Bombay High Court
Prem Siddha Co-Op Housing Society And ... vs The High Power Committee-Ii And 8 Ors on 20 October, 2021
Bench: Ujjal Bhuyan, Madhav J. Jamdar
WP2421_16&group.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2421 OF 2016
Prem Siddha Co-op. Housing Society and another ... Petitioners
Vs.
High Power Committee and others ... Respondents
WITH
CONTEMPT PETITION (L) NO. 13112 OF 2021
Prem Siddha Co-op. Housing Society and another ... Petitioners
Vs.
Satish Lokhande and others ... Respondents
WITH
CONTEMPT PETITION (L) NO. 96 OF 2019
Prem Siddha Co-op. Housing Society and another ... Petitioners
Vs.
Deepak Kapoor ... Respondent
WITH
CONTEMPT PETITION NO. 63 OF 2017
Prem Siddha Co-op. Housing Society and another ... Petitioners
Vs.
Vishwas Patil and another ... Respondents
IN
WRIT PETITION NO. 2421 OF 2016
ALONG WITH
WRIT PETITION (L) NO. 672 OF 2015
Shivkripa Builders & Developers ... Petitioner
Vs.
Slum Rehabilitation Authority and others ... Respondents
WITH
WRIT PETITION NO. 1205 OF 2015
Indira SRA Co-operative Housing Society ... Petitioner
Vs.
High Power Committee and others ... Respondents
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WITH
WRIT PETITION NO. 505 OF 2015
M/s. Om Omega Investment & Properties ... Petitioner
Vs.
High Power Committee and others ... Respondents
WITH
WRIT PETITION NO. 2595 OF 2015
Indira SRA Co-operative Housing Society ... Petitioner
Vs.
Slum Rehabilitation Authority and others ... Respondents
WITH
WRIT PETITION NO. 2424 OF 2015
M/s. Om Omega Investment & Properties ... Petitioner
Vs.
High Power Committee and others ... Respondents
WITH
WRIT PETITION NO. 396 OF 2020
Prem Siddha Co-op. Housing Society and another ... Petitioners
Vs.
Chief Executive Officer and others ... Respondents
Mr. Vikram Nankani, Senior Advocate a/w Mr. Samir A. Vaidya, Mr. Roshil
Nichani, Mr. Deep Samant, Mr. Sanjay Agarwal, Ms. Aishwarya Kantawala
& Mr. Vishal Bhogale i/b. Samir A. Vaidya, Advocate for Petitioners in WP
No.396 of 2020 and WP No.2421 of 2016, CONPWL No.96 of 2019,
CONPW No.63 of 2017 and CONPWL No.13112 of 2021 as also for
Respondent No.6 in WPL 672/2015, Respondent Nos.7 & 10 in WP
505/2015 & WP 1205/2015, Respondent No.7 in WP 2424/2015 & WP
2595/2015.
Mr. S. U. Kamdar, Senior Advocate a/w Hrushi Narvekar, Mr. Vivek Vashi,
Ms. Alya Khan & Ms. Shikha Dharia i/by Vashi and Vashi, Advocates for
Petitioners in WP No.1205 of 2015 and WP No.2595 of 2015 as also for
Respondent No.7 in WP 2421/16, Respondent No.4 in WPL 672/15 and
Respondent No.9 in WP 505/15 & 2424/15.
Ms. Naira Jeejeebhoy with Mr. Arun Panickar & Mr. Mangesh Sawant for
Petitioners in WP No.2424 of 2015, WP 505/2015 as also for Respondent
No.9 in WP 2421 of 2016, WP 1205 of 2015, WP 2595/2015; and for
Respondent No.8 in WPL 672 of 2015.
Mr. Dinesh Dubey a/w Mr. Rohit Pandey for Respondent No.8 / Birla
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Industries Group Charity Trust in WP No.2421 of 2016, WP No.1205 of
2015, WP No.505 of 2015, WP No.2595 of 2015, WP No. 2424 of 2015
and WP 396 of 2020 and for Respondent No.7 in WP (L) No. 672 of 2015.
Ms. Firdaus Moosa i/b Mr. Prakash Mahadik for Petitioner in WPL 672/15,
for Respondent No.5 in WP 2421/16 & W.P.Nos.505, 2424 and 2595/15 as
also for Respondent No.4 in CONPWL 13112/2021.
Mr. Vijay Patil, Advocate for HPC in all matters.
Mr. Milind More, Additional GP in WP No.2421 of 2016, CONPWL No.96
of 2019, CONPW No.63 of 2017, CONPWL No.13112 of 2021, WP(L)
No. 672 of 2015, WP 505/15 and WP No.1205 of 2015.
Mr. Milind More, Additional GP alongwith Mr. S. B. Gore, AGP for the
Respondent in WP No.2595 of 2015.
Mr. Milind More, Additional GP alongwith Mr. Amit Shastri, AGP for the
Respondent in WP No.2424 of 2015.
Ms. Aparna D. Vhatkar for SRA in all matters.
Mr. Rupali Adhate for Respondent No.6 in WP 2421/2016, WP 1205/2015,
WP 505/2015, WP 2595/2015 & WP 2424/2015; for Respondent No.5 in
WPL 672/2015 and for Respondent No.4 in WP 396/2020.
CORAM : UJJAL BHUYAN &
MADHAV J. JAMDAR, JJ.
Reserved on : SEPTEMBER 08, 2021 Pronounced on : OCTOBER 20, 2021 JUDGMENT AND ORDER : (Per Ujjal Bhuyan, J.) This judgment and order will dispose of Writ Petition Nos.505 of 2015, (L) 672 of 2015, 1205 of 2015, 2424 of 2015, 2595 of 2015, 2421 of 2016 and 396 of 2020.
2. Heard Mr. Nankani, learned senior counsel for the petitioners in Writ Petition Nos.396 of 2020 and 2421 of 2016, for respondent No.6 in Writ Petition (L) No.672 of 2015, respondent Nos.7 and 10 in Writ Petition Nos.505 of 2015 and 1205 of 2015 and for respondent No.7 in Writ Petition Nos.2424 of 2015 and 2595 of 2015; Mr. S. U. Kamdar, learned senior counsel for the petitioners in Writ Petition Nos.1205 of 3/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc 2015, 2595 of 2015, for respondent No.7 in Writ Petition No.2421 of 2016, for respondent No.4 in Writ Petition (L) No.672 of 2015 and for respondent No.9 in Writ Petition Nos.505 of 2015 and 2424 of 2015; Ms. Naira Jeejeebhoy, learned counsel for the petitioners in Writ Petition Nos.505 of 2015 and 2424 of 2015, for respondent No.9 in Writ Petition Nos.2421 of 2016, 1205 of 2015, 2595 of 2015 and for respondent No.8 in Writ Petition (L) No.672 of 2015; Mr. Dinesh Dubey, learned counsel for respondent No.8 in Writ Petition Nos.2421 of 2016, 1205 of 2015, 505 of 2015, 2595 of 2015, 2424 of 2015, 396 of 2020 and for respondent No.7 in Writ Petition (L) No.672 of 2015; Ms. Firdaus Moosa, learned counsel for the petitioner in Writ Petition (L) No.672 of 2015 and for respondent No.5 in Writ Petition Nos.2421 of 2016, 505 of 2015, 2424 of 2015 and 2595 of 2015; Mr. Vijay Patil, learned counsel for the High Power Committee in all matters; Mr. Milind More, learned AGP for the respondents-State in all the writ petitions; Ms. Aparna Vhatkar, learned counsel for Slum Rehabilitation Authority in all matters; and Ms. Rupali Adhate, learned counsel for respondent No.6 in Writ Petition Nos.2421 of 2016, 1205 of 2015, 505 of 2015, 2595 of 2015 and 2424 of 2015, for respondent No.5 in Writ Petition (L) No.672 of 2015 and for respondent No.4 in Writ Petition No.396 of 2020.
