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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2499 OF 2013
WITH
WRIT PETITION NO.926 OF 2013

Housing Development and Infrastructure

Ltd. and Anr. … Petitioners
Vs.
State of Maharashtra and Ors. … Respondents

­­­­­­­­­­­­­­­­­

Mr. D.D. Madon, Senior Counsel a/w Mr. S.G. Surana, for the
Petitioners in W.P. No.2499 of 2013 and W.P. No.926 of 2013.

Mr. V.S. Tiwari, AGP for the Respondent No.1 – State in W.P. No.2499 of
2013.

Mr. Milind More, Additional Government Pleader, for the Respondent

Nos.1, 2 and 3 in W.P. No.926 of 2013.

Mr. Vijay Dinkarrao Patil, for the Respondent Nos.2, 3 and 4 in W.P.
No.2499 of 2013.

Mr. A.V. Anturkar, Senior Counsel i/by Mr. Nitesh S. Acharya, for the
Respondent No.5 in W.P. No.2499 of 2013.

Mr. Jagdish G. Reddy a/w Ms. Neha Wadhwa, for the Respondent No.4
in W.P No 926 of 2013.

Mr. Girish D. Utangale a/w Mr. Akhil Kubade i/by M/s. Utangale & Co.,
for the Respondent No.5 – MHADA in W.P No.926 of 2013.

CORAM : A.S. OKA &

A.K. MENON, JJ.

DATE : 6th, 9th and 10th FEBRUARY, 2015

ORAL JUDGMENT (Per A.S. Oka, J.)

. These petitions were taken up for final disposal out of turn

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as the same were specially assigned to this Bench in the light of the

order dated 2nd May, 2014 of the Apex Court under which a direction

was issued to dispose of these petitions as expeditiously as possible.

FACTS OF THE CASE­ WRIT PETITION NO.2499 OF 2013

2. It is necessary to firstly deal with the facts of the case in

Writ Petition No.2499 of 2013. By this Petition under Article 226 of the

Constitution of India, the petitioner has challenged the legality and

validity of the Judgment and Order dated 2nd July 2013 passed by the

High Power Committee in Appeal No.28 of 2012 which is filed by the

Respondent Nos.5 to 69.

3. The issue concerns the land bearing CTS Nos.4207 (Part),

(for short “said land”) of village Kole Kalyan, Bandra, Taluka Andheri,

Mumbai Suburban District. The fifth respondent­ Co­operative Housing

society is formed by the slum dwellers occupying structures on the said

land. The subject matter of dispute is the Scheme for rehabilitation of

slum dwellers (for short the SR Scheme) on the said land under

Regulation No.33(10) of the Development Control Regulations for

Greater Mumbai, 1991 (for short “DCR”). On 13 th October 2003,

Annexure­II of the proposed SRA Scheme was issued containing the list

of eligible hutment dwellers/occupants who were entitled to seek

permanent accommodation in the developed property. The first

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petitioner in W.P. No.2499/2013 is the developer of the SR scheme. A

Letter of Intent was issued by the Slum Rehabilitation Authority (for

short 'SRA') on 29th July 2006 in the name of the fifth Respondent

Society. It appears that the scheme of the fifth respondent ­ society was

clubbed with the scheme with some other schemes. The case of the first

petitioner­Developer in W.P. No.2499 of 2013 is that 88 members of the

fifth respondent­society who were held as eligible for the allotment of

permanent accommodation sold/transferred/assigned their existing

structures to the first petitioner and valuable consideration was paid by

the first petitioner to the said slum dwellers.

4. It will be necessary to state as to how the matter arose

before the High Power Committee (for short “HPC”) constituted by the

State Government. An application was made by the fifth respondent­

society before the HPC seeking various directions against the

petitioners. The said application was disposed of by order dated 3 rd

October 2009. The HPC referred in the said order to the order passed

by this Court on 6th December 2005 in Writ Petition No.2375 of 2005.

The HPC issued a direction to the Assistant Registrar SRA shall register

the fifth respondent­society on compliance being made within a period

of four weeks. Further direction was issued to the The Chief Executive

Officer (for short “CEO”) of the second respondent­ Slum

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Rehabilitation Authority (for short “SRA”) constituted under the

Maharashtra Slum Area (I C &R) Act, 1971 (for short “the said Act of

1971) to ensure that eligible members of the fifth respondent­society

shall be allotted rehab tenements in the rehab building ready for

occupation.

5. In Writ Petition No.2582 of 2009 filed in this Court by six

slum dwellers, an affidavit was filed on behalf of the first petitioner

setting out the details of the transactions allegedly made by the eligible

members of the society with the first petitioner. By order dated 1 st

February 2010, Writ Petition No.2582 of 2009 was permitted to be

withdrawn with liberty to file a suit. It appears that on 14 th January

2010, notices were issued to some of the members of the fifth

respondent ­ society calling upon them to appear before the SRA. There

was another petition filed being Writ Petition No.1423 of 2010 by the

fifth respondent­society. In the said petition, the grievance appears to

be in relation to the non­allotment of the tenements to six of its

members. The order of this Court dated 28 th September 2010 shows

that the petition was disposed of with a direction to the SRA to look

into the issues raised by the fifth respondent­society which was the

petitioner in the said petition.

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6. There was an order made by the Secretary of the SRA on

16th November 2011 directing the Deputy Registrar of the SRA to allot

rehab tenements to Mr. Maskur Alam Siddiqui and six others (the

petitioners in Writ Petition No.2582 of 2009) within a period of 15 days

from the date of grant of the Occupation Certificate.

7. It appears that the first petitioner made an application

No.131 of 2012 before the HPC. In the said application a prayer was

made for issuing directions to the SRA to dispose of the application

made by the first petitioner and to submit a report to the HPC and to

cancel the eligibility of the slum dwellers who have allegedly

transferred their structures to the first petitioner. The said application

was disposed of by the HPC by order dated 21 st July 2012. The HPC

directed the Secretary/ SRA to take a decision on the complaints/

representations made by the first petitioner within a period of one

month from the said date. A direction was also issued that till then, the

allotment shall not be made by the SRA to the members of the fifth

respondent­society.

8. The order dated 29th August 2012 was passed by the SRA

on the basis of the said directions of the HPC. The operative part of the

said order reads thus:

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“15. Considering the aforesaid facts of the case, this

Authority is of the view that the 88 Members of the
Navjeevan Nagar SRA CHS Ltd. have sold their respective
tenement to the Developer M/s. HDIL and therefore, they
cannot be held eligible under the subject S.R. Scheme and
therefore, their eligibility stands cancelled and the order
dated 09.04.2012 passed by the Deputy Registrar/ SRA
stands revoked/ cancelled.

