2011 (6) All MR 221
High Court of Judicature at Bombay
HONOURABLE MRS. JUSTICE RANJANA DESAI & THE HONOURABLE MR. JUSTICE RANJIT MORE
Indira SRA Co-Operative Housing Society & Another
Versus
Shivkripa Builders & Developers a Partnership Firm & Others
APPEAL (LODGING) NO.286 OF 2011 IN WRIT PETITION NO. 2371 OF 2009 WITH APPEAL (LODGING) NO. 300 OF 2011 IN WRIT PETITION NO. 2371 OF 2009
Decided on : 22-08-2011
Constitution of India - Article 226-Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, Section 3(k) and 13(2)-Writ petition-Alternative remedy-Available to petitioner to approach High Power Committee- Alternate remedy, speedy, effective and efficacious-Exercise of writ jurisdiction by High Court in such cases to be slow-Petitioner, directed to approach High Power Committee.-The remedy to approach the High Power Committee was always open to the petitioner before approaching the single Judge of this High Court under Article 226 of the Constitution of India. Court has already observed that the said remedy is not only speedy but also effective and efficacious. The High Court in such cases should be slow in exercising jurisdiction under Article 226 of the Constitution of India. Despite objection of respondent Nos. 4 and 8, the High Court entertained the petitioner’s writ petition. As stated earlier, paragraph 84 of the impugned judgment and order deals with the objection of respondent Nos. 4 & 8 regarding alternative remedy. However, find that the single Judge has not given any reason to conclude that the High Power Committee is not an alternative remedy to the petitioner. In these circumstances, Court upholds the objection of respondent Nos. 4 & 8 and direct the petitioner to approach the High Power Committee constituted in pursuance of the Full Bench Judgment in Tulsiwadi’s case.
Civil Procedure Code, 1908 - Sections 96, 114 and 151 - Setting aside of judgment and order. - A judgment and order of Court, can be set aside/modified only in appeal or in a review or revision or Court passing order recalls it under its inherent powers.
Constitution of India - Article 141 - Precedent. Overruling of ratio of a decision in collateral proceedings by larger Bench of High Court or Supreme Court not amounts to setting aside conclusion of that decision.
Constitution of India - Articles 141 and 226 - Overruling of judgment. Overruling of a judgment by Court not has effect of setting aside orders.
Constitution of India - Article 226 - Maharashtra Slum Areas Act, 1971, Sections 3-K and 13(2) - Writ petition. Since petitioner has remedy, in matter of appointment of Developer for implementation of Slum Scheme, to approach High Power Committee hence writ petition in said matter not maintainable.
Civil Procedure Code, 1908 - Sections 96, 100, 114, 115 and 151- Constitution of India, Articles 141, 226 and 227-Judgment and order-Overruling and setting aside of-Distinction between-Overruling of judgment not have effect of setting aside order.-The judgment and order can be set aside/modified only in appeal or in a review or revision, or Court passing the order recalls it on sufficient cause being shown or in exercise of its inherent power, and or in special and rare cases, the order can be set aside on the ground of fraud in an independent proceeding filed specifically for the purpose of challenging the order. The observations also make it clear that overruling of the judgment does not have the effect of setting aside the order.
1. Respondent no.1-Shivkripa Builders & Developers, a partnership firm in both the above appeals is the petitioner in Writ Petition No. 2371 of 2009. The appellants in Appeal Nos. 286 of 2011 and 300 of 2011 are respondent no.4 and respondent no.8 respectively in the aforesaid writ petition. The appellants in the both the appeals are challenging a common order dated 15th April, 2011 passed by a learned Single Judge of this Court in Writ Petition No. 2371 of 2009 whereby the writ petition was allowed in terms of prayer clause (a), thereby setting aside the order impugned in the writ petition. For the sake of brevity and convenience hereinafter the parties are referred to by their respective nomenclature in Writ Petition No.2371 of 2009.
2. The brief facts giving rise to the present appeals are as follows:
Plot nos. 88 to 104 at Worli Scheme 58, admeasuring approximately about 42,955.22 sq. mtrs. is owned by MCGM and is occupied by slum dwellers. The slum dwellers since they had no basic amenities, formed a Co-operative Housing Society i.e. respondent no.4 and decided to redevelop the slum under DCR No. 33(10). Respondent No.4-Society had agreed to appoint petitioner as a Developer for implementation of the Slum Scheme and accordingly an agreement was entered into on 4th January, 1994. Consequently, joint proposal was submitted to the Slum Rehabilitation Authority (for short “SRA”) for approval of the Slum Scheme. On 18th November, 1997, the SRA principally approved respondent no.4’s scheme and letter of intent was issued on 31st December, 1999 in favour of respondent no.4 and the petitioner. Respondent No.7 objected to the sanctioning of the Slum Scheme on the ground that they are the owners of Plots bearing nos. 91 to 95 and 100 to 104 in the year 2000. Thereafter, the SRA called upon the petitioner to submit a revised plan for about 30,000 sq. mtrs. area after excluding disputed area admeasuring approximately about 12,000 sq. mtrs of respondent no.7. A Division Bench of this Court by an order dated 21st November, 2000 passed in Writ Petition No.6277 of 2000 restrained the petitioner from carrying out any development of Plot Nos.91 to 95 and 100 to 104 which were claimed by respondent no.7. The petitioner thereafter entered into second Development Agreement with respondent no.4 on 31st October, 2001 and thereby agreed to complete the project within reasonable time of five years on the receipt of commencement certificate of rehab proposed building or buildings and all the present occupants vacating the suit property and handing over vacant possession to the Developer after obtaining approval of regular building plan and I.O.A. from the SRA. It is the specific case of respondent no. 4 that the petitioner, despite the above agreement, neither started construction activities nor took any steps to implement the Slum Scheme or to submit the revised plan to the SRA on the “undisputed area”. Respondent No.4 in view of the complaints, passed resolution on 20th March, 2005 and thereby removed the petitioner as the Developer. Respondent No.4 in another annual General Body Meeting dated 13th August, 2007 appointed respondent no.8 as Developer for implementation of the Slum Scheme and a fresh Development Agreement was also entered into on 14th September, 2007. Respondent No.4 also made an application to the SRA for permission to appoint new developer. On 14th October, 2009, the SRA passed an order thereby the petitioner was removed as the Developer and appointment of respondent no.8 as a new Developer came to be approved. The petitioner thereafter filed above Writ Petition No.2371 of 2009 in this Court, and as stated above, this Court by the impugned order, set-aside the order of the SRA removing petitioner and appointing respondent no.8 as a Developer. This order as stated above is challenged by respondent no.4 and respondent no.8 by filing separate appeals.
3. Mr. Kamdar, learned senior counsel appearing on behalf of respond
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