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2011 Supreme(Bom) 218
High Court of Judicature at Bombay
D.Y. CHANDRACHUD & ANOOP V. MOHTA
Shri Atesham Ahmed Khan & Others
Versus
M/s.Lakadawala Developers Pvt. Ltd. & Others
WRIT PETITION NO.1977 OF 2010
Decided on : 23-02-2011
For the Petitioners:Aspi Chinoy, Sr.Advocate with Z.A. Jariwala i/b. Thakore Jariwala & Asso., Advocates.
For the Respondents:R1, Rajiv Narula i/b. Thakore Jariwala & Associate, R2, S.G. Surana, R5 & R6, M. Sayed, AGP, R3 R4 & R7, G.D. Utangale i/b. Utangale & Co., Advocates.
The main legal point established in the judgment is the requirement for the first application in a slum rehabilitation scheme to be complete and fulfill the requirements of a valid application at the time of submission, including the fulfillment of the requisite consent of 70% of the slum dwellers. The judgment emphasized the exclusion of undesirable competition and the need for the first applicant to act bona fide and in compliance with the law.
Headnote:
Slum Rehabilitation Scheme - DCR 33(10) - [DCR 33(10)] - The court discussed the application of DCR 33(10) in the context of a slum rehabilitation scheme. It emphasized the importance of the first application being complete in all respects and fulfilling the requirements of a valid application on the date of its submission. The court highlighted the need for the application to indicate that the applicant fulfills the requirement of the requisite consent of 70% of the slum dwellers at the time of submission. It also emphasized that the application cannot be allowed to progressively make up a deficiency and block other applicants. The judgment of the Division Bench in Awdesh Tiwari was cited to support the exclusion of undesirable competition and the need for the first applicant to act bona fide and in compliance with the law.
Fact of the Case:
The case involved a dispute over a Slum Rehabilitation Scheme under DCR 33(10) of the Development Control Regulations. The First and Second Respondents submitted an application for sanctioning the scheme, claiming consent of 911 slum dwellers. The application was initially accepted, but subsequent scrutiny revealed discrepancies in the number of existing tenements and consents obtained, leading to rejection of the proposal by the Slum Rehabilitation Authority.
Finding of the Court:
The court found that the order of the Slum Rehabilitation Authority rejecting the proposal of the First and Second Respondents was passed in breach of the principles of natural justice, as they were not given an opportunity to explain their position. The High Power Committee set aside the Authority's decision and directed a fresh consideration after obtaining a report from the Competent Authority.
Issues: The key issues included the validity of the application submitted by the First and Second Respondents, the requirement of 70% consent of slum dwellers, and the procedural fairness in the decision-making process of the Slum Rehabilitation Authority.
Ratio Decidendi: The court emphasized the importance of the first application being complete and fulfilling the requirements of a valid application at the time of submission. It highlighted the need for the application to indicate the fulfillment of the requisite consent of 70% of the slum dwellers and the exclusion of undesirable competition among applicants.
Final Decision: The court confirmed the High Power Committee's decision to set aside the Slum Rehabilitation Authority's rejection of the proposal, but directed the Authority to verify the completeness of the application and the fulfillment of DCR 33(10) requirements. It also instructed the Competent Authority to complete the verification process and remit it back to the Slum Rehabilitation Authority.
(DR. D.Y. CHANDRACHUD, J.)
Rule; by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
2. The First and Second Petitioners are Chief Promoters of a proposed Cooperative Housing Society, representing slum dwellers of a plot of land bearing CTS 6/1 (part) at Mankhurd, Mumbai. The Third Petitioner is a developer. The First Respondent is also a developer appointed by the Second Respondent which is another proposed Cooperative Housing Society, representing the interest of the slum dwellers. The dispute in this case pertain to a Slum Rehabilitation Scheme under DCR 33(10) of the Development Control Regulations.
3. On15 June 2006, an application for sanctioning a slum rehabilitation scheme was submitted by the First and Second Respondents to the Slum Rehabilitation Authority. Annexure-I to the application provided that 1235 structures existed on the land in question. Together with the application, the First and Second Respondents annexed a slum plan and a development agreement showing a total of 1400 existing tenements. On the same day, the First and Second Respondents submitted an Architect’s certificate and a certificate of financial capacity both of which referred to the total number of slum structures as 1403. At that stage, the First and Second Respondents claimed that they had the consent of 911 slum dwellers. The application was accepted. On 17 June 2006, the application was sent for scrutiny by the Deputy Collector of the Slum Rehabilitation Authority to the Additional Collector (Encroachment and Removal) for scrutiny. The Additional Collector forwarded the application in turn to the Deputy Collector. The First and Second Respondents were called upon to produce documents and on 25 July 2006, the First and Second Respondents produced a compilation of documents including inter alia the voters’ list and location plan. On 26 September 2006, the First and Second Respondents produced the consents of 1000 slum dwellers out of a total of 1350 slum dwellers.
4. The Petitioners submitted the proposal to the Slum Rehabilitation Authority on 13 October 2006. On 26 October 2006, a complaint was submitted by the Petitioners to the Slum Rehabilitation Authority against the First and Second Respondents. On the same day, an order was passed by the Slum Rehabilitation Authority recording that out of 1403 slum dwellers, the First and Second Respondents had consents of only 864 slum dwellers. Since this represented 61.58% of the slum dwellers and was less than the required consent of 70%, the proposal of the First and Second Respondents was, it was observed, required to be recorded and rejected.
5. The First and Second Respondents thereupon submitted a representation to the State Government upon which the Government called for a report from the Slum Rehabilitation Authority. The Slum Rehabilitation Authority by its communication dated 25 January 2007, informed the State Government that upon receipt of the proposal of the First and Second Respondents, it was found after scrutiny that the Architect had shown a total number of 1235 existing tenements out of which 870 had signed a common consent which represented 70.50% of the slum dwellers. The Slum Rehabilitation Authority, however, noted that it was found from the slum plan and from the agreement submitted by the Architect that there were actually 1400 tenements and on this basis the First and Second Respondents had consents of 65%. This being less than the required 70% consents, the proposal was recorded and rejected. The Slum Rehabilitation Authority stated in its report that subsequently on 26 September 2006 the First and Second Respondents had submitted independent agreements of occupants representing 1000 out of 1350 tenements.
6. The First and Second Respondents moved the High Power Committee constituted by the State of Maharashtra in order to challenge the order passed by the Slum Rehabilitati
