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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO(S). 18121 OF 2017    

SUSME BUILDERS PVT. LTD.                           … Appellant(s)  

Vs.  

CHIEF EXECUTIVE OFFICER, SLUM   REHABILITATION AUTHORITY AND ORS.     ….Respondent(s)  

J U D G M E N T  

Deepak Gupta, J.  

1. A dream turned into a nightmare.  The dream of over  

800 slum dwellers who also happen to be owners of the land  

of having a permanent roof over their head has not turned

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into reality for more than three decades.    The slum dwellers  

are embroiled in various litigations.  There are many powerful  

persons involved, be they builders, promoters and even those  

slum dwellers who have managed to become office bearers of  

the society of slum dwellers.  Learned senior counsel  

appearing for the parties produced before us graphic  

photographs showing the sordid conditions in which these  

slum dwellers continue to reside despite having entered into  

an agreement with the appellant more than 30 years back to  

develop the slums and rehabilitate the slum dwellers in  

proper accommodation.    

THE FACTUAL BACKGROUND:  

2. This case has a long and chequered history and has  

some features which are unique to it.  The land in question  

measuring 23018.50 square meters is situated in the heart of  

Mumbai i.e. Santacruz (East), Mumbai.  This land earlier  

belonged to the Ardeshir Cursetji Pestonji Wadia Trust,  

hereinafter referred to as ‘the Trust’.  A slum had developed

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over the said land.   The slum dwellers formed an Association  

known as ‘the Shivaji Nagar Residents’ Association.  It  

appears that the Trust had initiated some litigation for  

eviction of the slum dwellers. On 19.03.1980 a consent decree  

appears to have been passed in this litigation whereby the  

Trust agreed to transfer the entire land to the slum dwellers  

in case the slum dwellers formed a society.  The slum dwellers  

thereafter constituted a society in the name and style of Om  

Namo Sujlam Suflam Co-operative Housing Society,  

Respondent No. 3 herein (hereinafter referred to as ‘the  

Society’).  About 800 slum dwellers formed the Society, which  

was registered under the Maharashtra Co-operative Societies  

Act, 1960.  In furtherance to the decree, the Trust executed a  

deed of transfer in favour of the Society (Respondent No. 3  

herein), transferring the entire land to the Society on  

20.02.1985.  Thus, this is a unique case where the slum is  

owned by the Society of which the slum dwellers themselves  

are the members.  The slum dwellers are, therefore, also the  

owners of the land in question.    

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3. It would be pertinent to mention that the land in  

question was declared to be a slum under Section 4 of the  

Maharashtra Slum Areas (Improvement, Clearance and  

Redevelopment) Act, 1971 (hereinafter referred to as ‘the Slum  

Act’) firstly on 16.08.1977 and again on 07.12.1983.    

4. On 15.09.1985, a General Body Meeting of the Society  

was held and in this meeting it was decided to appoint M/s.  

Susme Builders Private Limited, hereinafter referred to as   

‘Susme’ (the appellant herein), to develop the property.   

Thereafter, a development agreement was entered into  

between the Society and Susme on 27.02.1986.  It was agreed  

that there were about 800 occupants on the land in question  

and each one of the slum dwellers would be provided  

accommodation measuring 240 sq. ft. built up area with  

carpet area of 190 sq. ft.  The agreement also contained a  

condition that the slum dwellers could purchase additional  

area of 60 or 110 sq. ft. by paying for the extra area at the  

rate of Rs. 350 per sq. ft..  The project was to be completed  

within a period of 5 years.  Consequent to the agreement, the

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Society executed a power of attorney in favour of the nominee  

of Susme on 07.04.1986 virtually empowering it to act on  

behalf of the Society.      

5. Admittedly, no work was done as per the terms of the  

agreement and nothing was constructed during this period.   

The stand of Susme is that during the period some public  

interest litigations were filed, hence the plot of land was        

not developed.    

6. Thereafter, the Development Control Regulations for  

Greater Bombay, 1991 under the Maharashtra Regional &  

Town Planning Act, 1966 (for short ‘DCR’) were enforced.  As  

per these DCRs, each one of the slum dwellers was entitled to  

a tenement of 180 sq. ft. free of cost.  Therefore, the general  

body of the Society met on 30.10.1994 and passed a  

resolution that the earlier agreement be modified and a  

tenement of 225 sq. ft. carpet area be given to each slum  

dweller.  Thereafter, letter of intent in terms of the DCR was

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issued in favour of the Society and Susme on 05.04.1995.  As  

per this letter of intent, each slum dweller was to be alloted  

225 sq. ft. area.  Susme was also to comply with the  

guidelines laid down for redevelopment of notified slums.  It  

was made clear that first the existing slum dwellers were to be  

rehabilitated and only thereafter, free sale could be done in  

the open market.  Susme was specifically directed to carry out  

the activities as per the activity chart and in terms of  

Regulation No. 33(10) of the DCR within five years from the  

date of issue of the commencement certificate.  Thereafter,  

another agreement was entered between the Society and  

Susme on 10.07.1995 and in terms of this agreement each  

slum dweller was entitled for a tenement of 225 sq. ft.; 180  

sq. ft. free of cost and 45 sq. ft. at the cost of Rs. 14,350/-.  

7. In terms of the letter of intent dated 05.04.1995 and the  

agreement, Susme was to construct 12 buildings of ground  

plus seven floors for re-housing the slum dwellers and project  

affected persons on about 11,000 sq. mtrs. of land and  

remaining 12,497 sq. mtrs. was to be developed for the

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purpose of free sale.  During the pendency of this agreement,  

Susme constructed two buildings in which 128 slum dwellers  

were rehabilitated.  This was the only progress which          

took place.    

8.  The DCR was amended in 1997.  Under the new DCR,  

each slum dweller was entitled to a flat having carpet area of  

225 sq. ft..  Naturally, the slum dwellers wanted, that as per  

the amended DCR, which was more beneficial to them, they  

should be granted a larger flat having carpet area of 225 sq.  

ft..  Therefore, another meeting of general body was held on  

10.08.1997.  In this meeting it was resolved that fresh  

negotiations be held with Susme and that Susme should  

carry out further development under the amended Regulation  

33(10) and that 70% residents should consent for the  

redevelopment. Thereafter, another supplementary agreement  

was entered into between the Society and Susme on  

07.01.1998.  In this agreement, it was stated that there are  

867 occupants, out of which 825 are occupying residential  

premises, 27 are occupying shops and 15 are occupying

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industrial units.  This agreement also provided that  

tenements to be provided to each of the residential occupants  

would have a carpet area of 225 sq. ft..  Relevant portion of  

the agreement reads as follows:  

“The parties are aware that under the Slum  

Redevelopment Scheme and the Development Control  

Regulations each slum dweller is entitled to, a tenement  

admeasuring 225 sq. ft. carpet area.  As regards 27 shops,  

the shops members shall be entitled to get such area as  

they are entitled under Sec. 23(10) of D.C. Regulations  

1991 amended from time to time.  As regards 15  

Industrial Units it is agreed that the Developer shall  

negotiate with them directly for developing the area  

occupied by them and the society agrees to sign and  

execute such papers and writings required by the  

Developer for that purpose.”  

Clause 26 of this agreement provided that the plans shall be  

submitted by the developer to the Slum Redevelopment  

Authority (for short ‘the SRA’)  according to Regulation 33(10)  

of DCR, 1991 as amended from time to time.  This agreement  

was treated to be a supplementary agreement to the         

earlier agreement.    

9. Susme, on behalf of the Society, also moved the SRA  for  

permission to convert the old SRD Scheme into a new slum

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rehabilitation scheme.  The SRA granted letter of intent on  

27.01.1998 and approval was granted for conversion of the  

scheme.  Clause 19 of the letter of intent provided that Susme  

would submit the agreements with photographs of wife and  

husband in respect of all the eligible slum dwellers before  

issue of commencement certificate for sale building, or three  

months as agreed by the developer, whichever is earlier.  

10. One writ petition was filed by the Shivaji Nagar  

Residents’ Association being Writ Petition No. 1301 of 1999  

challenging the sanction by the SRA in favour of Susme on  

the ground that Susme had not obtained consent of 70% of  

the slum dwellers.  The said writ petition was dismissed on  

13.12.1999.  The relevant portion of the Judgment reads as  

follows:-   

“We have heard learned counsel appearing for the parties.  

We do not find any substance in the contentions raised by  

the petitioners.  It is required to be noted that some 109  

slum dwellers filed Writ Petition No. 497 of 1997 raising  

identical challenge to the scheme and the said petition  

came to be withdrawn unconditionally on 10th July, 1997.   Thereafter, as indicated earlier, two new buildings were  

constructed and the eligible slum dwellers were put in  

possession of their respective tenements.  Under the 1997  

scheme the builder is required to enter into agreement  

with individual members and accordingly 582 agreements  have already been signed between the parties.  There is

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also no merit in the contention of the petitioners that  

consent of 70% of the Slum dwellers was required under  

the 1991 scheme.  On perusal of the said scheme it is  clearly seen that consent of 70% of the slum dwellers was  

not required and what was contemplated was that if 70%  

of the Slum dwellers join the society, which is interested  

in the rehabilitation of the slum dwellers, then such  

society would be eligible to apply for sanction of the same  

under DCR 33(10).  It is not disputed before us that  practically all the slum dwellers have been enrolled as  

members of the society and, therefore, it is not possible to  

hold that the requirement of 1991 scheme was not  

complied with.  It is also pertinent to note that the  

proceedings of the general body meeting dated 13th  October, 1994 were not challenged by the petitioners or  

any other slum dwellers by adopting appropriate remedy.   

Indeed, the general body meeting had unanimously,  

resolved to modify the agreement in terms of the 1991  

scheme and it is too late to challenge the resolution for the  

first time by way of the present petition which was filed in  1999.  As regards the, 1997 scheme there is a Specific  

provision for conversion, of the old scheme into a new  

scheme and accordingly the proposal for conversion was  

accepted by the authorities and in pursuance of the  

acceptance, two new buildings have been constructed at  an estimated cost of Rs. 5 crores.  In our opinion, this  

petition suffers from gross delay and laches.  It is clearly  

seen that the petitioners were aware of the sanction  

granted to the society under the 1991 scheme as well as  

the 1997 scheme.  The construction on the property began  

in 1996 and two buildings have already been constructed.   Under the circumstances, we do not find any reason to  

interfere in writ jurisdiction under Article 226 of the  

Constitution.”  

