Susme Builders Pvt. Ltd. vs Chief Executive Officer, Slum Rehabilitation Authority and Ors.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 18121 OF 2017

SUSME BUILDERS PVT. LTD. … Appellant(s)

Vs.

CHIEF EXECUTIVE OFFICER, SLUM REHABILITATION AUTHORITY AND ORS. ….Respondent(s)

JUDGMENT

Deepak Gupta, J.

1. A dream turned into a nightmare. The dream of over Signature Not Verified Digitally signed by

800 slum dwellers who also happen to be owners of the land SANJAY KUMAR Date: 2018.01.04 10:52:55 IST Reason:

of having a permanent roof over their head has not turned

1 into reality for more than three decades. The slum dwellers

are embroiled in various litigations. There are many powerful

persons involved, be they builders, promoters and even those

slum dwellers who have managed to become office bearers of

the society of slum dwellers. Learned senior counsel

appearing for the parties produced before us graphic

photographs showing the sordid conditions in which these

slum dwellers continue to reside despite having entered into

an agreement with the appellant more than 30 years back to

develop the slums and rehabilitate the slum dwellers in

proper accommodation.

THE FACTUAL BACKGROUND:

2. This case has a long and chequered history and has

some features which are unique to it. The land in question

measuring 23018.50 square meters is situated in the heart of

Mumbai i.e. Santacruz (East), Mumbai. This land earlier

belonged to the Ardeshir Cursetji Pestonji Wadia Trust,

hereinafter referred to as ‘the Trust’. A slum had developed

2 over the said land. The slum dwellers formed an Association

known as ‘the Shivaji Nagar Residents’ Association. It

appears that the Trust had initiated some litigation for

eviction of the slum dwellers. On 19.03.1980 a consent decree

appears to have been passed in this litigation whereby the

Trust agreed to transfer the entire land to the slum dwellers

in case the slum dwellers formed a society. The slum dwellers

thereafter constituted a society in the name and style of Om

Namo Sujlam Suflam Co-operative Housing Society,

Respondent No. 3 herein (hereinafter referred to as ‘the

Society’). About 800 slum dwellers formed the Society, which

was registered under the Maharashtra Co-operative Societies

Act, 1960. In furtherance to the decree, the Trust executed a

deed of transfer in favour of the Society (Respondent No. 3

herein), transferring the entire land to the Society on

20.02.1985. Thus, this is a unique case where the slum is

owned by the Society of which the slum dwellers themselves

are the members. The slum dwellers are, therefore, also the

owners of the land in question.

3

3. It would be pertinent to mention that the land in

question was declared to be a slum under Section 4 of the

Maharashtra Slum Areas (Improvement, Clearance and

Redevelopment) Act, 1971 (hereinafter referred to as ‘the Slum

Act’) firstly on 16.08.1977 and again on 07.12.1983.

4. On 15.09.1985, a General Body Meeting of the Society

was held and in this meeting it was decided to appoint M/s.

Susme Builders Private Limited, hereinafter referred to as

‘Susme’ (the appellant herein), to develop the property.

Thereafter, a development agreement was entered into

between the Society and Susme on 27.02.1986. It was agreed

that there were about 800 occupants on the land in question

and each one of the slum dwellers would be provided

accommodation measuring 240 sq. ft. built up area with

carpet area of 190 sq. ft. The agreement also contained a

condition that the slum dwellers could purchase additional

area of 60 or 110 sq. ft. by paying for the extra area at the

rate of Rs. 350 per sq. ft.. The project was to be completed

within a period of 5 years. Consequent to the agreement, the 4 Society executed a power of attorney in favour of the nominee

of Susme on 07.04.1986 virtually empowering it to act on

behalf of the Society.

5. Admittedly, no work was done as per the terms of the

agreement and nothing was constructed during this period.

The stand of Susme is that during the period some public

interest litigations were filed, hence the plot of land was

not developed.

6. Thereafter, the Development Control Regulations for

Greater Bombay, 1991 under the Maharashtra Regional &

Town Planning Act, 1966 (for short ‘DCR’) were enforced. As

per these DCRs, each one of the slum dwellers was entitled to

a tenement of 180 sq. ft. free of cost. Therefore, the general

body of the Society met on 30.10.1994 and passed a

resolution that the earlier agreement be modified and a

tenement of 225 sq. ft. carpet area be given to each slum

dweller. Thereafter, letter of intent in terms of the DCR was

5 issued in favour of the Society and Susme on 05.04.1995. As

per this letter of intent, each slum dweller was to be alloted

225 sq. ft. area. Susme was also to comply with the

guidelines laid down for redevelopment of notified slums. It

was made clear that first the existing slum dwellers were to be

rehabilitated and only thereafter, free sale could be done in

the open market. Susme was specifically directed to carry out

the activities as per the activity chart and in terms of

Regulation No. 33(10) of the DCR within five years from the

date of issue of the commencement certificate. Thereafter,

another agreement was entered between the Society and

Susme on 10.07.1995 and in terms of this agreement each

slum dweller was entitled for a tenement of 225 sq. ft.; 180

sq. ft. free of cost and 45 sq. ft. at the cost of Rs. 14,350/-.

7. In terms of the letter of intent dated 05.04.1995 and the

agreement, Susme was to construct 12 buildings of ground

plus seven floors for re-housing the slum dwellers and project

affected persons on about 11,000 sq. mtrs. of land and

remaining 12,497 sq. mtrs. was to be developed for the 6 purpose of free sale. During the pendency of this agreement,

Susme constructed two buildings in which 128 slum dwellers

were rehabilitated. This was the only progress which

took place.

8. The DCR was amended in 1997. Under the new DCR,

each slum dweller was entitled to a flat having carpet area of

225 sq. ft.. Naturally, the slum dwellers wanted, that as per

the amended DCR, which was more beneficial to them, they

should be granted a larger flat having carpet area of 225 sq.

ft.. Therefore, another meeting of general body was held on

10.08.1997. In this meeting it was resolved that fresh

negotiations be held with Susme and that Susme should

carry out further development under the amended Regulation

33(10) and that 70% residents should consent for the

redevelopment. Thereafter, another supplementary agreement

was entered into between the Society and Susme on

07.01.1998. In this agreement, it was stated that there are

867 occupants, out of which 825 are occupying residential

premises, 27 are occupying shops and 15 are occupying 7 industrial units. This agreement also provided that

tenements to be provided to each of the residential occupants

would have a carpet area of 225 sq. ft.. Relevant portion of

the agreement reads as follows:

“The parties are aware that under the Slum Redevelopment Scheme and the Development Control Regulations each slum dweller is entitled to, a tenement admeasuring 225 sq. ft. carpet area. As regards 27 shops, the shops members shall be entitled to get such area as they are entitled under Sec. 23(10) of D.C. Regulations 1991 amended from time to time. As regards 15 Industrial Units it is agreed that the Developer shall negotiate with them directly for developing the area occupied by them and the society agrees to sign and execute such papers and writings required by the Developer for that purpose.”

Clause 26 of this agreement provided that the plans shall be

submitted by the developer to the Slum Redevelopment

Authority (for short ‘the SRA’) according to Regulation 33(10)

of DCR, 1991 as amended from time to time. This agreement

was treated to be a supplementary agreement to the

earlier agreement.

9. Susme, on behalf of the Society, also moved the SRA for

permission to convert the old SRD Scheme into a new slum

8 rehabilitation scheme. The SRA granted letter of intent on

27.01.1998 and approval was granted for conversion of the

scheme. Clause 19 of the letter of intent provided that Susme

would submit the agreements with photographs of wife and

husband in respect of all the eligible slum dwellers before

issue of commencement certificate for sale building, or three

months as agreed by the developer, whichever is earlier.

10. One writ petition was filed by the Shivaji Nagar

Residents’ Association being Writ Petition No. 1301 of 1999

challenging the sanction by the SRA in favour of Susme on

the ground that Susme had not obtained consent of 70% of

the slum dwellers. The said writ petition was dismissed on

13.12.1999. The relevant portion of the Judgment reads as

follows:-

“We have heard learned counsel appearing for the parties. We do not find any substance in the contentions raised by the petitioners. It is required to be noted that some 109 slum dwellers filed Writ Petition No. 497 of 1997 raising identical challenge to the scheme and the said petition came to be withdrawn unconditionally on 10th July, 1997. Thereafter, as indicated earlier, two new buildings were constructed and the eligible slum dwellers were put in possession of their respective tenements. Under the 1997 scheme the builder is required to enter into agreement with individual members and accordingly 582 agreements have already been signed between the parties. There is

9 also no merit in the contention of the petitioners that consent of 70% of the Slum dwellers was required under the 1991 scheme. On perusal of the said scheme it is clearly seen that consent of 70% of the slum dwellers was not required and what was contemplated was that if 70% of the Slum dwellers join the society, which is interested in the rehabilitation of the slum dwellers, then such society would be eligible to apply for sanction of the same under DCR 33(10). It is not disputed before us that practically all the slum dwellers have been enrolled as members of the society and, therefore, it is not possible to hold that the requirement of 1991 scheme was not complied with. It is also pertinent to note that the proceedings of the general body meeting dated 13th October, 1994 were not challenged by the petitioners or any other slum dwellers by adopting appropriate remedy. Indeed, the general body meeting had unanimously, resolved to modify the agreement in terms of the 1991 scheme and it is too late to challenge the resolution for the first time by way of the present petition which was filed in 1999. As regards the, 1997 scheme there is a Specific provision for conversion, of the old scheme into a new scheme and accordingly the proposal for conversion was accepted by the authorities and in pursuance of the acceptance, two new buildings have been constructed at an estimated cost of Rs. 5 crores. In our opinion, this petition suffers from gross delay and laches. It is clearly seen that the petitioners were aware of the sanction granted to the society under the 1991 scheme as well as the 1997 scheme. The construction on the property began in 1996 and two buildings have already been constructed. Under the circumstances, we do not find any reason to interfere in writ jurisdiction under Article 226 of the Constitution.”

