High Court of Bombay Hears Appeals Challenging Single Judge’s Order That Set Aside SRA Approval of Developer Change; Maintainability of Writ Petition Under Article 226 Questioned Due to High Power Committee Remedy. Appellants Contend Alternative Remedy Exists Under Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 Following Full Bench in Tulsiwadi Navnirman.

Challenge to maintainability of writ petition against SRA order approving change of developer in slum rehabilitation scheme.

Appellants sought to set aside Single Judge's order that quashed SRA's approval of new developer, and argued that writ petition was not maintainable due to availability of alternative remedy before High Power Committee.

Single Judge had allowed writ petition, setting aside SRA's order; aggrieved society and new developer appealed, contending that writ petition should not have been entertained.

Single Judge of High Court allowed Writ Petition No. 2371 of 2009, setting aside SRA order dated 14-10-2009. SRA had removed original developer (Shivkripa) and approved Om Omega as new developer. Previously, Full Bench in Tulsiwadi Navnirman (2007(6) Mh.L.J.851) held that disputes relating to slum rehabilitation schemes should go to High Power Committee.

Whether the writ petition under Article 226 was maintainable before the Single Judge in light of the alternative remedy available before the High Power Committee as per the Full Bench decision in Tulsiwadi Navnirman (SRA) Co-operative Housing Society Ltd. v. State of Maharashtra? Whether the ratio in Tulsiwadi is impliedly overruled by the Supreme Court in The Secretary Sh.A.P.D. Jain Pathshala v. Shivaji Bhagwat More? Whether the objection as to maintainability was waived by the respondents before the Single Judge?

Appellants contended that the writ petition was not maintainable because the Full Bench in Tulsiwadi Navnirman had mandated that disputes in slum rehabilitation schemes must first go to the High Power Committee, providing an alternative efficacious remedy, and the Single Judge erred in entertaining the petition. Respondent argued that the objection, though pleaded, was not pressed before the Single Judge and was deemed waived; that the Tulsiwadi ratio did not cover quasi-judicial orders under Section 13(2) of the Slum Act; and that the Supreme Court in Jain Pathshala impliedly overruled the Full Bench's direction to create a quasi-judicial High Power Committee, rendering the alternative remedy invalid. In rejoinder, appellants pointed out that the issue of alternative remedy was indeed raised before the Single Judge as evident from paragraph 84 of the impugned order, and that maintainability is a pure question of law which can be raised at any stage; further, special leave petitions against the Tulsiwadi decision had been dismissed by the Supreme Court.

The appellants in the both the appeals are challenging a common order dated 15th April, 2011 passed by a learned Single Judge of this Court in Writ Petition No. 2371 of 2009 whereby the writ petition was allowed in terms of prayer clause (a), thereby setting aside the order impugned in the writ petition. Mr. Kamdar, learned senior counsel appearing on behalf of respondent no.4 at the outset took strong objection to the exercise of the jurisdiction by the learned Single Judge under Article 226 of the Constitution of India despite availability of alternative efficacious remedy to the petitioner. Mr. Grover, learned senior counsel firstly submitted that respondent nos. 4 & 8 are precluded from raising the issue of maintainability of the writ petition at appellate stage, as these respondents had raised the said objection in their affidavit in reply filed in the writ petition, however, same was not advanced before the learned Single Judge, and therefore, they are deemed to have given up the said issue before the learned Single Judge.

Writ Petition No. 2371 of 2009 was filed by Shivkripa Builders & Developers challenging the SRA order dated 14-10-2009 which removed them as developer and appointed Om Omega Investment & Properties as new developer. The Single Judge allowed the writ petition on 15-4-2011, setting aside the SRA order. Aggrieved, the slum society (respondent no.4 in the writ) and the newly appointed developer (respondent no.8) filed Appeal (Lodging) Nos. 286 of 2011 and 300 of 2011 respectively. In the appeals, the court first took up a preliminary objection regarding the maintainability of the writ petition under Article 226 in view of the alternative remedy before the High Power Committee. The court heard arguments on this limited question and reserved orders.

• Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971: Section 13(2)
• Constitution of India: Article 226