SSK/ 1 APPL.286.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL(LODGING) NO.286 OF 2011 IN WRIT PETITION NO. 2371 OF 2009 Indira SRA Co-Operative Housing Society ) Duly registered under the Provisions of MCS ) Act and having its office at Prem Nagar and ) Siddhart Nagar, B. G. Kher Marge, Dr. A. B. ) Worli Naka, Worli, Mumbai 400 018. ) .....Appellants Vs. 1. Shivkripa Builders & Developers ) a Partnership Firm, having its office at 115, ) Bharat Chambers, Baroda Street, ) Mumbai – 400 09. ) 2. State of Maharashtra, ) Office at Mantralaya, Mumbai – 400 032. ) 3. The Slum Rehabilitation Authority ) having office at 5th floor, Griha Nirman ) Bhavan, Bandra (E), Mumbai – 400 051. ) 4. The Chief Executive Officer, Slum ) Rehabilitation Authority having Office at ) 5th Floor, Griha Nirman Bhavan ) Bandra (E), Mumbai – 400 051 ) SSK/ 2 APPL.286.11 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 Chief Promoter, having office at) Prem Nagar & Siddharth 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, Churchgat 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 WITH APPEAL (LODGING) NO. 300 OF 2011 IN WRIT PETITION NO. 2371 OF 2009 M/s. Om Omega Investment & Properties ) A Partnership Firm, having its office at ) 34-B, Jolly Maker Chamber II, ) .....Appellants Vs. SSK/ 3 APPL.286.11 1. Shivkripa Builders & Developers ) a Partnership Firm, having its office at 115, ) Bharat Chambers, Baroda Street, ) Mumbai – 400 09. ) 2. State of Maharashtra, ) Office at Mantralaya, Mumbai – 400 032. ) 3. The Slum Rehabilitation Authority ) having office at 5th floor, Griha Nirman ) Bhavan, Bandra (E), Mumbai – 400 051. ) 4. The Chief Executive Officer, Slum ) Rehabilitation Authority having Office at ) 5th Floor, Griha Nirman Bhavan ) Bandra (E), Mumbai – 400 051 ) 5. The Municipal Corporation of Greater ) Mumbai, A Corporation established under ) BMC Act, 1888 having its office at ) Mahapalika Marg, Mumbai – 400 001. ) 6. Indira SRA Co-Operative Housing Society ) Duly registered under the Provisions of MCS) Act and having its office at Prem Nagar and ) Siddhart Nagar, B. G. Kher Marge, Dr. A. B.) Road, Worli Naka, Worli, Mumbai 400 018. ) 7. Prem Siddha Co-operative Housing Society) Through its Chief Promoter, having office at) Prem Nagar & Siddharth Nagar, B. G. Kher ) SSK/ 4 APPL.286.11 Marg, Dr. A. B. Road, Worli Naka, Worli, ) Mumbai – 400 018. ) 8. Birla Industries Group Charity Trust, ) Having its office at Industry House, ) 159, Churchgat Reclamation, ) Mumbai – 400 020. ) ....Respondents Mr. S. U. Kamdar, Sr. Counsel with Mr.Zuben Behramkamdin i/b. M/s. Bharucha & Partners, Advocate for the appellant in APP(L) No.286 of 2011. Mr. N. H. Serwai, Sr. Counsel with Ms. N. Variava i/b. M/s. Prakash & Co., respondent no.7 in APP (L) No.286 of 2011 and Advocate for appellant in APP (L) No.300 of 2011. Mr. Anand Grover, Sr. Counsel with Miss Firdaus Moosa i/b. Mr. Prakash Mahadik, Advocate for respondent no.1 in both appeals. Mr. Samir Vaidya, Advocate for respondent no.6 in APP(L) No.286 of 2011. Mr. D. A. Nalawade, Advocate for respondent nos. 3 & 4 in APP(L) No. 286 of 2011. Mr. Ravi Kadam, Advocate-General with Mr. B. V. Phadnis with Mr. G.D.Utangale, Advocate for respondent nos. 3 & 4 in APP(L) No.300 of 2011. Mr. Milind More, AGP for State. Ms. V. S. Gharpure, Advocate for Corporation. CORAM : SMT. RANJANA DESAI & RANJIT MORE,JJ. RESERVED FOR ORDERS : 1st AUGUST, 2011. DATE OF PRONOUNCEMENT : 22nd AUGUST, 2011. SSK/ 5 APPL.286.11 ORAL JUDGMENT.: (Per Ranjit More, J.) 1. Respondent no.1-Shivkripa Builders & Developers, a partnership firm in both the above appeals is the petitioner in Writ Petition No. 2371 of 2009. The appellants in Appeal Nos. 286 of 2011 and 300 of 2011 are respondent no.4 and respondent no.8 respectively in the aforesaid writ petition. The appellants in the both the appeals are challenging a common order dated 15th April, 2011 passed by a learned Single Judge of this Court in Writ Petition No. 2371 of 2009 whereby the writ petition was allowed in terms of prayer clause (a), thereby setting aside the order impugned in the writ petition. For the sake of brevity and convenience hereinafter the parties are referred to by their respective nomenclature in Writ Petition No.2371 of 2009. 