Further, under the S.R. Scheme the Developer cannot

purchase the rehab tenement and therefore, this Authority
directs the Deputy Chief Engineer/SRA to forfeit and take
the possession of the 88 rehab tenement from the
developer M/s. HDIL as and when the same are ready and
keep the said tenements in the custody of the SRA strictly
for allotting to the deserving PAPs.”

9. It is against this order that the fifth to sixty ninth

respondents preferred Appeal No.28 of 2012. Before the said appeal

was preferred, it appears that the said respondents filed Writ Petition

(L) No.2320 of 2012 in this Court. By order dated 24 th September

2012, a Division Bench of this Court permitted the petitioners in the

said petition to withdraw the said petition with liberty to move the HPC

against the the decision of the SRA. Perhaps, it is on the basis of the

liberty which was granted by this Court that the said appeal was

preferred by the contesting respondents.

10. By order dated 6th October 2012, the HPC noted that the

Chairperson and the two Members of the said Committee cannot be

impleaded as party respondents to the said appeal and on the ground of

mis­joinder of the parties, the said appeal was dismissed. The said order

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was challenged by the said respondents in W.P. (L.) No.2467 of 2012. By

order dated 9th October 2012, this Court directed the restoration of the

said appeal on the basis of the statement made by the petitioners in the

said petition that the names of the Members of the HPC will be deleted

from the Memorandum of appeal. By restoring the appeal and by

recording the statement of the said respondents, the petition was

disposed of by this Court. Thereafter, on said appeal, the impugned

Judgment and order dated 2nd July 2013 has been passed.

11. Now, it will be necessary to make a reference to the

impugned Judgment and order passed by the HPC. The said order

holds that the SRA could not have ventured to give findings on the

issues of civil nature relating to the veracity of certain payments made

by the first petitioner to the eligible members of the fifth respondent­

society. The relevant part of the said order reads thus:

“The Secretary/SRA's Order dated 29.8.2012 declaring

the eligible Slum Dwellers of Appellant No.1 i.e.
Navjeevan Rahivasi SRA CHS Ltd as non protected
occupiers of their dwelling structures without right of
rehabilitation on extraneous grounds that they had
purportedly received certain payments from respondent
No.4 i.e. Developer is thus set aside for reasons
enumerated above. It is further directed that SRA to
take appropriate measures for time bound in situ
rehabilitation of all eligible Slum Dwellers of Appellant
No.1 i.e. 1 Navjeevan Rahivasi SRA CHS Ltd under on
going Slum Rehabilitation Scheme.

In view of the above the appeal stands disposed off.”

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12. Thus, the net result of the impugned order is that apart

from setting aside the order of SRA dated 29 th August 2012, the HPC

directed the SRA to take appropriate measures for rehabilitation of the

eligible slum dwellers who are the members of the fifth respondent­

society in the ongoing SR Scheme.

FACTS OF THE CASE­ WRIT PETITION NO.926 OF 2013

13. In Writ Petition No.926 of 2013, there are various prayers .

The learned Senior Counsel appearing for the petitioners fairly stated

that in this Petition, the petitioners are not pressing prayer clauses (a)

and (b). As far as prayer clauses (c) and (d) are concerned, essentially

there is a challenge to the policy of the State Government as reflected

from Government Resolution dated 2nd January, 2012 permitting the

sale of the premises by the slum dwellers. We must note here that the

learned AGP tendered across the bar GR dated 22 nd July, 2014 and

submitted that the said GR dated 2nd January, 2012 has been

superseded. In any event, for the reasons which we will recorded

hereafter, we have come to a conclusion that the petitioners are not

affected in any manner by GR dated 2 nd January, 2012 and therefore,

the challenge in terms of prayer clauses (c) and (d) will really be

academic. Thus, none of the substantive prayers are required to be dealt

with on merits. Hence, it is not necessary to deal with the averments

made in the said Petition.

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SUBMISSIONS OF THE PETITIONERS IN WRIT PETITION

NO.2499 OF 2013

14. As far as Writ Petition No.2499 of 2013 is concerned, the

learned Senior Counsel representing the petitioners pointed out that on

19th January, 2013, HPC closed the matter after hearing the

submissions. He pointed out that there is a delay of six months in

deciding the appeal by the HPC. He submitted that apart from the gross

delay, submissions which were even not canvassed before the High

Power Committee have been taken into consideration by HPC. His

submission is that though there were no submissions made based on

Sections 3X, 3Y and 3Z of the said Act of 1971 before the HPC, the said

provisions have been considered as if submissions have been made by

the petitioners on the basis of the said provisions. He invited our

attention to the relevant grounds in the writ petition in which specific

contentions have been raised that the submissions which were not

canvassed before it have been considered by the HPC. He pointed out

that though the submissions which were not canvassed by the learned

counsel representing the petitioners before the HPC have been

considered, in fact, some of the submissions which were actually made

have not been dealt with. He invited our attention to Writ Petition

No.2582 of 2009 filed by some of the members of the fifth Respondent ­

Navjeevan Society. He pointed out that after a reply was filed by the

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first petitioner pointing out the execution of several documents of

transfer by the members and the substantial amounts received by large

number of members by way of consideration, by order dated 1 st

February, 2010, the said members who were the petitioners were

permitted to withdraw the Petition with liberty to file a suit. He pointed

out that the petitioners never availed of the liberty granted to them by

filing a civil suit. He submitted that instead of availing the remedy of

filing civil suits in which the questions of fact in relation to the sale

deeds and other documents executed by the members of the Navjeevan

Society could have been gone into, they have filed further proceedings

which ought not to have been entertained. He pointed out that it is not

disputed that the members of the said society have received valuable

consideration from the petitioners. He urged that the petitioners had to

take the step of acquiring right, title and interest of the members of the

said society as the implementation of the project was being delayed on

account of policy of non­cooperation adopted by the members of the

society. He submitted that the intention of the petitioners of entering

into the said transactions with the members of the fifth respondent ­

society was to ensure that the SR Scheme is implemented expeditiously.

He invited our attention to Section 3E of the said Act of 1971. He also

invited our attention to Regulation 33(10) of the said DCR and in

particular Clause 1.18 of Appendix IV to Regulation 33(10). He urged

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that on conjoint reading of Clause 1.18 with Section 3E, the intention

of the legislature seems to be that once a person who is held to be

eligible in a SR scheme to receive a tenement creates third party rights

in respect of his tenement, his right to get accommodation in the SR

Scheme is forfeited. He urged that in this case, though there may not

be any transaction made by the members of the fifth respondent­society

in relation to the tenements which were to be allotted to them in the

redeveloped property, the same analogy will have to be applied in this

case where the members have transferred their right, title and interest

in the original structures/huts to the first petitioner. He submitted that

by the same analogy, by entering into the said transactions, the

members of the society have forfeited their right to obtain allotment of

tenements in the redeveloped buildings. He urged that merely because

the petitioners are parties to the transaction, the petitioners cannot be

prevented from taking recourse to a remedy under Article 226

especially when the petitioners have categorically stated before this

Court which is recorded in one of the earlier orders that the petitioners

will not claim the possession of the tenements in the redeveloped

property which were to be allotted to the members who have created

rights in favour of the petitioners. He states that the said tenements can

be used by SRA or the concerned authority for the benefit of other

project affected persons. He submitted that this conduct of the

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petitioners is consistent with the fact that the petitioners parted with

the large amounts to the members only to ensure that there is a

progress made in the implementation of the Slum Rehabilitation

Scheme. He urged that the real issue was whether the members of the

society have forfeited their right to secure permanent accommodation.

