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Wednesday, April 8, 2015

Section 3A envisages a Slum Rehabilitation Authority (SRA) for implementing slum rehabilitation schemes. Section 3B provides for slum rehabilitation scheme. The power to frame a general rehabilitation scheme is vested in the State Government or the SRA concerned with the previous sanction of the State Government for rehabilitation of slums and hutment colonies in such areas. Section 3C vests power in the Chief Executive Officer of the concerned SRA to declare an area as slum rehabilitation area if such declaration is found justified in the light of an already published Slum Rehabilitation Scheme.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.9363 OF 2011


 Balasaheb Arjun Torbole & Ors.                    .....Appellants

      Versus

The Administrator & Divisional Commissioner
& Ors.                                         .....Respondents


                                   W I T H

                             C.A.No.9147 of 2011




                               J U D G M E N T



SHIVA KIRTI SINGH, J.

These civil appeals are directed  against  judgment  of  Bombay  High  Court
dated 31.08.2010  in  W.P.(L)  No.1915  of  2010  and  dated  10.08.2010  in
W.P.No.316 of 2010 respectively  whereby the  writ  petitions  preferred  by
the appellants were dismissed.  For the sake  of  brevity  facts  have  been
taken from C.A.No.9363 of 2011.  The  High  Court  negatived  all  the  five
contentions advanced on behalf of the appellants and upheld the order  dated
17.04.2010 passed by the High Powered Committee of the Govt. of  Maharashtra
dismissing Appeal No.62 of 2010 preferred by  the  appellants  to  challenge
the sanction of a scheme by  the  Slum  Rehabilitation  Authority  of  lands
bearing CTS No.106, 106/1 to 5, 107/1 to 9, 108(Part), 111(Part),  111/1  to
77, 80 to 132 and 112(Part) of Village  Kurla,  Hutatma  Prabhakar  Keluskar
Marg (Match Factory Lane), Kurla(West),  Mumbai  and  also  the  orders  for
their eviction from the private lands.
On behalf of the appellants, only C.A.No.9363 of 2011 was argued  at  length
by learned advocate Mr. Sanjay Parikh.  He made it clear  that  this  appeal
relates not to the municipal plots but  only  to  private  plots  which  are
owned privately bearing plot nos.106, 107 and 108.  It  is  the  appellants'
case that a total of 124 families occupied dwellings in the  slums  existing
over said  plots.   According  to  Mr.  Parikh  the  respondent  authorities
committed error of law in treating the slum area over  municipal  plots  and
those over private plots as one slum area.  This, according to  Mr.  Parikh,
deprived  the  slum  residents  over  private  plots  of  having  their  own
redevelopment activity limited to private plots as per the wishes of 70%  of
its occupants.  As per his submission, by illegally declaring a common  slum
area over two different kinds of lands, one  owned  by  municipal  authority
and the other by private persons, the rights  of  the  petitioners  to  have
their own say has been diluted and adversely affected.  In other words,  the
major grievance of the appellants  is  that  the  respondents  have  wrongly
treated that there exists a  consent  for  redevelopment  from  70%  of  the
occupants.  Such claim, according to appellants, must be  rejected  and  the
appellants  should  be  allowed  to  have  the   redevelopment   through   a
cooperative  of  occupants  of  private  plots   exclusively.    The   other
contention of the  appellants  is  that  their  does  not  exist  any  valid
Annexure II with respect to the private plots.
On the other hand, Mr. Shyam Divan, Sr. Advocate, appearing  for  respondent
no.10 relied upon the same very legal provisions which were  highlighted  by
Mr. Parikh to submit that there is no requirement in law to  divide  a  slum
area on the basis of nature of ownership of the concerned  plots  and  since
the private plots  and  municipal  plots  are  contiguous,  hence,  for  the
purpose of redevelopment slum over both was  rightly  treated  as  one  slum
area and the same is permissible under the regulations.  As a corollary,  it
was  submitted  that  if  the  socalled  merger  is  permissible  then   the
requirement of consent of 70% of the occupants stands  fully  complied.   It
was further submitted that as a fact the  High  Powered  Committee  and  the
High Court have found that there exists valid Annexure  II  issued  even  in
respect of slums over private plots.
Mr. C.A. Sundaram, Sr. Advocate, appearing for respondent no.8  who  is  the
developer as well as owner of private  lands,  highlighted  the  rights  and
liabilities of owners of land declared  as  slum  area  and  submitted  that
there was no violation of law in grant of  approval  to  the  rehabilitation
scheme in the instant case to which respondent no.8 had given  his  consent.
Mr. Sishodia, Sr. Advocate appearing for the Slum  Rehabilitation  Authority
as well as  Mr.  Atul  Chitale,  Sr.  Advocate  for  the  Respondent  No.12-
Municipal Corporation of Greater Mumbai also  defended  the  action  of  the
authorities as well as order of the High Court upholding the decision  taken
by the High Powered Committee.
The relevant facts and relief sought by the appellants can very usefully  be
culled out from paragraphs 1, 2 and 3 of the judgment under appeal :

