Oral Judgment: (Chief Justice)

Both these petitions challenge the permissions granted by the Slum Rehabilitation Authority under the Development Control Regulations Nos.33(10) i.e. (IOA) and the Maharashtra Regional and Town Planning Act, 1966 on the plots of the land bearing CTS No.13 (Part), 30 (Part) and 33(Part), situated at Santacruz (East), Mumbai Suburban District belonging to the Maharashtra Housing Area and Development Authority (for short, MHADA). The petitioners are some of the members of the registered Co-operative Housing Societies which are impleaded as respondent Nos.4 and 8 to 10 in Writ Petition No.1213 of 2010. The permissions are granted in favour of the developer-respondent No.5, in the said petition. The petitioners are, in fact, challenging implementation of the Slum Rehabilitation Scheme on the above lands.

2. The petitioners had challenged the above permissions in the appeals under section 35 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short, Slum Act). All the appeals came to be dismissed by the impugned order dated 6th May, 2010, passed by the Administrator and the Divisional Commissioner, Kokan Division, Mumbai. Aggrieved by the above order, the petitioners have filed the present petitions.

3. The affidavits in reply have been filed on behalf of the respondent No.5 developer. The rejoinder affidavit has also been filed by the petitioners. We have heard the learned counsel for the parties at length for final disposal of the petitions.

4. The learned senior counsel for the respondents have opposed the petitions and submitted that the petitioners have raised frivolous contentions only to delay the project. The petitioners are individual members who have no locus standi to file the present petitions. Out of total 750 members of these societies, only 181 members have chosen to file the present writ petitions and out of them 18 members have already accepted the temporary alternative accommodation and, therefore, the petitions at the instance of members constituting less than 30% out of the total membership in the societies are not maintainable. It is the case of the developer that as per the revised letter of intent dated 20th August, 2009, issued by the Slum Rehabilitation Authority, total 5079 slum dwellers including the eligible petitioners are entitled for rehabilitation and therefore, any orders passed in these petitions adverse to the developer will also adversely affect more than 4,800 slum dwellers who are not joined as party respondents. If the petition is entertained, it will delay the rehabilitation of such a large number of slum dwellers. According to the respondents, none of the petitioners is having any dwelling unit in the land bearing CTS No.13 (Part).

Contention-I

5.1. It is contended on behalf of the petitioners that the land in question is not declared as a slum under Section 4 of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971 (hereinafter referred to as the "Slum Act") nor has it been declared as slum rehabilitation area under Section 3(c)(i) of the Slum Act, 1971. It is submitted that the powers under Regulation 33(10) cannot be exercised unless the eviction is sought in respect of a scheme which is a slum rehabilitation scheme in respect of slum declared to be so under the provisions of the Slum Act.

5.2. The redevelopment project in question is being undertaken in a Scheme dated 9th April 1998 which was a broad scheme like a development plan under the provisions of Section 22 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the "MRTP Act"), whereas the eviction is sought to be invoked under Section 95A of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as the "MHADA Act"). The slum rehabilitation became functional for the first time only from 15th May 1998 which is after coming into force of the scheme, which was published under the Notification dated 9th April 1998.

6.1. It is submitted on behalf of respondents that Annexure II at page 98 of the compilation clearly indicates that the slum in question was censused and in support of the said contention the learned counsel for MHADA has also placed on record the Government Resolution dated 11th July 2001 which clearly indicates that a survey was undertaken for ascertaining the position of the slums as on 1st January 1995 and the said resolution covered the land in question. It is, therefore, submitted that once the slum was censused, it was not necessary to make a specific declaration of the same as the slum under Section 4 of the Slum Act or to issue a notification for declaring it as a slum rehabilitation area under Section 3C(1) of the Slum Act.

6.2. It is submitted that the legal contentions sought to be raised in these petitions have already been considered by two Division Benches of this Court. In Om-Sai Darshan Co-operative Housing Society and another vs State of Maharashtra and others, 2007 (1) Bom.C.R. 476, it is also contended that it has been specifically held in the above decisions that the slum rehabilitation scheme can be sanctioned in respect of a slum as defined in clause (ii) of Annexure II to Regulation 33(10). Under the said annexure, there can be a viable scheme on payment also.

