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2012 DIGILAW 175 (BOM)

S. Raja Nadar v. State of Maharashtra

2012-01-24

G.S.GODBOLE

body2012
Judgment 1 Heard the learned Advocates for the parties. 2 RULE. Rule made returnable forthwith and heard by consent of the parties. The respective Advocates waive service for respective Respondents. 3 In Writ Petition No.11203 of 2011 and other connected Writ Petitions an order passed by the Administrator and Divisional Commissioner, Konkan Division, Mumbai in Appeal Nos.455 to 483 and 496 of 2011 has been challenged. In these petitions an order was passed on 4th January, 2012 which reads thus: “1 Mr. J. G. Reddy, learned Advocate for the Respondent No. 3S. R.A. seeks adjournment to take instructions and make specific statement on the following two aspects: (a) as to from what date, the Appeals filed by the Petitioners for challenging the decision of the Additional Collector (E & C) to treat them as eligible, are pending and within how much time the Appeals can be heard on merits and decided; (b) for how much time application filed by Parishram SRA CHS Limited to remove Respondent No.4 Developer is pending with the SRA, what is the action taken by the SRA for said application/s and how much time would be required to decide the said application/s after hearing Respondent No. 4Developer and Respondent No.5 Society. 2. S. O. to 12th January, 2012 to enable Mr. Reddy to take instructions on the aforesaid aspects. Till 19th January, 2012, the impugned orders of eviction of the Petitioners shall not be implemented.” 4 Accordingly, Affidavit in Reply has been filed in Writ Petition No.3 of 2012 by Mr. M. M. Patel, Assistant Engineer for & on behalf of SRA. It is stated in the Affidavit in Reply that 27 none ligible members have filed Appeals which are pending for consideration before the SRA. 5 Writ Petition (St.) No.717 of 2012 has been filed by Parishram SRA CHS Ltd., challenging the order whereby Appeal No.496 of 2011 filed by said Society before the Administrator and Divisional Commissioner, Konkan Division, Mumbai which was clubbed with Appeal Nos. 455 to 483 of 2011 has been dismissed. 5 Writ Petition (St.) No.717 of 2012 has been filed by Parishram SRA CHS Ltd., challenging the order whereby Appeal No.496 of 2011 filed by said Society before the Administrator and Divisional Commissioner, Konkan Division, Mumbai which was clubbed with Appeal Nos. 455 to 483 of 2011 has been dismissed. 6 Writ Petition No.592 of 2012 has been filed by two members of Parishram SRA CHS Ltd. for challenging the Judgment and Report dated 28th December, 2011 passed by the learned DJR (C.S.), Konkan Division, Bombay in Revision Application No.302 of 2011 whereby the Registrar set aside report dated 28th December, 2011 in respect of the meeting of the aforesaid Parishram SRA Society. 7 Since common questions of law and facts arises, these Writ Petitions are being disposed off by common Judgment. 8 Section 13 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 reads thus: “Power of Competent Authority to redevelop clearance area: (1) Notwithstanding anything contained in subsection (1) of section 12 the Competent Authority may, at any time after the land has been cleared of buildings in accordance with a clearance order, but before the work of redevelopment of that land has been commenced by the owner, by order, determine to redevelop the land at its own cost, if that Authority is satisfied that it is necessary in the public interest to do so. (2) Where land has been cleared of the buildings in accordance with a clearance order, the Competent Authority, if if is satisfied that the land has been, or is being, redeveloped by the owner thereof in contravention of plans duly approved, or any restrictions or conditions imposed under subsection (10) of section 12, or has not been redeveloped within the time, if any, specified under such conditions, may, by order, determine to redevelop the land at its own cost: Provided that, before passing such order, the owner shall be given a reasonable opportunity of showing cause why the order should not be passed.” 9 In this case, apparently there is a dispute between the Cooperative Society and the Developer. The question as to whether the majority members of the Cooperative Society support the present developer or not, is the question which will have to be decided by the General Body of the Society. The question as to whether the majority members of the Cooperative Society support the present developer or not, is the question which will have to be decided by the General Body of the Society. The society has also submitted an application to the SRA for changing the present developer M/s. Lakadwala Developers Pvt. Ltd. and for appointing the new developer M/s. Aniruddha Associates. For ascertaining the views of majority, a Special General Body Meeting of the Society was convened on 7th December, 2010. It is clear from the record that despite the presence of the police, there was some disruption in that meeting and the Chairman and other office bearer of the Society walked out from the meeting and thereafter, in their absence, the meeting continued. 