Bombay High Court
Harihar Krupa Co-Operative ... vs Yash Developers And Ors on 14 October, 2022
Bench: G. S. Kulkarni
WP_L_-18022-2021_.DOC
Andreza
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 18022 OF 2021
WITH
INTERIM APPLICATION NO. 4297 OF 2022
WRIT PETITION (L) NO. 18022 OF 2021
Yash Developers,
A registered Partnership Firm having its
Registered Office at 402 to 407, "Traffic-Lite
Business Park", Next to Bank of Baroda, M. ... Petitioner
G. Road, Ghatkopar (W), Mumbai - 400 086.
Versus
1. Harihar Krupa Co-operative Housing
Society Ltd.,
A Co-op. Society, duly registered under
Maharashtra Co-operative Societies Act,
1960, having its office at Harihar Krupa SRA
CHS LTD, Sukarwadi, M. G. Road, Borivali
East, Mumbai - 400 066.
2. Apex Grievance Redressal Committee,
The State of Maharashtra, Having it's office at
4th Floor, Administrative Bldg., Anant
Kanekar Marg, Bandra (E), Mumbai 400 051.
3. The Chief Executive Officer (CEO),
Slum Rehabilitation Authority, having its
office at 3rd Floor, Administrative Bldg. Anant
Kanekar Marg, Bandra East, Mumbai 400
051.
4. The Deputy Collector (ENC/WS),
Slum Rehabilitation Authority, having it's
office at 5th Floor, Administrative Bldg., Anant
Kanekar Marg, Bandra East, Mumbai - 400
051.
Page 1 of 126
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5. The Deputy Registrar, SRA
Slum Rehabilitation Authority having it's
office at Ground Floor, Administrative Bldg.,
Anant Kanekar Marg, Bandra East, Mumbai -
400 051.
6. Veena Developers,
A registered Partnership Firm having its
Registered office at A/901, Kaledonia, Sahar
Road, Antheri (East), Mumbai - 400069. ...Respondents
WITH
INTERIM APPLICATION NO. 4297 OF 2022 [ORIGINAL]
IN
WRIT PETITION (L) NO. 18022 OF 2021
1. Harihar Krupa Co-operative Housing
Society Ltd.,
A Co-op. Society, duly registered under
Maharashtra Co-operative Societies Act,
1960, having its office at Harihar Krupa SRA
CHS LTD, Sukarwadi, M. G. Road, Borivali
East, Mumbai - 400 066.
... Applicant
In the matter between
Yash Developers,
A registered Partnership Firm having its
Registered Office at 402 to 407, "Traffic-Lite
Business Park", Next to Bank of Baroda, M.
G. Road, Ghatkopar (W), Mumbai - 400
086. ... Petitioner
Versus
1. Harihar Krupa Co-operative Housing
Society Ltd.,
A Co-op. Society, duly registered under
Maharashtra Co-operative Societies Act,
1960, having its office at Harihar Krupa SRA
CHS LTD, Sukarwadi, M. G. Road, Borivali
East, Mumbai - 400 066.
Page 2 of 126
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2. Apex Grievance Redressal Committee,
The State of Maharashtra, Having it's office
at 4th Floor, Administrative Bldg., Anant
Kanekar Marg, Bandra (E), Mumbai 400
051.
3. The Chief Executive Officer (CEO),
Slum Rehabilitation Authority, having its
office at 3rd Floor, Administrative Bldg.
Anant Kanekar Marg, Bandra East, Mumbai
400 051.
4. The Deputy Collector (ENC/WS),
Slum Rehabilitation Authority, having it's
office at 5th Floor, Administrative Bldg.,
Anant Kanekar Marg, Bandra East, Mumbai
- 400 051.
5. The Deputy Registrar, SRA
Slum Rehabilitation Authority having it's
office at Ground Floor, Administrative Bldg.,
Anant Kanekar Marg, Bandra East, Mumbai
- 400 051.
6. Veena Developers,
A registered Partnership Firm having its
Registered office at A/901, Kaledonia, Sahar ...Respondents
Road, Antheri (East), Mumbai - 400069.
Dr. Birendra Saraf, Senior Advocate a/w. Mr. Yadunath Chaudhari,
Mr. Kevin Pereira, Mr. Kushal Amin, Mr. Makarand Raut i/b Mr.
Chinmay Acharya, Advocate for the petitioner.
Mr. Pravin Samdhani, Senior Advocate a/w. Ms. Sharmila
Deshmukh, Ms. Anchita Nair, i/b Ms. Jaya Bagwe, Advocate for the
respondent no. 1.
Mr. Jagdish G. Aradwad (Reddy) for respondent no. 2 (AGRC)
Mr. Vijay D. Patil, Advocate for respondent nos. 3 to 5.
Mr. Hassan Khan a/w Nikhil Vijay Adkine i/b. Mr. Viraj Jadhav,
Advocate for the respondent no.6.
Page 3 of 126
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_______________________
CORAM: G. S. KULKARNI, J.
RESERVED ON : 21 December, 2021
FURTHER RESERVED ON: 30 September, 2022
PRONOUNCED ON : 14 October, 2022
_______________________
JUDGMENT
1. The judgment has been divided into the following sections to
facilitate analysis:-
SECTIONS HEADING PARA NOS.
Petitioner.
D Submissions behalf of the 36
Respondent no.1
A. Prelude :
2. A developer being removed on the non-fulfillment of the basic
requirement to commence construction of a slum rehabilitation
building for a long period of 18 years, whether is not fatal to the object
and intention of a statutory intent behind a Slum Rehabilitation
Scheme, is an issue which falls for consideration of the Court in the
present proceedings. Another crucial question would be as to whether
the right to shelter which is part of the slum dwellers' right to
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livelihood guaranteed under Article 21 of the Constitution, can be
continued to be nullified by such actions of unconscionable delay on
the part of the developer, in not commencing construction of the slum
project even by an inch more particularly when the nature of such
work awarded to a developer for him is purely a commercial venture,
for profit.
3. The petitioner, who was appointed in the year 2003 by
respondent no.1-Slum Society, as a 'developer' to undertake its Slum
Rehabilitation Scheme, under which not a single brick was laid by the
petitioner for about 18 years, resulting in the petitioner's removal by
the impugned order dated 4 August, 2021 passed by the Apex
Grievance Redressal Committee (for short, 'the AGRC'), in exercise of
powers under Section 13(2) of The Maharashtra Slum Areas
(Improvement, Clearance and Re-development) Act, 1971 (for short
'the Slums Act'), is before the Court in the present proceedings under
Article 226 of the Constitution of India, assailing such order, passed by
of the AGRC.
4. By the impugned order dated 4 August, 2021 passed by the Apex
Grievance Redressal Committee (AGRC), an appeal filed by
respondent no. 1-society against the decision of the Chief Execution
Officer of the Slum Rehabilitation Authority declining to remove the
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petitioner under Section 13(2) of the Slums Act, has been allowed by
the following order :
(i) Appointment of Respondent no. 2 M/s. Yash
Developers in respect of S. R. Scheme on plot of
land bearing CTS No. 515 (Pt.), 515B(Pt.) and
509 of Village Kanheri, Taluka Borivali
corresponding to F.P. No. 14-AB(Pt) of TPS-II,
Borivali (East) for Harihar Krupa CHS Ltd.
stands terminated.
(ii) Liberty is granted to the slum dwellers of
applicant Harihar Krupa CHS Ltd. to appoint
new developer of their own choice in presence of
Assistant Registrar Cooperative Society/SRA as
per Rules, Regulation and Prevailing Policy of
SRA to complete the further implementation of
subject S.R. Scheme.
(iii) The newly appointed developer should
reimburse the actual expenses legally incurred
by Respondent no.2 M/s. Yash Developer for
implementation of subject S R Scheme till the
date of this Order.
On 28.05.2021 this Committee had stayed the
impugned order dated 16.03.2021 passed by
CEO/SRA under Section 13(2) of Maharashtra
Slum Areas (I.C & R) Act 1971 till next date
stands vacated.
With the aforesaid directions the present
Application No. 89 of 2021 filed by Harihar
Krupa CHS Ltd. through Chairman Vinod Kanta
Rai stands disposed off. (emphasis supplied)
B. Facts :
5. The factual antecedents as set out in the memo of the writ
petition are required to be noted:
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A slum rehabilitation scheme set into motion by slum dwellers
co-operative housing society, namely the Harihar Krupa Co-operative
Housing Society (for short "the Society") on land bearing CTS No.
515A(Part), 515B(Part) and 509 of Village Kanheri, Taluka Borivali,
Mumbai corresponding to Final Plot No. 14-AB (Part) of TPS II,
Borivali (East), Mumbai - 400 066 (for short "the slum land") is the
subject matter of the present proceedings. The land is of the ownership
of the Municipal Corporation of Greater Mumbai (for short, MCGM).
The Slum Rehabilitation Scheme (for short "the slum scheme") was to
be undertaken under the provisions of the Maharashtra Slums Areas
(Improvement, Clearance and Re-development) Act, 1971 (for short
"the Slums Act") read with the provisions of Regulation 33(10) of the
Development Control Regulations for Greater Mumbai as applicable at
the relevant time.
6. About 500 slum dwellers having their hutments on the subject
land, which was declared as a 'slum area' under the Slums Act, decided
to form the respondent no.1-Cooperative Housing Society. The
Society appointed the petitioner as a 'developer' to undertake
redevelopment of the said slum, by implementing a "slum
rehabilitation scheme". Accordingly, a Development Agreement dated
20 August, 2003 came to be entered between the petitioner and the
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Society. On 11 December, 2003, the petitioner submitted a proposal
for development of the said slum, which came to be approved by the
Slum Rehabilitation Authority (for short "SRA").
7. It is the petitioner's case that the SRA forwarded the Draft
Annexure-II (list of eligible slum dwellers who would be entitled for a
permanent tenement under the re-development) to the MCGM, for its
verification and finalization. The petitioner contends that in the
meanwhile another rival society namely one "Omkareshwar
Cooperative Housing Society (for short "Omkareshwar") supported
by a rival developer, M/s. Siddhivinayak Developers, without
submitting its proposal to the SRA, forwarded a separate Draft
Annexure-II to the MCGM in respect of the very slum. The MCGM
in these circumstances without conducting any survey and verification
of the proposal, returned the petitioner's proposal to the SRA. At the
same time, an Annexure -II was issued in the name of Omkareshwar.
8. The petitioner being aggrieved by such actions of Omkareshwar
approached the Principal Secretary, Housing, of the State Government,
who granted a stay on Omkareshwar taking further steps in regard to
the slums scheme in question. Assailing such order passed by the
Principal Secretary Housing, Omkareshwar approached this Court in
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Writ Petition No. 2924 of 2006, against the petitioner, inter alia
assailing the slums scheme as proposed by the Society. The said Writ
Petition was pending for almost one year which came to be disposed of
in terms of Consent Terms dated 23 July, 2007 as entered between the
parties, by an order dated 7 August, 2007 passed by this Court.
9. Although the dispute between the petitioner and Omkareshwar
stood settled, Omkareshwar filed Notice of Motion No. 80 of 2008 in
the disposed of Writ Petition praying for setting aside of the Consent
terms dated 23 July, 2007. It is contended that the said Notice of
Motion was disposed of by an order dated 18 October, 2008, whereby ,
liberty was granted to Omkareshwar to approach the High Power
Committee (HPC) and seek appropriate orders.
10. Accordingly, on 16 December, 2008, Omkareshwar filed an
appeal (Appeal No. 144 of 2008) before the HPC, inter alia, praying
that Omkareshwar be permitted to implement the slum rehabilitation
scheme through 'Siddhivinayak Developers'. The petitioner contends
that such appeal filed by Omkareshwar remained pending for almost
one year. By an order dated 20 June, 2009 the HPC dismissed
Omkareshwar's appeal. It is stated that Omkareshwar being aggrieved
by such order passed by the HPC approached this Court in Writ
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Petition No. 1556 of 2009, which came to be disposed of by an order
dated 18 August, 2009 passed by this Court, by which the Court
remanded the matter to the HPC, for a fresh hearing. On remand, the
HPC re-heard the proceedings and by an order dated 27 November,
2009 again dismissed Omkareshwar's appeal (Appeal No. 144 of
2008). Again, Omkareshwar being aggrieved by the order dated 27
November, 2009 of the HPC approached this Court in Writ Petition (L)
No. 286 of 2010 (later on numbered as Writ Petition No. 310 of 2011).
On 30 March, 2010, this Court passed an interim order on such petition
directing the parties to maintain status quo. This interim order passed
by this Court on Omkareshwar's Writ Petition was assailed by the
petitioner before the Supreme Court in proceedings of SLP (Civil) No.
13045-13046 of 2010. The Supreme Court by its order dated 10 May,
2010 disposed of the SLP directing this Court to expedite hearing of
Omkareshwar's Writ Petition. In pursuance of the orders passed by the
Supreme Court, this Court heard the parties on Omkareshwar's Writ
Petition, which came to be disposed of by an order dated 23 February,
2011 whereby the parties were directed to pursue the disputes before
the HPC.
11. Accordingly, Omkareshwar approached the HPC in an appeal
(Appeal No. 7 of 2011). By an order dated 30 April, 2011 the HPC
remanded the matter to the Chief Executive Officer of the SRA
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(respondent no. 3) for reconsideration of the matter and to take action
in accordance with law. In pursuance of such orders passed by the
HPC, the Chief Executive Officer of the SRA conducted a hearing and
passed an order dated 7 June, 2011 thereby Omkareshwar's proposal
came to be rejected. In such order, the Chief Executive Officer
observed that the petitioner had consent of 70% slum dwellers as
ascertained by following the process of verification. The Chief
Executive Officer accordingly held the petitioner to be qualified to be
appointed as developer for implementation of the slum scheme. It was
also observed that Omkareshwar has no locus standi, as its proposal
was submitted subsequent to the proposal as submitted by respondent
no. 1-Society. Although at the relevant time the petitioner had the
support of 70% of the total number of slum dwellers as also a
development agreement was executed by the society with the
petitioner. The dispute between Omkareshwar and the petitioner was
on the entitlement of the parties to undertake the slum rehabilitation
scheme based on the majority support of the slum dwellers.
12. It is hence the petitioner's case that although the Development
Agreement was entered between the petitioner and the Society on 20
August, 2003, the scheme could not be implemented effectively almost
for a period of eight years that is between the year 2003 to 2011 on
account of the above stated litigations which also involved the status
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quo order passed by this Court. It is the petitioner's case that such
delay caused in implementing the slums scheme during such period
thus was neither deliberate nor intentional and was purely on account
of the objections filed by Society, namely, Omkareshwar, which is rival
to the respondent no. 1-Society, and the rival builder Siddhivinayak.
The petitioner accordingly states that the slum scheme as submitted by
the petitioner in 2003 could be set into motion only in the year 2011.
13. On such backdrop, the petitioner contends that the SRA issued a
Letter of Intent (LOI) dated 29 June, 2011. On 15 July, 2011, a
corrigendum was issued to the LOI. The LOI set out the terms and
conditions on which the petitioner would undertake implementation of
the slum scheme. It is stated that as per the terms of the LOI, the
petitioner also deposited an amount of Rs.83,35,000/- towards first
instalment of the land premium as per a demand letter issued to the
petitioner. On deposit of such amount of the land premium, on 24
January, 2012 the SRA issued an Intimation of Approval (IOA) in
respect of rehabilitation Building no. 1. Thereafter on 13 March, 2012,
the petitioner deposited Rs.1,38,90,600/- towards second instalment of
the land premium. Thus, a total land premium of Rs. 2,22,25,600/-
came to be made by the petitioner. After the LOI and IOA being issued
by the SRA, the petitioner commenced shifting of the slum dwellers
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from the slum land for which petitioner offered monthly
rent/compensation to the slum dwellers to enable them to obtain
temporary alternate accommodation so as to enable the petitioner to
commence construction. The petitioner, however, contends that as the
rival society, namely, Omkareshwar was issued Annexure-II on 12
March, 2004 and a rectification of the same as per a condition of the
LOI was necessary to be endorsed in the name of respondent no. 1
(Harihar Society), an application was made by the petitioner to the
MCGM for the rectification of Annexure-II. Such application came to
be granted by the MCGM on 20 September, 2013 by issuance of a
rectified Annexure-II.
14. It is the petitioner's case that in the meanwhile, as the slum
dwellers were to be shifted to temporary alternate premises, the slum
dwellers kept on submitting additional documents asserting their
eligibility. In pursuance thereto, the Society requested petitioner to
make sure that maximum number of slum dwellers become eligible
under this slums scheme. This culminated into supplementary
Annexure-II being issued on 20 May, 2014. A second supplementary
Annexure-II also came to be issued on 16 October, 2015.
15. Insofar as the number of slums dwellers were concerned, it is
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the petitioner's case that as per provisions of Annexure-II issued in the
year 2004, only 318 slum dwellers were held eligible, however, over
the period of years, such numbers increased from 318 to 470 and
further, as per final Annexure-II issued by MCGM, the position
remained that out of 580 slum dwellers situated on the land, 470 slum
dwellers were held to be eligible and 110 slum dwellers were held to
be not eligible. According to the petitioner, a period of three years,
i.e., between the year from 2012 till 2015 was consumed, as the slum
rehabilitation scheme remained pending for finalizing Annexure-II.
16. The petitioner contends that further steps were taken by the
petitioner in order to progress the slum scheme and accordingly, on 28
April, 2014 the petitioner obtained an 'Environmental Clearance' from
the Government of Maharashtra. Thereafter on 14 July, 2014, the
Competent Authority issued a Commencement Certificate for
construction of rehabilitation Building no. 1 as per the plans approved
on 24 January, 2012. Also on 9 October, 2014, the MCGM issued a
High Rise Clearance which was a milestone to begin with the
development of the subject scheme.
17. The petitioner has stated that after obtaining the
Commencement Certificate (CC) as also the Environmental Clearance,
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at the end of the year 2014, the petitioner offered and requested the
Slum dwellers to accept monthly rent, in lieu of temporary alternate
accommodation and vacate their structures, so as to facilitate smooth
development of the slum land. It is stated that few slum dwellers
accepted monthly rent and vacated their respective structures which
were demolished by the petitioner. However, some of the slum
dwellers continued to obstruct the smooth development process, as
they refused to vacate their structures at the instance of the rival
society, namely, Omkareshwar and the rival developer Siddhivinayak.
The petitioner contends that this necessitated the petitioner to file an
application before the Chief Executive Officer of the SRA to initiate
proceedings under section 33 read with section 38 of the Slums Act for
eviction of the non-cooperative slum dwellers. Such application was
filed by the petitioner on 5 November, 2014. However, the SRA
directed the petitioner to file such application before the MCGM being
the owner of the land and competent authority. The petitioner has
stated that on 11 November, 2014 the petitioner filed an application
before the Assistant Municipal Commissioner to initiate appropriate
proceedings under section 33 read with section 38 of the Slums Act. It
is stated that however no action was taken on such application, despite
the petitioner following up and pursuing such application, as no notice
was issued to the obstructing slum dwellers. Hence, subsequent
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applications came to be filed by the petitioner on 9 January, 2015 and
17 January, 2015. Although such applications were heard, however, no
orders were passed.
