Bombay High Court
Platium Realty And Anr vs The State Of Maharashtra And 6 Ors on 27 June, 2017
Bench: R.M. Savant
wp-1688.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1688 OF 2016
1] M/s. Platinum Realty ]
Through its Partner ]
Mr.Krishnakant Mulik ]
having its Office at G/3, ]
Shantinath Appartment, ]
S.V.Road, Borivali (West), ]
Mumbai - 400 092 ]
]
2] M/s. Jaihind SRA Co-operative Society ]
(Proposed), through its Chief Promoter ]
Shri Lahu Dadu Khalse, situated at ]
Survey No.359, CTS No.621, 622 (Pt.), ]
of Village Chembur, Tal. Kurla ]
Dr. Ambedkar Nagar, Old Reti Bundar ]
Pestom Sagar Road No.6, ]
Chembur, Mumbai - 400 089 ]..... Petitioners.
Versus
1] The State of Maharashtra ]
Through its Principal Secretary, ]
Housing & Spl. Establishment Deptt. ]
Mantralaya, Mumbai - 400 023. ]
]
2] The High Power Committee-II, ]
Government of Maharashtra ]
Administrative Building, ]
Anant Kanekar Marg, Bandra (East) ]
Mumbai - 400 051 ]
]
3] The Chief Executive Officer, ]
Slum Rehabilitation Authority ]
Administrative Building, ]
Anant Kanekar Marg, Bandra (East), ]
Mumbai - 400 051 ]
]
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4] The Addl. Collector, ]
(Encroachment & Removal) ]
Eastern Suburban, Industrial Assurance ]
Building, 1st floor, Churchgate, ]
Mumbai - 400 020 ]
]
5] The Deputy Collector, ]
(Encroachment & Removal), ]
& Competent Authority, ]
th
10 Road, Near D. K. Sandu Garden, ]
Opp. Axis Bank, Chembur (East), ]
Mumbai - 400 071 ]
]
6] Navbharat SRA Co-operative Housing ]
Society (Proposed), through its Chairman]
Shri Ashok Yadu Londhe, Chairman ]
situated at Survey No.359, CTS No.621, ]
& Masanvata (Graveyard) of Village ]
Chembur, Tal. Kurla, Dr.Ambedkar Nagar ]
Old. Reti Bunder Road, Chembur, ]
Mumbai - 400 089. ]
]
7] M/s.Unique Property Enterprises Pvt.Ltd.]
The Developers, Registered office at 5/3, ]
New Municipal Chawl, Laxmibaug, ]
Sion (West), Mumbai - 400 022 ]
Through its Directors, ]
]
(a) Shri Rajendra Dattatram Korde, ]
(b) Smt. Kunda Rajendra Korde. ]
AND its Licensed Surveyor/Architect who]
is former Assistant Engineer of S.R.A. ]
and Benami Proprietor cum Financer, ]
(c) SHRI. VILAS P KHARCHE, ]..... Respondents.
Mr. A .Y. Sakhare, Senior Advocate i/by Mr. U. T. Naik for the Petitioners.
Mr. P. K. Dhakephalkar, Senior Advocate i/by Mr. J.G.Reddy for the
Respondent Nos.2 and 3.
Mr.V. B. Naik, Senior Advocate i/by Mr. S G Surana for the Respondent
No.6.
Mr. P. K. Samdani, Senior Advocate i/by Mr. C. N. Gole for the Respondent
No.7.
Mr. L. T. Satelkar, AGP, for the Respondent Nos.1, 4, and 5.
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CORAM : R. M. SAVANT &
SMT. SADHANA S JADHAV, JJ.
DATE : 27th June 2017
JUDGMENT :- (Per R.M.SAVANT, J.)
1 Rule, with the consent of the learned counsel for the parties made
returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the order
dated 18/02/2016 passed by the High Power Committee by which order the
representation/application filed by the Petitioners came to be dismissed.