He urged that HPC was under an obligation to consider this aspect as

the SRA found that in the light of the transactions admittedly entered

into by the members, they have forfeited their right to allotment of

permanent accommodation. He also pointed out the conduct of the fifth

respondent society in Writ Petition No.2499 of 2013. He pointed out

that there is an affidavit filed on 30 th June, 2014 by the Secretary of the

fifth respondent making scandalous and contemptuous allegations

against the Hon'ble the Chief Justice of this Court. He pointed out that

a copy of Writ Petition filed in the Apex Court by the fifth respondent

has been annexed to the said affidavit in which the nature of

allegations made is much more serious. He pointed out the order of the

1st Court which specifically records that the Bench dealing with these

Petitions shall take into consideration such conduct.

15. He would, therefore, urge that this Court will have to hold

that the order of HPC is illegal and the same will have to be set aside.

He urged that after having accepted large consideration from the

petitioners and after having failed to file a suit for declaration or any

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other appropriate relief, the concerned members of the fifth respondent

­ society are not entitled to permanent accommodation. He also

submitted that in any event, apart from delay of six months in passing

the order, the HPC has taken into consideration the submissions which

were never urged and, therefore, the appeal would require

reconsideration by the HPC.

SUMBMISSIONS OF THE RESPONDENTS

16. The learned counsel appearing for the SRA supported the

impugned order of HPC. The learned AGP, apart from pointing out that

the GR dated 2nd January, 2012 has been superseded, supported the

impugned order. The learned Senior Counsel representing the fifth

respondent supported the impugned order.

ALLEGATIONS AGAINST THE HON'BLE THE CHIEF JUSTICE

17. Before we deal with the submissions on merits, as noted in

one of the earlier orders of Division Bench of this Court, it will be

necessary to deal with the allegations made in the affidavit of Shri

Maskur Alam Siddiqui, the Secretary of the fifth respondent ­ society. A

copy of Civil Writ Petition filed by the said society before the Apex Court

is also annexed. However, due to subsequent events, it is not necessary

for us to go into the said allegations. The learned Senior Counsel

representing the fifth respondent on Friday 6 th February, 2015 stated

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before the Court that on Thursday, 5 th February 2015, he had called the

said Maskur Alam Siddiqui (who had filed the objectionable affidavit)

to his office. He stated that the said deponent has realised the mistakes

committed by him. Therefore, he tendered an affidavit dated 6 th

February, 2015 of the said Shri Maskur Alam Siddiqui affirmed before a

Notary Public. In the said affidavit, it is stated that the fifth respondent

desires to withdraw the affidavit dated 30th June, 2014 and even the

Writ Petition filed before the Apex Court. In paragraph 3 of the said

affidavit, the deponent has tendered his own apology and he has also

tendered an apology on behalf of the members of the society. The

deponent is the Secretary of the fifth respondent ­ society. In paragraph

4 of the affidavit, he has stated that he will tender his unconditional

apology before the Hon'ble the Chief Justice. The learned Senior

Counsel prayed that the apology may be accepted. He made a statement

in the afternoon of 6th February, 2015 that on Monday 9th February

2015, the deponent will appear before the Hon'ble the Chief Justice and

will tender an apology. Today (on Monday 9th February 2015) before

we started further dictation of the Judgment, the learned counsel

appearing for the fifth respondent states that accordingly Shri Maskur

Alam Siddiqui, the Secretary of the society appeared before the Hon'ble

the Chief Justice. He has unconditionally withdrawn the allegations

made against the Hon'ble the Chief Justice and he has tendered an

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unconditional apology to the Hon'ble the Chief Justice. He states that

the apology has been tendered for himself and on behalf of the

members of the fifth respondent society. We accept the said statements.

18. There is a clear undertaking to withdraw the Writ Petition

filed before the Apex Court a copy of which has been annexed to the

affidavit dated 30th June, 2014. The fifth respondent will have to file a

compliance affidavit within a period of two weeks from today placing

on record the order of withdrawal of the said Writ Petition.

19. It is true that one of the earlier orders passed by the 1 st

Court records that an opportunity was given to the Secretary of fifth

respondent to withdraw the said allegations but he declined to do so.

Now, an unconditional apology has been tendered not only to this Court

but also to the Hon'ble the Chief Justice in the open Court. Considering

the statements made in the affidavit dated 6 th February, 2015, we are of

the view that the apology tendered deserves to be accepted subject to

compliance with the assurance and undertaking given to this Court to

withdraw the Writ Petition filed before the Apex Court. The fifth

respondent could have avoided all this. Though, the apology is belated,

we have decided to show mercy without going into the question

whether the said respondent deserves it. Therefore, it is not necessary

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for us now to deal with the controversy.

CONSIDERATION OF SUBMISSIONS

20. It will be necessary to make a reference to the relevant

provisions of the said Act of 1971. In this Petition, we are concerned

with Chapters 1A and 1B thereof. It will be necessary to make a

reference to Chapter 1B. Section 3X defines “dwelling structure” to

mean a structure used as a dwelling or otherwise and includes an out­

house, shed, hut or other enclosure or structure, whether of bricks,

masonry, wood, mud, metal or any other material whatsoever. Clause

(c) of Section 3X defines “protected occupier” to mean an occupier of a

dwelling structure who holds a photo­pass. Section 3Y deals with

issuance of photo­pass and maintenance of a Register. Sub­section (1)

of Section 3Y reads thus :­

“3Y. (1) The Government or any officer generally or specially

authorised by it in this behalf shall, after verifying certain
documents or records, as may be prescribed, issue a
photo­pass for the purposes of this Act, in the prescribed
format to the actual occupier of a dwelling structure,
in existence on or prior to 1st January, 1995.”
(emphasis added)

21. We must note here that by Maharashtra Act No.9 of 2014,

Sub­Section (1) of Section 3Y has been amended. In place of the date

“1st January, 1995”, the date “1st January, 2000” has been substituted.

What is most material is Section 3Z which reads thus :­

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“3Z. Protection, relocation and rehabilitation of protected

occupiers
(1) Notwithstanding anything contained in this Act, on and
after the commencement of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) (Second
Amendment) Act, 2001, no protected occupier shall,
save as provided in sub­section (2), be evicted, from
his dwelling structure.

