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Judgment
S.J. Vazifdar, J.—Petitioner Nos. 2 and 3 are the Chief Promoter and office bearer of the first petitioner, a proposed society. Respondent Nos. 2 and 3 are the Chief Executive Officer (CEO), Slum Rehabilitation Authority (SRA) and Brihanmumbai Mahanagar Palika (BMC). Respondent 4 is another proposed society - Balkrishna Gavde SRA CHS. Respondent No. 5 and 5(a) are M/s. Skylark Buildcon Pvt. Ltd. and M/s. Vrunda Enterprises. Respondent Nos. 6 and 7 are the Additional Collector (Encroachment) and the Deputy Collector (Encroachment), respectively. Respondent No. 8 is M/s. Lokhandwala Infrastructure Pvt. Ltd. We will summarize the case and our judgment after setting out the reliefs claimed. The case pertains to a plot of land bearing C.S. No. 912 in Mumbai.
In substance, the petitioners seek to implement on C.S. No. 912, a slum rehabilitation scheme through their developer - respondent No. 8. To that end they seek certain orders in their favour and the cancellation of orders in favour of respondent No. 5/5(a), enabling them instead to implement a slum rehabilitation scheme on the same plot. The High Power Committee (HPC) having, by an order dated 6th March, 2010. rejected their application, they filed this Writ Petition seeking firstly a writ of certiorari quashing the same. The petitioners also seek in their favour (i) an order directing respondent No. 2 to consider their application dated 7th August, 2006, for implementing the slum rehabilitation scheme on C.S. No. 912; (ii) an order setting aside the decision rejecting the petitioners'' proposal dated 7th August, 2006; (iii) an order directing respondent Nos. 6 and 7 to consider their proposal dated 5th January, 2007. for the acquisition of plot No. 912; and (iv) an order directing the competent authority to process their proposal dated 7th March, 2007, for declaring C.S. No. 912 a slum u/s 4 of the Slums Act.
Correspondingly, the petitioners seek against respondent No. 5/5(a), (i) an order directing respondent No. 2 to reject the proposal of respondent No. 5 for amalgamation of C.S. No. 912 with their other plots; (ii)an order restraining respondent Nos. 1. 2 and 3 from giving effect to the Annexure-II issued by respondent No. 7 in favour of respondent No. 5/5(a); (iii) an order quashing a declaration dated 2nd February, 2009. declaring C.S. No. 912 a slum on the application of respondent No. 5 and (iv) an order quashing the letter of intent dated 31st December, 2010, issued in favour of respondent No. 5/5(a) for the redevelopment of C.S. No. 912.
We preface the summary of the case and our judgment by stating that we have proceeded on the basis that where a proposal is pending before the SRA, another proposal cannot be considered. One of the main questions in the present case is whether the petitioners'' proposal for the implementation of a slum rehabilitation scheme by respondent No. 8 was pending when the authorities considered and approved the proposals submitted by respondent No. 5 with respect to a similar scheme on the said plot.
We have answered the question in the negative, as the record establishes that the petitioners had themselves not merely abandoned but expressly withdrawn their proposal in respect of C.S. No. 912.
(A) Initially, the petitioners proposal dated 7th August, 2006 was in respect of various plots including the said plot bearing C.S. No. 912. For the reasons we will state later, the petitioners submitted a fresh proposal dated 22nd May, 2007, wherein they stated that they had "prepared a proposal by deleting the portion of private plot (i.e. C.S. No. 912) and prepared the scheme only on municipal land bearing C.S. Nos. 286(PT), 911, 2/911 and 2A/911...." Thus the petitioners deleted C.S. No. 912 and prepared a fresh scheme specifying the plot numbers which did not include C.S. No. 912.
(B) Consistent with this, the subsequent correspondence between the petitioners and the authorities was in respect of the plots other than C.S. No. 912. For instance by a letter dated 14th July, 2008 addressed to the SRA, the Architects of respondent No. 8, (developers appointed by the petitioners) stated that they had resubmitted their scheme "after deleting C.S. No. 912". Further, by a letter dated 12th January, 2009, addressed to the authorities, the petitioners stated that they had "on the request of the SRA amended the scheme by deleting the area of C.S. No. 912 even though we are having the full consent of more "than 70% of the slum dwellers of C.S. No. 912 on 22nd May, 2007."
