Thakur Vs. State of Maharashtra & Ors.  INSC 2248 (19 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7435 OF 2008 (Arising
out of SLP (Civil) No. 3166 of 2007) Pramila Suman Singh .... Appellant Versus
State of Maharashtra and others .....
S.B. SINHA, J.
the Metropolitan Town of Mumbai there exist a large number of Slums. 55 %
population of Greater Bombay does not have authorized shelter. Nearly 2525
hectares of lands in the City are under slums. Lands occupied by slums are
allocated for different users, and are designated, reserved or allotted for
various existing or proposed public purposes in the draft or final revised
Development Plan of Greater Bombay.
rehabilitation of the slum dwellers living in distress the Legislature of
Maharashtra enacted the Maharashtra Regional and Town Planning Act, 1966
(hereinafter referred to as `the 1966 Act') in terms whereof respondent Nos. 2
and 4 are treated to be planning authorities as would appear from Section 2(19)
2(27) defines "regulation" to mean a regulation made under Section
159 of this Act and includes zoning, special development control regulations
and other regulations made as a part of a Regional Plan, Development plan, or
town planning scheme. Grant or refusal of permission for development is
governed by Section 45, which reads thus:- "45. Grant or refusal of
(1) On receipt of an
application under section 44 the Planning Authority may, subject to the
provisions of this Act, by order in writing - (i) grant the permission,
(ii) grant the
permission, subject to such general or special condition as it may impose with
the previous approval of the State Government; or (iii) refuse the permission;
(2) Any permission
granted under sub-section (1) with or without conditions shall be contained in
a commencement certificate in the prescribed form.
(3) Every order
granting permission subject to conditions, or refusing permission shall state
the grounds for imposing such conditions or for such refusal.
(4) Every order under
sub-section (1) shall be communicated to the applicant in the manner prescribed
(5) If the Planning
Authority does not communicate its decision whether to grant or refuse
permission to the applicant within sixty days from the date of receipt of his
application, or within sixty days from the date of receipt of reply from the
applicant in respect of any requisition made by the Planning Authority,
whichever is later, such permission shall be deemed to have been granted to the
applicant on the date immediately following the date of expiry of sixty days:
Provided that, the
development proposal, for which the permission was applied for, is strictly in
conformity with the requirements of all the relevant. Development Control
Regulations framed under this Act or bye-laws or regulations framed in this
behalf under any law for the time being in force and the same in no way violates
either the provisions of any draft or final plan or proposals published by
means of notice, submitted for sanction under this Act:
Provided further that
any development carried out in pursuance of such deemed permission which is in
contravention of the provisions of the first proviso, shall be deemed 3 to be
an unauthorized development for the purposes of sections 52 to 57.
(6) The Planning
Authority shall, within one month from the date of issue of commencement
certificate, forward duly authenticated copies of such certificate and the
sanctioned building or development plans to the Collector concerned."
all Planning Authorities are conferred with power to make Regulations as
envisaged under Section 159 of the 1966 Act.
State of Maharashtra also framed Regulations known as Development Control
Regulations for Greater Bombay, 1991 (DCR).
Relevant portion of
Regulations 5(3) and 33(10), read :- "5. Procedure for obtaining
Development Permission and Commencement Certificate.
accompanying notice. - (i) Key plan, site plan, etc. to accompany notice. - The
notice shall be accompanied by the key plan (location plan), a site plan,
sub-division/lay-out plan, building plan, specifications and certificate of
supervision, ownership, title, etc. as prescribed in clauses (ii) to (xiii)
(ii) Ownership title
and area.- Every application for development permission and commencement
certificate shall be 4 accompanied by the following documents for verifying
the ownership and area etc. of the land :- (a) attested copy or original
sale/lease/power of attorney/enabling ownership document wherever
Rehabilitation of slum dwellers through owners/developers/cooperative housing
-For redevelopment or
restructuring of censused slums or such slums whose structures and in
habilitants whose names appear in the Legislative Assembly voters' list of 1985
by the owners/developers of the land on which such slums are located or by
Cooperative Housing Societies of such slum dwellers a total floor space index
of upto 2.5 may be granted in accordance with schemes to be approved by special
permission of the Commissioner in each case.
Each scheme shall
provide inter-alia the size of tenements to be provided to the slum dwellers,
the cost at which they are to be provided on the plot and additional tenements
which the owner/developer can provide to accommodate/rehabilitate slum
dwellers/project affected persons from other areas etc. in accordance with the
guidelines laid down in the Regulations in Appendix IV."
terms of Regulation 33(10) of DCR, three annexures were prescribed in Appendix
all Planning and Development works were covered under the aforesaid Act,
however, with a view to make better provision for the improvement and clearance
of slum areas in the State and their redevelopment and for the protection of
occupiers from eviction and distress warrants, the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to
as `the 1971 Act') was enacted by the State of Maharashtra. We may notice a few
Sections 2 (hc) of
the 1971 Act reads :- "`Slum Rehabilitation Authority' means the Slum
Rehabilitation Authority or Authorities appointed by the State Government under
Section 2(hd) of the
1971 Act reads :- " `Slum Rehabilitation scheme' means the Slum
Rehabilitation Scheme notified under section 3B "
I-A, however, was inserted by Maharashtra Act 4 of 1996 providing for Slum
3A ; 3B ; relevant part of 3D ; 3 K and 3V read as under :- 6 "3A. Slum
Rehabilitation Authority for implementing Slum Rehabilitation Scheme :- (1)
Notwithstanding anything contained in the foregoing provisions, the State
Government may, by notification in the Official Gazette, appoint an authority
to be called the Slum Rehabilitation Authority for such area or areas as may be
specified in the notification; and different authorities may be appointed for
(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
(2A) Every Slum
Rehabilitation Authority appointed under sub-section (1) shall be a body
corporate by the name of "The.....................
Authority" and shall have perpetual succession and common seal; with power
to contract, acquire, hold and dispose of property, both movable and immovable,
and to do all things necessary for the purposes of this Act, and may sue and be
sued by its corporate name.
(3) The powers duties
and functions of the Slum Rehabilitation Authority shall be, - (a) to survey
and review existing position regarding slum areas ;
(b) to formulate
schemes for rehabilitation of slum areas ;
(c) to get the Slum
Rehabilitation Scheme implemented;
(d) to do all such
other acts and things as may be necessary for achieving the objects of
rehabilitation of slums.