(2) When, in the opinion of the State Government, it is

necessary, in the larger public interest, to evict the
protected occupiers from the dwelling structures
occupied by them, the State Government may, subject
to the condition of relocating and rehabilitating them
inn accordance with the scheme or schemes prepared
by the State Government in this behalf, evict them
from such dwelling structures:

Provided that, if any of the protected occupiers

does not comply with the terms and conditions of the
scheme for relocation and rehabilitation, such
occupier shall forfeit the claim for such relocation
and rehabilitation and shall become liable for eviction
without being relocated and rehabilitated.”

22. Even in Sub­Section (1) of Section 3Z, there was a

corresponding amendment made by the Maharashtra Act No.9 of 2014.

The said amendment is made by Section 3 of the said Act of 9 of 2014.

Section 3 reads thus :­

“3. In section 3Z of the principal Act, in sub­section (1), for the

words, brackets and figures “the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) (Second
Amendment) Act, 2001” the words, brackets and figures
“the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) (Amendment) Act, 2014” shall be
substituted.”

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23. Thus, the said Act of 1971 confers protection on protected

occupiers. Protected occupier is one who is an actual occupier of a

dwelling structure in existence on or prior to 1 st January, 2000 (earlier

1st January, 1995). Thus, under Sub­Section (1) of Section 3Z, there is

a complete protection granted to a protected occupier from eviction

from his dwelling structure. Only exception to Sub­Section (1) is Sub­

Section (2) which we have quoted earlier. Protected occupiers can be

evicted only when in the opinion of the State Government it is

necessary in the larger public interest to do so. However, the said

power of the State Government is subject to the condition of relocating

and rehabilitating the protected occupiers in accordance with the

scheme or schemes prepared by the State Government in this behalf.

Thus, even if the State Government, in larger public interest, decides to

evict the protected occupiers, the said right of the State Government is

subject to relocating and rehabilitating the protected occupiers in

accordance with the scheme or schemes prepared by the State

Government. The proviso to Sub­Section (2) is also of some importance

for deciding the case in hand. It provides that the right of a protected

occupier to claim such relocation or rehabilitation is forfeited only when

the protected occupier does not comply with the terms and conditions

of the scheme for relocation and rehabilitation. Section 3E is also

relevant which reads thus:

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“3E. Restrictions on transfer of tenements.

(1) The tenements allotted to the persons under the Slum
Rehabilitation Scheme shall not be transferred by the
allottee thereof by way of sale, gift, exchange, lease or
otherwise for a period of first ten years commencing
from the date of allotment of the tenement. After the
expiry of the said period of ten years, the allottee may,
with the permission of the Slum Rehabilitation Authority,
transfer such tenement in accordance with the
prescribed procedure.
(2) If the tenement is transferred by the allottee in
contravention of the provisions of sub­section (1), the
Competent Authority shall, by order, direct the eviction
of the person in possession of such tenement in such
manner and within such time as may be specified in the
order, and for the purpose of eviction, the Competent
Authority may use or cause to be used such force as may
be necessary:
Provided that, before issuing any order under this
sub­section, the Competent Authority shall give a
reasonable opportunity to such person to show cause
why he should not be evicted therefrom.”

24. It will be also necessary to make a reference to Section 3B

of the said Act of 1971. Section 3B reads thus :­

“3B. Slum Rehabilitation Scheme.

(1) The State Government, or the Slum Rehabilitation
Authority concerned with the previous sanction of the
State Government, shall, prepare a general Slum
Rehabilitation Scheme for the areas specified under sub­
section (1) of section 3A, for rehabilitation of slums and
hutment colonies in such areas.

(2) The General Slum Rehabilitation Scheme prepared under

sub­section (1) shall be published in the Official Gazette,
by the State Government or the concerned Slum
Rehabilitation Authority, as the case may be, as the
Provisional Slum Rehabilitation Scheme for the are
specified under section 3A(1), for the information of
general public, inviting objections and suggestions,
giving reasonable period of not less than thirty­days for

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submission of objections and suggestions, if any, in

respect of the said Scheme.

(3) The Chief Executive Officer of the Slum Rehabilitation

Authority shall, consider the objections and suggestions,
if any, received within the specified period in respect of
the said Provisional Scheme and after considering the
same, and after carrying out such modifications as
deemed fit or necessary, finally publish the said scheme,
with the approval of the State Government or, as the
case may be, the Slum Rehabilitation Authority in the
Official Gazette, as the Slum Rehabilitation Scheme;

(4) The Slum Rehabilitation Scheme so notified under sub­

section (3) shall, generally lay down the parameters for
declaration of any area as the slum rehabilitation area
and indicate the manner in which rehabilitation of the
area declared as the slum rehabilitation area shall be
carried out. In particular, it shall provide for all or any of
the following matters, that is to say,­
(a) the parameters or guidelines for declaration of an
area as the slum rehabilitation area;
(b) basic and essential parameters of development of
slum rehabilitation area under the Slum Rehabilitation
Scheme;
(c) provision for obligatory participation of the
landholders and occupants of the are declared as the slum
rehabilitation are under the Slum Rehabilitation Scheme in
the implementation of the Scheme;
(d) provision relating to transit accommodation pending
development of the slum rehabilitation are and allotment
of tenements on development to the occupants of such
area, free of cost;
(e) scheme for development of the slum rehabilitation
areas under the Slum Rehabilitation Scheme by the
landholders and occupants by themselves or through a
developer and the terms and conditions of such
development; and the option available to the Slum
Rehabilitation Authority for taking up such development in
the event of non­participation of the landholders or
occupants;
(f) provision regarding sanction of Floor Space Index
and transfer of development rights, if any, to be made
available to the developer for development of the slum

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rehabilitation area under the Slum Rehabilitation Scheme;

(g) provision regarding non­transferable nature of
tenements for a certain period, etc.

(5) Fo r the purposes of this Chapter, the State Government

may register any person or an association of persons, or
a partnership firm registered under the Partnership Act,
1932 or a company registered under the Companies Act,
1956, as a Developer in the prescribed manner.”

25. We must note here that Section 3B deals with a General

Slum Rehabilitation Scheme for the areas specified under sub­section

(1) of section 3A. Sub­Section (4) provides for contents of a General

Slum Rehabilitation Scheme. As pointed out earlier, Sub­Section (2) of

Section 3Z contemplates not only a general scheme under Section 3B

but also scheme or schemes prepared by the State Government. In the

present case, it is not in dispute that the scheme which is sought to be

implemented is provided in clause 10 of the Regulation 33 of the DCR.

It will be material to refer to Clause 10 of Regulation 33 which reads

thus :­

“Regulation 33(10)

I. Eligibility for redevelopment Scheme.–(a) For

redevelopment of slums including pavements, whose
inhabitants, names and structures appear in the in the
electrol roll prepared with reference to 1 st January, 1995
or a date prior thereto, but where the inhabitants stay at
present in the structure, the provisions of Appendix IV
shall apply on the basis of a tenement in exchange for an
independently numbered structure.”

