Bombay Slum Redevelopment Corporation Pvt. Ltd. v. Mumbai Housing & Area Development Board & Ors.

3) In this background and aggrieved by the said actions, present Petition is filed. Mr. Lohia representing the Petitioner-developer argued that, the two notices dated 22nd August, 2022 were issued ex parte. Therefore, the principle of natural justice i.e. ‘audi alteram partem’ was violated. He argued that, the Respondent No.1 has sought to unilaterally revise the area under the scheme that was propounded in 1996 and revised in 2003 without considering that, the Petitioners had completed almost 80% of the rehabilitation work of the project. He further argued that, the steps of inspecting the site on 1st August, 2022, without notice to the Petitioners, was itself erroneous. He asserted that the Respondent No.1 had failed to take into account their own admission that the property was encroached upon by slum dwellers earlier and therefore their subsequent claim that it was vacant land was itself erroneous. He asserted that, the Petitioners had rehabilitated 777 tenements out of 1010 tenements in the scheme at an expense of around Rupees One Hundred and Ninety crores (Rs.190 Crores). He therefore submits that the impugned notices dated 22nd August, 2022 deserved to be quashed and set aside. In support of the aforesaid contentions he relied upon the judgements in the case of Ayaaubkhan Noorkhan Pathan vs State of Maharashtra & Ors reported in (2013) 4 SCC 465 and Pant Nagar Mahatma Phule Co-op Hsg. Society Ltd. & Ors vs State of Maharashtra and Others reported in 2016 SCC OnLine Bom 1784.

4) Per Contra Mr. Sawant, learned senior counsel representing Respondent No.1-MHADA opposed this Petition relying on the Affidavit of Apurva N. Chavan, Deputy Engineer, dated 21st November, 2022. He relied on the Annexure-II to support the decision and their contention that the slum was spread over only 26,173.66 sq mtrs. and not an area of 59,086.30 sq mtrs. He further relies upon a categorical statement made in paragraph 8 of the said Affidavit that the Assistant Land Manager had no authority to give an NOC for the area of 59,086.30 sq mtrs. He argued that, the only thing that was sought to be done by the impugned notice/letter dated 22nd August, 2022 was to take back the possession of the open land where there is no slum next to open land (admeasuring 32913 sq mtrs). He further contended that Respondent No.1 was required to dispose of their lands as per Maharashtra Housing and Development (Disposal of Land) Regulations, 1982, inviting tender by publishing advertisement as per Regulations 3 and 6 for persons classified based upon the income group namely, Economically Weaker Section, Low Income Group, Middle Income Group and Higher Income Group.

4.1) He further asserted that the Respondent No.1-MHADA was not entitled to dispose of any land in manner other than under the provisions made under Maharashtra Housing and Development (Disposal of Land) Regulations, 1982. He therefore contended that, the land sought to be taken over by the Petitioners was wrongly taken over and by these letters they simply repossessed these lands. He further submitted that Respondent No.1 has already taken possession of the land on 30th August, 2022 and thus the Petition deserved to be dismissed.

5) Ms. Geeta Shastri for Respondent No.2-SRA also opposed the Petition and relied on the Affidavit of Mr. Rajaram Patil, an Executive Engineer of SRA dated 25th January, 2023 in support thereof. She argued that, the Petition does not disclose any cause of action against Respondent No.2-SRA. She argued that the notices dated 22nd August, 2022 have been issued by MHADA and the relief sought in the Petition is also only against MHADA.

5.1) Ms. Shastri argued that, the Petitioners had suppressed material facts. She submits that, the Slum Rehabilitation Scheme proposed 9 rehabilitation buildings of which 6 buildings were completed and Occupation Certificates (OC) to the same had been issued way back in the year 2009 and 2010. However, out of total 1010 eligible slum dwellers only 777 were apparently accommodated. Moreover, as a matter of fact, although the Commencement Certificate (CC) to the other three buildings were issued on 13th August, 2004, 30th May, 2003 and on 5th September, 2015 the buildings were not completed. She argued that even an IOA for the 3rd building – viz. Building No.9, was not issued yet. Significantly, the Petitioner’s appointment as a developer was terminated by an Order dated 25th January, 2016.

