Om Shri Sai Developers Vs. Slum Rehabilitation Authority Through the Chief Executive Officer, - Court Judgment

Excerpt:
constitution - writ petition - maintainability of - termination of development agreement - settlement of private disputes - article 226 and 227 of constitution of india - petitioner-developer entered into agreement with respondent-society for implementation of slum redevelopment scheme - thereafter, disputes arose between the parties and respondent-authority held that the agreement between the petitioner and respondent-society stood terminated - hence, present writ petition by petitioner to quash the order of the respondent society - petitioner contended that writ petition was maintainable; that the detailed facts submitted in the written submissions filed by the petitioner have not been considered in their correct perspective - respondents contended that writ petition was not maintainable on the ground that the petitioner should approach the high power committee and/or in any case should file civil suit as disputed facts and circumstances are required to be settled for considering the petition on merits - held, findings recorded by an authority can hardly be interfered by high court in exercise of its extraordinary jurisdiction under article 226 of the constitution of india unless the facts which are disputed seriously by the parties are established by evidence - attempt of the petitioner in the garb of writ petition is to settle private disputes between himself and the society on the one hand and builder on the other hand - such settlement of private disputes can hardly be a subject matter of controversy in a writ petition - not commenting upon the maintainability of the remedy and scope of the proceedings before any of the forum available to the petitioner under law but the present writ petition would not lie under articles 226 and 227 of the constitution of india - petition disposed of - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - subsequent necessary permissions for constructiion of rehab as well as free sale tenement of the pandit sra cooperative housing society ltd.swatanter kumar, c.j.1. in this writ petition under article 226 and 227 of the constitution of india, the petitioner has primarily amongst others made the following prayers:(a) this hon'ble court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order calling for the records and proceedings relating to the proceedings and after perusing the legality, validity and propriety of the proceedings and the order bearing no. sra/ceo/la/hco130/ pandit/61/08 dated 4th march, 2008 passed by the respondent no. 1 herein, be pleased to quash and set aside and reverse the same.(b) pending the bearing and final disposal of this appeal, the impugned order passed by the respondent no. 1 bearing no. sra/ceo/la/hco130/ pandit/61/08 dated 4th march, 2008 be stayed.(c) that this hon'ble court be pleased to pass a order of injunction restraining the respondent no. 3 from carrying out any construction on suit land bearing c.t.s. no. 6(pt), 7, 7/1 to 3,9,9/1 to 4 and 10 (pt) situated at l b s road, mulund west, mumbai 400080 and/or to create any third party rights on the suit land or changing the nature of suit property etc.2. these prayers have been made on the averments of the petitioner which is a firm engaged in construction business and was appointed as the developer by respondent no. 2 society vide agreement dated 3rd march, 1996. the petitioner persuaded the slum dweller to join the scheme for which they consented and the society passed resolution on 1st march, 1996 in its general body meeting for implementation of slum redevelopment scheme through the petitioner. the slum rehabilitation authority, hereinafter referred to as the `authority', on 6th january, 1998 issued l.o.i., i.o.d. and commencement certificate upto the plinth level. the respondentsociety did not cooperate and started making illegal demands and some of the slum dwellers refused to shift which brought the scheme to stall. on 14th january, 1998, notice was issued by mumbai municipal corporation against the petitioner which was replied to wherein all these facts were brought to the notice of the authority but in view of the false complaint lodged by respondent no. 2, the authority did not issue the commencement certificate for the further work. on this basis, even on 24th march, 2000, a resolution was passed by the special general body meeting to remove the petitioner. this resolution is stated to be fabricated and the petitioner filed the suit before the bombay city civil court being suit no. 2045 of 2005. on 19th may, 2000, the respondent no. 1authority directed the petitioner to start the work of rehabilitation building in three months and that further commencement certificate was ready and called upon him to make the payment and collect the certificate. the petitioner gave an undertaking to the said authority and upon payment of revalidation charges on 22nd may, 2000, respondent no. 1 issued the certificate. again on 1st september, 2000, members of the society informed the said authority that they intended to terminate the agreement dated 3.3.1996 executed in favour of the petitioner. various disputes arose between the parties and they approached the