18. The petitioner contends that vide circular dated 10 July 2018, the
powers to execute and implement the proceedings under section 33 and
38 of the Slums Act were delegated to the Deputy Collector-SRA
western suburbs (Respondent no.4) and hence were not required to be
exercised by the MCGM. Hence, once again in November 2019, the
petitioner filed an application and requested Deputy Collector to
initiate proceedings against the slum dwellers under Section 33/38 of
the Slums Act. The case of the petitioner that for a period of five years
i.e. between 2014 to 2019, petitioner's application for initiation of
action under section 33/38 of the Slums Act for demolition of
structures of dissenting slum dwellers on the subject property was still
pending and not concluded.
19. The petitioner contends that in the meanwhile on 25 February
2015, the MCGM published a Revised Development Plan (DP) for the
city of Mumbai, under which, a Development Plan road was
introduced passing through the subject property, which was resulting in
the sub-division of the part of the plot on which the sale building was
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to be constructed, which was likely to make the slum scheme non-
viable. Hence, the petitioner on 3 April 2015, filed its objection to the
draft Revised Development Plan proposed by the MCGM. Such
objection as filed by the petitioner was pending before the MCGM for
a period of more than two years between 2015 to 2017. In the year
2017, the reservation for the DP road was not confirmed therefore,
according to the petitioner, redevelopment of the subject property
became possible and viable.
20. The petitioner contends that the first Letter of Intent (LOI) was
although issued on 29 June 2011, however, thereafter a re-verified
Annexure-II came to be issued on 20 September 2013 and the first
supplementary Annexure-II came to be issued on 20 May 2014. It is
stated that the second supplemental Annexure-II came to be issued on
16 October 2015, according to which, number of eligible slum
dwellers had been increased from 318 to 470. It was hence necessary
for the petitioner to obtain the revised Letter of Intent (LOI). Also, as
per sanctioned modification in clause no. 3.12 of appendix-IV of
Regulation 33(10) of amended DCR-1991 and as per Gazette
notification dated 20 May 2016 and 1 October 2016 provision for non-
eligible tenants as Project Affected Persons (PAP) was allowed. The
petitioner has contended that about 110 slum dwellers were non-
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eligible under the SR Scheme and they were likely to be dis-housed
while implementing SR Scheme. It is stated that for taking benefit of
the said notification for construction of the Project Affected Persons
(PAP) tenements for such non-eligible tenants, petitioner obtained
revised Letter of Intent (LOI) dated 27 April 2017. It is stated that as
per the original sanctioned plan, the area of a rehabilitation tenement to
be constructed in a Rehab building was of 269 square feet per
tenement, however, with the issuance of revised DCPR in the year
2018, the area per tenement was increased to 300 square feet. It is
stated that for giving benefit of the additional area to the slum
dwellers, the petitioner obtained a second revised Letter of Intent
(LOI) which was issued on 23 December 2019. This according to the
petitioner would show that the LOI was revised first in the year 2017
and for the second time in the year 2019 which was purely in the
interest of the slum dwellers.
21. The petitioner contends that consequent thereto, the petitioner
restarted the process to speedily implement the slum scheme by
making payment of instalments of land premium and deposits. It is
stated that on 10 November 2017, a lay out plan was approved by the
competent authority and an amended IOA (Intimation of Approval) for
Rehabilitation building no.1 came to be issued. The petitioner contends
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that a commencement certificate also came to be re-endorsed on 13
November 2017, and simultaneously, IOA in respect of Rehabilitation
building no.2 and sale building no.3 also came to be issued on 9
November 2017.
22. The petitioner thus contends that most of the approvals including
re-endorsed commencement certificate were obtained. It is the
petitioner's case that till date, the petitioner has spent more than Rs.30
Crores on the project, a chart of which is annexed at Exhibit D.
23. The petitioner has contended that when the project had reached
such stage, few slum dwellers under the influence of rival society and
developer namely "Omkareshwar" and "Siddhivinayak" started
objecting implementation of the slum scheme. On 20 September 2018,
respondent no.1-society, called a General Body Meeting for change of
developer. According to the petitioner in such meeting, majority of the
slum dwellers were opposed to the change of developer. However, the
Chairman of the society, Mr. Vinod Kanta Rai, in the name of
respondent no.1-society kept on filing several false complaints and
objections with SRA regarding implementation of the slum scheme by
the petitioner. It is stated that such objections and applications were
filed at the instance of few minuscule members of the society without
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consent and approval of other slum dwellers. These objections and
complaints subsequently came to be withdrawn from time to time, the
details of which, according to the petitioner, were placed on the record
of the Apex Grievance Redressal Committee.
24. The petitioner contends that the petitioner had obtained consent
of more than 70 percent eligible members as also had obtained
requisite approvals and permissions, however, few slum dwellers kept
on creating nuisance and obstruction one way or the other. It is
contended that for a period of almost three years between 2018 and
2021, the slum scheme could not be implemented smoothly and the
petitioner in these circumstances as the petitioner had to approach the
competent authority time and again requesting for assistance to pass
necessary orders for evicting the non-co-operating members of the
society. It is stated that on 15 November 2019, petitioner had filed an
application before the Deputy Collector, SRA to issue notice under
Section 33 read with Section 38 of the Slums Act for evicting
dissenting members. On such application, a hearing was held and by
an order dated 5 November 2020 and 4 February 2021, approximately
36 non co-operating slum dwellers were directed to vacate their
respective structures and accept monthly rent from the petitioner.
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25. It is contended by the petitioner that in or about the same time,
Mr. Vinod Kanta Rai, Chairman of respondent no.1-society, filed false
and bogus complaints before respondent no.3-the Chief Executive
Officer of the SRA, for removing petitioner as a developer to
implement the slum rehabilitation scheme. In pursuance of such
complaint of Mr. Vinod Kanta Rai, respondent no.3 issued a show
cause notice to the petitioner under Section 13(2) of the Slums Act
calling upon the petitioner to submit its explanation. It is contended
that the society made a representation to respondent no.3 (Chief
Executive Officer SRA), that the society has no objection for the
petitioner to implement the slum rehabilitation scheme. It is stated
that in fact the society by its letters dated 31 December 2019, 14
January 2020 and 1 March 2021, withdrew all complaints filed against
the petitioner.
26. It is the petitioner's case that despite the purported complaints
having been withdrawn by respondent no.1-(Harihar society), Mr.
Vinod Kanta Rai continued to misuse the letter head of the respondent
no.1-society and for such reason, the society by its resolution dated 28
February 2021 unanimously resolved that Mr. Vinod Kanta Rai had no
authority to make any representation to any authority or Court on
behalf of the society. It is contended that the society brought such fact
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to the notice of the Chief Executive Officer of the SRA, by its letter
dated 23 March 2021.
27. It is contended by the petitioner that during the hearing of the
show cause notice dated 4 December 2020, as issued by respondent
no.3-Chief Executive Officer-SRA, the petitioner was directed to show
its bonafides by depositing 15 months advance rent for all balance
eligible slum dwellers who had not vacated their respective structures.
It was made clear by the Chief Executive Officer that even after
deposit of the advance rent, if slum dwellers do not vacate their
structures, in that event, the slum rehabilitation authority will initiate
action against the said slum dwellers. The Deputy Collector SRA by
its letter dated 13 December 2020 directed the petitioner to deposit 15
months advance rent. In compliance of such directions, petitioner in
the very next week i.e. on 7 January 2021, deposited a sum of
Rs.7,41,54,000/- in the Axis Bank, Worli Branch. It is stated that out
of which an approximate amount of Rs.4,52,27,600/- still remains
deposited with the Axis Bank. It is contended that despite the said
orders, the non-co-operating slum dwellers still have not vacated their
respective structures. The proceedings of the show cause notice were
accordingly closed for orders.
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28. The Petitioner has contended that about 16 dissenting slum
dwellers out of the 36 complainants filed 16 different appeals before
respondent no.2-the AGRC praying for setting aside of the orders
dated 5 November 2020 and 4 February 2021 passed by respondent
no.4-(Deputy Collector SRA/WS), directing the slum dwellers to
vacate their premises. These slum dwellers in their proceedings before
the AGRC contended that proceedings under Section 13(2) of the
Slums Act were filed against the petitioner which were pending and
hence till such proceedings were disposed of, the order passed by the
Deputy Collector SRA, ought not to be implemented. The said 16
appeals were identical. The AGRC by an order dated 12 March 2021,
directed respondent no.3-(Chief Executive Officer SRA), to pass
appropriate orders on the application filed under Section 13(2) of the
Slums Act within five days. It is contended that in compliance of such
orders of the AGRC, respondent no.3-(Chief Executive Officer SRA),
by an order dated 16 March 2021 dropped the proceedings under
Section 13(2) initiated against the petitioner. In the said order,
respondent no.3-(Chief Executive Officer SRA) observed that although
there is a delay in implementing the slum scheme, the delay is not
deliberate or attributable to the petitioner.
29. Against such decision of respondent no.3-(Chief Executive
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Officer SRA), one Chandrakant Gopinath Pore and 15 others filed Writ
Petition (L) No. 8585 of 2021 in this Court praying for an order and
direction for setting aside of the said order dated 16 March 2021
passed by the Chief Executive Officer SRA. In such writ petition, the
petitioner-(Chandrakant Gopinath Pore & Ors.) applied for stay of the
order dated 16 March 2021 passed by respondent no.3-(Chief
Executive Officer SRA). This Court at the hearing of the said Writ
Petition on interim reliefs, directed the petitioner to file a short
affidavit, setting out in brief the steps taken and proposed to be taken
by the petitioner for implementation of the slums scheme.
Accordingly, an affidavit was filed by the petitioner, inter alia, stating
that the petitioner shall commence the construction of rehabilitation
building within sixty days from the date the dissenting slum dwellers
and the other slum dwellers vacate their respective structures and
within 36 months, thereafter, the petitioner shall complete the
construction of the Rehabilitation building. It is the petitioner's case
that this Court considering such affidavit and looking into the larger
interest of the slum dwellers, refused to grant any stay on the
implementation of the order dated 16 March 2021 of the respondent
no.3-(Chief Executive Officer SRA).
30. It is contended by the petitioner that the society being aggrieved
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by the order dated 16 March 2021 passed by the respondent no.3-
(Chief Executive Officer SRA), filed an application/appeal no.89 of
2021 before the Apex Grievance Redressal Committee (AGRC)
alleging that the petitioner had caused inordinate delay in
implementing SR scheme and that the petitioner had no financial
capacity which had caused delay in payment of rent to the slum
dwellers. It was also alleged that the petitioner had engaged in a trade
of the slum scheme by mortgaging the slum scheme. An application
for stay was also filed in the said proceedings as filed by the Society.
Such application was objected by the petitioner by filing a reply dated
12 May 2021. The AGRC passed an order dated 28 May 2021 and
granted interim stay till the hearing of the appeal. The petitioner filed a
detailed affidavit dated 10 June 2021 opposing grant of any relief to
the Society by placing on record facts which, according to the
petitioner, were suppressed by the Society in putting up a case of the
delay in implementation being attributed to the petitioner. On 18 June
2021, AGRC conducted a hearing when the parties were heard and the
society's application/appeal was closed for orders. Also written
submissions were filed on 28 June 2021. On 30 June 2021, respondent
no.1-Society filed its written submissions.
31. Thereafter, the AGRC pronounced the impugned order dated 4
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August, 2021 on the said proceedings as initiated by the Society under
Section 13(2) of the Slums Act whereby the appointment of the
petitioner as a developer for implementation of the slum scheme was
terminated and respondent no.1-Society was granted liberty for
appointment of a new developer for implementation of the slum
scheme.
32. By the impugned order, the AGRC terminated the petitioner's
appointment as a developer primarily on three counts, firstly, that there
was inordinate delay attributable to the petitioner in implementation of
the slum rehabilitation scheme. Secondly, that the petitioner had
defaulted in payment of rent to the eligible slum dwellers whose
structures were demolished and thirdly, petitioner had no financial
capacity to implement the Slum Rehabilitation Scheme and therefore
the petitioner has traded in the slum scheme.
33. In the circumstances, the petitioner has approached this Court in
the present proceedings praying for the following reliefs :
"a) That this Hon'ble Court be pleased to
issue a Writ of Certiorari or the Writ in the nature
of Certiorari or any other Writ or order or
direction as this Hon'ble Court may deemed fit and
quash and set aside the Impugned Order dated 4th
August 2021 passed in Application No.89 of 2021
by Respondent No.2 (AGRC) (hereto Exhibit "A"
hereto);
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b) That this Hon'ble Court be pleased to issue
a Writ of Mandamus or the Writ in the nature of
Mandamus or any other Writ or order or direction
as this Hon'ble Court may deemed fit and direct
Respondent Nos.3 and 4 to effectively implement
the Orders dated 5th November 2020 and 4th
February 2021 passed by Respondent No.4 (Dy
Collector, ENC/WS) by demolishing the structures
occupied by obstructing slum dwellers on the
property bearing C.T.S. No. 515A (Part), 515B
(Part) and 509 of Village Kanheri, Taluka
Borivali, corresponding to Final Plot No. 14-AB
(Part) of TPS II, Borivali (East), Mumbai - 400
066;
c) That this Hon'ble Court be pleased to issue a
Writ of Mandamus or the Writ in the nature of
Mandamus or any other Writ or order or direction
as this Hon'ble Court may deemed fit and direct
Respondent No.3 and 4 to take immediate steps
expeditiously in a time bound manner pursuant to
Petitioner/s letter/application dated 8th February
2021 filed U/s.33/38 of Slum Act for demolition of
structures occupied by non-cooperating slum
dwellers situated on the property bearing C.T.S.
No. 515A (Part), 515B (Part) and 509 of Village
Kanheri, Taluka Borivali, corresponding to Final
Plot No.14-AB (Part) of TPS II, Borivali (East),
Mumbai - 400 066.
d) That this Hon'ble Court be pleased to pass
an appropriate order directing Respondent No.5
(Dy. Registrar, SRA) to initiate appropriate
proceedings against the committee members of the
Respondent No. 1 (Harihar Society) for
misguiding SRA and obstructing smooth
implementation of S R Scheme on the subject
property.
e) That pending the hearing and final
disposal of the present Petition, the operation and
implementation of Impugned Order dated 4th
August 2021 passed in Application No.89 of 2021
by Respondent No.2 (AGRC) be stayed (hereto
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Exhibit "A');
f) For ad-interim relief in terms of prayer (e)
above;
g) Cost of this Petition be provided for;
h) Such other and further reliefs as the nature and
circumstances of the case may require be
granted;"
34. The respondents have appeared however as recorded in the
order dated 30 September, 2022 passed by this Court, they have made
a statement that none of the respondents intended to file a reply
affidavit. On behalf of respondent no.1, written submissions are
placed on record. It needs to be observed that all the records before
the AGRC which includes the society's case in the appeal along with
the documents as also the petitioner's say/reply along with the
documents is part of the voluminous record of the present proceedings.
Also considering the nature of the proceedings, it cannot be expected
that merely because no reply affidavit is filed to the present
proceedings, a technical view be taken against the society. This, more
particularly, when extensive written submissions are already part of the
record.
C. Submissions on behalf of the Petitioner :
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35. On behalf of the petitioner, Dr. Saraf, learned Senior Counsel,
has made the following submissions :
(i) At the outset, it is submitted that the complaint dated 18
November 2019 and the reminder letter dated 9 December 2019 and
18 December 2019, as made before the CEO-SRA purportedly on
behalf of respondent no.1, on the basis of which the show cause
notice dated 4 December 2020 was issued to the petitioner itself, was
withdrawn by respondent no.1 by its letters dated 31 December 2019,
14 January 2020, 1 March 2021 and 8 March 2021. It is submitted
that in fact the complaint was purported to be made on behalf of the
society, however, the same was signed by Mr. Vinod Kanta Rai and
few other members who were purporting to act on behalf of the
society. It is submitted that also there was no general body resolution
authorising the issuance of any such complaint. Also, majority of the
signatories to the original complaint and majority of the managing
committee members were signatories to the withdrawal letter. There
was no question of any authority acting on complaint which stood
withdrawn.
(ii) It is submitted that on one hand the complaint having stood
categorically withdrawn by the society's letter dated 31 December
2019 and 14 January 2020, however, surprisingly, on 2 February 2020,
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the managing committee without a general body resolution of the
society purported to terminate the development agreement as entered
with the petitioner. It is submitted that the society, as a whole, did not
accept such act of the managing committee which were in fact the
wrong doings of Mr. Vinod Kanta Rai and others. Accordingly, the
society in a general body resolution dated 28 February 2021, resolved
that Mr. Vinod Kanta Rai had no authority to use the letterhead of the
society and to make any representation to any authority or Court on
behalf of the society. Also, the purported termination of the
development agreement and the power of attorney was revoked. The
General Body Resolution recorded that Mr. Vinod Kanta Rai had acted
without taking the society in confidence and without any discussion
had misused the letterhead of the society to address various
correspondence. It is submitted that the society accordingly
acknowledged that all the earlier correspondence addressed at the
behest of Mr. Vinod Kanta Rai, were illegal and without authority.
The society also communicated these facts to the Chief Executive
Officer of the SRA by its letter dated 8 March 2021. It is then
submitted that the entire basis of the show cause notice being the
complaint dated 18 November 2019 itself having been withdrawn, the
show cause notice itself did not survive. The society also confirmed
this position before the Chief Executive Officer. The society also
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confirmed that a delay, if any, had occurred due to these circumstances
which was beyond the control of the petitioner. This was also
confirmed and accepted by other slum dwellers who had made
submissions.
(iii) It is submitted that although the appeal against the orders
of the Chief Executive Officer-SRA were filed by the society before
the AGRC, the position before the AGRC was not different insofar as
the said complaints made before the Chief Executive Officer-SRA
being withdrawn. It is submitted that neither any affidavit in rejoinder
was filed before the AGRC nor any reply is filed to the present
petition. Thus, the repeated stand of the petitioner is that the complaint
stood withdrawn and the stand taken by the society before the CEO has
remained uncontroverted and undisputed. It is submitted that even the
stand that by resolution dated 28 February 2021, the purported
termination of development agreement stood withdrawn and revoked
and that the society accepted the position that Mr. Vinod Kanta Rai had
abused the letterheads of the society and was prohibited from acting
further was not controverted or denied.
(iv) It is submitted that in the above circumstances, the society
having withdrawn its complaint and having accepted that the delay
was not attributable to the petitioner, the Chief Executive Officer-
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SRA, nonetheless in discharge of his duties did an independent
assessment of facts and arrived at a conclusion that there was no delay
caused by the petitioner and hence dropped the proceedings under
Section 13(2) of the Slums Act. It is hence submitted that having
withdrawn its complaints and having taken such a stand before the
Chief Executive Officer, it was not open to the society to make any
grievance before either the AGRC or even before this Court, for such
reason, that the order of the Chief Executive Officer-SRA was in
accordance with law and such decision was taken after considering the
stand taken by all concerned parties as well as an independent
assessment.
