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Judgment
Sandeep V. Marne J
1) Petitioner-Society has challenged Order dated 4 October 2023 passed by Apex Grievance Redressal Committee (AGRC) by which the Order passed by Chief Executive Officer of Slum Rehabilitation Authority passed under Section 13 (2) of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Slum Act) is set aside and the application filed by the Petitioner-Society is remanded to the CEO/SRA for fresh hearing on merits. By Order dated 14 September 2021, the CEO/SRA had allowed application filed by Petitioner-Society under Section 13 (2) of Slum Act by terminating the appointment of M/s. Raviraj Construction (Respondent No.4) as developer of the Slum Rehabilitation Scheme (SRS) granting liberty to the Petitioner-Society to appoint a new developer of its choice. Petitioner-Society is aggrieved by the Order passed by AGRC by which termination of Respondent No.4-Developer is set aside and the right conferred on Petitioner-Society to appoint new developer of its choice is withdrawn. The Petitioner-Society is desirous of implementing the SRS through Respondent No.5-Developer and is accordingly aggrieved by AGRC’s decision remanding the proceedings to CEO/SRA.
2) Briefly stated, facts of the case are that a Notification was issued by the State Government in the year 1997 under provisions of Section 4 of the Slum Act classifying the subject plot as 'Slum Areas'. Respondent No.4-Raviraj Construction, a proprietary concern of Mr. Krishna Salvi, procured consent of 67 hutment dwellers occupying the subject plot to carry out re-development thereof. The said 67 hutment dwellers formed a proposed cooperative housing society for implementation of SRS. On 8 February 1998, a Development Agreement was executed between Petitioner-Society and Respondent No.4. The Additional Collector-SRA issued Annexure II, under which 38 slum dwellers were declared eligible and remaining 29 were declared ineligible. Letter of intent (LOI) and Intimation of Approval (IOA) were issued by SRA on 11 February 2000. Respondent No.4 started constructing rehab component buildings. It appears that a commencement certificate was subsequently issued by SRA on 19 September 2005 upon imposition of penalty for commencement of construction in absence of development permission.
3) It is the case of Petitioner that wings ‘A’ and ‘B’ of rehab component of building were partially constructed by Respondent No.4, who failed to complete the entire construction in respect of the building nor obtained occupancy certificate. That on account of heavy rainfall of the year 2006, the members of Petitioner-Society began residing in incomplete rehab buildings in wings ‘A’ and ‘B’. Petitioner-Society came to be registered in the year 2007 under the provisions of Maharashtra Cooperative Housing Societies Act 1960. It is Petitioner's case that between 2006 to 2011, several requests were made by Petitioner for completion of the building to Respondent No.4. Reference is made to letter dated 2 November addressed by Petitioner.
4) It is Petitioner's contention that Respondent No.4 was neither interested nor financially capable of completing the project and addressed letter dated 25 May 2011 to the Society about release of development rights by him in favour of Mr. Zaheer Shaikh, proprietor of M/s. Zaheer Shaikh and Associates. On 10 August 2011, a Release Deed was executed by Respondent No.4 in favour of Mr. Zaheer Shaikh, under which, according to the Petitioner, Respondent No.4 transferred right to develop the subject plot to Mr. Zaheer Shaikh. That a letter was addressed by Respondent No.4 intimating the Deputy Registrar SRA on 11 May 2012 that he was unable to complete the project and had released development rights to Mr. Zaheer Shaikh. It is Petitioner's case that process was undertaken for replacement of the developer on account of inability expressed by Respondent No.4 and reference in this regard is made to letter dated 31 July 2012 addressed by Deputy Registrar SRA for convening meeting to take call on the further decision to be taken for implementation of SRS.
5) On 22 February 2014, Mr. Krishna Salvi, proprietor of Respondent No.4 passed away. Petitioner-Society alleges mortgage and sale of flats, lands by heirs of Late Krishna Salvi as well as by Mr. Zaheer Shaikh, leading to filing of police complaints and chargesheet. In the meantime, administrator came to be appointed for the Petitioner-Society. Supplementary Annexure II was issued from time to time during the years 2018 and 2019, under which 23 out of the remaining 29 slum dwellers were declared eligible.
