Shailesh Mulchand Savla v. The Chief Executive Officer, Slum Rehabilitation Authority & Ors.

16 Mr. Surana, the learned counsel appearing for the Petitioner would submit that CEO/SRA erred in directing termination of Petitioner under exercise of jurisdiction under section 13(2) of the Slum Act, when construction of the entire rehab building is already completed by Petitioner. He would submit that apart from completion of the entire construction of rehab building, the tenements in rehab building are already occupied by the slum dwellers for the last 19 long years. He would submit that Petitioner has already fulfilled obligations in respect of construction of rehab tenements which are already occupied by the slum dwellers. That only a formality of issuance of occupancy certificate is remaining, which is held up essentially on account of seizure of all records of the case by EOW. He would demonstrate various efforts made by Petitioner from time to time for procurement of katkam Page No. 11 of 41 occupancy certificate in respect of rehab building. He would also demonstrate as to how members of Respondent Nos.[2] and 3-Societies are forcibly occupying the rehab tenements in the year 2005. He would submit that the allotment of rehab tenements to their members are made by Respondent Nos.[2] and 3-Societies and list of allotment was submitted by the Societies to SRA. He would draw my attention to copy of ‘Allotment list of rehab building’ submitted by the Societies to SRA, which the Petitioner has procured from SRA through Right to Information Act, 2005.

17 Mr. Surana would draw my attention to the application filed by two individual members of the Societies, who, according to him, had no right to file any application on behalf of the Societies. That Administrator of Respondent No.2-Society was appointed on 15 May 2017 and therefore Mr. Siddiqui Abdul Kadar had no right to file application under section 13 (2) of the Slum Act on behalf of the Respondent No.2-Society. He would take me through the pleadings in the application to demonstrate as to how the same was filed at the behest of Respondent No.4. That triggering of application under section 13 (2) of the Slum Act by Respondent No.4 became apparent when the applicants filed application for impleadment of Respondent No.4 as party Respondent to their application. That though the proceedings for termination of Developer under section 13(2) of the Slum Act is purely a dispute between Society and SRA, Respondent No.4 was erroneously permitted to intervene in those proceedings by CEO/SRA making it abundantly clear that it was Respondent No.4 who drove the entire proceedings before CEO/SRA. Mr. Surana would draw my attention to Show Cause Notice issued in application under section 13 (2) of the Slum Act and katkam Page No. 12 of 41 according to him, the same was issued only in respect of five allegations of (i) failure to complete SRS, (ii) registration of FIR, (iii) failure to fulfill promise and rehabilitate slum dwellers, (iv) induction of slum dwellers in rehab building without Occupancy Certificate and (v) induction of 19 outsiders in rehab tenements. He would submit that when the Order passed by CEO/SRA is compared with the show-cause notice, it is clear that CEO/SRA has travelled outside the scope of show-cause notice while passing the final order dated 25 November 2020. That though the allegation was in respect of induction of only 19 outsiders in rehab in tenements, CEO/SRA has recorded a finding that 150 unauthorized occupants were inducted by Petitioner. That Petitioner was not given opportunity to defend in respect of various findings recorded by CEO/SRA, which are outside the scope of show-cause notice. That there was no allegation in the show-cause notice that Petitioner constructed anything beyond the permission in rehab or sale component building though he is held guilty of such conduct in the final order dated 25 November 2020.

18 Mr. Surana would submit that CEO/SRA failed to appreciate that nonissuance of occupancy certificate in respect of rehab building is attributable to reasons beyond the control of Petitioner. That Respondent No.4 has deliberately embroiled the entire project in several controversies by ensuring that minor irregularities are not regularized and occupancy certificate is not issued. That the complaints to EOW, Enforcement Directorate etc. are all stage-managed by Respondent No. 4 with a view to ensure Petitioner’s ouster from the SRS. katkam Page No. 13 of 41 19 Mr. Surana would further invite my attention to the proposal processed for regularization of rehab building and for grant of occupancy certificate. He would submit that during pendency of the application filed under Section 13(2) of the Slum Act, SRA had in fact processed and recommended regularization of rehab building and issuance of occupancy certificate. That in file notings sanctioned up to the Deputy Chief Engineer (SRA), it was proposed to withdraw all notices issued under MRTP Act subject to payment of regularization charges. Proposal was put for charge of penalty of either Rs.9.78 crores or reduced penalty of Rs.6.26 crores. That the CEO/SRA deliberately rejected the said proposal with a view to pass an order against Section 13(2) of the Slum Act for Petitioner’s removal. That if the proposal processed in September 2019 was to be accepted, occupancy certificate in respect of rehab component building could have easily been issued thereby frustrating the pending proceedings under section 13(2) of the Slum Act. That however Respondent No.4 orchestrated rejection of the said proposal with a view to ensure Petitioner’s ouster from the project.

20 Mr. Surana would further submit that the order passed by CEO/SRA otherwise suffered from complete non-application of mind. That the proceedings under section 13 (2) of the Slum Act are misused for the purpose of seeking change of Developer by the Societies, when in fact the scope of inquiry under section 13(2) of the Slum Act does not permit CEO/SRA to decide competing claims of two Developers in respect of any SRS. In support of his contention, he would rely upon the judgment of the Apex Court in Susme Builders Private Limited vs. Chief Executive Officer, Slum Rehabilitation Authority, (2018) 2 SCC 230. He would also rely upon katkam Page No. 14 of 41 judgment of Division Bench of this Court in Awdesh Vasistha Tiwari vs. Chief Executive Officer, Slum Rehabilitation Authority, 2006(4) Mh.L.J. 282 in support of his contention that slum dwellers have limited right to receive rehab tenement and they cannot go into the issue of choice of Developer for implementation of SRS.

