M/S.Veena Corp.
Thr.Rajan Babulal Mehta Vs. Ashok Arjanbhai Jolia & Ors. [2009] INSC 565
(19 March 2009)
Judgment
CIVIL APPELLATE
JURISDICTION SPECIAL LEAVE PETITION (C) NO.15843 OF 2008 M/s Veena Corp.
Through Rajan Babulal
Mehta ...Petitioner Ashok Arjanbhai Jolia & Ors. ...Respondents
ALTAMAS KABIR,J.
1.
This
special leave petition arises out of steps taken by the Municipal Corporation
of Greater Mumbai to remove 11 structures on Kulupwadi Road, Borivali (East),
which were allegedly causing a traffic bottleneck. Out of the 11 structures 9
were demolished on 12th February, 2001. One of the structures, however,
occupied by Ganesh Flour Mill 2 could not be removed on account of BCCC Suit
No.907 of 2001 filed by the said flour mill. Since the structures in question
were situated in a slum area, wherein there was a Slum Rehabilitation Authority
(S.R.A.) Scheme in respect of CTS Plot Nos.545 and 546 and the construction of
an SRA building was also going on, the Assistant Municipal Commissioner
concerned wrote to the Executive Officers of MHADA, with a copy to the Deputy
Collector (SRA), to confirm the status of the owners of the two structures and
to provide them suitable alternate accommodation in the said SRA Scheme by
instructing the Developer accordingly.
The Developer, M/s.
Veena Corporation, is the petitioner in this Special Leave Petition.
2.
On
2nd July, 2001, the S.R.A. confirmed the status of the respondent Nos.1 and 2
herein, who were allegedly running the above-mentioned flour mill, as being
eligible for a residential-cum- commercial allotment. As respondent Nos.1 and 2
were dissatisfied with the decision of the S.R.A., 3 they filed Writ Petition
No.2213 of 2002 before the Bombay High Court claiming that in lieu of the areas
which were under their occupation, they were entitled to two commercial units,
one for the flour mill and the other for a godown. The said writ petition was
rejected on the finding that the said respondent Nos.1 and 2 were entitled to
one unit equal to the total area under their occupation as a
commercial-cum-residential unit. Their claim for two commercial units was,
therefore, disallowed.
3.
In
Appeal No.225 of 2003 filed against the order of the learned Single Judge, the
Division Bench granted leave to the respondent Nos.1 and 2 herein to make an
appropriate application to the S.R.A., who were directed to consider afresh as
to whether the respondent Nos.1 and 2 were entitled to use the
residential-cum-commercial premises to run the flour mill. The S.R.A.
reconsidered the matter and reiterated the earlier position holding that the
applicants were eligible for one commercial structure only since the same were
not used for 4 residential purposes so as to make the occupants eligible as
slum dwellers to have a residential unit. Thereafter, Writ Petition No.990 of
2004 filed by the respondent Nos.1 and 2 challenging the decision of the S.R.A.
dated 12th December, 2003 came to be disposed of on 27th July, 2006, by the
following order :- "The learned counsel appearing for Petitioners states
that they give up their challenge to the order impugned in the Petition because
by that order, it is clearly recorded that the premises where the Petitioners
were running a flour mill has been found to be of 275 sq. ft. area and the
Petitioners have also been found running flour mill in those premises.
The statement is
accepted. The learned counsel appearing for Respondents states that according
to the relevant regulation, the petitioners would be entitled to 225 sq. ft. of
structure for running their flour mill free of cost and additional area of 50
sq. ft. on payment as per the regulation, if they make an application to the
Chief Executive Engineer, S.R.A. for that purpose. The statement is accepted.
The learned counsel
appearing for Respondent No.1 states that in case such an application is made
by the Petitioners within a period of four weeks, the respondent No.1 shall
consider it in accordance with law and pass orders thereon in accordance with
law within a period of four weeks from the date of receipt of the application.