3 The facts giving rise to the filing of the above Petition can in brief
be stated thus :-
The Petitioner No.1 is a Developer and the Petitioner No.2 claims
to be a Society of the slum dwellers who have their structures on the land
bearing Survey No.359 CTS Nos.621, 622 (Part) of village Chembur, Taluka
Kurla, Mumbai. The Petitioner No.2 i.e. the Society of the slum dwellers
appointed the Petitioner No.1 as the Developer for construction of the
buildings to rehabilitate the slum dwellers by passing a resolution in the
meeting held on 10/10/2010. It seems that the Petitioner No.2 entered into a
Development Agreement with the Petitioner No.1 on 13/10/2010. The
Petitioner No.2 handed over to the Petitioner No.1 the Power of Attorney and
the common consent of more than 70% of the slum dwellers as per the
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resolution passed in the Extraordinary General Body Meeting of the Petitioner
No2 Society. The members of the Petitioner No.2 thereafter it seems executed
individual Consent-cum-Agreements in respect of 116 slum dwellers out of 128
members of the Petitioner No.2 Society and handed over the said Agreements
between the period 25/10/2010 to 08/11/2010 to the Petitioner No.1. It is
after obtaining the consent of more than 70% of the slum dwellers that the
Petitioner No.1 initiated a proposal for the implementation of the Slum
Rehabilitation Scheme under the aegis of the Maharashtra Slum Areas
Improvement, Clearance and Redevelopment Act (for short "the Slum Act").
4 It seems that prior to the proposal being forwarded by the
Petitioners herein, the Respondent No.7 - developer submitted a proposal on
27/01/2011 on behalf of the Respondent No.6 - society, which is also
constituted by the slum dwellers on the said plot of land, to the Slum
Rehabilitation Authority for slum redevelopment under the Development
Control Rule 33(10) of the Development Control Regulations for Greater
Mumbai 1991, applicable to the city of Mumbai. Along with the said proposal
it seems that the Respondent No.7 also submitted the documents which are
required to be submitted in support of the said proposal. The said proposal was
based on a Draft Annexure II i.e. the list of the slum dwellers who had their
structures on the said plot of land. The said list was in respect of 92 members
of the Respondent No.6, out of which the names of 53 members appeared in
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the electoral roll as on 01/01/1995. Out of the said 53 names the proposal
contained the common consent of about 40 members. The said proposal was
submitted by the Respondent No.7 after it was appointed as the Developer for
implementing the Slum Rehabilitation Scheme on the plot of land in question.
The said proposal of the Respondent No.7 on behalf of the Respondent No.6
was processed by the Slum Rehabilitation Authority (for short "the SRA") as
per its practice and the same culminated in the Unique Computerization
Number being given to the proposal of the Respondent No.7 on 01/03/2011.
This was after the proposal was pre-scrutinized by the Executive Engineer and
after carrying out the visit of the site in question. After the Unique
Computerization Number was given to the proposal of the Respondent No.7,
the Respondent No.7 paid the scrutiny fees. Thereafter the proposal was in
depth scrutinized the Respondent No.3 - SRA found that the proposal of the
Respondent No.7 was in order and called upon it to pay the development
charges. The Respondent No.7 has thereafter paid the development charges
and has been issued Letter of Intent (LOI) dated 23/01/2014. The certified
Annexure-II in respect of slum-dwellers on the land in question was issued on
29/05/2013. The Deputy Collector and Competent Authority issued a
supplementary Annexure-II on 19/05/2016 in respect of the adjoining slum
area consisting of 36 structures certifying that out of the said 36 slum-dwellers,
20 slum-dwellers are eligible, and out of the said 20 slum-dwellers, 13 have
given written consent to the Respondent Nos.6 and 7. Accordingly the
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Respondent No.3 - SRA issued a revised Letter of Intent on 23/01/2014
amalgamating adjoining slum scheme with the slum scheme of the Respondent
No.7.
5 Since the proposal of the Petitioners was not accepted by the SRA
on the ground that the proposal of the another Society i.e. the Respondent
Nos.6 and 7 was already received on 01/03/2011, the Petitioners filed a
complaint on 18/04/2011 before the Chief Executive Officer, SRA in respect of
the non-compliance of the proposal of the Petitioners and against the
acceptance of the alleged incomplete proposal of the Respondent Nos.6 and 7.
The said complaint was forwarded by the Chief Executive Officer, SRA to the
Deputy Registrar of Co-operative Societies, SRA. The Deputy Registrar of Co-
operative Societies, SRA vide letter dated 28/06/2011 informed the Petitioners
that since the proposal of the Respondent No.7 on behalf of the Respondent
No.6 has already been submitted on 27/01/2011 in respect of the same land,
the proposal submitted by the Petitioners could not be accepted till a final
decision is taken on the proposal submitted by the Respondent Nos.6 and 7.