11. After Susme had completed 80% construction of the two

rehabilitation buildings, it applied for grant of Transfer of

Development Rights (for short ‘TDR’) in terms of the amended

DCR and sold the same. Occupation certificate in respect of

these two buildings was issued on 03.11.1998. While granting

permission it was observed on the file as follows:-

10

“Further, as per policy & DCR 33(10) it is necessary that agreements with more than 70% slum dwellers as per new scheme is required. This was pointed out to CEO (SRA) during discussion, when CEO (SRA) instructed to submit agreements with 70% slum dwellers before second phase of T.D.R. Developers have informed that out of 869 slum dwellers, they have submitted 450 agreements to the office of S.R.A. (52%).”

12. On 07.07.1999, the architects of Susme, on instructions

of Susme, submitted 12 files containing 580 numbers of

individual agreements with members of the Society and

undertook to file the remaining individual agreements to

make up 70% in due course of time. On 18.01.2000, Susme

was again asked to furnish 70% individual agreements of

eligible slum dwellers. Susme replied that in terms of

judgment of the Bombay High Court dated 13.12.1999, it was

not required to file 70% individual agreements. Under the

1997 amended DCR, the developer was entitled to a higher

Floor Space Index (for short ‘the FSI’). Therefore, Susme

submitted fresh plans for construction of 14 storey buildings

plus ground floor as against the earlier plan submitted for

seven storey buildings plus ground floor buildings. These

plans were submitted sometime in the year 1998. However, it

11 appears that the plans were not sanctioned and Susme also

did not pursue the matter earnestly with the authorities.

13. Thereafter, on 13.02.2001, SRA informed Susme that

the request of Susme for approving amended plans for slum

rehabilitation scheme was not considered since the plot under

reference was affected by the Coastal Regulation Zone

Notification (for short ‘the CRZ Notification’). Then Susme

along with the Society filed Writ Petition No. 2269 of 2001 in

which the main prayer was for setting aside the CRZ objection

and it was also prayed that the petitioner be permitted to

complete the rehabilitation scheme. In this petition, an

interim order was passed on 07.08.2002.

14. The Government of Maharashtra during this period also

appointed a one man Commission headed by Shri

Chandrashekhar Prabhu to enquire into the complaints made

with regard to the Society and the manner in which the

rehabilitation scheme was implemented. Susme and the

12 Society jointly filed Writ Petition No. 1854 of 2004 against this

Commission. It was alleged that the SRA had handed over all

the files to Shri Chandrashekhar Prabhu. However, an order

was passed on 01.03.2005 in the aforesaid writ petition in

which a statement was made on behalf of the SRA that all the

concerned files had been retrieved from Shri Prabhu and,

therefore, the decision on the plans would be taken within

four weeks. The Petition was accordingly disposed of.

15. In 2005 itself it was clarified by the authorities that the

property in question does not fall in CRZ, Part I and only a

portion of the property falls in the CRZ, Part II. The architects

of Susme applied for approval of construction of transit

accommodation and this approval was granted by the SRA on

18.08.2005. This was, however, subject to the condition that

agreements with individual slum dwellers would be executed

before demolition of existing structure on the site. Again

complaints were made by some people that transit camps

were not constructed as per the approved plans and the SRA

issued stop work notice on 14.03.2006.

13

16. Another supplementary agreement was entered into

between Susme and the Society on 05.09.2006. This

agreement had a clause that the developer i.e. Susme was to

deal only with the Managing Committee of the Society. This

agreement also provided that any of the Directors of Susme

would be treated to be the attorneys of the Society. This

agreement also provided that Susme had offered to pay a sum

of Rs.75,000/- to each member of the Society having a

structure not exceeding 17.00 sq. mtrs. and Rs.1,00,000/- to

each of those members whose structure is of more than 17.00

sq. mtrs.. It is, however, not clear whether this amount was

actually paid or not. An extraordinary general body meeting

of the Society was held on 22.02.2009. In this meeting it was

pointed out that the members of the Society were not taken

into confidence by the Managing Committee while issuing

power of attorney in favour of the developer and changes to

the detriment of the members have been made by the

Managing Committee in collusion with Susme. It was also

pointed out that agreements were entered into by the

14 Managing Committee with Susme behind the back of the

members of the Society. The majority of the members

demanded for cancellation of the agreement made with

Susme. It would not be out of place to mention that the old

Managing Committee had been voted out and a new Managing

Committee had taken over during this period. Thereafter,

another general body meeting was held on 29.03.2009 and

the minutes of the meeting dated 22.02.2009 were approved.

In this meeting it was also pointed out that now Susme had

offered to make new plans giving each slum dweller a

tenement of 269 sq. ft. carpet in terms of the new circular.

But, the benefit of such bigger tenements was not made

available to those who were already housed in the

rehabilitation buildings. In effect, in this meeting it was

decided to terminate the agreement with Susme.

17. Susme, thereafter, invoked the arbitration clause in the

agreement and filed a petition for grant of interim relief under

Section 9 of the Arbitration and Conciliation Act, 1996 on

29.10.2009. The said arbitration petition was withdrawn on

15 26.06.2012 with liberty to Susme to file a suit. However, the

Society was restrained from implementing the Resolution

terminating the agreement till 13.07.2012. Civil suit No.

1588 of 2012 was filed by Susme on 10.07.2012 in the High

Court of Bombay against the Society and M/s. J.G.

Developers Private Limited.

18. The Society made a complaint to the SRA on 05.04.2009

that Susme was not developing the project as per the

agreement and necessary action be taken by the SRA against

Susme. On 15.06.2009, a communication was sent to the

Society on behalf of SRA that since Susme had constructed

two buildings and is in the process of construction of transit

camp, the developer Susme should be allowed to continue

and the request for change of developer was virtually rejected.

There is some dispute as to whether this letter was signed by

the Chief Executive Officer or the Executive Engineer but that

is not very material for the decision of the case. On

24.07.2009, the Society terminated the agreement with

Susme by a written notice. The Society made another 16 complaint to the SRA and on 08.09.2009, the SRA issued

notice to Susme in terms of Section 13(2) of the Slum Act, but

it appears, that no action was taken pursuant to this notice.

19. Thereafter, on 14.09.2009, the Society entered into an

agreement with M/s J.G. Developers Private Limited,

respondent no.4 (hereinafter referred to as ‘J.G. Developers’).

In this agreement J.G. Developers agreed to provide

permanent alternative accommodation measuring 269 sq. ft.

carpet area to each of the eligible members having residential

premises. Sufficient alternative accommodation was also to

be provided to those occupying commercial/industrial

premises. In Clause (4) of the agreement, it was mentioned

that since the Society was the owner of the plot, the developer

would also grant it 72,000/- sq. ft. carpet area free of cost for

use by the members of the Society. This was crystallized in

the supplementary agreement entered on 22.09.2009 between

the Society and J.G. Developers. In terms of this

supplementary agreement, 155 members occupying double

residential premises would be entitled to additional area of 17 150 sq. ft. and 614 members having single residential

premises would be entitled to 75 sq. ft. additional area. This

effectively meant that those having single residential area

would get a tenement of 344 sq. ft. and those having double

residential area would get a tenement of 419 sq. ft.. J.G.

Developers took the responsibility of getting permission for

giving this extra area. Thereafter, J.G. Developers entered

into individual agreements with some of the members of the

Society in terms of the agreement and supplementary

agreement as referred to above.

20. Complaint No. 30 was filed on 21.09.2006 before the

Anti-Corruption Bureau, which was referred to the High

Power Committee (for short ‘the HPC’), in which it was

complained that the names of the occupants at Serial No. 774

to Serial No. 852 of the list of occupants issued on

21.06.1993 by the Additional Collector, Encroachment, are

bogus and are based on fabricated documents. Notice was

issued on this complaint. On 04.06.2011, Susme again

18 wrote to the SRA to process the proposal submitted to SRA on

01.10.2008. Similar request was made on 16.07.2011 also.

21. Thereafter, on 11.08.2011, show cause notice under

Section 13(2) of the Slum Act was issued by the SRA to

Susme as to why the SRA should not determine the right

granted to Susme to develop the land and entrust the work of

rehabilitation of the slum of the Society to some other agency.

The reasons for issuing the notice are contained in Annexure-

A, which reads as follows:

“1) The LOI for conversion of SRA scheme was issued u/No.SRA/ChE/110/HE/PL/LOI dt. 27/01/1998. It is reported by the Secretary that the developer has failed and neglected to complete the work of Rehab building within the stipulated period as per LOI condition and committed the breach of the terms and conditions of the sanctioned S.R. Scheme.

2) As per complaint of Society, the Developer have not taken effective steps for speedy implementation of Scheme and shown wilful negligence.”

Susme replied to the notice. Even the Society submitted its

reply to the notice and stated that there was inordinate delay

in completing the scheme. Written submissions were filed by

all sides. Finally, by order dated 24.02.2012, the SRA set

19 aside the appointment of Susme as developer mainly on two

grounds:-

(i) that there was unexplained delay in carrying out the

work under the rehabilitation scheme and,

(ii) Susme had failed to show that it had filed

individual agreements with 70% slum dwellers.

The SRA, instead of handing over the work to another agency,

held that since the Society had already entered into an

agreement with J.G. Developers, it may get the scheme

implemented through it. Susme filed an appeal being No. 39

of 2012 before the HPC. This appeal was dismissed on

18.06.2012. This order of the HPC was challenged by filing

Writ Petition No. 1718 of 2012, on the ground that one of the

Members of the HPC was not entitled to hear the appeal. This

writ petition was allowed on 14.08.2012 and the matter was

remanded back to the HPC. Thereafter, the HPC again heard

the appeal and dismissed the same on 10.10.2012. Against

this order of the HPC, the appellant filed Writ Petition No. 5 of

2013, which was rejected by the Bombay High Court by the

20 impugned order dated 11.06.2014 and it is this order of the

High Court which is under challenge in this appeal. In the

meantime, on 03.08.2012 the Bombay High Court in the suit

filed by Susme, refused to grant any interim relief.