(4) The terms and
conditions of appointment of the non-official members of the Slum
Rehabilitation Authority shall be such as may be specified by the State
(5) The Slum
Rehabilitation Authority may appoint Committees consisting of its members and
experts to facilitate its working and speedy implementation of the scheme
prepared under section 3B."
Rehabilitation Scheme. - (1) the State Government, or the Slum Rehabilitation
Authority concerned with the previous sanction of the State Government, shall
prepare a general Slum Rehabilitation Scheme for the areas specified under
sub-section (1) of section 3A, for Rehabilitation of slums and hutment colonies
in such areas.
(2) The General Slum
Rehabilitation Scheme prepared under sub-section (1) shall be published in the
Official Gazette, by the State Government or the concerned Slum Rehabilitation
Authority, as the case may be, as the Provisional Slum Rehabilitation Scheme
for the area specified under section 3A(1), for the information of general
public, inviting objections and suggestions, giving reasonable period of not
less than thirty days, for submission of objections and suggestions, if any, in
respect of the said Scheme.
(3) The Chief
Executive officer of the Slum Rehabilitation Authority shall consider the
objections and suggestions, if any, received within the specified period in
respect of the said Provisional Scheme and after considering the same, and
after carrying out such modifications as deemed fit or necessary, finally
publish the said scheme, with the approval of the State Government or, as the
same may be, the Slum Rehabilitation Authority in the Official Gazette, as the
Slum Rehabilitation Scheme.
(4) The Slum
Rehabilitation Scheme so notified under sub-Section (3) shall, generally lay down
the parameters for declaration of any area as the slum rehabilitation area and
indicate the manner in which rehabilitation of the area declared as the slum
rehabilitation area shall be carried out. In particular, it shall provide for
all or any of the following matters, that is to say,- (a) the parameters or
guidelines for declaration of an area as the slum rehabilitation area;
(b) basic and
essential parameters of development of slum rehabilitation area under the Slum
(c) provision for
obligatory participation of the landholders and occupants of the area declared
as the slum rehabilitation area under the Slum Rehabilitation Scheme in the
implementation of the Scheme;
relating to transit accommodation pending development of the slum
rehabilitation area and allotment of tenements on development to the occupants
of such area, free of cost.
(e) scheme for
development of the slum rehabilitation areas under the Slum Rehabilitation
Scheme by the landholders and occupants by themselves or through a developer
and the terms and conditions of such development; and the option available to
the Slum Rehabilitation Authority for taking up such development in the event
of non-participation of the landholders or occupants;
regarding sanction of Floor Space Index and transfer of development rights; if
any, to be made available to the developer for development of the slum
rehabilitation area under the Slum Rehabilitation Scheme;
regarding non-transferable nature of tenements for a certain period, etc."
of other Chapters of this Act to Slum Rehabilitation Area with modification. -
On publication of the Slum Rehabilitation Scheme under sub-section (1) of
section 3B, the provisions of other Chapter of this Act shall apply to any area
declared as the slum rehabilitation area, subject to the following
modifications, namely :- ... ..... ......"
"3K. Power of
State Government to issue directions. - (1) The State Government may issue to
the Slum Rehabilitation Authority such general or special directions as to
policy as it may think necessary or expedient for carrying out the purposes of
this Act and the Slum Rehabilitation Authority shall be bound to follow and act
upon such directions.
(2) (a) Without
prejudice to the generality of the foregoing provision, if the State Government
is of 10 opinion that the execution of any resolution or order of the
Authority is in contravention of, or in excess of, the powers conferred by or
under this Act or any other law for the time being in force, or is likely to
lead to abuse or misuse of or to cause waste of the Fund of the Authority, the
State Government may, in the public interest, by order in writing, suspend the
execution of such resolution or order. A copy of such order shall be sent
forthwith by the State Government to the Authority and its Chief Executive
(b) On receipt of the
order sent as aforesaid, the Authority shall be bound to follow and act upon
"3V. Power to
make regulations. - The Slum Rehabilitation Authority may make regulations
consistent with this Act and the rules made thereunder for all or any of the
matters to be provided under this Act by regulation and generally for all other
matters for which provision is, in the opinion of the Slum Rehabilitation
Authority necessary for the exercise of its powers and the discharge of its
functions under this Act."
view of Section 3A Slum Rehabilitation Authority was appointed, which is a body
corporate and having a perpetual succession and common seal. Powers, duties and
functions of the Slum Rehabilitation Authority hae been laid down under the
said Act. Sub-section (1) of Section 3B postulates preparation of Slum
Rehabilitation Scheme while sub-section (2) thereof provides for its
publication in the official Gazette. Such a Scheme attains finality upon
inviting objections and suggestions and upon consideration of the same. Section
3C, however, provides for declaration of slum rehabilitation areas which upon
publication in the official gazette is required to be given wide publicity in
the manner as may be specifically specified by the authority. Section 3D
provides that on publication of the Slum Rehabilitation Scheme the other
provisions of the Act shall apply to any area declared as the slum
rehabilitation area subject to modifications prescribed therein.
Section 13 of the Act
provides for power of Competent Authority to redevelop clearance area in the
manner as stated therein.
The State Government
is empowered to issue directions to the State Rehabilitation Authority in terms
of Section 3K of the Act. Section 3V empowers the State Rehabilitation
Authority to make regulations consistent with the provisions of the Act and the
rules made thereunder for all or any of the matters provided under the Act by
regulations and for all other matters for which provisions are, in the opinion
of the Slum Rehabilitation Authority, necessary for the exercise of its powers
and the discharge of its function.
despite constitution of the Slum Rehabilitation Authority in the year 1977, no
Regulations were framed by it. Policy guidelines, however, were being issued
from time to time keeping in view the aforementioned objective by the State.
The manner of re-development of existing slums occupying lands from residential
commercial, industrial zones and lands reserved/designated/allotted for various
public purposes was divided into seven categories.