2. The brief facts giving rise to the present appeals are as follows: Plot nos. 88 to 104 at Worli Scheme 58, admeasuring approximately about 42,955.22 sq. mtrs. is owned by MCGM and is occupied by slum dwellers. The slum dwellers since they had no SSK/ 6 APPL.286.11 basic amenities, formed a Co-operative Housing Society i.e. respondent no.4 and decided to redevelop the slum under DCR No. 33(10). Respondent No.4-Society had agreed to appoint petitioner as a Developer for implementation of the Slum Scheme and accordingly an agreement was entered into on 4th January, 1994. Consequently, joint proposal was submitted to the Slum Rehabilitation Authority ( for short “SRA”) for approval of the Slum Scheme. On 18th November, 1997, the SRA principally approved respondent no.4’s scheme and letter of intent was issued on 31st December, 1999 in favour of respondent no.4 and the petitioner. Respondent No.7 objected to the sanctioning of the Slum Scheme on the ground that they are the owners of Plots bearing nos. 91 to 95 and 100 to 104 in the year 2000. Thereafter, the SRA called upon the petitioner to submit a revised plan for about 30,000 sq. mtrs. area after excluding disputed area admeasuring approximately about 12,000 sq. mtrs of respondent no.7. A Division Bench of this Court by an order dated 21st November, 2000 passed in Writ Petition No.6277 of 2000 restrained the petitioner from carrying out any development of Plot Nos.91 to 95 and 100 to 104 which were claimed by respondent no.7. SSK/ 7 APPL.286.11 The petitioner thereafter entered into second Development Agreement with respondent no.4 on 31st October, 2001 and thereby agreed to complete the project within reasonable time of five years on the receipt of commencement certificate of rehab proposed building or buildings and all the present occupants vacating the suit property and handing over vacant possession to the Developer after obtaining approval of regular building plan and I.O.A. from the SRA. It is the specific case of respondent no. 4 that the petitioner, despite the above agreement, neither started construction activities nor took any steps to implement the Slum Scheme or to submit the revised plan to the SRA on the “undisputed area”. Respondent No.4 in view of the complaints, passed resolution on 20th March, 2005 and thereby removed the petitioner as the Developer. Respondent No.4 in another Annual General Body Meeting dated 13th August, 2007 appointed respondent no.8 as Developer for implementation of the Slum Scheme and a fresh Development Agreement was also entered into on 14th September, 2007. Respondent No.4 also made an application to the SRA for permission to appoint new developer. On 14th October, 2009, the SRA passed an order thereby the petitioner was removed as the Developer and appointment of respondent no.8 SSK/ 8 APPL.286.11 as a new Developer came to be approved. The petitioner thereafter filed above Writ Petition No.2371 of 2009 in this Court, and as stated above, this Court by the impugned order, set-aside the order of the SRA removing petitioner and appointing respondent no.8 as a Developer. This order as stated above is challenged by respondent no.4 and respondent no.8 by filing separate appeals. 3. Mr. Kamdar, learned senior counsel appearing on behalf of respondent no.4 at the outset took strong objection to the exercise of the jurisdiction by the learned Single Judge under Article 226 of the Constitution of India despite availability of alternative efficacious remedy to the petitioner. He submitted that the order impugned in the above petition was passed by respondent no.2-SRA whereby the petitioner’s removal and respondent no.8’s appointment as a Developer to redevelop the slum was approved. Mr. Kamdar submitted that in view of the decision of Full Bench of this Court in Tulsiwadi Navnirman (SRA) Co-operative Housing Society Ltd. & Anr. Vs. State of Maharashtra & Ors. in 2007(6) Mh.L.J.851, the SSK/ 9 APPL.286.11 petitioners had alternative efficacious remedy to approach the High Power Committee and the petitioners could not have filed the writ petition directly challenging respondent no.2-SRA’s order, nor the learned Single Judge could have entertained the petitioners’ challenge in exercise of jurisdiction under Article 226 of the Constitution of India. In the above circumstances, we called upon learned counsel for the respective parties to advance their arguments on this limited question of maintainability of writ petition under Article 226 of the Constitution of India before learned Single Judge, and we by this order, propose to decide the issue of maintainability of the writ petition under Article 226 of the Constitution of India before the learned Single Judge. 