1 srk wp-852-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 852 OF 2011 Lokhandwala Infrastructure Pvt.Ltd. and another. ... Petitioners Versus Chief Executive Officer, Slum Rehabilitation Authority and others. ... Respondents Mr.Chirag Balsara with Mr. Farid Karachiwala, Mr. Abhijit Marathe and Ms. Pallavi Smitri and Mr. Bhavin Manek i/by M/s. Wadia Ghandy for the petitioners. Mr. S.G. Surana with Ms. Uma Upadhaya for respondent No.2. Mr. S.G. Surana for respondent No.3. Mr. V.D. Patil, Government Pleader for respondent No.1. Mr. Atul Rajadhakshya, Senior Advocate with Mr. Zubin Behram Kamdin, Mr. Vivik Vashi, Ms. S. Merchant and Ms. Anusha Jedodeen i/by M/s. Bharucha Partners for respondent No.4. CORAM : MOHIT S. SHAH, C.J. & GIRISH S. GODBOLE, J. Saturday , May 07, 2011 P .C. What is challenged in this petition under Article 226 of the Constitution of India is the order dated 20th April, 2011 of the Chief Executive Officer, Slum Rehabilitation Authority, Mumbai at Exhibit `G' at page 74 of the petition. 2. By the impugned order, the first respondent has held that the present petitioners do not have the requisite 70% continuous support/consent of the eligible slum dwellers for implementation of the Slum Rehabilitation Scheme. The first respondent CEO, SRA has further held that respondent No.6 (respondent No.4 in the present petition) has proved that respondent No.6 has the support of more than 70% of the eligible slum dwellers who were present at 2 srk wp-852-11.sxw the meeting and that therefore, the subject Slum Rehabilitation Scheme submitted by respondent Nos.4 and 5 societies be implemented through respondent No.6 and LOI and other subsequent approvals be granted in favour of respondent No.6 in accordance with law. 3. In the year 2002, the slum dwellers acting through two proposed co-operative societies, respondent Nos. 2 and 3 had entered into the development agreement with the petitioner No.1 for construction of the rehabilitation building for the slum dwellers and for construction of the free sale component. The development agreement was entered into in the year 2003 and on August 16, 2009 both, respondent Nos.2 and 3 societies passed a resolution removing the petitioner No.1 as developer, terminating the development agreement of 2003 and revoked/cancelled the powers of attorney in favour of the petitioner No.1. The petitioner No.1 was also informed accordingly in August, 2009. Thereafter, the said societies convened a general body meeting on September 20, 2009 for appointment of new developer. On 30th September, 2009, the societies entered into the development agreement with respondent No.4 herein. On 11th February, 2010, SRA issued notice to petitioner No.1, societies and respondent No.4 scheduling a meeting to determine whether petitioner No.1 or respondent No.4 have the consent of the slum dwellers for the development of the scheme. The SRA issued notice on 25th February, 2010 convening the meeting on 12th March, 2010 to decide which of the developer has the consent/ support of the slum dwellers. On March 11, 2010, the petitioners filed writ petition before this Court challenging the above notice and this Court granted ad-interim stay against convening such meeting as per the notice dated 25th February, 2010. When the writ petition reached hearing on 4th October, 2010, this Court dismissed the petition on the ground that it was premature as the impugned notices did not decide the rights 3 srk wp-852-11.sxw of the parties and all contentions were kept open. Special Leave to Appeal (Civil) No.30400 of 2010 filed by the petitioners against the said order came to be dismissed by the Supreme Court on 12th November, 2010. Consequently, the General Body meeting of the Members of respondent Nos.2 and 3 societies was held on 20th November, 2010. At the said meeting, the said societies resolved to appoint respondent No.4 as the new developer. At the said meeting, the representatives of the petitioner No.1 as well as respondent No.4 also remained present including their advocates and in their presence, after verifying the identity cards of all the slum dwellers, consent notes were handed over to them and they were asked to indicate their consent in favour of the developer to whom they wish to give their consent. Accordingly, out of the members of respondent Nos.2 and 3 societies who were present at the meeting, out of 401 eligible slum dwellers who were present in the meeting and asked to give their consent note, 50 eligible members have given their consent in favour of the petitioner No.1 (M/s. Lokhandwala Infrastructure Pvt. Ltd.), 343 members have given their consent in favour of respondent No.4 (M/s. Om Omega Shelters) and 8 members have given neutral consent note. 4. In view of the above outcome of the meeting, the SRA decided to issue LOI in favour of respondent No.4 on the ground that it had obtained consent of 70% of the eligible members who were present at the meeting. The said decision dated 6th December, 2010 of the SRA came to be challenged in Writ Petition No.95 of 2011. 