The Petitioners aggrieved by the said reply dated 28/06/2011 from the Deputy
Registrar of Co-operative Societies, SRA, filed an Application before the High
Power Committee being Application No.279 of 2011. In the said Application
the relief sought was of a direction to the Chief Executive Officer, SRA to
accept the proposal of the Petitioners and then consider the same after the final
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decision is taken on the first proposal i.e. the proposal of the Respondent Nos.6
and 7. The second relief sought was of setting aside the letter dated
28/06/2011 addressed by the Deputy Registrar of Co-operative Societies, SRA
informing the Petitioners that their proposal could not be accepted in view of
the receipt of the proposal of the Respondent Nos.6 and 7 prior in point of
time. The Application was founded on the ground that the proposal submitted
by the Respondent Nos.6 and 7 on 27/01/2011 was not meeting the
requirements as stipulated by the guidelines applicable to the Slum
Rehabilitation Scheme under Regulation 33(10) of the Development Control
Regulations for Greater Mumbai 1991, as the Respondent Nos.6 and 7 did not
have the consent of 70% of the slum dwellers and that the consents shown
were false and bogus. The Application was also founded on the ground that
the Respondent No.7 could not be permitted to improve upon its proposal
which was initially defective so as to deprive the Petitioners from submitting
their proposal. This was the main plank of challenge in the said Application.
6 Before the High Power Committee, the SRA had submitted its
report as well the Respondent Nos.6 and 7 had also filed their replies to the
Application filed by the Petitioners. The SRA in its report it seems had set out
the procedure followed by it for consideration of the proposal submitted for a
Slum Rehabilitation Scheme under Regulation 33(10) of the Development
Control Regulations for Greater Mumbai, 1991. In so far as the Respondent
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Nos.6 and 7 are concerned, they have justified the submission of the proposal
on the ground that the Respondent No.7 had the consent of more than 70% of
the slum dwellers who are on the plot of land in question. It was submitted on
behalf of the Respondent Nos.6 and 7 that individual agreements have also
been entered into with the eligible slum dwellers who constitute 70% of the
said eligible slum dwellers and therefore the proposal submitted by the
Respondent Nos.6 and 7 was in terms of the guidelines which were applicable
to the Slum Rehabilitation Scheme under Regulation 33(10) of the
Development Control Regulations for Greater Mumbai, 1991.
7 The High Power Committee considered the said Application filed
by the Petitioners. Since the principal allegation against the Respondent No.6
in the said Application was that the Respondent Nos.6 and 7 did not have the
consent of 70% of the slum dwellers as per the Draft Annexure-II, the High
Power Committee considered the said issue. The High Power Committee
observed that on the date when the proposal was submitted the names of 53
slum dwellers were appearing in the electoral roll as on 01/01/1995 and 40
slum dwellers out of the said 53 have given common consent on 25/01/2011
i.e. about 74% had given consent to the submission of the proposal by the
Respondent No.7 on behalf of the Respondent No.6. The High Power
Committee observed that the procedure followed by the SRA was not in
violation of the guidelines framed under Regulation 33(10) of the
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Development Control Regulations for Greater Mumbai, 1991, and the Circular
No.14 dated 03/04/1998. The High Power Committee observed that in so far
as Circular No.14 dated 03/04/1998 is concerned, it stipulates that if
individual agreements are submitted at the time of submission of proposal,
there is no need of insisting upon the consent or sanction of the slum dwellers
appearing in Annexure-II. The High Power Committee, therefore, held that if
there were to be a common consent of 70% of the slum dwellers, then there is
no need for submission of individual agreements at the time of submission of
the proposal. The High Power Committee therefore held that the contention
on behalf of the Applicants that the said guidelines have been breached, could
not be accepted. The High Power Committee thereafter referred to the
procedure which was followed by the SRA and referred to various steps
through which the proposal of the Respondent Nos.6 and 7 passed through.
