Bombay High Court
Vakola vs Chief Executive Officer on 11 June, 2014
Author: M. S. Sonak
Bench: S. J. Vazifdar, M. S. Sonak
skc/dss 5.13 - J.odt
IN THE HIGH COURT OF JUDICATUR AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 5 OF 2013
Susme Builders Private Limited ]
a Company incorporated under the ]
provisions of the Companies Act, 1956, ]
and having its registered office at Unit No.F-1 ]
1st Floor, Shanti Nagar Industrial Estate Ltd.,
ig ]
Vakola, Santacruz (East), Mumbai 400 055. ] ....Petitioner
V/s
1. Chief Executive Officer ]
Slum Rehabilitation Authority ]
having his office at Anant Kanekar Marg ]
Bandra East, Mumbai 400 050. ]
2. High Power Committee ]
Having its office at Anant Kanekar Marg ]
Bandra East, Mumbai 400 050. ]
3. Om Namo Sujlam Suflam Co-operative ]
Housing Society, a Society registered ]
under the provisions of the Maharashtra ]
Co-operative Societies Act, 1960, ]
Having its registered office at Shivaji ]
1/110
::: Downloaded on - 22/06/2014 23:28:42 :::
skc/dss 5.13 - J.odt
Nagar Shree Chatrapati Shivaji Maharaj ]
Marg, Vakola Bridge, Santacruz (E), ]
Mumbai 400 055. ]
4. J.G. Developers Private Limited, ]
Company incorporated under provisions ]
of Companies Act, 1956, having its office ]
at 20, Rajabhadur Mansion, Ambalal Doshi]
Marg, (Haman Street), Fort, ]
Mumbai 400 023. ig ].... Respondents
WITH
CHAMBER SUMMONS NO.158 OF 2013
IN
WRIT PETITION NO.5 OF 2013
Sanjay H. Sawant & ors. .. Applicants/Intervenors
In the matter between
Susme Builders Private Limited .. Petitioner
vs.
Chief Executive Officer,
Slum Rehabilitation Authority and ors. ..Respondents.
..........
Mr. Pradeep Sancheti, Senior Advocate with Mr. Anirudha Joshi, Mr.
Rohan Cama, Mr. Vishal Talsania and Mr. Hetal Thakore, Mr. Kunal
Parekh, Mr. Nilesh Ukey, Mr. Dhavol Deshpande and Mrs. Dorius Jone i/b
Thakore Jariwalla and Associates for Petitioner.
Mr. Ravi Kadam - Senior Advocate with Mr. G. D. Utangale and Mr. B. V.
2/110
::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt
Phadnis i/b Utangale & Co. for the Respondent No. 1 .
Mr. Pravin Samdani with Mr. Snehal Shah, Mr. Naushad Engineer, Ms.
Deepti Pande and Mr. Jonardhan Narayanan and Ms. Smruti Rasal i/b
Narayanan & Narayanan for Respondent No.3.
Mr. Venkatesh Dhond - Senior Advocate with Mr. Rakesh K. Agarwal i/b.
Mr Rakesh Agarwal for Respondent No.4.
Mr. S. U. Kamdar - Senior Advocate with Mr. Tushar Dahibawkar i/b.
Dahibawkar & Co. for Intervenors.
..................
CORAM : S. J. VAZIFDAR & M. S. SONAK, JJ.
Date of Reserving the Judgment : 05.04.2014
Date of Pronouncing the Judgment : 11.06.2014
JUDGMENT (PER : M. S. SONAK, J.) :-
1] Rule. With the consent of the learned counsel appearing for the parties, Rule is being disposed of finally at the stage of admission itself.
2] By this petition, the Petitioner questions its removal as the developer of the property bearing CTS 7627,7627/1 to 852 of village Kole Kalyan at Santacruz (E), Mumbai hereinafter referred to as the 'said property'.
3] The property in question is owned by Respondent No. 3 i.e.
3/110
::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt
Om Namo Sujlam Suflam Cooperative Housing Society (hereinafter referred to as "the Society"). The Society had appointed the Petitioner i.e. Susme Builders Private Limited as a "developer" to execute Slum Rehabilitation Project under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as the 'Slum Act'). The appointment was approved by the authorities under the Slum Act, subject to certain terms and conditions. The Respondent No. 1 i.e. the Chief Executive Officer, Slum Rehabilitation Authority, hereinafter referred to as "CEO, SRA" by an order dated 24.02.2012 removed the petitioner as the developer. The Respondent No.2 i.e. the High Power Committee (hereinafter referred to as 'HPC'), upheld the order dated 24.02.2012. The Petitioner has sought a writ of certiorari to set aside those two orders.
4] The matter has a chequered history and reference to the facts would be necessary for the purposes of appreciating the various issues which arise in the present petition.
5] The said property was declared as 'Slum' under Section 4 of the Slum Act on 16.08.1977 and thereafter again on 7.12.1983.
4/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt
6] By Special General Body Resolution dated 15.09.1985, the
Society resolved to appoint the Petitioner as developer to develop the said property. In pursuance thereof, the Petitioner and the Society entered into an agreement dated 27.02.1986. In terms of this agreement, the Petitioner undertook development of the said property on 'as is where is basis' and with knowledge that the said property was affected by certain reservations and encumbrances.
The Petitioner, committed to complete said development by providing each of the 800 members of the Society, residential tenements admeasuring 240 sq. ft within a period of five years.
Pursuant thereto the Society executed a Power of Attorney dated 7.4.1986 in the Petitioner's favour.
7] The Petitioner entered into individual agreements with about 620 out of the total number of 800 members/ occupants of the Society, committing the allotment of tenements to them within a period of five years.
8] Between the years 1986 and 1992, factually there was no construction or development in or upon the said property. The first permission for such development under Section 8(4) of the Slum Act, was itself obtained on 09.10.1992. There is a dispute between 5/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt the Society and the Petitioner, as to who is to blame for the same.
But the fact remains that no construction or development took place during the said period. The Petitioner attributes the delay to a Public Interest Litigation challenging the reservations on inter alia on the said property in the Development Plan. The Petitioner's case is that it took considerable time to have the property dereserved.
The Petitioner obtained permission for redevelopment only on 9.10.1992.
9] The Development Control Regulation (DCR 1991) providing for Slum Rehabilitation Scheme (SRD Scheme) came into force with effect from 20.03.1991. The DCR 1991 traces its statutory base to Section 22(m) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the "MRTP Act".) The development in terms of DCR 1991 held out greater benefits, to both, the Petitioner and the Society as compared to development in terms of approvals obtained under Section 8(4) of the Slum Act.
Therefore, in order to avail the same, further process was initiated by the Petitioner and the Society.
10] A Special General Body Meeting of the Society was held on 30.10.1994, which was attended, by about 123 out of the total of 6/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt approximately 800 members / occupants. A resolution was adopted to opt for the SRD Scheme. There is a dispute regarding the resolution that was passed at this meeting. The Petitioner relies upon a resolution that states that each member would be allotted a tenement admeasuring 225 sq. ft. Whereas the resolution relied upon by the society states that the area would be a minimum of 225 sq. ft. The resolution relied upon by the Petitioner states that the agreement stands modified as stated therein. Whereas resolution relied upon by the society states that it has become necessary to amend the development agreement. The society further states that admittedly the agreement was not amended. A fresh Power of Attorney was executed by the society in favour of the Petitioner.
The Petitioner entered into a fresh Development Agreement dated 10.07.1995 with the Society, in order that both avail the increased benefits under the SRD Scheme. This Development Agreement dated 10.07.1995, specifically records that the previous Development Agreement dated 27.01.1986, stands cancelled.
11] Based upon the aforesaid, the petitioner obtained Intimation of Disapproval (IOD) dated 15.01.1996, followed by Commencement Certificates (CC) dated 24.01.1996 and 01.02.1996 to proceed with the construction of building Nos. 5 and 6 as a part of the execution 7/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt of the SRD Scheme which was to inter alia comprise total of at least 15 buildings apart from other amenities. There is no serious dispute that the Petitioner completed the construction of the said two buildings on or about 03.11.1998 and eventually availed Transferable Development Rights (TDR) as against the same, and even sold the same in the open market. Till date, this appears to be the only development carried out in or upon the said property, apart from perhaps some transit camps.
Prior to this, IOD, an IOD had been issued under the SRD scheme for the development of the said property in a phasewise manner. The IOD was valid for one year.
12] In accordance with the provisions of Section 37 of the MTRP, the State Government, by Notification in the Official Gazette dated 27.08.1996 published proposals for modification of DCR 1991 so as to provide for Slum Rehabilitation Scheme, hereafter referred to as the "SRA Scheme". This Scheme was to cover a larger section of the hutment dwellers and proposed to offer greater benefits to such hutment dwellers as well as developers. A circular dated 21.08.1997 was also issued to provide for guidelines to process applications seeking conversion of projects from SRD to SRA Scheme. There is some dispute as to the date of this circular. However, suffice to note 8/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt at this stage that, with effect from 15.10.1997, the modified DCR 33(10) came into force, ushering in the SRA Scheme providing for significantly enhanced benefits, both to slum dwellers and developers. The under mentioned chart will bring about the salient features and differences between the SRD (DCR 1991) Scheme and the SRA (DCR 1997) Scheme:
Sr. SRD SRA
No
1 Objective
Basically
slum.
a
ig redevelopment of : Along with
redevelopment of slum,
also rehabilitation of
slum dwellers.
2 Eligibility
A slum dweller who is a photo : A slum dweller whose pass holder or whose name has name is in the electoral appeared in the electoral roll of 1 st roll of 1st January, 1995 January, 1985 was eligible for the or prior electoral roll and scheme. Slum structure only was who is presently residing protected. in the hut is eligible for the scheme. Both the structure and the slum-
dwellers are protected.
3 Rehabilitation Tenement Density
No provision. Tenements for : 500 tenements per net
Project Affected hectare, additional
9/110
::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt
tenements being used
as Persons (PAP)
4 FSI
Maximum upto 2.5 subject to : FSI is in the form of
condition that profit does not prescribed rehabilitation exceed 25% FSI to sale ratios as under:
Suburbs : 1:1
City : 1:0.75
Difficult area : 1:1.33
No restriction on profit &
ig FSI. However, in-situ
consumption of
restricted upto 2.5.
5 TDR
:
No TDR TDR is available
against free sale
component.
(i) As spill over i.e.
above 2.5 FSI
(ii) Due to physical or
economic constraints,
even below 2.5 FSI
6 Balwadi, Welfare Centre
:
No provision 1 Balwadi for 100
tenements.
1 Welfare Centre for
100 tenements.
10/110
::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt
7 A self contained tenement of 180 : A self contained
to 225 sq. ft. carpet area at the tenement of 225 sq. ft.
cost of about Rs.15000/- per slum carpet area free of cost.
dweller.
8 Deposit & Infrastructural Charges
:
No provision Rs.20000/- per
rehabilitation tenement
and Rs.840/- per sq. m.
on additional built-up
ig area as development
charges (i.e. above
permissible FSI of the
zone).
9 Construction of Permanent Transit
Tenements
: Additional
No provision. FSI of 1.5
over and above
permissible FSI of the
zone on a vacant plot in
suburbs subject to
handing over of 50%
tenements to SRA.
10 Provision of Clubbing of Two
different Schemes
No provision : Provision for clubbing
two SRA schemes
having the same
11/110
::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt
rehabilitation to sale
ratio.
11 Approval
The proposal was approved by : The proposal is
SRD Committee. approved by CEO, SRA
as a single window
scheme as per
transparent norms laid
down by DCR No.
ig 33(10).
12 Consents from eligible hutment
dwellers
No provision : Provision for obtaining
consents from 70% or
more of eligible hutment
dwellers.
13] With a view to availing the enhanced benefits under the SRA Scheme, the Petitioner and the Society entered into Supplementary Agreement dated 07.01.1998 and on the said basis applied for conversion of their SRD Project into SRA Project. The CEO, SRA in terms of noting dated 19.01.1998 permitted such conversion. The noting is important in the context of one of the issues raised in this Petition and is therefore quoted verbatim:
"SLUM REHABILITATION AUTHORITY No.SRA/Ch.E/3759 Date: 19 January 1998.12/110 ::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt Sub: Conversion Scheme of old approved SRD Scheme into new scheme on plot bearing CTS Nos.7627 & 7627 (1 to 852) of Village Kole Kalyan, Vakola, Santacruz (E) for Om Namo Sujalam Sufalam Co-op. Hsg., Society Ltd.
The proposal of conversion of old approved SRD scheme into new scheme has been submitted by Architect Shri. Prabhakar Dabholkar on behalf of Om Namo Sujalam Sufalam Co-op. Hsg. Society Ltd. (Regd). The detailed report on the same may be seen at Pgs.453 to 469. This scheme was discussed with C.E.O. (SRA) earlier. The main objections were non-compliance of the submission of Annexure-II in the prescribed format:
(1) Individual Agreement of the slum dwellers. (2) Annexure-II has now been certified by Addl. Collector for additional 81 slum dwellers out of 91 slum dwellers, which Society is claiming as eligible. This appears to have not been decided by Addl. Collector (Enc.). The matter was also discussed with C.E.O. (SRA), when it was decided that at present this 10 eligible (i.e. 5 Commercial & 5 Industrial) as reported by Society will be treated as PAPs. In view of the urgency of the scheme and since the Addl. Collector is engaged in Election Duty, the same will be subsequently amended, if necessary, for which Society/Developer will submit undertaking to amend the plan.
Out of total 870 slum dwellers, Developer has submitted agreement of 450 eligible slum dwellers and remaining will be submitted before start of Phase-II construction i.e. (IIIrd building in the Layout) which Society people had agreed in order to give them some breathing period.
The remaining points are approvable and C.E.O.(SRA)'s sanction is therefore, requested for conversion subject to compliance of above.
(emphasis supplied) Submitted, pleasure.
Sd/-
C.E.O. (SRA) Approved as proposed.
Sd/-
20/1"
14] In pursuance to the aforesaid, the Letter of Intent (LOI) dated 27.01.1998 came to be issued by the Chief Engineer, SRA. Clauses 13/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt 19 and 40 of this LOI, being relevant are quoted and read as under:-
"19. That you shall submit the Agreements with the photographs of wife and husband on the agreements with all the eligible slum dwellers before issue of CC for sale bldg. or 3 months as agreed by developer whichever is earlier. And the name of the wife of the eligible occupier of hut shall be incorporated with joint holder of the tenements to be alloted in rehabilitation building.
"40. That this letter of intent is valid for the period of 3 months from the date of issue."
(emphasis supplied) 15] The noting dated 19.01.1998 and the consequent LOI dated 27.01.1998 assumes relevance, as one of the issues raised in this petition concerns compliances with the requirement of obtaining consents from 70% or more of the eligible hutment dwellers as provided by clause 1.15 in Appendix IV to DCR 33(10) as modified in the year 1997. It is now the case of the Petitioner that the said requirement does not apply to the cases of conversion of SRD Project to SRA project and therefore such requirement was even factually not made applicable to the present case. In the same context, reference is required to be made to the following documents:
(A) Noting dated 16.02.1998 at the stage of release of TDR to the extent of 40% as against construction of building Nos. 5 and 6 in terms of previous SRD Scheme. This noting dated 16.02.1998 reads thus:14/110 ::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt "Further, as per policy & DCR 33 (10) it is necessary that agreements with more than 70% slum-
dwellers as per new scheme is required. This was pointed out to CEO (SRA) during discussion, when CEO (SRA) instructed to submit agreements with 70% slum dwellers before second phase of T.D.R Developers have informed that out of 869 slumdwellers they have submitted 450 agreements to the office of SRA (52%)".
B] The Occupancy Certificates (OC) in respect of building Nos. 5 and 6 issued on 03.11.1998. Clause 5 thereof, reads thus :-
"That 70 percentage individual agreements with slum- dwellers shall be submitted before further approval/cc."
