Bombay High Court
Bharat J. Patel vs The State Of Maharashtra And 3 ... on 13 April, 2023
Bench: R.D. Dhanuka, M. M. Sathaye
2023:BHC-OS:2863-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2283 OF 2017
Bharat J. Patel
Having their address at C-52/53,
Pravashi Industrial Estate, Vishveshwar
Nagar Road, Off. Aarey Road,
Goregaon (E), Mumbai-400063 ..Petitioner
Vs.
1. The State of Maharashtra
through the Slum Rehabilitation Office
served through the Office of the
Government Pleader (OS),
PWD building,Mumbai
2. The Chief Executive Officer,
Slum Rehabilitation Authority, served
through the Office of the Government
Pleader (OS), PWD Building, Mumbai.
3. Slum Rehabilitation Authority,
SRA Building, Bandra-East, Mumbai:
400051, served through the office of
the Government Pleader (OS), PWD
Building, Bombay High Court, Mumbai.
4. Shivneri Navgruh Nirman Vith
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Bhatti S.R.A. Co-operative Housing
Society having its office at CTS No. 29,
30, 31, 32, 33 Vith Bhatti, Shivneri Marg,
Western Express High Way, Goregaon (W),
Mumbai 400063
5. Vishwas Patil (Deleted as per Order dated 20.02.2023)
Age: Adult, Occup:
701, Beach Apartment,
Dr. A. B. Nair Road, Opp. Novatel Hotel,
Juhu Vile Pare (W) Mumbai 400056
6. Atlantic Construction Company
A, Proprietary Firm, having office
at 209, Atlantic Commercial Tower,
Patel Chowk, Ghatkopar (E), Mumbai 400077 ..Respondents
Mr.Shardul Singh a/w. Ms. Swapnila Rane a/w. Ms. Vanita Kakar for
Petitioner
Mr. Abhay L. Patki, Additional Government Pleader a/w. Mr.
Laxmikant Satelkar, AGP for State -Respondent
Mr. Abhijeet Desai a/w. Mr. Karan Gajra a/w. Mr. Dilip Jadeja for
Respondent Nos. 2 and 3 - SRA
Mr. Cherag Balsara a/w. Mr. Pranesh Gada for Respondent No.4
Ms. Mansi Marlewar, Naib Tahasildar SRA present in Court.
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CORAM:- R. D. DHANUKA AND
M.M. SATHAYE JJ.
RESERVED ON 20 FEBRUARY, 2023
PRONOUNCED ON 13 APRIL, 2023
JUDGMENT [PER: R D DHANUKA J.]:
1. Rule. Mr. Abhay Patki, Learned AGP waives service
on behalf of Respondent-State. Mr. Abhijeet Desai waives
service on behalf of Respondent Nos.2 and 3, SRA. Mr. Cherag
Balsara waives service on behalf of Respondent No.4. Rule is
made returnable forthwith. By consent of parties, Petition is
taken up for final disposal.
2. The Petitioner filed this Writ Petition under Article
226 of the Constitution of India praying for a Writ of
Certiorari for quashing and setting aside Notification dated 17
November, 2016, issued by the Respondent No.1 in respect of
the property bearing CTS No. 29 and 32, admeasuring about
7154.3 and 500 sq.mtrs respectively lying and situated at
Village Dindoshi, Taluka Borivali, Mumbai and also prays for
quashing and setting aside Public Notice dated 29 April, 2017
issued by Respondent No.2 and all the consequent
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proceedings initiated by Respondent No.2(Hereinafter
referred as 'writ property'). The Petitioner also prays for writ
of certiorari for quashing and setting aside consequent
proceedings including but not limited to the Order dated 20
June, 2018 passed by the Respondent Nos. 2 and 3.
3. It is the case of the Petitioner that he is owner of
plots bearing CTS No.29 (Admeasuring 7154.30 sq. meter)
and CTS No. 32(Part) (Admeasuring 515 sq. mtr.) at Village
Dindoshi, Borivali, Mumbai. The adjoining plots bearing CTS
Nos. 30,31 and 33 are declared as Slum. Respondent No.4 is
proposed Society of Slum Dwellers.
4. On 7 August, 2006 a Development Agreement is
executed between the Proposed Society and the Developer
that is Respondent No.4 and 6. On 2 October,2006
Respondent No.4 executed an Irrevocable Power of Attorney
appointing Respondent No.6 as their Agent for redevelopment
and securing title. On 8 February,2007 Respondent No.6
developer filed Short Cause Suit No.1124/2007 against
Respondent No.4 Society and its proposed Managing
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Committee members interalia praying for a declaration that
the Developer alone has a right to develop the writ property
and for permanent injunction against Respondent No.4
Society from disturbing the alleged possession of the
Respondent No.6.
5. It was alleged in the said plaint that the cause of
action had arisen on 24 January,2007 when the society
members threatened to dispossess the Respondent No.6 and
started looking for alternate developer. On 6 March, 2007 the
Respondent No.4-Society applied to the SRA for acquiring the
writ lands. It is the case of the Petitioner that the application
was made by Respondent No.6 Developer. Different names of
owners of the writ property were given. According to the
Petitioner, a false letter was given by the developer stating
that there was no litigation pending in respect of the writ
property, though the suit filed by the Respondent No.6
developer against Respondent No.4 Society itself was
pending.
6. On 16 March, 2007 the Respondent No.4 Society and
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the Respondent No.6 executed a Development Agreement in
respect of the writ property. On 9 July, 2008 Respondent
Society has alleged to have passed Resolution authorising
proposed managing committee members to file Consent
Terms in the said suit filed by the Respondent No.6 before the
Bombay City Civil Court. On 21 January, 2009 the parties to
the said suit executed Consent Terms and obtained a consent
decree.
7. On 28 November, 2011, Developer filed an
Execution Application against the Respondent No.4 Society
and its proposed Managing Committee members for seeking
for appointment of a Court Commissioner for declaration that
the Developer was in possession of all the lands and for
direction to the members of the Respondent No.4 Society to
execute Individual Development Agreements and to vacate the
premises in their occupation with Police help etc.
8. On 19 December, 2012 the Respondent No.4 Society
gave consent and submitted to an order on the said Execution
Application filed by Respondent No.6 Developer and all the
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reliefs in the execution were granted accordingly in favour of
the Respondent No.6 Developer.
9. In the meanwhile, on 10 February, 2011 this Court
passed an order on the petition filed by the owners of the
adjacent land that SRA before acquisition proceeding shall
apply the Judgment in case of Amit Gulabdas Shah Vs.State
of Maharashtra (supra). On 6 May, 2011 Respondent No.4
relying on the said Consent Decree applied to the Deputy
Collector E&C and stated that as per the Decree, the Slum
Dwellers were restrained from joining any other society or
any other developer and therefore, the decree must be
submitted alongwith proposal of acquisition to the
Government. Petitioner received these documents by making
an application under the Provisions of Right To Information
Act. It is the case of the Petitioner that the said acquisition
made by the said society was processed after Six years and
after Respondent No.4 and 6 obtained collusive decree of the
City Civil Court.
10. On 26 August, 2015 the writ property was declared as
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"Slum Rehabilitation Area" that is much after the Report
submitted by the SRA on the basis of which land was
acquired. On 16 November, 2013 the SRA issued a public
notice under Section 14 of the Slums Act in respect of the writ
lands and called upon the owners to show cause as to why the
lands must not be acquired. By letter dated 23 November,
2013, Petitioner objected to the said acquisition proceedings
and submitted that he would develop the said land himself
and therefore the land should not be acquired. It is the case of
the Petitioner that there was no reply by the SRA to the
objection raised by the Petitioner. There was R.G.Reservation
on the land that is part of the land was under "Special
Industrial Zone" and part of the land was affected by DP Road
and without removal of reservation, no scheme could have
been filed.
