Swapnapurti SRA Co-op. Housing Society Ltd. v. The Chief Executive Officer, SRA

8. The submissions of Mr. Thorat, learned Senior Counsel for Shivraj Developers and Mr. Upadhyay, learned Counsel appearing for proposed Society, (assuming that Writ Petition No.983 is maintainable) are required to be examined in the light of above factual position. It is their submission that both the impugned orders passed by the CEO, SRA and AGRC are without jurisdiction as Section 13(2) of the Slum Act will not apply to the facts of the present case and the exercise which has been directed by the CEO, SRA is outside the scope of Section 13(2) of the Slum Act.

9. For considering submissions of Mr. Thorat, learned Senior Counsel appearing for the Petitioner - Shivraj Developers, it is necessary to set out Section 13 (2) of the Slum Act, which reads as under: “13. Power of Slum Rehabilitation Authority to develop Slum Rehabilitation Area.— (1) … (2) Where on declaration of any land as Slum Rehabilitation Area, the Chief Executive Officer is satisfied that, the land in the Slum Rehabilitation Area has been or is being developed by the owners, landholders or occupants or developers in contravention of the plans duly approved, or any restrictions or conditions imposed under sub-section (10) of section 12, or in contravention of any provision of any Slum Rehabilitation Scheme or any condition specified in the approval or has not Dusane Page No. 11/21 been developed within the time, as specified under such conditions of approval, he may, by order, determine to develop the land declared as Slum Rehabilitation Area by entrusting it to any agency or the other developer recognized by him for the purpose.” It is the submission of Mr. Thorat, learned Senior Counsel that the impugned orders although purported to be passed under Section 13(2) of the Slum Act, they have been passed on the parameters which are outside the scope of the said provision. He submits that for exercising jurisdiction under Section 13(2), it has to be established that the Developer has developed the SRA Scheme in contravention of any provision of any Slum Rehabilitation Scheme or any condition specified in the approval or has not been developed within the time, as specified under such conditions of approval. Mr. Thorat, learned Senior Counsel submits that none of these factors are taken into consideration while passing the impugned orders.

10. Mr. Thorat, learned Senior Counsel pointed out following portion of the impugned Order dated 1st February 2021 of the CEO, SRA: “It is pertinent to note that the correspondence relied upon by Respondent No.3 is not disputed by Respondent No.2. The Respondent No.3 alongwith written submission has enclosed the copy of report of Dy. Registrar/SRA dated 24.05.2012. From said report it appears that the Dy. verified the fact of General Body Meeting dated Dusane Page No. 12/21 25.07.2011. Further there is letter of Dy. Collector/SRA dated 18.04.2016. In said letter Dy. Collector has stated that on 21.03.2016 the Respondent No.1 society has submitted a letter stating that the complaint against Respondent No.3 developer was submitted by them due to misunderstanding. Further letter of Deputy Collector/SRA dated 24.04.2018 addressed to Executive Engineer/SRA reveals that the Competent Authority has informed the SRA that out of total 67 slum dwellers the 52 slum dwellers have given consent to Respondent No.3 in writing. All these documents supports the claim of Respondent No.3. Prima facie from record it appears that Respondent No.3 is having requisite consent of slum dwellers. However the claim of Respondent No.2 is that out of 49 eligible slum dwellers, total 27 slum dwellers are with them. Considering the overall facts and circumstances, this Authority is of opinion that it will not be proper to terminate the Respondent No.3 as developer of subject SR Scheme without verifying the requisite consent. The General Body Resolutions available on record indicates that no General Body meeting of Respondent no.1 society has been conducted in the presence of representative of SRA. So it will be just and proper to direct the parties to get verified the consent by holding General Body meeting of Respondent No.1 society in presence of representative of SRA.” Thus, CEO, SRA has recorded that the General Body Meeting of the Society held on 25th July 2011 has not been conducted in the presence of the representative of SRA. In said General Body Meeting 52 out of 67 Slum Dwellers have given consent to Shivraj Developers, however, as noted in documents annexed to the Affidavit-in-Reply filed on behalf of the SRA, the eligible Slum Dwellers are only 57. Thus, by taking into Dusane Page No. 13/21 consideration several aspects by said Order dated 1st February 2021 the parties were directed to get verified the consents of Shivraj Developer by holding General Body Meeting of the Society in the presence of representative of SRA. The said Order dated 1st February 2021 of the CEO, SRA is confirmed by the AGRC.