C] The following noting of the SRA dated 24.12.1998 at the stage of release of TDR to the extent of 90% as against construction of building Nos. 5 and 6:
"As per policy it is necessary that agreements with minimum 70% slum dwellers for new scheme is required. It is also mentioned in the previous report sideline 'x' at page-35. Architect has to submit 70% agreements before granting Phase-II TDR. At present 52 agreements (60%) out of 86 are submitted in this office as mentioned in the letter of Architect as at page........ However, these two Rehab Bldgs are physically occupied & list of tenants rehoused is submitted at P-K11 to 171 phase/II TDR can be recommended if agreed.
In view of above pending requirement of CEO (SRA) agreed TDR equivalent to 0.90 x 3720.92 v = 3348.81 (1295 sq.mt. Released in phase + 2053.81 sq.mt. to be released) sq. mt. Phase-II TDR will be recommended to M.C.G.M. 15/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt D] In the month of May 1999 some of the hutment dwellers
- members of the Society preferred Writ Petition No. 1301 of 1999 questioning the LOI dated 27.01.1998 on various grounds, including the ground that the Petitioner had failed to obtain and submit consents of 70% or more of the eligible hutment dwellers.
The Petitioner, Society and the SRA resisted this Petition and filed affidavits to oppose grant of any reliefs in the same. The Division Bench of this Court, by its judgment and order dated 13.12.1999 disposed off Writ Petition No. 1301 of 1999. In doing so, it was noted that there is no requirement under the SRD Scheme (DCR 1991) of obtaining consents of 70% or more of eligible slum dwellers and that the petition was barred by delay and laches.
During the pendency of Writ Petition No. 1301 of 1999, the Petitioner's Architect, under cover of letter dated 07.07.1999 forwarded 582 Agreements towards part compliance with the requirement of obtaining / submitting consents from 70% or more of the eligible slum dwellers. The text of the letter dated 07.07.1999, reads thus :
"ASSOCIATED ARCHITECTS & ENGINEERS nd 2 Floor, 160 D.N. Road, Fort, Bombay 400 001 Phone: 20442/2040804 Date: 7th July 1999 To The Executive Engineer (SRA), Slum Rehabilitation Authority, 16/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt 5th Floor, Griha Nirman Bhavan, Bandra (E), Mumbai-51.
Sub: Prop. Slum Rehabilitation Scheme on Plot bearing CTS No.7627 & 7627 (1 to 852) of Village Kole Kalyan, Santacruz (East) for Om Namo Sujalam Sufalam Coop Housing Society Ltd.
Ref.: SRA/CHE/110/HE/PL/LOI Dear Sir, Under the instructions from my clients, I am submitting herewith 12 nos. of files containing in all 580 Nos. of individual agreements (contents) from the members of the Om Namo Sujalam Sufalam Coop. Housing Society Ltd. Remaining individual agreements to make up 70% contents shall be submitted in due course of time.
My clients understand that the opposition members are enticing the members to cancel the agreements. Some such members have informed you that they have cancelled their agreements (contents). My clients state that the Developers have spent huge amounts. The scheme is in implementation stage, already two buildings (128 tenements) have been completed and occupation given. Therefore, at this stage to allow such one sided cancellation of agreements will be encouraging black-mailing. And therefore the Authority should reject such one sided cancellation saying there is no such provision under Regulation 33(10).
Thanking you, yours faithfully, sd/-
(ARCHITECT) (emphasis supplied) Encl. 12 nos. of file containing 580 agreements.
1. File No.02 - Agreements 50 Nos.
2. File No.06 - Agreements 55 Nos.
3. File No.12 - Agreements 28 Nos.
4. File No.01 - Agreements 51 Nos.
5. File No.08 - Agreements 51 Nos.
6. File No.07 - Agreements 50 Nos.
7. File No.11 - Agreements 50 Nos.
8. File No.10 - 50 Agreements
9. File No.05 - 44 Agreements
10. File No.09 - 51 Agreements 17/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt
11. File No.03 - 50 Agreements
12. File No.04 - 50 Agreements
13. Total : 580 Agreements (office translation of endorsement appearing in Marathi) The above 580 Agreements were scrutinized (name of owner and signature on page No.9). Enclosed is Statement showing the defects in the Agreements.
Sd/-
9/7/99
Stamp of SRA Clerk
9 Jul 1999 (Shri. J. R. Joshi)"
E] The SRA, by its communication dated 18.01.2000
called upon the Petitioner to submit consents, so as to comply with the requirement of obtaining consents from 70% of the eligible slum dwellers. The Petitioner, through its Architect's letter dated 27.01.2000 however replied that such requirement be not insisted upon in the light of judgment and order dated 13.12.1999 passed in Writ Petition No. 1301 of 1999. It needs to be noted that prior to this letter dated 27.01.2000, the Petitioner had at no stage contested the requirement of obtaining / submitting consents from at least 70% of the eligible hutment dwellers.
16] By three separate communications dated 5.1.2001, the Petitioner's Architect applied for amendment of plans in respect of three buildings in the context of certain fresh development plan remarks (D.P. Remarks) without insisting upon the 70% consents.
By a communication dated 13.2.2001, the SRA informed the 18/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt Petitioner that no sanction can be accorded for the amended plans "since the plot under reference is affected by Coastal Regulation Zone." Mr. Samdani however, contended that this was only with respect to a part of the property.
17] The Petitioner and the Society jointly preferred Writ Petition No.2269 of 2001 inter alia to question the D.P. remarks dated 22.2.2000, communication dated 12.2.2001 and the applicability of the CRZ notification to the plot in question. On 7.8.2002 this Court issued "Rule", but did not permit any further constructions by observing "it does appear that the property in question is affected by CRZ regulation". Mr. Samdani submitted that this observation was also only with respect to a part of the property.
18] In the meanwhile, the SRA by its communication dated 25.7.2001 informed the Petitioner that out of 501 individual agreements submitted, 100 agreements did not tally, 60 agreements were doubles, 29 agreements were in respect of non-eligible occupants and consequently only 372 would be accepted as correct. This communication was obviously in the context of compliance with the requirement of consents from 70% of the eligible slum dwellers/occupants.19/110 ::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt 19] On basis of complaint made by some members of the Society, the State Government appointed one man commission comprising of Mr. Chandrashekhar Prabhu for enquiring into the allegations in the complaint. The Petitioner and the Society jointly preferred Writ Petition No.1854 of 2004 questioning the appointment of the commission and sought for appropriate directions to the authorities in the matter of approvals of amended plans. By an order dated 1.3.2005, this Court disposed of Writ Petition No.1854 of 2004 with a direction to the authorities to take a decision within four weeks regarding the Petitioner's application for approval of the amended plans submitted by it.
20] On 9.5.2005, fresh DP remarks came to be issued clarifying that only a portion of the said property was affected by the Coastal Zone Regulation. In view of this clarification, it is the case of the Petitioner that further construction and development became possible. Accordingly, the Petitioner's Architect on 9.5.2005 itself applied for approval to construct transit camp in situ.
21] On 07.07.2005, officers of SRA put up a note to the CEO, SRA recommending grant of approval. Based thereon, on 18.8.2005, the SRA granted approval for construction of transit 20/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt camp in situ. The work in relation to the construction of transit camp commenced soon thereafter. However, on 14.3.2006, the SRA issued a stop work notice on the ground that the construction was in breach of the terms and conditions contained in the approval order.
It is a case of the Petitioner that the construction of transit camp was consistent with the terms and conditions contained in the approval order and the stop work notice was issued at the behest of a politician, who was interested in removal of the Petitioner as a developer.
22] On 29.05.2006, the SRA revoked the approval for construction of transit camp and directed demolition of the partly completed transit camps. The Petitioner was constrained to take out Notice of Motion No. 665 of 2006 in the pending Writ Petition No.2269 of 2001 seeking a stay on demolition, which was granted by this Court on 15.12.2006.
23] In the meantime, the Petitioner and Society entered into yet another supplementary agreement on 5.09.2006 in relation to development in or upon the said property. In the annual general meeting of Society held on 24.12.2006, the execution of supplementary agreement dated 5.9.2006 was ratified.21/110 ::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt 24] On 20.2.2007, Mithi River Development and Protection Committee issued NOC for construction of transit camp. The State of Maharashtra also issued a similar NOC on 27.2.2008. In the light of such NOCs, the SRA on 3.4.2008 revoked its earlier order dated 29.5.2006, by which the construction on the transit camp had been stopped. The Petitioner and Society, in the light of the order dated 03.04.2008 applied for and were permitted on 7.4.2008 to withdraw Writ Petition No. 2269 of 2001.
25] In terms of supplementary agreement dated 5.9.2006, since the area of tenements to be awarded to the slum dwellers/occupants had been increased from 225 square feet to 269 square feet, the Petitioner submitted application for sanction of fresh building plans. The Society also executed a fresh power of attorney dated 19.5.2008 in favour of the Petitioner, which came to be registered on 31.5.2008.
26] Thus, the period between 1992 to 2009 was taken up predominantly by the aforesaid issues. As expected, the Petitioner lays blame upon the disgruntled members of the Society and authorities for the inability to actually undertake construction or development activities in or upon the said property during this 22/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt period. The Society now asserts that such failure was for reasons attributable to the Petitioner. During this period, as noted earlier, apart from the completion of two buildings and a transit camp, no other development was in fact carried out in or upon the said property.
27] In the backdrop of the aforesaid, elections were held on 12.10.2008 to constitute a new managing committee to the Society.
It is the case of the petitioner that most of the members so elected were members who were opposed to the Petitioner continuing as a developer. Such members were instrumental in initiating various proceedings against the Petitioner which had the effect of stalling development and construction activities in or upon the said property.
It is also the case of the Petitioner that the constitution of new managing committee is contrary to the provisions contained in Circular Nos. 54 and 80 issued by the SRA and such constitution is subject matter of challenge in the second Cooperative Court in Dispute No. 308 of 2009. It is further the case of the Petitioner that by order dated 14.02.2013, the Joint Registrar, SRA has ruled that four members of the managing committee are ineligible to hold office. In an appeal under Section 154 of the Maharashtra Cooperatives Societies Act, 1960, the Hon'ble Minister, Cooperation 23/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt and Textile has granted interim stay on 28.02.2013 pending decision in the appeal. These proceedings are stated to be pending before the respective authorities.
28] The General Body of the Society, in its meetings held on 22.02.2009 and 29.03.2009 resolved to cancel all the Agreements between the Petitioner and the Society. It is the case of the Petitioner that this was at the behest of some politicians, who have even attended some meetings in their capacity as 'advisors'. It is the case of the Petitioner that such decisions / resolutions were not even conveyed to the Petitioner well until 24.07.2009.
29] The Society, by its representation dated 05.04.2009 forwarded resolutions dated 22.02.2009 and 23.02.2009 to the SRA, urging the removal of the Petitioner as a developer.
30] In response to the representation dated 05.04.2009, the Deputy Chief Engineer, SRA issued notice dated 19.05.2009 requiring the Petitioner and the Society to attend his Chambers on 20.06.2009. On this date, the Society raised objections to the conduct of proceedings by Deputy Chief Engineer, on the ground that under Section 13(2) of the Slum Act, only, CEO, SRA is 24/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt empowered to take any decisions in the matter of removal of developer. It is the case of the Society that except for urging of such objection, no further submissions were made by and on behalf of the Society, before the Deputy Chief Engineer, SRA. In fact the Society, by its communication dated 03.06.2009 placed on record such objection.
31] By communication dated 15.06.2009, the CEO, SRA rejected the request of the Society for change of developer. It is the case of the Petitioner that such communication was issued after the CEO, SRA heard both the parties. However, it is the case of the Society that at no stage prior to the issuance of communication dated 15.06.2009, the CEO, SRA heard the Society. Accordingly, it is the case of the Society, that the decision contained in the communication dated 15.06.2009 is in gross violation of principles of natural justice and fair play and was in fact not a decision under Section 13 (2).
32] The Society addressed a representation dated 17.06.2009 protesting against the decision contained in communication dated 15.06.2009. The CEO, SRA thereupon, issued notice dated 03.07.2009 requiring the Petitioner and the Society to attend his 25/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt office for a hearing on 07.07.2009. The Petitioner has pointed out that a copy of this letter was addressed to Mr. Sachin Ahir, Minister of Housing. In the meeting/hearing on 07.07.2009, the said Minister for housing remained personally present in the Chamber of CEO, SRA.
33] It is the case of the Petitioner that in the course of the meeting/hearing held on 07.07.2009, the representative of the Society stated that they had already terminated the agreements with the Petitioner. By a communication dated 24.07.2009, the advocates for the Society communicated a letter/Resolution terminating the agreements and further proceeded to revoke the power of attorney issued by the Society in favour of the Petitioner / its nominees. As there was no clarity in the minutes, the Petitioner by its communication dated 16.07.2009 made a record of such minutes by addressing the same to the CEO, SRA.
34] The CEO, SRA issued show cause notice dated 08.09.2009 under Section 13(2) of the Slum Act to the Petitioner, requiring the Petitioner to show cause as to why it should not be removed as developer on the allegations / charges referred to therein. The Petitioner submitted a detailed response dated 17.09.2009 denying 26/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt the allegations / charges. The Petitioner also pointed out that the CEO, SRA by its communication dated 15.06.2009 had already rejected such request and there was no variation or change in circumstances warranting any exercise of powers under Section 13(2) of the Slum Act.
35] On or about 14.09.2009, the Society entered into a Development Agreement with J.G. Developers Pvt. Ltd., Respondent No. 4 herein for the development of the said property.
The Petitioner, thereupon, instituted Arbitration Petition No. 885 of 2009 under Section 9 of the Arbitration and Conciliation Act, 1996, seeking inter alia interim reliefs against the Society in the matter of cancellation / termination of agreements entered into between the Petitioner and the Society. On 30.10.2009, Vacation Judge of this Court recorded a statement made by and on behalf of the Society to the effect that it would not act upon any decision that may be taken in the General Body Meeting to be held on 01.11.2009. The relevant extract of the order dated 30.10.2009 reads thus :
"2. Mr. Shah learned counsel for the Respondents makes a statement that whatever decision that may be taken in this meeting will not be implemented till 4 th November, 2009. Statement accepted. Stand over to 3rd November, 2009. Needless to mention that rights and contentions of the respective parties are expressly kept open to be agitated in the main proceedings.
All concerned to act on an authenticated copy of this order."27/110 ::: Downloaded on - 22/06/2014 23:28:43 :::
skc/dss 5.13 - J.odt 36] In the month of October 2010, one Nandu Palav, a member of the Society filed Complaint No. 30 with the Anti Corruption Bureau alleging irregularities in the implementation of the development project. The complaint was then referred to the HPC, since the veracity of entries in Annexure II was in issue. On 12.10.2010 the HPC granted a 'status quo' in the matter. The Petitioner submitted response before the HPC and ultimately on 21.05.2011, despite opposition from the Society, the HPC restricted its 'status quo order' to only 79 disputed entries in Annexure II. It is the case of the Petitioner that on account of the status quo order issued by the HPC on 12.10.2010, the applications for modification of plans / approvals was not processed by the SRA.
37] Consequent upon the modification of the status quo order as aforesaid, the Petitioner applied to the SRA to process the applications seeking modifications / approvals in plans, which were pending with the SRA since 2008. This was followed by a reminder dated 16.07.2011.
38] As period of almost two years had expired since issuance of show cause notice dated 08.09.2009, the Society addressed yet another representation dated 02.06.2011 urging removal of the Petitioner. Accordingly, the CEO, SRA issued yet another show 28/110 ::: Downloaded on - 22/06/2014 23:28:43 ::: skc/dss 5.13 - J.odt cause notice dated 11.08.2011 under Section 13(2) of the Slum Act.
