1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.192 OF 2006 Ravindra Pagare and Anr. .. Petitioners Versus Thane Municipal Corporation and Ors. .. Respondents Mr.I.S.Thakur i/b. S.S.Sayyad and Ms.Shraddha Mohite for petitioner Mr.R.S.Apte for respondent No.1 Mr.K.S.Deval for respondent No.5 Ms.Vaidehi Mhaispurkar, AGP for respondent Nos. 3 and 9 CORAM : S.C.DHARMADHIKARI, J. DATE : 16th February 2006. P.C. . Heard Mr.Thakur for petitioner, Mr.Apte for respondent Nos. 1 and 2, Mr.Deval for respondent No.5 and Ms.Mhaispurkar, A.G.P. for respondent Nos. 3 and 9. 2. Petitioners are aggrieved by an order 2 passed by the lower appellate court rejecting their appeal challenging the order of the trial court dismissing an application for injunction in Regular Civil Suit No.98 of 2005. 3. Petitioners contended before the trial court as well as lower appellate court that they are members of Gokuldham Cooperative Housing Society which is registered under the provisions of Maharashtra Coop.Societies Act, 1960. There are in all 181 registered members including plaintiffs. It is their case that society consists of persons residing in structures in slum area. The plot of land in question is C.T.S.No.158 (part), 1025(part) and C.T.S. 960 to 982 (part), 1026 admeasuring 4,86,219 sqm. Kopri, Thane East. They are residing in these structures for the land more than 40 years. They claim that a scheme of rehabilitation has been initiated by the defendant No.1. The plaint in para 3 proceeds on the basis that the development 3 of the plots in question is under slum rehabilitation scheme. The society and the slum dwellers forwarded proposal to the Corporation (defendant No.1). The scheme has been sanctioned by slum rehabilitation development committee. Plaint itself proceeds on the basis that the plans have been sanctioned by the Corporation in accordance with the provisions contained in Maharashtra Regional Town Planning Act, Maharashtra Slum Area (Improvement and Clearance and Redevelopment) Act, 1971 and Development Control Regulations for the City of Thane. 4. The case set up in the plaint is that the managing committee of the society has played fraud on members of the society and in collusion with the builder (defendant No.2) fabricated documents, agreements, resolution of society and submitted plans for construction on society’s land on false and bogus documents. Specific plea set up in the plaint is that the amalgamation of 4 adjoining plot with the society’s land has been done. Bogus members have been inducted in the society. There are in all 181 approved members. However, the managing committee of the society in collusion with the builder has submitted proposal and the scheme showing total number of members as 417 was approved. Thus in all 236 bogus members have been shown. These members are not approved by the Dy.Registrar. It is contended that the appointment of developer under the Slum rehabilitation scheme is without consent of majority of members of the society. Complaints have been lodged by plaintiffs and other members to Dy.Registrar about illegality of managing committee. Action under section 78 of the Coop.Societies Act was initiated. An Administrator has been appointed. In para 7 and 8 of the plaint, grievance has been made about working of managing committee. It is pointed out that original 181 members are not taken into confidence before the scheme is sanctioned. 5 5. In the aforesaid circumstances, now, the Corporation is threatening to demolish the structures which are occupied by the petitioners/ plaintiffs and that is how, a decree to cancel development scheme for 417 members and to prepare amended scheme for 181 registered members is prayed. A declaration is also claimed to this effect that the present development scheme being implemented on society’s land amalgamated with adjoining land by defendants for 417 members is illegal, null and void. The suit is filed in February 2005. Application for interim injunction is made and after impleadment and/or notice to 87 persons on whose behalf the suit is filed, an application for interim injunction was made. 6. The trial court after hearing parties as also perusing affidavits of Corporation and the Developer who are the only defendants to the 6 suit, initially granted status quo but subsequently by a detailed order vacated the same. 7. This order of the trial court is unsuccessfully challenged before the lower appellate court and the lower appellate court has also dismissed the appeal. It is in these circumstances, that the present petition under Article 227 of the Constitution of India is filed. 8. Learned Counsel appearing for petitioners has raised several contentions. He firstly submits that the Development Control Rules have been violated. There is no compliance with the same while implementing the present scheme. He has invited my attention to the D.C. Rules and more particularly Rule 33 thereof. He has invited my attention to the objects of Cooperative Housing Society and the letter of 7 Thane Municipal Corporation dated 3rd September 1990 which is at Exh.43 of paper book. He submits that the word Parishram was the name of proposed society whereas Gokuldham is the name of the society upon its registration. He submits that this society is formed on 2nd February 1985 with 181 members. He submits that the three year term of the managing committee of the said society was utilised by the then office bearers of the society for preparing a proposal behind the back of the general body and thereupon submitting it for sanction by the authorities. He submits that gross irregularities and illegalities are committed. No general body meeting was held and, therefore, administrator came to be appointed. He submits that the scheme proceeds on the basis that out of 425 members 361 members are eligible and 70% have consented to the proposal for re-development. He does not dispute that on 15th April 1998, the meeting which was convened for considering proposals for 8 slum development by the concerned department and the Corporation, takes into