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26. Clause 2 under the Regulation 33(10) contains expanded

definition of “Slum” for the purposes of Slum Rehabilitation Scheme.

However, definition of “Slum” under the said Clause 2 is not the subject

matter of controversy in the case in hands. As Regulation 33(10) refers

to Appendix IV, it will be necessary to make a reference to Appendix IV

which incorporates detailed provisions relating to the Slum

Rehabilitation Scheme under Regulation 33(10). Clause 1 of the

Appendix IV deals with the rights of the hutment dwellers. Clause 1.1 is

relevant which reads thus :­

“1.1 Hutment dwellers, in the slum or on the pavement,

eligible in accordance with the provisions of
Development Control Regulation 33(10) shall, in
exchange for their structure, be given free of cost a
residential tenement having carpet area of 20.90 sq.m.
(225 sq.ft.) [25.00 sq.m. (269 sq.ft.)] including balcony,
bath and water closet, but excluding common areas.”

27. Thus, the hutment dwellers who are eligible in accordance

with the provisions of Regulation 33(10), are entitled in exchange of

their original structures, to residential tenements free of cost. It will be

necessary to make a reference to Clause 1.16 of Appendix IV. Clause

1.16 deals with those eligible hutments­dwellers on the site who do

not join the Project willingly. Clause 1.16 reads thus :­

“1.16 In respect of those (eligible) hutments­dwellers on site

who do not join the Project willingly the following
steps shall be taken :
(i) Provision for all of them shall be made in the
rehabilitation component of the scheme.

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(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 Co­operative 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 along with 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 hutment 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.
(v) After this action under the foregoing clause is initiated,
they will not be eligible for transit tenement alongwith
the others, and they will not be eligible for the
reconstructed tenement of lots, but they will still be
entitled only to what is available after others have
chosen which may be on the same or some other site.
(vi) If they do not join till the building permission to the
Project is given, they will completely lose the right to
any built­up tenement, and their tenement shall be
taken over by the Slum Rehabilitation Authority and
used for the purpose of accommodating pavement­
dwellers and other slum dwellers who cannot be
accommodated in city etc.
(vii) A pitch of about 3m x 3.5 m will be given elsewhere if
and when available, and construction therein will have
to be done on their own.”

28. Thus, the scheme under Regulation 33(10) provides for

giving an opportunity to the eligible slum dwellers to join the scheme at

two different stages. The first stage is till the expiry of period of 15 days

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from the date of approval. The second stage is till the date building

permission is given. Even if the eligible slum dwellers refuse to join the

scheme even at the second stage, the tenements which are to be allotted

to them under Clause 1 will be taken over by the SRA. However, even

to such eligible slum dwellers, there is a provision made to allot a pitch

of about 3m x 3.5m if and when available, on which they will have to

make a construction at their own cost. It will be also necessary to make

a reference to Clause 1.18 on which heavy reliance was placed by the

learned Senior Counsel appearing for the petitioners which reads thus :­

“1.18 Restriction on Transfer of Tenements. ­ The tenement

obtained under this Scheme cannot be sold/
leased/assigned or transferred in any manner for a
period of ten years from the date of allotment/
possession of the tenement. In case of breach of
conditions, except transfer to legal heir, the tenement
will be taken over by Slum Rehabilitation Authority.”

29. Prohibition or restriction put by Clause 1.18 is in relation to

the sale, lease or assignment or transfer of a tenement obtained in the

scheme for a period of ten years from the date of allotment/possession

of the tenement.

30. Thus, to summarize, there is a complete protection to the

protected occupiers from eviction under Sub­Section (1) of Section 3Z

of the said Act of 1971. The eviction of the protected occupier can be

made by the State Government provided conditions in Sub­Section (2)

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of Section 3Z are satisfied and that also subject to relocating or

rehabilitating them. Proviso to Section 3Z makes it clear that the right

of relocation and rehabilitation stands forfeited only if the protected

occupier does not comply with the terms and conditions of the scheme

for relocation and rehabilitation. Section 3E is already quoted above.

However, the consequences provided in Section 3E will come into

operation only if a tenement allotted to the protected occupier under a

Slum Rehabilitation Scheme is transferred as provided therein. There is

no provision either under the said Act of 1971 or in the Scheme under

Regulation 33(10) which provides that a right of an eligible slum

dweller to rehabilitation or relocation is lost or forfeited, if he transfers

his protected dwelling structure.

31. As far as a scheme under Regulation 33(10) is concerned, it

confers a right on a hutment dweller who is eligible in accordance with

the provisions to an allotment of a tenement as specified in Clause 1.1

of Appendix IV free of cost. The contingency in which the said right can

be forfeited or withdrawn is provided in Clause 1.18 which is on par

with Section 3E. Moreover, Clause 1.16 makes it very clear that an

eligible hutment dweller who does not join the scheme of rehabilitation

even at the second stage is entitled to allotment of a pitch as provided

in Sub­Clause (vii) thereof.

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32. As pointed out earlier, now there is an amendment made to

Chapter 1B of the said Act of 1971. Earlier, the protected occupiers of

the dwelling structures in existence on 1st January, 1995 were protected.

Now, the protection has been extended to occupants of such structures

in existence on 1st January, 2000.

33. Thus, the intention of the legislature is to be to protect the

protected occupier from eviction. The intention is that if due to

exigency of a larger public interest, such a protected occupier is

required to be evicted, he can be evicted provided he is either

rehabilitated or relocated in accordance with a Scheme. However, the

right conferred on such protected occupier under Sub­Section (2) of

Section 3Z is forfeited only if the protected occupier does not comply

with the terms and conditions of the scheme for relocation and

rehabilitation. The only other provisions which take away the right of

the protected occupier to get a tenement free of costs is Section 3E and

Clause 1.18 of Appendix IV to Regulation 33(10). The said provisions

apply only when after allotment of a tenement under the SRA scheme,

the slum dweller or protected occupier transfers the same. In such a

case, the tenement will be taken over by the SRA. However, no such

forfeiture is attracted when they transfer their original dwelling

structures. The case made out in the present Petition is that in the year

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2006­2007, 88 members of fifth respondent ­ society transferred or

assigned their original huts which were protected. Annexure II was

issued on 13th October, 2003. Therefore, all 88 members who

purportedly entered into the transactions were admittedly protected

occupiers by virtue of Sub­Section (1) of Section 3Z of the said Act of

1971. All of them were protected from eviction in accordance with

Section 3Z. In the event, larger public interest requires their eviction,

they are entitled to relocation or rehabilitation under a scheme as a

matter of right. There is no dispute that a right had accrued to 88

members to protect the possession of their respective structure as they

were in possession thereof on 1st January, 2000. The said right could be

taken away or forfeited only in accordance with either Section 3E or

clause 1.18 of the Appendix IV to Regulation 33(10). The rights accrued

under Section 3Z of the said Act of 1971 to them cannot be taken away

by virtue of a purported sale of their protected dwelling structures and

that also to a developer appointed to implement a scheme under the

Regulation 33(10).