The text of this show cause notice dated 11.08.2011, which is the basis for issuance of the impugned orders, is transcribed below for convenience of reference:
"Slum Rehabilitation Authority Administrative Bldg., Anant Kanekar Marg, Bandra (E), Mumbai-51 No.: SRA/ENG/DESK-3/2011/7783/HE To, M/s. Susme Builders Pvt. Ltd., Unit No.F/1, 1st Floor, Shanti Nagar, Coop. Indl. Estate Ltd., Mumbai-400 055.
Sub.: Show Cause Notice under provision of Section 13(2) of Maharashtra Slum Areas (I.C & R) Act, 1971, in respect of Slum Rehabilitation Scheme on plot bearing CTS No.7627, 7627/1 to 852 of Village Kolekalyan, Santacruz (E), for "Om Namo Sujlam Sufalam CHS Ltd.".
Ref. : SRA/ENG/110/HE/PL/LOI,dt.08/09/2009 Sir, Whereas the society of existing slum dwellers on plot bearing CTS No.7627, 7627/1 to 852 if village Kolekalyan, Santacruz (E) known as "Om Namo Sujalam Sufalam CHS Ltd." through their appointed Architects submitted the proposal to slum Rehabilitation Authority as per provisions of Appendix IV of DCR 33 (10).
And whereas, the Competent Authority i.e. Addl. Collector (Enc) has issued certified Annexure II for the existing slum on plot bearing CTS No.7627, 7627/1 to 852 of village Kolekalyan, Santacruz (E) for, "Om Namo Sujalam Sufalam CHS Ltd." certifying the eligibility of slum dwellers etc. therein.
And whereas, the society of the slum dwellers had appointed developer M/s. Susme Builders Pvt. Ltd. as a 29/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt "Developer" for implementation of Slum Redevelopment Scheme on aforesaid plot.
And whereas the Slum Redevelopment Scheme proposal was approved on 5.4.1995 for 14 nos. of buildings by the S.R. D. Authority. The IOD and C.C. of two rehab building were issued by SRD authority on 15.1.1996 and 20.4.1996 respectively. SRD Scheme was later converted into SRA and fresh LOI was issued on 27/01/1998. Two rehab building were constructed and 178 t/w. Out of 852 eligible t/s. were rehabilitated in these buildings after issue of O.C. from SRA.
And whereas you have failed and neglected to observe and comply with terms and conditions imposed upon you by the Slum Rehabilitation Authority from time to time, as enumerated in Annexure I attached herewith.
And whereas it is complained by the society of slum dwellers that you have delayed the scheme inordinately and accordingly failed to prove the rehabilitation units to the eligible slum dwellers within the time period promised by the developer at the time of agreements. As such, you have committed the breach of the terms and conditions of the sanctioned scheme.
And whereas resolved by the society of slum dwellers vide GBR dated 22.2.2009 that you have failed and neglected to implement development work within stipulated time period and society has decided unanimously to terminate/cancel your appointment as developer, M/s. Susme Builders Pvt. Ltd. And has decided to appoint new developer for the development of the S.R. Scheme. Slum Rehabilitation Authority has received complaints regarding not carrying out the work of rehab building. Taking cognizance of the complaints, the work of construction of rehab building is not carried out by you even after lapse of 9-10 years causing inordinate delay in implementation of the scheme.
Therefore, in exercise of the powers conferred upon Slum Rehabilitation Authority under Section 13(2) of Maharashtra Slum Areas (I C & R) Act, 1971, you are hereby directed to show cause within a period of 15 days 30/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt as to why the Slum Rehabilitation Authority should not determine to develop the land occupied by slum structures of plot bearing CTS No.7627, 7627/1 to 852 of village Kolekalyan, Santacruz (E) by entrusting it to any other agency for the purpose of completion of the Scheme/work of S.R. Scheme for "Om Namo Sujalam Sufalam CHS. Ltd."
yours faithfully, sd/-
Chief Executive Officer Slum Rehabilitation Authority ANNEXURE - I S.R. Scheme on plot bearing No.7627/1 to 852 of village Kolekalyan, Santacruz (E), for "Om Namo Sujalam Sufalam CHS.Ltd.".
1) The LOI for conversion of SRA scheme into SRA Scheme was issued u / no. SRA/ChE/110/HE/PL/LOI, dt.27/01/1998. It is reported by the Secretary that the developer has failed and neglected to complete the work of Rehab building within the stipulated period as per LOI condition and committed the breach of the terms and conditions of the sanctioned S.R. Scheme.
2) As per complaint of society, the Developer have not taken effective steps for speedy implementation of Scheme and shown will full negligence."
39] Both, the Petitioner and the Society submitted their detailed responses in the matter. The Petitioner, in addition, relied upon the previous response dated 17.09.2009. At this stage, it is pertinent to note that the Petitioner did not raise any objection to the jurisdiction or authority of the CEO, SRA to either issue the show cause notice or proceed with the proposed action under Section 13(2) of the Slum Act.
31/110 ::: Downloaded on - 22/06/2014 23:28:44 :::skc/dss 5.13 - J.odt 40] The CEO, SRA, offered the Petitioner and the Society opportunity of hearing on 04.10.2011. In the course of such hearing, there is no record of the Petitioner having objected to the jurisdiction and authority of the CEO, SRA to proceed with the matter. The participation of the Petitioner in such proceedings before the CEO, SRA was without protest or demur.
41] The CEO, SRA then passed the impugned order dated 24.02.2012 under Section 13(2) of the Slum Act, interalia directing the removal of the Petitioner as a developer.
42] On or about 09.03.2012, the Petitioner preferred an appeal against the order dated 24.2.2012 to the HPC upon various grounds detailed in the memo of appeal. There does appear to be a ground that the CEO, SRA does not have power under Section 13(2) of the Slum Act. However, the said ground was in the context of the Petitioner's case that in absence of the said property being declared "Slum Rehabilitation Area", the provisions of Section 13(2) as applicable to Chapter I-A of the Slum Act are inapplicable and consequently the authority competent to act under Section 13(2) of the Slum Act (de hors Chapter I-A) would be "competent authority"
as defined under Section 3 of the Slum Act and not the CEO, SRA.32/110 ::: Downloaded on - 22/06/2014 23:28:44 :::
skc/dss 5.13 - J.odt This is clear from reference to ground 'd' of the memo of appeal, which reads thus:-
"(d) The power under Section 13(2) (without reference to Chapter I-A) is to be exercised by the Competent Authority. The Competent Authority is defined under Section 3. Respondent No.1 is not notified as Competent Authority under Section 3. Thus, even on this count, the impugned order is a nullity."
43] Save as aforesaid, there does not appear in the memo of appeal, any specific ground to the effect that the power under Section 13(2) of the Slum Act is to be exercised by the entire body constituting the SRA and not by the CEO, SRA. As noted earlier, such objection was not raised by the Petitioner in response to the show cause notices dated 08.09.2009 and 11.08.2011 either. No such objection was raised in the course of proceeding/personal hearing before the CEO, SRA on 04.10.2011 or for that matter at any stage prior to passing of the impugned order dated 24.02.2012.
44] The HPC by its order dated 18.6.2012 dismissed the Petitioner's appeal and upheld the impugned order dated 24.02.2012. The Petitioner, thereupon preferred Writ Petition (L) No. 1718 of 2012 questioning the order dated 18.6.2012, inter alia, on the ground that the CEO, SRA who had passed an original order dated 24.02.2012 was also a member of HPC which dismissed the appeal against the same by its order dated 18.06.2012. On this 33/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt limited ground, the Writ Petition (L) No. 1718 of 2012 was allowed by the Division Bench of this Court and the HPC's order dated 18.06.2012 was set aside and the matter remanded to the HPC for fresh consideration of the Petitioner's appeal against the original order dated 24.02.2012 by ensuring that the CEO, SRA, who had passed the original order dated 24.02.2012 does not associate himself with the HPC in the matter of deciding Petitioner's appeal against the impugned order dated 24.02.2012. The relevant extract of order dated 24.08.2012 passed by the Division Bench of this Court in Writ Petition (L) No.1718 of 2012 reads thus:-
"Before concluding we wish to make a few issues clear. We have not cast any aspersions on the members of the Committee. We have not commented on the allegation of actual bias on the part of the CEO and have only examined the issue of 'reasonable apprehension of bias'. These two issues are separate. We have also not concluded whether the power exercised by the CEO is judicial or administrative one. That facet was considered only in relation to the argument regarding bias. We have not decided the merits of the dispute.
Accordingly, we hold that the participation of the CEO, Shri. Zende in the High Power Committee entertaining an appeal challenging his own order of removing the petitioner as a developer, inspite of a specific objection, created a reasonable apprehension of bias in the mind of the petitioner and on this count the order passed by the High Power Committee is vitiated. In the result, the impugned order passed by the High Power Committee dated 18 June 2012 is quashed and set aside and the High Power Committee is directed to decide the appeal filed by the petitioner, keeping in mind the observations made above, within six weeks from today. All other points on merits are expressly kept open. Petition is disposed of accordingly."34/110 ::: Downloaded on - 22/06/2014 23:28:44 :::
skc/dss 5.13 - J.odt 45] On remand, the HPC reconsidered the Petitioner's appeal, but dismissed the same by its order dated 10.10.2012.
46] The impugned orders dated 24.02.2012 and 10.10.2012, in sum and substance state that the Petitioner is responsible for the delay in the completion of the project and the Petitioner has failed to comply with requirement of obtaining consents from atleast 70% of the eligible slum dwellers. On these grounds, the impugned orders remove the Petitioner as a developer. The impugned orders also take note of the appointment of the Respondent No. 4 as developer. However, the impugned orders neither appoint nor approve the appointment of the Respondent No. 4 as new developer. The learned counsel for the contesting Respondents expressly stated that the impugned orders do not approve the appointment of Respondent No.4 as the developer. They agree that the appointment of Respondent No.4 would require approval in accordance with law. In view of those statements, with which we agree, it is not necessary to consider the submission regarding the validity of the impugned orders on the basis that Respondent No.4 was appointed by virtue thereof.
47] The Petitioner, upon learning of the appointment of
35/110
::: Downloaded on - 22/06/2014 23:28:44 :::
skc/dss 5.13 - J.odt
Respondent No. 4 as the new developer, applied for and obtained leave for withdrawal of Arbitration Petition No. 885 of 2009 (under Section 9 of the Arbitration and Conciliation Act, 1996) and Arbitration Application No. 169 of 2009 (under Section 11 of the Arbitration and Conciliation Act, 1996) with liberty to file the comprehensive suit. Such comprehensive suit being Civil Suit No. 1588 of 2012 came to be filed on or about 10.07.2012. The reference to proceedings in comprehensive Civil Suit No. 1588 of 2012 is only for the purpose of noting that such comprehensive suit seeking reliefs of specific performance and/or damages is pending before the Single Judge of this Court. The reliefs applied for in the comprehensive Civil Suit No. 1588 of 2012, read thus:
"(a) That this Hon'ble Court be pleased to declare that the letter of Termination dated 14.7.2009 issued by the Defendant No.1 Society thereby terminating the Development Agreement viz. Agreement dated 10th July 1995 read with Supplemental Agreement dated 7th January 1998 read with Supplemental Development Agreement dated 5th September 2006 read with Powers of of Attorney dated 20th June 1995 and 18th May 2008 as illegal and bad in law;
(b) That this Hon'ble Court be pleased to declare that the Development Agreement viz. Agreement dated 10th July 1995 read with Supplemental Agreement dated 7th January 1998 read with Supplemental Development Agreement dated 5th September 2006 read with Powers of of Attorney dated 20th June 1995 and 18th May 2008 are valid, subsisting and binding on the parties;
(c) an order and Decree of this Hon'ble Court directing the Defendant No.1 Society to specifically perform its 36/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt obligations as cast in the Development Agreement viz.
Agreement dated 10th July 1995 read with Supplemental Agreement dated 7th January 1998 read with Supplemental Development Agreement dated 5th September 2006 read with Powers of of Attorney dated 20th June 1995 and 18th May 2008 and to do all such acts that are necessary to achieve the object of the said Agreements;
(d) that in the event of this Hon'ble Court holding and not otherwise that the Agreement described in prayer clauses above cannot be specifically performed in the alternate, this Hon'ble Court be pleased to :
(i) pass a Decree in favour of the Plaintiff against the Defendants for a sum of Rs.324 crores/-as per the particulars of claim (i.e. Exhibit "VVV") hereto with interest on Rs.2.83 crores /- at the rate of 15% per centum per annum from the date of the suit till payment and/or realisation;
(ii) declare that payment of the amount and interest as per prayer clause (d)(i) above stands duly and validly charged on the Suit Property more particularly described in the Schedule (i.e. Exhibit "A") hereto; and
(iii) for the aforesaid purposes to give all directions, hold enquiries and pass orders that this Hon'ble Court deems fit and proper;
(e) pending the hearing and final disposal of this Suit the Defendant be jointly and severally, by themselves or through their servants, agents and office bearers be restrained by an order and injunction of this Hon'ble Court from:-
(i) acting upon the impugned termination of Agreement dated 10th July 1995, Supplemental Agreement dated 7th January 1998 and Supplemental Development Agreement dated 5th September 2006;
(ia) pending the hearing and final disposal of the present Suit in any manner be jointly and severally, 37/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt by themselves or through their servants, agents and office bearers be restrained by an order of injunction of this Hon'ble Court to act upon the letters terminating the Powers of Attorney dated 20th June 1995 and 18th May 2008;
(ii) in any manner dealing with, disposing off, alienating, encumbering, transferring, creating any their party rights and/or parting with possession of any part or portion of the said property;
(iii) interacting with and/or corresponding with any authority whereby the rights of the Plaintiffs in the Suit Property is affected in any manner;
(iv) from in any interfering with the Plaintiffs' possession over the said property and/or discharge of Plaintiffs' obligations over the said property.
(f) pending the hearing and final disposal of the Suit, the Court Receiver, High Court Bombay be appointed as Receiver of the Suit Property will all powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908 including the power to protect the possession of the Plaintiff over the Suit Property including with the help of Police, if necessary;
(g) pending the hearing and final disposal of this suit the plaintiffs be permitted to amend the plaint pursuant to the period of 60 days from the date of notice issued under
(h) for interim and ad interim reliefs in terms of prayers
(e) and (g) above;
(i) for such further and other reliefs as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case."
48] On 03.08.2012, ad interim relief in Notice of Motion No. 1640 of 2012 in Civil Suit No. 1588 of 2012 was declined by the learned Single Judge. The statement made by and on behalf of the Society 38/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt on 30.10.2009 in Arbitration Petition No. 885 of 2009 was continued upto 27.08.2012.
"39. Shri Samdani, the learned Counsel appearing on behalf of defendant no. 1 states that the arrangement which was made by the learned judge disposing of arbitration application and which was continued by this Court, would continue to operate till 27th August, 2012."
49] The Petitioner then preferred an Appeal (L) No. 612 of 2012 against the judgment and order dated 03.08.2012, which came to be dismissed as withdrawn by the Division Bench of this Court.
However, the Division Bench requested the Single Judge to take up Notice of Motion No. 1640 of 2012 for adjudication within a time bound schedule and directed that the statement made by and on behalf of the Society and as recorded in paragraph 39 of the judgment and order dated 03.08.2012 shall continue until the final disposal of the Notice of Motion. Based upon the same, it is the case of the Petitioner that the statement made on behalf of the Society on 30.10.2009 to the effect that the decision for the appointment of Respondent No.4 as a new developer shall not be approved by the general body of the Society continues to remain in operation. However, it is the case of the Society that in view of subsequent events, which have overtaken the position prevalent in the year 2012, there arises no question of statement or its effects 39/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt remaining in force.