21. Lastly, Mr. Surana would contend that AGRC has rejected the Appeal of Petitioner in undue hurry. He would submit that the hearing of the Appeal was concluded on 14 May 2021 and all parties were granted time of 15 days to file their written submissions. That Petitioner has filed his written submissions on 28th May 2021 at 3 p.m. and 29th and 30th May 2021 being Saturday and Sunday (non-working days) AGRC could not have passed order immediately on the following day i.e. on 31 May 2021. He would submit that the order was hurriedly passed because the Chairman of AGRC was transferred out of his post on 3 June 2021. He would doubt as to whether order could have been passed on 31 May 2021 since the same was uploaded on the website only on 14 June 2021. Mr. Surana would therefore pray for setting aside the orders passed by CEO/ SRA and AGRC and allow Petitioner to execute the subject SRS.

22 Mr. Khambata alongwith Mr. Kamdar, the learned senior advocates, would appear on behalf of Respondent No.2-Society and submit that there has been a complete failure on the part of Petitioner to implement the subject SRS for over 20 long years. He would innumerate as many as 13 lapses on the part of Petitioner, which are not completed on account of which, occupancy certificate in respect of the rehab component building can never be issued. katkam Page No. 15 of 41 Mr. Khambata would submit that some of the lapses and illegalities committed by Petitioner are virtually incurable. That he has inducted outsiders in PAP tenements, which he was supposed to be transferred to SRA. That additionally he has inducted unauthorized persons in the rehab tenements, who have been occupying the same for a considerable period of time. That he has sold both PAP as well as rehab tenements to outsiders. That he has not taken any steps by filing proceedings before SRA for eviction of such unauthorized occupants from Rehab/PAP tenements, which is evident of the fact their induction is at the behest and with active connivance of the Petitioner.

23 Mr. Khambata would further submit that Petitioner has traded the subject SRS with Respondent No.4 without completing his obligations to construct rehab building. That he has pocketed as many as Rs.101 crores by illegally trading the subject SRS. That he has created complications by involvement of Respondent No.4 by assigning his rights, resulting in filing of Suit by Respondent No.4 in this Court. That the very fact that Petitioner has assigned the subject SRS to Respondent No.4 speaks volumes about absence of will as well as capacity to execute the same. That the members of Respondent No.2-Society do not wish to continue Petitioner as the Developer for implementation of subject SRS. That they have waited for more than 25 years and cannot wait any longer. That Petitioner has neither capacity nor will complete the subject SRS and jurisdiction under section 13(2) of the Slum Act has rightly been exercised by CEO/SRA for termination of Petitioner, who has failed to complete subject SRS despite passage of 25 long years. katkam Page No. 16 of 41 24 Mr. Khambata would submit that there are concurrent findings recorded by CEO/SRA and AGRC about non-adherence of conditions set out in LOI, construction of illegal 8th floor in rehab building, nonprocurement of occupancy certificate for rehab building, selling of 42 PAP tenements, failure to initiate action for eviction of illegal occupants, failure to construct primary school, failure to take steps for regularization of illegal construction, illegal trading of the scheme and lodging of criminal cases against the Petitioner. That Petitioner has no answer in respect of the above concurrent findings recorded by CEO, SRA and AGRC.

25 Mr. Khambata would further submit that the Apex Court has held in Susme Builders (supra) that findings of fact given by CEO/SRA about holding Developer responsible for delay cannot be disturbed by this Court. Relying on judgment of Division Bench of this Court in Hi Tech India Construction vs. CEO, SRA, Mumbai 2013 (3) Mh.L.J. 707. Mr. Khambata would submit that mere writing of letters to SRA cannot be a ground to condone delay in implementation of SRS. That in the present case, apart from submitting proposals for regularization of illegal construction and for issuance of occupancy certificate, Petitioner has failed to get the construction regularized nor has procured occupancy certificate in respect of rehab building. That, therefore mere submission of proposals to SRA cannot be a ground for condoning the delay as held by this Court in Hi Tech India Construction.

26 Mr. Kambata would further submit that the order passed by the AGRC is balanced one. That though Respondent No.2-Society had appointed katkam Page No. 17 of 41 Respondent No.4 as Developer in the validly conducted general body meeting held on 25 August 2018, AGRC has directed conduct of fresh general body meeting in presence of authorized officers of SRA for selecting a new Developer. That therefore it cannot be stated that CEO/SRA or AGRC has handed over project to Respondent No.4. He would submit that in pursuance of the direction issued by AGRC, Respondent No.2-Society has held the general body meeting on 7 August 2020. However, on account of orders passed by this Court, the resolution adopted in the meeting has not been acted upon. Mr. Khambata would therefore urge that Respondent No.2- Society must be permitted to appoint new Developer for completion of the subject SRS.

27 Mr. Phoole, the learned counsel appearing for Respondent No.3- Society would adopt the submissions of Mr. Khambata. Additionally, he would submit that Petitioner is a habitual offender and has indulged in mass illegal construction both in rehab as well as sale component buildings. That instead of completing the subject SRS, Petitioner is more interested in minting money out of the same. That he has pocketed crores of rupees from Respondent No.4. That as against receipt of development permission for construction of only plinth of salable building, he illegally constructed 8th floor of sale component building, which led to issuance of Notice under section 53 (1) of MRTP Act on 23 December 2005. That execution of assignment by Petitioner in favor of Respondent No.4 is clearly indicative of lack of financial capacity of Petitioner to continue with SRS. That in respect of another SRS at village Pahadi Goregaon, Taluka Borivali, appointment of Petitioner has been terminated as Developer by order dated 28 September katkam Page No. 18 of 41

2016. Simultaneously in respect of another SRS at Wadala, appointment of Petitioner is terminated by order dated 21 August 2008. That in both the schemes, termination was required to be done on account of inordinate delay on the part of Petitioner in completing those SRS. That findings recorded by CEO/ SRA and AGRC do not suffer any patent error and therefore interference by this Court in those findings is not warranted.