11. On 3 February, 2014 first hearing took place before
SRA which was attended by land owner. The said hearing was
adjourned to 10 March,2014. On 26 February, 2014 Petitioner
submitted written representation before SRA and objected to
the acquisition proceedings on various grounds. On 1 March,
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2014 Petitioner submitted another written representation
before SRA and objected to the acquisition proceedings of the
writ land. On 10 March,2014 second hearing took place
before the SRA and was adjourned to 11 April, 2014
simplicitor. On 11 April 2014 third and last hearing took place
and the Petitioner appeared and objected to the acquisition
proceedings and submitted that they are ready and willing to
develop the writ land.
12. It is the case of the Petitioner that on 2 December, 2014
it was learnt from the impugned notification that the Chief
Executive Officer, SRA had submitted report to the State
Government after 8 months of the hearing without making any
reference to the objections regarding CTS No.29.
13. On 10 April, 2015 on queries from the State
Government, SRA sent clarifications to the State Government.
It is the case of Petitioner that the State Government as well
as SRA relied upon the collusive City Civil Court Proceedings
while considering whether the land should be acquired or not.
It is the case of Petitioner that in the said letter of SRA it was
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admitted that no scrutiny of number of Slum Dwellers/eligible
as slum dwellers was carried out. According to Petitioner it
was falsely stated in the said report that land owners did not
take any objection to the Acquisition proceedings.
14. Thereafter on 15 October, 2016, Petitioner filed
another representation and pointed out that unless
R.G.Reservation was removed or modified, no scheme could
be submitted. On 17/11/2016, after 23 months, State
Government issued notification under Section 14 of the Slums
Act, thereby aquiring the writ property. It is the case of
Petitioner that no hearing was granted to the Petitioner before
passing the said impugned notification dated 17
November,2016 under Section 14 of the Slums Act. On 8 April,
2017 the Petitioner made a detailed representation to the SRA
stating that he would Re-develop the land subject to the
modification of the reservation.
15. On 29 April, 2017 the Petitioner received notice from
SRA fixing a date of hearing for fixing compensation. On 16
June, 2017 hearing came to be held by the SRA and was
adjourned to 27 June, 2017 due to pendency of Writ Petition
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(L)No.1121/2017. On 27 June,2017 hearing for the purpose of
deciding the compensation was due. It is the case of
Petitioner that on an apprehension being expressed, the
Respondent No.5 being due to retire on 30 June,2017, this
Court directed SRA not to conduct further proceedings
pursuant to impugned notification by passing order of 23
June,2017.
16. On 20 June, 2017 Respondent No.5 preponed the date
of hearing from 27 June,2017 to 20 June, 2017 and passed
final order fixing the compensation on the preponed date. It is
the case of the Petitioner that in these proceedings, it was
alleged by the Respondents that one advocate of M/s.Scan
Advocates has sent request on 14 June, 2017 for
preponement. The matter was accordingly preponed on 19
June, 2017.
17. On 28 September, 2017 Respondent No.6 Developer
filed a Misc.Application in Execution Application for execution
of Agreements. It is the case of Petitioner that the said
application was initiated after the status quo order dated 14
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July, 2017 was passed in this petition. On 6 December, 2017
State Government addressed the letter to the SRA calling for
disclosure and information as to whether land owners were
heard in the matter. This letter was addressed after the entire
process was claimed to be over. Mr.Shardul Singh learned
counsel for the Petitioner tendered convenience compilation
of documents on behalf of his clients and also relied upon
various judgments in support of his submission. The Writ
petition is opposed by Respondent No.2, 3, 4 and 6 by filing
affidavits. Petitioner also filed additional affidavit on 17
November, 2022.
18. Mr. Singh, learned Counsel for the Petitioner
tendered synopsis, convenience compilation of documents and
also compilation of judgments for consideration of this Court.
He invited our attention to the various documents including
copy of Development Agreement dated 7 August, 2006 and
Irrevocable Power of Attorney dated 2 October, 2006. He also
invited our attention to copy of Plaint filed in the Short Cause
Suit No. 1124 of 2007 filed by the Developer viz. Atlantic
Construction Company against the society and few others,
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inter alia, praying for a declaration that the Defendants
therein are not entitled to transfer, sell and assign the
development right in respect of the writ property to any third
party and that the Defendants therein cannot be dispossessed
by the developer. He submitted that the Petitioner was not
impleaded as party defendant to the said suit.
19. It is contended that in paragraph 8 of the said
Plaint filed by the Developer, that on 22 January, 2007, the
Defendants therein have threatened the Developer that they
should implement Slum Redevelopment Scheme without any
delay and start construction on suit property. The Developer,
however, informed the Defendants and other slum dwellers
that there is reservation on the suit property which is
required to be deleted as also the Defendants had to take
the N.O.C. from the owners of the suit plots and if they are
unable to get the no objection to develop the suit plots under
Slum Redevelopment Scheme, then the suit property were
required to be acquired by the Government in favour of
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971.
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20. Learned counsel for the Petitioner invited our
attention to the consent terms filed by the Developer and the
Society in the said S.C. Suit No. 1124/2007 and submitted
that under the said consent terms, curiously the Defendants
therein i.e. members of the society agreed not to transfer, sell,
assign the development of the suit property to any other
person under slum redevelopment scheme or any other
private scheme for redevelopment the slum and only the
Developer, their assign, representatives shall develop the suit
property. The Society and the other occupants also agreed
not to join or participate in any housing scheme for their
rehabilitation by any private developer, Government and Semi
Government bodies.
21. It is submitted that the parties in the said consent
terms also agreed that except Developer, no other persons
shall develop the said property for the rehabilitation of the
society and their members. He submitted that by obtaining
such collusive decree by the Developer or by the Society, a
fraud has been committed on the Court and also upon the
Petitioner. Though in the plaint there was an averment made
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by the Developer that there is reservation on the said property
which is required to be deleted as also the defendants have to
take the NOC from the Developer and land owners, the
Petitioner, who is a land owner, is not impleaded as a Party
Defendant.
22. Learned counsel for the Petitioner invited our
attention to the application filed by the Developer for
execution of the said consent decree. By an order dated 19
December, 2012, the Court Commissioner came to be
appointed for declaration that the Developer / decree holder
is in possession of the writ property and only developer has a
right to redevelop the said property and that the possession
of decree holder cannot be disturbed by way of erecting a
prominent board on the site of the property. The said order
further provided that the members of the Defendant society
to execute individual development agreement with the
Developer. If they failed to do so, the Registrar of the City
Civil Court to execute the same.
23. Learned counsel invited our attention to the public
notice issued by the Slum Rehabilitation Authority on 16
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November, 2011 , and also the application dated 6 May, 2011
filed by the Society to the Deputy Collector ENC- Removal.
The said application was made by the Society to the Deputy
Collector, requesting the Deputy Collector to send the
proposal to the Government for acquisition of the writ
property and to submit report regarding the consent decree
obtained by the parties.
24. The Deputy Collector also requested to bring the
said decree on the record of acquisition of the writ property.
It was mentioned in the said application that City Civil Court
has restrained 489 and remaining other slum dwellers from
joining any other society and developer for implementation of
SRA Scheme. As per the decree, the possession of the writ
property was with the Society and the developer. He
submitted that the said application itself was a fraudulent act
on the part of the Society and the developer. The entire
process of making such application for submitting a report for
the purpose of acquisition of the writ property was based on
the collusive consent decree fraudulently obtained by the
developer, society and its members.
