Writ Petition No. 2338 of 2018

29th January 2019

Petitioner Counsel: Mr. S.G. SURANA
Respondent Counsel: Mr. A.Y. SAKHARE Ms. TRUPTI PURANIK Dr. MILIND SATHE Mr. AFTAB DIAMONDWALA Ms. ASHA NAIR DIAMONDWALA & CO. Mr. V.D. PATIL Mr. VINEET NAIK Mr. PARAS GUJAR Mr. J.R. VYAS Mr. J.G. REDDY (ARADWAD) Mr. ARVIND ASWANI Mr. HEMANT HARYAN
Act Name: Development Control Regulation for Greater Bombay, 1991

Section :
Regulation 33(9) Development Control Regulation for Greater Bombay, 1991 Regulation 33(10) Development Control Regulation for Greater Bombay, 1991

Cases Cited :
Paras 12, 16, 36: Atesham Ahmed Khan & Ors. Vs. Lakdawala Developers Pvt. Ltd. and Ors., 2011(3) ALL MR 1 : W.P. No.1977/2010, Dt.23.2.2011 (Bom.)
Para 12: Pramila Suman Singh Vs. State of Maharashtra and Ors., 2009 ALL SCR 1976 : Civil Appeal No.7435/2008, Dt.19.12.2008 (SC)

JUDGEMENT

B. P. DHARMADHIKARI, J.

Considering the nature of controversy and earlier orders passed, with consent of parties the matter has been heard finally by issuing Rule and making it returnable forthwith.

2. The petitioner is a developer who challenges the order dated 29/4/2017 passed by respondent No.7. Respondent No.7 is the High Power Committee constituted under the guidelines and regulations known as Development Control Regulations for Greater Mumbai. This High Power Committee is referred to as the Statutory High Power Committee by us. The High Power Committee constituted by High Court is mentioned as High Court High Power Committee. At this stage it is necessary to point out that under Development Control Regulation 1991, Statutory High Power Committee is constituted under Regulation 33(9) as per the Government Resolution dated 2/3/2009 referred to as the Statutory High Power Committee.

3. By the impugned order the High Power Committee rejected the the Application No.23 of 2017 filed by the petitioner before it and vacated its earlier order dated 4/2/2017 directing slum rehabilitation authority not to process the proposal submitted by another developer viz., Respondent No.5 in the present writ petition.

4. Petitioner as also Respondent No.5 are trying to establish their right to develop plot No.11 located near Arthar Road Jail and the residents of said plot have formed Co-operative Housing Society which is Respondent No.6 before us.

5. Slum Rehabilitation Authority is respondent No.4 while respondent No.3 is the Municipal Corporation of Greater Bombay Respondent Nos.1 and 2 are State of Maharashtra.

6. Mr. Surana learned counsel for the petitioner has raised three fold contentions. He submits that High Court High Power Committee cannot pass any order which renders infructuous or prejudices the proposal of petitioner before Statutory High Power Committee and hence the impugned order passed by it is unsustainable. Without prejudice to this contention, he adds that under the scheme of cluster development the petitioner can point out support of 70% of occupants within one year after the issuance of LOI in its favour. Hence absence of consent to the extent of 70% of occupants looked into in impugned order for holding that there is no proposal at all by petitioner to develop plot No.11 is irrelevant. Lastly, he submits that the relaxation made in favour of respondent No.5 by respondent No.3 and 4 under clause 6.24 of the development regulation framed under regulation 33(1) is unsustainable as there is no order passed by Chief Executive Officer of respondent No.3 and in any case it does not record any reason therefor.

7. At this stage we point out that the petitioner already has necessary authorization and is accordingly developing the plot Nos.1 to 10 situated adjacent to subject plot i.e. plot No.11. The petitioner has on 7/11/2015 sought inclusion of plot No.11 also in his development proposal. Plot No.11 is affected by reservation of Arthar Road jail and hence no construction can come up on it. Respondent No.5 is developing a similar project on other side of road and in October 2016 Respondent Nos.5 and 6 submitted joint proposal for rehabilitation and development of occupants of subject plot under that scheme.

