1 wp2371.09-final-26-4-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2371 OF 2009 Shivkupa Builders & Developers A Partnership Firm having its office at 115, Bharat Chambers, Baroda Street, Mumbai-400 009. ....Petitioners. Vs. 1 State of Maharashtra office at Mantralaya, Mumbai 400 032. 2 The Slum Rehabilitation Authority, having office at 5th Floor, Grihanirman Bhavan, Bandra (E), Mumbai-400 051. 3 The Chief Executive Officer, Slum Rehabilitation Authority, having office at 5th Floor, Grihanirman Bhavan, Bandra (E), Mumbai-400 051. 4 Indira SRA Co-operative Housing Society Ltd., A Co-operative Housing Society duly Registered under the provisions of M.C.S. Act, and having its registered office at Prem Nagar and Siddhrath Nagar, B.G. Kher Marg, Dr. A.B. Road, Worli Naka, Worli, Mumbai-400 018. 2 wp2371.09-final-26-4-11.sxw 5 The Municipal Corporation of Greater Mumbai, a Corporation Established under BMC Act, 1888 Having its office at Mahapalika Marg, Mumbai-400 001. 6 Prem Siddha Co-operative Housing Society, through its Cheif Promoter Having office at Prem Nagar and Siddhrath Nagar, B.G. Kher Marg, Dr. A.B. Road, Worli Naka, Worli, Mumbai 400 018. 7 Birla Industries Group Charity Trust, Having its office at Industry House, 159, Churchgate Reclamation, Mumbai 400 020. 8 M/s. OM Omega Investment & Properties, A partnership firm having its office at 34-B, Jolly Maker Chamber II, Nariman Point, Mumbai 400 021. ....Respondents. Mr. Anand Grover a/w Ms. Firdaus Moosa i/by Mr. Prakash Mahadik for the Petitioners. Mr. Milind More, AGP for Respondent No.1. Mr. G.D. Utangale a/w Mr. B.V. Phadnis i/by M/s. Utangale & Co. for Respondent Nos. 2 & 3. Mr. S.U. Kamdar, Sr. Advocate a/w Mr. Zubin Behram Kamdin i/by M/s. Bharucha & Partners for Respondent No. 4. Ms. T.H. Puranik for Respondent No.5. Mr. Samir A. Vaidya for Respondent No.6. Mr. Bhalchandra Palav i/by M/s. A & M & S.A. Shroff & Co. for Respondent No.7. Mr. P.K. Dhakephalkar, Sr. Advocate a/w Ms.Naira Variava i/by Mr. Umashankar Upadhayay for Respondent No.8. 3 wp2371.09-final-26-4-11.sxw CORAM : ANOOP V. MOHTA, J. JUDGMENT RESERVED ON : 1st APRIL, 2011 JUDGMENT PRONOUNCED ON : 15th APRIL, 2011. JUDGMENT:- The Petitioners have challenged the order dated 14/10/2009 passed by Respondent No.3 (The Chief Executive Officer (CEO), Slum Rehabilitation Authority) under Section 13 of the Maharashtra Slum Areas (Improvements, Clearance and Redevelopment) Act, 1971 (for short, the Slum Areas Act) thereby has approved the termination of the Petitioners development agreement and simultaneously permitted to appoint new developer,/Respondent No.8, to continue to develop the slum rehabilitation scheme as announced 10 years back. FACTA PROBANDA 2 Basic facts are as under:- The Petitioners are a registered partnership firm and have been involved in building, development and redevelopment activities since 1995. 3 The State of Maharashtra (Respondent no.1) has formed and approved various schemes and policies and framed rules and regulations under the various State Acts, to rehabilitate slum dwellers 4 wp2371.09-final-26-4-11.sxw and occupiers of the Government and the Corporation lands and/or otherwise. Respondent No.2 is the Slum Rehabilitation Authority (the SRA) constituted under the Slum Areas Act. Respondent No.3 is CEO who functions as a head of Respondent No.2/SRA. Respondent No.4 is Indira SRA Co-operative Housing Society Ltd (Indira) of the Slum dwellers on whose applications the impugned order is passed. Respondent No.5 is the Municipal Corporation of Greater Mumbai who is the owner of the land (MCGM). Respondent No.6 is a Cooperative Society of slum dwellers/tenants claiming rights over the land in question i.e Prem Siddha Cooperative Housing Society (Prem Siddha). Respondent No.7 is Birla Industries Group Charity Trust (the Trust), claiming perpetual lease rights over part of the land under the scheme, therefore, filed Writ Petition No. 6277 of 2000, now 1762/2006. 4 The tenants/ occupants/slum dwellers, 2,270 in number, residing on C.S. No. 20 (Part), 32 (part), 33, 35, 36, 41, 65, 66 Worli Scheme No.58, plot 88 to 104 admeasuring about 42,955.22 sq. mtrs. situated at Worli which falls into G/South Ward belonging to Bombay Municipal Corporation (MCGM) formed a Co-operative society (Respondent no.4-Indira Society) for the 5 wp2371.09-final-26-4-11.sxw purpose of protection of their right, title and interest and for deriving the benefits of the Slum policy of the Government of Maharashtra. 