6) In the above background, Petitioner filed complaint with CEO/SRA for initiation of proceedings under Section 13(2) of Slum Act on account of death of Shri. Krishna Salvi. In the meantime Mr. Zaheer Shaikh passed away on 31 October 2019.
7) CEO/SRA passed Interim Order dated 11 September 2020 directing Respondent No.4 to complete the balance rehab work and to apply for OC within one month failing which, action for change of developer was to be initiated. CEO/SRA thereafter passed Order dated 24 December 2020 under Section 13(2) of Slum Act directing the heirs of Krishna Salvi i.e. Respondent Nos. 4(a) to 4(c) to complete pending rehab work within three months and to obtain occupancy certificate in respect thereof.
8) It is Petitioner's case that Respondent No. 4 violated the Order dated 24 December 2020 passed by CEO/SRA and failed to complete the balance work in rehab building nor obtained occupancy certificate. Petitioner-Society therefore complained to CEO/SRA on 24 March 2021 and 16 July 2021 seeking termination of appointment of Respondent No.4 under Section 13(2) of the Slum Act. The CEO/SRA thereafter passed Order dated 14 September 2021 terminating the appointment of Respondent No.4 and granting liberty to the Petitioner-Society to appoint a new developer of its choice for completion of subject SRS. The Executive Engineer was directed to appoint a government valuer to assess the expenditure made by Respondent No.4 with a further direction that the newly appointed developer shall reimburse the actual expenses incurred by Respondent No.4 in respect of the subject SRS scheme.
9) Respondent No.4 filed Appeal before AGRC challenging the Order dated 14 September 2021. In the meantime, Petitioner-Society adopted a resolution in meeting held on 10 October 2021 for appointment of Respondent No.5 as the new developer. The Cooperative Department of SRA confirmed the appointment of Respondent No.5 by addressing letter dated 12 October 2021 to Executive Engineer. It is Petitioner's case that interim relief was rejected by AGRC in Appeal filed by Respondent No.4 and in the meantime several steps were taken by Respondent No.5 by obtaining fresh LOI and IOA for rehab building as well as for sale buildings on 8 July 2022 and 22 September 2022 respectively. Respondent No. 5 also applied for issuance of part occupancy certificate for rehab building to the executive engineer of SRA. However on 4 October 2023 AGRC passed order in appeal filed by Respondent No. 4 and allowed the same by setting aside CEO/SRA's Order dated 14 September 2021 and remanding Petitioner's Application for fresh hearing. Aggrieved by the AGRC's Order, Petitioner-Society has filed a present Petition. On 7 December 2023 this Court restrained the Respondent No.5 from taking any steps in respect of the CC/LOI issued by SRA.
10) Mr. Jagtiani, the learned senior advocate appearing for Petitioner-Society would submit that the AGRC has erred in reversing well reasoned Order passed by CEO/SRA, without even considering or commenting upon findings recorded by him. That AGRC has not come to a conclusion that there is any infirmity or illegality in the Order of CEO/SRA, warranting AGRC's interference therein. That the Order passed by AGRC is not just unreasoned, but appears to have been passed in exercise of equitable jurisdiction, which it lacks. That AGRC did not even consider the report of the Executive Engineer, which clearly stated that several works in respect of rehab building are incomplete. That despite grant of indulgence twice by CEO/SRA on 11 September 2020 and 24 December 2020, Respondent No.4 failed to complete the work in respect of rehab buildings and to procure occupancy certificate. That there was nine month long gap between the earlier Order of CEO dated 24 December 2020 and the final Order dated 14 September 2021, during which Respondent No.4 failed to take steps for procurement of occupancy certificate. That AGRC has attempted to oversimplify the issue by passing general order of remand without recording any reason as to why CEO/SRA's Order suffered from any error. That CEO's Order is not set aside on merits.