6.3. Relying upon the above decisions, it is also contended that it is only the machinery which is available under the Slum Act that is being utilised for the purpose of removing the occupants of the land which is declared as slum area. In fact under the Development Control Regulations for Greater Mumbai, 1991, steps have been taken to execute the redevelopment project which is accepted by 70% of the members of the three societies.

7. As far as the first contention of the petitioners that if there is a declaration under section 3B of the Slum Act, then, there would not be any occasion to go to section 3D thereof without complying with section 3C is concerned, to our mind, the issue stands concluded by the Division Bench Judgement of this Court reported in 2007 (1) BCR 476. Before the Division Bench the argument was that unless there was declaration issued under section 3C(i) of the Slum Act, declaring a particular area to be a slum rehabilitation area, the letter of intent (LOI) for implementation of the slum redevelopment scheme could not have been issued. Reliance was placed upon the judgement of the learned Single Judge of this Court reported in 2004 (3) BCR 14 (Ramkali Sitaram Khushwaha and Ors. Vs. Dy.Collector and Ors.), the Division Bench analysed the scheme of the Slum Act and particularly Chapter 1A of the same and, thereafter, referred to both section 3B and 3C and held that the Amendments made by Maharashtra Act 6 of 1997 to section 3C(1) of the Slum Act was not brought to the notice of the learned Single Judge. The position prior to and subsequent to the amendment was noticed thereafter and it was held that a general scheme under section 3B of the Slum Act can be framed either by the State Government or by SRA with the prior approval of the State Government. Referring to D.C.Regulation 33(10), this is what is observed in paras 19 and 20 by the Division Bench:-

"19. In the present case we are dealing with the scheme of slum redevelopment which is governed by Regulation 33(10). A General Scheme under section 3-B of the Slum Act can be framed either by the State Government or by SRA with the prior approval of the State Government. However, the scheme under clause 33(10) is to be approved in individual cases by the SRA. Clause (II) of Annexure to the said Regulation provides that for the purpose of Regulation 33(10), a slum means that area which is either censused or one which is declared and notified under the Slum Act. It provides that the slum shall also mean areas pavement stretches hereafter notified as slum rehabilitation areas. The clause provides that if any area fulfills conditions laid down in section 4 of the Slum Act to qualify as a slum area and has been either censused or declared and notified as slum, it shall be deemed to be and treated as Slum Rehabilitation Areas. The said clause also provides that censused means those slums located on lands belonging to Government, any undertaking of Government, or to Brihan Mumbai Municipal Corporation and incorporated in the records of the land owning authority as having been censused in 1976, 1980 or 1985 or prior to 1st January 1995."

"Thus, for the purpose of scheme under Regulation 33(1), the following areas are Slum Rehabilitation areas; (a) any area which fulfills the conditions laid down in section 4 of the Slum Act which is declared and notified as such and (b) slum rehabilitation area declared as such by the Slum Rehabilitation Authority fulfilling the conditions laid down in section 4 of the Slum Act to qualify as slum area and/or required for implementation of any slum rehabilitation project. Regulation 33(1) contemplates that there can be redevelopment of slums including pavements. The slums are defined by clause II. The slums mean either censused slums or slums declared and notified as such under the Slum Act. Clause II also defines the word censused which means slums located on lands belonging to Government or Mumbai Municipal Corporation and incorporated in records of the land owning authority as having been censused in 1976, 1980 or 1985."

"20. On plain reading of the Annexure to Regulation 33(1)) it is obvious that for sanction of a scheme governed by the said Regulation in respect of a parcel of land, it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area in exercise of power under section 3-C(1) of the Slum Act. The Slum Rehabilitation Scheme can be sanctioned in respect of a slum as defined in clause II of Annexure to Regulation 33(10). Under the said Annexure there can be a scheme for a viable stretch of pavement also. The learned Single Judge deciding Ramkalis case was not concerned with a scheme under D.C.Regulation No.33(10). The proposition laid down by him will have to be read as one confined to the situation before him. Question No.1 is, therefore, answered in the negative. The question No.2 has been also answered in the foregoing paragraphs."

8. Therefore, for the reasons indicated by the Division Bench, it will not be possible to agree with Mr.Rajyadhyaksha that if there is a declaration under section 3B, then, the Authorities cannot resort to section 3D without first going through the mechanism stipulated by section 3C. The Self-same arguments canvassed must, therefore, be rejected.