Bombay Municipal Corporation, being one of the Planning Authorities, had also
issued circulars in respect of development plan of Greater Bombay for
implementation of lands allocated to the various users designated/reserved by
slums etc. One of such circulars is dated 13th October, 1992 whereby it was
directed that all concerned should comply with the requisitions prescribed in
the said circular before forwarding the proposal for administrative and
financial scrutiny for obtaining the approval of the High Power Committee.
stated earlier, in terms of DCR 33(10), annexures, three in number, were
prescribed in Appendix IV. Annexure-I lays down the format for submitting the
Scheme as per modified scheme. Annexure-II provides for a certificate in
respect of the persons residing in a slum within the purview of the said policy
decision. Annexure-III provides for the details required to be furnished to
assess the financial capability of the `Developer' to execute the SRA Scheme.
X of the DCR prescribes a Form of Notice and the `first application' required
to be filed for development in terms of Sections 44, 45, 58 and 69 of the 1966
Act and erection of a building under Section 337 of the Bombay Municipal
Corporation Act, 1888 wherewith ownership documents and property registered
card were to be annexed.
procedure for submission, processing and approval of Slum Rehabilitation
Schemes, is as under:
"1. All slums
and pavements whose inhabitants' names and structures appear in the electoral
roll prepared with reference to 1-1-1995 or a date prior thereto and who are
actual occupants of the hutments are eligible for the Slum Rehabilitation
2. 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. The following resolution
should be adopted:
electing a chief promoter.
(b) Resolution giving
the chief promoter authority to apply for reservation of name for cooperative
(c) To collect share
capital (Rs 50 per member for slum societies) and Re 1 as entrance fee and to
open account in Mumbai District Central Cooperative/Maharashtra State Cooperative
Bank Ltd. (any branch)
3. The chief
promoter, office-bearers and the members of the proposed Society should collect
the documents such as 7/12 extract and the PR card of the plot on which the
slum is situate. They should then get the plot surveyed/measured and prepare
map of the plot showing slum structures therein with the help of surveyors
attached to the office of Additional Collector (Encroachment) or the Deputy
Collector (Encroachment) of the zone.
4. While undertaking
the survey, they should collect the information of the proposed
members/slum-dwellers and fill up land occupied by the slum-dwellers, number
and type of structures such as residential, industrial, commercial, amenity
structures, etc. and the list of eligible and ineligible occupants and consent
of the slum-dwellers to join the Scheme. Earlier the promoter/cooperative
housing society had to first approach the different competent authorities
namely Additional Collector for the slums on government and private lands and
the land-owning authorities for the slums on different public authority lands,
for obtaining certified Annexure II, before they could put in application for
Slum Rehabilitation Scheme to SRA. As a simplification measure, this procedure
is now discontinued and Annexure II format is now required to be filled by the
promoter/cooperative housing society itself for submitting building proposal to
SRA, so that the scrutiny of the proposal and certification of Annexure II can
start simultaneously. Annexure II needs to be submitted in duplicate. As a
measure of further simplification, Additional Collector (Encroachment) is being
designated as the sole competent authority for deciding eligibility and for
taking eviction action against non-participants in Slum Rehabilitation Schemes.
5. The chief promoter
and the office-bearers of the proposed society should then apply for name
reservation of the proposed cooperative housing society along with the
self-prepared Annexure II and the required resolutions to the Assistant
Registrar of Cooperative Societies. To facilitate this, office of the Assistant
Registrar has been started in SRA itself. It is no longer necessary to approach
different offices of the Cooperation Department for this purpose. The Assistant
Registrar/SRA will issue a letter reserving the name for the proposed
cooperative housing society and permission to open a bank account in the
proposed society's name.
6. While the above
steps are being taken, the decision to search a competent developer to act as a
promoter has to be taken up by the proposed cooperative housing society of
slum-dwellers. The society itself or an NGO/developer/owner can take up Slum
Rehabilitation Scheme as a promoter.
7. The promoter so
chosen has to enter into an agreement with every eligible slum-dweller while
putting up slum rehabilitation proposal to SRA for approval. SRA is in the
process of trying to evolve standard formats for the following four types of
agreements required in the Scheme, with the approval of the State Government.
between the promoter and the slum-dwellers.
rights/agreement to lease between the promoter and the land-owning authority.
(c) Lease agreement
between the land-owning authority and the cooperative society of slum-
(d) Lease agreement
between the land-owning authority and the cooperative society of freesale
8. The promoter has
also to appoint an architect in consultation with the proposed cooperative
housing society of slum-dwellers to prepare the plans of development of the
slum area as per DCR-33(10). It is expected that the architect ensures
community participation in preparation of the building plans. All required
documents such as building plan, layout plan, PR card, etc. along with Annexure
I, Annexure II and Annexure III are to be submitted to SRA by the architect
along with an application for the Slum Rehabilitation Scheme. A checklist of
all such documents required for submission is available in SRA office.
* * *
10. Annexure III is
prescribed to assess the financial capability of the promoter. The items
contained in Annexure III are self-explanatory.
Keeping in view the
sensitivity of this information, it is kept strictly confidential by SRA.
11. After a
pre-security by a designated engineer of SRA, to ensure completeness of the
proposal submitted, so far as documents are concerned, proposals are accepted.
Then a computerised file number is allotted to the Scheme on payment of
scrutiny fees which are charged at half (sic) file number is allotted to the
Scheme on payment of scrutiny fees which are charged at half the rate of the
Municipal Corporation's general building 17 permission fees. Upon acceptance,
the scrutiny of Annexures I, II and III start simultaneously in the Building
Permission Wing, Eligibility Certification Wing and Accounts & Finance Wing
the matter relating to development and redevelopment of slums used to be
carried out by an Authority known as Slum Rehabilitation Authority. The
constitution of the Committee was dependent on the fact as to who was owner of
or about 27th August, 2001 Slum Rehabilitation Authority issued a circular in
terms whereof Architect/Developer or Office Bearer of the Society themselves
were authorized to fill up Annexure-II. But it was subject to scrutiny by the
competent authority. However, approval was to be granted only upon receipt of
certified copy of Annexure-II from the competent authority.
have noticed hereinbefore that an application for redevelopment of the slum
areas could be filed by an owner of the land, non-governmental organization, a
cooperative society of the slum dwellers and/or a developer.
Appellant herein is a
developer while respondent No.6 is a proposed Cooperative Group Housing Society.
