Mohit S. Shah, C.J.@mdashIn this petition under Article 226 of the Constitution, filed on 8 May 2012, the petitioner challenges the order dated 24 April 2012 of the State Government, by which the Circular dated 12 November 2010 and the provisional Letter of Intent (hereinafter referred to as LOI) dated 7 December 2010 both issued by Slum Rehabilitation Authority (hereinafter referred to as SRA) in favour of the petitioner came to be cancelled. The State Government also cancelled its own letter dated 8 October 2010, under which the petitioner''s proposal for slum rehabilitation scheme was approved by the Government. Facts leading to filing of this petition, briefly stated, are as under:-
1.1 The petitioner submitted a proposal to SRA-respondent No. 3 herein on 15 February 2010 for Slum Rehabilitation Scheme in respect of approximately 1,89,470.50 sq. mtrs. of land (approximately 1.89 lac sq. mtrs.), out of which the petitioner had already acquired ownership/development rights for 87,575.54 sq. mtrs. (88,000 sq. mtrs. approximately), which works out to about 46% of the land in question. SRA referred the petitioner''s proposal to the State Government on 31 May 2010. When the State Government called for remarks of SRA, SRA submitted the remarks and forwarded the proposal with modified boundaries to the State Government on 19 July 2010.
1.2 After considering the petitioner''s proposal, the State Government issued approval/directions dated 8 October 2010 u/s 3K(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 (hereinafter referred to as "the Slum Act"). On 16 October 2010, SRA sought clarifications from the State Government on certain issues arising from the State Government''s approvals/directions. The State Government sent its reply dated 11 November 2010 to SRA. Thereafter SRA issued Circular dated 12 November 2010 and decided to issue provisional Letter of Intent to the petitioner.
1.3 After SRA took the decision to issue the provisional LOI in favour of the petitioner on the basis of the aforesaid decision and circular, the petitioner paid scrutiny fees to SRA on 16 November 2010. On 18 November 2010 the petitioner submitted the lay out of the entire project and also submitted a detailed plan sector/phasewise and also paid the land premium of Rs. 13,93,63,500 (Rs. 13.94 crores approximately) being the first installment of 15% of the land premium for the entire land admeasuring 1.89 lacs sq. mtrs. Thus the first installment of the land premium of Rs. 13.94 crore approximately was paid by the petitioner to SRA on 25 November 2010. SRA, thereafter, issued provisional LOI in favour of the petitioner on 7 December 2010. The petitioner applied to State Level Impact Assessment Authority on 9 December 2010 for grant of environmental clearance along with plans for the entire layout.
1.4 The petitioner received from SRA a letter dated 7 May 2011 cancelling the LOI dated 7 December 2010. The petitioner challenged the said decision by filing Writ Petition No. 1989 of 2011 before this Court. This Court by order dated 30 November 2011 allowed the writ petition and set aside the impugned letter dated 7 May 2011 from SRA and the State Government''s Directive dated 6 May 2011 on the basis of which the SRA had issued the impugned communication. This Court directed the State Government to issue a show cause notice to the petitioner and to take a decision in the matter after following the principles of natural justice.
1.5 Accordingly the State Government issued the show cause notice dated 2 March 2010 calling upon the petitioner to show cause why the LOI dated 7 December 2010 issued by SRA on the basis of its Circular dated 12 November 2010 should not be cancelled. It was alleged that SRA Circular was contrary to and inconsistent with Government directions dated 8 October 2010. Four grounds in the said show cause notice will be indicated hereinafter.
1.6 The petitioner submitted its written submission dated 22 March 2012 to the State Government (Exh. Z). In the reply, the petitioner pointed out that the petitioner had already acted upon the LOI and the petitioner had already taken various steps for implementing the Slum Rehabilitation Scheme. The petitioner had spent huge amounts and therefore the State Government or SRA should not pass any orders for cancelling previous orders/directives/circulars/LOI. The petitioner also pointed out that SRA scheme submitted by the petitioner is for the benefit of a large section of people and for comprehensive development.
The petitioner submitted that the Housing Department and SRA had already realised that when the development is to be done in respect of large property, it cannot all be done at one time. Therefore, the State Government and SRA had agreed for sector-wise development and it was left to the discretion of SRA to take appropriate decision after considering all the aspects. The Circular issued by SRA on 12 November 2010 was on the basis of permission granted by the State Government in the Housing Department. The petitioner submitted that neither the Circular dated 12 November 2010 nor provisional LOI dated 7 December 2010 was inconsistent with the Government Directives dated 8 October 2010 and 11 November 2010. The petitioner also dealt with each of the four grounds set out in the show cause notice.
1.7 The Principal Secretary, Housing Department of State Government thereafter passed the impugned order dated 24 April 2012 taking a view that there were discrepancies between the State Government approval dated 8 October 2010 and the SRA circular dated 12 November 2010.
Slum Rehabilitation Scheme
2. Before proceeding further it is necessary to give brief particulars of the Slum Rehabilitation Scheme for which SRA had issued provisional LOI in favour of the petitioner on 7 December 2010. In an ordinary slum rehabilitation scheme under Regulation 33(10) of the Development Control Regulations for Greater Mumbai, 1991 (hereinafter referred to as "DCR"), all that the society of slum dwellers and the developer are supposed to provide is
(i) one or a few buildings for rehabilitation tenements,
(ii) a very small, almost negligible, area for recreation, and
(iii) one or a few buildings having free sale apartments.
The Slum Rehabilitation Scheme, for which provisional LOI was issued by SRA in favour of the petitioner, was not such a scheme but it was a Township Development Scheme for 1.89 lac sq.mtrs of land providing for holistic development of the entire infrastructure and adequate open areas for recreation and playground, besides providing roads within township. There would also be other amenities like primary school building, secondary school building, college building library, health centre/dispensary, welfare centre, post office and also fire brigade, police chowky, etc. Although such scheme is some times loosely called "cluster redevelopment scheme" also, cluster redevelopment scheme properly so called caters to comparatively smaller areas begin with minimum area of one acre (4,000 sq. mtrs.) as constructed with Township areas running into more than one lakh sq. mtrs.
3. The fact that slum rehabilitation scheme, for which provisional LOI was issued in favour of the petitioner on 7 December 2010, is in the nature of Township Development Scheme would be apparent from the following features of the scheme and reference to the same in all SRA communications as well as in Government Directives.
3.1 The total land on which the petitioner is to carry out the slum rehabilitation and development is 1,89,437 sq. mtrs. out of which for approximately 88,000 sq. mtrs. the petitioner has acquired ownership/development rights. As per the approved scheme the petitioner is to provide the following free of cost:-
3.2 The petitioner is to provide as per the Development Plan open area of 48,261.70 sq. mtrs as under:-
3.3 On the rest of the land, the petitioner is to provide, free of cost, as follows:
(a) for providing Rehab tenements to 4900 families of slum dwellers and 1846 tenements for Project Affected Persons (PAP), the petitioner is to provide 2,94,892 sq. mtrs. of built up area, free of cost.
(b) The petitioner is also to provide free of cost the following built up areas on the lands reserved for following facilities:
(c) The petitioner is also to provide the following additional amenities free of cost:-
3.4 Over and above the aforesaid built-up areas and the playgrounds, recreation areas and roads, the petitioner will be paying the land premium of Rs. 92,90,88,750 (i.e. Rs. 93 crores approx.) to the public authority owning the land, out of which, 15% i.e. Rs. 13.94 crores (Rs. 14 crores approximately), had already been paid by the petitioner to SRA on 25 November 2010. The aforesaid project was as per the Government Circular dated 2 July 2010.
3.5 In return for all the above, the petitioner is free to construct 2,94,892 sq. mtrs. of free sale built up area which is equivalent to rehab area for slum dwellers and project affected persons.
4. Before referring to the specific documents on record and rival submissions, it would be useful to indicate the broad controversy which was raised by the State Government which led to cancellation of SRA Circular and the provisional LOI in favour of the petitioner and the previous Government approvals/directives in favour of the petitioner. The petitioner''s alternative case will also be examined that in any view of the matter, in the facts and circumstances of the case, the Circular and provisional LOI issued by SRA on the basis of Government directives dated 8 October 2010 and 11 November 2010 should not have been cancelled.