The statement 5 is accepted. In view of these statements, Petition is disposed
of. Rule is discharged with no order as to costs. In case the petitioners make
an application, the Respondent No.1 shall grant personal hearing to the
Petitioners before disposing of that application."
4.
In
March, 2007, the petitioner herein (the promoter) constructed a wall blocking
the spot in the property which was suitable for construction of the flour mill,
the respondent Nos.1 and 2 herein raised a protest upon which the S.R.A.
amended the plan and indicated the benefit to which the respondent Nos.1 and 2
would be entitled.
Although, this was
done on 14th June, 2007, no further steps were taken by the petitioner herein
or the authorities of the S.R.A. to implement the amended plan.
5.
The
respondent No.1 thereupon made a representation to the Chief Executive Officer
on 2nd August, 2006. Since despite a hearing having been given, no orders were
passed on the representation, 6 the respondent Nos.1 and 2 filed a Contempt
Petition on 28th March, 2007. The same was dismissed on 26th September, 2007,
upon the finding that the order passed on 8th April, 2005, wherein it had been
found that the respondent Nos.1 and 2 were entitled to a commercial premises
measuring 225 sq. ft. which had been handed over by the petitioner herein to
the S.R.A. for being made over to the respondent Nos.1 and 2, had been
suppressed when Writ Petition No.990 of 2004 was disposed of.
6.
Subsequent
to the dismissal of the Contempt Petition, the respondent Nos.1 and 2 filed
Writ Petition No.2298 of 2007 on 9th October, 2007, challenging the
letter/order passed by the S.R.A. on 14th June, 2007 in response to the letter
dated 8th February, 2007, written on behalf of the petitioner herein with
regard to the proposed amended plan of the composite building of the S.R. Scheme
on the plots bearing CTS Nos.545, 545/1 to 30, 546, 546/1 to 5 of village
Kanheri, Kulupwadi, 7 Borivali (East), Mumbai, wherein the petitioner was
directed to comply with certain conditions.
7.
Although,
since according to the petitioner the conditions contained in the letter/order
of 14th June, 2007, could not be complied with, the Division Bench by its order
dated 13th March, 2008, impugned herein, directed the S.R.A. to act and ensure
that the amended plan is fully implemented and the entire area measuring 225
sq. ft. was constructed and delivered to the respondent Nos.1 and 2 herein
within a period of 8 weeks from the date of the order. While passing the
impugned order, the High Court made it clear that the respondent Nos.1 and 2
herein would have to comply with the provisions of the law while obtaining
requisite licences from the competent authorities.
It was also made
clear that the High Court was passing its order to resolve the limited
controversy that the respondent Nos.1 and 2 were entitled to the commercial
space which would have to be constructed in accordance with the plan 8
sanctioned by the S.R.A. within the period indicated in the order.
8.
After
the said order was passed, the petitioner/promoter was served with a letter
written by the S.R.A. on 2nd April, 2008 requesting the petitioner to submit a
plan for the flour mill with an area measuring 225 sq. ft. It is the
petitioner's case that instead of challenging the directions contained in the
order of the Division Bench of the High Court passed on 13th March, 2008, the
S.R.A. was forcing the petitioner to implement the directions, which were
contrary to the statutory provisions and the Building Rules. It is also the
grievance of the petitioner that the Division Bench of the High Court had, by
its impugned order, ignored all the facts and had directed the S.R.A. to
construct the flour mill on the compulsory open space which would have the
effect of blocking the access of the society members in contravention of the
provisions of the Bombay Municipal Act, the Building Rules and the 9 Slum
Rehabilitation Scheme and in the process was also compelling the petitioner to
make such unlawful construction.
9.
It
is on account of being aggrieved by the said directions of the Division Bench
of the Bombay High Court in Writ Petition No.2298 of 2007, that the present
special leave petition was filed by the petitioner herein.
10.
