Bombay High Court
Chembur Siddharth Colony ... vs Siddharth Colony Vikas Seva Sangh ... on 14 September, 2022
Bench: S.V. Gangapurwala, Madhav J. Jamdar
Pallavi rpw-3-2022 - siddharth colony.doc
Digitally signed
by PALLAVI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2022.09.16
18:58:27
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION NO.3 OF 2022
IN
WRIT PETITION NO.2482 OF 2012
Chembur Siddharth Colony Pravartan ... Petitioners
Co-op Housing Society (regd) & Ors.
V/s.
Siddharth Colony Vikas Seva Sangh Sahakari ... Respondents
Grihnirman Sanstha & Ors.
WITH
INTERIM APPLICATION NO.2276 OF 2021
IN
REVIEW PETITION NO.3 OF 2022
Eknath Nivrutti Mokal and Ors. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2278 OF 2021
IN
REVIEW PETITION NO.3 OF 2022
Vijay Nana Adsule and Ors. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2284 OF 2021
IN
REVISION PETITION NO.3 OF 2022
Ajagganath Bhole and Ors. ... Applicants
V/s.
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Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2286 OF 2021
IN
REVISION PETITION NO.3 OF 2022
Sunil Manohar Bansude Chief Promoter of ... Applicants
Siddharth Co-op. Hsg. Soc. (Prop.) and Ors.
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2282 OF 2021
IN
REVISION PETITION NO.3 OF 2022
Suresh Ganapat Kadam and Ors. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2317 OF 2021
IN
REVISION PETITION NO.3 OF 2022
Suman Ranjit Jeth ... Applicant
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2275 OF 2021
IN
REVISION PETITION NO.3 OF 2022
Sunil Manohar Ahire and Ors. ... Applicants
V/s.
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Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2280 OF 2021
IN
REVISION PETITION NO.3 OF 2022
Anil Eknath Bhujbal and Ors. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2283 OF 2021
IN
REVIEW PETITION NO.3 OF 2022
Chandrakant Sukhdev Katamavre and Anr. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2281 OF 2021
IN
REVIEW PETITION NO.3 OF 2022
Bhaskar Khushaba Katamavre and Anr. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2274 OF 2021
IN
REVIEW PETITION NO.3 OF 2022
Anand Pandurang Kale and Ors. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
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WITH
INTERIM APPLICATION NO.2279 OF 2021
IN
REVIEW PETITION NO.3 OF 2022
Ramakant Chavan and Ors. ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION NO.2277 OF 2021
IN
REVIEW PETITION NO.3 OF 2022
Priyatam Bhaskar Mokal ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
WITH
INTERIM APPLICATION (L) NO.26789 OF 2022
IN
REVIEW PETITION NO.3 OF 2022
Aaryaratna Vikram Kamble ... Applicants
V/s.
Chembur Siddharth Colony Pravartan ... Respondents
Co-op Housing Society (regd) & Ors.
-------------------
Mr. Sanjay Singhvi, Senior Advocate a/w Mr. Ghanshyam Thombre,
Ms. Manali Kadam i/b Mr. Raj L. Kamble, Advocate for the Applicants/
Petitioners.
Mr. Milind More, Addl. G.P a/w Mr. Amit Shastri, AGP for the State.
Mr. Rohaan Cama i/b Mr. Rushabh Parekh, Advocate for Intervenors in
IA/2274/2021 in IA/2286/2021.
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Mr. Shashikant Surana a/w Mr. Madhur Surana, Advocate for
Respondent Nos.5 to 8.
Mr. Vijay D. Patil a/w Mr. Abhijit Patil, Advocate for the Respondent
Nos.3 and 4 - SRA.
Mr. Aspi Chinoy, Senior Advocate with Mr. Chetan Kapadia, Hrushi
Narvekar, Mr. Samit Shukla with Ms. Anjali Shah, Ms. Aneesa Cheema
i/b DSK Legal for Respondent No.13.