5. Before formulation of New Housing Policy introducing the concept of Township Scheme for slum redevelopment in 2007, the administrative procedure for grant of permissions by SRA at different stages, (which procedure is not prescribed by the Slum Act) and which was modified by SRA for redevelopment in case of the Township Scheme was as under:-
(i)(a) The developer submits draft Annexure-II indicating consent of 70% of slum-dwellers who are, prima facie, eligible for allotment of rehab tenements (i.e. residing at the site on 1 January 1995 onwards).
(b) The Competent Authority of the body owning the land, (like the Asst. Commissioner of Municipal Corporation of Greater Mumbai in the present case) certifies the eligibility of the concerned slum-dwellers named in draft Annexure-II and verifies their consents.
(c) SRA then issues Letter of Intent (LOI) to the developer indicating built-up area to be constructed for rehab/PAP tenements and permissible built-up area for free-sale tenements.
(ii) Thereafter the developer submits layout and plans for rehabilitation program to be approved by SRA.
(iii) SRA gives the Intimation of Approval (IOA) to the developer approving the plans for rehabilitation buildings and free sale buildings.
(iv) SRA/Municipal Corporation then grants Commencement Certificate (CC) permitting commencement of actual construction stage wise or floor wise.
6. New Housing Policy of 2007 for Township Development
(a). The Housing Policy of Maharashtra State as adopted on 23 July 2007 provides that taking cognizance of the specific problems of metropolitan areas like Mumbai, the objective of the housing policy would be to ensure time bound redevelopment of slums and reconstruction of old and dilapidated buildings on precinct/cluster approach. In-situ redevelopment of slum through incentivising redevelopment on cluster or township basis should be the thrust of the slum rehabilitation scheme. The Housing Policy also envisages achievement of the laudable objective of economic upliftment and empowerment of slum dwellers by upgrading health standards, income levels and knowledge together with addressing employment environmental/socio-economic issues in an integrated holistic manner. Public-private partnership projects and Special Development Control Regulations of Dharavi Model are proposed to be made applicable to such projects.
(b) As indicated above, the land on which the rehabilitation scheme is to be carried out is 1.89 lacs sq. mtrs. approximately, out of which for approximately 88,000 sq. mtrs. of land the petitioner has acquired ownership/development rights.
Though para 1.15 in Appendix-IV to DCR requires that the cooperative society of slum dwellers, going for slum redevelopment, shall obtain consent of 70% of the eligible slum dwellers for such redevelopment through a developer, there is no specific provision requiring such consent to be obtained in case of Township Development. But State Government insists that this provision will apply in case of Township Development also.
(c) It appears that Special Development Control Regulations of Dharavi Model are made for redevelopment of Dharavi slums, but such Special Development Control Regulations are not made for other larger slum areas like slums on 1.89 lacs sq. mtrs. in the present case.
(d) Proceeding on the basis that the developer is required to obtain consent of 70% of eligible slum dwellers (i.e. those who were occupying the hutments on the site at least from 1 January 1995 onwards) in Township Development Scheme also, SRA had accepted the developers'' requests in many cases including the present one that-
(i) Once the developer obtains consent of 70% of eligible slum dwellers in one sector out of four sectors, in which the Township is divided in the present scheme, the developer should be allowed to commence work in that sector of the Township, because it would never be possible to do construction work, in all the sectors spread over 1.89 lac sq. mtrs. at the same time. In short, the developer should be allowed to obtain consents of 70% of eligible slum-dwellers sector-wise, and start construction work in that sector.
(ii) LOI be issued by SRA in favour of the developer so that the developer can start obtaining approvals from several authorities (as many as 23 as pointed out at the hearing) by the time the developer obtains consent of 70% of eligible slum-dwellers so as to get final Letter of Intent and then to start actual construction work.
(e) Though the State Government initially did not agree to issuance of Lol to the petitioner while giving approval on 8 October 2010, in view of subsequent SRA letters dated 16 October 2010 and 3 November 2010 pointing out the special features of the Township Development Scheme, the State Government left the matters to the discretion of SRA, considering that this is a Township Development Scheme. Such relaxation was given by the State Government in cases of other Township Development Schemes also.
7. We may now refer to the correspondence between the Slum Rehabilitation Authority (SRA) and the State Government in the Housing Department which has bearing on the controversy at hand. The petitioner has obtained under the Right to Information Act a copy of the letters dated 16 October 2010 and 3 November 2010 from SRA to the State Government and letters dated 8 October 2010 and 11 November 2010 of the State Government responding to the communications of SRA, as well as the noting on the file resulting into the last Government communication.
8. Government Directive dated 8 October 2010 u/s. 3K(1) of Slum Act.
As regards obtaining consent of the slum dwellers for the project in question and LOI, directive nos. 2.5, 2.8, 2.10 and 2.17 read as under:
2.5 It will be mandatory for the developer to obtain consent of 70% eligible slum holders as per provisions of Maharashtra Slum (I.R. & R) Act 1971 and Regulation 33(10), Annexure-IV, clause 1.15 of Development Control Regulation 1991, after the relevant proposed scheme of group slum rehabilitation is submitted before slum dwellers. It will also be mandatory for the Developer to make clear the individual consent agreements having been made with 70% eligible slum holders within 180 days from the receipt of annexure 2. If the consent is not obtained within the stipulated time, the proposal shall be filed in the records. Also, Chief Executive Officer, Slum Rehabilitation Authority may take appropriate decision after verification of matters in annexure - 1, 2, 3 as per regulations of Slum rehabilitation scheme.
2.8 The State Govt. has declared their Housing policy on 23/07/2007. In the said policy, as mentioned in para 7.2 and 7.3, policy has been decided regarding integrated, comprehensive and all inclusive Slum Rehabilitation of bigger slums. In accordance with the same, it is proposed that Slum Rehabilitation Authority may please take appropriate decision on merits after scrutiny of the said proposal.
2.10 Since there is no provision in the Slum Rehabilitation scheme regarding temporary LOI, IOA, CC, it would not be appropriate to accord sanction in respect of this project without waiting for annexure 2. Also, the developer has demanded to issue annexure 2 within 60 days. Considering the no. of 8000 slum holders, competent officers are being given fixed period of 90 days for certification of annexure 2. Also, Asst. Commissioner, Municipal Corporation of Greater Mumbai, M (West) has been declared as Competent Authority for issuance of annexure-2 for eligibility of slum holders on land of State Govt., land of M.C.G.M. And land of private owners in said Group Slum Rehabilitation scheme.
2.17 It will be mandatory for the developer M/s. Sterling Buildcom Pvt. Ltd. to obtain consent of 70% eligible slum holders within a period of 1 year from the date of receipt of Annexure 2 for the present scheme at Mauje Borla, Tal. Chembur and to enter into individual agreements with eligible beneficiaries and to start the work of the scheme failing which said project may be reviewed at Govt. level.
(Emphasis supplied)
9. After the State Government granted approval to the petitioner''s scheme through the above directives, the CEO of SRA addressed a letter dated 16 October 2010 to the State Government in the Housing Department. The CEO requested to issue further directives regarding the following issues, insofar as the same are relevant for the purposes of this petition:-
Point No. 2.5:
In this regard, since the said township project is vast and on large scale, it would be appropriate to develop it sector wise. Hence, directives may please be issued to submit agreements of 70% slum dwellers of relevant sector prior to starting actual development work by relaxing the condition of submission of 70% agreement.
Point No. 2.10:
In this regard, as mentioned in para "F" of proposal of Authority dated 10/6/2010, the Authority has requested for orders to issue provisional Letter of Intent for entire 3K(1) project prior to receipt annexure 2 from competent authorities. Otherwise it would not be possible to start the work of scheme.
