Surjit Singh Arora v. Slum Rehabilitation Authority

2.13. Thereafter upto the year 2018, no further development took place on the said property. Sometime in the year 2018, show cause notice was issued by the SRA under Section 6 of 49 13(2) of the said Act suo moto on its own motion to the Petitioner, due to the inordinate delay of more than 20 years in completing the slum rehabilitation scheme. This show cause notice was issued on the basis of a Report submitted by the Deputy Collector of Respondent No.1 indicating and outlining the inordinate delay.

2.14. According to Petitioner, pursuant thereto several meetings were held with Respondent Nos.[1] to 3 and he agreed to demolish the already constructed ground plus 7 storey building and thereafter construct a new building consisting of rehab tenements ad-measuring 300 square feet carpet area as per the new Development Control and Promotion Regulations 2034 (for short “DCPR 2034”). On 17.01.2019, during a meeting conducted by Respondent Nos.[1] and 2 alongwith Petitioner and Respondent No.3 – Society, it is alleged that Respondent No.3 – Society confirmed to go with the Petitioner as Developer and the Petitioner agreed to submit a new slum rehabilitation scheme but thereafter Respondent Nos.[1] and 2 did not take any further steps or pass any further order thereon.

2.15. On 04.05.2019, Municipal Corporation for Greater Mumbai (for short “MCGM”) issued CRZ remarks in respect of the said property and immediately thereafter and in view thereof, Petitioner filed application before Respondent Nos.[1] and 2 seeking 7 of 49 permission to demolish the already constructed / existing 7 storey rehab building and construct a new building with tenements admeasuring 300 square feet carpet area for every slum dweller. According to Petitioner, the Engineering department of Respondent Nos.[1] and 2 submitted a Report recommending approval of the Petitioner’s aforesaid proposal. Based on this, on 09.08.2019, Respondent Nos.[1] and 2 issued a revised LOI to Petitioner for construction of tenements of 300 square feet carpet area as per DCPR 2034 with specific conditions stipulated in the revised LOI regarding timelines.

2.16. On 14.11.2019, MCGM issued survey remarks for the said property as per DCPR 2034 and demarcated the road line therein.

2.17. On 24.03.2020 owing to COVID – 19 pandemic, national lock-down was declared by the Government of India.

2.18. On 18.08.2021, Petitioner submitted a composite building plan proposal for scrutiny on which Respondent Nos.[1] and 2 issued a fresh IOA for construction of the composite building by the Petitioner, conditional upon demolition of the existing rehab building. 8 of 49

2.19. On 14.11.2021, owing to gross delay of more than 20 years to take any steps for development and Petitioner’s failure to pay transit rent to the members of Respondent Nos.[3] – Society, majority members lost trust in the Petitioner and passed a Resolution for removal of the Petitioner as Developer. It needs to be noted that all eligible 67 members of the Respondent Nos.[3] – Society were present for the meeting and are signatory to the above Resolution.

2.20. On 17.05.2022, after hearing the Petitioner, Respondent Nos.[1] and 2 passed the 1st impugned order terminating appointment of Petitioner as Developer under Section 13(2) of the said Act, inter alia, on the principal ground of inordinate delay which could not be justified and various other breaches as stated therein.

2.21. Being aggrieved by order dated 17.05.2022, Petitioner filed statutory Appeal No. 136 of 2022 before the Respondent No.4 - AGRC under Section 35 of the said Act challenging his removal. On 24.06.2022, Respondent No.4 stayed the above order dated 17.05.2022 in the meanwhile. On 29.09.2022, after hearing all parties Respondent No.4 passed the 2nd impugned order dismissing the Appeal of Petitioner and confirming the order dated 17.05.2022 passed by Respondent No.2 9 of 49 and upholding removal of Petitioner as Developer of the slum scheme on the said property.

2.22. On 04.10.2022, in furtherance of the request made by Respondent No.3 – Society on 13.09.2022, notice was issued calling for a Extra Ordinary General meeting on 19.10.2022 and Competent Authority and Co-operative Officer - Grade II was appointed for conducting the said Extra Ordinary General meeting of Respondent No.3 - Society for appointment of new Developer. On 19.10.2022, meeting was held and the majority members of Respondent No.3 - Society unanimously voted and resolved for appointment of Respondent No.6 as the new Developer.

2.23. Both warring parties are ad idem on one aspect i.e. 66 eligible sum dwellers attended the meeting. However according to Petitioner, Respondent No.3 - Society has 123 slum dwellers out of which 66 members (i.e. 54%) attended the Extra Ordinary General Meeting and voted for appointment of Respondent No.6. According to Respondent No.6, eligible number of slum dwellers are about 66/67.

2.24. Hence, the present Petition is filed by Petitioner to challenge the above twin orders of removal as Developer. 10 of 49

3. Mr. Kanade, learned Advocate appearing for the Petitioner would submit that Respondent Nos.[1] and 2 ought not to have initiated and continued the suo moto proceedings against the Petitioner on the ground of delay as Petitioner had agreed to construct the new rehab building consisting of rehab tenements ad-measuring 300 square feet carpet area and Respondent No.3 – Society had also agreed to continue with the Petitioner as Developer. He would submit that, in view of issuance of fresh revised LOI dated 09.08.2021 and the amended IOA dated 18.08.2021 by Respondent Nos.[1] and 2, it is implied that Respondent Nos.[1] and 2 have condoned the delay, if any, and hence they ought not to have terminated the Petitioner as Developer.

3.1. He would submit that the slum dwellers of Respondent No.3 – Society are divided into two groups and one group is still supporting continuation of the Petitioner as Developer and that this fact finds place in the impugned order dated 17.05.2022 as noted by the Statutory Authorities.

