SAYUNKTA SANGARSH SAMITI & ANRversusTHE STATE OF MAHARASHTRA & ORS.

                [2023] 16 S.C.R. 724 : 2023 INSC 1080



                           CASE DETAILS

             SAYUNKTA SANGARSH SAMITI & ANR
                                    v.
             THE STATE OF MAHARASHTRA & ORS.
                    (Civil Appeal No. 1359 of 2023)
                         DECEMBER 15, 2023
    [ANIRUDDHA BOSE AND SUDHANSHU DHULIA, JJ.]
                             HEADNOTES
      Issue for consideration: An entirely private arrangement was arrived
at between the Developer on the one hand and some of the hutment dwellers
on the other. Slum Rehabilitation Authority had no role to play in it. Is
private agreement as such enforceable against the statutory mandate of the
Slum Rehabilitation Authority.
     Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 – Slum Rehabilitation Authority (SRA) issued
a Letter of Intent in favour of Developer for residential tenements – In
2007, the project was stalled by a minority section of the slum dwellers
(appellant society) – The Developer filed a civil suit seeking injunction
against obstructers – During the pendency of the suit an MoU was signed
between them, whereby the appellant society undertook to enforce self-
development rehabilitation with cooperation of the developer – Towers
which the appellant-society undertook to construct or supervise their
construction were towers D, E and F, which were then to be occupied
exclusively by the members of the appellant society – Pursuant to
MOU, the appellant-society approached SRA to do allotment as per
the settlement – Propriety:
     Held: The Civil Suit was at the behest of the developers against
individual society and SRA was not made party to these proceedings –
Private agreements cannot be enforced in Slum Rehabilitation Schemes as
against the statutory mandate of the SRA – The claim of the appellant was
based entirely on terms of consent arrived between the Developer and them,
which has no basis in law – SRA has to act in terms of its own policies and
                                   724
 SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 725
               MAHARASHTRA

circulars without allowing private or contractual interests to prevail over
public policy especially a policy which is welfare based – It is also Circular
No.162 dated 23.10.2015, that allotment will be done by draw of lots for
all the hutment dwellers and same was sought to be followed by the SRA
– The appellant society though has filed two Writ Petitions subsequently in
connection with the procedure for allotment undertaken by the SRA, yet it
has not challenged the validity of Circular No. 162, instead it has sought to
impose its private contractual rights over and above the statutory provisions
which is not permissible – SRA directed to carry out the allotment of flats
in accordance with law. [Paras 20, 21,22,23, 25,26]
       LIST OF CITATIONS AND OTHER REFERENCES
     Ram Chandra Mahadev Jagpat and Ors. vs Chief Executive Officer
and Others, [2006] 8 Suppl. SCR 658 : (2006) 11 SCC 661; Pramila Singh
Suman vs State of Maharashtra and Others, [2008] 17 SCR 1517 : (2009)
2 SCC 729; Balasaheb Arjun Torbole and Others vs Administrator and
Divisional Commissioner and Others, [2015] 6 SCR 750 : (2015) 6 SCC
534 – referred to.
     Lokhandwala Infrastructure Pvt. Ltd. and Another v. State of
Maharashtra and others, 2011 SCC OnLine Bom 118; Susme Builders
Private Limited v. Chief Executive Officer, Slum Rehabilitation Authority,
2014 SCC OnLine Bom 4822; New Janta SRA CHS Ltd. v. State of
Maharashtra, 2019 SCC OnLine Bom 3896; Smt. Usha Dhondiram
Khairnar and Others v. State of Maharashtra and Others, 2016 SCC OnLine
Bom 11505 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.1359 of 2023.
     From the Judgment and Order dated 22.10.2021 of the High Court of
Judicature at Bombay in WPL No.8391 of 2020.
     Appearances:
     Jayant Bhushan, Sr. Adv., Rahul Kripalani, Ankit Yadav, Ms. Suhasini
Sen, Ms. Prakriti Rastogi, Aditya Pratap Singh Chauhan, Ms. Supraja V.,
726          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


Ms. Mahalakshmi Ganapathy, Amartya Bhushan, Yojit Mehra, Prashant
Gawali, Advs. for the Appellants.
     Arunabh Chowdhury, Sr. Adv., Shrirang B. Varma, Siddharth
Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh,
Aniruddha Joshi, Shashibhushan P. Adgaonkar, Omkar Jayant Deshpande,
Mrs. Pradnya S Adgaonkar, Anil Rao, Mubarakka Mohammed Lokhandwala,
Mrs. Pragya Baghel, Dechen W. Lachungpa, Anirudha M. Sethi, Sagar
Ghogre, Vaibhav Ghogre, Amrendra Kumar Mehta, Advs. for the
Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