Considering the facts mentioned in the report regarding the scheme, submitted to Govt. on behalf of Authority, in order to ensure smooth execution of said group slum rehabilitation scheme and necessity of fulfilling public interest of rehabilitation of slum by way of Group Township method in new Housing policy of the Govt., permission may please be given to sanction provisional LOI for consolidated group township till the time certified annexure -2 is obtained for the present scheme, similar to sanctioned scheme of group township of Akruti City Pvt. Ltd.
(Emphasis supplied)
10. Thereafter the CEO of SRA elaborated the justification for grant of LOI in his letter dated 3 November 2010, the relevant portion of which reads as under:-
...... The larger slum redevelopment proposals are formulated in consonance with clause 7.2 of Housing policy of State Govt. to make the cities slum free so as to fulfill the objective of the Central Govt. of India as conceptually introduced in "Rajiv Awas Yojna Programme.
However, as per para 2.10 of the Govt. directives issued u/s 3k(1) of Maharashtra Slum (I.C. & R.) Act, 1971 dtd. 08/10/2010 for the project under reference, it is mentioned that, it will not be proper to issue the provisional LOI/IOA/CC prior to obtaining Annexure-II, as there is no provision in the prevailing regulation.
In this context, in continuation with this office letter dtd. 16/10/2010, it is to be added that in case of larger slum redevelopment schemes being undertaken by the particular developer/it''s consortium the necessity arises to issue the provisional LOI at initial stage with validity of six months period due to following reasons -
1) To facilitate the SRA to declare its intention to have integrated slum redevelopment in subject locality in wholesome slum approach for providing the infrastructure, civic services, in consonance with the sanctioned D.P. Plan of local planning authority.
2) To facilitate the SRA to give hearings by attending the complainants'' grievances of slum dwellers, slum societies, other developers well in advance so as to avoid future litigations after issuance of regular LOI.
3) To facilitate SRA to know the factual ownership of the private lands in the scheme well in advance to avoid litigation about the ownership of private lands in future.
4) To facilitate SRA to write to Competent Authority for acquisition of private plots where owners are not traceable and slum dwellers have given consent to the developer.
5) To facilitate the developer, to obtain the Environment Clearance under E.I.A. Act, 2006 for speedy implementation of project.
6) To facilitate the developer to have the plane table survey of entire project area as to prepare the comprehensive slum plan and Annexure-II.
The S.R.A. has granted the provisional LOI in case of two Special Township Projects of Slum Redevelopment being undertaken as per the directives of Govt. Section 3k(1) of Maharashtra Slum (I.C. & R.) Act, 1971 (copies of 3k(1) orders in said two cases are enclosed herewith).
(Reference is to Township Redevelopment Schemes of Ackruti City Ltd. Construction and M/s. Ruchipriya Developers Pvt. Ltd.)
In view of above, it is necessary to grant the provisional LOI by S.R.A. till obtaining certified Annexure-II from the Competent Authority in large interest of the slum dwellers and to achieve the Govt. objectives to make the slum free city by implementing the scheme in time bound manner.
(Emphasis supplied)
It appears that apart from the aforesaid letter written by the CEO of SRA to the Principal Secretary of Housing Department, a meeting also took place between the two which is referred to in the list of dates in the office submission furnished to the petitioner under the Right to Information Act.
11. Thereafter the State Government sent the directive dated 11 November 2010 (Exhibit H-1) to the CEO, SRA and gave pointwise clarification as under:-
Point 2.5: The proposal of Consolidated Group Township has already been approved by the Government vide their letter dated 08-10-2010. Since the authority of Inspection of the Agreements of 70% slum dwellers have been assigned to Slum Rehabilitation Authority, the authority (SRA) should consider all aspects, and take action and issue a circular in this regard.
Point 2.10: The proposal of Integrated Group Township has already been approved by the Government and the authority of granting L.O.I., I.O.A., C.C., has been delegated to Chief Executive Officer S.R.A., who is expected to take a decision considering all aspects and issue the circular in this regard.
12. On the basis of the above Government approval dated 8 October 2010 read with clarifications dated 11 November 2010, the SRA issued Circular No. 119 dated 12 November 2010:-
With a view to achieve objective of "slum free city" mentioned in "Rajiv Awas Scheme" of Central Govt., Govt. of Maharashtra has decided policy for integrated and all inclusive Slums Rehabilitation of large number of slums as mentioned in para 7.2 and 7.3 of their new Housing Policy published on 23.7.2007. Accordingly, various proposals of large scale slum rehabilitation projects have been received by Slum Rehabilitation Authority.
In accordance with the same, upon receipt of special directives for execution of proposed special township projects for slum colony redevelopment u/s 3K(1) of Maharashtra Slum Area (I.R. & R.), following procedure may be followed in order to ensure quick execution of such large scale S.R. schemes.
1. In this case, upon receipt of sanction orders from Govt. of Maharashtra u/s 3K(I) of Maharashtra Slum Area Act 1971, Letter of Intent may be issued for entire area without waiting for certified Annexure -2 and Annexure-3 for entire area of special township.
At the time of taking Letter of Intent, Developer and Architect of the concerned scheme should submit tentative, time-bound, sector-wise rehabilitation programme and the layout. Similarly, it is mandatory to comply with terms and conditions laid down by the Govt. while giving sanction for Special Township Project u/s 3K(1) of Maharashtra Slum Area (I.R. & R.). Accordingly, a registered undertaking may be taken from the developer for compliance of the said matter.
2. In the present case, while issuing first Letter of Intent, land premium in respect of plot area owned by Govt./MHADA/Mumbai Municipal Corporation included in the said special township project should be recovered as per Govt. Circular dated 2/7/2010.
3. Upon issuing Letter of Intent, No Objection Certificate of Ministry of Environment and Forest may be obtained.
4. Upon receipt of Letter of Intent, like other slum rehabilitation schemes, as per provisions of clause 1.15 in appendix IV of Development Control Regulation 22(1)), consent of 70% slum holders should be submitted along with sector-wise draft Annexure 2 and procedure for certification of sector-wise Annexure 2 from competent Authority may be completed accordingly.
5. Finance consultant/S.R.A. may take further action regarding procedure of sector wise Annexure III for Special Group Township project.
6.A) Upon sanction of sector wise tentative lay out, and upon receipt of Certified section-wise Annexure II and Annexure III from competent authority and upon submission of common consent of 70% eligible slum holders in the relevant sector with Competent Authority by the developer, I.O.A. And similar permissions for construction in that sector shall be given.
B) Upon sanction of sector wise tentative lay out and upon receipt of sector-wise certified Annexure II and Annexure III from competent authority, and upon submission of individual agreements of 70% eligible slum holders in the relevant sector by the developer, C.C. And other permissions shall be given as per rules.
C) In this regard, as mentioned above, sector-wise land premium shall be recovered, as per policy of Govt. order dated 2/07/2010, in proportion of construction area of the said buildings, for giving I.O.A./C.C. for sector-wise rehabilitation/sale buildings.
(Emphasis supplied)
13. To complete the chronology of events, we may also refer to the relevant portion of note on the file of the State Government Department leading to the last Government Communication dated 11 November 2011, which has also been furnished to the petitioner under the Right to Information Act.
14. Though the impugned order dated 24 April 2012 runs into 11 fullscap pages and 10 paragraphs, reasoning for the impugned decision is contained only in one paragraph being para 9 thereof, which reads as under:-
9. After considering the submissions made by the Director of M/s. Sterling Buildcon Pvt. Ltd. and also after perusing detailed written submissions filed in the matter and also considering the reply and the arguments made by the Ld. Advocate for the three societies, it is established that once the Developer has accepted the Government order under 3k issued on 8th October 2010 and paid the scrutiny fee and the land premium, he is bound by the conditions imposed by the Government in the said order, while implementing the Slum Rehabilitation Scheme. In the detailed discussion herein above, it is pointed out as to how the SRA and the Developer has diluted the terms and conditions of the Government order. The SRA failed to follow in letter and spirit, the guidelines issued by the Government and also failed to comply with the provisions of law contained in the Slum Act and the provisions of DC Regulations 1991. It is proved that SRA has breached the conditions mentioned by Government in the Government letter dated 8th October 2010 while issuing the circular on 12th November 2010. The circular issued by SRA and the Lol granted by SRA should be consistent with the terms and conditions set out in the Government order. The time limit laid down in the Government order dated 8th October 2010 should have been strictly adhered to in the circular of SRA and the subsequent LoI.