28. Mr. Sakhardande, the learned Senior Advocate appearing for Respondent No.4 would submit that the disputes between Petitioner and Respondent No.4 would be adjudicated in pending Suit before this Court. That Petitioner did not challenge the order passed by CEO/SRA directing impleadment of Respondent No.4 to proceedings filed under section 13(2) of the Slum Act. He would submit that Petitioner has no capacity to complete the subject SRS on account of which, he has assigned the same to Respondent No.4. However he is not honouring his obligations arising out of assignment, which has led to filing Suit against the Petitioner by Respondent No.4.

29 Mr. Patil, the learned counsel appearing for Respondent No.1-SRA would oppose the Petition and support the order passed by the CEO/SRA. He would submit that the orders passed by CEO/SRA does not suffer from any palpable error for this court to interfere in finding of fact recorded by CEO/SRA. That till date, occupancy certificate in respect of rehab building has not been issued, which shows that Petitioner is incapable of completing the subject SRS. That CEO/SRA has applied his mind to all the relevant katkam Page No. 19 of 41 factors. That his order is well reasoned and does not warrant any interference in exercise of writ jurisdiction by this Court.

30 Mr. Aradwad (Reddy), the learned counsel appearing for Respondent No.5-AGRC would also oppose the Petition and support the order passed by the AGRC. He would submit that the AGRC has considered all the objections raised by the Petitioner to the order passed by CEO/SRA and has dealt with the same in the detailed and well-reasoned order dated 31 May

2021. He would take me through various findings recorded by AGRC to demonstrate as to how they do not suffer from the vice of perversity. He would pray for dismissal of the Petition. Reasoning and analysis

31. I have considered the submissions canvassed by the learned counsel appearing for rival parties, in the light of documents placed on record and have gone through the orders passed by CEO/SRA and AGRC.

32 The issue involved in the present Petition is whether CEO/SRA could have directed termination of Petitioner in exercise of jurisdiction under section 13 of the Slum Act. Under Section 13(2) of the Slum Act, the Competent Authority is empowered to pass an order for redevelopment of the land in respect of which clearance order is issued at its own costs. Section 13 of the Slum Act provides thus: katkam Page No. 20 of 41 "13. Power of Competent Authority to redevelop clearance area (1) Notwithstanding anything contained in sub-section (1) of Section 12 the Competent Authority may, at any time after the land has been cleared of buildings in accordance with a clearance order, but before the work of redevelopment of that land has been commenced by the owner, by order, determine to redevelop the land at its own cost, if that Authority is satisfied that it is necessary in the public interest to do so. (2) Where land has been cleared of the buildings in accordance with a clearance order, the Competent Authority, if it is satisfied that the land has been, or is being, redeveloped by the owner thereof in contravention of plans duly approved, or any restrictions or conditions imposed under sub-section (10) of Section 12, or has not been redeveloped within the time, if any, specified under such conditions, may, by order, determine to redevelop the land at its own cost: Provided that, before passing such order, the owner shall be given a reasonable opportunity of showing cause why the order should not be passed."

33 Thus the order under section 13 (2) of the Slum Act can be passed by the Competent Authority in the two eventualities of (i) redevelopment by owner in contravention of plans duly approved or of any restrictions or conditions imposed under section 12(10) or (ii) where the land is not redeveloped within time specified and as per the conditions imposed under section 12(10).

34 In the present case, CEO/SRA has passed order dated 25 November 2020 after recording a conclusion that there is intentional delay and nonperformance on the part of the Petitioner in completion of the subject SRS. The scope of power to be exercised by the Competent Authority under section 13 (2) of the Slum Act has been discussed by the Apex Court in Susme Builders Private Limited (supra). The Apex Court rejected contention raised on behalf of the Developer therein that action under section 13 (2) of the Slum Act can be taken by SRA only against the owner and not katkam Page No. 21 of 41 against the Developer. The Apex Court held that since the slum dwellers are virtually the owners of the land, SRA has power under section 13(2) of Slum Act to pass an order for termination of Developer. The Apex Court held that if provisions of section 13(2) of the Slum Act are interpreted to mean that the action can only be taken against the owner, it would result in an anomalous situation where despite termination of contract with the Developer by the Society, the Developer would continue to assert rights on the basis of LOI issued by SRA. The Apex Court held the Developer therein guilty of delay in execution of SRS and held that CEO/SRA had rightly passed an order under section 13(2) of the Slum Act terminating the Developer. The findings recorded by the Apex Court about scope of powers under section 13(2) of the Slum Act as well as its power to remove Developer in Susme Builders Private Limited in paragraphs 43 to 53 of the judgment read thus.

44. 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.

45. 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 recognised agency under three circumstances:

(i) When there is contravention of the plans duly approved;

(ii) When there is contravention of any restriction or condition imposed under sub-section (10) of Section 12 of the Slum Act; and

(iii) When the development has not taken place within time, if any, specified.

46. The requirement to complete the development within time may be there in the letter of intent issued by the SRA or may be in the agreement entered into between the owner/developer with the slum-dwellers. Such condition, if violated, would attract the provisions of Section 13(2) of the Slum Act. Over and above that, when a clearance order is passed, then in terms of sub-section (10) of Section 12, the competent authority can include a condition with regard to the time within which the development should be completed and, in that case, also Section 13(2) would be attracted. We are not, however, able to accept the very wide argument that in case of delay, the condition that is violated must be laid down under Section 12(10) of the Slum Act.

47. 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.

