S.C. Dharmadhikari, J.
1. At the outset, we must indicate that the real contesting respondent – Santosh A. Sahu and Chembur Ayodhya Cooperative Housing Society (proposed) had on 29th June,2015, filed a complaint against one of us (S.C.Dharmadhikari, J.) in order to persuade to recuse himself. The complaint was not pressed as recorded in our previous order dated 4th July, 2015. We continued the hearing and concluded it. The parties expressed full faith and confidence in the Bench and its members so also their Advocates. In view thereof, wiser counsel prevailing, we do not deem it fit to take further steps in law.
2. All these petitions are heard together and can be conveniently disposed of by a common judgment.
3. Since the Court at the stage of ad-interim order had indicated that the matters would be disposed of finally, we proceed to grant Rule in Writ Petition Nos.2575 of 2013 and 2745 of 2013 and also in Writ Petition (Lodg) No.3048 of 2014.
4. Our conclusion in the above petitions is bound to govern the outcome of Writ Petition no.1371 of 2014. Further that will also govern the applications that are moved in these petitions.
5. Writ Petition No.2575 of 2013 is filed by the Cooperative Societies registered under the Maharashtra Cooperative Societies Act, 1960. A plot of land bearing CTS No.123 (part), 1835(part), 116 and Survey No.14 and 14A of Village Chembur, Tehsil Kurla, District Mumbai (Suburban) is the subject matter of the scheme styled as Slum Rehabilitation Scheme and which is covered by the Maharashtra Slum Areas (Improvement, clearance and redevelopment) Act,1971 (for short the 'Slum Act'). The first respondent to this Writ Petition is the State of Maharashtra. The second respondent is empowered to decide certain issues and disputes and has passed the order impugned in this Writ Petition on 16.9.2013. Respondent Nos.3, 4 and 5 are the authorities firstly incharge of implementation of the schemes of slum rehabilitation and governed by the Slum Act. Respondent No.5 is specifically incharge of encroachment removal and removal of unauthorized structures and works and functions under the Collector / Additional Collector of Mumbai Suburban District. Respondent No.6 is an Architect by profession and respondent No.7 is a firm of builders and developers. Respondent Nos.8 and 9 in this Writ Petition are parties against whom no reliefs are claimed. However, the contesting respondent is respondent no.10 which is a proposed cooperative Housing Society called as 'Chembur Ayodhya Cooperative Housing Society (proposed)' and that is a Writ Petitioner in another Writ Petition. Respondent No.11 onwards are the office bearers / members of this proposed society.
6. Brief facts and leading to the order so also the Writ Petition may now be noted. The members of the petitioners have formed the Cooperative Housing Societies because they were residing in unhygienic and unhealthy conditions and in slums. In or about August,2006 they alongwith the respondent Nos.7 and 8 submitted a proposal for implementation of a scheme of rehabilitation of the slum dwellers on City Survey No.123, 1835, 118 admeasuring 11366.70 sq. meters. The proposal was to rehabilitate 625 slum dwellers. However, the petitioners point out that they had support of 438 slum dwellers. On 8.9.2006 the Chief Executive Officer of the Slum Rehabilitation Authority pointed out that approximately 22% of the area covered by the scheme was under reservation for recreation ground admeasuring 1030 sq. meters, hence, it was proposed to hand over 100% reservation for recreation ground to the Municipal Corporation for Greater Mumbai and to accommodate 182 slum dwellers situated on this reservation plot. The petitioners, therefore, requested the Slum Rehabilitation Authority to allow 182 tenements situated in this reservation portion to be accommodated in the scheme, and, thereafter, to hand over vacant possession to the Municipal Corporation of Greater Mumbai. The Chief Executive Officer of the Slum Rehabilitation Authority passed an order dated 8.9.2006 approving the aforesaid proposal of the respondents. Thereafter, the developer – Respondent no.7 and who was appointed by the petitioners moved an application being Notice of Motion No.571 of 2011 in Writ Petition No.1152 of 2002. That was necessitated because the competent Authority pointed out, and in pursuance of the report of the Slum Rehabilitation Authority, that the entire reservation of recreation ground area would have to be kept vacant. However, to accommodate the slum dwellers, a request was made to this Court to permit relocation of the recreation ground. In the meanwhile, the Slum Rehabilitation Authority and the Competent Authority found that the petitioners have support of about 90% of the slum dewellers. On account of the above recreation ground reservation, the area was reduced to 10,030.125 sq.meters. That necessitated a change in the number of slum dwellers. In the original proposal 625 slum dwellers were to be accommodated. Now, 517 was the number indicated. On 10.3.2008 the eligibility of these 517 slum dwellers was taken up for consideration and the Competent Authority concluded that 250 out of them are eligible.
7. The petitioners have pointed out that on 28.7.2008 Chembur Ayodhya Cooperative Housing Society (Proposed) and Mr.Santosh Sahu approached the High Power Committee (respondent no.2 to this Writ Petition) and filed an application bearing No.242 of 2008. They challenged, the scheme on several grounds and we would advert to them little later.
8. The Competent Authority, thereafter found that there were additional structures and the occupants thereof would have to be considered for eligibility. They, therefore, revised the Annexure II which is a list of Slum dwellers and essentially of those eligible for rehabilitation. At the instance of respondent Nos.10 and 11, it was found by the Deputy Collector that the Slum Rehabilitation Scheme covering an area 3568.2 sq.meters overlapping the area in the Slum Rehabilitation scheme of the petitioner, cannot be allowed to be developed separately or simultaneously as the proposal submitted by the petitioners was earlier in point of time. However, that proposal of respondent Nos.10 and 11 was still examined by the Deputy Collector, Chembur who submitted a report dated 30.8.2008 holding that same was unviable. The reasons were that the structures/hutments were scattered. Respondent No.11 was not satisfied with this conclusion and therefore, sought to take up the issue with Slum Rehabilitation Authority. The Chief Executive Officer of the Slum Rehabilitation Scheme heard the parties and concluded on 18.8.2009 that it was not possible to carve out a separate plot so that another proposal of these respondents can be considered. He wa
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s of the view that once the petitioner's proposal was under consideration that must be taken to its logical end. The petitioners have pointed out that upon such a development, the Application No.363 of 2008 was filed by the petitioners before the High Power Committee (Respondent No.2). The High Power Committee directed the Collector/ Additional Collector to decide the eligibility of the slum dwellers shown to be non-eligible in the scheme. 'Annexure I' is a copy of this order and which is at page 129-130 of the paper book. The High Power Committee's direction is based on the submissions of the Architect of the project. The architect points out that there is a necessity to verify the documentary evidence produced by the slum dwellers who have been held non-eligible in 'Annexure II' issued by the Additional Collector. The architect pointed out that the name and structures of some of the occupants have not been included in the Annexure II and that is why the directions came to be issued. In the light of this development what emerges is that the individual slum dwellers whose eligibility was not decided or they were held to be ineligible filed appeals to the Secretary of the Slum Rehabilitation Authority who is the Appellate Authority and on the orders, which have been passed on 29.7.2009 and 5.2.2010, the Secretary held that 122 persons are eligible.
