Sadhu D.L.Vaswani Marg,
Colaba, Mumbai 400 005.
7. Apex Grievance Redressal Committee
Constituted by the Government
of Maharashtra, Having office at
Administrative Building, Anant Kanekar
Marg, Bandra Kurla Complex,
Bandra (E), Mumbai 400 051.
8. The District Collector,
Mumbai City, Mumbai. ... Respondents
Dr.Birendra Saraf, Senior Advocate with Mr.Mayur
Khandeparkar, Mr.Vaibhav Charalwar, Ms.Viloma Shah
and Mr.Dhiren Durante i/by M/s.Lexicon Law Partners
for the Petitioners.
Mr.P.K.Dhakephalkar, Senior Advocate i/by Mr.Vijay Patil
for Respondent Nos.2 to 4- SRA.
Mr.Kedar Dighe, A.G.P. for State.
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Mr.Aspi Chinoy, Senior Advocate a/w Mr.Chirag Balsara,
Mr.Kartikeya Desai and Mr.Asadali Nazgoanwala i/by
Kartikeya and Associates for Respondent No.5.
Mr.Shrinivas Bobde with Ms.Neha Bhosale and Mr.Rohit
Jadhav i/b. NDB Law for Respondent No.6.
Mr.S.U.Kamdar, Senior Advocate with Mr.J.G.Aradwad
for Respondent No.7.
CORAM: NITIN JAMDAR AND
MILIND N. JADHAV, JJ.
DATE; 22 December 2020.
JUDGMENT:(Per Nitin Jamdar, J.) The Petitioners, a developer and a proposed co-operative society of slum dwellers, have filed this writ petition challenging the decision of the Slum Rehabilitation Authority to grant the slum rehabilitation scheme on C.S.no. 599 and 658 at Cuffe Parade, Mumbai admeasuring 113321.54 square meters to Respondent No.5. Petitioners have challenged the rejection of their proposal for 7252 sq. meters out of C.S.No.658. Petitioners have also challenged the order passed by the Apex Grievance Redressal Committee rejecting their application challenging the orders of the Authority.
2. Dyna Estate Private Limited, Petitioner No.1 is engaged skn 4 WPL-2672.2020(OS).doc in the business of construction and redevelopment. Dr.Babasaheb Ambedkar Nagar Sahakari Griha Nirman Sanstha (Proposed), Petitioner No.2- is a proposed co-operative housing society stated to be formed by slum dwellers residing on the plot C.S.No.658(97/B). The Respondent Nos.2 to 4 are the authorities and officers of Slum Rehabilitation Authority constituted under the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971,the Slum Act. Precaution Properties Private Limited, the Respondent No.5, a subsidiary of Shappoorji Pallonji Limited , is a developer whose proposal for implementing the slum rehabilitation scheme on plot Nos.599 and 685 is accepted. Respondent No.6 is Cuffe Parade SRA Co-operative Housing Society Federation (Proposed), which has appointed Respondent No.5 as a developer. Respondent No.7 is the Apex Grievance Redressal Committee.
3. The land admeasuring 113321.54 sq. meters on C.S.Nos. 599 and 658 at Cuffe Parade, Colaba, Mumbai is owned by the State Government. A large number of slum dwellers are residing on these plots. After a decision was taken for an integrated slum rehabilitation scheme of this area, several proceedings filed by different parties have ensued in the last decade and a half. Details of all the proceedings are not necessary. Proceedings have been narrated chronologically only to give a backdrop to the impugned orders. Later, we have culled out the specific facts in the context of the submissions of the parties.
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4. For the sake of simplicity of narration, the Petitioner No.1 and Petitioner No.2 have been referred as 'Petitioners' unless otherwise specifically required. Respondent No.5- Precaution Properties Private Limited and Respondent No.6- Cuffe Parade SRA CHS Federation (Proposed) are joint in their interest for implementing the scheme and for the purpose narration, reference is only made to 'Precaution'. The Slum Rehabilitation Authority is referred to as 'SRA'. The Apex Grievance Redressal Committee is referred to as 'the Apex Committee'. The requirement of consent of 70% of eligible slum dwellers is referred to as '70% consent'. Letter of Intent is referred to as 'LOI'. The Chief Executive Officer of the Slum Rehabilitation Authority is referred to as 'CEO". The submission of slum rehabilitation scheme is referred to as 'proposal'
5. The starting point for narration of facts is the proposal submitted by one Plymouth Construction Private Limited to Mumbai Metropolitan Region Development Authority on 30 July 2004 for development of the plots in question. The Mumbai Metropolitan Region Development Authority, MMRDA, informed Plymouth Construction to get the details of the slum dwellers from the Deputy Collector (Enc./Rem.), the Competent Authority. The Competent Authority found that 2360 slum dwellers were eligible for rehabilitation. On 17 July 2009, it was decided that the proposal of Plymouth Construction cannot be considered by MMRDA and needs to be forwarded to the SRA. In the meanwhile, skn 6 WPL-2672.2020(OS).doc the proposals were submitted to the SRA by other developers such as Home Land Creators on 8 February 2000, Sneh Developers on 22 May 2009, Doshi Darshan Group on 9 September 2009 and Shree Lekha Enterprise on 28 October 2009. Since the SRA was considering other proposals, Plymouth Construction applied to the Apex Committee for a direction to the SRA to process its proposal. The Apex Committee rejected the application of the Plymouth Construction on 20 February 2010 holding that the proposal submitted by Plymouth Construction to MMRDA was not a complete proposal under the Regulations. One Akanksha Co- operative Housing Society (Proposed) formed by some occupants of the slums applied to the Apex Committee making a grievance that no steps have been taken for rehabilitation by any of the proponents. The application filed by Akanksha Society gave rise to other applications and the Apex Committee, on 17 March 2012, directed the SRA to decide the pending proposals. The SRA rejected all the proposals by order dated 17 March 2012.
6. Precaution submitted its proposal 3 April 2012 to the Executive Engineer, SRA under the Development Control Regulation 33(10) for implementation of the slum rehabilitation scheme for rehabilitation of slum dwellers for the entire area, i.e. 113321.54 sq. meters. No other proposal was pending at that time.
7. Plymouth Construction filed Writ Petition No.1273 of skn 7 WPL-2672.2020(OS).doc 2012 challenging the order dated 20 February 2010 passed by the Apex Committee dismissing its application regarding the proposal submitted by it. This Court by order dated 11 May 2012, directed the parties to maintain status-quo. The Petitioner No.1- Dyna Estate filed a Chamber Summons in the said writ petition for impleadment.
8. Precaution filed Writ Petition (Lodging) No.1012 of 2012 in April 2012 seeking a direction to the SRA to process its proposal. In this petition, Petitioner No.1- Dyna Estate filed a chamber summons contending that it should be impleaded.
9. Petitioners submitted a proposal on 18 April 2013 for the rehabilitation scheme on the area admeasuring 7252 sq. meters from C.S.No.658(97/B) . The Executive Engineer, SRA informed the Petitioners on 10 June 2013 that its proposal was submitted to the Dispatch Department and not to the Executive Engineer and could not be processed because of the order of status-quo granted by this Court. At that time, the proposal submitted by Precaution on 3 April 2012 was pending. The Petitioners filed Writ Petition No.2546 of 2013 for a direction to the SRA to process its proposal submitted on 18 April 2013. The SRA filed a reply-affidavit stating that the proposal could not be processed as it was submitted through the Dispatch Department. Also that the proposal of the Petitioners was submitted after the submission of the proposal of Precaution and was during the pendency of the order of status-quo.
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10. The SRA filed a reply in the petition filed by Precaution stating that the proposal of Precaution would be processed after the status-quo granted in the petition filed by Plymouth Construction is vacated. The petition filed by Plymouth Construction was dismissed by the High Court on 20 August 2013, and the status-quo was continued till 19 September 2013.
11. Plymouth Construction filed Special Leave Petition (Civil) No.31520 of 2013 in the Supreme Court. In the Special Leave Petition filed by Plymouth Construction, the Supreme Court on 1 October 2013 issued notice and directed the parties to file their reply. By the said order dated 1 October 2013, Supreme Court permitted SRA to process the pending proposal, but not to take any final decision thereupon.
12. Writ Petition (L) No.1012 of 2012 filed by Precaution along with Chamber Summons filed by Dyna Estate came up for hearing before this Court on 14 October 2013. Because of the statement made by the SRA in its affidavit regarding the processing of the proposal, Precaution withdrew its petition on 14 October 2013, and the Chamber Summons of Petitioners was also disposed of. The Assistant Registrar of the Societies of the SRA prepared a report on 11 April 2014. The proposal submitted by Precaution was accepted on 3 May 2014. By an amendment to the Act of 1971, the cut-off date skn 9 WPL-2672.2020(OS).doc for eligibility was extended from 1 January 1995 to 1 January 2000. The procedure was changed accordingly.
13. Petitioners filed an interim application in the Supreme Court bearing No.6 of 2014 seeking a direction to the SRA to process its proposal. The SRA by filing an affidavit opposing the said application. Writ Petition No.874 of 2014 was filed by one Apna Ghar Welfare Association in the Supreme Court under Article 32 of the Constitution of India claiming that slum dwellers themselves wanted to implement the scheme and seeking directions against the SRA regarding the processing of Precaution's proposal. The Supreme Court issued notice on 17 October 2014 in the said petition and directed it to be heard along with other pending writ petitions. The SRA filed its reply in this petition. Plymouth Construction also filed a Contempt Petition No.785/2015 on the ground that SRA could not have processed the proposal of Precaution.