9. Mr.Dhakephalkars reliance upon the other Division Bench decision reported in 2005 (3) All M.R. 889 is equally well founded. Dealing with somewhat identical contentions, this is what is observed by the Division Bench in Amba Chawls case in paras 7 and 8:-

"7. Development Control Regulation 33(1) permits redevelopment of slums whose inhabitants names and structures appear in the electoral roll prepared on or before 01-01-1995. A slum has been defined in 33(10) II to mean those areas which have been censused or declared and notified in the past or under the Slum Act after it was enacted in 1971. Therefore, a slum is not just an area which has been declared a slum under section 4 of the Slum Act. The issuance of a notification under section 4 of the Slum Act is not a prerequisite for an area to be considered a slum rehabilitation area. Censused slums have also been defined as those which are located on lands belonging to the government or any undertaking of the government or the Brihanmumbai Municipal Corporation and which have been censused in 1976, 1980, 1985 or prior to 01-01-1995. There is no dispute that the present area is owned by the Corporation. Nor is there any dispute that the slums located thereon have been censused prior to 1995."

"8. The submission made on behalf of the petitioners that the provisions of the Slum Act cannot be invoked unless there is a declaration made under section 4 that the area is a slum area, is without merits. The provisions of sections 33 and 38 of the Slum Act have been invoked by the respondents in order to evict the slum dwellers from the area which is a censused slum. It is only the machinery which is available under the Slum Act that is being utilised for the purposes of removing the occupants from a land which is declared a slum area. In fact under the D.C. Regulations steps can be taken to evict those hutment dwellers who do not join a rehabilitation project willingly. The provisions clearly stipulate that if the hutment dwellers do not join the scheme within 15 days after a slum rehabilitation project has been approved, then action under the provisions of the Slum Act including sections 33 and 38 as amended from time to time can be taken against the hutments. All those who do not join the project lose the right to any built up tenement and their tenement can be taken over by the slum rehabilitation authority and can be used for accommodating those slum dwellers from other slums who cannot be accommodated in situ."

"The Corporation on 24-05-1996 issued a letter of "no objection after verifying the proposal of respondent No.3 for rehabilitation of the slum area. After completion of various other formalities the slum rehabilitation authority approved the project on certain terms and conditions. The impugned orders have been passed after the slum rehabilitation project was approved by the Slum Rehabilitation Authority (SRA). Factually what has been done is recourse taken to the provisions of sections 33 and 38 of the Slum Act for the purposes of implementing the development plan or project undertaken under D.C. Regulations in relation to a censused area. That being permissible in law, mere use of machinery provided under the Slum Act cannot be faulted. Therefore, there is no substance in the contentions of the petitioners that without a notification under section 4 of the Slum Act the provisions of the cannot be used at all."

10. The argument that there was no declaration under section 3C of the Slum Act has also been dealt with by the State and the SRA by pointing out that the Annexure II in this case would demonstrate that an area of 1375.25 sq.mtrs. In C.T.S. 30(part) of Village Bandra (east), Taluka Andheri is censused slum colony on MHADA record. The details of the structures, the protected structures and the number of eligible slum dwellers with their consent has been set out. In view of the above and in view of the Government resolution dated 11th July 2001, the contention that the slums in question were not censused is baseless. We have perused the Government Resolution dated 11th July 2001. It states that it was decided to undertake a survey of the slums and photo pass should be issued to the slum dwellers. The earlier Government Resolutions dated 9th March 2000, 17th March 2000 and 28th November 2000 are referred to and it is stated that after the survey has been undertaken now, the exercise of issuing the photo pass should be completed. This Government notification refers to the lands belonging to Mumbai Municipal Corporation and Maharashtra Housing and Area Development Authority. The said land is, therefore, covered by this G.R. Once the slum was censused there was no necessity of issuing the declaration contemplated by section 4 or section 3C(1) of the Slum Act.