      SUDHANSHU DHULIA, J.
      1. The appellants before this Court have challenged the order dated
22.10.2021 passed by the High Court of Judicature, Bombay, which has
dismissed the Writ Petition of the appellants. The petition was for quashing
of the order dated 26.10.2020 passed by respondent No. 2 i.e. Slum
Rehabilitation Authority, Maharashtra (hereinafter referred to as ‘SRA’).
      2. SRA had proposed a Slum Rehabilitation Scheme for the slum at
CS No. 1(pt) of Lower Parel Division at J.R. Boricha Marg. The project was
for construction of a total built up area of 75854.716 sq. m., where 1765
slum dwellers were to be rehabilitated. Nine towers i.e. tower nos. A to I, 69
commercial tenements, 24 recreational tenements, 6 existing amenities, 19
balwadis, 19 welfare centres and 19 society offices, were in the construction
plan. The construction of all the above towers has been completed as of now,
and 473 slum dwellers have already been given possession of their tenements
in Towers A, B and C. All the same, the allotment for the remaining towers
has been stalled due to the present dispute and the ongoing litigation between
various stake holders of the project. Hopefully it should end now.
     3. Slums of Mumbai are symbolic of the existing inequalities in our
society. The growth of industries and urban centres invariably result in
migration of rural population to urban industrial areas areas, in search of
employment. The migrants, displaced poor and the marginalised are forced
 SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 727
      MAHARASHTRA [SUDHANSHU DHULIA, J.]

by circumstances to form a living space for themselves, which are called
slums. Slums have also been described as a crowded settlement of temporary
household with inadequate facilities and very poor hygienic conditions.
Although, many of the slums in Mumbai such as ‘Dharavi’, ‘Byculla’ and
‘Khar’ were initially villages, but they too have mushroomed into slums in
the lopsided urban development.
      4. The city of Mumbai has a maximum number of recorded slums in
the country and as per the 2011 census, 42 percent of its population stays
in slums. Very little attention was paid to the slum dwellers in their initial
period during the late 19th century and early 20th century, during colonial
Rule. After the 1896 bubonic plague the Government recognised the need
for improvement in the housing and sanitary conditions, in the city. This
resulted in the formation of Bombay Improvement Trust (for short ‘BIT’)
in 1898, and later Bombay Development Department (for short ‘BDD’) in
the year 1920. BDD in particular, inter alia, had a mandate to construct
low-cost houses for the workers who were manning the factories and the
mills in the city; and for the workers in ports and railway station as well.
All the same, not much was done by these bodies as far as improvement of
living conditions of the workers in these areas or for providing them with
a decent housing or sanitary conditions.
      5. With independence, initially the approach of the authorities towards
slums was also largely focused on clearing the slum areas, rather than
improving their conditions. The Slum Areas (Improvement and Clearance)
Act, 1956 was enacted by the Parliament for declaring the areas as slum
area, and clearing it. The competent authority could declare an area as a slum
area and would thereafter pass demolition or clearance orders. There was no
purposeful welfare, socially sensitive, provision in the Act for redevelopment
of the area after its clearance and this was left to the satisfaction of the
competent authority, which may redevelop an area, subject to his or her
satisfaction (see Section 11 of the Act).
     6. This approach of the executive and the legislature subsequently
changed with the concept of welfare state taking hold and the growth of
awareness of the inhabitants towards their rights under the Constitution. The
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971 (hereinafter referred to as ‘1971 Act’) was enacted which had
728          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


provisions for redevelopment of area and other benefits for the inhabitants.
In 1971 Act the purpose of the Act was “improvement and clearance of
slums areas in the State and for their redevelopment and for the protection or
occupiers from eviction, distress and warrants; and for matters enacted with
the purposes aforesaid; …………………”. The main authorities in the 1971
Act are the competent authority to be appointed under Section 3 of the Act
and more importantly the Slum Rehabilitation Authority for implementing
slum rehabilitation scheme. The Slum Rehabilitation Authority or SRA is
a creature of the statute of “1971 Act” and as a body corporate consisting
of following:
      “3-A…………….
      (1)……………..
      (2) Every Slum Rehabilitation Authority shall consist of a Chairman,
      a Chief Executive Officer and fourteen other members, all of whom
      shall be appointed by the State Government.”
      Slum areas are defined under Section 2(ga) of the 1971 Act as follows:
      “Slum area means any area declared as such by the Competent
      Authority under sub-section (1) of Section 4 [and includes any area
      deemed to be a slum area under Section 4-A”
      Section 4 and 4A of the 1971 Act is regarding declaration of slum
areas, which are as follows:
      “4. Declaration of slum areas.— [(1) Where the Competent Authority
      is satisfied that—
      (a) any area is or may be a source of danger to the health, safety or
      convenience of the public of that area or of its neighbourhood, by
      reason of the area having inadequate or no basic amenities, or being
      insanitary, squalid, overcrowded or otherwise; or
      (b) the building in any area, used or intended to be used for human
      habitation are—
      (i) in any respect, unfit for human habitation; or
      (ii) by reasons of dilapidation, overcrowding, faulty arrangement and
      design of such buildings, narrowness or faulty arrangement of streets,
SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 729
     MAHARASHTRA [SUDHANSHU DHULIA, J.]