account the above facts and that the same was attended by the office bearers. However, his complaint is that the general body had no idea about such scheme being prepared and/or submitted and/or sanctioned. He submits that the approval in this meeting of Corporation was provisional. In any event, the number of 425 projected by the office bearers of the society is not correct, when there are only 181 members of the society. In his submission, it is only in the year 2003-04 that the petitioner learnt about the development activities at site. They discovered the fraud and representations were made from time to time, not only to the authorities under the Coop.Societies Act but elsewhere before Government authorities. He has invited my attention to the orders passed in proceedings under section 78(1) and the appointment of Administrator. He submits that since eviction 9 notice is being issued, the suit is filed and in the light of serious allegations made therein, it was incumbent upon the courts below to have protected petitioners from eviction and granted stay to the Activities for developing the plots in question. 9. In any event, it is his submission that the order of status quo granted by the trial court is running till date and being extended by this Court in this petition. The trial is expedited by the District Judge. The trial must conclude, according to the directions of the Dist.Judge, within one year from the date of his order. In these circumstances, even if this Court is inclined not to accept this submission, the protection should continue till the conclusion of trial. 10. Keeping in mind the fact that these structures are occupied by persons belonging to 10 lower strata of the society who are naturally unaware of their rights, I wanted to have a complete picture of the scheme on record, more so, since, contentions urged before me touch a broader canvass and not restricted to the activities of the office bearers of society. I wanted to satisfy myself as to whether there is prima facie substance in the complaint with regard to fraud being perpetrated on the slum dwellers by the developer in collusion with the managing committee members of the society in question. I am aware of the submissions of the learned Counsel for respondents that this exercise need not be undertaken, once the society is not a party defendant to the suit and that the scheme has not been faulted for non compliance with the requirements of Coop.Societies Act or D.C.Rules and none have argued the matter on that basis before the courts below. 11. I directed parties to place on record 11 their versions with regard to amenities being provided to the slum dwellers in the development scheme. I have also with the assistance of learned Advocates appearing for both sides perused the plans and the details pertaining to the plots which are subject matter of the scheme. 12. In my view, the trial court and the lower appellate court have gone into several aspects of the matter while finding out as to whether there is a prima facie case made out for grant of injunction and in whose favour balance of convenience lies in this case. The orders passed by the courts below cannot be faulted with, when it is brought to their notice that the present scheme which pertains to a large slum area has been under consideration from the year 1997. It appears that the Government of Maharashtra was approached and the Government as well as Municipal Corporation undertook a joint exercise for exploring possibility of development of slum 12 pockets. It is brought to my notice that Government of Maharashtra as early as on 20th October 1997 addressed a letter to the Municipal Commissioner of city of Thane and Dist.Collector that provisions of D.C.Rules approved by the Government of Maharashtra and made applicable to the Thane Municipal Corporation area envisage slum re-development scheme. The scheme is proposed to be implemented in 8 notified slum areas within the jurisdiction of Thane Municipal Corporation. The Government communicated its decision about proposed lease rent, assigning of rights in favour of Municipal Commissioner to execute lease deed in respect of land beneath the slum area and to transfer such lands in the name of Thane Municipal Corporation. The slum rehabilitation scheme in the present case is covered by the D.C. Rules. As early as on 15th April 1998, the S.R.D. Scheme was approved on the plot of land owned by Thane Municipal Corporation bearing C.T.S.No.1025 (part), 1026 13 (part) and 983 of village Kopri which is part and parcel of Siddharth Nagar slum area in favour of Gokuldham Society formed of slum dwellers. Letter of intent came to be issued on 1st April 2002. The scheme envisages participation of 425 members who are slum dwellers on a plot of land admeasuring about 9100 sq.mtrs. Eight persons affected by road widening were rehabilitated by respondent No.1. 13. In pursuance of the letter of intent as also in furtherance of an agreement for development which was entered into prior thereto, the second defendant submitted plans and specifications and on 20th August 2003, commencement certificate came to be granted in favour of four rehabilitation and two saleable buildings on the said plot of land. Today, position at site as can be culled out from the affidavits placed before me is that construction activities have commenced and insofar as four 14 rehabilitation buildings are concerned, with regard to two buildings construction has been completed upto plinth level. However, it is pointed out that about 86% of slum dwellers out of total number of 417 members have executed tri-partite agreement and the developer has assured and agreed to provide to them the tenaments in pursuance thereof with all amenities. 