(C) The respondents (other than respondent No. 8) thereafter justifiably proceeded on the basis that there was no proposal by the petitioners or respondent No. 8 for the development of C.S. No. 912. C.S. No. 912 was a privately owned plot which respondent No. 5 purchased on 10th May, 2008 i.e. after the petitioners had withdrawn their proposal in respect thereof. On 2nd February, 2009, C.S. No. 912 was, on the application of respondent No. 5, declared a slum. The petitioners'' challenge to the same was rejected by the order of the Slum Tribunal dated 14th July, 2009, The order has attained finality, as it has not been challenged now for almost four years. Respondent No. 5 has obtained an order of amalgamation of C.S. No. 912 with its other plots which are also being developed under a slum rehabilitation scheme. On 21st December, 2010, a letter of intent was issued in favour of respondent No. 5.
A suit filed by respondent No. 8 i.e. the developers appointed by the petitioners seeking, inter alia, to restrain the other respondents from taking steps for the implementation of the scheme by respondent No. 5 was dismissed on 28th April, 2009.
(D) The petitioners members will not be prejudiced in any manner, whatsoever for they will be entitled to permanent alternate accommodation in the scheme being implemented by respondent No. 5.
In the circumstances, the petitioners are not entitled to succeed either in law or in equity.
We proceed to deal with the facts in greater detail.
(A) The petitioners submitted a proposal dated 7th August, 2006, for the development of various plots of land, including the said land bearing C.S. No. 912 under a slum rehabilitation scheme.
On 5th January, 2007, the petitioners requested the Additional Collector to acquire CS No. 912. On 17th January, 2007, the request was rejected on the ground that the land was not declared a slum.
In April, 2007, the Deputy Collector informed the petitioners that their proposal for acquisition of C.S. No. 912 was defective and requested the petitioners to comply with the requirements stated therein.
(B) By a letter dated 22nd May, 2007, addressed to the CEO, (SRA), the petitioners'' Architects referred to the petitioners application dated 7th August, 2006 and stated inter alia as under:--
On further scrutiny by Sub Engineer, it was informed to us that we either obtain the NOC from the private owner of C.S. No. 912 or obtain the acquisition order of C.S. No. 912 or revise the scheme by deleting the portion of the private land (i.e. C.S. No. 912) and our proposal was not accepted at that time.
Then, we have prepared a proposal by deleting portion of private plot (C.S. No. 912) and prepared the scheme only on municipal land bearing C.S. Nos. 286(pt), 911,2/911 & 2A/911 of Lower Parel Division complying with all requirements as per the guideline circular No. SRA/Admin/06/668 dated 13/10/2006 and as per the check list of the documents required as detail in our letter No. 0603/LOI/SRA/I dated 11/05/2007.
(Emphasis supplied)
In conclusion, the Architect stated: "In the circumstances, we are forwarding this proposal by registered A.D. comprising of -...." Admittedly, the proposal that followed was not in respect of C.S. No. 912. It was in respect of other plots which were also the subject matter of the original proposal dated 7th August, 2006.
The letter dated 22nd May, 2007, is of vital importance for it indicates three things. Firstly, that the petitioners were informed earlier that they could either obtain the NOC of the private owners of C.S. No. 912 or obtain the acquisition thereof or "revise the scheme by deleting the portion of the private land". Secondly, the petitioners admitted by the letter that their proposal was not accepted at that time. The reference to the proposal is obviously to the proposal dated 7th August, 2006. Thirdly, it is obvious that in view of the above information, the petitioners decided to submit a fresh proposal "only on Municipal land" which did not include C.S. No. 912.
Thus, with effect from 22nd May, 2007, the petitioners expressly abandoned/withdrew the proposal of 7th August, 2006 insofar as C.S. No. 912 was concerned and submitted a fresh proposal deleting CS No. 912. The doubt, if any, is set at rest by the concluding paragraph quoted above. As of 22nd May, 2007, the only proposal was in respect of various plots, other than C.S. No. 912.