4. Mr. Grover, learned senior counsel firstly submitted that respondent nos. 4 & 8 are precluded from raising the issue of maintainability of the writ petition at appellate stage, as these respondents had raised the said objection in their affidavit in reply filed in the writ petition, however, same was not advanced before the learned Single Judge, and therefore, they are deemed to have given SSK/ 10 APPL.286.11 up the said issue before the learned Single Judge. Secondly, Mr. Grover, submitted that a proper reading of the judgment of the Full Bench in Tulsiwadi’s case (supra) will make it clear that the same does not contemplate an appeal before the High Power Committee against an order passed by SRA while exercising quasi judicial power under Section 13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 (hereinafter referred to as “Slum Act” for short), and therefore, the question of referring the dispute before the High Power Committee in pursuance of the judgment of the Full Bench in Tulsiwadi’s case (supra) does not arise. Lastly, it was submitted by Mr. Grover that the judgment of the Full Bench in Tulsiwadi’s case(supra) is impliedly overruled by the Apex Court in the case of The Secretary Sh.A.P.D. Jain Pathshala & Others vs. Shivaji Bhagwat More & Ors. delivered on 4 th July, 2011 in Civil Appeal No. 4988 of 2011. Relying upon this judgment, the counsel submitted that the High Court under Article 226 of the Constitution of India does not have powers to direct the creation of a quasi judicial forum nor can the State Government exercise any executive function for the purpose of creating quasi judicial body. Mr. Grover also relied upon judgments of Apex Court in C. N. SSK/ 11 APPL.286.11 Rudramurthy Vs. K. Barkathulla Khan & Ors. reported in (1998) 8 SCC 275, S. Shanmugavel Nadar Vs. State of Tamil Nadu & Anr. reported in AIR 2002 SC 3484, Director of Settlements, A.P. & Ors. Vs. M. R. Apparao & Anr. reported in AIR 2002 SC 1598, Amanullah Vs. State of U.P. reported in AIR 1973 SC 1370, Kedar Shashikant Deshpande & Ors. Vs. Bhor Municipal Council & Ors. reported in (2011) 2 SCC 654, North Delhi Power Limited Vs. Government of National Capital Territory of Delhi & Ors. reported in (2010) 6 Supreme Court Cases 278 and The Secretary Sh.A.P.D.Jain Pathshala’s case (supra). 5. Mr. Kamdar, learned senior counsel in rejoinder to Mr. Grover’s reply invited our attention to paragraph 84 of the impugned order and submitted that the issue of alternative efficacious remedy was raised before the learned Single Judge as is evident from the contents of that paragraph. He submitted that, otherwise also, the issue of maintainability is a question of law. Mr. Kamdar submitted that a proper reading of the judgment of the Full Bench in Tulsiwadi’s case (supra) makes it clear that the dispute between the petitioner and SSK/ 12 APPL.286.11 respondent no.4 could have been resolved by the High Power Committee. Regarding Mr. Grover’s argument that the ratio in Tulsiwadi’s case (supra) is impliedly overruled by the Apex Court in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra), Mr.Kamdar submitted that the decision in Tulsiwadi’s case(supra) as well as subsequent decision of the Full Bench in the Writ Petition No.3068 of 2009 challenging the Government Resolution of the State Government appointing the High Power Committee was challenged in the Supreme Court by way of special leave petitions. Both the special leave petitions have been dismissed by the Apex Court thereby confirming the decision of the Full Bench in Tulsiwadi’s case. He submitted that even assuming that the ratio of Tulsiwadi’s judgment is overruled in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra), the conclusion arrived at in Tulsiwadi’s case (supra) pertaining to constitution of the High Power Committee cannot be set- aside in collateral proceedings. That conclusion still binds the petitioner as well as respondents, and therefore, it is not only open to the petitioner to approach the High Power Committee, but, they are obliged to exhaust that remedy. Mr. Kamdar relied upon the decision of the Full Bench in Tulsiwadi’s case (supra), decision of the SSK/ 13 APPL.286.11 Supreme Court in the case of A. R. Antulay Vs. R. S. Nayak & Anr. reported in AIR 1988 SC 1531, judgment of Calcutta High Court in Lakshmi Kanta Kahar Vs. State of West Bengal reported in 2001-CalLT-1-324 and decision of Apex Court in Bharat Sanchar Nigam Ltd. & Anr. Vs. Union of India & Ors. reported in (2006) 3 SCC 1. 6. Mr. Serwai, learned counsel for respondent no.8 supports the arguments of Mr. Kamdar. He submitted that the petitioner had adequate alternative and efficacious remedy to redress its grievance, in the form of High Power Committee, and therefore, it could not have directly approached this Court by way of petition under Article 226 of the Constitution of India. He submitted that the judgment of the Apex Court in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra) stands on different footing. He submitted that in view of Tulsiwadi’s case (supra), the parties aggrieved by the decision of the SRA will have to approach firstly to the High Power Committee and, in case, the person is aggrieved by the decision