Mr. Pravin Samdani, learned Senior Counsel with Mr. Shrikant
Seegarla, Mr. Swapnil Shikhare i/b RMG Law for the Applicant in IA
No.2317/2021 in WP/2482/2012 for Intervener/Applicant.
Mr. Mayur Khandeparkar a/w Ms. Dimple Merchant, Mr. Akshay
Sawant, Haripriya Parvatha i/b I.V. Merchant & Co. for Respondent
No.1 in RPW/3/2022 in WP/2482/2012.
Mr. Simil Purohit a/w Mr. Bhushan Deshmukh i/b Lokesh Zade for
Applicant in IAL/26789/2022.
---------------------
CORAM : S.V. GANGAPURWALA &
MADHAV J. JAMDAR, JJ.
JUDGMENT RESERVED ON : 29th AUGUST 2022
JUDGMENT PRONOUNCED ON : 14th SEPTEMBER 2022
JUDGMENT : (Per Madhav J. Jamdar, J.)
1. By the present Review Petition, the Review Petitioners are
seeking review of the order dated 1st March 2021 passed in Writ
Petition No.2482 of 2012 (Coram: S.J. Kathawalla and Vinay Joshi,
JJ.). The relevant part of said order is reproduced hereinbelow for
ready reference:
"2. The learned Advocates appearing for the parties have
tendered consent terms. The consent terms are taken
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on record and marked "Y" for identification. Save and
except the State of Maharashtra, Slum Rehabilitation
Authority and the High Power Committee, the consent
terms are signed by the parties and their respective
advocates. Undertakings given in the consent terms
are accepted. The above three writ petitions are
disposed off in terms of consent terms."
By the said order dated 1 st March 2021, Consent Terms signed by the
parties except State of Maharashtra, Slum Rehabilitation Authority and
High Power Committee were taken on record and three Writ Petitions
bearing Writ Petition No.1716 of 2011, Writ Petition No.2482 of 2012
and Writ Petition No.678 of 2012 were disposed of in terms of Consent
Terms.
2. Before setting out the rival contentions and consideration
of the same it is necessary to set out relevant factual aspects.
3. The Respondent No.1 in the present Review Petition i.e.
Siddharth Colony Vikas Seva Sangh Sahakari Grihnirman Sanstha
(Proposed) (hereinafter referred to as "the Federation") was the
Petitioner in Writ Petition No.2482 of 2012, Respondent No.10 in Writ
Petition No.1716 of 2011 and Respondent No.2 in Writ Petition No.678
of 2012. The said Federation is not a registered body. It is the claim of
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the Respondent No.1 that it represents all the slum dwellers dwelling
on the land bearing CTS No.470 (part) and 471 (part) and 366/6
(part) of Village Chembur, Taluka-Kurla, Mumbai aggregately
admeasuring about 60,000 sq. meters (hereinafter referred to as the
said "Slum Property") where the slum rehabilitation scheme (for short
"Slum Scheme") is being implemented. To substantiate the contention
that the Respondent No.1 represents all the slum dwellers on the said
property, reliance is placed on meeting which was held on 23 rd July
2006 where all the slum dwellers agreed to appoint Respondent No.1
to propound the slum rehabilitation scheme and appoint Respondent
Nos.11 and 12 as its developers.
4. The said Federation filed Writ Petition No.2482 of 2012
challenging the order of High Power Committee dated 20th July 2011
passed in Application No.348 of 2010. By the said order, High Power
Committee directed the Chief Executive Officer/ SRA to complete the
exercise for ascertaining whether 70% eligible slum dwellers accept a
particular developer i.e. either the Applicant No.1 - K.K.B. Developers
or Respondent No.3 - Deepak S. Nikalje of M/s. Adishakti Developers
to said Application No.348 of 2010. In the said Writ Petition the order
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of the High Power Committee dated 20th July 2011 was stayed by this
Court and all the parties were directed to maintain the status-quo.