3. In Writ Petition No.505 of 2015, M/s. Om Omega Investment and Properties ('Om Omega' hereinafter) is the petitioner. Challenge made in this writ petition is to the legality and validity of the order dated 06.03.2014 passed by the High Power Committee-II (HPC) i.e., respondent No.1. Be it stated that by the impugned order dated 06.03.2014, HPC has set aside the order dated 14.10.2009 passed by the Slum Rehabilitation Authority (SRA) i.e., respondent No.3. As per the order dated 14.10.2009, respondent No.3 had appointed Om Omega as the developer of the slum rehabilitation scheme of the censused slum admeasuring about 42,995.22 sq.mtrs. and bearing C.S.Nos.20 (pt.), 32 (pt.), 33, 35, 25, 41, 65, 66 and 58 in plot Nos.88 to 104 having about 2270 slum dwellers at Worli, Mumbai.
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4. This Court by order dated 09.03.2015 directed maintenance of status-quo by all the parties.
5. It appears that SRA had subsequently issued letter dated 26.03.2015 cancelling the said slum rehabilitation scheme (scheme).
6. By order dated 07.04.2015, this Court directed the respondents not to take further steps pursuant to the above letter dated 26.03.2015 of SRA.
7. Writ Petition (L) No.672 of 2015 has been filed by Shiv Kripa Builders and Developers ('Shiv Kripa' hereinafter). Challenge made in this writ petition is to the notice dated 05.03.1999 issued by the SRA as well as the letter dated 26.03.2015 cancelling the scheme.
7.1. By the notice dated 05.03.1999, SRA had directed the petitioner to comply with the directions contained in the said notice failing which the scheme would be considered for recording (cancellation). During the pendency of the writ petition, SRA issued letter dated 26.03.2015 recording (cancelling) the notified slum rehabilitation scheme (scheme) by reviving notice dated 05.03.1999.
8. Writ Petition No.1205 of 2015 has been filed by Indira SRA Co- operative Housing Society ('Indira' hereinafter) comprising of over 2270 members. Indira is a society of slum-dwellers registered under the provisions of the Maharashtra Co-operative Societies Act, 1960.
8.1. Challenge made in this writ petition is to the legality and validity of the order dated 06.03.2014 passed by HPC. As has already been noticed above, by the said order HPC has set aside the order dated 14.10.2009 passed by SRA whereby Om Omega was appointed as the developer of the slum rehabilitation scheme (scheme).
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9. Om Omega has filed Writ Petition No.2424 of 2015 to set aside and quash letter dated 26.03.2015 issued by SRA.
10. Indira has also filed Writ Petition No.2595 of 2015 challenging the legality and validity of the letter / notice dated 26.03.2015 issued by SRA. By the said letter / notice, SRA had attempted to render null and void petitioner's slum rehabilitation scheme (scheme) which it is stated was notified on 01.04.1998. Primary ground of challenge is that the said letter / notice was issued in a hurried manner despite status-quo passed by this Court.
11. It further appears that Contempt Petition (L) No.32 of 2015 was filed before this Court in view of above letter dated 26.03.2015 issued by SRA alleging the same to be violative of the status-quo order of this Court.
12. In the hearing held on 12.10.2015, Mr. Kumbhakoni, learned senior counsel appearing on behalf of SRA submitted before the Court on instructions that the letter dated 26.03.2015 cancelling the scheme would be withdrawn. In view of the statement made, this Court directed that no further steps should be taken by SRA on the basis of the letter dated 26.03.2015. Contempt Petition (L) No.32 of 2015 was accordingly disposed of.
13. Writ Petition No.2421 of 2016 has been filed by Prem Siddha Co- operative Housing Society through its Chief Promoter Dashrath Rajaram Patil and Tuljabhavani Housing Society Private Limited. It is stated that petitioner No.1 i.e., Prem Siddha Co-operative Housing Society ('Prem Siddha' hereinafter) is the proposed society of slum-dwellers where as petitioner No.2 is a private limited company appointed by Prem Siddha as its developer. Petitioners have challenged order of respondent No.1- HPC dated 06.03.2014 holding that there cannot be a change of developer in the absence of lawful compliance of the provisions of the 6/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc Maharashtra Slum Areas (Improvement, Clearance and Rehabilitation) Act, 1971 (briefly 'the Slum Act' hereinafter) further holding that the notice issued under section 13(2) of the Slum Act dated 14.10.2009 is not legal and valid thus allowing the appeal filed by the appellant - Shiv Kripa. Further prayer made is for a direction to SRA to approve the revised slum rehabilitation scheme submitted by the petitioners in the year 2007.
14. Prem Siddha along with Tuljabhavani Housing Society Private Limited again filed Writ Petition No.396 of 2020 for a direction to SRA to act upon letters dated 05.03.1999, 01.04.1999 and 09.04.1999 issued by SRA. Prem Siddha has sought for a further direction to SRA to act upon the revised slum rehabilitation scheme submitted by it on 10.09.2007.
15. Mr. Nankani, learned senior counsel along with Mr. Sameer Vaidya, learned counsel represent Prem Siddha which is the petitioner in Writ Petition Nos.2421 of 2016 and 396 of 2020. Mr. Nankani submits that the entire property upon which the concerned slums are situate admeasures about 42,500 sq.mtrs. out of which about 12,500 sq.mtrs. on plot Nos.91 to 95 and 100 to 104 are leasehold lands of Birla Industries Group Charity Trust (henceforth referred to as 'Birla'). Plot Nos.88 to 90 are reserved for BEST bus depot; plot Nos.96 and 97 are reserved for Bombay Hospital; plot Nos.98 and 99 for BMC water reservoir; 15,000 sq.mtrs. reserved for garden and recreation; and 6000 sq.mtrs. for access road. Prem Siddha had submitted slum rehabilitation scheme in respect of the said area for consideration in the year 1999 and thereafter submitted a revised scheme in the year 2007 (10.09.2007).
15.1. Letters dated 01.04.1999 and 09.04.1999 were issued by SRA to the architect of Indira. These two letters were not produced by Indira before the Court till those have been brought on record by Prem Siddha by filing Writ Petition No.396 of 2020. He submits that if these two 7/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc letters are read together, it would be evident that the scheme submitted by Indira does not survive. The only surviving scheme is that of Prem Siddha. Though in the year 2015, Prem Siddha was called upon by SRA for their presentation on the scheme, the same had to be kept in abeyance in view of the status-quo order passed by this Court. The letter dated 09.04.1999 using the expression 'revoked till further orders' cannot be read in isolation. The only rational and reasonable way of construing the letter dated 09.04.1999 would be to take the view that revocation of the letter dated 01.04.1999 was till pendency of Suit No.1860 of 1999. The moment the suit was dismissed on withdrawal for want of jurisdiction, the letter dated 01.04.1999 stood revived whereunder scheme of Indira stood terminated. Prior to issuance of letter dated 01.04.1999, show-cause notice dated 05.03.1999 was issued.
15.2. Orders passed by the Slum Tribunal dated 06.12.1999, 22.03.2000 and 28.07.2000 were set aside by this Court in Writ Petition No.1762 of 2006 as being wholly without jurisdiction.
15.3. Once the scheme of Indira stood cancelled, it is not open to the said party to claim the same by adopting a back-door method resorting to section 13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (already referred to as 'the Slum Act' hereinbefore). Since the scheme of Indira is no longer in existence, the question of continuation of the developer appointed by Indira or change of developer by Indira does not arise.