5.2) She submits that, by letter dated 11th May, 2022, the Executive Engineer, Bandra Division of Respondent No.1-MHADA had informed the Executive Engineer of the Respondent No.2-SRA that the additional area communicated vide NOC dated 6th August, 2003 was not a part of the original Slum Rehabilitation Scheme as the same pertained to Nalla and DP Road area and was thus required to be deleted from the Slum Rehabilitation Scheme.

5.3) She argued that, Pursuant to Order of termination dated 25th January, 2016 the Petitioner had filed an Appeal before the High Power Committee (‘HPC’) which also was dismissed by an Order dated 29th April,

2017. However, the Order was partially modified on 29th April, 2017. She further argued that, in the Writ Petition bearing (L) No.2216 of 2019 filed by the Petitioner, this Court had directed the Respondent No.2-SRA not to take any coercive measures and not to take any steps to substitute the developer.

5.4) However, pursuant to the letters, the MHADA had taken over the possession on 30th August, 2022 itself, of the excess land which was not a part of the slum. She therefore submitted that, the Petition deserves to be dismissed.

6) Mr. Mayur Khandeparkar, learned Advocate appearing for the Intervenor relied upon his Interim Application No.38304 of 2022, Order passed by the SRA and the High Power Committee (HPC) to submit that HPC by the Order dated 29th April, 2017 had permitted termination of the Petitioner as developer and appointment of a new developer instead. Following that, by an Order dated 26th July, 2019 passed by the Assistant as a new developer.

6.1) He further argued that, the Order dated 25th January, 2016 that was passed under Section 13(2) was in view of the incompetence of the old developer. The removal was supported by the three societies namely the Shivaji Nagar Cooperative Housing Society, Loknayak Nagar Cooperative Housing Society and The New Kapaswadi Cooperative Housing Society who had made an application dated 13th February, 2020 and had requested for a change of the developer in view of the inordinate delay of more than two decades caused in implementation of the Scheme as well as promoting erection of further illegal and unauthorised slums.

6.2) He argued that, following these complaints by the three societies, the concerned Authority had taken action. Therefore, inspite of knowing that the Intervenor was appointed as the new developer, the Petitioner had failed to make them a party to the Petition thereby attempting to snatch an order from the Court. He therefore submitted in the above circumstances the Petition should be dismissed and in any event, if Petition was to be entertained, no orders could be passed in the intervenors absence.

7) We have heard all Advocates for the parties and perused record.

8) Although it seems to be very innocuous Petition, the same is misleading. We find that there are disputed questions of facts which are raised by the Respondent No.1. It appears from the records that the Petitioners were given rights to develop 59,086.30 sq mtrs. The Respondent No.2-MHADA contends that lands admeasuring 32913 sq. mtrs. are open lands and includes nala and the D.P. Road. According to them only 26173.66 sq. mtrs. had slums. Thus, the question whether the area was 59,086.30 sq mtrs or 26,173.66 sq mtrs under slums is a dispute that we cannot entertain in our Writ jurisdiction. The ratio laid down by the Supreme Court in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 squarely applies to the case in hand.

9) Perusal of the record indicates that the Petitioners have failed to construct the balance 3 buildings since 2010. This in our view is clearly and an inordinate delay. We find no satisfactory explanation for this delay in the Petition. Even otherwise, the Petitioners have constructed only 6 buildings over a period of 7 years and rehabilitated only 777 slum dwellers out of a total 1010. This certainly is far too long a period for a slum scheme is expected to be implemented. It has been more than two decades that this Scheme is being implemented. As per the Affidavit of Mr. Rajaram Patil representing Respondent No.2-SRA it appears that, the commencement certificate to the 2 out of the 3 buildings were issued on 13th August, 2004 and 30th May, 2003. These buildings are not yet completed. Present is a clear case of inordinate delay in implementing and completing the SRA project. In view of the afore-stated facts and circumstances, we do not find any merit in the Petition.