5 As the members of Indira CHS Ltd were not in a position to approach Slum Authorities and other concerned authorities and to obtain sanction from them, the Society vide its General Body Resolution, appointed the Petitioners as a builder and developer for the scheme, to be implemented on the property mentioned above, and executed a necessary agreement dated 04.11.1994. Pursuant to the General Body Resolution and consent of more than 70% of tenants/ occupants, the Petitioners had prepared a proposal for the Slum Redevelopment scheme (the Scheme) and approached the MCGM, for certification and verification of the tenants/ occupants on the property. 6 On 25/10/1996, the Officer of the MCGM physically verified the tenants and occupants and the consent terms executed in favour of the Petitioner and accordingly certified the lists as Annexure-II. 7 On 18/11/1997, the scheme submitted by the Petitioners on behalf of Respondent No.4 was principally approved by Respondent 6 wp2371.09-final-26-4-11.sxw No.2. 8 On 31/12/1999, a Letter of Intent (LOI) was issued, of the complete area. On 30/03/2000, Respondent No.2 issued a Commencement Certificate (C.C.). 9 On 10/01/2000, the SRA permitted the Petitioners to revise its plan excluding the trust area. 10 The Trust filed a Writ Petition in this Court at its Appellate side bearing No. 6277 of 2000 (now W.P. No. 1762/2006(O.S.) This Court on 21.11.2000 admitted the above Petition and pending the hearing and final disposal, Respondent No.4/Society and consequently the Petitioners, were prevented from constructing and/or developing plot bearing Nos. 91-95 and 100-104 and also using FSI of the said plots. The interim order has been in force since then till this date. The challenges are also to NOC dated 18/11/1997, LOI dated 31/12/1999 and IOA and CC dated 30/03/2000 issued in favour of the Petitioners and Respondent no.4/society. 11 On 20/12/2000, the Petitioners, pursuant to the commencement 7 wp2371.09-final-26-4-11.sxw certificate dated 30/03/2000 started construction of the rehabilitation building No.10, however, by a letter Respondent Nos.2/3 informed Respondent No.4/society and in turn directed the Petitioners to stop the same. Since then the issues with regard to the legality, validity and propriety of the NOC, LOI and IOA granted by the SRA in favour of the Petitioners and Respondent No.4, have been sub-judice till this date. 12 On 31.10.2001 a fresh development agreement (The contract) with the Petitioners. There was no substantial progress in the matter till 2005. 13 In August 2004, Respondent no.4(Indira) filed a Petition challenging the new Yojana on the ground of pendency of the trust petition. 14 On 4.01.2005, a letter to Respondent no.4/Society expressing willingness to commence the work on undisputed land by the Petitioners. On 20.03.2005, an alleged Resolution by Respondent no. 4/society of terminating the contract of the Petitioners; and the appointment of the new developer. 8 wp2371.09-final-26-4-11.sxw 15 On 27.03.2005, an alleged communication terminating the Petitioners agreement was sent, but never received by the Petitioners. On 25.10.2005, the Petitioners letter for approval of transit camp rehab-building No.1, upto 17.05.2007, but there was no reply/response. On 31.10.2005, Respondent no.4 published notice about the Petitioners’ termination. 16 On 15.05.2006, an objection to the above termination as unauthorised, was raised and requested not to take any action, by the Vice President and the Joint Secretary of Respondent no.4/society. 17 On 01/11/2007, a Full Bench of this Court in Tulsiwadi Navnirmal Co-op. Housing Society Ltd. & anr. vs. State of Maharahstra & ors. [ 2007 (6) Mh. L.J. 851 ], directed the Government of Maharashtra to constitute a High Power Committee for deciding the dispute arising out of or in respect of Slum Rehabilitation Scheme. On 15/11/2007, the Government of Maharashtra vide G.R. Dated 15/11/2007 constituted the High Power Committee and mentioned the jurisdiction of the said committee. Respondent no.6’s application is also pending before the High Power Committee as filed after order dated 15th December 2007 based upon Tulsiwadi (supra). 