15.4. SRA as well as Indira were all along aware of the existence of the letters dated 01.04.1999 and 09.04.1999. Therefore, they cannot now plead ignorance or lack of knowledge of the said letters. But these two letters were intentionally suppressed. Therefore, the SRA or Indira cannot be permitted to take advantage of their own wrong.
15.5. In view of the categorical stand taken by SRA in its affidavit filed 8/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc in Writ Petition No.396 of 2020 stating that it is only the scheme of Prem Siddha which survives for consideration, it is not open to Indira or the developers to contend that the scheme of Indira still survives.
15.6. In the circumstances, Mr. Nankani, learned senior counsel for Prem Siddha submits that both the writ petitions filed by Prem Siddha i.e., Writ Petition Nos.2421 of 2016 and 396 of 2020 may be allowed and time-bound directions may be given to SRA to consider the revised scheme of Prem Siddha.
16. Mr. Kamdar, learned senior counsel representing Indira at the outset has raised a preliminary objection as to the maintainability of the two writ petitions filed by Prem Siddha i.e., Writ Petition Nos.2421 of 2016 and 396 of 2020. He submits that Prem Siddha is not a registered co-operative society and, therefore, it does not have the locus to maintain the two writ petitions. Law is well settled that unless a society is registered under the Maharashtra Co-operative Societies Act, 1960, a 'proposed society' not being a legal entity cannot maintain a writ petition. He further submits that as has been held by this Court in Nirbhay Co-operative Housing Society Limited Vs. SRA, Writ Petition No.1112 of 2004, and in the case of Gulam Hyder Vs. Additional Collector, Writ Petition (L) No.2068 of 2006, in a slum rehabilitation scheme (scheme), once a society is registered, there cannot be any other proposed society representing a few members until the registered society is de-registered as per provisions of the Maharashtra Co-operative Societies Act, 1960. Prem Siddha being a proposed society is not a registered society. It is the handiwork of a few disgruntled slum-dwellers who have been put up by interested groups to obstruct implementation of the slum scheme submitted by Indira. He submits that both the writ petitions filed by Prem Siddha should therefore be dismissed as being not maintainable.
16.1. Mr. Kamdar submits that in the present bunch of proceedings, two 9/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc issues arise for consideration:-
1) whether the scheme of Indira has come to an end? and
2) whether the impugned order of HPC dated 06.03.2014 is sustainable in law as well as on facts?
16.2. It is submitted that the so called scheme of Prem Siddha was rejected by SRA as far back as on 20.11.1998 on the ground that Prem Siddha did not have 70% consent / support of the slum-dwellers and that its scheme was only with respect to a portion of the land which is covered by the scheme of Indira. It was expressly directed that the only alternative left with Prem Siddha was to join the main scheme submitted by Indira. Therefore, there is no surviving scheme, revised or otherwise, of Prem Siddha.
16.3. In so far scheme of Indira is concerned, the same was principally approved on 18.03.1997. It was notified and published in the official gazette on 01.04.1998. Even the proposal purportedly submitted by Prem Siddha was one submitted by Andromeda Co-operative Housing Society and not in the name of Prem Siddha. In any event, Indira's scheme was already approved, notified and published in the official gazette. Law is well settled that there cannot be simultaneous consideration of two schemes. The certified Annexure-II issued in favour of Indira includes members of Prem Siddha. Once Indira's scheme is in implementation, question of considering scheme of another society does not arise. Question before the SRA was whether Indira had rightly removed the erstwhile developer Shiv Kripa and appointed new developer Om Omega. Indira's scheme was submitted first in point of time having the support of more than 70% of the slum-dwellers. That being the position, no other society can now come into the picture. Therefore, on merit also, both the writ petitions of Prem Siddha should be dismissed.
16.4. Adverting to the show cause notice dated 05.03.1999, Mr.Kamdar 10/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc submits that the substance of the show cause notice was that there was delay by the developer (Shiv Kripra) in carrying out redevelopment work under the scheme. Instead of exercising power under section 13(2) of the Slum Act, letter dated 01.04.1999 was issued by the SRA recording / cancelling the scheme of Indira notwithstanding the status- quo order dated 28.03.1999 passed in Suit No.1860 of 1999 filed by Indira. In view of this, SRA issued letter dated 09.04.1999 revoking the letter dated 01.04.1999 until further orders. Thus, letter dated 01.04.1999 stood revoked and ceased to exist.
16.5. Learned senior counsel for Indira has laid great stress on the distinction between the two words 'revoke' and 'abeyance'. When letter dated 01.04.1999 stood revoked, the same along with show cause notice dated 05.03.1999 ceased to exist.
16.6. Nobody was aware about existence of the purported letter dated 01.04.1999. As a matter of fact, SRA the author of the letter did not mention about this in any proceeding either before this Court or before the Slum Tribunal. Interestingly, he submits, letter dated 01.04.1999 saw the light of the day only in July, 2019 when counsel for Prem Siddha produced a copy of the same while hearing of the present bunch of writ petitions was going on. When this Court directed SRA to verify about the said letter, counsel for SRA informed the Court that letter dated 01.04.1999 as produced by Prem Siddha was revoked by letter dated 09.04.1999. Though Prem Siddha took out a chamber summons to bring on record the letter dated 01.04.1999, the same was dismissed by this Court. It was thereafter that Prem Siddha filed the last writ petition i.e., Writ Petition No.396 of 2020 seeking implementation of show-cause notice dated 05.03.1999, letter dated 01.04.1999 and letter dated 09.04.1999. According to Mr. Kamdar, the show-cause notice dated 05.03.1999, letter dated 01.04.1999 and letter dated 09.04.1999 do not in any manner cancel the scheme of Indira. Therefore, the two writ petitions filed by Prem Siddha are liable to be dismissed on merit as 11/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc well.
16.7. Questioning the impugned order dated 06.03.2014 of HPC, he submits that the said order did not decide as to who should be the developer of the scheme of Indira. He submits that order passed by SRA appointing Om Omega as the developer of the scheme of Indira was perfectly correct and justified and there was no reason for HPC to have interfered with such decision. In contravention of the directions of the Supreme Court as well as of this Court, HPC has not decided the matter on merit and erroneously set aside the order of SRA dated 14.10.2009 on the ground that the owner of the land i.e., Municipal Corporation of Greater Mumbai (MCGM) was not intimated of the hearing and was not heard. Not only this is factually incorrect as notice of hearing was duly issued by SRA to MCGM but MCGM has not questioned the same or raised any issue whatsoever. He, therefore, submits that the impugned order may be set aside and the matter should be remanded back to the HPC to take a decision on merit on the order passed by SRA dated 14.10.2009.
17. Ms. Naira Jeejeebhoy, learned counsel appearing for Om Omega at the outset submits that she would adopt the submissions made by Mr. Kamdar, learned senior counsel for Indira. Additionally she submits that the impugned order passed by HPC dated 06.03.2014 is bad in law in as much as contrary to the directions of this Court and that of the Supreme Court, HPC did not decide the appeal on merit.
17.1. Learned counsel for Om Omega submits that order dated 14.10.2009 passed by SRA does not suffer from any infirmity. SRA had correctly held that Shiv Kripa had delayed implementation of the scheme. Therefore, SRA removed Shiv Kripa and appointed Om Omega as the developer. This power of changing developer is available to SRA under section 13(2) of the Slum Act. Shiv Kripa had not acted diligently and was, therefore, rightly removed as the developer. Om Omega's 12/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc appointment as the new developer in place of Shiv Kripa is justified as that is what the co-operative society i.e., Indira wants. Shiv Kripa has not challenged its termination as developer by the society i.e., Indira.