15. At the hearing of this petition, Mr. J.J. Bhatt and Mr. Nitin Thakkar, senior counsel for the petitioner have made detailed submissions, which are supported by Mr. P.K. Samdani, learned senior counsel for respondents Nos. 7 & 8-Co-operative Housing Societies, which are two of societies out of several societies supporting the petitioner''s case.
16. The broad outline of the petitioner''s submissions is as under:-
(i) The petitioner has ownership/development rights over approximately 88,000 sq. mtrs. of land out of total 1,89,470 sq. mtrs. of land and, therefore, in view of provisions of the Slum Act, the petitioner has a prior claim for slum redevelopment on its land which is distributed in different sectors and, therefore, the petitioner''s right to redevelop the property for slum rehabilitation has to be accepted.
(ii) More than 70% of the slum dwellers have already expressed their readiness and willingness in writing for redevelopment for slum rehabilitation and more than 50% of the total slum dwellers have already given their consent in writing selecting the petitioner as the developer.
(iii) The petitioner is entitled to submit consent of 70% or more of the slum dwellers selecting the petitioner as the developer within one year from the date of the petitioner obtaining Annexure-II from the Competent Authority i.e. certification by Competent Authority of the municipal Corporation of draft Annexure-II being submitted by the petitioner. The petitioner has already submitted draft Annexure-II for about 50% slum dwellers selecting the petitioner as the developer, but the petitioner has not yet received Annexure-II from the Competent Authority, i.e. Municipal Corporation. Hence, the time limit contemplated by clause 2.17 of the Government Approval dated 8 October 2010 has not yet begun to run.
(iv) The total premium payable by the petitioner as per the Government Rules is Rs. 93 crores. As per the Government Circular dated 2 July 2010, the petitioner is required to pay 15% of the said premium. The petitioner had already paid the said first installment of Rs. 13.94 crores on 25 November 2010 before issuance of provisional LOI on 7 December 2010.
(v) The petitioner had submitted a layout for the entire property on 20 February 2011 after submitting the sector-wise rehabilitation programme to SRA on 18 November 2010.
(vi) The petitioner had already applied for environmental clearance to the concerned Committee on 9 December 2010 and the said Committee has required the petitioner to get the LOI revalidated by SRA for further processing of the said application.
(vii) There is no discrepancy between the Government Approval dated 8 October 2010 and the SRA Circular dated 12 November 2010. Even if there is any alleged discrepancy, as contended by the learned Advocate General, the State Government itself had by letter dated 11 November 2010 permitted the SRA to exercise its discretion for smooth implementation of the slum rehabilitation scheme.
(viii) As pointed out in letter dated 3 November 2010 of CEO SRA to the State Government, the State Government itself through its special directions u/s. 3K(1) of the Slum Act had permitted SRA to issue provisional LOI before obtaining consents of 70% of the eligible slum dwellers in two other cases.
(ix) Looking to the benefits, which will be available to 4900 slum dwellers and 1849 project affected persons by their getting rehab tenements free of cost and the provision of common amenities and facilities like primary school, secondary school, dispensary, roads, playgrounds and recreation grounds, all free of cost, and also other civic amenities like fire station, police chowky etc. free of cost, the slum dwellers and project affected persons will get all these advantages of an integrated Township. Hence, the State Government ought not to have cancelled the approval granted earlier on which the petitioner had already acted upon.
17. Mr. Kambhata, learned Advocate General for the State Government has opposed the petition and made the following submissions:
(i) Legal requirements prescribed by the Development Control Regulations, particularly Regulation 33(10) read with Appendix-4 thereto are mandatory and it is not open to the petitioner to contend that SRA or even the State Government can deviate from those requirements.
(ii) when the petitioner submitted the scheme for rehabilitation of slums on 1.89 lacs sq. mtrs. of land, the petitioner could not have been permitted to obtain sector-wise consent, but the consents must be obtained from atleast 70% of the eligible slum dwellers in all the slums spread over 1.89 lacs sq. mtrs. before any LOI could be issued.
(iii) By getting the provisional LOI in their favour, the petitioner secured monopoly over the entire land admeasuring 1.89 sq.mtrs and because of the policy to consider only one proposal at a time, as directed by this Court in the case of
(iv) There is no provision for issuing a provisional LOI. It is only when all the requirements of Slum Rehabilitation Scheme are satisfied that the Letter of Intent is to be issued by SRA and SRA had no power to issue such provisional LOI, when the State Government had raised the objection on 8 October 2010 and thereafter did not specifically authorise SRA to issue such provisional LOI.
(v) After receiving SRA letter dated 16 October 2010, the only reply which was given by the State Government was letter dated 11 November 2010. To interpret the said letter, no reliance can be placed on the office note made by the departmental officer. Learned Advocate General has relied upon following decisions in support of the contention that file-noting cannot be seen or considered as a Government decision nor can it be relied upon for the purpose of interpreting the Government decision:-
Unreported judgment dated 23 August 2013 of another Division Bench of this Court in Criminal Application No. 2796 of 2010;
On the basis of aforesaid decisions, it is submitted that merely because some view may have been expressed by some officer on the departmental file, such opinion or noting is merely opinion of some individual officer, but by no stretch of imagination such noting can be treated as a decision of the Government. The Court should not take cognizance of such noting for the purpose of exercising power of judicial review.
(vi) Inviting our attention to the impugned order, learned Advocate General has submitted that in the normal course the SRA gives 60 days to get the Annexures-2 certified by the Competent Authority, but in the instant case time limit of 90 days was given to get Annexure-2 certified. Moreover, SRA circular erroneously allowed assessment of financial capability of the developer sector-wise. It was never contemplated in the Government orders. Readiness now shown by the developer to show financial capability is an after thought, as observed by the Principal Secretary in the impugned order. It was not the intention of the Government to allow the petitioner to block the whole area of township and then allow him to obtain 70% consent sector-wise in an unlimited time frame.
(vii) Learned Advocate General has also invited our attention to the statement made in the petitioner''s reply dated 22 March 2012 (Exh. Z), wherein the petitioner has stated that to put an end to the controversy the petitioner is ready to accept the time limit as suggested in clauses (a) to (d) and that the State Government may impose additional condition for LOI. It is submitted that in view of such stand of the petitioner, the petitioner must be deemed to have admitted his default and therefore it is not open to the petitioner to challenge the impugned Government order dated 24 April 2012.
18. We have given anxious consideration to the rival submissions. Before we take up the major issues on which learned counsel for parties have addressed us at length, we may deal with the smaller issues, on which there was hardly any debate, as the factual submissions made on behalf of the petitioner in the pleadings and at the hearing have not been controverted.
Assessment of Financial Capacity & payment of Land Premium
19. The following ground was raised in the show cause notice:-
b) It is mentioned that the finance consultant of the Authority may take appropriate action regarding procedure of obtaining Annexure III sector wise for the sector Group Slum Scheme mentioned in the para 5 of the circular of the S.R. Authority. Apart from that, sector wise premium recovery for inspection of annexure III and land is proposed. Actually, it is mentioned in condition no. 2.1 of Govt. Orders dated 08.10.2010 to verify complete financial capacity and proper comprehensive scrutiny of the developer while giving Letter of Intent for the entire slum rehabilitation area. Hence it is necessary to assess financial capacity of the developer thoroughly in accordance with the Annexure-III. Also it was expected to lay down condition of taking action as per provisions of Govt. order under ZOPUYO 2008/case no. 236/ZOPASU 1 dated 02/07/2010 for charging premium of land.
