New Hanuman Nagar SRA Co-operative Housing Society Ltd. v. Apex Grievance Redressal Committee

3.13. On 06.09.2010, Respondent No.7 addressed letter to Respondent No.3 prima facie rejecting its request for NOC since it was necessary to receive approval from the Government after submitting self-explanatory report to the Government and after scrutinizing the Slum Rehabilitation Scheme proposals through its office.

3.14. On 18.08.2012, Petitioner No.1 - Society addressed notice of termination of its Development Agreement dated 03.02.2010 to Respondent No.6 since it did not complete the SR Scheme within the stipulated period stated in the Agreement.

3.15. In reply to this notice, Respondent No.6 – Developer vide letter dated 11.09.2012 replied that the amalgamated scheme was already under progress and if the Society had any grievance it could invoke arbitration agreement contained in the Development Agreement for redressal of its grievance.

3.16. On 21.11.2012, Respondent No.7 – Collector addressed letter to Respondent No.3 stating that no permission be granted for implementation of the LOI to the Developer without its NOC and if it was granted, the same be cancelled. Respondent No.7 addressed three further letters to Respondent No.3 being letters dated 29.12.2012, 22.01.2013 and 12.06.2013 for cancellation of the amalgamated SR Scheme in so far as Petitioner No.1 – Society was concerned and stated that Respondent No.7 did not issue NOC for execution of the LOI regarding Petitioner No.1 – Society’s SR Scheme.

3.17. In May 2017, Respondent Nos.[4] and 5 - Societies filed two separate Applications under Section 13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short “the said Act”) seeking termination of appointment of Respondent No.6 - Developer due to delay caused in completion of the amalgamated SR Scheme on their plot.

3.18. On 25.07.2018, during pendency of the above 13(2) Application, Respondent No.5 - Society withdrew its Application. Since the scheme was being implemented jointly for Petitioner No.1 – Society and Respondent Nos.[4] and 5 - Societies, Petitioner No.1 - Society was served with a copy of Application filed by Respondent No.4 - Society as it would adversely affect Petitioner No.1 – Society also. Petitioner No.1 – Society therefore convened a General Body Meeting on 27.01.2018 and passed resolution to terminate the Development Agreement with Respondent No.6 – Developer and it filed intervention application in the proceedings under Section 13(2) of the said Act filed by Respondent No.4 Society before the Competent Authority. It is seen that Notice of termination was sent on 03.02.2010, whereas the General Body passed a Resolution for termination of Development Agreement on 27.01.2018.

3.19. On 08.03.2019, Respondent No.2 - Competent Authority passed order holding that joint SR scheme was carried out by Respondent No.6 - Developer and the case was referred to Respondent No.3 for consideration of the authenticity of clubbing the three SR Schemes as per LOI dated 29.07.2010 on the basis of the facts and record of the case.

3.20. In 2019, CRZ Rules for development were eased. Conditions and potential of development on Petitioner No.1 – Society's plot were substantially relaxed thereby enabling a feasible development potential.

3.21. On 08.04.2021, Respondent No.4 - Society withdrew its Application filed under Section 13(2) of the said Act for removal of Respondent No.6 - Developer.

3.22. During the aforesaid period, Respondent Nos.[2] and 3 also issued suo motu show cause notice to Respondent No.6 – Developer under Section 13(2) of the said Act. Copy of this notice is placed on record by SRA at the time of hearing the present Writ Petition.

3.23. By order dated 11.04.2022, Respondent No.3 directed Petitioner No.1 – Society’s SR Scheme to be de-clubbed from the amalgamated SR Scheme with Respondent Nos.[4] and 5 – Societies and granted liberty to Petitioner No.1 - Society to appoint new Developer if it chose to do so and directed that the new incoming Developer would reimburse the damages / expenses, if any, incurred by Respondent No.6 – Developer until then.

3.24. Respondent No.6 - Developer challenged the order dated 11.04.2022 passed by Respondent No.3 - SRA before the Apex Grievance Redressal Committee, Mumbai (for short “AGRC”). Though initially AGRC refused interim relief, Respondent No.6 approached this Court in Writ Petition (L) No.14453 of 2022 which was disposed of on 13.05.2022, inter alia, directing hearing of Respondent No.6’s Statutory Appeal by AGRC.

3.25. By order dated 11.07.2022, AGRC set aside the order dated 11.04.2022 passed by Respondent No.3 terminating appointment of Respondent No.6 – Developer qua Petitioner No.1 - Society and, inter alia, issued further substantial directions thus allowing the Appeal.

3.26. Being aggrieved with the order of AGRC, Petitioner No.1 – Society filed the present Writ Petition on 26.09.2022.

3.27. In the meanwhile, on 07.08.2022 revised LOI was issued by Respondent No.3 for implementation and execution of the amalgamated Development SR Scheme undertaken by Respondent No.6 – Developer for the three Societies.

4. Mr. Khandeparkar, learned Advocate appearing for Petitioners would submit that the impugned order dated 11.07.2022 is passed by AGRC without considering the fact that Respondent No.6 – Developer is guilty of committing gross delay and laches in virtually abandoning Petitioners’ SR Scheme which is not completed for the past 21 years. It immediately needs to be noted here that 21 years as stated is certainly an exaggeration in the facts of this case. What is crucial to be noted for adjudication of the grievance of Petitioners are the reasons for delay, to whom are they attributable and what is/was the progress of the amalgamated SR Scheme in the interregnum and/or as on the date of passing of the order by Respondent No.3 and whether due consideration and reasons are given by the concerned Authorities in the orders impugned before me.

4.1. He would submit that in view of the increased density of eligible slum dwellers from the originally proposed 330 to 476 rehab tenements, the amalgamated SR Scheme implemented on land of Respondent Nos.[4] and 5 Societies now needs to be implemented separately without amalgamating it with the SR Scheme of Petitioners’ plot. Hence, he would submit that considering subsequent eligibility of several slum dwellers of Respondent Nos.[4] and 5 Societies, clubbing of Petitioners’ SR Scheme would adversely affect substantial rights of members of Petitioner No.1 - Society as well as Respondent Nos.[4] and 5 – Societies. Here again it needs to be noted and understood as to whether, how and what prejudice would be caused to the members of Petitioner No.1 – Society in the facts of this case vis-a-vis the current status of the Scheme.

4.2. He would submit that in the present scheme of things it would be impossible for Respondent No.6 – Developer to rehabilitate all eligible members of Petitioner No.1 – Society in the ongoing amalgamated SR Scheme on the property of Respondent Nos.[4] and 5 – Societies and hence Respondent No.7 – Collector has correctly refused to issue NOC which is one of the mandatory condition under the LOI issued to the Developer.

4.3. He would submit that Respondent No.1 – AGRC while passing the impugned order has not considered the crucial fact that Respondent No.7 – Collector has expressly rejected request for NOC since 2010 itself which is evident from the four letters addressed by the office of Respondent No.7 and appended to the Petition and this has not been challenged till date. Hence all steps taken by Respondent No.6 – Developer pursuant to rejection of NOC are illegal and invalid.

4.4. He would submit that reference to offer 26 tenements to members of Petitioner No.1 – Society in the impugned order has been noted by the Authority merely to overlook the gross delay in completing the amalgamated SR Scheme and only to create equity and the same ought not to be countenanced by this Court. He would vehemently submit that admittedly no NOC has been obtained by Respondent No.6 – Developer till the date of passing of the impugned order by AGRC.

4.5. He would submit that the timeline clearly indicated that the amalgamated development is substantially delayed and there is breach of the time/tenure stated in the Development Agreements for rehabilitation of members of Petitioner No.1 – Society and in view of termination of Development Agreement by Petitioner No.1 – Society as far as back in 2012, Petitioner No.1 – Society’s SR Scheme should be de-clubbed in the interest of justice. He would submit that Petitioner No.1 - Society has terminated the Development Agreement on 05.08.2012 and Respondent No.6 – Developer has not taken steps thereafter to challenge its termination and it amounts to acceptance of termination and hence order dated 11.04.2022 passed by Respondent No.3 for removal of Respondent No.6 as Developer is correctly passed.

4.6. Lastly he would submit that under the provisions of Clause 2.[8] of Appendix IV read with Regulation 33(10) of DCR 1991 and DCPR 2034, it is mandatory and incumbent for the Developer to obtain NOC for building permission from the land owning authority for redevelopment of any slum located on its land. That in the present case Application for NOC was made by Respondent No.6 – Developer as far back as in the year 2011 to Respondent No.7 – Collector and the same was not allowed, rather it has been refused as is evident from the rejection letters dated 29.12.2012 (at page No.221 of the Petition) and 22.01.2013 (at page No.223 of the Petition).