"1.   What is challenged in this writ petition  under  Article  226  of  the
Constitution of India is the order dated 17 April 2010 of the  High  Powered
Committee of the Government of Maharashtra, dismissing Appeal No.62 of  2010
of the present petitioners.  In the appeal, the petitioners  challenged  the
sanction of a scheme by the Slum Rehabilitation Authority on  lands  bearing
CTS No.106, 106/1 to 5, 107/1 to 9, 108(pt), 111(pt), 111/1  to  77,  80  to
132 & 112(pt) of village  Kurla,  Hutatma  Prabhakar  Keluskar  Marg  (Match
Factory Lane), Kurla (West), Mumbai.  A Letter of Intent was issued for  the
whole plot on 29 April 2006.  Out of the above plots, plot Nos.106, 107  and
108 are the plots in question which were earlier owned  by  respondent  No.8
and were subsequently declared  as  slums.   The  other  lands  are  of  the
Municipal  Corporation  of  Greater  Mumbai.   The  petitioners  herein  are
residents in the slums on private plots owned by respondent No.8.

2.    The competent authority declared the above private plots  as  well  as
Mumbai Municipal Corporation plots to be slum areas under  section  4(1)  of
the Maharashtra Slum Areas (Improvement, Clearance and  Redevelopment)  Act,
1971 (for short 'Slum Act') by a notification dated 29  January  2003.   The
slum dwellers residing on both municipal plots and private  plots  formed  a
society in the name of respondent No.10 and  requested  respondent  No.8  to
implement the slum  scheme.   Respondent  No.8  is  owner-cum-developer  and
respondent No.10 being their developer as per  their  own  proposal  to  the
Slum Rehabilitation Authority (for short  'SRA').   On  30  June  2004,  the
competent authority decided the eligibility of  the  slum  dwellers  of  the
private plots and  held  that  out  of  the  occupants  of  124  structures,
occupants of 76 structures were eligible and that out of those, only 19  had
given consent which amounted to 25%.  Thereupon, on  13  January  2004,  the
respondent-Municipal  Corporation  issued  Annexure-II  for  the  BMC  Plots
certifying that out of 367 slum dwellers, 251 were eligible and all of  them
have given their  consent  which  represented  100%  of  the  eligible  slum
dwellers.  Since there was one proposal submitted by  respondent  Nos.8  and
10 for both the plots i.e. BMC plots and private plots, the officers of  SRA
prepared a report and on taking the consent of the  slum  dwellers  of  both
BMC plots and private plots, came to the conclusion  that  the  consent  was
given by 81.32% of the slum dwellers of all the  plots  taken  together  for
which one common scheme was submitted.  On 29 June 2006,  SRA  approved  the
Slum Rehabilitation Scheme and issued  a  Letter  of  Intent  in  favour  of
respondent Nos.8 and 10.  On 14 February 2007,  SRA  approved  the  building
plans for composite development of the Municipal plots as  well  as  private
plots.  On 9 September 2009, SRA issued a revised Letter of  Intent  with  a
condition that respondent Nos.8 and 10 shall rehabilitate all eligible  slum
dwellers  as  held  by  the   competent   authority/Municipal   Corporation.
Condition No.23 of the Letter of Intent provides that individual  agreements
of at least 70% of the eligible slum dwellers shall be  submitted  prior  to
the Commencement Certificate.

3.    In the meantime, the petitioners who are residents  in  the  slums  on
the private plots, were not shifting to the transit tenements.   The  Deputy
Collector, Kurla issued show-cause notices  to  the  petitioners  and  after
hearing them, passed the impugned order dated 25 May 2009 under sections  33
and 38 of the Slum Act  requiring  the  petitioners  to  vacate  the  slums.
Aggrieved by the said order, the petitioners  filed  an  appeal  before  the
Appellate Authority viz. Divisional Commissioner,  Konkan  Division,  Mumbai
who dismissed the appeal on 13 August 2009 after  hearing  the  petitioners.
The petitioners thereafter filed a writ petition before this court  and  the
petitioners were relegated the  alternative  remedy  for  filing  an  appeal
before the Committee.  The petitioners, accordingly, filed appeal  No.62  of
2010 before the High Powered Committee on 15 March 2010.  The  High  Powered
Committee issued notice to the  respondents  and  respondent  Nos.8  and  10
filed their reply.  The petitioners as  well  as  respondent  Nos.8  and  10
filed their written statement.  After the  hearing  concluded  on  17  April
2010, by an order dated 17 April 2010, the High Powered Committee  dismissed
the appeal.  Hence the present writ petition which came to be  filed  on  17
August 2010."