  lack of ventilation, light or sanitation facilities or any combination of
  these factors, detrimental to the health, safety or convenience of the
  public of that area,
  the Competent Authority may, by notification in the Official Gazette,
  declare such area to be a slum area. Such declaration shall also be
  published in such other manner (as will give due publicity to the
  declaration in the area) as may be prescribed.]
  (2) In determining whether buildings are unfit for human habitation for
  the purposes of this Act, regard shall be had to the condition thereof
  in respect of the following matters, that is to say, —
  (a) repairs;
  (b) stability;
  (c) freedom from damp;
  (d) natural light and air;
  (e) provision for water-supply;
  (f) provision for drainage and sanitary conveniences;
  (g) facilities for the disposal of waste water;
  and the building shall be deemed to be unfit as aforesaid, if, and only
  if, it is so far defective in one or more of the said matters that it is not
  reasonably suitable for occupation in that condition.
  (3) Any person aggrieved by a declaration made under sub-section (1)
  may, within thirty days after the date of such declaration in the Official
  Gazette, appeal to the Tribunal. [No such appeal filed after the expiry
  of thirty days as aforesaid shall be entertained.]
  (4) When an appeal is presented under sub-section (3), the Tribunal shall,
  by a public notice published in a newspaper in the Marathi language
  circulating in the local area in which the slum area is situated and also
  displayed at some conspicuous place in the slum area, call upon the
  residents of the slum area to file their objections, if any, to the appeal
  within a period of fifteen days from the date of publication of such public
  notice in the newspaper as aforesaid, either by themselves or through
  any association of residents in the slum area of which they are members.
730           SUPREME COURT REPORTS                         [2023] 16 S.C.R.


      (5) On expiry of the period of fifteen days as aforesaid the Tribunal
      shall fix a day for hearing the appeal and inform the appellant about the
      same by letter under certificate of posting and the residents of the slum
      area by displaying the notice of hearing at some conspicuous place
      in the slum area and upon hearing the appellant, and the residents
      or representative of their association in the slum area, if present, or
      on considering the written objections, if any, made by such residents
      or association, if absent, the Tribunal may, subject to the provisions
      of sub-section (6), make an order either confirming, modifying or
      rescinding the declaration: and the decision of the Tribunal shall be
      final.
      Explanation.—For the purposes of sub-section (4) and this sub-section,
      the, expression “any association of residents in the slum area” means
      a society, if any, of such residents registered under the Societies
      Registration Act, 1860 (21 of 1860) or under the Maharashtra Co-
      operative Societies Act, 1960 (Mah. XXIV of 1961).
      (6) While deciding the appeal the Tribunal shall ignore the works
      of improvement executed in such slum area by any agency of the
      Government or any local authority after the declaration thereof as
      such slum area by the Competent Authority under sub-section (1).]
      [4-A. Certain slum improvement areas deemed to be slum areas.—(1)
      Any declaration made under Section 26 of the Maharashtra Slum
      Improvement Board Act, 1973 (Mah. XXIII of 1973), declaring any
      area to be slum improvement area, and in force immediately before the
      date of commencement of the Maharashtra Slum Areas (Improvement,
      Clearance and Redevelopment) (Amendment)Act, 1976 (Mah. XX of
      1970), (herinafter in this section referred to as “the said date”) shall,
      on and from the said date, be deemed to be a declaration made under
      Section 4 of this Act declaring the same area to be a slum area for the
      purposes of this Act.
      (2) Any person aggrieved by the provisions of sub-section (1) may,
      within thirty days from the said date, appeal to the Tribunal function
      under this Act.
 SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 731
      MAHARASHTRA [SUDHANSHU DHULIA, J.]