8. In the impugned order dated 29/4/2017 the Committee after hearing petitioner and others concerned has taken note of the fact that the property being situated on CS No.1 of Lower Parel Division particularly owned by the petitioner and Municipal Corporation of Greater Bombay comprise of certain cess and non cess structures. More than 70% occupants thereof gave written irrevocable consent in favour of the petitioner to develop it. Thereafter on 2/3/2009 the State Government issued necessary authorization in terms of Regulation 33(9) of DCR 1991. The Municipal Corporation approved inclusion of its property in petitioner’s cluster development and the petitioner has received LOI on 12/8/2012.

9. The said Committee also noted that CS No.1(part) owned by the Municipal Corporation is adjacent to scheme of the petitioner and hence on 8/8/2014 had directed the petitioner to include that property along with certain slum dwellers on it. In the meanwhile the State Government amended DCR 33(9) and on 16/12/2014, the petitioner submitted proposal for amalgamation of adjoining space and slum structures on CS No.1(part) with its approved cluster redevelopment project.

10. CS No.2(part) also owned by the Municipal Corporation had about 241 slum dwellers. The said plot admeasures 5831 sq. meters and popularly known as Ramdev Nagar slum dwellers. They formed a Co-Operative Housing Society and on 4/12/2015 informed the petitioner through it’s Chief Secretary about general body resolution appointing the petitioner as their developer. The petitioner claims that on 7/11/2015 it submitted proposal before the High Power Committee for inclusion of that plot as part of his cluster development. That proposal is claimed to be pending before the Statutory High Power Committee.

11. In impugned order the Committee takes note of fact of case of petitioner that during the said period, the petitioner learnt about the steps taken by respondent No.5. Respondent No.5 allegedly instigated certain slum dwellers at Ramdev Nagar, obtained their signatures on blank papers with a view to submit proposal before Respondent No.3 SRA for redevelopment under regulation 33(10) of DCR 1991. The petitioner pointed out that the said property is already amalgamated with its sanctioned cluster redevelopment project and issue was being considered by Statutory High Power Committee. Inspite of this objection, Slum Rehabilitation Authority accepted the proposal of Respondent No.5 for redevelopment of Ramdev Nagar under regulation 33(10).

12. The impugned order also notes statement of respondent No.6 that residents of Ramdev Nagar through Ramdev Nagar CHS after holding General Body meeting on 17/1/2016, unanimously appointed it as their developer under regulation 33 (10). Respondent No.5 then submitted proposal to respondent No.3 SRA. As the proposal was complete in all respect it was accepted on 1/3/2016. It was also contended before the Committee that the petitioners proposal before Statutory High Power Committee in respect of which LOI dated 12/7/2012 was issued did not include Ramdev Nagar plot. The Committee has looked into rival contentions and has recorded its findings after paragraph No.8 onwards. High Court High Power Committee has found that the respondent No.5 has been appointed as the developer by Ramdev Nagar SRA Co-operative Housing Society in general body meeting unanimously on 17/1/2016. Thereafter, the necessary proposal was submitted on 13/5/2016 to SRA. This finding is reached after examining report dated 23/3/2017 of Respondent No.4. It also found that the proposal of respondent No.5 was complete. It then looked into cluster development proposal of the petitioner. In paragraph 8(ii) it found that the said proposal dated 7/11/2015 for inclusion of Ramdev Nagar plot was not backed by any general body resolution and other requirements under regulation 5 of DCR 1991 were also not satisfied. It found that ownership rights of Ramdev Nagar slum plot and consent of occupants were not attached and no scrutiny fee was paid. It also found from the report dated 1/2/2017 that revised report was not put up before the Statutory High Power Committee as requisite clearances were not in place. This Committee therefore concluded that the proposal submitted by the petitioner on 7/11/2015 is incomplete and after quoting judgment of this High Court in case of Atesham Ahmed Khan & Ors. vs. Lakdawala Developers Pvt. Ltd. and Ors., Writ Petition No.1977 of 2010 : [2011(3) ALL MR 1] decided on 23/2/2011 and judgment of Hon’ble Apex Court in case of Pramila Suman Singh vs. State of Maharashtra and Ors., Civil Appeal No.7435 of 2008 : [2009 ALL SCR 1976] decided on 19/12/2008 concluded that the application filed by the petitioner bearing Application No.23 of 2017 had no merits. It therefore vacated interim order dated 4/2/2017 by which it had directed SRA not to process the proposal submitted by respondent No.5.