The High Power Committee noted that though the proposal was submitted by
the Respondent Nos.6 and 7 on 01/03/2011 along with scrutiny fees and
Unique Computerization Number was allotted to the said proposal on
01/03/2011, the Applicants i.e. the Petitioners herein had submitted the
proposal on 21/03/2011 i.e. long after the proposal was submitted by the
Respondent Nos.6 and 7 and after the said proposal of the Respondent Nos.6
and 7 was processed by the SRA. The High Power Committee concluded that
the proposal submitted by the Respondent Nos.6 and 7 was complete in all
respects and was accepted by the SRA prior to the partner of the Petitioner
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No.1 coming to the SRA on 21/03/2011 for submission of its proposal on
behalf of the Petitioner No.2. The High Power Committee therefore observed
that the SRA was justified in processing the proposal of the Respondent Nos. 7
and accordingly dismissed the Application. As indicated above, it is the said
order dated 18/02/2016 passed by the High Power Committee which is taken
exception to by way of the above Writ Petition.
8 To the above Writ Petition, reply affidavits have been filed by the
Respondent No.3 - SRA, the Respondent No.6 i.e. the society, and the
Respondent No.7 i.e. the developer, in which affidavits the case of the
Petitioners has been dealt with.
9 SUBMISSION OF THE LEARNED SENIOR COUNSEL SHRI. A. Y.
SAKHARE ON BEHALF OF THE PETITIONERS :-
A] That the Respondent No.3 - SRA erred in accepting the incomplete
proposal of the Respondent No.7 on behalf of the Respondent No.6
on 01/03/2011.
B] That the acceptance of the incomplete proposal of the Respondent
Nos.6 and 7 was in violation of the guidelines which have been
framed for implementing Slum Rehabilitation Schemes under
Regulation 33(10) of the Development Control Regulations for
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Greater Mumbai, 1991.
C] That the Respondent No.3 - SRA erred in not accepting the
proposal of the Petitioners when the said proposal was complete in
all respects on the day when it was submitted i.e. on 21/03/2011.
D] That the Respondent No.3 - SRA erred in allowing the Respondent
No. 6 to progressively improve upon or cure the deficiencies in its
proposal which is not permissible in terms of the judgment of a
Division Bench of this Court reported in 2011(3) ALL MR 1 in the
matter of Atesham Ahmed Khan & ors. v/s. M/s. Lakadawala
Developers Pvt. Ltd. and ors.
E] That the relevant date for determining whether an Applicant's
proposal is received prior in point of time is the date when the
proposal complete in all respects is received.
F] That the High Power Committee has not taken into consideration
the letter of the Deputy Collector, Encroachment/Removal dated
04/06/2012 stating that in spite of opportunities granted, the
Respondent No.7 did not remove the deficiencies.
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G] That in terms of the Circular No.14 dated 03/04/1998, the
Respondent No.6 was enjoined to submit the written agreements
in respect of 70% of the slum dwellers at the time of submission of
its proposal, that admittedly having not been done so in the
instant case, the proposal of the Respondent No.7 was defective
and could not be accepted and processed.
10 SUBMISSION OF THE LEARNED SENIOR COUNSEL SHRI. P. K.
DHAKEPHALKAR, ON BEHALF OF THE RESPONDENT NO.3 -
SRA :-
i] That the Respondent No.3 SRA follows the procedure of a pre-
scrutiny after a receipt of the proposal in respect of the Slum
Rehabilitation Scheme, as it is not possible to scrutinize the
proposal there and then or immediately after its receipt in view of
the fact that such a proposal is usually based on a Draft Annexure-
II.
ii] That the Respondent No.3 after receipt of the proposal of the
Respondent No.7 assigned it to one of its Executive Engineers to
carry out the pre-scrutiny and thereafter assigned it to the Deputy
Engineer to carry out a site visit. It is after carrying out the said
process that a Unique Computerization Number was given to the
proposal of the Respondent No.7 and was directed to pay the
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scrutiny fees.
iii] That since the proposal of the Respondent No.7 was received prior
in point of time, that the Petitioners were informed that till the
fate of the proposal of the Respondent No.7 is decided, their
proposal cannot be considered.
iv] That the reliance placed on the Circular No.14 on behalf of the
Petitioners is misplaced as 70% consent is to be ascertained either
from a common consent given by 70% of the slum dwellers or the
developer submits agreements entered into with 70% of the slum
dwellers in which case common consent is not necessary.
v] That the reliance placed on the letter dated 04/06/2012 of the
Deputy Collector, Encroachment and Removal is misplaced, as the
same is the internal correspondence between the Deputy Collector
and the Additional Collector. Moreover, the Deputy Collector is
not the authority which grants the Letter of Intent (LOI) which
power is vested only with the Respondent No.3 - SRA.
vi] That in the instant case the proposal was received on the basis of a
Draft Annexure-II containing the names of 92 slum dwellers, out
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of which, names of 53 names were appearing in the electoral roll
as on 01/01/1995 out of which, 40 had given consent to the
Respondent No.7 and therefore about 74% had given their consent
when the proposal was submitted.
vii] That there is no violation of the guidelines in accepting the
proposal of the Respondent No.7 as the Respondent No.7 had the
consent of more than 70% when the proposal was submitted.
