SUSME BUILDERS PVT. LTD. versus CHIEF EXECUTIVE OFFICER, SLUM REHABILITATION AUTHORITY AND ORS.
[2018] 1 S.C.R. 1, Supreme Court of India, 2018
Outcome: Unknown
Segment: Ratio
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[2018] 1 S.C.R. 1
SUSME BUILDERS PVT. LTD.
v.
CHIEF EXECUTIVE OFFICER, SLUM REHABILITATION
AUTHORITY AND ORS.
(Civil Appeal No. 18121 of  2017)
JANUARY 04, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Slum Dwellers:
Rehabilitation of slum dwellers – 800 slum dwellers in Mumbai
– Relief of rehabilitation – Slum dwellers, who are also owners of
the land, formed a society – Agreement between the society and
appellant-developer to develop the slums and rehabilitate the slum
dwellers in proper accommodation in the year 1986 – Thereafter,
various agreements between the Society and developer – Developer
to obtain consent of 70% slum dwellers in terms of amended DCR –
However, the developer not developing project as per the agreement
– Society entered into an agreement with respondent no. 4, which
was subsequently terminated and appellant again appointed as the
developer – Dispute between the appellant and respondent no. 4 –
Matter before Supreme Court, wherein former judge of Supreme
Court appointed to verify the factum of consentum of the eligible
slum dwellers – Report to the effect that both the developers failed
to show that they had obtained 70% consent – Held: It is our duty
to ensure that these owners who also happen to be slum dwellers do
not live in sub-human conditions for eternity – Appellant delayed
the project, and respondent no. 4 obtained the consent of society
members by holding out a false promise of a larger flat – Thus, both
the contesting
developers not entitled to any relief – 800 slum
dwellers, in addition to the flats, to be given compensation for the
land owned by them – In exercise of power u/Art. 142, directions
issued to Slum Redevelopment Authority-SRA to invite letters from
renowned builders/developers, for rehabilitation of all eligible
occupiers/slum dwellers within the stipulated period – Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971
– Development Control Regulations for Greater Bombay, 1991 –
Development Control Regulations, 1997 – Constitution of India –
Art. 142.
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Rehabilitation of 800 slum dwellers – Various agreement
between the slum dwellers and appellant-developer to develop the
slums and rehabilitate the slum dwellers – In terms of amended DCR,
the developer to obtain consent of 70% slum dwellers – However,
project not developed as per the agreement – Dispute between the
appellant and respondent no. 4-new developer – Matter before
Supreme Court, wherein former judge of Supreme Court appointed
to verify the consent of the slum dwellers in praesenti – Scope, ambit
and effect of the said order– Held: Intention of the Court, will have
to be deduced from the entire order – Phrase “there should be
appropriate verification of the consent of the eligible slum dwellers
in praesenti” cannot be read in isolation – It has to be read in the
context of the contention of the contesting parties that each one of
them had the consent of more than 70% of the slum dwellers – This
Court was not oblivious of the requirements of the Slum Act though
may not have explicitly mentioned 70% in its order – It is clear that
the judge had understood that he was to ascertain whether 70% of
the eligible slum dwellers are in favour of the redevelopment scheme
signed with the appellant or with respondent no. 4 – Holistic reading
of the order admits of no other meaning – Admittedly, neither the
appellant nor respondent no. 4 received 70% support of slum
dwellers, as such, the said order cannot be taken to its
logical
conclusion.
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971:
s.13(2) – Power of Competent Authority to redevelop clearance
area – Held: Under s.13(2), the Slum Redevelopment Authority-
SRA has the authority to take action and hand over the development
of land to some other recognized agency under three circumstances-
when there is contravention of the plans duly approved; when there
is contravention of any restriction or condition imposed under sub-
section 10 of s. 12; and when the development has not taken place
within time, if any, specified – On facts, slum dwellers are virtually
the owners of the land as members of the owner Society, the SRA
had the power u/s. 13(2) to issue the order of setting aside the
appointment of the appellant as developer.
s.3A(3)(c) and (d) – Slum Redevelopment Authority-SRA –
Power to remove the developer – Held: Since SRA issued the letter
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of intent, it necessarily has the power to cancel the same – In terms
of clause (c) and (d) of sub-section (3) of s.3A, SRA not only has
the power, but it is duty bound to get the slum rehabilitation scheme
implemented and to do all such other acts and things necessary for
achieving the object of rehabilitation of slums – On facts, SRA was
faced with a situation where the slum dwellers were suffering for
more than 25 years, thus, action by SRA to remove the developer
for the unjustified delay totally justified – Developer could not have
carried out the development work on the basis of its agreement with
the Society – It needed permission of SRA – Thus, SRA can revoke
such permission.
s.13(2) – Notice u/s.13(2) – Issue of 70% consent, if raised –
Held: When a notice is issued to a party, it must be clear and
unambiguous  as to what are the allegations it must meet – No
allegation in the notice that right to develop granted in favour of
the developer was liable to be revoked because it had not obtained
consent of 70% of the slum dwellers but was confined to the issue
of delay – Reference to Regulation 33(10) also did not specifically
raise the issue of 70% consent.
Development Control Regulations of 1991:
70% consent of the slum dwellers, if mandatory – Held:
Development Control Regulations of 1991 makes it absolutely clear
that at least 70% of the slum dwellers/occupiers were to form a
Society for the purpose of slum re-development scheme – Under the
amended
DCR of 1997, the developer/owner was required to enter
into agreements with 70% of the slum dwellers to take up the slum
rehabilitation scheme for consideration – Figure remains at 70% –
Even if the remaining minority slum dwellers do not agree to be part
of the scheme, the owner/developer is duty bound to make adequate
arrangements for their rehabilitation and they can join the scheme,
and can take benefit even at any later stage – Thus, 70% consent
of the occupiers is mandatory – On facts, developer having applied
for migration to new Scheme, had to obtain consent of 70% of the
slum dwellers – Stand of the developer that it was not required to
submit agreements with 70% slum dwellers, not legally tenable –
Agreements with 70% slum dwellers should have been provided
within a reasonable time and, though almost 20 years have elapsed
since the second letter of intent was granted in favour of developer,
SUSME BUILDERS PVT. LTD. v. CEO, SLUM
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it has till date failed to submit agreements – Development Control
Regulations of 1997.
Rehabilitation of slum dwellers – Whether developer delayed
the construction of the scheme – Entitlement to relief – Held:
Developer never earnestly pursued the authorities for approval of
the plans because it did not have consent/agreements of 70% slum
dwellers – It sought waiver of the requirement of obtaining 70%
consent from the slum dwellers – Furthermore, only a portion of
plot was covered by the CRZ Notification and the developer not
prevented from raising construction on that portion of the land which
was not affected by the CRZ Notification – Finding given by SRA
that developer was responsible for the delay, based on appreciation
of material on record and cannot said to be perverse – Though
there may have been a few stop orders and a few occasions when
the developer may not have been able to raise the construction but,
by and large, developer was itself guilty of delaying the construction
for no reason – Thus, developer rightly held responsible for the
delay in implementation of the rehabilitation scheme.
Rehabilitation of slum dwellers – Developer entered into
rehabilitation scheme for slum dwellers – Inordinate delay in
completion of the project – Developer, if entitled to continue with
the Scheme – Held: Developer not entitled to continue with the
rehabilitation Scheme – Developer cannot take the benefit of
technical
points to defeat the rights of the slum dwellers – On facts,
both equity and law against the developer – Slum dwellers dealt in
a highly inequitable manner – Law and the conditions of the letter
of intent and various letters issued by SRA clearly required the
developer to produce agreements with at least 70% of the slum
dwellers – However, developer failed to do so – Developers as a
legal entity was treating the slum dwellers only as a means of making
money, thus, not entitled to any relief.
Rehabilitation Scheme – Cancellation of slum rehabilitation
agreement in favour of appellant-developers – Entitlement of
respondent no.4(new developer) to continue with the rehabilitation
Scheme – Held: Respondent no. 4 had misled the members of the
Society in entering into an agreement with it by holding out a false
promise that they would be given much larger flats – Respondent
no.4 legally not entitled to make this offer – Also respondent no. 4
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failed to get the consent of 70% slum dwellers and Society had
terminated its agreement with the respondent no. 4 – Thus, consent
having been obtained by misrepresentation of facts being no consent,
respondent no. 4 not entitled to continue with the project and not
entitled to any relief.
Constitution of India – Arts. 142 and 136 – Order of this
Court requesting former judge of this Court to verify the consent of
the slum dwellers in praesenti – Held: Court was aware that the
slum dwellers were suffering due to the long protracted litigation
and was moved by the pathetic condition in which most of the slum
dwellers continued to reside – Court felt the need to find an innovative
solution – Thus, the order fell within the ambit of Art. 142 to do
complete justice between the parties.
Judicial propriety – Requirement – Judicial propriety and
discipline requires that a Coordinate Bench must respect the order
of an earlier Bench – Even a larger Bench should not brush aside
the order passed by an earlier Bench even if it be a smaller Bench
unless the order is in issue before the larger Bench.
Judgment/Order – Interpretation – Held: Judicial order or
judgment has to be read as a whole and a single line or phrase
cannot be read out of context – Judgment is not to be interpreted
like a statute.
Tender – Bid – Competitive bidding – Rehabilitation scheme
of slum dwellers by developers – Inter se bidding between the
builders – Held: High Court rightly held that consent
once given
by the slum dwellers should not be permitted to be withdrawn and
there should be no inter se bidding between the builders –
Competitive bidding can lead to a very unholy practice of developers
trying to buy out the slum dwellers, which is also not in the interest
of the rehabilitation scheme.
Disposing of the appeal subject to compliance, the Court
HELD: 1.1 Both the contesting developers, the appellant
and respondent no. 4 are not entitled to any relief. It is the duty
to ensure that these owners who also happen to be slum dwellers
do not live in sub-human conditions for eternity. The following
conclusions are arrived at:
SUSME BUILDERS PVT. LTD. v. CEO, SLUM
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(i) That the order dated 27.03.2015 was passed in exercise
of jurisdiction vested in this Court under Article 142 of
the Constitution of India and is an order binding on the
parties;
(ii) That vide order dated 27.03.2015, this Court wanted
Justice B.N. Srikrishna to find out whether appellant or
respondent no. 4 had the consent of 70% slum dwellers;
(iii) That, as a result of the Report submitted by Justice
B.N. Srikrishna both the appellant and respondent no. 4
have failed to show that they enjoyed support of the 70%
of the slum dwellers;
(iv) That, in the peculiar facts and circumstances of this
case, where the owners and occupiers are virtually one,
the SRA had the jurisdiction to invoke the provisions of
Section 13(2) of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act,
1971 to revoke and set aside the right to develop and
cancel the letter of intent granted in favour of the
appellant. Even if it be assumed that s. 13(2) is not
applicable, then the SRA could have exercised the power
under Section 3A (3)(c) and (d);
(v) That the notice issued by the SRA to the appellant was
only on the ground of delay and the issue of obtaining
70% consent was not specifically raised in the notice.
Consequently, the order dated 24.02.2012 passed by the
SRA in so far as it rejects the case of the appellant for
lack of 70% consent is beyond the terms of the notice.
Therefore, this part of the judgment of the
High Court,
holding that the appellant was aware about this
allegation, is not accepted and is set aside;
(vi) That, the appellant was responsible for the delay in
implementation of the Scheme and construction of the
buildings and, therefore, the SRA was justified in setting
aside the appointment of the appellant as developer and
impliedly cancelling the letter of intent issued in its favour
vide order dated 24.02.2012;
(vii) That, the appellant has failed to show that it has the
consent/agreements of 70% of the slum dwellers and,
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therefore, is not entitled to any relief from this Court;
and
(viii) That respondent no. 4 obtained the consent of the
members of the Society by holding out a false promise of
a larger flat and, therefore, the agreements entered into
by respondent no. 4 with the slum dwellers are legally
unconscionable and not enforceable and, as such,
respondent no. 4 is also not entitled to continue with
the Scheme. [Paras 84, 85][57-B-H; 58-A-C]
1.2 The Court is not only disappointed with the conduct of
the appellant, but also with the conduct of those persons who
were the office-bearers of the Society whichever faction they may
belong to. It is more than obvious that the two rival developers
and the office-bearers of the Society were playing with the lives
of large number of slum dwellers. On examining the various
agreements entered into by the appellant with the Society, it is
found that though the members may have been entitled to larger
flat in each subsequent agreement but, in fact, it was the builder,
who was the biggest gainer as the advantage of higher FSI was
cornered by the builder. Only a small portion of this advantage
was being transferred to the slum dwellers and a large portion
was being retained by the builder. Furthermore, it is the occupiers
who, through the Society, are also the owners of the land. In
addition to the flats which they would be entitled to as slum
dwellers or occupiers or encroachers of land, they should have
been given some benefits as
owners of the land. When a slum,
owned by any authority or person, is handed over to the developer,
in addition to rehabilitating the slum dwellers, the developer also
has to compensate the owner. It is these 800 plus slum dwellers,
who own this 23018.50 sq. mtrs. of land, which would be valuing
thousands of crores of rupees and, therefore, there is no reason
why the slum dwellers, who also happen to be the owners of the
land, should also not be compensated for the price of the
land.[Para 86][58-D-H]
1.3 This is a case where the earlier Bench of this Court
had invoked its power under Article 142 of the Constitution of
India and it is a fit case for invocation of this Court’s jurisdiction
under Article 142. Hence, in exercise of this Court’s power under
Article 142, the SRA is directed to invite letters of interest from
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renowned builders/developers, who have the capacity and
experience to take up such a large project by issuing
advertisements. The successful developer should undertake to
complete the rehabilitation of part of the project to rehabilitate
all eligible occupiers/slum dwellers within a period of two years
from the date of sanction of the plan. The successful bidder must
give a bank guarantee of Rs. 200,00,00,000/- (Rupees Two
Hundred crores only) to ensure that it does not violate the terms
and conditions of the rehabilitation scheme. In case of violation
of the terms and conditions of the rehabilitation scheme without
reasonable cause, the SRA would be entitled to invoke the bank
guarantee, after giving notice to the developer. [Para 87][59-A,
B-C; 60-A-C]
The scope, ambit and effect of the order of this Court dated
27.03.2015:
2.1 Judicial propriety and discipline requires that a
Coordinate Bench must respect the order of an earlier Bench.