9 wp2371.09-final-26-4-11.sxw 18 On 15/12/2007, a representation made by Respondent No.4 to change the developer before Respondent no.2/Respondent no.3. In the month of March, 2008, Respondent No.4 filed an application before Respondent Nos. 2 and 3 inter-alia praying for that the representation dated 15/12/2007 for change of developer be ordered and a revised letter of intent be issued in favour of Respondent No.4 and its new developer. The sole reason, on the basis of which the application was submitted is, the delay on the part of the Petitioners in implementing and executing Slum Rehabilitation Scheme. 19 On 02/06/2009, for the reasons best known to Respondent Nos. 2 to 4 the application was not proceeded till June 2009 and as alleged, surreptitiously, a notice issued for fixing the date of hearing on 06/06/2009 at 10.30 a.m at Bandra. 20 On 06/06/2009, the Petitioners submitted an application that they have not received any notice of hearing. 21 On 25/06/2009, a show cause notice under Section 13(2) of Slum Areas Act shown to have been issued to the Petitioners on the 10 wp2371.09-final-26-4-11.sxw address mentioned in cause title of the petition. 22 On 03/07/2009, another show cause notice dated 03/07/2009 u/s 13(2) of Slum Areas Act given to the Petitioners on different address, which was not the address of the Petitioners on the record or proceeding nor same is the address of the Petitioners. The said show cause notice with different outward number and sent by R.P.A.D. and received by the Petitioners on 05/07/2009. 23 On 07/07/2009 applied for certified copies and on 08/07/2009, the Petitioners received a copy of roznama and the order along with application dated 06/06/2009. On 10/07/2009, without prejudice to the rights and contention, the Petitioners pointed out to Respondent No.2 that notice dated 03/07/2009 amounts to interference in the administration of justice on the backdrop of the facts, LOI, IOA and CC which are subject matter of the Trust writ petition. On 01.09.2009, an order of High Court in the writ petition filed by the Petitioners directing the SRA to decide all the issues was passed. On 14/10/2009, the impugned order was passed by Respondent No.3. Hence the Petition. On 08/09/2010, the Petition was admitted and ordered to maintain the status-quo. On 11 wp2371.09-final-26-4-11.sxw 14.11.2009, a Suit No.2412/2009, filed by the Shendge brothers claiming to be partners of the Petitioners, but no interim relief in their favour. 24 It was pointed out that there is a termination of perpetual lease of the Trust by MCGM on 08.12.2010. Therefore, a fresh Petition filed by the Trust (2675/2010) referring to part of the land again. The same is also pending. 25 On 27/04/2010, the partners of the Petitioners firm settled their internal dispute as recorded in the writ petition. 26 On 22/02/2011, a Division Bench in Appeal No.1171 of 2011 against the status quo orders, directed the learned Single Judge to re- hear on interim relief. The statement was recorded that the status quo will be maintained. By consent of the parties and considering the urgency and the issues raised, the main writ Petition itself listed for final hearing and heard finally in the month of April 2011. 27 The learned counsel appearing for the respective parties have relied on the following judgments. 12 wp2371.09-final-26-4-11.sxw (a) By the Petitioners- i) 2005(3) All MR 889, Amba Chawl Wadi Rahiwasi Seva Sangh Vs. Municipal Corporation of Greater Mumbai & Ors. ii) 2006 (5) Bom.C.R. 772, Awdhesh Vasistha Tiwari & Ors. Vs. Chief Executive Officer, Slum Rehabilitation Authority & Ors. iii) 2007(1) Bom. C.R. 476, Om-Sai Darshan Co- operative Housing Society & Anr. Vs. State of Maharashtra & Ors. (b) By Respondent Nos. 2 and 3- i) WP No. 2375 of 2005, Bipinkumar Hawaldar Jaiswar, Chief Promoter, Babu Jagjivan Nagar CHS (proposed) & Ors. Vs. The State of Maharashtra & Ors. Dated 16th December, 2005. ii) Writ Petition No. 130 of 2010, M/s. Om Shree Sai Developers Vs. State of Maharashtra & Ors., dated 17th March, 2010 13 wp2371.09-final-26-4-11.sxw iii) Writ Petition No. 1606 of 2010, Omkar Realtors & Developers Pvt. Ltd. Vs. Slum