13. This order forms subject matter of present petition. This Court has on 13/9/2017 in the present matter granted limited interim relief declaring that further steps by respondent No.5 in pursuance of the impugned order would by subject to orders of this Court.

14. It is in this backdrop that we have heard respective counsel.

15. We have already briefly mentioned the contentions of petitioner’s advocate Mr. Surana. In support of his contention he has taken us through relevant provisions of law. He also pointed out that the secretary of the Co-operative Society i.e. Respondent No.6 has infact given consent to respondent No.5 builder on 13/11/2017. However he has on 31/8/2015 and thereafter on 26/10/2017 given consent to the present petitioner as developer. He therefore states that the finding in the impugned order that respondent No.5 developer has necessary consents is unsustainable. He adds that in any case in the light of provisions contained in guidelines, the petitioner gets time of one year to demonstrate compliance with requirement of consent of 70% of the occupants. He has also relied upon permission extended to other developer by MCGM. He points out that clause requiring written consent of 70% eligible occupants of each plot/building has been modified on 10/8/2011 and now the requirement is of written consent by not less than 70% of all eligible tenants/occupants included in urban renewal scheme. He also pointed out that the benefit of this provision has been given to other developers under the 24th meeting of Statutory High Power Committee for cluster development. The learned counsel therefore claims parity.

16. Senior counsel Mr. Sakhare appearing for respondent No.3 pointed out need of 70% tenant’s consent for each building on all plots before approving scheme is not dispensed with by the Statutory High Power Committee in its 24th meeting on 10/1/2018. The petitioner did not and do not possess any consent. Our attention is invited to the proposal dated 7/11/2015 submitted by the petitioner. He points out that in the chart at Sr. No.11 they have mentioned below heading “consent received” the fact that said exercise is “in process”. Similarly, under the heading “% of consent” they have given figure as “0”. He therefore states that on 7/11/2015 the petitioner did not have consent of even a single tenant/occupant of Ramdev Nagar. In this backdrop to show importance of consent and its mandatory nature, he has taken us through the guidelines. He further adds that as Respondent No.3 MCGM is the owner of land on Ramdev Nagar, its previous consent is must and that has not been obtained. He has relied upon judgment of Division Bench of this Court in Atesham vs. Lakadawala Developers Pvt. Ltd. [2011(3) ALL MR 1] and particularly paragraph No.10 to substantiate his contentions.

17. Senior counsel Mr. Sathe appearing for respondent No.5 additionally pointed out that the petitioner has an approved scheme for cluster development in relation to 10 plots which is being executed. On the basis of that scheme and consent of occupants of said 10 plots, petitioners has attempted to force himself on plot of Ramdev Nagar Co-Operative Hsg. Soc. His proposal dated 7/11/2015 cannot be seen as “proposal” at all. It is at the most his desire. He pointed out that co-operative society of occupants of Ramdev Nagar have passed resolution unanimously on 17/1/2016 in favour of Respondent No.5 as its developer under regulation 33(10). He heavily relies upon the impugned order of the Committee to show that there is no perversity in it. The said Committee did call for a report from respondent No.3 SRA and on the strength of that report dated 23/3/2017 has reached necessary finding. He also adds that during argument the petitioner has raised some contentions, which did not form part of his case during hearing in High Power Committee. He further submits that as per order passed under that provision by the Chief Executive Officer of respondent No.3, the respondent No.5 developer has been permitted to accommodate occupants of Ramdev Nagar on other plot and necessary facts showing consideration of all relevant aspects appear in the note prepared by the Deputy Engineer of SRA on 7/11/2016. He therefore submits that the petition is without any merits.