In fact, even a larger Bench should not brush aside the order
passed by an earlier Bench even if it be a smaller Bench unless
the order is in issue before the larger Bench. The order in
question holds the field. It has not been recalled and prayer for
modification in I.A. No. 10 was rejected on 13.05.2015. Therefore,
the order of this Court dated 27.03.2015 holds the field and the
Court bound by the same. At the same time, it is the duty to
decipher what was the intention of the Bench
while passing the
order and to find out what the Court intended to do by the said
order. [Para 34][36-C-D]
2.2 The Court was aware that the slum dwellers were
suffering due to the long protracted litigation. Therefore, the Court
felt the need to find an innovative solution. In the order, the Court
noted the factual aspects and again emphasized the need to find a
solution to resolve the various issues. The Court was obviously
moved by the pathetic condition in which most of the slum
dwellers continued to reside. It is thus, apparent that this is an
order falling within the ambit of Article 142 to do complete justice
between the parties. [Para 35][36-E-G]
2.3 It is settled law that a judicial order or judgment has to
be read as a whole and a single line or phrase cannot be read out
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of context. A judgment is not to be interpreted like a statute. As
far as the order dated 27.03.2015 is concerned, the intention of
the Court, will have to be deduced from the entire order. The
phrase “ there should be appropriate verification of the consent of
the eligible slum dwellers in praesenti.” cannot be read in isolation.
This has to be read in the context of the rival contention of the
contesting parties that each one of them had the consent of more
than 70% of the slum dwellers. This Court was not oblivious of
the requirements of the Slum Act though it may not have explicitly
referred to them. It is obvious from the order dated 27.03.2015
that counsel for both the parties claimed that their respective
clients had the support of 70% of the slum dwellers. Obviously,
both of them could not be correct. This factual dispute could not
be decided in these proceedings. This was the dispute which was
referred for resolution to Justice B.N. Srikrishna. It is, thus, clear
that Justice B.N. Srikrishna had understood that he was to
ascertain whether 70% of the eligible slum dwellers are in favour
of the redevelopment scheme signed with the appellant or with
respondent no. 4. A holistic reading of the order admits of no
other meaning. The only dispute raised before this Court on
27.03.2015 was which of the builders had the support of the 70%
of the slum dwellers. Since this factual dispute could not be
decided in Court, Justice B.N. Srikrishna was requested to
do
this job. Admittedly, neither the appellant nor respondent no. 4
has received 70% support. [Paras 38, 39][37-E-G; 38-C-D]
2.4 The words ‘in praesenti’ only mean that the Court wanted
the verification of the consent of the eligible slum dwellers as on
date of passing of the order. ‘In praesenti’ cannot be read to mean
‘present and voting’. It only means eligible slum dwellers as on
27.03.2015. Justice B.N. Srikrishna has divided the slum dwellers
into four categories; 263 were the original slum dwellers, 318
were the legal heirs, 207 were those who had become members
by means of sale and transfer of shares and 79 voters were
disputed. During these entire proceedings not a single complaint
has been filed that an ineligible slum dweller was permitted to
vote or that an eligible slum dweller was not permitted to vote.
The procedure followed by Justice B.N. Srikrishna is absolutely
correct and no error can be found in this regard. Therefore, there
is no hesitation in accepting the report submitted by Justice B.N.
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Srikrishna. [Para 40][38-D-G]
2.5 Out of 867 total eligible voters only 651 voted and the
appellant secured 423 votes, which would mean 64.98% or
roughly 65% of the votes polled. But, if the percentage is
calculated from the total number of slum dwellers-867 then the
percentage is 48.78%, which is less than 50%. In case 79 votes
are excluded which are doubtful, then the total eligible voters
would be 788 and the appellant secured 413 i.e. 52.41% of the
total eligible slum dwellers, well below the magic figure of 70%.
It cannot be said that to put an end to all litigation, the Court only
wanted to find out who had the majority. That, is not the essence
of the order dated 27.03.2015. It is true that 70% is not reflected
in the direction given in the order but the directions have to be
understood in view of the intention of the Court, which was to
find out that which of the builders had the support of 70% of the
slum dwellers. Unfortunately, both the developers do not enjoy
70% support, though it is true that the appellant has the support
of more than twice the number of slum dwellers as compared to
respondent no. 4. Since neither the appellant nor respondent No.
4 has the support of 70% slum dwellers, the order dt 27.03.2015
cannot be taken to its logical conclusion. [Para 41][38-G-H; 39-
A-C]
The scope of powers under section 13(2) of the Slum Act:
3.1 Under Section 13(2), the SRA has the authority to take
action and
hand over the development of land to some other
recognized agency under three circumstances: (i) When there is
contravention of the plans duly approved; (ii) When there is
contravention of any restriction or condition imposed under sub-
section 10 of Section 12 of the Slum Act; and (iii) When the
development has not taken place within time, if any, specified.
The requirement to complete the development within time may
be there in the letter of intent issued by the SRA or may be in the
agreement entered into between the owner/developer with the
slum dwellers. Such condition, if violated, would attract the
provisions of Section 13(2) of the Slum Act. Over and above that,
when a clearance order is passed, then in terms of sub-section
10 of Section 12, the competent authority can include a condition
with regard to the time within which the development should be
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completed and in that case also Section 13(2) would be attracted.
It cannot be said that in case of delay, the condition that is violated
must be laid down under Section 12(10) of the Slum Act. [Paras
44-45][40-D-G]
3.2 There may be cases where the slum dwellers do not
offer any resistance and willingly consent to move into transit
accommodation provided by the owner/developer. Therefore, the
conditions laid down under Section 12(10) will come into play
only when there is a clearance order, but in case there is no
clearance order, then under Section 13(2), the SRA would be
empowered to take action when there is violation of any plan or
when there is violation of any condition relating to developing
the project within time. The time limit can, some time, be provided
in the letter of intent, in the agreement or even in the regulations.
[Para 46][40-G-H; 41-A-B]
3.3 Normally under Section 13(2) of the Slum Act, action by
the SRA has to be taken against the owner. This is a unique case
where the slum dwellers are the members of the owner-Society.
The Society, in turn, has given power of attorney to the builder.
The builder virtually has two roles-one as developer and the other
as power of attorney holder of the owner. Both are closely
interlinked and inextricably mixed with each other. Therefore,
though normally it would be accepted that under Section 13(2)
action can only be taken against the owner, in the instant case, it
cannot be accepted in its totality.
Even the SRA, in its order, has
itself noted that since the Society is the owner of the plot of land,
it is empowered and within its right to terminate the agreement
executed with the said developer for breaches committed by the
developer. It has, however, held that a private dispute between
the Society and the developer cannot prevent the SRA from
discharging its obligations. The SRA agreed that appellant had
not completed the project within time. It took action under Section
13(2) of the Slum Act. The action taken by the SRA is to remove
appellant as developer which amounts to cancelling the letter of
intent issued in favour of appellant. Otherwise, there would be
an anomalous situation where the Society would have terminated
its contract with appellant but the letter of intent issued by the
SRA would continue to hold the field and it would be entitled to
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develop the land. The Society approached the SRA, in fact, asking
it to take action against the developer. Since the SRA is the
authority which issued the letter of intent, it will definitely have
the power to cancel the letter of intent. In the peculiar facts and
circumstances of the case where the slum dwellers are virtually
the owners of the land as members of the owner Society, the SRA
had the power under Section 13(2) to issue the order dated
24.02.2012 setting aside the appointment of the appellant as
developer. [Paras 47-49][41-B-H]
Whether the SRA has any other power to remove the developer:
4.1 Since it was the SRA which issued this letter of intent,
it necessarily must have the power to cancel the same. A bare
reading of clause (c) and (d) of sub-section (3) of Section 3A of
the Slum Act shows that in terms of the provisons, the SRA not
only has the power, but it is duty bound to get the slum
rehabilitation scheme implemented and to do all such other acts
and things as will be necessary for achieving the object of
rehabilitation of slums. In the instant case, the SRA was faced
with a situation where the slum dwellers were suffering for more
than 25 years and, therefore, the action taken by SRA to remove
the appellant for the unjustified delay was totally justified. [Paras
50, 51][42-B, F-G]
4.2 A perusal of the various provisions of the Slum Act would
show that normally in a case falling under the Slum Act,
it is the
owner of the land, whether it be the Government, a statutory
authority or a private person, who will be interested in the
development work. Normally, the occupiers will be encroachers
of slum land. Therefore, there will be a conflict of interest between
the occupiers and the owner. The owner, in turn, will always engage
a developer/builder to carry out the development work. In case
the owner gives a power of attorney to the developer, as in the
instant case, the developer now has two identities-(i) the power
of attorney holder of the owner and (ii) the developer. As far as
the instant case is concerned, the Society is made up of the
members who are occupiers and this Society has given power of
attorney to the developer. Therefore, the developer is actually
having a dual role of owner and developer. Both the letters of
intent have been issued in favour of the Society, developer and
the architects of the developer. The developer could not have
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carried out the development work on the basis of its agreement
with the Society. It needed the permission of the SRA. Therefore,
SRA can obviously revoke such permission.[Para 52][42-G-H;
43-A-C]
Whether in the notice issued under section 13(2) the issue of
70% consent was raised:
5. When a notice is issued to a party it must be clearly told
what are the allegations which it must meet. The notice should
be clear and unambiguous. There was no allegation in the notice(s)
that the right to develop granted in favour of the appellant was
liable to be revoked because it had not obtained consent of 70%
of the slum dwellers. The reference to Regulation 33(10) also
did not specifically raise the issue of 70% consent. The appellant
was never put to notice by the SRA that its right to develop the
land may be cancelled because of not having consent of 70%
slum dwellers. It was confined to the issue of delay. However,
while considering the issue of delay, the SRA was justified in
making reference to the various communications made by the
developer and its architects seeking time to obtain consent of
70% slum dwellers. [Paras 54-56][43-F-H; 44-A]
Whether support of 70% of the slum dwellers is mandatory and
whether slum dwellers are entitled to withdraw their consent:
6.1 A bare reading of Development Control Regulations of
1991 makes it absolutely clear that under the said DCR at least
70% of the slum dwellers/occupiers have to get together and
form a Society for the
purpose of slum re-development scheme.
Therefore, unless 70% slum dwellers agree to form a Society,
the provisions of the Slum Act could not be invoked to frame an
SRD scheme. Under the amended DCR of 1997, there is a change
that now the developer/owner was required to enter into
agreements with 70% of the slum dwellers and unless 70% of
the slum dwellers agree, the slum rehabilitation scheme cannot
be entertained. The magic figure remains at 70%. The idea behind
it is that more than 2/3 of the occupiers must agree for the
rehabilitation scheme. Even if the remaining minority slum
dwellers do not agree to be part of the scheme, the owner/
developer is duty bound to make adequate arrangements for their
rehabilitation under the scheme and they can join the scheme,
and can take benefit of the scheme even at any later stage.
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Therefore, 70% consent of the occupiers is mandatory. [Paras
61-62][46-D-F]
6.2 The circulars issued by the SRA, specially Circular
dated 21.08.1997, 19.09.1998 and Circular No. 27 permit
conversion of old approved SRD Scheme to new SRA Scheme
under the provisions of Clause No.10.1 of Appendix IV of DCR.
In the instant case, the scheme was initiated under the old DCR
of 1991. There is no manner of doubt that the Society was formed
by more than 90% of the occupiers. The migration was done to
the Scheme of 1997. Since there is no clear cut provision in the
1997 DCR as to how this migration has to be done, it is presumed
that while migrating, it was not necessary for the appellant to
have individual agreements with 70% of the slum dwellers.
However, it was the appellant who applied for migration to the
new Scheme, obviously because the new Scheme gave greater
benefits to the developer. When migration was done, it was on
the clear cut understanding that after the migration, the provisions
of amended DCR would be applicable. When this application of
the Society and the appellant for conversion was taken up, it was
noticed that one of the main objections was that there were no
individual agreements with the slum dwellers. Later, the appellant
submitted agreements of 450 of the eligible slum dwellers and
stated in writing that the remaining to make up 70% would be
submitted before start of Phase II of the construction. Fresh
letter
of intent dated 27.01.1998, in terms of the new DCR, was issued
in favour of the appellant and approved in accordance with Clause
No.33(10) and Appendix IV of amended DCR subject to certain
conditions. [Paras 63-65][46-G-H; 47-A-E]
6.3 In a migration from 1991 Scheme to 1997 Scheme,
obviously 70% individual agreements cannot be obtained prior
to submission of the Scheme. However, while granting migration,
the SRA can lay down conditions and such conditions can also be
laid down during the course of the Scheme. From the facts
narrated, it is more than amply clear that the SRA envisaged, and
appellant clearly understood, that it had to obtain consent of 70%
of the slum dwellers. Even in the resolutions of the Society
authorizing the appellant to take up the development work
entered after DCRs were amended it was clearly mentioned that
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amended Regulation 33(10) would govern the agreements. The
appellant cannot now say that it is not governed by the amended
regulations. Even the letters issued by the architects of the
appellant clearly indicate that they would make up the balance to
achieve 70% agreements. The main dispute is by when this should
have been done. Initially, time was given till commencement
certificate of the sale building was issued. This was a meaningless
condition because if this condition was to be applied after the
rehabilitation buildings had been built, then having the consent
of the slum dwellers would be an exercise in futility because by
then they would have been thrown out of their dwellings. At best,
it can be understood to mean commencement of the rehabilitation
buildings. The slum dwellers are interested with the rehabilitation
buildings and not with the free sale buildings. Later on, when
applying for permission to trade their development rights, the
appellant clearly understood and undertook that it would furnish
the consent forms of 70% of the slum dwellers. The architects of
the appellant, in fact, deposited 580 individual agreements but
out of these, only 372 were found to be correct. Thereafter, the
appellant took a U-turn and, relying upon the judgment of the
High Court took a stand that it was not required to submit
agreements with 70% slum dwellers, which was not legally
tenable. The appellant cannot be permitted to back out of its
commitments. The
agreements with 70% slum dwellers should
have been provided within a reasonable time and, though almost
20 years have elapsed since the second letter of intent was granted
in favour of the appellants, it has till date failed to submit the
agreements. This only dealt with for showing that the appellant
delayed the project because it failed to get consent from 70% of
the occupiers.[Para 70][49-G-H; 50-A-E]
Whether the appellant delayed the construction of the scheme,
and is, therefore, not entitled to any relief:
7.1 Both SRA and the High Court came to the concurrent
finding of fact that the appellant was responsible for the delay in
implementation of the Scheme. It is more than obvious from the
facts narrated that the appellant never earnestly pursued the
authorities for approval of the plans and the reason is not far to
seek-the reason being the appellant did not have consent/
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agreements of 70% slum dwellers. It is more than obvious that
the appellant was buying time on one excuse or the other. On
18.01.2000, the SRA called upon the appellant to submit revised
plans in respect of rehabilitation buildings within 10 days of the
receipt of the letter. In reply thereto, the architects of the
appellant sent a letter on 27.01.2000 expressing their intention
to start Phase II of the project but, at the same time, sought
waiver of the requirement of obtaining 70% consent from the
slum dwellers. This clearly shows that the appellant was using
this excuse to delay the construction. On 05.01.2001, the appellant
addressed a letter to the SRA praying that the plan submitted in
1997 be approved. Thereafter, the SRA did not consider
appellant’s proposal since, the proposal was affected by the
Coastal Regulations Zone (CRZ) Notification. [Para 71][50-G;
51-G-H; 52-A-B]
7.2 On 07.07.2001, the appellant and the Society filed Writ
Petition in the High Court seeking removal of the remarks which
indicated that part of the property of the Society was being affected
by the CRZ Notification. A perusal of the writ petition and the
other documents clearly shows that the entire property was not
affected by the CRZ Notification, but only a part thereof. On
07.08.2002, in the petition filed by the appellant and the Society,
the High Court passed an order. It is apparent from the said order
that stay was granted not to
raise construction in the area which
is covered by the CRZ Notification. No material has been brought
on record to show that the entire plot was covered by the CRZ
Notification and it is amply clear that only a portion of the plot
was covered by the CRZ Notification and nothing prevented the
appellant from raising construction on that portion of the land
which was not affected by the CRZ Notification. However, for
reasons known only to the appellant, it withdrew the Writ Petition
only on 07.04.2008. It was only thereafter that respondent no. 3-
Society passed a resolution on 29.03.2009, terminating the
development agreement with the appellant. Even after that, the
SRA on 15.06.2009 issued a letter that the Society’s request for
change of developer need not be considered. On 14.09.2009,
the Society entered into agreement with respondent no. 4.