11. After Susme had completed 80% construction of the two  

rehabilitation buildings, it applied for grant of Transfer of  

Development Rights (for short ‘TDR’) in terms of the amended  

DCR and sold the same.  Occupation certificate in respect of  

these two buildings was issued on 03.11.1998. While granting  

permission it was observed on the file as follows:-

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“Further, as per policy & DCR 33(10) it is necessary that  

agreements with more than 70% slum dwellers as per new  

scheme is required.  This was pointed out to CEO (SRA)  during discussion, when CEO (SRA) instructed to submit  

agreements with 70% slum dwellers before second phase  

of T.D.R. Developers have informed that out of 869 slum  

dwellers, they have submitted 450 agreements to the office  

of S.R.A. (52%).”  

12.  On 07.07.1999, the architects of Susme, on instructions  

of Susme, submitted 12 files containing 580 numbers of  

individual agreements with members of the Society and  

undertook to file the remaining individual agreements to  

make up 70% in due course of time.  On 18.01.2000, Susme  

was again asked to furnish 70% individual agreements of  

eligible slum dwellers.  Susme replied that in terms of  

judgment of the Bombay High Court dated 13.12.1999, it was  

not required to file 70% individual agreements.  Under the  

1997 amended DCR, the developer was entitled to a higher  

Floor Space Index (for short ‘the FSI’).  Therefore, Susme  

submitted fresh plans for construction of 14 storey buildings  

plus ground floor as against the earlier plan submitted for  

seven storey buildings plus ground floor buildings.  These  

plans were submitted sometime in the year 1998.  However, it

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appears that the plans were not sanctioned and Susme also  

did not pursue the matter earnestly with the authorities.      

13. Thereafter, on 13.02.2001, SRA informed Susme that  

the request of Susme for approving amended plans for slum  

rehabilitation scheme was not considered since the plot under  

reference was affected by the Coastal Regulation Zone  

Notification (for short ‘the CRZ Notification’).  Then Susme  

along with the Society filed Writ Petition No. 2269 of 2001 in  

which the main prayer was for setting aside the CRZ objection  

and it was also prayed that the petitioner be permitted to  

complete the rehabilitation scheme.  In this petition, an  

interim order was passed on 07.08.2002.  

14.  The Government of Maharashtra during this period also  

appointed a one man Commission headed by Shri  

Chandrashekhar Prabhu to enquire into the complaints made  

with regard to the Society and the manner in which the  

rehabilitation scheme was implemented.  Susme and the

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Society jointly filed Writ Petition No. 1854 of 2004 against this  

Commission.  It was alleged that the SRA had handed over all  

the files to Shri Chandrashekhar Prabhu.  However, an order  

was passed on 01.03.2005 in the aforesaid writ petition in  

which a statement was made on behalf of the SRA that all the  

concerned files had been retrieved from Shri Prabhu and,  

therefore, the decision on the plans would be taken within  

four weeks.  The Petition was accordingly disposed of.   

   15.  In 2005 itself it was clarified by the authorities that the  

property in question does not fall in CRZ, Part I and only a  

portion of the property falls in the CRZ, Part II.  The architects  

of Susme applied for approval of construction of transit  

accommodation and this approval was granted by the SRA on  

18.08.2005.  This was, however, subject to the condition that  

agreements with individual slum dwellers would be executed  

before demolition of existing structure on the site.  Again  

complaints were made by some people that transit camps  

were not constructed as per the approved plans and the SRA  

issued stop work notice on 14.03.2006.   

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 16. Another supplementary agreement was entered into  

between Susme and the Society on 05.09.2006.  This  

agreement had a clause that the developer i.e. Susme was to  

deal only with the Managing Committee of the Society.  This  

agreement also provided that any of the Directors of Susme  

would be treated to be the attorneys of the Society.  This  

agreement also provided that Susme had offered to pay a sum  

of Rs.75,000/- to each member of the Society having a  

structure not exceeding 17.00 sq. mtrs. and Rs.1,00,000/- to  

each of those members whose structure is of more than 17.00  

sq. mtrs..  It is, however, not clear whether this amount was  

actually paid or not.  An extraordinary general body meeting  

of the Society was held on 22.02.2009.  In this meeting it was  

pointed out that the members of the Society were not taken  

into confidence by the Managing Committee while issuing  

power of attorney in favour of the developer and changes to  

the detriment of the members have been made by the  

Managing Committee in collusion with Susme.  It was also  

pointed out that agreements were entered into by the

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Managing Committee with Susme behind the back of the  

members of the Society.  The majority of the members  

demanded for cancellation of the agreement made with  

Susme.  It would not be out of place to mention that the old  

Managing Committee had been voted out and a new Managing  

Committee had taken over during this period. Thereafter,  

another general body meeting was held on 29.03.2009 and  

the minutes of the meeting dated 22.02.2009 were approved.   

In this meeting it was also pointed out that now Susme had  

offered to make new plans giving each slum dweller a  

tenement of 269 sq. ft. carpet in terms of the new circular.   

But, the benefit of such bigger tenements was not made  

available to those who were already housed in the  

rehabilitation buildings.  In effect, in this meeting it was  

decided to terminate the agreement with Susme.   

17. Susme, thereafter, invoked the arbitration clause in the  

agreement and filed a petition for grant of interim relief under  

Section 9 of the Arbitration and Conciliation Act, 1996 on  

29.10.2009.  The said arbitration petition was withdrawn on

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26.06.2012 with liberty to Susme to file a suit.  However, the  

Society was restrained from implementing the Resolution  

terminating the agreement till 13.07.2012.  Civil suit No.  

1588 of 2012 was filed by Susme on 10.07.2012 in the High  

Court of Bombay against the Society and M/s. J.G.  

Developers Private Limited.  

18. The Society made a complaint to the SRA on 05.04.2009  

that Susme was not developing the project as per the  

agreement and necessary action be taken by the SRA against  

Susme.  On 15.06.2009, a communication was sent to the  

Society on behalf of SRA that since Susme had constructed  

two buildings and is in the process of construction of transit  

camp, the developer Susme should be allowed to continue  

and the request for change of developer was virtually rejected.   

There is some dispute as to whether this letter was signed by  

the Chief Executive Officer or the Executive Engineer but that  

is not very material for the decision of the case.  On  

24.07.2009, the Society terminated the agreement with  

Susme by a written notice.  The Society made another

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complaint to the SRA and on 08.09.2009, the SRA issued  

notice to Susme in terms of Section 13(2) of the Slum Act, but  

it appears, that no action was taken pursuant to this notice.  

19. Thereafter, on 14.09.2009, the Society entered into an  

agreement with M/s J.G. Developers Private Limited,  

respondent no.4 (hereinafter referred to as ‘J.G. Developers’).   

In this agreement J.G. Developers agreed to provide  

permanent alternative accommodation measuring 269 sq. ft.  

carpet area to each of the eligible members having residential  

premises.  Sufficient alternative accommodation was also to  

be provided to those occupying commercial/industrial  

premises.   In Clause (4) of the agreement, it was mentioned  

that since the Society was the owner of the plot, the developer  

would also grant it 72,000/- sq. ft. carpet area free of cost for  

use by the members of the Society. This was crystallized in  

the supplementary agreement entered on 22.09.2009 between  

the Society and J.G. Developers. In terms of this  

supplementary agreement, 155 members occupying double  

residential premises would be entitled to additional area of

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150 sq. ft. and 614 members having single residential  

premises would be entitled to 75 sq. ft. additional area.  This  

effectively meant that those having single residential area  

would get a tenement of  344 sq. ft. and those having double  

residential area would get a tenement of  419 sq. ft.. J.G.  

Developers took the responsibility of getting permission for  

giving this extra area.  Thereafter, J.G. Developers entered  

into individual agreements with some of the members of the  

Society in terms of the agreement and supplementary  

agreement as referred to above.    

20. Complaint No. 30 was filed on 21.09.2006 before the  

Anti-Corruption Bureau, which was referred to the High  

Power Committee (for short ‘the HPC’), in which it was  

complained that the names of the occupants at Serial No. 774  

to Serial No. 852 of the list of occupants issued on  

21.06.1993 by the Additional Collector, Encroachment, are  

bogus and are based on fabricated documents.  Notice was  

issued on this complaint.    On 04.06.2011, Susme again

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wrote to the SRA to process the proposal submitted to SRA on  

01.10.2008.  Similar request was made on 16.07.2011 also.    

21. Thereafter, on 11.08.2011, show cause notice under  

Section 13(2) of the Slum Act was issued by the SRA to  

Susme as to why the SRA should not determine the right  

granted to Susme to develop the land and entrust the work of  

rehabilitation of the slum of the Society to some other agency.   

The reasons for issuing the notice are contained in Annexure-

A, which reads as follows:  

“1) The LOI for conversion of SRA scheme was issued  

u/No.SRA/ChE/110/HE/PL/LOI dt. 27/01/1998.  It is  

reported by the Secretary that the developer has failed and  neglected to complete the work of Rehab building within  

the stipulated period as per LOI condition and committed  

the breach of the terms and conditions of the sanctioned  

S.R. Scheme.   

2) As per complaint of Society, the Developer have not  taken effective steps for speedy implementation of Scheme  

and shown wilful negligence.”  

Susme replied to the notice.  Even the Society submitted its  

reply to the notice and stated that there was inordinate delay  

in completing the scheme.  Written submissions were filed by  

all sides.  Finally, by order dated 24.02.2012, the SRA set

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aside the appointment of Susme as developer mainly on two  

grounds:-   

(i) that there was unexplained delay in carrying out the  

work under the rehabilitation scheme and,  

(ii) Susme had failed to show that it had filed      

individual agreements with 70% slum dwellers.    

The SRA, instead of handing over the work to another agency,  

held that since the Society had already entered into an  

agreement with J.G. Developers, it may get the scheme  

implemented through it.  Susme filed an appeal being No. 39  

of 2012 before the HPC.  This appeal was dismissed on  

18.06.2012.  This order of the HPC was challenged by filing  

Writ Petition No. 1718 of 2012, on the ground that one of the  

Members of the HPC was not entitled to hear the appeal.  This  

writ petition was allowed on 14.08.2012 and the matter was  

remanded back to the HPC.  Thereafter, the HPC again heard  

the appeal and dismissed the same on 10.10.2012.  Against  

this order of the HPC, the appellant filed Writ Petition No. 5 of  

2013, which was rejected by the Bombay High Court by the

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impugned order dated 11.06.2014 and it is this order of the  

High Court which is under challenge in this appeal.  In the  

meantime, on 03.08.2012 the Bombay High Court in the suit  

filed by Susme, refused to grant any interim relief.  

22.   Letter of intent dated 29.10.2012 was issued by the  

SRA in favour of the Society, J.G. Developers and also its  

architects.  In this letter of intent approval was given for FSI  

of 3.78 for slum portion, 3.18 for slum portion in lieu of 128  

tenements with carpet area of 20.90 sq. mtrs., already  

constructed and 2.58 for slum portion in CRZ-II.  Effectively,  

the FSI for the developer had increased substantially.  In this  

letter of intent it was mentioned that the eligible slum  

dwellers would be re-housed in residential tenements of  

carpet area of 25 sq. mtrs. (269 sq.ft.) or 20.90 sq. mtrs. (225  

sq.ft.).  It is thus apparent that no permission was granted for  

giving larger tenements to the eligible slum dwellers.      