3.2. He would submit that there was no delay on the part of the Petitioner in implementing the slum rehabilitation scheme on the said property as immediately after the issuance of the first LOI, IOA and CC the Petitioner constructed the rehab building 11 of 49 comprising of ground plus 7 floors, however owing to CRZ restrictions Respondent Nos. 1 and 2 issued stop work notice to the Petitioner, which subsisted till the year 2018 when the new DCPR 2034 came into force. He would submit that, thereafter in consonance with the applicable regulations under the new DCPR 2034, Petitioner agreed to demolish the old rehab building and build a new rehab building comprising of tenements ad-measuring 300 square meters as per the changed policy for each slum dweller and based upon the same, Respondent Nos.[1] and 2 issued revised LOI dated 09.08.2019 and fresh IOA dated 18.08.2021 to the Petitioner.

3.3. He would submit that by approving the revised proposal and issuance of revised LOI and IOA to Petitioner, Respondent Nos.[1] and 2 condoned the delay, if any, in implementing the slum rehabilitation scheme.

3.4. He would submit that Respondent No.4 – AGRC committed an error by overlooking the fact that the revised LOI and IOA were issued following a settlement between the Petitioner and Respondent No.3 – Society, however subsequently till today Petitioner has not received the CC to enable him to begin construction of the new rehab building which was to be completed within a period of 36 months from date of CC as per terms and 12 of 49 conditions of the revised LOI dated 09.08.2019. Hence he would submit that the limitation of period of 36 months as laid down in the revised LOI has not yet started against the Petitioner and therefore there is no delay.

3.5. Next, he would submit that Petitioner has a ‘first preferential right’ to redevelop the said property being the owner of the said (private) property and the Respondent Nos.[1] and 2 have accepted, processed and approved the Petitioner’s proposal as private property which is evident from the Annexure II dated 04.08.1998, LOI dated 17.10.1998, revised LOI dated 09.08.2019, IOA dated 30.10.1998, CC dated 18.05.1999 and amended IOA dated 18.05.1999 which refer to the said property as private property. He would submit that members of the Respondent No.3 – Society at the behest and instance of another Developer (Respondent No.6) are wrongly contending that the said property is owned by MCGM. He would submit that Petitioner being the owner of the said property has the first preferential right to redevelop the said property and the same cannot be taken away by Respondent Nos.[1] and 2 by terminating his appointment as Developer and appointing a new Developer.

3.6. He would submit that members of Respondent No.3 – Society are now instigated to claim that Petitioner is not the owner 13 of 49 of the said property by another Developer who has vested interests in redevelopment of the said property thereby leading to a proxy litigation between two Developers.

3.7. With reference to the issue of conveyance of the said property to Amikrupa Land Developers Pvt. Ltd., he would submit that the said conveyance has been cancelled by the Petitioner by a Deed of Cancellation dated 29.03.2017 and hence the Petitioner still continues to be the owner of the said property having a first preferential right to redevelop its own property.

3.8. Next, he would submit that the Respondents who have passed the impugned orders have relied upon a Report dated 01.08.2017 prepared by the Deputy Collector of SRA which outlines delay on the part of Petitioner in implementing the slum rehabilitation scheme. However copy of the report was never given to the Petitioner during hearing before the Respondents / Authorities and hence both the impugned orders are therefore in patent violation of the principles of natural justice and deserve to be quashed and set aside.

3.9. In support of his submissions, he has referred to and relied upon the decision of this Court in the case of Johnson and Johnson Ltd. Vs. Deputy Chief Controller of Imports and Exports, 14 of 49 New Delhi and Anr.[1] and has drawn my attention to paragraph Nos.11 and 12 of the said decision. Paragraph Nos.11 and 12 of the above decision are reproduced below for reference:- “11. The aforesaid adverse material; in the form of clarification from DGTD came on the record of the proceedings subsequent to the date of hearing i.e. after 12th May, 1987. This adverse material was never brought to the notice of the petitioners. As a matter of fact, keeping in view the principles of natural justice, it was obligatory on the part of the respondent No. 1 to draw the attention of the petitioners to this letter and invite their views. The adverse report ought to have been brought to the notice of the petitioner, which was obtained by the 1st respondent behind the back of the petitioners, that too after the hearing was completed. In a quasi judicial proceedings, non supply of the adverse material to the affected person, but supply thereof to the authority taking decision against him on that basis; constitutes violation of rules of natural justice as held by the Apex Court in Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588: AIR 1991 SC 471.

12. In order to confirm natural justice, the decision maker must not act on the material coming on record subsequent to the stage of hearing or after oral hearing, which the other side has not seen and had no chance to comment on it. It is a elementary rule of principles of natural justice, that party must be given a fair opportunity to collect and controvert any relevant material brought forward to his prejudice. It is needless to mention that the breach of principles of natural justice constitutes breach of Article 14 of the Constitution of India as held by the Apex Court in the case of Union of India v. Ex Constable Amrik Singh, (1991) 1 SCC 654: 1991 AIR SC 564. Thus, considering the clear breach of principles of natural justice, the impugned order cannot stand to the scrutiny of law and the same needs to be quashed and set aside on this short count. Since the impugned order is being set aside on the ground of breach of principles natural, we do not think it necessary to dwell on other various challenges set up in the petition and canvassed in the oral submissions by the learned Counsel for the petitioners.” 2003 (2) Mh.L.J. 165 15 of 49

3.10. On the basis of the above submissions, he would submit that both the impugned orders deserve to be quashed and set aside.

4. Respondent No.3 and Respondent No.6 are the principal contesting parties. Respondent No.3 is the Society (Proposed) whereas Respondent No.6 is the newly appointed Developer.