22. Letter of intent dated 29.10.2012 was issued by the

SRA in favour of the Society, J.G. Developers and also its

architects. In this letter of intent approval was given for FSI

of 3.78 for slum portion, 3.18 for slum portion in lieu of 128

tenements with carpet area of 20.90 sq. mtrs., already

constructed and 2.58 for slum portion in CRZ-II. Effectively,

the FSI for the developer had increased substantially. In this

letter of intent it was mentioned that the eligible slum

dwellers would be re-housed in residential tenements of

carpet area of 25 sq. mtrs. (269 sq.ft.) or 20.90 sq. mtrs. (225

sq.ft.). It is thus apparent that no permission was granted for

giving larger tenements to the eligible slum dwellers.

21

23. In another Special General Meeting of the Society held

on 13.07.2014, it was decided by majority vote to cancel the

agreement with J.G. Developers. It was also decided that in

view of the cancellation of appointment of J.G. Developers,

the Managing Committee should select a new and capable

developer and the offer made by such developer should be put

up before the next general body meeting. The Society

terminated the appointment of J.G. Developers on

25.08.2014. J.G. Developers challenged the termination of

their agreement by filing Civil Suit No. 756 of 2014 on

19.09.2014 and in this civil suit an interim order was passed

on 24.09.2014.

24. After the termination of the agreement with J.G.

Developers on 25.08.2014, on 26.08.2014 the Managing

Committee of the Respondent No. 3, the Society, entered into

consent terms with Susme again appointing Susme as the

developer.

22

25. Susme filed the present petition for special leave to

appeal challenging the decision of the High Court of Bombay

in Writ Petition No. 5 of 2013, before this Court. The

respondents put in appearance even before the notice was

issued and on 27.03.2015 this Court has passed the following

order:

“Heard Mr. Fali S. Nariman, learned senior counsel for the petitioner, Mr. P.C. Chidambaram, learned senior counsel and Mr. Mihir Joshi, learned counsel for respondent no.4, Mr. Kapil Sibal, learned senior counsel for respondent no.3, Mr. C.U. Singh, learned senior counsel for respondent no.1 and Mr. Raval, learned senior counsel for the applicant in IA No.5/14 along with their assisting counsel.

2. The present case frescoes a labyrinthine chequered history that can flummox the prudence of the wise, for the procrastination in putting an end to a litigation. But, a pregnant one, it is a problem created by human beings by use of adroit proclivity at their best and, therefore, as advised at present, this Court is obliged to take recourse to an innovative method, at least to attempt at a solution.

3. We need not reflect the nature of orders passed in various cases fought between the parties. Suffice it to mention that they have invoked the power of the authorities under the Maharashtra Slum Areas (Development, Clearance and Redevelopment) Act, 1971, instituted civil suits on the original side of the Bombay High Court and sometimes the society, namely, Om Namo Sujlam Sujlam Co-operative Housing Society, respondent no.3 herein, has changed its colour as chameleon with afflux of time may be yielding to the “hydraulic pressures of time” and thereby eventually, in all possibilities, making the slum dwellers of the area, i.e., C.T.S. No.7627, 7627/1 to 852 admeasuring 23018.50 sq. mtrs. situated at village Kolekalyan at Santacruz (East), Mumbai remain in that pathetic condition as they were since 1986, as if the parties have nurtured the notion that they can arrest time. Be that as it may, a solution has to be thought of.

4. In course of hearing Mr. Chidambaram, appearing for respondent no.4, assiduously asserted that he has got the

23 consent from 70% of the eligible slum dwellers and, therefore, the society is absolutely justified in entering into an agreement which is called a “development agreement”.

Mr. F.S. Nariman, learned senior counsel, determined not to lag behind, would astutely asseverated that he has the consentum of 70% of eligible slum dwellers and hence, his case cannot be brushed aside. We have been apprised by Mr. Kapil Sibal, learned senior counsel appearing for respondent no.3, that at present there are slightly more than 800 eligible slum dwellers. Mr. Raval, learned senior counsel appearing for the assumed authorised authority of the society, would present that it is the respondent no.3 who has been correctly granted the privilege of development agreement inasmuch as there was a verification with regard to the consent earlier.

5. In our considered opinion, regard being had to the special features of the case which includes the longevity of the case and indefatigable spirit in which the parties are determined to fight, we think there should be appropriate verification of the consent of the eligible slum dwellers in praesenti. Regard being had to the same, we request Mr. Justice B.N. Srikrishna, formerly a Judge of this Court, to verify the factum of consentum of the eligible slum dwellers. The Slum Rehabilitation Authority represented by the Chief Executive Officer either by himself or by any responsible high level officer nominated by him shall assist Mr. Justice B.N. Srikrishna in this regard.

6. As secretarial staff would be required for this purpose, the petitioner and the respondent no.4 shall deposit a sum of Rs.5,00,000/- (Rupees five lacs only) each so that the verification can be expedited. In addition, learned Judge may fix his honorarium which shall be paid proportionately, as agreed to by the petitioner and the respondent no.4.

7. The parties are at liberty to file documents to facilitate the process of verification with regard to consentum in praesenti before the learned Judge. We repeat at the cost of repetition that such a mode has been adopted, regard being had to the special phenomena of the case. As we have taken recourse to such a method any other the litigation pending in any forum in this regard shall remain stayed.

8. Needless to say, the interim order of status quo passed in this special leave petition, except the directions which have been issued hereinabove, shall remain in force.

9. Let this matter be listed on 09.07.2015 awaiting the report from Mr. Justice B.N. Srikrishna.”

24

26. Thereafter, Justice B.N. Srikrishna, former Judge of this

Court carried out the mandate, which he was required to do

in terms of the aforesaid order. He decided that voting should

be held by secret ballot. He categorized the voters in four

categories.

Category “A” Persons who were original slum dwellers and continue to be occupants as on the cut-off date i.e. 27th March 2015.

Category “B” Persons who claim to exercise their vote as a result of legal heirship.

Category “C” Persons who claim to have become members of the Society by reason of sale and transfer of the shares.

Category “D” 79 persons whose eligibility is under challenge before the Competent Authority as per the directions of the High Power Committee.

He found that there were 867 slum dwellers in the four

categories:

Category “A” 263 Category “B” 318 Category “C” 207 Category “D” 79 Total 867 25

Four separate ballot boxes were kept i.e. one for each category

and the result of the voting is tabulated as follows:

Category Total Voter turn-out Votes Votes Polled by Invalid Eligible at the Poll on polled by Respondent No.4 Votes Voters 22/11/2015 Petitioner

“A” 263 191 108 70 13 “B” 318 275 179 84 12 “C” 207 172 126 43 03

“D” 079 013 010 03 -

Total 867 651 423 200 28

Thereafter, Justice Srikrishna submitted his report setting

out the voting pattern but did not make any recommendation.

CONTENTIONS:

27. The main contention raised on behalf of the appellant-

Susme by Shri F.S. Nariman, learned senior counsel is that

the order dated 27.03.2015 is an order passed by this Court

in exercise of its extraordinary jurisdiction either under

Article 136 or under Article 142 of the Constitution of India.

It is submitted that this order was passed with a view to settle

all disputes between the parties. It is urged that this Court

26 cannot go behind this order especially when there is no

application filed for recall of the said order. It is also urged

that I.A.No. 10 of 2015 filed by J.G. Developers for

modification of the order, was rejected. It is contended that

since Justice B.N. Srikrishna has found that the majority

supports Susme, the appeal should be allowed and Susme be

permitted to carry on with the project.

28. The other contentions raised on behalf of the appellant-

Susme by Shri Darius Khambata, learned senior counsel are:

(a) that Section 13(2) of the Slum Act is wholly

inapplicable;

(b) that the notice under Section 13(2) was given only in

respect of delay and not in respect of 70% consent

and hence the SRA, the HPC and the High Court fell

in error in insisting on 70% consent;

(c) that when migration of the scheme took place from

redevelopment scheme to slum rehabilitation scheme,

70% consent was not necessary.

27

29. On behalf of J.G. Developers it is contended by Shri

Gopal Subramanium, learned senior counsel that the

intention of this Court was to find out whether any party had

support of 70% of the slum dwellers or not. It is also

contended that it was not the intention of this Court to

bypass the legal provisions and this Court is not bound by the

aforesaid order. In the alternative, it is submitted that the

exercise carried out by Justice B.N. Srikrishna only shows

that as on date there are more people with Susme. It is

contended that the Bombay High Court has consistently held

that there should be no competitive voting inter se developers

because that gives rise to many malpractices with the

developers trying to outbid each other by giving sops to the

voters. It is contended that the consistent view till now has

been that once the slum dwellers have given consent for one

developer or have entered into an agreement with a developer

then they cannot be permitted to withdraw the consent,

otherwise, it will lead to chaos and no slum rehabilitation

scheme would be implemented. It is also contended that the

matter should be decided on merits and not on the basis of

28 this order. It is also contended that Susme does not have the

support of 70% of the slum dwellers.

30. It is also contended on behalf of J.G. Developers that

Susme is guilty of unexplained delay and the slum dwellers

are suffering and, therefore, the Society had rightly decided to

enter into a fresh agreement with J.G. Developers. It is also

urged that Susme had never obtained the consent of 70% of

the slum dwellers, which was mandatory. It is also contended

that Susme had taken advantage of trading of the

development rights by assuring the SRA that it would get 70%

consent. It is further urged that Susme never contested the

issue of 70% consent earlier.

31. Here, it would be pertinent to mention that the Society

has two factions. One faction supports Susme and the other

faction supports J.G. Developers. The faction supporting

Susme states that it has terminated the agreement with J.G.

Developers and cannot be forced to get the development work

29 done through J.G. Developers. The other faction alleges that

there is no valid existing agreement with Susme.

32. The following issues arise for decision in this case:

(i) What is the scope, ambit and effect of the order of

this Court dated 27.03.2015;

(ii) What is the scope of powers under Section 13(2) of

the Slum Act;

(iii) Whether the SRA has any power to remove the

developer;

(iv) Whether in the notice issued under Section 13(2) of

the Slum Act the issue of 70% consent was raised;

(v) Whether support of 70% of the slum dwellers is

mandatory and whether slum dwellers are entitled to

withdraw their consent;

(vi) Whether Susme delayed the construction of the

Scheme, and is, therefore, not entitled to any relief;

30

(vii) Whether Susme is entitled to continue with the

Scheme;

(viii) In case Susme is not entitled to continue with the

scheme whether respondent no. 4 J.G. Developers is

entitled to continue with the rehabilitation scheme.

