Bombay High Court
Sayeeda Gulamrasul Sayed vs State Of Maharashtra, Through ... on 18 December, 2014
Bench: Ranjit More
J-WP-8410/14 group.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8410 OF 2014
Sayeeda Gulamrasul Sayed. ..Petitioner.
Versus
State of Maharashtra and Others. ..Respondents.
WITH
WRIT PETITION NO. 8414 OF 2014
Sajid Ali Abid Ali. ..Petitioner.
Versus
State of Maharashtra and Others. ..Respondents.
WRIT PETITION NO. 8412
ig OF 2014
Liliahi Mehboob Ansari. ..Petitioner.
Versus
State of Maharashtra and Others. ..Respondents.
Common Appearance in all writ petitions :
Mr. P. K. Dhakephalkar and Mr. P. S. Dani, Senior Advocates
with Mr. Ajay Patil for the Petitioner.
Mr. Ravi Kadam, Senior Advocate with Mr. Ashish Kamat i/b Mr.
M. S. Surana for Respondent No.3.
Mr. Praveen Samdani, Senior Advocate with Mr. A. N. jakhadi
for Respondent Nos. 4 to 6.
Mr. Vijay D. Patil and Mr. Jagdish Reddy for Respondent No. 6.
Ms. P. S. Cardozo, AGP for the State Authorities.
Coram : RANJIT MORE, J.
Judgment reserved on : December 5, 2014.
Judgment pronounced on : December 18, 2014.
Oral Judgment :
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1. Rule. Rule made returnable forthwith. The
learned Counsel appearing for the Respondents waive service.
Since the issue involved in the writ petitions is in narrow
compass, by consent of the learned Counsel and Senior
Counsel appearing for the respective parties, writ petitions are
forthwith taken up for final hearing.
2. As all these writ petitions are off-shoot of a
common order passed by the Divisional Joint Registrar of Co-
operative Societies, Mumbai Division, Mumbai [for short "the
DJR"] in exercise of revisional jurisdiction under section 154 of
the Maharashtra Co-operative Societies Act, 1960 [for short
"the MCS Act"] and the issue involved in the petitions being
the same, these three petitions are being disposed of by this
common order.
3. For the sake of convenience and brevity, only the
facts of Writ Petition No. 8410 of 2014 are being discussed in
this common order.
4. By this writ petition under Article 227 of
Constitution of India, the Petitioner is challenging the order
dated 11th September 2014 passed by the DJR in Revision
Application No.296 of 2014. By the said order, the DJR has set
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aside the letter dated 15th July 2014 issued by the Assistant
Registrar of Co-operative Societies, SRA, Mumbai.
5. The factual matrix giving rise to the present
petition is thus :
[A] The Petitioner claims to be the meeting convener /
organiser of the Hind Ekta SRA Griha Nirman Sanstha
(Proposed) situated at Mahim, Mumbai. [for short "the
proposed society"]. The property on which the
structures of the members of the Petitioner are situated
is declared as slum under the provisions of section 4 of
The Maharashtra Slum Areas (Improvement, Clearance &
Redevelopment) Act, 1971 [for short "the Slum Act"].
Thereafter the occupants of the property decided to re-
develop the said property under the amended provisions
of Regulation No.33(10) of the Development Control
Regulations for Greater Mumbai, 1991 and formed
proposed society.
[B] In the general body meeting of the proposed society held
on 9th January 2006, Shree Nidhi Concept Realtors Pvt.
Ltd. [for short "Shree Nidhi"] was appointed as developer
for the implementation of said redevelopment scheme.
Accordingly, development agreement and irrevocable
power of attorney was executed by the proposed society
in favour of Shree Nidhi on 17 th October 2006. It is the
case of the Petitioner that though said Shree Nidhi was
appointed as developer in the year 2006, not a single
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step was taken by Shree Nidhi till the year 2014,
therefore all the members of the proposed society
unanimously decided to terminate the agreement with
Shree Nidhi as their developer and consequently passed
a resolution on 31st May 2014 of termination, revocation,
cancellation and withdrawal of the development
agreement and power of attorney dated 17 th October
2006 made in favour of Shree Nidhi. This decision was
communicated by the proposed society to Shree Nidhi on
14th June 2014.
[C]
In the general body meeting of the proposed society held
on 22nd June 2014, resolution was passed unanimously
appointing M/s. SLK Buildcon Private Ltd. [for short
"SLK"] as their new developer for the implementation of
the slum redevelopment scheme of the said property.