9. The petitioners' case is that in view of this development, respondent No.10 did not press its application No.242 of 2008 before the High Power Committee and by order dated 13.8.2009 it was disposed of as not pressed. Thus, in view of the order passed on the Architect's application bearing No.363 of 2008 by the High Power Committee on 6.12.2008, the respondent No.10 and its members were satisfied that the issues raised by them are duly considered and resolved.
10. It is also pointed out that the Chief Executive Officer of the Slum Rehabilitation Authority rejected the proposal of respondent No.10 for carving out an area to implement another scheme. That is by the communication dated 30.9.2009. On 24.3.2011 a letter of intent was issued and a plan was drawn up which indicated that out of 341 slum dwellers who are required to be removed so as to implement the rehabilitation scheme, 301 have already vacated their structures and accepted the compensation amount. There were 40 slum dwellers who were required to be removed. On 18.12.2011 the Respondent No.10 filed an application No.497 of 2011 before the High Power committee and according to the petitioners this application contains the same prayers and requests as in the earlier one. The petitioners, therefore, filed a written statement/reply. However, on 1.9.2012 the High Power Committee directed the Slum Rehabilitation Authority to ascertain whether its directions and issued on 6.12.2008 were carried out or not. The petitioners state that the Secretary of the Slum Rehabilitation Authority had decided the eligibility of 122 slum dwellers who have supported the scheme right from inception and had vacated their respective hutments. On 16.11.2012, the Deputy Collector submitted a report to the Committee / Competent Authority that all 122 slum dwellers were held ineligible by him and pursuant to site visit which was undertaken on 29th and 30th October, 2012, he found that majority of them were not found on the site.
11. Thirty six out of one hundred and six slum dwellers of respondent No.10 sought to intervene in the pending application before the High Power Committee being Application no.497 of 2011, opposing the implementation of the scheme by respondent no.10 on the portion of land admeasuring 3568.2 sq. meters. The petitioners pointed out that the letter of intent was revised and the number of persons held eligible for rehabilitation was decided as 367. The intimation of approval (IOA) was also issued and these are developments on 10th and 15th January, 2013. The petitioners also pointed out that one of the cooperative Societies namely Vastala Society had several members but 66 out of them sought to intervene in Application Nos.497 of 2011 then pending before the High Power Committee. The High Power Committee heard all parties and by the impugned order on 16.9.2013 directed the Chief Executive Officer of the Slum Rehabilitation Authority to conduct an inquiry. The operative order reads as under:
'9. From the aforesaid facts this Committee feels that the issues raised by the Applicants/ Intervener with respect to the proposal submitted by the Respondent Nos.7 to 10 are of serious nature and looking into the aforesaid irregularities pointed out by the Applicants, this Committee is of the view that the same cannot ignored by this Committee in view of the order dated 23.02.2011 passed by Division Bench of the Hon'ble High Court, Bombay in Writ Petition No.1977 of 2010 (Atesham Ahmed Khan Vs. M/s.Lakdawala Developers Pvt. Ltd.) since the Applicants made grievances that the S.R. Scheme submitted by the Respondent No.5 to 10 is not submitted with the requisite 70% consents of the slum dwellers under the subject S.R.Scheme which is mandate for the S.R. Scheme under Regulation 33(10) of DCR-1991/Therefore, this Committee is of the view that the SRA being Planning authority has to verify the aforesaid irregularities pointed out by the Applicants in aforesaid para Nos.7(i) to (xii) before taking any decision on the proposal submitted by the Respondent No.5 to 10. 10. In view of the aforesaid facts of this case, this Committee remands this matter to CEO, SRA with a direction to look into the irregularities and incompleteness pointed out by the Applicants mentioned in para 7(i) to (xii) and take appropriate decision on the proposal submitted by the Respondent No.5 to 10. Till then all the parties are directed to maintain status quo with regard to the subject S.R.Scheme.'
12. The petitioners pointed out that on 21.10.2013 an eviction order was passed under section 33 and 38 of the Slum Act by the Competent Authority against the non cooperating slum dwellers. On 19.11.2013 this Writ Petition No.2575 of 2013 is filed.
13. On 9.12.2013 Writ Petition No.2745 of 2013 is filed by the developer challenging the same order dated 16.9.2013 and passed by the High Power Committee. On 17.12.2013 the Division Bench of this Court stayed the implementation and effect of the order passed by the High Power Committee in both the petitions.
14. A reply affidavit was filed by respondent No.11 – Santosh Sahu and thereafter on 8.1.2014 the Division Bench directed that the petitioners namely the Societies and the Developers should not demolish the structures in which the respondents are residing. However, it is clarified that the proceedings under Section 33 and 35 of the Slums Act can continue. A slum Appeal No.25 of 2014 was filed by the aggrieved parties against the eviction order of the competent authority dated 21.10.2013. The Slum Rehabilitation Authority filed a reply thereto and there was a rejoinder filed by the petitioners as well. It is apparent that the order passed by the High Power Committee has been challenged by Chembur Ayodhya Cooperative Housing Society (proposed) and the stand of that society is that the High Power Committee should have allowed their application in its entirety and the order partially allowing the same, therefore, should be quashed and set aside.
15. The Developer has filed Writ Petition No.3048 of 2014 against that part of the order passed by the Appellate Authority in slum appeals, which was delivered on 8.10.2014, that the hutments and the occupants therein cannot be removed despite their appeals being dismissed. Thus, the Appellate Authority misinterpreted and misconstrued the order dated 8.1.2014 passed by this Court in the Writ Petition. Today the position is that commencement certificate is issued by the Competent Authority enabling the firm of Builders and Developers to commence construction of a Rehabilitation Building on the subject property.