4.7. In support of his above submissions, he has referred to and relied upon the decision of the Division Bench of this Court in the case of Deepak Murari Shivalkar and Ors. Vs. State of Maharashtra and Ors.1. Reliance on this decision is placed in the context of interpretation of Appendix IV of D.C. Regulation No.33(10) and clause 2.[8] thereof. He would submit that the factum of consent or NOC from the land owning authority is mandatory for the purpose of development and if the same is not given or refused, it cannot be presumed to have been given and in that view of the matter, Respondent No.6 – Developer could not have proceeded with further development on the basis of any implied consent or deemed NOC from Respondent No.7 – Collector.

4.8. Next, he would submit that in the present case Respondent No.7 is the land owning authority and it has by letter dated 06.09.2010 categorically rejected and refused to give its NOC for development and implementation of the SR Scheme of Petitioner No.1 – Society. In that regard he has persuaded me to consider the Affidavit-in-Reply dated 12.06.2023 filed by Respondent No.7 confirming the aforesaid position. He would submit that once the land owning authority refuses NOC which is an essential condition in the LOI, no equity can be argued by Respondent No.6 – Developer if it continues development on the basis of implied consent or deemed NOC 1 2016 SCC Online Bom 16105: (2016) 4 AIR Bom R 97 from the land owning authority. While drawing my attention to clause 2.[8] of the D.C. Regulations, he would submit that the decision of this Court in the case of Deepak Murari Shivalkar (supra) has dealt with this aspect in paragraph Nos.57 to 62 of the said decision which also needs to be adopted by this Court. For reference, paragraph Nos.57 to 62 are reproduced below:- “57. A bare reading of this letter would indicate as to how the developer understood that a no objection would have to be granted or maintained for developing the MCGM land for implementation of the slum rehabilitation scheme and there is nothing like a deemed consent. Rather, this letter requests grant of a fresh NOC in favour of Shantidevi Nevatia and others. We do not find that in the teeth of this, the revised LOI, copy of which is at page 176 of the paper-book can carry the case of these developers or the SRA any further. The terms and conditions thereof have been relied upon by Dr. Sathe, but those terms and conditions and particularly condition No.15 do not, in any manner, indicate that the petitioner-Corporation has granted any consent, much less any deemed one can be inferred from it. Rather, in the salient features of the scheme set out at page 179, the LOI indicates the area of slum plot as 6059.10 square meters and it deducts the approved FSI in Building Proposal Department of MCGM dated 7th February, 2010 and a P.G. Reservation etc. Thus, it is apparent that the SRA was aware that without the concurrence and approval of the Municipal Corporation no scheme can be implemented qua its plot. From page 180 of the paper-book, it is apparent from condition No.21 that M/s. C.D. Nevatia Developers were called upon by the Deputy Chief Engineer, SRA and the Executive Engineer and Superintending Engineer to obtain NOC before requesting for approval of plans or at the stage at which it is insisted upon by the concerned Executive Engineer, SRA from the P/North Ward of the Municipal Corporation. It is clear, therefore, that no question or any deemed consent arises and the SRA or the developer cannot rely upon the alleged inaction of the Corporation in that behalf. Whatever may be the fate of the scheme proposed by Nevatia Developers, once on account of the order passed by this Court in Writ Petition No.46 of 2002 and the specific clarification given in the latter order passed on 22nd January, 2010 in Writ Petition No.991 of 2009, the SRA and the private parties could not have proceeded on any implied consent or deemed NOC from the Municipal Corporation.

58. This aspect becomes clear if one peruses Annexure-AA which is a copy of the letter of the MCGM dated 10th January, 2013, to the CEO of SRA. After recording all the above facts and circumstances, the Deputy Municipal Commissioner, Zone- IV terms the letter from CEO, SRA dated 24th December, 2012, as containing distorted facts and resorting to fraudulent documents. The LOI and IOA and the CC have all been questioned and it was requested that the same be terminated. No law gives SRA the authority to develop a property styled as Municipal land without grant of Annexure-II from the competent authority, namely, the Assistant Commissioner, P/North Ward of and NOC from the land owning authority, namely, the Municipal Corporation of Greater Mumbai. The Municipal Corporation evinces its clear intent to start developing its own plot.

59. If there was ever any doubt about the above that stands completely cleared by the letter addressed by none other than the Municipal Commissioner himself on 20th March, 2013, to the Principal Secretary (Housing), Government of Maharashtra. That letter raises serious objections with regard to the role of SRA and the acts attributed to it. The letter specifically requests for a direction to cancel all the permissions and approvals so far as they relate to the Municipal land and granted by the SRA. Therefore, it would not be proper to accept the contentions of the learned counsel appearing for the respondents and contesting the petition that the Municipal Corporation had approved their acts. Once they have to rely upon and raise a plea of deemed consent, then, it goes without saying that neither there is any Annexure-II which is sanctioned in relation to the Municipal land favouring the developer nor there is any NOC from the Municipal Corporation. The Municipal letter dated 21st October, 1997, which is relied upon will not take the case any further inasmuch as on the own showing of the respondent No.3, a LOI was issued. That was relying upon nothing, but a deemed consent. The petitioner- Corporation the allegedly not objecting to the implementation of the scheme their deemed consent is what is pleaded by the respondent No.3 at page 238. For the reasons that we have set out and once the aspect of Municipal Corporation's NOC was clearly kept open by this Court as well in its order passed on 22nd January, 2010, in Writ Petition No.991 of 2009, then all the more we cannot and based on the affidavit-in-reply filed by respondent No.3 uphold the contentions of both Dr. Sathe and Mr. Dhakephalkar.

60. It has been clarified by the petitioners in their rejoinder affidavit as to how the plot of land in its entirety is reserved for Municipal primary school. It desires to develop it and bearing in mind the object and purpose of the RTE Act. Reliance is rightly placed in this affidavit on the order passed by this Court in Writ Petition No.991 of 2009. Once the consent or No Objection Certificate from the land owning authority was required and that is the stand of the SRA as well, then, we do not understand how the writ petition filed by the Municipal Corporation can be opposed by the SRA. The whole stand perplexes us to say the least.

61. Once we have dealt with the main contentions of the parties, then, we do not think that the peripheral issues need to be addressed.

62. We are of the opinion that the Municipal Corporation was always at liberty to question the actions of the SRA in relation to its property. The Municipal Corporation's endeavour is to safeguard the larger public interest. It could not have sacrificed and surrendered a valuable piece of land which was acquired by it and vested in it for a public purpose. It could not have ignored its own reservations clamped on the subject property and as reflected in the development plan. Once the Municipal Corporation acted in this manner, then, we do not think that there is any substance in the objection to the maintainability of this petition on the ground of delay. We are of the opinion that the Letter of Approval and the Commencement Certificate being a development of 2012 and the intent of the Corporation in moving this Writ Petition on 16th December, 2013, are enough to turn down the plea of lack of bona fides on its part.”

4.9. On the basis of the above submissions, he would urge the Court to set aside the AGRC order dated 11.07.2022 and uphold the SRA order dated 11.04.2022.

5. In support of Petitioners’ case, Mr. Satelkar, learned AGP has drawn my attention to the Affidavit-in-Reply filed by Mr. Dinesh Kurhade, Tahsildar (Revenue), Mumbai Suburban District. It is seen that by specific orders dated 16.03.2023 and 09.06.2023 of this Court Respondent No.7 was directed to file his say. In the said Affidavit Respondent No.7 has in paragraph Nos.[2] to 4 thereof stated as follows:- “2. I say that, the Slum Rehabilitation Authority has submitted the letter dated 05.08.2010 along with LOI dated 29.07.2010 and requested to Collector, Mumbai Suburban District to process the grant of ‘No Objection Certificate’ for proposed S.R. Scheme on plot bearing CTS No. 1084/A Village Bandra Off Carter Road, Khar (W) for New Hanuman Nagar SRA CHS (Prop). As per directions given in Government, Revenue and Forest Department letter dated 08.08.2006, the Collector, Mumbai Suburban District vide letter dated 06.09.2010 rejected the request of Slum Rehabilitation Authority and informed Slum Rehabilitation Authority to submit proposal along with necessary document. Copy of the said letter dated 06.09.2010 is exhibited as Exhibit H in Original Petition.