THE SCOPE, AMBIT AND EFFECT OF THE ORDER OF THIS COURT DATED 27.03.2015:

33. Relevant portion of order dated 27.03.2015 has been

quoted hereinabove. The main contention of Mr. Nariman,

learned senior counsel appearing for the appellant is that this

order is an order passed under Article 142 or Article 136 of

the Constitution and is binding upon the parties. On the

other hand, it was urged by M/s Gopal Subramanium and

Neeraj Kishan Kaul, learned senior counsel appearing for the

respondents that the order in question is not a binding order.

In the alternative, it was submitted that even if the order is

binding, this Court can interpret the order and even as per

31 the said order, the appellant is not entitled to continue with

the Scheme.

34. At the outset, we may note that judicial propriety and

discipline requires that a Coordinate Bench must respect the

order of an earlier Bench. In fact, even a larger Bench should

not brush aside the order passed by an earlier Bench even if

it be a smaller Bench unless the order is in issue before the

larger Bench. Suffice to say that the order in question holds

the field. It has not been recalled and prayer for modification

in I.A. No. 10 was rejected on 13.05.2015. Therefore, the

order of this Court dated 27.03.2015 holds the field and we

are bound by the same. At the same time, it is our duty to

decipher what was the intention of the Bench while passing

the order and to find out what the Court intended to do by the

said order.

35. In Para 2 of the order, the Division Bench has noted the

long and chequered history of the case and has noted that the

32 Court had to take recourse to an innovative method to try and

find a solution. It is thus apparent that this is an order

falling within the ambit of Article 142 to do complete justice

between the parties. The Court was aware that the slum

dwellers were suffering due to the long protracted litigation.

Therefore, the Court felt the need to find an innovative

solution. In Para 3 of the order, the Court has noted the

factual aspects and again emphasized the need to find a

solution to resolve the various issues. The Court was

obviously moved by the pathetic condition in which most of

the slum dwellers continued to reside.

36. Para 4 of the order is very important because it notes the

contention of learned counsel appearing for J.G. Developers,

who had emphatically stated that his client had the consent

of 70% of the eligible slum dwellers and, as such, the Society

was justified in entering into a development agreement with

his client. On the other hand, learned senior counsel

appearing for the appellant equally strongly refuted this claim

and claimed that his client had the consent of 70% eligible 33 slum dwellers. It is in this context that the directions

contained in Para 5 of the order dated 27.03.2015 were

passed wherein this Court directed “…….there should be

appropriate verification of the consent of the eligible slum

dwellers in praesenti.” Justice B.N. Srikrishna was requested

to verify the factum of the consent of the eligible slum

dwellers.

37. The contention raised on behalf of Susme is that there is

no mention of “70%” in the direction given in Para 5 of the

order and, therefore, all that Justice B.N. Srikrishna was

required to do was to ascertain consent of the slum dwellers

in praesenti. It is contended that almost 70%, and at least

much more than the majority, have exercised their choice in

favour of Susme and, thus, there is no reason why the appeal

should not be allowed. Susme should be permitted to carry on

the development work in terms of the agreement entered into

with the respondent no. 3-Society. It is also urged that as far

as respondent no. 4 is concerned, it has got hardly 30% of the

votes and, therefore, there is no question of awarding the

contract to respondent no. 4.

34

38. We are not in agreement with this submission. It is

settled law that a judicial order or judgment has to be read as

a whole and a single line or phrase cannot be read out of

context. A judgment is not to be interpreted like a statute.

As far as the order dated 27.03.2015 is concerned, the

intention of the Court, will have to be deduced from the entire

order. We cannot read the phrase “…….there should be

appropriate verification of the consent of the eligible slum

dwellers in praesenti.” in isolation. This has to be read in the

context of the rival contention of the contesting parties that

each one of them had the consent of more than 70% of the

slum dwellers. According to us, this Court was not oblivious

of the requirements of the Slum Act though it may not have

explicitly referred to them. It is obvious from Para 4 of the

order dated 27.03.2015 that learned counsel for both the

parties claimed that their respective clients had the support of

70% of the slum dwellers. Obviously, both of them could not

be correct. This factual dispute could not be decided in these

proceedings. This was the dispute which was referred for

35 resolution to Justice B.N. Srikrishna. We may observe that

Justice B.N. Srikrishna in the first effective procedural order

dated 27.04.2015, rightly understood the order to mean as

follows:

“After carefully perusing the Order dated 27th March, 2015 made by the Hon’ble Supreme Court and the submissions made in writing and through Counsel and representatives on behalf of the Petitioners as well as the Respondents, I am of the view that the best way of verifying the factum of consentum of the eligible slum dwellers in praesenti would be to hold a secret ballot under my aegis and after counting the votes, make a report to the Court as to whether more than 70% of the eligible slum dwellers are in favour of the redevelopment agreement being signed with the Petitioner or Respondent No.4.”

39. It is, thus, clear that Justice B.N. Srikrishna had

understood that he was to ascertain whether 70% of the

eligible slum dwellers are in favour of the redevelopment

scheme signed with the appellant-Susme or with respondent

no. 4. We are clearly of the view that a holistic reading of the

order admits of no other meaning. The only dispute raised

before this Court on 27.03.2015 was which of the builders

had the support of the 70% of the slum dwellers. Since this

factual dispute could not be decided in Court, Justice B.N.

Srikrishna was requested to do this job. It is not necessary

36 for us to go into the other arguments raised with regard to the

effect of the order because, according to us, this order admits

of no other interpretation. Admittedly, neither the appellant

nor respondent no. 4 has received 70% support.

40. Further, the words ‘in praesenti’ only mean that the

Court wanted the verification of the consent of the eligible

slum dwellers as on date of passing of the order. ‘In praesenti’

cannot be read to mean ‘present and voting’. It only means

eligible slum dwellers as on 27.03.2015. Justice B.N.

Srikrishna has divided the slum dwellers into four categories;

263 were the original slum dwellers, 318 were the legal heirs,

207 were those who had become members by means of sale

and transfer of shares and 79 voters were disputed. We may

note that during these entire proceedings not a single

complaint has been filed that an ineligible slum dweller was

permitted to vote or that an eligible slum dweller was not

permitted to vote. The procedure followed by Justice B.N.

Srikrishna is absolutely correct and no error can be found in

37 this regard. Therefore, we have no hesitation in accepting the

report submitted by Justice B.N. Srikrishna.

41. Out of 867 total eligible voters only 651 voted and the

appellant secured 423 votes, which would mean 64.98% or

roughly 65% of the votes polled. But, if we were to calculate

this percentage from the total number of slum dwellers i.e.

867 then the percentage is 48.78%, which is less than 50%.

In case we exclude 79 votes which are doubtful, then the total

eligible voters would be 788 and the appellant secured 413

i.e. 52.41% of the total eligible slum dwellers, well below the

magic figure of 70%. We are unable to accept the contention

of Mr. Nariman that to put an end to all litigation, the Court

only wanted to find out who had the majority. That,

according to us, is not the essence of the order dated

27.03.2015. It is true that 70% is not reflected in the

direction given in Para 5 of the order but as earlier noted by

us, the directions have to be understood in view of the

intention of the Court, which was to find out that which of the

builders had the support of 70% of the slum dwellers. 38 Unfortunately, both the developers do not enjoy 70% support,

though it is true that the appellant has the support of more

than twice the number of slum dwellers as compared to

respondent no. 4. Since neither Susme nor J.G. Developers

has the support of 70% slum dwellers, the order dated

27.03.2015 cannot be taken to its logical conclusion and we

have to decide the appeal on merits.

THE SCOPE OF POWERS UNDER SECTION 13(2) OF THE SLUM ACT:

42. Relevant portion of Section 13 of the Slum Act which is

the bone of contention between the parties reads as follows;

“13. (1) Notwithstanding anything contained in sub- section (10) of section 12, the Slum Rehabilitation Authority may, after any area is declared as the Slum Rehabilitation Area, if the landholders or occupants of such area do not come forward within a reasonable time, with a scheme for re-development of such land, by order, determine to redevelop such land by entrusting it to any agency for the purpose.

(2) Where on declaration of any area as a Slum Rehabilitation Area the Slum Rehabilitation Authority, is satisfied that the land in the Slum Rehabilitation Area has been or is being developed by the owner in contravention of the plans duly approved, or any restrictions or conditions imposed under sub-section (10) of section 12, or has not been developed within the time, if any, specified under such conditions, it may, by order, determine to develop the land by entrusting it to any agency recognised by it for the purpose:

39

Provided that, before passing such order, the owner shall be given a reasonable opportunity of showing cause why such order should not be passed."

43. Shri Darius Khambata, learned senior counsel appearing

for Susme urged that under Section 13(2) of the Slum Act, the

SRA is entitled to take action only against the owner. He also

submits that Section 13(2) will apply only when there is

violation of the conditions imposed under sub-section 10 of

Section 12 of the Slum Act and the condition with regard to

the time should also be a condition contained in sub-section

10 of Section 12. He submits that there is no power to take

action under this section against the developer. According to

him, action could have been taken by the SRA against the

Society but not against Susme.

44. We cannot accept such a wide submission. According to

us, under Section 13(2) of the Slum Act, the SRA has the

authority to take action and hand over the development of

land to some other recognized agency under three

circumstances:

40

i. When there is contravention of the plans duly

approved;

ii. When there is contravention of any restriction or

condition imposed under sub-section 10 of Section 12

of the Slum Act; and

iii. When the development has not taken place within

time, if any, specified.

45. The requirement to complete the development within

time may be there in the letter of intent issued by the SRA or

may be in the agreement entered into between the

owner/developer with the slum dwellers. Such condition, if

violated, would attract the provisions of Section 13(2) of the

Slum Act. Over and above that, when a clearance order is

passed, then in terms of sub-section 10 of Section 12, the

competent authority can include a condition with regard to

the time within which the development should be completed

and in that case also Section 13(2) would be attracted. We

are not, however, able to accept the very wide argument that

41 in case of delay, the condition that is violated must be laid

down under Section 12(10) of the Slum Act.