16. It is in the above background that we must consider the rival contentions.
17. Mr.Dhakephalkar, learned Senior Advocate appearing on behalf of the petitioners in Writ Petition Nos.2575/2013 and 2745/2013 submits that the impugned order is contrary to the Slum Act. The impugned order is vitiated by an error apparent on the face of the record. There is total non application of mind on the part of High Power Committee. Mr.Dhakephalkar, would submit that all concluded proceedings are now sought to be reopened. It is not permissible for the High Power Committee to pass such an order so as to nullify the entire scheme. Once the High Power Committee had disposed of the application moved by respondent No.10 and has not accepted their requests, then, all the more the impugned directions cannot be sustained. Mr.Dhakephalkar submits that the High Power Committee ought to have appreciated that respondent Nos.10 and 11 did not press their applications as they were satisfied with the directions issued by the High Power Committee on 6.12.2008. Its own order, therefore, should have enabled the High Power Committee not to entertain any fresh application. The issue was never at large and in the manner now found by the High Power Committee. Mr.Dhakephalkar also submits that the High Power Committee has not assigned any reasons for arriving at the conclusion that a fresh inquiry is necessary into the allegations and complaints of respondent Nos.10 and 11. He submits that the complaints have been set out serially. The allegations have also been reproduced. However, the High Power Committee has not assigned any reasons for accepting the statements and allegations and ordering re-inquiry and re-verification. It should have applied its independent mind and assigned cogent and satisfactory reasons in the event it was of the opinion that a fresh inquiry is necessary. That is not done by the High Power Committee. Mr.Dhakephalkar submits that the High Power Committee has been constituted by the State to deal with the disputes during the course of implementation of Slum Rehabilitation Schemes. That a High Power Committee has been set up and comprising of top and senior level officials of necessary departments of the Government to minimise litigation and not to encourage the parties indulging in them repeatedly. Such litigation harms the cause of eligible slum dwellers and who are waiting for the fruits of rehabilitation scheme. Now that the issue of consent of 70% or more slum dwellers has been concluded, all approvals and permissions have been granted, those who are eligible and either cooperating or not cooperating having been removed from the site, it was a plain duty of the Authority to clear the area for implementation of rehabilitation scheme, that has also been done. The commencement certificate is issued and when the petitioners were about to commence the construction work through the developer that such obstacles and hurdles are raised. The High Power Committee instead of removing them, has once again encouraged those slum dwellers who wish to obstruct the petitioners' societies and the developer in undertaking and completing the scheme.
18. Mr.Dhakephalkar submits that the judgment and order passed by this Court in the case of 'Atesham Ahmed Khan & Ors. Vs. Lakadawala Developers Pvt.Ltd. & Ors., (2011(3) Mh.L.J. 604)' would have no application in the facts and circumstances of the present case. A reliance is also placed upon the recent judgment and order passed by the Hon'ble Supreme Court in Civil Appeal Nos.9363 of 2011 and 9147 of 2011 decided on 1.4.2015 in the case 'Balasaheb Arjun Torbole & Ors. Vs. The Administrator & Divisional Commissioner & Ors.'. The Hon'ble Supreme Court has held that when in aggregate consent of 70% or more slum dwellers has been obtained, the essential purpose of slum rehabilitation scheme cannot be put to peril on the ground that certain procedures were not strictly followed or some steps were against the procedure prescribed or guidelines for preparation of Annexure II in a prescribed format were not abided by strictly. Once the claims have been examined and Annexure II has also been prepared, the verification has been done so as to find out 70% slum dwellers who are eligible to participate in the scheme, they have consented to rehabilitation scheme being implemented by the developer chosen by the society, then, the scheme must be allowed to go through and for the benefit of those who are awaiting for healthy and hygienic conditions of residence. They would like to reside in the structures which are habitable and which have basic amenities. They cannot be made to or forced to continue to reside in either slums or temporary accommodation or transit accommodation endlessly. For all these reasons, Mr.Dhakephalkar would submit that the petition be allowed.
19. We have also heard Mr.Chiarg Balsara, learned Counsel in support of other petitions and filed by the developers. They challenge the same order and directions of the High Power Committee. In addition, it is pointed out as to how the Appellate Authority exercising the appellate powers under Section 38 of the Slums Act misconstrued and misinterpreted the order passed by this Court. Mr.Balsara would submit that even that petition be allowed.
20. The reply of the Slum Rehabilitation Authority would be relevant for the purpose of deciding these Writ Petitions. In that reply and which has been filed by the Assistant Engineer Mr.Madangopal L.Raikwad it has been highlighted that the Slum Rehabilitation Authority is a planning authority for implementation of a slum rehabilitation project. The Slum Rehabilitation Authority is constituted with an aim, object and function to implement the slum rehabilitation scheme project in Mumbai city and Mumbai suburban district and to provide permanent alternate accommodation to the eligible slum dwellers free of cost and without any consideration. The subject slum rehabilitation scheme, according to this Slum Rehabilitation Authority, is not in any way hampered nor its implementation delayed or postponed endlessly as all that has been directed by the High Power Committee is to consider the allegations made by Respondent Nos.10 and 11. If there are any irregularities, then, they need to be looked into. Therefore, the Writ Petition need not be entertained. At the same time in paragraph 4 of this reply, it has been stated that by its order dated 22.2.2007 the Slum Rehabilitation Authority has not processed the proposal or scheme submitted by respondent Nos.10 and 11. That is because it was found that a new proposal cannot be accepted when the earlier proposal submitted by the petitioners is pending. Thereafter, it has been pointed out that respondent Nos.7 and 8 in this Writ Petition had submitted a proposal. That is a proposal really of the present petitioners but presented through respondent Nos.7 and 8. That proposal was taken on file on 11.9.2006. The respondent Nos.7 and 8 submitted Annexure I, II and III. In the draft Annexure II submitted by respondent nos.7 and 8, 625 slum dwellers have been shown out of which common consent of 438 slum dwellers was submitted. An area admeasuring 1030 sq.meters on the said property was reserved for recreation ground and hence, same was excluded from the scheme. However, this Court passed an order dated 10.5.2012 in a Notice of Motion moved in a Public Interest Litigation/ Writ Petition filed by M/s.City Space & Ors. For relocation of recreation ground area with the condition of 100% of it to be handed over to Municipal Corporation for Greater Mumbai after removing all the slum dwellers therefrom. While issuing Annexure II, the Deputy Collector (encroachment) and the Competent Authority, Chembur has restricted area to 10030.125 sq. meters for 520 slum dwellers. The affidavit proceeds to admit the position that the Slum Rehabilitation Authority has issued a Letter of Intent dated 24.3.2011 to the Petitioners for rehabilitation of 367 slum dwellers who are eligible in the scheme and intimation of approval was issued on 15.1.2013. Presently, 290 number of slum dwellers have been shifted from the site and the scheme is being implemented for rehabilitation of 520 slum dwellers. This affidavit was filed on 17.1.2014.
21. The real contest is by Chembur Ayodhya Cooperative Housing Society (Proposed). It had filed an affidavit of Mr.Santosh Ayodhya Prasad Sahu dated 7.1.2014. In this affidavit it has been urged that there is no merit in this Writ Petition and it must be dismissed. The short affidavit, according to this deponent, purports to highlight that the petitioners are obstructing the independent power of Chief Executive Officer of Slum Rehabilitation Authority to implement the order of the High Power Committee. The High Power Committee has rightly remanded this matter to those authorities to look into the allegations of these respondents. Those allegations are serious in nature. Their gravity is highlighted by the respondents and in that regard it is submitted that this Court should not interfere in the order of the High Power Committee. It is submitted that the arguments that the second application should not have been entertained by the High Power Committee, is completely without substance. In the first application what was prayed for is comprehensive inquiry and investigation in the irregularities and incompleteness of the list of eligible slum dwellers. A limited request was made. Though there are several prayers in the application, it is not as if all were pressed at this stage. In any event if there are serious and grave irregularities and illegalities in the scheme, in the proposals which are pending and which are not noticed by the Competent Authority or rather ignored, then, parties like respondent nos.10 and 11 can bring them to the notice of the Authorities and compel them to review their decisions in accordance with law. In the present case the statute namely the Slum Act obliges all these authorities to implement a scheme for rehabilitation of slum dwellers. The fruits of this scheme must go to the slum dwellers. Now that such schemes are heavily loaded in favour of the builders and developers, that it is high time that this Court should not interfere with the directions of the High Power Committee. Reliance is placed on the decision of this Court in the case of 'Awdesh Vasistha Tiwari And Ors. vs The Chief Executive Officer, Slum, (2006(4) Mh.L.J. 282)' and the judgment in the case 'Atesham Ahmed Khan & Ors. Vs. Lakadawala Developers Pvt.Ltd. & Ors.(2011(3) Mh.L.J. 604)'.