     (3) on such appeal, the Tribunal may make an order either confirming,
     modifying or rescinding the declaration: and the decision of Tribunal
     shall be final].”
      7. The Maharashtra Regional and Town Planning Act, 1966
(hereinafter referred to as ‘MRTP Act, 1966’) is again an important piece
of legislation with which we are presently concerned. The MRTP Act,
1966 was enacted in order to have a planned development in the State of
Maharashtra. An amendment was brought in the MRTP Act, 1966, in the
year 1995 whereby SRA was given the status of Planning Authority so far
as slums were concerned. The State Government under the 1966 Act has got
powers to frame what is called Development Control Regulations (DCR)
for the purposes of implementation of any scheme, project, etc which would
include development of a slum. The DCR Regulation under which the present
rehabilitation of slum was to be undertaken was Regulation 33(10) of DCR,
1991.
       The present slum area with which we are concerned is at Lower Parel
Division in J.R. Boricha Marg and is notified as a “slum” under the 1971 Act
and had 1672 residential tenements. As per the scheme of SRA more than
70 percent of the eligible hutment dwellers were members of the federation,
i.e., present respondent no.6 which were to choose its developer and take
the scheme forward under the overall supervision of SRA.
      8. In accordance with the procedure given under the DCR, 1991 the
majority section of the slum dwellers, in the present case, who were earlier
divided into different independent societies, got together and formed a
society called “Shramik Ekta Co-Operative Housing Federation” (respondent
No. 6, herein), which we here refer as the “Federation”. The Federation in
turn appointed Lokhandwala Kataria Constructions (respondent No. 5) as its
Developer. SRA consequently issued a Letter of Intent (LoI) on 16.04.2005,
in favour of the Developer, approving the proposed Slum Rehabilitation
Scheme, submitted before them.
      9. The work for construction of the nine towers commenced but was
stalled shortly afterwards in 2007. Since then, the project was moving only
in fits and starts. This was due to the interference caused by a minority
section of the slum dwellers. These slum dwellers are also members of the
Federation though have formed a separate minority society for themselves,
732             SUPREME COURT REPORTS                     [2023] 16 S.C.R.


called “Sayunkta Sangharsh Samiti” (hereinafter referred to as ‘SSS’), which
is the present appellant no. 1 before us, and to which we would refer in a
while.
     10. Based on the provisions of law regarding redevelopment of a slum,
the procedure for the implementation of a Slum Rehabilitation Scheme
has been summarised and published by SRA in form of “Guidelines for
the Implementation of Slum Rehabilitation Schemes in Greater Mumbai”
which was published in September, 1997. The procedure mandates that:
“70% or more of the eligible hutment-dwellers in a slum or pavement in
a viable stretch at one place have to show their willingness to join Slum
Rehabilitation Scheme and come together to form a cooperative housing
society of all eligible hutment-dwellers through a resolution to that effect.”
     11. This Court has upheld this procedure in a catena of Judgments
which include Ram Chandra Mahadev Jagpat and Ors. vs Chief Executive
Officer and Others (2006) 11 SCC 6611; Pramila Singh Suman vs State
of Maharashtra and Others (2009) 2 SCC 7292; Balasaheb Arjun Torbole
and Others vs Administrator and Divisional Commissioner and Others
(2015) 6 SCC 5343
       12. In 2007, the project being stalled by a minority section of the
Federation, the Developer filed a civil suit before the City Civil Court,
Bombay seeking injunction against the defendant nos.1 to 15 who were
inhabitants of the slum, and as per the scheme had an entitlement for a flat
each in the residential complex which was to be constructed by the developer
i.e., the plaintiff, but these defendants were not letting the Developer
make construction of the nine towers which had to be constructed within
a stipulated time. Defendant no.16 was the federation and the recitals of
the plaint clearly states that defendant no.16 is only a proforma party, it
is actually defendant nos.1 to 15 who were creating obstructions in the
construction of the towers, which the plaintiff was mandated to construct
as per the scheme. To our mind, this Civil Suit was not even maintainable
in view of Section 42 of the 1971 Act, which bars the jurisdiction of Civil


1     Para 28
2     Para 18
3     Paras 14 & 15
 SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 733
      MAHARASHTRA [SUDHANSHU DHULIA, J.]

Courts in matters relating to slum development. Section 42 of the 1971 Act
reads as under:
     “42. Save as otherwise expressly provided in this Act, no Civil Court
     shall have jurisdiction in respect of any matter which the Administrator,
     Competent Authority or Tribunal is empowered by or under this Act, to
     determine, and no injunction shall be granted by any Court or other
     authority in respect of any action taken or to be taken in pursuance
     of any power conferred by or under this Act.”
     13. Be that as it may, the SRA which was in any case a necessary
party to the Civil Suit, was not made a defendant. The reasons are not
difficult to locate. In the absence of SRA, there was no one to question the
maintainability of the suit, as it ultimately ended in a compromise decree.
      It so happens that during the pendency of the suit an MoU was signed
between the plaintiff and appellant-society, which had as its members, most
of the contesting defendants, and the so called contesting parties agreed to
resolve their differences as per the MOU.
      14. The Memorandum of Understanding (hereinafter referred to
as ‘MoU’) dated 23.06.2009, is an interesting piece of document signed
between the developer and the society registered under the Societies
Registration Act, 1860 which is also proposed to be registered as a charitable
trust under the Bombay Public Trust Act, 1950 (it was till then not registered
as a Trust). The society claimed that it had 770 hutments dwellers as its
members. The MoU is between the developer and the society, to which
most of the defendants in the Civil Suit were members of the society i.e.,
Sayunkta Sangharsh Samiti (hereinafter referred to as ‘SSS’). A purely
private arrangement was thus arrived at between the developer and the
minority members of the hutment dwellers whereby the society undertook
to enforce self-development rehabilitation with the cooperation of the
developer. Some of the important terms of the MoU are as under:
     “A. …………
     B.    Samiti i.e. M/s. Sayukta Sangharsh Samiti is a charitable
           organization incorporated with the sold object for the guidance
           and welfare of the Slum Dwellers occupying the said property.
           Trustees of the said Samiti are also the occupants of the
734          SUPREME COURT REPORTS                          [2023] 16 S.C.R.