Thereafter, civil litigation started. It has also been urged on behalf
of the appellant that, in the meantime, a one man Commission
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was constituted and due to the constitution of this Commission,
work was affected. [Paras 72-73][52-B-C, F, G; 53-C-D]
7.3 The finding given by the SRA that the appellant was
responsible for the delay, is a finding based on appreciation of
material on record. It cannot be said to be a perverse finding. It
is a finding of fact and, therefore, the High Court was justified in
coming to the conclusion that it could not set aside this finding of
fact in writ jurisdiction. Though there may have been a few stop
orders and a few occasions when the appellant may not have been
able to raise the construction but, by and large, the appellant was
itself guilty of delaying the construction for no reason at all.
Therefore, the appellant was rightly held responsible for the delay
in implementation of the rehabilitation scheme and, as such, there
is no error in the impugned order. [Para 74][53-E-G]
Whether the appellant is entitled to continue with the scheme:
8.1 The appellant is not entitled to continue with the
rehabilitation Scheme on account of the fact that it has been
responsible for the delay in completion of the project for an
inordinately long time. The appellant has not been able to explain
the delay. The slum dwellers are dealt with and the appellant
cannot take the benefit of technical points to defeat the rights of
the slum dwellers. The claim of the appellant that it had the support
of 70% slum dwellers, was contested before Justice B.N.
Srikrishna and his
findings clearly reveal that the appellant does
not have the support of 70% of the slum dwellers. Since the notice
by the SRA to the appellant did not make any specific allegation
with regard to the appellant not having 70% consent, that portion
of the order of the SRA, setting aside the right to develop the
land on the ground of lack of 70% consent, may have been beyond
the scope of the notice. However, this issue was argued before
the HPC and the High Court and on rival claims being made, this
Court vide order dated 27.03.2015, referred this dispute to
Justice B.N. Srikrishna who submitted his report. [Para 75][54-
A-C]
8.2 In writ proceedings, the petitioner must show that both
in law and in equity it is entitled to relief. In this case, both equity
and law are against the appellant. It has dealt with slum dwellers
in a highly inequitable manner. The law and the conditions of the
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letter of intent as well as the conditions imposed in the various
letters issued by the SRA clearly required the appellant to
produce agreements with at least 70% of the slum dwellers. This,
the appellant has miserably failed to do. Though the appellant
may have remained the same entity in name, there have been, at
least, three changes in the promoters of the appellant and these
transfers of shareholdings obviously must have been done for
consideration. It is more than obvious that the appellant as a
legal entity, was treating the slum dwellers only as a means of
making money and, therefore, the appellant is not entitled to any
relief. [Para 76][54-D-F]
In case the appellant is not entitled to continue with the scheme
whether respondent no. 4 is entitled to continue with the
rehabilitation scheme:
9.1 Under the terms of the agreement, respondent No. 4
agreed to provide permanent alternative accommodation of 344
sq. ft./419 sq. ft. carpet area to the slum dwellers. Obviously, the
slum dwellers, who had been waiting for 23 long years for a flat
admeasuring 269 sq. ft. would happily accept the offer of a flat of
344/419 sq. ft. From the communications addressed by the SRA,
it is obvious that the respondent was legally not entitled to make
this offer. It is submitted that respondent no. 4 was willing to
sacrifice its free sale area to give a larger flat. However, he failed
to submit even one document to show that the SRA
had agreed
to this proposal of the respondent no. 4. In fact, the communication
sent by SRA clearly shows that the proposal was not accepted. It
is, therefore, obvious that respondent no. 4 had hoodwinked the
members of the Society in entering into an agreement with it by
holding out a false promise that they would be given much larger
flats. As such, the request of respondent no. 4 to be permitted to
continue with the project cannot accepted. The Society has
terminated its agreement with the respondent no. 4. In the voting
conducted by Justice B.N. Srikrishna, the respondent no. 4 failed
to get the consent of 70% slum dwellers and, in fact, it has got
less than 1/2 of the votes, as compared to the appellant, and its
support is even less than 30%. [Paras 78-79][55-B-F]
9.3 It is accepted that agreements once entered into and
the consent once given, cannot be withdrawn. However, if the
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consent is obtained by misrepresentation of facts, then that is no
consent. The position stands clarified that the slum dwellers would
get flats of 269 sq. ft. area only, respondent no. 4 has failed to get
support of even 30% of the slum dwellers. In view thereof,
respondent no 4 is not entitled to continue with the project and
is not entitled to any relief. [Paras 80-81][55-G-H; 56-A]
Law laid down by the High Court:
10.1 The views of the High Court that consent once given
by the slum dwellers should not be permitted to be withdrawn;
that voting inter se developers should not be done; that in case
voting is done, then this will lead to developers trying to buy out
the slum dwellers and then no rehabilitation scheme would attain
fruition, is accepted. Slum dwellers normally belong to the
poorest section of the society. They can be tempted to change
their mind. In the instant case itself, the slum dwellers shifted
from the appellant to respondent no. 4. for two reasons-(i)
appellant had delayed the project and (ii) respondent no. 4 made
a promise that it would give a flat of 344 sq. ft./419 sq. ft. area,
which promise was obviously a false promise. The view of the
High Court that consent once given should not be permitted to
be withdrawn, is absolutely the right view. Otherwise, a person
may give consent one day, withdraw it the second day and review
the consent the third day, leaving the Scheme in a perpetual state
of flux. For the said reasons, the view
of the High Court that
there should be no inter se bidding between the builders is
accepted. The proper course is that the scheme of the developer
who is the first choice, should be placed before the slum dwellers
and if it gets 70% votes, then the Scheme can be considered, but
if it does not get 70% consent, then obviously, the second
developer can be considered. However, competitive bidding
should not be done because that can lead to a very unholy practice
of developers trying to buy out the slum dwellers, which is also
not in the interest of the rehabilitation scheme.[Para 82][56-B-
F]
10.2 As far as the instant case is concerned, this Court while
passing the order dated 27.03.2015, made a departure because
of the peculiar facts of this case. The instant case because of its
own unique facts cannot be treated as a precedent in other cases
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with regard to action taken in this case. [Para 83][56-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 18121
of 2017.
From the Judgment and Order dated 11.06.2014 of the High Court
of Judicature at Bombay in Writ Petition No. 5 of 2013.
 F. S. Nariman, Mukul Rohatgi, Darius Khambatta, Sr. Advs.,
Subhash Sharma, Kunal Vajani, Nikhil Rohatgi, Shashank Khurana, Ankur
Chawla, Sunil Mittal, Ms. Anu Tiwari, Suneet Tyagi, Ms. Hillaur Vaswani,
Ms. Dorcas Jones, R.K. Mohit Gupta, Aman Gandhi, Ms. Pallavi Langar,
Manu Sahni, Advs.  for the Appellant.
Atmaram N.S. Nadkarni, Tushar Mehta, ASGs, Gopal
Subramanium, Neeraj Kishan Kaul, Raju Ramchandran, Kapil Sibal, Sr.
Advs., Tapesh Kumar Singh, Aditya Pratap Singh, Mohd. Waquas, Kunal
Verma, Ms. Yugandhara Pawar Jha, Prateek Chaddha, Pawan Bhushan,
Satya Mitra, Aman Varma, Ms. Smriti Churiwal, Kush Chaturvedi, Uday
B. Dube, Santosh Rebello, Ms. Nivedita Nair, Ms. Sneha Prabhu
Tendulkar, Abhishek Bharadwaj, Gautam Sharma, Sanjay Kharde,
Samrat Shinde, Prashant Chaudhari, Sunil Kumar Verma, Amit Sharma,
Advs. for the Respondents.
The Judgment of the Court was delivered by
DEEPAK GUPTA, J. 1.A dream turned into a nightmare.  The
dream of over 800 slum dwellers who also happen to be owners of the
land of having a permanent roof over their head has not turned into
reality for more than three decades. The slum dwellers are embroiled in
various litigations. There are many powerful
persons involved, be they
builders, promoters and even those slum dwellers who have managed to
become office bearers of the society of slum dwellers.  Learned senior
counsel appearing for the parties produced before us graphic photographs
showing the sordid conditions in which these slum dwellers continue to
reside despite having entered into an agreement with the appellant more
than 30 years back to develop the slums and rehabilitate the slum dwellers
in proper accommodation.
THE FACTUAL BACKGROUND:
2. This case has a long and chequered history and has some
features which are unique to it.  The land in question measuring 23018.50
square meters is situated in the heart of Mumbai i.e. Santacruz (East),
Mumbai. This land earlier belonged to the Ardeshir Cursetji Pestonji
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Wadia Trust, hereinafter referred to as ‘the Trust’.  A slum had developed
over the said land. The slum dwellers formed an Association known as
‘the Shivaji Nagar Residents’ Association.  It appears that the Trust had
initiated some litigation for eviction of the slum dwellers. On 19.03.1980
a consent decree appears to have been passed in this litigation whereby
the Trust agreed to transfer the entire land to the slum dwellers in case
the slum dwellers formed a society. The slum dwellers thereafter
constituted a society in the name and style of Om Namo Sujlam Suflam
Co-operative Housing Society, Respondent No. 3 herein (hereinafter
referred to as ‘the Society’).  About 800 slum dwellers formed the Society,
which was registered under the Maharashtra Co-operative Societies
Act, 1960. In furtherance to the decree, the Trust executed a deed of
transfer in favour of the Society (Respondent No. 3 herein), transferring
the entire land to the Society on 20.02.1985. Thus, this is a unique case
where the slum is owned by the Society of which the slum dwellers
themselves are the members.  The slum dwellers are, therefore, also the
owners of the land in question.
3. It would be pertinent to mention that the land in question was
declared to be a slum under Section 4 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter
referred to as ‘the Slum Act’) firstly on 16.08.1977 and again on
07.12.1983.
4. On 15.09.1985, a General Body
Meeting of the Society was
held and in this meeting it was decided to appoint M/s. Susme Builders
Private Limited, hereinafter referred to as ‘Susme’ (the appellant herein),
to develop the property. Thereafter, a development agreement was
entered into between the Society and Susme on 27.02.1986. It was
agreed that there were about 800 occupants on the land in question and
each one of the slum dwellers would be provided accommodation
measuring 240 sq. ft. built up area with carpet area of 190 sq. ft. The
agreement also contained a condition that the slum dwellers could
purchase additional area of 60 or 110 sq. ft. by paying for the extra area
at the rate of Rs. 350 per sq. ft.. The project was to be completed within
a period of 5 years.  Consequent to the agreement, the Society executed
a power of attorney in favour of the nominee of Susme on 07.04.1986
virtually empowering it to act on behalf of the Society.
5. Admittedly, no work was done as per the terms of the agreement
and nothing was constructed during this period. The stand of Susme is
that during the period some public interest litigations were filed, hence
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the plot of land was not developed.
6. Thereafter, the Development Control Regulations for Greater
Bombay, 1991 under the Maharashtra Regional & Town Planning Act,
1966 (for short ‘DCR’) were enforced.  As per these DCRs, each one
of the slum dwellers was entitled to a tenement of 180 sq. ft. free of
cost.  Therefore, the general body of the Society met on 30.10.1994 and
passed a resolution that the earlier agreement be modified and a tenement
of 225 sq. ft. carpet area be given to each slum dweller.  Thereafter,
letter of intent in terms of the DCR was issued in favour of the Society
and Susme on 05.04.1995.  As per this letter of intent, each slum dweller
was to be alloted 225 sq. ft. area.  Susme was also to comply with the
guidelines laid down for redevelopment of notified slums.  It was made
clear that first the existing slum dwellers were to be rehabilitated and
only thereafter, free sale could be done in the open market.  Susme was
specifically directed to carry out the activities as per the activity chart
and in terms of Regulation No. 33(10) of the DCR within five years
from the date of issue of the commencement certificate.  Thereafter,
another agreement was entered between the Society and Susme on
10.07.1995 and in terms of this agreement each slum dweller was entitled
for a tenement of 225 sq. ft.; 180 sq. ft. free of cost and 45 sq. ft. at the
cost of Rs. 14,350/-.
7. In terms of the letter of intent dated
05.04.1995 and the
agreement, Susme was to construct 12 buildings of ground plus seven
floors for re-housing the slum dwellers and project affected persons on
about 11,000 sq. mtrs. of land and remaining 12,497 sq. mtrs. was to be
developed for the purpose of free sale.  During the pendency of this
agreement, Susme constructed two buildings in which 128 slum dwellers
were rehabilitated.  This was the only progress which took place.
8. The DCR was amended in 1997.  Under the new DCR, each
slum dweller was entitled to a flat having carpet area of 225 sq. ft..
Naturally, the slum dwellers wanted, that as per the amended DCR,
which was more beneficial to them, they should be granted a larger flat
having carpet area of 225 sq. ft..  Therefore, another meeting of general
body was held on 10.08.1997.  In this meeting it was resolved that fresh
negotiations be held with Susme and that Susme should carry out further
development under the amended Regulation 33(10) and that 70%
residents should consent for the redevelopment. Thereafter, another
supplementary agreement was entered into between the Society and
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Susme on 07.01.1998.  In this agreement, it was stated that there are
867 occupants, out of which 825 are occupying residential premises, 27
are occupying shops and 15 are occupying industrial units.  This agreement
also provided that tenements to be provided to each of the residential
occupants would have a carpet area of 225 sq. ft..  Relevant portion of
the agreement reads as follows:
“The parties are aware that under the Slum Redevelopment
Scheme and the Development Control Regulations each slum
dweller is entitled to, a tenement admeasuring 225 sq. ft. carpet
area.  As regards 27 shops, the shops members shall be entitled to
get such area as they are entitled under Sec. 23(10) of D.C.