(v) It is submitted that for the above reasons, the appeal of the
society before the AGRC itself was not maintainable and was an abuse
of the process of law. This also for the reason that Mr. Vinod Kanta
Rai had no authority to file the appeal inasmuch as the complaint dated
18 November 2019 itself was withdrawn, the purported termination
was also withdrawn and there were resolutions of the society to that
effect to show that Mr. Vinod Kanta Rai had no authority to singularly
pursue the proceedings in connivance with some members of the
managing committee.
(vi) It is submitted that the petitioner had filed reply affidavits
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before the AGRC placing on record all documents which supported the
decision of the Chief Executive Officer-SRA that the petitioner had
taken substantial steps and that the project had progressed. It is
submitted that the reply affidavits had remained uncontroverted as no
rejoinder affidavits were filed. It is submitted that there was no
material before the AGRC to believe the case of the respondent no.1-
society.
(vii) It is submitted that the AGRC has not dealt with any of the
contentions as urged on behalf of the petitioner. In fact, the AGRC has
entertained an appeal which itself was not maintainable.
(viii) It is submitted that in any event once respondent no.1-
society had taken a position before the Chief Executive Officer-SRA
that there was no delay on the part of the petitioner, certainly, there was
no jurisdiction with the AGRC to examine as to what was given up
before the Chief Executive Officer-SRA by Mr. Vinod Kanta Rai. In
fact the challenge to the orders of the Chief Executive Officer-SRA
were not maintainable in this view of the matter.
(ix) It is submitted that it is not permissible for any party to
carry an appeal against orders where the party itself has conceded or
had withdrawn the cause. Permitting such party to challenge the order
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in appeal would defeat the entire process of law.
(x) In any event, it was not the case that the Chief Executive
Officer-SRA had not examined and/or had not undertaken an
independent assessment to arrive at a conclusion that there was no
fault whatsoever on the part of the petitioner. The inquiry before the
Chief Executive Officer-SRA was fair and in accordance with law.
(xi) It is submitted that the AGRC has completely overlooked
the purport of the provisions of Section 13(2) of the Slums Act which
involves the examination of the discharge of duties and responsibilities
or the dereliction thereof by each of the stake holders namely the slum
dwellers, the developer and the statutory authorities and the society at
large. The developer cannot be removed at the ipse dixit of a few slum
dwellers or even the managing committee or a general body resolution.
It is not unknown that handful of motivated slum dwellers with ulterior
motives seeks removal of a developer. He can be removed if there are
materials to show that delay had been caused for reasons attributable
to the developer. In the event it is found that the developer did take
effective steps and that the delay was due to reasons beyond the
control of the developer or was attributable to the slum
dwellers/authorities, there would be no justification for removal of the
developer.
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(xii) The AGRC has not applied its mind to the detailed
analysis of the various obstructions and impediment faced in the
project and the steps taken in that regard by the petitioner of which a
detailed analysis was undertaken by the Chief Executive Officer-SRA.
The Chief Executive Officer-SRA had categorically recorded that both
the society and the slum dwellers appearing before him did not dispute
that delay had occurred due to circumstances beyond the control of the
petitioner and only after due consideration of these facts, the Chief
Executive Officer-SRA had dropped the proceedings. Thus there was
abundant material that the case of the society that the petitioner had
delayed the project since 2003, was false.
(xiii) The AGRC has not considered the various impediments
and obstructions faced by the petitioner and by narrating only one side
of the facts has reached to a conclusion that the project was delayed by
brushing aside the contention of the petitioner that the delay was
beyond the petitioner's control as accepted by the CEO-SRA.
(xiv) The contention of the petitioner that the delay was beyond
the petitioner's control, has been overlooked by the AGRC whereby
valuable efforts put in by the petitioner in the project could not have
been undone and negated in such manner.
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(xv) It is submitted that the AGRC however held that for the
period between 2015 to 12 November 2018, the delay could be
justified because of a proposed passing of a DP road through the
subject property. It is submitted that if all the events and happenings
are taken into consideration between the period 2003 to 2011, 2012 to
2014, 2015 to 2017 and 2018 to 2021, it is crystal clear that there was
no delay whatsoever on the part of the petitioner in undertaking the
project much less any such conduct which would foist on the petitioner
the consequence of its removal as a developer. It is submitted that in
the written submissions the petitioner has demonstrated all the steps
taken which have remained uncontroverted.
(xvi) It is submitted that another important facet as overlooked
by the AGRC was lack of cooperation and obstruction by certain slum
dwellers. In such context, it is submitted that the petitioner had offered
rent to the slum dwellers and requested them to vacate right from the
year 2014. It is submitted that while certain slum dwellers vacated,
various other slum dwellers refused to vacate. The petitioner had
pointed out that about 199 slum dwellers have vacated so far and have
regularly been paid rent in lieu of transit accommodation. Also, from
the very inception, the petitioner pursued the eviction of the
obstructing slum dwellers by filing complaints and initiating actions
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under Section 33 read with Section 38 of the Slums Act. Such
complaints were filed on 5 November 2014, 11 November 2014 and 9
January 2015. It is the petitioner's submission that such applications
were heard from time to time however orders were not passed although
petitioner repeatedly followed up with the authorities in that regard. It
is only in the year 2018 under Section 33 and Section 38 proceedings
were transferred to the Deputy Collector and after continuous follow
up for the first time on 5 November 2020, certain orders were passed
for eviction of the slum dwellers which were also further carried in
appeal and writ petitions before this Court.
(xvii) It is next submitted that the allegations regarding
petitioner trading in the scheme and lack of financial ability, are totally
unfounded. The submission is that in the impugned order, the AGRC
has held that the Agreements for Joint Development entered by the
petitioner from time to time demonstrate that the petitioner has no
financial capacity to implement the scheme and have traded the subject
SR Scheme. In this context, it is submitted that the petitioner having
entered into the joint development agreements demonstrate neither lack
of financial ability nor that the petitioner has traded in the scheme.
(xviii) It is submitted that the concept of a trading in scheme
would be in circumstances where an entity after having got a scheme
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approved in its favour substitutes itself with someone else. This is not
a case of the society. It is submitted that the petitioner is fully involved
in the project and is implementing the project and the Petitioner is
fully responsible to execute and complete the project and is
answerable to the authorities in this regard. It is also clear from the
record that any consequence or penalty of any action in the course of
such development is also on the petitioner. Thus, it was not open to the
society to make an allegation that by entering into an agreement with
respondent No.6-(M/s. Veena), the petitioner has traded in the scheme.
It is submitted that by a General Body Resolution (GBR) dated 3
March 2019, the society approved the Joint Development Agreement
between the petitioner and respondent No.6 and also authorised raising
of funds against the sale component. The General Body being fully
cognizant of the agreement having confirmed the same, it was not
open to the society and/or anybody else under the society to allege that
the same in any manner amounted to a trading in the scheme.
(xix) It is submitted that in any event, there is nothing
demonstrated to show that there is any prohibition to enter into any
agreement for the purposes of raising finance or a joint development
agreement so long as the main project proponent continues. Even the
SRA has not taken a stand that there is any such prohibition. This
apart, various policies and circulars also expressly permit even change
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of partners and shareholders. It is submitted that this Court has held
that even if 100% holding of a company were transferred, that would
not tantamount to a transfer of scheme.
(xx) It is submitted that on 17 February, 2017, the petitioner
entered into a Joint Development Agreement with Rajesh Habitat Pvt.
Ltd, and under which the entire responsibility towards the slum society
and all obligations thereunder continued to be that of the petitioner and
the responsibility of Rajesh Habitat Pvt. Ltd was to construct and hand
over the rehab buildings to the petitioner after which all costs
including O.C. and dealing with the authorities was to be done by the
Petitioner. The Petitioner's obligation inter alia to secure all the
approvals and permissions, to demolish slum structures, to provide
transit accommodation to the slum dwellers and to have them vacated,
subsists throughout. Insofar as the construction to be carried out by
Rajesh Habitat Pvt. Ltd. was concerned, certain free sale components
were to be handed over to them, and such an agreement can by no
stretch of imagination be said to be a trading in the scheme. It is
submitted that the involvement of another entity for smooth execution
of a project can never be said to be a trading of the scheme. Even the
Society could not point out any such prohibition in this regard. Also
Rajesh Habitat Pvt. Ltd. mortgaging its entitlement under the
Development Agreement in favour of Vistra ITCL on 22 March 2017,
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was not in any manner prohibited as the mortgage deed was only in
respect of the rights of Rajesh Habitat Pvt. Ltd. in the free sale
component and the petitioner was never a party to the said agreement.
It is submitted that ultimately the mortgage deed dated 22 March 2017
and the Joint Development Agreement dated 17 February 2017 stood
cancelled on 8 February 2019 and thus, were of no consequence as the
petitioner continued to undertake the project.
(xxi) It is submitted that on 21 February 2019, a Deed of
Mortgage, was entered by the Petitioner in favour of Sanghvi
Associates, under which the right, title and interest of the petitioner in
the said property, including the allotted area and committed area (as
defined in recital 'H' as free sale areas allotted /committed to third
parties) and all right, title, and interest of the petitioner on the same,
were assigned. It is submitted that even under such document, it was
only the Petitioner's right which was mortgaged which is to enjoy the
free sale which it will be entitled to once the project is completed, and
there was no embargo at all from doing so. It is submitted that on the
General Body Resolution of the society approving joint development
between petitioner and respondent No.6, the petitioner had entered
into an agreement dated 18 October 2019 whereunder in Clause 4 of
the said agreement, an obligation on the petitioner subsisted namely to
obtain all approvals from all authorities, bear all costs of the project,
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appoint various consultants and contractors, handle all litigations,
handle all slum dwellers including full responsibility for vacating
them, payment of transit rent, etc., which clearly indicated that the
petitioner was fully in-charge of and in control of the project having
all liabilities and responsibilities. It is submitted that respondent No.6
has to discharge certain roles as set out therein, without any manner
absolving the petitioner of its main role as the developer and the entity
implementing the project. There was no prohibition either in the Act or
any circular of the SRA for arriving at such an arrangement and this in
no manner was any trading in the scheme.
(xxii) It is submitted that insofar as the financial ability and
alleged non-payment of rent being issues asserted by the society, the
findings of the AGRC in that regard are perverse. It is submitted that
the AGRC while holding that the petitioner does not have the financial
ability to implement the project, lost sight of the fact that till as late as
on 21 December 2019, the revised Annexure III was certified by the
SRA in favour of the petitioner, thus confirming the petitioner's ability
to implement the project and that such Annexure III was never
challenged by anyone. It is submitted that once the authority had
certified the Annexure III as on 21 December 2019, the financial
ability of the petitioner could not have been be questioned.
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(xxiii) It is submitted that so far the petitioner has invested an
amount of Rs.30,16,83,496/- on the project which includes
Rs.14,81,61,450/- paid by the petitioner by way of rent. In this
context, it is submitted that in the course of the hearing of the show
cause notice, the CEO by an order dated 30 December 2020, passed, to
test the bonafides of the petitioner, directed the petitioner to deposit
fifteen months advance rent. It is submitted that an amount of Rs.
7,41,54,000/- was instantly available with the petitioner and was
deposited in a designated Axis Bank account towards the advance rent
for fifteen months. This according to the petitioner clearly
demonstrates the financial strength of the petitioner. It is thus
submitted that the petitioner has complied with directions issued to it
by depositing fifteen months advance rent, but neither the non-
cooperative members vacated their respective structures nor the
Deputy Collector took action against such slum dwellers. This itself
indicates that at every stage, the project was obstructed at the hands of
few dissenting members and at the same time, the Competent
Authority failed to take action against the said dissenting members
under Section 33/38 of the Slums Act inspite of the order passed by the
CEO, SRA.
(xxiv) It is submitted that the contention as urged on behalf of
the society at the hearing of this petition that the amounts have been
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siphoned away and removed from the Axis Bank account, is totally
false. To satisfy the Courts conscience, a compilation of documents is
demonstrating that all amounts from the account were utilized for this
project. The bank statements together with the letters of mandate to the
bank were produced from which it was clearly seen that from the
amount of Rs. 7,41,54,000/-, an amount of Rs, 1,97,54,000/- was paid
towards rent to various slum dwellers. An amount of Rs.1,42,54,000/-
had been paid towards SRA premium for the project. This was done on
advice received by the petitioner that the petitioner had deposited an
excess amount since the order was to deposit fifteen months rent only
towards those slum dwellers who are still at the site. It is submitted
that such grievance was raised before this Court for the first time, and
hence, to avoid any controversy and to demonstrate its financial
strength, the petitioner immediately deposited back an amount of Rs.
1,42,00,000/- towards premium from the Axis bank account. It is
submitted that the demand draft for the same was also shown before
the Court and the proof of the amount being deposited, was also placed
on record. It is thus, submitted that there could not be any doubt as
regards the financial ability of the petitioner.
(xxv) In regard to the allegations of non-payment of rent and the
allegation that even as on date, there were defaults in payment of rent,
the petitioner has annexed to the petition a statement with the names of
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the slum dwellers who have vacated and have been paid rent. It is
submitted that the details of the rent paid and the period upto which the
rent has been paid is clearly seen in such statement. Also a chart is
placed on record in respect of 199 tenants who have vacated and have
paid rent. A separate chart is placed on record setting out that 54 slum
dwellers who despite receiving rent, have not vacated. This includes
seven committee members who have accepted rent out of which three
committee members have vacated and four committee members
despite receiving rent have not vacated. It is submitted that there is no
denial to these statements nor any affidavit is filed to challenge the
correctness of this statement. Thus, the society cannot be permitted to
argue a case of default in payment of rent. It is submitted that also the
Competent Authority has informed in response to an RTI inquiry by its
communication dated 8 June 2021 that no rent complaint except one is
pending before the Competent Authority. This, according to the
petitioner, demonstrates that the petitioner is having the financial
ability and the contention of the society on any default in payment of
rent, was clearly baseless.
(xxvi) It is next submitted that the Society's contention
that the scope of interference in writ jurisdiction is extremely limited
and the judgments in this regard as cited, would not assist the society,
for the reason that considering that the CEO dropped the proceedings
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under Section 13(2), the appeal itself was not maintainable. It is
submitted that the order of AGRC cannot be allowed to stand, as
irreparable prejudice is being caused to the petitioner and that can be
protected only by an interference by this Court. In support of this
submission, reliance has been placed on the decision of this Court in
New Janta SRA CHS Ltd Vs. State of Maharashtra1.
(xxvii) Lastly relying on the facts/event which have taken place
in the particular years, it is submitted that there was no delay in the
implementation of the slum scheme by the petitioner.
D. Submissions on behalf of Respondent No.1 - (Harihar Krupa
Co-operative Housing Society Society)
36. Mr. Samdhani, learned Senior Counsel appearing on behalf of
Respondent No.1-Society has made the following submissions:
(i) It is submitted that the project in question is a slum
redevelopment project on municipal land admeasuring about 9834
square meters, on which there were 580 existing slum structures, out
of which 470 slum dwellers were found to be eligible over a period of
time through Annexure-II and Supplemental Annexure-II. It is
submitted that the petitioner was appointed as a Developer under an
Agreement dated 20 August 2003 under which the Development work
1 2019(6) ABR 679
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had to be completed within a period of two years of obtaining the
commencement certificate. It is submitted that the petitioner had more
than 70% consent from the members of the society. It is submitted that
Annexure-II was issued on 6 May 2004. Admittedly 199 slum
dwellers vacated their structures and handed over the same to the
petitioner for demolition, however, from the year 2003 till the year
March, 2021, the petitioner did not construct a single rehab
tenement/building. The observations of the CEO/SRA that the delay
on the party of the petitioner was not intentional, are not correct and
therefore, were rightly interfered by the AGRC in the impugned order.
(ii) The petitioner's contention that the petitioner was
contesting the claim of the rival society/ developer between 2003 and
2011, and after the stay was vacated, the petitioner obtained the LOI
and IOA in the period between 2011 and 2014, is misconceived. It is
submitted that the further contention of the petitioner that between
2015 and 2018 on account of Development Plan road passing through
the land in question until the reservation of DP was removed, no
development could take place, is also not correct. It is submitted that
during pandemic petitioner sought to obtain permissions to commence
the work, however, neither the SRA nor the members of the Society
co-operated with the petitioner by granting permissions and by
vacating structures respectively and such delay is not attributable to
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the petitioner, is also not a correct fact/case of the petitioner.
(iii) In countering the above submissions, reliance is placed on
the decision in the case of Galaxy Enterprises v/s. State of
Maharashtra2 and the decision in M/s. Ravi Ashish Land Developers
Ltd. v/s. Prakash Pandurang Kamble and Anr.3, to submit that the
Court had emphasized the need of a pro-active and an aggressive
developer undertaking expeditious implementation and redevelopment
of slum schemes. It is thus submitted that none of the contentions of
the petitioner are based on materials and relevant facts. It is further
submitted that from the period broken down namely 2003 to 2011,
2011 to 2014, 2015 to 2017 and 2018 to 2021, it was established that
the petitioner neither had the desire nor was eager or pro-active in
taking concrete steps to develop and complete the slum project. It is
submitted that the events indicate that the petitioner did not have the
capacity or capability and was always looking for a co-developer who
would fund the project and the petitioner could churn out profit.
(iv) It is submitted that for the period from 2003 to 2011,
although Annexure-II was issued on 6 May 2004, no steps were taken
by the petitioner whatsoever for obtaining an LOI despite it having
consent of more than 70% of slum dwellers. It is submitted that unless
2 2019 SCC OnLine Bom 897
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it obtained an LOI, the IOA (Intimation of Approval) and CC could
never be issued. The submission is that the attempt on part of the
petitioner to explain the delay from the year 2003 to 2011 by
contending that a rival society/ developer had initiated litigations and
therefore no steps could be taken, was totally untenable for the reason
that the name of any society on Annexure-II does not prevent the
proponent of the slum scheme from obtaining an LOI which is evident
from the fact that petitioner obtained the LOI on 29 June 2011 and the
IOA was obtained on 21 April 2012 before the rectification of the
Annexure-II on 20 September 2013. Also there was never any stay in
favour of the rival Society/developer save and except during the
period of 2010-2011 for about one year. Thus, the petitioner's
submissions that there has been status quo between 2003 to 2011 in
various proceedings is not substantiated by production of any order. It
is submitted that no attempt has been made to obtain the LOI or even
initiate proceedings for issuance of LOI. It is submitted that for the
period 2011-2014 no steps were taken by the petitioner to
expeditiously obtain the Commencement Certificate. Although, the
LOI was issued on 29 June 2011 and the IOA was issued on 21 April
2012 on a condition that a C.C will be issued after the affected slum
dwellers are vacated. However, after the part of the slum dwellers
vacated, a C.C was issued on 14 July 2014 for Rehab Building No.1.