50] In the context of subsequent events, the Society mainly relies upon an LOI dated 29.10.2012, commencement certificate dated 03.12.2012 and approval modified plans on 07.12.2012 by the authorities formally appointing or approving the appointment of Respondent No. 4 as a developer in the place of the Petitioner. At this stage, it must be noted that from the perusal of reliefs in the present petition, it is clear that there is no challenge to LOI dated 29.10.2012, Commencement Certificate dated 03.12.2012 or the approval plans dated 07.12.2012. The parties are at liberty to adopt appropriate proceedings regarding this aspect as well.
51] There are also some proceedings pending before the Authorities constituted under the Maharashtra Cooperative Societies Act, 1960 with regard to the constitution of the managing committee of the Society and criminal complaints. However, as the same are not relevant for adjudication of the issues raised in the present petition, no detailed reference is made to the same.
52] In the backdrop of the aforesaid facts and circumstances, Mr. Sancheti, the learned Senior Advocate appearing for the Petitioner 40/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt has made the following submissions, in support of the petition:
(a) Firstly, there is no declaration under Section 3C(1) of the Slum Act, declaring the said property as 'Slum Rehabilitation Area' in terms of Section 2(h-b) of the Slum Act. In absence of such a declaration, the provisions contained in Section 13(2) of Chapter I-A under which the impugned order dated 24.2.2012 has been passed, are themselves inapplicable. Accordingly, the impugned order dated 24.2.2012 is ultra vires, null and void;
(b) Secondly, without prejudice to the submission at (a) above, it is submitted that the prescribed authority to take action under Section 13(2) of Chapter I-A of the Slum Act is the 'Slum Rehabilitation Authority' as defined under Section 2(h-c) and not 'Chief Executive Officer' as defined under Section 2(ba) of the Slum Act. In the present case, the impugned order dated 24.02.2012 has been passed by the 'Chief Executive Officer' and not the 'Slum Rehabilitation Authority'. Accordingly, the impugned order dated 24.02.2012 is ultra vires, null and void;
(c) Thirdly, without prejudice to the submission at (b) above and assuming that "Chief Executive Officer" is the 41/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt appropriate authority to take action under Section 13(2) of Chapter I-A of the Slum Act, then the "Chief Executive Officer" by communication dated 15.6.2009 had already rejected the request of the Society to change the Petitioner as developer. Therefore, the "Chief Executive Officer" lacked jurisdiction and authority to pass the impugned order dated 24.02.2012 removing the Petitioner as a developer, for two reasons:
(i) In doing so, the CEO has virtually reviewed his earlier order dated 15.06.2009 although there is no provision under the Slum Act which vests any power of review in the CEO and it is settled position in law that power of review is never inherent;
(ii) The exercise of power which has culminated in the issuance of the impugned order dated 24.02.2012 is barred by principles of res judicata or principles analogous thereto;
(d) Fourthly, there is breach in the principles of natural justice and fair play in issuance of the impugned order dated 24.02.2012 by the CEO, SRA. The show cause notices dated 8.09.2009 and 11.08.2011 made reference only to the ground of delay in implementation of the 42/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt project. However, the impugned order dated 24.02.2012 is premised upon an additional ground i.e, the alleged failure on the part of the Petitioner to obtain consents from 70% of the eligible hutment dwellers. The impugned order dated 24.02.2012, thus has travelled beyond the allegations contained in the show cause notices dated 8.9.2009 and 11.08.2011. This, it is submitted, is clearly in violation of principles of natural justice and fair play.
(e) Fifthly, there is no requirement either under the Slum Act or under DCR 33(10) or under the LOI dated 27.01.1998, which mandates the obtaining of the consents from 70% of the eligible hutment dwellers, where a project under SRD Scheme is permitted to be converted into a project under the SRA Scheme. The impugned orders dated 24.02.2012 and 10.02.2012, to the extent they proceed on the basis that such a mandatory requirement exists and that the same was not complied, are illegal, null and void;
(f) Sixthly, without prejudice to the submission at (e) above, a Division Bench of this Court in its judgment and 43/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt order dated 13.12.1999 in Writ Petition No. 1301 of 1999 has already ruled that the LOI dated 27.01.1998 is not liable to be struck down for alleged want of consent from 70% of the eligible hutment dwellers. This decision is binding upon CEO, SRA, who was a party to Writ Petition No. 1301 of 1999. As such, it was not open for CEO, SRA or HPC to take any contrary view in the matter. To the extent the impugned orders take such a contrary view, the same are clearly illegal, null and void.
(g) Seventhly, the findings in the impugned orders that the project was unreasonably delayed by the Petitioner are vitiated by perversity, unreasonableness and non application of mind.
(h) Eighthly, the impugned orders have been issued at the behest of certain politicians who have direct interest in the scheme and consequently, the impugned orders are vitiated by mala fides.
53] By an order made in Chamber Summons No. 158 of 2013, some of the hutment dwellers were permitted to intervene in the present proceedings. Mr. S.U. Kamdar, the learned Senior Advocate 44/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt appearing for the intervenors submitted that the appointment of Respondent No. 4 as a new developer was contrary to SRA Scheme under DCR 33(10), inter alia, on the ground that Respondent No.4 had offered to provide the hutment dwellers, tenements in excess of 225 sq. ft, which according to Mr. Kamdar, is impermissible.
54] As noted earlier, the challenge in the present Petition is restricted to the impugned orders dated 24.02.2012 and 10.10.2012, which concerns removal of the Petitioner as developer.
The impugned orders neither appoint nor approve the appointment of Respondent No.4 as new developer. The Advocates appearing for the Society and Respondent No. 4 have made this position clear.
The HPC, in its order dated 10.10.2012 has also rightly made this position clear by observing thus :-
" ........On perusing the impugned order passed by the CEO, SRA, it is also seen that the CEO, SRA has only noted that a new Developer has been appointed by the society and that Society has executed Agreement with the new Developer. Therefore, the CEO, SRA has only recorded that the Society is at liberty to get the Scheme implemented through their newly appointed Developer as per the provisions of law."
The reliefs in the present Petition are also directed against the impugned orders dated 24.02.2012 and 10.10.2012. There is no challenge in this Petition to LOI dated 29.10.2012, Commencement 45/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt Certificate dated 03.12.2012 and Approval of Plans dated 07.02.2012 independently. In such circumstances, we did not deem it necessary to permit Mr. Kamdar to advance any submissions with regard to the competence or otherwise of Respondent no. 4 to be appointed as the new developer qua the said property. Accordingly, such issues are kept expressly open and no opinion whatsoever is expressed in that regard.
55] Mr. Samdani, Mr. Ravi Kadam and Mr. V.R. Dhond, the learned Senior Advocates appearing for the Society; CEO, SRA;
and Respondent No. 4 respectively, countered each of the contentions raised by Mr. Sancheti and submitted that the present petition be not entertained, in view of the following :
(a) The issues raised in the present petition primarily pertain to private law disputes or civil disputes arising out of breach of contract. There are disputed questions of fact which may not be conveniently gone into by this Court in the exercise of its extra-ordinary powers under Articles 226 and 227 of the Constitution of India. The Petitioner has already instituted civil proceedings, which are pending adjudication. In order to reinstate himself as a developer, the Petitioner necessarily has to obtain reliefs in the pending civil proceedings. In such circumstances, the 46/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt reliefs as prayed for in the present petition will not be complete in themselves. All these factors dis-entitle the Petitioner to even maintain the present writ petition;
(b) The facts on record would reveal that the Petitioner had obtained approvals/sanctions under the SRA Scheme by practicing misrepresentation and holding out to the authorities that it has consents from 70% of the eligible hutment dwellers. In any case, the Petitioner obtained approvals/sanctions upon furnish of undertakings that such requirement of obtaining consents from at least 70% of the eligible hutment dwellers would be complied with. At the stage when the impugned orders came to be passed or for that matter even at this stage, the Petitioner is in no position to comply with such undertakings of obtaining consents from at least 70% of the eligible hutment dwellers. As this issue of obtaining consents from at least 70% of the eligible hutment dwellers goes to the very root of the matter, no useful purpose would be served by grant of any relief to the Petitioner, based upon technicalities and hyper technicalities. For this reason, the extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution 47/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt of India may not be exercised in favour of the Petitioner.
(c) From the year 1986 to 2012, the Petitioner has failed to carry out any worthwhile development in or upon the said property. During this period of 26 years, the Petitioner has put up only two buildings from out of the originally projected 15 buildings. In respect of these two buildings, the Petitioner has already availed TDR and even sold the same in the open market. For reasons clearly attributable to the Petitioner, despite the lapse of almost 26 years, the project has not seen the light of the day. In these circumstances, the Society comprising hutment dwellers is entitled to and has cancelled the development agreement with the Petitioner. If the Petitioner is reinstated as developer, there is no possibility of the project advancing any further. The new developer, i.e., Respondent No. 4 has committed to complete the project within a period of 22 months. More than 70% of the eligible hutment dwellers have furnished fresh consents in favour of Respondent No.
4. Based upon the same, Respondent No. 4 has already obtained necessary permissions/approval of plans.
Respondent No. 4 has committed to provide additional 48/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt built-up area of 72000 square feet to the Society and its members. In such circumstances, it would be inequitable to grant the Petitioner any reliefs in exercise of extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. In case the Petitioner has any issues with regard to termination of the development agreement and consequent damages, then the same can always be adjudicated in the civil proceedings, which have already been instituted by the Petitioner for the said purpose.
(d) The entire petition is based upon contradictory, technical and hyper technical pleas. The Petitioner has indulged in approbation and reprobation. If the Petitioner's plea as to in-applicability of Chapter I-A of the Slum Act is to be upheld, then the permissions/sanctions which the Petitioner has obtained under Chapter I-A of the Slum Act, themselves are rendered vulnerable. Ultimately, if justice is the by product of even an erroneous exercise of power, then, in exercise of extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India, this Court ought not to lightly displace such justice by upholding the contradictory and hyper technical pleas of the Petitioner.
49/110 ::: Downloaded on - 22/06/2014 23:28:44 :::skc/dss 5.13 - J.odt 56] In the backdrop of the factual setting referred to earlier, the rival contentions now fall for our determination 57] After submissions were made for a considerable length of time on the issue of absence of declaration under Section 3C(1) of the Slum Act and the consequent inapplicability of Chapter I-A and Section 13(2) contained therein, Mr. Sancheti, submitted a written memo to the effect that the Petitioner does not press this issue/contention. Accordingly, there is no reason to deal with this issue/contention any further.
58] Mr. Sancheti then contended that the appropriate authority to take action under Section 13(2) of the Chapter I-A of the Slum Act is the "Slum Rehabilitation Authority" as defined under Section 2(h-c) and not "Chief Executive Officer" as defined under Section 2(ba) of the Slum Act. Mr. Sancheti contended that in the present case since the impugned order dated 24.2.2012 has been passed by the "Chief Executive Officer" and not the "Slum Rehabilitation Authority", the same is void ab initio or null and void.
59] In the aforesaid regard, Mr. Sancheti made specific reference to the definition contained in Section 2 (ba) and 2(h-c) of the Slum 50/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt Act as also the provisions of 13(2) as applicable in Chapter I-A of the Slum Act. The same read thus:
2(ba) - "Chief Executive Officer" means a Chief Executive Officer of the Slum Rehabilitation Authority appointed under sub-section (2) of Section 3A;
2(h-c) - "Slum Rehabilitation Authority" means the Slum Rehabilitation Authority or Authorities appointed by the State Government under Section 3A.
Section 13(2) - Where on declaration of any area as a Slum Rehabilitation Area the Slum Rehabilitation Authority, is satisfied that the land in the Slum Rehabilitation Area has been or is being developed by the owner in contravention of the plans duly approved, or any restriction or conditions imposed under sub-section (10) of section 12, or has not been developed within the time, if any, specified under such conditions, it may, by order, determine to develop the land by entrusting it to any agency recognised by it for the purpose: -
Provided that, before passing such order, the owner shall be given a reasonable opportunity of showing cause why the order should not be passed.";
60] Mr. Sancheti then submitted that SRA as defined under Section 2(h-c) is, in terms of Section 3A(2A) of the Slum Act, a body corporate which has perpetual succession and can sue or be sued in its corporate name. There is a difference between "Slum Rehabilitation Authority" as defined under Section 2(h-c) and "Chief Executive Officer" of Slum Rehabilitation Authority as defined under Section 2(ba) of the Slum Act. Perusal of various provisions of Slum Act would indicate that the legislature has entrusted certain 51/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt functions to the CEO and others to the SRA. In so far as exercise of power under Section 13(2) under Chapter I-A of the Slum Act is concerned, the legislature is clear that such powers shall be exercised by the "Slum Rehabilitation Authority". In such circumstances, exercise of power under Section 13(2) of the Chapter I-A of the Slum Act by the Chief Executive Officer is ultra vires, null and void.
61] Mr. Samdani and Mr. Kadam, in response, submitted that in the first place, the Petitioner did not raise such an issue in answer to the two show cause notices and also in the course of personal hearing before the CEO, SRA. As such, the Petitioner "took its chance" before the CEO, SRA. Merely because an adverse order came to be passed by the CEO, SRA, the Petitioner ought not to be permitted to question the jurisdiction and authority of the CEO, SRA in proceedings under Articles 226 and 227 of the Constitution of India. Secondly, the impugned orders record findings of fact that the Petitioner was responsible for unreasonable delay in completion of the project and further the Petitioner had failed to obtain consents of 70% or more of eligible hutment dwellers. In such a situation, no useful purpose would be served by entertaining the hyper technical plea raised by and on behalf of the Petitioner.52/110 ::: Downloaded on - 22/06/2014 23:28:44 :::
skc/dss 5.13 - J.odt
62] Mr. Samdani and Mr. Kadam further submitted that even
otherwise there is no merit in the plea as raised. They submitted that it has been a consistent practice that the CEO, SRA acts for the SRA in the matters of appointment and removal of developers. In such routine matters, if the SRA which is a body comprising of 14 members including the Chief Minister is expected to act, the approvals of schemes / implementation of projects would be delayed. The SRA, being a body corporate has to act through some official and the CEO, as per dictionary meaning would be 'principal leading head' or the 'highest executive head'. Further, in terms of Section 152 of MRTP, there is clearly a valid delegation of powers from SRA to its CEO. Such delegation enures not merely for the grant of approvals and making of appointments of developer, but also extends to revocation of approvals and removal of developers.
The Petitioner also owes its appointment to such delegation. The provisions of MRTP and the Slum Act have to be read and construed in tandem failing which the entire Scheme would become unworkable and absurd consequences would result. The provisions of Section 21 of the Bombay General Clauses Act, would also apply to such a situation. The impugned orders, promote substantial justice and the same ought not to be upset on basis of such hyper technical pleas at the behest of the Petitioner.53/110 ::: Downloaded on - 22/06/2014 23:28:44 :::
skc/dss 5.13 - J.odt 63] Section 3S of the Slum Act, which provides for delegation of powers, reads thus:
"3S. Delegation of powers of Slum Rehabilitation Authority or Chief Executive Officer. --- The Slum Rehabilitation Authority or the Chief Executive Officer may, delegate any of the powers conferred on them by or under this Act, to any of the officers of the Slum Rehabilitation Authority and permit him to re-delegate such power to his subordinate, by general or special order in this behalf.
64] The aforesaid provision of the Slum Act enables delegation of powers by the SRA to its CEO with further power of re-delegation by way of general or special order in that regard. The question whether there was delegation in terms of Section 3S of the Slum Act, is a question of fact. The Petitioner, as noted above, did not raise such issue either in response to the two show cause notices issued by the CEO, SRA or for that matter, in the course of personal hearing before the CEO, SRA. The Petitioner participated in the proceedings before the CEO, SRA without any protest or demur.