This is virtually established by the facts that transpired and the correspondence that ensued thereafter especially by the letters dated 14th July, 2008, 19th July, 2008 and 12th January, 2009. which we will refer to along with the other intervening facts, chronologically.
A notice dated 13th June, 2007, was served on Century, the original owners of C.S. No. 912. calling upon them to show cause why the plot ought nut to be declared a slum u/s 4 of the Slum Act,
Mr. Chinoy, the learned senior counsel appearing on behalf of the petitioners relied upon the fact that on 14th September, 2007, the authorities took steps towards declaring C.S. No. 912a slum. Even assuming they did so, it would make no difference to the petitioners'' case. On the other hand, by a letter dated 22nd October, 2007, the Additional Collector enquired of the Assistant Commissioner as to why photo passes were issued and rent was collected in spite of C.S. No. 912 being privately owned.
By a deed of conveyance dated 10th May, 2008, respondent No. 5 Skylark Buildcom purchased C.S. No. 912 from Century. The conveyance was registered on 11th May, 2009.
Respondent No. 8 - Lokhandwala Infrastructure Pvt. Ltd. had been appointed as the developer by the petitioners for the purpose of implementing, if sanctioned, the proposal dated 7th August, 2006. Respondent No. 8, by a letter dated 14th July, 2008, addressed to respondent No. 2 - CEO, (SRA), stated that their proposal dated 7th August, 2006, had not been rejected. It is important to note paragraphs 7, 8 and 9 of this letter which read as under:
Our Architect re-submitted the scheme after deleting C.S. No. 912 with the condition that the portion of the land bearing C.S. No. 912 will be added to the scheme as and when the acquisition procedure by following due process of law is completed.
Meanwhile, as per the directives of the Govt. of Maharashtra, the proposal on the land belonging to local bodies was not accepted by the SRA. However, as our proposal was complete in all respect, the proposal was forwarded to SRA by Regd. A.D. on 22/05/2007.
The SRA did not act on this proposal and kept in the office without accepting or rejecting the same.
(Emphasis supplied)
(B) Thus, even the developers appointed by the petitioners admitted that by the letter dated 22nd May, 2007, the petitioners had resubmitted a scheme "after deleting C.S. No. 192". That it was subject to the condition that C.S. No. 912 would be added to the scheme as and when the acquisition procedure was completed would make no difference. Admittedly, C.S. No. 912 has not been acquired. The petitioners are not entitled to compel the authorities to acquire C.S. No. 912. It is a private plot of land. In any event, admittedly, there was no proposal at the relevant time in respect of C.S. No. 912. Even assuming that the proposal contained in the letter dated 22nd May, 2007, was pending, it would not prevent the authorities from considering any other proposal in respect of C.S. No. 912 as the proposal contained in the letter dated 22nd May, 2007, was not in respect of C.S. No. 912.
That the petitioners had abandoned the proposal dated 7th August, 2006, at least insofar as C.S. No. 912 is concerned and had confined the fresh proposal contained in the letter dated 22nd May, 2007, to plots other than C.S. No. 912 is further established by a letter dated 19th July, 2008, addressed by the SRA to the petitioners Architects. The letter called for certain information in respect of the plots of land specified therein. C.S. No. 912 was not one of the plots mentioned in the letter. The letter is with reference to the petitioners letter dated 19th April, 2008, which unfortunately is not on record. It would have thrown further light on this aspect.
By a letter dated 7th August, 2008, the SRA informed the petitioners'' Architects that their proposal contained in the letter dated 22nd May, 2007, was not accepted for the reasons stated therein. Mr. Chinoy relied upon sub-para (3) of the letter which reads as under:--
(3) Also, it is seen that the part of the scheme plot is affected by D.R. Recreation Ground reservation. As such, development on this plot is not permissible in view of stay from Hon''ble High Court, Mumbai in W.P. No. 1152/2002 filed by City Space.
Mr. Chinoy submitted that the first sentence was with reference to C.S. No. 912 as it refers to a D.P. Recreation Ground reservation. This reservation, he staled, was only in respect of C.S. No. 912 and not in respect of the other plots of land.