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This is fortified by letter dated 14 October 2013 addressed by the
petitioner's architect as also Environment Clearance as per the
requirement in Item No.32 of LOD was not required upto construction
of 20,000 sq. meters as is clear from Circular No. 136 dated 5 July
2012 issued by SRA and letter dated 14 October 2013 addressed by
the petitioner's architect to the SRA. Although the High Rise
Clearance referred to was only for the sale building and hence, nothing
prevented the petitioner from commencing the development from 14
July 2014.
(v) It is submitted that issuance of the Commencement
Certificate based on the letter dated 14 October 2013 of the
petitioner's architect submitting that the work of demolition is in
progress postulates that there were no offending structures coming in
the way of construction of rehab building No. 1. Therefore the
petitioner's contention that the slum dwellers were not co-operating by
vacating their structures was far from truth.
(vi) It is submitted that in so far as the period between 2015 to
2017 is concerned, the contention of the petitioner that the AGRC has
upheld the period of delay for these two years on account of draft
Development Plan (DP) and such findings of AGRC are not
challenged by the Society, is also of no consequence for the petitioner.
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In this context, it is submitted that on 25 February 2015, there was a
DP reservation in the draft DP. The State Government vide
Notification dated 23 April 2015 had directed MCGM to publish a
revised draft DP for inviting objections/ suggestions after carrying out
in-depth investigation into the mistakes of the draft DP dated 25
February 2015 published by MCGM on the basis of ground reality,
merits, planning point of view and legal issues. On 27 May 2016, the
MCGM published revised draft DP in which the proposed DP road
passing through the above slum project was not shown which was
obviously dropped. It is thus submitted that except for a period of two
months that is between 25 February 2015 and 23 April 2015 there was
no proposed DP road in any of the plans. This is further fortified by the
fact that since there was no DP road passing in any of the drafts, the
petitioner could get the layout plan approved and amended IOA for
rehab building No. 1 on 9 November 2017. It is submitted that during
this period further IOA was issued on 9 November 2017 for Rehab
Building No. 2 and the Commencement Certificate was re-endorsed on
13 November 2017. It is next submitted that on 7 August 2017, the
MCGM submitted a revised DP to the Government for sanction. On 8
May 2018, sanction to Development Control and Promotion
Regulation 2034 (DCPR 2034) was granted. It is thus submitted that,
hence, in any event, the proposed DP road affected only the proposed
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sale building, and the construction of the proposed sale building could
not be commenced until substantial progress of rehab building was
made. It is submitted that the petitioner was unable to fully exploit the
free sale component/ FSI, and it does not still come in the way of
implementation of a slum project in as much as the petitioner would be
entitled to Transferable Development Rights (TDR) in respect of
unconsumed FSI. It is submitted that since the AGRC order was in
favour of the society, there was neither a question of assailing the
finding on one point nor was there a procedural requirement in Writ
Petition to file cross objection. It is thus submitted that the issue is
clearly determinable from the notifications and republished draft
development plan which would indicate that the AGRC fell in error by
not looking into the notifications and the draft development plans
before rendering the said finding.
(vii) In so far as the petitioner's contention in regard to the
period between 2018 to 2021 is concerned, that such delay committed
by the petitioner prior to the year 2019 got wiped out by Resolution
dated 3 March 2019 and by petitioner taking steps in the year 2020-
2021, is also untenable. In this regard, it is submitted that apart from
the fact that the petitioner continued with the delay, it failed again on
the trust and faith which was shown by the society by way of a last
chance as is clear from the following:
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a) On a plain reading of the General Body
Resolution (GBR) dated 3 March 2019, it was
clear that it was the petitioner who introduced
respondent No.6 as an experienced and
prestigious developer and represented that joining
hands with respondent No.6 will be profitable for
the re-development. It is submitted that the
representation contains a tacit admission of the
petitioner and that the petitioner was neither an
expert nor experienced nor capable of single
handedly handling the slum re-development
scheme. It is submitted that the resolution further
exposes petitioner's financial incapacity. On such
backdrop, it is submitted that the society with a
view to see that the slum re-development project
proceeds expeditiously under an expert and a
financially capable entity passed a resolution
dated 3 March 2019. The sole consideration for
passing such resolution was that respondent No.6
would come in as a co-developer and can be held
liable and responsible as a developer of the slum
scheme. However, the petitioner's conduct clearly
indicated breach of the trust and faith as reposed
by the society and failure of consideration for
passing such resolution by not obtaining requisite
permissions incorporating respondent no.6 as co-
developer. It is submitted that the resolution dated
3 March 2019 in these circumstances, is of no
assistance to the petitioner in as much as there
was a breach of trust and failure of consideration
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towards the needs of the slum dwellers. It is
further submitted that one cannot look at the
resolution to take benefit of exculpatory part
while excluding the portions which are
inculpatory. The resolution is required to be read
as a whole in its entirety which indicates the
background, the consideration and the
representation made while passing such
resolution. The petitioner thus continues with the
baggage of delay and the delay has to be seen thus
continuously from 2003 till 2021.
b) The petitioner's contention that despite the
joint development agreement with respondent
No.6, it is solely responsible to the SRA and the
society is plainly contrary to the representation
and consideration for the resolution dated 3 March
2019, contrary to the terms of the joint
development agreement. This is one more incident
to indicate the blatant breach and violation of the
resolution dated 3 March 2019.
c) On such backdrop it is submitted that the
implicit supersession of 2018 General Body
Resolution does not take place. The petitioner had
failed to take steps to amend/revise the Letter of
Intent by including the name of respondent No.6
and obtaining an independent Annexure-III in
name of respondent no.6. Thus, the petitioner's
contention that the General Body Resolution of
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2019 was a kind of quid pro quo is fallacious in as
much as on the introduction of DCPR 2034 and
since the work of construction had not
commenced, the slum dwellers in law were
entitled to 300 square feet and the petitioner was
not doing any charity.
d) It is submitted that even if the petitioner
purported to obtain new approvals in the year
2021, the same were irrelevant in the absence of
inclusion of respondent No.6 as a co-developer.
Thus the contention that respondent No.6 was not
required to be joined in the approvals and that the
society or the SRA was not required to look at
respondent No.6 and that the petitioner was solely
responsible to the SRA was a clear admission of
breach of trust and failure of consideration of the
Resolution dated 3 March 2019. It is submitted
that the reverse cascading effect on the delay was
required to be looked into right from the year
2003 till the year 2021.
e) It is submitted that even after the General Body
Resolution of 3 March 2019, after a period of
three months, on 20 June 2019, an application for
revised LOI was made and obtained on 23
December 2019, resultantly the process was
delayed by another nine months only to obtain the
revised LOI. It is submitted that the petitioner's
attempt to explain the delay for the period between
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2020-2021 on account of pandemic from March
2020 and the bonafides of such plea can be seen
from the fact that it moved an Interim Application
(I.A.(St) No. 94157 of 2020) in October, 2020 in a
Suo Motu Writ Petition No. 2 of 2020 before this
Court, cannot be accepted. It is submitted that on
closer scrutiny it is seen that the interim
application sought relief of modification of the
earlier orders passed in the Writ Petition to allow
orders to be passed and implemented on its
application under Section 33/38 of the Slum Act. It
is submitted that this Court by its order dated 29
October 2020 directed the CEO/SRA to pass order
on the Section 33/38 proceedings and thereafter
the matter was again required to be moved before
this Court. Accordingly, the CEO/SRA passed
order on 5 November 2020 but the petitioner still
did not move this Court for implementing the
order, and accordingly, the Show Cause Notice
dated 4 December 2020 was issued after the order
of the CEO/SRA.
f) It is submitted that even during the period
from 2018 to 2021, no prompt steps for
commencement of the construction was taken. In
support of the submissions on delay, reliance is
placed on the decision of this Court in (i) Galaxy
Enterprises V/s. State of Maharashtra (supra);
(ii) Susme Builders Pvt. Ltd. V/s. Chief
Executive Officer, Slum Rehabilitation
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Authority & Ors.,4 (iii) K. S. Chamankar
Enterprises & Anr. V/s. State of Maharashtra &
Ors.5.
(viii) In so far as the petitioner's case on withdrawal of
complaints is concerned, the following submissions are made:
a) It is submitted that as on the date of hearing of
the show cause notice dated 4 December 2020 and
21 December 2020, complaints dated 9 December
2019, 18 December 2019, 14 January 2020, 27
January 2020, 29 January 2020 and 12 March
2020 were not withdrawn. It is submitted that
during the period between 2018 to 2021, no steps
for commencement of the construction were taken.
The Society initially passed a General Body
Resolution on 20 September 2018 for removal of
the petitioner pursuant to which the complaints
were written. It is submitted that during the
hearing of the show cause notice before the
CEO/SRA intervention of 62 slum dwellers was
permitted and that there were in all 10 numbers of
complaints by the society from 2017 to 2020
including one complaint by one slum dweller and
132 complaints by individual slum dwellers
during the period between January, 2021 to
February, 2021. It is submitted that importantly,
the main complaint dated 18 November 2019 was
4 2018 (2) SCC 230
5 2018 SCC OnLine Bom 6591
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signed by ten committee members. The reminders
dated 9 December 2019 and 18 December 2019
were both signed by Mr. Vinod Kanta Rai. The
withdrawals as alleged by the petitioner dated 31
December 2019 and 8 March 2021 were not
signed by Mr.Vinod Rai. The complaint of
Mr.Vinod Rai continued to exist during the
hearing of the show cause notice and it cannot be
argued that the show cause notice based on the
complaint dated 18 November 2019 could not
have proceeded since the complaint was
withdrawn. It is submitted that on the hearing held
on 27 January 2020 and 3 March 2020 before the
Dy. Collector / SRA in the Section 33/38
proceedings (eviction proceedings), the stand of
the society was that rent had not been paid, the
construction had not started, hence, the society
wanted to appoint a new developer. It is submitted
that the same is recorded in the order dated 5
November 2020.
b) It is submitted that even if the Secretary of the
society accepted that complaint was withdrawn,
there were 132 complaints by individual slum
dwellers for removal of developer. It is submitted
that though the CEO/SRA noticed withdrawal of
complaints by letters dated 31 December 2019
and 14 January 2020, he did not drop the
proceedings on the ground of withdrawal of
complaints and admittedly continued the
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proceedings suo motu as part of duty and
obligation in the implementation of the slum
scheme. It is submitted that however, the
CEO/SRA though found delay but rendered an
erroneous, unsustainable finding that there is no
deliberate or intentional delay and that the
petitioner has shown bonafides by depositing rent.
(c) It is submitted that the petitioner's contention
in reply affidavit before the AGRC that Vinod
Kanta Rai had no authority to file an appeal by
reason of resolution dated 28 February 2021 is
itself answered by the petitioner, by annexing the
Society's Resolution dated 25 March 2021
restoring the authority of Vinod Kanta Rai. It is
submitted that the maintainability of the appeal
was not a plea in the petitioner's reply affidavit as
filed before AGRC. It is submitted that the
number of complaints and withdrawals of some of
them was not against the society but against the
petitioner in as much as these events only indicate
that the members of the society, namely slum
dwellers are the most vulnerable section of the
society and are easily influenced by the persons
with adverse interests.
(d) It is submitted that even if one finds that the
complaints are withdrawn, the SRA is not
divested of its own power either to initiate suo-
motu proceedings or to continue the initiated
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proceedings. The submission is that it is the duty
and obligation of the SRA to ensure speedy
implementation of the slum projects and thus,
proceedings even suo-motu under Section 13(2)
of the Slum Act or allied powers under the Slum
Act can be initiated. In support of this submission,
reliance is placed on the decisions in (i) M/s.
Ravi Ashish Land Developers Ltd. v. Prakash
Pandurang Kamble&Anr. (supra) and Susme
Builders Pvt. Ltd. v. Chief Executive Officer,
Slum Rehabilitation Authority & Ors. (supra).
(ix) In so far as the petitioner's submissions on the order of
AGRC are concerned, it is submitted that the petitioner's contention
that the arguments of rent, trading in the scheme/financial incapacity
were not the arguments raised before the CEO/SRA and were raised
for the first time before the AGRC, is not a correct contention of the
petitioner for the reason that all such grievances were expressly raised
in the main complaint dated 18 November 2019 by Vinod Kanta Rai
as his capacity as the Chairman of the Society and were not
withdrawn. He was also not a signatory to the alleged withdrawal
letters. It is submitted that the issue of arrears of rent was expressly
raised before the CEO/SRA which led to the direction for payment of
arrears of rent and advance rent on 21 December 2020. It is submitted
that the trading in the slum rehabilitation scheme is one of the species
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and is a cause of delay in implementing the slum rehabilitation
project. It is thus covered within the ground of delay if one looks at
the reason for delay. It is submitted that trading in slum rehabilitation
scheme and financial incapacity is one of the reasons and ingredients
of delay.
(x) It is submitted that arguments in this regard was also raised
by intervening 62 slum dwellers. In regard to the case against the
petitioner on failure to pay rent, it is submitted that the petitioner's
contention that at all material times, they had paid rent to the slum
dwellers cannot be accepted. It is submitted that the petitioner got
about 199 tenants vacated from the slum property from the period
2012 onwards. It is submitted that it is not in dispute that the
petitioner was in arrears of payment of rent and during the hearing of
the show cause notice on 21 December 2020, the CEO/SRA issued
direction to the petitioner to make the payment of the arrears of rent
and to deposit the amount of advance rent of fifteen months. It is
submitted that it was admitted by the petitioner while handing over a
table to this Court that the rent was worked out on the basis of General
Body Resolution dated 20 September 2018 i.e. Rs.12000/- for
residential premises and Rs.14,000/- for non-residential premises. The
society has submitted that prior to 20 September 2018, the rent
required revision of 5% increase yearly as per the SRA circular which
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was applicable even post 2018. It is submitted that the directions in
the roznama of CEO/SRA dated 21 December 2020 shows that the
petitioner was in arrears of rent and order dated 30 December 2020
directed the petitioner to deposit fifteen months advance rent. It was
thus clear that the petitioner was in arrears of rent. It is next submitted
that there is no challenge to the circular of SRA and the petitioner has
acted on the Circular No.166 by opening Axis Bank escrow account.
The petitioner has also not disputed either the existence or binding
nature or knowledge of the circulars. In fact, the petitioner has
accepted that there is breach of escrow accounts and had made an
offer to bring back Rs.1.42 crores which is too late in the day. It is
submitted that the petitioner only deposited Rs.7.20 crores which did
not cover the arrears in terms of the circular or in terms of the General
Body Resolution or as per the directions of the CEO/SRA.
(xi) In regard to the case on financial incapacity/trading of the
Slum Rehabilitation Scheme, the petitioner's contention that raising of
finance does not amount to trading of slum rehabilitation scheme
relying on the decision of this Court in New Janta SRA CHS Ltd.
(supra), cannot be accepted in the present facts of the case. In this
consent, the submission is that in the year 2017 the petitioner had
entered into a Joint Development Agreement ("JDA") with Rajesh
Habitat Pvt. Ltd. for Rs. 50 Crore without the society's consent. In turn
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Rajesh Habitat Pvt. Ltd executed a Deed of Mortgage with Vistra
ITCL (India) Ltd. mortgaging its rights and interest under the JDA for
Rs. 50 Crores, and after a lapse of about two years in the year 2019,
the JDA with Rajesh Habitat Pvt. Ltd. was cancelled and Deed of Re-
conveyance of the mortgage property executed with Vistra ITCL
(India) Ltd. It is submitted that after redeeming the mortgage, the
petitioner was still financially incapable of implementing the slum
scheme and in the year 2019, the petitioner executed an Indenture of
Mortgage dated 21 February 2019 with M/s. Sanghavi Associates for
sum of Rs. 50 Crores secured by first ranking exclusive charge on
100% rights of the petitioner in the said property. It is submitted that
there is no material to show that Sanghavi's mortgage has been
redeemed by the petitioner. The petitioner's contention that the
Indenture of Mortgage executed on 21 February 2019 was not a
mortgage was clearly contrary to the plain reading of the document. It
is submitted that the petitioner has freely mortgaged the slum project
without informing the society much less taking the consent of the
society. The petitioner has also not taken consent of the owner of the
land-MCGM. Thus, the petitioner's action is plainly adventurous
wherein without even becoming entitled to construct any part of free
sale component, an attempt is made to encumber the entire property in
the scheme. It is submitted that the events of the petitioner not taking
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concrete steps for implementing the slum scheme by constructing
rehab component from the year 2003 by waiting for joint/co-developer
partner, inducing the society into agreeing to consent for a co-
developer, clearly establish that the petitioner was not itself capable
but was only looking to palm off the scheme to a co-developer to
churn off the profits. It is submitted that thus, the finding of the
Appellate Authority of financial incapacity and trading in SRA scheme
cannot be faulted. The petitioner's argument that there was no
challenge to Annexure-III is contrary to the material on record as the
Society had filed a complaint with SRA seeking cancellation of the
Annexure-III.
(xii) It is next contended that this is a case where there is loss
of faith/trust. The submission is that the society has no faith or trust in
the petitioner and it is willing to appoint a developer whom the land
owning Authority invites by tenders or is willing to appoint a
developer by holding a General Body resolution under the supervision
and/or guidance of the MCGM and/or SRA with the co-operative
section of the SRA to hold a fresh General Body Resolution to show
that it has no faith in the petitioner and the petitioner should be
removed.
(xiii) It is submitted that no interference under Article 226/227
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of the Constitution is called for in the present proceedings. This
submission is supported by contending that the AGRC is a quasi-
judicial fact finding Appellate Authority under the Slum Act and it has
rendered categorical findings against the petitioner on delay, financial
incapacity, non-payment of rent and trading of the slum rehabilitation
project. Thus, unless these findings of the Appellate Authority are
found to be perverse or de-hors the jurisdiction or power of
adjudication, the findings are not liable to be disturbed and hence, no
case is made out for interference in exercise of powers under Article
226/227 of the Constitution of India. In supporting this submission,
reliance is placed on the decision of this Court in (i) Hi-Tech India
Construction Vs. Chief Executive Officer, SRA 6; (ii) K.S Chamankar
Enterprises Vs. State of Maharashtra (supra) and (iii) New Janta
SRA CHS Ltd Vs. State of Maharashtra (supra).
E. Analysis and Conclusion :-
37. I have heard learned counsel for the parties. I have also perused
the record and the written submissions as filed on behalf of the parties.
38. At the outset, it is required to be considered whether in the facts
and circumstances of the present case the delay of 17 to 18 years in
6 2013 (3) Mh.L.J. 707
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executing the Slum Rehabilitation Scheme in question, as entrusted to
the petitioner by respondent no.1 society, can at all be said to be
justified when tested on facts and in law. Also whether such a delay
ought not to be regarded as fatal so as to denude any contractual right
which the petitioner has with the society, for the petitioner-developer
having failed to comply within a reasonable time, redevelopment of
the slum scheme by discharging its role as a developer under the
statutory scheme of redevelopment of slum lands.