17.2. HPC was not at all justified in setting aside the order of SRA on the specious ground that MCGM was not intimated about the hearing by SRA. She submits that show-cause notice dated 25.06.2009 of SRA was marked to MCGM for information and necessary action. MCGM was very much aware about the proceedings under section 13(2) of the Slum Act before SRA to remove Shiv Kripa. MCGM did not raise any objection as to removal of Shiv Kripa. MCGM has not even questioned the order of SRA dated 14.10.2009. In the absence thereof, HPC was not justified in interfering with the order of SRA dated 14.10.2009. She, therefore, submits that impugned order passed by HPC is liable to be set aside and quashed.
18. Ms. Firdaus Moosa, learned counsel for Shiv Kripa submits that owner of the land MCGM had on 25.10.1996 physically verified the consent of slum-dwellers and issued no objection certificate (NOC) to Shiv Kripa for redevelopment of slum and also issued Annexure-II in respect of the entire plot of land admeasuring 42,995.22 sq.mtrs. SRA had granted all permissions to Shiv Kripa. Supporting the impugned order of HPC dated 06.03.2014 setting aside the order of SRA dated 14.10.2009, she submits that the same is just and proper. The land owner MCGM was neither informed nor heard in the hearing by SRA. Being the land owner no new developer can be appointed without the consent of MCGM. Documents executed in favour of Shiv Kripa cannot be unilaterally revoked by Indira.
18.1. Learned counsel submits that there was no delay on the part of Shiv Kripa while carrying out redevelopment. Whatever delay had occurred was on account of stay order granted by the Court and on account of non co-operation of Indira.
13/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 :::WP2421_16&group.doc 18.2. Learned counsel for Shiv Kripa has pointed out various steps taken by her client including construction of building No.10 with ground and seven-storey; getting 57 tenants vacated and paying their transit rent till 2015/2016 for about Rs.5 crores. Though Shiv Kripa had continuously informed SRA and MCGM about the various hurdles faced by it in the process of redevelopment, there was no response by SRA or MCGM.
18.3. Assailing the resolution of Indira dated 13.08.2007 terminating its agreement with Shiv Kripa, learned counsel submits that a society has no right to terminate / cancel appointment of developer. SRA had proceeded on the basis of amended section 13(2) of the Slum Act but the said provision is not applicable.
18.4. Learned counsel submits that SRA while passing the order dated 14.10.2009 had acted beyond the scope of the show-cause notices dated 25.06.2009 and 03.07.2009. She also submits that SRA could not have appointed Om Omega as the new developer without the consent of 70% of the eligible slum-dwellers finding place in Annexure-II.
18.5. Ms. Moosa has also laid great stress on the order dated 15.04.2011 passed by a Single Bench of this Court in Writ Petition No.2371 of 2009 setting aside the order of SRA dated 14.10.2009. According to her, though the Supreme Court had remanded the matter back to HPC for hearing, Supreme Court did not enter into the merit of the matter. Therefore, reliance can be placed on the order dated 15.04.2011.
18.6. Though learned counsel for Shiv Kripa has made submissions pertaining to Full Bench judgment of this Court in Tulsiwadi Navnirman Co-operative Housing Society Vs. State of Maharashtra, (2007) 6 Mh.L.J. 851, it may not be necessary to deal with the same having regard to the subject matter of the lis and the stated stand of Shiv Kripa that impugned order of HPC is correct and no interference is called for.
14/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 :::WP2421_16&group.doc 18.7. She, therefore, submits that the related writ petitions challenging the impugned order of HPC should be dismissed.
19. Ms. Aparna Vhatkar, learned counsel for SRA submits that the present is an unfortunate litigation which has dragged on for over two decades. In the process, poor slum-dwellers have been deprived of getting their homes which is the prime object of the Slum Act. She has made certain submissions relating to the conduct of earlier counsel who represented SRA.
19.1. She has made reference to certain dates and events which she contends are relevant. A show-cause notice dated 05.03.1999 was issued by SRA to the architect of Indira to inform the SRA about the progress made at site. Instead of informing SRA, Indira filed a suit before the City Civil Court, Mumbai. On 01.04.1999, SRA passed an order recording the scheme of Indira. When counsel of Indira informed SRA on 07.04.1999 about passing of ad-interim order by City Civil Court, SRA issued a letter dated 09.04.1999 to the architect of Indira stating that the letter dated 01.04.1999 was revoked till further orders of the Court. SRA being the author of the said letter it is the stand of SRA that by the letter dated 09.04.1999, the earlier letter dated 01.04.1999 was not withdrawn. City Civil Court passed order on 20.10.1999 dismissing the notice of motion of Indira in view of bar to filing of suit under section 42 of the Slum Act. Subsequently, the suit came to be withdrawn by Indira on 26.11.1999. After withdrawing the suit, Indira filed appeal before the Slum Tribunal against the show-cause notice dated 05.03.1999. Slum Tribunal allowed the appeal and vide order dated 06.12.1999 directed SRA to consider proposal of Indira and to allow it to commence the scheme. Thereafter conditional letter of intent was issued by SRA to Indira on 31.12.1999. Later on, Slum Tribunal passed order on 22.03.2000 on a miscellaneous application of Indira directing SRA to issue unconditional letter of intent to Indira. Review petition filed by 15/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc Prem Siddha was rejected by the Slum Tribunal on 28.07.2000. In a writ petition filed by Birla (lease holder) being Writ Petition No.1762 of 2006, this Court vide order dated 14.10.2013 set aside the orders dated 06.12.1999, 22.03.2000 and 28.07.2000.
19.2. On the basis of the above sequence of events, Ms. Vhatkar submits that after this Court had passed order dated 14.10.2013, the position was reverted back to 06.12.1999 when the scheme of Indira was already recorded. It is not a case of letter dated 01.04.1999 getting revived but it is a case of SRA being absolved of its own undertaking in that the period of revocation had come to an end. She submits that order of this Court dated 14.10.2013 is binding upon SRA.
19.3. Referring to the allegation made by Indira that letter dated 01.04.1999 surfaced for the first time in the year 2019, she submits that Indira has not stated as to why it has not challenged the said letter dated 01.04.1999.
19.4. Ms. Aparna Vhatkar, learned counsel for SRA submits that out of the 42,000 sq.mtrs., land admeasuring only about 12,500 sq.mtrs. is developable. Presently, the only scheme before SRA is that of Prem Siddha.
19.5. Interestingly, learned counsel for SRA submits that SRA has power under section 13(2) of the Slum Act to change developer. In this connection, she has placed reliance on section 3-A of the Slum Act.
19.6. Winding up her submissions, Ms. Vhatkar, learned counsel for SRA submits that at present the scheme submitted by Prem Siddha is the only scheme before SRA, consideration of which has been kept in abeyance because of the present proceedings.
20. Submissions made by learned counsel for the parties have 16/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc received the due consideration of the Court.
21. Because of multiple and multi-layered litigation, the facts have become extremely bulky and cumbersome. However, only those facts which are considered relevant by the Court for arriving at a just decision may be adverted to. These facts have been culled out from the pleadings, materials on record and from the list of dates submitted.
22. At Worli in the city of Mumbai, there is a censused slum admeasuring 42,995.22 sq.mtrs. bearing C.S.Nos.20 (pt.), 32 (pt.), 33, 35, 25, 41, 65, 66 and 58 in plot Nos.88 to 104. This slum is inhabited by approximately 2270 slum-dwellers. MCGM is the owner of the land.
23. A portion of the aforesaid plot of land admeasuring about 12,000 sq.mtrs. is stated to be under Birla on lease.
24. As the slum-dwellers did not receive any basic amenities, they formed a co-operative housing society called Indira SRA Co-operative Housing Society (already referred to as 'Indira'). Indira decided to re- develop the said slum area under Development Control Regulation 33(10) of Development Control Regulations for Greater Mumbai, 1991.
