Case: Ramchandra Mahadev Jagpat  Vs. Chief Executive Officer

writ petition No. 988 of 2004 by order dated 11.03.2005 which order has attained finality in view of the dismissal of special leave petition Nos. 11318 of 2005 and 19848 of 2005. Sigtia, after receiving the copy of the letters dated 24.05.2006 and 06.06.2005 sent a reply dated 15.06.2005 wherein the Sigtia submitted that the purported termination is illegal and without any authority and no further reply was sent by the society to the said letter. Moreover, in the hearing held before the Principal Secretary dated 20.06.2005, the representative of the society made no arguments with regard to the purported termination of the agreement. Therefore, it is contended that the society has not acted on the letter of termination and that the matter has come to an end and, therefore, Sigtia did not file any petition to challenge the purported termination. It is also argued that the prayer in the writ petition No. 1277 of 2006 adversely affects the interests of the Sigtia. It is stated that with the dismissal of special leave petition No. 19848 of 2005 all the applications filed in the said petition also stood dismissed and, therefore, the petitioners in the special leave petition had no right to approach this Court by way of writ petition making the same prayer which was made in the application for directions filed in special leave petition No. 19848 of 2005 and that the effect of the order dated 13.04.2006 is that the order of the High Court dated 11.03.2005 which was not challenged in the special leave petition attained finality and that in the application for directions filed in the special leave petition No. 19848 of 2005 the society had raised the issue of termination of agreement of Sigtia and appointment of Keya developers and the same stood dismissed with the dismissal of the said special leave petition. Therefore, as rightly pointed out by Mr. Arun Jaitley in any subsequent proceedings where the termination of the agreement of applicant Sigtia with the society and replacement of Sigtia a new developer is a subject-matter, Sigtia is a proper and necessary party to it. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. It must also be seen that the relief sought in the special leave petition No. 10281 of 2006 though only against SRA but in effect against the applicant Sigtia and, therefore, Sigtia is the necessary party to any proceedings wherein the replacement of the Sigtia with a new developer and the termination of the agreement with the Sigtia is in issue and, therefore, Sigtia should have been made a party respondent in the writ petition No. 1277 of 2004 as well as special leave petition No. 10281 of 2006. It is also not in dispute that Sigtia was impleaded as party respondent No. 7 in the special leave petition which came to be withdrawn by the petitioner therein on 26.09.2005 on which date Sigtia appeared through their advocate in this Court. As rightly submitted by the learned Solicitor General after the withdrawal of special leave petition No. 11318 of 2005 by the petitioner Nazeer Khan Yakub Khan both the developers i.e. M/s Sigtia and Keya Developers kept on submitting applications with the SRA. However, due to pendency of the special leave petition in this Court, SRA was not able to take any decision on the representations of the developers as well as the society. At the time of hearing, our attention was also drawn to the guidelines and the several conditions to be fulfilled by the slum dwellers/the society/ as well as the developers and the remarks required to be obtained on the proposal from the concerned authorities before issuing Letter of Intent. The SRA has also to verify the resolution as passed by the general body of the slum dwellers proposed society by majority for appointing or replacing the developers for the development of the scheme. It is also necessary for SRA to verify and to see whether the plot under the development is not affected by any reservation such as playground or recreation ground in view of the stay granted by the High Court in writ petition No. 1152 of 2002 and also to verify whether the proposed appointed developer has the financial capacity to undertake and complete the scheme. Therefore, for the foregoing reasons, we hold that Sigtia is a necessary and proper party to the special leave petition No. 10281 of 2006 filed by Ramchandra Mahadev Jagpat & Ors. We say that the order dated 27.06.2006 was passed in S.L.P. No. 10281/2006 on the basis of representation made by all the respective senior counsel appearing at that time. The order was not obtained as playing fraud on Court as alleged by the applicant herein. Now, it is brought to our notice and made out a clear case as to why Sigtia was a necessary party to the special leave petition No. 10281 of 2006 and in the light of the directions given by the High Court dated 11.03.2005 in writ petition No. 988 of 2004 and of the order dated 04.05.2006 in writ petition No. 77 of 2006. We have, therefore, no hesitation to recall our order dated 27.06.2006 in special leave petition No. 10281 of 2006. Since the entire matter was argued at length now by all the respective senior counsel, there is no necessity to rehear special leave petition No. 10281 of 2006. This apart in the concluding portion of our order dated 27.06.2006 in special leave petition No. 10281 of 2006, this Court directed the SRA to issue proper orders within two weeks from 27.06.2006. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s Sigtia.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. In pursuance of the said High Court order dt.11.3.2005, M/s. Sigtia Construction Pvt. Ltd. is hereby depositing a sum of Rs.2,50,00,000/(Rupees Two Crores Fifty Lakhs only) drawn on Standard Chartered Bank, Santacruz (W) Branch, Mumbai vide Cheque No.991396 dt. 2.6.2006 towards the interest free deposit with SRA as the performance related guarantee as directed by the Honble High Court in its landmark judgment dt.11.3.2005. The SRA may put it in its fixed deposit account, as it may deem fit.20. Besides interest free deposit of Rs. 2.5 crocres, M/s. Sigtia Construction Pvt. Ltd. will comply with and abide other conditions such as(a) First we will construct Rehab portion in all respect and then ask permission of sale portion.(b) We accept the Supervision of B.M.C. Engineer who will monitor the project.(c) We will give required undertaking/indemnity bond etc. as directed by Honble High Court and as desired byapplicant Sigtia have explained to this Court as to how the deposit of Rs.2.5 crores was not be deposited with SRA. It also denied that the agreement entered into between Sigtia and the society came to an end on 25.04.2005 by efflux of time. In this context, Clause 22 of the agreement must be read as a whole and when so read, it would be clear that the developer was to start the actual construction after the issuance of the commencement certificate by the authority. Therefore, the period of 3 years must be construed to begin from the date when commencement certificate is issued and not from the date of execution of the agreement. It was also submitted that the letters dated 25.04.2005 and 06.06.2005 were issued by 2 or 3 members of the society who were acting with ulterior motive and in collusion with the rival developer. Even the SRA to whom the letter dated 06.06.2005 was addressed in its counter affidavit filed before this Court in the present proceedings has stated that they did not take notice of the said letter of termination as the letter was not supported by the relevant resolution of the society. After 11.03.2005, Sigtia approached the SRA on several occasions requesting for the issuance of the Letter of Intent but since no response was coming from the Housing Department of Government of Maharashtra on 10.06.1995. In our view after the dismissal of the special leave petition No. 19848 of 2005, the order of the High Court dated 11.03.2005 attained finality and there was no proposal of M/s Keya Developers before the SRA on 13.04.2006 and, therefore, there was no question of SRA considering the proposal made by the new developer. In our view, Sigtia was a necessary party to the writ petition and to the special leave petition No. 10281 of 2006 as it directly affected by any order appointing Keya as developer. The society has also entered into an agreement and also executed an irrevocable general Power of Attorney dated 19.03.2004 wherein expressed its satisfaction with the progress in the work made by the Sigtia and also by the undertaking dated 26.02.2004 where the society undertook to continue with Sigtia as developer till the completion of the SRA project. Though it is contended by Sigtia that the termination by the society on 29.04.2005 was illegal and without authority, the Sigtia has not so far challenged the order of termination by the society. This important factor has also to be taken note off by the SRA at the time of considering the case of Sigtia along with Keya Developers. It is also stated that the consent affidavits of more than 70% of the slum dwellers had already been obtained by Sigtia. It is also submitted in the rejoinder affidavit that Sigtia did have the technical expertise and financial capability to complete the work and that all these issues were decided in favour of Sigita by the High Court in writ petition No. 988 of 2004 by order dated 11.03.2005 which order has attained finality in view of the dismissal of special leave petition Nos. 11318 of 2005 and 19848 of 2005. Sigtia, after receiving the copy of the letters dated 24.05.2006 and 06.06.2005 sent a reply dated 15.06.2005 wherein the Sigtia submitted that the purported termination is illegal and without any authority and no further reply was sent by the society to the said letter. Moreover, in the hearing held before the Principal Secretary dated 