22. The principle contention on behalf of these respondents and as highlighted by the learned Counsel Mr.Pai and Mr.Punalekar is that this Court should not interfere in writ jurisdiction when a fraud perpetrated on the slum dwellers and the public at large is directed to be investigated. The slums are on city survey numbers and which have been noted by us. The area carved out by scheme is 10030.125 sq.meters. However, our attention has been invited to Appendix IV to the Development Control Regulations and particularly Regulation 1.4 and 3.11. It is submitted that 45% of the land is reserved for public purpose. If this is the extent of reservation, no slum rehabilitation scheme could have been carved out much less prepared, allowed and implemented. The Development Control Regulations are, therefore, completely ignored and brushed aside. The argument is that the mandate of Article 21 of Constitution of India is violated when the public places and which have to be mandatorily kept open in the form of garden, parks and recreation grounds are reduced and their numbers go down drastically. If there is a provision to keep open spaces and free from any development and construction activity, then, that purpose is wholly defeated and frustrated when a proposal for construction of building and structures to rehabilitate slum dwellers allegedly are permitted. In the garb of relocating and rehabilitating them, the builders reap huge benefit or profit. The argument is, therefore, that this Court should not allow the scheme to be implemented which is bad in law and from inception, and that technical arguments and objections should not, therefore, be upheld and the petition be dismissed.
23. Mr.Punalekar also highlighted some facts and particularly that the applications which were filed by the petitioners and their Architect were incomplete in material aspects. The objections in that regard are enumerated and it is submitted that the number of slum dwellers, those eligible therefrom has not been computed in accordance with law. If any slum rehabilitation scheme is sought to be implemented and by ignoring the Development Control Regulations or seeking to modify them, then, even the mandate of Section 37 of the Maharashtra Regional and Town Planning Act, 1966 is violated. It is only the planning authority which has necessary power, authority and jurisdiction to initiate and effect any modification to the Plan. Appendixes to the Development Control Regulations are part of the development plan. Therefore, when open spaces which are lungs of the residents and citizens, are being consumed and for development of the properties and construction of sky scraper/ high rise buildings, then, we should not countenance any of the contentions of the petitioners. If they are accepted even a Public Interest Litigation pending in this Court would be reduced to nullity. That highlights the reduction in number of open spaces, gardens and playgrounds in a city like Mumbai. So long as that Public Interest Litigation is pending, we should not entertain any such petitions and, therefore, they must be dismissed.
24. With the assistance of the learned counsel appearing of the parties, we have perused the Writ Petitions and their annexures. We have also perused all the affidavits and particularly of the contesting respondents. What we have noted from the admitted documents and their contents is that a plot of land at Chembur, Mumbai was identified by the Slum Rehabilitation Authority as an area for implementation of the scheme. It found that a proposal was submitted by the Architect Mr.Somali M.Parui on behalf of the petitioners. From the file papers submitted by the Architect, it is noticed that CTS No.116(pt), 123(pt), 1835(pt) of Chembur Village is partly affected by reservation of recreation ground and road depot. In the light of the pending Writ Petition filed by City Space in the High Court, the portion of recreation ground and play ground's inclusion in the scheme cannot be accepted by the Slum Rehabilitation Authority. However, the Architect had proposed that 100% area reserved for recreation ground to be handed over to the Municipal Corporation for Greater Mumbai. On this portion, there are 182 slum dwellers and they would be accommodated in the scheme of rehabilitation without claiming FSI advantage for recreation ground plot. The Architect assured that all 182 tenement holders / slum dwellers situated on recreation ground will be accommodated and vacant possession of that portion would be handed over to the Municipal Corporation.
25. Thus, 22% of the area is under recreation ground. However, individual slum rehabilitation scheme thereon is not viable, therefore, one combined scheme of having four proposed societies has been forwarded. After leaving out the portion under the recreation ground, the request was that the balance portion be considered for implementation of slum rehabilitation scheme. On this proposal, the Slum Rehabilitation Authority and particularly the Chief Executive Officer found that the scheme can go through, provided the conditions recorded by him are acceptable. Thereafter, there is a decision taken accepting the proposal. We have also found from the record, a reference to the communication of the Deputy Collector (Encroachment / removal) at page 39 of the paper book in Writ Petition No.2575 of 2013 and submitted on 31.10.2007, that Additional Collector (Encroachment/removal) addressed letters dated 5.12.2006, 30.8.2007 and in the light of the communication from Slum Rehabilitation Authority dated 29.10.2007, that the proposal is forwarded for preparation of Annexure II. The Deputy Collector was directed to examine whether the petitioners' societies enjoys the support of 70% of the slum dwellers. Equally, a spot inquiry was to be made by the said Deputy Collector. This was in tune with the Development Control Regulations and particularly 33(10). The Deputy Collector, therefore, forwarded in the requisite form the list of those eligible / ineligible slum dwellers. The list was forwarded in four sets. The list is prepared serially and qua the etitioners' societies. The findings of the Deputy Collector (encroachment/ removal) are that there is support of 70% and more slum dwellers to this scheme of rehabilitation. Further to the proposal, the petitioners before us complied with other requirements. The papers have been verified and scrutinised in the backdrop of the voters' list prepared for assembly elections particularly of Chembur Constituency. The authorities have satisfied themselves that the eligible slum dwellers are indeed residing there and this satisfaction was recorded after the site inspection and visit. Whether the maps/ sketch maps are matching with the survey documents has also been verified and now a consolidated map has been prepared and which has signature and approval of the competent official. It has also been found that the scheme / proposal of the petitioners does not include any area or huts of the adjoining plots. This is how the list was forwarded by the Deputy Collector which contains the names of the eligible as also ineligible slum dwellers and remarks on the same. The reservations have also been indicated and equally how the plot is located. Thus, a comprehensive report and containing the above findings came to be forwarded. That was under the authority and stamp of this competent official, it was placed before the Additional Collector (encroachment/ removal), Eastern Suburbs and later on he addressed a letter to the Collector of Mumbai suburban district. That refers to several prior letters and communications. The Additional Collector has, after independently satisfying himself on the contents of the report of the Deputy Collector (encroachment / removal), held that the same can be accepted and acted upon and that it should also be forwarded to the Slum Rehabilitation Authority so as to enable it to take further steps. This letter or communication from the Additional Collector makes a reference to the proposal of Chembur Ayodhya Cooperative Housing Society (proposed). Why it cannot be accepted and in the teeth of the pending proposal from the other societies has been indicated.