48. Having held so, we are of the view that Shri Darius Khambata, learned Senior Counsel, is right in his submission that normally under Section 13(2) of the Slum Act, action by the SRA has to be taken against the owner. Here, we may repeat that this is a unique case where the slum-dwellers are the members of the owner Society. The Society, in turn, has given power of attorney to the builder. The builder virtually has two roles one as developer and the other as power-of-attorney holder of the owner. Both are closely interlinked and inextricably mixed with each other. Therefore, though normally we would have accepted the contention that under Section 13(2) action can only be taken against the owner, in the present case, we are unable to accept this contention in its totality. We may point out that even the SRA, in its order, has itself noted that since the Society is the owner of the plot of land, it is empowered and within its right to terminate the agreement executed with the said developer for breaches committed by the developer. It has, however, held that a private dispute between the Society and the developer cannot prevent the SRA from discharging its obligations. The SRA agreed with the submission made by the Society that Susme had not completed the project within time. It has taken action under Section 13(2) of the Slum Act. The action taken by the SRA is to remove Susme as developer which amounts to cancelling the letter of intent issued in favour of Susme.

49. 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 katkam Page No. 23 of 41 the SRA is the authority which issued the letter of intent, it will definitely have the power to cancel the letter of intent.

50. 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 24-2-2012. Whether the SRA has any other power to remove the developer

51. 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 3-A of the Slum Act, which read as under: "3-A. Slum Rehabilitation Authority for implementing Slum Rehabilitation Scheme.-(1) Notwithstanding anything contained in the foregoing provisions, 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. * * * (3) The powers, duties and functions of the Slum Rehabilitation Authority shall be- * * *

(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."

52. A bare reading of these provisions shows that in terms of clauses (c) and (d) of sub-section (3) of Section 3-A of the Slum Act, the SRA not only has the power, but it is duty-bound to get the slum rehabilitation scheme implemented and to do all such other acts and things as will be necessary for achieving the object of rehabilitation of slums. In this case, the SRA was faced with a situation where the slum-dwellers were suffering for more than 25 years and, therefore the action taken by SRA to remove Susme for the unjustified delay was totally justified.

53. 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. katkam Page No. 24 of 41 The owner, in turn, will always engage a developer/builder to carry out the development work. In case the owner gives a power of attorney to the developer, as in the present case, the developer now has two identities (i) the power-of-attorney holder of the owner, and (ii) the developer. As far as the present case is concerned, the Society is made up of the members who are occupiers and this Society has given power of attorney to the developer Susme. Therefore, the developer Susme is actually having a dual role of owner and developer. Both the letters of intent have been issued in favour of the Society, Susme and the architects of Susme. Susme could not have carried out the development work on the basis of its agreement with the Society. It needed the permission of the SRA. Therefore, SRA can obviously b revoke such permission."

35 Thus the law is settled in Susme Builders Private Limited that CEO/SRA has power under section 13(2) of the Slum Act to pass an order directing termination of a Developer by revoking the permission granted for implementation of SRS. Referring to provisions of section 3A of the Slum Act, the Apex Court held that SRA is also invested with power to cancel the LOI.

36 Since the law on the issue of power of CEO/SRA to terminate a Developer is already settled by the judgment of the Apex Court in Susme Builders Private Limited, the only issue to be decided in the present case is whether the order passed by CEO/SRA in the present case on 25 November 2020 can be sustained. As observed above, CEO/SRA has directed termination of Petitioner as Developer for implementation of subject SRS by holding him responsible for intentional delay and nonperformance. I now proceed to examine whether various findings recorded by CEO/SRA holding Petitioner responsible for intentional delay and non-performance, as upheld by AGRC, can be sustained in the facts and circumstances of the present case. katkam Page No. 25 of 41 37 Mr. Surana has sought to rely upon judgment of Division Bench of this Court in Awdesh Vasistha Tiwari (supra) in support of his contention that individual slum dwellers do not have right to decide the Developer who can implement SRS. Reliance is placed on paragraph 13 of the judgment which reads thus:

13. Regulation 33(10) of D.C.Regulations provides for a scheme for rehabilitation of slum dwellers. Under such rehabilitation scheme, there is a provision for providing a tenement in exchange of a dwelling structure whose inhabitants' names and structures appear in the electoral roll prepared with reference to 01st January,

1995. Clause (i) of Appendix IV of D.C. Regulation lays down that hutment dwellers in the slum or on pavement who are eligible in accordance with the provisions of D.C. Regulation 33(10) shall be entitled in exchange for their structure a residential tenement free of cost having carpet area of 225 sq.ft. including balcony, bath and water closet, but excluding common free of costs. Thus, the right of a hutment dweller who is in possession of a hutment on an area to which the Scheme is made applicable is for a tenement admeasuring 225 sq.ft. in exchange of the hut irrespective of the area of the hut. Thus, an individual hutment dweller gets this limited right apart from right to seek protection from eviction under section 3Z(1) of the Slum Act. However, there is nothing in the scheme of D.C. Regulation 33(10) that an individual slum dweller gets a right to decide which Society or which developer should implement the scheme.

38 By relying on the judgment in Awdesh Vasistha Tiwari, Mr. Surana has sought to suggest that application made by two individual slum dwellers could not have been entertained for the purpose of changing a Developer in the present case. In my view reliance of Mr. Surana on the judgment of this court in Awdesh Vasistha Tiwari is entirely misplaced. In that case, the issue before this Court was about competing claims of two proposed Societies for implementation of SRS in respect of same plot of land. The controversy before this Court was whether the SRA was correct in entertaining subsequently filed application by one Developer (supported by one of the Societies) during pendency of application made by another Society at a prior point of time. This Court held that the application filed at earlier point of katkam Page No. 26 of 41 time ought to have been first entertained and decided and it was only after rejection of the first application that subsequently filed application by another Society’s Developer could have been entertained by SRA. The observations made by Division Bench in paragraph 13 of the judgment are in the light of this controversy raised before the Court in that case. Therefore, the judgment in Awdesh Vasistha Tiwari cannot be relied upon in support of an absolute proposition that under no circumstances slum dwellers have right to choose Developer, who would implement the SRS. In fact, in Susme Builders Private Limited, the Apex Court has recognized the right of the Society/slum developers to file application before CEO/SRA under section 13 (2) of the Slum Act as well as power of SRA to terminate and change the Developer. Therefore, reliance of Mr. Surana on judgment in Awdesh Vasistha Tiwari is misplaced.