Both were entitled to file applications for development scheme of the slum
areas. In terms of the provisions of 1966 Act and the Scheme framed thereunder
Final Plot Nos. 559 and 569 were demarcated. Both the said Final Plots were,
however, tenanted or encroached.
or about 21st October, 1978 an order/Notification was passed/issued under
Section 3(a) of the Slum Development Act declaring the said F.P. No.559 as a
Slum Land. Under the Development Plan for City of Mumbai the said plot was
proposed to be reserved for recreation ground which was later confirmed in the
year 1992 in terms of the final development plan.
claimed ownership of plot No.559 of Town Planning Scheme IV of Mahim Division
admeasuring 5274.30 sq. mts. Out of which 1242.30 sq. mtrs. of land was
acquired by the Municipal Corporation of Greater Bombay. No compensation is
said to have been paid for the said acquisition.
Plot No.569, however, admeasures 9702 sq. mts. Indisputably in the year 1995
respondent No.6 filed an application for development of a part of Plot No.569
measuring 3205 sq. mtrs. of land. On 15th October, 1996 the Bombay Municipal
Corporation granted a `no objection certificate' in its favour in requisite
form i.e. Annexure-II in respect of F. Plot No.569 admeasuring 3205 sq. mtrs.
including the four chawl which were known as Dholkwala Chawl. It gave all the
particulars of eligible Slum dwellers and had granted consent to participate in
Slum Rehabilitation Scheme.
plans submitted by the appellant as also the 6th respondent cover an area of
1081 sq. mtrs. carved out of Final Plot No.569. Scheme of the appellant was in
respect of her F. Plot No.559 and 1081 sq. mtrs. of land from F. Plot No. 569.
also filed an application and obtained a `no objection certificate in respect
of F. Plot No. 559.
on receipt of the said application, Slum Rehabilitation Authority called upon
Bombay Municipal Corporation to clarify whether a certificate as envisaged
under Annexure-II in respect of 32 dwellers of Dholkawala Chawl could be
issued. Bombay Municipal Corporation rejected the said proposal stating that it
had already issued Annexure-II in favour of respondent No.6 and all the 32
names had been appearing therein.
Indisputably a copy
thereof had not been forwarded to the appellant which, as would be noticed
hereinafter, will have some bearing.
again a composite building plan in favour of respondent No.6 was approved on
2nd July, 2005. They were directed to carry out construction activities.
only appellant filed a writ application before the High Court of Judicature at
Bombay which was marked as WP No.397 of 2006 inter alia for directions and/or
orders to the Slum Rehabilitation Authority to consider her proposal, in
accordance with law, for sanctioning the Slum Scheme or issuance of the Letter
of Intent or a Commencement Certificate.
Division Bench of the High Court by reason of an order dated 29th March, 2006
passed in presence of counsel for the parties thereto, directed the Authority
to hear all the parties including respondent No.6 herein and to pass
appropriate orders as per law. No interim order was passed despite the fact
that by that time construction of the building had already commenced.
petition for grant of special leave was filed in April, 2006 against the order
dated 29th March, 2006 which was dismissed by this Court by an order dated 11th
May, 2006 permitting the appellant to obtain interim protection from the High
Court. Pursuant to or in furtherance of the said observation, the appellant
again filed a writ petition before the Bombay High Court bearing Writ Petition
No. 1473 of 2006 for grant of an interim relief. The said writ petition,
however, was dismissed by an order 22nd June, 2006 recording the statement made
by the Authority that a final order on the appellant's application would be
passed within seven days.
Slum Development Authority passed the impugned order dated 28th June, 2006
inter alia on the following grounds :- a) The Petitioner has submitted
Annexure-I of FP No.559 only and not of FP No.569 (Part).
Annexure-III was not certified by Financial Controller, SRA.
submitted photocopy of Annexure-II dated 15.10.was 1996, actually issued to
Bhavani CHS-Respondent No.6 in respect of larger area admeasuring 3205.43 sq.
mts. out of FP No.569 (Part).
d) Asstt. Municipal
Commissioner by letter dated 31.08.2001 informed SRA that fresh Annexure-II
could not be issued in favour of Petitioner qua 1081 sq. mtrs. of FP No.569.
e) SRA has already
approved Slum Scheme on FP No.569 (Part), admeasuring 3205.43 sq. mtrs.
including an area of 1081 sq. mtrs. of 32 structures of Dholakwala Chawl."
the legality of the said order, the appellant filed a writ petition before the
High Court of Judicature at Bombay on 19th October, 2006 which was marked as WP
No.2849 of 2006. In the said writ petition, it was contended that the purported
reasons assigned by the Authority were extraneous and not germane for
considering her application, stating :- "(i) As far as the composite
proposal is concerned, without the portion of F.P. No. 559 which is under R.G.
Reservation which may or may not be submitted for Slum Rehabilitation Authority
in view of a Writ Petition before this Hon'ble Court being Writ Petition
No.1152 of 2002, the Respondents ought to have considered the Petitioner's
proposal for F.P. No.569 entirely and sanctioned the same.
(ii) The Petitioner
has submitted Annexure I with her Architect's communication dated 12th March,
2001 for which there is an acknowledgment from the Respondents.
(iii) As far as
Annexure II is concerned, the Municipal Authorities were asked to issue a fresh
Annexure II by communications dated 8th August, 2001 and 10th August, 2001 to
which the Municipal Authorities have replied on 31st August, 2001 saying that
the portion of 1081 sq.
meters is separate
identifiable portion for which the Petitioner has submitted proposal and
therefore there is no necessity for issuing a fresh Annexure. Thus, this
objection in the order is also erroneous.
(iv) As regards the
non-submission of Financial Statement is concerned, this is factually incorrect
and legally erroneous assertion in 23 as much as on 5th April, 2002 the
Petitioner had submitted the Financial Statement with an undertaking as well as
the certificate from the Chartered Accountant. The apparent grounds therefore
given by the Respondents in the impugned order are imaginary and
Division Bench of the High Court dismissed the said writ application
principally on the following grounds:- a) This is a proxy litigation between
b) SRA has already
sanctioned Slum Scheme in favour of Respondent No.6 ;
c) It is not a fit
case to interfere in the matter by the High Court in its extraordinary writ
jurisdiction under Article 226 of the Constitution so far as the decision taken
by SRA in granting LOI in favour of Respondent No.6 is concerned."
contentions of Mr. Shyam Diwan, learned senior counsel appearing on behalf of
the appellants, are:- (i) That the High Court committed a serious error in so
far as it failed to take into consideration the contentions of the appellant on
merits of the matter as the entire premise on the basis whereof the impugned
order dated 28th November, 2006 was passed, was non existent.