18. Senior counsel Mr. Naik appearing for respondent No.6 supports the arguments of senior counsel Mr.Sakhare and Mr.Sathe. He points out important lacunae in the alleged proposal of the petitioner before the Statutory High Power Committee.

19. Senior counsel Mr. Surana in his brief reply reiterated the contentions. He submits that the relaxation or exemption in favour of respondent No.5 developer by the Deputy Chief Engineer SRA dated 7/11/2016 is not supported by any reasons and application of mind is also not apparent. He also points out that the petitioner has submitted written note of arguments before the Committee in support of its application and in it all contentions have been raised.

20. The petitioner’s challenge is based upon the submission that it’s application dated 7/11/2015 is still being considered by the Statutory High Power Committee. That application is under DCR 33(9) and it contains a table showing revised details of proposed cluster scheme. In that table, Serial Nos.1 to 10 are giving the plots on which the petitioner already has necessary sanction. At serial No.11, the subject plot of Ramdev Nagar has been mentioned and number of tenants on that plot is mentioned to be 241. While disclosing the consent received he has mentioned that work of obtaining consent was “in process” and in immediately next column “% of consent” is declared to be “0 %”. Thus, on 7/11/2015 the petitioner did not have a single consent from a tenant on subject plot. He moved request for adding Ramdev Nagar on the basis of his status as recognized developer of adjacent plot Nos.1 to 10. Table mentioned supra therefore clubs areas and consents of existing scheme with Ramdev Nagar along with tenants. The table discloses the number of tenants on 11 plots to be 1083 and consent of 802 tenants out of them. He has also disclosed % of consent of 95.25 %. Hence on the basis of consent of tenants on other plots he has claimed to have consent of tenants on the subject plot and staked claim to it.

21. The petition came before this Court on 1/8/2017 and thereafter till date the petitioner has not pointed out any progress in obtaining consent of tenants of Ramdev Nagar plot and has not given % thereof.

22. The impugned order in this backdrop found his proposal to be incomplete and hence, not a proposal in eye of law.

23. We have already mentioned supra that the petitioner has during arguments invited our attention to modification made on 7/10/2011. The said modification by MCGM shows that condition No.4. of the Letter of Intent issued on 10/8/2011 to another developer viz. M/s. Saifee Burhan Upliftment Trust has been modified and it speaks of consent of 70% of eligible tenants/occupants included in urban renewal scheme. It is apparent that the requirement of having 70% of consent of all eligible tenants/occupants of each plot/building included under urban renewal scheme has been therefore modified. This communication is after approving the scheme and even after issuance of LOI. The document itself shows that all properties were included without objection, in urban renewal scheme which that builder was authorized to develop. This document also does not show any opposition to such inclusion by any tenant.

24. In the present matter the petitioner does not have necessary authorization in relation to Ramdev Nagar Plot which already has necessary approval for other plots in the vicinity. The occupants of Ramdev Nagar are not part of that scheme. In this situation reliance upon this modification is erroneous.

25. Petitioner has also pointed out to us the proceedings of 24th Statutory High Power Committee meeting for cluster development held on 10/1/2018 and in it the area looked into as Bhendi Bazar. At Sr. No.2 cluster development of Pimpalwed, Girgaon, Mumbai finds consideration and at Serial No.4 the point for discussion was to process the proposal on the basis of consent of more than 70% of owners and that over all 70% consent of tenants without insisting on 70% consent each from three plots. The decision of Statutory High Power Committee shows that High Power Committee decided to consider the proposal on the basis of 100 % owners consent subject to submission of 70% tenants consent for each building on all the plots before approving plans. It is therefore obvious that the requirement of obtaining consent of 70% of tenants of Ramdev Nagar Plot cannot be said to be dispensed with by such resolution. Moreover 100% of the owners of plots there had consented to cluster development. Here MCGM which is the owner of Ramdev Nagar Plot has not given consent to the petitioner but has consented for development by the Respondent No.5 and this fact is not in dispute before us.