The argument that the slum rehabilitation authority had not become functional when the broad scheme was brought into force, is also answered and in our opinion, rightly by pointing out that the slum rehabilitation authority was constituted vide Government notification dated 16th December 1995. The said Authority prepared, with the prior permission of the State Government, a general slum rehabilitation scheme. That was in accordance with the section 3B(1) of the Slum Act. The scheme was for Greater Mumbai area. In accordance with the provisions and particularly section 3B(2), suggestions and objections were invited by public notice dated 17th April 1996 and after considering the suggestions and objections received, the scheme was submitted for approval in the meeting of the SRA held on 15th January 1998. By resolution passed in the meeting held on this date, it was decided to publish the scheme with the approval of the State Government. It is this broad scheme which is referred to and, therefore, there is no substance in the contention that the slum rehabilitation authority became functional for the first time on 15th May 1998 which is after coming into force of the scheme published on 9th April 1998. The slum rehabilitation authority was already functional and it is too late in the day to now go back to question its existence. This contention of the petitioners must, therefore, be rejected.

Contention-II

11. It is contended on behalf of petitioners that Eviction is sought to be made by an officer of Maharashtra Housing and Area Development Authority ("MHADA" for short). The Slum Act read with the Notification dated 25th October 2001 provides that MHADA is the competent authority for the area comprising of lands within the State of Maharashtra belonging to MHADA. In the instant case, the impugned notices are not issued by MHADA but only by one of its officers in whose favour no delegation order is passed or produced before this Court.

12. Relying on the decision of the another Division Bench of this Court in Amba Chawl Wadi Rahiwasi Seva Sangh (Amba Chawl Wadi Rahiwasi Seva Sangh vs Municipal Corporation of Greater Mumbai and others, 2005 (3) All.MR 889), it is submitted that since the land in question belongs to MHADA, MHADA is the competent authority and under the delegation of powers under Section 181 of the MHADA Act, the officers have been delegated the powers to issue the eviction orders.

13. The petitioners submissions are that the proceedings have not been initiated by the competent authority. The argument is that the eviction is ordered by the officers of Maharashtra Housing and Area Development Authority. The officers of MHADA have not been delegated any of the powers. The competent authority in this case is MHADA and it is MHADA alone which could have passed the eviction orders, is the submission.

14. There is no force in any of these submissions. Firstly, the objections are technical in nature. A careful perusal of the eviction order in this case shows that the joint proposal submitted by Bachidevi Cooperative Housing Society and six others for grant of LOI by the SRA was forwarded to the Mumbai office of the MHADA. After scrutiny of the proposal and the documents forwarded by the Architect, which included the list of the slum dwellers and the maps, by a communication dated 6th August 2007, the record was forwarded by the Mumbai office of MHADA to the Dy.Collector (Slum Rehabilitation). The area and the number of slum dwellers were indicated in the communication and the Mumbai office of MHADA. Thereafter, the impugned order refers to the complaints from the Developer that 247 slum dwellers belonging to the three housing societies are not allowing their dwelling houses/ huts to be demolished, As they are obstructing the development work. Therefore, action be initiated against these slum dwellers under section 33 and 38 of the Slum Act. It is based on this request of the developers that the Dy.Collector by his letter dated 19th June 2009 and in furtherance of the G.R.dated 25th October 2001, requested MHADA to take action under sections 33 and 38 of the Slum Act. It is based on this communication that the Chief Officer of MHADA heard the slum dwellers after issuing notice to them and has passed the impugned orders of their eviction.

15. The argument that the order is not passed by MHADA but by an officer of the same, who is not delegated any of the powers on the face of it is untenable. Our attention has been invited to the G.R. Dated 25th October 2001 which declares MHADA as the competent authority for the purpose of exercising powers of eviction of slum dwellers on the lands which belong to MHADA. Thereafter, the matter was placed before the concerned authorities of MHADA and they opined that there are powers of delegation under section 181 of the MHADA Act, 1976. However, these powers can be delegated to any of the officers and particularly the Chief Officers and Executive Engineers of the Regional Boards as well. After, deliberations and discussions, these powers have been delegated to the Chief Officers of the Regional Boards and they can exercise such powers and particularly those conferred by sections 33 and 38 of the Slum Act. In the instant case, the impugned order of eviction has been passed by the Chief Officer of Mumbai Housing and Area Development Board. It is he who has heard the matter and passed the order as a competent authority. Mr.Rajyadhyakshas submission that the Chief Officer is not competent authority, is, therefore, liable to be rejected.