34. At this stage, it will be necessary to make a reference to

Application No.131 of 2012 made by the petitioners before the HPC.

The order passed by HPC dated 21st July, 2012 has been annexed. In

the said application, the prayer was that the eligibility of 88 members

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who have sold, transferred or assigned their rights in original house or

structure should be cancelled. The case made out by the petitioners is

that by virtue of the said transactions entered into in the year 2006­

2007, the said 88 members had lost their right to obtain allotment of a

permanent accommodation.

35. It is true that there may not be a specific provision either in

the said Act of 1971 or under the scheme under Regulation 33(10)

which prohibits “contracting out”. It will be necessary to make a

reference to the decision of the Apex Court in the case of Nagindas

Ramdas vs. Dalpatram Ichharam @ Brijram And Ors. 1. The Apex Court

was dealing with the provisions of the Bombay Rents, Hotel and

Lodging House Rates Control Act, 1947. Before the Apex Court, a

decision of the Division Bench of the Gujarat High Court was relied

upon. In paragraph 18 of the said decision, the Apex Court observed

thus :­

“18. In Rasiklal Chunilal's case (supra), a Division Bench of

the Gujarat High Court has taken the view that in spite
of the fact that there is no express provision in the
Bombay Rent Act prohibiting contracting out, such a
prohibition would have to be read by implication
consistently with the public policy underlying this
welfare measure. If we may say so with respect, this
is a correct approach to the problem.”
(emphasis added)

1 1974 (1) SCC 242

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The Apex Court specifically approved the aforesaid view

taken by the Gujarat High Court by observing that it was the correct

approach to the problem. Therefore, the Apex Court held that

prohibition against contracting out can also be read by implication into

the provisions of a statute consistently with the public policy underlying

the welfare measure. It will be also necessary to make a reference to

another decision of the Apex Court in the case of Shri Lachoo Mal vs.

Shri Radhey Shyam2. In the said decision, the Apex Court has quoted

with approval the observations made by Halsbury's Laws of England,

Volume 8, Third Edition and in particular paragraph 248 thereof. The

relevant part of paragraph 6 of the said decision of the Apex Court

reads thus :­

“6. …............ In Halsbury's Laws of England, Volume 8,

Third Edition, it is stated in Paragraph 248 at page 143:
"As a general rule, any person can enter into a
binding contract to waive the benefits conferred upon
him by an Act of Parliament, or, as it is said, can
contract himself out of the Act, unless it can be shown
that such an agreement is in the circumstances of the
particular case contrary to public policy. Statutory
conditions may, however, be imposed in such terms that
they cannot be waived by agreement, and, in certain
circumstances, the legislature has expressly provided that
any such agreement shall be void."
In the footnote it is pointed out that there are
many statutory provisions expressed to apply
"notwithstanding any agreement to the contrary", and
also a stipulation by which a lessee is deprived of his
right to apply for relief against forfeiture for breach of

2. 1971(1) SCC 619

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covenant (Law of Property Act, 1925). Section 23 of the

Indian Contract Act provides
"The consideration or object of an agreement is
lawful, unless ­ it is forbidden by law; or 69 7 is of such a
nature that, if permitted, it would defeat the provisions
of any law or is fraudulent; or involves or implies injury
to the person or property of another; or the Court
regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object
of an agreement is said to be unlawful. Every agreement
of which the object or consideration is unlawful is void."
It has never been the case of the respondent that the
consideration or object of the agreement which was
entered, into in June 1963 was forbidden by law.
Reliance has been placed mainly on the next part of the
section, namely, that it is of such a nature that it would
defeat the provision of any law and in the present case it
would be Section 1­A of the Act.”
(emphasis supplied)

36. In Paragraph 248, a general rule is laid down by Halsbury

that any person can enter into a binding contract to waive the benefits

conferred upon him by an Act of Parliament and he can contract himself

out of the Act, unless it is shown that such an agreement is in

circumstances of the particular case contrary to the public policy.

37. The public policy reflected from the provisions of the said

Act of 1971 and in particular Section 3Z is to ensure that a protected

occupier can be evicted from his dwelling house only in larger public

interest provided he is rehabilitated or relocated under a scheme. It is

provided in the scheme under Regulation 33(10) that an eligible

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hutment dweller is entitled to self­contained residential accommodation

of the requisite area free of cost. Even if he does not join the scheme, he

gets a small pitch on which he can construct upon. A judicial notice will

have to be taken of the fact that in the City of Mumbai, the cost of such

constructed self­contained accommodation granted by way of

rehabilitation is very high running into lacs. An indefeasible right is

conferred by the said Act of 1971 on a protected occupier against

eviction. That right can be taken away only in the larger public interests

provided he is either relocated or rehabilitated. The intention is to

confer the said right on a person who was occupying a dwelling

structure on 1st January, 1995 or 1st January, 2000 as the case may be. If

the sale transactions of the protected dwelling structures are allowed to

be executed, it will virtually permit an unscrupulous developer or any

other person to defeat the rights conferred on the protected occupiers.

It is quite possible that anti social elements may force the protected

occupiers of slums to give up their right to claim permanent

accommodation by forcing them to enter into such transactions. The

protected occupiers can be evicted only when it is required in larger

public interest. Such sale transactions by the eligible occupants/

protected occupiers in respect of their original dwelling structures are

completely against the very object of the said Act of 1971 and contrary

to the public policy. Therefore, a prohibition on contracting out by

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effecting a transfer of a hutment or a dwelling structure will have to be

read by implication in the statute consistently with the public policy

underlying the provisions of the welfare statute (the said Act of 1971).

Thus, the petitioners cannot get any relief on the basis of the sale

transactions which are prohibited.

38. Now, we again turn to the facts of the case. The learned

Senior Counsel appearing for the petitioners invited our attention to the

order passed by this Court in WP No.2582 of 2009. We have already

pointed out that the petitioners therein were permitted to withdraw the

Petition with liberty to file a civil suit. A copy of the said Petition is

annexed. We find that the said Petition was filed by six eligible members

of the fifth respondent society. The said Petition was filed for

implementation of the directions given by the HPC under the order

dated 3rd October, 2009. We have perused the affidavit­in­reply filed to

the said Petition.