Regulations 1991 amended from time to time.  As regards 15
Industrial Units it is agreed that the Developer shall negotiate
with them directly for developing the area occupied by them and
the society agrees to sign and execute such papers and writings
required by the Developer for that purpose.”
Clause 26 of this agreement provided that the plans shall be
submitted by the developer to the Slum Redevelopment Authority (for
short ‘the SRA’)  according to Regulation 33(10) of DCR, 1991 as
amended from time to time.  This agreement was treated to be a
supplementary agreement to the earlier agreement.
9. Susme, on behalf of the Society, also moved the SRA  for
permission to convert the old SRD Scheme into a new slum rehabilitation
scheme.  The SRA granted letter of intent on
27.01.1998 and approval
was granted for conversion of the scheme.  Clause 19 of the letter of
intent provided that Susme would submit the agreements with photographs
of wife and husband in respect of all the eligible slum dwellers before
issue of commencement certificate for sale building, or three months as
agreed by the developer, whichever is earlier.
10. One writ petition was filed by the Shivaji Nagar Residents’
Association being Writ Petition No. 1301 of 1999 challenging the sanction
by the SRA in favour of Susme on the ground that Susme had not obtained
consent of 70% of the slum dwellers.  The said writ petition was dismissed
on 13.12.1999.  The relevant portion of the Judgment reads as follows:-
“We have heard learned counsel appearing for the parties. We do
not find any substance in the contentions raised by the petitioners.
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It is required to be noted that some 109 slum dwellers filed Writ
Petition No. 497 of 1997 raising identical challenge to the scheme
and the said petition came to be withdrawn unconditionally on
10th July, 1997.  Thereafter, as indicated earlier, two new buildings
were constructed and the eligible slum dwellers were put in
possession of their respective tenements.  Under the 1997 scheme
the builder is required to enter into agreement with individual
members and accordingly 582 agreements have already been
signed between the parties.  There is also no merit in the contention
of the petitioners that consent of 70% of the Slum dwellers was
required under the 1991 scheme.  On perusal of the said scheme
it is clearly seen that consent of 70% of the slum dwellers was
not required and what was contemplated was that if 70% of the
Slum dwellers join the society, which is interested in the
rehabilitation of the slum dwellers, then such society would be
eligible to apply for sanction of the same under DCR 33(10).  It is
not disputed before us that practically all the slum dwellers have
been enrolled as members of the society and, therefore, it is not
possible to hold that the requirement of 1991 scheme was not
complied with.  It is also pertinent to note that the proceedings of
the general body meeting dated 13th October, 1994 were not
challenged by the petitioners or any other slum dwellers by
adopting appropriate remedy.
Indeed, the general body meeting
had unanimously, resolved to modify the agreement in terms of
the 1991 scheme and it is too late to challenge the resolution for
the first time by way of the present petition which was filed in
1999.  As regards the, 1997 scheme there is a Specific provision
for conversion, of the old scheme into a new scheme and
accordingly the proposal for conversion was accepted by the
authorities and in pursuance of the acceptance, two new buildings
have been constructed at an estimated cost of Rs. 5 crores.  In
our opinion, this petition suffers from gross delay and laches.  It is
clearly seen that the petitioners were aware of the sanction granted
to the society under the 1991 scheme as well as the 1997 scheme.
The construction on the property began in 1996 and two buildings
have already been constructed.  Under the circumstances, we do
not find any reason to interfere in writ jurisdiction under Article
226 of the Constitution.”
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11. After Susme had completed 80% construction of the two
rehabilitation buildings, it applied for grant of Transfer of Development
Rights (for short ‘TDR’) in terms of the amended DCR and sold the
same.  Occupation certificate in respect of these two buildings was
issued on 03.11.1998. While granting permission it was observed on the
file as follows:-
 “Further, as per policy & DCR 33(10) it is necessary that
agreements with more than 70% slum dwellers as per new scheme
is required.  This was pointed out to CEO (SRA) during discussion,
when CEO (SRA) instructed to submit agreements with 70% slum
dwellers before second phase of T.D.R. Developers have informed
that out of 869 slum dwellers, they have submitted 450 agreements
to the office of S.R.A. (52%).”
12. On 07.07.1999, the architects of Susme, on instructions of
Susme, submitted 12 files containing 580 numbers of individual agreements
with members of the Society and undertook to file the remaining individual
agreements to make up 70% in due course of time.  On 18.01.2000,
Susme was again asked to furnish 70% individual agreements of eligible
slum dwellers.  Susme replied that in terms of judgment of the Bombay
High Court dated 13.12.1999, it was not required to file 70% individual
agreements.  Under the 1997 amended DCR, the developer was entitled
to a higher Floor Space Index (for short ‘the FSI’).  Therefore, Susme
submitted fresh plans for construction of 14 storey buildings plus ground
floor as
against the earlier plan submitted for seven storey buildings plus
ground floor buildings.  These plans were submitted sometime in the
year 1998.  However, it appears that the plans were not sanctioned and
Susme also did not pursue the matter earnestly with the authorities.
 13. Thereafter, on 13.02.2001, SRA informed Susme that the
request of Susme for approving amended plans for slum rehabilitation
scheme was not considered since the plot under reference was affected
by the Coastal Regulation Zone Notification (for short ‘the CRZ
Notification’).  Then Susme along with the Society filed Writ Petition
No. 2269 of 2001 in which the main prayer was for setting aside the
CRZ objection and it was also prayed that the petitioner be permitted to
complete the rehabilitation scheme.  In this petition, an interim order
was passed on 07.08.2002.
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14. The Government of Maharashtra during this period also
appointed a one man Commission headed by Shri Chandrashekhar Prabhu
to enquire into the complaints made with regard to the Society and the
manner in which the rehabilitation scheme was implemented.  Susme
and the Society jointly filed Writ Petition No. 1854 of 2004 against this
Commission.  It was alleged that the SRA had handed over all the files
to Shri Chandrashekhar Prabhu.  However, an order was passed on
01.03.2005 in the aforesaid writ petition in which a statement was made
on behalf of the SRA that all the concerned files had been retrieved
from Shri Prabhu and, therefore, the decision on the plans would be
taken within four weeks.  The Petition was accordingly disposed of.
15.  In 2005 itself it was clarified by the authorities that the property
in question does not fall in CRZ, Part I and only a portion of the property
falls in the CRZ, Part II.  The architects of Susme applied for approval
of construction of transit accommodation and this approval was granted
by the SRA on 18.08.2005.  This was, however, subject to the condition
that agreements with individual slum dwellers would be executed before
demolition of existing structure on the site.  Again complaints were made
by some people that transit camps were not constructed as per the
approved plans and the SRA issued stop work notice on 14.03.2006.
16. Another supplementary agreement was entered
into between
Susme and the Society on 05.09.2006.  This agreement had a clause
that the developer i.e. Susme was to deal only with the Managing
Committee of the Society.  This agreement also provided that any of the
Directors of Susme would be treated to be the attorneys of the Society.
This agreement also provided that Susme had offered to pay a sum of
Rs.75,000/- to each member of the Society having a structure not
exceeding 17.00 sq. mtrs. and Rs.1,00,000/- to each of those members
whose structure is of more than 17.00 sq. mtrs..  It is, however, not clear
whether this amount was actually paid or not.  An extraordinary general
body meeting of the Society was held on 22.02.2009.  In this meeting it
was pointed out that the members of the Society were not taken into
confidence by the Managing Committee while issuing power of attorney
in favour of the developer and changes to the detriment of the members
have been made by the Managing Committee in collusion with Susme.
It was also pointed out that agreements were entered into by the
Managing Committee with Susme behind the back of the members of
the Society.  The majority of the members demanded for cancellation of
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the agreement made with Susme.  It would not be out of place to mention
that the old Managing Committee had been voted out and a new Managing
Committee had taken over during this period. Thereafter, another general
body meeting was held on 29.03.2009 and the minutes of the meeting
dated 22.02.2009 were approved.  In this meeting it was also pointed out
that now Susme had offered to make new plans giving each slum dweller
a tenement of 269 sq. ft. carpet in terms of the new circular.  But, the
benefit of such bigger tenements was not made available to those who
were already housed in the rehabilitation buildings.  In effect, in this
meeting it was decided to terminate the agreement with Susme.
17. Susme, thereafter, invoked the arbitration clause in the
agreement and filed a petition for grant of interim relief under Section 9
of the Arbitration and Conciliation Act, 1996 on 29.10.2009.  The said
arbitration petition was withdrawn on 26.06.2012 with liberty to Susme
to file a suit.  However, the Society was restrained from implementing
the Resolution terminating the agreement till 13.07.2012.  Civil suit No.
1588 of 2012 was filed by Susme on 10.07.2012 in the High Court of
Bombay against the Society and M/s. J.G. Developers Private Limited.
18. The Society made a complaint to the SRA on 05.04.2009 that
Susme was not developing the project as per the agreement and necessary
action be taken by the SRA against Susme.  On 15.06.2009, a
communication was sent
to the Society on behalf of SRA that since
Susme had constructed two buildings and is in the process of construction
of transit camp, the developer Susme should be allowed to continue and
the request for change of developer was virtually rejected.  There is
some dispute as to whether this letter was signed by the Chief Executive
Officer or the Executive Engineer but that is not very material for the
decision of the case.  On 24.07.2009, the Society terminated the
agreement with Susme by a written notice.  The Society made another
complaint to the SRA and on 08.09.2009, the SRA issued notice to Susme
in terms of Section 13(2) of the Slum Act, but it appears, that no action
was taken pursuant to this notice.
19. Thereafter, on 14.09.2009, the Society entered into an
agreement with M/s J.G. Developers Private Limited, respondent no.4
(hereinafter referred to as ‘J.G. Developers’).  In this agreement J.G.
Developers agreed to provide permanent alternative accommodation
measuring 269 sq. ft. carpet area to each of the eligible members having
residential premises.  Sufficient alternative accommodation was also to
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be provided to those occupying commercial/industrial premises.  In Clause
(4) of the agreement, it was mentioned that since the Society was the
owner of the plot, the developer would also grant it 72,000/- sq. ft. carpet
area free of cost for use by the members of the Society. This was
crystallized in the supplementary agreement entered on 22.09.2009
between the Society and J.G. Developers. In terms of this supplementary
agreement, 155 members occupying double residential premises would
be entitled to additional area of 150 sq. ft. and 614 members having
single residential premises would be entitled to 75 sq. ft. additional area.
This effectively meant that those having single residential area would
get a tenement of  344 sq. ft. and those having double residential area
would get a tenement of  419 sq. ft.. J.G. Developers took the responsibility
of getting permission for giving this extra area.  Thereafter, J.G.
Developers entered into individual agreements with some of the members
of the Society in terms of the agreement and supplementary agreement
as referred to above.
20. Complaint No. 30 was filed on 21.09.2006 before the Anti-
Corruption Bureau, which was referred to the High Power Committee
(for short ‘the HPC’), in which it was complained that the names of the
occupants at Serial No. 774 to Serial No. 852 of the list of occupants
issued on 21.06.1993 by the Additional Collector, Encroachment, are
bogus and are
based on fabricated documents.  Notice was issued on
this complaint. On 04.06.2011, Susme again wrote to the SRA to process
the proposal submitted to SRA on 01.10.2008.  Similar request was made
on 16.07.2011 also.
21. Thereafter, on 11.08.2011, show cause notice under Section
13(2) of the Slum Act was issued by the SRA to Susme as to why the
SRA should not determine the right granted to Susme to develop the
land and entrust the work of rehabilitation of the slum of the Society to
some other agency.  The reasons for issuing the notice are contained in
Annexure-A, which reads as follows:
“1) The LOI for conversion of SRA scheme was issued u/No.SRA/
ChE/110/HE/PL/LOI dt. 27/01/1998.  It is reported by the
Secretary that the developer has failed and neglected to complete
the work of Rehab building within the stipulated period as per
LOI condition and committed the breach of the terms and
conditions of the sanctioned S.R. Scheme.
2) As per complaint of Society, the Developer have not taken
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effective steps for speedy implementation of Scheme and shown
wilful negligence.”
Susme replied to the notice.  Even the Society submitted its reply
to the notice and stated that there was inordinate delay in completing the
scheme.  Written submissions were filed by all sides.  Finally, by order
dated 24.02.2012, the SRA set aside the appointment of Susme as
developer mainly on two grounds:-
(i) that there was unexplained delay in carrying out the work under
the rehabilitation scheme and,
(ii) Susme had failed to show that it had filed  individual agreements
with 70% slum dwellers.
The SRA, instead of handing over the work to another agency,
held that since the Society had already entered into an agreement with
J.G. Developers, it may get the scheme implemented through it.  Susme
filed an appeal being No. 39 of 2012 before the HPC.  This appeal was
dismissed on 18.06.2012.  This order of the HPC was challenged by
filing Writ Petition No. 1718 of 2012, on the ground that one of the
Members of the HPC was not entitled to hear the appeal.  This writ
petition was allowed on 14.08.2012 and the matter was remanded back
to the HPC.  Thereafter, the HPC again heard the appeal and dismissed
the same on 10.10.2012.  Against this order of the HPC, the appellant
filed Writ Petition No. 5 of 2013, which was rejected by the Bombay
High Court by the impugned order dated 11.06.2014 and it is this order
of the High Court which is under challenge in this appeal.  In the
meantime, on 03.08.2012 the Bombay High Court in the suit filed by
Susme, refused to grant any interim relief.
22. Letter of intent dated 29.10.2012 was issued by the SRA in
favour of the Society, J.G. Developers and also its architects.  In this
letter of intent approval was given for FSI of 3.78 for slum portion, 3.18
for slum portion in lieu of 128 tenements with carpet area of 20.90 sq.
mtrs., already constructed and 2.58 for slum portion in CRZ-II.
Effectively, the FSI for the developer had increased substantially.  In
this letter of intent it was mentioned that the eligible slum dwellers would
be re-housed in residential tenements of carpet area of 25 sq. mtrs. (269
sq.ft.) or 20.90 sq. mtrs. (225 sq.ft.).  It is thus apparent that no permission
was granted for giving larger tenements to the eligible slum dwellers.
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23. In another Special General Meeting of the Society held on
13.07.2014, it was decided by majority vote to cancel the agreement
with J.G. Developers.  It was also decided that in view of the cancellation
of appointment of J.G. Developers, the Managing Committee should
select a new and capable developer and the offer made by such developer
should be put up before the next general body meeting.  The Society
terminated the appointment of J.G. Developers on 25.08.2014.  J.G.
Developers challenged the termination of their agreement by filing Civil
Suit No. 756 of 2014 on 19.09.2014 and in this civil suit an interim order
was passed on 24.09.2014.
24. After the termination of the agreement with J.G. Developers
on 25.08.2014, on 26.08.2014 the Managing Committee of the Respondent
No. 3, the Society, entered into consent terms with Susme again appointing
Susme as the developer.