39. On the conspectus of what has been noted above, it is required to
be noted that the jurisdiction of the Court in the present proceedings
would not be to re-appreciate the facts and the evidence which were on
record before the authorities below, but to examine as to whether there
is any perversity in the decision making process and/or any gross
illegality in the Apex Grievance Redressal Committee (AGRC) coming
to a conclusion as a prudent body of persons would reach such
conclusions, as arrived by it in the impugned order.
40. The intention and the purpose to conceive a Slum Rehabilitation
Scheme was to eradicate the existing slums and provide for better
living conditions to the slum dwellers namely to liberate them from the
unhygienic and dirty surroundings, so as to provide them permanent
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and respectable dwelling units. In the case in hand, primarily there
was no concern whatsoever of the landlord raising any objection, for
the obvious reason that the landlord is the Municipal Corporation of
Greater Mumbai, whose land stood encroached by the slum dwellers
who have formed respondent no.1 society. In these circumstances, it
was declared to be a slum. Consequent to the said land being declared
a slum, the petitioner formed respondent no.1-society exercising its
right as the rules would recognise [DCR 33(10)], so as to appoint a
developer to undertake a Slum Rehabilitation Scheme. The choice to
select a developer was solely with the society, which the society had
exercised in favour of the petitioner in the year 2003, as noted above.
41. Under the scheme for redevelopment of the slums, the developer
who is appointed by a slum society, becomes entitled to construct a
slum rehabilitation building(s) and free-sale building(s) by taking
advantage of additional floor space index (FSI), which would be made
available to the developer. The scheme is to the effect that the cost of
constructing a slum rehabilitation building and the profits of the
developers would be recovered from the sale of tenement/commercial
spaces, if any, in the free sale building. This is broadly the nature of the
scheme. The trigger to all this is the society reposing confidence in a
developer as initially reposed in the petitioner in the year 2003 by
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entering into the development agreement dated 20 August, 2003.
42. It is nobody's case that the jurisdiction of Chief Executive
Officer of the SRA or that of the higher forum namely, the AGRC
which considers an appeal against the decision of the Chief Executive
Officer-SRA, would be to examine any issues on specific performance
of the terms and conditions of the contract entered between the society
and the developer namely, the development agreement as entered
between the slum society (respondent no.1) and the developer (the
Petitioner).
43. The jurisdiction of the Slums Rehabilitation Authority under
section 13(2) is limited and intended to pass appropriate orders in the
paramount interest of the Slum Rehabilitation Scheme. Section 13(2)
provides that on a declaration of any area as a Slum Rehabilitation
Area, the Slum Rehabilitation Authority, if is satisfied that the land
under 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 an order, determine to develop the land by
entrusting it to any agency recognised by it for the purpose. Such an
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order can be passed after the owner is given reasonable opportunity to
show cause as to why such orders should not be passed. Section 13 of
the Slums Act reads thus :
"13. Power of Competent Authority to redevelop
clearance area:
(1) Notwithstanding anything contained in sub-section (1)
of Section 12 the Competent Authority may, at any time,
after the land has been cleared of buildings in accordance
with a clearance order, but before the work of
redevelopment of that land has been commenced by he
owner, by order, determine to redevelop the land at its own
cost,if that Authority is satisfied that it is necessary in the
public interest to do so.
(2) Where land has been cleared of the buildings in
accordance with a clearance order, the Competent
Authority, if it is satisfied that the land has been, or is
being, redeveloped by the owner thereof in contravention
of plans duly duly approved, or any restrictions or
conditions imposed under sub-section (10) of Section 12,
or has not been redeveloped within the time, if any,
specified under such conditions, may, by order,
determine to redevelop the land at its own cost:
Provided that, before passing such order, the owner shall
be given a reasonable opportunity of showing cause why
the order should not be passed." (emphasis supplied)
44. Thus, the concern in regard to the applicability of Section 13 in
the present context would be that when the petitioner-developer, was
not undertaking the scheme and/or was not achieving the slum
redevelopment "within time" and the delay was inordinate, for reasons
which were seen to be attributable to the petitioner-developer then, as
to why the obvious consequence of change of developer ought not to
take place ?
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45. It may be observed that when the said provision speaks about
time relevancy, necessarily it has to be construed to be the time as
agreed between the parties under the contract namely the
"Development Agreement" and/or reasonable time or in a given case,
if not so provided between the parties, it would be required to be
construed as a reasonable time, that the facts and circumstances of the
case may go to show.
46. As noted above, the question before the court in the present
proceedings is as to whether a delay of about 17 to 18 years, can at all
be accepted to be in any manner a reasonable period, in the facts and
circumstances of the case more particularly considering whether the
reasons as set out by the petitioner can at all in any manner be a
justification for such delay.
47. The facts are noted in extenso which demonstrate that a decision
to undertake redevelopment of the slum dwellers was taken by the
society in the year 2003, when the development agreement dated 20
August 2003 came to be executed between the society and the
petitioner, which was on the basis that the society by a majority of
70% of the slum dwellers had appointed the petitioner to undertake the
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redevelopment.
48. It is seen from the record that the first few years from the date of
the development agreement, were entangled in some litigation as
brought about by a rival society namely Omkareshwar and its
developer Siddhivinayak. In my opinion, the case projected by the
petitioner based on any such dispute with Omkareshwar, on a deeper
scrutiny cannot condone the petitioner's inaction of not taking
appropriate steps to progress with the scheme despite the fact that it
had consent of more than 70% of the slum dwellers at all material
times. In fact, on the petitioners having a consent of 70% of the slum
dwellers was also the observation even of the Chief Executive Officer-
SRA in the proceeding pertaining to Omkareshwar, for the reason that
the said litigation was merely on Annexure-II being claimed by
Omkareshwar. The development agreement entered between the
petitioner and the society had remained undisturbed. The LOI itself
came to be obtained by the petitioner after 8 years i.e. on 29 June 2011,
from the date the petitioner entered into a development agreement with
the society. It may be observed that even assuming that the delay for
period of eight years is not to be made fully attributable to the
petitioner, however it needs to be seen whether for the further period
can it at all be said, that the petitioner was diligent?
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49. The IOA (Intimation of Approval) was thereafter obtained on 21
April 2012. It is clear from the petitioner's own case that the stay in
favour of the rival society (Omkareshwar) was only for a limited
period of about one year, as clear from the reading of the orders dated
13 March 2010 passed by the Division Bench of this Court in Writ
Petition (L) no.286/2010 (Omkareshwar Housing Society Proposed vs
State of Maharashtra) and the subsequent order dated 23 February
2011 passed by the Division Bench and consequent minutes of the
meeting of the decision of High Power Committee dated 30 April
2011.
50. This apart, the petitioner itself by its inactions created a further
delay, inasmuch as, during the period 2011 to 2014 no steps were taken
by the petitioner to obtain a commencement certificate and commence
construction, although an LOI was issued on 29 June 2011 and an IOA
being issued on 21 April 2012. Admittedly, the IOA having being
issued on 21 April 2012 on a condition that commencement certificate
shall be issued after affected slum dwellers would vacate being
condition no.10 of IOA. Only those persons where the rehabilitation
building was to be constructed were the immediate affected slum
dwellers. It is not in dispute that about 130 slum structures were
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already demolished and vacated which is the petitioner's own case, as
also rent was offered to these slum dwellers for alternate
accommodation.
51. After these slum dwellers vacated, commencement certificate
was issued on 14 July 2014 for rehabilitation building no.1. The
commencement certificate was issued admittedly on the petitioner's
architect so certifying that the work of demolition is in progress and
for the rehabilitation building to be constructed, there was no hurdle of
any structures affecting the construction to be commenced. Also it
appears that in undertaking construction of the rehabilitation building
no.1 the construction was not to exceed 20,000 sq. mts and hence, the
environmental clearance to confine construction below 20,000 sq. mts
was not necessary, which itself was the policy of the SRA as contained
in circular no.136 dated 5 July 2012. This position is also clear from
the petitioner's architect letter dated 14 October 2013. It is thus clear
that despite the LOI, IOA and Commencement Certificate being
granted, the petitioner did not proceed to start with the basic work of
constructing rehabilitation building no.1. It may be observed that the
petitioner's case on some issues on a final annexure-II to be issued by
the MCGM was not relevant for the reasons that any amended
annexure II could not have affected the petitioner to act upon the
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commencement certificate as issued to the petitioner on 14 July, 2014.
52. In so far as petitioner's contention that the petitioner had raised
an objection to the development plan reservation which was introduced
by the draft development plan published by MCGM on 23 April 2015,
it is seen that despite such reservation being proposed, there was no
impediment for the petitioner in any manner to halt and/or not to
undertake the construction of the rehabilitation building as the
proposed DP road would have affected to some extent only the
proposed "sale building", the construction of which was to be
undertaken only after rehabilitation building no.1 was substantially
completed. It can hardly be accepted that the petitioner pursuing its
application for removal of the proposed DP road reservation, albeit its
commercial interest, could be any legitimate reason in the petitioner
not commencing the construction of the rehabilitation building no.1
and more particularly, when a substantial number of slum dwellers
were already rendered homeless, their slum structures being
demolished. The petitioner acted as if the DP Road reservation
amounted to a stay on the slum scheme upto the year 2017, and for
reasons not bonafide did not achieve any progress.
53. Insofar as the period subsequent, to the development plan issues
being resolved in the year 2017 as noted above, it can be seen that for
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the petitioner, the things could still not improve. Undoubtedly, about
15 years having lapsed after the development rights were conferred on
the petitioner and about 199 slum dwellers having vacated/dishoused
and the remaining slum dwellers awaiting rehabilitation, it was but for
natural, for an unrest brewing amongst the slum dwellers. In fact the
society/slum dwellers had filed complaints in regard to non-payment
of rents to the CEO-SRA/Deputy Collector and were continuously
agitated on such issue. This would go to show on the financial
position of the petitioner which would be discussed hereafter. More
particularly as per the development agreement, even the transit rent
was not being paid to the slum dwellers for the temporary
accommodation although they were dishoused.
54. The approach of the petitioner of having filed selective
applications against particular slum dwellers under Section 33/38 of
the Slum Act purporting to seek their eviction, in no manner inspires
any confidence. Although hair splitting contentions are raised by the
petitioner on these issues, a perusal of the record would clearly
indicate that there was no wholehearted attempt which would
demonstrate any concrete steps being taken to commence the
construction of the building after the commencement certificate was
obtained on 14 July 2014. It is also seen that after the Section 33/38
applications were filed, on 5 November 2014, 9 January 2015 and 17
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January 2015, as to what happened for a period of five years namely,
when in November 2019, the petitioner moved the Deputy Collector-
SRA on the pending applications, there is no explanation whatsoever.
The petitioner has conveniently made a statement in the petition that
between the period of five years i.e. from 2014 to 2019, the
petitioner's applications for initiation of eviction action under Section
33/38 of the Slums Act, were kept pending and were not concluded,
could not be any justification for the petitioner not to bring about
commencement of construction. This, as if the petitioner had no
remedy whatsoever but to remain frozen for a long period of five
years, while the slum dwellers keep suffering at the petitioner's hands.
55. It appears that although some how Annexure-III was obtained
by the petitioner, which would purport to reflect on its financial
position to be satisfactory, things at the ground level were totally
different nay astonishing. This for the reason that the petitioner being
in a precarious financial position, had made desperate attempts to
introduce a third party in the project namely Rajesh Habitat Private
Limited by entering into a joint development agreement dated 17
February 2017, under which, Rajesh Habitat Private Ltd., was to infuse
an amount of Rs. 50 Crores, as also Rajesh Habitat was to construct
and hand over the Rehab buildings to the petitioner. Such agreement
was not specifically consented by the society. Things did not stop at
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this, as Rajesh Habitat Pvt.Ltd., in turn executed a Deed of Mortgage
with one Vistra ITCL India Ltd., mortgaging its rights and interest
under the joint development agreement for Rs. 50 Crores and
ultimately both these agreements were required to be cancelled by the
petitioner in the year 2019, as stated by the petitioner. Consequently,
Vistra ITCL India Ltd. executed a Deed of Re-conveyance of the Deed
of Mortgage. It appears that the petitioner is to blame itself of the
delay on its part, and to make the slum dwellers its victims. Thus, the
petitioner clearly appears to have ceased to be financially viable when
it came to infusing third party finance on the project. Again on 21
February, 2019, the petitioner executed an Indenture of mortgage with
one M/s. Sanghvi Associates for a sum of Rs. 50 Crores which was
secured by the first ranking exclusive charge of hundred percent rights
of the petitioner in the said property.
56. A perusal of the term loan sanction letter issued by Sanghavi
Associates to M/s. Yash Developers, dated 20 October 2018, as relied
upon by the petitioner, would clearly indicate that the amounts to be
received by the petitioner from Sanghavi Associates, were not purely
for the project but for settlement of inter se disputes in a suit which
had arisen between the partners of the petitioner and which was an
amount of Rs.2,50,00,000/-, the second instalment of
Rs.10,50,00,000/- was for payment to be made to Rajesh Habitat Pvt.
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Ltd. for and on behalf of Rajesh Habitat Pvt. Ltd., for redeeming
NCDs and obtaining a re-conveyance of the Mortgaged Property and
for execution and registration of Deed of Cancellation of JDA and
POA, and the third instalment of Rs.5,35,00,000/- to be paid to the
Society and Slum Dwellers, towards the due rent and shifting charges.
Thus, there is nothing put on record to show that the petitioner had
sufficient finance to undertake the entire slum project. This apart, the
Petitioner had not pointed out any specific resolution where the
petitioner had taken the consent of the society for such mortgage or for
that matter the owner of the land namely the Municipal Corporation of
Greater, Mumbai (MCGM). Such a mortgage although could be only
on the free sale component of the building, however, the encumbrance
was sought to be created on the entire property. This itself was peculiar
as such action is unknown not only to the basic tenants of the law
applicable to the Slum Rehabilitation Schemes but fundamentally
opposed to the principles of law as would become applicable to
mortgages. This for the reason that the law in regard to Slum
Rehabilitation Scheme as it would stand, would not create a situation
that the ownership of the land which at all material times stood vested
with the MCGM by virtue of which the land continues to vest even
today, would stand transferred to the petitioner developer. If this be the
legal position, then, certainly, a mortgage in respect of the entire
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property was an absolute overreach on the part of the petitioner nay an
abuse of the limited contractual rights being available to the petitioner,
under the terms and conditions of the Development Agreement.
57. In any case, the petitioner struggled to avail finance and was
facing severe financial crisis, this itself was material for the Chief
Executive Officer of the SRA to come to a conclusion that it may not
be possible for the petitioner to execute the scheme. The Chief
Executive Officer however did not call upon the petitioner to satisfy
that it had the appropriate finances to undertake the "entire scheme".
The Chief Executive Officer merely asking the petitioner to deposit
the arrears of rent, can in no manner, whatsoever, be accepted as a
certificate to the petitioner possessing a financial capacity to complete
the project.
58. It is crystal clear from the petitioner's own showing that the
petitioner was required to take the crutches/financial assistance
initially from Rajesh Habitat Pvt. Ltd.,who in turn looked at Vistra
ITCL India Ltd. and thereafter having failed with both these entities,
with one M/s. Sanghvi Associates, which is not for a small amount but
for a substantial amount of Rs. 50 Crores. Things however would not
stop at this and subsequently it appears that now respondent no.6-
Veena Developers was roped in, to provide working capital for the
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entire project described to be the business partners/joint developers of
the petitioner as in para 1 of the petition.
59. The petitioner time and again having approached third parties
for financial requirements in the manner as discussed above, in fact
was quite fatal and counter productive to the implementation of the
slum scheme, for the reason that if any of the financers were to
withdraw from their financial support and the commitments as made to
the petitioner, the same would leave the petitioner with no remedy but
to wander further hunting for fresh finance. Such financial instability
of a developer certainly would have a devastating effect on the
implementation of the slum scheme which could also result in the total
collapse of the slum scheme being implemented and in fact a death
knell for the slum scheme. It is for such reason, the real wherewithal
and financial stability of a developer plays an extremely pivotal role,
as finance is the very lifeline for successful implementation and
completion of the slum scheme. The present case is a classic case of
how the petitioner is running helter-skelter to secure finance, that too
without taking the society into confidence much less the authorities.
This on the basis of a solitary clause in the Development Agreement
which is being discussed hereafter.
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60. In the above context, it may be observed that although to a
legitimate extent, there cannot be any objection for finance to be
borrowed for completing the scheme by a developer however, it cannot
be countenanced that a developer is totally dependent for all his
financial and/or technical requirements on third parties. The nature of
such dependency would unfold the genuineness of a developer on such
front. In the present case, Clause 24 of the development agreement
between the society and the petitioner is relied upon by the petitioner
as a carte blanche to induct third parties in the slum project. However,
Clause 24 cannot be permitted to operate and/or construed so as to
mean that the petitioner can successively indulge with third parties not
only to procure finance but technical expertise including achieving
construction of the buildings as the petitioner has resorted to do so. If
for everything except the paperwork of obtaining permissions, etc., it
is the third party which would be looked at by the petitioner, in that
case, can it be said that it was wrong for the slum dwellers in assuming
that the petitioner is itself not executing the scheme but through a third
party ? For the society and the slum dwellers, it is the petitioner who
is to be looked at, they may not know about the masked and
unrevealed deal with such third party. This would be too much to be
expected from the slum dwellers. For them unknown would be the
complex dealings the developer may have with such third parties.
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This is clear from the nature of agreements the petitioner had entered
firstly with Rajesh Habitat, who brings Vistra ITCL India Ltd., than
M/s. Sanghavi Associates and lastly, Ms. Veena Developers. Clause 24
of the development agreement is required to be noted which reads
thus :
(Official translation of a photocopy of Clause 24, typewritten in
Marathi)
"(24) The said Developer shall have full liberty
to sell the salable F.S.I. and other transferable
rights that would be available under this
agreement in respect of the said scheme to any
third party or appointed heir at the price and on
the terms and conditions as the said developer
may deem it proper and the said Society hereby
agrees to approve such third party and/ or their
appointed heirs, without any consideration
therefor and further agrees to sign appropriate
agreements, documents and writings, if required,
in this regard."
61. The Chief Executive Officer has not noticed the real effect of
such clause to the extent that in fact the said clause has purportedly
created rights in favour of the petitioner to sell the scheme. The
petitioner appears to be under an erroneous belief that under such
clause, it had the tacit approval of the society to enter into such
successive agreements with third parties like Rajesh Habitat Pvt. Ltd.,
Vistra ITCL India Ltd., M/s. Sanghvi Associates and Veena
Developers-respondent no.6, which was used to create substantive
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rights in favour of third parties in the scheme, that too without the
approval of the authorities. The respondents may be correct in their
contention that a party who is financially sound, would not repeatedly
knock the doors of third parties for finance and even technical
expertise to undertake constructions and so far as its role is concerned,
only remain on paper. This was a crucial aspect which was required to
be deeply examined and in its entirety by the Chief Executive Officer
and more particularly when the scheme for multiple reasons was being
unconscionably delayed at the hands of the petitioner.