26. After this was forwarded through the Deputy Collector (encroachment / removal) to the Slum Rehabilitation Authority vide communication at page 47, what we have found at 'Annexure E' dated 22.2.2007, is that this is nothing but an endorsement by the Slum Rehabilitation Authority of what has been observed in the earlier reports. It has, therefore, requested the competent Authority to start the survey for certification of Annexure II submitted by the Architect M/s.Arco for four combined societies whose proposal was accepted by the Slum Rehabilitation Authority. This letter specifically states that a proposal was submitted before the Competent Authority Slum Rehabilitation Authority by Chembur Ayodhya Cooperative Housing Society (Proposed) but the Slum Rehabilitation Authority has not accepted their proposal, therefore, question of certification of their Annexure II (List of slum-dwellers for decision as regards their eligibility) does not arise. Thus, the combined proposal of the petitioners was taken up for further process and consideration.
27. 'Annexure F' at page 94 are the minutes of the meeting held on 18.8.2009 in the Chamber of the Chief Executive Officer (S.R.A.). We have found that the representative of Chembur Ayodhya Cooperative Housing Society (proposed) Shri.Shahu was present at the meeting.
28. A proposal which was submitted by PNR Builders and Developers and Annexure-II issued by the Additional Collector (Encroachment/Removal) and the relevant documents were submitted before the Chief Executive Officer and the members of the Society were present at that meeting. The proposal was, then, explained in detail by the Architect. The Chief Executive Officer raised certain queries and which were answered by the Architect. The list of persons who have not given consent to the scheme submitted by PNR Builders and Developers were also brought to the notice of the Chief Executive Officer. It is recorded that 53 structures have not given consent to the scheme and these structures are not contiguous. The Chief Executive Officer counterchecked some of the slum structures from the plans submitted by the Architect and as per Annexure II issued by the Collector dated 10.3.2008, the said structures are either found closed or given consent to the earlier submitted scheme. A detailed scrutiny of the list of the tenements submitted by Ayodhya Cooperative Housing Society was then taken up and total number of structures were shown as 90. The number of names not reflected in certified Annexure-II by the Competent Authority is 30. The number of names appearing in certified Annexure II and the consent given to the Slum Rehabilitation Scheme of the petitioners is taken as 16. The number of names appearing in certified Annexure II but consent not given to the petitioners' scheme was taken as 44 out of which 17 are eligible and 27 are not eligible.
29. After hearing all affected parties, the Chief Executive Officer concluded that the new proposal cannot be accepted without deciding the fate of the petitioners' proposal. Further, the Slum Rehabilitation Scheme was submitted in the year 2006 by the petitioners and Annexure II was issued for the entire scheme plot including the structures who have given consent to Chembur Ayodhya Cooperative Housing Society (Proposed). The plot cannot be carved out for better planning. These minutes are countersigned by all the parties.
30. Thus, what we find is that the documents which have been placed before this meeting included the comprehensive proposal of the petitioners and Annexure II from the authorities incharge of preparation and forwarding them and equally the counter proposal of respondent No.10. There are further letters which are annexed but we find that each one of them being of the year 2008 were duly considered at this meeting dated 18.8.2009. We cannot, then, accept the contentions of Mr.Pai and Mr.Punalekar that adequate care and caution has not been taken and the proposals of builders and developers are blindly accepted in preference to those submitted by the slum dwellers. We cannot accept such contentions in the absence of requisite and satisfactory proof of arbitrariness, high handed action and malafides of the Authorities. There is absolutely no material to support the general oral assertions. The Competent Authority, their High powered Senior Authorities, in charge of implementation of slum rehabilitation schemes have applied their mind to all the relevant aspects including compliance with Planning and Municipal legislations while approving the scheme. They are aware that a Public Amenity like garden has to be provided. They do not permit any construction and development activity on the same. The entire plot is not affected by the reservation of Public Garden. The extent of reservation for such amenity has been deleted from construction of structures meant to rehabilitate slum dwellers. The size of the plot for construction is reduced to that extent. Thus, there is compliance with the D.C. Regulations. Care has been taken and a condition has been imposed on the Builder and Developer to develop a Public Garden and hand it over to the Planning Authority. All this is free of cost and without any attendant benefit to the Builder. Thus, no hijacking of the slum rehab scheme by influential Builders and developers is permitted by the Authorities. The extent of reservations being noted by us above, there is no prohibition and total on the construction activity at the site. There is no violation of the D.C.Rules 1.4 and 3.11 as complained nor is there anything done contrary to the policy of not allowing construction indiscriminately so as to consume the open spaces. Thus, there is no substance in the contention that the mandate of Article 21 of the Constitution is flouted. Now, the participation of private entities in such schemes is inevitable for the State has limited resources and manpower. Even the contesting Respondents have to take assistance of private entities for a decent housing accommodation.
31. It is pertinent to note that an application was made before the High Power Committee by Chembur Ayodhya Cooperative Housing Society (proposed). In that they impleaded all the petitioners as party respondents and alleged that even the Authorities have not acted in accordance with law. The allegations against the Statutory Authorities are contained in paragraphs 2 to 7 and with several sub-paragraphs. A specific allegation in paragraph 8 is that there is overlapping in the area between Chembur Ayodhya Co-operative Housing Society (proposed) as well as the property on which the other societies have submitted their proposal. It has been pointed out as to how the Annexure II prepared by the Deputy Collector contains some errors and illegalities. It was, then, alleged in paragraph 9 that the petitioners though urged that there are 625 slum dwellers but they have produced consent of 250 slum dwellers. Thus, they did not enjoy the support of 70% slum dwellers. The Chembur Ayodhya Cooperative Housing Society (proposed), therefore, objected to the same and their Advocate's correspondence is referred to. The Advocate corresponded with the statutory Authorities and including the Slum Rehabilitation Authorities and requested not to process the proposal of the petitioners. These are the specific allegations in paragraph 9. Then, in paragraph 10 it is submitted as to how intervention of local Member of Parliament was sought. Then, there are grounds set out in paragraph 11 of this application and which enumerates, inter alia, as to how there are several irregularities and illegalities in the proposal submitted by the petitioners. It has been urged in ground (e) that out of 106 slum dwellers near about 85 slum dwellers confirmed that they have not given their consent to any other society and, therefore, their names should not have been included in the proposal of the petitioners. Then, the contravention of the order passed in the Public Interest Litigation about the open space and gardens, contravention of DCR 33(10) has been highlighted. The prayers are to be found in paragraph 18 and prayer clause (b) on page 126 of the paper book reads as under:
'(b) This Hon'ble Committee be pleased to hold & declare that the proposal submitted by Respondent Nos.4 to 7 on the land, bearing CTS No.123, situate at Vatsalatai Nagar, S.G.Barve Marg, Chembur, Mumbai-400071, being the land in possession of Appellants and their members is illegal, bad in law and contrary to the procedure, prescribed by SRA and further be pleased to direct Respondent No.3 to reject the proposal of Respondent Nos.4 to 7 on the said property.'