Permitting the developer to submit further consents or submit
agreements after the common consent is given cannot be said to
amount to improving upon the proposal.
11 On behalf of the Respondent No.6 the learned Senior Counsel Shri
V B Naik would in addition submit that the Petitioner No.2 has accepted the
transit rent and has also shifted to the transit accommodation and implicit in
the said fact is the acceptance of the fact that the Petitioner No.2 has accepted
the project being implemented by the Respondent Nos.6 and 7.
12 On behalf of the Respondent No. 7 the learned Senior Counsel Shri
P K Samdani would submit that the Respondent No.7 has been issued the IOD
and CC by the SRA, the structures on site have all been demolished and
presently levelling work is going on .
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CONSIDERATION :
13 Having heard the learned counsel for the parties, we have
considered the rival contentions. The question that is posed is, whether the
proposal filed by the Respondent No.7 on behalf of the Respondent No.6 could
have been considered by the Respondent No.3 SRA; and whether the
Respondent No.3 SRA was right in communicating to the Petitioners that their
proposal would only be considered after the fate of the proposal of the
Respondent No.7 is decided.
14 As indicated above, the Slum Rehabilitation Scheme under
Regulation 33(10) of the Development Control Regulations for Greater
Mumbai, 1991 is being implemented on the land bearing CTS No.621 and 622
(Part). In so far as the Slum Rehabilitation Schemes under Regulation 33(10)
of the Development Control Regulations for Greater Mumbai, 1991 are
concerned, the guidelines have been framed for Submission, Processing and
Approval of the Slum Rehabilitation Schemes for which the approval is granted
by the Slum Rehabilitation Authority. The said guidelines are in Part-IV of the
Development Control Regulations for Greater Mumbai, 1991. The SRA has
published a check list of the documents which are required to be submitted
along with a proposal for redevelopment of the land beneath the slum under
the the Slum Rehabilitation Scheme. In the context of the present controversy
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Clause 7 of Part IV of the guidelines is material and is reproduced herein under
:-
"7 The promoter so chosen has to enter into
agreement with every eligible slum-dweller while
putting up slum rehabilitation proposal to SRA for
approval. SRA is in the process of trying to evolve
standard formats for the following four types of
agreements required in the schemes, with the approval
of the State Government.
a) Consent-cum-agreement between the promoter
and the slum-dwellers.
b) Development rights / Agreement to lease
between the promoter and the land owning
authority.
c) Lease agreement between the land owning
authority and the co-operative society of slum-
dwellers.
d) Lease agreement between the land owning
authority and the co-operative society of free-sale
tenement buyers.
15 There are also circulars issued by the SRA in so far as the
submission and processing of the proposals are concerned, amongst the said
circulars is the Circular No.14 dated 03/04/1998. In the instant case, as
indicated above, the Respondent No.7 is the developer who has been appointed
by the Respondent No.6 - Navbharat SRA Co-operative Housing Society
(Proposed), which is a society of the slum-dwellers. The Respondent No.7
submitted its proposal on 27/01/2011 to the Respondent No.3 - SRA. The
Respondent No.3 after following its internal procedure of pre-scrutiny had
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issued Unique Computerization Number to the said proposal on 01/03/2011.
As indicated above, the said proposal was submitted on the basis of the Draft
Annexure-II consisting of about 97 slum-dwellers. Out of the said 97 slum-
dwellers, the names of 53 slum-dwellers were appearing in the electoral roll as
on 01/01/1995. Out of the said 53 slum-dwellers have given their common
consent in favour of the Respondent No.7 which common consent constituted
74% of the eligible slum-dwellers.