Thereafter, the said Writ Petition No.2482 of 2012 and other Writ
Petitions were disposed of in terms of the Consent Terms as set out
earlier.
5. The Review Petitioner Nos.1 to 15 are Co-operative
Societies and claim that they are representing the slum dwellers. The
Review Petitioner Nos. 1 and 8 are the registered societies and others
are proposed societies. Review Petitioner Nos.16 to 18 are members of
the Chembur Siddharth Colony Shatabdi Co-operative Housing Society
Ltd., Pranali Co-operative Housing Society Ltd. and Siddharth Nagar
Samjhota Co-operative Housing Society Ltd. respectively. These three
societies are registered societies. However administrators were
appointed on the said societies by orders dated 30.03.2017,
09.08.2016 and 22.03.2018 respectively. The said three Co-operative
Housing Societies are not impleaded as Petitioners to the Review
Petition as the respective Administrators refused to conduct General
Body Meeting of the said Societies.
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6. It is the contention of the Review Petitioners that all these
Co-operative Housing Societies were not impleaded as parties to the
aforesaid three Writ Petitions and they were not parties to the said
Consent Terms in terms of which the order dated 1 st March, 2021 was
passed. It is the contention of the Petitioners that the order sought to
be reviewed affects large number of members of the Review Petitioners
- Co-operative Housing Societies.
7. We have heard the learned Senior Counsel and the learned
counsel appearing for the respective parties.
8. Mr. Sanjay Singhvi, learned Senior Counsel appearing for
the Review Petitioners submitted that Consent Terms were filed by the
Federation without taking consent of the Review Petitioners i.e. the
Societies. The Respondent No.1 - Federation has admitted in the
affidavit-in-reply that a General Body Meeting was not convened and
one or two members from each Society had signed the resolution dated
30th October 2020. The Consent Terms specifically refers to the
Resolutions of the Review Petitioners - Societies and further mentions
that resolutions dated 30th October, 2020 of Review Petitioners -
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Societies are annexed as Annexure-9 to the Consent Terms. Admittedly,
the said resolutions dated 30 th October, 2020 passed by the respective
Societies were not annexed to the Consent Terms. The said alleged
resolutions of the Societies were annexed to the affidavit-in-reply filed
in this Review Petition by the Respondent No.1 and 13. All these
resolutions are identical and inscribed on the letterheads of the Review
Petitioners' Societies signed by one or two members from each Society.
The said resolutions are not passed by the General Body of the
respective Societies but purportedly by the Managing Committees of
such Societies. According to said resolutions, meetings of all the
managing committees of all these Societies were held on same date
and same location. He submitted that no such meeting took place and
all these resolutions are fraudulent. Resolutions dated 30 th October
2020 were inscribed on the letterhead of the registered Society i.e.
Siddharth Nagar Samjhota Co-operative Housing Society Ltd, Chembur
Siddharth Colony Shatabdi Co-operative Housing Society Ltd., Pranali
Co-operative Housing Society Ltd., on which Administrators were
appointed and therefore, the persons signing the said alleged
resolutions on the letterhead of said three Societies have no authority
to sign the said resolutions and to pass such resolutions and therefore,
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the said resolutions are fraudulent resolutions. He further submitted
that Consent Terms contain some clauses which imposes obligations
upon Review Petitioners - Societies including financial obligations. He
submitted that even assuming that such resolutions are validly passed
still the Consent Terms filed in this Court are not approved by said
resolutions.
9. Mr. Aspi Chinoy, the learned Senior Counsel appearing for
the Respondent No.13 submitted that rehabilitation of the slum
dwellers had remained enmeshed in litigation before High Power
Committee and this Court between the rival developers from 2006 to
2021. By the Consent Terms, the claims of the two rival builders were
settled and it was agreed that Respondent No.13 would make a
requisite application before SRA to secure LOI. He submitted that
subsequently SRA has issued LOI dated 6th August 2021 to Respondent
No.13 based on verification/acceptance of 51% individual agreements
and consents of the eligible slum dwellers. He submitted that
independently of the Consent Terms/ consent order, 51% individual
slum dwellers have consented for the redevelopment of the Slum
Scheme by Respondent No.13 and accordingly, LOI has been issued.