39 Mr. Surana has relied on interim order passed by this Court in Bombay Slum Redevelopment Corporation Pvt Ltd vs. SRA on 11 December 2023 in Writ Petition No.2041 of 2021, in support of his contention that slum dwellers already occupying rehab tenements cannot seek termination of Developer under section 13(2) of the Slum Act. In my view, reliance of Mr. Surana on the order passed in Bombay Slum Redevelopment Corporation Pvt Ltd is totally misplaced. Firstly, it is merely an interim order and cannot be read to mean laying down of any ratio of law. Secondly, the issue before the Division Bench in that case was about competing claims of persons already occupying rehab tenements and those who are still awaiting allotment of tenements. In the present case, the issue is entirely different. The issue is about entitlement of the Petitioner to continue as a Developer, who has failed katkam Page No. 27 of 41 to complete the subject SRS despite passage of 25 long years. As matter of fact, power under Section 13(2) of the Slum Act can be exercised suo moto by the CEO/SRA in absence of any application by the society or any slum dweller. Therefore, filing of application by Respondent Nos. 2 and 3 or by its members was not even necessary for passing of order under section 13(2) of the Slum Act. Therefore, occupation of rehab tenements by applicants, who filed application on 1 September 2018 is an irrelevant factor for exercise of jurisdiction by CEO/SRA under Section 13(2) of the Slum Act. Therefore, the reliance on Order in Bombay Slum Redevelopment Corporation Pvt Ltd appears to be misplaced.

40 Coming back to the issue of correctness of order passed by the CEO/SRA, it is Petitioner’s contention that there is neither delay nor nonperformance of obligations on his part as the entire rehab building has already been completed and 244 rehab tenements constructed by Petitioner are already occupied by the members of Respondent Nos.[2] and 3-Societies since July 2005. According to Petitioner, therefore, there was no cause of action for Respondent Nos.[2] and 3-Societies or their members to file an application under section 13(2) of the Slum Act. Perusal of the order passed by CEO/ SRA on 25 November 2020 would indicate that he has recorded a finding that Petitioner has not complied with the following conditions of IOA: "(a) Condition No.2 - Handing over of PAP (b) Condition No.7 - Completion certificate of E.E. (SWD)

(c) Condition No.8 - compliance from MTNL, BSES/MSEB.

(d) Condition No.9 - Debris removal certificate

(e) Condition No.12- To keep open surrounding space (f) Condition No.14 - Completion certificate of E.E. (T/C) (g) Condition No. 15-NOC from inspector of Lifts, PWD (h) Condition No.16 - Drainage completion certificate katkam Page No. 28 of 41 (1) Condition No.18 Specific clearance from Competent Authority for certificate that all eligible slum dwellers are rehabilitated (j) Condition No. 19 - Stability certificate from Structural Engineer. (k) Condition No.20 Building completion certificate from Architect. (1) Condition No.22 - Development work of layout RG.

(m) Condition No.23 - NOC from A.A. & C/MCGM.

(n) Condition No.24 Payment of extra water and sewerag charges to MCGM. (o) Condition No.25 reservations. Handing over of 59.81 sq. mtrs. D.P. (p) Condition No.26 - Completion certificate from Dy. C.E. (P & D) regarding accommodation reservation of Municipal Primary School." 41 CEO/SRA has held that it was Petitioner's responsibility to protect the site from trespassers and he cannot seek lame excuse alleging forcible entry of slum dwellers into rehab tenement due to alleged floods in July 2005. CEO/SRA has taken note of allegation of the Society that allotment of tenements was made by Petitioner himself. CEO/SRA has further held that Petitioner did not take steps to evict trespassers/unauthorized occupants from the tenements. CEO/SRA has accordingly held Petitioner responsible for unauthorized occupation of rehab tenements. CEO/SRA has further held that Petitioner has carried out construction beyond permission in rehab as well as sale component buildings leading to issuance of two MRTP notices dated 23 December 2005 and 1 June 2006 as well as stop work notice dated 8 December 2005. CEO/SRA has refused to believe undertaking sought to be given by Petitioner to obtain occupation certificate in the light of noncompletion of conditions enumerated above. CEO/SRA has further held that mere filing of applications for occupancy certificate was not sufficient and it was the responsibility of the Petitioner to procure the same. CEO/SRA has further taken note of entangling of Petitioner in several criminal and civil cases. CEO/SRA was in receipt of letter dated 15 September 2020 from katkam Page No. 29 of 41 Directorate of Enforcement about investigations initiated against Petitioner under provisions of PMLA with a direction to SRA not to allocate sale-FSI to Petitioner. CEO/SRA has further relied upon report of the Assistant in unauthorized occupation. Additionally, the report of the Assistant carried out by Petitioner. CEO/SRA was shown photographs at the site showing existence of slum structures, which fact was not disputed by the Petitioner. CEO/SRA has also taken note of the fact that the Petitioner has failed to handover PAP tenements, remove debris, develop layout RG or handed over DP reservation. On the basis of above broad reasonings, the CEO/SRA has held that there is intentional delay and nonperformance on the part of Petitioner.