62. It needs to be stated that in the circumstances as noted above,
certainly, there was legitimate expectation of the slum dwellers that
once they had entered into a development agreement with a developer
in 2003, the developer would not delay the re-development and the
process of rehabilitation would take place as per the commitment made
by a developer in the Development Agreement. Certainly, this would
presume a reasonable allowance for a bonafide, legitimate and an
unaccountable delay and not a gross delay of about 18 years as in the
present case. The commitment/obligations of the petitioner under the
development agreement were already rendered meaningless nay
trashed by the petitioner, nonetheless the petitioner wants to hang on to
the scheme playing with the right to livelihood of the slum dwellers.
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63. In the present case, reasons for the petitioner delaying
commencement of construction are certainly gross, they are beyond
any condonation. In fact as noted above, the different reasons as set
out by the petitioner to contend that delay was not attributable to the
petitioner are seen to be totally flawed and preposterous apart from
being totally unacceptable. It is high time that the authorities take a
strict view of such matters and on a holistic consideration of materials,
come to a well considered conclusion as to whether genuinely a
developer has wherewithal and a real capacity to undertake re-
development when it concerns a matter of re-development of a slum.
This more particularly considering the fact that a society has no real
expertise to judge the expertise of a developer and on what
considerations the society selects a developer, or whether the developer
hunts such slums to undertake the work is a murky affair to be looked
into.
64. For the developer, it is a commercial project but for the slum
dwellers, it is their very livelihood, a roof over their head and an
entitlement to have a living of dignity and respect which is the very
object and intention of the slum legislation and the slums scheme. It is
non-negotiable and/or there cannot be any compromise on the
developer to achieve rehabilitation of the slum dwellers as committed
by him in the development agreement and comply with the terms and
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conditions therein whatsoever, when the legislation itself has given
such a free hand to the developer to achieve the object to bring about
an expeditious rehabilitation of the slum dwellers by completing the
rehabilitation, as it cannot be that the development agreement as
entered between the society and the developer only remains a farce and
a tool in the hands of a developer to foist himself on the slum dwellers
without a fear of removal.
65. It is not a case that it is some charity being made to the slum
dwellers by the developer when the developer undertakes a slum
scheme. There is a free sale component provided to the developer,
from the sale of which the developer would recover not only the cost
of rehabilitation of the slum dwellers but also earn profits. It thus is
purely a commercial proposition for the developer. Once it is a
commercial venture for the developer to undertake re-development
which also involves a human element namely a right to shelter of the
slum dwellers, the work on the scheme has to be undertaken in strict
commercial terms as prescribed in the development agreement and any
breach of the terms and conditions of such commercial agreement,
necessarily, is required to be perceived in the context of not only as a
breach of a commercial contract but also a breach of a social welfare
legislation as applicable once it comes to undertaking such schemes.
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66. The facts of the present case demonstrate that the petitioner has
grossly failed to have inspired any confidence with the society/slum
dwellers, in regard to the real intention of the petitioner in undertaking
the project. In fact, the petitioner by bringing in third party financers
and by creating rights in them over the slum project, created an adverse
impact on the society to legitimately assume that the petitioner has no
finances/wherewithal to complete the project.
67. For the innocent slum dwellers, it is impossible to comprehend
as to what will be the nature of the commercial dealings when a
developer like the petitioner received the involvement of the third
parties and what is the true nature of any such business relations
behind the veil. It would be too much to expect the slum dwellers to
know the nitty-gritties of such underlying transactions and commercial
dealings of the developers. Thus, it is of utmost importance and of
necessity, that an overall view of the matter is required to be taken to
examine whether timely completion of a slum scheme was at all a
bonafide intention of the petitioner.
68. The present case, in my opinion, has all the pointers only in one
direction, namely, that there was no genuine and inherent intention of
the petitioner to complete the project. On the finance front, keeping
certain amounts in an escrow account to show that the petitioner is
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capable of discharging the liability of arrears of rent, is of no
consequence when it related to the actual finance required for the
project. If the petitioner was to have an ease of finance, it would not
have kept arrears of rent to be paid to the dishoused slum dwellers.
The real test in the present case was to satisfy the slum dwellers and
the AGRC that substantial financial and technical expertise, at all
material times was available with the petitioner to undertake the
project. Significantly, it needs to be noted that apart from the
petitioner lacking funds/finances, the petitioner has no technical
expertise inasmuch as it can be seen that it is M/s. Veena, a third party
developer, who would be providing not only the working capital but
also the technical expertise as clearly seen from Clause 5.3 of the Joint
Development Agreement dated 18 October, 2019 entered between the
petitioner and M/s. Veena. Clause 5.3 (a) reads thus :
"(a) Veena shall prepare the design including
master planning, preparation of detailed
architectural and engineering designs and
drawings, EDC etc., through the architect
appointed jointly appointed by Veena and Yash
(hereinafter referred to as "Architect"), for the
layout and for each building (Including building,
drawings, elevations, facade, etc.) in the Project
(hereinafter referred to as "Design"). Veena shall
coordinate with the Architect for the purpose of
preparation and development of the Design. Veena
shall ensure that the Contractors construct the
Project as per the Design and the plans approved
by the statutory authorities and Veena shall
supervise the same:
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(b) The Design shall be developed by Veena in
such a manner so as to procure a complete
detailed design of the Project and of each and
every part thereof such that the Project and each
and every part thereof will jointly and severally be
in all respects fit for its or their purpose and such
that the Project as a whole and as appropriate,
shall be in accordance with the Business Plan and
Master Plan."
In fact, such agreement entered by the petitioner with M/s.
Veena is of such nature, which would make one wonder as to whether
it is really the petitioner who is undertaking the project or whether it is
only the name of the petitioner which is at the forefront and it is in fact
M/s. Veena who would be undertaking the project. All these issues are
glossed over by the Chief Executive Officer-SRA. These observations
are required to be made as the petitioner has placed the said agreement
on record and the parties have advanced submissions on such
agreement.
69. Another fundamental question which may ponder a prudent
thinking would be to the effect that when in the year 2003 the
petitioner decided to enter into the development agreement and
obligated itself to complete the project within a period of 2 years,
(clause 11 of the development agreement), whether the petitioner had
not pre-estimated the requirements of the scheme being a commercial
player or such terms and conditions were intended to be a travesty and
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a mere burlesque. Now the delay is being covered up on several
reasons to make life further difficult and miserable nay impossible for
the slum dwellers.
70. It is for such reasons, the Court has echoed in its decisions that
there needs to be a concrete mechanism with the SRA to test the
bonafides of a genuine developer and to come to a conclusion that the
developer is a genuine developer who has in fullest all ability, financial
and technical to undertake and complete the SRA project. The SRA
certainly cannot depend on the wisdom of the society and which is
possibly on a developer being selected at the ipse dixit of the Managing
Committee members who follow a most non-commercial and a
peculiar method to appoint a developer. As to what can be the
expertise of the poor slum dwellers to appoint a developer who would
be dealing with a project of hundred of crores, can only be imagined.
If such credentials are not carefully and empirically examined at the
stage of appointment by an appropriately devised mechanism, the
situation as it persists in the present case can never happen. Thus, the
need of the hour is to have a rigorous scrutiny, technical and financial,
at the level of the SRA to verify/scrutinise the selection of a developer
by members of a slum society by a scientific mechanism, before the
SRA Scheme is being taken up by a developer, and only after such
scrutiny, permit such a developer to enter into a Development
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Agreement with the society on being satisfied of such credentials of
the developers.
71. However, what is happening in reality is just the reverse,
namely, the society enters into a development agreement and thereafter
the developer runs the show and sometimes as to what is the reality
nobody knows, neither the slum dwellers nor the authorities only to be
realised before the Courts by which time the things are too late. This is
a grey area which is required to be plugged in by a statutory
mechanism and which appears to be a grave shortcoming, of which
judicial notice can be taken from the large number of matters reaching
this Court on such issues. Be that as it may, this discussion if applied
to the facts of the present case clearly would go to show that the
petitioner has grossly failed in its commitment under the development
agreement to complete the scheme.
72. It is significant to note Clause no. 11 of the Development
Agreement, whereby the petitioner in terms agreed that the petitioner
would complete the construction within two years of the issuance of
the commencement certificate. The said clause reads thus :
"(Translation of a photocopy of Clause No.11, typewritten in Marathi).
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11. The said Developer shall complete construction
of said building within a period of two years from the
date of receipt of Certificate of Commencement of
work after an approval is granted to the said scheme.
If the said Developer fails to complete the
construction work within this stipulated time period,
the said Society shall have right to lawfully revoke the
irrevocable power of attorney given for said re-
development and re-construction agreement and the
works incidental thereto and shall also have right to
take back possession of the said property. Moreover,
the said Society shall be eligible to get compensation
from the said Developer for the delay caused.
However, there is unanimity between all parties on the
point that, if a delay is caused on account of some
unforeseen circumstances, force majeure which
include strike, civil war, riot, war, earthquake etc. as
well as if such delay is caused due to any slum-
dweller, any altogether third party and/or on account
of any Injunction /Order passed by any Court of Law
or amendment in statutory law, then this period shall
be excluded from the period of said three years.
Further, if such situation arises, a period of 6 more
months will be given to the said Developer as
concessional period to once again commence with the
work and to complete the same."
(emphasis supplied)
The question also is whether no sanctity at all is attached to such
clear agreement where the society has an unequivocal right under the
above clause to terminate the agreement for a breach of the timelines
as agreed between the parties. It is for this reason, the legislature has
thought it appropriate to provide a provision in the nature of Section
13(2) so that the Slum Rehabilitation Authority would step in and for
reasons which may be apparent in a given case would pass an order
permitting the society to change a developer. One can imagine as to
what would be the consequence in the absence of such provision. The
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parties would be required to take recourse to the normal procedure in
law namely, of enforcing their respective rights under the terms and
conditions of the contract before a Civil Court and entangling
themselves into unending litigation which would have the effect of a
slum rehabilitation scheme never to see the light of the day. It cannot
be overlooked that it is not a normal development which the developer
undertakes in undertaking a slum rehabilitation scheme. The scheme is
under a special procedure with special features under Regulation
33(10) of the Development Control Regulations as there is an extra
benefit in the form of additional floor space index (FSI), which would
be available to a developer to be utilised in the free sale building to be
constructed in undertaking a slum rehabilitation scheme. Thus, when
the Chief Executive Officer-SRA or the AGRC considers an issue on
the change of a developer, exercising powers under Section 13(2) of
the Slums Act, a duty is cast on such authority to take an overall and a
substantive view of the matter keeping in focus the paramount interest
of the slum dwellers and the early rehabilitation of the slum dwellers.
Insofar as the developer is concerned, even if he is changed, there is
unlikely to be any prejudice whatsoever to the developer considering
the safeguards as provided which automatically trigger on the removal
of the developer, namely the newly appointed developer is duty bound
to compensate the removed developer of the expenses incurred by him,
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without the removed developer requiring to file any proceedings for
recovery of such amounts as expended by him. Even otherwise, the
developer has his contractual rights to recover any damages so also the
society can claim damages against the developer under the contract.
Insofar as the present proceedings are concerned, already a provision
has been made in the impugned order that the petitioner would be
compensated on the petitioner's removal. Thus, the interest of the
slum dwellers being adversely affected by the inactions of the
petitioner was the vital consideration for the Chief Executive Officer-
SRA and the AGRC to consider.
73. Certainly, the period of two years as contractually agreed, under
the development agreement cannot be stretched to such a long period
of almost 17 to 18 years as in the present case, despite these
circumstances, an attempt on the part of the petitioner to justify that
such delay was not attributable to the petitioner, at least in the facts of
the case, is wholly untenable. The AGRC examined the case of the
petitioner and of the society and the situation persisting at the ground
level. The AGRC however not agreeing with the findings of the Chief
Executive Officer-SRA, has reached a conclusion that the petitioner
could not take the project forward for reasons which were borne out by
the record.
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74. In these circumstances to upset the decision of the AGRC would
amount to rewarding the petitioner of its defaults and the breaches
committed by it, not only of the very terms and conditions of the
Development Agreement, but also, the clear statutory mandate in
undertaking Slums Rehabilitation Schemes. In fact, the petitioner has
betrayed the trust of the society/slum dwellers. Even otherwise, a
closer scrutiny of the petitioner's actions clearly hint of the petitioner's
interest not in the rehabilitation of the slum dwellers but in its own
private interest, solely in relation to the sale component. There cannot
be a space for a pure commercial greed in taking up such project which
involves the basic rights of the slum dwellers.
75. Insofar as the petitioner's case is concerned, that there was no
cause of action whatsoever for the society before the Chief Executive
Officer inasmuch as the complaint dated 18 November 2019 on which
the Chief Executive Officer-SRA had passed the order dated 16 March
2021, itself was withdrawn, at the first blush appeared to be an
attractive argument. However, on a deeper and careful scrutiny, the
case of the petitioner on this count needs to fall to the ground. It is
clear from the record that 18 November 2019 was not the only
complaint but there were several other complaints made to the Chief
Executive Officer of the SRA prior thereto. This apart, as noted above,
there was also a General Body Resolution passed that the petitioner as
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a developer needs to be changed for all such reasons. Apart from the
representation dated 18 November 2019, there were representations
dated 9 December 2019, 19 December 2019, 14 January 2020, 27
January, 2020 and 12 March 2020. Also, the society in its Managing
Committee passed a resolution dated 22 February 2020, terminating
the Development Agreement as entered with the petitioner and the
same was duly informed to the office of the Slum Rehabilitation
Authority vide the society's letter dated 5 February 2020. Also, when
the matter was before the Chief Executive Officer, the Chairman of the
Society Mr. Vinod Kanta Rai had made submissions dated 1 January
2021, 1 March, 2021, 9 March, 2021 and 10 March, 2021. However,
the Chief Executive Officer-SRA appears to have not appreciated to
the concerns in these representations. Thus, the case of the petitioner
on withdrawal of the society's complaints cannot be believed. It is
seen that although along with Mr. Vinod Kanta Rai, there were other
slum dwellers who were signatories to the application of the society
dated 18 November 2019 for change of the developer, Mr. Vinod Kanta
Rai never withdrew his complaint for change of the developer.
76. It is not unknown to this branch of jurisprudence that once a
complaint of removal of a developer is made by the slum dwellers or
their society to the CEO-SRA, the developers wake up from deep
slumber and then a game of hide and seek starts, which includes the
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developer winning over the members of the managing committee, or a
group of slum dwellers and often they are made to withdraw
complaints. When this happens, the documents of withdrawal of
complaint come from the developer. However, the ground level reality
remains the same. This case is no exception.
77. After such complaint dated 18 November, 2019 was made, some
of these slum dwellers purportedly addressed letters to withdraw their
complaint against the petitioner. However, it is significant, that it is
the petitioner who produced copies of such withdrawal letters and
placed the same on record of the Chief Executive Officer of the SRA.
Nonetheless, the fact remains that Mr. Vinod Kanta Rai, who was
pursuing the complaint in the capacity as Chairman of the society
along with the support of some Managing Committee members, at the
relevant time, never withdrew the complaint dated 18 November 2019,
as Mr. Vinod Kanta Rai's signature is not to be seen in the purported
withdrawal letters being relied upon by the petitioner. Peculiarly, the
petitioner has produced "copies" of documents purport to be a General
Body Resolution of the society to contend that the General Body has
withdrawn its decision to terminate the Development Agreement
which was a decision taken in that regard in the General Body Meeting
dated 28 February, 2021. Such resolution also purportedly states that
the letterheads of the society be not used by any person other than the
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Chairman. Such resolution has rightly not been accepted by the AGRC
in passing the impugned order and for acceptable and cogent reasons.
A perusal of the copies of these documents which have come on record
from the petitioner and not from the society, so that it can be taken into
consideration to be an undisputed document.
78. This apart, when the petitioner in projecting a case that the
complaint dated 18 November, 2019 was made to the Chief Executive
Officer-SRA was withdrawn, and therefore, there was nothing left for
consideration before the Chief Executive Officer, the petitioner intends
to demonstrate that there is a legitimate decision of the society to do so
and it was a complaint which was being prosecuted only by Mr. Vinod
Kanta Rai, who had no authority from the society. The documents on
record per se as rightly pointed out on behalf of the society, do not
project such factual position so as to hold the decision of the AGRC to
be perverse.
79. If the petitioner is to be believed, Mr. Vinod Kanta Rai, under
the garb of the respondent no.1-society, was pursuing the proceedings
and not the society, in that case, certainly the society would have come
forward to support what the petitioner was canvassing. Most
significantly, the society has not come forward to support any of the
contentions of the petitioner if their resolutions purported to undo
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whatever the Chairman was pursuing for change of a developer nor
there is any document as placed on record that the society has
withdrawn its letter dated 5 March, 2021 addressed to the Chief
Executive Officer of the SRA informing the Chief Executive Officer
that the termination of the agreement is withdrawn. There was no
application filed before the AGRC in a manner known to law by the
petitioner that the appeal as filed by the society was not by the society
but was an appeal filed by Mr. Vinod Kanta Rai. In fact the reply as
filed by the petitioner to the society's appeal clearly demonstrates the
tacit acceptance by the petitioner, that the proceedings of the appeal
being pursued by Mr. Vinod Kanta Rai are proceedings pursued by the
society. Moreover, the society in its General Body Resolution dated 5
March, 2021, reposed full confidence in the actions taken by Mr.
Vinod Kanta Rai in the welfare and interest of the society. In these
circumstances, it is untenable for the petitioner to canvas a case that it
was not the society which was pursuing the proceedings.
80. Even otherwise, there were 132 individual complaints made to
the Chief Executive Officer-SRA against the petitioner on the
inordinate delay of the petitioner in commencing the work, out of
which 62 slum dwellers represented themselves before the Chief
Executive Officer-SRA through their Advocate Mr. Mukesh Gupta.
Thus, certainly it cannot be said that the petitioner had no complaint
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against it to be removed as a developer. Thus, the petitioner's
contention that there is a small brunch of motivated slum dwellers with
ulterior motives, is totally unacceptable and untenable.
81. Even otherwise, irrespective as to who was pursuing the
proceedings before the Chief Executive Officer-SRA, whether it was
Mr. Vinod Kanta Rai along with the other co-members of the society or
it was the society itself, it was always within the jurisdiction of the
Chief Executive Officer to entertain legitimate complaints on behalf of
any member of the society or suo-motu, that the development has
been delayed at the hands of the petitioner for such a long number of
years. It is seen that irrespective of such complaints, the Chief
Executive Officer has in fact attempted to undertake an inquiry, albeit
the complaints. The petitioner hence certainly cannot have a grievance
in the peculiar facts to prevent the Chief Executive Officer-SRA or the
AGRC in not examining the glaring and gross delay on the part of the
petitioner to commence the slum scheme. However, for reasons which
are certainly not acceptable either on facts or in law, the Chief
Executive Officer had come to a wrong conclusion that the delay was
not attributable to the petitioner, when there was substantial material
on record, depicting the unconscionable dereliction of the petitioner, to
commence construction as could be seen if the scrutiny of the
financial position of the petitioner, was to be undertaken, which was
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overlooked by the Chief Executive Officer, in reaching his conclusion.