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25. Learned counsel for the Petitioner invited our
attention to the report dated 2 December, 2014 submitted by
the SRA CEO to the State Government vide letter dated 10
April, 2015 referring to the filing of the suit by the Developer
against the society and the consent decree passed therein. He
invited our attention to the order dated 23 June, 2017 passed
by this Court in Writ Petition (L) No. 1121 of 2017 filed by
Yogesh Chandulal Mehta and Anr. directing the SRA
Authority not to proceed with the inquiry pursuant to the
Notification dated 17 November, 2016 which was listed on
27 June, 2017 till next date of hearing.
26. It is submitted that the Authority, however,
fraudulently preponed the date of hearing with a view to
pass an ex-parte order against the Petitioner. He submitted
that on 20 June, 2017, the Deputy Collector passed an ex-
parte Award. No notice was given to the Petitioner for
preponement of the hearing. The hearing was already
adjourned to another date. After knowledge of the order
passed by this Court, the Deputy Collector fraudulently anti-
dated the date of hearing. Learned counsel for the SRA was
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present before this Court on 24 June, 2017, however, did not
point out that the hearing was already preponded by the
Deputy Collector as on the date of the said order dated 24
June, 2017.
27. Learned counsel for the Petitioner invited our
attention to the Affidavit in Reply filed by the SRA and
contended that the SRA raised a frivolous objection that the
writ petition has become infructuous. The report of SRA is
based on false premise that no objection was raised by the
Petitioner. He submitted that the Petitioner being the owner
of the writ property has first right to carry out the
development on the writ property. Since the Petitioner has
not refused to develop and made an offer to develop the writ
property, the Deputy Collector could not have passed an order
of acquisition of the writ property. The act on the part of the
Deputy Collector and the SRA is not bonafide and acts of
collusive, malafides and fraudulent.
28. Learned counsel for the Petitioner relied upon the
following judgments in support of his rival contention.
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(i) Judgment of the Supreme Court in case of S.P.
Chengalvaraya Naidu by Lrs. Vs. Jagannath (Dead) by
Lrs. And Ors. [(1994) 1 SCC1];
(ii) Judgment of the Division Bench of this Court in
case of Reserve Bank Employees' Snehdhara Cooperative
Housing Society Ltd. Vs. State of Maharashtra and Ors.
[2015 (2) Mh L.J. 899].
29. Learned counsel for the Petitioner adopted the
submissions made by Mr. Damle, Learned Senior Counsel for
the Petitioner in Writ Petition No. 2238 of 2017 on the other
issues.
Submission made by Mr. Balsara, learned counsel for
Respondent No.4- Society.
30. It is submitted by the learned counsel that the
provisions of Slums Act substantially provided for
improvement of conditions of the slum dwellers. The said
Act, however, did not have any provisions for rehabilitating
the slum dwellers. He relied upon the judgment of the
Supreme Court in case of State of Maharashtra Vs. Mrs.
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Kamal Sukumar Durgule and Ors. [(1985) 1 SCC 234]
(page 414-431 of Compilation), holding that Maharashtra
Vacant Lands (Prohibition of Unauthorized Occupation and
Summary Eviction) Act, 1975 violated Article 14 and 19 (1) (f)
of the Constitution of India and confirmed the order dated 8
February, 1980 passed by this Court.
31. Learned counsel relied upon salient features of
Afzalpurkar Committee Report, suggesting formation of the
Slum Rehabilitation Scheme. He submitted that vide
Notification dated 1 April, 1998, a Slum Scheme was issued
under 3(b) (iii) for Greater Mumbai Area. The guidelines
framed by the SRA mandatory required a proposal to contain
5 NOC's before the same was accepted from the various
departments. He relied upon the circular dated 9 November,
2015 issued by SRA whereby the requirement of 70% consent
at the time of submission of the proposal was waived in the
event of the proposal being submitted by the owner of the
property. He submitted that the Petitioner, therefore, did
not require the consent of the slum dwellers for submitting a
proposal in the year 2015. If he had any any desire or
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seriousness in submitting a proposal at that time, the same
could not have been done without the consent of the slum
dwellers.
32. Learned counsel has relied on the judgment of the
Supreme Court in case of Sushme Builders Pvt. Ltd. Vs.
Chief Executive Officer, S.R.A. and Ors. [(2018) 2
Supreme Court Cases 230], observing criteria of
conversion of SRD Scheme to Slum Rehabilitation Scheme. He
submitted that the declaration under Section 3C (1) of the
Slum Act was not a mandatory requirement for
implementation of a Slum Rehabilitation Scheme. The said
declaration does not enure in favour of any particular
developer but would have enabled anyone including the
Petitioner to submit a Slum Redevelopment Scheme.
33. It is submitted that Mr. Bharat Patel in Writ Petition
No. 2283 of 2017 has even transferred and sold a
neighbouring plot to Nootan Builders who submitted the
Slum Rehabilitation in respect of the neighbouring plot. At
that time the Petitioner had no intention to carry out
redevelopment. It is submitted that five NOCs have already
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been issued in favour of the developer by various
departments on various dates. The scheme submitted, is
accepted on 24 June, 2020. It is submitted that only at this
stage of preparation of the Annexure -II, that the Petitioner
misrepresented to the SRA that the aforesaid Slum
Rehabilitation Scheme propounded by Respondent No.4 and 6
would not be processed in view of the Interim Order dated 23
June, 2017 in this writ petition.
34. It is submitted that any reliefs to the Petitioners in
the present Petition would be detrimental to the interest of
662 slum dwellers and consequently public at large. He
submitted that the allegations against Mr. Vishwas Patil made
orally across the bar have no bearing on the Notification
dated 17 November, 2016 under Section 14 of the Slum Ac, as
the report for the same was made by Mr. Nirmal Deshmukh,
the predecessor of Mr. Vishwas Patil.
35. The allegation of preponement of the hearing for
compensation also do not have any substance as there cannot
be any substantial difference in the compensation awarded
in accordance with Section 17 of the Slum Act i.e. 60 months
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Notional rent.
36. It is submitted by the learned counsel that there
was a gross failure on the part of the Petitioners in submitting
Slum Scheme and the subject property was already declared
as Slum by Notification under Section 4 on 15 October, 1977.
At that point of time, there was no reservation on the subject
property. Though the Petitioner could have implemented SRD
Scheme from the year 1997, the Petitioner did not do so. From
the year 1997 after the amendment to Development Control
Regulation for Greater Bombay, the Petitioners failed to put
any proposal in implementing the Slum Scheme. The subject
larger property admeasuring 12511 sq. mtrs. has been
declared as Slum under Section 3 (c) (1) of Slum Act on 26
August, 2015. Even thereafter the Petitioner failed to put up
the proposal for implementation of the Slum Scheme.
37. Learned Counsel for the Respondent No.4 Society
submitted that Respondent No.2- Chief Executive Officer had
submitted a report dated 2 December, 2014 to the Chief
Secretary Housing Department for recommendation of
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acquisition of the subject property under Section 14 of the
Slum Act. The Chief Executive Officer took into consideration
the objections of the Petitioner and other members who are
present. The Petitioner had primarily contended that though
the Petitioner had intended to implement a Slum Scheme
on the subject property, however, on account of reservation
for recreation ground on the subject property, the Petitioner
could not implement the Slum Scheme.