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23. In another Special General Meeting of the Society held  

on 13.07.2014, it was decided by majority vote to cancel the  

agreement with J.G. Developers.  It was also decided that in  

view of the cancellation of appointment of J.G. Developers,  

the Managing Committee should select a new and capable  

developer and the offer made by such developer should be put  

up before the next general body meeting.  The Society  

terminated the appointment of J.G. Developers on  

25.08.2014.  J.G. Developers challenged the termination of  

their agreement by filing Civil Suit No. 756 of 2014 on  

19.09.2014 and in this civil suit an interim order was passed  

on 24.09.2014.    

24. After the termination of the agreement with J.G.  

Developers on 25.08.2014, on 26.08.2014 the Managing  

Committee of the Respondent No. 3, the Society, entered into  

consent terms with Susme again appointing Susme as the  

developer.  

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25. Susme filed the present petition for special leave to  

appeal challenging the decision of the High Court of Bombay  

in Writ Petition No. 5 of 2013, before this Court.  The  

respondents put in appearance even before the notice was  

issued and on 27.03.2015 this Court has passed the following  

order:  

“Heard Mr. Fali S. Nariman, learned senior counsel for the  petitioner, Mr. P.C. Chidambaram, learned senior counsel  

and Mr. Mihir Joshi, learned counsel for respondent no.4,  

Mr. Kapil Sibal, learned senior counsel for respondent  

no.3, Mr. C.U. Singh, learned senior counsel for  

respondent no.1 and Mr. Raval, learned senior counsel for  

the applicant in IA No.5/14 along with their assisting  

counsel.   

2. The present case frescoes a labyrinthine chequered  

history that can flummox the prudence of the wise, for the  

procrastination in putting an end to a litigation. But, a  

pregnant one, it is a problem created by human beings by  

use of adroit proclivity at their best and, therefore, as  

advised at present, this Court is obliged to take recourse  

to an innovative method, at least to attempt at a solution.   

3. We need not reflect the nature of orders passed in  various cases fought between the parties. Suffice it to  

mention that they have invoked the power of the  

authorities under the Maharashtra Slum Areas  

(Development, Clearance and Redevelopment) Act, 1971,  

instituted civil suits on the original side of the Bombay  High Court and sometimes the society, namely, Om Namo  

Sujlam Sujlam Co-operative Housing Society, respondent  

no.3 herein, has changed its colour as chameleon with  

afflux of time may be yielding to the “hydraulic pressures  

of time” and thereby eventually, in all possibilities, making  

the slum dwellers of the area, i.e., C.T.S. No.7627, 7627/1  to 852 admeasuring 23018.50 sq. mtrs. situated at village  

Kolekalyan at Santacruz (East), Mumbai remain in that  

pathetic condition as they were since 1986, as if the  

parties have nurtured the notion that they can arrest  

time. Be that as it may, a solution has to be thought of.   

4. In course of hearing Mr. Chidambaram, appearing for  

respondent no.4, assiduously asserted that he has got the

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consent from 70% of the eligible slum dwellers and,  

therefore, the society is absolutely justified in entering into  

an agreement which is called a “development agreement”.  Mr. F.S. Nariman, learned senior counsel, determined not  

to lag behind, would astutely asseverated that he has the  

consentum of 70% of eligible slum dwellers and hence, his  

case cannot be brushed aside. We have been apprised by  

Mr. Kapil Sibal, learned senior counsel appearing for  

respondent no.3, that at present there are slightly more  than 800 eligible slum dwellers. Mr. Raval, learned senior  

counsel appearing for the assumed authorised authority of  

the society, would present that it is the respondent no.3  

who has been correctly granted the privilege of  

development agreement inasmuch as there was a  

verification with regard to the consent earlier.   

5. In our considered opinion, regard being had to the  special features of the case which includes the longevity of  

the case and indefatigable spirit in which the parties are  

determined to fight, we think there should be appropriate  

verification of the consent of the eligible slum dwellers in  praesenti. Regard being had to the same, we request Mr.  

Justice B.N. Srikrishna, formerly a Judge of this Court, to  verify the factum of consentum of the eligible slum  

dwellers. The Slum Rehabilitation Authority represented  

by the Chief Executive Officer either by himself or by any  

responsible high level officer nominated by him shall  

assist Mr. Justice B.N. Srikrishna in this regard.   

6. As secretarial staff would be required for this purpose,  

the petitioner and the respondent no.4 shall deposit a sum  of Rs.5,00,000/- (Rupees five lacs only) each so that the  

verification can be expedited. In addition, learned Judge  

may fix his honorarium which shall be paid  

proportionately, as agreed to by the petitioner and the  

respondent no.4.   

7. The parties are at liberty to file documents to facilitate  

the process of verification with regard to consentum in  praesenti before the learned Judge. We repeat at the cost  of repetition that such a mode has been adopted, regard  

being had to the special phenomena of the case. As we  

have taken recourse to such a method any other the  

litigation pending in any forum in this regard shall remain  

stayed.   

8. Needless to say, the interim order of status quo passed  

in this special leave petition, except the directions which  

have been issued hereinabove, shall remain in force.   

9. Let this matter be listed on 09.07.2015 awaiting the  

report from Mr. Justice B.N. Srikrishna.”

25    

26. Thereafter, Justice B.N. Srikrishna, former Judge of this  

Court carried out the mandate, which he was required to do  

in terms of the aforesaid order.  He decided that voting should  

be held by secret ballot.  He categorized the voters in four  

categories.  

Category “A” Persons who were original slum dwellers and continue to  

be occupants as on the cut-off date i.e. 27th March 2015.  

Category “B”  Persons who claim to exercise their vote as a result of  

legal heirship.  

Category “C” Persons who claim to have become members of the  

Society by reason of sale and transfer of the shares.  

Category “D” 79 persons whose eligibility is under challenge before the  

Competent Authority as per the directions of the High  

Power Committee.   

He found that there were 867 slum dwellers in the four  

categories:  

Category  “A” 263  

Category  “B” 318  

Category  “C” 207  

Category  “D” 79  

Total  867  

26    

Four separate ballot boxes were kept i.e. one for each category  

and the result of the voting is tabulated as follows:  

Category Total  

Eligible  

Voters  

Voter turn-out  

at the Poll on  

22/11/2015  

Votes  

polled by  

Petitioner  

Votes Polled by  

Respondent No.4  

Invalid  

Votes  

“A” 263 191 108 70 13  

“B” 318 275 179 84 12  

“C” 207 172 126 43 03  

“D” 079 013 010 03 -  

Total 867 651 423 200 28  

Thereafter, Justice Srikrishna submitted his report setting  

out the voting pattern but did not make any recommendation.  

CONTENTIONS:  

27. The main contention raised on behalf of the appellant-

Susme by Shri F.S. Nariman, learned senior counsel is that  

the order dated 27.03.2015 is an order passed by this Court  

in exercise of its extraordinary jurisdiction either under  

Article 136 or under Article 142 of the Constitution of India.   

It is submitted that this order was passed with a view to settle  

all disputes between the parties.  It is urged that this Court

27    

cannot go behind this order especially when there is no  

application filed for recall of the said order.  It is also urged  

that I.A.No. 10 of 2015 filed by J.G. Developers for  

modification of the order, was rejected.  It is contended that  

since Justice B.N. Srikrishna has found that the majority  

supports Susme, the appeal should be allowed and Susme be  

permitted to carry on with the project.  

28. The other contentions raised on behalf of the appellant-

Susme by Shri Darius Khambata, learned senior counsel are:  

(a) that Section 13(2) of the Slum Act is wholly  

inapplicable;   

(b) that the notice under Section 13(2) was given only in  

respect of delay and not in respect of 70% consent  

and hence the SRA, the HPC and the High Court fell  

in error in insisting on 70% consent;   

(c) that when migration of the scheme took place from  

redevelopment scheme to slum rehabilitation scheme,  

70% consent was not necessary.   

28    

29. On behalf of J.G. Developers it is contended by Shri  

Gopal Subramanium, learned senior counsel that the  

intention of this Court was to find out whether any party had  

support of 70% of the slum dwellers or not.  It is also  

contended that it was not the intention of this Court to  

bypass the legal provisions and this Court is not bound by the  

aforesaid order.  In the alternative, it is submitted that the  

exercise carried out by Justice B.N. Srikrishna only shows  

that as on date there are more people with Susme.  It is  

contended that the Bombay High Court has consistently held  

that there should be no competitive voting inter se developers  

because that gives rise to many malpractices with the  

developers trying to outbid each other by giving sops to the  

voters.  It is contended that the consistent view till now has  

been that once the slum dwellers have given consent for one  

developer or have entered into an agreement with a developer  

then they cannot be permitted to withdraw the consent,   

otherwise, it will lead to chaos and no slum rehabilitation  

scheme would be implemented.  It is also contended that the  

matter should be decided on merits and not on the basis of

29    

this order.  It is also contended that Susme does not have the  

support of 70% of the slum dwellers.    

30. It is also contended on behalf of J.G. Developers that  

Susme is guilty of unexplained delay and the slum dwellers  

are suffering and, therefore, the Society had rightly decided to  

enter into a fresh agreement with J.G. Developers.  It is also  

urged that Susme had never obtained the consent of 70% of  

the slum dwellers, which was mandatory.  It is also contended  

that Susme had taken advantage of trading of the  

development rights by assuring the SRA that it would get 70%  

consent.  It is further urged that Susme never contested the  

issue of 70% consent earlier.    

31. Here, it would be pertinent to mention that the Society  

has two factions.  One faction supports Susme and the other  

faction supports J.G. Developers.  The faction supporting  

Susme states that it has terminated the agreement with J.G.  

Developers and cannot be forced to get the development work

30    

done through J.G. Developers.  The other faction alleges that  

there is no valid existing agreement with Susme.   

32.  The following issues arise for decision in this case:  

(i) What is the scope, ambit and effect of the order of  

this Court dated 27.03.2015;  

(ii) What is the scope of powers under Section 13(2) of  

the Slum Act;  

(iii) Whether the SRA has any power to remove the  

developer;  

(iv) Whether in the notice issued under Section 13(2) of  

the Slum Act the issue of 70% consent was raised;  

(v) Whether  support of 70% of the slum dwellers is  

mandatory and whether slum dwellers are entitled to  

withdraw their consent;  

(vi) Whether Susme delayed the construction of the  

Scheme, and is, therefore, not entitled to any relief;

31    

(vii) Whether Susme is entitled to continue with the  

Scheme;  

(viii) In case Susme is not entitled to continue with the  

scheme whether respondent no. 4 J.G. Developers is  

entitled to continue with the rehabilitation scheme.  