3. I say that, As Slum Rehabilitation Authority did not submit the required documents, this office did not grant No Objection Certificate and intimation was given vide letter dated 21.11.2012 and 22.01.2013 to Slum Rehabilitation Authority. This office informed Slum Rehabilitation Authority that the LOI issued on 29.07.2010 should be cancelled. No reply received from Slum Rehabilitation Authority afterwards. Copy of the said letter dated 21.11.2012 is exhibited as Exhibit L in Original Petition & Copy of the said letter dated 22.01.2013 is exhibited as Exhibit M[2] in Original Petition.

4. I say that, All India Human Rights Association file an complaint on 15.04.2013 with this office that, the Slum Rehabilitation Authority has implemented the said scheme without obtaining permission from Collector, Mumbai Suburban District. The Collector office forwarded said compliant vide letter dated 12.06.2013 to Slum Rehabilitation Authority and ask them to submit report. Till date no report has been submitted by Slum Rehabilitation Authority. Copy of the said letter dated 12.06.2013 is exhibited as Exhibit M[3] in Original Petition.”

5.1. He would submit that the office of Respondent No.7 did not grant NOC to Respondent No.6 – Developer for implementation of the amalgamated SR Scheme.

6. PER-CONTRA, Mr. Jagtiani, learned Senior Advocate appearing for Respondent No.6 – the contesting Developer in reply, at the outset, argued on the locus of Petitioners to maintain the present Petition and would contend that the impugned order dated 11.04.2022 emanates from a suo-moto proceedings initiated by CEO, SRA under Section 13(2) of the Slum Act for alleged “Inordinate Delay” in implementation of the amalgamated SR Scheme by Respondent No.6. That by order dated 11.04.2022, CEO, SRA terminated Respondent No.6 – as Developer of Petitioner No.1’s SR Scheme. He would submit that in Appeal AGRC arrived at a finding of fact that delay in implementation of the SR Scheme of Petitioner No.1 cannot be attributed to Respondent No.6. He would submit that Petitioners did not file any proceedings for termination/removal of Developer with the SRA. That SRA infact has pursuant to AGRC order issued revised LOI dated 02.08.2022 to Respondent No.6. Hence once SRA has accepted the impugned order and issued revised LOI, Petitioners would have no locus standi to file the present Petition. He would submit that Petitioners before seeking de-clubbing of its SR Scheme have not exhausted the remedy available and hence Petition is not maintainable.

6.1. He would submit that according to SRA since NOC was not refused within 30 days from the date of application, it was deemed to be granted as per Clause 2.[8] of DCR 33(10). That it was on this basis that SRA proceeded further to grant building permissions and LOI to Respondent No.6. Further Respondent No.7 – Collector did not file any proceedings for deletion of Petitioners’ SR Scheme from the LOI dated 29.07.2010 or even the revised LOI dated 02.08.2022 on account of its refusal to grant NOC despite being fully aware that Respondent No.6 was implementing the amalgamated SR Scheme for Petitioners. That infact, refusal of NOC was not even communicated to Respondent No.6. Hence he would submit that under the deeming provision, Respondent No.6 proceeded to implement the amalgamated SR Scheme and has till date almost completed the rehab component in the SR Scheme.

6.2. He would submit that in the facts of the present case, Collector has acquiesced to the appointment of Respondent No.6 as Developer of Petitioners’ SR Scheme after the alleged refusal of NOC. Since even after the alleged refusal i.e. the four letters addressed by Collector to delete Petitioners’ SR Scheme from the LOI dated 29.07.2010, from the timeline it is seen that Collector continued to accept Respondent No.6 as Developer despite being the land owning authority. He would submit that on 17.04.2015, Collector addressed letter to Petitioner No.1 and Respondent No.6, calling upon both of them to submit further documents for considering the statutory Appeals for eligibility filed by ineligible members of the Petitioner No.1. He would submit that this would clearly show that Collector, though allegedly refused to grant NOC, has by his own conduct acquiesced to the appointment of Respondent No.6 and now cannot contend to the contrary.

6.3. He would submit that NOC of Collector was refused without providing any reason and it is not its case in the Affidavit filed before this Court that implementation of the SR Scheme for Petitioners would affect implementation of any development plan or that any other plan/ Scheme which was already under implementation. Hence refusal of NOC by Collector cannot now override the amalgamated SR Scheme which has already been implemented substantially and almost completed by the Developer.

6.4. He would submit that SRA and the State of Maharashtra have all throughout acknowledged Respondent No.6 to be the Developer for the amalgamated SR Scheme and issued approvals and permissions from time to time. He would submit that SRA has infact relied upon the Advocate General's opinion to the effect that NOC from the land owning authority is not mandatory and that refusal of such NOC does not override a Slum Rehabilitation Scheme and the State of Maharashtra and its functionaries have therefore acted accordingly. He would submit that Respondent No.6 therefore continued to develop the conjoint SR Scheme and incurred huge expenditure in development and now having done so, it would not be open for SRA to take a contrary stand since promissory estoppel operates against the State of Maharashtra and SRA and the amalgamated SR Scheme now cannot be de-clubbed at this stage to the detriment of the Developer.

6.5. He would submit that Respondent No.6 has substantially completed the conjoint SR Scheme and rehabilitated 330 out of 454 eligible slum dwellers (i.e. more than 70% of the slum dwellers). He has submitted the status of rehabilitation, society wise, is as under:- Name of SRA Society and Party As per LOI dated 29.07.2010 no. of rehab tenements to be constructed As per Revised LOI dated 02.08.2022 no. of rehab tenements to be constructed No. of Rehab tenements already Allotted No. of balance rehab residential tenements required to be constructed Anand SRA Society (R. No.4) and Valmiki SRA Society (R. No.5) 199 319 304 15 New Hanuman Nagar SRA Society (Petitioner) 133 135 26 109 Total 332 454 330 124

6.6. He would submit that under LOI dated 29.07.2010 and Revised LOI dated 02.08.2022, Respondent No.6 was required to construct rehab tenements of 25 sq.mtrs. each i.e. 269 sq.ft. and all rehab tenements already constructed till now have been handed over to the eligible slum dwellers so far and the under construction rehab tenements would be fully ready shortly. That under the Development Agreement dated 03.02.2010 executed between Petitioner No.1 - Society and Respondent No.6, it was agreed that in consideration of Hanuman Society allowing Respondent No.6 to club their SR Scheme with that of Anand Society and Valmiki Society, Respondent No.6 shall pay a sum of Rs.6,00,000/- to each member. Out of the said amount, Rs.50,000/- is already paid by cheque admittedly at the time of execution of the agreement with members of Petitioner No.1 - Society and balance Rs.5,50,000/- is payable at the time of vacating their premises and while handing over possession of rehab tenements to these eligible members of Petitioner No.1.

7. He would next draw my attention to three specific letters addressed by Petitioner No.1 – Society to SRA and Collector namely letters dated 06.09.2013, 11.04.2017 and 13.10.2017 wherein Petitioner No.1 – Society has repeatedly acknowledged the Respondent No.6 as Developer for implementation of the amalgamated SR Scheme in the present case. These letters are appended to the Petition and Mr. Jagtiani has taken me through them. In the letter dated 06.09.2013, Petitioner No.1 – Society has acknowledged the fact that they received the amalgamated LOI through the Developer i.e. Respondent No.6 and their SR Scheme was in progress as per the said LOI. In the letter dated 11.04.2017, it is seen that it is addressed to the Collector acknowledging that Petitioner No.1 – Society’s development commenced in the year 2010 and the work of rehab building had reached almost halfway and that implementation of the SR Scheme was at an advanced stage and in that view of the matter, declaring the land where structures of members of the Petitioner No.1 – Society were standing as CRZ-II would affect their rehabilitation process. It is further acknowledged that its plot has been amalgamated with the plots of Respondent Nos.[4] and 5 – Societies since development of its plot was not possible due to high density of slum dwellers and less available area of FSI. In this respect Mr. Jagtiani would submit that in CRZ area, only zonal FSI is applicable with 25% increased FSI which meant that in the plot concerning Petitioner No.1 – Society at Khar, FSI available was 1.25 whereas in all other non CRZ areas FSI available is 3.00. In the third letter dated 13.10.2017 it is seen that Petitioner No.1 – Society has acknowledged its amalgamation with Respondent Nos. 4 and 5 – Societies and stated that the rehab building work was in progress and it took objection to an anonymous complaint which came to be filed on behalf of Petitioner No.1 – Society with the SRA.