           said entire property. The said Samiti is a non profit making
           organization. However it will work for the benefit of the said
           occupants including corpus and other benefits.
      C.   Out of about 2000 Hutments about 770 Hutments dwellers of
           the said entire property approached Samiti to undertake the Self
           Development. List of the said 770 Hutment Dwellers is annexed
           herewith as Annexure ‘A’ and they are hereinafter referred to
           as the “Said Occupants”. Hence considering the interest of the
           said occupants Samiti had decided to enforce Self Development
           Rehabilitation Scheme and hence suggested the said intention
           to the Developer.
      D.   Developers have alternately suggested to the Samiti to carry
           out the Self Construction of the rehab building/s for the said
           occupants which the Samiti has agreed.
      E.   The parties have agreed to give cooperation to the either party
           for self construction of rehab building/s by the Samiti for the said
           occupants and completion of the said Scheme.
      F.   The Samiti has also represented that they hereby undertake to
           actively assist the Developer in continuation, implementation and
           completion of the said entire Scheme on the said entire property.”
      As we can see it is an entirely private arrangement arrived at between
the Developer on the one hand and some of the hutment dwellers on the
other. SRA has no role to play in it, rather it is an arrangement at the back
of SRA and is in defiance of an already existing rehabilitation scheme,
statutorily sanctioned, which was surviving.
       15. The towers which the Samiti undertook to construct or to supervise
their construction were towers D, E and F, under the said MoU which
were then to be occupied exclusively by the members of the Society i.e.,
SSS. Subsequent to this, the Society was also registered as a public trust
on 21.11.2009. In September, 2009, the consent terms which were arrived
at in the Court between the developer and defendant nos.1 to 4, 6 to 9 and
16, read as under:
      “1. ……..
SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 735
     MAHARASHTRA [SUDHANSHU DHULIA, J.]

  2.   Plaintiffs confirm that they have arrived at Memorandum of
       Understanding dated 23rd June 2009 with one M/s. Sayukta
       Sangharsh Samiti, a Society registered under the provisions of
       Maharashtra Cooperative Societies Act and to be registered as
       Charitable trust under the Bombay Public Trust Act (Proposed)
       for better and smooth implementation and completion of Slum
       Redevelopment Scheme under DC Rules 33(10). Hereto annexed
       and marked as Exhibit “A” is a copy of the said Memorandum
       of Understanding.
  3.   Parties confirm that the said Slum Redevelopment Scheme has
       been approved vide LOI dated 16th April 2005 bearing Ref. No.
       SRA/ENG/027/GS/ML/LOI (which may be revised from time to
       time if required) for development of the property bearing CS
       NO.1 (Part) and 2 (Part) of Lower Parel Division situate at JR
       Boricha Marg, Bombay – 400 011.
  4.   Defendant Nos.1 to 4 and 6 to 8 confirm that they are lawfully
       appointed as Trustees of M/s. Sayukta Sangharsh Samiti and have
       been duly authorized by the said Samiti to sign the Consent Terms
       and confirm having signed Memorandum of Understanding as
       duly authorized by the said Samiti and is final, conclusive and
       binding upon the said Samiti.
  5.   Parties confirm that the Defendant Nos. 7 and 9 are not members
       of the Samiti but are only will-wishers and supporters of Samiti
       and have therefore willingly agreed to join in this Consent Terms.
  6.   Parties agree that they have agreed to resolve all the disputes
       and differences among themselves as recorded in Memorandum
       of Understanding dated 23.06.2009.
  7.   Parties agree to adopt, confirm and approve the Memorandum
       of Understandings which is annexed hereto.
  8.   Parties confirm that the said Memorandum of Understanding is
       confirmed by themselves in their personal capacity and also in
       their capacity as members of the Samiti.
  9.   Parties confirm that decree be passed in terms of Consent Terms
       as against the Defendant Nos. 1 to 4 and 6 to 9 and 16 herein.
736          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