THE SCOPE, AMBIT AND EFFECT OF THE ORDER OF  

THIS COURT DATED 27.03.2015:  

33. Relevant portion of order dated 27.03.2015 has been  

quoted hereinabove.  The main contention of Mr. Nariman,  

learned senior counsel appearing for the appellant is that this  

order is an order passed under Article 142 or Article 136 of  

the Constitution and is binding upon the parties.  On the  

other hand, it was urged by M/s Gopal Subramanium and  

Neeraj Kishan Kaul, learned senior counsel appearing for the  

respondents that the order in question is not a binding order.   

In the alternative, it was submitted that even if the order is  

binding, this Court can interpret the order and even as per

32    

the said order, the appellant is not entitled to continue with  

the Scheme.    

34. At the outset, we may note that judicial propriety and  

discipline requires that a Coordinate Bench must respect the  

order of an earlier Bench.  In fact, even a larger Bench should  

not brush aside the order passed by an earlier Bench even if  

it be a smaller Bench unless the order is in issue before the  

larger Bench.  Suffice to say that the order in question holds  

the field. It has not been recalled and prayer for modification  

in I.A. No. 10 was rejected on 13.05.2015.  Therefore, the  

order of this Court dated 27.03.2015 holds the field and we  

are bound by the same.  At the same time, it is our duty to  

decipher what was the intention of the Bench while passing  

the order and to find out what the Court intended to do by the  

said order.    

35. In Para 2 of the order, the Division Bench has noted the  

long and chequered history of the case and has noted that the

33    

Court had to take recourse to an innovative method to try and  

find a solution.  It is thus apparent that this is an order  

falling within the ambit of Article 142 to do complete justice  

between the parties.  The Court was aware that the slum  

dwellers were suffering due to the long protracted litigation.   

Therefore, the Court felt the need to find an innovative  

solution.  In Para 3 of the order, the Court has noted the  

factual aspects and again emphasized the need to find a  

solution to resolve the various issues.  The Court was  

obviously moved by the pathetic condition in which most of  

the slum dwellers continued to reside.  

36. Para 4 of the order is very important because it notes the  

contention of learned counsel appearing for J.G. Developers,  

who had emphatically stated that his client had the consent  

of 70% of the eligible slum dwellers and, as such, the Society  

was justified in entering into a development agreement with  

his client.  On the other hand, learned senior counsel  

appearing for the appellant equally strongly refuted this claim  

and claimed that his client had the consent of 70% eligible

34    

slum dwellers.  It is in this context that the directions  

contained in Para 5 of the order dated 27.03.2015 were  

passed wherein this Court directed “…….there should be  

appropriate verification of the consent of the eligible slum  

dwellers in praesenti.”  Justice B.N. Srikrishna was requested  

to verify the factum of the consent of the eligible slum  

dwellers.    

37. The contention raised on behalf of Susme is that there is  

no mention of “70%” in the direction given in Para 5 of the  

order and, therefore, all that Justice B.N. Srikrishna was  

required to do was to ascertain consent of the slum dwellers  

in praesenti.  It is contended that almost 70%, and at least  

much more than the majority, have exercised their choice in  

favour of Susme and, thus, there is no reason why the appeal  

should not be allowed. Susme should be permitted to carry on  

the development work in terms of the agreement entered into  

with the respondent no. 3-Society.  It is also urged that as far  

as respondent no. 4 is concerned, it has got hardly 30% of the  

votes and, therefore, there is no question of awarding the  

contract to respondent no. 4.

35    

38. We are not in agreement with this submission.  It is  

settled law that a judicial order or judgment has to be read as  

a whole and a single line or phrase cannot be read out of  

context.  A judgment is not to be interpreted like a statute.   

As far as the order dated 27.03.2015 is concerned, the  

intention of the Court, will have to be deduced from the entire  

order.  We cannot read the phrase “…….there should be  

appropriate verification of the consent of the eligible slum  

dwellers in praesenti.” in isolation.  This has to be read in the  

context of the rival contention of the contesting parties that  

each one of them had the consent of more than 70% of the  

slum dwellers.  According to us, this Court was not oblivious  

of the requirements of the Slum Act though it may not have  

explicitly referred to them.  It is obvious from Para 4 of the  

order dated 27.03.2015 that learned counsel for both the  

parties claimed that their respective clients had the support of  

70% of the slum dwellers.  Obviously, both of them could not  

be correct.  This factual dispute could not be decided in these  

proceedings.  This was the dispute which was referred for

36    

resolution to Justice B.N. Srikrishna.  We may observe that  

Justice B.N. Srikrishna in the first effective procedural order  

dated 27.04.2015, rightly understood the order to mean as  

follows:  

“After carefully perusing the Order dated 27th March, 2015  

made by the Hon’ble Supreme Court and the submissions  

made in writing and through Counsel and representatives  on behalf of the Petitioners as well as the Respondents, I  

am of the view that the best way of verifying the factum of  

consentum of the eligible slum dwellers in praesenti would  

be to hold a secret ballot under my aegis and after  

counting the votes, make a report to the Court as to  whether more than 70% of the eligible slum dwellers are in  

favour of the redevelopment agreement being signed with  

the Petitioner or Respondent No.4.”   

39. It is, thus, clear that Justice B.N. Srikrishna had  

understood that he was to ascertain whether 70% of the  

eligible slum dwellers are in favour of the redevelopment  

scheme signed with the appellant-Susme or with respondent  

no. 4.  We are clearly of the view that a holistic reading of the  

order admits of no other meaning.  The only dispute raised  

before this Court on 27.03.2015 was which of the builders  

had the support of the 70% of the slum dwellers.  Since this  

factual dispute could not be decided in Court, Justice B.N.  

Srikrishna was requested to do this job.  It is not necessary

37    

for us to go into the other arguments raised with regard to the  

effect of the order because, according to us, this order admits  

of no other interpretation.  Admittedly, neither the appellant  

nor respondent no. 4 has received 70% support.   

40. Further, the words ‘in praesenti’ only mean that the  

Court wanted the verification of the consent of the eligible  

slum dwellers as on date of passing of the order.  ‘In praesenti’  

cannot be read to mean ‘present and voting’.  It only means  

eligible slum dwellers as on 27.03.2015.  Justice B.N.  

Srikrishna has divided the slum dwellers into four categories;  

263 were the original slum dwellers, 318 were the legal heirs,  

207 were those who had become members by means of sale  

and transfer of shares and 79 voters were disputed.  We may  

note that during these entire proceedings not a single  

complaint has been filed that an ineligible slum dweller was  

permitted to vote or that an eligible slum dweller was not  

permitted to vote. The procedure followed by Justice B.N.  

Srikrishna is absolutely correct and no error can be found in

38    

this regard.  Therefore, we have no hesitation in accepting the  

report submitted by Justice B.N. Srikrishna.    

41. Out of 867 total eligible voters only 651 voted and the  

appellant secured 423 votes, which would mean 64.98% or  

roughly 65% of the votes polled.  But, if we were to calculate  

this percentage from the total number of slum dwellers i.e.  

867 then the percentage is 48.78%, which is less than 50%.   

In case we exclude 79 votes which are doubtful, then the total  

eligible voters would be 788 and the appellant secured 413  

i.e. 52.41% of the total eligible slum dwellers, well below the  

magic figure of 70%.  We are unable to accept the contention  

of Mr. Nariman that to put an end to all litigation, the Court  

only wanted to find out who had the majority.  That,  

according to us, is not the essence of the order dated  

27.03.2015.  It is true that 70% is not reflected in the  

direction given in Para 5 of the order but as earlier noted by  

us, the directions have to be understood in view of the  

intention of the Court, which was to find out that which of the  

builders had the support of 70% of the slum dwellers.  

39    

Unfortunately, both the developers do not enjoy 70% support,  

though it is true that the appellant has the support of more  

than twice the number of slum dwellers as compared to  

respondent no. 4.  Since neither Susme nor J.G. Developers  

has the support of 70% slum dwellers, the order dated  

27.03.2015 cannot be taken to its logical conclusion and we  

have to decide the appeal on merits.  

THE SCOPE OF POWERS UNDER SECTION 13(2) OF THE  

SLUM ACT:  

42. Relevant portion of Section 13 of the Slum Act which is  

the bone of contention between the parties reads as follows;  

“13. (1) Notwithstanding anything contained in sub-

section (10) of section 12, the Slum Rehabilitation  

Authority may, after any area is declared as the Slum  

Rehabilitation Area, if the landholders or occupants of  

such area do not come forward within a reasonable time,  

with a scheme for re-development of such land, by order,  determine to redevelop such land by entrusting it to any  

agency for the purpose.   

(2) Where on declaration of any area as a Slum  

Rehabilitation Area the Slum Rehabilitation Authority, is  

satisfied that the land in the Slum Rehabilitation Area has  

been or is being developed by the owner in contravention  

of the plans duly approved, or any restrictions or  conditions imposed under sub-section (10) of section 12,  

or has not been developed within the time, if any, specified  

under such conditions, it may, by order, determine to  

develop the land by entrusting it to any agency recognised  

by it for the purpose:  

40    

Provided that, before passing such order, the owner shall  

be given a reasonable opportunity of showing cause why  

such order should not be passed."  

43. Shri Darius Khambata, learned senior counsel appearing  

for Susme urged that under Section 13(2) of the Slum Act, the  

SRA is entitled to take action only against the owner.   He also  

submits that Section 13(2) will apply only when there is  

violation of the conditions imposed under sub-section 10 of  

Section 12 of the Slum Act and the condition with regard to  

the time should also be a condition contained in sub-section  

10 of Section 12.  He submits that there is no power to take  

action under this section against the developer.  According to  

him, action could have been taken by the SRA against the  

Society but not against Susme.  

44. We cannot accept such a wide submission.  According to  

us, under Section 13(2) of the Slum Act, the SRA has the  

authority to take action and hand over the development of  

land to some other recognized agency under three  

circumstances:

41    

i. When there is contravention of the plans duly  

approved;  

ii. When there is contravention of any restriction or  

condition imposed under sub-section 10 of Section 12  

of the Slum Act; and   

iii. When the development has not taken place within  

time, if any, specified.  

45. The requirement to complete the development within  

time may be there in the letter of intent issued by the SRA or  

may be in the agreement entered into between the  

owner/developer with the slum dwellers.  Such condition, if  

violated, would attract the provisions of Section 13(2) of the  

Slum Act.  Over and above that, when a clearance order is  

passed, then in terms of sub-section 10 of Section 12, the  

competent authority can include a condition with regard to  

the time within which the development should be completed  

and in that case also Section 13(2) would be attracted.  We  

are not, however, able to accept the very wide argument that  

42    

in case of delay, the condition that is violated must be laid  

down under Section 12(10) of the Slum Act.   