8. He would submit that despite the Respondent No.6 – Developer being ready and willing to allot the 26 rehab tenements to the members of Petitioner No.1 – Society, those members have refused to accept the rehab tenements. According to Respondent No.6 – Developer, this is an admitted fact on record. In this regard he has invited my attention to the order dated 11.07.2022 passed by the AGRC which is appended at Exhibit “S” page No.548 of the Writ Petition to contend that AGRC after considering the entire facts of the case in paragraph No.14 thereof noted as under:- “14. Considering the aforesaid facts and the record this Committee is of the view that, Applicant has constructed and completed the rehab tenements under subject S.R. Scheme as per the LOI dated 29.07.2010 and carried out substantial i.e. 98.76% work for rehabilitation of the slum dwellers. Till the passing of impugned order dated 11.04.2022, the slum dwellers of New Hanuman Nagar CHS never have any complaint and/or any grievance in respect of implementation of S. R. Scheme through the Applicant Nimesh Global Syndicate Builders and Developers. From the aforesaid facts and the Judgements passed by Hon'ble High Court of Judicature at Bombay as enumerated is hereinabove this Committee is of view that delay in implementing the subject S.R. Scheme cannot be attributed to the Applicant.”

9. It is seen that pursuant to this order, AGRC directed SRA to allot the 26 rehab tenements to members of Petitioner No.1 – Society and issue OC to those 26 tenements and also directed issuance of revised LOI for completion of the balance rehab tenements and for speedy implementation of the subject SR Scheme. It is seen that even revised LOI dated 02.08.2022 is issued thereafter. Hence he would submit that Petitioner No.1 – Society cannot now contend that it is the Respondent No.6 – Developer who abandoned the amalgamated SR scheme or for that matter delay is attributable to Respondent No.6 – Developer.

10. He has next drawn my attention to letter dated 19.12.2022 Exhibit “G” - page No.728 to the sur-rejoinder of Respondent No.6 - Developer, inter alia, submitting demand draft of Rs.85,89,314/towards the outstanding rent of the slum dwellers of Respondent No.4 – Society and appended thereto at Exhibit “H” are two specific photographs of the ongoing construction on the site as on 06.01.2023 and would contend that the work of the last building is virtually progressing and shall be completed in due course shortly.

11. On the basis of the above submissions, he would submit that AGRC has considered totality of the facts and circumstances pertaining to the issue of “inordinate delay” in the present case and held that it is not attributable to Respondent No.6 - Developer and hence has passed a correct order. He would submit that this is not a case where inordinate delay has occurred and the Developer has not done anything. Infact, in this case the entire rehab tenements/building is now duly completed and Respondent No.6 - Developer would be in a position to handover the same to the remaining eligible members. He has drawn my attention to paragraph No. (bb) of the Affidavit-in-Reply dated 10.10.2022 at page No.589 filed by Respondent No.6 - Developer to contend that the stand now adopted by Petitioner No.1 – Society is at the behest of a third party for clearly extraneous consideration in view of the changed position in law/CRZ norms and in the facts of the present case allowing a change of Developer at this stage would virtually amount to travesty of justice. He has therefore urged the Court to uphold the AGRC order impugned in the Writ Petition on a balance of convenience of the parties to the present lis.

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

(i) Tulsiwadi Navnirman Co-op. Housing Society Ltd. and

Anr. Vs. State of Maharashtra and Ors.2;

(ii) Lokhandwala Infrastructure Pvt. Ltd. and Anr. Vs. State of Maharashtra and Ors.3; and

(iii) Dyna Estate Pvt. Ltd., Mumbai and Anr. Vs. State of

12.1. He has further drawn my attention to the decision of this Court in the case of Lokhandwala Infrastructure Pvt. Ltd. (3rd supra) and more particularly paragraph Nos.10 and 15 thereof which are reproduced herein under:-

13. I have heard Mr. Khandeparkar, learned Advocate for Petitioners; Mr. Abhijit Patil, learned Advocate for Respondent No.1 – AGRC; Mr. Sandesh Patil, learned Advocate for Respondent Nos.[2] and 3 – SRA; Mr. Raut, learned Advocate for Respondent Nos.[4] and 5; Mr. Jagtiani, learned Senior Advocate for Respondent No.6 – Developer and Mr. Satelkar, learned AGP for Respondent No.7 – State and with their able assistance perused the record and pleadings of the case. Submissions made by Advocates have received due consideration by the Court.

14. At the outset, it needs to be considered as to whether the Petitioner No.1 – Society has infact and indeed approached the Competent Authority for removal of the Developer. Admittedly, the impugned order dated 11.07.2022 emanates from a Suo Moto proceedings initiated by CEO, SRA under Section 13(2) of the said Act on the ground of “inordinate delay” in implementation of the SR Scheme. It is seen that by order dated 11.04.2022 CEO, SRA terminated Respondent No.6 as Developer. This order of termination is challenged before the AGRC in Appeal and thereafter the order dated 11.07.2022 came to be passed by setting aside the order dated 11.04.2022 and reinstating Respondent No.6 as Developer. From the above facts, it is clear that Petitioner No.1 – Society has not initiated any complaint or Application under Section 13(2) of the said Act neither has sought termination of the Developer or de-clubbing of its SR Scheme at any stage. The only grievance of Petitioner No.1 – Society is the delay which is exhibited and argued, rather not so forcefully by Mr. Khandeparkar. However, the entire thrust of Petitioner No.1 – Society’s submissions in the Petition is on the ground of non procurement of NOC from the Collector and thus committing breach of an essential condition of LOI. It is pertinent to note that in the facts of the present case, the aforementioned ground which is argued in the present Petition has not even once been raised by Petitioner No.1 – Society before the Competent Authority or the Appellate Authority. Similarly it is further pertinent to note that the ground of de-clubbing of Petitioner No.1 - Society’s SR Scheme has also never been raised by Petitioner No.1 – Society and therefore to maintain a challenge on the aforementioned two grounds for the first time in the present Petition would require the Society to plead and come out with very strong facts in its favour.

15. As seen and delineated herein above, Petitioner No.1 – Society has not been able to make out any case on any such strong facts which would enable this Court to exercise its extraordinary jurisdiction. After all, the present Petition is filed under the provisions of Article 226 of the Constitution of India. Hence what is needed to be examined is whether the impugned order passed by AGRC has been passed correctly and that it is not perverse. In this regard, reliance of the contesting Respondent No.6 - Developer on the decision of Tulsiwadi Navnirman Co-op Housing Society Ltd. and Anr. (1st supra) is relevant. In paragraph No.115 of the said decision, the full bench of this Court has held as under:- “115. In the result, we are of the opinion that writ jurisdiction is available in matters of Rehabilitation of Slum Dwellers but the limits of exercise of power should be confined and restricted to matters, which remain unresolved despite the remedies of Appeals etc. being exhausted. Similarly, in the illustrations given by learned Advocate General, this Court can be approached only if the decision of SRA or State is permissible for being interfered with on the settled principles in writ jurisdiction. We have given illustrations and categories of case wherein a prerogative writ may be issued so as to ensure smooth and effective implementation of Slum Rehabilitation Scheme. However, the writ jurisdiction will not be available where the dispute is essentially private or contractual and the State Government, SRA and other local bodies are impleaded as parties only to file writ petition. In other words, when the main relief is not sought against these bodies, yet, they have been impleaded as parties and the dispute is mainly and essentially between private parties involving purely private law, then, writ petition is not the remedy.”

15.1. If the aforementioned ratio is applied to the facts of the present case, it is seen that though the Petitioner No.1 – Society has sought removal of the Developer and de-clubbing of its SR Scheme, it is an admitted position that it has not exhausted the remedy provided under the extant statute. Despite this, it also needs to be mentioned that the provisions of Section 13(2) of the said Act empower the CEO, SRA to even initiate Suo Moto proceedings. Even taking that into account it is therefore required to be seen whether the proceedings initiated by the CEO, SRA in the present case call for such an intervention in the facts of the present case. Let us therefore examine these facts. In this case, SRA’s termination order is dated 11.04.2022. AGRC’s order is dated 11.07.2022. Revised LOI is issued by SRA on 02.08.2022. Affidavit of SRA in the Petition opposes the AGRC order. If that be so, SRA should not have issued the revised LOI in August

2022. The right and entitlement of slum dwellers as held by the Division Bench of this Court in the decision in the case of Awdesh Tiwari and Ors. Vs. CEO, SRA[5] can only be restricted to the right of rehabilitation. The land in question of Petitioner No.1 – Society 5 2006 (4) Mh.L.J. 282 belongs to the Collector and not the Society or the occupants thereon. Slum dwellers do not have the right to choose and decide which Developer should implement the SR Scheme once the Scheme is initiated, begun and is under progress under there are malafides attributable. For exercising such a right, there must be strong facts and the only fact which can aid and assist the Society in such a case, would be the balance of convenience, and it is this balance of convenience in the present case which needs to be deciphered. It needs to be seen whether, is this a case wherein despite appointment of Respondent No.6 – Developer, issuance of LOI and revised LOI etc. steps have not been taken by the Developer till date? Admittedly, there is a delay and it also needs to be seen in which facts and circumstances it has occurred and who is responsible for it. The answer to the above questions in the present case is that the SR Scheme has now progressed to such an extent that all slum dwellers of all 3 Societies would be rehabilitated fully very soon, in fact, as on date of filing of the Petition, 330 out of 454 eligible slum dwellers are already rehabilitated in the SR Scheme.