32. It is common ground that on this application, subsequently an order was passed. In the meanwhile on 6/8.12.2008 the High Power Committee decided application No.363 of 2008 of Arco, Architect & Interior Design, and passed the following order:
'1. Heard Architect Ms.Somali Parui the applicant in person. The present application has been filed by the Architect of the Slum Rehabilitation Scheme proposed on plot bearing C.T.S.No.116, 123, 1835 and Survey No.14, 14A of village Chembur, Taluka Kurla for 4 Cooperative Housing Societies viz.
Indian CHS (proposed), Sant Rohidas CHS (proposed), Kohinoor CHS (proposed) and Vatsala CHS (proposed).
2. The present application has been filed by the applicant seeking direction from this Committee to verify the documentary evidence produced by the slum dwellers who have been held non-eligible in the Ann-II issued by the Additional Collector (Enc/Rem) & Competent Authority, Mumbai Eastern Suburb. It is further contended by the applicant that name and structures of some of the occupants have not been included in the said Ann-II as per names mentioned in the list annexed with this application.
3. As observed by the Hon'ble High Court of Judicature Bombay in its order dated 3/2/2007 passed in contempt petition no.132/07 in Writ Petition 555 of 2007 (Dropadi Shivsagar Singh Vs. The SRA & Ors.), the Applicant is hereby directed to file an application for deciding eligibility of non-eligible slum dwellers as well as the slum dwellers whose names are not included in Ann-II before the Additional Collector (Enc/rem) and Competent Authority Eastern Suburb within a period of one week from the date of receipt of this order and the Additional Collector (Enc/rem) and Competent Authority Eastern Suburb is hereby directed to decide the eligibility of the said slum dwellers within a period of eight weeks from the date of receipt of such application from the applicant in accordance with law and submit compliance report to this committee.
4. In view of the above, nothing survives in the Application. Hence, the application stand disposed.'
33. It is after this, respondent No.10's application bearing No.242 of 2008 was taken up and the High Power Committee has recorded as under:
'2. During the course of arguments Advocate Mr.S.G.Surana has submitted before this Committee that in view of the decision of the Committee dated 8-12-2008 in Application No.363/2008 filed by Arco Architect & Interior Design, nothing survives in present application.
3. In view of the said statement made by the Advocate for the applicant nothing survives in this application. Hence, the present application stands dismissed.'
Thus, the Advocate appearing for Chembur Ayodhya Cooperative Housing Society (proposed), during the course of arguments, submitted before the committee that in the light of the order passed on 8.12.2008 (erroneously mentioned date instead of 6.12.2008) in Application No.363 of 2008 of Arco Architect & Interior Design, reproduced above, nothing survives in the application of Chembur Ayodhya Co-operative Housing Society (proposed) and it should be disposed of.
34. Thereafter, we have also perused the order dated 29.7.2009 and we have found that though it has been repeatedly argued that the open spaces are being reduced or that the open spaces are being affected adversely, there is no material in that regard. The application that was filed being No.497 of 2011 before the High Power Committee by Chembur Ayodhya Cooperative Housing Society (proposed) and Mr.Santosh Ayodhya Sahu against the Chief Executive Officer and others, contains selfsame allegations and identical paragraphs, grounds and prayers. Though they may be highlighting certain developments, what has been pointed out and by the four societies before us as petitioners and the Architect as also the builder and developer that the application does not deserve to be entertained. Firstly, because a letter of intent has been issued on 24.3.2011, that is after the satisfaction which has been recorded by the authorities about the genuineness of the proposal and the documents accompanying the same. It has been pointed out that as to how Mr.Santosh Ayodhya Sahu is non eligible slum dweller. He is the promoter of Chembur Ayodhya Co-operative Housing Society (Proposed). Then, it is pointed that this is not the first litigation initiated by this society. They filed application No.242 of 2008 and the parties thereto were the same. Then, the written statement refers to the allegations contained in their earlier application, correspondence including initiated by the Advocates and the developments leading to the issue of Annexure II and eventually Letter of Intent in favour of the Architect and Builder and developer. The written statement points out the allegations in earlier applications, how they have been dealt with by the contesting parties namely the petitioners and equally by the statutory authorities. We need not reproduce each one of them. We are satisfied from reading thereof that the High Power Committee entertained the fresh application raising identical grievance, complaints and setting out same allegations. We have also on record a communication from the Deputy Collector (encroachment / removal) dated 16.11.2012, this is rather containing his order and it has been recorded therein that there are 521 slum structures/ huts, 250 thereof are eligible slum dwellers, 225 thereof are eligible for residential structures, 24 for commercial and one for residential cum commercial, and 267 have been found ineligible. However, M/s.Archo, Architect and Interior Design filed Appeal No.363 of 2008 before the Appellate Authority on behalf of some ineligible slum dwellers. On that appeal an order was passed on 6.12.2008. They have been directed by this order to make individual applications before the Additional Collector (encroachment / removal). On that application and individually made, the Additional Collector (encroachment and removal) and the competent authority were directed to submit report and the relevant criteria within two months. In the light of the same, further action was taken and all the parties were intimated to produce relevant proof /evidence. In the light of the same, the Deputy Collector concluded that 199 non eligible slum dwellers were heard and their papers and documents were duly and properly scrutinised so also verified. 192 slum dwellers could not submit any evidence. Seven, however, could produce evidence of their residence and on the cut of date namely 1.1.1995.
35. We have also found that certain applications for intervention were made in the pending application before the High Power Committee bearing No.497 of 2011.
36. However, the Slum Rehabilitation Authority on 10.1.2013 issued a revised letter of intent and what we have found from the same is that the Chembur Ayodhya Cooperative Housing Society (proposed) and Mr.Santosh Sahu have been urging erroneously that there is a reduction in the recreation ground area. The area of recreation ground reservation is stated to be 1030 sq.meters and area for the road depot reservation is equivalent to 501.475 sq.meters and area under road setback is 1095.48 sq.meters. Therefore, from the total plot area considered for the proposal namely 10030.125 sq.meters, if the above areas were deducted, the net plot area is 7402.545. It is based on plot computation and further addition thereto on account of available FSI that the scheme of the petitioners is going to be implemented and that would contain rehabilitation buildings, Balwadi, Welfare centre, Society office, common passage and existing amenities. Rehab components would comprise the area of rehab building and aforesaid amenities which is 13462.855 sq.meters. The commensurate area was available for sale components. Thus none of the statutory authorities have compromised and as falsely urged, any reservation / public amenities namely recreation ground. The area has not been reduced but rather carved out specifically. It has been computed properly and correctly, and thereafter no development was permitted thereon. No construction activities have to be carried out on the same and that area was directed to be surrendered to Municipal Corporation for Greater Mumbai. All the conditions in the revised Letter of Intent and the additional conditions thereto have taken care of all the aspects and which have been highlighted before us.