14. The Competent Authority processed the proposal of Precaution and prepared Annexure-II Report on 26 October 2015 and 17 November 2015. The Competent Authority recorded that out of 6997 slum dwellers 2760 slum dwellers were eligible, out of which 2324 had given consent to Precaution. By way of the affidavit dated 11 January 2016, reports were submitted in the Supreme Court. The Petitioners also approached the Apex Committee but the application was not entertained by order dated 25 April 2016 in view skn 10 WPL-2672.2020(OS).doc of the pending matters.
15. A Circular was issued by the SRA on 2 January 2017, upon the representation of the Slum Developers Association. Clause 6 stated that if a subsidiary company is the proponent of slum rehabilitation scheme, then the net worth of the holding company could also be considered.
16. The Supreme Court, by order dated 7 April 2017, disposed of all the pending matters. The Special Leave Petition (Civil) No.31520/2013 filed by Plymouth Construction along with interim application and Contempt Petition (Civil) No.785/2015 filed by Plymouth Construction and the petition of Apna Ghar were dismissed. All challenges came to an end.
17. After the orders of the Supreme Court, the proposal submitted by Precaution was processed and approval was granted by the CEO of SRA on 7 July 2017 for issuance of a LOI. The LOI contains certain conditions such as reservation of land, land premium compensation. The first installment of the land premium of 15% of the total land premium amounting to Rs.13,98,81,57,700/- was payable at the time of the LOI. Precaution paid Rs.152.65 crore inclusive of Rs.139.88 crore and interest of Rs.12.77 crore. LOI was issued by the SRA on 29 November 2017.
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18. On 22 December 2017, the Petitioners withdrew their Writ Petition No.2546/2013 pending in this Court. Petitioners filed an Application (L) No.34/2018 before the Apex Committee challenging the proposal of Precaution, praying to quash and set aside the orders/ communications dated 10 June 2013 and 24 June 2013 issued by the SRA. It was also prayed that the decision of the SRA accepting the proposal submitted by Precaution for implementation of the slum rehabilitation scheme be quashed. The report of the Assistant Engineer/SRA rejecting the Petitioners proposal for implementing the slum rehabilitation scheme to be set aside. It was prayed that the LOI dated 29 November 2017 issued in favour of Precaution be set aside and the proposal of the Petitioners for the slum rehabilitation scheme be considered.
19. The Apex Committee directed the CEO of SRA to submit a report on factual situation. CEO submitted a report on 7 December 2018 which was placed before the Apex Committee, which also consisted of the CEO. The Apex Committee noted various pleadings in the proceedings filed by the parties before this Court and the Supreme Court and noted that the Supreme Court dismissed all the proceedings. The Apex Committee found that the bonafides of Precaution were clear from the record. Precaution's proposal was considered as per the leave of the Supreme Court of. It was noted that Precaution obtained various clearances and sanctions and the certified Annexure-II. The Apex Committee concluded that there skn 12 WPL-2672.2020(OS).doc was no substance in the applications filed by the Petitioners. The Apex Committee, by the impugned order dated 3 February 2020, rejected the application filed by the Petitioners.
20. Being aggrieved, the Petitioners have filed the present petition praying for the same reliefs as before the Apex Committee and to set aside the order passed by the Apex Committee dated 3 February 2020. The Petitioners have also challenged clause 6 of the Circular dated 2 January 2017 in respect of considering the financial worth of a holding company, if it is found applicable and consequently the LOI issued in favour of Precaution. The Respondents have filed their replies. The Petitioners have filed their rejoinder. Parties have tendered dates and events and summary of their contentions.
21. We have heard Dr. Birendra Saraf, Senior Advocate for the Petitioners, Mr.P.K.Dhakephalkar, Senior Advocate for Respondent Nos.2 to 4, Mr. Aspi Chinoy, Senior Advocate for Respondent No.5, Mr. Shrinivas Bobde for Respondent No.6, Mr.S.U.Kamdar, Senior Advocate for Respondent No.7 and Mr. Kedar Dighe, A.G.P. for the State.
22. The Slum Rehabilitation Authority is established under the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 as planning authority for implementing skn 13 WPL-2672.2020(OS).doc slum rehabilitation projects. The Authority implements slum rehabilitation schemes and projects in the Mumbai city and Suburban district. Schemes are implemented to provide permanent alternate accommodation to eligible slum dwellers free of cost to better their standard of living. Regulation 33(10) of the Development Control Regulations provides for the scheme for rehabilitation of slum dwellers. The Regulation states that hutment dwellers in the slum or on pavement eligible under the D.C. Regulation 33(10) shall be entitled in exchange for their structure a tenement having a particular area free of costs. Appendix IV of Regulation 33(10) states that the proposal for each slum rehabilitation project shall be submitted to SRA along with all necessary documents, no-objection certificates, and the plans as may be decided by the SRA from time to time. The slums and pavements whose inhabitants, names and structures appear in the electoral roll specified to the date and actual occupants of the hutments are eligible for the Scheme. Seventy per cent or more of the eligible hutment dwellers in a slum pavement in a viable stretch at one place have to show their willingness to join the scheme and have to form a co-operative housing society by passing the requisite resolution. The chief promoter and office bearers of such proposed society have to submit the required documents to the Additional Collector or the Deputy Collector as the case may be. Steps are to be taken to appoint a developer to act as a promoter to pursue the slum rehabilitation scheme. An architect also has to be appointed to prepare plans for the redevelopment of the slum areas as skn 14 WPL-2672.2020(OS).doc per Regulation 33(10). All required documents such as building plans, property record etc. have to be submitted along with three annexures, i.e. Annexure-I, II and III. In Annexure-I details of ownership of land, details of the plot, density, type of reservation, FSI etc. are to be specified. Annexure-II specifies the details of slum dwellers eligible and consent of the slum dwellers to join the scheme. Information in Annexure-III is to assess the financial capacity of the promoter/developer. Annexure-II has to be kept confidential. As per Appendix-IV of DCR 33(10), a proposal where 70% or more hutment dwellers agree to sign the scheme is to be considered for approval. After the pre-scrutiny by a Designated Engineer of SRA to ensure completeness of the submitted proposal, so far as documents are concerned, proposals are accepted. Then a computerized file number is allotted to the proposal on payment of specified scrutiny fee . Upon acceptance, the scrutiny of Annexure-I, II and III starts simultaneously in the Building Permission Wing, Eligibility Certification Wing and Accounts & Finance Wing of the SRA respectively. If everything is found in order, a LOI conveying approval of the proposal of scheme is granted.
23. Two requirements are incorporated in this procedure by the judicial pronouncement of this Court and circulars issued to give effect to them. In the case of Awdesh Vasistha Tiwari & Ors. v/s. Chief Executive Officer, Slum Rehabilitation Authority 1, it is mandated that once one proposal is pending then till it is taken to a 1 2006(4) Mh.L.J. skn 15 WPL-2672.2020(OS).doc logical end, to avoid unhealthy practices, other proposals for the slum rehabilitation scheme should not be considered. The second requirement is in view of the decision in the case of Atesham Ahmed Khan v. Lakadawala Developers Pvt.Ltd.2 that the proposal for redevelopment, on the face of it, must indicate that it fulfills the requirement of having the 70% consents and this should not be allowed to improve later. This requirement is incorporated in the Circular dated 31 August 2013 issued by SRA. This is briefly the procedure governing the acceptance, scrutiny and grant of a slum rehabilitation scheme.
24. The Petitioners have challenged the acceptance of the proposal of Precaution on the following grounds. Precaution did not have 70% consents when it submitted its proposal and has improved upon this position later. Precaution has no financial capacity of its own. Though many factors regarding the acceptance of the proposal of Precaution, which are enumerated in this petition, were pointed out, the Apex Committee did not scrutinize the same and passed an unreasoned order. The Petitioners had sought to demonstrate before us that Precaution did not have 70% consents when it submitted its proposal in the year 2012 and has subsequently improved upon the consents. The Petitioners have questioned holding of annual general meeting and commented and criticized the record maintained by the SRA. The Petitioners have also questioned the veracity and correctness of the record of the Authority.
22011 (3) Mh.L.J. 604 skn 16 WPL-2672.2020(OS).doc
25. Respondents contend that there is no merit in these allegations and the Petitioners cannot be permitted to convert the writ proceeding into an appeal and in view of the facts of the case and conduct of the Petitioners of only waiting and watching and more particularly the object of the slum rehabilitation scheme, Petitioners are not entitled to any indulgence. The Respondents contend that enquiry, in this case, if any, should be broad-based. Respondents submit that Petitioners claim is only for 6 per cent of the land with a minuscule minority of slum dwellers and they present with no credible alternative to Precaution's scheme. According to Respondents, the judicial scrutiny should be restricted to ascertain whether LOI has been correctly granted and the Petitioners should not be allowed to resort to a free-ranging enquiry and rake up issues which are no longer relevant as the only object of the Petitioners is to be a spoiler.
26. The court exercising jurisdiction under Article 226 of the Constitution of India has to consider all the relevant facts and circumstances in totality. Each case has its set of facts and circumstances. The writ court is not bound to interfere in every infraction of law, and since the writ jurisdiction is an equity jurisdiction, the court should be satisfied that its interference will further justice, equity and good conscience. The writ court has to consider various factors such as delay, laches, acquiescence of the parties and their conduct, consequences of interference and the larger skn 17 WPL-2672.2020(OS).doc interest of justice. Because the litigants in a writ petition present the case in a narrow compass does not mean the court can be oblivious to the larger ramifications.
27. This aspect assumes importance when the writ court examines a challenge to the slum rehabilitation scheme. The court has to be conscious of the object sought to be achieved by the scheme. The object of the Slum Act and the Development Control Regulations is to facilitate freeing up the encroached public properties and secure rehabilitation of slum dwellers. It is a welfare measure undertaken to provide better standard of living for the slum dwellers. Successfully implemented slum rehabilitation schemes have positive cascading effects on the society at large.