15.2. Contents of paragraph No.13 of the decision of the Division Bench in the case of Awdesh Tiwari and Ors. (5th supra) in this context is relevant in the present case and 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 1st 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 32(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.”

15.3. There are further noticeable facts in the present case which also need to be looked into in the Suo Motu notice issued by SRA. It is seen that there is not a single word about ownership of the subject land on which members of Petitioner No.1 – Society have their structures in the notice. Enquiry conducted by CEO, SRA does not consider the issue of NOC procurement by Respondent No.6 – Developer in respect of the amalgamated SR Scheme which is being implemented. It is seen that Petitioner No.1 – Society have merely intervened in the proceedings which were filed by Respondent Nos.[4] and 5 – Societies under Section 13(2) of the said Act. However subsequently Respondent Nos.[4] and 5 – Societies reconciled and withdrew their complaint under Section 13(2) of the said Act.

16. In view of the above, on the issue of locus, I am of the considered opinion that the facts and circumstances in the present case do not entitle Petitioner No.1 – Society to maintain any substantive challenge in the present Writ Petition to the impugned order dated 11.07.2022 passed by AGRC. In fact, it has no locus standi to challenge the same. The act on the part of Petitioner No.1 – Society would lead to further delay and defeating the objective of the said Act and the beneficial aspect of the said legislation.

17. The next important ground on which challenge is maintained by Petitioner No.1 – Society is about non procurement of NOC from the Collector. It is argued that NOC from the land owning authority is a mandatory condition of LOI and in its absence the amalgamated SR Scheme ought not to have progressed at all. In this regard, certain dates and events are therefore required to be noted so as to have proper perspective of requirement of the NOC in consonance with the statutory provisions of clause 2.[8] of DCR 33(10). It is seen that LOI dated 29.07.2010 was issued by SRA to the Respondent No.6 – Developer and it is vehemently argued by Mr. Khandeparkar that under condition No.10 of LOI, NOC of the land owning authority was to be submitted within one month from approval of the SR Scheme as per clause 2.[8] of DCR 33(10). It is seen that admittedly on 05.08.2010, SRA addressed letter to the Collector seeking NOC for implementation of the SR Scheme since the Collector, Mumbai is the owner of the land on which structures of members of Petitioner No.1 – Society at Khar are standing. This letter is appended at Exhibit “G” - page No.197 of the Petition. It is stated in this letter that if no NOC is issued by the Collector within 30 days therefrom, NOC will be deemed to have been granted. It is further seen that by letter dated 06.09.2010 Collector, Mumbai called upon the SRA to submit documents as stated therein to enable the State Government to consider the grant of NOC. This was followed by 3 letters issued by Collector dated 21.11.2012, 29.12.2012 and 22.01.2013. All 3 letters are addressed to the CEO, SRA for deletion of Petitioner No.1 - Society’s SR Scheme from the LOI. 2 years thereafter in the year 2015, several members of the Petitioner No.1 – Society filed statutory Appeals against orders passed by the SRA declaring them as ineligible. In that regard, on 17.04.2015, Collector, Mumbai addressed letter to Petitioner No.1 – Society and Respondent No.6 – Developer calling upon them to submit documents to enable the Collector to consider the statutory Appeals of ineligible members in accordance with law. This is followed by an important letter dated 28.10.2015 addressed by SRA to the Housing Department of the State Government of Maharashtra stating that according to the opinion received from the Advocate General, NOC from the State Government is not mandatory, and further as NOC was not granted within 30 days of the Application, it was deemed to have been granted by Collector, Mumbai. This letter is appended at Exhibit “K” - page No.734 to the Writ Petition in the Sur-rejoinder dated 09.01.2023 filed by Respondent No.6 – Developer. It is precisely because of this letter that when SRA initiated Suo Moto proceedings against Respondent No.6 - Developer, it did not take up the ground of non procurement of NOC.

18. In the above backdrop, it is extremely significant to note that between the years 2010 and 2022 despite the aforementioned occurrences, SRA continued to issue building permissions to Respondent No.6 - Developer for construction of rehabilitation buildings, resultantly leading to Respondent No.6 - Developer having constructed 330 rehab tenements for housing members of the Societies and obtained OC for the same and has already housed 330 members in the rehab tenements as on the date of filing the Petition. In that process, on 02.08.2022 a revised LOI was issued by SRA to Respondent No.6 to construct a further total 483 rehab tenements as compared to earlier 330 rehab tenements considering that an additional number of members of the 3 Societies had become eligible by that time. It is pertinent to note that SRA who initiated Suo Moto proceedings is the same SRA who has constructively played a role in ensuring the SR Scheme progressed in the interregnum which is borne out from the facts alluded to and stated herein above.

19. In view of the above, let us consider the objections raised by Petitioner No.1 – Society about deemed NOC not being applicable to the present development. The very SRA who initiated Suo Moto proceedings has proceeded to grant building permission (Revised LOI) to the Respondent No.6 - Developer. This is because of provisions of clause 2.[8] of the DCR 33(10) are clear and read thus:- “2.8. As soon as the approval is given to the Project, the no objection certificate for building permission of the land owning authority shall be given in respect of that slum located on lands belonging to any department, undertaking, agency of the State Government including MHADA, or any local self-Government such as the Municipal Corporation within 30 days after the intimation of such approval of the Project is communicated. In the event if its not being given within the period, it shall be deemed to have been given.”

19.1. From the above, it is seen that NOC of the land owning authority is not a mandatory requirement after approval of the SR Scheme, or for that matter for issuance of LOI. What is the significance of such NOC is the question before the Court? This question arises because the entire thrust of the Petition and argument advanced by Mr. Khandeparkar on behalf of Petitioner No.1 - Society is on the basis of non procurement of NOC and nothing more. Provision itself says that as soon as approval is given to the project, NOC shall be given within 30 days after IOA is communicated. If not given, it shall be deemed to have been given. The NOC of Collector is required and intended to protect the right of the land owning authority and to ensure that no building is constructed which would adversely affect a layout or the provisions of the development plan and result into an illegality. It has a very limited purpose and that purpose is for grant of building permissions only. Therefore it cannot be argued to state that non procurement of NOC from the land owning authority can override an approved SR Scheme without a justifiable cause.

19.2. In the present case, it is seen that when the NOC was applied for after receipt of the first LOI it was not refused but the Respondent No.6 - Developer was called upon to furnish further documents so that NOC could be obtained from the State Government and it is borne out by the letter dated 06.09.2010 which is at Exhibit “H” - page No.201 of the Writ Petition.

19.3. In the above background, it is clearly seen that the amalgamated SR Scheme, pursuant to LOI dated 29.07.2010, progressed continuously with the SRA clearly acknowledging Respondent No.6 as Developer and therefore to now contend to the contrary after the entire amalgamated SR Scheme for rehab tenements is almost completed cannot be countenanced by the Court. It is seen that Respondent No.6 is a private Developer and it has proceeded to carry out development of the SR Scheme as per sanction and permission of SRA. Respondent No.6 - Developer has almost completed the rehab tenements i.e. rehab component and now at this stage, to state that the Scheme of the Petitioner No.1 – Society should be declubbed would cause enormous prejudice to the Developer and would prevent him from enjoying the legitimate expectation from the said Scheme pertaining to the sale component.