5. Respondent No.3 – Society has filed Affidavit-in-Reply of the Chief Promoter / Authorized Representative of Society seeking dismissal of the Writ Petition on various grounds. Mr. Anand represents Respondent No.3 – Society. He has made the following submissions:-

5.1. That the Petitioner has made patently false and incorrect assertions / averments before the CEO, SRA; the AGRC and in the Petition namely:-

(i) that Petitioner is the owner of the said property on which the slum rehabilitation scheme is implemented, which in view of the Indenture of Conveyance dated 10.06.2014 and the subsequent Deed of Confirmation dated 16 of 49 18.10.2016 is a false assertion and Petitioner is guilty of perjury;

(ii) that the untenable and inordinate delay in implementation of the slum rehabilitation scheme on the said property is not attributable to the Petitioner, which is once again a false statement considering the unexplained inordinate delay of 22 long years;

(iii) that majority of the occupants and or members of the Respondent No.3 are supporting continuation of the Petitioner as Developer, which is a patently false statement in view of the Resolution passed by the General Body on 14.11.2021 which agreed and was signed by all 67 eligible members of the Society resolving to remove the Petitioner as Developer.

5.2. That Petitioner has not paid transit rent to the members of the Society for the last more than 20 years, which is an admitted position, despite receiving consideration of Rs.15 Crores after sale of the said property to Amikrupa Land Developers 17 of 49 Pvt. Ltd., resultantly leading to arrears of transit rent of the amount in excess of Rs.21.25 Crores.

5.3. That Petitioner does not have the financial wherewithal and capacity to complete the slum rehabilitation scheme on the said property which is ascertained by the fact that a meagre amount of Rs.3,82,500/- in the year 2004 towards penalty levied on the Petitioner has not been paid till date, nor transit rent has been paid to any slum dweller and such condition of the Petitioner is evidently admitted by him in his own letter dated 19.03.2004 which is at Exhibit ‘F’ to the Reply affidavit of the Society.

5.4. That the timeline clearly proves that right from inception Petitioner has shown scant regard to the slum rehabilitation scheme resulting in inordinate delay and sometime on 28.11.2003 Petitioner had also entered into a Development Agreement with one Bhavesh Estates Pvt. Ltd. for grant of entire development rights of the said property and later on in the year 2014 executed registered Sale Agreement and Deed of Confirmation with Amikrupa Land Developers Pvt. Ltd. and received Rs.15 Crores as consideration; 18 of 49

5.5. That sale of the said property to Amikrupa Land Developers Pvt. Ltd. is in complete breach and disregard of the statutory obligations of the Petitioner.

5.6. In view of the above lapses, Mr. Anand, learned Advocate for the Respondent No.3 - Society has urged the Court to dismiss the Writ Petition with exemplary costs.

5.7. In support of his submissions, he has referred to and relied upon the following decisions:-

(i) Latif Estate Line India Ltd. Vs. Hadeeja Ahmed and Ors.2;

(ii) High Tech India Construction Vs. CEO, SRA[3];

(iii) Galaxy Enterprises Vs. State of Maharashtra[4];

(iv) Yash Developer Vs. Harihar Krupa CHS Ltd.5;

(v) Ravi Ashish Land Developers Ltd. Vs. Prakash

(vi) Union of India Vs. Mustafa & Najibai Trading

(vii) Bharat Sanchar Nigam Ltd. Vs. Bhurumal[8]

(viii) New Janta SRA CHS Ltd. Vs. State of

6. PER CONTRA, Mr. Khandeparkar learned Advocate for the Respondent No.6 – newly appointed Developer would submit that Petitioner has intentionally and deliberately suppressed the registered Indenture of Conveyance dated 10.06.2014 of sale of the said property to Amikrupa Land Developers Pvt. Ltd. and thus has at several places in the Writ Petition as also in the proceedings before the CEO, SRA and AGRC asserted himself to be the owner of the said property with a clear malafide intent. That apart, Petitioner has also suppressed the registered Deed of Confirmation dated 18.10.2016 with Amikrupa Land Developers Pvt. Ltd. He would submit that the alleged Cancellation Deed dated 29.03.2017 surfacing from Petitioner’s custody in the Affidavit-in-rejoinder to assert that both the registered Indenture of Conveyance and Deed of Confirmation have been cancelled by the Petitioner is evidently forged and fabricated for various reasons namely that the said Cancellation Deed is not registered; that it is not notarised; that it does not bear the stamp and seal of Amikrupa Land Developers Pvt. Ltd. which is a private limited Company; that there is no board resolution annexed thereto authorising execution of the Deed to 2019 SCC Online Bom 3896 20 of 49 the signatory; that there are no witnesses to the Cancellation Deed and most importantly the said Amikrupa Land Developers Pvt. Ltd. in a public notice dated 16.06.2022 has asserted that it is the owner of the said property.

6.1. He would next submit that looking at the timeline in the present case beginning form 10.10.1998 i.e. the date of sanction of the slum rehabilitation scheme till today i.e. after 25 long years nothing has materialised and thus there is gross and inordinate, unexplained and admitted delay on the part of the Petitioner in implementation and completion of the slum scheme on the said property. He would submit that the only reason given by Petitioner for the delay is that there were certain CRZ issues, but it is evident from record that the stop work notice dated 29.11.2003 issued by the SRA was not vacated by the Petitioner leading to delay and prejudice. Next, he would submit that despite the stop work notice, by order dated 05.03.2004, SRA agreed to regularize the unauthorised construction carried out by the Petitioner upon the Petitioner paying penalty of Rs.3,82,500/- and making all compliances in accordance with the CC. He would submit that even this penalty was never paid by Petitioner and more than 19 years were allowed to pass thereafter. 21 of 49

6.2. He would submit that in the twin orders under challenge Respondent Nos.[2] and 4 have categorically concluded that after considering the record, the inordinate delay in implementing the slum rehabilitation scheme was not on account of any CRZ issue but due to unauthorized construction carried out by the Petitioner which is borne out by the record and admitted by the Petitioner.