      10. Parties confirm that the suit may be continued as against other
          Defendant Nos.10 to 15 as they are not ready and willing to
          cooperate and sign the Consent Terms herein.”
      According to the appellants before this Court, the suit was decreed in
terms of the MoU as against defendant nos.1 to 9, as to what happened for
the remaining defendants, it is not clear as no such order is there on record.
       16. Meanwhile, after the aforesaid MoU/Settlement, the Developer
wrote to the SRA on 05.10.2009 stating that the rehabilitation scheme which
was earlier facing problems has been resolved. It says that earlier the slum
dwellers were divided into different groups and got themselves formed
into different societies who were creating obstructions in the construction,
but now an amicable settlement has been arrived between the parties and
the consent terms/MoU was filed in Civil Suit No.1341 of 2007. The terms
of the MoU are binding between the parties and the project would be now
completed. It further requests that on the complaint of SRA, the earlier
enquiry which was being conducted against the developer be dropped. It
so happens that an enquiry against the Developer was pending. We are not
aware as to the fate of this enquiry. Be that as it may, more or less similar
information and request was made by the appellants before SRA vide its
letter dated 28.10.2009.
      17. Pursuant to the MoU/Settlement between the developer and the
appellants, the appellants approached SRA to do the allotment as per the
terms of settlement. There are some exchange of letters between the parties
on which much reliance has been placed by the appellant to show that
their request for allotment of Towers D, E and F was being agreed. This,
however, is not correct, but even assuming there was any such indication
and an assurance by SRA or any of its office bearers in this regard, the same
would be in violation of the law, as we shall explain in a while.
      18. Ultimately the SRA decided vide order dated 21.09.2020 to allot
712 flats on Tower D, E & F, on the basis of lottery, but then vide order
dated 25.09.2020, the SRA stayed this order. This order dated 25.09.2020
was challenged by the appellant before the Bombay High Court in a writ
petition which was disposed of vide order dated 09.10.2020 directing SRA to
take a call on allotments of these flats in Tower D, E & F, by way of lottery.
The SRA in compliance with the said order passed an order on 26.10.2020
 SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 737
      MAHARASHTRA [SUDHANSHU DHULIA, J.]

deciding to allot the flats in Tower D, E & F as per the procedure prescribed
vide Circular No. 162 dated 23.10.2015.
      19. Aggrieved by this order of SRA, the appellants filed another Writ
Petition (L) No. 8391 of 2020 before the Bombay High Court with a prayer to
set aside the order dated 26.10.2020. The main ground taken by the appellant
was that SRA had to conduct allotment as per the terms of the MoU dated
23.06.2009 by giving preferential allotment to the members of the appellant
society in Towers D, E and F. The Bombay High Court dismissed the Writ
Petition on 22.10.2021 which is the order impugned in this Civil Appeal.
      20. The case of the appellant before the High Court was that once the
Developer and the appellant society had come to a settlement in terms of the
MOU dated 23.06.2009 allotment of flats in towers D, E and F ought to have
been made accordingly, with allotments of these flats only to the members
of appellant society. The appellant, however, failed to show any provision
of law on which this claim was based, particularly when it was a minority
society, which is not even recognised under the law presently applicable, and
was not a part of the SRA scheme. As we have already referred to the relevant
provision of the concerned Regulation where at least 70% of the settlement
dwellers should be on board. The members of the present appellant society
are admittedly much less than 70%. The claim of the appellant was based
entirely on the terms of consent arrived between the Developer and them,
which has no basis in law. This is what the Bombay High Court observed:
     11. It clearly appears that the claim of the petitioner is on the sole basis
     of the consent terms which were executed between the said parties in
     the civil suit filed by the developer. As noted above, the suit between
     these parties was a matter strictly between such private parties which
     would be completely outside the scheme of any slum redevelopment
     being undertaken and as approved under the rules by the SRA. It
     clearly appears that for such reason, the SRA was not made a party to
     the said civil suit. It also cannot be conceived that a developer enters
     into some private arrangement with a parallel society that too which
     is of minority of slum dwellers, can have no bearing on the execution
     of a slum scheme under the rules and regulations of the SRA. Such
     arrangement can never be made binding on the SRA and/or can never
     restrain the SRA from implementing its rules, regulations and circulars
738          SUPREME COURT REPORTS                         [2023] 16 S.C.R.