25. On 04.11.1994, Indira entered into a development agreement with Shiv Kripa, the developer. Indira submitted proposal to SRA in the year 1996 for approval of its slum rehabilitation scheme (already referred to as the 'scheme'). On 18.03.1997, certified revised Annexure II was issued containing the names of 2270 eligible slum-dwellers. On 18.11.1997 SRA approved the scheme of Indira which came to be notified on 01.04.1998 and was published in the official gazette on 09.04.1998.
25.1. On 31.12.1999, SRA issued letter of intent in favour of Indira and Shiv Kripa.
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26. When Birla objected to the scheme of Indira on the ground that it intruded into its leasehold land, SRA called for revised plan from Indira excluding the disputed land. In the meanwhile, SRA approved the building plan of rehab building No.10 on 30.03.2000 and issued intimation of approval as well as commencement certificate.
26.1. Birla filed Writ Petition No.6277 of 2000. A Division Bench of this Court vide order dated 21.11.2000 admitted the writ petition for hearing and passed an order restraining Indira / Shiv Kripa from carrying out any development on the leasehold land of Birla. Subsequently, the writ petition was re-numbered on the original side as Writ Petition No.1762 of 2006.
27. On 31.10.2001, Shiv Kripa entered into a second development agreement with Indira as per which the developer should complete the redevelopment project within five years.
28. It is stated by Indira and Om Omega that between 2001 and 26.04.2005, Shiv Kripa took no steps for implementing the scheme.
29. Indira in a Special General Body Meeting decided to terminate the development agreement with Shiv Kripa and to remove Shiv Kripa as the developer of the scheme. Following the same, termination notice was issued by Indira to Shiv Kripa on 27.04.2005. A public notice was also issued about termination of the agreement with Shiv Kripa and removal of Shiv Kripa as the developer.
30. Indira adopted resolution in its Annual General Body Meeting on 03.08.2007 appointing Om Omega as the developer for implementation of the scheme. Pursuant to the above, Indira entered into development agreement with Om Omega on 14.09.2007.
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31. Indira submitted an application to SRA on 15.12.2007 seeking permission to appoint new developer. As the SRA did not take any decision, Indira preferred application before HPC. Vide order dated 06.06.2009, HPC directed SRA to dispose of application of Indira within eight weeks after hearing all the parties. SRA issued show-cause notice to Shiv Kripa on 25.06.2009 as to why it should not be removed as the developer and as to why Indira ought not to be allowed to appoint Om Omega as the new developer. A copy of this letter was marked to MCGM.
32. Instead of replying to the show-cause notice, Shiv Kripa filed Writ Petition No.1496 of 2009 before this Court assailing the legality and validity of the show-cause notice dated 25.06.2009 issued by SRA. A Division Bench of this Court disposed of the said writ petition vide order dated 01.09.2009 with a direction to SRA to hear all parties and pass necessary orders.
33. Pursuant thereto SRA passed the order dated 14.10.2009 under section 13(2) of the Slum Act approving removal of Shiv Kripa as the developer and appointment of Om Omega as the new developer. Following the same, SRA called upon Om Omega to furnish bank guarantee of Rs.5,99,28,000.00 which Om Omega duly provided.
34. Assailing the order dated 14.10.2009, Shiv Kripa filed Writ Petition No.2371 of 2009. A Single Bench of this Court vide judgment and order dated 15.04.2011 set aside the order of SRA dated 14.10.2009 and held that Shiv Kripa should act as the developer.
35. As against the above judgment and order dated 15.04.2011, both Om Omega and Indira preferred appeals being Appeal (L) Nos.300 and 286 of 2011 respectively. A Division Bench of this Court vide order dated 22.08.2011 set aside the judgment and order dated 15.04.2011 holding that Shiv Kripa had an alternative and efficacious remedy in the 19/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc form of recourse to HPC which Shiv Kripa was obliged to exhaust before approaching the High Court under Article 226 of the Constitution of India.
36. Shiv Kripa filed petitions for Special Leave to Appeal against the order dated 22.08.2011 on the limited issue of the remedy before HPC. By order dated 08.11.2011, Supreme Court declined to grant any relief to Shiv Kripa; instead directed Shiv Kripa to approach the HPC and on such approach being made, HPC was directed to pass an order on the merit of the case.
37. In view of the direction of the Supreme Court as above, Shiv Kripa preferred Application No.32 of 2011 before the HPC. HPC passed an order on 18.06.2012 dismissing the said application and refusing to interfere with the order of SRA. This was challenged by Shiv Kripa before this Court in Writ Petition (L) No.1840 of 2012. This Court set aside the order dated 18.06.2012 and remanded the matter back to HPC.
38. On remand HPC passed a fresh order on 12.03.2013 setting aside the order of SRA. The order of SRA was set aside on the ground that SRA had not gone into the question as to whether the scheme was viable or not. This order of HPC was challenged by Shiv Kripa itself before this Court by filing Writ Petition No.1696 of 2013. A Division Bench of this Court vide order dated 20.08.2013 set aside the order dated 12.03.2013, remanding the matter back to HPC to decide the matter on merit expeditiously.
39. HPC thereafter passed the order dated 06.03.2014 disposing of the Application No.32 of 2011 filed by Shiv Kripa by setting aside the order of SRA dated 14.10.2009.
39.1. This is where the present round of litigation started which is being dealt with by this judgment.
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40. Let us first deal with order dated 14.10.2009 passed by SRA. The said order was passed by the Chief Executive Officer of SRA. On application received from Indira, SRA had issued notice under section 13(2) of the Slum Act to Shiv Kripa to show cause as to why Shiv Kripa should not be removed as the developer for executing the scheme of Indira in the said land and also as to why a new developer should not be appointed. After hearing Indira, Shiv Kripa and Om Omega, SRA held that under section 13(2) of the Slum Act, it has power to change the developer if the registered and permitted society of the slum-dwellers passes a resolution to remove the developer. SRA noted that the scheme of Indira was approved but Shiv Kripa could not carry out the execution. There was long and inordinate delay of ten years from the sanction of the scheme though as per the development agreement entered into between Indira and Shiv Kripa, Shiv Kripa had agreed to complete the scheme in five years. It was also observed that there were serious disputes between the partners of Shiv Kripa and in fact during the hearing before SRA, two sets of partners of Shiv Kripa had appeared. SRA noted from the record that Indira had passed a resolution terminating the development agreement with Shiv Kripa and also had adopted a resolution in its Annual General Body Meeting appointing Om Omega as the new developer. Thus, SRA held that Shiv Kripa had delayed implementation of the scheme for no valid reason and, therefore, it was removed as the developer of Indira. Indira was also permitted to implement the scheme through the newly appointed developer Om Omega, further holding that this was necessary in the interest of 2270 poor slum-dwellers and their families.
41. As already noted above, Shiv Kripa challenged the said order dated 14.10.2009 of SRA before this Court by filing Writ Petition No.2371 of 2009. By the judgment and order dated 15.04.2011, a learned Single Judge of this Court set aside the order dated 14.10.2009 but granted liberty to the parties to settle the matter in the public interest and in the interest of the scheme. Shiv Kripa was directed to take 21/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc appropriate steps afresh for the development of the scheme even by applying for permissible modification of the scheme in which event SRA was directed to consider the same within reasonable time.