19.4. The doctrine of legitimate expectation mandates that in all actions, State needs to be bound to act fairly, reasonably and in a transparent manner. Such doctrine of legitimate expectation extends to matters which are both procedural as also substantive. In this regard, decision of the Supreme Court in the case of State of Jharkhand and Ors Vs. Brahmaputra Metallics Pvt., Ranchi and Ors.[6] is relevant where it espouses the doctrine of the legitimate expectation under Article 14 of the Constitution of India. Relevant findings in the above decision are contained in paragraph No.38 to 41, 49 and 50 which are reproduced below:-

39. Consequently, while the basis of the doctrine of promissory estoppel in private law is a promise made between two parties, the basis of the doctrine of legitimate expectation in public law is premised on the principles of fairness and nonarbitrariness surrounding the conduct of public authorities. This is not to suggest that the doctrine of promissory estoppel has no application in circumstances when a State entity has entered into a private contract with another private party. Rather, in English law, it is inapplicable in circumstances when the State has made representation to a private party, in furtherance of its public functions. Indian Law and the doctrine of legitimate expectations

40. Under Indian Law, there is often a conflation between the doctrines of promissory estoppel and legitimate expectation. This has been described in Jain and Jain’s well known treatise, Principles of Administrative Law: “At times, the expressions ‘legitimate expectation’ and ‘promissory estoppel’ are used interchangeably, but that is not a correct usage because ‘legitimate expectation’ is a concept much broader in scope than ‘promissory estoppel’. … A reading of the relevant Indian cases, however, exhibit some confusion of ideas. It seems that the judicial thinking has not as yet crystallised as regards the nature and scope of the doctrine. At times, it has been referred to as merely a procedural doctrine; at times, it has been treated interchangeably as promissory estoppel. However both these ideas are incorrect. As stated above, legitimate expectation is a substantive doctrine as well and has much broader scope than promissory estoppel. … In Punjab Communications Ltd. Vs. Union of India, the Supreme Court has observed in relation to the doctrine of legitimate expectation: “the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way. Reliance must have been placed on the said representation and the representee must have thereby suffered detriment." It is suggested that this formulation of the doctrine of legitimate expectation is not correct as it makes "legitimate expectation" practically synonymous with promissory estoppel. Legitimate expectation may arise from conduct of the authority; a promise is not always necessary for the purpose.”

41. While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates. Professors Jain and Deshpande characterize the consequences of this doctrinal confusion in the following terms: “Thus, in India, the characterization of legitimate expectations is on a weaker footing, than in jurisdictions like UK where the courts are now willing to recognize the capacity of public law to absorb the moral values underlying the notion of estoppel in the light of the evolution of doctrines like LE [Legitimate Expectations] and abuse of power. If the Supreme Court of India has shown its creativity in transforming the notion of promissory estoppel from the limitations of private law, then it does not stand to reason as to why it should also not articulate and evolve the doctrine of LE for judicial review of resilement of administrative authorities from policies and long- standing practices. If such a notion of LE is adopted, then not only would the Court be able to do away with the artificial hierarchy between promissory estoppel and legitimate expectation, but, it would also be able to hold the administrative authorities to account on the footing of public law outside the zone of promises on a stronger and principled anvil. Presently, in the absence of a like doctrine to that of promissory estoppel outside the promissory zone, the administrative law adjudication of resilement of policies stands on a shaky public law foundation.” ………………. ……………….

49. More recently, in NOIDA Enterpreneurs Assn. Vs. NOIDA, a two-judge bench of this Court, speaking through Justice B. S. Chauhan, elaborated on this relationship in the following terms:

50. As such, we can see that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression.”

19.5. Once again the Division Bench of this Court in the decision in the case of Dyna Estate Pvt. Ltd. and Anr. (supra) while refusing to set aside a SR Scheme has held that a Court exercising jurisdiction under Article 226 of the Constitution of India has to consider all facts and circumstances in totality. The Writ Court is not bound to interfere in every infraction of law and since the writ jurisdiction is an equity jurisdiction, the Court should be satisfied that its interference will further justice, equity and good conscience. In this decision it is further held that the Writ Court has to consider various factors such as delay, laches, acquiescence of the parties and their conduct, consequences of interference and the larger interest of justice, especially when the writ Court examines a challenge to the SR Scheme. The relevant findings in the above decision of Dyna Estate Pvt. Ltd. (supra) are contained in paragraph Nos.26 to 28 and 90 which are material in the context of the present case and reproduced below:- “26. The Court exercising jurisdiction under Article 226 of the Constitution of India has to consider all the relevant facts and circumstances in totality. Each case has its set of facts and circumstances. The writ court is not bound to interfere in every infraction of law, and since the writ jurisdiction is an equity jurisdiction, the court should be satisfied that its interference will further justice, equity and good conscience. The writ court has to consider various factors such as delay, laches, acquiescence of the parties and their conduct, consequences of interference and the larger interest of justice. Because the litigants in a writ petition present the case in a narrow compass does not mean the court can be oblivious to the larger ramifications.

27. This aspect assumes importance when the writ court examines a challenge to the slum rehabilitation scheme. The court has to be conscious of the object sought to be achieved by the scheme. The object of the Slum Act and the Development Control Regulations is to facilitate freeing up the encroached public properties and secure rehabilitation of slum dwellers. It is a welfare measure undertaken to provide better standard of living for the slum dwellers. Successfully implemented slum rehabilitation schemes have positive cascading effects on the society at large.

28. In the case of Balasaheb Arjun Thorbole v. Administrative and Divisional Commissioner, the Supreme Court has laid down the parameters for the writ Courts while dealing with challenges to the slum rehabilitation schemes. The Supreme Court has observed that when 70% consent has been obtained, the main purpose of slum rehabilitation scheme cannot be put to peril on the ground that certain procedures were not strictly followed or some steps were against procedures prescribed in the guidelines for preparation of Annexure II in a prescribed format. The Supreme Court held that these beneficial provisions are meant to ameliorate the poor condition of slum dwellers and should not be jettisoned only on technical grounds or procedural infirmities unless the persons coming to the court and seeking relief through writ petition are able to show that they have suffered injustice or legal injury. The attempt of the Petitioners to distinguish decisions on facts is not correct. The observations direct the writ Courts as to how to approach and analyze the challenges to the slum rehabilitation scheme.

90. It was fervently urged by the Federation that this Court should not interfere in its equity jurisdiction as the slum dwellers have been waiting for rehabilitation since over two decades. They submit that the only consequence of setting aside the impugned order will be that the process will start all over again, meaning the slum dwellers will continue living in squalid conditions. These apprehensions are not baseless and will have to be taken note of. Ultimately such schemes are implemented to mitigate the hardship of the slum dwellers and they should not be casually set aside by the writ courts only on technical grounds unless a case of gross illegalities or failure of justice is made out.”

19.6. In the present case, the first LOI was issued on 29.07.2010. The revised LOI was issued on 02.08.2022. In between there were series of events as alluded to herein above. Hence in this background, it is intriguing that SRA never took any steps to de-clubb the Petitioner No.1’s Scheme. Rather SRA has acquiesced for the continuation of the Developer to achieve the larger objective that is completion of the Scheme.

19.7. In view of the above, it is a clear case that the thrust of the Petitioner No.1 – Society’s submissions that the impugned order of AGRC deserves to be set aside by merely considering that NOC of the land owning authority was not obtained, is completely negated by the factual events which took place in so far as the progress of the SR Scheme is concerned. The aforementioned progress of the SR Scheme in the interregnum is an admitted position and cannot be denied nor it is denied even by Petitioner No.1.

20. In that view of the matter, it is completely safe to hold that the AGRC has considered the aforementioned aspect and passed a reasoned order thereon.

21. Another significant aspect is the balance of convenience and the status of the Scheme and whether and what prejudice would be caused to the Respondent No.6 - Developer if the SR Scheme of the Petitioners is de-clubbed at this juncture. This fact is crucial and important because it completely alters the balance of convenience in favour of Respondent No.6 – Developer and against the Petitioner No.1 - Society. Admittedly, it is seen that on the date of filing of the Petition, more than 70% slum dwellers i.e. 330 out of 454 are already housed and rehabilitated in the rehab component. It is an admitted position that these 330 slum dwellers are that of Respondent Nos.[4] and 5 – Societies and still, a balance of 124 slum dwellers remain. It has to be that way because this is an amalgamated SR Scheme being developed without dispossessing members of Petitioner No.1.