different authorities including the police. on 22nd january, 2003, the petitioner informed the authority that they have completed the rehab dwing building and had commenced the work of constructing rehab cwing. the authority had subsequently informed the petitioner that it has come to the notice upon inspection that rehabilitation building was occupied without obtaining occupation certificate. vide letter dated 20th february, 2004, the respondentauthority requisitioned the respondentsociety to convene a meeting of all the members to declare the details of the slum rehabilitation scheme including interalia the name of the developer.3. the petitioner filed writ petition in this court being writ petition no. 2953 of 2004. in the said writ petition, the court passed the following order:the respondent no. 2 is the authority having over all control, in the matter of development of the areas notified as slum area. the developer can be appointed only with their permission. the new developer can also be appointed only with their permission. once that be the case, respondent no. 2 is duty bound before agreeing to the appointment of the new developer to hear the developer who has been working as to whether prima facie there is valid termination in the eyes of law. in the instant case, it appears that apart from some correspondence respondent no. 2 has not given hearing to the petitioner in the matter of termination of their contract of the development agreement by pandit cooperative housing society ltd. in the light of that respondent no. 2 is directed to hear the petitioner and pandit cooperative housing society ltd. and if need be also respondent no. 4 as to whether the development agreement between the respondent no. 3 and the petitioner has been prima facie validly terminated. if that be so, thereafter to decide the same according to law.4. thereafter, vide letter dated 5th march, 2005, respondentauthority had raised the query whether formalities have been completed prior to the termination of the agreement with the society. pursuant to the order of the high court, the respondentauthority heard the matter and vide order dated 10th march, 2005 held that termination was valid and project was completed by siddhi vinayak construction and not the petitioner. the petitioner also filed another suit being suit no. 2145 of 2007 in the city civil court at bombay wherein an order was passed on 10th january, 2008, that no new construction will be carried out by siddhi vinayak construction. vide order dated 5th february, 2008, the appellate court had remanded the matter to the slum rehabilitation authority for considering the said question. the slum rehabilitation authority took even the written submissions on behalf of the petitioner and the matter was proceeded before the slum rehabilitation authority who has passed an order interalia upholding the termination of the agreement dated 3rd march, 2006 carried out under the special general body meeting dated 24th march, 2000 and has permitted siddhivinayak construction to complete the balance work of slum rehabilitation scheme. the petitioner, thus, prays for quashing of the order dated 4th march, 2008. exhibit `ll' to the writ petition on the ground that the authority has not applied its mind in accordance with law and has not appreciated correctly the facts on record. it is also averred that the detailed facts submitted in the written submissions filed by the petitioner have not been considered in their correct perspective. the respondents have raised an objection as to the maintainability of the petition on the ground that in view of the full bench judgment of this court in the case of tulsiwadi navnirman cooperative housing society ltd. and anr. v. state of maharashtra and ors. : (2007)109bomlr2493 , the petitioner should approach the high power committee and/or in any case should file civil suit as serious disputed facts and circumstances are required to be settled for considering the petition on merits which this court may not be able to do in exercise of jurisdiction under article 226 of the constitution of india.5. at the outset, it will be useful to notice that when the petitioner had filed the writ petition earlier in this court on the same facts, the matter came up for hearing before the division bench and the same was disposed of vide order dated 10th february, 2007. after considering the contentions raised by the parties in that writ petition, the court directed the respondentauthority to examine the question whether the agreement between the society and the petitioner was prima facie validly terminated and thereafter to decide the question on law. the bench also left all the questions open for determination. in furtherance to the directions of the court, the respondentauthority after detailed enquiry and noticing different disputed questions of facts, held as under:11. it also needs to be seen that m/s. om shri sai developers, whose development agreement dated 3.3.1996 was duly terminated by the society in a special general body meeting held on 24th march, 2000, and after intimation of the same on 26th march, 2000, except making complaints to the police the developer m/s. om shri sai developers have not taken positive legal steps for a period of 4 years