38. It is submitted that under the garb of reservation
for recreational ground, the Petitioner has failed and unable
to implement the slum scheme. The subject property was
notified under Section 4 as Slum on 15 October, 1977. Till the
enactment of the Development Control Regulation Act, 1991
there was no reservation over the subject property and thus
there was no restriction upon the Petitioner to submit the
proposal at that point of time. There was no total constraint
in implementing the slum scheme by order dated 31 July,
2002 passed by this Court in case of City Space in Writ
Petition No. 1152 of 2002. He submitted that Slum Scheme
could have been implemented by restricting structural activity
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to 67% as reflected in the report dated 21 June, 2019
prepared by the SRA in respect of Recreation Ground
Reservation as per DCR 2034. The said reservation was not
an implement for submission of the Slum Rehabilitation
Scheme.
39. It is submitted by the Learned counsel for
Respondent No.4 that the public notice dated 16 November,
2013 under Section 14(1) of the Slum Act was already issued.
The Petitioner raised objection to the acquisition. The second
notice was issued on 24 December, 2013. The notice was
pasted on the subject property on 22 January, 2014. The
hearings were held before Respondent No.2 CEO,SRA on 3
February, 2014, 10 March, 2014 and 11 April, 2014 in respect
of acquisition of subject property. The Petitioner and the
Chief Promoter of Respondent No.4 appeared before
Respondent No.2 and were heard at length. The Petitioner,
thus cannot be allowed to contend that no notice was issued
upon the Petitioner or that the impugned order was passed in
violation of principles of natural justice. He submitted that
there is no falsity to issue notice or to grant hearing before
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the State Government.
40. Insofar as the issue of allegation of collusion raised
by the Petitioner is concerned, it is submitted by the learned
counsel for the Society that Respondent No.4 Society in its
reply especially at pages 59 and 60 has specifically stated
about pendency of the suit as well as the consent terms filed
therein. The Respondent No.6 Developer also has stated about
the said suit and the orders passed therein in the Affidavit in
Reply filed by them.
41. It is submitted that, on the contrary, the Petitioner
is guilty of misleading this Court by making false statement.
He submitted that the Petitioner was well aware about the
said suit and the order passed therein, since the Petitioner,
Respondent No.4 and Respondent No.6 had appeared before
the Respondent No.2 CEO on multiple occasions for hearing
in respect of acquisition under Section 14 of the Slum Act in
respect of the subject property in the year 2014.
42. It is submitted that the report dated 2 December,
2014 also discloses the details of the said suit and the
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consent decree passed by the City Civil Court. He submitted
that even if the case of the Petitioner is accepted that he
came to know about the suit and the consent decree in the
Affidavit in Reply of Respondent No.4 in this petition, the
Petitioner was not precluded from submitting the slum
proposal in respect of the subject property even at that stage.
43. It is submitted that the Petitioner did not challenge
the consent decree by making any application under Order 23
Rule 3 of the Code of Civil Procedure till date. Respondent
Society has already filed the compilation of documents before
this Court on 11 January, 2023 annexing all the documents in
respect of the suit and the consent decree. It is submitted
that merely because the suit was filed and the consent decree
was passed therein, it would not change the fact that the
Petitioner being the land owner has failed to submit the
proposal from the year 1977 when the subject property was
declared as slum under Section 4 and the fact that the slum
dwellers were residing in unhygienic condition and without
basic amenities.
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44. It is submitted by the learned counsel that during
the period between June, 2016 and June, 2020, various NOCs
are already granted by various departments for carrying out
redevelopment. He placed reliance on the Additional Affidavit
in Reply filed on behalf of the SRA on 1 December, 2022,
stating that the Notification dated 17 November, 2016 is
rightly issued by the Slum Authority and after following the
due process of law and that the compensation under Section
17 of the Slum Act has already been declared for land
admeasuring 12511.6 sq. mtrs. on 2 July, 2017.
Arguments in rejoinder made by Mr. Singh on behalf of
the Petitioner
45. It is submitted by the learned counsel for the
Petitioner that the learned counsel for the Developer Society
or the SRA Authority did not advance any argument
whatsoever in any manner in which the order fixing
compensation was passed, despite order dated 23 June, 2017
passed by the this Court. The SRA has not disputed the fact
that the order fixing the compensation though dated 20 June,
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2017, is antedated since intimation of this order passed by
this Court was never given either on 23 June, 2017 or at any
time thereafter.
46. The events subsequent to the impugned
notification as pleaded by the Petitioner and lastly admitted by
the SRA, State, Developer Society assumed act of malafides
and malice which are un-controverted. He submitted that
those NOCs were obtained by the Society from the Deputy
Collector and the other authorities on the strengthen of the
order dated 20 June, 2017.
47. It is submitted that there is no denial from the
society as well as developer that the City Civil Court
proceedings or orders passed therein were not collusive. He
submitted that it is also not the case of the Respondents that
the collusive orders in executing proceedings were not taken
into consideration for acquisition of the property or that the
said consent decree dated 21 January, 2009 was of no
consequence. On the contrary, the Respondents have
argued that the Petitioner ought to have filed the suit,
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challenging the collusive consent decree dated 21 January,
2009 or file an appeal along with application for leave to
appeal.
48. Learned counsel for the Petitioner placed reliance
on the Roznama of the proceedings before the City Civil Court
in the suit filed by the Developer and submitted that no writ
of summons was served by the Plaintiff- Developer on the
Defendant -Petitioner and had served upon the Defendant
Society and some of the occupants. No notice of motion was
moved for interim relief. The Defendants in the said Suit suo-
moto appeared and none of the Defendants filed any written
statement.
49. It is submitted that admittedly the Developer did
not implead the Petitioner to the said suit and did not advance
any argument as to why the Petitioner has not been impleaded
as party Defendant. It was also not the case of the developer
in the suit that the Petitioner is absentee landlord or he is
unknown to the society. He submitted that admittedly the
order and the consent decree obtained by the developer or the
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society is collusive, behind the back of the Petitioner, by
abusing the process of the City Civil Court.
50. Insofar as the submissions of Mr. Balsara, learned
counsel for the society that the scheme is already sanctioned
in favour of the Respondent Developer, is concerned, it is
submitted that this is an argument in terrorem of a
contemptuous litigant. He relied upon the order dated 14
July, 2017 passed by this Court in this petition, directing the
parties to maintain status quo to avoid further complications.
He submitted that the said order passed by this Court is in
force even till today and is willfully disobeyed.
51. Learned counsel for the Petitioner placed reliance
on the Affidavit in support of the Notice of Motion No. 65 of
2019 filed by the Developer on 4 February, 2019 praying for
vacating the status quo order dated 14 July, 2017. He
submitted that in paragraph 21 of the said Affidavit in
support of the Notice of Motion filed by the Developer, this
Court did not vacate the said status quo order dated 14 July,
2017. It is submitted that though there was an order of
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status quo passed by this Court on 14 July, 2017, the
Developer Society obtained No Objection certificate from
various authorities in gross violation of the order dated 14
July, 2017.
52. Insofar as submission of Mr. Balsara that Petitioner
did not submit a Slum Scheme despite opportunities were
given, is concerned, Mr. Singh, learned counsel for the
Petitioner submitted that the Developer and the Society had
obtained collusive consent decree dated 21 January, 2009 and
further obtained collusive order, ignoring the existence of the
Petitioner and the possession of the Petitioner on the writ
property. The Respondent did not respond to any of the
correspondence of the Petitioner.