(ii) The High Court
despite noting and recording the submissions of the appellant could not have
summarily rejected the writ petition at the threshold without dealing therewith
at all, particularly in view of the fact that in the earlier writ petition a
direction was issued on Slum Rehabiliation Authority to pass a speaking order.
(iii) That the
grounds stated in the order of Slum Rehabilitation Authority were wholly
untenable as :- (a) Had the order of the SRA in respect of Plot No.569 been
made known to the appellant she could not have filed a separate application in
respect of Plot No. 569.
(b) Appellant having
furnished all the details in regard to her financial capacity and, thus, non
issuance of the financial certificate was an internal matter of the Authority,
whereover the appellant had no control.
(c) The purported `no
objection certificate' granted in favour of respondent No.6 should not have
been found the basis for rejecting the appellant's claim as:- 7 the same did
not create any monopoly in its favour;' 25 7 it should not have been kept
alive for an indefinite period;
7 such a `no
objection certificate' did not have any statutory force; and 7 the date on
which the scrutiny fee was paid should have been considered to be the cut off
date for the purpose of considering the respective applications for grant of
letters of intent.
(iv) The letter of
intent granted in favour of respondent No.6 was violative of the guidelines
issued by the Authority itself which, it was bound to follow.
Shekhar Naphade, learned counsel appearing on behalf of respondent Nos. 2 and
3, on the other hand contended:
(i) Bombay Municipal
Corporation being the owner of the land had a role to play and as `no objection
certificate' had been granted in favour of respondent No.6, which having not
been withdrawn, remained valid.
26 (ii) A composite
Scheme both in respect of Plot Nos. 559 and 569 was not maintainable as the
same would be contrary to the Town Planning Scheme of 1973 which has a
(iii) The Slum
Rehabilitation Scheme must cover either whole plot or part of the plot but a
scheme on two plots was legally impermissible.
(iv) Consent of
Bombay Municipal Corporation having not been sought for and only a query having
been made which was duly replied, it was not legally permissible for the
Authority to allow the application of the appellant.
Arvind V. Savant, learned senior counsel appearing on behalf of respondent No.4
and 5, would submit:
(i) That no objection
certificate having been refused by the Bombay Municipal Corporation in terms of
its letter dated 31st August, 2001 in reply to the Authority's letter dated
10th August, 2001, which having not been challenged, the impugned order should
not be interfered with.
(ii) In terms of
Sections 3A; 3D ; 3K and ; 3 V of the 1971 Act the State and the Slum
Rehabilitation Authority, in absence of any 27 Regulation, were entitled to
issue circulars/policy decisions and guidelines from time to time.
(iii) The copy of the
application produced by the appellant before this Court being not the same, and
furthermore, as from the records it would appear that the requisite annexure
being Annexure II, having been furnished only in respect of final plot No. 559
and not for No. 569, the appellant is not entitled to any equitable relief
being guilty of suppression of fact and/ or misleading the court. As in some
correspondences both plot Nos. 559 and 569 (part) have been mentioned, her
application for both the plots was incomplete.
(iv) Appellant, as
would appear from paragraphs 2.22 and 2.23 of her writ application, was aware
of the letter issued by the Municipal Corporation dated 31st August, 2001 and
hence she is estopped and precluded from contending that she was not aware
(v) In view of the
decision of a Division Bench of the Bombay High Court in Awdesh Vasistha Tiwari
and others v. Chief Executive Officer, Slum Rehabilitation Authority and Others
[2006 (4) Mh. L.J. 282] which has been upheld by a Full Bench of the said Court
in Tulsiwadi Navnirman Co-op. Housing 28 Society Ltd. v. State of Maharashtra
[2007 (6) Mh. L.J. 851], the authority cannot be said to have committed any
illegality in proceeding on the premise that unless the application of the
respondent No. 6 was disposed of, no other or further application can be
(vi) The State
government having laid down the scheme which may not have the force of statute,
the procedures laid down therein were required to be followed.
Mukul Rohtagi, learned senior counsel appearing on behalf of respondent No.6
(i) Appellant being
not the sole owner even of F. Plot No. 559 nor any consent of the Corporation
having been taken, the writ petition should have been dismissed in limine as
the premise on which the same was filed was false.
(ii) The 1971 Act
itself contemplates consent of the owner and in the event the same is not given
, his right has to be acquired in terms of Section 14 of the Act and in that
view of the matter, the appellant has no locus standi to file application
without the consent of the Bombay Municipal Corporation.
29 (iii) All the
persons living in the chawls have since given their consent in favour of
respondent No.6 and they being in the transit camp for more than three years,
this Court should not interfere with the impugned judgment.
construction having come up and the FSI available in respect of 1081 sq. meters
having already been consumed, no further area is available for construction of
any building at present.
Pravin H. Parekh learned senior counsel appearing on behalf of the impleaded
respondent would urge:- (i) The application required to be filed being only in
respect of 1081 sq. meters which having not been complied with by the
appellant, the same had rightly been rejected by the Authority.
herself having filed the application in respect of Final Plot No. 559 in the
year 1994 and having not taken any step to raise constructions for a long time
is estopped and precluded from contending that respondent No.6 should have 30
taken steps to raise construction after obtaining no objection certificate from
the Bombay Municipal Corporation in 1996.
(iii) Assuming that
the said no objection certificate of 1996 could not have been given effect to,
in view of the fact that the respective applications filed by the applicant and
respondent No.6 being for different areas and contained different schemes, the
Authority cannot be said to have acted arbitrarily or unfairly.
indisputably filed a composite application for development of a slum area, that
is, both for plot No. 559, of which she is said to be the owner, and plot No.
of Mr. Rohtagi that she has made incorrect averments as regards ownership of
plot No. 559 in her writ application as the sale deed executed in respect of
the said plot being in the name of Subhash Venkatrao Rajurkar, Asgarali
Abdulhusain Jariwal and Roshan Meher Singh son of the appellant is not of much
significance. It is true that her son was a co-owner along with two others.