6.3. In support of his aforesaid submissions and the facts of the case, Mr. Khandeparkar has referred to and relied upon the following decisions:-

(i) High Tech India Construction Vs. CEO, SRA (3rd supra);

(ii) Galaxy Enterprises Vs. State of Maharashtra (4th supra);

(iii) Yash Developer Vs. Harihar Krupa CHS Ltd. (5th supra); and

(iv) Ravi Ashish Land Developers Ltd. Vs. Prakash

6.4. He has taken me through the aforesaid decisions to contend that removal of the Developer, inter alia, for causing inordinate delay in implementation of the slum rehabilitation scheme for a period as low as 3 years in the case of High Tech India (3rd supra) or for a period of 10 years in the case of Galaxy Enterprises (4th supra) or for a period of 18 years in the case of 22 of 49 Yash Developer (5th supra) has been comprehensively considered and upheld by this Court on the ground of inordinate delay.

6.5. He would submit that in the present case, the Court needs to also consider the fact that for more than 25 long years, Petitioner has not paid a single farthing towards transit rent to the members of the Respondent No.3 – Society and this is a blatant breach of the statutory obligations; that no designated account for deposit of transit rent has been opened by the Petitioner with the SRA despite receiving Rs.15 Crores from Amikrupa Land Developers Pvt. Ltd. in the year 2014 and most importantly the fact that Petitioner does not have the financial capacity to complete the project.

6.6. Next, he would submit that Petitioner has falsely contended that majority occupants / eligible slum dwellers support his appointment and continuation as Developer which stands refuted by the General Body Resolution dated 14.11.2021. He would submit that both the impugned orders under challenge are cogent and reasoned orders and in such concurrent fact findings, Petitioner has failed to show any perversity whatsoever and therefore both orders deserve to be upheld. In support of his final submissions, he has referred to and relied upon the decisions of the Supreme Court in the case of Union of India Vs. Mustafa & 23 of 49 Najibai Trading Co. (7th supra); Bharat Sanchar Nigam Ltd. Vs. Bhurumal (8th supra ) and a decision of the full bench of this Court in the case of New Janta SRA CHS Ltd. Vs. State of Maharashtra and Ors. (9th supra)

7. I have heard Mr. Kanade, learned Advocate for the Petitioner; Mr. Punjabi, learned Advocate for Respondent Nos.1,[2] and 5; Mr. Anand, learned Advocate for Respondent No.3 – Society; Mr. Patil, learned Advocate for Respondent No.4, Mr. Khandeparkar, learned Advocate for the Respondent No.6 and Mr. Ansari, learned Advocate for Applicant in Interim Application and with their able assistance perused the record and pleadings of the case. Submissions made by the learned Advocates have received due consideration of this Court.

8. Before I advert to considering the submissions made by the Petitioner it needs to be stated that the law in regard to the authority of the SRA to change the Developer in exercise of powers under Section 13 (2) of the said Act, is fairly well settled. Some of the decisions in this regard are therefore required to be noted at the outset so as to have a clear picture on the issue of delay in implementation of a slum scheme. This Court in its decision in the case of Susme Builders Pvt. Ltd. Vs. CEO, SRA10 was considering an 2019 (6) ABR 679 24 of 49 issue in regard to change of Developer in a slum redevelopment scheme on the ground of unexplained delay. In considering the intention of the legislature for enacting Section 13(2), the Court held that, “the slum rehabilitation authority was within its powers under Section 13(2) of the Slum Act, to take action when there is any violation of any plan or when there is violation of any condition relating to developing the project within time”. Findings returned in paragraph Nos. 43 to 48 of the judgment are relevant to the facts of the present case. They read thus:- “THE SCOPE OF POWERS UNDER SECTION 13(2) OF THE SLUM ACT:

43. The relevant portion of Section 13 of the Slum Act which is the bone of contention between the parties reads as follows;

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 recognized agency under three circumstances:

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

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

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

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 subsection (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 26 of 49 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.”

9. In another decision passed by the Division Bench of this Court in the case of K.S. Chamankar Enterprises Vs. The State of Maharashtra11, a similar view was taken and it was held that when there was inordinate delay in implementation of the slum rehabilitation scheme, the Developer would not have any right to contend that he should be continued as a Developer.

10. In the decision in the case of High Tech India Construction (3rd supra) it was further held by this Court that mere WP (L) decided on 27.03.2018 27 of 49 issuance of Annexure II would be of no consequence. In paragraph Nos. 4 and 5 of the said decision, the Division Bench has made the following observations which are relevant and they are read thus:-

4. “Prima facie, there was, in the first instance itself therefore, considerable delay from the time when the petitioners submitted the proposal on 23rd February 2006 to the approval of the letter of intent on 20th May 2009. The petitioners explanation for this is that the Annexure-II was issued only on 14th August 2006. Ms. Iyer the learned Senior Counsel appearing on behalf of the petitioners relied upon a letter dated 15th May 2008 to explain the delay in the payment of premium which was also expressly referred to in the approval of the letter of intent. It appears that the Deputy Engineer of the SRA had by a letter dated 8th May 2008, called upon the petitioners to pay the premium. The petitioners replied to the same by its letter dated 15th May

2008. The petitioners agreed to the payment of the premium and requested SRA to inform them as to how the payment was to be released and whether it could be released in instalments.