Rehabilitation Authority & Ors., dated 26th October, 2010, c) By Respondent No.4- i) Om-Sai Darshan (Supra) . ii) Omkar Realtors & Developers Pvt. Ltd. (Supra) d) By Respondent No.6- i) Tulsiwadi Navnirman (Supra) ii) Writ Petition No. 2284 of 2007, Prem Siddha Co- operative Housing Society Vs. The State of Maharashtra & Ors., dated 5th December, 2007 e) By Respondent No.8- i) (2003) 4 S.C.C. 557, Canara Bank & Ors. Vs. Debasis Das & Ors. THE RELEVANT PROVISIONS: 14 wp2371.09-final-26-4-11.sxw 28 The relevant provisions of the Slum Area Act, referred by all, are as under;- Definitions- Section 2(c) – “Competent Authority”- “Competent Authority” means a person or body appointed to be the Competent Authority under Section 3; Section 2(hc) - “Slum Rehabilitation Authority”- “Slum Rehabilitation Authority” means the Slum Rehabilitation Authority or Authorities appointed by the State Government under Section 3A; Section 2(hd) “Slum Rehabilitation Scheme” “Slum Rehabilitation Scheme” means the Slum Rehabilitation Scheme notified under Section 3(B); Section 13- Power of Competent Authority to redevelop clearance area.-- “(1) Notwithstanding anything contained in sub-section (1) of section 12 the Competent Authority may, at any time after the land has been cleared of buildings in accordance with a clearance order, but before the work of redevelopment of that land has been commenced by the owner, by order, determine to redevelop the land at its own cost, if that Authority is satisfied that it is necessary in the 15 wp2371.09-final-26-4-11.sxw public interest to do so. (2) Where land has been cleared of the buildings in accordance with a clearance order, the Competent Authority, if it is satisfied that the land has been, or is being, redeveloped by the owner thereof in contravention of plans duly approved, or any restrictions or conditions imposed under sub-section (10) of section 12, or has not been redeveloped within the time, if any, specified under such conditions, may, by order, determine to redevelop the land at its own cost: Provided that, before passing such order, the owner shall be given a reasonable opportunity of showing cause why the order should not be passed.” THE JURISDICTION & THE AUTHORITY OF THE SRA 29 To achieve the object and reasons under the Maharashtra Regional and Town Planing Act, 1966 (for short, MR & TP Act), a Development Control Regulations for Greater Bombay, 1991 has been announced and amended from time to time, basically to implement the Slum Rehabilitation Scheme. 30 The SRA is a planing authority. It is an independent autonomous body. The SRA can declare any area as slum rehabilitation area for the rehabilitation of slums. As per the scheme, certain slum areas become slum rehabilitation area by means of deeming provisions. All these areas and schemes are under the jurisdiction of SRA. The SRA is empowered with various powers to 16 wp2371.09-final-26-4-11.sxw implement the schemes. It includes; planing and implementation, Building permission and supervision, Eligibility certification, eviction of non-participants and declaration of slum areas and slum rehabilitation areas, Registration of co-operative housing societies, Land management (Demarcation, sub-division of plots and leasing of slum lands), Community Development, Accounts and Finance and General Administration. 31 By letter dated 18/11/1997, the Chief Engineer of SRA had approved the proposal on the plots in question by addressing to the Architect and a copy was sent to Respondent No.4 (Indira CHS Ltd.). By letter dated 31/12/1999, referring to clause 33(10) and Appendix (IV) of Amended D.C. Regulations, issued a letter of intent/approval, subject to certain conditions, referring to the complete area of the land admeasuring 40,755.22 sq. mt providing a rehabilitation and a free sale component. It also referred to the deposits towards infrastructural development charges as per 124 (E) of MR & TP Act, thereby intimated to submit a proposal for approval of plans, consuming full sanctioned FSI separately for each building. 