16. The argument is that the action for eviction has been initiated by issuance of the notices not by MHADA but by its officers and particularly the Assistant Land Manager, Mumbai Housing and Area Development Board. The competent authority is MHADA but the notices are not being issued by MHADA is the submission. A perusal of the eviction notice would show that these have been issued by MHADA. Mumbai Board is division of MHADA, so the notice is issued by MHADA. It has been signed by the Assistant Land Manager of the Regional Board. In this behalf, a perusal of the MHADA Act would demonstrate that the terms "Authority", "Board", "Existing Board" are defined therein. Chapter II provides for establishment of the Authority and Boards. Section 16 falling therein is entitled as Authorities charged with execution of this Act. Boards envisaged by the and particularly section 18 are also authorities charged with execution of the. Further section 29 of thesets out the powers, duties and functions of the board. One of the obligation is to carry out such powers, duties and functions as the Authority may delegate to the Boards. It is not the case of the petitioners that the board have not been delegated any such authority. Their argument is that the notices have not been issued by MHADA nor have the impugned orders being made by it, as competent authority. In that behalf, section 181 of theis clear. The Act confers power to delegate. The authority, may by general or special order delegate any power exercisable by it or any function to be discharged or any duty to be performed by it or by under this Act or any of its officers or to any board or any officers of the Board on such terms and conditions as will be specified in such order. A copy of the order delegating the powers has been produced before us. Further, our attention is also invited to the Gazette Notification dated 26th March 1998 whereby the powers conferred by section 3 of the Slum Act, Government of Maharashtra, appointed persons specified in the notification as competent authorities for the areas respectively specified against their names. The Chief Officers of Mumbai Housing and Area Development Board is the competent authority for the areas comprising all lands belonging to the Mumbai Housing and Area Development board.

17. Our attention has also been invited to the notification dated 25th October 2001 wherein the MHADA is appointed as competent authority. The clarification sought by the Vice President and CEO of the Authority from Government of Maharashtra and the decision ultimately taken by MHADA on 27th December 2001 would go to show that the impugned order passed by the Chief Officer is within the powers conferred upon him as a delegate and he cannot be said to be wholly incompetent or a usurper. The impugned orders, therefore, cannot be quashed on the ground that they are issued without jurisdiction and, therefore, null and void.

Contention-III

18. Thirdly, it is submitted that serious prejudice is being caused to the petitioners who are going to be allotted permanent alternative accommodation on a land close to the railway track with liability to be evicted in case railway authorities decide to acquire the lands adjoining the railway tracks. It is submitted that the dwelling units in favour of slum dwellers are going to be constructed near the railway track, whereas the dwelling units which are to be for free sale are to be constructed away from the railway tracks.

19. As regards the petitioners contention about the permanent alternative accommodation being constructed near the railway track, the allegation is denied by the respondents and reliance is placed on the following averments in the affidavit in reply filed on behalf of developer and particularly paragraph 10 thereof which reads as under:-

"10. NOC OF RAILWAY

I say that this Respondent had applied for the NOC (No objection) from the Western Railway for the Buildings which will be constructed in the near future. The Railway Authorities have issued the No Objection Certificate dated 1st June 2010 to the buildings in accordance to the application of this Respondent. In any event the slum area of the societies of the petitioners are far away i.e. more than 500 mtrs away from the Railway Track Boundary, therefore the ground or issue raised by the Petitioners with respect to the Railway NOC is irrelevant and not tenable. Hereto annexed and marked to Exhibit-I is the copy of No Objection Certificate dated 1st June 2010 issued by the Railway Authorities."

20. As regards the apprehension that there will be necessity to demolish the buildings constructed near the railway tracks in future, it is submitted that the proposed permanent alternative accommodation is away from railway tracks and there is a 60 feet road between the land on which the railway tracks are situated and the proposed permanent alternative construction. It is submitted that on the one hand the petitioners are liable to be evicted for unauthorized occupation of the land belonging to a public authority like MHADA, which liability can be immediately enforced and the petitioners are liable to be evicted straightaway without providing any alternative accommodation. On the other hand, the petitioners are being provided with temporary alternative accommodation as well as permanent alternative accommodation and, therefore, merely because the railway authorities are asking the developer to provide for a standard format undertaking indicating liability to have the buildings demolished in case of future exigency does not mean that there is an imminent danger of the permanent alternative accommodation being subjected to any such apprehended demolition.