39. In the said reply to the said Petition, it is pointed out that

consideration as stated in the said reply has been paid to the six

petitioners. In fact, in the second affidavit, more particulars of the

transactions in relation to only six petitioners have been set out. It will

be also necessary to make a reference to the order of the HPC dated 3 rd

October, 2009. The said order records that though the petitioners were

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served, none appeared for them. The operative part of the order passed

by the HPC reads thus:

“5. Considering the aforesaid facts and circumstances and in

the interest of natural justice the Assistant Registrar of
SRA is hereby directed to register the applicant's society
on compliance of documents from the society within a
period of 4 weeks. The CEO, SRA is also directed to
ensure that the eligible members of the applicant society
shall be allotted the rehab tenements in the five rehab
buildings ready for occupation.”

40. Thus, there was a direction issued by the HPC to the CEO,

SRA to ensure that eligible members of the fifth respondent shall be

rehabilitated in tenements in five rehab building ready for occupation.

The Petition which was filed by six members of the fifth respondent

society was for implementation of the order of HPC dated 3 rd October

2009. The submission of the learned Senior Counsel appearing for the

petitioners is that the said six members were the members of the

Managing Committee and one of them was the Chief Promoter and

therefore, the Petition was filed on behalf of the society.

41. It will be necessary to make a reference to the order dated

28th September, 2010 passed by the Division Bench of this Court in Writ

Petition No.1423 of 2010 filed by the fifth respondent ­ society. The

grievance in the said Petition was about the non allotment of tenements

to the six members whose names were in the list of members who were

eligible for rehabilitation. It will be necessary to make a reference to

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the submission made across the bar by the first petitioner who is the

developer which is noted in the order dated 28 th September 2010.

Paragraph 2 of the said order reads thus :­

“2. The learned counsel for the developer submits that Writ
Petition No.2582 of 2009 filed by the concerned six
persons has already been disposed of on 1 February
2010 by permitting those petitioners to file suit with
respect to the subject matter of the petition for similar
reliefs.”

42. Thus, it was contended that Writ Petition No.2582 of 2009

filed by the concerned six persons was disposed of with liberty to file a

suit with respect to the subject matter of the petition for similar reliefs.

Notwithstanding the said objection of the present petitioners, this Court

disposed of the Petition by passing the following order :

“6. This petition is disposed of. The SRA shall look into the
grievance posed in this petition in relation to the issues
raised in letter dated 11 February 2010. It is clarified that
we have not gone into the merits of the controversy or
the rival contentions raised in this petition. All issues are
kept open.”

43. In the earlier said Petition, it is not the contention of the

petitioners that the said Petition filed by the six members was on behalf

of the fifth respondent society. Nevertheless even after considering the

objection of the Petitioners quoted above, this Court directed SRA to

look into the grievances made in the application.

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44. The Secretary of SRA passed an order dated 16 th November,

2011 on the basis of the order of the Division Bench. The relevant

operative part of the said order is on page 161 which reads thus :­

“16. Considering the aforesaid facts brought to the notice of

this Authority as well as after perusing the record of the
subject S.R. Scheme this Authority pass following
orders:

i) The Executive Engineer­III, SRA is directed to ensure

that Respondents developer, comply with the necessary
conditions as enumerated in Letter dated 11/2/2010
issued by SRA for grant of Occupation Certificate within
a period of 15 days.

ii) The Deputy Registrar, SRA is directed to allot rehab

tenements to Mr. Maskur Alam Siddiqui and 6 others
within a period of 15 days from the date of grant of
Occupation Certificate.”

45. Thus, a direction was issued to SRA to allot rehab

tenements to seven occupants within a period of 15 days from the date

of grant of Occupation Certificate. We must note that a Writ Petition

being Writ Petition No.750 of 2012 was filed by the petitioners for

challenging the said order. The said Writ Petition was withdrawn on

21st January, 2013 presumably in view of the order of SRA dated 29 th

August 2012.

46. Then comes the order dated 21st July, 2012 passed by the

HPC on the basis of application No.131 of 2012 made by the

petitioners. We have already referred to prayer made in the said

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application. The contention in the said application was that those

members who have transferred or assigned their rights in old huts or

structures have lost their right of allotment of the permanent tenements

by way of rehabilitation. Therefore, a direction was issued to SRA to

take a decision on the complaints/representations made by the present

petitioners. On the basis of this direction, by order dated 29 th August,

2012, the SRA passed the following order :­

“15. Considering the aforesaid facts of the case, this Authority is

of the view that the 88 Members of the Navjeevan Nagar
SRA CHS Ltd. have sold their respective tenement to the
Developer M/s. HDIL and therefore, they cannot be held
eligible under the subject S.R. Scheme and therefore, their
eligibility stands cancelled and the order dated 09.04.2012
passed by the Deputy Registrar/SRA stands revoked/
cancelled.

Further, under the S.R. Scheme the Developer cannot

purchase the rehab tenement and therefore, this Authority
directs the Deputy Chief Engineer/ SRA to forfeit and take
the possession of the 88 rehab tenement from the
developer M/s. HDIL as and when the same are ready and
keep the said tenements in the custody of the SRA strictly
for allotting to the deserving PAPs.”

Thus, the SRA recorded a finding that the first petitioner

was not entitled to purchase the tenements and, therefore, the

Secretary of SRA was directed to take the possession of the 88 rehab

tenements from the petitioners as and when the same are ready. It was

held that the eligibility of 88 members is cancelled. It is perhaps

because this order that the Writ Petition No.750 of 2012 filed by the

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petitioners was withdrawn. The order dated 29 th August, 2012 was

sought to be challenged by the fifth respondent – society by filing a Writ

Petition (L) No.2320 of 2012. By order dated 24 th September, 2012, the

Writ Petition was disposed of as withdrawn by granting liberty to the

fifth respondent to move the HPC. It is on the basis of this order that

the appeal on which the impugned order was passed was preferred by

the contesting the fifth to sixty ninth respondents. Therefore, we see no

merit in the submission that the issue of entitlement as far as the 88

members was concluded by the order dated 1 st February, 2010 in Writ

Petition No.2582 of 2009.

47. Now, we turn to the impugned order. There may be some

justification in the submissions made by the learned Senior Counsel

appearing for the petitioners as regards the delay in disposal of the

appeal by HPC. The appeal was heard on 19 th January, 2013, and the

order was pronounced on 2nd July 2013.