42 The findings of fact recorded by CEO/SRA were tested in Appeal by Petitioner before AGRC. The AGRC, in its detailed order, has upheld the above findings of fact. AGRC has referred to Affidavit-in-Reply filed by the (Lodging) No.756 of 2017, in which it is disclosed that in ‘A’ and ‘B’ Wing of rehab building, 43 tenements are sold, 19 tenements are occupied by outsiders, 10 tenements are occupied by relatives of slum dwellers and 30 tenements were let out to tenants by original slum dwellers. AGRC has observed that Petitioner did not comply with 16 conditions of IOA. AGRC has taken note of execution of registered transfer deed and assignment deed dated 30 April 2013, by which Petitioner has transferred the subject SR Scheme in favor of Respondent No.4. AGRC has therefore held that katkam Page No. 30 of 41 Petitioner has illegally traded the subject SRS and unlawfully gained from it at the costs of State of Maharashtra and slum dwellers of the project. AGRC has therefore held that Petitioner is no more interested in completing the subject SRS. AGRC has taken note of the fact that proposal for SRS was submitted in the year 2000 and despite of lapse of more than 20 years, the SRS still remains incomplete. AGRC has noted that Petitioner has illegally constructed 8th floor which is not sanctioned by SRA. That Petitioner has not handed over possession of 42 PAP tenements to SRA and has in fact sold the same by inducting the purchasers in 42 PAP tenements. That as many as 150 tenements including, 42 PAP tenements, are unauthorizedly occupied. AGRC has refused to believe the story of entry by slum dwellers due to floods of July 2005 and has held Petitioner responsible for such unauthorized occupation of rehab tenements. AGRC has held that Petitioner has not constructed the buildable reservation of Primary School. AGRC has also taken note of the fact that in respect of sale component, Petitioner constructed 8th floors though the permission was only for construction of plinth. AGRC has also taken note of the fact that several civil and criminal proceedings are initiated against the Petitioner showing his incapacity and incapability of completing the subject SRS. AGRC has taken note of the antecedents of the Petitioner for holding that his termination is valid. However instead of permitting the Societies to act on previously held General Body Meeting dated 25 August 2018, AGRC has directed the Societies to conduct fresh general body meeting under the presence of Authorized Officer of Assistant Registrar, SRA for appointment of new Developer. katkam Page No. 31 of 41 43 The above finding recorded by CEO/SRA has upheld by AGRC are findings of fact recorded after taking into consideration the material on record and factual position at the site. By no stretch of imagination, those findings can be treated as perverse. The Apex Court has held in paragraph 78 of the judgment in Susme Builders Private Limited that finding recorded by CEO/ SRA about the responsibility for delay would constitute the findings of fact based on appreciation of material on record. It further held that such finding of fact cannot be disturbed unless the same is demonstrated as perverse. The Apex Court has held in paragraph 78 of the judgment as under. "78. After going through all the material placed on record, we are clearly of the view that the finding given by the SRA that the appellant was responsible for the delay, is a finding based on appreciation of material on record. It cannot be said to be a perverse finding. It is a finding of fact and, therefore, the Bombay High Court was justified in coming to the conclusion that it could not set aside this finding of fact in writ jurisdiction. We may, however, add that since lengthy arguments were addressed, we have ourselves gone through the various documents and though there may have been a few stop orders and a few occasions when Susme may not have been able to raise the construction but, by and large, Susme was itself guilty of delaying the construction for no reason at all. We, therefore, hold that Susme was rightly held responsible for the delay in implementation of the rehabilitation scheme and, as such, we find no error in the impugned order." Therefore, as held in paragraph 78 of the judgment in Susme Builders Private Limited (supra) this court would be in loathe in interfering such findings of fact recorded by CEO/SRA and which are upheld in Appeal by AGRC in absence of any perversity being shown in those findings.

44 Petitioner has raised objection about maintainability of the application filed by two individual slum dwellers. In this regard it must be observed that the CEO/SRA is competent to take action suo moto under section 13(2) of the katkam Page No. 32 of 41 Slum Act. Therefore, filing of complaint was not even necessary. Therefore, the objection about maintainability of complaint filed by two individual slum dwellers deserves outright rejection.

45. Mr. Surana has also attempted to suggest that the order passed by CEO/SRA travels outside the scope of reasons mentioned in the showcause notice. In my view, this objection also deserves outright rejection. The show-cause notice was issued essentially alleging inordinate delay in completion of SRS. The opening portion of the show- cause notice reads thus: “That you No.2 & 3 have submitted an application dated 01/09/2018 requesting to terminate you No.1 as Developer in respect of subject Slum Rehabilitation Scheme on account of inordinate delay and following latches:” (emphasis and underlining supplied)

46 Thus the five latches referred to in the show-cause notice are in addition to the allegation of inordinate delay. Therefore, it cannot be contended that five latches indicated in the show-cause notice dated 3 August 2020 were the only grounds, on the basis of which adjudication could have done by CEO/SRA. The main allegation in the show-cause notice was inordinate delay. The five latches reflected in the show-cause notice were in addition of the main allegation of inordinate delay. All the findings recorded by CEO/ SRA are for holding Petitioner responsible for inordinate delay and nonperformance. In my view therefore, CEO/SRA has not travelled outside the scope of the show cause notice while passing the final order. In fact, the recognised grounds for removal of a developer under Section 13(2) of Slum katkam Page No. 33 of 41 Act are development in contravention of sanctioned permission and conditions of LOI and failure to complete the SRS within time. Therefore While deciding these grounds, CEO/SRA is bound to take into consideration all the actions and inactions of Petitioner, which have contributed to violation of conditions of LOI and delay in completion of SRS. Therefore, the contentious sought to be raised by Mr. Surana in this regard deserves to be rejected.