We do not find the reliance upon this solitary sentence to be of any assistance to the petitioners. Firstly, as Mr. Samdani, the learned senior counsel appearing on behalf of respondent Nos. 5 and 5(a) pointed out the other plots of land in respect whereof the petitioners had submitted a proposal, also contained a D.P. Recreation Ground reservation. He relied upon a letter dated 29th February, 2008, addressed by the BMC which dealt with the other plots of land in respect whereof it was stated that the entire plot was partly reserved for a D.P. road "and part reserved for RG as per development plan". This letter was not in respect of C.S. No. 912, but was in respect of the other plots proposed to be developed by the petitioners.
Secondly even assuming that there was no reservation for RG recreation in respect of the other plots of land, it would make no difference. Merely because the authorities in a solitary letter wrongly referred to C.S. No. 912 it would make no difference in view of what had transpired earlier. The proposal having been abandoned, a stray reference in a letter without considering what had transpired earlier cannot alter a situation that has arisen on a point of fact with legal consequences.
The petitioners and or their developers respondent No. 8 having allegedly obtained the consent of 70% of the slum dwellers on C.S. No. 912 thereafter in December, 2008, is of no effect whatsoever in view of the fact that there was no proposal by the petitioners pending before the authorities for the redevelopment of C.S. No. 912.
That on 5th January, 2009, the petitioners made a proposal to amalgamate C.S. No. 912 with the adjoining plots of land, also owned by it, and to declare the same as a slum also makes no difference. Firstly, it was not granted. Secondly, the same does not have the effect of a proposal for development of C.S. No. 912 under the SRA scheme being on the record/file of the SRA disentitling another from submitting a scheme under DCR 33(10).
By a letter dated 12th January, 2009. addressed to the Executive Engineer, SRA, the petitioners expressly stated that they had "on the request of the SRA amended the scheme by deleting the area of C.S. No. 912 even though we are having the full consent of more than 70% of the slum dwellers of C.S. No. 912 on 22nd May, 2007." The letter further goes on to state that the authorities had sought certain documents which were furnished and that the petitioners were informed that their scheme "could not be accepted at this stage because of D.P. Reservation." The admission clearly establishes that the petitioners were themselves conscious of the fact that there was no proposal in respect of C.S. No. 912.
The petitioners also stated that theirs was the first scheme to be submitted, including in respect of C.S. No. 912 and that the same was on the record of the SRA. That, however, must be read with the petitioners admission that they thereafter amended the same by deleting C.S. No. 912. The grievance expressed in the letter about the new developers viz. respondent No. 5 having submitted a proposal is, therefore, unfounded. It is important to note that in the letter, the petitioners yet again expressly stated that the authorities had informed them that their scheme "was not accepted by you because of the technical ground of the reservation. However, there is no objection regarding the society''s resolution and their consents." The petitioners were, therefore, aware of the fact that their scheme was not accepted.
The contention that the scheme was not formally recorded/filed/rejected is entirely unfounded. The petitioners have time and again admitted that they amended the original proposal by deleting C.S. No. 912 and they also expressly admitted more than once that the authorities had informed them that their scheme was not acceptable. Nothing more was required to record/file/reject the scheme. There was, therefore, no scheme on the records of the SRA when respondent No. 5 submitted its proposal. The authorities were not only entitled but were bound, therefore, to consider the scheme proposed by respondent No. 5 which they did.
(A) On 14th January, 2009, respondent No. 5 filed with respondent No. 2. the copies of the consents of the members of respondent No. 4 - Bulkrishna Gavde SRA CHS (Proposed), the General Body Resolution of respondent No. 4 and the copies of the individual agreements of the members of respondent No. 4.
(B) By a letter dated 15th January, 2009, addressed to respondent No. 2, respondent No. 5 requested that C.S. No. 912 be declared a slum rehabilitation area u/s 3(C) of the Slum Act. On 18th January, 2009, articles were published at the instance of respondent Nos. 4 and 5 inviting objections in respect thereof. Further steps were taken in that regard by the authorities.