46.  There may be cases where the slum dwellers do not  

offer any resistance and willingly consent to move into transit  

accommodation provided by the owner/developer.  Therefore,  

the conditions laid down under Section 12(10) will come into  

play only when there is a clearance order, but in case there is  

no clearance order, then under Section 13(2), the SRA would  

be empowered to take action when there is violation of any  

plan or when there is violation of any condition relating to  

developing the project within time.  The time limit can, some  

time, be provided in the letter of intent, in the agreement or  

even in the regulations.    

47. Having held so, we are of the view that Shri Darius  

Khambata, learned senior counsel, is right in his submission  

that normally under Section 13(2) of the Slum Act, action by  

the SRA has to be taken against the owner.  Here, we may

43    

repeat that this is a unique case where the slum dwellers are  

the members of the owner-Society.  The Society, in turn, has  

given power of attorney to the builder.  The builder virtually  

has two roles – one as developer and the other as power of  

attorney holder of the owner.  Both are closely interlinked and  

inextricably mixed with each other.  Therefore, though  

normally we would have accepted the contention that under  

Section 13(2) action can only be taken against the owner, in  

the present case, we are unable to accept this contention in  

its totality.  We may point out that even the SRA, in its order,  

has itself noted that since the Society is the owner of the plot  

of land, it is empowered and within its right to terminate the  

agreement executed with the said developer for breaches  

committed by the developer.  It has, however, held that a  

private dispute between the Society and the developer cannot  

prevent the SRA from discharging its obligations.  The SRA  

agreed with the submission made by the Society that Susme  

had not completed the project within time.  It has taken  

action under Section 13(2) of the Slum Act.  The action taken

44    

by the SRA is to remove Susme as developer which amounts  

to cancelling the letter of intent issued in favour of Susme.    

48. Otherwise, there would be an anomalous situation  

where the Society would have terminated its contract with  

Susme but the letter of intent issued by the SRA would  

continue to hold the field and it would be entitled to develop  

the land.  The Society approached the SRA, in fact, asking it  

to take action against Susme.  Since the SRA is the authority  

which issued the letter of intent, it will definitely have the  

power to cancel the letter of intent.    

49. We are of the considered view that in the peculiar facts  

and circumstances of the case where the slum dwellers are  

virtually the owners of the land as members of the owner  

Society, the SRA had the power under Section 13(2) of the  

Slum Act to issue the order dated 24.02.2012.  

45    

WHETHER THE SRA HAS ANY OTHER POWER TO  

REMOVE THE DEVELOPER:  

50. Even if we were to assume that the SRA did not enjoy  

this power under Section 13(2) of the Slum Act, we are of the  

considered view that since it was the SRA which issued this  

letter of intent, it necessarily must have the power to cancel  

the same.  The SRA can also derive this power under clauses  

(c) and (d) of sub-section (3) of Section 3A of the Slum Act,  

which read as under:  

“3A. (1) Notwithstanding anything contained in the  

foregoing provision, the State Government may, by  notification in the Official Gazette, appoint an authority to  

be called the Slum Rehabilitation Authority for such area  or areas as may be specified in the notification; and  

different authorities may be appointed for different areas.   

       xxx                     xxx                        xxx  

(3) The powers, duties and functions of the Slum  

Rehabilitation Authority shall be,-     

        xxx                     xxx                        xxx  

(c) to get the Slum Rehabilitation Scheme  

implemented;   

(d) to do all such other acts and things as may be  necessary for achieving the objects of rehabilitation  

of slums.”  

51. A bare reading of these provisions shows that in terms of  

clause (c) and (d) of sub-section (3) of Section 3A of the Slum

46    

Act, the SRA not only has the power, but it is duty bound to  

get the slum rehabilitation scheme implemented and to do all  

such other acts and things as will be necessary for achieving  

the object of rehabilitation of slums.  In this case, the SRA  

was faced with a situation where the slum dwellers were  

suffering for more than 25 years and, therefore the action  

taken by SRA to remove Susme for the unjustified delay was  

totally justified.    

52. A perusal of the various provisions of the Slum Act  

would show that normally in a case falling under the Slum  

Act, it is the owner of the land, whether it be the Government,  

a statutory authority or a private person, who will be  

interested in the development work.  Normally, the occupiers  

will be encroachers of slum land.  Therefore, there will be a  

conflict of interest between the occupiers and the owner.  The  

owner, in turn, will always engage a developer/builder to  

carry out the development work.  In case the owner gives a  

power of attorney to the developer, as in the present case, the  

developer now has two identities – (i) the power of attorney

47    

holder of the owner and (ii) the developer.  As far as the  

present case is concerned, the Society is made up of the  

members who are occupiers and this Society has given power  

of attorney to the developer-Susme.  Therefore, the developer  

Susme is actually having a dual role of owner and developer.   

Both the letters of intent have been issued in favour of the  

Society, Susme and the architects of Susme.  Susme could  

not have carried out the development work on the basis of its  

agreement with the Society.  It needed the permission of the  

SRA.  Therefore, SRA can obviously revoke such permission.  

WHETHER IN THE NOTICE ISSUED UNDER SECTION 13(2)  THE ISSUE OF 70% CONSENT WAS RAISED:  

53. Shri Darius Khambata, learned senior counsel, has  

raised another contention that there is no allegation in the  

notice under Section 13(2) of the Slum Act that Susme has  

violated any provisions of the Act, Regulations or Scheme in  

not getting consent of 70% of the slum dwellers.  We have  

gone through all the three notices and find that, in fact, in the

48    

notices there is no specific allegation in this behalf.     On the  

other hand, Shri Gopal Subramanium, learned senior counsel  

appearing for J.G. Developers, urges that in the last notice  

reference has been made to violation of DCR and this will  

obviously include violation of requirement of  consent of 70%  

slum dwellers.    

54. We are unable to accept the contention of Shri Gopal  

Subramanium, learned senior counsel.  When a notice is  

issued to a party it must be clearly told what are the  

allegations which it must meet. The notice should be clear  

and unambiguous.   

55. There was no allegation in the notice(s) that the right to  

develop granted in favour of Susme was liable to be revoked  

because it had not obtained consent of 70% of the slum  

dwellers.  The reference to Regulation 33(10) also did not  

specifically raise the issue of 70% consent.  Susme was never  

put to notice by the SRA that its right to develop the land may

49    

be cancelled because of not having consent of 70% slum  

dwellers.  It was confined to the issue of delay.  We answer  

this issue accordingly.  

56. However, we are of the view that while considering the  

issue of delay, the SRA was justified in making reference to  

the various communications made by Susme and its  

architects seeking time to obtain consent of 70% slum  

dwellers and, therefore, while dealing with the issue of delay,  

we shall take into consideration all these matters.    

WHETHER  SUPPORT OF 70% OF THE SLUM DWELLERS  IS MANDATORY AND WHETHER SLUM DWELLERS ARE  

ENTITLED TO WITHDRAW THEIR CONSENT:  

57. It would be important to note that under DCR of 1991,  

which were initially applicable to this project, a Scheme for  

rehabilitation could be initiated where more than 70% of the  

eligible hutment dwellers on the land agreed to the  

redevelopment scheme by becoming members of a cooperative  

society.  Thereafter, the Scheme was to be considered by the

50    

authorities for implementation.  Relevant portion of the DCR  

reads as follows:   

“INITIATION OF THE SCHEME:- Where more than 70% of  

the eligible hutment dwellers on the land agree to join the  

redevelopment scheme and become members of the co-

operative society, the scheme should be considered for  

implementation.”   

58. Under Development Control Regulations 33(10) of 1991,  

the essential requirement was that at least 70% of the slum  

dwellers had to form a society with a view to redevelop the  

slum area.  In case 70% slum dwellers did not join, there  

could be no rehabilitation scheme.  As far as the present case  

is concerned, it is not disputed that more than 70% slum  

dwellers had formed the respondent no. 3-Society.  It is the  

admitted case of the parties that 800 out of 867 slum dwellers  

formed respondent no. 3-Society, which is 92.27%.  

59. DCRs of 1991 were amended in 1997.  Clause 1.15 of  

Appendix (IV) of the amended DCR provided that 70% or more  

of eligible hutment dwellers in a slum must agree to join a

51    

rehabilitation scheme before it can be considered for approval.   

This clause reads as follows:  

“Where 70 per cent of 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  

Government Company as defined in section 617 of the  

Companies Act, 1956 and being owned and controlled by  

the State Government.”  

Clause 1.16 of Appendix (IV) of this DCR reads as follows:  

“In respect of those [eligible] hutment-dwellers on site who  

do not join the Project willingly the following steps shall be  

taken:-  

(i)  Provisions for all of them shall be made in the  

rehabilitation component of the scheme.   

(ii) The details of the actual tenement that would be  

given to them by way of allotment by drawing lots for them  on the same basis as for those who have joined the Project  

will be communicated to them in writing by the Managing  

Committee of the Co-operative Housing Society.  [If it is  

registered or the developer and in case of dispute decision  

of the CEO/SRA shall be final and binding on all the  parties concerned.  

(iii) The transit tenement that would be allotted to  

them would also be indicated alongwith those who have  

joined the Project.   

 (iv) If they do not join the scheme within 15 days after  

the approval has been given to the Slum Rehabilitation  

Project on that site, then action under the relevant  

provisions including sections 33 and 38 of the  

Maharashtra Slum Areas (Improvement, Clearance and  Redevelopment) Act, 1971 as amended from time to time,  

shall be taken and their hutments will be removed, and it  

shall be ensured that no obstruction is caused to the  

scheme of the majority of persons who have joined the  

scheme willingly.”  

52    

60. It is thus obvious that under the amended DCR, not only  

70% or more of the eligible hutment dwellers must first agree  

to join a rehabilitation scheme before it is taken up for  

consideration, but the owner/developer or cooperative society  

must also enter into individual agreements with each of these  

eligible hutment dwellers.  We may also point out that the  

amended DCR in clause 1.16 of Appendix IV provides that  

even in respect of those eligible hutment dwellers who do not  

join the project willingly, the developer/builder has to make  

provision for accommodation of these hutment dwellers in the  

scheme.  They are entitled to the same benefits as the  

hutment dwellers who actually join the scheme.  They are also  

entitled to similar transit accommodation as is allotted to  

those who willingly join the scheme.  Further, the regulations  

also provided that if such hutment dwellers do not join the  

scheme and do not accept the transit accommodation or the  

completed premises, then they can be removed from their  

hutments and it will be ensured that these hutment dwellers  

do not cause any hindrance to the project.   