5. At the hearing of the said petition, the petitioners contended that SRA had proceeded on the basis that respondent No.4 (6th respondent in the previous petition) had the support of 70% of the members of the co-operative societies, "eligible and present" at the meeting of the general body. The Court 4 srk wp-852-11.sxw held that Development Regulation requires 70% or more of the "eligible" slum dwellers in a slum to join a rehabilitation scheme and, therefore, SRA was not justified in proceeding merely on the basis of the number of slum dwellers who were "eligible and present" at the meeting and in holding that respondent No.6 developer had consent of 70% members of the cooperative societies eligible and present in the meeting of the general body. The Court noted that the SRA ought to have been cognizant of the fact that the petitioners claimed the consents of 90% of the slum dwellers which were, of course, obtained in the year 2003. This Court, therefore, directed the SRA to arrive at a decision after furnishing an opportunity to the petitioners as well as to respondent No.6 developer (respondent No.4 herein) to arrive at the decision as to whether the petitioners continue to have the support of over 70% of the slum dwellers. It was directed that in the event that the Chief Executive Officer of the Slum Rehabilitation Authority comes to the conclusion that the petitioners do not have the support of at least 70% of the slum dwellers, the authority shall consider as to whether the sixth respondent has the requisite consent in support of a majority representing at least 70% of the slum dwellers. 6. The above judgment dated 28th January, 2011 of the another Division Bench of this Court came to be challenged in SLP (Civil) No. 5526-5527 of 2011 in the Apex Court in which pendency of the disputes between the petitioners and respondent Nos.2 and 3 societies was noticed and an interim direction was issued that it is open to the petitioners to move the High Court in the pending arbitration proceedings wherein the termination of development agreement in 2009 was challenged. The Apex Court held that if the High Court refuses to grant the interim relief in the said proceeding, the SRA shall proceed with the matter in accordance with the impugned judgment dated 28.1.2011 of the High Court. The arbitration proceedings ultimately 5 srk wp-852-11.sxw came to be withdrawn and, therefore, the petitioners had sought clarification from the Supreme Court. When that interlocutory application dated 9th October, 2011 reached hearing on 21st April, 2011 before the Apex Court, the learned counsel for the SRA pointed out that the SRA had already taken a decision on 20th April, 2011 that the petitioners did not continue to have the support of 70% of the slum dwellers. 7. In the meantime, the petitioner No.1 has already filed Suit (Lodging) Nos.813 of 2011 and 814 of 2011 before this Court on the Original Side challenging the termination of the development agreements. The petitioner No.1 also prayed for interim orders in the said suits contending that the petitioner No.1 is entitled to get specific performance of the development agreement dated 10th August, 2003 and it took out notice of motion for appointment of Receiver of the property with a further direction to permit the petitioner No.1 to carry out the redevelopment and an injunction to restrain the societies and the new developer viz. respondent No.4 herein from acting upon the development agreement dated 30th September, 2009. By order dated 5th April, 2011, the learned trial Judge has declined to grant ad-interim relief in the Notice of Motions. In Appeal (L) Nos.234 of 2011 and 235 of 2011 challenging the said order dated 5th April, 2011, this Court has noted in the order passed today that the principle object of the Slum Rehabilitation Scheme being rehabilitation of slum dwellers, any injunction granted would delay the implementation of the Slum Rehabilitation Scheme, when nearly 500 eligible slum dwellers who have been waiting since August, 2003, would not get accommodation by way of rehabilitation for quite a few years. This Court also referred to the observations of the Apex Court in Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161 (para 31) that while protecting the plaintiffs from suffering the alleged injury, more serious injury 6 srk wp-852-11.sxw may be caused to the defendants due to continuance of interim orders of injunction and that on many occasions even public interest also suffers in view of such interim orders of injunction. 8. Ultimately, thus, the appeals have been disposed of by an order under which, while confirming the order of the learned trial Judge refusing to grant ad-interim injunction, this Court has directed respondent No.1-developer i.e. respondent No.4 herein not to sell, transfer, alienate, encumber or otherwise deal with or part with possession to the extent of 15% of the area of free sale component i.e. 15,000 sq.ft. in the free sale area. This Court also noted that as against the free sale component, respondent No.4 would be constructing 1,34,500 sq. ft. area consisting of 500 tenements of 269 sq.ft. each for the benefit of the slum dwellers who will get it free of cost as per the scheme. 