47 Petitioner has strenuously contended that a proxy litigation between two Developers is adjudicated by CEO/SRA in proceedings under section 13(2) of the Slum Act. I am unable to agree. The only issue before CEO/SRA was whether Petitioner is responsible for inordinate delay in completion of subject SRS. There is no dispute to the factual position that the subject SRS is still incomplete. Though Petitioner is making tall claims of completion of construction of rehab buildings, in absence of issuance of occupancy certificate, it cannot be contended that the construction of the buildings is complete. In fact, there are allegations against Petitioner of not carrying out construction of rehab building in accordance with the development permission. In absence of issuance of occupancy certificate, construction of rehab building is required to be treated as incomplete. Petitioner has thus failed to discharge his obligation of completing construction of rehab building and procuring occupancy certificate despite passage of over 20 long years. Choice of Respondent No.4 as new Developer by Respondent No2-Society in its general body meeting held on 25 August 2018 and permission granted by CEO/SRA to Respondent No.4 to intervene in proceedings under section 13(2) of the Slum Act does not mean that CEO/SRA has decided competing katkam Page No. 34 of 41 claims of two Developers. Perusal of the order passed by CEO/ SRA would indicate that he has confined adjudication only to the aspect of inordinate delay on the part of the Petitioner in completing the subject SRS. He has not taken into consideration rival claims of Respondent No.4 to take over the subject SRS, in any manner. In my view, therefore, it cannot be contended that impugned order of CEO/SRA is an outcome of adjudication of rival claims of two competing Developers.

48 After considering overall aspects of the case, I do not find any patent error in the order passed by the CEO/SRA which is well reasoned and does not suffer from the vice of perversity. Inordinate delay on the part of the Petitioner in completing subject SRS is writ large and cannot be denied by the Petitioner. He cannot be permitted to rely upon alleged confiscation of records by EOW to justify his lapses in not procuring occupancy certificate for rehab building. In fact, it is Petitioner's own case that the proposal for regularization of construction and for issuance of occupancy certificate was at advanced stage in September 2019. If that is the case, I do not see how alleged seizure of records by EOW could have come in the way of SRA processing the proposal for issuance of occupancy certificate. No Court or authorities had prevented SRA from processing the proposal for issuance of occupancy certificate. The occupancy certificate is not issued on account of various noncompliances by the Petitioner about conditions imposed in LOI. Reliance of Mr. Khambata on judgment of this Court in Hi Tech India Construction (supra) is apposite in the present case where Petitioner has merely submitted proposals for issuance of occupancy certificate and for regularization of unauthorized construction without such proposals gaining any fruitful result. katkam Page No. 35 of 41

49. Petitioner is admittedly unable to handover possession of 42 PAP tenements. He has not handed over several other areas such as RG, amenity areas, etc. He has constructed unauthorized 8th floor on the building which will have to be demolished or regularized. Petitioner cannot seek to blame the societies for unauthorised occupation of rehab tenements by their members. Such unauthorised occupation by some of the eligible slum dwellers has in fact enured to the benefit of Petitioner, who has relived himself of responsibility of paying them the transit rent for the last 19 long years. As rightly held by CEO/SRA and AGRC, it was Petitioner’s responsibility to protect the rehab tenements and not to let eligible slum dwellers to occupy the same without conduct of lottery by Assistant Registrar Co-Op Societies of SRA. Letting unauthorised persons occupy the some of the rehab tenements and particularly the PAP tenements (which are supposed to be handed over by Petitioner to SRA) is the height of illegality on Petitioner’s part. It must be borne in mind that the condition of handing over PAP tenements free of cost to SRA is an important condition as such PAP tenements are then used to house eligible slum dwellers of other projects, for whom no tenements are left in their respective projects or to house the project affected persons on account of implementation of different projects in Mumbai city. On account of Petitioner’s failure to obtain occupancy certificate and hand over 42 PAP tenements to SRA during last 19 long years, SRA is deprived of an opportunity to allot those 42 PAP tenements to deserving persons.

50. There is not even a single document on record to indicate that any efforts were made by Petitioner to ensure ouster/eviction of eligible/nonkatkam Page No. 36 of 41 eligible slum dwellers and unauthorised persons from the rehab tenements. It is therefore safe to assume that their occupation is with active connivance of Petitioner. As observed above, such unauthorised occupation by eligible slum dwellers enures to benefit of Petitioner, who then does not have to pay them transit rent. So far as unauthorised persons occupying rehab and PAP tenements are concerned, there are allegations that Petitioner has sold those premised to such persons. It is difficult to fathom that Petitioner would allow any person to occupy any flat in the building constructed by him, without his permission. I am therefore of the view that Petitioner is clearly responsible for the mess that is created at the site and it is going to be mammoth task for SRA and the new developer to clear this mess. Without delving deeper into that aspect, it is suffice to hold that termination of appointment as developer is the least consequence that Petitioner must suffer in the facts and circumstances of the case.