11) Mr. Jagtiani would further submit that the original developer has passed away and that Respondent No.4(a) to 4(c) are the heirs, who do not have any right in law to execute the project. That members of Petitioner-Society are made to reside in incomplete building for the last 19 long years. That the original developer has already withdrawn from the project by writing letters to that effect both to Petitioner as well as to SRA and has also executed Release Deed. That his heirs cannot claim any right in the project when their father expressly withdrew from the project. That therefore CEO/SRA had correctly directed replacement of the developer in the light of disinterest and incapability expressed by late Krishna Salvi in the year 2011 itself. That the heirs did not take any steps after Krishna Salvi's death to complete the project and therefore they could not have challenged CEO/SRA's order before AGRC. That the heirs of late Krishna Salvi have committed brazen acts of selling flats not just in rehab building but also in sale component building contrary to the statutory provisions. That the members of Petitioner-Society have waited enough for Respondent No.4/his heirs to complete the project and they do not wish to wait any further. Without prejudice, Mr. Jagtiani would submit that the order of AGRC would mean complete remand for fresh decision of Petitioner's Application under section 13(2) without recognising or reinstating Respondent Nos.4(a) to 4(c) as developers. That therefore in the event of this Court not interfering in AGRC's Order, the Order of remand be clarified to mean that it is a wholesome and open remand without reinstatement of Respondent Nos.4(a) to 4(c).
12) Mr. Khandeparkar, the learned counsel appearing for Respondent No.5-Developer would support the Petition. He would submit that the original developer (Krishna Salvi) has traded the SRS to another developer, which is apparent from his letter dated 25 May 2011, Release Deed dated 10 August 2011 and letter dated 11 May 2012. That such trading is impermissible qua rehab building and therefore this is a fit ground for ouster of heirs of Respondent No.4. That the LOI was issued in the name of Late Krishna Salvi, who is no longer alive. That the LOI issued to Late Krishna Salvi was in the nature of a mere licence and that no right, title, interest was granted in his favour by issuance of LOI. That the licence issued in favour of late Krishna Salvi abated upon his death and this is not something which can be inherited by his heirs. That the SRS is being implemented by land owned by State Government and this is not a private arrangement of grant of development right and therefore no inheritable right is created in favour of the heirs of late Krishna Salvi. In support of his contentions, he would rely upon judgments in S.A. Enterprise Vs. The General Manager, Eastern Railway & Ors. 2017 SCC OnLine Cal 16988, Housing Development and Infrastructure Limited Vs. Mumbai International Airport Private Limited 2013 SCC OnLine Bom 1513 and M/s. Shanta Sharma Vs. Union of India and Ors. 2012 SCC OnLine J&K 351. In support of his contention that Slum Scheme is different than private development arrangement, Mr. Khandeparkar would rely upon judgment of this Court in Lokhandwala Infrastructure Pvt. Ltd. and another Vs. State of Maharashtra and others (2011)3 Mh.L.J. 469.
13) Mr. Khandeparkar would further submit that the heirs of Respondent No.4 therefore do not have semblance of right to continue in SRS and Respondent No.5-Developer chosen by members of Petitioner-Society must be permitted to execute the project. That Respondent No.5 have taken steps in pursuance of its appointment and has procured LOI and IOA for rehab building on 8 July 2022 and fresh IOA for sale competent building on 22 September 2022. That he applied for issuance of part OC for rehab competent building. That interim relief sought by Respondent No.4 was rejected by AGRC on account of appointment of Respondent No.5 as well as further steps were undertaken in the project by Respondent No.4. He would rely upon chart annexed at reply by Respondent No.5 to demonstrate flats sold by Respondent Nos. 4(a) and 4(b) as well as by Zaheer Shaikh. Mr. Khandeparkar would therefore pray for setting aside the Order passed by AGRC.
14) Per contra, Mr. Balsara the learned counsel appearing for Respondent Nos.4(a) to 4(c) would oppose the Petition submitting that Petition filed by the society is without authority as the same is not filed through the administrator appointed for the society. Without prejudice, he would submit that the machinery of Section 13(2) of Slum Act cannot be used for change of developers. In support of his contention, he would rely upon judgment of the Apex Court in Susme Builders Private Limited V/s. Chief Executive Officer, Slum Rehabilitation Authority (2018) 2 SCC 230. That Respondent No.4 has completed 64 tenements in rehab building in the year 2005 itself. That there is no delay in construction of the buildings which were ready for occupation in the year 2005 itself, which is a reason why the Slum Dwellers shifted in the tenements. That Petitioner or its members never complained about any delay in the project up to the year 2019.
