2010 Supreme(Bom) 420

High Court of Judicature at Bombay
MR. JUSTICE J.N. PATEL & THE HONOURABLE MR. JUSTICE A.P. BHANGALE
M/s. Om Shree Sai Developers
Versus
State of Maharashtra through the Secretary, Housing Department & Others
WRIT PETITION NO.130 OF 2010
Decided on: 17-03-2010

Headnote:Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971 - Sections 41 and 42 - Transfer of project - Challenged by petitioner - Contract to redevelop project awarded to petitioner in 1998 - Terminated in 2000 on alleged instance of respondent-3 - Awarded to respondent-4 - On complaint, SRA maintained termination legal - Appeal against dismissed by High Power Committee of Government of Maharashtra - Held - Petitioner alleged mala fide on part of respondent-2, SRA - Legal proceedings against mala fide actions not barred from jurisdiction of Civil Courts - High Power Committee rejected petitioner’s plea by a reasoned order - Impugned order of Slum Rehabilitation Authority (SRA) warrants no interference - Petition dismissed. - The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred as "the Slum Act") was enacted with a view to re-house, re-settle slum-dwellers in housing colonies to ensure health, safety, convenience of slum-dwellers and to provide them with basic necessities like water, sanitation, light by speedy and effective machinery. The Competent Authority under the Slum Act has statutory powers in the matter of declaring the area as slum area and to carry out improvements by approving undertakings; requiring occupants to vacate by offering alternate site or to remove them by use of reasonable force if so necessary; to allow any agency to execute work; maintenance of repairs, collecting services charges, etc. In Tulsiwadi Navnirman Co-operative Housing Society v. State of Maharashtra, reported in 2008 (1) Bom CR 1 (OS)(FB) : 2007 (6) Mah LJ 851 (FB). It appears clear that in disputes involving factual aspects necessitating oral and documentary evidence to be led, remedy by way of a suit in Competent Civil Court or arbitration may be resorted to resolve private or contractual disputes. Thus alternative remedy is required to be exhausted; as disputed facts can be decided on appreciation of evidence see ruling in G. Srinivas v. Government of A.P., reported in 2005 DGLS (soft) 433 : AIR 2005 SC 4455. Intervention by exercise of writ jurisdiction has to be minimum and exceptional; in a deserving case.

       The petitioner has alleged mala fides on the part of the respondent SRA and the society in the matter of termination of agreement to develop slum area; and choice of another developer to implement the SRS. Section 41 of the Slum Act protects the Competent Authority or any person acting under its authority from suits/legal proceedings if acts are done in good faith in accordance with the Slum Act and Rules made thereunder. It does by implication save suits; or legal proceedings instituted for mala fides acts. Under Section 42 of the Slum Act, the bar of jurisdiction of Civil Court is not absolute. As held in P.R. Murlidharan v. Swami Dharmananda Theertha Padar, reported in 2006 DGLS (soft) 148 : 2006 (4) SCC 501, jurisdiction of Civil Court is wide and plenary and writ cannot be a substitute for civil suit to adjudicate civil rights. The scope of judicial review is limited in cases involving property rights. The disputes which are purely private or contractual will have to be resolved by suit or arbitration, as permissible according to law. The learned counsel for the petitioner argued that the High Power Committee ought to have dealt with all questions of law by a detailed and reasoned order. He placed reliance upon Steel Authority of India Limited v. Sales Tax Officer, Rourkela I Circle, reported in 2008 DGLS (soft) 798 : 2008 (9) SCC 407. The learned counsel for the petitioner also placed reliance upon the ruling by this Court in M/s. Sigtia Constructions Pvt. Ltd. v. State of Maharashtra, 2010 (1) Bom CR 414 (OS) in original side Writ Petition No. 1036 of 2007 and connected writ petitions, delivered on 17.9.2009 whereby the matter was remitted back to SRA. In the present case, the petitioner had already approached the SRA as well as the High Power Committee constituted by the Government of Maharashtra and the case of the petitioner stood decided by reasoned orders. No useful purpose can be served by making the petitioner to approach same authorities again who have already passed reasoned orders. Therefore, to our mind, the rulings in Steel Authority of India Limited and M/s. Sigtia Constructions case (supra) are of no assistance to the petitioner. In our view, the jurisdiction of issuance of high prerogative writs can be exercised in limited and exceptionally deserving cases wherein the High Power Committee refused to issue direction for expeditious implementation of SRS. In our opinion, suit against the Competent Authority or persons acting under the authority doing acts in good faith is barred as the object of the Slum Act is to speedily implement the slum rehabilitation scheme and rehabilitate slum-dwellers in better alternative accommodation with basic amenities made available to them. No suit can be entertained which may stall/stultify the slum rehabilitation scheme or project. The provision in Section 42 of the Slum Act is not a blanket bar for institution of civil suits but prohibits Civil Court from entertaining such suits or granting injunction in suits in respect of action taken/to be taken in good faith in exercise of powers conferred under the Slum Act. It is to prevent any disgruntled, dissatisfied litigant who may, in order to harass the Authority i.e., Administrator, Competent Authority or Tribunal under the Act, resort to a long drawn out process of suit in Civil Court and stall the slum rehabilitation project; which has to be expeditiously implemented in larger interest of people. However, the remedy of civil suit is not barred to seek relief against mala fide commission or omission of acts which are not in good faith to resolve private or contractual disputes. The High Power Committee constituted by the State Government has limited role as mentioned by the Full Bench of this Court in Tulsiwadi’s case (supra) to speedily issue directions to resolve disputes under the Slum Act in respect of implementation of slum rehabilitation scheme.

       Considering the object and purpose of the "Slum Act", the slum rehabilitation scheme cannot remain at standstill status as it is required to be expeditiously implemented bearing in mind the intended welfare measures. The Competent Authority under the Slum Act is required to take early decision and issue directions to ensure smooth implementation of SRS by overcoming obstacles or hurdles. Disputed questions of facts, if involved, are at the best left to be revolved by alternative remedy i.e., for breach of contract monetary compensation, etc. The High Power Committee constituted by the State Government, which was approached by the petitioner, observed thus :

       "3. During the course of argument, the Advocate for the applicant has not brought cogent argument before this Committee as to how the order dated 4.3.2008 passed by the CEO, SRA is bad in law. Further the arguments advanced by the Advocate for the applicant are already concluded by order by Hon’ble High Court, Bombay, vide their order dated 29.2.2008 passed in Writ Petition No. 3207/2008 and this Committee is not above the order of Hon’ble High Court.

       4. Considering the arguments advanced by the concerned parties it seems that there is private dispute between the two developers and therefore the applicant is at liberty to approach proper Court of Law.’’

       Therefore, the petitioner is not left remediless. The petitioner can claim monetary compensation by approaching the Competent Civil Court for the alleged breach of contract.

       Bearing in mind the aforesaid settled principles in the facts and circumstances of the case, for the reasons stated above, do not find any exceptional or substantial ground to intervene in exercise of writ jurisdiction with orders sought to be impugned herein.