32 By letter dated 30th March, 2000, an intimation of approval 17 wp2371.09-final-26-4-11.sxw under Sub-regulation 2.3 of Appendix - IV of DCR No. 33(10) with certain conditions and instructions, was forwarded to the Chairman/Chief Promoter of Respondent No.4. The approval was under Section 45 of the MR & TP Act. The reference was also made to the commencement certificate under Section 44/69 (1)(a) of the MR & TP Act, apart from DC Regulation No.38 (27), Appendix IX DC Regulation 5 (3) (IX) have been made by the Executive Engineer of SRA. It is relevant to note special instruction No.2, which is as under:- “(2) Under Section 151 & 152 of MR & TP Act, 1966, as amended the Chief Executive Officer, Slum Rehabilitation Authority has empowered the Chief Engineer (S.R.A.)/ Executive Engineer (S.R.A.) to exercise, perform and discharge the powers duties and functions conferred and imposed upon and vested in the C.E.O. (S.R.A.) by section of the said Act.” 33 The commencement certificate/building permission was granted for Scheme No.58 of Ward G/S. of Worli Division, in question, covering all the plots in question by the Executive Engineer (SRA) (IV), For the Chief Executive Officer, the SRA, as empowered to function as Planning Authority. 18 wp2371.09-final-26-4-11.sxw 34 By letter dated 22nd December, 2000, the CEO of SRA in view of the order dated 21/11/2000 passed in Writ Petition No. 6277 of 2000 now, Writ Petition No. 1762 of 2006 (O.S.), directed Respondent No.4 Society not to carry out any construction as it would amount to violation of the High Court’s order. The Petitioners therefore could not continue with the construction/progress as per the scheme. 35 It is necessary to consider the basic scheme of both the Acts, including the Regulations. 36 The guidelines for the implementation of Slum Rehabilitation Scheme in Greater Mumbai provide procedure for submission, processing and approval of SRA Scheme which are as under : “IV. PROCEDURE FOR SUBMISSION, PROCESSING AND APPROVAL OF SLUM REHABILITATION SCHEMS 1 All slums and pavements whose inhabitants’ names and structures appear in the electoral roll prepared with reference to 1st January 1995 or a date prior thereto and who are actual occupants of the hutments are eligible for the slum rehabilitation scheme. 2 70% or more of the eligible hutment-dwellers in a slum or pavement in a viable stretch at one place have to show their willingness to join slum rehabilitation scheme and come together to form a co-operative housing society of all eligible hutment-dwellers through a resolution to that effect. The following resolution should be adopted 19 wp2371.09-final-26-4-11.sxw (a) Resolution electing a Chief Promoter. (b) Resolution giving the Chief Promoter authority to apply for reservation of name for co-operative housing society. (c) To collect share capital (Rs.50/- per member for slum societies) and Re.1/- as entrance fee and to open account in Mumbai District Central Co-operative/Maharashtra State Co-operative Bank Ltd. (any branch). 3 The chief promoter, office bearers and the members of the proposed society should collect the documents such as 7/12 extract and the PR card of the plot on which the slum is situated they should then get the plot surveyed/measured and prepare map of the plot showing slum structures therein with the help of surveyors attached to the office of Additional Collector (Encroachment) or the Deputy Collector (Encroachment) of the zone. 4 While undertaking the survey they should collect the information of the proposed members/slum-dwellers and fill up Annexure-II prescribed by SRA. Annexure-II gives the details of land occupied by the slum-dwellers, number and type of structures such as Residential, Industrial, Commercial, amenity structures etc. and the list of eligible and ineligible occupants and consent of slum-dwellers to join the scheme. Earlier the promoter/co-operative housing society had to first approach the different Competent Authorities namely Additional Collector for the slums on government and private lands and the land owning authorities for the slums on different public authority lands for obtaining certified Annexure II, before they could put in application for slum rehabilitation scheme to SRA. As a simplification measure, this procedure is now discontinued and Annexure II format is now required to be filled up by the promoter/co-operative housing society itself for submitting building proposal to SRA; so that the scrutiny of the proposal and certification of Annexure II can start simultaneously. Annexure II needs 20 wp2371.09-final-26-4-11.sxw to be submitted in duplicate. As a measure of further simplification, Additional Collector (Encroachment) is being designated as the sole Competent Authority for deciding eligibility and for taking eviction action against non-participants in slum rehabilitation schemes. 