53    

61. Very lengthy arguments were addressed by learned  

counsel on the issue whether 70% support of the slum  

dwellers is mandatory.  A large number of authorities have  

also been cited but, in our view, it is not necessary to refer to  

the various authorities because the bare provisions of law are  

sufficient to decide this issue.  A bare reading of DCR of 1991  

makes it absolutely clear that under the said DCR at least  

70% of the slum dwellers/occupiers have to get together and  

form a Society for the purpose of slum re-development  

scheme.  Therefore, unless 70% slum dwellers agree to form a  

Society, the provisions of the Slum Act could not be invoked  

to frame an SRD scheme.  Under the amended DCR of 1997,  

there is a change and the change is that now the  

developer/owner was required to enter into agreements with  

70% of the slum dwellers and unless 70% of the slum  

dwellers agree, the slum rehabilitation scheme cannot be  

entertained.  The magic figure remains at 70%.  The idea  

behind it is that more than 2/3 of the occupiers must agree  

for the rehabilitation scheme.

54    

62. As pointed out above, even if the remaining minority  

slum dwellers do not agree to be part of the scheme, the  

owner/developer is duty bound to make adequate  

arrangements for their rehabilitation under the scheme and  

they can join the scheme, and can take benefit of the scheme  

even at any later stage.  We are, therefore, of the considered  

view that 70% consent of the occupiers is mandatory.  As  

clarified above, we are not dealing with this aspect in relation  

to the order of the SRA because the notice under Section  

13(2) did not raise this issue.  However, we are clearly of the  

view that under the 1997 DCR the owner is required to  

produce individual agreements with 70% slum dwellers before  

the scheme can be taken up for consideration.   

63. The circulars issued by the SRA, specially Circular dated  

21.08.1997, 19.09.1998 and Circular No. 27 permit  

conversion of old approved SRD Scheme to new SRA Scheme  

under the provisions of Clause No.10.1 of Appendix IV of  

DCR.  In the present case, the scheme was initiated under the

55    

old DCR of 1991.  There is no manner of doubt that the  

Society was formed by more than 90% of the occupiers.    

64. The migration was done to the Scheme of 1997.  There is  

no clear cut provision in the 1997 DCR as to how this  

migration has to be done.  Since there is no clear cut  

provision, we may presume that while migrating, it was not  

necessary for Susme to have individual agreements with 70%  

of the slum dwellers.  We may, however, point out that it was  

Susme who applied for migration to the new Scheme,  

obviously because the new Scheme gave greater benefits to  

the developer.  When migration was done, it was on the clear  

cut understanding that after the migration, the provisions of  

amended DCR would be applicable.  When this application of  

the Society and Susme for conversion was taken up, it was  

noticed that one of the main objections was that there were  

no individual agreements with the slum dwellers.    

56    

65. Later, Susme submitted agreements of 450 of the eligible  

slum dwellers and stated in writing that the remaining to  

make up 70% would be submitted before start of Phase II of  

the construction.  Fresh letter of intent dated 27.01.1998, in  

terms of the new DCR, was issued in favour of Susme and  

approved in accordance with Clause No.33(10) and Appendix  

IV of amended DCR subject to certain conditions.   

Clause 19 of the letter reads as follows:  

“That you shall submit the Agreements with the  

photographs of wife and husband on the agreements with  all the eligible slum dwellers before issue of CC for sale  

bldg., or 3 months as agreed by developer whichever is  

earlier.  And the name of the wife of the eligible occupier of  

hut shall be incorporated with joint holder of the  

tenements to be allotted in rehabilitation building.”  

66. A bare perusal of this condition makes it clear that  

Susme was directed to submit agreements with all the eligible  

slum dwellers before commencement certificate for sale  

building was issued or within three months, as agreed by it.   

It has been urged by Shri Darius Khambata, learned senior  

counsel that, as per this condition, the agreements have to be  

submitted only at the stage when the commencement

57    

certificate is to be issued.  It would also be important to note  

that even before the rehabilitation building numbers 5 and 6  

were completed, Susme was granted TDR to the extent of 40%  

of the construction of building nos. 5 and 6, which they sold  

in the open market. The relevant portion of the note dated  

16.02.1998 is extracted hereinbelow:  

“Further as per policy & DCR 33(10) it is necessary that  

agreements with more than 70% slum dwellers as per new  scheme is required.  This was pointed out to CEO (SRA)  

during discussion, when CEO (SRA) instructed to submit  

agreements with 70% slum dwellers before second phase  

of T.D.R. Developers have informed that out of 869 slum  

dwellers, they have submitted 450 agreements to the office  

of S.R.A. (52%).”  

When Susme applied for permission to sell the TDR, the SRA  

ordered that 70% agreements should be submitted before  

Phase II TDR and, further, Susme was informed by the SRA  

that it has only submitted the agreements with 450 slum  

dwellers which comes to barely 52%.  The Bombay High  

Court, therefore, rightly recorded that Susme accepted the  

condition of 70% consent requirement when it accepted these  

conditions and sold the TDR.  Thereafter, on 03.11.1998,  

occupation certificate was issued in favour of Susme with

58    

regard to two rehabilitation buildings.  Relevant portion of  

communication dated 03.11.1998 reads as under:  

“That the 70 percentage individual agreements with slum  

dwellers shall be submitted before further approval/CC.”  

67. On 24.12.1998, the SRA permitted Susme to take 90%  

benefit of the TDR equivalent.  Relevant portion of this note  

reads as follows:  

“As per policy it is necessary that agreements with  

minimum 70% slum dwellers for new scheme is required.   

It is also mentioned in the previous report sidelined ‘x’ at  

page 35.  Architect has to submit 70% agreements before  granting Phase-II TDR.  At present 52 (sic 520) agreements  (60%) out of 869 are submitted in this office as mentioned  

in the letter of Architect as at page…….However, these two  

Rehab Bldgs are physically occupied and list of documents  

rehoused is submitted at P-164 to 171 Phase II T.D.R. can  

be recommended if agreed.  

In view of above pending requirement if CEO (SRA) agreed  

TDR equivalent to 0.90 x 3720.90 = 3348.81 (1295  

SQ.MT. released in Phase I + 2051.81 sq.mt. to be  

released & Phase II) sq. mt. Phase II TDR will be  

recommended to M.C.G.M. ”  

68. It was noted that Susme was required to submit  

agreements with 70% of the slum dwellers.  On 07.07.1999  

Susme, through its architects, sent a letter to respondent no.  

1 forwarding 580 individual agreements of the members of the  

Society and also undertook to submit the remaining, to make  

70% in due course.  SRA pointed out in its letter dated

59    

25.07.2001 addressed to Susme that out of the agreements  

submitted, only 372 were correct.    

69.  Here, it will be pertinent to note some other relevant  

facts.  On 11.05.1999, some slum dwellers filed Writ Petition  

No. 1301 of 1999, challenging the letter of intent dated  

27.01.1998 in favour of Susme on various counts including  

the ground that Susme had failed to obtain consent of 70% or  

more of the eligible slum dwellers.  This petition was  

dismissed on 13.12.1999 and we have quoted the relevant  

portion of the Bombay High Court in the earlier part of the  

judgment.  According to Susme, in view of this judgment, it  

was not required to obtain 70% consent of the slum dwellers.   

We do not think this is what was said by the High Court.  We  

may note that the main contention by the appellant before the  

High Court was that the consent of 70% of the slum dwellers  

was not required under the 1991 Scheme.  The High Court  

held, and rightly so, that under the 1991 DCR what was  

required was that 70% of the slum dwellers joined the Society,  

which was interested in the rehabilitation of slum dwellers

60    

and there was no requirement that there should be consent  

from 70% slum dwellers.  The High Court did not discuss at  

all, the issue whether 70% consent was required under the  

1997 Scheme.  This judgment will have no bearing on the  

present case.    

70. As we have already indicated above, in a migration from  

1991 Scheme to 1997 Scheme, obviously 70% individual  

agreements cannot be obtained prior to submission of the  

Scheme.  However, while granting migration, the SRA can lay  

down conditions and such conditions can also be laid down  

during the course of the Scheme.  From the facts narrated  

above it is more than amply clear that the SRA envisaged, and  

Susme clearly understood, that it had to obtain consent of  

70% of the slum dwellers.  Even in the resolutions of the  

Society authorizing Susme to take up the development work  

entered after DCRs were amended it was clearly mentioned  

that amended Regulation 33(10) would govern the  

agreements.  Susme cannot now say that it is not governed by  

the amended regulations.  Even the letters issued by the

61    

architects of Susme clearly indicate that they would make up  

the balance to achieve 70% agreements.  The main dispute is  

by when this should have been done.  Initially, time was given  

till commencement certificate of the sale building was issued.   

This was a meaningless condition because if this condition  

was to be applied after the rehabilitation buildings had been  

built, then having the consent of the slum dwellers would be  

an exercise in futility because by then they would have been  

thrown out of their dwellings.  We can, at best, understand  

this to mean commencement of the rehabilitation buildings.   

The slum dwellers are interested with the rehabilitation  

buildings and not with the free sale buildings.  Later on, when  

applying for permission to trade their development rights,  

Susme clearly understood and undertook that it would  

furnish the consent forms of 70% of the slum dwellers.  The  

architects of Susme, in fact, deposited 580 individual  

agreements but out of these, only 372 were found to be  

correct.  Thereafter, Susme took a U-turn and, relying upon  

the judgment of the Bombay High Court in CWP No.1301 of  

1999, took a stand that it was not required to submit

62    

agreements with 70% slum dwellers. This stand was not  

legally tenable.  Susme cannot be permitted to back out of its  

commitments.  The agreements with 70% slum dwellers  

should have been provided within a reasonable time and,  

though almost 20 years have elapsed since the second letter  

of intent was granted in favour of Susme, it has till date failed  

to submit such agreements.  We may again reiterate that we  

are not dealing with this issue for the purpose of removing  

Susme but only for the purpose of showing that Susme  

delayed the project because it failed to get consent from 70%  

of the occupiers.  

WHETHER SUSME DELAYED THE CONSTRUCTION OF  THE SCHEME, AND IS, THEREFORE, NOT ENTITLED TO  

ANY RELIEF:  

71. With regard to the issue whether the appellant is  

responsible for the delay in implementation of the Scheme, at  

the outset, we may note, that both the SRA and the High  

Court have dealt with this issue in detail and come to a  

concurrent finding of fact that Susme was responsible for the

63    

delay in implementation of the Scheme.  Since this is a  

finding of fact and dealt with in detail by the High Court, we  

are not required to examine this contention in detail.   

However, at the insistence of the learned senior counsel for  

Susme we have gone through the voluminous record.  From  

the facts which are set out in this regard it is apparent that  

Susme first entered into an agreement with the Society on  

27.02.1986 committing to complete the project in 5 years.   