15) Mr. Balsara would further submit that prompt actions was taken by Respondent No.4 for completion of balance work so as to procure occupancy certificate of rehab buildings. He would take me through reply of Respondent No.4 to demonstrate as to how hindrance was caused by members of Petitioner-Society, on account of which, the work on the terrace could not be completed. That the leakages from the terrace are occurring on account of unauthorised mobile tower erected at the behest of Petitioner-Society. He would take me through the finding that CEO/SRA in the order dated 24 December 2020 to demonstrate that he was fully satisfied by there was no delay in completion of the project and that replacement of the developer was not warranted. He would submit that there is no perversity in the findings recorded by AGRC and therefore this Court may not interfere in the AGRC's Order in exercise of writ jurisdiction as held by the Apex Court in Garment Craft Vs. Prakash Chand Goel (2022) 4 SCC 181.
16) Mr. Balsara would counter Mr. Khandeparkar submissions that LOI is in nature of a licence, which abates on death of the sole developer. He would rely upon SRA's circular dated 23 March 2015 which, according to Mr. Balsara, recognises the concept legal heirs executing the project after death of sole developer. He would also rely on judgments in Awdesh Vasistha Tiwari and others V/s. Chief Executive Officer/Slum Rehabilitation Authority and others 2006(4) Mh.L.J. 282 and Gemini Developers V/s. State of Maharashtra Writ Petition No.103 of 2020 decided on 15 December 2020. Lastly, Mr. Balsara would submit that Respondent Nos. 4(a) to 4(c) are willing to deposit the entire costs of balance work, to be ascertained by CEO/SRA in the designated account as directed by this Court, without raising any dispute about the quantum of costs. That this would demonstrate the readiness and willingness on the part of the fourth Respondent to complete the balance work of rehab building. He would pray for provision of police protection to ensure cooperation of errant members of Petitioner-Society causing hindrance in completion of the balance work. Mr. Balsara would pray for dismissal of the Petition.
17) Mr. Aradwad (Reddy) appearing for Respondent Nos. 1 and 3/SRA would submit the Order of AGRC is binding on SRA. Nonetheless he would take me through the reasons recorded by CEO/SRA in support of Order passed under Section 13(2) of the Slum Act. He would submit that CEO/SRA's Order has ensured that the costs incurred by Respondent No.4 are reimbursed upon replacement of the developer.
18) Mr. Shinde, the learned counsel appearing for Respondent No. 2 -AGRC would seek to justify the Order passed by AGRC.
19) Rival contentions of the parties now fall for my consideration.
20) Before examining the correctness of AGRC’s order dated 4 October 2023, which is subject matter of challenge in the present petition, it would be necessary to examine the exact nature of directions issued by it. In my view, it is necessary to decide this issue first as there is debate amongst parties as to whether it is a simple order of remand for consideration of all issues by CEO/SRA on merits or whether the remand order merely directs CEO/SRA to ensure that Respondent No. 4 completes the remaining work of rehab buildings, procures occupancy certificate and conducts lottery through SRA. In short, the debate is about the reinstatement or otherwise of Respondent No.4 as a result of the impugned order passed by the AGRC. It is Mr. Jagtiani’s contention that since CEO/SRA’s order is set aside and Petitioner’s application under Section 13(2) of the Slums Act is remanded for fresh hearing on merits, all issues including termination of Respondent No.4 will have to be determined by CEO/SRA. On the other hand, Mr. Balsara would contend that the order of remand is merely for the purpose of ensuring compliance with the directions given in para-59 of AGRC’S order.