20.06.2005, the representative of the society made no arguments with regard to the purported termination of the agreement. Therefore, it is contended that the society has not acted on the letter of termination and that the matter has come to an end and, therefore, Sigtia did not file any petition to challenge the purported termination. It is also argued that the prayer in the writ petition No. 1277 of 2006 adversely affects the interests of the Sigtia. It is stated that with the dismissal of special leave petition No. 19848 of 2005 all the applications filed in the said petition also stood dismissed and, therefore, the petitioners in the special leave petition had no right to approach this Court by way of writ petition making the same prayer which was made in the application for directions filed in special leave petition No. 19848 of 2005 and that the effect of the order dated 13.04.2006 is that the order of the High Court dated 11.03.2005 which was not challenged in the special leave petition attained finality and that in the application for directions filed in the special leave petition No. 19848 of 2005 the society had raised the issue of termination of agreement of Sigtia and appointment of Keya developers and the same stood dismissed with the dismissal of the said special leave petition. Therefore, as rightly pointed out by Mr. Arun Jaitley in any subsequent proceedings where the termination of the agreement of applicant Sigtia with the society and replacement of Sigtia a new developer is aSigtia is a proper and necessary party to it. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. It must also be seen that the relief sought in the special leave petition No. 10281 of 2006 though only against SRA but in effect against the applicant Sigtia and, therefore, Sigtia is the necessary party to any proceedings wherein the replacement of the Sigtia with a new developer and the termination of the agreement with the Sigtia is in issue and, therefore, Sigtia should have been made a party respondent in the writ petition No. 1277 of 2004 as well as special leave petition No. 10281 of 2006. It is also not in dispute that Sigtia was impleaded as party respondent No. 7 in the special leave petition which came to be withdrawn by the petitioner therein on 26.09.2005 on which date Sigtia appeared through their advocate in this Court. As rightly submitted by the learned Solicitor General after the withdrawal of special leave petition No. 11318 of 2005 by the petitioner Nazeer Khan Yakub Khan both the developers i.e. M/s Sigtia and Keya Developers kept on submitting applications with the SRA. However, due to pendency of the special leave petition in this Court, SRA was not able to take any decision on the representations of the developers as well as the society. At the time of hearing, our attention was also drawn to the guidelines and the several conditions to be fulfilled by the slum dwellers/the society/ as well as the developers and the remarks required to be obtained on the proposal from the concerned authorities before issuing Letter of Intent. The SRA has also to verify the resolution as passed by the general body of the slum dwellers proposed society by majority for appointing or replacing the developers for the development of the scheme. It is also necessary for SRA to verify and to see whether the plot under the development is not affected by any reservation such as playground or recreation ground in view of the stay granted by the High Court in writ petition No. 1152 of 2002 and also to verify whether the proposed appointed developer has the financial capacity to undertake and complete the scheme. Therefore, for the foregoing reasons, we hold that Sigtia is a necessary and proper party to the special leave petition No. 10281 of 2006 filed by Ramchandra Mahadev Jagpat & Ors. We say that the order dated 27.06.2006 was passed in S.L.P. No. 10281/2006 on the basis of representation made by all the respective senior counsel appearing at that time. The order was not obtained as playing fraud on Court as alleged by the applicant herein. Now, it is brought to our notice and made out a clear case as to why Sigtia was a necessary party to the special leave petition No. 10281 of 2006 and in the light of the directions given by the High Court dated 11.03.2005 in writ petition No. 988 of 2004 and of the order dated 04.05.2006 in writ petition No. 77 of 2006. We have, therefore, no hesitation to recall our order dated 27.06.2006 in special leave petition No. 10281 of 2006. Since the entire matter was argued at length now by all the respective senior counsel, there is no necessity to rehear special leave petition No. 10281 of 2006. This apart in the concluding portion of our order dated 27.06.2006 in special leave petition No. 10281 of 2006, this Court directed the SRA to issue proper orders within two weeks from 27.06.2006. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s Sigtia.