16 In so far as the Petitioners are concerned, the Petitioners had
submitted their proposal on 21/03/2011 i.e. a good 20 days after the proposal
of the Respondent No.7 was pre-scrunized and the Unique Computerization
Number was given to the said proposal of the Respondent No.7. It is in the
said circumstances that the Petitioners were informed that their proposal
cannot be considered till the fate of the proposal of the Respondent No.7 is
decided. The Respondent No.7 thereafter has made various compliances and
ultimately Letter of Intent (LOI) dated 23/01/2014 came to be issued to the
Respondent No.7. The Petitioners aggrieved by the reply given to their
proposal had complained to the Chief Executive Officer, SRA regarding the
acceptance of the alleged incomplete proposal of the Respondent No.7,
whereas not accepting the proposal of the Petitioners. The Chief Executive
Officer, SRA had forwarded the said complaint of the Petitioners to the Deputy
Registrar of Co-operative Societies, SRA. The Deputy Registrar of Co-operative
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Societies, SRA by letter dated 26/06/2011 communicated to the Petitioners of
the rejection of the complaint of the Petitioners. Aggrieved by the said
rejection of their complaint by the Deputy Registrar of Co-operative Societies,
SRA, the Petitioners filed an Application before the High Power Committee
which has been constituted to look into the grievances relating to the
implementation of the Slum Rehabilitation or Redevelopment Schemes. Before
the High Power Committee the Respondent No.3 - SRA has filed its report as
also the Respondent Nos.6 and 7 had filed their replies to the Application filed
by the Petitioners. The Petitioners as indicated above had before the High
Power Committee sought acceptance of their proposal and setting aside of the
letter dated 26/06/2011 whereby the Deputy Registrar of Co-operative
Societies, SRA had communicated to the Petitioners the rejection of their
complaint. The sum and substance of the case of the Petitioners in the
Application before the High Power Committee was that the proposal of the
Respondent No.7 was incomplete and that the Slum Rehabilitation Authority
had erred in permitting the Respondent No.7 to cure the deficiencies and
complete the proposal. As indicated above, it was the case of the Petitioners
before the High Power Committee that the consents which were purportedly
submitted by the Respondent No.7 along with its proposal were sham, bogus
and were also having bogus signatures of the slum-dwellers. The said
Application was considered by the High Power Committee and as indicated
above by the impugned order dated 18/02/2016 the High Power Committee
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has rejected the said Application. The High Power Committee as can be seen
from the impugned order has considered the case of the Petitioners that the
Respondent No.7 did not satisfy the requirements of 70% consent. The High
Power Committee has observed that when the proposal was submitted, 40
slum-dwellers had given their consents out of 53 slum-dwellers whose names
were appearing in the electoral roll. The High Power Committee has observed
in its order that as per the certified Annexure-II dated 29/05/2013 issued by
the Deputy Collector (Encroachment/Removal), out of 53 slum-dwellers who
are eligible out of the Draft Annexure-II, 9 slum-dwellers have been held non-
eligible as they have refused for survey, 3 structures were found closed at the
time of survey, 7 slum-dwellers have been held non-eligible on merits and one
slum dweller Shri Akhtar Hussain whose name appears in draft Annexure-II at
Sr.No.8 is outside the slum boundary of S. R. Scheme. The High Power
Committee observed that even if 9 slum dwellers who have refused the survey,
plus the 3 slum dwellers whose structures were closed at the time of survey
and whose names have been reflected against independent structures in
electoral role of 01/01/1995 were to be included as eligible slum dwellers in
addition to 38 slum dwellers already held eligible in certified Annexure-II
issued by Deputy Collector (E/R) & Competent Authority dated 29/05/2013
the Respondent No.7 has consent of 37 out of 50 eligible slum dwellers i.e.
(38+9+3) which works out to 74%. Hence the High Power Committee has
gone minutely into the said aspect of consent and has recorded a finding of fact
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that the Respondent No.7 had the consent of over 70% of the slum-dwellers.
Hence both at the time of submission of the proposal on 27/01/2011 on the
basis of Draft Annexure-II and thereafter on basis of the certified Annexure-II
dated 29/05/2013 and the supplementary Annexure-II dated 19/05/2016 the
Respondent No.7 enjoyed the confidence of more than 70% of the slum-
dwellers.
17 In so far as the requirements of entering into the individual
agreements is concerned, it is required to be noted that Circular No.14 dated
03/04/1998 is to the following effect :-
"If individual agreement is submitted at the time of
submission of proposal, there is no need to insist upon
the consent or signature of the slum dwellers in the
format of Annexure-II.