21) To examine the exact nature of directions issued by the AGRC, it would apposite to reproduce para-59 and 60 of the order which reads thus :
“59. The Applicant Developer has completed the rehab buildings but did not obtain Occupation Certificate for the same. The CEO/SRA gave a time period to complete the formalities of lottery and Occupation Certificate, but the Applicant could it deliver. Having completed the rehab component, the Developer has almost fully complied with the objective of the SRA. Formality of Occupation Certificate is the only impediment to the completion. Hence, in the view of the Committee is the only impediment to the completion. Hence, in the view of the Committee this is a fit case for remand to the CEO/SRA to consider the Applicant’s appeal on merit, keeping in mind, the objectives of SRA. CEO/SRA may also direct for a Site visit by the Officer concerned to assess the condition of the Rehab and to allot tenements through lottery.
Order:
Considering the aforesaid facts, the following order is passed:
(a) Order dated 14 September 2021 passed by CEO/SRA whereby the appointment of Applicant developer has been terminated under Section 13(2) of the Maharashtra Slum Areas (I.C. & R.) Act, 1971, is set aside.
(b) The present application is remanded back to CEO/SRA for fresh hearing on merits.”
22) Reading of directions in operative portion of the order in para-60 would create an impression as if the entire application under Section 13(2) of the Slum Act is remanded to CEO/SRA for fresh hearing on merits. However, if the operative portion of the Order is read in conjunction with the observations made in para-59 of the Order, it creates an impression as if the AGRC has held that Respondent No.4 has fully complied with the objectives of SRA by completing the rehab component and only a formality of occupancy certificate is the impediment to the completion. The order of remand is made in the light of these observations made in para-59 of the order. However, para-59 of the order again observes that “Hence, in view of the Committee this is a fit case for remand to the CEO/SRA to consider the Applicant’s Appeal on merit; keeping in mind, the objectives of SRA.” It is further observed by the AGRC that CEO/SRA may direct a site visit for accessing the condition of rehab building and for allotting tenements through lottery.
23) It must be observed that the AGRC’s order is absolutely vague and does not clarify the exact scope of remand. Mr. Jagtiani is not entirely wrong in contending that the AGRC has neither considered the findings recorded by the CEO/SRA nor has opined that the said findings are clearly or legally incorrect. AGRC has not found any infirmity in CEO/SRA’s order. The order is passed by the AGRC as if it was dealing with Section 32 application at the first instance. AGRC has lost sight of the fact that it was deciding Appeal over CEO/SRA’s order. It was therefore incumbent upon the AGRC to consider various findings recorded by the CEO/SRA and to examine whether those findings are factually or legally correct or not. Instead of doing so, AGRC has made vague observations in para-59 of the order for directing remand before CEO/SRA. Again while doing so, AGRC has not clarified whether the remand order contemplates decision of all issues on merits or whether the remand order merely directs CEO/SRA to ensure that Respondent No.4 completes the work on rehab project and procures occupancy certificate. Particularly, the last sentence in para-59 of the order that “CEO/SRA may also direct for a Site visit by the Officer concerned to assess the condition of rehab and to allot tenements through lottery” creates an impression as if CEO/SRA merely has to ensure that Respondent No.4 completes the work of rehab building and allotment of tenements is to be conducted through lottery.
24) Even if the reasonings and findings recorded by AGRC in paras-54 to 58 of the order are to be considered, the same do not provide any aid for deciding the exact scope of remand made before the CEO/SRA. Such kind of vague directions issued by the AGRC would create confusion not just for the rival parties but also for the CEO/SRA, who would not be in a position to comprehend the exact scope of remand made before him.
25) In absence of clarity in the order of the AGRC, this Court is left to undertake guesswork to determine the exact remit of the remand made before the CEO/SRA. Since the order of remand is made on the basis of the observations that the rehab component is complete and the objections of SRA are almost fully complied with and mere formality of Occupancy Certificate is the only impediment, the AGRC possibly wants CEO/SRA to reconsider his decision. This is the only inference this Court is able to draw about the scope of remand by AGRC before CEO/SRA.