25. Susme filed the present petition for special leave to appeal
challenging the decision of the High Court of Bombay in Writ Petition
No. 5 of 2013, before this Court.  The respondents put in appearance
even before the notice was issued and on 27.03.2015 this Court has
passed the following order:
“Heard Mr. Fali S. Nariman, learned senior counsel for the
petitioner, Mr. P.C. Chidambaram, learned senior counsel and Mr.
Mihir Joshi, learned counsel for respondent no.4, Mr. Kapil Sibal,
learned senior counsel for respondent no.3, Mr. C.U. Singh,
learned
senior counsel for respondent no.1 and Mr. Raval, learned
senior counsel for the applicant in IA No.5/14 along with their
assisting counsel.
2. The present case frescoes a labyrinthine chequered history
that can flummox the prudence of the wise, for the procrastination
in putting an end to a litigation. But, a pregnant one, it is a problem
created by human beings by use of adroit proclivity at their best
and, therefore, as advised at present, this Court is obliged to take
recourse to an innovative method, at least to attempt at a solution.
3. We need not reflect the nature of orders passed in various
cases fought between the parties. Suffice it to mention that they
have invoked the power of the authorities under the Maharashtra
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Slum Areas (Development, Clearance and Redevelopment) Act,
1971, instituted civil suits on the original side of the Bombay High
Court and sometimes the society, namely, Om Namo Sujlam Sujlam
Co-operative Housing Society, respondent no.3 herein, has
changed its colour as chameleon with afflux of time may be yielding
to the “hydraulic pressures of time” and thereby eventually, in all
possibilities, making the slum dwellers of the area, i.e., C.T.S.
No.7627, 7627/1 to 852 admeasuring 23018.50 sq. mtrs. situated
at village Kolekalyan at Santacruz (East), Mumbai remain in that
pathetic condition as they were since 1986, as if the parties have
nurtured the notion that they can arrest time. Be that as it may, a
solution has to be thought of.
4. In course of hearing Mr. Chidambaram, appearing for
respondent no.4, assiduously asserted that he has got the consent
from 70% of the eligible slum dwellers and, therefore, the society
is absolutely justified in entering into an agreement which is called
a “development agreement”. Mr. F.S. Nariman, learned senior
counsel, determined not to lag behind, would astutely asseverated
that he has the consentum of 70% of eligible slum dwellers and
hence, his case cannot be brushed aside. We have been apprised
by Mr. Kapil Sibal, learned senior counsel appearing for
respondent no.3, that at present there are slightly more than 800
eligible slum dwellers. Mr. Raval, learned senior counsel appearing
for the assumed authorised
authority of the society, would present
that it is the respondent no.3 who has been correctly granted the
privilege of development agreement inasmuch as there was a
verification with regard to the consent earlier.
5. In our considered opinion, regard being had to the special
features of the case which includes the longevity of the case and
indefatigable spirit in which the parties are determined to fight,
we think there should be appropriate verification of the consent
of the eligible slum dwellers in praesenti. Regard being had to the
same, we request Mr. Justice B.N. Srikrishna, formerly a Judge
of this Court, to verify the factum of consentum of the eligible
slum dwellers. The Slum Rehabilitation Authority represented by
the Chief Executive Officer either by himself or by any responsible
high level officer nominated by him shall assist Mr. Justice B.N.
Srikrishna in this regard.
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6. As secretarial staff would be required for this purpose, the
petitioner and the respondent no.4 shall deposit a sum of
Rs.5,00,000/- (Rupees five lacs only) each so that the verification
can be expedited. In addition, learned Judge may fix his honorarium
which shall be paid proportionately, as agreed to by the petitioner
and the respondent no.4.
7. The parties are at liberty to file documents to facilitate the
process of verification with regard to consentum in praesenti
before the learned Judge. We repeat at the cost of repetition that
such a mode has been adopted, regard being had to the special
phenomena of the case. As we have taken recourse to such a
method any other the litigation pending in any forum in this regard
shall remain stayed.
8. Needless to say, the interim order of status quo passed in this
special leave petition, except the directions which have been issued
hereinabove, shall remain in force.
9. Let this matter be listed on 09.07.2015 awaiting the report from
Mr. Justice B.N. Srikrishna.”
26. Thereafter, Justice B.N. Srikrishna, former Judge of this Court
carried out the mandate, which he was required to do in terms of the
aforesaid order.  He decided that voting should be held by secret ballot.
He categorized the voters in four categories.
Category “A”
Persons who were original slum dwellers and continue to 
be occupants as on the cut-off date i.e. 27th March 2015. 
Category “B”  
Persons who
claim to exercise their vote as a result of 
legal heirship. 
Category “C” 
Persons who claim to have become members of the 
Society by reason of sale and transfer of the shares. 
Category “D” 
79 persons whose eligibility is under challenge before the 
Competent Authority as per the directions of the High 
Power Committee.

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He found that there were 867 slum dwellers in the four categories:
Four separate ballot boxes were kept i.e. one for each category
and the result of the voting is tabulated as follows:
Thereafter, Justice Srikrishna submitted his report setting out the
voting pattern but did not make any recommendation.
CONTENTIONS:
27. The main contention raised on behalf of the appellant-Susme
by Shri F.S. Nariman, learned senior counsel is that the order dated
27.03.2015 is an order passed by this Court in exercise of its extraordinary
jurisdiction either under Article 136 or under Article 142 of the Constitution
nue to 
015. 
ult of 
of the 
ore the 
High 
Category  “A” 
263
Category  “B” 
318 
Category  “C” 
207 
Category  “D” 
79 
Total  
867

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of India.  It is submitted that this order was passed with a view to settle
all disputes between the parties.  It is urged that this Court cannot go
behind this order especially when there is no application filed for recall
of the said order.  It is also urged that I.A.No. 10 of 2015 filed by J.G.
Developers for modification of the order, was rejected.  It is contended
that since Justice B.N. Srikrishna has found that the majority supports
Susme, the appeal should be allowed and Susme be permitted to carry
on with the project.
28. The other contentions raised on behalf of the appellant-Susme
by Shri Darius Khambata, learned senior counsel are:
(a) that Section 13(2) of the Slum Act is wholly inapplicable;
(b) that the notice under Section 13(2) was given only in respect
of delay and not in respect of 70% consent and hence the
SRA, the HPC and the High Court fell in error in insisting on
70% consent;
(c) that when migration of the scheme took place from
redevelopment scheme to slum rehabilitation scheme, 70%
consent was not necessary.
29. On behalf of J.G. Developers it is contended by Shri Gopal
Subramanium, learned senior counsel that the intention of this Court
was to find out whether any party had support of 70% of the slum dwellers
or not.  It is also contended that it was not the intention of this Court to
bypass the legal provisions and this Court is not bound by the aforesaid
order.  In the alternative, it is
submitted that the exercise carried out by
Justice B.N. Srikrishna only shows that as on date there are more people
with Susme.  It is contended that the Bombay High Court has consistently
held that there should be no competitive voting inter se developers
because that gives rise to many malpractices with the developers trying
to outbid each other by giving sops to the voters.  It is contended that the
consistent view till now has been that once the slum dwellers have given
consent for one developer or have entered into an agreement with a
developer then they cannot be permitted to withdraw the consent,
otherwise, it will lead to chaos and no slum rehabilitation scheme would
be implemented.  It is also contended that the matter should be decided
on merits and not on the basis of this order.  It is also contended that
Susme does not have the support of 70% of the slum dwellers.
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30. It is also contended on behalf of J.G. Developers that Susme
is guilty of unexplained delay and the slum dwellers are suffering and,
therefore, the Society had rightly decided to enter into a fresh agreement
with J.G. Developers.  It is also urged that Susme had never obtained
the consent of 70% of the slum dwellers, which was mandatory.  It is
also contended that Susme had taken advantage of trading of the
development rights by assuring the SRA that it would get 70% consent.
It is further urged that Susme never contested the issue of 70% consent
earlier.
31. Here, it would be pertinent to mention that the Society has
two factions.  One faction supports Susme and the other faction supports
J.G. Developers. The faction supporting Susme states that it has
terminated the agreement with J.G. Developers and cannot be forced to
get the development work done through J.G. Developers.  The other
faction alleges that there is no valid existing agreement with Susme.
32. The following issues arise for decision in this case:
(i) What is the scope, ambit and effect of the order of this Court
dated 27.03.2015;
(ii) What is the scope of powers under Section 13(2) of the Slum
 Act;
(iii) Whether the SRA has any power to remove the developer;
(iv) Whether in the notice issued under Section 13(2) of the Slum
  Act the issue of 70% consent was raised;
(v) Whether  support of 70% of the slum dwellers is mandatory
 and whether slum dwellers are entitled to withdraw their
consent;
(vi) Whether Susme delayed the construction of the Scheme, and
  is, therefore, not entitled to any relief;
(vii) Whether Susme is entitled to continue with the Scheme;
(viii) In case Susme is not entitled to continue with the scheme
  whether respondent no. 4 J.G. Developers is entitled to
  continue with the rehabilitation scheme.
THE SCOPE, AMBIT AND EFFECT OF THE ORDER OF THIS
COURT DATED 27.03.2015:
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33. Relevant portion of order dated 27.03.2015 has been quoted
hereinabove.  The main contention of Mr. Nariman, learned senior
counsel appearing for the appellant is that this order is an order passed
under Article 142 or Article 136 of the Constitution and is binding upon
the parties.  On the other hand, it was urged by M/s Gopal Subramanium
and Neeraj Kishan Kaul, learned senior counsel appearing for the
respondents that the order in question is not a binding order.  In the
alternative, it was submitted that even if the order is binding, this Court
can interpret the order and even as per the said order, the appellant is
not entitled to continue with the Scheme.
34. At the outset, we may note that judicial propriety and discipline
requires that a Coordinate Bench must respect the order of an earlier
Bench.  In fact, even a larger Bench should not brush aside the order
passed by an earlier Bench even if it be a smaller Bench unless the
order is in issue before the larger Bench.  Suffice to say that the order in
question holds the field. It has not been recalled and prayer for modification
in I.A. No. 10 was rejected on 13.05.2015.  Therefore, the order of this
Court dated 27.03.2015 holds the field and we are bound by the same.
At the same time, it is our duty to decipher what was the intention of the
Bench while passing the order and to find out what the Court intended to
do by the said order.
35. In Para 2 of the
order, the Division Bench has noted the long
and chequered history of the case and has noted that the Court had to
take recourse to an innovative method to try and find a solution.  It is
thus apparent that this is an order falling within the ambit of Article 142
to do complete justice between the parties.  The Court was aware that
the slum dwellers were suffering due to the long protracted litigation.
Therefore, the Court felt the need to find an innovative solution.  In Para
3 of the order, the Court has noted the factual aspects and again
emphasized the need to find a solution to resolve the various issues.  The
Court was obviously moved by the pathetic condition in which most of
the slum dwellers continued to reside.
36. Para 4 of the order is very important because it notes the
contention of learned counsel appearing for J.G. Developers, who had
emphatically stated that his client had the consent of 70% of the eligible
slum dwellers and, as such, the Society was justified in entering into a
development agreement with his client.  On the other hand, learned senior
counsel appearing for the appellant equally strongly refuted this claim
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and claimed that his client had the consent of 70% eligible slum dwellers.
It is in this context that the directions contained in Para 5 of the order
dated 27.03.2015 were passed wherein this Court directed “…….there
should be appropriate verification of the consent of the eligible
slum dwellers in praesenti.”  Justice B.N. Srikrishna was requested to
verify the factum of the consent of the eligible slum dwellers.
37. The contention raised on behalf of Susme is that there is no
mention of “70%” in the direction given in Para 5 of the order and,
therefore, all that Justice B.N. Srikrishna was required to do was to
ascertain consent of the slum dwellers in praesenti.  It is contended
that almost 70%, and at least much more than the majority, have exercised
their choice in favour of Susme and, thus, there is no reason why the
appeal should not be allowed. Susme should be permitted to carry on the
development work in terms of the agreement entered into with the
respondent no. 3-Society.  It is also urged that as far as respondent no.
4 is concerned, it has got hardly 30% of the votes and, therefore, there is
no question of awarding the contract to respondent no. 4.
38. We are not in agreement with this submission.  It is settled
law that a judicial order or judgment has to be read as a whole and a
single line or phrase cannot be read out of context.  A judgment is not to
be interpreted like a statute.  As far as the order dated 27.03.2015 is
concerned, the
intention of the Court, will have to be deduced from the
entire order.  We cannot read the phrase “…….there should be
appropriate verification of the consent of the eligible slum dwellers
in praesenti.” in isolation.  This has to be read in the context of the rival
contention of the contesting parties that each one of them had the consent
of more than 70% of the slum dwellers.  According to us, this Court was
not oblivious of the requirements of the Slum Act though it may not have
explicitly referred to them.  It is obvious from Para 4 of the order dated
27.03.2015 that learned counsel for both the parties claimed that their
respective clients had the support of 70% of the slum dwellers.  Obviously,
both of them could not be correct.  This factual dispute could not be
decided in these proceedings.  This was the dispute which was referred
for resolution to Justice B.N. Srikrishna.  We may observe that Justice
B.N. Srikrishna in the first effective procedural order dated 27.04.2015,
rightly understood the order to mean as follows:
“After carefully perusing the Order dated 27th March, 2015 made
by the Hon’ble Supreme Court and the submissions made in writing
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and through Counsel and representatives on behalf of the
Petitioners as well as the Respondents, I am of the view that the
best way of verifying the factum of consentum of the eligible
slum dwellers in praesenti would be to hold a secret ballot under
my aegis and after counting the votes, make a report to the Court
as to whether more than 70% of the eligible slum dwellers are in
favour of the redevelopment agreement being signed with the
Petitioner or Respondent No.4.”
39. It is, thus, clear that Justice B.N. Srikrishna had understood
that he was to ascertain whether 70% of the eligible slum dwellers are
in favour of the redevelopment scheme signed with the appellant-Susme
or with respondent no. 4.  We are clearly of the view that a holistic
reading of the order admits of no other meaning.  The only dispute raised
before this Court on 27.03.2015 was which of the builders had the support
of the 70% of the slum dwellers.  Since this factual dispute could not be
decided in Court, Justice B.N. Srikrishna was requested to do this job.
It is not necessary for us to go into the other arguments raised with
regard to the effect of the order because, according to us, this order
admits of no other interpretation.  Admittedly, neither the appellant nor
respondent no. 4 has received 70% support.
