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2024 Supreme(Online)(Bom) 5668
HIGH COURT OF BOMBAY
MADHAV J. JAMDAR, J
ATLANTIC CONSTRUCTION CO. – Appellant
Versus
STATE OF MAHARASHTRA THROUGH GOVERNMENT PLEADER – Respondent
IAL/22547/2024
The requirement of obtaining consent from at least 51% of eligible slum dwellers for developer appointment is mandatory and must be strictly adhered to.
Headnote:(A) Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 - Section 13(2) - Development Control And Promotion Regulation 2034 - Clause 1.15 - Writ Petition challenging orders of AGRC and CEO, SRA regarding developer appointment - The AGRC upheld the CEO's order terminating the developer's appointment due to lack of formal acceptance of the scheme and insufficient consent from eligible slum dwellers - The Petitioner failed to secure the mandatory 51% consent required for developer appointment. (Paras 1, 5, 14, 32)
(B) Legal Principles - The requirement of 51% consent from eligible slum dwellers for developer appointment is mandatory and must be strictly complied with - The absence of such consent invalidates the appointment of the developer. (Paras 17, 23)
Facts of the case:
The Petitioner challenged the AGRC's decision upholding the CEO's termination of the previous developer's appointment, asserting that they had obtained necessary approvals and consents from slum dwellers, which was disputed by the Respondents. (Paras 1, 8, 11)
Findings of Court:
The Court found that the Petitioner did not meet the mandatory requirement of obtaining consent from at least 51% of eligible slum dwellers, leading to the dismissal of the Writ Petition. (Paras 32)
Issues: Whether the Petitioner was validly appointed as a developer and whether the impugned orders violated principles of natural justice. (Paras 14)
Ratio Decidendi: The Court ruled that the requirement for 51% consent is mandatory, and the absence of such consent invalidates the developer's appointment, affirming the AGRC's decision. (Paras 23, 32)
Result: Writ Petition dismissed.
JUDGMENT:
1. By the present Writ Petition filed under Article 226 of the Constitution of India, the Petitioner is challenging the legality and validity of the order dated 1st July 2024 passed by the Apex Grievance Redressal Committee (“AGRC”) in Application No.25 of 2024 (Exhibit-O, Pages 150 to 173) as well as the order dated 5th February 2024 passed by the Chief Executive Officer, Slum Rehabilitation Authority (“CEO, SRA”) passed in File No.SRA/Ch E/288/KW/MHL/LOI (Exhibit- L, Pages 87 to 97).
2. The impugned order dated 5th February 2024 has been passed by the CEO, SRA in Suo Motu proceedings under Section 13 (2) of the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 (“Slum Act”). The operative part of the said order dated 5th February 2024 reads as under:-
ORDER
1. The appointment of Respondent No.2 i.e. M/s. Dynamic Civil Developers Pvt. Ltd. (Sunderwadi) is hereby terminated as Developer of S.R. Scheme on land bearing CTS No.1103 (pt) of Village – Versova, Andheri (West) for “Sahyog Kalpana CHS”.
2. The Respondent No.1 society i.e. Sahyog Kalpana CHS is at liberty to appoint new developer by passing fresh General Body Resolution in presence of authorized officer of Slum Rehabilitation Authority in accordance with circular no.169 of Slum Rehabilitation Authority.
3. The new incoming developer to reimburse the actual expenses incurred by Respondent No.2 as per provisions of section 13(3) of the Maharashtra Slum Areas (I, C & R) Act, 1971.
4. The newly appointed developer to comply with the provisions of circular no.210 of Slum Rehabilitation Authority.”
(Emphasis supplied)
3. The said order dated 5th February 2024 of the CEO, SRA has been challenged by Respondent No.5 – Dynamic Civil Developers Pvt. Ltd. before AGRC by filing Application No.39 of 2024.
4. The Clause No.2 of the said order dated 5th February 2024 giving liberty to the Respondent No.4 – Sahyog Kalpana CHS to appoint new developer by passing fresh general resolution is challenged by the present Petitioner – M/s Atlantic Construction Co. by filing Application No.39 of 2024 before the AGRC.
5. By the impugned order dated 1st July 2024 passed by the AGRC, impugned order passed by the CEO, SRA dated 5th February 2023 has been upheld and Applications filed by both, the Petitioner and the Respondent No.5 have been dismissed.
6. At this stage only it is required to be noted that only Petitioner - M/s. Atlantic Construction Co. has challenged the order passed by the AGRC. The said order is not challenged by the Respondent No.5 – Dynamic Civil Developments Pvt. Ltd.
7. The AGRC while dismissing the Application/Appeal filed by the Petitioner has held as follows:-
“81. Now taking up the appeal of Atlantic Construction Co., one has to start assessing this locus standi. Atlantic Construction Co. states that they have got the GBR support and 5 NOCs. But the documents show that Atlantic Construction Co. have not got any acceptance letter from SRA nor any confirmation on the Scheme. Does obtaining NOCs give any formal approval to the proposed Developer? The answer is no. Atlantic Construction Co. has paid scrutiny fees and deposited amount for rent, but there is no formal acceptance by SRA. In the absence of any documentation of acceptance of scheme, Atlantic Construction Co. does not have any established rights in the scheme. The selection of Developer by GBR was not confirmed by SRA. The Hon’ble High Court order in Nippun Thakkar case cancelled the CEO’s order of 20.04.2022. Hence, the CEO/SRA conducted fresh hearing in February, March of 2023 terminating appointment of M/s. Dynamic Civil Developers Pvt. Ltd. and directed for fresh GBR.
82. There is nothing perverse in the order and it is a step in the right direction. Afresh GBR will instill confidence and clear all hanging doubts over the selection of a Developer. It is for the Society to ensure that they select right Developer and for SRA to monitor the speedy execution of the project.”
(Emphasis suppli