5. The mere issuance of the letter dated 15th May 2008 would not indicate that there was no delay on the part of the petitioners. These are slum rehabilitation schemes. It is for the developers to pursue the matter and to ensure that the scheme is implemented without delay. Developers cannot. By merely addressing letters to the authorities, sit back and contend that they had nothing more to do in the matter till they received a reply.”

11. In the above backdrop, in so far as the present case is concerned it is seen that Petitioner claims to be the owner as well Developer of the said property. This puts more onus on the Petitioner to act promplty. Mr. Kanade has pointedly argued three specific submissions for consideration. His principal submission is that there is virtually no delay on the part of the Petitioner in 28 of 49 implementation of the slum rehabilitation scheme. He would submit that by virtue of issuance of the revised LOI dated 09.08.2019 to the Petitioner for construction of tenements of 300 square feet carpet area as per new DCPR 2034, any previous delay whatsoever for completion of the slum rehabilitation scheme has been impliedly condoned by the Respondent Nos.[1] and 2. His further submission is that issuance of amended IOA dated 18.08.2021 for composite building construction which is conditional upon demolition of the existing 7 storey rehab building once again impliedly condones any previous delay in implementation of the slum rehabilitation scheme on the said property. He would submit that both the statutory Authorities are therefore in fundamental error in not considering the issuance of revised LOI in 2018 and amended IOA in 2021 to the Petitioner for redevelopment and therefore there cannot be any inordinate delay claimed by the Authorities for implementation of the slum rehabilitation scheme.

11.1. The next pointed submission of Petitioner is that despite the above, when suo moto Section 13(2) notice was issued by the SRA, it considered a Report prepared by the Deputy Collector dated 01.08.2017 alleging inordinate delay in implementation of the slum rehabilitation scheme. This Report 29 of 49 finds mention in the impugned order passed by Respondent No.2, but copy of this Report was never given to Petitioner and hence such a Report being an adverse material against Petitioner ought to have been given to Petitioner and non-supply of the Report forming the basis of the proceedings initiated under Section13(2) of the said Act to the Petitioner constituted an act of violation of the principles of natural justice.

11.2. Final submission of Mr. Kanade is that by virtue of the Deed of cancellation dated 29.03.2017, sale of the said property to Amikrupa Land Developers Pvt. Ltd. stood cancelled and Petitioner is in custody of all original title Deeds of the said property and continues to be owner of the said property and thus would have a preferential right to redevelop the said property.

11.3. The aforementioned are the principal submissions made on behalf of the Petitioner. That apart, there are other submissions made which have been noted by the Court and are considered.

12. What is required to be seen in the present case is that as far back as in October 1998 slum rehabilitation scheme was sanctioned on the said property. At that time, LOI and IOA was issued in 1998 itself and plinth CC was issued in May 1999 in 30 of 49 favour of Petitioner. It is pertinent to note that between May 1999 and 2003, Petitioner despite having construction permission only upto the plinth level, unauthorizedly constructed a ground plus 7 storey RCC structure resultantly breaching the CC condition and leading to issuance of stop work notice dated 29.11.2003. Apart from the delay, at the then time admittedly there is breach of the terms and conditions of the LOI and IOA which were issued in

1998. This is an admitted position by the Petitioner since only at the request of Petitioner thereafter, the SRA agreed to regularize the unauthorized construction upon the Petitioner paying penalty of Rs.3,82,500/- and making all CC compliances in March 2004.

13. What happened between the years 2004 and 2018 on two separate fronts is all the more shocking. On the development front there was a complete stalemate. Petitioner failed to get the unauthorized construction authorized. Stop work notice issued subsisted. All this severely prejudiced the implementation of the slum rehabilitation scheme. It is pertinent to note here that according to Petitioner himself and the document at Exhibit ‘B’ Page No.52 to the Petition, Additional Collector had at the then time issued Annexure II dated 04.09.1998 certifying 96 out of the 148 slum dwellers as eligible. With the above delay, it is unfathomable to accept the submission of the Petitioner that there 31 of 49 is no delay in implementation of the slum rehabilitation scheme. The contours of the entire slum scheme changed with the passage of time solely due to delay. Even before I advert to the reasons given in the twin impugned orders, there is no explanation whatsoever coming forth from the Petitioner for the above delay. Petitioner is in a denial mode so far as delay is concerned. Besides the delay on the development front, disinterest of the Petitioner is clearly exhibited when the said property was sold to Amikrupa Land Developers Pvt. Ltd. in the year 2014 for 15 Crores. Registered Conveyance and Confirmation Deed after two years are executed. And to cover up, Petitioner shows reliance on an unregistered Cancellation Deed in 2017.

14. The intervening circumstances during the aforementioned period noted by me are all the more important reasons to clearly conclude that Petitioner was disinterested, negligent and lethargic in implementation of the slum rehabilitation scheme. Admitted facts like non-payment of the regularization penalty amount of Rs.3,82,500/- as per order dated 05.03.2004, subsistence of the stop work notice issued on 29.11.2003, appointment of a contractor called Bhavesh Estates Pvt. Ltd. in order to complete the slum rehabilitation scheme in the year 2003 / 2004, sale of the said property by Indenture of 32 of 49 Conveyance dated 10.06.2014, Deed of Confirmation dated 18.10.2016 with Amikrupa Land Developers Pvt. Ltd. and nonpayment of transit rent are glaring instances which cannot be hidden or camouflaged or merely dismissed because the concerned Competent Authorities thereafter issued a revised LOI dated 09.08.2019 and amended IOA dated 18.08.2021 to the Petitioner.