42. Indira preferred appeal against the said judgment and order dated 15.04.2011 of the learned Single Judge. It was registered as Appeal (L) No.286 of 2011. Om Omega also filed an appeal which was registered as Appeal (L) No.300 of 2011. Both the two appeals were heard together by a Division Bench of this Court whereafter those were disposed of vide common judgment and order dated 22.08.2011. Division Bench took the view that the remedy to approach HPC was always open to Shiv Kripa before approaching the High Court under Article 226 of the Constitution of India. It was observed that the said remedy is not only speedy but also effective and efficacious. Upholding the objection of Indira and Om Omega, the Division Bench directed Shiv Kripa to approach the HPC constituted in terms of the Full Bench judgment in Tulsiwadi (supra). Consequently, the judgment and order of learned Single Judge dated 15.04.2011 was set aside and quashed. It was made clear that the Division Bench had not gone into the merit of the case and that all the points and contentions of the respective parties were expressly kept open to be agitated before the HPC.
43. Shiv Kripa filed two petitions for Special Leave to Appeal before the Supreme Court assailing the aforesaid common judgment and order dated 22.08.2011. Both S.L.P. (C) Nos.29099 and 29100 of 2011 were disposed of by the Supreme Court vide order dated 08.11.2011. Supreme Court held that no case was made out for interference with the judgment and order of the Division Bench dated 22.08.2011. After opining that Shiv Kripa should be given an opportunity to approach HPC in which event Indira and Om Omega would be at liberty to file response / counter, HPC was directed to take a decision on merit expeditiously and preferably within a period of eight weeks from the date of completion of the pleadings. With such observations and directions, the two special 22/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc leave petitions were disposed of.
44. When Shiv Kripa moved the HPC, its claim was dismissed by the HPC vide order dated 18.06.2012 which was set aside by this Court on challenge by Shiv Kripa and remanded back to HPC. Again on remand, HPC passed a fresh order on 12.03.2013 setting aside the order of SRA. However, this time HPC set aside the order of SRA on the ground that SRA had not gone into the question as to whether the scheme was viable or not. This was challenged before this Court by Shiv Kripa in Writ Petition No.1696 of 2013. A Division Bench of this Court vide order dated 20.08.2013 took the view that it was not open to HPC to express any opinion on the merit of the controversy which is the subject matter of Writ Petition No.6277 of 2000 (since re-numbered on the original side as Writ Petition No.1762 of 2006). It was held that SRA rightly did not consider viability of the scheme as that was not germane to the proceedings under section 13(2). In the circumstances, HPC was directed to pass final order on the merit of the controversy pertaining to proceedings under section 13(2) on the basis of the record expeditiously.
45. This time HPC passed the impugned order dated 06.03.2014. Adverting to section 13(2) of the Slum Act, it was noted that reasonable opportunity should be given to the owner before passing any order. The approval file of the scheme did not have relevant land record to indicate the ownership. MCGM which had issued Annexure-II on the basis of which the scheme was approved was not represented in the proceedings before SRA. MCGM was not even intimated about the date of hearing. In the circumstances, HPC was of the opinion that SRA had not complied with the provisions of section 13(2) of the Slum Act. Therefore, the order dated 14.10.2009 passed by SRA suffered from lack of legal compliance. Consequently HPC set aside the order dated 14.10.2009.
46. Thus on the limited ground of MCGM not being intimated by 23/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc SRA about the date of hearing and not being represented in the proceedings before SRA, the order of SRA dated 14.10.2009 was set aside by HPC.
47. Before proceeding further, we may extract the provisions of section 13(2) of the Slum Act which was the fulcrum of the decision by SRA and also interference by the HPC. Section 13(2) of the Slum Act, as it stood at the relevant time, is as under:-
"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 restrictions 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 in any agency recognized by it for the purpose:
Provided that, before passing such order, the owner shall be given a reasonable opportunity of showing cause why such order should not be passed."
48. From the above we find that if the SRA is satisfied that the land in the slum rehabilitation area is being developed by the owner but it has not been developed within the time, then it may determine to develop the land by entrusting it in any recognized agency.
49. Reverting back to the impugned order dated 06.03.2014, it is seen that on the one hand HPC took the view that the approval file of the scheme did not have the relevant land record to indicate ownership, but on the other hand it further noted that it was MCGM which had issued Annexure-II on the basis of which the scheme was approved. Thereafter, HPC proceeded and held that MCGM was not even intimated about the date of hearing. MCGM was not represented in the proceedings before SRA. Such views of HPC are contradictory. On the one hand it says ownership is not discernible but on the other hand it says as the owner MCGM had issued Annexure-II whereafter the scheme was approved.
24/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 :::WP2421_16&group.doc On the basis that MCGM was the owner but was not intimated about the hearing by SRA and was not represented in the proceedings before SRA, it was held that there was non-compliance to the requirements of section 13(2) of the Slum Act for which reason order dated 14.10.2009 of SRA was set aside.
50. It is nobody's case that MCGM is not the owner of the land in question. Both Mr. Kamdar and Ms. Jeejeebhoy pointed out that in the notice of hearing issued by SRA copy was marked to MCGM. Therefore, MCGM was duly notified about the hearing. After being so notified if the MCGM does not participate in the proceedings of SRA, the same cannot be a ground to find fault with the order dated 14.10.2009. Learned counsel have asserted that MCGM was represented in almost all the proceedings before this Court and, therefore, MCGM was fully aware of the proceedings before SRA.
51. The moot point is MCGM did not complain before HPC or before this Court about the order dated 14.10.2009 passed by SRA. If the HPC wanted to ascertain this aspect, it could have very well issued notice to the MCGM and heard it as to whether it was aggrieved by the order dated 14.10.2009 of SRA. If MCGM is not aggrieved, it is not open to the HPC to interfere with the order dated 14.10.2009 on the ground that MCGM was not notified of the hearing and was not heard. In the circumstances, we are of the view that the matter should be remanded back to HPC for a fresh decision in accordance with law. HPC may issue notice to MCGM to obtain its views and thereafter decide the matter expeditiously.
52. We note with a degree of concern that development agreement for development of the scheme was entered into by Indira with Shiv Kripa way back on 04.11.1994. Today we are in 2021. Almost 27 years have gone by without any tangible result on ground. The Slum Act has been enacted to make better provision for improvement and clearance of slum areas in the State of Maharashtra, their redevelopment and for the 25/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc protection of occupiers from eviction and distress warrants. The prime objective of the Slum Act is to provide for clearance of slum areas and their redevelopment, in the process to provide reasonable housing accommodation to the eligible slum-dwellers. Thus slum-dwellers who belong to the weaker sections of the society are to be rehabilitated by providing them reasonable housing thereby protecting them from eviction and distress warrants. Benefit to the developer is incidental to the prime objective. In the internecine fights between developers, the eligible slum-dwellers should not be made to suffer. In this case, we have seen multiple and multi-layered litigation thereby frustrating the very object and purport of the Slum Act in so far implementation of the scheme is concerned. There cannot be endless litigation. All litigation must come to an end at some point of time.
53. In so far the two writ petitions filed by Prem Siddha are concerned, i.e., Writ Petition No.2421 of 2016 and Writ Petition No.396 of 2020, we are of the view that we should not entertain the said two writ petitions as Prem Siddha itself has declared that it is a proposed society and not yet registered under the Maharashtra Co-operative Societies Act, 1960.
54. In both the writ petitions, Prem Siddha is accompanied by Tuljabhavani Housing Development Private Limited as the co-petitioner, stating that Tuljabhavani is a private limited company incorporated under the Companies Act, 1956 and the developer of Prem Siddha. In so far Prem Siddha is concerned, it is stated that it is the proposed slum society and is represented by its Chief Promoter - Dashrath Rajaram Patil. Who is Dashrath Rajaram Patil and how is he connected to the slum area or the scheme have not been disclosed. Prem Siddha in fact has not disclosed who are its members and as to whether it has sought for registration from the competent authority under the Maharashtra Co- operative Societies Act, 1960. It has also not pleaded that it has the support of 70% of the eligible slum-dwellers.