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Pursuant to the LOI, Respondent No.13 has incurred substantial
expenditure on making payments to the erstwhile developers.
Respondent No.4 - SRA has approved building plans of rehab building
Nos.1 to 8 comprising of 3153 rehab and 96 amenity tenements. By
oversight, the individual Societies' Managing Committee Resolutions
dated 30th October 2020 were remained to be annexed as Exh.9 and
the same have been produced by the Respondent No.1 - Federation
along with the affidavit-in-reply. He submitted that the individual
Societies (either proposed or registered) had not played any role in the
matter of the Proposed Rehabilitation Scheme after 2006. It is the
Federation i.e. the Respondent No.1 who has all along represented all
the slum dwellers. He submitted that the liability of payment is only of
Respondent No.13 and no liability is cast on the slum dwellers or the
Proposed Societies. He submitted that in any case, the said Consent
Terms will only bind the Federation and will not be binding on the
Societies i.e. Review Petitioners.
10. Mr. Pravin Samdani, learned Senior Counsel appearing for
the interveners submitted that as a result of the dispute between the
developers, the redevelopment scheme is delayed for several years. He
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submitted that after disposal of the Writ Petition in terms of the
Consent Terms, 51% of the slum dwellers have given consent in favour
of Respondent No.13 and therefore, Slum Rehabilitation Scheme
supported by 51% of the slum dwellers cannot be put to peril on the
ground that certain procedures were not strictly followed or some steps
were taken contrary to the procedures prescribed in the guidelines. To
substantiate his contention, he relied on the judgment of the Supreme
Court in the case of Balasaheb Arjun Torbole and Ors. Vs.
Administrator and Divisional Commissioner and Ors.1 and, particularly,
on paragraphs 21 and 29 of the said judgment. He also relied upon the
judgment of Co-ordinate Bench of this Court passed in Writ Petition
No.3983 of 2021 decided on 31st August 2021 (Abdul Majid Vakil
Ahmad Patvekari and Ors. Vs. The Slum Rehabilitation Authority and
Ors.), wherein it has been held that any encroachment on public land
ought not to be tolerated and prompt action is required to be taken to
remove such encroachment. He, therefore, submitted that these slum
dwellers have got only the right to get rehab tenements and no further
right. He submitted that therefore, Review Petition be not entertained.
He also submitted that there is nothing in the Scheme of Regulation
1 (2015) 6 SC 534
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33(10) of DC Regulations to indicate that an individual slum dweller
gets right to decide which Society or which developer should
implement the Scheme. He relied on the judgment of this Court in the
case of Awdesh Vasistha Tiwari and Ors. Vs. Chief Executive Officer,
Slum Rehabilitation Authority and Ors.2 and, particularly, on paragraph
13 of the said judgment.
11. He submitted that grant of relief in Writ Petition filed under
Article 226 of the Constitution of India is a discretionary relief and the
same can be refused where granting relief would result in defeat of the
interest of justice. He submitted that the Court always has a power to
refuse the relief where the Petitioner seeks to invoke its writ
jurisdiction in order to secure a dishonest advantage or perpetuate an
unjust gain. He relied on the judgment of the Supreme Court in the
case of M.P. Mittal Vs. State of Haryana and Ors. 3 and, particularly, on
paragraph 5 of the said judgment. He submitted that the same
principle will apply while considering the Review Petition. He
submitted that determination of eligibility of hutment dweller one way
or the other has nothing to do with the physical continuance of the
2 (2006) 4 Mh.L.J. 282
3 (1984) 4 SCC 371
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structure. He relied on the order of this Court in Writ Petition (L)
No.2650 of 2022 with Writ Petition (L) No.26363 of 2021 (Mohanish
Mohan Chikhalkar and Anr. Vs. Dignity Realty & Ors. ) decided on 2nd
March 2022. He relied on the judgment of the Supreme Court in the
case of State of Maharashtra and Ors. Vs. Prabhu 4, and, in particular,
on paragraph 4 of the said judgment to contend that one of the
yardsticks for the Court to exercise its jurisdiction in quashing an order
is to consider whether the same results in greater harm to the society
and in that case, the Court may restrain from exercising the power. He
submitted that the exercise of the power by this Court should be for
the sake of justice.