15. The delay is writ large on the face of record and it cannot lie in the mouth of the Petitioner to contend that the delay stood condoned or impliedly condoned as argued by the Petitioner. In the first instance, Petitioner carried out unauthorized construction which subsists till today for the last almost 25 years. Thereafter, Petitioner made a grievance that delay was attributable to CRZ issues. This reason of the Petitioner is also falsified because the stop work notice was issued to Petitioner for carrying out unauthorized construction beyond the sanctioned / approved plan and in violation of the building permission. On the ground of there being a CRZ issue it is pertinent to note the Petitioner’s own stand in its letter dated 19.03.2004 appended at Exhibit ‘I’ page No.80 of the Petition wherein it is categorically admitted by the Petitioner as under: “The scheme was approved ‘without CRZ’ till we constructed all the floors at site as per issued LOI & IOA with Plinth CC, varrying out certain amendments as per 33 of 49 amended plan put up for approval by our newly appointed Architect Shri. Vivek J. Bhole of M/s. Neo Modern Architects. Now our Architects informed us that the plot is falling under CRZ & hence the F.S.I. granted cannot be consumed on site & will be restricted Zonal F.S.I., not allowing the Sale component at site. This is dragging me towards disastrous financial loss in the scheme.”

16. From the above, it is therefore clear that not only there was inordinate delay in implementation of the slum scheme on the said property which was caused due to Petitioner’s own action of unauthorised construction but the delay was accepted by the Petitioner, thus prejudicing rehabilitation of the members of the Respondent No.3 – Society. This delay is clearly attributable to the Petitioner only and Petitioner’s submission that it stands impliedly condoned because of the issuance of fresh LOI dated 09.08.2019 and IOA dated 18.08.2021 cannot be countenanced.

17. In the above regard attention is therefore drawn to the decision of the Division Bench of this Court in the case of High Tech India Construction (3rd supra) wherein there was a mere delay of 3 years. While upholding the orders passed by the Competent Authorities namely the SRA and the High Power Committee (HPC) which terminated the appointment of the Developer and granted liberty to the Society to appoint a new Developer, this Court held that in slum rehabilitation schemes, it is for the Developers to pursue the matter and to ensure that the 34 of 49 scheme is implemented without delay. The Court further held that Developers cannot by merely addressing letters to the Authorities sit back and contend that they had nothing more to do in the matter till they receive reply. In the present case, despite the Authorities assisting the Petitioner, delay has occurred at all stages.

18. In another significant case of Galaxy Enterprises (4th supra) this Court upheld two concurrent findings rendered by the Competent Authorities which, inter alia, confirmed removal of the Developer for causing an inordinate delay of 10 years in implementing and completing the slum rehabilitation scheme. The learned Single Judge of this Court before returning his findings in the above case expressed serious concern on the issue of implementation and completion of slum rehabilitation schemes wherein the slum dwellers nurture an unfulfilled dream to be rehabilitated in a permanent roof over their head and live in human conditions. I would like to specifically reproduce paragraph Nos.3,[4] and 5 of the said decision in this regard which read thus:-

19. Every word and sentence which is enumerated in the aforementioned three paragraphs begs for an answer to one and only one question / word and that is “accountability”. I agree that facts may differ in respect of every slum scheme but in so far as the issue of delay is concerned the same is evident from the record of every case. In the present case it cannot be hidden. In Galaxy Enterprises (4th supra) the land in question was government land and was under the control of MHADA. In the present case, the property in question is private property. Fact that the slum rehabilitation scheme was sanctioned in the year 1998 is not in dispute in the present case. The question therefore would be “when” and “how” is the slum rehabilitation scheme on the said property to be implemented. If even after 25 years there is a continuing stalemate, then there is something ominous in the facts of the present case. 37 of 49

20. The relevant portions of the above decision in the case of Galaxy Enterprises (3rd supra) which would strongly apply to the facts of the present case and as contained in paragraph Nos. 53 to 58 thereof are reproduced below:- “53. The record reveals that what M/s. Saral could do in eight years of its appointment, was to get the Annexure II, namely the list of the 73 eligible occupants certified from the MHADA. It was, thus, expected from the petitioner that the revalidation of Annexure II, which was possibly not a complex formality be undertaken at the earliest. However this certainly did not happen and citing various reasons, which cannot be believed to be not attributable to the petitioner, ultimately, the petitioner could not get the Annexure II certified only on 23 December 2013, which is after about eight years of the petitioner's appointment. This fact itself raises a serious doubt as to the real intentions of the petitioner to undertake the scheme. The petitioner could not have simply blamed the authorities for the delay, as there is complete lack of concrete and/or any real steps which were to be taken by the petitioner to effectively seek different approvals, once the society had put the petitioner in the driver's seat, in complete control of the project as rightly commented, in the impugned orders. Thus, the case of the petitioner, that from time to time steps were taken to implement the slum scheme as entrusted to it be the society cannot be accepted. These are the contentions of the petitioner, merely pointing out some movement of the files with the authorities. This was certainly not sufficient and what was required and expected by the petitioner was to take real effective steps to progress the slum redevelopment. The petitioner was expected to expeditiously obtain an Annexure II, as certified by the MHADA, thereafter obtain a LOI and then obtain a Commencement Certificate to start with the constructions and before that make a provision for temporary alternate accommodation for the slum dwellers to reside till completion of the scheme. There is not an iota of material to show that any such steps much less expeditiously were taken by the petitioner which will show the real bonafides of the petitioner to undertake the scheme.