53. The Petitioner could not have submitted the
scheme without modification of the reservation for which the
permission of SRA was sought by the Petitioner on 21
November, 2014, 26 February, 2014, 1 March, 2014, and 15
October, 2016. There was no response to these
correspondence also. In collusive consent decree, it was
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already agreed by and between the Developer and the
Society that the Society could not appoint any other person
except Respondent No.4 Developer.
54. The Petitioner was even otherwise neutralized from
submitting a slum scheme. The land in question declared as
Slum Rehabilitation Area only on 26 August, 2018 and only
after this date, the Petitioner could submit a scheme under
Regulation 33 (10) of the Development Control Regulations
Act. But by this date, the Report of the SRA for acquisition
had already been submitted to the State Government on 2
December, 2014.
55. It is submitted that it is contended by the
Developer itself that without modification of the reservation,
the scheme even otherwise, could not have been submitted.
The Scheme had been filed in August, 2019, only after
considering the Town Planning Report dated 21 June, 2019. It
is submitted that assuming that the Petitioner would have
filed the scheme even after 26 August, 2018, there is no gain
saying in what would happened to such scheme in view of
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collusive consent terms dated 21 January, 2009.
56. It is submitted that the Developer has suppressed
the fact that the Developer had already submitted the slum
Scheme on 14 March, 2016 though as on 14 March, 2016 the
land was private land and notification for acquisition was
issued only on 17 November, 2016. The Respondent Developer
thus had no locus to submit a Slum Scheme on 14 March,
2016. On 14 March, 2016, even the Housing Minister had
not approved the acquisition proposal.
57. It is submitted that it is only on the personal
strength, that order of City Civil Court was obtained by the
Developer and the Society and a fraud was played in obtaining
the order. The Developer filed the slum scheme on 14 March,
2016 in anticipation of acquisition. It is submitted that it is
the contention of the Developer that the slum scheme filed by
the developer on 14 March, 2016, which was accepted on 22
June, 2016, is absolutely false as the scheme acceptance
note/letter records that a fresh scheme was submitted in
August, 2019 jointly by M/s. Halleys Dreamwork Private Ltd.
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and the Respondent Developer. He submitted that a bare
perusal of the Slum Scheme acceptance letter which shows
that acquisition has been abondoned and in place thereof a
new proposal was submitted by one M/s. Halleys Dreamwork
Private Ltd. along with Respondent developer in August,
2019.
58. It is submitted that the SRA has accepted the new
Scheme of 2019 jointly submitted by M/s. Halleys Dreamwork
Private Ltd. along with Respondent/Developer on 22 June,
2020 with a caveat that "upon subject to undertaking ....
outcome of the Writ Petition Nos. 1152/2002 and 2283/2017
and 2238 of 2017 pending before this Court would be
binding." It is submitted that the sanction of the scheme on
22 June, 2020 is in gross violation of the status quo order
passed by this Court. The Respondent Developer has no
financial capacity and had to introduce a new developer. The
scheme which was the basis on which the acquisition was
made, has been abondoned and a new developer had entered
into scene.
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59. It is submitted that the City Survey NOC shows
that "Agreement of Joint Venture was executed between M/s.
Halleys Dreamwork Private Ltd. and Respondent Developer.
Even before notification under Section 14 dated 17 November,
2016, the Agreement of Joint Venture was already entered
into between the Respondent Developer and M/s. Halleys
Dreamwork Private Ltd. The Respondents have suppressed
these crucial facts and the documents from this Court even
during the arguments advanced by the Respondent Developer,
Society and SRA. The name of the new developer with whom
the Respondent Developer has entered into with joint venture
has been suppressed from this Court.
60. Insofar as the submission advanced by the learned
counsel for the Society that Section 14 of the Slum Act is an
independent provision is concerned, it is submitted by the
learned counsel for the Petitioner that there is no dispute on
the said legal provisions. He, however, submitted that the said
provision does not help the Developer in the context of the
challenge as pleaded, and shown in this Writ Petition.
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61. It is submitted that the acquisition of land whether
under Section 14 or otherwise is complete only upon the
fixing and deposit of compensation. It is submitted that the
acquisition of land thus, cannot be said to be considered as
completed. The transaction is based on the collusive consent
decree and order obtained in collusive manner from the City
Civil Court by the Developer and the Society amounts to
egregious act of fraud and malice. The entire action taken by
the parties including SRA after passing the order of SRA is
contemptuous and thus appropriate action be taken against
the Respondents for such wilful disobedience against the
order passed by this Court against the Respondents.
Submissions of the Learned Additional Government
Pleader for State
62. Mr. Patki, learned Additional Government Pleader
for the State in both the matters tenders a Compilation of
documents and also Synopsis for consideration of this Court.
He supported the impugned order passed by the CEO of SRA
and submitted that no interference is warranted with the
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impugned order passed by the CEO of SRA.
Submission on behalf of Mr. Desai, learned Counsel for
the Respondent Nos. 2 and 3- SRA - Developer Authority
63. Learned counsel for the Developer adopted the
submissions made by Learned Counsel Mr. Balsara, learned
counsel for the Society and tendered the proposal approved
by the Slum Rehabilitation Authority on 22nd June, 2020. He
also relied upon the judgment of this Court in case
Marathwada Society Chawl Committee and Ors. Vs.
State of Maharashtra and Ors. [2017 SCC Online B
8547), more particularly paragraph Nos. 11,18, 20 and
submitted that any interference with the Scheme would cause
serious prejudice not only to the members of the Respondent
No.4 Society, but also to the developer.
REASONS AND CONCLUSIONS
64. The question that arises for consideration of this
Court is to whether the SRA has issued the Notification dated
17 November, 2013, public notice dated 25 April, 2017 and
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has passed order dated 20 June, 2017 in accordance with the
provisions of the Slum Act and without complying with the
principles of natural justice or not?
65. It is not in dispute that the Petitioner is the owner
of Plot bearing CTS No. 29 (admeasuring 7154.3 square
meters and CTS No. 32 (Part) (admeasuring 515 square
meters) at Village Dindoshi, Taluka Borivali, Mumbai. The
Petitioner had responded to the show cause notice dated 16
November, 2013 issued by the SRA vide letter, informing that
the Petitioner is the owner of the writ property and intends to
develop the said property under the Slum Act. The Petitioner
also requested the Respondent No.2 not to acquire the said
property. Similar request was made by the Petitioner vide
letter dated 16 April, 2017 and 8 April, 2017.
66. It is the Petitioner's case that the Petitioner came
to know for the first time after reading the public notice on
29 April, 2017 that by a Notification dated 17 November,
2016, the writ property had been acquired and vested in the
Government of Maharashtra and fixing a compensation of
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Rs.1,40,83,344/- in respect of the writ property. The
Respondent Nos. 4 and 6 had relied upon a copy of the
Development agreement dated 7 August, 2006 between them
conferring development rights in favour of the Respondent
No.6 developer in respect of the writ property. The Petitioner
was not party to the said development agreement. The
consent of the Petitioner was not taken for the execution of
such development rights by the Respondent No.4 Society in
favour of Respondent No.6.
67. It appears that the Respondent No.4 Society also
executed a power of attorney in favour of the Respondent
No.6 Developer in furtherance of the said development
agreement. There is no reference to the bonafide rights of the
Petitioner in the property which was the subject matter of the
said development Agreement and the power of attorney. It
appears that the Respondent No.6 filed a suit bearing S.C.
Suit No. 1141 of 2007 before the City Civil Court at Bombay
against Respondent No.4 Society and some of the members of
the said society.