26) In ordinary course, there was no reason for the Petitioner-Society to challenge AGRC’s order if it believes that it merely directs remand of the entire application to be decided afresh under the provisions of Section 32 of the Slum Act. However, the Society has challenged AGRC’s order possibly because the order of CEO/SRA dated 14 September 2021 is set aside by AGRC. Which had enabled the Society to appoint Respondent No.5 as a new Developer. Since the order dated 14 September 2021 is set aside, rights of Respondent No.5 developer are affected which is why Respondent No.5 is also supporting the Petitioner-Society in the present petition. AGRC has not fully allowed the Appeal of Respondent No.4 but has merely directed the CEO/SRA to reconsider the application under Section 13(2). Respondent No.4 is not aggrieved by AGRC’s order and is possibly willing to present its side before the CEO/SRA for reconsideration of CEO’s decision to terminate Respondent No.4.
27) In my view, therefore interference in the order of the AGRC by this Court would not be warranted since AGRC’s order merely contemplates that CEO/SRA should reconsider the decision of termination of Respondent No.4 in the light of observations made in AGRC’s order.
28) Petitioner-Society has strenuously canvassed the point about failure on the part of Respondent No.4 to compete rehab buildings despite passage of 19 long years. On the contrary, Respondent No. 4 has attempted to demonstrate before me as to how prompt actions were taken after passing of Orders dated 11 September 2020 and 24 December 2020 by it to ensure that the balance work in the rehab component is completed and occupancy certificate is procured. It is contended on behalf of Respondent No.4 that the members of the Petitioner-Society have prevented it from completing the balance work on the terrace. In my view, these are factual disputes which need not be decided by this Court when CEO/SRA is expected to look into the same consequent to the order of remand made by the AGRC.
29) Another aspect which is strenuously debated before me and particularly pressed into service by Mr. Khandeparkar is about the right of heirs of late Krishna Salvi to execute the project when the LOI and IOA were issued in the individual name of late Krishna N. Salvi as proprietor of M/s. Raviraj Constructions. On the contrary, it is Mr. Balsara’s submission that the legal heirs of deceased sole developer can execute the project and reliance in that regard is placed on Circular dated 23 March 2015. Perusal of the Circular dated 23 March 2015 would indicate that the same is issued essentially for the purpose of levy and recovery of fees payable after change of Developer/Director/Partner while implementing the SRS. The Circular mandates that change of partner/director in partnership firm/company/society/trust or LLP or Developer should be intimated to SRA within 30 days of making formal change, failing which fine equal to five times of the charges would be levied. The Circular then provides for recovery of charges at various rates in different situations where there is a change in developer. However, para-ix of the Circular provides as under :
The charges mentioned in Clauses-(i) and (ii) shall not be payable if the changes are effected on account of death of Sole Developer or Partner or Director etc. towards legal heir(s) of the same.
30) Thus, the Circular dated 23 March 2015 does envisage a situation where legal heirs of a sole developer can execute the project without even paying the charges determined under Circular dated 23 March 2015. In that view of the matter, the contention raised on behalf of the Petitioner and Respondent No.5 about impermissibility of legal heirs to execute the project is totally misplaced.
31) The other objection for execution of project by heirs of late Krishna N. Salvi is referable to release of rights by late Salvi in favour of Shri. Zakir Shaikh vide Release Deed dated 10 August 2011 and letter dated 11 May 2012. Though Petitioner-Society is vehemently questioning the right of heirs of late Krishna N. Salvi to continue with the project, the Petitioner-Society did not challenge Orders dated 11 September 2020 and 24 December 2020 passed by the CEO/SRA when both the orders contemplated completion of the SRS by heirs of late Krishna N. Salvi. Though Society desired termination of M/s. Raviraj Constructions under Section 13(2) of the Slums Act, CEO/SRA initially passed Order dated 11 September 2020 directing M/s. Raviraj Construction to complete the balance rehab work and to apply for occupancy certificate within one month, failing which action for change of developer was to be taken. Thus, the CEO’s order dated 11 September 2020 specifically recognises the right of heirs of late Krishna Salvi to complete the SRS. The Order dated 11 September 2020 was not challenged by the Petitioner-Society. Again, when occupancy certificate was not procured within the time limit specified in the Order dated 11 September 2020, the Society pressed for termination of appointment of M/s. Raviraj Constructions and Order dated 24 December 2020 was passed by the CEO/SRA rejecting Society’s request for change of Developer. CEO-SRA directed M/s. Raviraj Constructions to complete pending rehab work within three months and to obtain Occupancy Certificate thereof. Again Order dated 24 December 2020 recognised right of heirs of late Krishna N. Salvi to execute the Project. Petitioner-Society once again did not challenge Order dated 24 December 2020 and acquiesced in the right of the legal heirs to execute the Project. Having done so, it is too late in a day for Petitioner-Society to turn around and question the right of heirs of late Krishna Salvi to complete the Project.