28. In the case of Balasaheb Arjun Thorbole v.
Administrative and Divisional Commissioner3, the Supreme Court has laid down the parameters for the writ courts while dealing with challenges to the slum rehabilitation schemes. The Supreme Court has observed that when 70% consent has been obtained, the main 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 procedures prescribed in the guidelines for preparation of Annexure II in a prescribed format. The Supreme Court held that these beneficial provisions are meant to ameliorate the poor condition of slum dwellers and should not be jettisoned 3 (2015) 6 SCC 534 skn 18 WPL-2672.2020(OS).doc 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. The attempt of the Petitioners to distinguish decisions on facts is not correct. The observations direct the writ courts as to how to approach and analyze the challenges to the slum rehabilitation scheme.
29. Keeping this position in mind, we will briefly recapitulate the facts to highlight the conduct of the Petitioners and the stage at which the challenge is brought before us.
30. Several developers were intending to submit their proposals starting from the year 2004. None of the proposals was found feasible. Plymouth Construction had directly applied to MMRDA for a slum rehabilitation scheme. On 2 April 2012, Respondent No.2 rejected all pending proposals, and the proceedings started with a clean slate. On 3 April 2012, Precaution submitted a proposal for a scheme in respect of 113321.54 sq. meters. At this time, there was no other proposal with requisite documents submitted through the competent officer of the SRA.
31. One year after that, on 18 April 2013, the Petitioners submitted a proposal for 6.4% of the 113321 sq. meters land and filed chamber summons for impleadment in the petition filed by Plymouth Construction. On 10 June 2013, the SRA informed the skn 19 WPL-2672.2020(OS).doc Petitioners that their proposal submitted through dispatch on 18 April 2013 could not be accepted as the matter regarding the acceptance of the proposal was subjudice, and status quo order granted by the Court was in force. Again, on 24 June 2013, the Petitioners were informed that the Petitioners' proposal could not be accepted. Petitioners filed Writ Petition No.2546 of 2013 to direct the SRA to process its proposal. Affidavit in reply was filed by the SRA placing on record the rejection of the proposal of the Petitioners. Petitioners did not pray for setting aside this rejection. No amendment was carried out, and the Petition was kept pending. On 16 September 2013, the SRA filed an affidavit stating that the proposal of Precaution submitted on 10 April 2012 would be processed as and when the order of status quo is vacated, and the Petitioners' proposal will not be considered. No steps were taken by the Petitioners thereafter. The High Court rejected Plymouth's petition on 20 August 2013 and status quo was continued till 19 September 2013. Plymouth then approached the Supreme Court. On 14 October 2013, Precaution withdrew the Petition, and the chamber summons filed by the Petitioners also stood dismissed. On 11 April 2014, pursuant to spot survey, the CEO, SRA forwarded the report of a valid meeting appointing Precaution and that 2480 slum dwellers had signed that consent letter. On 3 May 2014, Respondent No.2 accepted the proposal of Precaution for scrutiny and scrutiny fee was accordingly paid by Precaution. On 26 October 2015, the Deputy Collector and Competent Authority addressed a letter to Respondent skn 20 WPL-2672.2020(OS).doc No.6 along with certified Annexure-II and report was forwarded stating that 84.36% eligible slum dwellers gave their consent. There was further corrigendum on 17 November 2015. On 11 January 2016, SRA filed an affidavit that survey verification has been carried out and there were 2360 eligible slum dwellers out of which 2324 had given consent to the proposal of Precaution. On 7 April 2017, the Supreme Court rejected all matters including interim application wherein one of the prayers was for processing the proposal of Petitioners. On 24 April 2017, the proposal for certification of Annexure-III was considered along with the net worth of M/s. Shappoorji Pallonji Pvt. Ltd. This is in short how the Petitioners conducted their claim from the year 2013 till 2017.
32. The Petitioners contend that the Petitioners had approached the Apex Committee but the application was not entertained by order dated 25 April 2016 in view of the pending matter. There is, however, silence as to what transpired between the years 2013 to 2016. The SRA categorically informed the Petitioners by filing an affidavit as far back on 16 September 2013 that the proposal submitted by Precaution was prior in point of time and the same will be processed if the status quo in Writ Petition No.1273 of 2012 is vacated. The Petitioners were also put to notice through an affidavit that the Petitioners' proposal was through dispatch and thus rejected. These affidavits clearly put the Petitioners to notice that Precaution's proposal would be processed being first in point of time.
skn 21 WPL-2672.2020(OS).doc Therefore all the arguments advanced today before us as to why the proposal of Precaution should not have been accepted for scrutiny were available to the Petitioners in the year 2013 itself. Even after the status quo was vacated and the Supreme Court passed an order permitting the SRA to process the proposal, and Precaution withdrew its petition, the Petitioners remained silent According to the Respondents, this conduct of the Petitioners shows that the Petitioners were never interested in their own proposal and filed an application for oblique motive only to be used when Precaution's proposal would be accepted. We find merit in this charge. The Petitioners were passive spectators as the matter proceeded further. The proceedings were only lodged for the purpose of record but not actively pursued.
33. One more critical aspect is that Precaution is permitted to redevelop 113321.54 sq. meters of the area. The Petitioners' proposal was only for 7252 sq. meters that is approximately 6.4 per cent of land under the proposal of the Precaution. No alternative is presented before us by the Petitioners for the entire land.
34. Further, Precaution and the SRA have categorically stated that the proposal submitted by the Petitioners is incapable of being implemented as it is not feasible. It is stated that the proposal of the Petitioners in respect of 7252 sq. meters is substantially covered by reservations in the Development Plan, such as 42.68 meters of DP skn 22 WPL-2672.2020(OS).doc Road. A copy of DP remark issued by MMRDA has been annexed to the affidavit-in-reply. This submission is also illustrated by way of a sketch. It is asserted that as against this, the proposal of Precaution of the entire area, even after providing for the reserved areas, would facilitate integrated redevelopment of the entire slum area in one proposal. The only reply of the Petitioners is of bare denial and that it was not a ground for rejection of the Petitioners' proposal. That unviability may not have been a ground for rejection for the Petitioners' proposal, but it is a relevant factor to be considered in the writ jurisdiction and also since the Petitioners have sought a writ of mandamus for direction to SRA to process their proposal.
35. As of today 84% of the eligible slum dwellers of a federation comprising of twenty-three Co-operative Societies of slum dwellers, which include even the consents claimed by the Petitioners, have supported the proposal of Precaution for redevelopment. Certified Annexure-II now prepared shows that an elaborate exercise with bio-metric referring to the names had been carried out. As against the names of every person, their photographs and thumb impressions have been shown. No substantial defect is pointed out in this exercise.
36. Respondents have contended that Petitioner No.1, a developer whose proposal is not viable and rejected in the year 2013 itself has no locus to challenge the grant of approval in favour of skn 23 WPL-2672.2020(OS).doc Precaution. The Petitioners contend that assuming Petitioner No.1, has no locus, Petitioner No.2, the Society certainly has locus to raise the challenge. There is no merit in this submission. The Respondents have demonstrated, which aspect we have dealt with later and accepted, that out of 218 consents claimed by the Petitioners, 198 slum dwellers had given consent to Precaution earlier and that only 20 eligible slum dwellers are supporting the Petitioners.
37. The Petitioners then contend that even in a public interest litigation, the courts look into all aspects and that the grant of the slum rehabilitation scheme is a state largesse. The submission is not correct. First, this petition is filed for a private cause arising from the rejection of Petitioners' proposal. If the petition is to be looked into purely in the public interest, then the fact that the 84% of the slum dwellers from 23 co-operative societies have supported the proposal of Precaution alone would be an overwhelming consideration. The dominant object of the slum rehabilitation scheme is rehabilitation of slum dwellers and the orderly development of the city.
38. Thus the Petitioners have only lodged the applications and petitions with no seriousness to take them forward; their proposal is only in respect of 6.4 per cent of the land, they have the support of only a minuscule minority; their proposal is of an area which is mostly unbuildable; as against the overwhelming majority skn 24 WPL-2672.2020(OS).doc supporting Precaution. In these circumstances ,we will limit our scrutiny only to satisfy our judicial conscience that there are no gross illegalities, and the object of slum rehabilitation is not being jettisoned.
39. The challenges of the Petitioners are under three broad heads. First, the challenge to the order of the Apex Committee. Second, the challenge of the Petitioners to the rejection of their proposal. The third challenge is to the grant of the proposal of Precaution. This third challenge is divided into two parts. That the initial acceptance of Precaution's proposal was wrong in law as the essential requirement of 70% consent was not met and Precaution has improved upon its proposal; Precaution has no financial capacity, and the Circular under which the financial capacity of the holding company of Precaution is considered by the SRA is not applicable and is bad in law.
40. First challenge is to the order of the Apex Committee. The Petitioners contend that the impugned order of the Apex Committee is unreasoned and it is based on irrelevant considerations and omitting to consider the relevant aspects. The impugned order suffers from non-application of mind as several irregularities, which are enumerated in the Petition, were pointed out not only by the Petitioners but also by the CEO also, but were not considered by the Apex Committee even though the CEO was part of the Apex skn 25 WPL-2672.2020(OS).doc Committee. The Petitioners contend that the Apex Committee has not looked into the merits of the grievance of the Petitioners on the ground that the Supreme Court has rejected the Special Leave Petition filed by Plymouth Construction and the writ petition filed under Article 32 by Apna Ghar Society , even though these matters have been dismissed in limine and further enquiry was not foreclosed. The Petitioners have sought to rely upon the decision of three Judges' Bench of the Supreme Court in the case of Khoday Distilleries Limited v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited4, to contend that since the proceedings in the Supreme Court are dismissed in limine concept of merger is not applicable and the issues were not concluded. The Petitioners , for the sake of arguments, have redrafted the impugned order excluding the references to pleadings in the Supreme Court to demonstrate that there is no independent application of mind by the Apex Committee. Petitioners contend that since there is no adjudication of the contentions raised by the Petitioners, the impugned order is passed without application of mind and is thus unreasonable. The Petitioners have relied upon judgments of the Supreme Court in the cases of The Siemens Engineering & Manufacturing Co. of India Ltd. v. The Union of India 5 and Commissioner of Income Tax v. Mahindra and Mahindra Ltd.6 to contend that such unreasoned order by the Apex Committee amounts to perversity and a breach of 4(2019) 4 SCC 376 5(1976) 2 SCC 901 6(1983) 4 SCC 392 skn 26 WPL-2672.2020(OS).doc principles of natural justice.