21. As far as other arguments with regard to the lands where the petitioners and other slum dwellers being housed coming within the vicinity of railway line is concerned, that has been amply clarified by Mr.Dhakephalkar and the affidavit in reply and particularly para 10 which has been reproduced that there is no substance in this objection. We are in full agreement with Mr.Dhakephalkar, learned Senior Counsel appearing on behalf of the developer on this aspect. Hence, this objection need not be sustained. It is accordingly over ruled and rejected.

Contention-IV

22. The developer has not obtained any NOC for the high rise buildings which was specifically required to be taken under the Letter of Intent (for short "LOI") as provided in Condition No.51 in the LOI dated 17th November 2007 read with modification dated 24th March 2008.

23. As regards the contention that the developer has not obtained NOC from the society for construction of high rise buildings, reliance is placed by the respondents on the following averments in paragraph 11 of the reply affidavit of the developer which reads as under :-

"11. NO GENERAL BODY RESOLUTION IS REQUIRED FOR CONSTRUCTION OF HIGH RISE BUILDINGS

I say that the existing average tenement density of the said slum area in the project is 791 tenements per hectare. There are various reservations on various portions of land in the said entire slum area. I say that earlier an eligible slum dweller was entitled for residential rehab tenement of 225 sq. fts. However, as the State Government vide its Notification dated 16th April 2008 increased the carpet area of residential rehab tenement from 225 Sq. ft. to 265 Sq. ft., as a result this Respondent has been constrained to obtain approval/sanction to the plans of ground + 14 floors buildings. The clause 6 of the Appendix IV to the said Regulation 30(10) lay down the building regulation for grant of development permissions viz. Approval of building plans, grant of commencement certificate etc. Clause 6.11 of the said Regulation provides for allowing high rise Rehab Building. This high rise Rehab Building is permissible under the Development Control Regulation.

I say that in view of the increase in the carpet area of residential rehab tenement from 225 Sq. ft. to 269 Sq.ft. now to accommodate a given number of rehab tenements in 7 storied buildings on a given plot, the larger footprint (plinth) size would be required which is not available and therefore there is no alternative than to go vertical i.e. put additional floors resulting in increase in the height of the proposed Rehab Buildings. I further state that while constructing a building of more than 7 floors as per the mandatory requirement of fire fighting department the open space of 6 mtrs. all around the building is required to be kept 6 mtrs. as compared to 1.5 mtrs for 7 storied buildings. I say because of the said mandatory open spaces of 6 mtrs. all around the building of more than 7 floors, the footprint (plinth) size is further reduced and therefore additional floors are required to be added. Thus, in order to make scheme feasible/viable construction of high rise Rehab Building is inevitable.

I say that in view of the aforesaid the condition of General Body Resolution with respect to the high rise buildings has been relaxed and further modified by the Slum Rehabilitation Authority and therefore the Exhibit-N and Exhibit-O to the Petition are immaterial and shall have no bearing at all."

24. It is submitted on behalf of the respondents that initially when the LOI was issued on 17th November 2007 with modification issued on 24th March 2008, the condition to obtain the concurrence from the co-operative society was inserted because the rehabilitation tenement was to be of the carpet area of 225 sq.ft. and the construction was to be of ground floor plus seven floors. However, the authorities revised the norms and the carpet area of residential rehabilitation tenement was increased from 225 sq.ft. to 269 sq.ft. so also the authorities required the developer to provide for the necessary access to the fire fighting engines and because of all these requirements the authorities have not only permitted the developer to put up buildings of ground floor plus 14 floors, but the following additional condition has been imposed through Condition No.63. The same reads as under:-

"63. High Rise Rehab Building :

a) That you shall appoint Project Management Consultant with prior approval of Dy.Ch.Eng. (S.R.A.)/ E.E. (S.R.A.) for implementation/supervision/ completion of S.R. Scheme.

b) The Project Management Consultant appointed for the scheme shall submit quarterly progress report to Slum Rehabilitation Authority after issue of LOI.