20. When the petitioner submitted proposal of group slum rehabilitation scheme on land admeasuring 1.89 lacs sq. mtrs., SRA referred the petitioner''s proposal to the State Government for giving approval by special directives u/s 3K(1) of the Slum Act, the State Government considered eligibility of the petitioner as developer by considering that annual turnover of the company was Rs. 108 crores and they had experience of handling 6 slum rehabilitation schemes and 5 construction projects in Mumbai. Since the partners of the company had undertaken the above projects, the State Government indicated in directive no. 1.6 that-
1.6 While giving approval to M/s. Sterling Buildcon Pvt. Ltd. as developer of present Group Slum Rehabilitation Scheme in principle, it would be appropriate to impose condition on directors of companies mentioned to continue obligation with M/s. Sterling Buildcon Co. till the date of completion of project.
(Emphasis supplied)
There is no dispute about the fact that such undertaking was given by the director to SRA on 25 November 2010.
21. Second part of ground (b) in the show cause notice quoted above proceeded on the basis that sector-wise premium was to be recovered by SRA from the petitioner, but SRA was expected to charge premium for the entire land as per the Government Circular dated 2 July 2010, that is why condition No. 2.10 of the Government order dated 8 October 2010 required SRA to verify the total financial capacity and proper comprehensive scrutiny of the developer while giving LOI for the entire slum rehabilitation area and for that purpose to assess the financial capacity of the developer thoroughly in accordance with Annexure-III.
22. Undisputed facts regarding Land Premium are as under:-
(i) The land premium for the entire land was worked out by SRA at Rs. 92,90,88750 (i.e. Rs. 93 crores approximately) for the entire 1.89 lac sq.mtrs of land.
(ii) As per the Government Circular dated 2 July 2010, 15% of the land premium is to be paid by the developer to SRA before the SRA issues Letter of Intent to the developer.
(iii) 15% of the land premium worked out to Rs. 13,93,63,500/- (i.e. Rs. 14 crore approximately). The petitioner paid the said amount to SRA by Demand Draft dated 25 November 2010.
(iv) It was, thereafter, that the SRA issued provisional LOI dated 7 December 2010 in favour of the petitioner.
In view of the aforesaid undisputed facts, there was full compliance with the requirement for payment of land premium as per Government Circular dated 2 July 2010.
23. It also needs to be noted that there was no dispute at the hearing that the question of the developer submitting Annexure-III would arise after the competent authority certifies Annexure-II containing list of eligible slum-dwellers, i.e. slum-dwellers who are eligible for allotment of rehab tenements. Since that stage has not arrived, the petitioner did not submit Annexure-III. Even then at the hearing before the Principal Secretary, Housing Department, the petitioner offered to submit draft Annexure III and at the hearing before us also, the petitioner offered to submit draft Annexure III regarding his financial capacity and sources of funds to be invested in the entire project within two months from today.
24. Submission of Layout and sector-wise plans
The following ground, as third ground, in the show cause notice was as under:-
c) It is mentioned in condition no. 1 of the circular that while taking the Letter of Intent, developer and the architect of the scheme should submit tentative and sector-wise rehabilitation programme and the layout.
In this case it was necessary to lay down condition of submission of tentative and sector-wise rehabilitation programme by the developer within a period of 3 months from the date of issuance of Letter of Intent and giving decision on the same within a period of one month by the S.R. Authority.
Undisputed facts pointed out on behalf of the petitioner at the hearing are that the petitioner through its architect had submitted sector-wise rehabilitation programme to SRA on 18 November 2010 (Exh. N) and the petitioner also submitted layout for the entire property on 28 February 2011 (Exh. O) alongwith scrutiny fees of Rs. 2,84,200/-. It was certainly within three months of issuance of LOI by SRA on 7 December 2010.
Instead of allowing SRA to consider the above layout and sector-wise rehabilitation programme, the State Government took the ex-parte decision on 6 May 2011 to cancel the LOI dated 7 December 2010. Hence, the third ground raised in the show cause notice was not at all tenable.
25. Application for Environmental Clearance
The following ground, as fourth ground, raised in the show cause notice was as under:-
(d) There is provision in the condition no. 3 of circular to obtain NOC of Environment and Forest Department. It is necessary to lay down condition of obtaining NOC of Environment and Forest Department for the entire area.
In its written submission dated 22 March 2012 to the State Government the petitioner had already pointed out that the petitioner had made an application for environmental clearance in respect of the entire area, copy of the said application was also annexed as Annexure-3 to the written submission. The application was submitted on 9 December 2010. At the hearing of the petition, the petitioner has also produced the copy of the minutes of the meeting of the State Level Expert Appraisal Committee held on 27 to 30 December 2010 (item No. 12), wherein it was clearly indicated that the plot area was 1,89,437.50 sq. mtrs. The said minutes, therefore, clearly bear out the petitioner''s case that the petitioner had made application to the State Level Expert Appraisal Committee of the Ministry of Environment & Forest Department for environmental clearance for the entire land and not for some individual sector. The said minutes also indicate that the petitioner''s application was under consideration of the Committee, which required the petitioner to get LOI revalidated by SRA for further processing the said application.
When the petitioner had produced documentary evidence to show that it had applied for environmental clearance for the entire land, it was of no consequence that SRA in its Circular required the petitioner to obtain MoEF clearance without mentioning in so many words that the MoEF clearance should be for entire land.
Conclusions regarding grounds (b) to (d) in show cause notice.
26. It is, thus, clear that there is no substance in the findings given by the Principal Secretary in the Housing Department of the State Government that there was any discrepancy between the Government directive and the SRA Circular/LOI vis-a-vis grounds (b), (c) and (d) of the show cause notice. The findings given by the State Government are clearly vitiated by non-application of mind and factually are not tenable.
Ground (a) in show cause notice
27. Now coming to the major submissions urged by learned counsel for parties, it is necessary to note that the first ground raised in the show cause notice was as under:-
a) While issuing letter of Intent to the Developer for entire group slum rehabilitation scheme area, condition of submitting consent letters of 70% slum dwellers to the competent authorities of Annexure II, sector-wise or division-wise and get it certified was prescribed. It is appropriate to lay down condition of fixing time limit for Annexure II 90 days and period of one year for execution of the scheme after preparing individual agreements with eligible slum dwellers after certification of annexure II. (it would be appropriate to implement this time limit for the entire scheme)
28. Para 9 of the show cause notice indicating the alleged discrepancies does not refer to issuance of LOI or SRA permitting the petitioner to obtain sector-wise consents as objectionable or inconsistent with Government directives u/s. 3K(1) of the Slum Act, but merely refers to the same in the course of narration of events.
29. But the learned Advocate General has argued at the hearing that-
(i) The SRA could not have permitted the developer to obtain consent letters of 70% slum-dwellers sector-wise or division-wise. The SRA ought to have required the petitioner to submit consent letters of 70% of slum dwellers in all slums spread over 1.89 lac sq. mtrs.
(ii) Neither the State Government nor SRA could have relaxed the condition of submitting 70% agreements before starting actual development work sector-wise.
(iii) The Government had noted in paragraph 2.10 of the Directive dated 8 October 2010 that there was no provision for the Slum Rehabilitation Scheme regarding temporary LOI (i.e. provisional LOI) and therefore SRA had no power to grant LOI. The SRA could have granted regular or final LOI only after receiving consent of 70% of eligible slum-dwellers certified by the competent authority i.e. Municipal Corporation to which about 54% of the land belongs.
30. Consents obtained so far:
The petitioner''s case is that
(i) The petitioner has already obtained consent of substantial majority of slum dwellers occupying hutments on the land in question. Details of the following societies are given in support of the petitioner''s case.
It is, therefore, submitted that the petitioner has written consent of 3839 slum dwellers out of total 7000 slum dwellers, which comes to about 55%.
It is also pointed out that though initially the project was to cover one more society, the State Government granted a separate approval for the said society and, therefore, the number of slum-dwellers covered by the project went down.