32) True it is that the members of the Petitioner-Society are anxious on account of delay in completion of balance work in rehab buildings and failure on the part of Respondent No.4 to procure occupancy certificate of the building. This issue of delay on the part of Respondent No.4 would be taken into consideration by CEO/SRA in the remanded proceedings. However, neither Petitioner-Society nor Respondent No.5 can be permitted to question the right of heirs of late Krishna Salvi from completing the balance work of rehab buildings for the reasons aforestated.
33) After considering the overall conspectus of the case, I am of the view that no interference in the order of the AGRC is warranted, except clarifying the scope of remand before the CEO/SRA. Since I am not going into the merits of various contentions raised by the rival parties (except the right of legal heirs of late Krishna Salvi to execute the project) it is not necessary to burden this judgments by dealing with various judgments cited by the rival parties. All contentions of the parties on merits, except the contention relating to rights of heirs of late Krishna Salvi to execute the project, are left open to be decided by the CEO, SRA in remanded proceedings.
34) CEO/SRA shall take into consideration various factors as to whether Respondent No.4 alone is responsible for non-completion of balance work or whether members of Petitioner-Society have also contributed in such delay especially after passing of Order dated 24 December 2020. Since Petitioner-Society has now limited right in the project to ensure that it is rehab building is completed in all respects, the CEO/SRA shall consider only the aspect whether the conduct of Respondent No.4, after expiry of the period specified in Order dated 24 December 2020, is so gross that it must be penalised by passing Order under Section 13(2) of the Slums Act. CEO/ SRA shall take into consideration the current position at the site to ascertain the exact work which remains incomplete and whether incomplete work is of such nature that change of developer is warranted under Section 13(2) of the Slums Act. If CEO/SRA is satisfied that the conduct of Respondent No.4 after expiry of period specified in the order dated 24 December 2020 is such that it is not willing or is incapable of completing the balance work, the CEO, SRA would obviously be justified in passing of order for change of Developer under Section 13(2) of the Act. Mr. Balsara has given offer of depositing the amount required for completion of the balance work in designated account to show its bonafides. It is for CEO/SRA to consider this issue. If CEO/SRA finds that Respondent No.4 is merely creating evidence on paper and is not actually executing work at the site, an Order under Section 13(2) of the Slums Act would obviously be warranted. At the same time, if it is found that any member of the Petitioner-Society has prevented Respondent No.4 from completing the balance work, that factor will have to be taken into consideration while taking decision. To put it simple words, the CEO/SRA will have to apply his mind to the exact fact situation on the ground, for which purpose he can take assistance of various officials and experts under this command, and then form an objective opinion as to whether conduct of Respondent No.4 is such that there is no other option but to penalise him by directing change of Developer. In my view, this would be the correct scope of remand before the CEO, SRA in pursuance of the impugned order passed by the AGRC.
35) The Writ Petition can accordingly be disposed with the clarifications given in the proceeding paragraphs. I accordingly proceed to pass the following order:
(i) The Order passed by the AGRC on 4 October 2023 is upheld with above clarifications.
(ii) The CEO/SRA shall proceed to decide the remanded proceedings in an expeditious manner, preferably within two months, after grant of opportunity of hearing to the affected parties.
(iii) Parties shall appear before CEO/SRA on 27 March 2024 and obtain further directions. It shall not be necessary for CEO/SRA to issue notices to any parties.
(iv) Till the CEO/SRA takes a decision, all the parties shall maintain status-quo at the site.
36) With the above directions, the Writ Petition is disposed of. There shall be no order as to costs.