40. Further, the words ‘in praesenti’ only mean that the Court
wanted the verification of the consent of the eligible slum dwellers as on
date of passing of the order.  ‘In praesenti’ cannot be read to mean
‘present and voting’.  It only means eligible slum dwellers as on
27.03.2015.  Justice B.N. Srikrishna has divided the slum dwellers into
four categories; 263 were the original slum dwellers, 318 were the legal
heirs, 207 were those who had become members by means of sale and
transfer of shares and 79 voters were disputed.  We may note that
during these entire proceedings not a single complaint has been filed that
an ineligible slum dweller was permitted to vote or that an eligible slum
dweller was not permitted to vote. The procedure followed by Justice
B.N. Srikrishna is absolutely correct and no error can be found in this
regard.  Therefore, we have no hesitation in accepting the report
submitted by Justice B.N. Srikrishna.
41. Out of 867 total eligible voters only 651 voted and the appellant
secured 423 votes, which would mean 64.98% or roughly 65% of the
votes polled.  But, if we were to calculate this percentage from the total
number of slum dwellers i.e. 867 then the percentage is 48.78%, which
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is less than 50%.  In case we exclude 79 votes which are doubtful, then
the total eligible voters would be 788 and the appellant secured 413 i.e.
52.41% of the total eligible slum dwellers, well below the magic figure
of 70%.  We are unable to accept the contention of Mr. Nariman that to
put an end to all litigation, the Court only wanted to find out who had the
majority.  That, according to us, is not the essence of the order dated
27.03.2015.  It is true that 70% is not reflected in the direction given in
Para 5 of the order but as earlier noted by us, the directions have to be
understood in view of the intention of the Court, which was to find out
that which of the builders had the support of 70% of the slum dwellers.
Unfortunately, both the developers do not enjoy 70% support, though it
is true that the appellant has the support of more than twice the number
of slum dwellers as compared to respondent no. 4.  Since neither Susme
nor J.G. Developers has the support of 70% slum dwellers, the order
dated 27.03.2015 cannot be taken to its logical conclusion and we have
to decide the appeal on merits.
THE SCOPE OF POWERS UNDER SECTION 13(2) OF THE
SLUM ACT:
42. Relevant portion of Section 13 of the Slum Act which is the
bone of contention between the parties reads as follows;
“13. (1) Notwithstanding anything contained in sub-section (10)
of section 12, the Slum Rehabilitation Authority may, after any
area is declared as the Slum Rehabilitation Area, if the
landholders
or occupants of such area do not come forward within a
reasonable time, with a scheme for re-development of such land,
by order, determine to redevelop such land by entrusting it to any
agency for the purpose.
(2) Where on declaration of any area as a Slum Rehabilitation
Area the Slum Rehabilitation Authority, is satisfied that the land in
the Slum Rehabilitation Area has been or is being developed by
the owner in contravention of the plans duly approved, or any
restrictions or conditions imposed under sub-section (10) of section
12, or has not been developed within the time, if any, specified
under such conditions, it may, by order, determine to develop the
land by entrusting it to any agency recognised by it for the purpose:
Provided that, before passing such order, the owner shall be given
a reasonable opportunity of showing cause why such order should
not be passed.”
SUSME BUILDERS PVT. LTD. v. CEO, SLUM
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43. Shri Darius Khambata, learned senior counsel appearing for
Susme urged that under Section 13(2) of the Slum Act, the SRA is entitled
to take action only against the owner.   He also submits that Section
13(2) will apply only when there is violation of the conditions imposed
under sub-section 10 of Section 12 of the Slum Act and the condition
with regard to the time should also be a condition contained in sub-
section 10 of Section 12.  He submits that there is no power to take
action under this section against the developer.  According to him, action
could have been taken by the SRA against the Society but not against
Susme.
44. We cannot accept such a wide submission.  According to us,
under Section 13(2) of the Slum Act, the SRA has the authority to take
action and hand over the development of land to some other recognized
agency under three circumstances:
i. When there is contravention of the plans duly approved;
ii.When there is contravention of any restriction or condition
imposed under sub-section 10 of Section 12 of the Slum Act;
and
iii. When the development has not taken place within time, if any,
specified.
45. The requirement to complete the development within time
may be there in the letter of intent issued by the SRA or may be in the
agreement entered into between the owner/developer with the slum
dwellers. Such condition, if violated, would attract the provisions of Section
13(2) of the Slum Act.
Over and above that, when a clearance order is
passed, then in terms of sub-section 10 of Section 12, the competent
authority can include a condition with regard to the time within which
the development should be completed and in that case also Section 13(2)
would be attracted.  We are not, however, able to accept the very wide
argument that  in case of delay, the condition that is violated must be laid
down under Section 12(10) of the Slum Act.
46. There may be cases where the slum dwellers do not offer any
resistance and willingly consent to move into transit accommodation
provided by the owner/developer.  Therefore, the conditions laid down
under Section 12(10) will come into play only when there is a clearance
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order, but in case there is no clearance order, then under Section 13(2),
the SRA would be empowered to take action when there is violation of
any plan or when there is violation of any condition relating to developing
the project within time.  The time limit can, some time, be provided in the
letter of intent, in the agreement or even in the regulations.
47. Having held so, we are of the view that Shri Darius Khambata,
learned senior counsel, is right in his submission that normally under
Section 13(2) of the Slum Act, action by the SRA has to be taken against
the owner.  Here, we may repeat that this is a unique case where the
slum dwellers are the members of the owner-Society.  The Society, in
turn, has given power of attorney to the builder.  The builder virtually has
two roles – one as developer and the other as power of attorney holder
of the owner.  Both are closely interlinked and inextricably mixed with
each other.  Therefore, though normally we would have accepted the
contention that under Section 13(2) action can only be taken against the
owner, in the present case, we are unable to accept this contention in its
totality.  We may point out that even the SRA, in its order, has itself
noted that since the Society is the owner of the plot of land, it is empowered
and within its right to terminate the agreement executed with the said
developer for breaches committed by the developer.  It has, however,
held that a private dispute between the Society
and the developer cannot
prevent the SRA from discharging its obligations.  The SRA agreed with
the submission made by the Society that Susme had not completed the
project within time.  It has taken action under Section 13(2) of the Slum
Act.  The action taken by the SRA is to remove Susme as developer
which amounts to cancelling the letter of intent issued in favour of Susme.
48. Otherwise, there would be an anomalous situation where the
Society would have terminated its contract with Susme but the letter of
intent issued by the SRA would continue to hold the field and it would be
entitled to develop the land.  The Society approached the SRA, in fact,
asking it to take action against Susme.  Since the SRA is the authority
which issued the letter of intent, it will definitely have the power to cancel
the letter of intent.
49. We are of the considered view that in the peculiar facts and
circumstances of the case where the slum dwellers are virtually the
owners of the land as members of the owner Society, the SRA had the
power under Section 13(2) of the Slum Act to issue the order dated
24.02.2012.
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WHETHER THE SRA HAS ANY OTHER POWER TO
REMOVE THE DEVELOPER:
50. Even if we were to assume that the SRA did not enjoy this
power under Section 13(2) of the Slum Act, we are of the considered
view that since it was the SRA which issued this letter of intent, it
necessarily must have the power to cancel the same.  The SRA can also
derive this power under clauses (c) and (d) of sub-section (3) of Section
3A of the Slum Act, which read as under:
“3A. (1) Notwithstanding anything contained in the foregoing
provision, the State Government may, by notification in the Official
Gazette, appoint an authority to be called the Slum Rehabilitation
Authority for such area or areas as may be specified in the
notification; and different authorities may be appointed for different
areas.
        xxx                     xxx                        xxx
(3) The powers, duties and functions of the Slum Rehabilitation
Authority shall be,-
         xxx                     xxx                        xxx
(c) to get the Slum Rehabilitation Scheme implemented;
(d) to do all such other acts and things as may be necessary
for achieving the objects of rehabilitation of slums.”
51. A bare reading of these provisions shows that in terms of
clause (c) and (d) of sub-section (3) of Section 3A of the Slum Act, the
SRA not only has the power, but it is duty bound to get the slum
rehabilitation scheme implemented and to do all such other acts and
things as
will be necessary for achieving the object of rehabilitation of
slums.  In this case, the SRA was faced with a situation where the slum
dwellers were suffering for more than 25 years and, therefore the action
taken by SRA to remove Susme for the unjustified delay was totally
justified.
52. A perusal of the various provisions of the Slum Act would
show that normally in a case falling under the Slum Act, it is the owner
of the land, whether it be the Government, a statutory authority or a
private person, who will be interested in the development work.  Normally,
the occupiers will be encroachers of slum land.  Therefore, there will be
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a conflict of interest between the occupiers and the owner.  The owner,
in turn, will always engage a developer/builder to carry out the
development work.  In case the owner gives a power of attorney to the
developer, as in the present case, the developer now has two identities –
(i) the power of attorney holder of the owner and (ii) the developer.  As
far as the present case is concerned, the Society is made up of the
members who are occupiers and this Society has given power of attorney
to the developer-Susme.  Therefore, the developer Susme is actually
having a dual role of owner and developer.  Both the letters of intent
have been issued in favour of the Society, Susme and the architects of
Susme.  Susme could not have carried out the development work on the
basis of its agreement with the Society.  It needed the permission of the
SRA.  Therefore, SRA can obviously revoke such permission.
WHETHER IN THE NOTICE ISSUED UNDER SECTION 13(2)
THE ISSUE OF 70% CONSENT WAS RAISED:
53. Shri Darius Khambata, learned senior counsel, has raised
another contention that there is no allegation in the notice under Section
13(2) of the Slum Act that Susme has violated any provisions of the Act,
Regulations or Scheme in not getting consent of 70% of the slum dwellers.
We have gone through all the three notices and find that, in fact, in the
notices there is no specific allegation in this behalf. On the other hand,
Shri Gopal Subramanium, learned senior counsel appearing
for J.G.
Developers, urges that in the last notice reference has been made to
violation of DCR and this will obviously include violation of requirement
of  consent of 70% slum dwellers.
54. We are unable to accept the contention of Shri Gopal
Subramanium, learned senior counsel.  When a notice is issued to a
party it must be clearly told what are the allegations which it must meet.
The notice should be clear and unambiguous.
55. There was no allegation in the notice(s) that the right to develop
granted in favour of Susme was liable to be revoked because it had not
obtained consent of 70% of the slum dwellers.  The reference to
Regulation 33(10) also did not specifically raise the issue of 70% consent.
Susme was never put to notice by the SRA that its right to develop the
land may be cancelled because of not having consent of 70% slum
dwellers.  It was confined to the issue of delay.  We answer this issue
accordingly.
SUSME BUILDERS PVT. LTD. v. CEO, SLUM
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56. However, we are of the view that while considering the issue
of delay, the SRA was justified in making reference to the various
communications made by Susme and its architects seeking time to obtain
consent of 70% slum dwellers and, therefore, while dealing with the
issue of delay, we shall take into consideration all these matters.
WHETHER  SUPPORT OF 70% OF THE SLUM DWELLERS
IS MANDATORY AND WHETHER SLUM DWELLERS ARE
ENTITLED TO WITHDRAW THEIR CONSENT:
57. It would be important to note that under DCR of 1991, which
were initially applicable to this project, a Scheme for rehabilitation could
be initiated where more than 70% of the eligible hutment dwellers on the
land agreed to the redevelopment scheme by becoming members of a
cooperative society.  Thereafter, the Scheme was to be considered by
the authorities for implementation.  Relevant portion of the DCR reads
as follows:
“INITIATION OF THE SCHEME:- Where more than 70% of
the eligible hutment dwellers on the land agree to join the
redevelopment scheme and become members of the co-operative
society, the scheme should be considered for implementation.”
58. Under Development Control Regulations 33(10) of 1991, the
essential requirement was that at least 70% of the slum dwellers had to
form a society with a view to redevelop the slum area.  In case 70%
slum dwellers did not join, there could be no rehabilitation scheme.  As
far as the present case is concerned, it
is not disputed that more than
70% slum dwellers had formed the respondent no. 3-Society.  It is the
admitted case of the parties that 800 out of 867 slum dwellers formed
respondent no. 3-Society, which is 92.27%.
59. DCRs of 1991 were amended in 1997.  Clause 1.15 of Appendix
(IV) of the amended DCR provided that 70% or more of eligible hutment
dwellers in a slum must agree to join a rehabilitation scheme before it
can be considered for approval.  This clause reads as follows:
“Where 70 per cent of more of the eligible hutment-dwellers in a
slum or pavement in a viable stretch at one place agree to join a
rehabilitation scheme, it may be considered for approval:
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Provided that nothing contained herein shall apply to Slum
Rehabilitation Projects undertaken by the State Government or
Public authority or as the case may be a Government Company
as defined in section 617 of the Companies Act, 1956 and being
owned and controlled by the State Government.”
Clause 1.16 of Appendix (IV) of this DCR reads as follows:
“In respect of those [eligible] hutment-dwellers on site who do
not join the Project willingly the following steps shall be taken:-
(i) Provisions for all of them shall be made in the rehabilitation
component of the scheme.
(ii) The details of the actual tenement that would be given to them
by way of allotment by drawing lots for them on the same basis
as for those who have joined the Project will be communicated to
them in writing by the Managing Committee of the Co-operative
Housing Society.  [If it is registered or the developer and in case
of dispute decision of the CEO/SRA shall be final and binding on
all the parties concerned.
(iii) The transit tenement that would be allotted to them would
also be indicated alongwith those who have joined the Project.
(iv) If they do not join the scheme within 15 days after the approval
has been given to the Slum Rehabilitation Project on that site,
then action under the relevant provisions including sections 33
and 38 of the Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) Act, 1971 as amended from time to time,
shall be taken and their hutments will be
removed, and it shall be
ensured that no obstruction is caused to the scheme of the majority
of persons who have joined the scheme willingly.”
60. It is thus obvious that under the amended DCR, not only 70%
or more of the eligible hutment dwellers must first agree to join a
rehabilitation scheme before it is taken up for consideration, but the owner/
developer or cooperative society must also enter into individual
agreements with each of these eligible hutment dwellers.  We may also
point out that the amended DCR in clause 1.16 of Appendix IV provides
that even in respect of those eligible hutment dwellers who do not join
the project willingly, the developer/builder has to make provision for
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accommodation of these hutment dwellers in the scheme.  They are
entitled to the same benefits as the hutment dwellers who actually join
the scheme.  They are also entitled to similar transit accommodation as
is allotted to those who willingly join the scheme.  Further, the regulations
also provided that if such hutment dwellers do not join the scheme and
do not accept the transit accommodation or the completed premises,
then they can be removed from their hutments and it will be ensured that
these hutment dwellers do not cause any hindrance to the project.
61. Very lengthy arguments were addressed by learned counsel
on the issue whether 70% support of the slum dwellers is mandatory.  A
large number of authorities have also been cited but, in our view, it is not
necessary to refer to the various authorities because the bare provisions
of law are sufficient to decide this issue.  A bare reading of DCR of
1991 makes it absolutely clear that under the said DCR at least 70% of
the slum dwellers/occupiers have to get together and form a Society for
the purpose of slum re-development scheme.  Therefore, unless 70%
slum dwellers agree to form a Society, the provisions of the Slum Act
could not be invoked to frame an SRD scheme.  Under the amended
DCR of 1997, there is a change and the change is that now the developer/
owner was required to enter into agreements with 70% of the slum
dwellers and unless 70% of the slum dwellers
agree, the slum rehabilitation
scheme cannot be entertained.  The magic figure remains at 70%.  The
idea behind it is that more than 2/3 of the occupiers must agree for the
rehabilitation scheme.