(C) Ultimately, on 2nd February, 2009, respondent No. 2 declared C.S. No. 912 as a slum u/s 3(C) of the Slum Act. On 3rd February, 2009, a Notification was published in the Gazette in respect of the said declaration.
(D) As we noted earlier, respondent No. 5 was the owner of the plots adjoining C.S. No. 912 and by the registered conveyance dated 10th May, 2008, respondent No. 5 purchased C.S. No. 912.
(E) The petitioners through their office bearers filed Appeal No. 6 of 2009 before the Slum Tribunal, challenging the declaration of C.S. No. 912 of 2009 as a scheme. The Appeal was dismissed by an order dated 14th July, 2009. This order has attained finality as it has not been challenged.
With this, all the procedural formalities required for the implementation of the scheme proposed by respondent No. 5 were complete.
It is important to note that respondent No. 8 i.e. the developers appointed by the petitioners. who support the petitioners, filed Suit No. 1933 of 2009 against the slum dwellers of C.S. No. 912 and respondent Nos. 4 and 5 seeking an injunction against the slum dwellers restraining them from executing new agreements with any other developer. The learned Judge of the Bombay City Civil Court by a detailed order and judgment dated 15th December, 2012, dismissed the Suit.
(A) This brings us to the petitioners Application No. 1017 of 2009 filed by the petitioners through their office bearers against respondent No. 2. BMC and respondent Nos. 4 to 8 before the HPC. By the said application the petitioners, inter alia, sought an order directing the authorities to process and sanction their proposal dated 7th August, 2006, including in respect of C.S. No. 912, rejecting the application of respondent Nos. 4 and 5 for amalgamating C.S. No. 912 with their adjoining plots and an order rejecting the proposal by respondent Nos. 4 and 5 for development of the property pursuant to the said amalgamation.
(B) The HPC. by the impugned order dated 6th March, 2010, rejected the appeal.
Thereafter, respondent No. 7 i.e. the Deputy Collector (Encroachments) issued Annexure-II in favour of respondent Nos. 4 and 5. inter alia, in respect of C.S. No. 912. On 21st December, 2010. respondent No. 2 issued a revised letter of intent which also sanctioned the amalgamation of C.S. No. 912 with the other slum schemes of respondent No. 5.
Even assuming that there are certain inaccuracies in the order of the HPC, it would make no difference. In fact, one of these errors is in favour of the petitioners. The order states that the petitioners'' Architects had submitted a proposal also in respect of C.S. No. 912 by the said letter dated 22nd May, 2007. Admittedly, the petitioners, by the said letter had expressly deleted C.S. No. 912 from the amended proposal. Indeed, it is the respondents who would legitimately have a grievance against this error.
Mr. Chinoy also drew our attention to the order insofar as it records that the applicants had not submitted any proposal in respect of C.S. No. 912 and that, therefore, there was no question of issuing any direction and/or order by the authorities to grant permission/sanction in favour of the applicants. He submitted that admittedly the petitioners'' original proposal dated 7th August, 2006, included C.S. No. 912. The observation ought not to be read in isolation. The order must be read as a whole. It is obvious that the observation takes into account the fact that the original proposal dated 7th August, 2006, was abandoned insofar as C.S. No. 912 is concerned and that the fresh proposal dated 22nd May, 2007, deleted the reference to C.S. No. 912. It is in this context that the HPC rightly observed that the applicant had not submitted any proposal on C.S. No. 912.
In conclusion, we reiterate that when respondent No. 5 submitted its proposal there was no other proposal from the petitioners or any other party for implementing a slum rehabilitation scheme in respect of C.S. No. 912. The petitioners original Application dated 7th August, 2006, which was also in respect of C.S. No. 912 was amended by the fresh/revised proposal dated 22nd May, 2007, which expressly deleted C.S. No. 912 therefrom. In the circumstances, the Writ Petition is dismissed. The statement recorded in the interim order dated 21st May, 2010, to the effect that respondent No. 5 will not act upon the letter of intent is continued up to and including 15th April, 2013, to enable the petitioners to challenge this order.