10 Mr. Thorat, learned Senior Advocate to some extent correct in criticizing the order of the Divisional Joint Registrar on the ground that DJR could not have entertained the Revision Application only against the report of the meeting and the said criticism is based on scheme of Section 154 of the MCS Act, 1960. However, in view of the fact that meeting dated 7th December, 2010 was disrupted, since now I am directing that a fresh General Body Meeting should be convened wherein views of all the eligible members of the society can be considered, I am not entertaining that challenge. According to me, it would be just and necessary to conduct a Special General Body Meeting. 11 Hence, Writ Petition No.592 of 2012 is not entertained but for different reasons namely on account of fact that meeting dated 7th December, 2010 was disrupted. A fresh Special General Body Meeting of the Society shall be convened within a period of one month from today. The said meeting shall be attended by two representatives of the SRA and two representatives of the concerned office of Deputy Registrar of Cooperative Societies (SRA). Adequate police protection will be provided during the said meeting. 12 The representatives of SRA and the representatives of the Deputy Registrar of Cooperative Societies (SRA) will verify from the authentication/ identification proof that only those persons who are held to be original eligible members according to Annexure II or any other members who may have been held to be eligible subsequently, are allowed to attend the meeting and no one else is allowed to attend the said meeting. 13 The only one subject regarding change of the developer from M/s. Lakdawala Developers Pvt. Ltd. to M/s. Aniruddha Associates will be on the agenda of the meeting. The voting in the meeting shall be conducted by secret ballot and not by show off hands and, thereafter, the minutes of the meeting shall be jointly written by the Chairman and Secretary of the Society and will be endorsed by the four representatives of SRA and Deputy Registrar. 14 Writ Petition No.592 of 2012 is disposed off with the aforesaid directions, rule made partly absolute in the aforesaid terms with no order as to costs. 15 In so far as Writ Petitions which are filed for challenging the orders passed by the Administrator are concerned, Mr. Surana, for the present developer has made a statement that all the Petitioners cannot be provided with transit accommodation as it is also necessary to provide transit accommodation to eligible Slum Dwellers. Mr. Surana has submitted that without claiming any equity whatsoever in the proceeding regarding change of developer which are to be decided by the SRA, the Respondent-Developer is ready to pay a sum of Rs.5,000/per month to each of the individual Petitioners towards rent for acquiring temporary alternate residential accommodation. 16 The learned advocate for the Petitioners submitted that applications for eviction were premature and there was no need to evict Petitioner at this stage of the entire scheme. He further submits that though the Society has not filed application for eviction, even the name of the Society has been shown as Applicant which shows non application of mind. 17 With the assistance of the learned Advocates for the parties, I have noticed that the various stages in the implementation of the scheme have taken place on the respective dates mentioned herein below: 1 14.12.2005 Annexure II issued. 2 21.01.2009 LOI for entire scheme was issued. 3 21.04.2009 Permission for construction of transit accommodation. 4 07.02.2011 C.C. issued for Rehabilitation Building No.1 till plinth level. 5 08.09.2011 IOA for Rehabilitation Building No.2. 18 It is thus clear that at present, the IOA for building no.2 which is to consists of 299 rehabilitation tenements has been issued. In such a situation, it is difficult to accept the contention of the learned Advocate for the Petitioners that the applications for eviction under Sections 33 and 38 were premature. 18 It is thus clear that at present, the IOA for building no.2 which is to consists of 299 rehabilitation tenements has been issued. In such a situation, it is difficult to accept the contention of the learned Advocate for the Petitioners that the applications for eviction under Sections 33 and 38 were premature. 