14. The most vital aspect which is brought to my notice is that out of 417 members 295 members i.e. slum dwellers have vacated their structures and premises and handed them over to the second defendant Developer. An arrangement is made for their temporary residence. They are residing in the temporary accommodation or availing of facility of payment of monthly sum for the past more than two years. In the affidavit which is filed on 25th January 2006, in para 13 an undertaking is given by the developer to this 15 Court in the following terms:- " I undertake that, each of 417 members (Slum Dwellers) of the said society including the petitioners will be provided with 225 square feet (carpet) tenament together with standard amenities free of cost in rehabilitation building as approved by the T.M.C. and that, those existing members (Slum Dwellers), including petitioners of the said society, who are occupying their respective slum premises and required to vacate their respective premises, to carry out development will be provided with temporary accommodation in transit camp or shall avail of refundable deposit amount to the tune of Rs.10,000/- for acquiring alternative accommodation and advance monthly rent of Rs.1000/- p.m. per tenament pending the completion of 16 the development work." 15. It is thus pointed out to me that benefit will be given of the slum rehabilitation scheme to even the petitioners and this fact is not seriously disputed. My attention has been invited to the fact that petitioner No.1 has executed an agreement. Now, that the suit is filed this fact is being disputed by him. Since, the Corporation is managing and administering as well as supervising the entire scheme, I called upon the Corporation also to place on affidavit its stand. 16. In the affidavit in reply filed on 31st January 2006 by the Executive Engineer it is pointed out that the statements made on affidavit by the developer are borne out from the record and it is correct that the scheme is approved and under implementation. I also directed to give details of the scheme and the amenities which are 17 going to be provided to these slum dwellers considering the fact that they should not be worse off after being evicted or shifted from the structures in their possession. In the additional affidavit filed by partner of respondent No.4 on 14th February 2006 details of the amenities which are going to be provided have been set out. They include basic amenities like separate bath and W.C. It is also pointed out that the F.S.I. permissible is 2.5. Total tenaments permissible on the plots are 878 and approved tenaments are 592. There is enough open space and the light and air is also sufficient. The further affidavit of the Corporation which has been filed today gives details of plot area, F.S.I., height of building, provision for marginal open space and recreational area of each tenament and height including details of tenament density. 17. While it is true that in the rejoinder 18 affidavit filed by petitioners they controvert this position it is unfortunate that petitioners on the one hand fault the entire scheme and term it a result of fraud between developer and office bearers of the cooperative housing society and at the same time seek to take advantage of the same by complaining about the amenities. It is further unfortunate that the petitioners proceed on the basis that they have a right in respect of the land beneath the structures occupied by them. They contend that the land under slum re-development is a distinct area. There is amalgamation of plots and the same is not permissible. There is a further submission that while developing the slums a policy of pick and choose is adopted and some pockets are selected for development while others are left out. 18. Such submission only demonstrates that despite the project being underway for a considerable length of time, the petitioners 19 under the garb of complaining about the activities of their office bearers have adopted a policy to defeat implementation thereof. If they have any grievance and they do not want to join the scheme, they could have very well approached the authorities including Government for making alternate arrangement for them. However, without joining cooperative society as party to the suit and making allegations against its office bearers of fraud and collusion with the developer, petitioners cannot at the same time seek benefits under the scheme. If the scheme is indeed beneficial as is clear from record and is at an advanced stage of implementation, then, courts below are right that irreparable loss and injury would be caused to the slum dwellers who have moved out of their structures and are cooperating with the developer. 19. Some minuscule number of persons cannot be permitted to block the implementation of the 20 scheme which is meant for 417 persons. The Courts below have also held that on account of enormous delay as also other factors, no prima facie case is made out by the petitioners and balance of convenience is also not in their favour. 20. The above mentioned conclusions of the trial court are based upon materials produced and perusal of number of documents including correspondence between local authority and the State. To satisfy myself as to whether these prima facie findings are indeed based on documents, I had called upon the parties to place their affidavits on record. The affidavits have annexures thereto. These are the very documents which have been perused by the Courts below. Some further materials are now made available. 21. In the light of the above, it is not possible to accede to the submissions of 21 petitioners Counsel as that would amount to re-appreciation and re-appraisal of the materials in exercise of supervisory jurisdiction. It is impermissible in law. Petition dismissed. Considering the fact that the scheme is under advanced stage of implementation and number of slum dwellers are likely to be prejudiced by the order of status quo, request of the learned Counsel to continue the status quo also cannot be acceded to. Status quo order is, therefore, vacated. However, all statements and undertakings are accepted. The defendant No.1 and State shall ensure expeditious implementation of the Scheme. It is their duty to ensure that the builder and developer fulfil all obligations undertaken by them. (S.C.DHARMADHIKARI, J)