10) The HPC in its Order dated 29th April 2017, referred to the Judgment of this Court in the case of Ravi Ashish Land Developers V/s Prakash Pandurang Kamble & Ors. reported in 2013 SCC OnLine Bom

2331. In para 14 of the Order dated 7th December, 2013 the learned Single Judge of this Court has observed as under: “When the Slum Rehabilitation Projects which are undertaken by the statutory authority enjoying enormous statutory power, are incomplete even after twenty years of their commencement, then it speaks voluminous of the competency of this Authority and the officials manning the same. In all such matters, they must ensure timely completion of the projects by appropriate intervention and intermittently. They may not, after issuance of Letter of Intent or renewals thereof, fold their hands and wait for developer to complete the project. They are not helpless in either removing the slum dwellers or the developer. The speed with which they remove the slum dwellers from site, it is expected from them they must proceed against errant builders and developers and ensure their removal and replacement by other competent agency”…….” The Slum Rehabilitation Authority has been conferred with the powers and each one of them coupled with a duty. If the slum dwellers are eligible to be entitled to be rehabilitated at site and within a reasonable period, they cannot be left at the mercy of developer and builders.” …..” The slum dwellers expect that the authorities like SRA should take note of their grievances without any fear, favour and affection towards any set of developer. An independent and impartial implementation and supervision so also monitoring of the projects is the purpose for which the Authority has been set up”.

11) Moreover, by an Order dated 11th December 2023 this Court had refused to entertain the Petition challenging the Order of HPC dated 29th April, 2017. In paragraph 46 the Order stated that: “46. If the court is satisfied with the result of the meeting, then it goes without saying that the Petitioner will be bound by the outcome. Equally the 9th Respondent and Respondent Nos.[3] to 5 will also necessarily be bound by the outcome of the meeting if the report of the SRA is accepted by the court. In other words, there is no possibility of this exercise being undergone and yet leaving the Petitioner an opportunity to argue the Petition on merits thereafter.”

12) We have dismissed the Writ Petition No. 2041 of 2021 by an Order of even date. In view of the dismissal of Writ Petition No.2041 of 2021, this Petition would be that of a developer whose appointment has been terminated and thus has no ground to maintain a Petition, for MHADA reducing the area under the LOI and recovering vacant lands. Therefore, the ground that the notices for resumption of land were issued ex parte does not merit any reason for maintaining this Petition, inasmuch as the letter was issued post their termination by the SRA and upheld by the AGRC.

13) The judgements in the case of Ayaaubkhan Noorkhan Pathan (supra) which explains the words “legal right” being one whose right or interest has been adversely affected or jeopardized relied upon by Mr. Lohia is of no avail inasmuch as the “legal right” has been adjudicated by the AGRC and which Order is not under challenge in the present Petition.

14) The reliance upon the judgement in the case of Pant Nagar Mahatma Phule Co-op Hsg. Society Ltd & Ors. (supra) to canvas the proposition that it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area and there can be a scheme for a viable stretch of pavement also does not assist him as these constitute disputed questions of facts which a Court in its jurisdiction under Article 226, ought not to entertain.

15) We therefore dismiss the Petition with no order as to costs.

16) In view of disposal of Writ Petition, Interim Applications filed therein do not survive and are also disposed off. (KAMAL KHATA, J.) (A.S. GADKARI, J.)

17) At this stage Mr. Lohia, learned counsel for Petitioner requested this Court to continue the ad-interim relief granted by Order dated 30th August 2022.

18) Mr. Khandeparkar, learned counsel for Intervenor opposed the said request and submitted that, the said request may not be entertained.

19) Mr. Lohia, learned counsel for Petitioner drew our attention to the Order dated 3rd March 2025 passed in Civil Appeal No. 3533 of 2025 of the Hon’ble Supreme Court.

20) In view of the observations made by the Hon’ble Supreme Court vide Order dated 3rd March 2025 passed in Civil Appeal No. 3533 of 2025, the ad-interim relief granted by Order dated 30th August 2022 is extended by two weeks from today. (KAMAL KHATA, J.) (A.S. GADKARI, J.)