      which are bind on any developer and/or a slum society undertaking
      the SRA scheme.
      12. Any private arrangement between the petitioner, a society not
      of the majority slum dwellers, and the developer in a civil suit, if
      is recognized, it would certainly bring about a complete chaos and
      uncertainty in regard to the SRA granting permissions to a particular
      slum society and the developer appointed by it, as per the rules, to
      undertake the SRA scheme. Any private arrangement which goes
      contrary to the rules and regulations, governing the SRA scheme
      cannot be recognized in law.”
      The writ petition was hence dismissed and SRA was directed to make
allotment in accordance with Circular no. 162 dated 23.10.2015.
      21. Since the procedure for allotment is at the core of the dispute, it
would be necessary for us to examine the relevant legal provisions governing
the procedure of allotment. Under DCR-1991, Regulation 33(10), Appendix
(IV), Clause 1.8, it is mentioned as follows:
      ‘1.8 Hutments dwellers in category having a differently abled person or
      female headed households shall be given first preference in allotment
      of tenements. Thereafter lots shall be drawn for allotment of tenements
      from the remaining tenements to the other eligible hutment-dwellers
      before grant of O.C. to rehab Building.’
     Even otherwise, the SRA accepted the proposal for implementation
of the Slum Rehabilitation Scheme submitted by the Developer under
Regulation 33(10) and subsequently issued the Letter of Intent (LoI) dated
16.04.2005. Clause 42 of the said LoI provides as follows:
      ‘42. That the allotment of rehabilitation tenements to the eligible slum
      dwellers in the scheme, shall be made by drawing lots in presence
      of the representative of the Asst. Registrar of societies (SRA) and
      statement of rehab tenements allotted to the eligible slum families
      in the rehabilitation building with corresponding tenements No. in
      rehab composite building and Sr. No. in Annexure-II etc. duly certified
      by the concerned society of slum dwellers and Asst. Registrar (SRA)
      shall be submitted before requesting for occupation permission to the
      rehab. tenements.’
 SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 739
      MAHARASHTRA [SUDHANSHU DHULIA, J.]

      The allotment by draw of lots is not an arbitrary order of SRA but this
is the settled procedure, long continuing and in terms of the law. It is also
provided under the Circular No. 162 dated 23.10.2015, that allotment will
be done by draw of lots for all the hutment dwellers.
      22. The case of the Appellants, based entirely on the Consent Terms
executed pursuant to the MoU, had little else to say in its favour. As has
rightly been noted by the Bombay High Court, the consent terms are in
the nature of a private agreement. The Civil Suit was at the behest of the
Developer against individual society members and as we have noted above,
SRA was not made a party to these proceedings. The seemingly ingenious,
yet unfair and even specious method adopted by the Developer in league
with the Appellants to bypass the statutory procedure must be deprecated.
Admittedly, there is no provision in law by which the settlement terms
entered into by two private players can be accepted and followed in violation
of the statutory procedure given in Circular No.162 dated 23.10.2015. We
do not agree with the submissions advanced on behalf of the appellant who
only seeks to enforce a private arrangement arrived at between the Developer
and the appellant in derogation of the procedure laid down by the SRA.
     23. Private agreements cannot be enforced in Slum Rehabilitation
Schemes as against the statutory mandate of the SRA. In the case of Lokhand
wala Infrastructure Pvt. Ltd. and Another v. State of Maharashtra and
others reported in 2011 SCC OnLine Bom 118, the Bombay High Court
had held as follows:
     9. A Slum Rehabilitation Scheme which is implemented under DCR
     33(10) read with Appendix IV does not lie in the realm of a purely
     private contractual agreement. Undoubtedly, the scheme postulates
     a co-operative housing society of slum dwellers. Appendix IV of
     DCR 33(10) clarifies that the provisions will apply to redevelopment/
     construction of accommodation for hutment/pavement dwellers
     through owners/developers/co-operative housing societies of hutment/
     pavement dwellers or by public authorities or by nongovernmental
     organisations within the limits of Brihan Mumbai. The Scheme regulates
     the rights of hutment dwellers, the grant of building permission for a
     Slum Rehabilitation Project, rehabilitation and freesale components
     in the total floor space index, the construction of temporary transit
740           SUPREME COURT REPORTS                         [2023] 16 S.C.R.


      camps, the relaxation in building and other requirements, development
      plan reservations and payments to be made inter alia to the Slum
      Rehabilitation Authority. The Development Control Regulations, it is
      well settled, constitute subordinate legislation enacted with reference
      to the provisions of section 22(m) of the Maharashtra Regional Town
      Planning Act, 1966. Slum Rehabilitation Schemes have a public law
      element.
      10. The execution of Slum Rehabilitation Schemes is impressed
      with a public character. The lands on which the Scheme is sought
      to be sanctioned and implemented may be lands belonging to the
      Municipal Corporation or to the State of Maharashtra or, for that
      matter, its instrumentalities such as the Maharashtra Housing and
      Area Development Authority. The title to the land does not vest in the
      society or in its members at the stage when the Scheme is propounded
      and subjected for sanction. Where it owns the land, the Municipal
      Corporation of Greater Mumbai is the authority responsible for issuing
      a certification of Annexure II containing the list of eligible occupants
      who can participate in the Scheme. The interest of the Municipal
      Corporation as the owner of the land is recognized by conferring upon
      the Municipal Corporation the role of verifying and authenticating
      who are the actual and genuine occupants of the land as on 1 January,
      1995. Public land is sought to be utilized in order to further the object
      of providing dignified accommodation to those living in slums. The
      co-operative societies of slum dwellers and developers through whom
      the Slum Rehabilitation Scheme is sought to be implemented facilitate
      the implementation of the Scheme. The agreements or arrangements
      that may be arrived at between them cannot be treated at par with
      purely private or contractual agreements entered into in respect
      of land belonging to private individuals. The State as the owner of
      the and upon which a slum is situated has a vital public interest in
      ensuring that the object for which the land is utilized subserves the
      purpose of rehabilitation of the slum dwellers. It is in that context that
      diverse provisions are made by the Development Control Regulations
      to regulate every stage of the Slum Rehabilitation Scheme, from the
      submission of the proposals, the evaluation of proposals, scrutiny
      and verification, grant of sanctions and the actual implementation of
 SAYUNKTA SANGARSH SAMITI & ANR v. THE STATE OF 741
      MAHARASHTRA [SUDHANSHU DHULIA, J.]