19 It is however necessary to note that all the Petitioners have been declared as noneligible and though belatedly all of them have filed Appeals, which are pending before the SRA. The SRA has also commenced the process of verifying the correctness of the document filed in said appeals. In view of the submission made in paragraph 13 of the Affidavit of SRA, it is hereby directed that the process of deciding the said Appeals will be completed on or before 30th April, 2012. The SRA will grant opportunity of hearing to the respective Appellants. If reports which are obtained by SRA from concerned authority regarding the authentication of the documents submitted by the respective Petitioners/ Appellants, are adverse to the respective Petitioners/Appellants; said report shall be brought to the notice of the respective Petitioners/ Appellants and the Petitioners/Appellants shall be given an opportunity to rebut said report. All the Appeals shall be decided on or before 30th April, 2012. It is made clear that the implementation of the order of eviction will be subject to the out come of said appeal, meaning thereby that if they are held to be eligible by the SRA, the developer who may be ultimately chosen by the SRA will have to accommodate them either in transit accommodation or pay the monthly compensation till they are rehabilitated in the permanent accommodation. 20 This leads me to consider the last question regarding the request of the society for change of developer. In terms of Section 13(2) of the Act, it is for the SRA to take a conscious decision in accordance with the provisions of the Act, the Slum Rehabilitation Scheme and the facts of the individual case and the observations made in paragraphs 8,9,10 and 15 of the Judgment of the Division Bench (Coram: Dr. In terms of Section 13(2) of the Act, it is for the SRA to take a conscious decision in accordance with the provisions of the Act, the Slum Rehabilitation Scheme and the facts of the individual case and the observations made in paragraphs 8,9,10 and 15 of the Judgment of the Division Bench (Coram: Dr. D. Y. Chandrachud and Anoop V. Mohta, JJ) delivered on 28th January, 2011 in Writ Petition (L)No.95 of 2011 in the case of M/s. Lokhandwala Infrastructure Pvt. Ltd. v/s. State of Maharashtra which I quote: “Para8: The provisions of DCR 33(10) enure to the benefit of the actual occupants of hutments in slums and pavements who are in occupation with reference to the electoral roll as of 1 January 1995. Clause 1.15 of Annexure IV stipulates that where 70% or more of the eligible hutment dwellers in a slum or pavement in a viable stretch at one place agree to join a rehabilitation scheme, it may be considered for approval. Under Clause 1.14 a Slum Rehabilitation Project shall be considered preferably when submitted through a proposed or registered cooperative housing society of hutment dwellers on site. Under Clause 1.6 an individual agreement shall be entered into by the owner / developer / cooperative housing society / NGO with the eligible hutment dwellers of each structure in the slum / pavement. In a judgment of the Supreme Court in Ramchandra Mahadev Jagpat v. Chief Executive Officer 2006(12) SCALE 33 , the Court has referred to the procedure for submission, processing and approval of Slum Rehabilitation Schemes, tendered before the Court by the learned Solicitor General of India appearing for the Slum Rehabilitation Authority. The procedure envisages the certification of Annexure II which is a list of hutment dwellers eligible to participate in the Slum Rehabilitation Scheme. Annexure III is prescribed to assess the financial capability of the developer. Para9: A Slum Rehabilitation Scheme which is implemented under DCR 33(10) read with Appendix IV does not lie in the realm of a purely private contractual agreement. Undoubtedly, the scheme postulates a cooperative housing society of slum dwellers. Appendix IV of DCR 33(10) clarifies that the provisions will apply to redevelopment / construction of accommodation for hutment / pavement dwellers through owners / developers / cooperative housing societies of hutment / pavement dwellers or by public authorities or by nongovernmental organisations within the limits of Brihan Mumbai. Undoubtedly, the scheme postulates a cooperative housing society of slum dwellers. Appendix IV of DCR 33(10) clarifies that the provisions will apply to redevelopment / construction of accommodation for hutment / pavement dwellers through owners / developers / cooperative housing societies of hutment / pavement dwellers or by public authorities or by nongovernmental organisations within the limits of Brihan