It is for such reason, an appeal was required to be filed by the society.
The Chief Executive Officer in fact overlooked that the petitioner was
grossly guilty of betraying the trust and confidence of the society, and
in fact had taken about 470 slum dwellers to a ransom.
82. Now, there is something very peculiar before the proceedings
filed before the Chief Executive Officer, the petitioner has not filed
any substantive reply but had filed its written submissions. Thus, the
case of the society is that the successive representations and the
representation dated 18 November 2019, of the society were not dealt
on merits, hence, there was no substantive denial of the case of the
petitioner. The society could not succeed before the Chief Executive
Officer as by an order dated 16 March, 2021, the Chief Executive
Officer turned down the plea of the society for change of developer on
the ground that the delay was not attributable to the petitioner, thereby
requiring the society to file an appeal. A perusal of the society's appeal
as filed before the AGRC, shows that it is an exhaustive and a
substantive appeal. It was contested by the petitioner by filing a reply
as already noted above. Although, no rejoinder to the reply affidavit
was filed, however, in my considered opinion, the AGRC has taken a
correct view of the matter, when the AGRC comes to a conclusion that
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the society is correct in its contentions in regard to the inordinate delay
in undertaking the scheme.
83. When the proceedings reached this Court, certainly the
petitioner has come out with all ammunition to contend before this
Court by projecting a super microscopic view of the matter when the
petitioner tries to explain the delay of each year, as if this Court would
be a fact finding Court. Such endeavour is also made in the written
submissions. The petitioner in doing so, is certainly oblivious to the
law laid down and the observations in that regard in the decision of
this Court in Hi-Tech India Construction vs. Chief Executive Officer,
SRA (supra) and the relevant observations in New Janta SRA CHS
Ltd. vs. State of Maharashtra (supra), when the Court has taken a
consistent view that when the decision reflects a possible view, there is
no question of the writ court interfering in the decision of an authority.
84. Moreover, accepting the petitioner's contention would
tantamount to the Court re-appreciating the evidence and coming to a
different conclusion then what has been arrived by the AGRC on the
basis of relevant materials before it. This more particularly, as noted
above, is not a case where the Court is required to come to a
conclusion that the findings as recorded by the AGRC was not a
plausible view and/or the findings are absolutely perverse so as to call
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for an interference. In fact, the situation is contrary. It is surprising
that merely for hidden commercial interests the petitioner has still an
inclination to hang on to the project after having delayed the same over
18 years. In this context, it would be appropriate to note some of the
findings of the AGRC in the impugned order, which read thus :
".......
(1) From the above aforesaid facts it is clear that
the proposal submitted by M/s. Yash Developers
under Regulation 33(10) of DCR 1991 was
accepted by SRA on 12.12.2003, LOI was issued
on 29.06.2011 thereafter Revised LOI was issued
on 27.04.2017 and lastly revised LOI was issued
on 27.12.2019 as per DCPR 2034. IOA in respect
of rehab Building NO. 1 was issued on 21.04.2012
and amended IOA issued on 19.11.2017 and
17.01.2020 Plinth CC was issued on 14.07.2014.
180 eligible Slum Dwellers have vacated their
respective structures in the year 2013-2014.
As per Clause 11 of Development Agreement
dated 20.08.2003 between M/s. Yash Developers
and society wherein the developer has agreed to
rehabilitated all members of Applicant's
society/occupants of suit property within 3 years
on issuance of Commencement Certificate.
Admittedly CEO/SRA has issued Plinth
Commencement Certificate dated 14.07.2014,
however M/s. Yash developer has failed to start
construction activity on site and has not
constructed even a single tenement of rehab
building.
CEO/SRA during hearing on 21.12.2020 directed
Respondent No. 2 M/s. Yash Developers to deposit
arrears of rent due & payable to the Slum
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dwellers and further advance 15 months' rent
within 1 week with co-operative societies/SRA.
Pursuant to the said directions M/s. Yash
Developers by letter dated 08.01.2021 addressed
to CEO/SRA informed that the Developers have
deposited amount of Rs. 7,73,88,000/- (Seven
Crore Seventy-Three Lakhs Eighty-Eight
Thousand) in Axix Bank Worli Branch on
07.01.2021. Alongwith the said letter the
developer annexed bank balance certificate dated
08.01.2021 reflecting the deposited amount of Rs.
7,73,88,000/- (Seven Crore Seventy-Three Lakhs
Eighty-Eight Thousand).
Asst. Registrar by letter dated 05.03.2021
informed Dy. Collector (WS) /SRA that as per the
account statement of Axix Bank Worli Branch
shows balance amount of Rs. 5,52,63,600/- (Five
Crore Fifty-Two Lakhs Sixty-Three Thousand Six
Hundred) in M/s. Yash Developers account.
From the above facts it is established that the
eligible Slum Dwellers whose structures have
been demolished in the year 2013-2014 have not
been paid rent as claimed by the Applicant
Society. During hearing of proceedings under
section 13(2) of Maharashtra Slum Areas (I. C &
R) Act 1971 CEO/SRA on 21.12.2020 directed the
developer to deposit arrears of rent plus 15
months advance rent within l week. The
developer has deposited amount of Rs.
7,73,88,000/- (Seven Crore Seventy-Three Lakhs
Eighty-Eight Thousand).
From the aforesaid facts it is clear that admittedly
the Project has been inordinately delayed.
However, the Developer has claimed that the
delay is not attributable to him and delay is
beyond his control. However, on perusal of the
material on the record including submission of
developer as well as the fact sheet compiled by
Concerned departments, the contentions of the
developer is not sustainable. Contrary to the
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claims and contention of developer it is observed
that the delay caused by amendments sought by
the developer time to time and failure of the the
developer to pursue the Applications of approvals
with due diligence and failure and neglect of the
developer to take any steps to mitigate the delays.
.....
Considering the facts that commencement
certificate upto Plinth level was grated on
14.07.2014 respect of subject S R Scheme,
however till date the said developer has not
carried out any construction. Some of the eligible
slum dwellers have vacated their structures and
the said developer has failed to pay the rent in
lieu of Transit Accommodation to the eligible
Slum Dwellers. Thus, there is in-ordinate delay in
implementing subject R Scheme.
Considering the aforesaid facts, the in-ordinate
delay caused by the Respondent No. 2 M/s. Yash
Developer in implementation of subject S R
Scheme on plot of land bearing CTS No. 515 (Pt),
515B (Pt) and 509 of Village Kanheri, Taluka
Borivali Corresponding to F.P. No. 14- AB (Pt) of
TPS-II, Borivali (East) for Harihar Krupa CHS
Ltd cannot be justified as the Slum Dwellers of the
subject S R Scheme are languishing in inhuman
condition and have been awaiting decent
Permanent Alternate Accommodation for last 18
years. It is duty of the Slum Rehabilitation
Authority to see the S R Scheme are implemented
in time bound manner and Slum Dwellers are
rehabilitated within reasonable period.
This Committee is of the view that main object of
implementation Slum Rehabilitation Scheme is to
uplift/improve the standard of living of Slum
Dwellers, who are staying in Slum for years
together. If the proposal of the development is kept
pending for years together then naturally the
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valuable rights of the Slum Dweller for
improvement of their dwelling condition, would be
defeated and the very purpose of the Slum Act
would fail and get defeated. Therefore, it is power,
duty and function of SRA to implement the Slum
Schemes and to do all other acts, deeds and things
which are necessary for achieving the object of
rehabilitation of Slum Dwellers.
This Committee after considering the judgments
of the Hon'ble High Court of Judicature at
Bombay as enumerated hereinabove & the fact
that there is ordinate delay attributable to M/s.
Yash Developer in implementation of subject SR
Scheme. Non-payment of rent to eligible Slum
Dwellers whose structures have been demolished
in the year 2013-2014. Further the fact that M/s
Yash Developers does not have financial capacity
to implement subject S R Scheme, therefore, have
traded subject S, R Scheme for consideration."
(emphasis supplied)
85. It is thus clear from the above findings as recorded by the
AGRC, that these are findings which are borne out from the materials
on record and they cannot be called to be perverse by accepting a case
being twisted by the petitioner on the same facts so as to persuade this
Court to come to a different conclusion on the same materials.
86. The society would be correct in placing reliance on the decision
in Susme Builders Pvt. Ltd. V/s. Chief Executive Officer, Slum
Rehabilitation Authority & Ors. (supra), wherein the Supreme Court
has categorically held that under Section 13(2) of the Slums Act, the
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SRA has an authority to take an action and hand over land developed
to some other agency under three circumstances, one of them being
when the development has not taken place within time, if any
specified. The Supreme Court in such case had upheld the contention
of the slums society, that the petitioner therein had not completed the
project within time and hence an action was taken under Section 13(2)
of the Slums Act. The Court observed that the action taken by the SRA
to remove the petitioner as a developer by cancelling the Letter of
Intent (LOI) issued in favour of the petitioner was justified. The
relevant observations of the Supreme Court are required to be noted,
which reads thus :
"49. Otherwise, there would be an anomalous
situation where the Society would have terminated
its contract with Susme but the letter of intent
issued by the SRA would continue to hold the field
and it would be entitled to develop the land. The
Society approached the SRA, in fact, asking it to
take action against Susme. Since the SRA is the
authority which issued the letter of intent, it will
definitely have the power to cancel the letter of
intent....."
...
52. A bare reading of these provisions shows that
in terms of clause (c) and (d) of sub-section (3) of
Section 3A of the Slum Act, the SRA not only has
the power, but it is duty bound to get the slum
rehabilitation scheme implemented and to do all
such other acts and things as will be necessary for
achieving the object of rehabilitation of slums. In
this case, the SRA was faced with a situation where
the slum dwellers were suffering for more than 25
years and, therefore the action taken by SRA to
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remove Susme for the unjustified delay was totally
justified."
87. In K. S. Chamankar Enterprises & Anr. vs. State of
Maharashtra & Ors. (supra), the Division Bench of this Court was
considering a similar situation. This was a case concerning a slum
scheme which was planned and conceived for total 911 tenements out
of which only 155 tenements for slum dwellers were constructed and
which had taken about 13 years from the grant of the Letter of Intent
(LOI) and 20 years after acceptance of the scheme. The Court
accepted the decision of the authorities that in such circumstances the
petitioner had caused inordinate delay including the Slum
Rehabilitation Scheme and that there was nothing in the findings as
recorded by the authorities to be of any perversity and upheld such
decision.
88. In the present case, the petitioner having grossly failed to
commence the project and the first and foremost obligation to
commence construction of the rehabilitation building, itself could not
be achieved despite a commencement certificate having being issued
on 14 July, 2014, the petitioner cannot be heard to put up excuses and
justifications to paint a picture that the petitioner was diligent. The
AGRC has rightly appreciated the entire modus operandi of the
petitioner and that having failed on several counts, including the gross
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inaction of not making payment of the transit rent to almost 199 slum
dwellers, who had vacated their structures and/or were demolished,
itself amounts to a patent abuse of the authority vested in the petitioner
by the society. Such position being a responsible position involving
the right of rehabilitation and/or a right of shelter, cannot be abused
and continued to be abused by developers like the petitioner. Such
rampant abuse of the powers and failure of rehabilitation in the manner
as agreed in the Development Agreement was a reason sufficient for
removal of the petitioner which has been completely overlooked by the
Chief Executive Officer-SRA. The petitioners could not have been
under a wrong impression that once the development was assigned to
the petitioners by the society, the petitioner would forever possess such
development rights and could try to evade law to the prejudice of the
slum dwellers and on a day to day basis continue to violate their basic
fundamental rights.
89. In Galaxy Enterprises vs. State of Maharashtra (supra),
proximate issues were considered by the Court which are relevant in
the present context when the land in question in the present
proceedings is of the ownership of MCGM. It however appears that
the observations of this Court are being overlooked by the authorities.
The relevant observations, of the Court in such decision are required to
be noted which reads thus :
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"3. There is a wealth of decisions of the Supreme
Court and this Court emphasizing on the
expeditious and effective rehabilitation of slum
dwellers, who live in inhuman conditions, so as to
achieve in letter and spirit, the object and intention
of a fairly old State legislation namely the
"Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act 1971".
Nonetheless, considering the volumes of disputes
still reaching the Courts, it can certainly be said
that time is ripe, if not too late, to ponder, whether
things are realistically working in the right
direction, to eradicate slums and rehabilitate the
slum dwellers, with the desired efficacy and
expedition. This not only at the hands of the
authorities but also at the hands of the other stake
holders. The vital issue which has often led to
controversy and disputes, is on the rules
permitting, the selection and appointment of
developers to undertake a Slum Rehabilitation
Scheme, being conferred on the slum dwellers, who
are hardly expected to know the nitty-gritty of the
slum redevelopment schemes. It is seen that the so
called leaders of the slum dwellers who are
themselves in need to be rehabilitated, are often
lured by developers and their agents, and once a
developer is appointed, what normally prevails is a
constant fear of incertitude and skepticism
amongst the slum dwellers, leading to disputes on
variety of issues affecting their final rehabilitation.
Such issues not only frustrate the very object of a
speedy slum redevelopment but completely derail
the slum schemes. It can be seen that scores of
slum schemes have remained incomplete for years
together and are languishing on such issues, either
in litigation before Courts and/or before the
authorities. These schemes need not face such
ordeal, including of an unending litigation. To
change the developer is no answer as even this
process involves dispute resolution and ultimately
lengthy litigation from one forum to another.
4. Can the Slum Rehabilitation Authority not
have a robust panel of bonafide developers who
have genuine business interest to redevelop slums,
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of course with commercial benefits as conferred
under the rules, and who can be appointed by an
open and fair scheme of selection and allotment of
slum projects and who would be accountable to the
Authority?
5. It is high time that, learning from the past
experiences, the burden on the ill equipped slum
dwellers to be responsible to appoint developers
and pursue the redevelopment scheme is removed
and to do away the ordeal of the slum dwellers to
go on knocking the doors of different authorities
for years together when the developers fail to
perform. Redevelopment to be undertaken
professionally and in a time bound manner is the
need of the day, even to fulfill the ideals, which the
Government intends to achieve. What is necessary
is the initiative of a redevelopment, by genuine,
honest and trustworthy developers appointed
through the Slum Authority or any other Special
Body created for the said purpose and not to leave
it to the slum dwellers to re-develop the slums.
This for the reason that the slum dwellers are
supposed to be merely interested in their
rehabilitation and can have no other interest. All
these WP 2987-18(final).doc efforts are necessary,
as a step forward to achieve an object of having an
ideal city free of slums. It cannot be countenanced
that the slums be redeveloped only when the slum
dwellers feel the need of a redevelopment and the
Government Authorities cannot initiate
redevelopment and cannot initiate a suo motu
action in that behalf. It is hence, for the
Government and the Slum Authority to give its
anxious consideration to these issues and in its
wisdom to device a substantial, nay a full proof
mechanism, by undertaking a study and identify
these grey areas, so that the helping hand as
extended by the legislature in providing this
beneficial law as far back in 1971 that is almost 50
years back is held strongly and firmly by all
concerned. It is never too late.
........
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65. ... It needs to be noted that the land in
question is a land belonging to the State
Government/MHADA and if the land is under
slums and the occupants are suffering, whether it
would also not be the responsibility of the MHADA
considering the provisions of Chapter IX of the
Maharashtra Housing and Area Development Act
1976, being a chapter on "Environmental
Improvement of Slums", providing for Section 104
to Section 113 of the said Act, to take time to time
actions and consider with utmost priority the
rehabilitation of the slum dwellers?. It clearly
appears that in the present case, the entire re-
development of the slums is left in the hands of the
developer by the slum dwellers, who are struggling
to appoint one developer after another. The
MHADA appears to be an absolute alien when all
these actions are being taken by the society.
Already, about three developers are appointed by
the Society including the present developer M/s
Bindra, as noted above, despite this whether the
slum dwellers will at all see the light of the day, is
a factor which is required to be seriously
considered by the slum rehabilitation authority and
the MHADA by having a compliance and a follow
up mechanism. It is high time that at least in
regard to the slums on government lands or land
belonging to a public bodies, the government
needs to have a concrete and effective policy and
'which may include a panel of reputed
contractors/developers, which would genuinely
undertake and implement the slum rehabilitation
scheme and bring a speedy and effective
rehabilitation of slum dwellers. This is required to
be observed for the simple reason that the record
in the present petition would clearly show that the
MHADA or the State authorities have not utilised
and/or have turned a blind eye to the provisions of
the law to take effective steps in the larger interest
of the society, instead things were completely left
at the hands of a private developer and the
helpless slum dwellers. Dealing with the
Government land certainly involves dealing with
the public largess. Surely the hands of the State
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and its authorities are not so weak. What is
required is a willingness and an able and
authoritative guidance from those who wield these
powers for public good. As noted, it would be for
the good wisdom of the State and its policy makers
to deliberate on these issues which are "also" of
immense importance to a city like Mumbai where
large parts of the limited lands are under slums.
Such approach also needs to be timely adopted for
the other fast developing cities in Maharashtra,
where the government land is scarce, before it is
too late."
On the above backdrop, while rejecting the petition which
assailed an order passed by the AGRC, this Court upheld the decision
of the Chief Executive Officer of the SRA for change of the petitioner
therein as a developer. The Court also observed that there was a
complete lack of concrete and real steps being taken by the petitioner
to effectively seek approvals once the society had put the petitioner in
the driver's seat in complete control of the project as was committed in
the impugned orders. It was observed that a developer cannot shut his
eyes to the ground reality that it is the right of the slum dwellers under
Article 21 of the Constitution which was being affected. It was also
observed that there cannot be a myopic approach to these issues of
delay in implementation of the Slum Schemes and that the only mantra
to be attributed for the slum schemes is time bound completion. In
such context, extract of the Court observed thus :
"53. The record reveals that what M/s Saral
could do in eight years of its appointment, was to
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get the Annexure II, namely the list of the 73
eligible occupants certified from the MHADA. It
was, thus, expected from the petitioner that the
revalidation of Annexure II, which was possibly not
a complex formality be undertaken at the earliest.
However this certainly did not happen and citing
various reasons, which cannot be believed to be
not attributable to the petitioner, ultimately, the
petitioner could not get the Annexure II certified
only on 23 December 2013, which is after about
eight years of the petitioner's appointment. This
fact itself raises a serious doubt as to the real
intentions of the petitioner to undertake the
scheme. The petitioner could not have simply
blamed the authorities for the delay, as there is
complete lack of concrete and/or any real steps
which were to be taken by the petitioner to
effectively seek different approvals, once the
society had put the petitioner in the driver's seat, in
complete control of the project as rightly
commented, in the impugned orders. Thus, the case
of the petitioner, that from time to time steps were
taken to implement the slum scheme as entrusted to
it by the society cannot be accepted. These are the
contentions of the petitioner, merely pointing out
some movement of the files with the authorities.