of the High Power Committee, remedy under Section 226 of the Constitution of India is SSK/ 14 APPL.286.11 always there. Mr. Serwai submitted that the jurisdiction under Article 226 of the Constitution of India is not to be exercised lightly. He submitted that the judgment of the Apex Court in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra) cannot cover a case like Tulsidwadi (supra). He submitted that in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra) , the validity of Grievance Committee was directly in an issue before the Apex Court. Counsel submits that in this case, the High Court while constituting the Grievance Committee barred the jurisdiction of the Civil Court. However, in Tulsiwadi’s case (supra), despite constitution of the High Power Committee, the jurisdiction of the High Court is kept intact. Lastly, he submitted that this Court, in view of the decision of the Full Bench in Tulsiwadi’s case (supra), is bound to refer the matter to the High Power Committee. 7. Since the issue raised by Mr. Grover is likely to affect large number of litigants and the validity of the Government Resolution constituting the High Power Committee was also challenged, we requested learned Advocate-General to make submission regarding SSK/ 15 APPL.286.11 the stand of the State Government. Learned Advocate General took us through the Full Bench Judgment in Tulsiwadi’s case (supra). He invited our attention to the provisions of Section 3 (k) of the Slum Act under which the State has powers to give directions to the SRA. He submitted that noticing the increasing spate of litigation in the High Court arising out of development of slum areas, the High Court considered the Government’s power to give direction to SRA under Section 3(k) of the Slum Act, and thereafter, a mechanism was evolved thereby directing the parties to approach the High Power Committee under Article 226 of the Constitution of India. He submitted that the remedy under Article 226 of the Constitution of India is not taken away by Tulsiwadi’s judgment. He further submitted that merely by constituting the High Power Committee, the High Court and Government tried to reduce the pressure on the High Court. Learned Advocate-General also pointed out that a conjoint reading of the Tulsiwadi and D.R.Patil’s judgments makes it abundantly clear that the State Government on its own has constituted the High Power Committee. The source of the power can be traced to the provisions of Section 3(k) of the Slum Act, and therefore, the issue whether the Court or the State has ventured to legislate does not arise. He SSK/ 16 APPL.286.11 submitted that, therefore, the judgment of the Apex Court in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra) would not apply to the facts and circumstances of the present case. 8. Having heard learned senior counsel for the respective parties, and having gone through the compilation of the writ petition along with ratio of the Apex Court decisions cited at bar, we first propose to discuss the last submission of Mr.Grover viz. that the decision of the Full Bench in Tulsiwadi’s case (supra) is overruled by the Apex Court in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra). The Full Bench in Tulsiwadi’s case (supra) considered the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 (hereinafter referred to as “Slum Act” for short), Maharashtra Regional and Town Planning Act, 1960 (herein after referred to as “MRTP Act” for short)and the Development Control Regulations of Brihanmumbai ( for short “D.C.Rules 1991”). The Full Bench noted down the incentives offered by the above enactments to the slum pockets and noticed the increasing spate of litigation between the slum dwellers/encroachers and the local SSK/ 17 APPL.286.11 authorities and appropriate agencies. The Full Bench found that the litigations are consuming valuable time of this Court, and therefore, felt it necessary to lay down certain parameters. The Full Bench examined the scheme of the above enactments and especially the Slum Act. In paragraph 28, the Full Bench quoted the provision of Section 3(k) of the Slum Act which speaks about powers of the State Government to issue directions to the Slum Rehabilitation Authority for carrying out the purpose of the Slum Act. In paragraph 106 of the said judgment, the Full Bench referred to the State Government’s power to issue directions under the Slum Act. The Full Bench after examining the scheme of the Slum Act, rules framed thereunder and D. C. Control Regulations found that the aggrieved party including the slum dwellers can approach the SRA and seek redressal of any of the grievances. It was also found that if the SRA refuses to intervene, then, the State Government