The Petitioner, in the course of such proceedings, placed strong reliance upon the order / communication dated 15.06.2009 issued by the CEO, SRA, declining to change the Petitioner as a developer on earlier occasion. Even in the memo of appeal preferred before the HPC impugning the order dated 24.02.2012, there is no clear ground raised by the Petitioner that powers under Section 13(2) of the Slum Act have to be exercised only by the entire body of SRA 54/110 ::: Downloaded on - 22/06/2014 23:28:44 ::: skc/dss 5.13 - J.odt and not merely its CEO. There was a vague plea raised that the CEO, SRA lacks power under Section 13(2) of the Slum Act. But the same was in the context of the plea that in absence of declaration under Section 3C(1) of the Slum Act, Chapter I-A is itself inapplicable and consequently the appropriate authority to initiate action under Section 13(2) of the Slum Act would be the Competent Authority as defined under Section 3 of Slum Act, and not the CEO, SRA. The HPC however appears to have taken note of the Petitioner's submission and rejected the same. All these aspects establish that the Petitioner did 'take its chance' before the CEO, SRA and merely because the decision is adverse to the Petitioner, the Petitioner has now raised such issue. Such conduct cannot be encouraged in proceedings under Articles 226 and 227 of the Constitution of India. The writ court, in such circumstances can decline to go into the issue as raised, particularly since the Petitioner has failed to lay a proper factual foundation by raising such issue at the earliest instance.
65] In somewhat similar circumstances, the Supreme Court of India in the case of Kedar Sashikant Deshpande Vs. Bhor Municipal Council & ors. - AIR 2011 SC 463 has held that the Petitioner cannot for the first time before the Supreme Court be permitted to 55/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt raise the question that the Additional Collector had no jurisdiction after participation in proceeding before such Additional Collector, without any reservation. The relevant observations are contained in paragraph 14, which read thus:
"14. The next contention raised by the learned counsel for the appellants that the Additional Collector had no jurisdiction to entertain and decide the disqualification petition filed by the respondents because he is not the Collector within the meaning of Section 2(b) of the Act has no substance. As rightly pointed out by the learned counsel for the respondents, this argument was never raised before the Additional Collector who decided the disqualification petition nor this point was raised before the High Court. In Remington Rand of India Ltd. Vs. Thiru R. Jambulingam (1975) 3 SCC 254, this Court, did not allow the plea of lack of jurisdiction to be taken for the first time in an appeal, after the appellant having submitted to the jurisdiction of the Authority in earlier proceedings. The question whether Additional Collector had jurisdiction to entertain and decide the disqualification petition filed by the respondents is essentially a question of fact. It is pertinent to note that Section 13(3) of the Maharashtra Land Revenue Code, 1966 contemplates statutory delegation in favour of the Additional Collector. Whether there was statutory delegation in favour of the Additional Collector in terms of Section 13(3) of the Maharashtra Land Revenue Code, is a question of fact. Therefore, the appellants cannot be permitted to argue for the first time before this Court the point that Additional Collector had no jurisdiction to entertain the disqualification petition filed by the respondents. Even otherwise, the record clinchingly shows that the appellants had submitted to the jurisdiction of the Additional Collector and participated in the proceedings before the Additional Collector without any reservation. Therefore, having lost before the Additional Collector, they cannot turn round and challenge the jurisdiction of the Additional Collector for the first time in the appeals filed under Article 136 of the Constitution. It is well settled that if a person has 56/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt submitted to the jurisdiction of the Authority, he cannot challenge the proceedings, on the ground of lack of jurisdiction of said authority in further appellate proceedings. Had this plea, been raised before the Additional Collector, the respondents would have got the opportunity to place on record notification issued under the provisions of Maharashtra Land Revenue Code, 1966 to establish that the Additional Collector was delegated the powers of the Collector and was competent to decide Disqualification Petition".
66] There are inherent inconsistencies and contradictions in the Petitioner's plea. There is no serious dispute that the Petitioner owes its appointment to the exercise of powers under Section 12(10) as applicable to Chapter I-A of the Slum Act. Section 12(10) reads thus :
"12 (10) Subject to the provisions of this Act, and of any other law for the time being in force in relation to town planning and to the regulation of the erection of buildings where a clearance order has become operative, the owner of the land to which the [clearance order] applies, may redevelop the, land in accordance with the plans approved by the Competent Authority, and subject to such restrictions and conditions (including a condition with regard to the time within which the redevelopment, shall be completed), if any, as that Authority may think fit to impose :
Provided that, an owner who is aggrieved by a restriction or condition so imposed on the user of his land, or by a subsequent refusal of the Competent Authority to cancel or modify any such restriction or condition may, within such time as may be prescribed, appeal to the Tribunal and its decision shall be final.
67] The aforesaid provision stands modified in its application to Chapter I-A of the Slum Act. The modification is brought about by 57/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt Section 3D, the relevant extract of which reads thus :
"Section 3D - On publication of the Slum Rehabilitation Scheme under sub- section (1) of section 3B, the provisions of other Chapters of this Act shall apply to any area declared as the slum rehabilitation area, subject to the following modifications, namely:-
(a) ..................
(b) in Chapter IV,-
(i) ................
(ii) in section 12,-
(A) ...............
(B) ..............
(C) ..............
(D) ..............
(E) in sub-section (7), for the words "Competent Authority" the words "Chief Executive Officer" shall be substituted;
(F) in sub-section (8), for the words "Competent Authority" the words "Chief Executive Officer" shall be substituted ;
(G) in sub-section (9), for the words "Competent Authority", wherever they occur, the words "Chief Executive Officer" shall be substituted (H) in sub-section (10),-
(a) for the words "Competent Authority"
the words "Slum Rehabilitation Authority"
shall be substituted:
(b) .........
(i) .........
(ii) .........
(iii) ..........
(emphasis supplied)
68] Thus, Section 12(10), similar to Section 13(2) as applicable to Chapter I-A of the Slum Act, makes reference to exercise of power by SRA and not CEO, SRA. If therefore the contention of the Petitioner is to be accepted, then by the same logic it shall have to be held that the power under Section 12(10) shall have to be 58/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt exercised by SRA and not CEO, SRA. The permissions / approvals and appointments upon which the Petitioner relies, have all been issued, not by the SRA or rather the entire body of members comprising the SRA, but by officers of SRA like the CEO, SRA. If the contention of the Petitioner is to be accepted qua exercise of powers under Section 13(2), then the same logic would void the very appointment of the Petitioner as developer or at least render such appointment seriously questionable. If by accepting the Petitioner's contention, we are persuaded to strike down the impugned order on the ground that the CEO, SRA was not a Competent Authority to issue the same, then in effect, we would be reviving the Petitioner's appointment made by the very same authority, when Section 12(10) of the Slum Act also makes reference to SRA and not CEO, SRA. In the exercise of extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India, such an approach has to be avoided. The inherent inconsistencies and contradictions in the Petitioner's contention, is a legitimate ground for not going into such issue at the behest of the Petitioner.
69] The further contention that CEO, SRA has the power to make appointments and grant planning permissions based upon delegation under Section 152 of the MRTP but does not have the 59/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt power to remove a developer or to revoke approval, is again riddled with inconsistencies and contradictions. If the power to grant approval or make appointment of developer is conceded to the CEO, SRA, on basis of delegation under Section 152 of the MRTP, then we fail to understand as to why the provisions of Section 21 of the Bombay General Clauses Act, 1904, could not be pressed into service to read powers to revoke, rescind or remove in the CEO, SRA. Section 21 of the Bombay General Clauses Act, reads thus:
"21. Where, by any Bombay Act [or Maharashtra Act], a power to issue notifications, orders, rules or by-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or by-laws, so issued."
70] Mr. Sancheti, in the course of his arguments handed a note / submission on the aforesaid aspect. Though clause 9 of the note is most relevant, it is safer to quote the entire note in order to appreciate the context.
"Position of SRA/CEO as a Planning Authority
1. SRA is a planning authority u/s. Section 2(19) of the Maharashtra Regional and Town Planning Act, 1966.
("MRTP Act").
2. Section 12(10) permits the owner, "to develop the land in accordance with the plan approved by SRA".
However, the approval of plans is not under this section. Moreover, the section begins with the words, "Subject to law for the time being in force in relation to town planning and erection of buildings."
3. Under the MRTP Act the Planning Authority is the concerned authority for approval of plans under Section 60/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt 45.
4. The second proviso in Section 152(4) also permits the State Government (by notification) to delegate the powers exercised by SRA under Section 45 of the MRTP Act, acting as Planning Authority to the CEO.
5. Under Development Control Regulation 33(10); Appendix IV clause 2.1 to 2.5 SRA is authorised to approve the plans SRA is required to adopt the procedure laid down in MRTP for giving building permissions and the permissions "shall be given in accordance with the provisions of Section 45 of MRTP Act."
6. Thus under all the relevant provisions of law i.e. under the MRTP Act, Slum Act, DCR, it is the SRA which is the Planning Authority and is conferred the power to approve the plans as per Section 45 of the MRTP Act.
7. Section 12(10) expressly is made "subject to law in relation to town planning (MRTP)".
8. Since SRA is constituted by an specific enactment i.e. Slum Act, even if proviso to Section 152(4) permits delegation of authority to CEO, such delegation by SRA could only be done under the provisions of the Act constituting it i.e. the Slum Act.
9. SRA's Resolution dated 13.9.1996 notes that the authority for approval of plans is required to be delegated for approval of plans is required to be delegated to CEO and requests Government to issue Gazette Notification under proviso to 152 (4). Hence it is evident that in passing the above resolutions SRA has delegated authority to CEO by exercising powers of delegation u/s. 3S of the Slum Act.
(emphasis supplied) 71] In the aforesaid note, Mr. Sancheti virtually concedes delegation under Section 3S of the Slum Act by the SRA to the CEO. If this be the position, then the further contention that CEO, SRA has the power to appoint a developer but lacks the power to revoke such appointment even when it is established that such 61/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt developer has breached the terms subject to which such appointment came to be made, does involve serious inconsistencies and contradictions. As noted earlier, both Section 12(10) and Section 13(2) as applicable to Chapter I-A of the Slum Act, make reference in its text to the 'SRA' and not to 'CEO, SRA'.
Mr. Sancheti in his note / submission suggests harmony in interpretation of the provisions of Slum Act and the MRTP for the purpose of its effective implementation. There is no reason then, for such harmony to have full play in so far as appointment of the developer is concerned but fall short when it comes to the removal of such developer. We indicate all this, only for the limited purpose of pointing out the inherent inconsistencies and contradictions in the case set up by the petitioner. All these considerations are, in our opinion, sufficient grounds to decline to go into the issue as raised by the Petitioner.
72] Besides, for reasons indicated in the later part of this judgment, we do not propose to interfere with the findings recorded in the impugned order on the aspect of Petitioner being responsible for the inordinate delay in completion of the project and the Petitioner's failure to obtain consents from 70% or more of the eligible hutment dwellers. The requirement of obtaining 70% or more consents from the eligible hutment dwellers is verifiable by 62/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt objective standards, irrespective of whether the determining authority is the SRA or the CEO, SRA. As such, no purpose would be served by entertaining the plea as raised by the Petitioner.
73] In the case of State of State of Maharashtra & ors vs. Prabhu
- (1994) 2 Supreme Court Cases 481, the Supreme Court observed that one of the principles inherent in the exercise of its equity jurisdiction is that the exercise of power should be for the sake of justice. One of the yardstick for it, is if quashing the order results in greater harm to the Society, then the Court may refrain from exercising such power. Even assuming that there may have been a technical breach and the show cause notice did not spell out relevant facts which could have empowered the Government to take action, even then, if greater harm would result by quashing the order impugned, then the Court may refrain from exercising the power. In paragraph 5 of the said judgment, the Supreme Court went on to observe as follows:
"Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference. What could be more harmful to society than appointing the respondents as member of the Board, a position of importance and responsibility, who was found responsible for mass copying at the examination centre of which he was a supervisor. It shakes the confidence and 63/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt faith of the society in the system and is prone to encouraging even the honest and sincere to deviate from their path. It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
74] In the case of M.P. Mittal vs. State of Haryana & ors. - (1984) 4 Supreme Court Cases 371, in the context of doctrine of substantial justice, the Supreme Court observed thus:
"The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief. On that ground alone, the appeal must fail".
75] Thus, it is settled position in law that the power conferred upon the High Court under Articles 226 and 227 of the Constitution of India is to advance justice and not thwart it. The High Court in exercise of such jurisdiction must not be on the look out to merely pick out any error of law through an academic angle, but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became by-product of an erroneous 64/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt view of law, the High Court is not expected to erase such justice in the name of correcting the error of law. Article 226 of the Constitution of India provides for an extra-ordinary remedy which essentially discretionary though founded on legal enquiry. In the exercise of such jurisdiction, it is permissible for the Court to either give or withhold relief in furtherance of public interest. Accordingly, the granting or withholding of relief may properly be dependent upon considerations of public interest.
76] Applying aforesaid, principles, we are of the opinion that this is not an appropriate case to either decide the Petitioner's contention that the CEO, SRA had no power or authority to initiate any action under Section 13(2) of the Slum Act or to interfere with the impugned orders on this score especially in view of the fact that this point was not raised before the authorities. As we noted earlier, the point also involves a question of fact viz. whether there was any delegation of power by the SRA to the CEO.
77] Mr. Sancheti's third contention revolves around the communication dated 15.06.2009, again issued by the CEO, SRA tot he society which, reads thus :
With reference to your above representation, a hearing was arranged by the Dy. Ch. Eng. (SRA) as per the directives of the undersigned on 2-6-2009 when you did not submit your representation.65/110 ::: Downloaded on - 22/06/2014 23:28:45 :::
skc/dss 5.13 - J.odt While going through the status of the scheme and your representation, it is noticed that the developer of the scheme under reference has constructed two rehab buildings on site and also shown his readiness to develop the scheme. Thus, it appears that the present developer if continued, the S.R. Scheme work can be expedited. As such, your request for change of developer does not deserve consideration, which please note.
Yours faithfully, sd/-
Chief Executive Officer Slum Rehabilitation Authority"
78] Mr. Sancheti contended that the decision contained in the communication dated 15.06.2009 constitutes "final determination on merits" for purposes of Section 13(2) as applicable to Chapter I-A of the Slum Act. Accordingly, Mr. Sancheti submits that without there being any variation in circumstances, the CEO, SRA could neither have issued the show cause notice dated 11.08.2011, which is identical to the previous show cause notice dated 08.09.2009 nor issued the impugned order dated 24.02.2012 directing the removal of the Petitioner as a developer. Such an exercise, according to Mr. Sancheti amounts to review when in fact, no such powers of review have been vested in the CEO, SRA. In any case, Mr. Sancheti contends that the bar of 'res judicata' ought to apply. Mr. Sancheti placed reliance upon the decision of the Supreme Court in case of K.K. Modi Vs. K.N. Modi - 1998 AIR (SC) 1297 in which it has been observed that "the attempt to re-argue the case, which has been 66/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt finally decided by the Court of last resort, is a clear abuse of process of law regardless, principles of 'res judicata'".
79] We see no merit in the contention of Mr. Sancheti that the decision contained in the communication dated 15.06.2009 can be elevated to the status of "final determination of merits". As noted earlier, the proviso to Section 13(2) as applicable to Chapter I-A of the Slum Act contemplates that before any order is made under Section 13(2), "the owner shall be given a reasonable opportunity of showing cause why the order should not be passed". The term "owner" in the present context would mean and imply the Society.
The facts and circumstances, to which the reference has been made earlier would bear out that no reasonable opportunity of showing cause or any hearing was afforded to the Society prior to issuance of communication dated 15.06.2009. The Dy. Chief Engineer, SRA, in response to the complaint/representation made by the Society had issued a notice dated 19.05.2009 to the Petitioner and the Society requiring them to attend his chambers on 02.06.2009. On this date, the Society raised objections to the conduct of any proceedings by the Dy. Chief Engineer on the ground that under section 13(2) as applicable to Chapter I-A of the Slum Act, the appropriate authority would be the CEO, SRA. Apart from raising such objections, no submissions appear to have been 67/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt made upon the merits of the complaint/representation before the said Dy. Chief Engineer. There is no serious denial on this position.