9. The petitioners have now filed the present petition to challenge the order dated 20th April, 2011 of the SRA. 10. In the present petition, the learned counsel for the petitioners has contended that inspite of the directions dated 28th January, 2011 of this Court, the SRA has still relied upon the old consents which were given at the meeting held on 20th November, 2010. 11. The learned counsel for the respondents have, on the other hand, submitted that at the hearing on 13th April, 2011, the private respondents were permitted to give written submissions and as per the said written submissions, the total number of slum dwellers who have given consent in favour of respondent No.4 developer is 402 out of 500 which constitutes 76.80% of the eligible slum dwellers. 7 srk wp-852-11.sxw 12. Having heard the learned counsel for the parties, we find that as far as the dispute between the petitioners and respondent Nos.2 and 3 societies as well as respondent No.4 developer is concerned, in the private dispute, this Court has already protected the interest of the petitioners by restraining respondent No.4 developer from selling, transferring, alienating or otherwise creating any third party interest in respect of 15% (15000 per sq.ft.) out of the free sale area available to respondent No.4 for redevelopment, so that 1,34,500 sq.ft. can be constructed for providing 500 tenements to eligible slum dwellers. 13. The contention of the petitioners before the Division Bench which disposed of the writ petition on 28th January, 2011 was not that the petitioners continued to enjoy the consent of 70% of the eligible slum dwellers. On this question of fact, the SRA has given a finding that it is respondent No.4 who enjoys consent of more than 70% of the slum dwellers. As far as the private dispute is concerned, Full Bench of this Court had already held in Tulsiwadi Navnirman Co-op. Housing Society Ltd. and another v. State of Maharashtra and others, 2007(6) Mh.L.J., 851, that purely private disputes or those involving contractual rights, brought before this Court by way of writ petitions, will have to be ordinarily resolved by recourse to civil suit or arbitration and this principle would apply even to petitions where the State, SRA, BMC, MHADA etc. are impleaded as parties. The petitioners have, in fact, already availed of this alternative remedy by filing Civil Suit (Lodging) Nos.813 of 2011 and 184 of 2011 before this Court on the Original Side. Hence, the disputes sought to be raised by the petitioners in the matter of termination of the development agreement dated 10th August, 2003 cannot be agitated before this Court in this writ petition. 8 srk wp-852-11.sxw 14. The learned counsel for the petitioners would however, submit that the question whether decision of the SRA to issue LOI in favour of respondent No.4 is in accordance with law or not is a question which ought to be decided by this Court in the present petition. 15. We are afraid, once the petitioner No.1 is held not to be having consent of 70% of the eligible slum dwellers and the petitioner No.1 was shown to be having consent of only 50 out of 401 eligible slum dwellers, even assuming that the remaining 100 slum dwellers were to give their consent in favour of the petitioner No.1, even then it would be only 150 members, which would be less than about 30% of the eligible slum dwellers. The petitioner No. 1 would, therefore, not be having the minimum 70% consent of the eligible slum dwellers. When this is so, the petitioners would not have locus to challenge the decision of the SRA that respondent No.4 enjoys the consent of 70% of the eligible slum dwellers. If at all any party is aggrieved by any decision of the SRA on such issue, the alternative remedy of approaching the High Power Committee is provided as indicated in para 118(D) of the aforesaid Full Bench judgment. 16. In view of the above discussion, we are of the view that this Court is not required to exercise its discretionary writ jurisdiction at the instance of the petitioners. The petition is, accordingly, dismissed. 17. It is clarified that we may not be treated to have expressed any opinion on the question regarding the requisite consent having been obtained by respondent No.4 developer as in the present petition we have held that present petition is not maintainable. 9 srk wp-852-11.sxw 18. At this stage, the learned counsel for the petitioners prays that status-quo as operating today may be extended for a period of one week in order to enable the petitioners for further recourse in accordance with law. In the facts and circumstances of the case and particularly having regard to the fact that in the suits filed by the present petitioner No.1, this Court has already protected the interest of the petitioner No.1 by restraining respondent No.4 from transferring 15% of the free sale component area and this Court has not granted any injunction against implementation of the slum rehabilitation scheme where 500 families are waiting for slum rehabilitation scheme, this is not a fit case for granting the prayer. CHIEF JUSTICE GIRISH S. GODBOLE, J.