(ii) It is also the petitioner''s case that there were seven other Co-operative housing societies which had submitted their separate individual proposal for slum rehabilitation scheme having 1470 slum dwellers in all. But out of those seven applications, six applications have already been rejected by SRA in January 2012 and therefore the proposal for 1143 slum dwellers have already been rejected by SRA. Since those slum dwellers have already expressed their willingness for redevelopment and area of those societies admeasuring 20,565 sq. mtrs. are admittedly within the total land admeasuring 1.89 lacs sq. mtrs., for which the petitioner''s slum rehabilitation scheme for the entire town-ship has been approved, it means that more than 5000 slum dwellers out of 7000 slum dwellers have expressed their readiness and willingness for redevelopment and that percentage now comes to 70%.
(iii) It is, therefore, vehemently submitted by the learned counsel for the petitioner that when the petitioner has already obtained written consent in its favour of 55% of slum dwellers specifically agreeing to redevelopment by the petitioner as the developer and when another 1143 slum dwellers i.e. about 16% have already expressed their readiness and willingness to go for redevelopment, but their proposals for redevelopment through other developers have been rejected by SRA, the fact remains that 71% of the slum dwellers have given their consent for redevelopment, out of whom 55% of the total 7000 slum dwellers have already given their consent in writing in favour of the petitioner as the developer.
31. No breach of time limit-
It is submitted that the petitioner has not committed any breach of either Government approval dated 8 October 2010 as clarified by Government letter dated 11 November 2010 or the SRA circular dated 12 November 2010. In fact, the time limit for the petitioner to obtain consent of 70% of the slum dwellers was in the following terms in direction dated 8 October 2010:
2.17 It will be mandatory for the developer M/s. Sterling Buildcom Pvt. Ltd. to obtain consent of 70% eligible slum holders within a period of 1 year from the date of receipt of Annexure 2 for the present scheme at Mauje Borla, Tal. Chembur and to enter into individual agreements with eligible beneficiaries and to start the work of the scheme failing which said project may be reviewed at Govt. level.
(Emphasis supplied)
It is submitted that the petitioner has already submitted draft Annexures-2 to SRA for 3489 slum dwellers, which comes to about 50% of the 7000 slum dwellers and from another 500 slum dwellers in the societies located at RG location, the petitioner has already obtained requisite consent from 350, for which the petitioner has already applied to SRA for moving this Court for relocation of RG area as required by the interim order dated 2 July 2003 of this Court in the case of Citispace & ors. v/s. State of Maharashtra, Writ Petition No. 1152 of 2002. It is, therefore, submitted that as soon as orders are passed on such notice of motion, the petitioner will submit draft Annexure-2 for 500 slum dwellers also.
Learned counsel for the petitioner has, therefore, submitted that the respondent-authority must proceed on the footing that the petitioner has already obtained consent from 3839 slum dwellers out of 7000 slum dwellers on the land in question and there is enough time for the petitioner to obtain consent in writing from another about 1000 slum dwellers to make it 70% consent, if at all it is necessary for developer/society to obtain consent of 70% of slum dwellers in a town development scheme.
Learned counsel for the petitioner further submitted that Clause 2.17 of the Government approval dated 8 October 2010 itself has given the petitioner sufficient time of one year from the date of receipt of Annexure-2 by the petitioner. It is submitted that it is only when the Competent Authority i.e. Municipal Corporation (which is having ownership of about 54% out of the land in question) will certify Annexure-II, that the time limit of one year contemplated by clause 2.17 of the Government approval dated 8 October 2010 will begin to run. The Municipal Corporation has not certified any of the draft Annexures-II submitted by the petitioner.
It is, therefore, submitted that irrespective of the question whether the petitioner should obtain consent of 70% of the eligible slum dwellers for the entire town ship or whether the petitioner should obtain such consent sector-wise, the petitioner has already obtained consent in writing of 55% of the 7000 slum dwellers who are found to be prima facie eligible. The petitioner has sufficient time for obtaining consent from other eligible slum dwellers.
Scope of Directions u/s. 3K(1) of the Slum Act:
32. Without prejudice to the above submissions, learned counsel for the petitioner and learned counsel for respective societies have submitted that though there was no discrepancy between the Government approval dated 8 October 2010 and the SRA circular dated 12 November 2010, even if there was any alleged discrepancy as contended by the State Government, it was permitted by the State Government itself by letter dated 11 November 2010 (quoted in para 12 above). The State Government permitted SRA to exercise its discretion for smooth implementation of the slum rehabilitation scheme on land admeasuring 1.89 lac sq. mtrs. covering about 18 Co-operative Housing societies of slum dwellers and such directions were in accordance with the provisions of section 3K(1) of the Slum Act.
33. We find considerable substance in the above submissions. Section 3A of the Slum Act provides that SRA shall have powers to do all things necessary for the purposes of the Act and that powers, duties and functions of SRA shall include powers to formulate schemes for rehabilitation of slum areas to get the slum rehabilitation scheme implemented and to do all such other acts and things as may be necessary for achieving the object of rehabilitation of slums.
34. Section 3K(1) of the Slum Act reads as under:-
3K (1) The State Government may issue to the Slum Rehabilitation Authority such general or special directions as to policy as it may think necessary or expedient for carrying out the purposes of this Act and the Slum Rehabilitation Authority shall be bound to follow and act upon such directions.
(2) (a) Without prejudice to the generality of the foregoing provision, if the State government is of opinion that the execution of any resolution or order of the Authority is in contravention of, or in excess of, the powers conferred by or under this Act or any other law for the time being in force, or is likely to lead to abuse or misuse of or to cause waste of the Fund of the Authority, the State Government may, in the public interest, by order in writing, suspend the execution of such resolution or order. A copy of such order shall be sent forth with by the State Government to the Authority and its Chief Executive Officer.
(Emphasis supplied)
The provision to give special directions as to policy would include the power to accept suggestions of SRA to make modifications in procedure in cases of special Township Development Scheme and to permit SRA to do all such acts and things as may be necessary for achieving the objective of rehabilitation of large number of slums into a township.
35. The general guidelines for implementation of Slum Rehabilitation Scheme are already contained in Development Control Regulations for Greater Mumbai. Regulation 33(10) and Appendix-4 to the same contain the detailed guidelines. Legislature was conscious of the fact that the Slum Rehabilitation Authority will be required to be vested with some discretion to do all such other acts and things as may be necessary for achieving the objects of rehabilitation of slums and, therefore, these express powers have been conferred by the State Legislature on SRA u/s 3A(3) of the Slum Act. Even further the State Legislature also realised that SRA may require further Directives/clarifications/guidance from the State Government and, therefore, Section 3K of the Slum Act has further conferred power on the State Government to issue to SRA such general or special directions as to policy as it may think necessary or expedient for carrying out the purpose of the Act.
36. Though normally under Slum Rehabilitation Scheme for individual slums or smaller parcels of land, the society of slum dwellers going for redevelopment is required to submit consent in writing of 70% of the slum dwellers in draft Annexure-2 to SRA, before obtaining Letter of intent the State Government and SRA realised that this is a scheme for integrated development of slums spread over 1.89 lac sq.mtrs into a Township, where eligibility is to be ascertained from out of 7000 to 8000 slum-dwellers and rehab buildings are to be provided to more than 1800 Project Affected Persons, and where several other constructions and amenities like roads, schools, college, fire station, police chowky etc. are required to be provided, the State Government itself relaxed the aforesaid requirement in several cases (atleast four) and permitted the society/developer to obtain consent in writing of 70% of the eligible slum dwellers within one year from the date of certification of Annexure-2 by the Competent Authority indicating the names of eligible slum dwellers.
37. The contention of the State Government that the petitioner should have been required to obtain consent of 70% of the eligible slum dwellers before obtaining annexure-2 flies in the face of the Government''s own Directive dated 8 October 2010, wherein the Government specifically directed as under:-
2.17 It will be mandatory for the developer M/s. Sterling Buildcom Pvt. Ltd. to obtain consent of 70% eligible slum holders within a period of 1 year from the date of receipt of Annexure 2 for the present scheme at Mauje Borla, Tal. Chembur and to enter into individual agreements with eligible beneficiaries and to start the work of the scheme failing which said project may be reviewed at Govt. level.