48. Before we advert to the findings recorded by HPC, we must

note here that the issue canvassed in Writ Petition No.2499 of 2013 is a

legal issue as regards the legal effect of the purported transfer or sale of

the original structures made by 88 members of the fifth respondent ­

society. On interpretation of the provisions of said Act of 1971 and the

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scheme under Regulation 33(10), we have already decided the said

issue. Therefore, assuming that the learned senior counsel appearing

for the petitioners is right in submitting that some of the contentions

which were never raised have been taken into consideration by the HPC

and that the contentions which were raised were not considered, no

purpose would be served by remanding the matter for fresh

consideration of the HPC. The learned senior counsel appearing for the

petitioners did not dispute that the submissions made by the petitioners

have been correctly recorded in paragraph 5 of the impugned order of

the HPC. Perusal of the findings recorded by HPC in paragraph 7 of

the impugned order shows that the HPC considered the provisions of

Sections 3X and 3Y of the said Act of 1971. In paragraph 8 of the

impugned order, the HPC has dealt with the concept of protected

occupier. In paragraph 9, an observation is made by the HPC that the

transfer of such dwelling structures by the occupiers along with right of

rehabilitation has been recently permitted by the State Government

under the Government Resolution dated 2nd January, 2012. It is pointed

out that the said Government Resolution permits transfer in favour of

another slum dweller and not to any developer of a Slum Rehabilitation

Scheme. It will be necessary to note the observations made in

paragraph 9 of the impugned order which reads thus :

“9. The findings of Secretary, SRA stand infirm in the

backdrop of the above mentioned provisions of Section

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3X, Section 3Y and Section 3Z of Maharashtra Slum

Areas (IC&R) Act, 1971. Further Government Resolutions
and circulars etc issued from time to time incorporating
Guidelines/Instructions which need to be observed by
Competent Authorities and Appellate Authorities while
determining eligibility of concerned Slum Dwellers, do
not include grounds where rights of rehabilitation of
protected occupiers have been bought over by the
developer of a Slum Rehabilitation Scheme. The transfers
of such dwelling structures by protected occupier along
with their right of rehabilitation has been recently
permitted by the State Government through a Transfer
Policy issued vide Housing Departments G.R.No. Zopusu/
2010/C.R­1/Zopusu­1 dated 2.1.2012 to only other
Slum Dwellers and not to any Developer of a Slum
Rehabilitation Scheme. In fact if the transfer of dwelling
structures by such protected occupiers to developers of
Slum Rehabilitation Scheme were to be permitted, it
would be directly be adversarial to their rights of
rehabilitation which are ensured under Section 3X,
Section 3Y and Section 3Z of the Maharashtra Slum Area
(IC&R) Act, 1971.”

49. HPC has observed that the eligibility of the slum dwellers

can be decided only after verification of certain documents or records as

may be prescribed by the provisions of the Act of 1971 and not on the

basis of any other set of documents like the one relied upon by the

petitioners. HPC went on to observe that “even its contemplation is

fraught with dangerous implication regarding consent required from

70% eligible slum dwellers and, therefore, will defeat the very object of

the Slum Rehabilitation Scheme”. Thus, by holding that the transactions

relied upon by the petitioners would defeat the right of eligible slum

dwellers, the order of the Secretary of SRA was set aside. We find that

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the ultimate conclusion drawn by the HPC is very consistent with the

view which we have taken in earlier paragraphs of this judgment.

50. It will be also necessary to make reference to the order

dated 3rd July, 2013 passed by this Court in Writ Petition No.926 of

2013 along with Notice of Motion No.140 of 2013 in Writ Petition

No.2499 of 2013. Obviously, the said order is passed at admission stage

and there is no final adjudication made by the Division Bench. The

Division Bench has referred to the order passed in Writ Petition

No.2582 of 2009 on 21st January, 2010. Paragraph 9 of the said order

records prima facie observation that the case of 88 persons was

considered by this Court in Writ Petition No.2582 of 2009. We have

already referred to the said petition which was filed by six members and

the stand taken by the petitioners in earlier proceedings that it was a

petition filed by the six members. We have already made a reference to

subsequent orders passed by the SRA as well as subsequent orders of

this Court. Reliance is placed on certain observations made by this

Court in the said order dated 3rd July, 2013. This Court has expressed a

prima facie view that the slum dwellers who have not transferred their

tenements to the developer, stand on higher footing than the 88 slum

dwellers who have transferred their right, title and interest. The

observations in the said order are only prima facie observations and,

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therefore, no reliance can be placed on the said observations when this

Court is finally deciding the writ petitions on merits.

51. It is true that the petitioners have relied upon the

transactions to which they are parties which are contrary to law and

illegal. Though the petitioners may be party to the transactions which

are illegal, we have considered the case of the petitioners on merits.

We are not throwing out the case of the petitioners on the ground that

they are not entitled to invoke a remedy under Article 226 of the

Constitution of India though the said remedy is always a discretionary

and equitable remedy.

52. From the affidavits on record we find that there is some

dispute as regards for the purpose for which certain amounts were paid

to 88 eligible slum dwellers by the Petitioners. The only question which

arises for consideration in Writ Petition No.2499 of 2013 is whether the

eligible slum dwellers are deprived of their right to allotment of the

permanent accommodation under the scheme of Section 33(10).

Therefore, it is not necessary for us to go into the disputed question as

to whether the payments were made by way of consideration for

surrender of their rights in respect of their original structures or

whether the payments were made for the reasons pleaded by the fifth

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respondent ­ society and its members. All these issues can be decided in

appropriate proceedings which may be filed by the parties in

accordance with law.

53. As far as Writ Petition No.926 of 2013 is concerned, we

have noted that some of the prayers have not been pressed by the

petitioners in this petition. As far as the Government Resolution dated

2nd January, 2012 is concerned, apart from the statement made by the

learned AGP across the bar that the same has been superseded, even

going by the case made out by the petitioners, in no manner they are

adversely affected by the Government Resolution dated 2 nd January,

2012. The said Government Resolution has not been used by the HPC

to hold against the petitioners. The HPC has referred to the said

Government Resolution by observing that after 2 nd January, 2012 it may

be possible for the eligible slum dwellers to transfer their rights to

another slum dwellers and not to the developer. As we find that the

petitioners are no way affected by the Government Resolution dated 2 nd

January, 2012, at the instance of the petitioners, it is not necessary to

go into the legality and validity of the said Government Resolution.

That is the reason why we are not inclined to consider any relief prayed

for in Writ Petition No.926 of 2013. However, we make it clear that the

issues raised by the petitioners in the said Petition are not adjudicated

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upon by this Court and the said issues can be always raised by the

petitioners in appropriate proceedings. It will be also open to the

petitioners to pray for the same reliefs, if an occasion for doing that

arises.

54. In view of what we have held above, Writ Petition No.2499

of 2013 must fail. Accordingly, we pass the following order : ­

ORDER

(i) Writ Petition No.2499 of 2013 is hereby rejected. Rule is

discharged with no order as to costs;

(ii) Subject to the observations made in companion petition,

Writ Petition No.926 of 2013 stands disposed of.

(iii) It is obvious that as a result of this judgment and order,

the consequences provided in the order of the Apex Court

dated 13th January, 2014, in Special Leave Petition

No.25833 of 2013 follow within a period of one month

from the date on which this judgment and order is

uploaded;

(iv) The parties concerned to act on the authenticated copy of

this order.

(A.K. MENON, J ) (A.S.OKA, J )

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