In fact, the Society by its communication dated 03.06.2009, recorded their objection to the jurisdiction of the said Dy. Chief Engineer, SRA in the context of the meeting held on 02.06.2009.
From this, it is clear that no reasonable opportunity as contemplated by the proviso to Section 13(2) or for that matter even de hors the same was provided by the Dy. Chief Engineer, SRA or for that matter the CEO, SRA prior to the issuance of communication dated 15.06.2009.
80] Even if the so-called hearing before the Deputy Chief Engineer, SRA on 02.06.2009 is to be taken into consideration, a situation would arise where the hearing was given by one authority i.e. the Deputy Chief Engineer, SRA and the decision is taken by another authority i.e. CEO, SRA. Such a situation would equally involve the breach of the principles of natural justice. Thus, prior to the issue of communication dated 15.06.2009, it is clear that no reasonable opportunity as contemplated by the proviso to Section 13(2) of the Slum Act was afforded to the Society. For all these reasons, the decision contained in communication dated 15.06.2009 cannot be elevated to the status of 'final decision on merits' either to attract principle of finality or res judicata.
68/110 ::: Downloaded on - 22/06/2014 23:28:45 :::skc/dss 5.13 - J.odt 81] Independent of the aforesaid, if we consider the facts and circumstances of the present case, it is clear that the CEO, SRA in issuing the impugned order dated 24.02.2012 has not exercised review jurisdiction as such. The principle that power of review is never inherent basically applies to the exercise of powers by judicial or quasi judicial authorities. Although, we do not wish to delve in any greater details upon this issue, we need to refer to the decision of the Division Bench of this Court in the case of Mihir Y. Thatte vs. State of Maharashtra - 2007 (supp) Bom.C.R. 308, where, upon consideration of various precedents, it has been held that acts of planning authorities are 'administrative' and not either 'judicial' or 'quasi judicial'. Similarly, in the case of Raja Bahadur Motilal vs. State of Maharashtra - 2003(1) Bom.C.R.251, another Division Bench of this Court has held that grant of permission by Corporation under the provisions of MRTP is "pure administrative action". Even otherwise, it is settled position that mere circumstance that an authority is required to comply with principles of natural justice, is not the sole determinative factor to determine whether such authority acts in judicial or quasi judicial capacity. In a given case, it may be necessary even for an administrative authority to comply with principles of natural justice and fair play, particularly where consequences of such administrative action may visit a party 69/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt with civil consequences or prejudice. However, as observed earlier, there is no necessity to go into this larger issue because even if exercise of powers under Section 13(2) of the Slum Act is held to be 'quasi judicial' , this is not a case where powers of "review" as such can be said to have been exercised. At the highest, this is a case of "procedural review" in contradistinction to 'substantive review'.
82] The principle that there is no inherent power of review basically relates to the exercise of 'substantive review' and not to exercise of 'procedural review'. In the present case, as noted earlier, there was no compliance with principles of natural justice and fair play prior to issuance of the communication dated 15.06.2009. The communication appears to have been issued in the teeth of protest/objection raised by the Society, by their communication dated 03.06.2009. There is nothing on record to indicate any application of mind by the CEO, SRA prior to issuance of communication dated 15.06.2009. The Tribunal or a body should be considered to be endowed with such ancillary powers as are necessary to discharge its function effectively for the purpose of doing justice between the parties.
83] The expression "review" is used in two distinct senses, i.e., "procedural review" which is either implied in a body or a Tribunal 70/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt to set aside or ignore palpably erroneous order passed under misapprehension or in breach of principles of natural justice and fair play and "substantive review" on merits where the error sought to be reviewed is generally of law and apparent on the face of record.
Powers of procedural review inhere every body or Tribunal in order to prevent abuse of its process and ex debito justiae. Accordingly, there is no merit in the submission premised upon the exercise of non-existent review jurisdiction.
84] The same is the position as to applicability of doctrine of res judicata. As held by us, the communication dated 15.6.2009, can never be elevated to the status of 'final determination on merits'. In such circumstances, there arises no question applying the doctrine of res judicata. It is doubtful whether doctrine of res judicata would at all apply to exercise of powers under Section 13(2) of the Slum Act. This is not to say that repeated applications based upon same cause of action can be made to the authorities to initiate action under Section 13(2) of the Slum Act. Entertainment of repeated applications, without any rhyme or reason or without establishing any variation in circumstances may be questionable on grounds of arbitrary or unreasonable exercise of powers, though not by applying the doctrine of res judicata. In the present case however, 71/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt we do not detect any unreasonable or arbitrary exercise of power in the issuance of impugned orders. The decision of the Supreme Court in the case of K.K. Modi (supra) is clearly distinguishable on facts. In the said decision, the attempt was to re-argue the case which had been finally decided by the Court of last resort. The HPC whilst dismissing the appeal, in its order dated 10.10.2012 has dealt with this issue and the reasoning adopted by the HPC to reject the Petitioner's plea based upon doctrine of res judicata, is by no means perverse or arbitrary. Accordingly, we see no merit in the plea based upon the doctrine of res judicata.
85] Mr. Sancheti's fourth contention concerns breach of principles of natural justice and fair play. In this regard, Mr. Sancheti contended that two show causes notices make reference only to the ground of delay in implementation of the project. However, the impugned order dated 24.02.2012 takes into consideration an additional ground i.e. alleged failure on the part of the petitioner to obtain consents from 70% or more of the eligible hutment dwellers.
The final order, according to Mr. Sancheti has travelled beyond the allegations contained in the show cause notice and therefore there is breach in the principles of natural justice and fair play. In this regard, Mr. Sancheti placed reliance upon the ruling of the Division 72/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt Bench of this Court in the case of Diwaker Pundikrao Satpute v.Zilla Parishad, Wardha & ors - 2008(4) SLR 139, in which it is observed that it is a well settled principle of administrative law that the final order, cannot travel beyond the scope of show cause notice and that such action or order would be wholly violative of the principle of natural justice.
86] The principle that the final decision ought not to travel beyond the allegation contained in the show cause notice is well established. The question however, is whether in the facts and circumstances of the present case, any substantial breach of this principle has been established. In evaluating such issue, it needs to be noted that principles of natural justice cannot be put in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain a plea of breach of natural justice, it must be established that the party complaining has suffered prejudice. The rules of natural justice cannot be so extended as to make their application antithetical to justice itself.
Such rules are not mere incantations to be invoked or rites to be performed on all conceivable occasions. The extent of application of the principles of natural justice and fairness have to be viewed in the factual context and settings in which they are invoked. Whilst 73/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt applying this principle there is need to have real flexibility as the very concept of justice or fairness is not a one way street. Such principles ought not to be permitted to be used as road blocks to obstruct enquiries or speedy resolution of issues. The complainant must demonstrate 'real prejudice' as there can be no such thing as 'technical infringement' of the principles of natural justice.
87] From the perusal of the show cause notices, including in particular the show cause notice dated 11.08.2011 which has been quoted verbatim earlier, it is clear that the same alleges (i) that the Petitioner was responsible for inordinate delay in completion of the project; and (ii) that the Petitioner breached terms and conditions contained in LOI dated 27.01.1998. One of the terms of LOI dated 27.01.1998 concern submission of agreements with eligible slum dwellers before issuance of Commencement Certificate.
88] In response to show cause notices dated 08.09.2009 and 11.08.2011, both the Petitioner and the Society submitted their respective responses. The Society was quite clear in its allegation that the Petitioner had failed to submit the consents and further inability to obtain consents was the real reason for the delay in completion of the project. In this sense, the allegation concerning 74/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt delay in completion of the project was intricately connected with the issue of inability on the part of the Petitioner to obtain consents from 70% or more eligible hutment dwellers. The Petitioner, in its response dealt with this charge / allegation in great detail. The Petitioner stated that the requirement of obtaining consents of 70% or more eligible hutment dwellers did not apply to cases where a project approved under the SRD Scheme was proposed to be converted to a project under the SRA Scheme. The Petitioner, further contended that in any case such requirement should be deemed to have been complied with by the Petitioner in the light of judgment and order dated 13.02.1999 in Writ Petition No. 1301 of 1999. The Petitioner further contended that it had submitted 620 individual agreements with members and the same can be treated as consents from 70% or more of the eligible hutment dwellers.
89] From all this, it is clear that the Petitioner had full knowledge about the charge / allegation concerning consents. Further, the Petitioner was by no means taken by surprise with such charge / allegation, even assuming that there was some vagueness in the show cause notice. From the nature of defences raised by the Petitioner, it cannot be said that the Petitioner was deprived of reasonable opportunity with regard to such charge / allegation.
75/110 ::: Downloaded on - 22/06/2014 23:28:45 :::skc/dss 5.13 - J.odt Further the defences raised by the Petitioner have been duly considered by the Authorities. In these circumstances, we are unable to detect any breach in the principles of natural justice and fair play.
90] Mr. Sancheti, in the course of hearing on 05.04.2014 submitted a note / submissions on the aspect of 'consents' .
Paragraph 2 of the said note, reads thus:
"2.
igFirstly, as submitted earlier, the issue of fresh 70% Consent was not part of the Show Cause Notice, and in fact the CEO did not call upon the Petitioner, at any time since 2005 (when plans were approved by SRA) to comply with the requirement of fresh 70% consent. During the course of submission before the CEO and HPC, since the Society raised this issue, the Petitioners had made their reply submissions.
However, that by itself, does not entitle the authority to enlarge the scope of the enquiry beyond the scope of the Show Cause Notice."
91] From the aforesaid, it is clear that the Petitioner basically complains of 'technical infringement" of the principles of natural justice. It is not the Petitioner's case that it was deprived of any reasonable opportunity to put forth its case on the aspect of 'consents'. As noted earlier, there is nothing like 'technical infringement' of principles of natural justice. The Petitioner, for its plea of failure of natural justice to succeed, had to demonstrate some 'real prejudice', which the Petitioner in the facts and 76/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt circumstances of the present case has failed to demonstrate. The plea of failure of natural justice, therefore fails.
92] This is not a case where the Petitioner was furnished with 'no notice'. At the highest, the Petitioner's complaint is that there was a 'vague notice'. In such circumstances, it is for the Petitioner to demonstrate that the so-called vagueness has occasioned any serious prejudice to the Petitioner, in the matter of its defence. From the array of defences put forth by the Petitioner, particularly on the aspect of 'consents', it cannot be said that the Petitioner has suffered any real prejudice on account of the so-called vagueness in the show cause notice. The show cause notice, admittedly made reference to breach in terms of LOI dated 27.01.1998. The show cause notices also made reference to the aspect of delay in completion of the project. The Society, in its response had specifically linked the issue of delay with the inability on the part of the Petitioner to obtain consents. In such circumstances, even if we were to assume that there was some vagueness in the show cause notice or that the show cause notice could have been better worded, in absence of the Petitioner being able to demonstrate and establish some real prejudice, there is no scope to strike down the impugned orders for any alleged failure of natural justice. Upon consideration of totality of facts and circumstances, we are 77/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt convinced that there has been no failure of natural justice.
93] Mr. Sancheti's fifth contention is that there is no requirement either under the LOI dated 27.1.1998 or under DCR 33(10), which mandates the obtaining of consents from at least 70% of the eligible slum dwellers/occupants particularly where a project under the SRD scheme is permitted to be converted into the project of SRA scheme.
94] Mr. Sancheti, firstly, placed reliance upon clause 10 of Appendix-IV to DCR 33(10), which reads thus:
"10. Conversion of Old Project into New Project.
1. Wherever there is an application for conversion of the old Project of slum redevelopment into the new, it shall be considered only if the full occupation certificate has not been given and provided the conditions relating to the payment as specified in clause 9 are complied with and subject to such other conditions as may be imposed by the Chief Executive Officer."
95] Mr. Sancheti then contended that conversion of a project under SRD scheme to SRA scheme can be permitted subject to the following compliances:
(a) If full occupation certificate has not already been granted;
(b) The project proponent complied with the condition relating to payment as specified in clause 9 of Appendix-78/110 ::: Downloaded on - 22/06/2014 23:28:45 :::
skc/dss 5.13 - J.odt
IV; and
(c) Subject to other conditions as may be imposed by the Chief Executive Officer.
96] Mr. Sancheti further submitted that there is no dispute whatsoever that full occupation certificate in respect of project has not yet been issued and the Petitioner has always been ready and willing to make payments in terms of clause 9 of Appendix IV to DCR 33(10). In so far as the third compliance is concerned, Mr. Sancheti contends that such conditions may be traced either to the LOI dated 27.01.1998 or to circular dated 21.08.1997 (the correct date according to Mr. Sancheti should be 16.10.1997) issued by the SRA. Mr. Sancheti then contends that neither the LOI dated 27.01.1998 nor the circular dated 21.08.1997 prescribe any condition of obtaining consents from at least 70% of the eligible hutment dwellers. In such circumstances, Mr. Sancheti contends that it is reasonable to proceed on the basis that the requirement of obtaining consents from at least 70% of the eligible hutment dwellers is inapplicable in matters of conversion of projects under the SRD to SRA scheme.
97] In order to evaluate the aforesaid contention, reference is 79/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt required to be made to clause 1.15 of Appendix-IV to DCR 33(10) which in terms provides that where 70% or more of the eligible hutment dwellers in a slum or pavement in a viable stretch at one place agree to join a rehabilitation scheme, it may be considered for approval. The proviso to this clause exempts its application to Slum Rehabilitation Projects undertaken by the State Government or Public authority or Government Company owned and controlled by the State Government.
98] In at least three cases, this Court has held that the requirement of obtaining consents from at least 70% of the eligible hutment dwellers in a slum is mandatory requirement. The same are briefly referred to hereinafter.
99] In the case of New Woodlands Co-op. Hsg. Soc. Ltd. & Anr.
vs. State of Maharashtra & ors. - 2006 (5) ALL MR 98, the Division Bench of this Court, at paragraph No.45 observed thus:
45. Whether it is a scheme under Chapter VIII-A of MHAD Act or under DCR 33(7) and whether it is being developed by the landlord or the occupier's society , the consent to 70% of occupiers is must and it must be an informed consent. All these things ought to have been done in advance and then the consent of the 70% occupants ought to have been obtained. This flows from (1) the affidavit of Shri Jadhav affirmed in Civil Appeal No.4063 of 2002 on 15th February, 2003 in the Apex Court read with, (2) MHADA's circular dated 13th May 80/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt 2003, and (3) the provisions of clauses 1(a), 2,3 and 11 of Appendix III of Regulation 33 (7).
100] In case of Lokhandwala Infrastructure Pvt. Ltd. & anr. vs. State of Maharashtra & ors. - 2011 (3) Bom.C.R. 240, the Division Bench of this Court, at paragraph No.11 observed thus:
"11. ...................... As we have noted earlier, Clause 1.6 of Appendix IV requires an individual agreement to be entered into by the developer or, as the case may be, cooperative housing society with eligible hutment dwellers. Similarly, under Clause 1.15, 70% or more of the eligible hutment dwellers in a slum must agree to join a rehabilitation scheme upon which it may be considered for approval"...........................
101] In case of M/s. Bevenu Infra Projects Pvt. Ltd. & anr. vs. The High Power Committee & ors. (Writ Petition No.1976 of 2010 decided on 14.6.2012), the Division Bench of this Court, at paragraph No.15 observed thus:
"15. ...................... Appendix III to DCR 33 (7) stipulates that a reconstruction or redevelopment of cessed buildings in the Island city by the landlord and/or by cooperative housing societies can be permitted in pursuance of irrevocable written consents of not less than 70% occupiers of the old building "...........................