Appearing
for the petitioner, Mr. Shekhar Naphade, learned Senior Advocate, submitted
that Writ Petition No.2213 of 2002 filed by the respondent No.1 for a
determination that he was having two commercial places, a flour mill and a godown,
was dismissed on 9th September, 2002. The appeal preferred against the order
dated 9.9.2002, being A.O. No.225 of 2003, was in its turn disposed of on 17th
June, 2003, with leave to the respondent No.1 to make an application to the
S.R.A., which was directed to consider the said application within a period of
eight weeks after giving an 10 opportunity of personal hearing to the
respondent No.1. He then referred to various orders passed by the S.R.A., as
also the High Court, and the counter-affidavit filed on behalf of the S.R.A. in
which it had been stated that the respondent Nos.1 and 2 were jointly held to
be eligible under the Scheme for a portion of the structure for commercial use
as per the order passed by the Chief Executive Officer, S.R.A. on 10th
December, 2003, under the Slum Rehabilitation Scheme. Thereafter, pursuant to
the said order and after the order passed by the High Court in Writ Petition
No.990 of 2004 on 27th July, 2006, the petitioner-Developer had submitted the
amended plan for the flour mill and had requested that approval be given to the
same. The said plans were, thereafter, approved by the S.R.A. according to the
provisions of Clause 6.24 of the amended DRC-1991 Rule 33(10) read with
Appendix-IV. The petitioner then applied for Commencement Certificate as per
the approved plans.
It was not,
therefore, for the petitioner to challenge the amended plans which had been
approved 11 by the S.R.A. on the petitioner's own submissions.
In the said
counter-affidavit, it was also stated that the amended plan submitted by the
petitioner was for an independent ground floor structure and an application was
also made by the petitioner- Developer for condonation of the open space
deficiency to allow the structure to touch the compound wall. It is on such
application that the open space deficiency of 100% on 3 sides of the structure
for independent commercial structure was allowed by the S.R.A. in accordance
with the powers vested in the Authority under the amended Sub- regulation 6.24
of Rule 33(10) of DCR-1991.
11.
Mr.
Naphade drew our attention to paragraph 9 of the counter-affidavit where it had
been submitted by the S.R.A. that under the amended provisions of Rule 51(xvi)
of DCR-1991 operation of a flour mill is permissible in a residential zone if
it is in a single-storeyed detached structure or semi-detached structure and it
was on such account that the S.R.A. had sanctioned a single detached 12
structure for the flour mill as per the amended plan submitted by the
petitioner. Mr. Naphade also drew our attention to the statement made by the
S.R.A. that since no space was available in the complex for construction of a
structure to house the flour mill as the rehabilitation building had already
been constructed as per the revised plan, the S.R.A. had no option but to
sanction the amended plan for the flour mill on the available open space on the
application made by the petitioner to protect the interests of the eligible
slum dwellers.
12.
Mr.
Naphade submitted that although Regulation 6.24 of the Development Control
Regulation for Greater Mumbai, 1991, had been relied upon to justify the
approval of the amended plans in relaxation of the Building Rules, the said
provision was not intended to relax the said Rules in order to cover a
situation like the present one.
Since the said
Regulation has a bearing on the 13 facts of this case, the same is reproduced
hereinbelow :
"6.24 In order
to make the Slum Rehabilitation Scheme viable, the Chief Executive Officer of
Slum Rehabilitation Authority shall be competent to make any relaxation
wherever necessary for reasons to be recorded in writing."
13.
Mr.
Naphade contended that the petitioner was being asked to make a construction
which was in contravention of the Building Rules and the orders and directions
issued in that regard were liable to be quashed.
14.
From
the submissions of the learned counsel for the respective parties it is evident
that the scope of the Special Leave Petition is very limited and is confined to
the question as to whether having applied for and obtained sanction of the
amended plan from the SRA for rehabilitating the flour mill of Respondent 14
Nos.1 and 2, the petitioner can object to raising the construction as per the
amended plan upon contending that the same was contrary to the Building Rules
and was not, therefore, capable of being acted upon.
15.