The said decision was immediately communicated to the
Slum Development Authority [for short "the SRA"] and
fresh development agreement and power of attorney
was executed in favour of SLK.
[D] It is the case of the Petitioner that in the meanwhile,
Respondent No.3 by using letter head of the proposed
society fraudulently submitted an application to the
office of Assistant Registrar, Co-operative Societies, SRA,
Mumbai [for short "the AR-SRA"] for name reservation
and shown himself to be the Chief Promoter.
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[E] The Chief Executive Officer of SRA [for short "the CEO"],
by his letter dated 11th July 2014 directed the AR-SRA to
hold a general body meeting of the proposed society.
Accordingly, the AR-SRA by his letter dated 15 th July 2014
informed the proposed society to call for the general
body meeting of all the eligible slum dwellers for election
of Chief Promoter and other Promoters and to ascertain
whether earlier developer has consent of more than 70%
eligible slum dwellers for implementation of the slum
rehabilitation scheme on the said property.
[F]
Respondent No.3 being aggrieved by the afore-said
letter of AR-SRA, filed revision under the provisions of
section 154 of the MCS Act before the DJR, being
Revision Application No.296 of 2014. The DJR by the
order impugned in this petition has quashed and set
aside the said letter of the AR-SRA.
6. Mr. Dhakephalkar, the learned Senior Counsel
appearing for the Petitioner submitted that the said property is
being redeveloped under the provisions of Regulation
No.33(10) of the Development Control Regulations for Greater
Mumbai 1991 and the slum rehabilitation scheme framed by
Government of Maharashtra. He submitted that for
implementation of the slum rehabilitation scheme, the SRA has
issued various circulars. Under those circulars, the CEO is
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required to ascertain as to which developer has consent of
more than 70% eligible slum dwellers. He further submitted
that developer appointed earlier, i.e., Shree Nidhi has not
taken any steps therefore development agreement with the
said developer has been cancelled and new developer by
name SLK is appointed by the proposed society. Since there
were rival claims about the termination of Shree Nidhi and
appointment of new developer, the CEO to ascertain which
developer has consent of more than 70% eligible slum
dwellers, has instructed AR-SRA to issue a communication to
the proposed society to hold fresh meeting of the general body
of the proposed society. He submitted that this decision was
taken by the CEO and only the communication thereof is made
by the AR-SRA, therefore, the DJR could not have entertained
the revision application filed by Respondent No.3 under section
154 of the MSC Act. He submitted that the CEO is neither
subordinate to the DJR nor the decision was taken by the CEO
in exercise of powers conferred upon him under MCS Act and
therefore the impugned order cannot be sustained.
7. Mr. Kadam, the learned Senior Counsel appearing
for Respondent No.3 and Mr. Samdani, the learned Senior
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Counsel appearing for Respondent Nos.4 to 6, contested the
petition vehemently. They supported the impugned order and
submitted that AR-SRA cannot be said to be an authority under
section 3G of the Slum Act nor he is an officer of the SRA.
They submitted that the order of the AR-SRA directing the
Chief Promoter to convene the general body meeting of the
proposed society is in excess of jurisdiction conferred upon him
under the MCS Act and therefore it is rightly set aside by the
DJR in exercise of revisional jurisdiction. They also submitted
that the DJR has approached the matter from correct point of
view and has rightly set aside the communication of the AR-
SRA. They relied upon the decision of Division Bench of this
Court in Awdesh vs. Chief Executive Offider [2006(4) Mh.L.J.]
to support their contention.
8. Mr. Vijay Patil, the learned Counsel appearing for
the SRA supported the Petitioners. He submitted that the
communication of AR-SRA is in pursuance of the decision taken
by the CEO. The said communication is not issued under the
provisions of the MSC Act and therefore cannot be revised by
the DJR in exercise of powers under section 154 of the MCS
Act. He submitted that the revision itself was not
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maintainable and therefore the impugned order deserves to be
quashed and set aside.
9. Having considered rival submissions and having
gone through the compilation annexed to the petition along
with the impugned orders, I find merit in the petition.