102] Mr. Sancheti however, contends that the aforesaid three decisions are distinguishable, inasmuch as the issue involved therein, did not relate to conversion of a project sanctioned under the SRD scheme to a project under the SRA scheme. Although, Mr. 81/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt Sancheti may be right in his submission that such issue did not directly arise in aforesaid three decisions, in our opinion, the principle laid down in the said three decisions cannot be regarded as irrelevant or inapplicable to the issue now arising in the present case.
103] The aforesaid decisions emphasize that one of the basic factors to be taken into consideration before sanctioning a project under the SRA scheme is the consents from at least 70% of the eligible hutment dwellers. In fact, it is upon compliance with this requirement that a project under SRA scheme may be considered for approval. The reason for this is obvious. Unless a developer is able to command support/confidence from at least 70% of the eligible hutment dwellers, there would arise no question of imposing such a developer upon the hutment dwellers in the slum or pavement. The development under the SRA scheme, contemplates inter alia, the providing of temporary alternate accommodation to the hutment dwellers followed by permanent accommodation once scheme is complete. Accordingly, the hutment dwellers have a vital interest in ensuring that the project is entrusted to a developer who is not only competent to execute the same within a reasonable period, but further is one who enjoys confidence and support of at 82/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt least 70% of the eligible hutment dwellers. It needs to be noted that once such a developer obtain consents from 70% or more of the eligible hutment dwellers, then the decision to appoint such developer binds even the balance 30% of the hutment dwellers, who may not have given consents or expressed confidence in such a developer. If this is the objective behind the requirement of obtaining consents from 70% or more of the eligible hutment dwellers, then it is difficult to accept Mr. Sancheti's contention that such a requirement will not apply when it comes to conversion of a project under SRD to a project under SRA scheme.
104] There is no dispute that there was no requirement under the SRD scheme, similar to the one contained in clause 1.15 of Appendix-IV to DCR 33(10) of obtaining consents of 70% or more of the eligible hutment dwellers in order that a project under the SRD scheme be considered for approval. In the event, the requirement of obtaining consents from 70% or more of the eligible hutment dwellers is not insisted upon in case of conversion, a situation may arise where a person/entity who does not enjoy the confidence of even 70% of the eligible hutment dwellers in a slum may insist upon continuing as a developer qua a project under the SRA Scheme.
There is an important aspect that supports Mr. Samdani's submission that under the 1997 scheme consent of 70% of the 83/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt persons eligible to participate under the 1997 scheme is necessary.
The authorities are required to consider all relevant facts before sanctioning a proposal under the 1997 scheme. This would include the ability- financial and otherwise of the developer to implement the scheme. A developer who is considered capable of implementing the scheme sanctioned under the 1991 scheme may not be capable of implementing the converted scheme proposed under the 1997 scheme. A development under the 1997 scheme would at least normally be of a far greater magnitude than the one under the 1991 scheme. This is evident from the following.
105] The SRD scheme under the DCR was of 25.3.1991. The LOI was granted to the Petitioner under this scheme on 5.4.1995. At that point of time, 1.1.1985 was the cut off date for eligible slum dwellers. The draft amendments of 27.8.1996 introduced the SRA scheme. The amendment was approved with effect from 15.10.1997. The new cut off date under the amended DCR for eligible slum dwellers is 1.1.1995 and thereafter 15.10.1997. The Petitioner's LOI under the 1997 scheme, i.e., SRA scheme of conversion was granted on 27.1.1998. Obviously, therefore, there was increase in the number of slum dwellers to be considered as between the SRD and SRA scheme. These additional slum dwellers 84/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt would also be entitled to decide whether a proposal ought to be accepted or not for the simple reason, that they would be vitally affected by the development/redevelopment. Their rights in this regard cannot be nullified merely because of conversion of a pre-
existing scheme.
106] We do not suggest that the SRD scheme ipso facto comes to an end. The parties would be entitled to complete implementation of the SRD scheme already sanctioned. If however, the parties wish to convert the scheme into a SRA scheme they would have to abide by the requirements of 1997 scheme which includes the requirement of obtaining consent of 70% of eligible hutment dwellers.
107] As noted earlier, in a SRA Scheme, the benefits to both, the hutment dwellers as well as the developers are substantially larger, as compared to the benefits under the SRD Scheme. The comparative chart noted earlier will bear out this position. Apart from the benefits to hutment dwellers and developers, it is an accepted position that there is an element of public interest involved in speedy and efficient execution of SRA schemes. In the case of Lokhandwala Infrastructure Pvt. Ltd., (supra) the Division Bench of this Court has emphasized that execution of Slum Rehabilitation 85/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt Scheme is impressed with public character. It is in this context that diverse provisions have been made under the Development Control Regulation to regulate every stage of Slum Rehabilitation Scheme, from the submission of proposal, evaluation of proposal, scrutiny, verification, grant of sanction and the actual implementation of the project under the scheme. It is for this purpose that the Slum Rehabilitation Authority has been vested with the powers to regulate the implementation of the scheme, so that the same is not misused, but rather is utilised to sub-serve public purpose untrammeled, even by private contractual arrangement. When considered from this perspective as well, we are not persuaded to accept Mr. Sancheti's contention that requirement of obtaining consents from 70% or more of the eligible hutment dwellers will not apply in case of conversion of a SRD project to SRA project.
108] Mr. Sancheti's contention based upon Clause 10 of Appendix-
IV to DCR 33 (10) that conversion of projects can be permitted subject only to the three compliances listed earlier, does not commend to us. No doubt, it is necessary that the three requirements are complied with before any proposal for conversion may be entertained. However, this does not mean and imply that the rest of the conditions contained in DCR 33(10) or for that matter 86/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt Appendix-IV to DCR 33 (10) become inapplicable or can be ignored. Clause 10 of Appendix-IV to DCR 33(10) prescribes additional conditions or makes reference to requirements over and above those contained in DCR 33(10) or the other clauses of Appendix-IV to DCR 33(10). Clause 10 of Appendix-IV to DCR 33(10) is by no means exhaustive of the requirements to be complied with in case of conversion of a project sanctioned under SRD to a project under SRA. There is nothing contained in Clause 10 of Appendix-IV to DCR 33(10) nor can anything be implied therein to suggest that the remaining conditions or requirements as contained in DCR 33(10) and Appendix -IV thereto are either waived or inapplicable to conversion cases.
109] Mr. Sancheti's contention that the phrase "such other conditions as may be imposed by the Chief Executive Officer"
appearing in Clause 10 of Appendix-IV to DCR 33(10) relates either to the terms and conditions in the LOI dated 27.01.1998 or to the circular dated 21.08.1998 also does not commend to us in the context in which it is raised. The CEO, in the context of particular fact situation as well as the stage of the SRD project may impose certain conditions relevant to the context. However, in the exercise of such power, the CEO can neither whittle down the mandatory 87/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt provisions contained in DCR 33(10) or for that matter Appendix-IV to DCR 33(10). The LOI, which is issued in pursuance of DCR 33(10), can obviously not contain or be construed to contain any conditions which abridge or conflict with the substantive provisions contained either in DCR 33 (10) or Appendix-IV to DCR 33(10).
110] Mr. Sancheti's contention that phrase "such other conditions as may be imposed by Chief Executive Officer" relate to circular dated 21.08.1997, issued by the SRA also does not appear to be well founded. Firstly, it is not clear as to which authority has issued the said circular. The circular as produced before us is on the letterhead of "Slum Rehabilitation Authority". However, the same has been issued under the signature of Dy. Chief Engineer (SRA).
Secondly, the circular as produced before us is dated 21.08.1997, when admittedly DCR 33(10) which introduces the SRA scheme came into force with effect from 15.10.1997. As such, the conditions referred to in the circular dated 21.08.1997, which are prior to coming into force of DCR 33(10) or Appendix thereto, can hardly be regarded as "such other conditions as may be imposed by the Chief Executive Officer" as appearing in Clause 10 of Appendix-IV to DCR 33(10). Thirdly, the circular dated 21.8.1997 in its text makes reference to "detailed discussions and as provided by the 88/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt undersigned under No.SRA/Dy.CE/2143 dated 24.9.1997". The reference to communication dated 24.9.1997 in a circular dated 21.08.1997 has not been satisfactorily explained. Fourthly, the circular dated 21.08.1997 merely deals with "processing" of conversion proposals and therefore could never have been intended to whittle down any mandatory provisions of DCR 33(10) or those contained in Appendix thereto. Fifthly, even the circular dated 21.08.1997 does not in express terms state that the requirement of obtaining the consents from 70% or more of the eligible hutment dwellers is either waived or inapplicable to conversion cases. The circumstance that there is no specific reference to such a requirement in the circular cannot lead to the inference that such a requirement which has been held to be mandatory, was either waived or made inapplicable to conversion cases. Even the principle of causus ommisius cannot be applied to such a situation, particularly as we are dealing with the circular, which may not in the present context even qualify as an administrative or executive instruction. Sixthly, even if we assume that the circular dated 21.08.1997 is in the nature of an administrative or an executive instruction, it is settled position in law that even an administrative executive instruction cannot abrogate or supplant a legislative provision, though in a given case an 89/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt administrative or executive instruction may supplement the same.
The waiver of a substantive provision contained in clause 1.15 of Appendix-IV to DCR 33 (10), which provides for requirement of obtaining consents from at least 70% or more of the eligible hutment dwellers, would certainly not amount to supplementing the such legislative provisions, but rather would sound in the arena of supplanting the same. Finally even Clause 10 of Appendix-IV to DCR 33(10) cannot be interpreted to imply conferment of unfettered delegation in favour of Chief Executive Officer to dilute or waive any of the mandatory conditions prescribed under DCR 33(10) or the Appendix thereto.
111] The circular dated 21.08.1997 provides that four specified conditions, i.e., the condition with regard to area of 225 sq. feet, provisions for Balwadi etc., tenement density and rehabilitation component to sale component ratio shall not be applicable to conversion cases. Without commenting upon the validity of this clause, it is pertinent to note that even this Clause does not waive the requirement of obtaining consents from 70% or more of the eligible hutment dwellers. As observed earlier, such requirement has been held to be mandatory by this Court. Accordingly, mere circumstance that the circular dated 21.08.1997 makes no specific reference to this requirement, can certainly be no ground to infer 90/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt that a mandatory requirement of this nature stands waived or is inapplicable to conversion cases. For all these reasons, we see no merit in Mr. Sancheti's contention that the otherwise mandatory requirement of obtaining consents of 70% or more of the eligible hutment dwellers is inapplicable or stands waived in case of conversion of projects sanctioned to SRD to SRA.
112] Mr. Sancheti's sixth contention is that the Division Bench of this Court in its judgment and order dated 13.12.1999 in Writ Petition No. 1301 of 1999 has already ruled that there is no requirement of obtaining consents from 70% or more of the eligible hutment dwellers in case of conversion from SRD to SRA project and that in any case the LOI dated 27.1.1998 issued by the CEO, SRA is not liable to be struck down for alleged want of consents from 70% or more of the eligible hutment dwellers. The CEO, SRA and the Society were parties to Writ Petition No.1301 of 1999. As such it was neither open for the Society to raise the issue of alleged want of consents nor was it open to the CEO, SRA to remove the Petitioner as a developer on the said ground. Such removal, in effect amounts to revocation of LOI dated 27.1.1998 the validity of which, had already been upheld by this Court in its judgment and order dated 13.12.1999 in Writ Petition No.1301 of 1999. To the 91/110 ::: Downloaded on - 22/06/2014 23:28:45 ::: skc/dss 5.13 - J.odt extent the impugned orders take a contrary view, the same are clearly illegal, ultra vires, null and void.
113] Mr. Sancheti's contention that the Division Bench of this Court in its judgment and order dated 13.12.1999 in Writ Petition No.1301 of 1999 has already ruled that the requirement of consents from 70% or more of the eligible slum hutment dwellers is not necessary in case of conversion of SRD project to SRA project is not well founded. Paragraph 3 of the judgment and order dated 13.12.1999, would reveal that the main contention raised on behalf of the Petitioner in the said case was that the developer (i.e. present Petitioner) had not obtained consents from 70% or more of the eligible hutment dwellers before submission of proposal for development under SRD scheme and therefore the grant of approvals/sanction for the SRD project itself was vitiated. In this context the Division Bench in its judgment and order dated 13.12.1999 held that there was no requirement of obtaining consents from 70% or more of the eligible hutment dwellers under the SRD scheme, which came to be referred to as 1991 scheme.
The relevant observations read thus:
"Under the 1997 scheme the builder is required to enter into agreement with individual members and accordingly 582 agreements have already been signed between the parties. There is also no merit in the 92/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt contention of the petitioners that consent of 70% of slum dwellers was required under the 1991 scheme. On perusal of the said scheme it is clearly seen that consent of 70% of the slum dwellers was not required and what was contemplated was that if 70% of slum dwellers join the society, which is interested in rehabilitation of the slum dwellers, then such society would be eligible to apply for sanction of the same under DCR 33(10)."
114] In the context of challenge to the LOI dated 27.1.1998 issued under the SRA scheme or 1997 scheme, this Court did not deem it appropriate to interfere with the same because it was represented by the Petitioner that 582 agreements have already been signed between the parties. At the stage when such representation was held out, it is pertinent to note that the said individual agreements were yet to be verified by the authorities. Further, the facts and circumstances to which reference has been made earlier would bear out that the Petitioner from time to time had furnished undertakings and assurances to submit consents from the balance of the eligible hutment dwellers, so that the requirement of obtaining consents from 70% or more of the eligible hutment dwellers stands duly complied with. The Writ Petition No.1301 of 1999 was also dismissed on the grounds of unexplained delay and laches.
115] The Division Bench dealt essentially with the provisions of and and the requirements under the 1991 scheme. As far as the 1997 93/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt scheme was concerned, the Division Bench noted that the same contained a provision for conversion of the old scheme with the new scheme and that the Petitioner's proposal in this regard had been accepted by the authorities. The Division Bench did not express any view on the question whether 70% requirement was there under the 1997 scheme or not. Moreover as rightly submitted by Mr. Samdani the conversion was expressly subject to the Petitioner obtaining the consent of 70% of those eligible. The Petitioner accepted this condition and in fact sought to comply with the same. The condition has not been set aside. Clause 10.1 of Appendix-IV of the SRA scheme / DCR 33(10) permits the CEO to place conditions.
116] After the dismissal of Writ Petition No.1301 of 1999, the SRA by communication dated 18.1.2000 called upon the Petitioner to submit balance consents, so as to comply with the mandatory requirement of obtaining consents from 70% or more of the eligible hutment dwellers. The Petitioner, however, in breach of the previous assurances and undertakings, made a volte face through their Architect's letter dated 27.01.2000 stating that this requirement of submitting consents need not be insisted upon by reference to judgment and order dated 13.12.1999 passed in Writ Petition No. 1301 of 1999. It needs to be noted that prior to this letter dated 94/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt 27.01.2000, the Petitioner had not contested the requirement of submitting consents from at least 70% of the eligible hutment dwellers.
117] The noting dated 16.02.1998, at the stage of release of 40% TDR in respect of building Nos. 5 and 6 records that the Petitioner was directed to submit agreements/consents of 70% of the hutment dwellers before the commencement of second phase and the Petitioner, in response stated that out of 869 hutment dwellers, they had submitted consents from 450, which corresponds to consents from 52% of the hutment dwellers. In the O.C. dated 03.11.1998 in respect of building Nos. 5 and 6, there is a clear stipulation that the Petitioner must submit consents from 70% of the hutment dwellers before any further approvals or commencement certificate is issued. The noting dated 24.12.1998, in the context of release of balance TDR in respect of building Nos. 5 and 6, again records that the requirement of obtaining consents from 70% of the eligible hutment dwellers is yet to be complied with and therefore, only 90% of the TDR be released. Further the noting records that permissions for phase-II be granted only after this requirement is duly complied with.