46. There may be cases where the slum dwellers do not

offer any resistance and willingly consent to move into transit

accommodation provided by the owner/developer. Therefore,

the conditions laid down under Section 12(10) will come into

play only when there is a clearance order, but in case there is

no clearance order, then under Section 13(2), the SRA would

be empowered to take action when there is violation of any

plan or when there is violation of any condition relating to

developing the project within time. The time limit can, some

time, be provided in the letter of intent, in the agreement or

even in the regulations.

47. Having held so, we are of the view that Shri Darius

Khambata, learned senior counsel, is right in his submission

that normally under Section 13(2) of the Slum Act, action by

the SRA has to be taken against the owner. Here, we may

42 repeat that this is a unique case where the slum dwellers are

the members of the owner-Society. The Society, in turn, has

given power of attorney to the builder. The builder virtually

has two roles – one as developer and the other as power of

attorney holder of the owner. Both are closely interlinked and

inextricably mixed with each other. Therefore, though

normally we would have accepted the contention that under

Section 13(2) action can only be taken against the owner, in

the present case, we are unable to accept this contention in

its totality. We may point out that even the SRA, in its order,

has itself noted that since the Society is the owner of the plot

of land, it is empowered and within its right to terminate the

agreement executed with the said developer for breaches

committed by the developer. It has, however, held that a

private dispute between the Society and the developer cannot

prevent the SRA from discharging its obligations. The SRA

agreed with the submission made by the Society that Susme

had not completed the project within time. It has taken

action under Section 13(2) of the Slum Act. The action taken

43 by the SRA is to remove Susme as developer which amounts

to cancelling the letter of intent issued in favour of Susme.

48. Otherwise, there would be an anomalous situation

where the Society would have terminated its contract with

Susme but the letter of intent issued by the SRA would

continue to hold the field and it would be entitled to develop

the land. The Society approached the SRA, in fact, asking it

to take action against Susme. Since the SRA is the authority

which issued the letter of intent, it will definitely have the

power to cancel the letter of intent.

49. We are of the considered view that in the peculiar facts

and circumstances of the case where the slum dwellers are

virtually the owners of the land as members of the owner

Society, the SRA had the power under Section 13(2) of the

Slum Act to issue the order dated 24.02.2012.

44

WHETHER THE SRA HAS ANY OTHER POWER TO REMOVE THE DEVELOPER:

50. Even if we were to assume that the SRA did not enjoy

this power under Section 13(2) of the Slum Act, we are of the

considered view that since it was the SRA which issued this

letter of intent, it necessarily must have the power to cancel

the same. The SRA can also derive this power under clauses

(c) and (d) of sub-section (3) of Section 3A of the Slum Act,

which read as under:

“3A. (1) Notwithstanding anything contained in the foregoing provision, the State Government may, by notification in the Official Gazette, appoint an authority to be called the Slum Rehabilitation Authority for such area or areas as may be specified in the notification; and different authorities may be appointed for different areas.

xxx xxx xxx

(3) The powers, duties and functions of the Slum Rehabilitation Authority shall be,-

xxx xxx xxx

(c) to get the Slum Rehabilitation Scheme implemented;

(d) to do all such other acts and things as may be necessary for achieving the objects of rehabilitation of slums.”

51. A bare reading of these provisions shows that in terms of

clause (c) and (d) of sub-section (3) of Section 3A of the Slum

45 Act, the SRA not only has the power, but it is duty bound to

get the slum rehabilitation scheme implemented and to do all

such other acts and things as will be necessary for achieving

the object of rehabilitation of slums. In this case, the SRA

was faced with a situation where the slum dwellers were

suffering for more than 25 years and, therefore the action

taken by SRA to remove Susme for the unjustified delay was

totally justified.

52. A perusal of the various provisions of the Slum Act

would show that normally in a case falling under the Slum

Act, it is the owner of the land, whether it be the Government,

a statutory authority or a private person, who will be

interested in the development work. Normally, the occupiers

will be encroachers of slum land. Therefore, there will be a

conflict of interest between the occupiers and the owner. The

owner, in turn, will always engage a developer/builder to

carry out the development work. In case the owner gives a

power of attorney to the developer, as in the present case, the

developer now has two identities – (i) the power of attorney 46 holder of the owner and (ii) the developer. As far as the

present case is concerned, the Society is made up of the

members who are occupiers and this Society has given power

of attorney to the developer-Susme. Therefore, the developer

Susme is actually having a dual role of owner and developer.

Both the letters of intent have been issued in favour of the

Society, Susme and the architects of Susme. Susme could

not have carried out the development work on the basis of its

agreement with the Society. It needed the permission of the

SRA. Therefore, SRA can obviously revoke such permission.

WHETHER IN THE NOTICE ISSUED UNDER SECTION 13(2) THE ISSUE OF 70% CONSENT WAS RAISED:

53. Shri Darius Khambata, learned senior counsel, has

raised another contention that there is no allegation in the

notice under Section 13(2) of the Slum Act that Susme has

violated any provisions of the Act, Regulations or Scheme in

not getting consent of 70% of the slum dwellers. We have

gone through all the three notices and find that, in fact, in the

47 notices there is no specific allegation in this behalf. On the

other hand, Shri Gopal Subramanium, learned senior counsel

appearing for J.G. Developers, urges that in the last notice

reference has been made to violation of DCR and this will

obviously include violation of requirement of consent of 70%

slum dwellers.

54. We are unable to accept the contention of Shri Gopal

Subramanium, learned senior counsel. When a notice is

issued to a party it must be clearly told what are the

allegations which it must meet. The notice should be clear

and unambiguous.

55. There was no allegation in the notice(s) that the right to

develop granted in favour of Susme was liable to be revoked

because it had not obtained consent of 70% of the slum

dwellers. The reference to Regulation 33(10) also did not

specifically raise the issue of 70% consent. Susme was never

put to notice by the SRA that its right to develop the land may

48 be cancelled because of not having consent of 70% slum

dwellers. It was confined to the issue of delay. We answer

this issue accordingly.

56. However, we are of the view that while considering the

issue of delay, the SRA was justified in making reference to

the various communications made by Susme and its

architects seeking time to obtain consent of 70% slum

dwellers and, therefore, while dealing with the issue of delay,

we shall take into consideration all these matters.

WHETHER SUPPORT OF 70% OF THE SLUM DWELLERS IS MANDATORY AND WHETHER SLUM DWELLERS ARE ENTITLED TO WITHDRAW THEIR CONSENT:

57. It would be important to note that under DCR of 1991,

which were initially applicable to this project, a Scheme for

rehabilitation could be initiated where more than 70% of the

eligible hutment dwellers on the land agreed to the

redevelopment scheme by becoming members of a cooperative

society. Thereafter, the Scheme was to be considered by the

49 authorities for implementation. Relevant portion of the DCR

reads as follows:

“INITIATION OF THE SCHEME:- Where more than 70% of the eligible hutment dwellers on the land agree to join the redevelopment scheme and become members of the co- operative society, the scheme should be considered for implementation.”

58. Under Development Control Regulations 33(10) of 1991,

the essential requirement was that at least 70% of the slum

dwellers had to form a society with a view to redevelop the

slum area. In case 70% slum dwellers did not join, there

could be no rehabilitation scheme. As far as the present case

is concerned, it is not disputed that more than 70% slum

dwellers had formed the respondent no. 3-Society. It is the

admitted case of the parties that 800 out of 867 slum dwellers

formed respondent no. 3-Society, which is 92.27%.

59. DCRs of 1991 were amended in 1997. Clause 1.15 of

Appendix (IV) of the amended DCR provided that 70% or more

of eligible hutment dwellers in a slum must agree to join a

50 rehabilitation scheme before it can be considered for approval.

This clause reads as follows:

“Where 70 per cent of 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:

Provided that nothing contained herein shall apply to Slum Rehabilitation Projects undertaken by the State Government or Public authority or as the case may be a Government Company as defined in section 617 of the Companies Act, 1956 and being owned and controlled by the State Government.”

Clause 1.16 of Appendix (IV) of this DCR reads as follows:

“In respect of those [eligible] hutment-dwellers on site who do not join the Project willingly the following steps shall be taken:-

(i) Provisions for all of them shall be made in the rehabilitation component of the scheme.

(ii) The details of the actual tenement that would be given to them by way of allotment by drawing lots for them on the same basis as for those who have joined the Project will be communicated to them in writing by the Managing Committee of the Co-operative Housing Society. [If it is registered or the developer and in case of dispute decision of the CEO/SRA shall be final and binding on all the parties concerned.

(iii) The transit tenement that would be allotted to them would also be indicated alongwith those who have joined the Project.

(iv) If they do not join the scheme within 15 days after the approval has been given to the Slum Rehabilitation Project on that site, then action under the relevant provisions including sections 33 and 38 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 as amended from time to time, shall be taken and their hutments will be removed, and it shall be ensured that no obstruction is caused to the scheme of the majority of persons who have joined the scheme willingly.”

51

60. It is thus obvious that under the amended DCR, not only

70% or more of the eligible hutment dwellers must first agree

to join a rehabilitation scheme before it is taken up for

consideration, but the owner/developer or cooperative society

must also enter into individual agreements with each of these

eligible hutment dwellers. We may also point out that the

amended DCR in clause 1.16 of Appendix IV provides that

even in respect of those eligible hutment dwellers who do not

join the project willingly, the developer/builder has to make

provision for accommodation of these hutment dwellers in the

scheme. They are entitled to the same benefits as the

hutment dwellers who actually join the scheme. They are also

entitled to similar transit accommodation as is allotted to

those who willingly join the scheme. Further, the regulations

also provided that if such hutment dwellers do not join the

scheme and do not accept the transit accommodation or the

completed premises, then they can be removed from their

hutments and it will be ensured that these hutment dwellers

do not cause any hindrance to the project.