     the Scheme. Though a dispute between the co-operative society and
     its developer has a private element, it is not as if that a recourse to
     private law remedies is the only available form of redress. The Slum
     Rehabilitation Authority as the authority which is vested with the power
     to regulate the implementation of the Scheme and the owners of the
     land such as the Municipal Corporation or, as the case may be, the
     State Government are vital components in the implementation of the
     Slum Rehabilitation Scheme. Their statutory powers to ensure that the
     Scheme is not misused and is utilized to subserve the public purpose
     underlying the Scheme is not trammelled by private contractual
     arrangements.
                                                          (emphasis supplied)
     [See also: Susme Builders Private Limited v. Chief Executive Officer,
Slum Rehabilitation Authority, 2014 SCC OnLine Bom 4822 at Para 109
and New Janta SRA CHS Ltd. v. State of Maharashtra, 2019 SCC OnLine
Bom 3896 at Para 189]
      24. Moreover, under the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 SRA is the final authority for
implementing a slum rehabilitation scheme. The Bombay High Court has
held in the case of Smt. Usha Dhondiram Khairnar and Others v. State of
Maharashtra and Others reported in 2016 SCC OnLine Bom 11505 that
slum society or private Developer cannot dictate terms to the SRA and it
must act in terms of its own policies and circulars. The following was held
in Paragraphs 24 and 26:
     24. We do not think that the developer and slumdwellers’ society can
     dictate the SRA in such cases and matters. If that is the designated
     authority, then, it must act strictly in terms of its own policy, circulars,
     rules, regulations and the SLUM Act. These are guiding the SRA and
     in ensuring that all such slum dwellers who are languishing in slums
     for decades together and if found eligible are rehabilitated, how the
     rehabilitation package evolved for them has to be implemented and
     worked out, is entirely left to SRA.
     26. We do not allow the SRA to take a decision like this and contrary to
     the principle of natural justice, fairness and equity. If they now intend
742            SUPREME COURT REPORTS                        [2023] 16 S.C.R.


      to withdraw the allotment letters issued to the Petitioners and desire to
      accommodate them in some other scheme nearby, then, that decision
      cannot be reached or allowed to be reached in the manner stated by
      the SRA before us. Equally, the SRA cannot at the instance of any
      developer/owner or society of slum dwellers take a decision contrary
      to its defined and settled policies, circulars, rules and regulations.
      We, therefore, direct that no such decision as is intended to be taken
      now in paragraph no. 7 shall be taken or reached without hearing all
      affected parties and particularly the Petitioners.
                                                         (emphasis supplied)
      25. Thus, SRA has to act in terms of its own policies and circulars
without allowing private or contractual interests to prevail over public policy
especially a policy which is welfare based. Apart from this, it is pertinent to
point out that the Circular No. 162 was issued on 23.10.2015. The appellant
society though has filed two Writ Petitions subsequently in connection with
the procedure for allotment undertaken by the SRA, yet it has not challenged
the validity of Circular No. 162, instead it has sought to impose its private
contractual rights over and above the statutory provisions which as we have
seen above, is not permissible.
      26. Consequently, we dismiss this Appeal and uphold the order dated
22.10.2021 passed by the High Court of Bombay. The order of status quo
on allotment of flats given by this Court on 24.01.2022 is also vacated. The
Slum Rehabilitation Authority is directed to carry out the allotment of flats
in accordance with law. All pending interim applications are disposed of in
terms of the directions contained in the present judgement.
      Considering the conduct of the Developer who has evidently taken
a surreptitious route bypassing the statutory procedure, the SRA would be
failing in its duty if it does not seek explanation from the Developer in this
regard and takes suitable action in accordance with law.


Headnotes prepared by:                                          Appeal dismissed.
Ankit Gyan