118] The Petitioner by its communication dated 07.07.1999, 95/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt addressed to the Executive Engineer (SRA) during the pendency of Writ Petition No. 1301 of 1999, submitted 582 individual agreements (consents) and undertook to submit the remaining "individual agreements" to make up 70% consents in due course of time. This communication dated 07.07.1999 has been quoted verbatim earlier.
119] From all these, it is clear that the Petitioner was very much aware that it had to comply with the requirement of obtaining consents from 70% or more of the eligible hutment dwellers and in fact, the Petitioner had from time to time undertaken to comply with this requirement. Further, it is clear that there is no finding recorded by this Court in its judgment and order dated 13.12.1999 in Writ Petition No. 1301 of 1999 that such a requirement was either inapplicable or that the same had been complied with by the Petitioner. This Court proceeded on the basis that 582 agreements had been submitted and that the balance would be submitted in due course.
120] The agreements/consents submitted by the Petitioner were scrutinized in the year 2001 i.e. much after the judgment and order dated 13.12.1999 in Writ Petition No. 1301 of 1999. By communication dated 25.07.2001, SRA informed the Petitioner that 96/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt out of 501 individual agreements/consents submitted, 100 agreements did not tally, 60 agreements were doubles, 29 agreements were in respect of non-eligible hutment and consequently only 372 agreements/consents could be accepted as valid. This communication dated 25.07.2001 was obviously in the context of compliance with the requirement of obtaining consents from 70% or more of the eligible hutment dwellers.
121] The Petitioner seeks to draw mileage from the circumstance that the private parties as well as authorities have used the expressions "individual agreements" and "consents"
interchangeably and rather loosely . On basis of this, the Petitioner contends that there is no requirement in the LOI dated 27.01.1998 with regard to obtaining of the consents. On basis of this, the Petitioner contends that notings and correspondence on record is in the context of "individual agreements" and not "consents". Mr. Sancheti develops this submission by reference to clause 1.15 of Appendix-IV to DCR 33(10), which concerns consents from 70% or more of eligible hutment dwellers and clauses 1.6 and 1.7 in Appendix-IV to DCR 33(10) which concerns "individual agreements"
to be entered into by the developer with eligible hutment dwellers of each structure/pavement. On basis of this confusion, the Petitioner 97/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt went on to contend that 620 individual agreements entered into with members of the Society ought to be construed as consents from 70% or more of the eligible hutment dwellers.
122] Although it is true that the expressions "individual agreement"
and "consents" have been used interchangeably and loosely by the parties and the authorities in their notings and correspondences, however, from the context, their meanings can be deciphered. For example in the communication dated 07.07.1999, emanating from the Petitioner itself, it is clear that the expression "individual agreements" means and implies "consents" as contemplated by the clause 1.15 in Appendix-IV to DCR 33 (10). As otherwise, there was no reason to make reference to the requirement of 70% consents or use the phrase "remaining individual agreements to make up 70% contents shall be submitted in due course of time".
123] Same is the position with regard to other correspondence and notings which form part of the record. The 620 agreements to which the Petitioner refers, were in the context of the development agreement dated 27.2.1986, which has since been cancelled by the agreement dated 10.7.1995. Further these individual agreements were to have been modified in terms of resolution of general body of the society in its meeting held on 30.10.1994. There is no material 98/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt placed on record that such modification was indeed brought about.
The certificate dated 29.12.1994 cannot lead to any inference that such modification was in fact brought about.
124] Thus, based upon some confusion arising out of use of the expressions "individual agreement" and "consents" rather loosely and interchangeably, the Petitioner cannot, at this belated stage, insist with any level of seriousness that the authorities proceeded on the erroneous basis that agreement were to be entered into with 70% or 100% of the eligible persons or that the requirement of obtaining consents from 70% of the eligible hutment dwellers was inapplicable.
125] Mr. Sancheti, in the course of his rejoinder submitted that the issue of obtaining consents from 70% or more of the eligible hutment dwellers could at best be relevant before the LOI permitting conversion from SRD to SRA scheme could be issued. The fact that such LOI came to be issued on 27.1.1998 means and implies that the SRA either did not regard this requirement as a pre-requisite for conversion cases or that the SRA was satisfied that the Petitioner had obtained requisite consents from 70% or more of the eligible hutment dwellers. Mr. Sancheti submitted that it is for this reason 99/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt that the LOI dated 27.1.1998 does not prescribe a specific condition with regard to compliance of such requirement.
126] The aforesaid contention of Mr. Sancheti is clearly misconceived. Apart from seeking to draw some mileage out of the confusion between the use of expressions like "individual agreements" and "consents", it is not even the case of the Petitioner that they have factually obtained consents from 70% or more of the eligible hutment dwellers. The material on record, to which reference was made earlier, makes it clear that the Petitioner had only undertaken to obtain such consents in order to make up the deficiency to the extent of 70%. The circumstance that LOI the dated 27.01.1998 came to be issued to the Petitioner even prior to verification of compliance of such requirements, does not entitle the Petitioner to take undue advantage of the same. From the material on record, it appears that the LOI dated 27.01.1998 was issued on the basis that 'consents' in the form and 'individual agreements' had been submitted and that balance consents or agreements to make up the shortfall would be submitted in due course of time. For the purposes of enforcing compliance, TDR in respect of building Nos.5 & 6 was released in a phasewise manner and grant of further sanction/approval for phase-II was made conditional upon 100/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt compliances. Upon verification of the individual agreements/consents, the authorities found that only 372 agreements, which correspond to much less than 70% could be regarded as valid. In these circumstances, clearly we see no merit in this belated contention of Mr. Sancheti.
127] In the course of arguments/submissions, Mr. Sancheti attempted to contend that the Petitioner in fact, had obtained further consents/agreements, but they were never called upon to submit the same. Such contention, is clearly inconsistent with the case set out by the Petitioner both in its petition as well as the material on record. The notings by which conversion was permitted from SRD to SRA scheme records that some time may be given to the Petitioner to obtain consents from 70% or more of the eligible hutment dwellers. At the stage of release of TDR as against the building Nos.5 and 6, the notings record that as against the requirement of obtaining consents from 70% or more of the eligible hutment dwellers, consents from only 52% have been submitted. At the stage of issue of O.C. in respect of building Nos. 5 and 6, a specific condition was inserted with regard to compliance with requirement of obtaining consents from 70% or more of the eligible hutment dwellers. The same is the position at the stage of release of the 101/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt further TDR in respect of building Nos. 5 and 6 in December 1998.
The Petitioner's Architect by communication dated 07.07.1999 specifically undertook to make up for the balance, so that consents from 70% of the eligible hutment dwellers are submitted in due course of time. By communication dated 27.01.2000 and 05.01.2001 the Petitioner sought waiver of this requirement, inter alia by reference to judgment and order dated 13.12.1999 in Writ Petition No.1301 of 1999. In such circumstances, we again see no merit whatsoever in the belated contention raised by Mr. Sancheti that the Petitioner in fact, had consents from 70% or more of the eligible hutment dwellers, but was never called upon to furnish the same or that it was deprived of an opportunity to furnish the same.
128] Finally, Mr. Sancheti contended that the Petitioner is in no manner responsible for the delay in completion of the project. The findings in the impugned orders on the aspect of delay are vitiated by perversity and non-application of mind. The show cause notices make reference to delay of 9 to 10 years. However, the impugned orders suggest that the delay to be attributed to the Petitioner is from 1986, meaning thereby delay of over 26 years. Mr. Sancheti submitted that the period between 1986 and 1999 could never have formed the subject matter of enquiry under the show cause notices.
102/110 ::: Downloaded on - 22/06/2014 23:28:46 :::skc/dss 5.13 - J.odt Even at the stage when this Court decided Writ Petition No.1301 of 1999, there was no dispute as between the Society and the Petitioner. Therefore, there arises no question of holding the Petitioner responsible for the delay. Further, for the period between 1999 and 2011, there were several litigations fomented mainly by some disgruntled members of the Society, who since year 2008- 2009 are a part of the Managing Committee of the Society, thereby rendering it impossible for the Petitioner to undertake any development in or upon the said property. Inasmuch as all these aspects have not been considered by the authorities, findings in the impugned orders are vitiated by perversity and non-application of mind.
129] There are concurrent findings of fact that the Petitioner is responsible for delay in implementation of the project. Unless, such findings are demonstrated as being based upon no material on record i.e. perverse or that there is total non-application of mind, it would not be appropriate for this Court to interfere with such findings of fact in exercise of powers of judicial review.
130] A Full Bench of this court in the case of Tulsiwadi Navnirman Co-op. Hsg. Soc. Ltd. & Anr. vs. State of Maharashtra & Ors. -
103/110 ::: Downloaded on - 22/06/2014 23:28:46 :::skc/dss 5.13 - J.odt 2008 (1) ALL MR 318, in the context of judicial review of action taken by Authorities under the Slum Act, has observed thus:
"A) While exercising the Jurisdiction and powers under Article 226 of the Constitution of India in matters concerning Rehabilitation - of Slum Dwellers and schemes framed under relevant statutes, distinct yardsticks cannot be carved out nor separate parameters laid down by this Court.
B) However, the limits and restrictions which are placed on the writ jurisdiction of this Court by Authoritative pronouncements of Supreme Court would govern the writ petitions challenging the orders, actions/inaction of the Authorities in charge of implementing and/or monitoring the slum rehabilitation scheme.
C) It is clarified that ordinarily a petition under Article 226 of the Constitution of India can be filed and depending upon the facts and circumstances of each case, this Court can decide to intervene, even if,alternate remedy provided above is not exhausted by the petitioner.
However, such intervention should be minimum and the Court must abide by the Rule of caution and Prudence enunciated by the Supreme Court in this behalf. In exceptional and deserving cases, this Court would exercise its powers and no general rule can be laid down in that behalf.
D)....
E) ....
F) Needless to state that the Rule of Prudence and caution evolved by the Supreme Court with regard to exhaustion of alternate remedy would always be applicable. If the disputes and questions raised involve factual aspects or necessitate leading of oral and documentary evidence, then, this Court can refuse to interfere in writ jurisdiction leaving open to the parties,remedy of suit in competent civil court or Arbitration."
(emphasis supplied)
104/110
::: Downloaded on - 22/06/2014 23:28:46 :::
skc/dss 5.13 - J.odt
131] Even otherwise, it is settled position in law that a finding of fact is open to attack as erroneous in law only if it is not supported by 'any evidence' or if it is unreasonable and perverse. But where there is evidence to consider, the finding of fact recorded is normally immune from interference even where the writ court might, if it was the court of first instance, have come to a different conclusion. In regard to findings of fact a writ of certiorari can be issued only if it is shown that in recording the authority or tribunal has erroneously refused to admit material evidence or has erroneously relied upon inadmissible evidence which has influenced the impugned finding.
Similarly if a finding of fact is based on 'no evidence' or is contrary to 'weight of evidence' or is patently unreasonable and perverse, that would be regarded as an error of law capable of being corrected by a writ of certiorari. When findings of fact are in issue the writ court can only examine 'reasonableness' of the findings. If the finding is found to be recorded reasonably based upon some evidence, in the sense that relevant material has been taken into account and no irrelevant material has influenced the decision, then judicial review is exhausted even though the finding may not necessarily be what the writ court would have come to, if trying the case in the first instance.
105/110 ::: Downloaded on - 22/06/2014 23:28:46 :::skc/dss 5.13 - J.odt 132] Applying the aforesaid parameters of judicial review, we are unable to detect either perversity, unreasonableness or non application of mind on the part of the Authorities, in passing the impugned orders. The material on record does indicate that during the period from 1986 to 1992, no construction whatsoever was carried on at the site, even though the Petitioner had undertaken development with full knowledge that the property was affected by some encumbrances and reservations. The first permission under Section 8(4) of the Slum Act was obtained only on 09.10.1992. For the period between 1992 to 1996, the Petitioner obtained approvals under DCR 1991 for the SRD Project which was to comprise construction of at least fifteen rehabilitation buildings. However, upto the year 1998, the Petitioner could manage to construct only two rehabilitation buildings and recover the costs therefor by way of availing almost 90% of TDR, which the Petitioner promptly sold in the open market. For the period between 1996 to 2001, the Petitioner went on to obtain approvals for conversion of the project from SRD to SRA Scheme. This was on the basis of assurances and undertakings to submit consents from at least 70% of the eligible hutment dwellers in due course of time. Such assurances and undertakings were complied with, only in breach. No construction was also carried out during the said period, except 106/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt perhaps some transit camps, which again were alleged to have been carried out in breach of terms and conditions imposed. Even if the period taken on account of restraint orders by Courts and Authorities is excluded, there still remains considerable span of time, during which construction could have proceeded, but did not in fact proceed.
133] Mr. Sancheti, however contends that any alleged lapses on the part of the Petitioner prior to 2001, stand condoned by the Society and in any case could not be taken into consideration for the purposes of present proceedings. Technically, Mr. Sancheti may be right in his submission. However, the fact remains that even though the Society offered a long rope to the Petitioner, the project is far from complete and the members of the Society are still miles away from the promised land (premises). In any case, even if the period prior to 2001 is excluded from consideration, it still cannot be said that the concurrent findings of fact on the aspect of delay recorded by both the Authorities are either perverse, unreasonable or vitiated by non application of mind.
134] Mr. Sancheti's last contention relates to mala fides. This contention was urged only in the passing during the course of 107/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt arguments. There are no particulars set out in the Petition in order to make good the charge of mala fides. The persons against whom mala fides have been alleged, have not been impleaded as parties to this Petition. This contention does not appear to have been seriously pressed in the appeal before the HPC. In these circumstances, we are unable to interfere with impugned orders on the grounds of mala fides.
135] In the matter of exercise of extra ordinary jurisdiction, we cannot be unmindful of the circumstance that the members of the Society have been waiting for the completion of the project, which commenced or was required to commence way back in the year 1986. As of date, apart from two out of the fifteen proposed buildings and some vestiges of a transit camp, there is no other development at the site. This being a project under the Slum Act, there is undoubtedly public interest involved in its efficient and expeditious completion. Such public interest, far outweighs any commercial interest of the Petitioner. The Petitioner may have its own case in the context of its civil and contractual rights. For this purpose, the Petitioner has already instituted a comprehensive suit seeking inter alia relief of specific performance and damages.
There is considerable difference in the scope and import of 108/110 ::: Downloaded on - 22/06/2014 23:28:46 ::: skc/dss 5.13 - J.odt proceedings in a Petition under Articles 226 and 227 of the Constitution of India and the proceedings in the comprehensive civil suit so instituted by the Petitioner. In case the Petitioner is able to establish in the comprehensive civil suit that its civil and contractual rights have been infringed by the Society without reasonable cause, then the Petitioner might as well be entitled to appropriate relief in the said proceedings. We make it clear that we have not or ought not to be taken to have expressed any opinion in that regard.
However, we wish to emphasize that we have examined the matter in exercise of powers of judicial review and mindful that projects such as these under the Slum Act, undoubtedly involve a public element and consequently public interest. Accordingly, we make it clear that we have neither adjudicated nor should we be taken to have adjudicated upon any civil or contractual disputes inter se between the Petitioner and the Society as may have been raised by the Petitioner in the comprehensive civil suit or for that matter any other proceedings. Such issues are kept expressly open 136] In the aforesaid facts and circumstances, we see no merit in the Petition. Rule is accordingly discharged. Interim reliefs, if any, are vacated.
109/110 ::: Downloaded on - 22/06/2014 23:28:46 :::skc/dss 5.13 - J.odt 137] Chamber Summons No. 153 of 2013 stands disposed of in the light of observations made in this judgment and order.
138] In the facts and circumstances of the present case, there shall be no order as to costs.
(M. S. SONAK, J.) (S. J. VAZIFDAR, J.)
Chandka / DSS
110/110
::: Downloaded on - 22/06/2014 23:28:46 :::