At  the  outset  it  is  deemed  proper  to  take  note  of  relevant  legal
provisions.  Sections 2(15) and 2(19) of the Maharashtra Regional  and  Town
Planning Act, 1966 (for short, '1966  Act')  define  'local  authority'  and
'planning authority' in following terms :

"2(15) 'local authority' means -

the Bombay Municipal Corporation  constituted  under  the  Bombay  Municipal
Corporation Act, or the Nagput Municipal Corporation constituted  under  the
City  of  Nagpur  Municipal  Corporation  Act,  1948,   or   any   Municipal
corporation constituted under the Bombay  Provincial  Municipal  Corporation
Act, 1949,

a Council and a Nagar Panchayat constituted under the Maharashtra  Municipal
Councils, Nagar Panchayats and Industrial Township Act 1965.

(i)  a Zilla Parishad constituted under the Maharashtra Zilla Parishads  and
Panchayat Samitis Act, 1961,

      (ii) the Authority constituted under the Maharashtra Housing and  Area
Development Act, 1976,

      (iii)  the Nagpur  Improvement  Trust  constituted  under  the  Nagpur
Improvement Trust Act, 1936

which  is  permitted  by  the  State  Government  for  any  area  under  its
jurisdiction to exercise the powers of a Planning Authority under this Act;

... ... ... ... ...

2(19) 'Planning Authority' means a local authority and includes -

a Special Planning Authority constituted or  appointed  or  deemed  to  have
been appointed under Section 40;

in respect of the slum rehabilitation area declared under Section 3C of  the
Maharashtra Slum Areas (Improvement Clearance and Redevelopment) Act,  1971,
the Slum Rehabilitation Authority appointed under Section  3A  of  the  said
Act;"


It is relevant to note that 'Planning Authority'  not  only  means  a  local
authority but also includes by reference, the Slum Rehabilitation  Authority
(SRA)  appointed  under  Section  3-A  of   the   Maharashtra   Slum   Areas
(Improvement Clearance and Redevelopment) Act, 1971  (for  short  'the  1971
Act') in respect of a slum rehabilitation area.
The power available to the planning authority to  modify  final  development
plan under sub-section (1) of Section 37 of the 1966 Act has also  been  now
vested in the SRA appointed under Section 3-A of the 1971 Act by adding sub-
section(1B) to Section 37 through an amendment of  1996.   This  sub-section
reads as follows :

"(1B) Notwithstanding anything contained in sub-section  (1),  if  the  Slum
Rehabilitation Authority appointed under section 3A of the Maharashtra  Slum
Areas (Improvement, Clearance and  Redevelopment)  Act,  1971  is  satisfied
that a modification of any part  of,  or  any  proposal  made  in,  a  final
Development plan is required to be  made  for  implementation  of  the  Slum
Rehabilitation Scheme declared under the said Act, then, it  may  publish  a
notice in the  Official  Gazette,  and  in  such  other  manner  as  may  be
determined by it, inviting objections and suggestions from any  person  with
respect to the proposed modification not later than one month from the  date
of such notice; and shall also serve notice on all persons affected  by  the
proposed modification, and after giving  a  hearing  to  any  such  persons,
submit the proposed modification (with amendments, if  any),  to  the  State
Government to sanction."

The Mumbai Municipal Corporation Act, 1888  was  also  amended  in  1996  to
insert Section 354AAA which enables vesting of  power  of  the  Commissioner
and the Corporation  relating  to  building  regulations  etc.  in  the  SRA
appointed under the 1971 Act.  It reads as follows :

"354AAA. Empowerment of Slum Rehabilitation Authority for implementation  of
Slum Rehabilitation Scheme.-Notwithstanding anything contained in any  other
provisions of this Act, the State Government may,  by  notification  in  the
Official Gazette, direct that the powers  of  the  Commissioner  under  this
Chapter and the  powers  of  the  Corporation  and  the  Committees  of  the
Corporation under this Act, if any, relating  to  building  regulations  and
matters ancillary or consequential thereto, shall be exercised by  the  Slum
Rehabilitation  Authority  appointed  under  the  Maharashtra   Slum   Areas
(Improvement,  Clearance  and  Redevelopment)  Act,  1971,  for   the   slum
rehabilitation area declared under that Act."