62. As pointed out above, even if the remaining minority slum
dwellers do not agree to be part of the scheme, the owner/developer is
duty bound to make adequate arrangements for their rehabilitation under
the scheme and they can join the scheme, and can take benefit of the
scheme even at any later stage.  We are, therefore, of the considered
view that 70% consent of the occupiers is mandatory.  As clarified above,
we are not dealing with this aspect in relation to the order of the SRA
because the notice under Section 13(2) did not raise this issue.  However,
we are clearly of the view that under the 1997 DCR the owner is required
to produce individual agreements with 70% slum dwellers before the
scheme can be taken up for consideration.
63. The circulars issued by the SRA, specially Circular dated
21.08.1997, 19.09.1998 and Circular No. 27 permit conversion of old
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approved SRD Scheme to new SRA Scheme under the provisions of
Clause No.10.1 of Appendix IV of DCR.  In the present case, the scheme
was initiated under the old DCR of 1991.  There is no manner of doubt
that the Society was formed by more than 90% of the occupiers.
64. The migration was done to the Scheme of 1997.  There is no
clear cut provision in the 1997 DCR as to how this migration has to be
done.  Since there is no clear cut provision, we may presume that while
migrating, it was not necessary for Susme to have individual agreements
with 70% of the slum dwellers.  We may, however, point out that it was
Susme who applied for migration to the new Scheme, obviously because
the new Scheme gave greater benefits to the developer.  When migration
was done, it was on the clear cut understanding that after the migration,
the provisions of amended DCR would be applicable.  When this
application of the Society and Susme for conversion was taken up, it
was noticed that one of the main objections was that there were no
individual agreements with the slum dwellers.
65. Later, Susme submitted agreements of 450 of the eligible slum
dwellers and stated in writing that the remaining to make up 70% would
be submitted before start of Phase II of the construction.  Fresh letter of
intent dated 27.01.1998, in terms of the new DCR, was issued in favour
of Susme and approved in accordance with Clause No.33(10) and
Appendix IV of amended DCR subject to certain conditions.
Clause 19 of the letter reads as follows:
“That you shall submit the Agreements with the photographs of
wife and husband on the agreements with all the eligible slum
dwellers before issue of CC for sale bldg., or 3 months as agreed
by developer whichever is earlier.  And the name of the wife of
the eligible occupier of hut shall be incorporated with joint holder
of the tenements to be allotted in rehabilitation building.”
66. A bare perusal of this condition makes it clear that Susme was
directed to submit agreements with all the eligible slum dwellers before
commencement certificate for sale building was issued or within three
months, as agreed by it.  It has been urged by Shri Darius Khambata,
learned senior counsel that, as per this condition, the agreements have to
be submitted only at the stage when the commencement certificate is to
be issued.  It would also be important to note that even before the
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rehabilitation building numbers 5 and 6 were completed, Susme was
granted TDR to the extent of 40% of the construction of building nos. 5
and 6, which they sold in the open market. The relevant portion of the
note dated 16.02.1998 is extracted hereinbelow:
 “Further as per policy & DCR 33(10) it is necessary that
agreements with more than 70% slum dwellers as per new scheme
is required.  This was pointed out to CEO (SRA) during discussion,
when CEO (SRA) instructed to submit agreements with 70% slum
dwellers before second phase of T.D.R. Developers have informed
that out of 869 slum dwellers, they have submitted 450 agreements
to the office of S.R.A. (52%).”
When Susme applied for permission to sell the TDR, the SRA
ordered that 70% agreements should be submitted before Phase II TDR
and, further, Susme was informed by the SRA that it has only submitted
the agreements with 450 slum dwellers which comes to barely 52%.
The Bombay High Court, therefore, rightly recorded that Susme accepted
the condition of 70% consent requirement when it accepted these
conditions and sold the TDR.  Thereafter, on 03.11.1998, occupation
certificate was issued in favour of Susme with regard to two rehabilitation
buildings.  Relevant portion of communication dated 03.11.1998 reads
as under:
“That the 70 percentage individual agreements with slum dwellers
shall be submitted before further approval/CC.”
67. On 24.12.1998, the SRA permitted
Susme to take 90% benefit
of the TDR equivalent.  Relevant portion of this note reads as follows:
 “As per policy it is necessary that agreements with minimum
70% slum dwellers for new scheme is required.  It is also
mentioned in the previous report sidelined ‘x’ at page 35.  Architect
has to submit 70% agreements before granting Phase-II TDR.
At present 52 (sic 520) agreements (60%) out of 869 are submitted
in this office as mentioned in the letter of Architect as at
page…….However, these two Rehab Bldgs are physically
occupied and list of documents rehoused is submitted at P-164 to
171 Phase II T.D.R. can be recommended if agreed.
In view of above pending requirement if CEO (SRA) agreed TDR
equivalent to 0.90 x 3720.90 = 3348.81 (1295 SQ.MT. released in
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Phase I + 2051.81 sq.mt. to be released & Phase II) sq. mt.
Phase II TDR will be recommended to M.C.G.M. “
68. It was noted that Susme was required to submit agreements
with 70% of the slum dwellers. On 07.07.1999 Susme, through its
architects, sent a letter to respondent no. 1 forwarding 580 individual
agreements of the members of the Society and also undertook to submit
the remaining, to make 70% in due course.  SRA pointed out in its letter
dated 25.07.2001 addressed to Susme that out of the agreements
submitted, only 372 were correct.
69.  Here, it will be pertinent to note some other relevant facts.
On 11.05.1999, some slum dwellers filed Writ Petition No. 1301 of 1999,
challenging the letter of intent dated 27.01.1998 in favour of Susme on
various counts including the ground that Susme had failed to obtain
consent of 70% or more of the eligible slum dwellers.  This petition was
dismissed on 13.12.1999 and we have quoted the relevant portion of the
Bombay High Court in the earlier part of the judgment.  According to
Susme, in view of this judgment, it was not required to obtain 70% consent
of the slum dwellers.  We do not think this is what was said by the High
Court.  We may note that the main contention by the appellant before
the High Court was that the consent of 70% of the slum dwellers was
not required under the 1991 Scheme.  The High Court held, and rightly
so, that under the 1991 DCR what was required was that 70% of the
slum dwellers joined
the Society, which was interested in the rehabilitation
of slum dwellers and there was no requirement that there should be
consent from 70% slum dwellers.  The High Court did not discuss at all,
the issue whether 70% consent was required under the 1997 Scheme.
This judgment will have no bearing on the present case.
70. As we have already indicated above, in a migration from 1991
Scheme to 1997 Scheme, obviously 70% individual agreements cannot
be obtained prior to submission of the Scheme.  However, while granting
migration, the SRA can lay down conditions and such conditions can
also be laid down during the course of the Scheme.  From the facts
narrated above it is more than amply clear that the SRA envisaged, and
Susme clearly understood, that it had to obtain consent of 70% of the
slum dwellers.  Even in the resolutions of the Society authorizing Susme
to take up the development work entered after DCRs were amended it
was clearly mentioned that amended Regulation 33(10) would govern
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the agreements.  Susme cannot now say that it is not governed by the
amended regulations.  Even the letters issued by the architects of Susme
clearly indicate that they would make up the balance to achieve 70%
agreements.  The main dispute is by when this should have been done.
Initially, time was given till commencement certificate of the sale building
was issued.  This was a meaningless condition because if this condition
was to be applied after the rehabilitation buildings had been built, then
having the consent of the slum dwellers would be an exercise in futility
because by then they would have been thrown out of their dwellings.
We can, at best, understand this to mean commencement of the
rehabilitation buildings.  The slum dwellers are interested with the
rehabilitation buildings and not with the free sale buildings.  Later on,
when applying for permission to trade their development rights, Susme
clearly understood and undertook that it would furnish the consent forms
of 70% of the slum dwellers.  The architects of Susme, in fact, deposited
580 individual agreements but out of these, only 372 were found to be
correct.  Thereafter, Susme took a U-turn and, relying upon the judgment
of the Bombay High Court in CWP No.1301 of 1999, took a stand that it
was not required to submit agreements with 70% slum dwellers. This
stand was not legally tenable.  Susme cannot be permitted to back out of
its commitments.  The
agreements with 70% slum dwellers should have
been provided within a reasonable time and, though almost 20 years
have elapsed since the second letter of intent was granted in favour of
Susme, it has till date failed to submit such agreements.  We may again
reiterate that we are not dealing with this issue for the purpose of removing
Susme but only for the purpose of showing that Susme delayed the project
because it failed to get consent from 70% of the occupiers.
WHETHER SUSME DELAYED THE CONSTRUCTION OF
THE SCHEME, AND IS, THEREFORE, NOT ENTITLED TO
ANY RELIEF:
71. With regard to the issue whether the appellant is responsible
for the delay in implementation of the Scheme, at the outset, we may
note, that both the SRA and the High Court have dealt with this issue in
detail and come to a concurrent finding of fact that Susme was responsible
for the delay in implementation of the Scheme.  Since this is a finding of
fact and dealt with in detail by the High Court, we are not required to
examine this contention in detail.  However, at the insistence of the
learned senior counsel for Susme we have gone through the voluminous
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record.  From the facts which are set out in this regard it is apparent that
Susme first entered into an agreement with the Society on 27.02.1986
committing to complete the project in 5 years.  Unfortunately, from 1986
to 1991, nothing was done and the only excuse is that some public interest
litigation was pending.  On 25.03.1991, the DCRs were brought into
force.  On 09.10.1992, the appellant obtained permission for development
of the property on certain conditions.  It would be important to note that
in the letter of 09.10.1992, while granting permission, it was stated that
the developer should produce agreement of all the existing occupiers
within six months and the development work is to be completed within
two years, though the time could be extended for genuine reasons.
Admittedly, no work was done during this period also.  On 05.04.1995,
letter of intent was issued in favour of Susme.  In this letter also, there
was a stipulation that Susme should produce the agreement with all the
slum dwellers.  Thereafter, Susme entered into a fresh agreement with
the Society.  During this period of 9 long years, not an inch of construction
was raised nor any portion of the property developed.  Thereafter, in a
meeting of General Body of the Society held on 12.11.1995, a resolution
was passed that each slum dweller be provided 225 sq. ft. carpet area.
This was accepted by Susme and crystallized in the agreement dated
07.01.1998.  Between 15.01.1996 to 01.02.1996
Susme obtained
‘intimations of disapproval’ which, in fact, are sanctions for construction
for 15 rehabilitation buildings and started construction of two rehabilitation
buildings nos. 5   and 6.  Susme’s proposal for conversion of SRD Scheme
to SRA Scheme was approved in January, 1998 and fresh letter of intent
was issued in favour of Susme on 27.01.1998.  During this period, two
rehabilitation buildings were constructed but nothing further was done.
There is virtually no explanation as to why the remaining rehabilitation
buildings were not constructed during this period except to state that
fresh plans were never approved.  It is more than obvious from the facts
narrated above that Susme never earnestly pursued the authorities for
approval of the plans and the reason is not far to seek – the reason being
Susme did not have consent/agreements of 70% slum dwellers.  It is
more than obvious that Susme was buying time on one excuse or the
other.  On 18.01.2000, the SRA called upon the appellant to submit revised
plans in respect of rehabilitation buildings within 10 days of the receipt
of the letter.  In reply thereto, the architects of Susme sent a letter on
27.01.2000 expressing their intention to start Phase II of the project but,
at the same time, sought waiver of the requirement of obtaining 70%
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consent from the slum dwellers.  This clearly shows that Susme was
using this excuse to delay the construction.  On 05.01.2001, Susme
addressed a letter to the SRA praying that the plan submitted in 1997 be
approved.  Thereafter, the SRA did not consider Susme’s proposal since,
according to the SRA, the proposal was affected by the Coastal
Regulations Zone (CRZ) Notification.
72. On 07.07.2001, Susme and the Society filed Writ Petition No.
2269 of 2001, in the Bombay High Court seeking removal of the remarks
which indicated that part of the property of the Society was being affected
by the CRZ Notification.  A perusal of the writ petition and the other
documents clearly shows that the entire property was not  affected by
the CRZ Notification, but only a part thereof.  On 07.08.2002, in the
petition filed by Susme and the Society, the Bombay High Court passed
an order, relevant portion of which reads as follows:
“Prima facie, having perused the affidavit of Dr. Munshil Gautam
filed before this Court on 24th June, 2002 and the documents
annexed thereto it does appear that the property in question is
affected by CRZ regulations.  Respondent No. 2 and 3 have
already placed Coastal Zone remark which is of course impugned
in the present petition but until the petitioners are granted relief as
prayed, the petitioners cannot raise any construction in the area
which is covered by CRZ regulation.  We accordingly observe
that
during the pendency of petition the petitioners shall not raise
any construction in the property in question which is affected by
CRZ regulation.”
73. It is apparent from the aforesaid order that stay was granted
not to raise construction in the area which is covered by the CRZ
Notification.  No material has been brought on record to show that the
entire plot was covered by the CRZ Notification and it is amply clear
that only a portion of the plot was covered by the CRZ Notification and
nothing prevented Susme from raising construction on that portion of the
land which was not affected by the CRZ Notification.  On 09.05.2005,
Susme’s architects sought approval of plans for transit accommodation.
This permission was granted on 18.08.2005, but a condition was laid
down that 70% agreements must be submitted before the existing
structures are demolished.  On 14.03.2006, the SRA issued notice to
Susme to stop work on various grounds including non-submission of
demarcation from the competent authority permitting the transit camp to
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be set up.  Thereafter, on 05.09.2006, Susme and the Society entered
into another agreement and on 03.04.2008, respondent no. 1 revoked
the order dated 29.05.2006, after Susme obtained permission from the
State Government allowing the transit camps to remain.  It is apparent
that sometime in the year 2005, it was clarified by the concerned authorities
that Susme’s construction was not affected by the CRZ Notification. It
is obvious that only a portion of the land was affected by the CRZ
Notification and nothing prevented Susme from constructing the buildings
which were to be constructed on land not falling within the CRZ
Notification. However for reasons known only to Susme, it withdrew
the Writ Petition No.2269 of 2001 only on 07.04.2008. It was only
thereafter that respondent no. 3-Society passed a resolution on
29.03.2009, terminating the development agreement with Susme.  Even
after that, the SRA on 15.06.2009 issued a letter that the Society’s request
for change of developer need not be considered.  On 14.09.2009, the
Society entered into agreement with respondent no. 4 - J.G. Developers
Pvt. Ltd..  Thereafter, civil litigation started.  It has also been urged on
behalf of Susme that, in the meantime, a one man Commission was
constituted and due to the constitution of this Commission, work was
affected.