54. In fact the petitioner kept the slum dwellers/society in dark on any of the steps alleged to be taken by the petitioner. There was no transparency in the petitioner's approach with the slum-dwellers whose anxious, impatient 38 of 49 and painful wait of so many years for the slum scheme to start was continuously staring at the petitioners right from the word go. This was not what was expected of a diligent developer. The slum schemes are expected to be taken and pursued by the developers for genuine and bonafide object and purpose to redevelop the slums as reflected in the rules which is for the mutual benefit namely the benefit of the slum dwellers of being provided a permanent alternate accommodation and so far as the developer, to exploit the free sale component, which is nothing but a business consideration for the developer. If this be the long and short of a slum scheme what can be the intention of a developer to sit tight on a slum scheme and not take expeditious measures to undertake and complete the scheme. The reasons can be innumerable, if the reasons are attributable to the authorities, the developer has certainly remedies in law to be immediately resorted. No forum competent to entertain such complaints would refuse to look into such grievances when the very right to livelihood of the slum dwellers who are living in inhuman conditions, being a concomitant of Article 21 of the Constitution, is involved and which becomes a matter of urgent concern and of utmost priority. A developer cannot shut his eyes to all these factors and attributes, once appointed by the society. For the developer, there has be relentless action on day to day basis, as any delay in not implementing the slum scheme is not only detrimental to the slum dwellers, but to the society at large. Delay in effective implementation of the slum scheme would defeat the very goal, the ideals and the purpose of the slum redevelopment scheme.

55. A perusal of the record indicates that the society is correct in contending that during the period from 2006 to 2016 i.e. for about 10 years the petitioner did not take any concrete steps towards implementation of the slum rehabilitation scheme and the petitioner had clearly failed to obtain a LOI for such a long period. The society, thus, was constrained to file the application dated 15 March 2016, under Section 13(2) of the Slums Act, praying for change of the petitioner as the developer. It is correct that Annexure-II was originally issued by MHADA on 16 April

1998. The petitioner was appointed as developer in the month of June 2006 and it clearly took about seven to eight years for the petitioner to obtain revised Annexure-II which was obtained on 23 December 2013. Before the Chief Executive Officer and even before the appellate authority the petitioner has failed to show any justifiable reason as to why it took these many years for the petitioner to simply obtain a revised Annexure-II when as per norms issued by the Slum Rehabilitation Authority Annexure-II is required to be finalised within a period of four months when the 39 of 49 hutment dwellers are below 500 in number. Further the record clearly indicates that even after obtaining the revised Annexure II, on 23 December 2013, the petitioner did not initiate immediate steps to obtain LOI for the next three years. There is, thus, much substance in the contention of the society that only after the society initiated proceedings under Section 13(2) of the Slums Act, the petitioner initiated steps to obtain a LOI.

56. On the above clear backdrop, I am not persuaded to accept any of the submissions of Mr. Dhakephalkar learned Senior Counsel for the petitioner. The contention that the LOI was ultimately granted on 30 May 2016, and hence there is no requirement to change the developer as the delay stood condoned, cannot be accepted in the clear facts and circumstances of the case. In fact, this is a clear admission on the part of the petitioner that there was not only delay but it was inordinate. In any case LOI sought to be obtained after about ten years of the petitioner's appointment, would not in any manner condone the conduct of the petitioner in delaying the scheme and the inherent lack of diligence, rigour and earnestness which was expected. There is another reason as to why this argument cannot be accepted, namely that the society's application under Section 13(2) for change of developer was prior in time, and the petitioner clearly appears to have awakened from a deep slumber and started taking actions, with the engineering department purporting to show of having achieved another step, now of a LOI being obtained. These actions of the petitioners as rightly held in both the impugned orders could not have frustrated the society's application for change of the developer. Even the payments which are stated to be made by the petitioner to the SRA towards part of the land premium, would also not assist the petitioner in the facts of the case. Such payments cannot create any equity much less a legal right with the petitioner to continue with the scheme in the facts as they stand. These amounts as partly being paid are in any case being refunded to the petitioner.

57. There cannot be a myopic approach to these issues of a delay in implementation of a slum rehabilitation scheme. Things as they stand are required to be seen in their entirity. The only mantra for the slum schemes to be implemented is it's time bound completion and a machinery to be evolved by the authorities, to have effective measures in that direction to monitor the schemes as a part of their statutory obligation to avoid delays. Non-commencement of the slum scheme for long years and substantial delay in completion of the slum schemes should be a thing of the past. In the present case, looked from any angle there is no plausible explanation forthcoming for the delay of so many 40 of 49 years at the hands of the petitioner to take bare minimum steps to commence construction.

58. The authorities should weed away and reprimand persons who are not genuine developers and who are merely agents and dealers in slum schemes. These persons after get themselves appointed as developers, to ultimately deal/sell the slum schemes, as if it is a commodity. Any loopholes in the rules to this effect, therefore, are required to be sealed.

21. Another significant decision which I would like to rely upon is an unreported decision of this Court in the case of M/s. Ravi Ashish Land Developers Limited (6th supra). This was a case where the Statutory Authorities were considering a slum rehabilitation project having remained incomplete even after 20 years of its commencement. Paragraph No.14 is relevant in respect of its application to the facts in the present case. It reads thus:-

22. Perusal of the above paragraph calls for no further explanation as this court has expressed serious concern as to how slum dwellers were languishing and continuing in transit accommodations for nearly two decades. Same is the case here.

23. The aforementioned issue of delay leads to another very important facet which cannot be wished away by the Petitioner despite grant of revised LOI or amended IOA in the year 2019 and 2021 to the Petitioner. This is the most pertinent issue as 42 of 49 it directly relates to the livelihood of the slum dwellers and invokes the provisions of Article 21 of the Constitution i.e. Right to life for the slum dwellers. This is the issue regarding transit rent. Petitioner has conducted the present case before the SRA, thereafter before the AGRC and also in this Court being least oblivious about the issue of transit rent. According to me, this is the most shocking approach of the Petitioner. The arrears and outstanding of the transit rent amount is in excess of Rs.21.25 Crores as on November 2022. And what has the Petitioner given to the slum dwellers / Respondent No.3 – Society in return? Only false hopes and promises.