Unfortunately, from 1986 to 1991, nothing was done and the  

only excuse is that some public interest litigation was  

pending.  On 25.03.1991, the DCRs were brought into force.   

On 09.10.1992, the appellant obtained permission for  

development of the property on certain conditions.  It would  

be important to note that in the letter of 09.10.1992, while  

granting permission, it was stated that the developer should  

produce agreement of all the existing occupiers within six  

months and the development work is to be completed within  

two years, though the time could be extended for genuine  

reasons.  Admittedly, no work was done during this period  

also.  On 05.04.1995, letter of intent was issued in favour of

64    

Susme.  In this letter also, there was a stipulation that Susme  

should produce the agreement with all the slum dwellers.   

Thereafter, Susme entered into a fresh agreement with the  

Society.  During this period of 9 long years, not an inch of  

construction was raised nor any portion of the property  

developed.  Thereafter, in a meeting of General Body of the  

Society held on 12.11.1995, a resolution was passed that  

each slum dweller be provided 225 sq. ft. carpet area.  This  

was accepted by Susme and crystallized in the agreement  

dated 07.01.1998.  Between 15.01.1996 to 01.02.1996 Susme  

obtained ‘intimations of disapproval’ which, in fact, are  

sanctions for construction for 15 rehabilitation buildings and  

started construction of two rehabilitation buildings nos. 5    

and 6.  Susme’s proposal for conversion of SRD Scheme to  

SRA Scheme was approved in January, 1998 and fresh letter  

of intent was issued in favour of Susme on 27.01.1998.   

During this period, two rehabilitation buildings were  

constructed but nothing further was done.  There is virtually  

no explanation as to why the remaining rehabilitation  

buildings were not constructed during this period except to

65    

state that fresh plans were never approved.  It is more than  

obvious from the facts narrated above that Susme never  

earnestly pursued the authorities for approval of the plans  

and the reason is not far to seek – the reason being Susme  

did not have consent/agreements of 70% slum dwellers.  It is  

more than obvious that Susme was buying time on one  

excuse or the other.  On 18.01.2000, the SRA called upon the  

appellant to submit revised plans in respect of rehabilitation  

buildings within 10 days of the receipt of the letter.  In reply  

thereto, the architects of Susme sent a letter on 27.01.2000  

expressing their intention to start Phase II of the project but,  

at the same time, sought waiver of the requirement of  

obtaining 70% consent from the slum dwellers.  This clearly  

shows that Susme was using this excuse to delay the  

construction.  On 05.01.2001, Susme addressed a letter to  

the SRA praying that the plan submitted in 1997 be  

approved.  Thereafter, the SRA did not consider Susme’s  

proposal since, according to the SRA, the proposal was  

affected by the Coastal Regulations Zone (CRZ) Notification.

66    

72. On 07.07.2001, Susme and the Society filed Writ  

Petition No. 2269 of 2001, in the Bombay High Court seeking  

removal of the remarks which indicated that part of the  

property of the Society was being affected by the CRZ  

Notification.  A perusal of the writ petition and the other  

documents clearly shows that the entire property was not   

affected by the CRZ Notification, but only a part thereof.  On  

07.08.2002, in the petition filed by Susme and the Society,  

the Bombay High Court passed an order, relevant portion of  

which reads as follows:  

“Prima facie, having perused the affidavit of Dr. Munshil  Gautam filed before this Court on 24th June, 2002 and the  

documents annexed thereto it does appear that the  

property in question is affected by CRZ regulations.   

Respondent No. 2 and 3 have already placed Coastal Zone  

remark which is of course impugned in the present  petition but until the petitioners are granted relief as  

prayed, the petitioners cannot raise any construction in  

the area which is covered by CRZ regulation.  We  

accordingly observe that during the pendency of petition  

the petitioners shall not raise any construction in the  

property in question which is affected by CRZ regulation.”  

73. It is apparent from the aforesaid order that stay was  

granted not to raise construction in the area which is covered  

by the CRZ Notification.  No material has been brought on

67    

record to show that the entire plot was covered by the CRZ  

Notification and it is amply clear that only a portion of the  

plot was covered by the CRZ Notification and nothing  

prevented Susme from raising construction on that portion of  

the land which was not affected by the CRZ Notification.  On  

09.05.2005, Susme’s architects sought approval of plans for  

transit accommodation.  This permission was granted on  

18.08.2005, but a condition was laid down that 70%  

agreements must be submitted before the existing structures  

are demolished.  On 14.03.2006, the SRA issued notice to  

Susme to stop work on various grounds including non-

submission of demarcation from the competent authority  

permitting the transit camp to be set up.  Thereafter, on  

05.09.2006, Susme and the Society entered into another  

agreement and on 03.04.2008, respondent no. 1 revoked the  

order dated 29.05.2006, after Susme obtained permission  

from the State Government allowing the transit camps to  

remain.  It is apparent that sometime in the year 2005, it was  

clarified by the concerned authorities that Susme’s  

construction was not affected by the CRZ Notification. It is

68    

obvious that only a portion of the land was affected by the  

CRZ Notification and nothing prevented Susme from  

constructing the buildings which were to be constructed on  

land not falling within the CRZ Notification. However for  

reasons known only to Susme, it withdrew the Writ Petition  

No.2269 of 2001 only on 07.04.2008. It was only thereafter  

that respondent no. 3-Society passed a resolution on  

29.03.2009, terminating the development agreement with  

Susme.  Even after that, the SRA on 15.06.2009 issued a  

letter that the Society’s request for change of developer need  

not be considered.  On 14.09.2009, the Society entered into  

agreement with respondent no. 4 - J.G. Developers Pvt. Ltd..   

Thereafter, civil litigation started.  It has also been urged on  

behalf of Susme that, in the meantime, a one man  

Commission was constituted and due to the constitution of  

this Commission, work was affected.    

74. After going through all the material placed on record, we  

are clearly of the view that the finding given by the SRA that  

the appellant was responsible for the delay, is a finding based

69    

on appreciation of material on record.  It cannot be said to be  

a perverse finding.  It is a finding of fact and, therefore, the  

Bombay High Court was justified in coming to the conclusion  

that it could not set aside this finding of fact in writ  

jurisdiction.  We may, however, add that since lengthy  

arguments were addressed, we have ourselves gone through  

the various documents and though there may have been a few  

stop orders and a few occasions when Susme may not have  

been able to raise the construction but, by and large, Susme  

was itself guilty of delaying the construction for no reason at  

all.  We, therefore, hold that Susme was rightly held  

responsible for the delay in implementation of the  

rehabilitation scheme and, as such, we find no error in the  

impugned order.  

WHETHER SUSME IS ENTITLED TO CONTINUE WITH THE  

SCHEME:  

75. With regard to the issue whether the appellant is entitled  

to continue with the Scheme; in view of the findings given  

above, we are clearly of the view that Susme is not entitled to

70    

continue with the rehabilitation Scheme on account of the  

fact that it has been responsible for the delay in completion of  

the project for an inordinately long time.  Susme has not been  

able to explain the delay.  We are dealing with slum dwellers  

and Susme cannot take the benefit of technical points to  

defeat the rights of the slum dwellers.  The claim of Susme  

that it had the support of 70% slum dwellers, was contested  

before Justice Srikrishna and his findings clearly reveal that  

Susme does not have the support of 70% of the slum  

dwellers.  We are of the view, that since the notice by the SRA  

to Susme did not make any specific allegation with regard to  

Susme not having 70% consent, that portion of the order of  

the SRA, setting aside the right to develop the land on the  

ground of lack of 70% consent, may have been beyond the  

scope of the notice.  However, this issue was argued before  

the HPC and the High Court and on rival claims being made,  

this Court vide order dated 27.03.2015, referred this dispute  

to Justice Srikrishna, who has submitted his report.    

71    

76. In writ proceedings, the petitioner must show that both  

in law and in equity it is entitled to relief.  In this case, both  

equity and law are against Susme.  It has dealt with slum  

dwellers in a highly inequitable manner.  The law and the  

conditions of the letter of intent as well as the conditions  

imposed in the various letters issued by the SRA clearly  

required Susme to produce agreements with at least 70% of  

the slum dwellers.  This, Susme has miserably failed to do.   

We may also add that though Susme may have remained the  

same entity in name, there have been, at least, three changes  

in the promoters of Susme and these transfers of  

shareholdings obviously must have been done for  

consideration.  It is more than obvious that Susme, as a legal  

entity, was treating the slum dwellers only as a means of  

making money and, therefore, we are clearly of the view that  

Susme is not entitled to any relief.    

72    

IN CASE SUSME IS NOT ENTITLED TO CONTINUE WITH  THE SCHEME WHETHER RESPONDENT NO. 4 J.G.  DEVELOPERS IS ENTITLED TO CONTINUE WITH THE  

REHABILITATION SCHEME:  

77. The next issue is whether J.G. Developers is entitled to  

any relief and can be permitted to continue with the  

rehabilitation scheme.  In this behalf, we may note that the  

conduct of J.G. Developers is not above board.  It is more  

than obvious that when respondent no. 3-Society entered into  

a development agreement with respondent no. 4, the  

members were given a false hope and dream that the size of  

their flats would go up.  

78. Under the terms of this agreement, J.G. Developers  

agreed to provide permanent alternative accommodation of  

344 sq. ft./419 sq. ft. carpet area to the slum dwellers.  J.G.  

Developers also entered into individual agreements and under  

these agreements, it agreed to provide 344 sq. ft./419 sq. ft.  

carpet area to some residents.  It is obvious that a false  

promise was held out by J.G. Developers that the carpet area

73    

of the flat would be increased from 269 sq. ft. to 344 sq.  

ft./419 sq. ft..  Obviously, the slum dwellers, who had been  

waiting for 23 long years for a flat admeasuring 269 sq. ft.  

would happily accept the offer of a flat of 344/419 sq. ft..    

79. From the communications addressed by the SRA, it is  

obvious that J.G. Developers was legally not entitled to make  

this offer.  It is submitted by Shri Gopal Subramanium,  

learned senior counsel that J.G. Developers was willing to  

sacrifice its free sale area to give a larger flat.  However, he  

has failed to submit even one document to show that the SRA  

had agreed to this proposal of the J.G. Developers.  In fact,  

the communication sent by SRA clearly shows that the  

proposal was not accepted. It is, therefore, obvious that J.G.  

Developers had hoodwinked the members of the Society in  

entering into an agreement with it by holding out a false  

promise that they would be given much larger flats.  As such,  

we are unable to accept the request of respondent no. 4- M/s.  

J.G. Developers, to be permitted to continue with the project.   