51. The responsibility of procuring occupancy certificate was undoubtedly on Petitioner, who admits that the assignment of rights in favour of fourth Respondent is only in respect of sale component building and that responsibility to complete rehab building continued with him even after execution of the assignment. According to Petitioner, rehab building was complete in all regards in the year 2005. However, it has been 19 long years that the same is still without occupancy certificate. Apart from submitting proposals for issuance of occupancy certificate, Petitioner did nothing till proceedings were initiated under Section 13(2) of the Slum Act. He started taking serious steps for regularization of unauthorized construction only after noticing that CEO/SRA was about to pass order under section 13(2) of the katkam Page No. 37 of 41 Slum Act terminating his appointment. This is clear from the fact that representation by the Petitioner’s Architect was made on 22 July 2019 seeking regularization of unauthorized construction and for issuance of revised LOI as per Development Control Promotion Regulations 2034. It appears that Committee of Sectional Engineer (SRA), Assistant Engineer (SRA) and Executive Engineer (SRA) submitted a proposal on the File for imposition of penalty of Rs.9.78 crores or Rs.6.26 crores for considering regularization of unauthorized constructions. CEO/SRA however, did not agree with the proposal. Regularization of unauthorized construction is one of the compliances for issuance of occupancy certificate. There are other compliances in the form of handing over 42 PAP tenements, handing over of RG area, amenity school premises etc. The amount of penalty proposed to be imposed on the Petitioner would also give some indication about the extent of unauthorized construction put up at the site. I have therefore no hesitation in my mind that Petitioner alone is fully and completely responsible for delay in completion of subject SRS. He has admittedly carried out construction of rehab building contrary to the development permission. There is admitted violation of conditions of LOI. All the conditions for removal of Petitioner under Section 13(2) are thus met.

52 Petitioner himself admits that he has executed deed of assignment dated 30 April 2013 in favor of Respondent No.4 and has received an amount of Rs. 101 crores out of agreed consideration of Rs.117 crores. Though Petitioner has sought to justify such transfer by contending that the transfer is only in respect of sale component building. It is thus an undisputed position that before fulfilling his obligation of completing construction of katkam Page No. 38 of 41 rehab building and rehabilitation of all the eligible slum dwellers, Petitioner has earned huge amount of Rs.101 crores by trading part of the scheme. As a matter of fact, the Petitioner was not supposed to undertake sale of any portion in sale component of the building before rehabilitation of all eligible slum dwellers. But in the present case, he took indirect route of assigning the sale component flats by trading the SRS Scheme. He has monetized the subject SRA Scheme by assigning the rights in respect of sale component building by pocketing Rs.101 crores.

53. Petitioner is not the owner of the plot nor has acquired development rights therein on payment of any monetary considerations to the original owner. The owners of lands in question are MHADA and MCGM. What is granted to Petitioner is in the nature of a license to carry out rehabilitation of slum dwellers. For costs incurred towards rehabilitation of slum dwellers, Petitioner is granted incentive in the form of construction of sale component building. His primary obligation is to complete rehabilitation of all eligible slum dwellers on the plot. The incentive in the form of sale component is made available only after the obligation of rehabilitation of slum dwellers is completed. In the present case, Petitioner is yet to discharge his obligations of rehabilitation of all eligible slum dwellers by putting them in possession of rehab tenements through lottery conducted by SRA. He was under obligation to construct and handover 42 PAP tenements to SRA free of costs. Today unauthorized persons are residing in those 42 PAP tenements. Whether Petitioner has actually sold those 42 PAP tenements on monetary consideration or whether he has simply let unauthorized persons to occupy the same, makes no difference in the light of the obligation on the part of katkam Page No. 39 of 41 Petitioner to hand over vacant and peaceful possession of those 42 PAP tenements to SRA. Before completion of all these obligations of rehabilitation of all eligible slum dwellers on the plot and handing over 42 PAP tenements to SRA, Petitioner has pocketed huge consideration of Rs.101 crores by trading the subject SRS. This, in my view, the gross illegality committed by Petitioner which clearly disentitles him to continue with the subject SRS. The CEO/SRA has rightly stepped in and removed Petitioner from the subject SRS, since he is neither capable nor willing to execute the project. He has embroiled himself into numerous litigations, both civil and criminal. If Petitioner is blaming EOW for seizure of records, it is Petitioner’s own conduct which brought EOW in the project for investigations. Therefore, Petitioner cannot be permitted to take benefit of his own wrong. I therefore do not see any valid ground to interfere in the well-reasoned order of CEO/SRA.

54 Petitioner has sought to raise bald and reckless allegations against AGRC about the manner in which order is passed by it on 31 May 2021. Petitioner raises a surmise that the order was actually not passed by AGRC on 31 May 2021 as the written submissions was filed by Petitioner on 28 May 2021 and because 29th and 30th May 2021 being holidays. Merely because AGRC was in a position to pass order in an expeditious manner after conclusion of the hearing on 14 May 2021 cannot be a ground for Petitioner to raise reckless allegations against AGRC’s members. AGRC comprises of high-ranking officers such as Additional Municipal Commissioner, Additional Commissioner-MMRDA, Vice President-MHADA and Principal Secretary, Housing Department is its Chairman. Mere transfer of the Principal katkam Page No. 40 of 41 Secretary, on 3 June 2021 cannot be a ground to raise a surmise that the AGRC has backdated the order by showing the same to have been passed on 31 May 2021. I find all allegations raised by Petitioner about order dated 31 May 2021 being backdated to be totally baseless deserving outright rejection. Order

55 After considering overall conspectus of the case, I do not find any valid ground to interfere in the well-reasoned order of CEO/SRA as upheld by the AGRC. Petitioner’s conduct has been such that an order terminating him under section 13 (2) of the Slum Act was clearly warranted. Petition filed by the Petitioner is thus totally misconceived. Writ Petition is accordingly dismissed. Rule is discharged. There shall be no order as to costs.

56 With the dismissal of the Writ Petition, the Interim Application would not survive and the same is accordingly disposed of. (SANDEEP V. MARNE, J.)

57 After the judgment is pronounced, Mr. Surana, learned counsel appearing for the Petitioner would pray for continuing interim order dated 11 April 2022. The prayer is opposed by the learned counsel appearing for

58 Considering the fact that the interim order is operating initially from 6 August 2021 on account of the statement made by the learned counsel for Respondent No.2 and subsequently from 11 April 2022 on account of the order passed by this Court, the interim protection operating in favour of the Petitioner shall continue to operate for a period of four weeks from today. (SANDEEP V. MARNE, J.) katkam Page No. 41 of 41