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68. In the said suit, Respondent No.4 Society prayed
for Leave under Order 1 Rule 8 of the Code of Civil Procedure
Code,1908. In the said suit Respondent No.4 also prayed for a
declaration that the Respondent No.4 Society and their
members were not entitled to transfer, sell and assign the
development right in respect of the suit property bearing
City Survey Nos. 28,29 (1,2,3), 30, 31 and 32 Village Dindosh,
Taluka Borivali to any third person and cannot dispossess
Respondent No.6 Developer from the writ property. The
Respondent No.6 also prayed for a permanent injunction
against Respondent No.4 from selling, transferring and
assigning the development rights in respect of the writ
property in favour of third party and to dispossess
Respondent No.6, his agent, assignee in respect of the writ
property. The said suit was filed on 6 February, 2007.
69. The documents produced by the Petitioner
indicates that during the pendency of the said suit, the
Respondent No.6 made an application to the Additional
Collector and the Competent Authority on 4 March, 2007
submitting property card and for permission. No writ of
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summon was served on the Defendants in the said suit. There
was no written statement filed in the said suit by the
Respondent No.4 society. The Respondent No.4 Society
passed a resolution on 9 July, 2008 to the effect that the
members of the society and the occupiers shall submit
consent terms in the said S.C. Suit No. 1147 of 2007 before
the City Civil Court, Bombay and authorizing Shri Janardan
Devji Dhadve, Secretary of the Respondent No.4 Society to
sign and submit the consent terms in the said proceeding.
70. It was resolved that the consent terms shall be
accepted by all the members of the society, to sign the
resolution and shall be individually bound by the consent
terms. The said resolution was alleged to have been signed by
the Committee Members of the Respondent No.4 Society. A
perusal of the Consent terms on the record, indicates that
Respondent No.4 and 6 filed consent terms in Court on 25
August, 2008 and 20 September, 2008 in the said suit filed by
the Respondent No.6. It is curious to note that it was
mentioned in the consent terms that the said developer had
disputes with the Respondent No. 4 Society and its members
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since prior to 1 January, 1995.
71. Respondent No.4 and its members agreed not to
transfer, sale, assign the development of the writ property to
any other person under Slum Redevelopment Scheme or any
other private scheme for redevelopment of the slum and only
Respondent No.6 developer, their assignee and
representatives shall develop the writ property. It was further
agreed that the Respondent No.4 Society and its members
shall not dispossess the Respondent No.6, his agents,
servants, assignees, person or personal claiming through
them for the writ property.
72. It was agreed that the Respondent No.4 Society
shall not join and participate any housing scheme for their
rehabilitation by any private developer, Government and Semi
Government bodies. In case of any change in the
Government Policies regarding slum and the writ property
and cancellation of slum development scheme, then the
Respondent No.6 shall develop, the said property privately by
getting approval from the Municipal Corporation. The society
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also declared that the development agreement entered with
the developer was permanently binding on them. The
developer shall record its name in the property card or other
government land records as holder/kabjedar of the writ
property.
73. In paragraph 11 of the consent terms it was agreed
that the slum dweller and Respondent No.4 Society bearing
No. 494 had given their consent for submitting the consent
terms in the Court. The Respondent No.4 society also agreed
that except Respondent No.6 developer, no other developer
can develop the writ property and Respondent No.4 shall not
involve in any agreement with any person for redevelopment
of the said property in other housing scheme or shall not
appoint any other person for construction of the building on
the writ property.
74. The City Civil Court passed a decree in terms of the
consent terms on 21 January, 2009. It appears that
Respondent No.4 Society filed an application for execution in
the said consent terms bearing Execution Application No. 47
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of 2011 under Order 21 Rule 11 (2) of the Code of Civil
Procedure, 1908 before the City Civil Court. Respondent
No.6 applied for appointment of the Court Commissioner for
declaration that Respondent No.6 is in possession of the writ
property and also prayed for a notice under Order 21 Rule 11
of the CPC directing Respondent No.4 Society to execute
individual development Agreement with the Respondent No.6
and prayed for further direction under Order 21 Rule 35/36 of
the Code of Civil Procedure directing the Respondent No.4
Society to vacate the premises / suit on the writ property.
75. On 19 December, 2012, the City Civil Court,
Bombay passed an order in the said Execution Application.
The City Civil Court recorded that on issuance of notice to the
Respondent No.4 Society under Order XXI Rule 11(2) they
remained absent and tendered their admission for execution
on 10 July, 2010. The City Civil Court accordingly appointed
the Court Commissioner for declaration that Respondent
No.6 is in possession of a writ property and only the
Respondent No.6 has a right to redevelop the writ property
and that the possession of the decree holder cannot be
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disturbed by way of erecting a prominent board on the site of
the writ property.
76. City Civil Court also issued notices under Order XXI
Rule 34 of the Code of Civil Procedure, 1908 directing the
members of the Respondent No.4 Society to execute
individual development agreement with the Respondent No.6
and if they failed to do so, Registrar of the City Civil Court
shall execute the same. The City Civil Court also issued a
notice under Order XXI Rule 35/36 of the Code of Civil
Procedure, 1908 directing members of Respondent No.4
Society to vacate the writ property, admeasuring
approximately 25065.9 sq. mtrs. for the purpose of
redevelopment and have further directed that if they failed to
do so, the Court Commissioner, City Civil Court, to get the
property vacated by use of force with the help of police
authorities or any other measures to vacate the writ property.
A perusal of the record makes it clear that it is an undisputed
fact that neither there was a reference of the ownership of
the Petitioner in the suit filed by the Respondent No.6 against
Respondent No.4 nor the Petitioner was impleaded as a party
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Respondent.
77. It was alleged in the said suit that the writ property
was affected by reservation and thus it was necessary to
obtain permission from the Government Authority to
redevelop the Slum Rehabilitation Scheme to SRA. It was
alleged that the Respondent No.4 Society had handed over the
possession of the writ property to the Respondent No.6 for
redevelopment. Respondent No.6 had already displayed name
board on the writ property and started office on the writ
property to implement the slum redevelopment scheme and
started other activities on the said property for the
construction of the slum dweller and tenements for sale.
78. It was alleged in the plaint that on 22 January,
2007, Respondent No.4 had threatened Respondent No.6 that
they should implement Slum Redevelopment Scheme without
any delay and start construction on the writ property.
Respondent No.6 informed Respondent No.4 and other slum
dwellers that there was reservation on the writ property,
which was required to be deleted. The Respondent No.4 also
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had to take the NOC from the land owners on the suit plots
and in case they do not get the no objection to develop the
writ property under the Slum Redevelopment Scheme, then
the writ property would be required to be acquired by the
Government under the Slum Act. Only thereafter, the
Respondent No.6 could implement the Slum Development Act
after getting building planning sanction from the SRA. It was
further alleged in paragraph 9 that Respondent No.6 had
already spent Rs.12,00,000/- on the Respondent No.4 Society.
79. In Paragraph 10 of the plaint, it was alleged by
Respondent No.6 that on 24 January, 2007, some of the
members of the Respondent No.4 Society threatened
Respondent No.6 that they shall remove Respondent No.6
from the writ property and they shall look for alternate
developer to develop the writ property if Respondent No.6
did not start implementing the Slum Development Scheme.
Respondent No.6 sought leave under Order 1 Rule 8 of the
Code of Civil Procedure, 1908.