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55. In Nirbhay Co-operative Housing Society Limited (supra), a Division Bench of this Court had taken the view that once SRA recognizes a society as the society for the purpose of development of the scheme, in the absence of the said society having any right or recognition, it would not be possible to entertain the writ petition at the instance of the proposed society unless the recognized society is de- recognized by SRA. This position has been reiterated in Gulam Hyder (supra) holding that once a society is registered, it will not be open for another proposed society to move the Court until the registration of the other society is cancelled by the competent authority. Supreme Court while disposing of S.L.P. (C) No.14784 / 2011, Ekta (Estate) Sahakari Griha Nirman Sanstha Vs. MCGM, decided on 19.05.2011, had looked into the provisions of Maharashtra Co-operative Societies Act, 1960, more particularly section 36 thereof, and held that a society can sue after its registration. It was further held that if a society is a registered society, it can maintain a writ petition.
56. In Awdesh Vasistha Tiwari Vs. Chief Executive Officer, (2006) 4 Mh.L.J. 282, a Division Bench of this Court considered DCR 33(10) of the Development Control Regulations of Greater Mumbai, 1991 and held that if 70% of the slum-dwellers on a particular area come together and apply after formation of proposed co-operative housing society, the said application has to be independently considered in accordance with law. The scheme does not contemplate simultaneous consideration of such an application made by a proposed society with an application subsequently made by another proposed society relating to the same land. The applicant society has to have 70% support which obviously two societies cannot have. The application received first is to be processed first independently. If it fails to get 70% support, the second application can be considered. The obvious intention is to avoid unhealthy competition between different builders who are interested in supporting such societies. It was held as follows:-
"20. If the entire scheme under Regulation 33(10) is perused 27/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc it is obvious that if 70% of the slum dwellers on a particular area come together and apply after formation of proposed co- operative housing society, the said application has to be independently considered in accordance with law. The scheme does not contemplate simultaneous consideration of such an application made by a proposed society with an Application subsequently made by another proposed society relating to same land. The Applicant-society has to have 70% support which obviously two societies cannot have. The Application received first is to be processed first independently. If it fails to get 70% support, Second Application can be examined. The obvious intention is to avoid unhealthy competition between the different builders who are interested in supporting such societies. If such a course of simultaneous consideration is permitted to be adopted, unscrupulous persons and builders will try to win over the hutment dwellers who have supported the application made earlier by another society. Therefore, it is not desirable that an application which is earlier made and the one which is subsequently filed should be considered together. That is not the scheme provided under D.C.Regulation 33(10). It is necessary that the application which is first received in respect of a particular property by the SRA should be processed and decided first. After decision of the first Application, the second Application made by another society can be considered depending on the result of the first Application. The reason is that none of the societies have any right, title and interest in respect of the property. Such a course will prevents the unhealthy competition between the builders or between the leaders of two groups in a slum area."
57. In the light of the above, we are not inclined to entertain the above two writ petitions filed by Prem Siddha. Those are accordingly dismissed.
58. When the final hearing of the writ petitions had taken place for the first time, Prem Siddha sought to rely upon letter of SRA dated 01.04.1999 contending that Indira scheme stood recorded. We find from the case record that this was the first time that any reference was made to letter dated 01.04.1999. Though it may not be necessary for us to enter into the controversy, nonetheless we may record that according to Mr. Kamdar, learned senior counsel for Indira, the then counsel for SRA had made a statement before the Court that the letter dated 01.04.1999 was withdrawn by subsequent letter dated 09.04.1999. Prem Siddha had 28/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc filed Chamber Summons (L) No.255 of 2019 to bring the letter dated 01.04.1999 on record of Writ Petition No.2421 of 2016. However, the said chamber summons was dismissed by the Court vide order dated 07.08.2019.
59. It was thereafter that SRA filed an affidavit on 13.09.2019 in Writ Petition No.1205 of 2015 filed by Indira. It was in that affidavit SRA stated in paragraph 2(c) that a show-cause notice was issued to the architect of Indira by SRA on 05.03.1999 calling upon him to inform SRA about the progress of the work at site. In paragraph 2(e) of the said affidavit, it is stated that a letter dated 01.04.1999 was issued by SRA to the architect of Indira stating inter alia that scheme of Indira was recorded. Again in paragraph 2(g) of the said affidavit, it is stated that on 09.04.1999 SRA had issued a letter to the architect of Indira informing him that the previous letter dated 01.04.1999 issued by SRA recording the scheme was revoked till further orders of the Court.
60. It is the stand of Mr. Kamdar, learned senior counsel for Indira, that it was for the first time after 20 years that SRA had stated about the letters dated 01.04.1999 and 09.04.1999 that too after the abortive attempt made by Prem Siddha to introduce the two letters in the earlier round of final hearing. Therefore, these two letters would have to be taken with a pinch of salt, he submits.
61. There was much argument between Mr. Kamdar and Mr. Nankani, learned senior counsel for the rival parties about the import and meaning of the words 'revoke' and 'abeyance' in the context of the letter dated 09.04.1999 revoking the previous letter dated 01.04.1999 till further orders of the Court. While according to Mr. Kamdar, revocation would mean cancellation, Mr. Nankani on the other hand would assert that in the overall context of the letter dated 09.04.1999, the expression 'revoked till further orders of the Hon'ble Court in the matter' can only mean keeping in abeyance and such abeyance would be subject to 29/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc further orders of the Court. According to him since Indira had withdrawn the civil suit from the City Civil Court, the revocation order would automatically stand recalled. This is also the stand of Ms.Vhatkar, learned counsel for SRA who submits that after withdrawal of the suit it was open to SRA to take any decision and that decision is in the form of letter dated 01.04.1999 which stood revived.
62. We are afraid we can accept such submission of learned counsel for Prem Siddha and learned counsel for SRA. First and foremost, the very appearance of these two letters in the affidavit filed by SRA on 13.09.2019, more than 20 years after its issuance itself raises grave doubts about the veracity and authenticity of these two letters. This doubt of ours is further fortified by issuance of the order dated 14.10.2009 by SRA which is the subject matter of contestations before the HPC. Now when we have taken a decision to set aside the order of HPC dated 06.03.2014, the order of SRA dated 14.10.2009 would stand revived and would now be subject matter of deliberation before HPC. In this order of SRA there is no mention about any recording of the scheme of Indira ten years earlier on 01.04.1999. On the other hand, in the order dated 14.10.2009, SRA proceeded on the basis that the scheme of Indira was subsisting but because of delay and laches on the part of the developer Shiv Kripa, development agreement with the developer was terminated and a new developer Om Omega was appointed. Had the scheme of Indira been recorded (terminated) there would have been no occasion for SRA to change developer.
63. At this stage, we may once again advert to the order dated 20.08.2013 passed by a Division Bench of this Court in Writ Petition No.1696 of 2013 (Shiv Kripa Vs. HPC). By the said order, this Court while interfering with the observation of the HPC held that SRA rightly did not consider viability of the scheme as that was not an issue. The issue before HPC was the proceedings under section 13(2). Accordingly, HPC was directed to pass final order on the merit of the controversy 30/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc pertaining to the proceedings under section 13(2) on the basis of the available record.