. Parties are not at dispute that initially, in the year
2006, Shree Nidhi was appointed by the proposed society as
developer to redevelop the said property and this development
agreement has been terminated in the year 2014 and new
developer by name SLK is appointed to redevelop the said
property. The record indicates that the proposed society has
not been registered and there are rival claims by the members
of the society regarding the appointment and termination of
the developers. Several applications/complaints from the
members of the proposed society were received by the SRA in
this regard. The CEO in the light of disputes regarding the
appointment and termination of the developer to redevelop
the property and in view of Circular Nos.72 and 80 came to the
conclusion that fresh general body meeting of the proposed
society be held in the presence of the representative of SRA in
order to ascertain which of the developers has consent of more
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than 70% eligible slum dwellers and accordingly by his order
dated 11th July 2014 directed the AR-SRA to hold general body
meeting of the proposed society. Pursuant to the directions
given by the CEO, the AR-SRA on 15 th July 2014 issued
communication to the proposed society whereby, the AR-SRA
has directed the Chief Promoter / Meeting Convener of the
society to call for the general body meeting of the eligible slum
dwellers to elect the Chief Promoter and Other promoters, to
consider whether the present developer - Shree Nidhi has the
consent of more than 70% slum dwellers and if not to take
decision on the appointment of new developer - SLK.
10. The learned Senior Counsel appearing for
Respondent No.3 and 4 to 6 have not disputed that CEO is not
subordinate to the DJR and his decision is not amenable to the
revisional jurisdiction of the DJR under section 154 of the MSC
Act. The dispute is about the communication by the AR-SRA to
the Chief Promoter of the proposed society.
11. I have gone through the said letter issued by the
AR-SRA. By the said letter, the Chief Promoter / Meeting
Convener of the proposed society was informed to hold the
general body meeting of the members - eligible slum dwellers
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for electing the Chief Promoter and Other Promoters and to
consider which of the developers has consent of more than
70% eligible slum dwellers. In my view, the decision dated
11th July 2014 taken by the CEO is administrative decision and
that the AR-SRA has merely communicated this decision of the
CEO to the Chief Promoter / Convener of the proposed society.
The AR-SRA has not taken any independent decision but he
has acted on the directions of the CEO. This communication,
therefore, cannot be said to be a decision or order passed
under any provision of the MSC Act within the meaning of
section 154 of the MSC Act and therefore, DJR could not have
entertained the revision filed by Respondent No.3.
12. It is pertinent to note that AR-SRA by filing reply in
the revision of Respondent No.3 specifically pointed out that
revision is not maintainable. The DJR, however, observed that
the power under the MSC Act are delegated to the AR-SRA for
registration and administration of housing societies of the slum
dwellers in Greater Mumbai. The DJR further observed that AR-
SRA before convening the general body meeting ought to have
thoroughly verified the factual position and without following
this procedure he could not have convened the general body
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meeting. He also observed that AR-SRA ought to have
convened a joint general body meeting of all three societies,
including the society involved in the present writ petition. It is
unfortunate that despite specific reply of the AR-SRA, the DJR
has held that he has jurisdiction to entertain the revision of
Respondent No.3. The jurisdiction is assumed on the ground
that the AR-SRA is an authority for registration and
administration of the co-operative housing society of slum
dwellers. The DJR, however, overlooked the fact that societies
are the proposed societies and not yet registered and
therefore there is no question of administration of the co-
operative society. The DJR has no jurisdiction or concern about
the procedure adopted by the CEO. The DJR ought to have
considered that the AR-SRA has acted on the instructions of
the CEO. The procedure which the DJR talks about is adopted
by the CEO and he could not have gone into the validity
thereof. Considering the matter from any point of view, in my
opinion, the impugned order passed by the DJR cannot be
sustained as the same is without jurisdiction and liable to be
quashed and set aside.
13. Before parting with the matter, reference must me
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made to Awadesh's case (supra) relied upon by the learned
Senior Counsel appearing for Respondent Nos.3 and 4 to 6. I
have gone through the said decision, which lays down the
procedure to be followed in implementation of the slum
redevelopment scheme under Regulation No. 33(10) of DCR
for Greater Mumbai, 1991. If it is the case of the Respondents
that the CEO has not followed the procedure as laid down in
the said decision, then, they can approach the appropriate
authority, however under no circumstances, the challenge to
the decision of CEO or communication thereof by the AR-SRA
could have been entertained by the DJR in exercise of
revisional powers under section 154 of the MSC Act.
14. In the light of above discussion, rule is made
absolute in terms of prayer clause (b) in all the petitions.
[RANJIT MORE, J.]
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