Mumbai. The Scheme regulates the rights of hutment dwellers, the grant of building permission for a Slum Rehabilitation Project, rehabilitation and freesale components in the total floor space index, the construction of temporary transit camps, the relaxation in building and other requirements, development plan reservations and payments to be made inter alia to the Slum Rehabilitation Authority. The Development Control Regulations, it is well settled, constitute subordinate legislation enacted with reference to the provisions of Section 22(m) of the Maharashtra Regional Town Planning Act 1966. Slum Rehabilitation Schemes have a public law element. Para10: The execution of Slum Rehabilitation Schemes is impressed with a public character. The lands on which the Scheme is sought to be sanctioned and implemented may be lands belonging to the Municipal Corporation or to the State of Maharashtra or, for that matter, its instrumentalities such as the Maharashtra Housing and Area Development Authority. The title to the land does not vest in the society or in its members at the stage when the Scheme is propounded and subjected for sanction. Where it owns the land, the Municipal Corporation of Greater Mumbai is the authority responsible for issuing a certification of Annexure II containing the list of eligible occupants who can participate in the Scheme. The interest of the Municipal Corporation as the owner of the land is recognized by conferring upon the Municipal Corporation the role of verifying and authenticating who are the actual and genuine occupants of the land as on 1 January 1995. Public land is sought to be utilized in order to further the object of providing dignified accommodation to those living in slums. The cooperative societies of slum dwellers and developers through whom the Slum Rehabilitation Scheme is sought to be implemented facilitate the implementation of the Scheme. The agreements or arrangements that may be arrived at between them cannot be treated at par with purely private or contractual agreements entered into in respect of land belonging to private individuals. The cooperative societies of slum dwellers and developers through whom the Slum Rehabilitation Scheme is sought to be implemented facilitate the implementation of the Scheme. The agreements or arrangements that may be arrived at between them cannot be treated at par with purely private or contractual agreements entered into in respect of land belonging to private individuals. The State as the owner of the land upon which a slum is situated has a vital public interest in ensuring that the object for which the land is utilized sub-serves the purpose of rehabilitation of the slum dwellers. It is in that context that diverse provisions are made by the Development Control Regulations to regulate every stage of the Slum Rehabilitation Scheme, from the submission of the proposals, the evaluation of proposals, scrutiny and verification, grant of sanctions and the actual implementation of the Scheme. Though a dispute between the cooperative society and its developer has a private element, it is not as if that a recourse to private law remedies is the only available form of redress. The Slum Rehabilitation Authority as the authority which is vested with the power to regulate the implementation of the Scheme and the owners of the land such as the Municipal Corporation or, as the case may be, the State Government are vital components in the implementation of the Slum Rehabilitation Scheme. Their statutory powers to ensure that the Scheme is not misused and is utilized to sub-serve the public purpose underlying the Scheme is not trammeled by private contractual arrangements. Para15: Now undoubtedly, a developer who has been appointed by a cooperative society is required to fulfill the mandate of DCR 33(10) by securing the implementation of the scheme. Where a developer fails to implement the scheme, that would not preclude the society which represents the interests of hutment dwellers from proceeding to terminate the contract with the developer. The act of termination may, as in the present case, give rise to a private dispute to which a remedy may be available in accordance with the rights which the contractual arrangement creates between the parties. But, where the society seeks to appoint a new developer, it would be necessary that a proper verification and scrutiny is made of the authenticity of the proposal and of the grounds on which the society seeks to enter into a new contractual arrangement. But, where the society seeks to appoint a new developer, it would be necessary that a proper verification and scrutiny is made of the authenticity of the proposal and of the grounds on