80. It is surprising that the Development Agreement
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was executed on 7 August, 2006 and an irrevocable power of
attorney was executed on 2 October, 2006. The suit was
lodged on 6 February, 2007. The Respondent No.6 had already
made an application to the Additional Collector on 4 th March,
2007 during the pendency of the said suit. The Respondent
No.4 executed an irrevocable power of attorney in favour of
Respondent 6 on 16 March, 2007 after the said suit came to
be filed by Respondent No.6. No writ of summons was served
on the society and its members. No written statement came to
be filed by the society in the said suit. Neither Respondent
No. 4 nor Respondent No.6 developer produced any NOC from
the Petitioners being the land owner in respect of the writ
property. According to the Respondent No.6, they had
informed the Respondent No.4 Society and other slum
dwellers that NOC from the land owner would be required for
deletion of the reservation of the writ property. It is not the
case of the Respondent No.4 society that the society had
applied for NOC from the Petitioner for deletion of the
reservation or for the redevelopment.
81. Within a very short span of time, from the date of
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the execution of the development agreement, a collusive suit
came to be filed by the Respondent No.6 against Respondent
No.4 for seeking absolute declaration and other rights in
respect of the writ property which is owned by the Petitioner
without impleading the Petitioner as party to the suit. The
consent terms filed by and between the Respondent No.4 and
Respondent No.6 would clearly indicate that the same was
collusive with a view to commit fraud upon the Court and the
Petitioner by suppressing the ownership of the Petitioner in
the writ property and without impleading the petitioner as
party Defendant.
82. The consent terms were filed with a view to
produce the consent terms between the Respondent No.6 and
Respondent No.4 in respect of the writ property before the
SRA to acquire the writ property owned by the Petitioner. The
execution application filed by the Respondent No.6 in the said
collusive suit also would clearly indicate that the same was
filed with a fraudulent intention to grab the property of the
Petitioner. The Respondent No.4 Society has granted all the
rights in respect of the writ property in favour of the
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Respondent No.6 which could have been granted only by the
Petitioner or with consent of the Petitioner and not by the
Respondent No.4 or its members.
83. A perusal of the record indicates that just prior to
making an application for acquisition of the property,
Respondent No. 4 and 6 fradulently and in collusion with
each other obtained consent decree. The Respondent No.6
developer had announced to develop the property under
Slum Rehabilitation Scheme even prior to filling suit and
without approval of the Scheme. The Developer was fully
confident that by entering into the Development Agreement
by filing Consent Terms and by applying for permission to
redevelop under Slum Rehabilitation Scheme, it would be able
to grab the property of the Petitioner.
84. The Respondent No.2 firstly declared the writ
property as slum rehabilitation area on 26 August, 2015 i.e.
much after report submitted by the SRA on the basis of which
the land was acquired. On 16 November, 2013, the SRA had
already issued a public notice under Section 14 of the Slum
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Act and called upon the owner to show cause as to why the
writ property shall not be acquired. The Petitioner admittedly
objected to the said acquisition proceeding and had submitted
that he would redevelop the land itself and shall not be
acquired. The SRA did not give any reply to the said
communication dated 23rd November, 2013.
85. On 26 February, 2013, the Petitioner submitted
written application before SRA and objected the acquisition
proceedings on various grounds. The Petitioner thereafter,
submitted another written representation on 1 March, 2014
before SRA and objected to the acquisition proceedings of the
writ property. Hearing was simply adjourned to 11 April,
2014. Petitioner once again objected to the acquisition
proceedings and submitted that he is ready and willing to
develop the writ property.
86. On perusal of the record clearly indicates that on
query raised by the State Government on 10 April, 2015, the
SRA sent a clarification to the State Government that a decree
was obtained by the Respondent No.6 Developer from the City
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Civil Court. In the said communication from SRA to the State
Government, it was clearly admitted that no scrutiny of
number of eligible slum dweller was carried out. It was
falsely stated in the said response that the land owners did
not take any objection to the acquisition proceedings.
87. It is a matter of record that on 15 October, 2016,
the Petitioner filed writ petition contending that unless
Reservation of Recreation Ground is removed or modified, no
scheme was submitted. After 23 months, the State
Government issued Notification under Section 14 of the Slum
Act acquiring the writ property. It is the case of the Petitioner
that no hearing was granted to the Petitioner before passing
the impugned notification dated 17 November, 2016 under
Section 14(1) of the Slum Act.
88. Respondent No.2 did not consider the proposal
submitted by the Petitioner showing the willingness to carry
out the development in respect of the writ property and
objecting to the Respondent No.2 acquiring the said property.
Instead of deciding those objections, the Petitioner was served
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with the notice for fixing the date of hearing for deciding the
payment of compensation. The Petitioner rightly apprehended
that the Respondent No.5 was going to retire on 30 June,
2017, and was not expected to do any justice.
89. Respondent No.5, Chief Executive Officer preponed
the date of hearing from 27 June, 2017 to 20 June, 2017 and
passed final order fixing the compensation on the preponed
date. No notice of preponement of the date was issued to the
Petitioner.
90. On 14 July, 2017, this Court passed an order of
status quo in the said petition. The said status quo order has
been continued from time to time and is in force. On 20
February, 2023, Mr. Singh, learned counsel for the Petitioner
agreed to delete the Respondent No.5 from the cause title of
this writ petitoin on instruction. He, however, made it celar
that allegations against Respondent No.5 personally, though
are dropped, Respondent No.5 being an officer of
Respondent No.3 the Petitioner presses the allegations
against him.
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91. Mr. Balsara, learned counsel for the Respondent
No.4-Society and learned counsel for the Respondent No.6
Developer could not point out as to what was the necessity of
filing a suit before City Civil Court by Respondent No.6
against Respondent No.4 Society and that also without
impleading the Petitioner as a land owner of the land within a
short span of entering into an agreement. Learned counsel
for the Society could not point out the necessity of filing the
consent terms within a short span preceeded by an
irrevocable power of attorney. The Society did not bother to
file a written statement in the said suit controverting various
allegations made in the plaint. Respondent No.4 Society also
agreed to submit to the order of the Executing Court by
accepting to grant all the reliefs sought by the Respondent
No.6 Developer obviously with a view to commit fraud upon
the Court and the Petitioner.
92. A perusal of the record further indicates that based
on the said suit filed by the Respondent No.6 against
Respondent No.4 and the consent terms obtained
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fraudulently in collusion with the Respondent No.4 without
impleading the Petitioner as Party Defendant in the suit,
Respondent No.4 applied for acquisition of the property to the
Slum Authority. It is clear that when the State Government
demanded certain clarification from the SRA Authority - the
Chief Executive officer referred to the said collusive decree
obtained by the Respondent No.6 against Respondent No.4
recording that no other developer could be appointed for
redevelopment of the writ property.
93. The entire process of the proceedings initiated by
the Chief Executive Officer on SRA was based on such
fradulently obtained consent decree by the Respondent Nos. 4
and 6 from the City Civil Court. It was not the case of the
Respondent No.4 or Respondent No.6 that though they had
applied for consent of the Petitioner for redevelopment being
the owner of the writ property, Petitioner had refused to grant
such consent for the purpose of redevelopment. Since the
entire order passed by the Chief Executive Officer of SRA is
based on the such fraudulent consent decree depriving the
Petitioner of his valuable rights in the writ property, the order
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passed by the Chief Executive Officer, SRA deserves to be
quashed and set aside on this ground itself.
94. Respondent Nos.4 and 6 did not stop their
fraudulent acts in grabbing the property of the Petitioner but
also proceeded further by making an application for
execution of the said consent decree and obtained various
harsh orders from the Executing Court in collusion with each
other in respect of the writ property. Respondent No.4
Society made an application on 6 May, 2011 to the Deputy
Collector ENC- Removal, requesting to send the said proposal
for acquisition of the writ property and submit a report
regarding the consent decree obtained by the parties.