41. The Respondents contend that the pleadings before the Supreme Court were not irrelevant consideration that they could be excluded. Respondents contend that the criticism that the Apex Committee has considered irrelevant considerations and has omitted relevant considerations is entirely unjustified. Since the dispute had reached the superior Courts, first the High Court and then the Supreme Court and the parties had agitated their respective cases, it was necessary to refer to their pleadings in the context that the challenges were rejected. The Apex Committee was bound to consider the order passed by the Supreme Court and the pleadings and prayers sought for by the parties before the Supreme Court. The Respondents contend that apart from the appeal of Plymouth Construction, a writ petition filed by Apna Ghar under Article 32 was also rejected and, therefore, the position of law as against a review is inapplicable. The Respondents have relied upon the order passed by the learned Single Judge of the Delhi High Court in the case of Namit Bhargava v. Medical Council of India7 to contend that summary dismissal of special leave petition and petition under Article 32 of the Constitution of India is different.
42. On 22 February 2010, the Apex Committee had dismissed the applications filed by Plymouth Construction. Plymouth Construction challenged this order by filing Writ Petition 7(2004) 77 DRJ 376 skn 27 WPL-2672.2020(OS).doc No.1273 of 2010 in this Court. The Petitioners had filed an intervention application in this writ petition. The petition of Plymouth Construction was dismissed on 20 August 2020. Plymouth Construction approached the Supreme Court by filing a special leave petition. The Supreme Court, on 1 October 2013, while directing replies to be filed passed an interim order permitting scrutiny of the proposal but prohibiting any final decision to be taken. The Petitioners also intervened in this special leave petition. This petition was also directed to be heard along with Writ Petition No.874 of 2014 filed by one Apna Ghar Welfare Association. The Respondents have placed on record the summary of reliefs sought in the matters pending before the Supreme Court. Special Leave Petition No.8542 of 2014 filed by Vrushali Enterprises also had added Precaution as Respondent and question was raised regarding the proposal of Precaution. The SRA filed affidavits both in the writ petition filed by Apna Ghar Welfare Association and in the appeal filed by Plymouth Construction. Contempt Petition No.785 of 2015 filed by Plymouth Construction was with an allegation that the Authorities of SRA were illegally processing the proposal of Precaution. It is, after that, the Supreme Court on 7 April 2017 dismissed the matters. Therefore, in all these proceedings, the processing of the proposal of Precaution was directly raised and questioned, and the Supreme Court dismissed these proceedings. It cannot be contended by any party that the Supreme Court dismissed the matter on 7 April 2017 without looking into the pleading of the skn 28 WPL-2672.2020(OS).doc parties.
43. Writ Petition No.874 of 2011 was filed by Apna Ghar Welfare Association under Article 32 of the Constitution of India challenging the action of SRA, and it was contended that the acceptance and processing of proposal of Precaution was illegal. There was no consent of more than 70% occupants, and no demarcation of property or bio-metric was conducted. Apna Ghar Welfare Association sought an enquiry to be conducted. It is this writ petition by Apna Ghar which was also dismissed by the Supreme Court. The learned Single Judge of Delhi High Court in the case of Namit Bhargava made a distinction between the dismissal of the petition under Article 32 of the Constitution of India and declining special leave under Article 136 of the Constitution of India. This distinction is material to be kept in mind. It, therefore, cannot be contended that the dismissal of the writ petition filed by Apna Ghar under Article 32 questioning processing of proposal of Precaution was an irrelevant factor for the Committee to consider. The response of the Petitioners to the rejection of petition of Apna Ghar filed under Article 32 is by orally contending that any unscrupulous developer would set up a party to file a petition under Article 32. Such a vague and generalized argument is stated to be rejected. There is no pleading to that effect with proof to support this allegation, and the petition was dismissed by order of the Supreme Court after considering the pleadings filed therein and after the skn 29 WPL-2672.2020(OS).doc replies filed by SRA. Therefore, if the Apex Committee has referred to the pleadings of the parties in this manner in the impugned order, it cannot be said that the Apex Committee has considered irrelevant factors. The rejection of the petitions and appeal by the Supreme Court is also an essential aspect for the exercise of equity jurisdiction of this Court. Since the dispute about this slum rehabilitation scheme was considered in the High Court and then in the Supreme Court where all challenges were rejected, the pleadings of the parties are material. Apart from the debate on law as to the effect of a summary dismissal of the appeal and petition, as far as the Apex Committee is concerned, it could not have ignored that the very same rehabilitation scheme was the subject matter of challenge before the Supreme Court and the challenges were rejected. The argument that the Apex Committee has taken into consideration irrelevant considerations is rejected.
44. The Petitioners' next grievance is that the order of the Apex Committee is unreasoned. This criticism is not justified. The Apex Committee is not a civil court to expect an elaborate judgment as a Civil Court. The Apex Committee has referred to the facts, then prayers sought for by the parties and then the written submissions and arguments of the parties. The reference is made to various proceedings filed before the Courts and the rejection thereof. The Apex Committee has noted Clause-11 of the Procedure which states that submission and processing and approval of the proposal is skn 30 WPL-2672.2020(OS).doc required to be submitted to the Executive Engineer and not through dispatch. The Apex Committee has recorded a finding that the Petitioners submitted the proposal through dispatch and the Petitioners were aware that during the pendency of the proposal of Precaution, SRA would not accept their proposal. The Apex Committee then referred to the status-quo order and has held that the rejection of the proposal submitted by the Petitioners was correct. The Apex Committee has then dealt with the challenge to the LOI dated 29 January 2017 and has examined the facts on record and the orders passed. The Apex Committee has referred to certified Annexure-II and the fact that the proposal was submitted and it could not be finalized in view of the pendency of the matter before the Supreme Court. After considering the material on record, the Apex Committee concluded that the LOI granted was just and proper, the proposal submitted had the requisite Annexures-I, II and III in conformity with the law and then negatived the challenge of the Petitioners. Therefore, though the order of the Apex Committee is not elaborate as a judgment of the civil court, the grounds for rejection of the Petitioners' proposal are given.
45. The Apex Committee found that the proposal of the Petitioners was rightly rejected in the year 2013 and considering the challenge to the grant of LOI to Precaution, the Apex Committee rightly focused on the broad parameters. The Petitioners contend that the report of CEO, SRA was not considered. We have examined skn 31 WPL-2672.2020(OS).doc this aspect later in this judgment and have found that it does not advance the case of the Petitioners any further. Having found that all the requisite compliances such as Annexures-I, II and II and recording a finding to that effect, the Apex Committee dismissed the challenge of the grant of the proposal of Precaution. Therefore the order can be considered as unreasoned and in breach of principles of natural justice. Therefore the decisions in the cases of Siemens Engineering and Mahindra and Mahindra relied upon by the Petitioners would not assist the Petitioners. We find no perversity in the approach of the Apex Committee to focus only on examining if all required documents were in order to support the grant of LOI. Thus, the challenge to the order of the Apex Committee on the ground of being unreasoned and having based on irrelevant consideration must fail.
46. Now we turn to the second head of challenge, that is the rejection of the proposal of the Petitioners.
47. The Petitioners are a developer and a co-operative society who are stated to be interested in implementing a scheme of slum rehabilitation. The primary focus for such petitioners would be the grant of its own application. However, the major part of oral arguments and also written submissions was devoted to challenging the grant of LOI in favour of Precaution. Be that as it may, we now consider the challenge of the Petitioners of rejection its proposal.
skn 32 WPL-2672.2020(OS).doc
48. In a meeting held in the year 2008, 23 proposed co- operative societies appointed Precaution as the developer. On 3 April 2012, the Precaution submitted a proposal in respect of 113321 square meters. The Petitioners submitted its proposal more than one year thereafter on 18 April 2013 for 7252 square meters. On 10 June 2013, the SRA rejected the proposal of the Petitioners and communicated to the Petitioners. On 24 June 2013 again the rejection was communicated. The Petitioners had also applied before the Committee in the year 2016 which was not entertained on the ground that the matter was pending in the High Court. The communications dated 10 June 2013 and 24 June 2013 are on record. These orders referred to the order of status-quo passed by the High Court and the pendency of the Proceedings No. 1273 of 2012. It also refers to the proposals being submitted through dispatch.