12. As set out earlier, all the aforesaid three Writ Petitions were
disposed of in terms of the Consent Terms. Clause 17 of the Consent
Terms is very relevant and important for the purpose of the present
Review Petition. The said clause No.17 specifically sets out the
particulars of requisite authority of the parties for entering into the
said Consent Terms. The said clause No.17 is reproduced herein below
for ready reference:-
"17. The parties requiring the requisite authority for entering
4 (1994) 2 SCC 481
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into these Consent Terms have obtained the same as under.
17.1 AGNPL and KKB have obtained Board Resolution /
Shareholders Resolution dated 15th February 2021 and 15th
February 2021, respectively, copies whereof are hereto
annexed as Annexure "7" and Annexure "7A", respectively.
17.2 Richa has obtained Board Resolution/Shareholders
Resolution dated 10th February 2021, copies of which are
hereto annexed as Annexure "8".
17.3 The Societies have issued Resolutions dated 30th October
2020 copies of the resolutions are hereto collectively
annexed as Annexure "9".
17.4 The certified copy of the Board Resolution dated 15 th
February 2021 of Ruparel is annexed hereto as Annexure
"10"."
(Emphasis supplied)
The clause No. 20 is as follows:-
"20. The parties hereby agreed that the impugned Order ought
to be set aside and the captioned Petitions disposed off, in
terms of these Consent Terms."
Thus, it is clear that the resolutions dated 30th October
2020 passed by the respective societies give authority to the original
Petitioner-Federation for entering into the said Consent Terms. It is
admitted position that the said resolutions were not annexed to the
said Consent Terms although specifically mentioned in the said
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Consent Terms as annexed to the same. Thus, this Court, while passing
order dated 1st March 2021 in terms of the Consent Terms have no
occasion to verify the authenticity of the said resolutions purported to
be passed by the Societies and whether said resolutions approve the
Consent Terms.
13. The Respondent No.1 i.e. Federation filed a detailed
affidavit-in-reply dated 13th October 2021. Various contentions are
raised in the said affidavit-in-reply to contend that Review Petition be
dismissed. However, in paragraph 4(xxi) at page 400, it is specifically
contended as follows:
"(xxi). It is well known fact that from March 2020 due to
Covid-19 pandemic, there has been a nationwide lock-down
and several restrictions/conditions have been imposed by
the Government of India and State of Maharashtra from
time to time. The restrictions imposed did not permit
gathering of large number of people at one place. Therefore,
some of the terms including holding of GBR could not be
done due to Covid restrictions."
(Emphasis added)
14. Thus, admittedly, no General Body Meeting of the
Respondent No.1 has been held approving the Consent Terms. It is also
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very clear that no General Body Meeting of respective Societies was
held approving the Consent Terms. Copies of said resolutions dated 30 th
October, 2020 purported to be passed by the respective Societies are
produced by the Respondent No. 1 alongwith the affidavit-in-reply filed
in the present Review Petition. The same clearly shows that the said
resolutions are passed by the Managing Committee of the respective
Societies. Admittedly, said Societies have not approved the
appointment of new developer i.e. Respondent No. 13 in the General
Body Meeting of the said Societies as required by Circular No.80 dated
15th February, 2008 and Circular No.148 dated 2 nd February, 2015
issued by Slum Rehabilitation Authority. Thus, it is clear that the
resolutions dated 30th October 2020 purported to be passed by the
respective societies are not passed in their General Body Meeting and
purported to have been passed in the meeting of Managing Committee
and just two members have signed on the resolutions.