However, the co-owners, viz., Subhash Venkatrao Rajurkar and Asgarali
Abdulhusain Jariwal by affirming affidavits declared that the said property in
its entirety belonged to the appellant as a sole and absolute owner. What would
be the legal position in regard thereto is a question which need not be gone
into by us herein. We are not dealing with a suit relating to declaration of
title. The said Subhash Venkatrao Rajurkar and Asgarali Abdulhusain Jariwal
have not filed any suit. They have not denied or disputed the title of the
appellant. Suffice it to say that the title of the appellant has been accepted
by the authority as it in its impugned order dated 28th June, 2006 expressly
recorded that she is the owner of final plot No. 559 "as per entries in
the Survey Register of Island City of Mumbai".
Appellant has also
been shown to be the owner in the property for final plot No. 559 maintained by
the Superintendent of the Land Records.
the purpose of determining the said question, the appellant must be held to
have disclosed the entire facts with sufficient particulars in the manner in
which she claimed herself to be the owner thereof in paragraphs 2.5, 2.6, 2.11
and 2.12 thereof. Pleadings, as is well known, must be read as a whole. In any
event, the absence of title or non-ownership is not a ground on which the
appellant's application was rejected by the Authority or by the High Court.
of Mr. Naphade that the owner of a plot even in terms of the slum
rehabilitation scheme vis-`-vis Development Control Regulations (DCR) has a say
in the matter is not necessary to be determined finally.
Prima facie, however,
the scheme does not say so. It is also difficult to pronounce finally upon the
question as to whether Regulation 5(3) read with Regulation 33(10) in a
situation of this nature would be attracted.
5(3) is a general provision which mandates disclosure of ownership in regard to
the plot on which permission for development is sought for. It is possible to
contend that the slum development scheme, however, stands on a different
footing. Even assuming that it was obligatory on the part of the authority to
insist upon a no objection certificate from the owner of the land in respect
whereof our attention has not been drawn to any statutory provision, the letter
dated 15th October, 1996 cannot be said to be a no objection certificate. The
said certificate has been issued by a Ward Officer. It has not been shown that
the Ward Officer was competent to issue such a certificate.
absence of any statutory provisions in terms whereof the Corporation or for
that matter any owner of the land was required to issue no objection
certificate, we do not find any reason to arrive at a conclusion that the same
amounts to a no objection certificate which was required to be obtained in
terms of the statutory provisions. What is meant by such a no objection, in our
opinion, should be considered from the point of view that the BMC as a planning
authority at the relevant point of time gave its consent to carry out the
rehabilitation project. If there was any impediment whether statutory or
otherwise, it was entitled to raise an objection in regard thereto as for
example, provision for sewarage was to be maintained therefrom.
provide for exemption from compliance with various other requirements such as
mandatory open spaces, dimension of structure, etc. Regulation 33(10) which is
applicable to such a scheme does not require that an application for
development of a plot must be accompanied by documents verifying the ownership
of the plot, as the key requirement thereof is consent of 70% of the eligible
slum dwellers who may be rank encroachers.
Appendix X, Annexure I does not require production of documents of ownership of
the title. What is required is disclosure as regards the identity of the owner
of the property as per property records maintained by the City Survey Office.
Even deed of lease is required to be executed within a period of sixty days as
would appear from Para 1.11 of Appendix IV.
of Mr. Diwan that Section 14 of the Act providing for acquisition of land may
not be held to be applicable in relation to a slum development scheme need not
go into. A larger question, viz., whether by reason of the circulars issued by
the State Development Authority which admittedly do not have the force of the
statutes, a valuable constitutional right of property, as adumbrated under
Article 300A of the Constitution of India can be taken away, would have to
necessarily be gone into therefor.
Validity of a
circular or scheme providing for grant of a mandatory lease by the owner of a
land for a period of thirty years may have to be considered in the light of the
constitutional scheme in an appropriate case.
a provision, however, ex facie appears to be a mandatory one.
The owner has no
choice. He does not make an option. If for obtaining owner's consent, no
provision exists, keeping in view the fact that the 1971 Act and the scheme
applied to the entire State of Maharashtra, the legality of Regulation 5(3)
only in respect of the Greater Bombay, may have to be considered. However, as
at present advised, we need not pronounce our opinion in this case.
certificate dated 15th October, 1996 (Annexure II) was, as noticed
hereinbefore, issued by a Ward Officer, which reads as under:
"Hence, as far
as G/North Ward Office is concerned, there is no objection to permit the
redevelopment of the portion occupied by the locality known as Nikamwadi,
Dholakawala Chawl and part of Buddha Christianwadi at T.P. Reserved Final Plot
No. 569 T.P.S. IV (M) after fulfilling the Town Planning/ Development Plan
Ward Officer was merely performing his duties. He has no authority to grant a
no objection certificate on behalf of the Corporation. At least no provision in
relation thereto has been brought to our notice. It merely contains a general
verification of the eligibility of the occupants intended to be covered by the
Slum Rehabilitation Scheme. This takes us to the question as to whether it was
obligatory on the part of the appellant to challenge the validity of the order
dated 31st August, 2001.
of the appellant is that the same had not been communicated to her. It might
not have been communicated to her, but whereas there may be some justification
therefore. She did not refer thereto in her first and second writ application,
but, even in the third writ application, she did so as would appear from the
statements made in paragraphs 2.22 and 2.23.
said letter was written in response to the authority's letter dated 10th
August, 2001, the relevant part whereof reads as under:
enclosed a copy of Slum Rehabilitation Authority letter No.
SRA/Eng/636/GN/PL/LOI, dtd 8/8/2001. You have already issued Ann-II on the F.P.
Nos. 569 (pt) for 186 slum dwellers on 15/10/96 in favour of Bhavani CHS (P).
However, Architect Subhash V. Rajurkar through developer Smt. Pramila Singh has
submitted S.R. Scheme for the slum dwellers on F.P. No. 559 which includes 44
slum dwellers on F.P. No. 569 (Pt) which belongs to MCGM. These 44 slum
dwellers have given consent in favour of the developer Smt. Pramila Singh. You
are therefore requested to consider issue of Ann - II in respect of those 44
slum dwellers as early as possible.