22. Respondent No.6 has already paid transit rent of approximately Rs.20 Crores to members of Respondent Nos.[4] and 5 – Societies. Respondent No.6 – Developer has incurred expenditure of approximately Rs.80 Crores for implementation of the SR Scheme till date. Significance of the amalgamated SR Scheme therefore is required to be looked into by the Court. Under this particular SR Scheme, Respondent No.6 - Developer is required to develop the entire rehab component for members of all 3 Societies on the land belonging to the Respondent Nos.[4] and 5 – Societies at Oshiwara. It is only after they are all housed at Oshiwara in the rehab tenements, the other component i.e. sale component will become available for development on the land at Khar. Once the Respondent No.6 - Developer has progressed this far and the entire rehab is also completed, balance of convenience can never lie in favour of the Petitioner No.1 – Society to now contend that they should be de-clubbed from the present SR Scheme. The prejudice that would be caused to the Respondent No.6 - Developer would be enormous. Apart from the mandatory expenditure that has been incurred, whether and where and how the land would be made available to Respondent No.6 - Developer for construction of the sale component is the most crucial question which now need to be answered. The answer to this question is a clear “no”. Once rehab has been entirely developed, can the Respondent No.6 – Developer now be ousted at this stage by merely stating that the expenditure he has incurred will be made good by a new Developer to be appointed by Petitioner No.1. Respondent No.6 - Developer has already paid premium amount of Rs.[3] Crores. All members of Petitioner No.1 has entered into new separate registered agreements with Respondent No.6 – Developer and are entitled to be paid Rs.6,00,000/- out of which one component Rs.50,000/- has already been paid to each and every member of Petitioner No.1 – Society by Respondent No.6 – Developer. Respondent No.6 has undertaken to pay Rs.88,50,000/and complied with the conditions of the registered agreement with members of the Petitioner No.1 – Society for getting them rehabilitated in the rehab component. Respondent No.6 - Developer has paid approximately an amount of Rs.85,00,000/- to all eligible members of the Petitioner No.1 – Society itself.

23. Considering the aforesaid, it can be never be argued that no prejudice would be caused to Respondent No.6 – Developer at this stage of the implementation of the amalgamated SR Scheme.

24. Next in respect of the vehement submission of Petitioner No.1 – Society that till date no construction has been carried out for rehabilitation of Petitioner No.1 – Society should be considered by the Court for attributing delay, it is seen that in the facts and circumstances of the present case and nature of the amalgamated SR Scheme, such a submission cannot be countenanced and cannot be attributable to the issue of no construction being made till today as alleged by Petitioner No.1 – Society. Certain fundamental facts pertaining to the implementation of the SR Scheme are therefore required to be noted to answer this question.

25. In the present case, it is seen that there are 3 Societies involved in the present SR Scheme. Petitioner No.1 – Society is at Khar whereas Respondent Nos.[4] and 5 - Societies are at Oshiwara. As per the first LOI, the number of eligible slum dwellers who were to be rehabilitated was 332 slum dwellers out of which 132 belonged to Petitioner No.1 – Society, 96 belonged to Respondent No.4 - Society and 103 belonged to Respondent No.5 – Society. The structures on the land where Respondent Nos.[4] and 5 – Societies were standing, were demolished first as the rehab buildings were to be constructed on the said land for members of all 3 Societies. It is seen that in the meantime, in so far as the structures of Petitioner No.1 – Society’s members were concerned they continued to occupy the said structures until the rehab tenements are ready. The rehabilitation tenements and building as can be seen from the material on record were constructed in a phase wise manner and now are almost ready.

26. On 23.05.2016, part OC was issued by the Competent Authority for housing 59 rehab tenements. On 06.05.2017, further part OC was issued in respect of 32 rehab tenements. These tenements were allotted to the members of Respondent Nos.[4] and 5 – Societies who were already ousted from their respective structures / houses unlike the members of Petitioner No.1 – Society. Record shows that as on January 2019, construction of 239 rehab tenements was completed by the Developer. This is borne out by the Developer addressing two specific letters dated 29.01.2019 and 21.11.2019 which are appended at running page Nos.731 and 732 of the Writ Petition as Exhibit “I” and Exhibit “J” to the Affidavit in sur-rejoinder dated 09.01.2023 filed by the Respondent No.6 - Developer calling upon SRA to conduct a lottery for allotment of these rehab tenements to the members of Petitioner No.1 – Society, Respondent No.4 – Society and Respondent No.5 – Society as per the revised LOI. It is seen that during this time because of the pendency of the representation and Application filed under Section 13(2) of the said Act by Respondent Nos.[4] and 5 – Societies, SRA did not take any action and it is only after the proceedings were withdrawn by Respondent Nos.[4] and 5 – Societies, these 239 tenements were further processed and allotted; OC was granted by the SRA incidentally only to 213 tenements on 05.08.2021. When this timeline is seen, it is clear that there was a delay of more than 2 years and 7 months in this regard itself.

27. Now the question is whether this delay can be attributed as “inordinate delay” on the part of the Respondent No.6 - Developer and can it be construed that the Developer did not take any steps for implementation of the amalgamated SR Scheme. Though it is vehemently argued by Petitioner No.1 that no construction has been carried out for Petitioner No.1 – Society, it cannot be forgotten that this is a composite amalgamated SR Scheme agreed upon and acknowledged by Petitioner No.1 – Society which is adequately dealt with herein above by me. Hence, in the same breath it is not open to the Petitioner No.1 – Society to now contend that no construction is carried out, as such a literal interpretation of the submission made by Petitioner No.1 – Society cannot be accepted by the Court. It also needs to be taken into account that when the development was being undertaken, SRA i.e. Competent Authority declared more members of the Respondent Nos.[4] and 5 – Societies as eligible during the interregnum. One of the most clinching fact is that in view of the additional eligible members of Respondent Nos.[4] and 5 – Societies having been declared eligible subsequently, the 213 tenements for which OC was granted by the SRA out of 239 tenements were allotted to the members of Respondent Nos.[4] and 5 – Societies thereby infact reducing the capacity for the members of Petitioner No.1 – Society at that time. Once again it needs to be reiterated that in the present SR Scheme in terms of priority, housing of ousted Society members of Respondent Nos.[4] and 5 – Societies was prioritized by SRA itself by following the due process of law. The current figures of rehabilitation tenements been handed over, speak for themselves. It is seen that a total number of 106 eligible rehab tenements of Respondent No.4 – Society were handed over against the original 96 eligible members and a total 198 tenements of the Respondent No.5 – Society were handed over against original 103 eligible members. All this is done by following the due process of law by SRA and therefore it is not even open to SRA to take suo moto cognizance and action as done in the present case under Section 13(2) of the said Act, since such an action on the part of the SRA would now oust Respondent No.6 - Developer out of the SR Scheme and segregation of the SR Scheme would be contrary to law as well as to the equity jurisdiction. I have dealt with the enormous prejudice that would be otherwise caused to the Developer and therefore the facts of the present case are peculiar and are required to be determined on the basis of the facts and circumstances pertaining to Petitioner No.1 – Society and the Respondent Nos.[4] and 5 – Societies, all taken together.

28. It is also seen that even though more number of members of all 3 Societies were being continuously held eligible, no revised LOI was provided at that time in the year 2019 so as to house and undertake the further construction work for rehab buildings. Some amount of delay is attributed to this fact also.

29. From the above, it therefore cannot be construed that the delay in construction of the rehabilitation tenements for the members of Petitioner No.1 - Society is attributable to the Respondent No.6 - Developer, resultantly ousting the Respondent No.6 - Developer from the SR Scheme itself at this stage and in the aforementioned circumstances.

30. In the above circumstances, it also needs to be seen as to what the respective slum dwellers would ultimately be rewarded with. Though Petitioner No.1 – Society has argued that despite change in the regime and the applicable statute and the governing law in view of passage of time, members/slum dwellers will be getting 225 sq. ft. which was the prescribed and stipulated area under the old DC Regulations. However, this submission is clearly incorrect and incoherent as the LOI and the actual construction on the site of each and every rehab tenements is for 269 sq. ft. for each rehab tenement.