(Emphasis supplied)
38. It is necessary to note that at the hearing learned Advocate General proceeded on the basis of the aforesaid translation of clause 2.17 of the Government approval dated 8 October 2010, original of which is in Marathi. In fact, in the other matter raising somewhat similar controversy being Writ Petition 741 of 2013, when a similar clause 2.17 came up for consideration, learned Advocate General objected to the translation furnished by that petitioner and the learned Advocate General submitted that the correct translation of clause 2.17 in the said writ petition is as under:-
2.17 For SRA Scheme at village Malwani M/s. Lashkaria Construction Pvt. Ltd. Is appointed developer in principle. It will be mandatory for the developer in the proposed scheme after the date of obtaining Annexure-II within one year to obtain 70% individual consent of the eligible slum dwellers and enter into individual agreements and accordingly commence work. If the developer fails to do so the Government will review the scheme at the State Government level.
(Emphasis supplied)
39. Hence on the question of alleged default on the part of the petitioner, it is clear that the time limit to obtain 70% individual consent of eligible dwellers is one year from the date of obtaining Annexure-2 from the Competent Authority i.e. certification of Annexure-2 by the Competent Authority after the developer submits the draft Annexure-2, as provided in guidelines. This certification is admittedly not done even in respect of draft Annexure-2 submitted by the petitioner in respect of 3489 slum-dwellers even before the impugned order was passed.
It is clarified that the finding that the consent of 70% of the eligible slum dwellers is required to be given within one year from the date of certification of Annexure-2 by the Competent Authority is only applicable to the Township Development Scheme (and not to individual slum rehabilitation scheme) in view of special directives of the State Government u/s 3K(1) of the Slum Act.
40. It is necessary to note that Clause 2.17 by itself does not prescribe any time limit for the petitioner to submit draft Annexure-2 to the Competent Authority. Learned Advocate General would however submit that merely because clause 2.17 of the Government Directive does not prescribe any time limit, it does not mean that the draft Annexure-2 can be submitted at any point of time, but it must be submitted within reasonable time.
41. Even after accepting the above submission, we cannot over look the fact that the provisional LOI was issued by SRA on 7 December 2010 and even before expiry of six months, the State Government ex-parte cancelled the provisional LOI and all the approvals granted in favour of the petitioner. The petitioner, therefore, has not been given an opportunity to submit the draft Annexure-2 of eligible slum dwellers within reasonable time. There is considerable substance in the submission of the learned counsel for the petitioner. Once SRA cancelled the LOI on 7 May 2011 and thereafter there has been litigation and subsequent order dated 24 April 2012 of the State Government, the petitioner has not been able to obtain any further consent and therefore the petitioner needs to be given at least further six months time to submit the draft Annexure-2 of other slum dwellers, without obtaining their consent at this stage.
42. For the same reasons-special requirements of Development of slums into a Township-SRA had requested the State Government to permit SRA to issue provisional LOI to the petitioner before obtaining consent of 70% eligible slum-dwellers so that the petitioner can obtain approvals/clearance from a large number of Statutory authorities and agencies. At the hearing, the petitioner has submitted a list of 23 such authorities/departments of Government authorities.
43. In letter dated 3 November 2010, Chief Executive Officer, SRA was at pains to point out that the slum rehabilitation project under consideration was not an ordinary project for individual slum, but for rehabilitation of cluster of slums and converting it into a town ship (with all public amenities and facilities like primary school, secondary school, fire station, police chowky etc., which amenities and facilities are never being provided in ordinary slum rehabilitation scheme for individual slum). The State Government appreciated this aspect and, therefore, left it to the discretion of SRA to issue LOI. The usual procedure about issuance of LOI as indicated in para 6 above was only an administrative procedure, which was not laid down by the Slum Act. Therefore, the discretion exercised by SRA to modify that procedure in case of Township Development Scheme of the petitioner was well within the statutory powers of SRA u/s 3A of the Slum Act. Though the petitioner has relied upon the file notings quoted in para 14 hereinabove, since the State has objected to any reliance being placed upon the file notings, while considering the submissions of the parties, we have ignored the file notings and are deciding the petition dehors the file nothings.
44. Hence the Circular dated 12 November 2010 of the SRA was not inconsistent with the Government approvals/directives dated 8 October 2010 read with directive dated 11 November 2010, either in the matter of issuance of provisional LOI or in the matter of permitting the petitioner to obtain consent in writing of 70% of the eligible slum dwellers sector-wise.
45. The petitioner has also pointed out that the State Government had permitted issuance of provisional LOI issued in favour of two other parties called "Ackruti City Ltd" and Ruchipriya Developers Pvt. Ltd." and the State Government had also permitted those two parties to obtain sector-wise consents of 70% eligible slum-dwellers before commencing work sector-wise. Our attention has been invited to the relevant provisions in the Directives issued by the State Government u/s 3K of the Slum Act in the case of those two developers. It is, therefore, not open to the State Government to contend in the petitioner''s case that SRA circular dated 12 November 2010 was inconsistent with the Government Directives.
46. There is no dispute about the fact that the petitioner has already obtained consent of 3749 slum dwellers out of 7000 slum dwellers in the slums spread over 1.89 lacs sq. mtrs., out of which for almost 88000 sq. mtrs. of land the petitioner has acquired ownership/development rights. The petitioner, thus, has obtained consent of almost 55% of all the slum dwellers. Out of the remaining slum dwellers, about 1149 slum dwellers are such who have already expressed their willingness and desire for redevelopment, but they had earlier submitted proposals through other developers, which proposals have already been rejected by the SRA as far back in January 2012. Thus, more than 70% of the slum dwellers have expressed their readiness and willingness for redevelopment and are keen to obtain rehab tenements. The petitioner was given LOI on 7 December 2010 for providing not only 4900 rehab tenements to the eligible slum dwellers, each tenement admeasuring 269 sq.ft., but similar tenements to about 1846 to project affected persons. Both these rehab tenements to the slum dwellers and projected affected persons are to be provided by the petitioner free of cost. Besides the petitioner is to provide free of cost primary school building, secondary school building and college building, library, health center, fire station, police chowky office buildings and Municipal Staff quarters to Municipal Corporation and MHADA with built-up area of about 25,000 sq. mtrs. besides providing roads, playgrounds, and recreation areas over 48,000 sq.mtrs of land.
Besides the petitioner is going to pay amount of premium of about Rs. 92.91 crore approximately, out of which the petitioner has already paid amount of premium of about Rs. 13.94 crore approximately being the first installment of 15% of the amount of premium as per the Government circular dated 2 July 2010. The amount is still lying with the SRA and the petitioner has not withdrawn the same, though offered by SRA under the impugned order dated 24 April 2012. It is in the background of the aforesaid facts that we have considered issues raised in the petition.
47. As indicated above, the State Government has not even referred to the fact that the petitioner had already obtained consent in writing of about 50% of the slum dwellers in slums spread over 1.89 lacs sq. mtrs., that within the time limit of one year from the date of certification of annexure-II it would have been possible for the petitioner to obtain consent of 70% of the eligible slum dwellers. The State Government has merely referred to the developer''s case that he has already paid first installment of 15% of the premium amount of Rs. 13,93,63,500 to SRA, that the petitioner has submitted the layout of the entire project sector-wise and also detailed plans have been submitted. But after referring to those submissions of the developer, the State Government has failed to take them into account as relevant factors for considering whether provisional LOI dated 7 December 2010 should be cancelled or should be continued. The State Government has not at all taken into consideration the petitioner''s submissions and defences and brushed aside the same only in one paragraph being paragraph 9 of the impugned order, which is already quoted hereinabove. When the petitioner has been specifically pointing out that he had submitted the layout for the entire project, the show cause notice indicated that the petitioner has not submitted the layout for the entire project within the time limit, though the petitioner had pointed out in his reply that layout for the entire project was submitted. Similarly when the show cause notice had indicated that the petitioner had not applied for environmental clearance, the petitioner pointed out in the reply that the petitioner had applied for environmental clearance within the time limit. The State Government has not given any finding on those grounds and simply skirted those issues and has vaguely stated that SRA failed to follow in letter and spirit the guidelines issued by the Government and also failed to comply with the provisions of law contain in the Slum Act and the provisions of DC Regulations 1991.