95. The Deputy Collector requested the society to bring
the said decree on record for acquisition of the writ property.
In view of the agreement mentioned in the application that
City Civil Court had restrained 498 and remaining other slum
dwellers from joining any other society or available for
implementing of the SRA Scheme as per consent decree, the
possession of the writ property was with the Respondent No.4
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society and Respondent No.6 developer.
96. It is clear that the SRA submitted a report to the
State Government on 2 December, 2014 based on the said
fradulently obtained consent terms and refered to the said
suit and the consent decree passed by the City Civil Court. By
a separate order passed by this Court, the order passed by the
said Chief Executive Officer who was being retired after few
days after so called hearing, this Court has recorded a finding
that the impugned order in respect of the adjoining property
was fradulently antidated by the Chief Executive Officer and
accordingly this Court set aside the order passed under
Section 14 of the Slum Act. In our view merely because
various subsequent acts are taken by te Respondents,
including obtaining NOC for the purpose of development of
the writ property would not legalize the order passed by the
SRA based on the fraudulently obtained consent decree
behind the back of the Petitioner owner.
97. A perusal of the Roznama produced on record in
the said suit filed by Respondent No.6 before the City Civil
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Court indicates that no writ of summons was served upon by
the Respondent No. 4 Society by the Respondent No.6 Society.
No notice of motion was moved for interim relief. The
Respondent No.4 Society appeared on its own without issuing
any writ of summons and collusively filed consent terms.
98. It is a matter of record that though Respondent
No.6 filed a notice of motion in this writ petition, inter alia,
vacating the status quo order dated 27 July, 2017, this Court
did not vacate the status quo order. Though this Court passed
an order of status quo on 14 July, 2017, Respondent No.6
obtained various No Objection Certificates from various
Authorities for violation of the said order. In our view, Mr.
Singh, learned counsel for Respondent No.5 is right in
submitting that the land in question was declared as a slum
rehabilitation area only on 23 August, 2018, and only
thereafter the Petitioner could submit the scheme under
Regulation 33(1) of the Development Control Regulation.
99. In view of the collusive suit filed by Respondent
No.6 against Respondent No. 4 and in view of the collusive
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decree that Respondent No.4 Society cannot appoint any
other developer for development of the property, the Slum
Authority even otherwise would not have passed any other
order in breach of the consent decree obtained by the
Respondent No.4 fraudulently.
100. A bare perusal of the record further indicates that
the scheme, Acceptance Note / letter records that fresh
scheme was submitted in August, 2019 jointly by M/s. Halleys
Dreamworks Pvt. Ltd. and Respondent No.6 which clearly
indicates that the acquisition had been abandoned and in
place thereof a new proposal was submitted by the said M/s.
Halleys Dreamworks Private Limited along with Respondent
No.6 Developer in August, 2019. The SRA had accepted the
new scheme subject to caveat that upon subject to
undertaking and outcome of the writ petition No. 1152/2002
and Writ Petition No. 2283/2017 and Writ Petition No. 2238 of
2017 pending before this Court would be binding on them.
101. In our view, the submission of new scheme and
obtaining order by Respondent No.6 from the SRA is ex-facie
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in violation of the status quo order passed by this Court in this
Writ Petition.
102. A perusal of NOCs obtained by the developer would
indicate that Respondent No.6 had already entered into
agreement of joint venture with M/s. Halleys Dreamworks
Private Limited or prior to the date of issuance of Notification
under Section 14 of the Slum Act i.e. dated 17 November,
2016. It is thus clear that it was a pre-planned strategy of
Respondent No.6 to enter into a joint venture agreement with
another developer, to file a collusive suit in the City Civil
Court against the society, which would not oppose the said
suit and would file consent terms granting all the rights in
favour of the developer which they could not have granted
and thereafter, applied for acquisition of the property. It is
unfortunate that Respondent No.2 SRA overlooked these facts
and acted upon such fraudulently obtained decree, so as to
deprive the Petitioners from his own property and pass an
illegal order in favour of Respondent Nos. 4 and 6
103. Since the order of acquiring property under Section
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14(1) is fradulently obtained, the subsequent order for
payment of compensation also cannot sustain. In our view
the report of the SRA to the State Government that there was
no objection raised by the Petitioner in the redevelopment of
the property by the Respondent No.4 is ex-facie contrary to
the record and is misleading. The Petitioner had never
refused to redevelop the writ property and had made an offer
to redevelop the writ property which offer was on record
before SRA.
104. In our view Mr. Singh rightly placed reliance on the
judgment of the Supreme Court in case of S.P.
Chengalvaraya Naidu (Dead) by Lrs. (supra), and the
judgment of the Division Bench of this Court in case of
Reserve Bank Employees' Snehdhara Co-operative
Housing Society Ltd. (supra), in suport of the submission
that the orders fradulently obtained, cannot sustain.
105. There is no substance in the submission made by
Mr. Balsara for Respondent No.4 Society that there was any
failure on the part of the Petitioner in submitting
rehabilitation scheme or that the Petitioner could have
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implemented the slum rehabilitation scheme when the subject
property was declared as slum by Notification under Section 4
on 15 October, 1977 and though there was a reservation on
the said writ property.
106. Insofar as submission of the learned counsel for
Respondent No.2 that Petitioner did not challenge the consent
decree and did not make any application under Order 21 Rule
2 of the Code of Civil Procedure, 1908 is concerned, there is
no substance in the submission made by the learned counsel.
The decree obtained fradulently by the party, can be
challenged even in the collateral proceedings.
107. Insofar as judgment of the Supreme Court in case
of State of Maharashtra vs. Mrs. Kamal Sukumar
Durgule and Ors (Supra), relied upon by the learned
counsel for the Society is concerned, the said judgment is not
applicable to the facts of this case even remotely and does
not advance the case of the Respondent No.4.
108. Insofar as judgment of the Supreme Court in case
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of Susme Builders Pvt. Ltd. Vs. Chief Executive Officer,
SRA and Ors. (supra), is also distinguishable on the facts.
In the facts of this case, the Petitioner owner had shown his
readiness and willingness to develop the writ property and
has been deprived of exercising his preferential rights to
develop the writ property. This Court in case of Indian Cork
Mills Pvt. Ltd. (supra) has recognized the preferential right
of the owner to develop a property under Slum Scheme.
109. There is no substance in the submission made by
the learned counsel for Respondent No.4 that there was no
violation of principles of natural justice committed by the
Chief Executive Officer-SRA in passing the impugned order.
110. In our view, since the entire steps taken by
Respondent Nos.4 and 6 in grabbing the property of the
Petitioner are fradulent and upon fradulently obtaining the
consent decree from the City Civil Court, the order passed by
the Slum Authorities for acquisition of the writ property of
the Petitioner deserves to be quashed and set aside.
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111. We accordingly pass the following order:
(i) Writ Petition is allowed in terms of prayer clauses
(b) (c) and (c-i).
(ii) The application filed by Respondent No.4 Society
before Respondent No.3- Chief Executive Officer,
Slum Rehabilitation Authority for acquisition of the
writ property is dismissed.
(iii) Rule is made absolute in the aforesaid terms.
(iv) There shall be no order as to costs.
(M.M. SATHAYE. J.) ( R. D. DHANUKA, J. )
112. Mr. Balsara, learned counsel for the Respondent
No.4 - Society applies for stay of the operation of the order
passed by this Court today, which is vehemently opposed by
the learned counsel for the Petitioner. Application for stay is
rejected.
(M.M. SATHAYE. J.) ( R. D. DHANUKA, J. )
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