49. The petitioners contend that the rejection of their proposal despite submitting as per the Regulations with requisite consents is erroneous. Petitioner No.2 had validly appointed Petitioner No.1 as a new developer by resolution dated 10 February 2013. More than 70% members had voted in favour of appointing Petitioner No.1 as a developer. In the affidavit filed by SRA, the reasons for rejection of the Petitioners' proposal are given in paragraph-21, which read thus:
"(i) That the Petitioners submitted its proposal in SRA's General Dispatch Section which is contrary to the skn 33 WPL-2672.2020(OS).doc procedure prescribed by SRA. I say that the Clause 11 of the Procedure for Submission, Processing and Approval of Slum Rehabilitation Scheme prescribed by SRA necessitates and requires the prior Pre Scrutiny of the Slum Rehabilitation proposal by a designated Engineer of Slum Rehabilitation Authority to ensure completeness of the proposal sought to be submitted so far as documents are concerned. Clause 11 of the Procedure for Submission, Processing and Approval of Slum Rehabilitation Scheme prescribed by SRA is reproduced as under:
"Clause 11: After the pre-scrutiny 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 Fee which are charged at half the rate of Municipal Corporation's General Building Permission Fees. Upon acceptance, the Scrutiny of Annexure-I, II and III starts simultaneously in the Building Permission Wing, Eligibility Certification Wing and Accounts & Finance Wing respectively."
(ii) The proposal submitted by Respondent No.5 was pending with the SRA when the Petitioners sought to submit their proposal through dispatch. I say that the answering Respondent can process only one proposal and which is prior in time, at a time in accordance with the law interpreted by the Hon'ble Bombay High Court in the case of Avdesh Tiwari vs. CEO, SRA reported in (2006) 4 Mh.L.J. 282.
(iii) It is a matter of record that when Petitioners submitted its proposal to SRA on 18 April, 2013 through dispatch, while status quo order dated 11th May, 2012 passed in Writ Petition No.1273 of 2012 was in operation."
skn 34 WPL-2672.2020(OS).doc Thus three reasons were given. That the proposal was submitted through dispatch; the earlier proposal was pending, and the order of the High Court granting status quo was in operation when the Petitioners submitted the proposal.
50. The Petitioners submit that the rejection on the ground that the proposal was submitted through dispatch is entirely incorrect and even the proposal of Precaution was submitted through dispatch. The Petitioners have referred to a document dated 20 May 2013 issued by the SRA under the Right to Information Act.
51. The Respondents have disputed that Precaution's proposal was also routed through dispatch. The Respondents also rely upon the document dated 1 March 2014 to demonstrate that the proposal of Precaution was not through dispatch. They contend that rejection of Petitioners' proposal is as per law. The Petitioners' proposal was submitted one year after the proposal of Precaution, and it is malafide as it is filed with full knowledge of the proposal of Precaution to deliberately lodge and keep it pending. The respondents contend that submitting the proposal through dispatch was to avoid scrutiny.
52. The prohibition against submitting a proposal through dispatch is not also an empty formality. The Division Bench in Awdesh Vasistha Tiwari & Ors. v/s. Chief Executive Officer, Slum skn 35 WPL-2672.2020(OS).doc Rehabilitation Authority8, has held that the entire scheme under Regulation 33(10) shows that the proposals have to be scrutinized independently and not simultaneously with subsequent proposals made by another proposed society .The Division Bench held that the two societies cannot have 70% consents, and the application received first is to be processed first and if it fails to get 70% support, the second application can be examined. The Division Bench underscored the need to follow this procedure to avoid unhealthy competition between the different developers who may/will try to win over the hutment dwellers who have supported the application made earlier by another society. Thus if a proposal is already submitted then it must be taken to its logical end and to prevent any unhealthy practices, other applications should not be received. The procedure for submission, processing and approval of the Slum Rehabilitation Scheme has been prescribed by the SRA. Clause 11 of the procedure specifies how the proposal is to be scrutinised. Clause 11 reads thus:-
"Clause 11 : After the pre-scrutiny 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 Fee which are charged at half the rate of Municipal Corporation's General Building Permission Fees. Upon acceptance, the Scrutiny of Annexure-I, II and III starts simultaneously in the Building Permission Wing, Eligibility Certification Wing and Accounts & Finance Wing respectively."
82006(4) Mah.L.J. skn 36 WPL-2672.2020(OS).doc The procedure requires submission of the proposal through the designated branch so that it can be seen if earlier proposal is pending. If the proposal is simply filed through dispatch it may not be noticed that an earlier proposal is pending.
53. It is not a disputed position that the Petitioners had submitted its proposal on 18 April 2013 through dispatch. As to the contention of the Petitioners contend that even Precaution's proposal is through dispatch, a categorical assertion is made by the SRA that the Precaution's proposal was not through dispatch. The Petitioners had relied upon a communication dated 23 May 2013 addressed to one Dhananjay Dhanu in response to his application under the Right to Information on 8 May 2013. In this, there is a reference to the application submitted by the Catapult Reality Consultant through dispatch. Despite calling upon the Petitioners during the oral argument to place on record what was the query raised in the application, the same is not placed on record. It is not clarified if the query called upon the SRA to state as to whether Precaution proposal was through dispatch or otherwise. Merely based on such vague reference in a response under Right to Information to one of the slum dwellers without explaining the query, it is not possible to discard the assertion of the Respondents stated on oath.
54. This aspect is further made clear by a note prepared by skn 37 WPL-2672.2020(OS).doc the Legal Department of the SRA on 1 March 2014 regarding the proposals received. The Respondents have pointed out that the Legal Department analyzed the proposals of the Federation, Respondent No.6 - Om Sai Ganesh Society and the Petitioner No.2. As regards Om Sai Ganesh Society and the Petitioner No.2, it is stated that they were submitted in the Dispatch Section. For the proposal of the Federation - Respondent No.6, it is categorically stated that it is submitted to the Executive Engineer. There is no substance in the contention of the Petitioners that its rejection on the ground that it was made through dispatch is bad in law as the proposal of Precaution was also through dispatch. It is clear, therefore, that the proposal of the Petitioners having been submitted through dispatch was not as per Regulations.
55. The Apex Committee has observed that the Petitioners knew of the submission of the proposal by Precaution prior in point of time. Respondents also contend that since 194 consent holders of Petitioners had already given consent to Precaution therefore Petitioners were fully aware of the proposal of Precaution. This finding of the Apex Committee and the arguments advanced by the Respondents asserting knowledge on the part of the Petitioners have not been satisfactorily repelled by the Petitioners.
56. SRA issued Circular dated 4 May 2013 which was superseded by a further Circular dated 31 August 2013 with respect skn 38 WPL-2672.2020(OS).doc to procedure for making an application of proposal for Redevelopment under the D.C. Regulations. Under these Circulars any application of proposal for redevelopment was required to be submitted to the Executive Engineer in the office of the SRA. Petitioner's application was received on 18 April 2013 in dispatch. It came to be rejected as the same was not filed in the office of SRA but was received in dispatch. On the other hand, Precaution's application was received on 3 April 2012. Therefore even assuming that Precaution's application was received in dispatch as contended by the Petitioner, it would still not apply to the case of Precaution as it was received well before issuance of the above Circulars.
57. Thus had the proposal been submitted by the Petitioners as per Regulation 11 directly through the Executive Engineer/SRA, it would have been straight away returned. Respondents have submitted that by then most of the officers in the SRA were aware that a proposal of Precaution, of such magnitude, was pending and thus would not receive the proposal of the Petitioners. There is merit in the contention of the Respondents that to obviate this position, the Petitioners submitted the proposal through dispatch. Thus, when the Petitioners submitted its proposal one year after the proposal of Precaution through dispatch, it could not have been submitted, it was not a proposal in the eyes of the law and its rejection, therefore, was correct and proper. The contention of the Petitioners that this is a new ground to support the rejection of the Petitioners proposal ,is not correct. Filing through dispatch assumes importance because of skn 39 WPL-2672.2020(OS).doc the pendency of the earlier proposal. The rejection of the Petitioners proposal on this ground has been rightly held to be correct by the Apex Committee. Further, in this Petition, the Petitioners have sought a writ of mandamus to the authority to process its proposal. Therefore, it was necessary to find out whether the proposal of the Petitioners was valid.
58. The second ground for rejection of the Petitioners proposal was that it was submitted when the status-quo passed by the High Court was in operation. According to the Petitioners, this status-quo was only in the matter filed by Plymouth Construction, and nothing stopped the authorities from accepting the proposal of the Petitioners. There is no merit in this contention. The status-quo was granted by the High Court in Writ Petition No. 1273 of 2012 on 11 May 2012 continued till 19 September 2013 and the Petitioners had filed a Chamber Summons on 18 April 2013 to be impleaded as a party Respondent in this Petition. The Chamber Summons was filed because the Petitioners would be affected by the relief sought in this Petition. Therefore, the Petitioners cannot urge that the status-quo granted in this Petition was not relevant and its application could still be considered. The rejection of the Petitioners' proposal on this ground has been rightly held to be valid by the Apex Committee, and we find no error in the same.
59. There is another aspect whether the Petitioner had 70 % skn 40 WPL-2672.2020(OS).doc consents when they filed their proposal. The Federation in the affidavit-in-reply has asserted that the Petitioners have consents of only 535 slum dwellers out of which consent is claimed of only 400 by Petitioner No.1. It is asserted that out of 535 slum dwellers, only 326 slum dwellers were found in the certified Annexure-II. Out of these 326 slum dwellers, 218 slum dwellers were found not eligible. Out of 218 slum dwellers 198 slum dwellers had given consent to Precaution earlier and that only 20 eligible slum dwellers are in fact supporting the petition. This assertion was also made in the oral argument and has not been satisfactorily controverted. Therefore the Petitioners have not demonstrated that their proposal had 70% consent when its proposal was submitted. Therefore there is no perversity or jurisdictional error is rejecting the Petitioners' proposal by the SRA and the challenge by the Apex Committee.
60. No direction can be issued to the SRA to process the proposal of the Petitioners as it was validly rejected in the year 2013 and the conclusion of the Apex Committee on these grounds is correct.