48. As indicated above, SRA was at pains all along that the requirements of Township Development Project or Cluster Development Project are different from an ordinary slum rehabilitation scheme and therefore special provisions were required to be made and after granting approval on 8 October 2010 the State Government had issued Directives in the letter dated 11 November 2010 directing the SRA to take decision as may be considered appropriate for implementation of the Scheme. This Court, therefore, finds that the impugned order dated 24 April 2012 is arbitrary and illegal and issued without appreciating the true scope and impact of the powers of the SRA and powers of the State Government u/s 3K of the Slum Act.
It is thus clear that the State Government had granted specific approval for the township development scheme of this petitioner, the petitioner in Writ Petition No. 741 of 2013 and also in the cases of Ackruti Developer Pvt. Ltd. and Ruchipriya Developer Pvt. Ltd., where similar clause was provided.
49. We may at this stage observe that it is very unfortunate that all provisions about slum rehabilitation scheme are provided for by the Government only in Regulation 33(10). Regulation 33 has the title "Additional Floor Space Index which may be allowed in certain categories" categories (1) to (9) are not relevant for the purposes of this petition. Categories (9A), (10) and (10A) read as under:-
(9A) Urban renewal scheme for Dharavi Redevelopment Project:- Areas undertaken by Slum Rehabilitation Authority under DRP for renewal and redevelopment of buildings/chawls including cessed buildings situated on non slum areas within Dharavi Notified Area, shall be a part of the entire Dharavi Redevelopment Project Area (DRP Area) which shall have an overall FSI of 4.00. The entitlement of FSI on that particular plot shall be 4.00 or the FSI required for rehabilitation of existing tenants/occupiers plus incentive FSI and would be in accordance with the guidelines laid down in Appendix XXIV.
33(10)(a) For redevelopment of slums including pavements, whose inhabitants, names and structures appear in the electrol roll prepared with reference to 1st January 1995 or a date prior thereto, but where the inhabitants stay at present in the structure, the provisions of Appendix IV shall apply on the basis of a tenement in exchange for an independently numbered structure.
33(10)(b) Subject to the foregoing provisions, only the actual occupants of the hutment shall be held eligible, and the so called structure-owner other than the actual occupant, if any, even if his name is shown in the electrol roll for the structure, shall have no right whatsoever to the reconstructed tenement against the structure.
33(10A) Regulation for Dharavi Notified Area (DNA) Slum Rehabilitation Scheme under DRP:
Detailed regulations are made for Dharavi Slum Rehabilitation Project.
Appendix IV, inter alia, contains the following guideline:-
1.15 Where 70 percent or more of the eligible hutment-dwellers in a slum or pavement in a viable stretch at one place agree to join a rehabilitation scheme, it may be considered for approval (Provided that nothing contained herein shall apply to Slum Rehabilitation Projects undertaken by the State Government or Public authority or as the case may be a Govt. company as defined in Sec. 617 of the Companies Act 1956 and being owned and controlled by the State Government)
50. Though Housing Policy of the State Government was prepared as far back as in 2007, the State Government has unfortunately not yet come out with Development Control Regulations applicable to township development scheme other then for Dharavi Slums. The importance of such special Development Control Regulations is that while the guidelines in Appendix-VI under DCR 33(10) contemplates that 70% or more of the eligible hutment dwellers in a slum or pavement dwellers at one place agree to join the rehabilitation scheme, such scheme may be considered for approval, but such consent is not required to be obtained from the eligible hutment dwellers in the Development Control Regulations for the Dharavi Rehabilitation Project. The reason is obvious. It may be possible for a hundred or a few hundred slum dwellers to gather together and to pass a resolution by 70% majority to agree to redevelopment and to select a particular developer, but when the number of hutment dwellers runs into thousands, such as 7000 in the present case, it would not be practicable or feasible for such large number of slum dwellers to gather together and to select a particular developer. In such cases, therefore, it would be for the State Agency like SRA to select a suitable person/agency to undertake the project of slum rehabilitation of large number of slums spread over more than a lakh sq. mtrs. into an integrated township with schools, dispensaries, fire station, municipal offices and staff quarters etc., besides rehab tenements, playgrounds and recreation areas.
51. It has been brought out at the hearing that in the last 17 years, SRA has allotted 1,524 slum redevelopment projects, but so far only 197 projects have been completed, that is less than 13% in 17 years. It has been brought out at the hearing that ascertaining eligibility and obtaining consent of slum dwellers is a herculean task. In fact, if the developer is required to both ascertain eligibility of the slum dwellers for rehab tenements and also to obtain their consent for development through a particular developer, considerable time running into years, energy and funds of the developer are consumed only in this process. Even a grievance was made that when more than 55 lakhs people in Mumbai are living in slums, the requirement of obtaining consent of 70% from out of thousands of slum dwellers even in Town Development Schemes only helps the slum-lords and it does not really help the slum dwellers. State Government ought to realize this and make special provisions for Township Redevelopment Project for appointing the developer on its own and doing away with the requirement of obtaining consent of slum dwellers.
52. It is certainly for the betterment of the slum dwellers that they are provided the rehab tenements with all the amenities and facilities like primary school, secondary school, college, dispensary, playground and recreation ground in such township and to expedite this the State Government should provide for a single window clearance for all the permissions required for such project from the State Government and Corporations and other authorities set up under State Legislations. At present, the developers and the Co-operative Housing Societies of eligible slum dwellers have to go to about 23 regulatory agencies and departments including various departments of the Municipal Corporation and the State Government besides a regulatory agency like MoEF for environmental clearance.
53. Learned Advocate General states that the Committee appointed by the State Government under Government Resolution dated 28 September 2012 will consider the suggestions made by this Court.
54. In the result, the impugned order dated 24 April 2012 is quashed and set aside. It is declared that the Government approval dated 8 October 2010 read with Government letter dated 11 November 2010 and the SRA circular dated 12 November 2010 are in accordance with the provisions of the Slum Act, including sections 3A and 3K thereof. As a consequential direction, the respondents are directed to treat the circular dated 12 November 2010 and the provisional LOI dated 7 December 2010 issued by SRA as subsisting with modification that the petitioner shall be permitted to submit draft Annexures-II for slum dwellers, other than those for whom the petitioner had already submitted the draft Annexures-II by 31 March 2014. Within one year from the date of Competent Authority certifying Annexures-II, the petitioner shall obtain consent in writing of 70% of the eligible slum dwellers as already provided in clause 2.17 of the Government Approval dated 8 October 2010, which shall also be treated as subsisting with the clarifications contained in Government letter dated 11 November 2010, accepting the suggestions of SRA made in SRA letters dated 16 October and 3 November 2010.
55. At this stage, learned AGP appearing for the State Government prays for stay of operation of this judgment for some time in order to enable the Government to have further recourse in accordance with law.
56. Learned counsel for the petitioner and learned counsel for respondents Nos. 7 & 8 opposes the prayer and submits that if the stay as prayed is granted, it will only delay implementation of the slum rehabilitation scheme in the nature of Town Development Scheme, which is for the benefit of 4900 families of slum dwellers and 1857 families of project affected persons, with all the facilities and amenities of primary school, secondary school, college, library, dispensary, playgrounds, recreation grounds, roads, fire station etc. The slum rehabilitation scheme, in the nature of Town Development Scheme, already approved by the State Government as well as by SRA is for the benefit of 4900 families of slum dwellers and 1846 families of project affected persons, who will not only get rehab buildings free of cost but will also get all common facilities and amenities like primary school, secondary school, college, library, dispensary, playgrounds, recreation grounds, post office and police chowky free of costs and will be able to come out from surroundings of squalor in which they are presently residing. This scheme of rehabilitation is a hope to the slum dwellers and project affected persons to attain a better quality of life. In these circumstances, we do not consider this to be a fit case for granting any stay as prayed for.