Dy. Collector Slum
Rehabilitation Authority Copy to the Executive Engineer, SRA (IV) with a
request to communicate whether there is any S.R. Scheme with ref. to the Ann -
II earlier issued by the Ward Officer on 15/10/96."
Corporation in its letter dated 31st August, 2001 stated:
SRA/297/EE/2001/Dy. Collr. dated 10.8.2001.
Sir, 37 With respect
to above subject matter and reference, I have to inform you that this office
has already forwarded Annexure II for Bhavani CHS (P) at F.P. No. 569(Pt.) to
your office on 15/10/1996. These occupants as stated in your above reference
letter were already accommodated in the above proposed society. Hence issuing
of fresh Annexure II does not arise.
However, you may
contact Chief Engineer (D.P.) City for advise in the matter please."
would assume that in view of the purported simplification of the procedure,
such an annexure was required to be filed along with the application, subject
of course to the scrutiny thereof. It was required to be verified. It was
refused to be done on the plea that Annexure II had already been issued in
favour of the respondent No. 6 as far back on 15th October, 1996. Admittedly,
whereas the application for development of slum area filed by the respondent
No. 6 was in respect of a part of Plot No. 569 admeasuring 3205 sq. mtrs. out
of more than nine thousand square feet, the application filed by the appellant
was a composite application both for plot Nos. 559 and 569 (part). Appellant
herself contended that whereas 70% of the inhabitants of the slum including the
four chawls aforementioned hailed from the other part (i.e. part other than
area in question admeasuring 1081 sq. m.), the consent given by the slum
dwellers in her favour were the inhabitants of the four chawls only. If the
appellant was aware of the refusal on the part of the Corporation to carry out
its obligation under the Scheme, i.e., to verify Annexure II, which for one
reason or the other, had been refused to be carried out, in our opinion, it was
necessary for her to question the validity thereof.
Interpretation of Mr.
Diwan that by reason of the said letter only the Corporation has refused to
verify the occupancy position for the purpose of the Slum Rehabilitation Scheme
and, thus, was not required to be challenged, cannot be accepted. The authority
was aware of the said letter of the Ward Officer dated 15th October, 1996. It
was in that view of the matter, a request was made to communicate as to whether
there had been any other Slum Rehabilitation Scheme pending for consideration
with reference to the Annexure II which had been issued earlier by the Ward
Officer, i.e., on 15th October, 1996. It was in the aforementioned context
further verification was required to be made. Verification was, therefore,
required to be made. Consent, as noticed hereinbefore, was given by the
inhabitants of the slums in respect of the said 1081 sq. m of land only.
Their consent had not
been obtained by the respondent No. 6. The schemes propounded by the appellant
and the respondent No. 6 were different ones.
Only a part of the
scheme, viz., 1081 sq. m. of land was common. It was substantially different in
material particulars. In that view of the matter, in our opinion, it was
necessary for the appellant to question the validity thereof.
II may not have any statutory force but when guidelines were issued, an
application for grant of sanction for development of a slum area was required
to be in conformity with the said guidelines, unless the same is found to be
ultra vires. No law contrary to the guidelines has been pointed out to us.
leads to the question as to whether the appellant filed Annexure I in respect
of plot No. 569 (part). The document which has been filed before us being a
copy of the application shows that the appellant in her application dated 12th
March, 2001 annexed Plan of F.P. 569 (Part) as Item No. 7 and Annexure I for
plot No. 569(Part). One of the grounds on which the appellant's application was
rejected was that Annexure I for Plot No. 569 (part) had not been supplied.
Before us the original record had been produced. We have verified the same. In
the original, such an annexure had not been given. Even we have seen the
requisite annexure. It was only in respect of plot No. 559 and not for 569.
Some explanation had been sought to be offered that a copy was produced later
on and in the office copy of the forwarding letter an endorsement had been
made. The items mentioned at Item Nos. 8 and 9 in the original appeared after
the words "thanking you". Ordinarily, they could have formed part of
the original application. Even otherwise enclosure of such an annexure was not
mentioned in the original letter. It is true that in various other documents
annexed with the said application, both the plots were mentioned.
Presumably, only on
that basis, the officers of the authority in their correspondences either with
the appellant or with the Corporation referred to both plot Nos. 559 and 569
(part) as would appear from their letters dated 8th August, 2001 and 10th
cannot be any doubt whatsoever that in their aforementioned letters both plot
Nos. 559 and 569 had been mentioned but it must have been done on the basis of
the other documents available on the record and not on the basis of Annexure
II. It is not the case of the appellant that in fact a separate Annexure II had
been enclosed with another letter at a different point of time. Prior to 8th
August, no such statement was made.
We having satisfied
ourselves that the appellant did not annexe Annexure II in respect of plot No.
569 (part) along with her original application, we do not find any legal
infirmity in the authority's impugned order dated 28th June, 2006.
therefore, although may accept the contention of Mr. Diwan that the second
reason assigned in support of the said order dated 28th June, 2006 that
financial capability of the appellant had not been certified by the Financial
Controller of the SRA as not correct, we have no other alternative but to
uphold the said order. In this view of the matter, it is not necessary for us
to consider other and further contentions raised by the parties hereto
including the observations made by the Division Bench of the High Court in
Awdesh Vasistha Tiwari (supra) and Tulsiwadi Navnirman Co-op. Housing Society
in paragraph 2.16 of her writ application referred to the permission of the
Deputy Commissioner himself to grant necessary sanction for retaining 1081 sq.
m. of land appurtenant to final plot No. 569 (part).
is of some significance to note that the Corporation in paragraph 8 of its
counter affidavit before this Court and the Authority also in paragraph 3(c) of
its affidavit in reply dated 7th May, 2007 categorically stated in regard to
the legal effect of the said communication dated 31st August, 2001.