61. The next facet of the Petitioners challenge to the rejection of its proposal is mixed with challenge to the acceptance of Precaution's proposal. The challenge is that if the proposal of Precaution is held to be incorrectly accepted, then it will not remain a valid first proposal and then the proposal of the Petitioner cannot be skn 41 WPL-2672.2020(OS).doc refused.
62. The challenge of the Petitioners to the grant of proposal and issuing of LOI to Precaution is on two main grounds. The first is that Precaution made up deficiencies in the consents submitted at the time of its proposal. Second, that Precaution has no financial capacity to carry out the project and does not fulfill the requirement needed under the Annexure III. We will prefix the discussion stating that our scrutiny on this aspect will be limited to see if there is any gross illegality on the face of it and whether the object of the slum rehabilitation will be lost if the proposal of Precaution is accepted.
63. First challenge is to the initial acceptance of Precaution's proposal on the ground of lack of 70% consents of the eligible slum dwellers. Petitioners contend that the proposal of Precaution is based on the foundation that it had the consents of 70% of 2360 slum dwellers held to be eligible. As 70% of the eligible slum dwellers had not given their consent, and the figures in the proposal were not verified by any cogent document, the proposal of Precaution was defective at the inception. Precaution did not have the consent of 70% of eligible slum dwellers when it submitted its proposal and has gone about collecting the consents after the submission of the proposal, which is impermissible in law. Petitioners contend that the figure of 2480 and consequently 70% thereof, i.e. 2360 mentioned in the proposal is based on no credible documents skn 42 WPL-2672.2020(OS).doc whatsoever and nothing is explained as to how this figure is arrived at despite repeatedly asking the SRA to demonstrate the same. The Petitioners further contend that the reliance of the Respondents on the letter dated 30 March 2012, to show that there were 2360 eligible slum dwellers, is misplaced and the same is based on just surmises. Even the CEO of the SRA, who was directed by the Apex Committee on 7 April 2018 to submit a report, has opined that there was no basis for arriving at the figures of 2480 and 2360 eligible slum dwellers. The CEO has reported that the fact that there were 70% consents was a presumption. Petitioners contend that assuming that there were 2760 slum dwellers found to be eligible, Precaution had the consent of only 901 out of 2760 on the date of the proposal. It is asserted that when Annexure-II was certified, it was found that only 901 slum dwellers were eligible and rest were ineligible and, therefore, at the time of submission of the proposal, only 901 eligible slum dwellers, amounted to 30% consents. It was submitted that the affidavit of SRA also says that Annexure-II signed by the Deputy Collector was never produced and in response to a query, it was informed that it was not traceable. The SRA has avoided placing on record the correct figures and the basis for accepting Precaution's assertion of having consents of 70% slum dwellers at the time of filing of the proposal. Thus, filing the proposal with only 30% consent, Precaution blocked others from submitting their schemes. The Petitioners contend that that being so, it is clear that the proposal has been progressively improved and the same is impermissible in view of skn 43 WPL-2672.2020(OS).doc the law laid down by this Court in Atesham Ahmed Khan.
64. The Respondents submitted that the Petitioners are misinterpreting the law laid down in the case of Atesham Ahmed Khan and Precautions proposal prima facie indicated that 70% consents were available which is the only requirement. It is submitted that the record of there being 2360 eligible slum dwellers was available and based on the same 2480 consents were submitted which constitute 70% and more. It is submitted that the CEO, SRA in his report has not given any clear finding and has simply placed the material before the Apex Committee upon which the Apex Committee has founded its opinion. The Respondents contended that the communication dated 30 March 2012 is regarding 2360 eligible slum dwellers whereby general data was available. It is contended that the stage of actual verification had not come at this stage, and it is when Annexure-II is prepared.
65. Both sides have referred to and relied upon the decision of the Division Bench in the case Atesham Ahmed Khan, which is subsequently also specified in the circulars issued by the SRA. In this case, the petitioners were chief promoters of the proposed co- operative housing society, representing slum dwellers and a developer. The Respondents were another proposed co-operative housing society and the developer. Thus, a dispute inter se arose between two proposed co-operative housing societies and their developers. On 15 June 2016, the Respondents therein applied for skn 44 WPL-2672.2020(OS).doc sanctioning a rehabilitation scheme. Together with the application, they showed the number of slum dwellers as 1400. Another certificate was submitted, which showed the total as 1350, and the respondents claimed that they had the consent of 911 slum dwellers. The application was accepted and sent for scrutiny. After the scrutiny, on 26 September 2006, the respondents produced consent of 1000 slum dwellers out of 1350. The SRA found that there were 1400 tenements and the consent was of only 65% and not being requisite 70%, rejected the proposal. When the matter reached this Court, it was argued on behalf of the petitioners that the validity of the application should be determined based on the application on the date on which it was filed. Reliance was placed on the decision of this Court in the case of Awdesh Tiwari. When the Division Bench considered the controversy, it was common ground that when the application was submitted, it was not backed by 70% consent on the face of it as the figure given by the applicants itself would show that they did not have the consent of 70 per cent. In this context, the Division Bench observed thus:
"10. The grievance, however, of the Petitioners relates to the consequential directions that have been issued by the Apex Committee. The Apex Committee has directed the Slum Rehabilitation Authority to obtain a report of the Competent Authority which was to verify draft Annexure-II submitted by the Architect of the First and Second Respondents. Now, in this regard, it would be necessary to note that when a proposal is submitted by a proposed Cooperative Housing Society of slum dwellers, the application is initially accepted and verified. The applicant is then required to pay the scrutiny fees upon which scrutiny is conducted. Draft Annexure-II containing a list of slum dwellers is thereafter forwarded by skn 45 WPL-2672.2020(OS).doc the Slum Rehabilitation Authority to the Competent Authority for verifying the names of eligible slum dwellers. In the case of public lands which are of the ownership of the State Government, the Additional Collector (Encroachment and Removal), who is the Competent Authority, has to verify draft Annexure-II containing names of slum dwellers who are eligible to participate in the Slum Rehabilitation Scheme and to certify it. 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. Hence, we find merit in the contention which has been urged on behalf of the Petitioners in these proceedings that an application which on its face does not fulfill the requirement of DCR 33(10), must be rejected. The applicant cannot be allowed to progressively make up a deficiency in an application which does not ex facie fulfill the conditions on the date when it is submitted. In view of the judgment of the Division Bench in Awdesh Tiwari, the submission of an application operates to exclude all other Societies from having their applications received and processed by the Slum Rehabilitation Authority in respect of the scheme. Since the effect of the acceptance of the first application is to exclude from scrutiny all other applications until the scrutiny of the first application is complete, it is the bounden duty of the applicant to ensure that the application is complete in all respects and does not suffer from any deficiency. Any other construction would lead to the undesirable result that an application which is otherwise deficient and incomplete can progressively be improved upon over a prolonged period of time leading to a delay in the implementation of the Slum Rehabilitation Scheme. Moreover, the mere submission of an application, however deficient, will operate to block all other applicants. This could not possibly be the intent underlying DCR 33(10). Again it must be emphasised that the underlying logic of the judgment of the Division Bench in Awdesh Tiwari (supra) is to exclude the possibility of undesirable competition by unscrupulous skn 46 WPL-2672.2020(OS).doc elements resorting to extraneous means in the implementation of slum rehabilitation schemes. Hence the first applicant must act bona fide and in compliance with the law by submitting an application which fulfills the requirements of a valid application. The application must fulfill the essential requirements of a valid application on the date on which it is submitted."
The Division Bench held that the application as it stands must indicate that the application fulfills the requisite criteria of 70% consent of the slum dwellers and it must show the figures on the face of it. It was observed that since the submission of application excludes all other proponents, it should be complete in all respect and not submitted merely to block other applicants. In the case before the Division Bench, the figures given in the application on the face of it showed that it had less than 70% consents. The Division Bench has stressed on the phrases "on its face" to indicate the fulfillment of the requirement of 70% consents not with a detailed scrutiny but on the face of it. In the arguments before us the Petitioners have also not contended that there must be an absolute proof thereof but the contention was that the proposal on its face must demonstrate that 70% of the consents of eligible slum dwellers was available. Therefore, the dispute would be when the proposal of Precaution was accepted and processed whether it indicated "on the face of it" or prima facie that there was 70% consent of the eligible slum dwellers.
66. Precaution had written to the Additional Collector and Competent Authority in respect of C.S.Nos. 658 and 599 on 19 skn 47 WPL-2672.2020(OS).doc March 2012. Precaution sought information concerning the minutes of the MMRDA meeting which referred to the number of eligible slum dwellers as 2360 as on 1 January 1995. The Deputy Collector (Enc/Rem) and Competent Authority replied to this communication on 30 March 2012 and stated that comments prepared in respect of action taken regarding the proposal of Annexure-II in respect of these properties showed that 2360 slum dwellers were eligible in the slum. A reference was also made to the letter dated 20 September 2007 in respect of Democracy Day Application sent to MMRDA that 2360 slum dwellers were eligible. It was stated that the certified Annexure- II with the signature of the Deputy Collector was not found in the office. The fact remains however that the official record indicated the figure of 2360 slum dwellers.