64. We have already discussed above that if the scheme of Indira had really been recorded on 01.04.1999 by SRA then there would not have arisen any occasion for SRA to pass the order dated 14.10.2009 changing the developer of Indira, meaning thereby that scheme of Indira was holding the field but for execution of the same the earlier developer had to be changed for delay and laches. When this order was challenged by Shiv Kripa before a Single Bench of this Court in Writ Petition No.2371 of 2009, the said order was set aside vide judgment and order dated 15.04.2011 directing that Shiv Kripa would continue as the developer. While holding so, learned Single Judge granted liberty to the parties i.e., Indira, Om Omega and Shiv Kripa to settle the matter in the public interest and in the interest of the scheme i.e., the scheme of Indira. Shiv Kripa was directed to take appropriate steps for development of the scheme. This means that learned Single Judge had proceeded on the basis that the scheme of Indira was the valid scheme and that it should be executed through Shiv Kripa. SRA did not contend before learned Single Judge that the scheme of Indira was recorded on 01.04.1999. When the Division Bench in appeal set aside the judgment and order of the learned Single Judge dated 15.04.2011 vide common judgment and order dated 22.08.2011 relegating Shiv Kripa to the forum of HPC, then also SRA did not point out or contend that scheme of Indira was not valid and therefore there was no need to go back to HPC. When the matter went to the Supreme Court and the Supreme Court did not interfere with the Division Bench judgment and order dated 22.08.2011 then also there was no contention on behalf of SRA that scheme of Indira no longer held the field. In fact, Supreme Court in the order dated 08.11.2011 had granted opportunities to Shiv Kripa, Indira and Om Omega to present their respective cases before the HPC. Therefore, what is clearly discernible is that even the Supreme Court proceeded on the basis that scheme of Indira was holding the field but 31/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc the question was whether to continue with the original developer or appoint a new one. Before the Supreme Court also, SRA did not take the stand that scheme of Indira was recorded. As a matter of fact, when the HPC had set aside the order of SRA dated 14.10.2009 vide order dated 12.03.2013 on the ground that SRA had not gone into the question of viability of the scheme of Indira, a Division Bench of this Court vide order dated 20.08.2013 passed in Writ Petition No.1696 of 2013 held that SRA rightly did not consider viability of the scheme as that was not germane to the proceedings under section 13(2) of the Slum Act, further holding that HPC should pass final order on the merit of the controversy pertaining to proceedings under section 13(2) of the Slum Act on the basis of the record. It was thereafter that HPC passed the impugned order dated 06.03.2014. Even before the HPC, SRA did not take the stand that scheme of Indira was recorded and therefore it need not proceed in the matter relating to change of developer to execute the scheme of Indira.
64.1. We may also mention that SRA had issued letter of intent dated 31.12.1999 in favour Indira and Shiv Kripa. Thereafter, on 30.03.2000, SRA approved the building plan of rehab building No.10 and issued intimation of approval as well as commencement certificate. If indeed the scheme of Indira was recorded on 01.04.1999, then SRA would not have issued letter of intent, approved building plan and issued intimation of approval as well as commencement certificate post 01.04.1999 as above.
64.2. Thus in the light of the above factual matrix, sudden appearance of the letters dated 01.04.1999 and 09.04.1999 at the time of hearing in July, 2019 i.e., for the first time after 20 years that too at the hands of a private party and not through SRA raises more questions than it seeks to answer. Therefore, no reliance can be placed on the letters dated 01.04.1999 and 09.04.1999.
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65. Ms. Vhatkar, learned counsel for SRA submits that SRA is bound by order dated 14.10.2013 passed by a Division Bench of this Court in Writ Petition No.1762 of 2006 filed by Birla. In the said writ petition, the following prayers were made:-
a. to set aside and quash orders dated 06.12.1999, 22.03.2000 and 28.07.2000 passed by Maharashtra Special Slum Tribunal;
b. for a declaration that Indira is not entitled to develop the land belonging to Birla;
c. for a declaration that Maharashtra Special Slum Tribunal constituted under the Slum Act is not authorized to act as an appellate authority;
d. to prohibit Indira from developing the land of Birla;
e. to permit Prem Siddha and Andromeda to implement slum rehabilitation scheme on the land belonging to Birla; and ee. to declare clause 1.12 of the Development Control Regulations as being ultra vires and null and void.
66. The basic contention of Birla was that the orders dated 06.12.1999, 22.03.2000 and 28.07.2000 had adversely affected Birla but without issuing notice to it and without hearing it, the above orders were passed by Maharashtra Special Slum Tribunal infringing upon their property rights. It was in that context the above orders were set aside and quashed. However, this Court declined to grant the reliefs in terms of prayer clauses (b) onwards noting that there was a serious dispute as to whether Birla could be termed as a lessee which was hotly contested by the parties. Liberty was granted to Birla to approach the competent civil court keeping all contentions open.
67. We fail to understand as to how the aforesaid order dated 14.10.2013 of this Court can come to the aid of the changed stand of 33/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 ::: WP2421_16&group.doc SRA. SRA is not only bound by the above order dated 14.10.2013 but by all judgments and orders of this Court including the judgment and order dated 20.08.2013 passed in Writ Petition No.1696 of 2013. At the cost of repetition we record that SRA has not disowned its order dated 14.10.2009 which now stands revived in view of our present judgment and which would be subject to adjudication before HPC. On the face of the order dated 14.10.2009, the show-cause notice dated 25.03.1999, letter dated 01.04.1999 and letter dated 09.04.1999 lose all significance, having been rendered redundant.
68. Challenge in Writ Petition (L) No.672 of 2015 filed by Shiv Kripa, Writ Petition No.2424 of 2015 filed by Om Omega and Writ Petition No.2595 of 2015 filed by Indira is to the notice dated 26.03.2015 issued by SRA whereby SRA had attempted to render null and void Indira's slum rehabilitation scheme. We have already recorded that in the hearing held on 12.10.2015, Mr. Kumbhakoni, learned senior counsel appearing on behalf of SRA had submitted before the Court on instructions that the letter dated 26.03.2015 would be withdrawn. Accordingly, the said letter was withdrawn. In view of such development, the above writ petitions have now been rendered infructuous.
69. One last word about SRA. SRA is a public authority. Being a public body, it has to act in a fair and judicious manner. It must be consistent in its stand and all its actions must be transparent and above board. It must discharge its statutory duties in an impartial manner and must not be seen to be taking sides. It must always remain alive to the prime objective of the Slum Act and act accordingly.
70. Thus having regard to the discussions made above, we summarize our conclusions in the following manner:-
34/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 :::WP2421_16&group.doc Sr. Writ Petition Outcome / No. Remark 1 Writ Petition No.505 of 2015 Allowed. 2 Writ Petition (L) No.672 of 2015 Infructuous.3 Writ Petition No.1205 of 2015 Allowed. 4 Writ Petition No.2424 of 2015 Infructuous. 5 Writ Petition No.2595 of 2015 Infructuous. 6 Writ Petition No.2421 of 2016 Dismissed 7 Writ Petition No.396 of 2020 Dismissed.
71. Consequently, we remand the matter back to HPC to hear the parties on the legality and validity of the order dated 14.10.2009 passed by SRA under section 13(2) of the Slum Act. HPC shall issue notice of hearing to MCGM and after hearing the concerned parties pass appropriate order in accordance with law. We make it clear that since HPC is the highest fact-finding body, it shall decide the matter and the related issues at its level itself and not remand the matter to SRA. This order we have passed in view of the multiple and protracted litigation that has been witnessed to the prejudice of the eligible slum-dwellers and in the process 27 long years have passed without any tangible benefits to the eligible slum-dwellers. Let HPC take the final decision within a period of three months from the date of receipt of a copy of this judgment and order.
72. All the writ petitions are disposed of in the manner indicated above.
73. Consequently, all the related contempt petitions and interim applications are also disposed of.
74. However, there shall be no order as to costs.
(MADHAV J. JAMDAR, J.) (UJJAL BHUYAN, J.) Minal Parab 35/35 ::: Uploaded on - 20/10/2021 ::: Downloaded on - 21/10/2021 04:17:42 :::