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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 18121 OF 2017
SUSME BUILDERS PVT. LTD. … Appellant(s)
Vs.
CHIEF EXECUTIVE OFFICER, SLUM
REHABILITATION AUTHORITY AND ORS. ….Respondent(s)
J U D G M E N T
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
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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 Wadia Trust,
hereinafter referred to as ‘the Trust’. A slum had developed
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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.
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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
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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 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
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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
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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 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
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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
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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. 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
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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.”
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:-
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“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
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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.
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
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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.
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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
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Managing Committee with Susme behind the back of the
members of the Society. The majority of the members
demanded for cancellation of 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
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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
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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
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
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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
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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 AnnexureA,
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 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
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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
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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.
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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 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
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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.
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.”
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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.
He found that there were 867 slum dwellers in the four
categories:
Category “A” 263
Category “B” 318
Category “C” 207
Category “D” 79
Total 867
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Four separate ballot boxes were kept i.e. one for each category
and the result of the voting is tabulated as follows:
Category Total
Eligible
Voters
Voter turn-out
at the Poll on
22/11/2015
Votes
polled by
Petitioner
Votes Polled by
Respondent No.4
Invalid
Votes
“A” 263 191 108 70 13
“B” 318 275 179 84 12
“C” 207 172 126 43 03
“D” 079 013 010 03 -
Total 867 651 423 200 28
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 appellantSusme
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 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
27
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 appellantSusme
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.
28
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
29
this order. It is also contended that Susme does not have the
support of 70% of the slum dwellers.
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
30
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;
31
(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:
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
32
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
33
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
and claimed that his client had the consent of 70% eligible
34
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.
35
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
36
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 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
37
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
38
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 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.
39
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 subsection
(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:
40
Provided that, before passing such order, the owner shall
be given a reasonable opportunity of showing cause why
such order should not be passed."
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:
41
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
42
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 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
43
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
44
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.
45
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
46
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 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
47
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
48
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
49
be cancelled because of not having consent of 70% slum
dwellers. It was confined to the issue of delay. We answer
this issue accordingly.
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
50
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 cooperative
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
51
rehabilitation scheme before it can be considered for approval.
This clause reads as follows:
“Where 70 per cent of more of the eligible hutmentdwellers
in a slum or pavement in a viable stretch at one
place agree to join a rehabilitation scheme, it may be
considered for approval:
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.”
52
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 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.
53
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.
54
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 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
55
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.
56
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
57
certificate is to be issued. It would also be important to note
that even before the 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
58
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 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
59
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
60
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 the
agreements. Susme cannot now say that it is not governed by
the amended regulations. Even the letters issued by the
61
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
62
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
63
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 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
64
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
65
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% 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.
66
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
67
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 nonsubmission
of demarcation from the competent authority
permitting the transit camp to 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
68
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
69
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 clearly of the view that Susme is not entitled to
70
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.
71
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.
72
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 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
73
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
74
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.
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.
75
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
76
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
77
precedent in other cases with regard to action taken in
this case.
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
78
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
79
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
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.
80
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
81
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.
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:
82
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
83
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 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
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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;
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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
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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.
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.
..………………………J.
(Madan B. Lokur)
..………………………J.
(Deepak Gupta)
New Delhi
January 04, 2018
 Vs. CHIEF EXECUTIVE OFFICER, SLUM REHABILITATION AUTHORITY AND ORS JUDGMENT P lawyerchennai.com){kind=link}