67. Further on 3 May 2014 cut-off date for eligibility for slum dwellers was extended to the year 2000. This was after the proposal was submitted by Precaution on 3 April 2012. Circulars were issued on 22 July 2015 and 16 May 2015 prescribing new eligibility criteria. The Respondents are, therefore, right in contending that in view of the change in eligibility criteria from 1995 to 2000, the numbers of eligible slum dwellers changed. In the affidavit filed on behalf of Respondent Nos.2, 3 and 4, it is stated as under:
"27. ......... by Maharashtra Act No.IX of 2014 dated 2nd May 2014, Sections 3Y, 3Z, 3Z-1 and 3Z-2 of the Maharashtra Slum Areas (I C & R) Act, 1971 came to be amended whereby the cut-off date was extended from 1st skn 48 WPL-2672.2020(OS).doc January, 1995 to 1st January, 2000. The SRA prepared a proposal acceptance Report for Respondent No.5's proposal on 3rd May, 2014. By Housing Department's Government Resolution dated 22nd July, 2014 which was overruled by further GR dated 16th May, 2015 (applicable from 22nd July, 2014), new procedure for deciding eligibility of protected structure and slum dweller as per extended cut-off date of 1st January, 2000 was prescribed. By the said GR, the number of documentary evidences required for considering the eligibility were reduced from one out of sixteen documents to one out of seven documents. Also the slum dwellers were required to produce documentary evidence to prove the existence of protected structure as on the cut-off date i.e. 1st January, 2000 as well as documentary evidence as on the current date to prove that the said slum dweller is residing in the said protected structure....."
68. We also note that the acceptance of the proposal of Precaution on 3 May 2014 by the CEO, SRA was not automatic. The CEO, SRA, had called for a report before the acceptance. A detailed report was prepared in respect of the proposal of Precaution on 30 April 2014 by the Assistant Engineer, SRA. It referred to the number of all recorded slum rehabilitation schemes. It referred to a direction of the Supreme Court to process the proposal but not to take the final decision. A legal opinion was sought as to whether scrutiny fees can be accepted pending the matter. Ownership and salient features of the proposal were considered. Ownership of the land was taken into consideration and found to be in order. Area of the plot was enumerated and found to be admeasuring 113321 sq. meters. Status of the slum was noted. A.E.Traffic remark, DP remark, layout and planning and access were taken into skn 49 WPL-2672.2020(OS).doc consideration. Licensed Surveyor had informed that 2480 slum dwellers had given common consent which includes more than 2360 slum dwellers were found to be eligible by the office of the Additional Collector (Enc/Rem). There is no dispute that this communication referring to 2360 exists on record. General Body Resolution, the appointment of an Architect, the list of Managing Committee members and the indemnity bond were found proper. The site inspection report was annexed, and a recommendation was made to accept the proposal by accepting the scrutiny fee up to the stage of Annexure-II and LOI which will be processed after the decision of the Supreme Court in the pending SLP. This report preceded the acceptance of Precaution's proposal. The Petitioners have questioned the veracity of the statements made in this report. We are not inclined to carry out a detailed factual enquiry as to whether these statements were incorrect. For the purpose of this petition, the existence of this official document is sufficient to hold that acceptance of Precaution's proposal for scrutiny was not grossly illegal.
69. Petitioners have relied upon the report of the CEO. The Apex Committee on 7 April 2018 directed the CEO, SRA to scrutinize and submit a factual report in respect of the subject rehabilitation scheme within one month. The CEO of SRA prepared this report. In the report, first, CEO mentioned about the proposal and the history of the dispute. After that, CEO referred to the claim skn 50 WPL-2672.2020(OS).doc of Precaution and stated that its claim has 70% consents of slum dwellers and will have to be considered by the Apex Committee. Then the CEO referred to 2365 slum dwellers, and that it was presumed that 2400 slum dwellers were eligible based on the letter of the Competent Authority written in 2014 and whether 70% slum dwellers had consented to the proposal was not verified when the proposal of Precaution was accepted. Then the CEO referred to a grievance regarding prohibitory order and holding of the meeting and the information of the Police Authority and that there was no record of the meeting. Then the CEO referred to elaborate pleadings and documents of which only relevant facts were summarized, and all the pleadings and documents were then placed before the Apex Committee. According to the Petitioners, there is a clear finding that the acceptance of the proposal of Precaution is bad in law because 70% consents were not scrutinized during acceptance. The Respondents contend that the report of CEO, SRA is hardly any conclusion of the factual position, it is vague and refers only to the pleadings of the parties and places entire thing for consideration before the Apex Committee.
70. Having gone through the report of the CEO, SRA, we do not find that based on this report, a conclusion has to be drawn that the acceptance of the proposal of Precaution was improper. The Apex Committee had only directed the CEO to prepare a report and had not delegated decision making power to the CEO, SRA. The skn 51 WPL-2672.2020(OS).doc report of CEO, SRA itself was prepared on surmises. No conclusion therefrom can be drawn that the General Body meetings were never held nor that on the face of the proposal it did not show consent of 70% eligible slum dwellers. Furthermore the CEO, SRA, was part of the Apex Committee which passed the order.
71. We are satisfied that the official record indicated that there were 2360 eligible slum dwellers and the proposal submitted on the face of it showed 70% consents. The argument of the petitioners that rigorous scrutiny should have been carried out at this stage, and the number given in the application must stand frozen, is not correct. What is required at the pre-scrutiny stage is only to ensure that on the face of the application it shows that it has the consent of 70% slum dwellers and not like in the case of Atesham Ahmed Khan where the figures given in the proposal itself showed it to be having less than 70% consents. Suffice it to hold that Precaution did not invent the figure of 2360 eligible slum dwellers, but it existed on record. The figure was also reflected in the minutes of the MMRDA meeting conveyed to Precaution on 30 March 2012. Therefore, once Precaution submitted the consent of 2480 slum dwellers, on the face of it, it had the figure denoting 70% consents. This view is also taken by the Apex Committee. When Precaution's proposal was prior in point of time submitted on 17 March 2012 when other proposals were rejected, the SRA had to take the proposal to its logical end. It was delayed only because of the pending litigation.
skn 52 WPL-2672.2020(OS).doc
72. It is unnecessary for us to lay down a proposition of law on scrutiny for prima facie existence of 70% consents at the time of submission of the proposal in this case, as we are for the reasons given earlier not inclined to launch in-depth scrutiny on facts, more particularly at this stage when the certified Annexure-II now granted unquestionably show consent of more than 70% that is 84% of eligible slum dwellers. As pointed out by the Respondents, when the Annexure-II was finalized, great care was taken, and consents of 84% slum dwellers were found to be present. To conclude, the argument of the Petitioners that the initial acceptance of the proposal of Precaution was not proper, cannot be accepted .
73. As regards the certified Annexure-II is concerned, no fault can be found with the same neither any substantial defect has been pointed out to us. After acceptance of Precaution's proposal, Annexure-II was issued by the Deputy Collector and Competent Authority, a door to door survey was carried out, and scrutiny of individual slum dwellers was carried out. 2760 slum dwellers were found to be eligible. Out of 2760 eligible slum dwellers, 2324 slum dwellers had given their consents in favour of Precaution. The report was submitted on 26 October 2015 with a corrigendum on 17 November 2015. The report was filed in the Supreme Court by the Competent Authority along with an affidavit on 20 January 2016. A compilation of verification is shown to us during the hearing. It shows an elaborate exercise, bio-metric referring to names, as against skn 53 WPL-2672.2020(OS).doc the names of every person, their photographs and thumb impressions have been taken and tallied. This exercise is done in detail and elaborately.
74. Therefore, as on today, 84% of the eligible slum dwellers, which include even the consents claimed by the Petitioners, have supported the proposal of Precaution for redevelopment. The dispute is raised of initial acceptance . Considering the totality of the circumstances, we are not inclined to quash and set aside the proposal of Precaution and the LOI granted on the ground of lack of 70% consents at the time of acceptance of the proposal of Precaution.
75. The Petitioners have also questioned holding of the meeting by the General Body and resolutions submitted by Precaution wherein the slum dwellers have stated to have attended and passed a resolution in favour of Precaution. It is contended that the record shows that no such meeting was held. The Petitioners relied upon the report of the CEO that there was a prohibitory order on 14 September 2008 when the meeting was held to contend that such meeting never took place. However the report of the Engineer before the acceptance of the proposal is on record which states that meetings were held. The report asserts that a general body meeting took place and resolutions were duly passed in favour of Precaution. The General Body Resolutions were also annexed. From the existence of an order under section 144 of Code of Criminal skn 54 WPL-2672.2020(OS).doc Procedure, 1973, we cannot straightway set aside the resolutions passed by the General Body of the Federation when such document is on record and confirmed by the SRA. The Respondents have also drawn our attention to the notification issued by the Deputy Commissioner of Police of the relevant date. The prohibition section 144 of the Code did not apply to the meetings of the co-operative societies to transact their regular business. The Petitioners contend that it is not a regular business nor is there any co-operative society involved. We are not inclined to dissect this aspect of the matter any further. The record exists that meetings were held. Federation asserts that meetings were held. There is no merit in the contention that the meetings were never held.
76. The second challenge to the acceptance of proposal and grant of LOI is to the financial capacity of Precaution and the requirements of the Annexure-III. The SRA, while assessing the financial capacity of Precaution to execute the scheme, has taken into consideration the financial capacity of its holding company- Shappoorji Pallonji Ltd. in consideration.
77. On 2 January 2017, the SRA issued a Circular referring to the increase in construction cost to assess developer's financial capacity for obtaining Annexure-III and acceptance of bank guarantee deposits. The Circular referred to the Slum Developers Associations representation and the need for modifications due to skn 55 WPL-2672.2020(OS).doc changes in the circumstances for the smooth functioning of the slum rehabilitation schemes. Clause-6 of the Circular dated 2 January 2017 stated as under:
"6. While issuing NOC of F.C. Department at the time of submission and issuance of Ann-III, the financial capacity of the developer shall be decided on the basis of the net worth of the developer, company or partnership firm or individual as the case may be, and certificate of Chartered Accountant in that respect be taken on record as final proof. In case a subsidiary company is a developer, in that case, the net worth of the holding company should also be taken in consideration."
The underlined portion is objected to by the petitioners.