15. It is the contention of the Review Petitioners that some of
the signatories who have signed the said resolutions in their purported
capacity as members of the Managing Committee are declared as
ineligible and therefore, they are not entitled to become the members
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of the said Societies. On the other hand, it is the contention of the
contesting Respondents that some of the Petitioners are declared as
ineligible. It is not necessary to consider the said submissions for
deciding this Review Petition as admittedly, the said resolutions
purported to be passed by these Societies were not produced before
this Court when the order in terms of Consent Terms was passed by this
Court. Thus, this Court could not satisfy itself about the genuineness of
the resolutions passed by the Societies. It is significant to note that the
entire basis of entering into the Consent Terms by the Federation are
the resolutions passed by the said Societies and the said crucial
documents were not produced before the Court.
16. It is also very important to note that during the relevant
time Administrators were appointed on the aforesaid three societies viz.
Siddharth Nagar Co-operative Housing Society Ltd, Chembur Siddharth
Colony Shatabdi Co-operative Housing Society Ltd., Siddharth Colony
Pranali Co-operative Housing Society Ltd. By no stretch of imagination,
two individual members could have given letter regarding the alleged
resolutions passed by the Societies when Administrators have been
appointed on the said Societies. Thus, it is clear that Consent Terms
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were not approved by the members of the said Societies in General
Body Meeting/Managing Committee Meeting and the resolutions
passed are fraudulent.
17. Thus, it is clear that representation made to this Court that
all these Societies have approved the Consent Terms and accordingly
passed resolutions dated 30th October, 2020, is not correct. This Court
was given an impression that the Consent Terms were accepted by all
the Societies and all the Societies have passed the resolutions in legal
manner accepting the terms and conditions of the Consent Terms.
However, when this Court passed the order under review, none of the
parties brought to the notice of the Court that the aforesaid resolutions
passed by these Societies were not annexed to the Consent Terms and
that there is no resolution passed approving the Consent Terms.
18. Perusal of the resolutions purported to have been passed by
these Societies on 30th October 2020 clearly show that all the terms
and conditions of the Consent Terms were not put forth before the
Managing Committees of these Societies, assuming that resolutions are
genuine resolutions passed by the said Societies.
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19. The resolutions produced along with the affidavit-in-reply
of the Respondent No.1 at Exh.-F clearly show that identical
resolutions were passed by the respective Societies. Resolution No.1 is
regarding acceptance of the Slum Scheme under DC Regulation
33(10). Resolution No.2 authorizes the Chief Promoter Raju Vishnu
Waghmare to execute various documents including the Consent Terms,
Resolution No.3 is regarding cancellation of development rights of
Aadishakti Developers, Aadishakti Grih Nirman Pvt. Ltd., Yash
Construction, Richa Homes Pvt. Ltd. as Developers and Resolution
No.4 is regarding appointment of Ruparel Buildcon Pvt. Ltd., as a new
developer for redevelopment of the Society under Regulation 33(10) of
DC Regulations. If the resolutions purported to be passed by the
respective Societies are compared with the Consent Terms, then it is
clear that there are various terms and conditions in the Consent Terms
which are not approved by the Managing Committees of these
Societies. Clause 2.5 read with Annexure 4B of the Consent Terms
clearly show that the Review Petitioners No.1 to 5, 9 to 11, 13, 14 and
aforesaid three Co-operative Societies, on which Administrators are
appointed, are the members of the Respondent No.1 - Federation. It is
significant to note that clause 17 of the Consent Terms clearly
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contemplates that the Federation has got authority to execute the
Consent Terms on the basis of the resolutions dated 30 th October 2020
passed by these individual Societies. Admittedly, the said resolutions
were not produced alongwith the Consent Terms. Clause No.7 of the
Consent Terms inter alia clearly records that the Federation and
Societies have arrived at a settlement arrangement. Clause No.10
clearly records that all the disputes between the parties shall stand
mutually and amicable resolved/ or settled on the terms recorded in
the Consent Terms. Clause 10.5 provides that the Federation and the
Societies agreed to compensate, through Ruparel Buildcon Pvt. Ltd. i.e.