52

61. Very lengthy arguments were addressed by learned

counsel on the issue whether 70% support of the slum

dwellers is mandatory. A large number of authorities have

also been cited but, in our view, it is not necessary to refer to

the various authorities because the bare provisions of law are

sufficient to decide this issue. A bare reading of DCR of 1991

makes it absolutely clear that under the said DCR at least

70% of the slum dwellers/occupiers have to get together and

form a Society for the purpose of slum re-development

scheme. Therefore, unless 70% slum dwellers agree to form a

Society, the provisions of the Slum Act could not be invoked

to frame an SRD scheme. Under the amended DCR of 1997,

there is a change and the change is that now the

developer/owner was required to enter into agreements with

70% of the slum dwellers and unless 70% of the slum

dwellers agree, the slum rehabilitation scheme cannot be

entertained. The magic figure remains at 70%. The idea

behind it is that more than 2/3 of the occupiers must agree

for the rehabilitation scheme.

53

62. As pointed out above, even if the remaining minority

slum dwellers do not agree to be part of the scheme, the

owner/developer is duty bound to make adequate

arrangements for their rehabilitation under the scheme and

they can join the scheme, and can take benefit of the scheme

even at any later stage. We are, therefore, of the considered

view that 70% consent of the occupiers is mandatory. As

clarified above, we are not dealing with this aspect in relation

to the order of the SRA because the notice under Section

13(2) did not raise this issue. However, we are clearly of the

view that under the 1997 DCR the owner is required to

produce individual agreements with 70% slum dwellers before

the scheme can be taken up for consideration.

63. The circulars issued by the SRA, specially Circular dated

21.08.1997, 19.09.1998 and Circular No. 27 permit

conversion of old approved SRD Scheme to new SRA Scheme

under the provisions of Clause No.10.1 of Appendix IV of

DCR. In the present case, the scheme was initiated under the

54 old DCR of 1991. There is no manner of doubt that the

Society was formed by more than 90% of the occupiers.

64. The migration was done to the Scheme of 1997. There is

no clear cut provision in the 1997 DCR as to how this

migration has to be done. Since there is no clear cut

provision, we may presume that while migrating, it was not

necessary for Susme to have individual agreements with 70%

of the slum dwellers. We may, however, point out that it was

Susme who applied for migration to the new Scheme,

obviously because the new Scheme gave greater benefits to

the developer. When migration was done, it was on the clear

cut understanding that after the migration, the provisions of

amended DCR would be applicable. When this application of

the Society and Susme for conversion was taken up, it was

noticed that one of the main objections was that there were

no individual agreements with the slum dwellers.

55

65. Later, Susme submitted agreements of 450 of the eligible

slum dwellers and stated in writing that the remaining to

make up 70% would be submitted before start of Phase II of

the construction. Fresh letter of intent dated 27.01.1998, in

terms of the new DCR, was issued in favour of Susme and

approved in accordance with Clause No.33(10) and Appendix

IV of amended DCR subject to certain conditions.

Clause 19 of the letter reads as follows:

“That you shall submit the Agreements with the photographs of wife and husband on the agreements with all the eligible slum dwellers before issue of CC for sale bldg., or 3 months as agreed by developer whichever is earlier. And the name of the wife of the eligible occupier of hut shall be incorporated with joint holder of the tenements to be allotted in rehabilitation building.”

66. A bare perusal of this condition makes it clear that

Susme was directed to submit agreements with all the eligible

slum dwellers before commencement certificate for sale

building was issued or within three months, as agreed by it.

It has been urged by Shri Darius Khambata, learned senior

counsel that, as per this condition, the agreements have to be

submitted only at the stage when the commencement

56 certificate is to be issued. It would also be important to note

that even before the rehabilitation building numbers 5 and 6

were completed, Susme was granted TDR to the extent of 40%

of the construction of building nos. 5 and 6, which they sold

in the open market. The relevant portion of the note dated

16.02.1998 is extracted hereinbelow:

“Further as per policy & DCR 33(10) it is necessary that agreements with more than 70% slum dwellers as per new scheme is required. This was pointed out to CEO (SRA) during discussion, when CEO (SRA) instructed to submit agreements with 70% slum dwellers before second phase of T.D.R. Developers have informed that out of 869 slum dwellers, they have submitted 450 agreements to the office of S.R.A. (52%).”

When Susme applied for permission to sell the TDR, the SRA

ordered that 70% agreements should be submitted before

Phase II TDR and, further, Susme was informed by the SRA

that it has only submitted the agreements with 450 slum

dwellers which comes to barely 52%. The Bombay High

Court, therefore, rightly recorded that Susme accepted the

condition of 70% consent requirement when it accepted these

conditions and sold the TDR. Thereafter, on 03.11.1998,

occupation certificate was issued in favour of Susme with

57 regard to two rehabilitation buildings. Relevant portion of

communication dated 03.11.1998 reads as under:

“That the 70 percentage individual agreements with slum dwellers shall be submitted before further approval/CC.”

67. On 24.12.1998, the SRA permitted Susme to take 90%

benefit of the TDR equivalent. Relevant portion of this note

reads as follows:

“As per policy it is necessary that agreements with minimum 70% slum dwellers for new scheme is required. It is also mentioned in the previous report sidelined ‘x’ at page 35. Architect has to submit 70% agreements before granting Phase-II TDR. At present 52 (sic 520) agreements (60%) out of 869 are submitted in this office as mentioned in the letter of Architect as at page…….However, these two Rehab Bldgs are physically occupied and list of documents rehoused is submitted at P-164 to 171 Phase II T.D.R. can be recommended if agreed.

In view of above pending requirement if CEO (SRA) agreed TDR equivalent to 0.90 x 3720.90 = 3348.81 (1295 SQ.MT. released in Phase I + 2051.81 sq.mt. to be released & Phase II) sq. mt. Phase II TDR will be recommended to M.C.G.M. ”

68. It was noted that Susme was required to submit

agreements with 70% of the slum dwellers. On 07.07.1999

Susme, through its architects, sent a letter to respondent no.

1 forwarding 580 individual agreements of the members of the

Society and also undertook to submit the remaining, to make

70% in due course. SRA pointed out in its letter dated

58 25.07.2001 addressed to Susme that out of the agreements

submitted, only 372 were correct.

69. Here, it will be pertinent to note some other relevant

facts. On 11.05.1999, some slum dwellers filed Writ Petition

No. 1301 of 1999, challenging the letter of intent dated

27.01.1998 in favour of Susme on various counts including

the ground that Susme had failed to obtain consent of 70% or

more of the eligible slum dwellers. This petition was

dismissed on 13.12.1999 and we have quoted the relevant

portion of the Bombay High Court in the earlier part of the

judgment. According to Susme, in view of this judgment, it

was not required to obtain 70% consent of the slum dwellers.

We do not think this is what was said by the High Court. We

may note that the main contention by the appellant before the

High Court was that the consent of 70% of the slum dwellers

was not required under the 1991 Scheme. The High Court

held, and rightly so, that under the 1991 DCR what was

required was that 70% of the slum dwellers joined the Society,

which was interested in the rehabilitation of slum dwellers 59 and there was no requirement that there should be consent

from 70% slum dwellers. The High Court did not discuss at

all, the issue whether 70% consent was required under the

1997 Scheme. This judgment will have no bearing on the

present case.

70. As we have already indicated above, in a migration from

1991 Scheme to 1997 Scheme, obviously 70% individual

agreements cannot be obtained prior to submission of the

Scheme. However, while granting migration, the SRA can lay

down conditions and such conditions can also be laid down

during the course of the Scheme. From the facts narrated

above it is more than amply clear that the SRA envisaged, and

Susme clearly understood, that it had to obtain consent of

70% of the slum dwellers. Even in the resolutions of the

Society authorizing Susme to take up the development work

entered after DCRs were amended it was clearly mentioned

that amended Regulation 33(10) would govern the

agreements. Susme cannot now say that it is not governed by

the amended regulations. Even the letters issued by the 60 architects of Susme clearly indicate that they would make up

the balance to achieve 70% agreements. The main dispute is

by when this should have been done. Initially, time was given

till commencement certificate of the sale building was issued.

This was a meaningless condition because if this condition

was to be applied after the rehabilitation buildings had been

built, then having the consent of the slum dwellers would be

an exercise in futility because by then they would have been

thrown out of their dwellings. We can, at best, understand

this to mean commencement of the rehabilitation buildings.

The slum dwellers are interested with the rehabilitation

buildings and not with the free sale buildings. Later on, when

applying for permission to trade their development rights,

Susme clearly understood and undertook that it would

furnish the consent forms of 70% of the slum dwellers. The

architects of Susme, in fact, deposited 580 individual

agreements but out of these, only 372 were found to be

correct. Thereafter, Susme took a U-turn and, relying upon

the judgment of the Bombay High Court in CWP No.1301 of

1999, took a stand that it was not required to submit

61 agreements with 70% slum dwellers. This stand was not

legally tenable. Susme cannot be permitted to back out of its

commitments. The agreements with 70% slum dwellers

should have been provided within a reasonable time and,

though almost 20 years have elapsed since the second letter

of intent was granted in favour of Susme, it has till date failed

to submit such agreements. We may again reiterate that we

are not dealing with this issue for the purpose of removing

Susme but only for the purpose of showing that Susme

delayed the project because it failed to get consent from 70%

of the occupiers.

WHETHER SUSME DELAYED THE CONSTRUCTION OF THE SCHEME, AND IS, THEREFORE, NOT ENTITLED TO ANY RELIEF:

71. With regard to the issue whether the appellant is

responsible for the delay in implementation of the Scheme, at

the outset, we may note, that both the SRA and the High

Court have dealt with this issue in detail and come to a

concurrent finding of fact that Susme was responsible for the

62 delay in implementation of the Scheme. Since this is a

finding of fact and dealt with in detail by the High Court, we

are not required to examine this contention in detail.

However, at the insistence of the learned senior counsel for

Susme we have gone through the voluminous record. From

the facts which are set out in this regard it is apparent that

Susme first entered into an agreement with the Society on

27.02.1986 committing to complete the project in 5 years.