11. It is submitted by Mr. Thorat, learned Senior Counsel that the impugned Order has been passed outside the scope of Section 13(2) of the Slum Act. To answer the said submission of Mr. Thorat, learned Senior Counsel, Mr. Patil, learned Counsel appearing for the SRA has relied on the decision of the Division Bench of this Court in Lokhandwala Infrastruture Pvt. Ltd. Vs. State of Maharashtra[1]. He pointed out the issue which has been raised in the said decision as more particularly set out in paragraphs 5(a) and (b). He pointed out the relevant discussion in paragraphs 8 and 9. Thus, it is the submission of Mr. Patil, learned Counsel for SRA that the aspects which have been considered in the impugned orders can be considered while passing order under Section 13(2) of the Slum Act. Mr. Thorat, learned Senior Counsel pointed out paragraph 10 and submitted that the factual aspects which are involved in the said decision of Lokhandwala (supra) are totally different and therefore the said decision will not apply to the facts of the present case.

12. For appreciating the rival contentions, it is necessary to set out paragraph Nos.5(a), (b) and 8 to 10 of the said decision of Lokhandwala (supra), which read as under:

Dusane Page No. 15/21 with Saibaba-proposed was terminated, this Court had observed in its order dated 24 July 2006 that the general body meeting was held in presence of persons other then members of association. The Court in particular observed as under:— “It appears that the SRA scheme has become a profitable business venture attracting persons, who are forcing their decision on the slum dwellers by the posts they are holding, their reputation past or present or otherwise. This Court cannot close its eyes to these new developments taking place in development of SRA scheme. This Court will have to examine as to whether it is desirable that such influences can be exerted by persons who are not members of the Association. The SRA scheme are meant for the benefit of the slum dwellers. This court in such cases normally does not interfere if the SRA scheme is sanctioned. However, we find that those who should not participate in the decision making process are not only participating but are also taking the responsibility on themselves to decide as to who should be the builder. This is totally undesirable.”

9. Thus issue whether or not general body resolution dated 12 August 2005 was genuinely passed was being challenged from the very beginning.

10. Besides as pointed out before us the General Body Resolution dated 12 August 2005 had 534 signatures which apparently were not genuine in as much as 247 of them were signed by persons other than the members of the society, 252 members had common signatures i.e. one person signing on behalf of two or more members. At times common signatures were put in respect of more than eight members. All this does throw grave doubt and suspicion on the genuineness of the consent granted by the members in the general body held on 12 August 2005. In fact, it is relevant to note that common consent claimed to have been obtained on 26 August 2005 is on a stamp paper purchased Dusane Page No. 16/21 on 5 September 2005 in respect of a General Body meeting which was held on 12 August 2005. All these facts tear into the genuineness of the meeting held on 12 August 2005...”

13. In the said decision of Lokhandwala (supra), a Division Bench of this Court was considering the aspect whether the State of Maharashtra has jurisdiction to entertain the representation made by the Slum Dwellers to hold a fresh General Body Meeting by secret ballot to determine whether or not the Developer has requisite consents of the slum dwellers. The Division Bench has held that as in the said case it was found that General Body Meeting was held in the presence of persons other than members of the Society and the signatures on the Consents were not genuine the State of Maharashtra / SRA can examine the said aspects.

14. In the present case, the Petitioner has been appointed as Developer on 5th May 2012 pursuant to the Resolution passed in the General Body Meeting of the Society on 25th July 2011. It appears that since beginning some of the Slum Dwellers have raised the contention that the said meeting has not been conducted in a legal manner. To support the said contention, Mr. Warange, learned Counsel appearing for the Applicants in Interim Application No.24159 of 2024 pointed out letter dated 22nd December 2015. In the said letter, it is mentioned that in-effect one Raj Developers was selected and Shivraj Developers has fabricated the record and claiming that consents are given to Shivraj Dusane Page No. 17/21 Developers. Thus, the observations of the Division Bench in Lokhandwala (supra) also will apply to the present case.