31. In this context, it needs to be noted that in so far as the Petitioner No.1 – Society is concerned, as per the original LOI dated 29.07.2010 there was an FSI limitation in view of the said land falling in CRZ II Zone and therefore it was not even possible to allot and give or compute the area for each rehab tenements for the number of eligible members of Petitioner No.1 – Society even with the area of 225 sq. ft. each. In this very context, the reasons for amalgamation and clubbing of the SR Scheme of Petitioner No.1 – Society and Respondent Nos.[4] and 5 – Societies assume significance. In this regard, the report prepared by the Engineering Department of SRA which is appended at Exhibit “E” - page No.149 of the Writ Petition is extremely crucial. The reasons for amalgamation and composite development and clubbing of the 3 SR Schemes of the aforementioned Societies are extremely crucial and important in this regard, as also the salient features of the amalgamation and clubbing in respect of all three Societies. For reference and convenience, the salient features and the reasons for amalgamation and clubbing are reproduced below:- “Salient features of the proposed Amalgamation and Clubbing:-

1) Name of Slum Society Anand SRA CHS Ltd. Valmiki SRA CHS Ltd. New Hanuman Nagar SRA CHS (Prop)

2) CTS No. 1(pt) village Oshiwara 1(pt) village Oshiwara 1084/A Village Bandra

3) Ownership & name of Owner Mhada Mhada Govt. of Maharashtra 4) Area of the Plot 3781.63 sq.mt. 2362.69 sq.mt. 2563.00 sq.mt.

5) Setback/D.P. Road/ Buildable Reservation area (land component)

32.83 sq.mt. 195.32 sq.mt. 307.56 sq.mt.

6) Net Plot area 3748.80 sq.mt. 2167.37 sq.mt. 307.56 sq.mt.

7) Access 18.30 mt. Wide D.P. road and 30 ft. wide existing road developed under 63K

18.30 mt. Wide D.P. road and 30 ft. wide existing road developed under 63K

12.20 m. wide and 9.10 m. wide road 8) Reservations No reservation except widening of D.P. road No reservation except widening of D.P. road Fishing Complex, Fish & Net drying yard, Ice Factory, Diesel Pump & Other Activities

9) Zone Residential Residential Residential

10) Eligible Tenements as per certified Annexure II 96 nos. (93 nos.residential; 03 nos.- residential/ comm.) 103 nos. (97nos.-residential; 06 nos. - comm.) 133 nos. residential Eligible Tenements 96 nos. 103 nos. 133 nos. Non eligible tenements 165 nos. 36 nos. 50 nos. Total structures 261 nos. 139 nos. 183 nos.

11) Density of existing tenements on net Plot as per Clause 3.12 of DCR 33(10)

256.08 t/ha 475.23 t/ha 589.68 t/ha 12) Tenements required to achieve min. 500 t/ ha density 188 109 57

13) No. of PAP tenements 93 nos. 09 nos. (considering equivalent tenements = 100) Nil

3. Reasons for Amalgamation & Clubbing: Reference is requested to the prayer (a) & (b) in the initial para wherein the Licensed Surveyor has requested first to allow the amalgamation of two S.R. Schemes at Oshiwara on plot bearing C.T.S. no. 1(pt.) of village Oshiwara (as referred earlier) and then allow the amalgamated scheme so for the proposed clubbing with the S.R. Scheme known as “New Hanuman Nagar SRA CHS (prop)” on plot bearing CTS NO. 1084/A, village Bandra, off Carter Road, Khar (W). The reasons for amalgamation and clubbing are given as follows: a) The S.R. Scheme on plot bearing CTS No. 1(pt.) of village Oshiwara i.e. “Anand SRA CHS” & “Valmiki SRA CHS” are contiguos in length & can be amalgamated so as to increase the potential of plot consideirng the density of slum population on both the plots and make it more viable. b) The Amalgamation of these two plots will certainly provide more flexibility in planning & designing of buildings. c) The S.R. Scheme on plot bearing CTS No.1084/A, village Bandra, off Carter Road, Khar (W) admeasuring 2563.00 sq. mtr. is affected in CRZ – II and admissible for FSI 1.00 only. As such, the plot potential itself is not sufficient to accommodate all 133 nos. of eligible slum dwellers with the 269 carpet area and buildable reservation there at. d) These are the reasons that direct for the proposed amalgamation of S.R. Scheme at Oshiwara & then clubbing of all these 3 S.R. Schemes in accordance to the provisions in Reg. 33(10) of DCR 1991 Vide Clauses 7.80 of Reg. 33(10) of DCR 1991. e) The inadequate plot potentials & C.R.Z. restrictions only suggest the option of shifting of eligible slum dwellers from Bandra (W) to Oshiwara so that those can be rehabilitated comfortably.”

31.1. From the above it is clearly seen that, at the then time when the SR Scheme was considered, there were 133 eligible tenements of the Petitioner No.1 – Society and 50 non-eligible tenements. The total number of tenements that would be required to be constructed to achieve minimum density as stipulated would only be 57 tenements. That apart, the plot where the tenements of Petitioner No.1 – Society was standing is encumbered with D.P. reservations like fishing complex, fish & net drying yard, ice factory, diesel pump and other activities whereas incidentally the plots of Respondent Nos.[4] and 5 – Societies had no such reservations. Salient features clearly depict the details for which the reasons for amalgamation and clubbing were given by SRA. It is clearly seen that composite SR Scheme was proposed and the 3 SR Schemes were clubbed since the plot of Petitioner No.1 – Society was inadequate in its potential having been affected by CRZ II as also having limited and restricted FSI and could never had housed all eligible 133 slum dwellers independently.

32. In view of the above, it is clear that the status of the Scheme cannot be said to be zero as is being argued by Petitioner No.1 – Society. Infact it is to its contrary. When this Petition was argued and closed for final arguments, the learned Advocate appearing for the Respondent No.6 - Developer informed the Court that at the highest the entire rehab tenements in the SR Scheme would be completed in respect of all construction for housing the rehab tenements within 8 to 10 months.

33. In this regard, Paragraph No.(x) of the sur-rejoinder dated 09.01.2023 which is at page No.708 of the Writ Petition is relevant and the material portion thereof is extracted below:- “(x) …….. Further, I say that despite Revised LOI having been issued on 4 August 2022, the Respondent No.6 has already completed work upto 4th slab and shall complete the balance construction within 8 – 10 months. I deny that the Respondent No.6 has ever abandoned the scheme of Petitioner Society, as alleged or at all. I repeat, reiterate and confirm what is stated hereinabove and in the Reply and deny what is inconsistent thereto.”

34. Hence, Petitioner No.1 – Society has not made out any case calling for interference of the writ jurisdiction of this Court. The writ Court cannot interfere in every infraction of law unless it is satisfied that there is perversity in the decision making Authority’s decision which would call for its interference.

35. In view of the aforementioned observations and findings, such a case is not made out by Petitioner No.1 – Society. This Court has considered various facts which led to implementation of the SR Scheme at various stages and therefore at this stage, the decision of the SRA to oust the Respondent No.6 - Developer would therefore be an incorrect and illegal decision. The said decision has infact been rightly set aside by the AGRC in the present case. I am therefore inclined to agree and accept the submissions made by Mr. Jagtiani, learned Senior Advocate for Respondent No.6.

36. In the present case, what is required to be seen is whether the larger objective of rehabilitation of slum dwellers has been achieved or otherwise and in view of the findings given herein above, the said objective has infact been achieved. The attempt of Petitioner No.1 – Society now at this stage to segregate itself from the composite amalgamated SR Scheme cannot be allowed under any circumstances. All attempts by Petitioner No.1 – Society to distinguish its case on the basis of delay or non-procurement of NOC or right of the hutment dwellers cannot be countenanced as these are in the opinion of the Court clearly motivated and hyper technical grounds taken by Petitioner No.1 – Society for subserving an ulterior motive. It is clear that due to the change in the restrictions of CRZ II areas, subsequently a larger potential may now be available to the Petitioner No.1 – Society for construction and exploitation, but in the facts of the present case and the timeline which is outlined herein above, it would be a travesty of justice, if Respondent No.6 - Developer after constructing almost all rehab tenements is now ousted at this stage and does not enjoy the fruits of the sale component.

37. In view of the above, considering the totality of the circumstances, no interference in writ jurisdiction is warranted so as to interfere with the order dated 11.07.2022 passed by the AGRC. Infact the said order is a correct order and deserves to be upheld.

38. The Writ Petition stands dismissed comprehensively. Dismissal of this Petition is not conditional in the facts of the present case. The Petitioner No.1 – Society deserves to be penalized.

39. Petitioner No.1 – Society is therefore directed to pay costs of Rs.50,000/- for filing such a Writ Petition and invoking the writ jurisdiction of this Court in the facts and circumstances of the present case. The costs of Rs.50,000/- shall be paid by the Petitioner No.1 – Society to the Kirtikar Law Library, High Court, Mumbai within a period of four weeks from the date of uploading of this Judgment.

40. Writ Petition is dismissed. [ MILIND N. JADHAV, J. ] Ajay