Unfortunately, from 1986 to 1991, nothing was done and the

only excuse is that some public interest litigation was

pending. On 25.03.1991, the DCRs were brought into force.

On 09.10.1992, the appellant obtained permission for

development of the property on certain conditions. It would

be important to note that in the letter of 09.10.1992, while

granting permission, it was stated that the developer should

produce agreement of all the existing occupiers within six

months and the development work is to be completed within

two years, though the time could be extended for genuine

reasons. Admittedly, no work was done during this period

also. On 05.04.1995, letter of intent was issued in favour of

63 Susme. In this letter also, there was a stipulation that Susme

should produce the agreement with all the slum dwellers.

Thereafter, Susme entered into a fresh agreement with the

Society. During this period of 9 long years, not an inch of

construction was raised nor any portion of the property

developed. Thereafter, in a meeting of General Body of the

Society held on 12.11.1995, a resolution was passed that

each slum dweller be provided 225 sq. ft. carpet area. This

was accepted by Susme and crystallized in the agreement

dated 07.01.1998. Between 15.01.1996 to 01.02.1996 Susme

obtained ‘intimations of disapproval’ which, in fact, are

sanctions for construction for 15 rehabilitation buildings and

started construction of two rehabilitation buildings nos. 5

and 6. Susme’s proposal for conversion of SRD Scheme to

SRA Scheme was approved in January, 1998 and fresh letter

of intent was issued in favour of Susme on 27.01.1998.

During this period, two rehabilitation buildings were

constructed but nothing further was done. There is virtually

no explanation as to why the remaining rehabilitation

buildings were not constructed during this period except to

64 state that fresh plans were never approved. It is more than

obvious from the facts narrated above that Susme never

earnestly pursued the authorities for approval of the plans

and the reason is not far to seek – the reason being Susme

did not have consent/agreements of 70% slum dwellers. It is

more than obvious that Susme was buying time on one

excuse or the other. On 18.01.2000, the SRA called upon the

appellant to submit revised plans in respect of rehabilitation

buildings within 10 days of the receipt of the letter. In reply

thereto, the architects of Susme sent a letter on 27.01.2000

expressing their intention to start Phase II of the project but,

at the same time, sought waiver of the requirement of

obtaining 70% consent from the slum dwellers. This clearly

shows that Susme was using this excuse to delay the

construction. On 05.01.2001, Susme addressed a letter to

the SRA praying that the plan submitted in 1997 be

approved. Thereafter, the SRA did not consider Susme’s

proposal since, according to the SRA, the proposal was

affected by the Coastal Regulations Zone (CRZ) Notification.

65

72. On 07.07.2001, Susme and the Society filed Writ

Petition No. 2269 of 2001, in the Bombay High Court seeking

removal of the remarks which indicated that part of the

property of the Society was being affected by the CRZ

Notification. A perusal of the writ petition and the other

documents clearly shows that the entire property was not

affected by the CRZ Notification, but only a part thereof. On

07.08.2002, in the petition filed by Susme and the Society,

the Bombay High Court passed an order, relevant portion of

which reads as follows:

“Prima facie, having perused the affidavit of Dr. Munshil Gautam filed before this Court on 24th June, 2002 and the documents annexed thereto it does appear that the property in question is affected by CRZ regulations. Respondent No. 2 and 3 have already placed Coastal Zone remark which is of course impugned in the present petition but until the petitioners are granted relief as prayed, the petitioners cannot raise any construction in the area which is covered by CRZ regulation. We accordingly observe that during the pendency of petition the petitioners shall not raise any construction in the property in question which is affected by CRZ regulation.”

73. It is apparent from the aforesaid order that stay was

granted not to raise construction in the area which is covered

by the CRZ Notification. No material has been brought on

66 record to show that the entire plot was covered by the CRZ

Notification and it is amply clear that only a portion of the

plot was covered by the CRZ Notification and nothing

prevented Susme from raising construction on that portion of

the land which was not affected by the CRZ Notification. On

09.05.2005, Susme’s architects sought approval of plans for

transit accommodation. This permission was granted on

18.08.2005, but a condition was laid down that 70%

agreements must be submitted before the existing structures

are demolished. On 14.03.2006, the SRA issued notice to

Susme to stop work on various grounds including non-

submission of demarcation from the competent authority

permitting the transit camp to be set up. Thereafter, on

05.09.2006, Susme and the Society entered into another

agreement and on 03.04.2008, respondent no. 1 revoked the

order dated 29.05.2006, after Susme obtained permission

from the State Government allowing the transit camps to

remain. It is apparent that sometime in the year 2005, it was

clarified by the concerned authorities that Susme’s

construction was not affected by the CRZ Notification. It is

67 obvious that only a portion of the land was affected by the

CRZ Notification and nothing prevented Susme from

constructing the buildings which were to be constructed on

land not falling within the CRZ Notification. However for

reasons known only to Susme, it withdrew the Writ Petition

No.2269 of 2001 only on 07.04.2008. It was only thereafter

that respondent no. 3-Society passed a resolution on

29.03.2009, terminating the development agreement with

Susme. Even after that, the SRA on 15.06.2009 issued a

letter that the Society’s request for change of developer need

not be considered. On 14.09.2009, the Society entered into

agreement with respondent no. 4 - J.G. Developers Pvt. Ltd..

Thereafter, civil litigation started. It has also been urged on

behalf of Susme that, in the meantime, a one man

Commission was constituted and due to the constitution of

this Commission, work was affected.

74. After going through all the material placed on record, we

are clearly of the view that the finding given by the SRA that

the appellant was responsible for the delay, is a finding based 68 on appreciation of material on record. It cannot be said to be

a perverse finding. It is a finding of fact and, therefore, the

Bombay High Court was justified in coming to the conclusion

that it could not set aside this finding of fact in writ

jurisdiction. We may, however, add that since lengthy

arguments were addressed, we have ourselves gone through

the various documents and though there may have been a few

stop orders and a few occasions when Susme may not have

been able to raise the construction but, by and large, Susme

was itself guilty of delaying the construction for no reason at

all. We, therefore, hold that Susme was rightly held

responsible for the delay in implementation of the

rehabilitation scheme and, as such, we find no error in the

impugned order.

WHETHER SUSME IS ENTITLED TO CONTINUE WITH THE SCHEME:

75. With regard to the issue whether the appellant is entitled

to continue with the Scheme; in view of the findings given

above, we are clearly of the view that Susme is not entitled to

69 continue with the rehabilitation Scheme on account of the

fact that it has been responsible for the delay in completion of

the project for an inordinately long time. Susme has not been

able to explain the delay. We are dealing with slum dwellers

and Susme cannot take the benefit of technical points to

defeat the rights of the slum dwellers. The claim of Susme

that it had the support of 70% slum dwellers, was contested

before Justice Srikrishna and his findings clearly reveal that

Susme does not have the support of 70% of the slum

dwellers. We are of the view, that since the notice by the SRA

to Susme did not make any specific allegation with regard to

Susme not having 70% consent, that portion of the order of

the SRA, setting aside the right to develop the land on the

ground of lack of 70% consent, may have been beyond the

scope of the notice. However, this issue was argued before

the HPC and the High Court and on rival claims being made,

this Court vide order dated 27.03.2015, referred this dispute

to Justice Srikrishna, who has submitted his report.

70

76. In writ proceedings, the petitioner must show that both

in law and in equity it is entitled to relief. In this case, both

equity and law are against Susme. It has dealt with slum

dwellers in a highly inequitable manner. The law and the

conditions of the letter of intent as well as the conditions

imposed in the various letters issued by the SRA clearly

required Susme to produce agreements with at least 70% of

the slum dwellers. This, Susme has miserably failed to do.

We may also add that though Susme may have remained the

same entity in name, there have been, at least, three changes

in the promoters of Susme and these transfers of

shareholdings obviously must have been done for

consideration. It is more than obvious that Susme, as a legal

entity, was treating the slum dwellers only as a means of

making money and, therefore, we are clearly of the view that

Susme is not entitled to any relief.

71 IN CASE SUSME IS NOT ENTITLED TO CONTINUE WITH THE SCHEME WHETHER RESPONDENT NO. 4 J.G. DEVELOPERS IS ENTITLED TO CONTINUE WITH THE REHABILITATION SCHEME:

77. The next issue is whether J.G. Developers is entitled to

any relief and can be permitted to continue with the

rehabilitation scheme. In this behalf, we may note that the

conduct of J.G. Developers is not above board. It is more

than obvious that when respondent no. 3-Society entered into

a development agreement with respondent no. 4, the

members were given a false hope and dream that the size of

their flats would go up.

78. Under the terms of this agreement, J.G. Developers

agreed to provide permanent alternative accommodation of

344 sq. ft./419 sq. ft. carpet area to the slum dwellers. J.G.

Developers also entered into individual agreements and under

these agreements, it agreed to provide 344 sq. ft./419 sq. ft.

carpet area to some residents. It is obvious that a false

promise was held out by J.G. Developers that the carpet area

72 of the flat would be increased from 269 sq. ft. to 344 sq.

ft./419 sq. ft.. Obviously, the slum dwellers, who had been

waiting for 23 long years for a flat admeasuring 269 sq. ft.

would happily accept the offer of a flat of 344/419 sq. ft..

79. From the communications addressed by the SRA, it is

obvious that J.G. Developers was legally not entitled to make

this offer. It is submitted by Shri Gopal Subramanium,

learned senior counsel that J.G. Developers was willing to

sacrifice its free sale area to give a larger flat. However, he

has failed to submit even one document to show that the SRA

had agreed to this proposal of the J.G. Developers. In fact,

the communication sent by SRA clearly shows that the

proposal was not accepted. It is, therefore, obvious that J.G.

Developers had hoodwinked the members of the Society in

entering into an agreement with it by holding out a false

promise that they would be given much larger flats. As such,

we are unable to accept the request of respondent no. 4- M/s.

J.G. Developers, to be permitted to continue with the project.