26. Not only this on 17/1/2016 the Co-operative Housing Society of tenants has unanimously resolved to appoint respondent No.5 as their developer under Regulation 33(10). This resolution is not in dispute. In the wake of this resolution, relaxation or exemption being claimed by the petitioner is erroneous. Effort to interpret this scheme of cluster development to show that requirement of consent can be satisfied within one year after issuance of LOI therefore is futile in the present matter. For the same reasons the wavering stand of one Dinesh Parmar in giving alleged consent to Respondent No.5 on 13/11/2017 and to petitioner on 31/8/2015 and 26/10/2017 does not advance the cause of the petitioner No.1.

27. It is in this backdrop that we proceed to examine the scheme of regulation for cluster development under 33(9). The Respondent No.5 has necessary authorization under regulation 33(10).

28. The provision contained under regulation 33(9) of DCR 1991 are on subject of reconstruction or redevelopment of clusters of building under urban renewal scheme. We need not reproduce that provision because it stipulates that for such development which is known as cluster development the FSI shall be 4 and it adds that FSI required for occupiers plus intensive FSI as per provisions of Appendix III-A are also relevant. Thus, FSI which is more, it applies to such cluster development.

29. Appendix III-A shows that as per clause 1.2 proposal for such cluster development has to be complete in all respects. Proviso appearing therein also shows that when land belongs to MCGM, its prior consent is mandatory. As per guidelines iv(a) such development may be permitted in pursuance of irrevocable registered written consent by not less than 70% of all the tenants/occupiers of all the authorized building on each plot involved under urban renewal scheme. This clause further shows that a developer like the petitioner has to submit proposal along with proof of ownership and procurement of development rights in respect of 70% of the land under the proposed urban renewal scheme. The proviso states that it is mandatory for him to submit proof of ownership or proof of procurement of development rights within one year from the date of issue of Letter of Intent.

30. As per guideline 21 the High Power Committee (Statutory High Power Committee) is to be formed which is competent to approve such urban renewal scheme.

31. The facts therefore show that the petitioner does not have and cannot have the proof of ownership or proof of procurement of development rights in relation to Ramdev Nagar Plot. He also cannot have the consent of 70% of the occupants of said plot in view of unanimous resolution dated 17/1/2016 mentioned supra. As such it cannot be said that his application dated 7/11/2015 is complete or was complete and was pending at any point of time. Had petitioner brought on record compliance with any one of these conditions, perhaps the argument that he had period of one year to show the full compliance could have been looked into. Moreover, as per guideline 4(a) the period of one year is given to submit proof of ownership or proof of procurement of development right in respect of balance area. Petitioner does not have consent of other and has declared consent percentage to be 0%. Thus, there is no substantial compliance also.

32. This brings us to consideration of contention of the petitioner that power under guideline 6.24 of Appendix IV framed under 33(10) has been exercised highhandedly and arbitrarily. The said clause 6.24 states that to make slum rehabilitation scheme viable, the Chief Executive Officer of SRA shall be competent to make any relaxation wherever necessary for reasons to be recorded in writing. Thus, relaxation made in favour of Respondent No.5 by Respondent No.3 by permitting it to construct on the plot on other side of road for occupants of Ramdev Nagar plot has been questioned by petitioner. Here it is not in dispute that guideline 7.7 is attracted in case where slum and municipal property are found together or adjoining, it is eligible for redevelopment using provision of DCR 33(7) and 33(10). As per guideline 7.8 if same developer takes up two or more number of slums for development, both rehabilitation and free sale components of said slums can be combined and located proportionately in those plots provided FSI of those plots does not exceed 2.5. The petitioner however has stopped by urging that there is no order of the Chief Executive Officer recording reasons for relaxation in favour of respondent No.5. Respondent No.3 as also Respondent Nos.5 and 6 pointed the order of the Chief Executive Officer of Slum Rehabilitation Authority which is at Exhibit 2 (page 245) on record in the shape of a note dated 7/10/2016 prepared by incharge Deputy Chief Engineer, SRA and it is placed before CEO (SRA) for his approval. CEO/SRA has approved it. The approval therefore is to entire note and to facts narrated therein and to course suggested therein. It cannot therefore be presumed that there is no application of mind.