15. It is required to be noted that the basis of all these Slum Redevelopment Schemes is the consent given by 51% of eligible hutment dwellers (earlier more than 70% of the eligible hutment dwellers) and thus verification of said consents by SRA is very important. Admittedly, in the present case representative of SRA was not present when the General Body Meeting of the Society took place on 25th July 2011. Thus, the Authorities of SRA failed to verify whether the consents given in said General Body Meeting of the Society is by eligible hutment dwellers and whether they have given consent to Shivraj Developers. This is significant as although 57 members of the Society are eligible hutment dwellers, 67 persons have attended the said meeting held on 25th July 2011. Apart from that as noted herein above, it is the contention of the Applicants – hutment dwellers that the said consents were given to Raj Developers and Shivraj Developers has fabricated the record and claiming that consents are given to Shivraj Developers. Thus, the said observations in the case of Lokhandwala (supra) are applicable to the present case as there is grave doubt about the genuineness of the consents given in the General Body Meeting of the Society held on 25th July 2011.

16. It is required to be noted that in the meetings of the General Body Dusane Page No. 18/21 of the Society conducted pursuant to the impugned Orders, out of 57 eligible members, 32 members i.e. 56.14% have supported the appointment of the Dharti Developers as developer and 33 i.e. 57.89% members have confirmed that they have not given consent to the Shivraj Developers. Thus, about 57% of the eligible Slum Dwellers have stated that they have not given consent to the Shivraj Developers and about 56% have supported the appointment of Dharti Developers.

17. The Respondent No.7 i.e. Dharti Saisha Developers LLP has filed additional Affidavit of Sagar Baldevraj Aneja, Partner of Respondent No.7 dated 7th October 2024 and stated in paragraph No.9 as follows: “9. “I hereby say and submit that as far as the present Respondent is concerned, they have complied with each and every directions/ orders of the Slum Authority and even provided advance rent as well as temporary accommodations to the occupants. The Respondent has also obtained requisite consent Affidavits and entered into Agreement as required under law. The Respondent has also provided requisite Bank Guarantee to the Slum Authority and also got appointed various agencies like, MEP consultants, RCC consultants, Licensed Electric Contractors also provided all safety measures as required by the Slum Authority. The Respondent is awaiting Commencement Certificate for commencement of construction work and the Respondent hereby assures that subject to the natural hindrances, the Respondent would complete the project in time bound manner.” Thus, pursuant to the said General Body Meeting conducted under the supervision of SRA on 20th September 2022 and on 22nd May 2023, Dusane Page No. 19/21 revised Letter of Intent has been issued in favour of Dharti Developers on 1st August 2024. The said Affidavit shows that the rent has been deposited by Dharti Developers for a period of two years and the members of the Society have received the rent. This is a case where all the members of the Society i.e. all the occupants have vacated the respective slum structures and Dharti Developers is taking effective steps for completion of the project in time bound manner.

18. It is also required to be noted that Clause No.3 of operative part of the impugned Order dated 1st February 2021 of CEO, SRA, Bandra (East), Mumbai directs that if the new developer is appointed instead of Shivraj Developers, then new developer should reimburse the actual expenses incurred by Shivraj Developers in respect of the subject SR Scheme as determined by the Government approved valuer. Thus, by the impugned Order the interest of the Petitioner – Shivraj Developers is adequately protected.

19. Apart from several aspects which have been discussed herein above, the factual position on record shows that although it is the claim of Shivraj Developers that it has been appointed as Developer to carry out redevelopment of the subject SR Scheme in the year 2011, no effective steps were taken till the 2021 when the CEO, SRA passed the impugned order.

20. The jurisdiction under Article 226 of the Constitution of India is Dusane Page No. 20/21 extraordinary and discretionary. The jurisdiction is to be exercised to remedy injustice. The jurisdiction is to be exercised in case of abuse of power or neglect of a duty by the public authority. Thus, for the reasons set out herein above and on the touchstone of the principles for exercise of jurisdiction under Article 226 of the Constitution of India, no case is made out for interference. Accordingly, the Writ Petitions are dismissed.

21. In view of dismissal of the Writ Petitions, nothing survive in the Interim Applications, and the same are also disposed of. (MADHAV J. JAMDAR, J.) Dusane Page No. 21/21