We may also note that the Society has terminated its 73 agreement with the J.G. Developers. We are not going into

the question whether this has been done rightly or wrongly,

but the fact is that the agreement stands terminated. We may

also note that in the voting conducted by Justice Srikrishna,

J.G. Developers failed to get the consent of 70% slum dwellers

and, in fact, it has got less than 1/2 of the votes, as compared

to Susme, and its support is even less than 30%.

80. It was urged before us that agreements once entered into

and the consent once given, cannot be withdrawn. We are

totally in agreement with the same. However, if the consent is

obtained by misrepresentation of facts, then that is no

consent. Now, when the position stands clarified that the

slum dwellers would get flats of 269 sq. ft. area only, J.G.

Developers has failed to get support of even 30% of the

slum dwellers.

81. In view of the above discussion, we are clearly of the

view that J.G. Developers is not entitled to continue with the

project and is not entitled to any relief.

74 LAW LAID DOWN BY THE BOMBAY HIGH COURT:

82. Our attention was drawn to various judgments of the

Bombay High Court that consent once given by the slum

dwellers should not be permitted to be withdrawn. It was also

brought to our notice that the Bombay High Court has

consistently held that voting inter se developers should not be

done. It has been the consistent view of the Bombay High

Court that in case voting is done, then this will lead to

developers trying to buy out the slum dwellers and then no

rehabilitation scheme would attain fruition. We totally agree

with the aforesaid views of the Bombay High Court. We must

remember that slum dwellers normally belong to the poorest

section of the society. They can be tempted to change their

mind. In the present case itself, the slum dwellers shifted

from Susme to J.G. Developers for two reasons – (i) Susme

had delayed the project and (ii) J.G. Developers made a

promise that it would give a flat of 344 sq. ft./419 sq. ft. area,

which promise was obviously a false promise. The view of the

Bombay High Court that consent once given should not be

75 permitted to be withdrawn, is absolutely the right view.

Otherwise, a person may give consent one day, withdraw it

the second day and review the consent the third day, leaving

the Scheme in a perpetual state of flux. For the aforesaid

reasons, we agree with the Bombay High Court that there

should be no inter se bidding between the builders. The

proper course is that the scheme of the developer who is the

first choice, should be placed before the slum dwellers and if

it gets 70% votes, then the Scheme can be considered, but if it

does not get 70% consent, then obviously, the second

developer can be considered. However, competitive bidding

should not be done because that can lead to a very unholy

practice of developers trying to buy out the slum dwellers,

which is also not in the interest of the rehabilitation scheme.

83. As far as the present case is concerned, this Court while

passing the order dated 27.03.2015, made a departure

because of the peculiar facts of this case. The present case

because of its own unique facts cannot be treated as a

76 precedent in other cases with regard to action taken in

this case.

CONCLUSION:

84. In view of the above discussion, we arrive at the

following conclusions:

1. That the order dated 27.03.2015 was passed in

exercise of jurisdiction vested in this Court under

Article 142 of the Constitution of India and is an order

binding on the parties;

2. That vide order dated 27.03.2015, this Court wanted

Justice B.N.Srikrishna to find out whether Susme or

J.G. Developers had the consent of 70% slum dwellers;

3. That, as a result of the Report submitted by Justice

B.N. Srikrishna, both Susme and J.G. Developers have

failed to show that they enjoyed support of the 70% of

the slum dwellers;

4. That, in the peculiar facts and circumstances of this

case, where the owners and occupiers are virtually

77 one, the SRA had the jurisdiction to invoke the

provisions of Section 13(2) of the Slum Act to revoke

and set aside the right to develop and cancel the letter

of intent granted in favour of Susme. Even if it be

assumed that Section 13(2) is not applicable, then the

SRA could have exercised this power under Section 3A

(3)(c) and (d) of Slum Act.

5. That the notice issued by the SRA to Susme was only

on the ground of delay and the issue of obtaining 70%

consent was not specifically raised in the notice.

Consequently, the order dated 24.02.2012 passed by

the SRA in so far as it rejects the case of Susme for

lack of 70% consent is beyond the terms of the notice.

Therefore, this part of the judgment of the Bombay

High Court, holding that Susme was aware about this

allegation, is not accepted and is set aside;

6. That, Susme was responsible for the delay in

implementation of the Scheme and construction of the

buildings and, therefore, the SRA was justified in

setting aside the appointment of Susme as developer

78 and impliedly cancelling the letter of intent issued in

its favour vide order dated 24.02.2012;

7. That, Susme has failed to show that it has the

consent/agreements of 70% of the slum dwellers even

today and, therefore, is not entitled to any relief from

this Court; and

8. That J.G. Developers obtained the consent of the

members of the Society by holding out a false promise

of a larger flat and, therefore, the agreements entered

into by J.G. Developers with the slum dwellers are

legally unconscionable and not enforceable and, as

such, J.G. Developers is also not entitled to continue

with the Scheme.

RELIEF:

85. This, as pointed out earlier, is a very unusual case. We

have held that both the contesting developers are not entitled

to any relief. It is our duty to ensure that these owners who

also happen to be slum dwellers do not live in sub-human

conditions for eternity.

79

86. We are not only disappointed with the conduct of

Susme, but also with the conduct of those persons who were

the office-bearers of the Society whichever faction they may

belong to. It is more than obvious that the two rival

developers and the office-bearers of the Society were playing

with the lives of large number of slum dwellers. We are not

going into this issue in detail but, if we were to carefully

examine the various agreements entered into by Susme with

the Society, we find that though the members may have been

entitled to larger flat in each subsequent agreement but, in

fact, it was the builder, who was the biggest gainer as the

advantage of higher FSI was cornered by the builder. Only a

small portion of this advantage was being transferred to the

slum dwellers and a large portion was being retained by the

builder. Another important aspect is that, in this case, it is

the occupiers who, through the Society, are also the owners of

the land. In our view, in addition to the flats which they

would be entitled to as slum dwellers or occupiers or

encroachers of land, they should have been given some

80 benefits as owners of the land. When a slum, owned by any

authority or person, is handed over to the developer, in

addition to rehabilitating the slum dwellers, the developer

also has to compensate the owner. We see no reason why, in

the present case, the slum dwellers, who are the owners,

should also not be given some adequate compensation for the

land which they own. It is these 800 plus slum dwellers, who

own this 23018.50 sq. mtrs. of land, which would be valuing

thousands of crores of rupees and, therefore, we see no

reason why the slum dwellers, who also happen to be the

owners of the land, should also not be compensated for the

price of the land.

87. This is a case where the earlier Bench of this Court had

invoked its power under Article 142 of the Constitution of

India and we also feel that it is a fit case for invocation of this

Court’s jurisdiction under Article 142 of the Constitution of

India. Hence, in exercise of this Court’s power under Article

142 of the Constitution of India, we issue the following

directions/orders for doing complete justice:

81

1. That the SRA shall within three weeks of the receipt of

this order, invite letters of interest from renowned

builders/developers, who have the capacity and

experience to take up such a large project by issuing

advertisements in not less than three newspapers

having wide circulation in Mumbai, one each in

English, Hindi and Marathi;

2. The advertisement may be brief but all necessary

details must be incorporated in the advertisement.

The details of the project including a copy of this

judgment should be made available on the website of

the SRA;

3. After the letters of interest are submitted, the SRA

shall consider which is the best offer and while

considering the best offer, it shall ensure that the

terms offered to the occupiers are in no manner

disadvantageous to them when compared to the last

offer made by Susme in regard to the area of flat

offered, the nature of construction and other facilities

available on the site. The SRA must, while evaluating

82 the proposals, take into consideration the past record

of the party/person expressing interest: it shall also

take into consideration the financial viability of such

party/person and, therefore, it may ask such

party/person to submit all the documents to support

their financial viability. In case of any doubt, the SRA

can move appropriate application before this Court;

4. The persons who express interest must be willing to

give an assurance that they will submit plans within

one month of the approval of their proposal and all the

concerned authorities must, within 15 days thereafter,

raise objections, if any, giving the successful bidder a

chance to remove the objections, if any, within one

month thereafter;

5. Thereafter, the concerned authorities should ensure

that the plans are approved and sanctions granted

latest within two months of the submission of the

original plans. The successful developer should

undertake to complete the rehabilitation of part of the

project to rehabilitate all eligible occupiers/slum

83 dwellers within a period of two years from the date of

sanction of the plan. The successful bidder must give

a bank guarantee of Rs. 200,00,00,000/- (Rupees Two

Hundred crores only) to ensure that it does not violate

the terms and conditions of the rehabilitation scheme.

In case of violation of the terms and conditions of the

rehabilitation scheme without reasonable cause, the

SRA will be entitled to invoke the bank guarantee,

after giving notice to the developer;

6. Keeping in view the fact that the slum dwellers are

also the owners, the developers may also indicate what

benefit they will give to the members of the Society

either in cash or in kind by means of giving additional

built up area out of their own free sale area to such

members of the Society;

7. The SRA shall monitor the progress of the Scheme to

ensure that it is completed within the time granted by

this Court;

84

8. No Court or authority shall pass any order which will

in any manner affect the implementation of the

directions/orders issued by us;

9. The Society, its members, the SRA and all concerned

will render complete assistance to the

builder/developer, who is awarded the project by the

SRA; and

10. That all pending litigation shall be disposed of in view

of the aforesaid orders passed by us and shall be

disposed of by the Court(s) accordingly.

88. We may also point out that vide order dated 12.10.2017

this Court directed that elections to respondent no. 3-Society

be conducted on or before 31.12.2017. These elections

were held on 17.12.2017 and a new Managing Committee was

constituted. This Managing Committee held its first meeting

on 31.12.2017 and has filed an affidavit on 03.01.2018

praying that the mandate recorded in the Report of Justice

B.N. Srikrishna be implemented. It has also referred to the

proposed amendment to the DCR whereby the requirement 85 for consent is being reduced from 70% to 50%. We have

taken this affidavit on record. It does not in any manner

affect the view which we have taken.

89. Pending application(s), if any, stand(s) disposed of.

90. The SRA to file status report by 31.03.2018. List on

09.04.2018.

..………………………J. (Madan B. Lokur)

..………………………J. (Deepak Gupta) New Delhi January 04, 2018

86