c) That the developer shall execute tripartite Registered agreement between Developer, Society & Lift Supplying Co. or maintenance firm for comprehensive maintenance of the electro mechanical systems such as water pumps, lifts, etc. for a period of ten years from the date of issue of Occupation Certificate to the Rehabilitation/Composite building. Entire cost shall be borne by the developer and copy of the registered agreement shall be submitted to S.R.A. for record before applying for Occupation Certificate including part O.C.

d) The third party quality auditor shall be appointed for the scheme with prior approval of Dy. Ch. Eng. (S.R.A.)/E.E. (S.R.A.) for quality audit of the building work at various stages of the S.R. Scheme.

e) That the developer shall install fire fighting system as per requirements of C.F.O. and to the satisfaction of this department. The developer shall execute tri-partite Registered agreement between Developer, Society & Fire Fighting equipment supplying Co., and/or maintenance firms for comprehensive maintenance for a period of ten years from the date of issue of occupation certificate to the building.

Entire cost shall be borne by the developer and copy of the Registered Agreement shall be submitted to S.R.A. for record before applying for Occupation Certificate including part O.C.

(f) That the structural design of buildings having height more than 24m shall be got peer reviewed from another registered structural engineer/educational institute."

25. It is therefore submitted that insertion of the above clauses in Condition No.63 more than compensates for any requirement to obtain the concurrence from the co-operative society. Particular emphasis is laid on sub-clause (c) of Condition No.63 which provides that the developer shall provide for maintenance of electro mechanical systems such as water pumps, lifts, etc. for a period of ten years from the date of issue of Occupation Certificate to the rehabilitation//composite building and that the entire cost for such facilities shall be borne by the developer. The developer is also to install fire fighting systems as per the requirements of C.F.O. and to the satisfaction of the department. The developer is also to provide for comprehensive maintenance of the fire fighting equipments for a period of ten years from the date of issuance of Occupation Certificate to the buildings and the entire cost for the same shall be borne by the developer. It is, therefore, submitted that in view of the aforesaid safeguards, the authorities themselves have taken sufficient care to protect the rights and interests of the allottes of permanent alternative accommodation and therefore there was no need to ask for concurrence of the society. It is further submitted that in this view of the matter, from about 750 members of the three co-operative societies, more than 600 members have supported the scheme of the respondent developer and therefore also this Court may not exercise extra ordinary jurisdiction under Article 226 of the Constitution of India.

26. Having heard the learned counsel for the parties at great length and having given anxious consideration to the rival submissions, we do not find any merit in this contention also. The contention that the NOC for construction of high rise building has not been obtained is without any basis and untenable. The NOC is not required and we are in agreement with the developers counsel that the clarification in para 11 of the reply affidavit shows that the NOC is not necessary.

27. We do note that the condition imposed in Condition No.63 of the LOI dated 20th August 2009 provides various safeguards to the members of the society. The societies as well as their members will have the right to ensure that all the conditions of the LOI shall be duly complied with by the respondent developer.

28. Having observed that there are enough safeguards for the members of the society and the petitioners in particular in the terms and conditions of the LOI itself and the authorities in charge of the project being fully empowered to ensure compliance of the same, there is no reason to entertain these petitions but in order to ensure that all the necessary arrangements are made by the developer for complying with condition no.63, we direct that the competent authority, issuing occupation certificate for free sale apartments to be constructed by the developer, shall, before issuing such a certificate, ensure that the developer has made necessary provisions, not only for installation of the lifts and other services in the rehabilitation apartments, but also for their maintenance for ten years as provided in condition No.63.

29. Subject to the above observations and directions in paras 27 and 28, the petitions are dismissed. The ad-interim stay granted earlier stands vacated.

30. At this stage, the learned counsel appearing for the petitioners prays that the ad-interim stay operating during the pendency of the petitions since 28th May 2010 may be continued for some time in order to enable the petitioners to have further recourse in accordance with law.

31. The learned counsel for the respondents oppose the request and submit that the project has been sufficiently delayed.

32. Having heard the learned counsel for the parties and having regard to various safe-guards provided in the LOI itself, we are of the view that the ad-interim injunction operating so far is not required to be extended any further, more particularly when the occupants of the slum are to be provided with temporary alternative accommodation as per the sanctioned scheme itself. It is only after the present dwelling units in the present slum are demolished that the redevelopment work of providing permanent alternative accommodation will start. Therefore, we do not see any reason to extend the ad-interim injunction granted earlier.