33. This note points out that it is proposal of acceptance of Shree Ramdav Nagar SRA CHS and it is situated within 150 meters boundary of Arthur Road Jail. As per notification of Home Department only jail construction is permissible within 150 meters from Central jail. Land of Ramdev Nagar is affected by various reservations as per sanctioned development plan. Developer i.e. Respondent No.5 on 27/7/2016 communicated intention to amalgamate Ramdev Nagar Plot with already approved amalgamated slum rehabilitation scheme mentioned in that note. Thus, already approved amalgamated slum rehabilitation scheme are on plot No. CA- 1(part) and 2(part) of Lower Parel Division. As no development on side of Ramdev Nagar is permissible, its amalgamation with another scheme became necessary. It is pointed out that earlier in a meeting conducted on 7/4/2016 it was decided that slum rehabilitation scheme viz., Jai Bhavani SRA CHS (Prop) and Shakti Nagar SRA CHS(Prop) situated on both sides of DP road be amalgamated. Amalgamation necessitated that said two schemes should be on contiguous plots. The plot of Ramdev Nagar is separated from slum rehabilitation scheme of Shree Saibaba Nagar SRA CHS (Prop) and Ors. by existing J.R. Boricha Marg. As the plots are not contiguous, Deputy Chief Engineer SRA stated that decision has to be taken under Regulation 6.24 for relaxation of provisions of amalgamation and then proposal of respondent No.5 can be accepted. He has suggested that after considering the legal requirement amalgamation of all such schemes (mentioned in his note) can be processed.

34. Thus, no construction is feasible on Ramdev Nagar plot and occupants therein therefore need to be settled on some other plot in the vicinity. Occupants unanimously have opted for Respondent No.5 who is carrying redevelopment scheme on other side of J.R. Boricha Marg. Fact that this note is accepted by the Chief Executive Officer is also not in dispute. The only contention is the said CEO has not recorded any reasons. The reasons are indicated in the note and accepting that note, the competent authority has granted relaxation. The petitioner cannot force himself as developer on occupants of Ramdev Nagar Plot. 241 occupants thereof have right to choose the developer best suited for them and accordingly they have chosen Respondent No.5.

35. The petitioner vide Application No.23/2017 has placed his grievance for consideration before the Statutory High Power Committee. Considering all his contentions it is found that the proposal submitted by the petitioner on 7/11/2015 through its Architect was not complete and is not in compliance with the requirements of DCR 1991. We have already taken note of the fact that the committee also considered judgments on the issue and rejected the application. We have already taken note of contents of order passed by this Committee in its order dated 29/4/2017 at the beginning of this judgment. It shows application of mind and approach by the Committee. There is no perversity in jurisdictional error.

36. In this situation, we find that the judgment of Division Bench of this Court in case of Atesham vs. Lakadawala Developers Pvt. Ltd. [2011(3) ALL MR 1] (supra) clinches the controversy. The observations in paragraph 10 show that the developer cannot be permitted to make up deficiencies step by step when it’s initial application itself does not fulfill basic conditions on the date when it is submitted. Division Bench of this Court has found that effect of action initiated on acceptance of first application is to exclude from consideration all other applications until scrutiny of first application is complete. It is bounden duty of developer to ensure that its application is complete in all respect and it is not suffering from deficiencies. It is observed that submission of incomplete application would result in an undesirable situation. These observations apply with full vigour in the present matter. It is therefore clear that the submission that the High Court High Power Committee rendered petitioner’s application before the Statutory High Power Committee infructuous is itself devoid of any merit. No such case is made out in present facts.

37. In this situation, we find no merit in the petition. Accordingly, the petition is dismissed and disposed of. In view of disposal of the writ petition, Chamber Summon No.32/2018 and Notice of Motion No.214/2018 do not survive and are accordingly disposed of. No costs.

Petition dismissed.