5 The Chief Promoter and the office bearers of the proposed society should then apply for name reservation of the proposed co-operative housing society along with the self-prepared Annexure-II and the required resolutions to the Assistant Registrar of Co-operative Societies. To facilitate this office of the Assistant Registrar has been started in SRA itself. It is no longer necessary to approach different offices of the Co-operation Department for this purpose. The Assistant Registrar/SRA will issue a letter reserving the name for the proposed Co-operative Housing Society and permission to open a bank account in the proposed society’s name. 6 While the above steps are being taken the decision to search a competent developer to act as a promoter has to be taken up by the proposed co-operative housing society of slum-dwellers. The society itself or an NGO/developer/owner can take up slum rehabilitation scheme as a promoter. 7 The promoter so chosen has to enter into agreement with every eligible slum-dweller while putting up slum rehabilitation proposal to SRA for approval. SRA is in the process of trying to evolve standard formats for the following four types of agreements required in the schemes, with the approval of the State Government. (a) Consent-cum-agreement between the promoter and the slum-dwellers. (b) Development rights/Agreement to lease between the promoter and the land owning authority. (c) Lease agreement between the land owning authority and the co-operative society of slum-dwellers. 21 wp2371.09-final-26-4-11.sxw (d) Lease Agreement between the land owning authority and the co-operative society of free-sale tenement buyers. 8 The promoter has also to appoint an architect in consultation with the proposed co-operative housing society of slum-dwellers to prepare the plans of development of the slum area, as per the DCR 33(10). It is expected that the architect ensures community participation in preparation of the building plans. All required documents such as building plan, layout plan, PR Card etc., along with Annexure-I, Annexure-II and Annexure-III are to be submitted to SRA by the architect along with an application for the slum rehabilitation scheme. A check list of all such documents required for submission is available in SRA office. 9 Annexure-I gives details about ownership o land, details of plot area, details of existing hutments and their type, computation of tenement density, extent and type of reservations, amenities, FSI available, number of tenements to be constructed including calculation of TDR etc. 10 Annexure-III is prescribed to assess the financial capability of the promoter. The items contained in Annexure-III are self explanatory. Keeping in view the sensitivity of this information, it is kept strictly confidential by SRA. (The formats of Annxure-I, II and III at Appendix- C). 11 After a pre-scrutiny by a designated engineer of SRA, to ensure completeness of the proposal submitted, so far as documents are concerned, proposals are accepted. Then a computerised file number is allotted to the scheme on payment of scrutiny fees which are charged at half the rate of the Municipal Corporation’s general building permission fees. Upon acceptance, the scrutiny of Annexures, I, II and III start simultaneously In the Building Permission Wing. Eligibility Certificate Wing and Accounts & Finance Wing respectively. 22 wp2371.09-final-26-4-11.sxw 12 Earlier, Letter of Intent conveying approval to the scheme, approval to the Layout building wise plan approval (Intimation of Approval) and Commencement Certificate were different stages of approval in the scheme, each having a long validity period. To speed up the actual commencement of building construction work on site, architects have been advised to submit slum rehabilitation proposals complete in all respects to enable SRA to give all the four approvals, at least for the