78. Petitioners submitted that Precaution does not have the financial wherewithal and it has relied upon the financial capacity of its holding company relying on the Circular dated 2 January 2017 issued by the SRA. This Circular is not retrospective in operation and could not have been applied to the proposal submitted by Precaution, as when the Circular was issued in the year 2017, Annexure-III was already submitted by Precaution, and the scrutiny also took place in the year 2014. Clause-6 of the impugned circular and the other clauses show it applies from the date it is brought into force. Even assuming the Circular is applicable it is violative of Article 14 of the Constitution and is in breach of the provisions of the Development Control Regulations. The Circular is irrational as the holding company has nothing to do with the project as it was not involved directly. The Circular is bad in law because it is tailor-made skn 56 WPL-2672.2020(OS).doc to suit Precaution and cannot be applied midway through the scrutiny process as it will change the rules of the game. Even though the Supreme Court permitted scrutiny of the proposals, SRA waited till the Circular was brought in. In short, the Petitioners contend that Precaution by itself does not have the financial capacity to carry out the scheme and the acceptance of Annexure-III and the grant of LOI is bad in law and needs to be quashed and set aside.
79. SRA and Precaution have opposed these submissions contending that having considered the financial worth through Annexure-III and having found the proposal of Precaution complete in all respects, it was accepted. The challenge to the Circular No.176 dated 2 January 2017 and Clause-6 thereof cannot be entertained at the behest of the Petitioners as the Petitioners have not shown prejudice if the financial capacity of holding company is considered as a matter of policy. The requirement of furnishing Annexure-III and the objectives of the slum rehabilitation scheme generally did not bar considering the financial capacity of the holding company. The circular, therefore, was clarificatory. The challenge to Circular No.176 dated 2 January 2017 is without merit. The charge that it was tailor-made to suit Precaution is also misplaced as when the Circular was issued, the matter in the Supreme Court was pending. Also, the Circular was issued pursuant to a representation of the Slum Developers Association. It is also submitted since the proposal of Precaution was pending applying the Circular to a pending proposal skn 57 WPL-2672.2020(OS).doc is not retrospective but retroactive.
80. We find no merit in this challenge of the Petitioners. The Annexure-III has to be submitted in the proforma. The title of the proforma indicates the object for submitting Annexure-III. It is to assess the financial capacity of the developer to execute the slum rehabilitation scheme. This does not lay down an eligibility criteria, but to aid the SRA to assesses whether the developer has the financial capacity to execute the scheme so that the slum dwellers are not left in the lurch by the developer who does not have the necessary financial wherewithal. The proforma contains a clause to state the details of the source for the amount required for completing the scheme. Therefore, nothing stops a developer from specifying its sources as finances from its holding company. Therefore, as per the Annexure-III as it stands ,without the circular, ,there is no prohibition stipulated that a developer cannot specify the sources of its funds to be made available from the holding company. The Supreme Court in the cases of Consortium of Titagarh Firema Adler, vs. Nagpur Metro Rail Corporation Ltd.9 and CRRC Corporation Limited v. Metro Link Express for Gandhinagar and Ahmedabad (Mega) Company Limited10 relied upon by the Respondents, has observed that business through subsidiaries by the holding companies is a commercial reality of today and pedantic approach should not be adopted. In the current economic scenario, many corporations 9 (2017) 7 SCC 486 10 (2017) 8 SCC 282 skn 58 WPL-2672.2020(OS).doc establish subsidiaries to carry out different business. If sans any prohibition the SRA has considered the financial capacity of the holding company, the approach cannot be faulted.
81. The further challenge of the Petitioners to the applicability of the Circular in the context of Annexure-III is that the Circular cannot be made retrospectively applicable as the proposal was submitted on 3 April 2012, it was accepted on 3 April 2014, and the Circular was issued on 2 January 2017 and, therefore, it cannot be made retrospectively applicable, and the Circular itself stipulates so in Clause-6 of the Circular. This submission cannot be accepted. The proposal of Precaution was pending and was not finally disposed of. Applying this Circular to the pending proposal cannot be considered as retrospective and will have to be considered as retroactive as rightly contended by Precaution. There is nothing that stops applying this Circular to the proposal of Precaution which was not finally disposed of.
82. Because the Circular has only clarified the position which was never prohibited, it cannot be said that the stipulation was brought into force on the date of the Circular, i.e. 2 January 2017 and that there was embargo earlier to consider the financial capacity of the holding company. Therefore no challenge can be raised on the ground that it cannot be made applicable to the pending applications. The object of the slum rehabilitation schemes is to lift the slum skn 59 WPL-2672.2020(OS).doc dwellers out of dismal conditions and to give them a better standard of living. Whether the developer would be able to generate finances to execute the scheme for that purpose an assessment is to be made by the SRA.
83. The contention that the Circular dated 2 January 2017 is tailor-made to suit only Precaution is also baseless. The Circular was issued on 2 January 2017 when the proceedings were pending in the Supreme Court, and a status-quo was operating and that the decision was awaited. The SRA has asserted on oath that it received representation from the Developers Association. The Circular itself refers to the representation of the Developers Association. The Petitioners' contention that no such representation is placed on record is without merit. The Petitioners cannot keep on questioning every statement made by the statutory bodies on oath. Further, it is not impossible that the developers through their association would have made such a representation which appears to be in the interest of all the developers.
84. Once it is noted that there was no embargo earlier and the Circular was clarificatory, there is no question of entertaining a challenge on the ground that it is arbitrary or without any legal authority. Even otherwise, nothing is shown to us as to why such a stipulation is arbitrary except contending that the holding company has nothing to do with the redevelopment. This cannot be a basis skn 60 WPL-2672.2020(OS).doc for setting aside this Circular. No arguments were advanced to demonstrate why the Circular should be set aside as arbitrary or issued without any power. How the Petitioners are prejudiced by the stipulation generally is also not made clear.
85. The Finance Controller, after examining the Annexure- III submitted by Precaution and the documents, passed a remark that Precaution and M/s. Shapoorji Pallonji and Company have sufficient net worth as certified by the Chartered Accountant. The documents showing the net worth of the holding company- Shapoorji Pallonji and undertaking of Shappoorji Pallonji were also annexed. Nothing is demonstrated before us to show that the holding company also does not have the financial capacity.
86. Therefore the challenge to acceptance of Precaution's proposal on the ground of its financial incapacity must fail. The SRA was not in error in considering the financial capacity of Precaution's holding company which was specified in Annexure III. The Circular dated 2 January 2017 also could be relied upon for that purpose, and the said Circular cannot be termed as bad in law to quash the same.
87. The Petitioners then contend that after the grant of LOI, Precaution has done nothing further and, in fact, mortgaged some part of the property and, therefore, it cannot claim any equity. It was submitted that LOI had lapsed and had to be revalidated, and only a skn 61 WPL-2672.2020(OS).doc part of the premium has been deposited. It is submitted that nothing further has been done on the plot and no prejudice will be caused if the LOI granted to Precaution is set aside. Precaution contends that it is not a case that the mortgage was made before granting of LOI and that after the grant of LOI, it was a commercial decision which cannot be a basis for setting aside the LOI.
88. The CEO, SRA granted its approval on 7 July 2017 for grant of LOI without including the plot area under the unbuildable reservation of Police Parade Ground. A revised LOI was issued with including the plot area with unbuildable reservation subject to obtaining permission in the Writ Petition No.1152 of 2002 for a relocation because of the order passed by this Court in that petition. Accordingly, LOI was issued on 29 November 2017. The first installment of the land premium of 15% of Rs.13988157700/- was payable. Precaution deposited the amount of Rs.152.65 crore along with accrued interest. As per Clause-12 of LOI, Precaution is under a mandate to provide permanent alternate accommodation to all slum dwellers who may get subsequently eligible. Therefore, it cannot be said that no prejudice would be caused and nothing further has been done by the Respondents, and LOI should be quashed on that ground. This also cannot be a reason for setting aside the LOI and restarting the process all over. That a part of the property is mortgaged after the grant of LOI is a commercial decision, and nothing is shown to us that it is illegal.
skn 62 WPL-2672.2020(OS).doc
89. For rehabilitation of this slum area, many developers had submitted their proposal, and none of the proposals were found valid. Piecemeal implementation of the scheme is not viable. Precaution's proposal is for the entire area. This proposal could not be processed because of the pending litigations. 84% of eligible slum dwellers of 23 co-operative housing societies are supporting Precaution's proposal. The financial position of Precaution and its holding company has been found sufficiently robust to ensure that the project is completed and the slum dwellers are housed. The Petitioners' proposal is for only 6.4% of the total property. The Petitioners have a minuscule minority with them. Large part of the area under Petitioners' proposal is unbuildable. After all challenges were dismissed by the Supreme Court ,due scrutiny was carried out, and LOI is granted to Precaution. As rightly contended by the Respondents, the Petitioners' attempt, with no chance of executing the scheme by itself, is only to prevent Precaution and Federation from executing the scheme.
90. It was fervently urged by the Federation that this Court should not interfere in its equity jurisdiction as the slum dwellers have been waiting for rehabilitation since over two decades. They submit that the only consequence of setting aside the impugned order will be that the process will start all over again, meaning the slum dwellers will continue living in squalid conditions. These skn 63 WPL-2672.2020(OS).doc apprehensions are not baseless and will have to be taken note of. Ultimately such schemes are implemented to mitigate the hardship of the slum dwellers and they should not be casually set aside by the writ courts only on technical grounds unless a case of gross illegalities or failure of justice is made out.
91. Considering the totality of the circumstances, we conclude that no interference in writ jurisdiction is warranted. Writ Petition is dismissed.
(MILIND N. JADHAV, J) (NITIN JAMDAR, J)
Digitally
signed by
Sanjay K.
Sanjay K. Nanoskar
Nanoskar Date:
2020.12.22
18:38:49
+0530