37. We have also not found any substance in the complaint of M/s.Chembur Ayodhya Cooperative Housing Society (Proposed) and which has been taken care of by the authorities that the proposal submitted by the petitioners would consume the area which is reserved for recreation ground. None of the development plan proposals have, thus, been interfered with. Even the commencement certificate takes care of all this. Further, it has been stipulated as a condition therein that recreation ground or amenity open space should be developed before submission of building completion certificate. The access road and other amenities also should be provided before submission of the building completion certificate. Once we find that the Slum Rehabilitation Authority as a planning authority has in addition to its obligation and duty under the Slum Act discharged all its duties properly, then, this is not a fit case for our interference in the writ jurisdiction.
38. To that extent we do not find any substance in the Writ Petition of Chembur Ayodhya Cooperative Housing Society and Mr.Santosh Sahu or the objections raised by them.
39. Now coming to the order passed by the High Power Committee and on the Application No.497 of 2011, what we have found is that the matter was heard on 17.8.2013. The order was pronounced on 16.9.2013. The order from paragraph (1) does nothing but word by word copies and reproduces verbatim the allegations and the prayers. That ends at internal page (3) of the impugned order. In paragraph (2) the Committee records that the matter was heard on 17.8.2013. Shri.Vijay M.Waghela, Advocate represented the said applicants namely Chembur Ayodhya Cooperative Housing Society (proposed). Advocates for the builders and developers were present and equally the representatives of the petitioner's society. The matter was closed for order. Then, what we find in paragraph (3) is that the committee refers to the arguments of the Advocate for the applicants and his reliance on the judgment of the Division Bench in the case 'Atesham Ahmed Khan Vs. M/s.Lakdawala Developer Pvt.Ltd.' (supra). Then, what we find in paragraph (4) is the stand of the contesting parties namely the petitioners, the builders and developers. The Committee, then, refers in paragraph (5) to the record of the Slum Rehabilitation Authority. It also finds reference and extensively made therein to the applications for certification of 'Annexure II' of the eligible slum dwellers. It also finds reference to Letter of Intent dated 24.3.2011 and its revalidation till June,2012. Then, from its own record it finds that the earlier application by Chembur Ayodhya Cooperative Housing Society (proposed) being Application No.242 of 2008 raised same grounds. The dismissal of that application is noted. Then, it makes reference to Application No.363 of 2008 seeking direction to the concerned authorities to decide the eligibility of slum dwellers whose names are not included in 'Annexure II' issued by the Competent Authority. Thus, the architect's application and the record of Slum Rehabilitation Authority and High Power Committee's record are extensively referred by the Committee. It also reproduces its order passed on 20.10.2012. That order takes on record the report of the Deputy Collector dated 17.10.2012 and which complies with the committee's directions dated 1.9.2012. Then, the argument noted was that the committee was informed that the earlier directions issued on 6.12.2008 in Application No.363 of 2008 were not complied with. It is, therefore, the Committee directed the Competent Authority to submit a report. That was to be done within four weeks. The matter was, then, adjourned. Pursuant to the directions of the Committee, the Deputy Collector (Encroachment/removal) / the competent authority submitted its reports on 16.11.2012 and 26.11.2012. There is an extensive reference to these reports at paragraph 5 of the Committee's order at page 340 of the paper book.
40. Then, in paragraph (6) the Committee makes a reference to the main contention of the Chembur Ayodhya Cooperative Housing Society (proposed) / applicant that the proposal submitted by the petitioners' society cannot be accepted as it is not complete. The reliance placed by the applicants on the order passed in the case 'Atesham Ahmed Khan Vs. M/s.Lakdawala Developers Pvt.Ltd.' (supra) is referred and also to the earlier orders and directions of the committee. The Committee also found from the record that the proposal of the petitioners submitted through their Architect has been processed and finalised. Yet at page 342 of the paper book, it reproduces the irregularities as alleged by the applicants in Application No.497 of 2011 and the allegations made in the intervention application submitted before the Committee on 22.2.2013 by 66 slum dwellers. We are of the view that beyond reproducing these alleged irregularities and highlighted in these applications, the Committee has not recorded any satisfaction and which was mandated in law namely that if the proposal of the petitioners as submitted, processed, verified, scrutinised and finalised, deserves to be cancelled or quashed completely and the Committee had to nullify all the earlier steps, it should have assigned cogent reasons and beyond making reference to or reproducing the allegations. It was its plain duty to apply its mind to its own record and, thereafter, to conclude that despite earlier proceedings, fresh round of litigation needs to be entertained and at the instance of the same parties. We do not find any such exercise being undertaken much less the reasons recorded. In two paragraphs, the Committee holds that the allegations being serious and irregularities are alleged, there is necessity to verify the same. The Committee, therefore, remanded the matter to the CEO, Slum Rehabilitation Authority with a direction to look into the irregularities and incompleteness pointed out by the applicants mentioned in paragraphs 7(i) to (xii) of the application and take appropriate decision. The Committee directs maintenance of status-quo. We do not find any support for such a conclusion and the ultimate direction in the entire order of the High Power Committee. Apart from there being no merit in the complaint and that the impugned order vitiated by non application of mind, additionally we find that it is perverse. The impugned order makes no reference to the germane and relevant materials which were available on record of the Statutory Authority and the High Power Committee itself. None of the Statutory records were disputed and by producing proof and clinching evidence. None of the earlier orders of the High Power Committee and disposing of the proceedings were challenged in the higher forum or Courts by the Chembur Ayodhya Cooperative Housing Society (Proposed) and Mr.Santosh Sahu. In the circumstances, this is a fit case to hold that the Committee itself and by its act has interfered with the due, complete and proper implementation of Slum Rehabilitation Scheme which is proposed, accepted and finalised by the Competent Authority including the Slum Rehabilitation Authority. The Committee and the members of whom include higher officials from the Municipal Corporation, Slum Rehabilitation Authority and the Maharashtra Housing and Area Development Authority, Mumbai Metropolitan Regional Development Authority, should not lightly and casually disturb its own record and statutorily maintained. Once the steps taken are in accordance with law and statutory requirements are duly complied with, then, a scheme finalised be allowed to go ahead. We do not see why there cannot be a coordinated effort. The Committee should not and as a matter of course find fault with the officials and competent to deal with such matters or their acts and which have been performed by them in accordance with law.