Hence the effect of the said Circular would be if individual agreements are
submitted at the time of submission of a proposal, there is no need to insist
upon the consent or signature of the slum-dwellers. Conversely it would have
to be held that if there is a common consent of 70% of the slum-dwellers,
which the developer had obtained, then the mere fact that the individual
agreements have not been entered into at the time of submission of the
proposal would not make the proposal defective or deficient.
18 The learned Senior Counsel appearing for the SRA Shri P. K.
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Dhakephalkar has demonstrated as to how practically the machinery in the
SRA works viz. that after submission of the proposal by an Architect of the
developer, the same is referred to the Executive Engineer who makes an entry
on the receipt of the proposal and finds out whether proposal from any other
society in respect of the same land is received. The concerned Executive
Engineer thereafter forwards the said proposal to the Sub-Engineer concerned
to ensure the completeness of the proposal in so far as the submission of the
documents is concerned. Thereafter the concerned Sub-Engineer makes a site
visit and pre-scrutinizes the proposal and submits a report to the Executive
Engineer. In the instant case, such a report was submitted on 15/02/2011,
that the proposal of the Respondent Nos. 6 and 7 is complete in all respects,
upon which the Executive Engineer accepted the report and thereby the
proposal of the Respondent Nos.6 and 7. It is thereafter that the Unique
Computerization Number is assigned to the proposal of the Respondent Nos.6
and 7 which in the instant case was on 01/03/2011.
19 In the instant case as indicated above the Unique Computerization
Number has been assigned to the proposal of the Respondent No.7 on
01/03/2011. The proposal submitted by the Petitioner was on 21/03/2011 i.e.
a good 20 days after the Unique Computerization Number was assigned to the
proposal of the Respondent No.7. Hence the proposal of the Respondent No.7
was pre-scrutinized and by the time the proposal was submitted by the
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Petitioners, the Unique Computerization Number was already assigned to the
proposal of the Respondent No.7. Hence it is not open for the Petitioners to
contend that the proposal of the Respondent No.7 was defective and since the
proposal submitted by the Petitioners on 21/03/2011 was allegedly complete
in all respect as it is the Petitioners proposal which was required to be accepted
and processed.
20 Now coming to the judgment cited on behalf of the Petitioners. In
Atesham Ahmed Khans's case (supra), a Division Bench of this Court referred
to the procedure which is followed by the SRA of initially accepting the
proposal for implementation of the Slum Rehabilitation Scheme and carrying
out a process of verification, the applicant at that stage is required to pay pre-
scrutiny fees. The Division Bench after referring to the procedure observed that
before the question of scrutiny arises the application must on its face indicate
that it fulfills the requirement of 70% consent being obtained by the developer
and that an application which on its face does not fulfill the requirement of
Regulation 33(10) should be rejected. The Division Bench observed that the
Applicant cannot be allowed to progressively make up a deficiency in an
application which ex-facie does not fulfill the condition on the date when it is
submitted.
In the said case the Division Bench also referred to the judgment
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of another Division Bench of this Court reported in 2006 (4) ALL MR 67 in the
matter of Awdesh Vasistha Tiwari & ors. v/s The Chief Executive Officer,
Slum Rehabilitation Authority & ors. It would therefore be relevant to refer
to Awdesh V. Tiwari's case (supra). In Awdesh V. Tiwari's case (supra) a
Division Bench of this Court was concerned with the scheme under Regulation
33(10). The Division Bench observed that having regard to the said scheme of
70% of the slum dwellers on a particular land come together and apply after
formation of the proposed co-operative society the said application has to be
independently considered. The scheme according to the Division Bench does
not contemplate simultaneous consideration of an application made by a
proposed society with an application subsequently made by another developer
relating to the same plot of land. The Division Bench held that the applicant
society has to have support of 70% if it fails to get 70% support, then the
second application can be considered. The obvious intention accordingly to the
Division Bench is to avoid unhealthy competition between different builders
who are interested in supporting such societies. The Division Bench referred to
the consequences that such a simultaneous consideration would have, as
unscrupulous elements would try to win over the hutment dwellers, who have
supported the application made earlier by another society.
21 It is in the context of the aforesaid judgments that the facts of the
instant case would have to be considered. In the instant case as indicated
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above when the proposal was submitted by the Respondent No.7 on
27/01/2011 the said proposal was based on a Draft Annexure-II consisting of
names of 92 slum-dwellers. Out of the said 92 slum-dwellers, the names of 53
slum-dwellers were appearing in the electoral roll as on 01/01/1995. Out of
the said 53 slum-dwellers, 40 slum-dwellers had given consent to the
Respondent No.7. Hence the Respondent No.7 at the time of submission of the
proposal on 27/01/2011 had the support of 70% of the slum-dwellers.