Respondent No.13, Nikalje's (including Aadishakti) a sum of
Rs.69,83,44,800/- in the manner more particularly set out in the said
clause. Clause No.10.6 of the Consent Terms provides that the
Federation and the Societies agree to compensate, through Ruparel i.e.
Respondent No.13, Bhatt Group (AG & PL and KKB) a sum of
Rs.58,74,80,000/- in the manner set out in the said clause. A perusal
of the Consent Terms clearly show that the same are very elaborate
and there are certain financial obligations to be performed by the
Societies through Respondent No.13. In any case, the resolutions of the
Societies produced by the Respondent No.1 in the affidavit-in-reply
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filed in the present Review Petition do not show that the elaborate
terms and conditions contained in the Consent Terms are approved by
the Managing Committees of these Societies, assuming that the
Managing Committee of such societies have got power to pass such
resolutions.
20. Various contentions raised by the learned Senior Counsel
particularly, that after disposal of the Writ Petition in terms of the
Consent Terms, 51% of the slum dwellers have given their consent in
favour of Respondent No.13, LOI has been issued, Respondent No.13
has incurred substantial expenditure on making payments to the
erstwhile developers, SRA has approved building plans of rehab
building, certain procedures being not strictly followed is not relevant
and granting relief under Article 226 of the Constitution of India is
discretionary, are all to be considered while considering the merits of
the case in the Writ Petition.
21. In this particular case, Writ Petitions have been disposed of
by the order under review in terms of the Consent Terms. The entire
basis of the Consent Terms are the resolutions passed by the respective
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Co-operative Housing Societies and admittedly, the said resolutions
were not produced alongwith Consent Terms, although an impression
is created that the said resolutions are annexed as Annexure - 9 to the
Consent Terms. There is grave doubt whether the said resolutions
purported to be passed by the respective Societies are genuine
resolutions. As set out hereinabove, on the three societies,
Administrators were appointed and therefore, Committee members of
said Societies have no power to pass the resolutions and to sign on the
letterhead of the said Societies. Thus, there is material on record to
show that the said resolutions purported to be passed by these three
Societies are not genuine resolutions.
22. Mr. Samdani, the learned Senior Counsel is right in
contending that as relief under Article 226 is discretionary relief
various factors are required to be taken into consideration, and the
same principle will apply to the Review Petition. In the present, case
order under review is passed in terms of the Consent Terms and not on
merits. However, the most crucial document which is the basis of the
Consent Terms is not produced before this Court and therefore, the
Court was precluded from examining several aspects and therefore the
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submissions of learned Senior Counsel will not apply to the present
case.
23. Mr. Aspi Chinoy, learned Senior Counsel submitted that the
Consent Terms will not bind the Societies and will bind only the
Federation. However, the same submission is required to be rejected
for more than one reason. Firstly, it is admitted position that no
General Body Meeting was held of the Federation approving the
consent Terms. Secondly, Consent Terms specifically mentions that
authority to enter into the Consent Terms are the resolutions passed by
the respective Societies. Thirdly, there is grave doubt about the
genuineness of the resolutions purported to be passed by the said
Societies, produced along with the affidavit-in-reply filed by the
Respondent No.1 in Review Petition. Effect of accepting the submission
of the learned Senior Counsel will be that the Consent Terms will bind
all the members of the Societies as Societies are members of the
Federation without they passing the resolution approving the Consent
Terms.