to challenge their termination. it is also a matter of record that slum rehabilitation authority vide their letter dated 5th february, 2003 had intimated to the police that the m/s. siddhivinayak constructions co. is the developer of the scheme. the slum rehabilitation authority has accepted various payments from m/s. siddhivinayak construction co. and also given approvals to the plans submitted ion their behalf. therefore, i am unable to agree with the contention of m/s. om shri sai developers that the slum rehabilitation authority has not accepted m/s. siddhivinayak constructions as a new developer to implement the scheme rehabilitation scheme for pandit sra cooperative housing society ltd.12. in view of the aforesaid facts m/s. om shri sai developers wee removed by pandit sra cooperative housing society ltd. due to inordinate delay in implementation of the slum rehabilitation scheme and terminatiion of the development agreement executed with m/s. om sai development dated 3rd march, 1996 has been validly done in a special general body meeting dated 24th march, 2000. i am also of the view that m/s. siddhivinayak constructions is duly appointed by the society to carry out further balance work of slum rehabilitation scheme on plot bearing cts no. 6(part), 7,7/1 to 3,9,9/1 to 4, 10 (part) of village mulund, mumbai suburban district. subsequent necessary permissions for constructiion of rehab as well as free sale tenement of the pandit sra cooperative housing society ltd. was also granted by the slum rehabilitation authority to m/s. siddhivinayak construction co. besides the collective will of the eligible slum dwellers as expressed through the general body resolutiion dated 24.3.2000 of pandit sra cooperative housing society ltd. and with the fact that more than 70% of eligible slum dwellers have entered into agreement/consent in favour of m/s. siddhivinayak constructiion co. needs to be upheld.13. therefore taking into consideratiion all facts and evidence brought on record and in the larger interest of slum dwellers early rehabilitation, m/s. siddhivinayak constructions co. appointed by the pandit sra cooperative housing society ltd. should be allowed to complete the balance work of slum rehabilitation scheme on plot bearing cts no. 6(part), 7,7,1 ti 3,9,9/ 1 to 4, 6(part), 10(part) of village mulund, mumbai suburban district for pandit sra cooperative housing society ltd. 6. the findings recorded by the authority can hardly be interfered by this court in exercise of its extraordinary jurisdiction under article 226 of the constitution of india. firstly, the facts which are disputed seriously by the parties would require evidence to be led to be established the facts one way or the other. secondly, the attempt of the petitioner in the garb of writ petition is to settle private disputes between himself and the society on the one hand and the other builder on the other. such settlement of private disputes can hardly be a subject matter of controversy in a writ petition. full bench judgment of this court in the case of tulsiwadi navnirman cooperative housing society ltd. (supra) stares the petitioner in face.7. in that judgment, the full bench of this court held that under the garb of filing writ petitions against sra, state, bmc, mhada, mmrda, if the applicant/petitioner is ventilating a purely private grievance or dispute so also raising an issue which is not possible of being resolved in writ jurisdiction, then, he can always be directed to avail of private law remedies. merely because, a letter of intent has been issued by sra to the applicant that itself would not mean that for all time to come, the applicant/developer is the agent of sra and they could freely invoke the writ jurisdiction of this court. in furtherance to the judgment of the full bench of this court, the state has already notified the establishment of high power committee which is in place. the committee is expected to resolve all disputed facts. all such matters are expected to be dealt with by the high power committee, only exception being where there is challenge to the virus of the provisions or to the policy decision of the state which is certainly not the position in the present case.8. furthermore, as is evident from the above facts that the petitioner himself had filed suits earlier to resolve the issues and had even obtained interim orders. keeping in mind the disputed factual matrix of the case, it would be more appropriate for the petitioner to invoke jurisdiction of the civil court if permissible and in accordance with law. it is not a case where the petitioner is remedyless. in fact, he may even had choice of remedy. we are not commenting upon the maintainability of the remedy and scope of the proceedings before any of the forum available to the petitioner under law but we certainly are of the firm view that the present writ petition would not lie under articles 226 and 227 of the constitution of india, keeping in view the peculiar facts and circumstances of this case. the writ petition is disposed of as not entertainable under article 226 of the constitution leaving the petitioner to take recourse to such remedy as may be available and permissible to him in accordance with law. rule is discharged. no order as to costs.