74. After going through all the material placed on record, we are
clearly of the view that the finding given by the SRA that the appellant
was
responsible for the delay, is a finding based on appreciation of material
on record.  It cannot be said to be a perverse finding.  It is a finding of
fact and, therefore, the Bombay High Court was justified in coming to
the conclusion that it could not set aside this finding of fact in writ
jurisdiction.  We may, however, add that since lengthy arguments were
addressed, we have ourselves gone through the various documents and
though there may have been a few stop orders and a few occasions
when Susme may not have been able to raise the construction but, by
and large, Susme was itself guilty of delaying the construction for no
reason at all.  We, therefore, hold that Susme was rightly held responsible
for the delay in implementation of the rehabilitation scheme and, as such,
we find no error in the impugned order.
WHETHER SUSME IS ENTITLED TO CONTINUE WITH
THE SCHEME:
75. With regard to the issue whether the appellant is entitled to
continue with the Scheme; in view of the findings given above, we are
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clearly of the view that Susme is not entitled to continue with the
rehabilitation Scheme on account of the fact that it has been responsible
for the delay in completion of the project for an inordinately long time.
Susme has not been able to explain the delay.  We are dealing with slum
dwellers and Susme cannot take the benefit of technical points to defeat
the rights of the slum dwellers.  The claim of Susme that it had the
support of 70% slum dwellers, was contested before Justice Srikrishna
and his findings clearly reveal that Susme does not have the support of
70% of the slum dwellers.  We are of the view, that since the notice by
the SRA to Susme did not make any specific allegation with regard to
Susme not having 70% consent, that portion of the order of the SRA,
setting aside the right to develop the land on the ground of lack of 70%
consent, may have been beyond the scope of the notice.  However, this
issue was argued before the HPC and the High Court and on rival claims
being made, this Court vide order dated 27.03.2015, referred this dispute
to Justice Srikrishna, who has submitted his report.
76. In writ proceedings, the petitioner must show that both in law
and in equity it is entitled to relief.  In this case, both equity and law are
against Susme.  It has dealt with slum dwellers in a highly inequitable
manner.  The law and the conditions of the letter of intent as well as the
conditions imposed in the
various letters issued by the SRA clearly required
Susme to produce agreements with at least 70% of the slum dwellers.
This, Susme has miserably failed to do.  We may also add that though
Susme may have remained the same entity in name, there have been, at
least, three changes in the promoters of Susme and these transfers of
shareholdings obviously must have been done for consideration.  It is
more than obvious that Susme, as a legal entity, was treating the slum
dwellers only as a means of making money and, therefore, we are clearly
of the view that Susme is not entitled to any relief.
IN CASE SUSME IS NOT ENTITLED TO CONTINUE WITH
THE SCHEME WHETHER RESPONDENT NO. 4 J.G.
DEVELOPERS IS ENTITLED TO CONTINUE WITH THE
REHABILITATION SCHEME:
77. The next issue is whether J.G. Developers is entitled to any
relief and can be permitted to continue with the rehabilitation scheme.
In this behalf, we may note that the conduct of J.G. Developers is not
above board.  It is more than obvious that when respondent no. 3-Society
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entered into a development agreement with respondent no. 4, the
members were given a false hope and dream that the size of their flats
would go up.
78. Under the terms of this agreement, J.G. Developers agreed to
provide permanent alternative accommodation of 344 sq. ft./419 sq. ft.
carpet area to the slum dwellers. J.G. Developers also entered into
individual agreements and under these agreements, it agreed to provide
344 sq. ft./419 sq. ft. carpet area to some residents.  It is obvious that a
false promise was held out by J.G. Developers that the carpet area of
the flat would be increased from 269 sq. ft. to 344 sq. ft./419 sq. ft..
Obviously, the slum dwellers, who had been waiting for 23 long years
for a flat admeasuring 269 sq. ft. would happily accept the offer of a flat
of 344/419 sq. ft..
79. From the communications addressed by the SRA, it is obvious
that J.G. Developers was legally not entitled to make this offer.  It is
submitted by Shri Gopal Subramanium, learned senior counsel that J.G.
Developers was willing to sacrifice its free sale area to give a larger
flat.  However, he has failed to submit even one document to show that
the SRA had agreed to this proposal of the J.G. Developers.  In fact, the
communication sent by SRA clearly shows that the proposal was not
accepted. It is, therefore, obvious that J.G. Developers had hoodwinked
the members of the Society in entering into an agreement with it by
holding out a false promise that they
would be given much larger flats.
As such, we are unable to accept the request of respondent no. 4- M/s.
J.G. Developers, to be permitted to continue with the project.  We may
also note that the Society has terminated its agreement with the J.G.
Developers. We are not going into the question whether this has been
done rightly or wrongly, but the fact is that the agreement stands
terminated. We may also note that in the voting conducted by Justice
Srikrishna, J.G. Developers failed to get the consent of 70% slum dwellers
and, in fact, it has got less than 1/2 of the votes, as compared to Susme,
and its support is even less than 30%.
80. It was urged before us that agreements once entered into and
the consent once given, cannot be withdrawn.  We are totally in agreement
with the same.  However, if the consent is obtained by misrepresentation
of facts, then that is no consent.  Now, when the position stands clarified
that the slum dwellers would get flats of 269 sq. ft. area only,  J.G.
Developers has failed to get support of even 30% of the  slum dwellers.
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81. In view of the above discussion, we are clearly of the view
that J.G. Developers is not entitled to continue with the project and is not
entitled to any relief.
LAW LAID DOWN BY THE BOMBAY HIGH COURT:
82. Our attention was drawn to various judgments of the Bombay
High Court that consent once given by the slum dwellers should not be
permitted to be withdrawn. It was also brought to our notice that the
Bombay High Court has consistently held that voting inter se developers
should not be done.  It has been the consistent view of the Bombay High
Court that in case voting is done, then this will lead to developers trying
to buy out the slum dwellers and then no rehabilitation scheme would
attain fruition.  We totally agree with the aforesaid views of the Bombay
High Court.  We must remember that slum dwellers normally belong to
the poorest section of the society.  They can be tempted to change their
mind.  In the present case itself, the slum dwellers shifted from Susme
to J.G. Developers for two reasons – (i) Susme had delayed the project
and (ii) J.G. Developers made a promise that it would give a flat of 344
sq. ft./419 sq. ft. area, which promise was obviously a false promise.
The view of the Bombay High Court that consent once given should not
be permitted to be withdrawn, is absolutely the right view.  Otherwise, a
person may give consent one day, withdraw it the second day and review
the consent the third day,
leaving the Scheme in a perpetual state of flux.
For the aforesaid reasons, we agree with the Bombay High Court that
there should be no inter se bidding between the builders.  The proper
course is that the scheme of the developer who is the first choice, should
be placed before the slum dwellers and if it gets 70% votes, then the
Scheme can be considered, but if it does not get 70% consent, then
obviously, the second developer can be considered.  However, competitive
bidding should not be done because that can lead to a very unholy practice
of developers trying to buy out the slum dwellers, which is also not in the
interest of the rehabilitation scheme.
83. As far as the present case is concerned, this Court while
passing the order dated 27.03.2015, made a departure because of the
peculiar facts of this case. The present case because of its own unique
facts cannot be treated as a precedent in other cases with regard to
action taken in this case.
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CONCLUSION:
84. In view of the above discussion, we arrive at the following
conclusions:
1. That the order dated 27.03.2015 was passed in exercise of
jurisdiction vested in this Court under Article 142 of the
Constitution of India and is an order binding on the parties;
2. That vide order dated 27.03.2015, this Court wanted Justice
B.N.Srikrishna to find out whether Susme or J.G. Developers
had the consent of 70% slum dwellers;
3. That, as a result of the Report submitted by Justice B.N.
Srikrishna, both Susme and J.G. Developers have failed to show
that they enjoyed support of the 70% of the slum dwellers;
4. That, in the peculiar facts and circumstances of this case, where
the owners and occupiers are virtually one, the SRA had the
jurisdiction to invoke the provisions of Section 13(2) of the
Slum Act to revoke and set aside the right to develop and cancel
the letter of intent granted in favour of Susme.  Even if it be
assumed that Section 13(2) is not applicable, then the SRA
could have exercised this power under Section 3A (3)(c) and
(d) of Slum Act.
5. That the notice issued by the SRA to Susme was only on the
ground of delay and the issue of obtaining 70% consent was
not specifically raised in the notice.  Consequently, the order
dated 24.02.2012 passed by the SRA in so far as it rejects the
case of Susme for lack of 70% consent is beyond the terms of
the notice.  Therefore, this part of the judgment of the Bombay
High Court, holding that Susme was
aware about this allegation,
is not accepted and is set aside;
6. That, Susme was responsible for the delay in implementation
of the Scheme and construction of the buildings and, therefore,
the SRA was justified in setting aside the appointment of Susme
as developer and impliedly cancelling the letter of intent issued
in its favour vide order dated 24.02.2012;
7. That, Susme has failed to show that it has the consent/agreements
of 70% of the slum dwellers even today and, therefore, is not
entitled to any relief from this Court; and
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8. That J.G. Developers obtained the consent of the members of
the Society by holding out a false promise of a larger flat and,
therefore, the agreements entered into by J.G. Developers with
the slum dwellers are legally unconscionable and not
enforceable and, as such, J.G. Developers is also not entitled
to continue with the Scheme.
RELIEF:
85. This, as pointed out earlier, is a very unusual case.  We have
held that both the contesting developers are not entitled to any relief.  It
is our duty to ensure that these owners who also happen to be slum
dwellers do not live in sub-human conditions for eternity.
86. We are not only disappointed with the conduct of Susme, but
also with the conduct of those persons who were the office-bearers of
the Society whichever faction they may belong to.  It is more than obvious
that the two rival developers and the office-bearers of the Society were
playing with the lives of large number of slum dwellers.  We are not
going into this issue in detail but, if we were to carefully examine the
various agreements entered into by Susme with the Society, we find that
though the members may have been entitled to larger flat in each
subsequent agreement but, in fact, it was the builder, who was the biggest
gainer as the advantage of higher FSI was cornered by the builder.  Only
a small portion of this advantage was being transferred to the slum
dwellers and a large portion was being retained by
the builder.  Another
important aspect is that, in this case, it is the occupiers who, through the
Society, are also the owners of the land.  In our view, in addition to the
flats which they would be entitled to as slum dwellers or occupiers or
encroachers of land, they should have been given some benefits as
owners of the land.  When a slum, owned by any authority or person, is
handed over to the developer, in addition to rehabilitating the slum dwellers,
the developer also has to compensate the owner.  We see no reason
why, in the present case, the slum dwellers, who are the owners, should
also not be given some adequate compensation for the land which they
own.  It is these 800 plus slum dwellers, who own this 23018.50 sq.
mtrs. of land, which would be valuing thousands of crores of rupees and,
therefore, we see no reason why the slum dwellers, who also happen to
be the owners of the land, should also not be compensated for the price
of the land.
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87. This is a case where the earlier Bench of this Court had invoked
its power under Article 142 of the Constitution of India and we also feel
that it is a fit case for invocation of this Court’s jurisdiction under Article
142 of the Constitution of India.  Hence, in exercise of this Court’s
power under Article 142 of the Constitution of India, we issue the following
directions/orders for doing complete justice:
1. That the SRA shall within three weeks of the receipt of this
order, invite letters of interest from renowned builders/
developers, who have the capacity and experience to take up
such a large project by issuing advertisements in not less than
three newspapers having wide circulation in Mumbai, one each
in English, Hindi and Marathi;
2.  The advertisement may be brief but all necessary details must
be incorporated in the advertisement.  The details of the project
including a copy of this judgment should be made available on
the website of the SRA;
3.   After the letters of interest are submitted, the SRA shall consider
which is the best offer and while considering the best offer, it
shall ensure that the terms offered to the occupiers are in no
manner disadvantageous to them when compared to the last
offer made by Susme in regard to the area of flat offered, the
nature of construction and other facilities available on the site.
The SRA must, while evaluating the proposals, take into
consideration the past record of the party/person expressing
interest: it shall also take into consideration the financial viability
of such party/person and, therefore, it may ask such party/
person to submit all the documents to support their financial
viability.  In case of any doubt, the SRA can move appropriate
application before this Court;
4. The persons who express interest must be willing to give an
assurance that they will submit plans within one month of the
approval of their proposal and all the concerned authorities
must, within 15 days thereafter, raise objections, if any, giving
the successful bidder a chance to remove the objections, if
any, within one month thereafter;
5. Thereafter, the concerned authorities should ensure that the
plans are approved and sanctions granted latest within two
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months of the submission of the original plans.  The successful
developer should undertake to complete the rehabilitation of
part of the project to rehabilitate all eligible occupiers/slum
dwellers within a period of two years from the date of sanction
of the plan.  The successful bidder must give a bank guarantee
of Rs. 200,00,00,000/- (Rupees Two Hundred crores only) to
ensure that it does not violate the terms and conditions of the
rehabilitation scheme.  In case of violation of the terms and
conditions of the rehabilitation scheme without reasonable
cause, the SRA will be entitled to invoke the bank guarantee,
after giving notice to the developer;
6. Keeping in view the fact that the slum dwellers are also the
owners, the developers may also indicate what benefit they
will give to the members of the Society either in cash or in kind
by means of giving additional built up area out of their own
free sale area to such members of the Society;
7. The SRA shall monitor the progress of the Scheme to ensure
that it is completed within the time granted by this Court;
8. No Court or authority shall pass any order which will in any
manner affect the implementation of the directions/orders
issued by us;
9. The Society, its members, the SRA and all concerned will render
complete assistance to the builder/developer, who is awarded
the project by the SRA; and
10. That all pending litigation shall be disposed of in view of the
aforesaid orders passed by us and shall be disposed of by the
Court(s) accordingly.
88. We may also point out that vide order dated 12.10.2017 this
Court directed that elections to respondent no. 3-Society be conducted
on or before 31.12.2017. These elections were held on 17.12.2017 and a
new Managing Committee was constituted.  This Managing Committee
held its first meeting on 31.12.2017 and has filed an affidavit on 03.01.2018
praying that the mandate recorded in the Report of Justice B.N. Srikrishna
be implemented.  It has also referred to the proposed amendment to the
DCR whereby the requirement for consent is being reduced from 70%
to 50%.  We have taken this affidavit on record.  It does not in any
manner affect the view which we have taken.

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89. Pending application(s), if any, stand(s) disposed of.
90. The SRA to file status report by 31.03.2018.  List on 09.04.2018.
Nidhi Jain
                               Directions issued.
SUSME BUILDERS PVT. LTD. v. CEO, SLUM
REHABILITATION AUTHORITY [DEEPAK GUPTA, J.]