which the society seeks to enter into a new contractual arrangement. Section 13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 inter alia contemplates that where the Slum Rehabilitation Authority is satisfied that the land has not been developed within the time, if any, specified under such conditions as have been prescribed, the authority may determine to develop the land by entrusting it to any agency recognized by it for the purpose. It was urged on behalf of the cooperative society that Section 13(2) operates where a letter of intent is issued to the developer and would have no application where as in the present case a letter of intent was yet to be issued. We are not prepared to accept the submission which has been urged on behalf of the society that a proposed society of slum dwellers is entitled without any scrutiny or regulation of its activities by the statutory authorities to enter into and terminate development agreements at its own whim and fancy without any application of mind by the authorities concerned. To accept such a submission would only lead to a situation of chaos in the implementation of Slum Rehabilitation Schemes. Members of the managing committees of the societies which are still proposed societies would then be at liberty to pursue their own private ends and to switch loyalties between rival builders on considerations of exigency. Once the proposal has been submitted to the authority under DRC 33(10), the authorities are entitled to scrutinize whether a proposal involving the change of a developer is in the interest of the slum dwellers; whether the developer would fulfill the needs and requirements of the scheme and has the necessary capacity to do so and whether the new developer has the consents of 70% of the slum dwellers. There is absolutely no merit in the submission that while the initial proposal needs to have the consents of 70% of the slum dwellers, a proposal for a change or substitution of a developer need not possess the requisite majority. There is absolutely no merit in the submission that while the initial proposal needs to have the consents of 70% of the slum dwellers, a proposal for a change or substitution of a developer need not possess the requisite majority. The acceptance of such a submission would only defeat the object and purpose of the provisions made in DCR 33(10) and Appendix IV and would result in rendering the schemes subject to misuse. Such an interpretation cannot be accepted. We are clearly of the view that the dispute between a society and the developer does not lie purely in the realm of a private contractual dispute. The dispute has an important bearing on the proper implementation of the Slum Rehabilitation Scheme. The dispute has consequences which go beyond the private interests of the society and the developer. The scheme involves other stakeholders in the process including the land owning public bodies and the slum dwellers whose interests are sought to be protected by the scheme.” 21 As stated above, it is made clear that the present developer will not claim any equities in the said proceeding before the SRA on account of the fact that the impugned order of eviction are being up held nor will present developer claim any equities on account of the fact that he has agreed to provide compensation at the rate of Rs.5,000/per month to the Petitioners in the individual Writ Petitions. 22 Subject to the aforesaid directions, Rule in Writ Petition (St.) No.717 of 2012 and other individual Writ Petitions filed by the Petitioners namely W.P. No.11203 of 2011, 3 of 2012 to 10 of 2012 and 12 of 2012 to 32 of 2012 is made partly absolute. 23 All the Writ Petitions are disposed off in accordance with the aforesaid directions. 24 At this stage, Advocate of the Petitioners in Writ Petition No. 11203 of 2011, 3 of 2012 to 10 of 2012 and 12 of 2012 to 32 of 2012 prays that only the eviction order but not the directions regarding convening the Special General Body Meeting be stayed for eight weeks. This prayer is opposed by Mr. Surana. However, considering the fact that transcription of this Judgment will take some time and since orders of eviction are upheld; only the operation of eviction orders shall be stayed for a period of four weeks from today. This prayer is opposed by Mr. Surana. However, considering the fact that transcription of this Judgment will take some time and since orders of eviction are upheld; only the operation of eviction orders shall be stayed for a period of four weeks from today. All other directions regarding convening a Special General Body Meeting and hearing of Appeals of individual Petitioners by SRA are not stayed and they will start to operate with immediate effect.