can be approached. The Full Bench further observed that if the State Government refuses to take cognizance of the grievances and fails to exercise its powers in that behalf, then recourse to a writ petition is permissible. The Full Bench was conscious of the fact that they have no power to direct creation of quasi judicial forum. In paragraph 107, the Full Bench observed that SSK/ 18 APPL.286.11 it is for the Legislature to intervene and provide a complete corrective mechanism by setting up a Supervisory and Monitoring Authority and such an authority can be set up by the State by making appropriate changes or amendments in the relevant statutes. In paragraph 108, the Full Bench observed that appropriate exercise of power or authority vested in State Government would help reduction in litigation and expeditious resolution of dispute or problems. In paragraph 111, the Full Bench expressly made it clear that they have not expressly or impliedly restricted the scope of applicability of Article 226 of the Constitution and it was further observed that they have only indicated certain cases where inter or intra-departmental mechanism may be invoked in consonance with the scheme of the Act before approaching this Court. The State Government thereafter by passing Government Resolution dated 15th November, 2007 constituted the High Power Committee. The constitution of this High Power Committee was challenged in Writ Petition No.3068 of 2009 in the case of D.R.Patil Vs. State of Maharashtra & Ors. This writ petition was dismissed by the Full Bench. The observation of the Full Bench in paragraph 19 of the D.R.Patil’s case (supra) makes it abundantly clear that the High Power Committee is constituted by the SSK/ 19 APPL.286.11 State Government not only on the basis of the observations of the Full Bench in Tulsiwadi’s case (supra) but on account of the statement of the Advocate General before the Full Bench in Tulsiwadi’s case(supra). A proper reading of the Full Bench decision in Tulsiwadi’s case (supra) makes it clear that the State Government has constituted the Committee on its own but in due deference to the statement of learned Advocate General and the observations of the Full Bench. We find that the argument of Mr. Grover that the High Power Committee was directed to be constituted by the High Court is not correct. 9. Now the question that deserves consideration is whether the State Government by executive fiat could have constituted the High Power Committee. Mr. Grover, in this regard, heavily relied upon the decision of the Apex Court in The Secretary Sh.A.P.D.Jain Pathshala’s case (supra). The issue before the Apex Court in that case was about the validity of the constitution of the Grievance Committee to decide the grievance relating to selection, appointment, re-appointment or mid year cancellation of appointment of Shikshan SSK/ 20 APPL.286.11 Sevaks. Initially, the Grievance Redressal Committee was merely a mechanism to hear grievances of Shikshan Sevaks and give its recommendation to the Education Department, so that the department could take appropriate action. However, the High Court by subsequent directions modified the scheme and made significant changes in the constitution and functioning of the Committee. Under this modification, the Committee was required to be headed by retired District Judge. The High Court also directed that an opportunity should be given to the parties, and lastly it directed that the Committee should be only adjudicatory authority and excluded the jurisdiction of the Civil Courts to entertain any suit or application in regard to the disputes relating to selection, appointment, re- appointment or cancellation of appointment of Shikshan Sevaks. The question that was raised before the Apex Court was whether the High Court can direct the State Government to create quasi judicial forum and whether creation of such a forum by an executive order, by the State Government, in pursuance of such a direction is valid? The issue regarding exclusion of the jurisdiction of civil courts can be directed by the High Court was also sub-judice before the Apex Court. The Apex Court on the basis of the uncontroverted facts SSK/ 21 APPL.286.11 concluded that the High Court under Article 226 of the Constitution of India does not have power to create quasi judicial forum nor does the State Government exercises any executive function for the purpose of creating quasi judicial body. In the present case, we have already concluded that the constitution of the High Power Committee is not a result of the direction of the High Court and the said High Power Committee was constituted by the State Government, on its own, taking into consideration the observations of the