Paragraph 8 of the
counter affidavit of the Corporation reads as under:
"8) I say that
the petitioner further by her letter dated 1/8/2001 claims the redevelopment of
only part portion admeasuring 1081 sq. mtrs. of F.P. No. 569 and has requested
to issue 42 N.O.C./Annexure for 44 Slum Dwellers. The S.R.A. vide its letter
dated 10.8.2001 requested the Asst. Municipal Commissioner, G/North Ward to
consider the issue of those 44 slum dwellers on F.P. No. 569(part) belonging to
MCGM which are intended to be included in proposal on F.P. 559 submitted by the
Petitioner. I say that this Respondent had rejected the application of
Petitioner for Annexure II on 31.8.2001, on the grounds that these 44 slum
dwellers on F.P. No. 569 belonging to MCGM are already included in Annexure II
of Bhavani Co-op. Housing Society of F.P. No. 569(part), which is annexed at
Exhibit - `P' page 82 of the writ petition No. 2849 of 2006 and it appears that
the same has not been challenged by the petitioner till this date. It is
incidentally necessary to mention that carving out the area of the 4 chawls
situated on F.P. No. 569 would amount to sub division of F.P. No. 569."
did not traverse the said allegation that she had knowledge thereabout. She
merely raised legal contentions stating:
"8. In reply to
this paragraph it is respectfully submitted that it is partly a matter of
record and it is further submitted that these respondents have wrongly rejected
the request of the SRA to issue Annexure - II in respect of the occupants of
the four chawls as the Annexure - II issued on 15.10.1996 was just a list of
Slum Dwellers as the area covered under it was not declared as Slum. It is
further submitted that the contention of the Respondent No. 2 and 3 that
carving out the area of four chawls situated in F.P. 569 would amount to sub
division of F.P. NO. 569 is defeater by their own act of sub dividing area
admeasuring 3205 sq. meters in an odd shape out of the total area of 9702 sq.
meters which is the total area of F.P. 569.
43 The Respondent
No. 2 and 3 have been a party to such a Sub Division as per the Annexure P-28
annexed with the reply to counter affidavit of Respondent No. 6. It is further
submitted that otherwise also in any case carving out the four chawls situated
on F.P. No. 569 would not amount to sub division because of said four chawls
are separate entity as other areas which separate names and entities as
Jalanwadi, Budha Christian Wadi, Ram & Shyam Wadi and Nikam Wadi which are
part of F.P. 569 and have segregated themselves and are redevelop independently
as per the wishes of the occupants."
it does not appear that any contention, as has been sought to be raised before
us, in regard to the interpretation of the said letter dated 31st August, 2001
was advanced before the High Court. The aforementioned averments also clearly
show that a specific stand had been taken both by the Corporation as also by
the Authority that the scheme in respect of 1081 sq. m. of plot No. 569 was not
viable. Such a contention having although not been raised before the High
Court, this Court is not precluded from considering the said question.
the scheme is final and binding upon everybody, merger of the plots is
impermissible. Appellant does not deny or dispute that having regard to the
order passed by the High Court in plot No. 559 was reserved for recreational
purposes, and, thus, the authority could not have granted any permission for
development of that plot. Appellant being a developer was surely aware of the
aforementioned order of the High Court. Even if she did not know thereabout,
her contention that she was ready and willing to develop the 1081 sq. m.
occupied by the chawls independently could not have been considered by the
Authority for more than one reason, firstly, because such an application was
not before the authority; secondly, because her application was stated to be a
composite application; and thirdly, because another application in respect of
the said land had already been pending.
the reasons aforementioned, it is also not necessary for us to consider as to
whether in the aforementioned situation, the appellant is entitled to any
equitable relief vis-`-vis the respondent Nos. 6 and 7.
parting with the case, we must observe that we agree with the submission of Mr.
Diwan that in a case of this nature, the High Court was required to go into the
merit of the matter and should not have decided such issues only on the ground
of lack of locus standi of the appellant to maintain the writ application. She
had the requisite locus standi. Her writ application, thus, deserved consideration
on merit but as we have ourselves gone through the entire records and heard the
learned counsel for the parties at length, it is not necessary for us to remit
the matter to the High Court.
Mr. Diwan is further
correct in his submission that the authority having a statutory status should
have considered the application filed by the appellant at an early date. We
fail to understand that if the policy of the State as also the authority was to
see that slum dwellers should be rehabilitated and all modern facilities are
made available to them so as to make the city of Bombay a planned one, why the
respondent No.6's application was kept pending since 1995 and it was permitted
to deposit the scrutiny fee only in the year 2004, i.e., much after the scrutiny
fee deposited by the appellant. It is also beyond our comprehension as to why
no action had been taken against the respondent No.6 by the Municipal Authority
for its inaction for such a long time. If the scheme was to be implemented with
sincerity as the policy decision professes, it was imperative for all the
statutory authorities to take appropriate action within a reasonable time.
Keeping in view the
fate of a large number of people, hanging for a long time at the hands of the
statutory authority, the same itself may be held to be unreasonable so as to
attract the wrath of Article 14 of the Constitution of India. The Municipal
Corporation also does not appear to be correct in its stand that Annexure-II
issued in favour of the Respondent No.6 amounted to a `No Objection
Certificate' and if that be so, the law as it then stood, the question of
issuance of such certificate at that point of time so as to bind it for all
time to come evidently was not comprehended there under. In any view of the
matter such a no objection certificate does not and cannot be permitted to
remain operative for a long time. It was in the aforementioned backdrop that
the authority also should have made all endeavors to dispose of the appellant's
application forthwith. As the appellant's application was defective as has been
found to be and as it has been contended that the same could not have been
taken into consideration, we fail to understand why the same could not have
been rejected at the threshold. There is absolutely no reason as to why prompt
action could not be taken by the authority. If a person is not entitled to a
relief he should be informed thereabout at an early date so that if aggrieved
thereby he can take recourse to the remedies available to him in law.
We also fail to
appreciate as to why in the earlier round of litigation, the authority could
not have explained its position so that filing of the second and third writ
petitions before the Bombay High Court as also the SLP preferred before this
Court by the appellant could have been avoided.
These acts of
omission and commission on the part of the planning authorities clearly go to
show that a well thought out regulation so as to meet these contingencies is
imperative. We hope and trust that the authority shall bestow its serious
consideration in framing an appropriate regulation in terms of 1971 Act as
expeditiously as possible.
therefore, agree with the judgment of the High Court, albeit for different
reasons. Appeal is dismissed. No costs.