Thereafter the Annexure-II was certified by the Deputy Collector
(Encroachment/Removal) on 29/05/2013. In the certified Annexure-II it
seems out of 38 eligible slum-dwellers, 37 eligible slum-dwellers had given
their consent. The Respondent No.7 thereby constituted more than 97% slum-
dwellers on the said plot of land. It is after the SRA had carried out the process
of pre-scrutiny, that the Unique Computerization Number came to be given to
the proposal of the Respondent No.7 on 01/03/2011 and the Respondent No.7
was directed to pay the scrutiny fees. Hence in the instant case the date
01/03/2011 is the defining date on which the proposal of the Respondent No.7
can be said to have been accepted by the SRA for consideration. After the
payment of the scrutiny fees, the proposal of the Respondent No.7 was
thoroughly scrutinized and having found to be in order, the Letter of Intent
(LOI) dated 23/01/2014 came to be issued. The Petitioners herein as indicated
above had approached the SRA for the first time on 21/03/2011 i.e. a good 20
days after the Unique Computerization Number was given to the proposal of
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the Respondent No.7. Hence in terms of the law laid down by the Division
Benches of this Court, the proposal of the Petitioners could not be considered,
as a prior proposal of the Respondent No. 7 was under consideration and in
respect of which Unique Computerization Number was given to the said
proposal of the Respondent No.7, and hence the High Power Committee has
rightly rejected the contention urged on behalf of the Petitioners that the
proposal of the Respondent No.7 was incomplete and deficient inasmuch as the
Respondent No.7 did not have the consent of 70% of the slum-dwellers when it
submitted the proposal. Upon hearing the learned counsel for the parties and
upon perusal of the record we do not find any error in the said finding of the
High Power Committee.
22 In so far as implementation of the Slum Rehabilitation Scheme is
concerned, from the affidavit of the Respondent No.7 it is disclosed that the
Respondent No.7 has submitted individual agreements entered into with the
slum-dwellers and the IOD and CC was received by the Respondent No.7 on
21/02/2015 and 09/11/2015 from the SRA. The Respondent No.7 has
demolished the structures on the land in question. The Respondent No.7 has
also paid the land premium and claims to have invested a substantial amount
of over Rs.6 Crores till date in the implementation of the Slum Rehabilitation
Scheme. The said Slum Rehabilitation Scheme is therefore in the process of
being implemented.
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23 It is pertinent to note that the Petitioner No.2 has already given his
irrevocable consent to the Respondent Nos.6 and 7. He has also executed the
individual agreement on 05/11/2015 with the Respondent No.7 and thereby
has made his consent explicit, the Petitioner No.2 has also accepted the
rent/compensation of Rs.1,50,000/- on 05/11/2015 towards temporary transit
accommodation and vacated his structure. The Petitioner No.2 has also on
06/09/2016 accepted further amount of Rs.1,45,200/- towards the said transit
rent. Hence by his said conduct the Petitioner No.2 has accepted
implementation of the Slum Rehabilitation Scheme by the Respondent No.7 for
the Respondent No.6 Society of Slum-dwellers. Having accepted the said
scheme by his conduct as above, it does not befit the Petitioner No.2 to file the
above Writ Petition along with the Petitioner No.1 to challenge the
implementation of the Slum Rehabilitation Scheme by the Respondent No.7.
The Petitioner No.2 therefore by his conduct has dis-entitled himself to any
relief in the above Writ Petition.
24 In so far as the order passed by the High Power Committee is
concerned, the High Power Committee has taken into consideration the report
of the Respondent No.3 - SRA, the replies filed on behalf of the Respondent
No.6 and the Respondent No.7, and thereafter has recorded findings as regards
the contentions urged on behalf of the Petitioners in so far as the acceptance of
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the proposal of the Respondent No.7 is concerned.
25 In our view, the order passed by the High Power Committee cannot
be said to suffer from any illegality for this Court to exercise its writ
jurisdiction. The above Writ Petition is accordingly dismissed. Rule discharged
with parties to bear their respective costs.
[SMT. SADHANA S JADHAV, J] [R.M.SAVANT, J]
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