41. The reliance placed by Mr.Dhakephalkar, therefore, on the recent judgment of the Hon'ble Supreme Court in torbole's case (supra) is well placed. The Hon'ble Supreme Court has held that the schemes which are formulated and implemented referred to guidelines. The guidelines indicate the procedure for submission, processing and approval of slum rehabilitation scheme. The procedure for submission indicates that 70% or more of the eligible hutment dwellers in a slum or pavement in a viable stretch at one place have to show their willingness to join slum rehabilitation scheme and come together to form cooperative society of all eligible hutment dwellers through a resolution in that regard. There is an obligation on the Chief Promoter, office bearers and the members of the proposed society to collect necessary documents and get the plot surveyed/ measured and prepare map of the plot slowing slum structures with the help of surveyors attached to the office of Additional Collector (Encroachment) or the Deputy Collector (Encroachment) of the Zone. The extensive reference of the Hon'ble Supreme Court to this procedure is to ultimately conclude that the slum rehabilitation schemes once taken up for implementation need not be, then, interfered with and in the absence of such materials as would demonstrate a fraud or gross illegalities or irregularities beyond compliance with certain procedural requirements. The Hon'ble Supreme Court has concluded that the Authorities having verified the particulars contained in 'Annexure II' , they were entitled to treat the entire slum area existing over private lands as well as Municipal Corporation lands as one slum area and since consent of 70% or more of slum dwellers of such area was available, the authorities did not commit any illegality so as to vitiate the grant of approval for slum development scheme. The Hon'ble Supreme Court has concluded that some procedural or minor infirmities in the proposal should not be given undue importance once the Statutory Authorities have performed their task. The Supreme Court's conclusions are that when in aggregate consent of 70% or more slum dwellers has been obtained, the essential purpose of slum rehabilitation scheme cannot be put to peril on the ground that certain procedures were not strictly followed or some steps were against procedures prescribed in the guidelines for preparation of Annexure II in a prescribed format.
42. Additionally, we find that in this case the petitioners have explained that eligibility of 521 occupants was examined on 10.3.2008, 250 were declared eligible but the process could not be concluded and eventually on 29.7.2009 it resulted in some more occupants namely 82 in number became eligible. Then, 40 more were declared eligible on 5.2.2010. Thus, the allegations made that there are certain blank colums in 'Annexure I', there is no table survey or biometric survey, have been dealt with by pointing out that there is no system of biometric survey, and table survey was carried out and the plan in respect to the same was submitted to Slum Rehabilitation Authority. All this extensively finds reference in the documents which have been enlisted in the Slum Rehabilitation Authority's final approval, Letter of Intent and revised approval. We do not find any reason, therefore, to accept the allegations and based on which the High Power Committee directed that the investigation be carried out. The High Power Committee has lost sight of the fact that there is difference between irregularities and illegalities. If there is irregularity which is not material and which does not vitiate the entire process, then, the procedural infirmities are not to be elevated to such level as would nullify the ultimate action. The illegalities staled to be gross and requiring rescrutinization and reverification of the scheme are of not such magnitude. They are not as in the case of 'Atesham Ahmed Khan & Ors.' (supra), and therefore, we do not find that any assistance can be derived from the Division Bench Judgment. There the Division Bench has found that the first and second petitioners before them were Chief Promoters of a proposed Cooperative Housing Society. The third petitioner was a developer. The first respondent developer Lakadawala Developers Pvt.Ltd. had submitted the earlier proposal / scheme, however, he went on making improvements therein. There were 1235 structures which were first indicated. Then, there were documents submitted by the first and second respondents showing more than 1400 structures. They claimed to have consent of 911 slum dwellers. When the petitioners moved complaint before the Slum Rehabilitation Authority, the basis on which the proposal of the first and second respondents was rejected was that there were 1400 existing tenements and it was found on scrutiny that the first and second respondents have not produced consent of 70%. 870 slum dwellers had signed the common consent form which was less than 70%. Thus, when as a matter of fact the application submitted by the first and second respondent was valid on the date on which it was submitted, the High Power Committee later on found that it is necessary to rescrutinise the proposal because the application which was on its face not fulfilling the required criteria should have been rejected. The number of slum dwellers or the structures could not have been inflated nor could have improvement made therein by the builder. It is one thing to hold that the builder is responsible for making addition in slum dwellers or their numbers and another thing of the inquiry in their incompleteness by the statutory authority itself. In the circumstances, we do not find that any assistance can be derived from the Division Bench judgment. The number of slum dwellers in the case 'Atesham Ahmed Khan' (supra) was incorrect. Then, the builder tried to improve upon the figures and facts set out in the application and that is how his proposal was faulted with. Thus, the builder cannot inflate the number of structures and slum-dwellers for his own benefit. It was this conclusion on which the Judgment in 'Atesham's case was rendered. Before us, the number of eligible slum-dwellers fluctuated because the exercise of their identification went on till 2012. It went on because of the intervention of the Statutory Authorities. The Builder rather complained that it should conclude so that he knows the exact number of slum-dwellers who have to be rehabilitated. Even the cooperative societies of slum-dwellers desired an early end to the issue. A group of slum-dwellers was interested in delaying the process. Therefore, in 'Atesham' is distinguishable on facts. 43. As a result of the above discussion, we are of the view that the orders passed by the High Power Committee cannot be sustained. They are accordingly quashed and set aside. Each of the Writ Petitions impugning the same are allowed. Consequently, Writ petition filed by Chembur Ayodhya Cooperative Housing Society (proposed) must be dismissed. We have not found any merit in the grievance raised therein that the Committee should have directed denovo exercise and issued necessary directions. Once we have quashed even the limited directions issued by the Committee, then, this petition should be dismissed. All applications in this nature are also dismissed.
44. In the light of the above conclusion, we also allow the Writ Petitions of the Developer and hold that the order passed by this Court allowing specially the Authorities to complete their task under Sections 33 and 35 of the Slums Act could not have been utilised for giving any reliefs and particularly, to stop removal or demolition of the structures so as to facilitate the development at site. The appellate authority lost sight of the fact that even commencement certificate has now been issued and all appropriate steps have been taken by the builders and developers. In the circumstances, the orders passed by the Appellate Authorities are set aside. The Writ Petitions complaining that they are bad-in-law, therefore, are allowed. Rule is made absolute therein also.
45. We have found that the parties like Chembur Ayodhya Co-operative Housing Society (proposed) and Mr.Santosh Sahu repeatedly approach the authorities and seek their intervention though they are unable to substantiate any of the allegations. Thus, ordinarily this would have been a fit case to impose heavy costs on them while dismissing their petition and allowing the petitions of other slum dwellers and builder and developers. However, a request was made that they being poor and are residing in dilapidated structures and slums, should not be visited with such consequences. In these circumstances and purely on sympathetic consideration, we do not impose costs.
46. At this stage Mr.Pai requests that the order passed by this Court on 8.1.2014 on these petitions protecting the structures and directing that the same may not be demolished, be continued for a period of twelve weeks to enable the Chembur Ayodhya Cooperative Housing Society (proposed) and Mr.Santosh Sahu and others to challenge this order in the Higher Court. This request is opposed by Mr.Lapasiya, learned Counsel appearing on behalf of the builder and developer.
47. After having heard both sides on this point and finding that none of the objections which have been raised by Chembur Ayodhya Cooperative Housing Society (Proposed) and Mr.Santosh Sahu had any substance, the litigation that they indulged in repeatedly, found to be frivolous and vexatious and equally a commencement certificate having been issued, we do not find that this is a fit case to continue the order further. That order is vacated forthwith.