24. Petitioner has breached the conditions of the first LOI and unauthorizedly constructed the rehab building without sanction and approval leading to issuance of stop work notice. Petitioner in the present case cannot resile from his own actions which are clear omissions in law. These actions have led to the delay and during all this, Petitioner is conspicuously and manifestly silent about the transit rent.

25. The aforesaid position, therefore clearly and unequivocally leads to the next most important issue for consideration namely whether the Petitioner has the financial capacity to implement the slum rehabilitation scheme. It is clear 43 of 49 from the Petitioner’s own showing alluded to herein above that Petitioner does not have the financial stability and wherewithal, as adequate finance is considered to be the lifeline for successful implementation and completion of any slum rehabilitation scheme. The delay in implementation of the slum rehabilitation scheme in the present case of more than two decades has virtually sounded a death knell for the present slum rehabilitation scheme. A whole generation has been wiped out in the past 25 years. Situations have changed and become more complex. Laws have also changed. But the slum Scheme is yet to take off. To allow such a Developer to continue any further would be a devastating decision. In this regard, I would gather assistance from the decision of this Court in the case of Yash Developers (5th supra) of which paragraph Nos.58 to 60 and 67 are extremely relevant and are quoted. They read thus:-

26. The aforementioned observations and findings are clear issues of facts which are borne out from the record. When these issues are considered there is no other option left for the Society to resolve for appointment of a new Developer in 45 of 49 accordance with law and hence the General Body Resolution dated 14.11.2021 removing the Petitioner as Developer assumes significance in all respects. This Resolution is unchallenged,valid and subsisting as on date. Once there is a trust deficit, supported by cogent reasons as seen in the present case, no fault whatsoever can be found with the decision of the competent Statutory Authorities. To warrant interference of this Court under the provisions of Articles 226 and 227 of the Constitution of India in its extra ordinary jurisdiction, Petitioner would have to show patent perversity in the findings rendered by the Respondent Nos.[2] and 4 in the twin impugned orders. This Court cannot be called upon to re-appreciate the evidence to test the legality of the twin orders which are under challenge. The findings returned by both the Statutory Authorities are clear findings of facts supported by evidence on record. Petitioner has no explanation for all the questions posed by the Court on the issue of delay as also its / his conduct.

27. I have perused the impugned order dated 17.05.2022 passed by Respondent No.2 – CEO, SRA which is at Exhibit ‘U’ Page No.183 of the Writ Petition. After considering the issues, precise and pointed findings have been returned indicting the Petitioner’s omissions. The issue of delay and timely completion of the slum 46 of 49 rehabilitation scheme as referred to in some of the above decisions is also considered by the Respondent No.2. The findings of gross failure and non-performance on the part of Petitioner in implementation of the subject rehabilitation scheme are reasoned findings which are enumerated on running page Nos. 186 to 189 of the Writ Petition and I see no reason to interfere with the said findings in view of my observations herein above.

28. Next, is the order dated 29.09.2022 passed by the Respondent No.4 – AGRC which is under challenge. I have perused the same. The exercise undertaken by the AGRC is a somewhat elaborate exercise considering all facets of the case. Once again, facts are not disputed which are enumerated by the AGRC. The initial issue of delay has been considered adequately by the AGRC in its order. However even after obtaining the revised LOI in the year 2019 it is clearly recorded that Petitioner failed to obtain the CC thereafter. The AGRC has considered the findings of this Court in the decision of Galaxy Enterprises (4th supra) and applied the said findings to the facts of the present case. I find no fault with the reasons recorded by the AGRC with regard to the issue of delay.

29. One of the most striking feature which I would like to mention before I depart is that in so far as implementation of the 47 of 49 slum rehabilitation scheme is concerned, Petitioner has been a total and complete failure in every respect of implementation of the slum rehabilitation scheme. It could have been understood and considered if the Petitioner would have taken atleast some affirmative steps in the past 25 years. It is seen that the only step taken in the first instance was contrary to and in breach of the first LOI conditions and thereafter for 21 years the stalemate has continued due to Petitioner’s unauthorized action of carrying out construction without permission.

30. Both the orders dated 17.05.2022 and 29.09.2022 passed by the Respondent Nos.[2] and 4 respectively are passed correctly while adhering to the factual aspects of the present case. The basis of both the orders is that inordinate delay stands clearly established. Both the orders dated 17.05.2022 and 29.09.2022 passed by the Respondent Nos. 2 and 4 respectively are therefore upheld and confirmed.

31. No ground as pleaded and argued by the Petitioner is made out to interfere with the concurrent findings of facts as recorded by the Respondent Nos.[2] and 4 in exercise of the extraordinary jurisdiction by this Court under Article 226 of the Constitution of India. Writ Petition is accordingly dismissed. 48 of 49

32. The dismissal of the Writ Petition in the facts and circumstances of the present case cannot be unconditional. It is dismissed with costs of Rs.50,000/- to be deposited by the Petitioner with the Kirtikar Law Library, High Court, Mumbai within a period of two weeks from today.

33. The order of status quo which is recorded on 02.05.2023 stands vacated.

34. I am informed that the Interim Application (L) No.32255 of 2023 has been filed by Applicant - M/s. Amikrupa Land Developers Private Limited seeking impleadment in the present Writ Petition. In view of the above order of dismissal, the said Interim Application also stands dismissed.

35. Writ Petition dismissed. [ MILIND N. JADHAV, J. ] Ajay 49 of 49 TRAMBAK UGALMUGALE