We may also note that the Society has terminated its

74    

agreement with the J.G. Developers.  We are not going into  

the question whether this has been done rightly or wrongly,  

but the fact is that the agreement stands terminated.  We may  

also note that in the voting conducted by Justice Srikrishna,  

J.G. Developers failed to get the consent of 70% slum dwellers  

and, in fact, it has got less than 1/2 of the votes, as compared  

to Susme, and its support is even less than 30%.    

80. It was urged before us that agreements once entered into  

and the consent once given, cannot be withdrawn.  We are  

totally in agreement with the same.  However, if the consent is  

obtained by misrepresentation of facts, then that is no  

consent.  Now, when the position stands clarified that the  

slum dwellers would get flats of 269 sq. ft. area only,  J.G.  

Developers has failed to get support of even 30% of the       

slum dwellers.  

81. In view of the above discussion, we are clearly of the  

view that J.G. Developers is not entitled to continue with the  

project and is not entitled to any relief.

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LAW LAID DOWN BY THE BOMBAY HIGH COURT:  

82. Our attention was drawn to various judgments of the  

Bombay High Court that consent once given by the slum  

dwellers should not be permitted to be withdrawn. It was also  

brought to our notice that the Bombay High Court has  

consistently held that voting inter se developers should not be  

done.  It has been the consistent view of the Bombay High  

Court that in case voting is done, then this will lead to  

developers trying to buy out the slum dwellers and then no  

rehabilitation scheme would attain fruition.  We totally agree  

with the aforesaid views of the Bombay High Court.  We must  

remember that slum dwellers normally belong to the poorest  

section of the society.  They can be tempted to change their  

mind.  In the present case itself, the slum dwellers shifted  

from Susme to J.G. Developers for two reasons – (i) Susme  

had delayed the project and (ii) J.G. Developers made a  

promise that it would give a flat of 344 sq. ft./419 sq. ft. area,  

which promise was obviously a false promise.  The view of the  

Bombay High Court that consent once given should not be

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permitted to be withdrawn, is absolutely the right view.   

Otherwise, a person may give consent one day, withdraw it  

the second day and review the consent the third day, leaving  

the Scheme in a perpetual state of flux.  For the aforesaid  

reasons, we agree with the Bombay High Court that there  

should be no inter se bidding between the builders.  The  

proper course is that the scheme of the developer who is the  

first choice, should be placed before the slum dwellers and if  

it gets 70% votes, then the Scheme can be considered, but if it  

does not get 70% consent, then obviously, the second  

developer can be considered.  However, competitive bidding  

should not be done because that can lead to a very unholy  

practice of developers trying to buy out the slum dwellers,  

which is also not in the interest of the rehabilitation scheme.  

83. As far as the present case is concerned, this Court while  

passing the order dated 27.03.2015, made a departure  

because of the peculiar facts of this case.  The present case  

because of its own unique facts cannot be treated as a

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precedent in other cases with regard to action taken in        

this case.  

CONCLUSION:  

84. In view of the above discussion, we arrive at the  

following conclusions:  

1. That the order dated 27.03.2015 was passed in  

exercise of jurisdiction vested in this Court under  

Article 142 of the Constitution of India and is an order  

binding on the parties;  

2. That vide order dated 27.03.2015, this Court wanted  

Justice B.N.Srikrishna to find out whether Susme or  

J.G. Developers had the consent of 70% slum dwellers;  

3. That, as a result of the Report submitted by Justice  

B.N. Srikrishna, both Susme and J.G. Developers have  

failed to show that they enjoyed support of the 70% of  

the slum dwellers;  

4. That, in the peculiar facts and circumstances of this  

case, where the owners and occupiers are virtually

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one, the SRA had the jurisdiction to invoke the  

provisions of Section 13(2) of the Slum Act to revoke  

and set aside the right to develop and cancel the letter  

of intent granted in favour of Susme.  Even if it be  

assumed that Section 13(2) is not applicable, then the  

SRA could have exercised this power under Section 3A  

(3)(c) and (d) of Slum Act.    

5. That the notice issued by the SRA to Susme was only  

on the ground of delay and the issue of obtaining 70%  

consent was not specifically raised in the notice.   

Consequently, the order dated 24.02.2012 passed by  

the SRA in so far as it rejects the case of Susme for  

lack of 70% consent is beyond the terms of the notice.   

Therefore, this part of the judgment of the Bombay  

High Court, holding that Susme was aware about this  

allegation, is not accepted and is set aside;    

6. That, Susme was responsible for the delay in  

implementation of the Scheme and construction of the  

buildings and, therefore, the SRA was justified in  

setting aside the appointment of Susme as developer

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and impliedly cancelling the letter of intent issued in  

its favour vide order dated 24.02.2012;  

7. That, Susme has failed to show that it has the  

consent/agreements of 70% of the slum dwellers even  

today and, therefore, is not entitled to any relief from  

this Court; and  

8. That J.G. Developers obtained the consent of the  

members of the Society by holding out a false promise  

of a larger flat and, therefore, the agreements entered  

into by J.G. Developers with the slum dwellers are  

legally unconscionable and not enforceable and, as  

such, J.G. Developers is also not entitled to continue  

with the Scheme.  

RELIEF:  

85. This, as pointed out earlier, is a very unusual case.  We  

have held that both the contesting developers are not entitled  

to any relief.  It is our duty to ensure that these owners who  

also happen to be slum dwellers do not live in sub-human  

conditions for eternity.

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 86. We are not only disappointed with the conduct of  

Susme, but also with the conduct of those persons who were  

the office-bearers of the Society whichever faction they may  

belong to.  It is more than obvious that the two rival  

developers and the office-bearers of the Society were playing  

with the lives of large number of slum dwellers.  We are not  

going into this issue in detail but, if we were to carefully  

examine the various agreements entered into by Susme with  

the Society, we find that though the members may have been  

entitled to larger flat in each subsequent agreement but, in  

fact, it was the builder, who was the biggest gainer as the  

advantage of higher FSI was cornered by the builder.  Only a  

small portion of this advantage was being transferred to the  

slum dwellers and a large portion was being retained by the  

builder.  Another important aspect is that, in this case, it is  

the occupiers who, through the Society, are also the owners of  

the land.  In our view, in addition to the flats which they  

would be entitled to as slum dwellers or occupiers or  

encroachers of land, they should have been given some

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benefits as owners of the land.  When a slum, owned by any  

authority or person, is handed over to the developer, in  

addition to rehabilitating the slum dwellers, the developer  

also has to compensate the owner.  We see no reason why, in  

the present case, the slum dwellers, who are the owners,  

should also not be given some adequate compensation for the  

land which they own.  It is these 800 plus slum dwellers, who  

own this 23018.50 sq. mtrs. of land, which would be valuing  

thousands of crores of rupees and, therefore, we see no  

reason why the slum dwellers, who also happen to be the  

owners of the land, should also not be compensated for the  

price of the land.  

 87. This is a case where the earlier Bench of this Court had  

invoked its power under Article 142 of the Constitution of  

India and we also feel that it is a fit case for invocation of this  

Court’s jurisdiction under Article 142 of the Constitution of  

India.  Hence, in exercise of this Court’s power under Article  

142 of the Constitution of India, we issue the following  

directions/orders for doing complete justice:

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1.    That the SRA shall within three weeks of the receipt of  

this order, invite letters of interest from renowned  

builders/developers, who have the capacity and  

experience to take up such a large project by issuing  

advertisements in not less than three newspapers  

having wide circulation in Mumbai, one each in  

English, Hindi and Marathi;  

2.    The advertisement may be brief but all necessary  

details must be incorporated in the advertisement.   

The details of the project including a copy of this  

judgment should be made available on the website of  

the SRA;    

3.    After the letters of interest are submitted, the SRA  

shall consider which is the best offer and while  

considering the best offer, it shall ensure that the  

terms offered to the occupiers are in no manner  

disadvantageous to them when compared to the last  

offer made by Susme in regard to the area of flat  

offered, the nature of construction and other facilities  

available on the site.   The SRA must, while evaluating

83    

the proposals, take into consideration the past record  

of the party/person expressing interest: it shall also  

take into consideration the financial viability of such  

party/person and, therefore, it may ask such  

party/person to submit all the documents to support  

their financial viability.  In case of any doubt, the SRA  

can move appropriate application before this Court;  

4. The persons who express interest must be willing to  

give an assurance that they will submit plans within  

one month of the approval of their proposal and all the  

concerned authorities must, within 15 days thereafter,  

raise objections, if any, giving the successful bidder a  

chance to remove the objections, if any, within one  

month thereafter;  

5. Thereafter, the concerned authorities should ensure  

that the plans are approved and sanctions granted  

latest within two months of the submission of the  

original plans.  The successful developer should  

undertake to complete the rehabilitation of part of the  

project to rehabilitate all eligible occupiers/slum

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dwellers within a period of two years from the date of  

sanction of the plan.  The successful bidder must give  

a bank guarantee of Rs. 200,00,00,000/- (Rupees Two  

Hundred crores only) to ensure that it does not violate  

the terms and conditions of the rehabilitation scheme.   

In case of violation of the terms and conditions of the  

rehabilitation scheme without reasonable cause, the  

SRA will be entitled to invoke the bank guarantee,  

after giving notice to the developer;  

6. Keeping in view the fact that the slum dwellers are  

also the owners, the developers may also indicate what  

benefit they will give to the members of the Society  

either in cash or in kind by means of giving additional  

built up area out of their own free sale area to such  

members of the Society;  

7. The SRA shall monitor the progress of the Scheme to  

ensure that it is completed within the time granted by  

this Court;   

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8. No Court or authority shall pass any order which will  

in any manner affect the implementation of the  

directions/orders issued by us;  

9. The Society, its members, the SRA and all concerned  

will render complete assistance to the  

builder/developer, who is awarded the project by the  

SRA; and  

10. That all pending litigation shall be disposed of in view  

of the aforesaid orders passed by us and shall be  

disposed of by the Court(s) accordingly.            

88. We may also point out that vide order dated 12.10.2017  

this Court directed that elections to respondent no. 3-Society  

be conducted on or before 31.12.2017.  These elections  

were held on 17.12.2017 and a new Managing Committee was  

constituted.  This Managing Committee held its first meeting  

on 31.12.2017 and has filed an affidavit on 03.01.2018  

praying that the mandate recorded in the Report of Justice  

B.N. Srikrishna  be implemented.  It has also referred to the  

proposed amendment to the DCR whereby the requirement

86    

for consent is being reduced from 70% to 50%.  We have  

taken this affidavit on record.  It does not in any manner  

affect the view which we have taken.  

89. Pending application(s), if any, stand(s) disposed of.  

90. The SRA to file status report by 31.03.2018.  List on  

09.04.2018.  

..………………………J.  (Madan B. Lokur)  

..………………………J.  (Deepak Gupta)  

New Delhi  January 04, 2018