This was certainly not sufficient and what was
required and expected by the petitioner was to take
real effective steps to progress the slum
redevelopment. The petitioner was expected to
expeditiously obtain an Annexure II, as certified by
the MHADA, thereafter obtain a LOI and then
obtain a Commencement Certificate to start with
the constructions and before that make a provision
for temporary alternate accommodation for the
slum dwellers to reside till completion of the
scheme. There is not an iota of material to show
that any such steps much less expeditiously were
taken by the petitioner which will show the real
bonafides of the petitioner to undertake the
scheme.
54. In fact the petitioner kept the slum
dwellers/society in dark on any of the steps alleged
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to be taken by the petitioner. There was no
transparency in the petitioner's approach with the
slum-dwellers whose anxious, impatient and
painful wait of so many years for the slum scheme
to start was continuously staring at the petitioner's
right from the word go. This was not what was
expected of a diligent developer. The slum schemes
are expected to be taken and pursued by the
developers for genuine and bonafide object and
purpose to redevelop the slums as reflected in the
rules which is for the mutual benefit namely the
benefit of the slum dwellers of being provided a
permanent alternate accommodation and so far as
the developer, to exploit the free sale component,
which is nothing but a business consideration for
the developer. If this be the long and short of a
slum scheme what can be the intention of a
developer to sit tight on a slum scheme and not
take expeditious measures to undertake and
complete the scheme. The reasons can be
innumerable, if the reasons are attributable to the
authorities, the developer has certainly remedies in
law to be immediately resorted. No forum
competent to entertain such complaints would
refuse to look into such grievances when the very
right to livelihood of the slum dwellers who are
living in inhuman conditions, being a concomitant
of Article 21 of the Constitution, is involved and
which becomes a matter of urgent concern and of
utmost priority. A developer cannot shut his eyes to
all these factors and attributes, once appointed by
the society. For the developer, there has be
relentless action on day to day basis, as any delay
in not implementing the slum scheme is not only
detrimental to the slum dwellers, but to the society
at large. Delay in effective implementation of the
slum scheme would defeat the very goal, the ideals
and the purpose of the slum redevelopment
scheme.
55. A perusal of the record indicates that the
society is correct in contending that during the
period from 2006 to 2016 i.e. for about 10 years
the petitioner did not take any concrete steps
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towards implementation of the slum rehabilitation
scheme and the petitioner had clearly failed to
obtain a LOI for such a long period. The society,
thus, was constrained to file the application dated
15 March 2016, under Section 13(2) of the Slums
Act, praying for change of the petitioner as the
developer. It is correct that Annexure-II was
originally issued by MHADA on 16 April 1998.
The petitioner was appointed as developer in the
month of June 2006 and it clearly took about seven
to eight years for the petitioner to obtain revised
Annexure-II which was obtained on 23 December
2013. Before the Chief Executive Officer and even
before the appellate authority the petitioner has
failed to show any justifiable reason as to why it
took these many years for the petitioner to simply
obtain a revised Annexure-II when as per norms
issued by the Slum Rehabilitation Authority
Annexure-II is required to be finalised within a
period of four months when the hutment dwellers
are below 500 in number. Further the record
clearly indicates that even after obtaining the
revised Annexure II, on 23 December 2013, the
petitioner did not initiate immediate steps to obtain
LOI for the next three years. There is, thus, much
substance in the contention of the society that only
after the society initiated proceedings under
Section 13(2) of the Slums Act, the petitioner
initiated steps to obtain a LOI.
...
57. There cannot be a myopic approach to these
issues of a delay in implementation of a slum
rehabilitation scheme. Things as they stand are
required to be seen in their entirity. The only
mantra for the slum schemes to be implemented is
it's time bound completion and a machinery to be
evolved by the authorities, to have effective
measures in that direction to monitor the schemes
as a part of their statutory obligation to avoid
delays. Non-commencement of the slum scheme for
long years and substantial delay in completion of
the slum schemes should be a thing of the past. In
the present case, looked from any angle there is no
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plausible explanation forthcoming for the delay of
so many years at the hands of the petitioner to take
bare minimum steps to commence construction.
58. The authorities should weed away and
reprimand persons who are not genuine developers
and who are merely agents and dealers in slum
schemes. These persons after get themselves
appointed as developers, to ultimately deal/sell the
slum schemes, as if it is a commodity. Any
loopholes in the rules to this effect, therefore, are
required to be sealed.
...
64. Thus, it is quite clear that inordinate delay is
a sufficient ground for removal of a developer.
There is neither any perversity nor any illegality in
the findings as recorded by both authorities below,
in observing that the petitioner had grossly delayed
the implementation of the slum scheme in question.
The findings as recorded in the impugned order
passed by the Apex Grievance Redressal
Committee are also sufficiently borne out by the
files produced before this Court."
(emphasis supplied)
90. In M/s. Ravi Ashish Land Developers Ltd. v/s. Prakash
Pandurang Kamble and Anr. (supra), the Court expressed serious
concern as to how the slum dwellers were languishing and continuing
in transit accommodations for nearly two decades. In the said case, the
project had remained incomplete even for twenty years. The Court
made the following observations, which are significant in the present
context :
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"14. To my mind, in all such matters and
particularly this one, an order of this nature has to
be passed because of inefficient handling of the
entire scheme by the Slum Rehabilitation
Authority. One fails to understand as to how
persons and parties like Respondent no.1 are
languishing and continuing in the transit
accommodations for nearly two decades. When the
slum rehabilitation projects which are undertaken
by the statutory authority enjoying enormous
statutory powers, are incomplete even after twenty
years of their commencement, then it speaks
volume of the competence of this Authority and the
officials manning the same. In all such matters,
they must ensure timely completion of the projects
by appropriate intervention and intermittently.
They may not, after issuance of letter of intent or
renewals thereof, fold their hands and wait for
developers to complete the project. They are not
helpless in either removing the slum dwellers or
the developers. The speed with which they remove
the slum dwellers from the site, it is expected from
them and they must proceed against errant
builders and developers and ensure their removal
and replacement by other competent agency. It is
with that end, the Full Bench of this Court has
delivered their judgment in the case "Tulsiwadi
Navnirman Co-op Housing Society Ltd. and
another vs. State of Maharashtra and others,
2008(1) Bom.C.R. 1." The Slum Rehabilitation
Authority has been conferred with the powers and
each one of them is coupled with a duty. If the slum
dwellers are eligible to be entitled to be
rehabilitated at site and within a reasonable
period, they can not be left at the mercy of
developers and builders. They cannot be expected
to occupy endlessly a transit accommodation
which has no proper maintenance, lack in hygiene
and amenities basic for human habitation. The
slum dwellers expect that the authorities like
S.R.A. should take note of their grievances without
any fear, favour and affection towards any set of
developers. An independent and impartial
implementation and supervision so also
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monitoring of the projects is the purpose for which
the authority has been set up. In such
circumstances and by reminding the Authorities
that if the projects are left incomplete in this
manner, then, even they will have to abide by the
directions to pay amounts at market rate to the
slum dwellers who have been held eligible but not
rehabilitated by them, for the reasons which are
attributable to the inefficiency and 'inept' handling
of the projects by the SRA. I refrain from passing
such orders against the SRA in this case, but direct
that the Authority should call for a monthly
progress report from the Appellant and if it finds
that there is no substantial progress by 30 th June,
2013, it must take all such steps including removal
of the developer and replacement of the Appellant
with some other agency. (emphasis supplied)
91. In Hi-Tech India Construction Vs. Chief Executive Officer,
SRA (supra), a Division Bench of this Court also upheld the decision
of the SRA authorities to change the developer accepting that the view
taken by the SRA and HPC was a possible view. The Court observed
thus :
"17. We are unable to hold that the impugned
orders are unsustainable or perverse. The view
taken by the SRA and the HPC is a possible view.
If the petitioner is able to establish their case on
facts regarding mala fides or otherwise on the
part of any person including respondent No.5 - the
new developers or their partners or the society or
any of its members in appropriate proceedings,
that would be a different matter. Their claim for
damages ought not to hold up the implementation
of a scheme for redevelopment under DCR
33(10)."
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92. In New Janta SRA CHS Ltd vs State of Maharashtra (supra),
the dispute in such case involved two rival societies claiming the rights
over a slum scheme and it is in such context when two contesting
societies were before the Chief Executive Officer as to how the
position ought to have been dealt, in regard to the legal status and
complexion of the developer who was appointed by the society was the
subject matter of the concern in the said proceedings. In the context of
the present proceedings, the observations in such decision as made in
paragraphs 174 and 175 of the said decision are required to be noted as
relevant to the facts of the present case :
"174. It thus cannot be accepted more particularly
considering the provisions of Section 13(2) of the
Slums Act that a slum society at its sole discretion
and/or without any control and regulations by SRA
can change the developer. If such a course of action is
made permissible, considering the hard realities and
the hundreds of developers being available to take
over such schemes, it would create a chaos and it is
likely that a situation is created, that the slum
rehabilitation scheme never takes off and it is
entangled into fights between two factions within the
society and/or two rival developers. This is certainly
not the object of the legislation. It would be too far-
fetched to read such draconian rights available to the
Managing Committee or to general body of a society
without any regulation, supervision and control of the
SRA to change the developer. The SRA has all the
powers not only to regulate and control such
situations but to take a decision as to what is in the
best interest of the slum dwellers and intended to
achieve the object of the legislation."
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However, in paragraph 175 of the said decision, the Court
clearly recognised the position as to what would be consequence if
there is an inordinate delay. The Court observed thus :
"175. Secondly it is not in dispute that the
application of the petitioner for change of respondent
no.5-developer was under Section 13(2) of the Slums
Act. Having noted this provision in the foregoing
paragraphs, Section 13(2) of the Slums Act would
come into play only when the developer fails to adhere
to the provisions of the development permissions
granted by the SRA and a change of developer can be
sought only when there is an inordinate delay or the
construction carried on, is contrary to the sanctioned
plans and/or the permissions. Considering this clear
position falling under Section 13(2), in the context of
this factual controversy as raised by the petitioner in
regard to the consent of 70% of the slum dwellers
being not available to respondent no.5, I am of the
clear opinion that the view taken by both the
authorities, in not accepting the petitioner's
contention, is required to be held to be correct and
valid."
93. In New Janta SRA CHS Ltd Vs. State of Maharashtra (supra),
the Court also considered as to what would be the scope of interference
in the orders passed by the AGRC in exercising the writ jurisdiction of
this Court. The Court referring to the decision of the Full Bench of
this Court in Tulsiwadi Navnirman Coop. Housing Society Ltd. &
Ors. vs. State of Maharashtra & Ors.7, accepted the contention of the
respondent that the exercise of powers by the writ court in the SRA
cases must be limited to the matters which remain unresolved despite
7 2007(6) Mh.L.J. 851
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the remedy of appeal being exhausted more particularly when full
fledged hearing complying the principles of natural justice was granted
before the AGRC on all the issues. The Court also referred to the
decision of the Supreme Court in Union of India & anr. vs. Mustafa
& Najibai Trading Co.8 and the decision of the Supreme Court in
Bharat Sanchar Nigam Ltd. vs. Bhurumal9, in regard to the scope of
interference in such matters in the writ jurisdiction of this Court. The
following observations are required to be noted :
"258. The respondent would be correct in
contending that exercise of powers by the Writ
Court in the SRA matters must be limited to the
matters which remain unresolved despite the
remedy of an appeal being exhausted more
particularly when the full fledged hearing
complying the principles of natural justice was
granted before AGRC on all the issues. The Full
Bench of this Court in Tulsiwadi Navnirman
Coop. Housing Society Ltd. and Ors. vs. State of
Maharashtra and Ors. (supra) in this context
observed as under:-
"115. In the result, we are of the opinion
that writ jurisdiction is available in matters
of Rehabilitation of Slum Dwellers but the
limits of exercise of power should be
confined and restricted to matters, which
remain unresolved despite the remedies of
Appeals etc. being exhausted. Similarly, in
the illustrations given by learned Advocate
General, this Court can be approached only
if the decision of SRA or State is permissible
for being interfered with on the settled
principles in writ jurisdiction. We have given
8 (1998) 6 SCC 79
9 (2014) 7 SCC 177
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illustrations and categories of case wherein
a prerogative writ may be issued so as to
ensure smooth and effective implementation
of Slum Rehabilitation Scheme. However,
the writ jurisdiction will not be available
where the dispute is essentially private or
contractual and the State Government, SRA
and other local bodies are impleaded as
parties only to file writ petition. In other
words, when the main relief is not sought
against these bodies, yet, they have been
impleaded as parties and the dispute is
mainly and essentially between private
parties involving purely private law, then,
writ petition is not the remedy.
116. [...] They broadly agree with the
conclusion that the intent of the Legislature
is minimum obstacles and obstructions in
the way of implementation of Slum
Rehabilitation Scheme. All provisions and
measures are intended at smooth and
expeditious implementation of the scheme so
as to achieve removal of encroachment and
demolition of structures on pavements and
public lands. Therefore, interference by the
Court should be minimum and bearing in
mind the above intent. (emphasis supplied)
Applying the above principles it can be
clearly seen from the facts, there is hardly any
scope for this Court to exercise its extraordinary
discretionary jurisdiction to interfere in the
findings of fact concurrently recorded by the
authorities below. Respondent nos. 2 to 4, 5. 8 and
9 would be correct in their contentions that this is
not a case where the High Court should exercise
jurisdiction to disturb the concrete findings of fact
as arrived by both the authorities in the impugned
orders. The law in this regard being well settled
can also be seen from the following decisions:-
259. In Union of India & Anr. VS. Mustafa &
Najibai Trading Co., the Supreme Court has
reiterated the principles the High Court would
follow in exercising its jurisdiction under Article
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226 and 227 of the Constitution. In paragraph 21
the Supreme Court observed thus :
"21. While exercising its jurisdiction
under Articles 226 and 227 of the
Constitution it is not open to the High
Court to re-appreciate the evidence
produced before the subordinate
tribunal and on the basis of such re-
appreciation of the evidence to arrive
at a finding different from that recorded
by such tribunal. The finding of fact
recorded by the subordinate tribunal
can be interfered with by the High
Court only if it is found to be based on
no evidence or if such a finding can be
regarded as perverse. The high Court
cannot convert itself into a court of
appeal. Reference, in this context, may
be made to the decision of this Court in
Collector of Customs. Madras & Ors.
vs. D. Bhoormall, 1974 (2) SCC 544,
wherein it has been said :-
37. Even if the Division
Bench of the High Court felt
that this circumstantial evidence
was not adequate enough to
establish the smuggled
character of the goods, beyond
doubt, then also, in our opinion
that was not a good ground to
justify interference with the
Collector's order in the exercise
of the writ jurisdiction under
Article 226 of the Constitution.
The function of weighing the
evidence or considering its
sufficiency was the business of
the Collector or the appellate
authority which was the final
tribunal of fact. "For weighing
evidence and drawing
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interference from it" said Birch,
J. in R. V. Madhub Chunder
"there can be canon. Each case
presents its own peculiarities
and in each common sense and
shrewdness must be brought to
bear upon the facts elicited". It
follows from this observation
that so long as the Collector's
appreciation of the
circumstantial evidence before
him was not illegal, perverse or
devoid of common sense, or
contrary to rules of natural
justice, there would be no
warrant for disturbing his
finding under Article 226."
Similarly, in Indru Ramchand Bharvani & Ors. v.
Union of India & Ors., 1988 (4) SCC 1, this Court
has said:-
'It must be reiterated that the
conclusions arrived at by the fact-
finding bodies, the Tribunal or the
statutory authorities, on the facts,
found that cannot be cumulative effect
or preponderance of evidence cannot
be interfered with where the fact-
finding body or authority has acted
reasonably upon the view which can
be taken by any reasonable man,
courts will be reluctant to interfere in
such a situation. Where, however, the
conclusions of the fact-finding
authority are based on no evidence
then the question of law arises and
that may be looked into by the courts
but in the instant case the facts are
entirely different."
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260. In Bharat Sanchar Nigam Ltd. vs.
Bhurumal, the Supreme Court held that only when
the findings are perverse or when it is a case of no
evidence the Court can interfere. In paragraph 20
the Court observed thus:
'20. It is apparent that the aforesaid
findings are findings of fact. Such findings
are not to be interfered with by the High
Court under Article 226 of the Constitution
or by this Court under Article 136 of the
Constitution. Interference is permissible
only in case these findings are totally
perverse or based on no evidence.
Insufficiency of evidence cannot be a
ground to interdict these findings as it is not
the function of this court to reappreciate the
evidence. It was because of this reason that
learned counsel for the appellant made
frontal attack on the findings of the courts
below endeavoured to demonstrate that
there was perversity in the fact finding by
the CGIT which was glossed over by the
High Court as well."
94. Adverting to the above well settled principles of law, it is clear
that what the petitioner intends to espouse in the present petition, is a
total fact finding exercise of an adversarial position it has against the
society. This is certainly not the scope of the jurisdiction of the Court
in the present proceedings. The petition also ought to fail on this
count.
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95. It also needs to be observed that the petitioner being involved in
a full commercial venture, it is not the case that the petitioner in any
manner whatsoever is prejudiced financially or otherwise. Whatever
legitimate amounts the petitioner claims to have spent, are entitled to
be reimbursed to the petitioner as seen from the directions of the
AGRC, as the newly appointed developer is under an obligation to
reimburse the actual expenses legally incurred by the petitioner for
whatever implementation of the subject Scheme till the date of the
Order passed by the AGRC. Even otherwise, the petitioner has a
remedy available against the slum society by taking recourse to
arbitration as per Clause 27 of the Development Agreement.
96. Before parting, another facet of the matter is required to be
noted, namely, that not only 199 slum dwellers for such a long number
of years are out of their houses but also they were not being paid rent
regularly and consistently. A bonafide developer can never sit on the
fence and on one hand keep delaying the project and on the other hand
not comply with the legitimate entitlement of the slum dwellers, who
have lost their houses, by not paying the transit rent to them and keep
some amounts lying in an escrow account. Such an approach, in my
opinion, was completely opposed to the spirit and ethos of a slum
scheme.
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97. For the above reasons, taking an overall view of the matter, in
my opinion, no case is made out for the interference by the petitioner.
The petition is accordingly rejected. No costs.
98. In view of the dismissal of the petition, the interim application
would not survive and it is accordingly disposed of.
99. At this stage, a request is made on behalf of the petitioner that
the ad-interim order dated 20 August, 2021 be continued for a period
of six weeks.
100. On 20 August, 2021, a co-ordinate bench of this Court while
adjourning the proceedings, had ordered that "till the next date, no
further steps be taken by respondent no.1-society". This order has
continued to operate. It shall further operate for a period of six weeks
from today.
G. S. KULKARNI, J
ANDREZA Digitally signed by ANDREZA PEREIRA
PEREIRA
Date: 2022.10.14 21:50:20 +05'30'
14th October 2022