24. The Supreme Court in the case of Inderchand Jain (Dead)
Through LRs. Vs. Motilal (Dead) Through LRs .5, in paragraph 33, has
5 (2009) 14 SCC 663
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set out the parameters of review jurisdiction. Relevant portion of the
said paragraph 33 is reproduced herein below:
"33.The High Court had rightly noticed the review
jurisdiction of the court, which is as under:
"The law on the subject--exercise of power of review,
as propounded by the Apex Court and various other
High Courts may be summarized as hereunder:
(i) Review proceedings are not by way of appeal and
have to be strictly confined to the scope and ambit of
Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some
mistake or error apparent on the fact of record is
found. But error on the face of record must be such an
error which must strike one on mere looking at the
record and would not require any long drawn process
of reasoning on the points where there may
conceivably be two opinions.
(iii) Power of review may not be exercised on the
ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for any
sufficient reason which is wide enough to include a
misconception of fact or law by a court or even an
advocate.
(v) An application for review may be necessitated by
way of invoking the doctrine 'actus curiae neminem
gravabit'."
(Emphasis added)
24. The Supreme Court in the case of Perry Kansagra Vs.
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Smriti Madan Kansagra6, made a reference to paragraph 90 of the
judgment in the matter between BCCI Vs. Netaji Cricket Club7 in
paragraph 16, which reads thus:
"16. On the other hand, reliance was placed by the
respondent on the decision in BCCI Vs. Netaji Cricket
Club to submit that exercise in review would be
justified if there be misconception of fact or law. Para
90 of said decision was to the following effect:
"90. Thus, a mistake on the part of the court which
would include a mistake in the nature of the
undertaking may also call for a review of the
order. An application for review would also be
maintainable if there exists sufficient reason
therefor. What would constitute sufficient reason
would depend on the facts and circumstances of
the case. The words "sufficient reason" in Order
47 Rule 1 of the Code are wide enough to
include a misconception of fact or law by a court
or even an advocate. An application for review
may be necessitated by way of invoking the
doctrine "actus curiae neminem gravabit"."
(Emphasis added)
25. It is clear that power of review is to be exercised when
some mistake or error apparent on the face of the record is found
or even for sufficient reason. In this particular case, the order
under review is passed in terms of the Consent Terms. The Consent
6 (2019) 20 SCC 753
7 (2005) 4 SCC 741
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Terms specifically records that the authority to execute the Consent
Terms are the resolutions passed by the respective Societies dated
30th October 2020 and all these resolutions are produced as
Annexure- 9 to the Consent Terms. Admittedly, the said resolutions
were not produced before this Court when the order under review
was passed. Thus the present case is covered by the parameters set
out by the Supreme Court. As discussed earlier, there is grave
doubt about the genuineness of the purported resolutions passed
by these Societies. As the resolutions passed by the Societies were
not produced before this Court when the order sought to be
reviewed was passed, there was no occasion for this Court to
examine various aspects regarding the said resolutions. Therefore,
this Review Petition is required to be allowed.
26. It is specifically clarified that all the contentions raised
by the contesting Respondents even including subsequent events
can be considered while deciding the Writ Petition on merits.
27. In view of the above discussion, the following order is
passed:
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ORDER
(i) Order dated 1st March 2021 passed in Writ Petition
No.2482 of 2012 is recalled and the same is set aside
and Writ Petition No.2482 of 2012 is restored to the
file;
(ii) Review Petitioner Nos.1 to 15 and Chembur Siddharth
Colony Shatabdi Co-operative Housing Society Ltd.,
Pranali Co-operative Housing Society Ltd. and
Siddharth Nagar Samjhota Co-operative Housing
Society Ltd. are directed to be impleaded as the
Respondents in Writ Petition No.2482 of 2012;
(iii) It is clarified that we have not considered the merits of
the dispute involved in the Writ Petition and the same
is expressly kept open;
(iv) It is further clarified that various contentions raised by
the contesting Respondents as far as the merits of the
said Redevelopment Scheme are concerned, are
expressly kept open and the same can be agitated in
the said Writ Petition No.2482 of 2012;
(iv) Review Petition is allowed and disposed of in above
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terms;
(v) In view of disposal of the Review Petition, all Interim
applications do not survive and the same are disposed
of accordingly.
(MADHAV J. JAMDAR, J) (S.V. GANGAPURWALA, J)
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