The
fact situation in this case is quite simple. Upon adjudication by the SRA it
has been established that the Respondent Nos.1 and 2 were eligible for a
residential-cum-commercial structure measuring 275 sq.ft. under the Slum
Rehabilitation Scheme for CTS Plot Nos.545 and 548 of village Kanheri Kulupwadi
Road, Borivali (East), Mumbai.
It appears from the
submissions made on behalf of the petitioner that a space measuring 225 sq.ft.
had been kept apart
in the main structure for the Respondent Nos.1 and 2 and possession thereof had
been made over to the SRA, but since the same was not conducive to the
operation of a flour mill in terms of the Building Rules, the same had remained
vacant and a direction had been given to provide the Respondent Nos.1 and 2
with a structure 15 detached from the main structure for running the flour
mill, in keeping with the Building Rules.
16.
It
has been brought to our notice that under the amended provisions of Rule
51(xvi) of DCR, 1991, operation of a flour mill is permissible in a residential
zone if it is being operated in a single-storyed detached structure or a semi-
detached structure. In view of the above, an amended plan was submitted by the
petitioner to the SRA for sanction of a detached structure which was situated
in a portion of the area meant to be kept as open space, upon relaxation of the
Building Rules. Despite recognition of their right to be provided with at least
225 sq.ft. for operation of their flour mill within the SRA Scheme relating to
Plot Nos.545 and 548, Kulupwadi Road, Borivali (East) and sanction having been
granted to the amended plan, till today such space has not been provided to the
said respondents on one pretext or the other. The eligibility of the said
respondents for being included in the said scheme was decided 16 by the SRA in
2001, but on account of the recalcitrant attitude of the petitioner, the
Respondent Nos.1 and 2 were unable to obtain possession of such area for running
their flour mill.
17.
Although,
Mr. Naphade tried to convince us that the amended plan had been approved by the
SRA in violation of the Regulations, the actual reality is somewhat different.
Under the Regulations related to the Slum Development Scheme, the SRA has been
vested with authority to grant sanction to schemes upon relaxation of the
Building Rules in order to further the policy of slum development. The present
case is one of those cases where such power has been exercised by the SRA to
provide suitable space to the Respondent Nos.1 and 2, who were eligible and
entitled to receive the same under the scheme in question.
18.
In
any event, the sanctioning authority/SRA, has been vested with powers to relax
the Building 17 Rules under Regulation 6.24 to give effect to the policy of
Slum Development and Rehabilitation. It cannot be ignored that it was the
petitioner itself which submitted the amended plan for the approval of the SRA
in order to provide suitable space to the Respondent Nos.1 and 2 to set up and
run their flour mill in consonance with the Building Rules.
19.
In
our view, it is not for the petitioner to question the approval granted to the
amended plan as the SRA was fully competent in law to grant such approval. The
plea, which has now been taken on behalf of the petitioner, had not been raised
earlier and the petitioner had, in fact, agreed to provide the Respondent Nos.1
and 2 with a separate accommodation for setting up and running their flour
mill. It can only be presumed that a sudden change in attitude has occurred
only with the object of trying to wriggle out of the commitment made to provide
the respondents with the alternate space. We are unable to accept the stand
taken by the petitioner since the right of the Respondent 18 Nos.1 and 2 to
receive 225 sq.ft. of covered space in the new construction by way of
rehabilitation under the SRA scheme for the area is no longer res integra. Once
the amended Building Plan was approved by the SRA, which was competent to do
so, there could be no further objection on the part of the petitioner to act in
terms of the amended plan and to provide the Respondent Nos.1 and 2 with the
alternate accommodation as provided for under the amended plan.
20.
We,
therefore, see no merit in the Special Leave Petition, which is accordingly
dismissed. The time for complying with the directions of the High Court is
extended by a period of eight weeks from date.
21.
There
will be no order as to costs.
________________J.
(ALTAMAS KABIR)
________________J.
Back
Pages: 1 2 3