The Maharashtra Slum Areas (Improvement, Clearance and  Redevelopment)  Act,
1971  (the  1971  Act)  was  enacted  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.   Its  following  provisions  are  deemed  relevant  and,
therefore, reproduced hereinbelow :

"2(ga) '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 4A;

(h) 'Slum clearance' means the clearance of any slum area by the  demolition
and removal of building therefrom;

(h-a) 'Slumlord' means a person,  who  illegally  takes  possession  of  any
lands (whether  belonging  to  Government,  local  authority  or  any  other
person) or enters into or creates illegal tenancies  or  leave  and  licence
agreements or any  other  agreements  in  respect  of  such  lands,  or  who
constructs unauthorized structures thereon for sale or hire, or  gives  such
lands to any persons on rental or leave and licence basis for  construction,
or use and occupation, of unauthorized structures, or  who  knowingly  gives
financial aid to any persons for taking illegal possession  of  such  lands,
or for construction of unauthorized structures thereon, or who  collects  or
attempts to collect from any occupiers of such lands rent,  compensation  or
other charges by criminal intimidation, or who evicts or attempts  to  evict
any such occupiers by force without resorting to the  lawful  procedure,  or
who abets in any manner the doing of any of the above-mentioned things.

(h-b) 'Slum Rehabilitation Area' means a slum rehabilitation area,  declared
as such under sub-section (1) of section 3C by the  Competent  Authority  in
pursuance of the Slum Rehabilitation Scheme notified under section 3B;

(h-c)  'Slum  Rehabilitation  Authority'  means  the   Slum   Rehabilitation
Authority or Authorities appointed by the  State  Government  under  section
3A;

(h-d) 'Slum Rehabilitation Scheme'  means  the  Slum  Rehabilitation  Scheme
notified under section 3B;"

Section 3A envisages a Slum Rehabilitation Authority (SRA) for  implementing
slum rehabilitation schemes.  Section 3B provides  for  slum  rehabilitation
scheme.  The power to frame a general rehabilitation  scheme  is  vested  in
the State Government or the SRA concerned with the previous sanction of  the
State Government for rehabilitation of slums and hutment  colonies  in  such
areas.  Section 3C vests  power  in  the  Chief  Executive  Officer  of  the
concerned SRA to declare  an  area  as  slum  rehabilitation  area  if  such
declaration is found justified in the light of  an  already  published  Slum
Rehabilitation Scheme.  Section 3C runs as follows :

"3C. Declaration of a slum rehabilitation area.-(1) As soon as may be  after
the publication of the  Slum  Rehabilitation  Scheme,  the  Chief  Executive
Officer on being satisfied that circumstances exist in respect of any  area,
justifying its declaration  as  slum  rehabilitation  area  under  the  said
scheme, may by an order published in  the  Official  Gazette,  declare  such
area  to  be  a  'slum  rehabilitation  area'.   The  order  declaring  slum
rehabilitation area (hereinafter referred to  as  'the  slum  rehabilitation
order') shall also be  given  wide  publicity  in  such  manner  as  may  be
specified by the Slum Rehabilitation Authority.

(2) Any person aggrieved by the slum rehabilitation order may,  within  four
weeks of the publication of such order  prefer  an  appeal  to  the  Special
Tribunal; and the decision of the Special Tribunal shall be final.

(3)  On  the  completion  of  the  Slum  Rehabilitation  Scheme,  the   Slum
Rehabilitation Area shall cease to be such area."

The other relevant provisions of the 1971 Act include Section 4 which  vests
power in the Competent Authority to declare an  area  to  be  a  slum  area.
Against such declaration in the Official Gazette, appeal is provided to  the
Tribunal provided it is filed  within  30  days.   The  Competent  Authority
under the Act has also been vested with power under Section  11  to  declare
any slum area to be a clearance area from which buildings found  to  be  not
fit for human habitation may be cleared in accordance  with  the  provisions
of the Act.
It  is  not  in  dispute  that  for  its  own  lands  the  Bombay  Municipal
Corporation has been appointed as the Competent Authority  under  Section  3
of the  1971  Act.   For  private  lands,  the  concerned  Deputy  Collector
(Encroachment) has been appointed as the Competent Authority.
The Bombay Municipal Corporation has framed Development Control  Regulations
for Greater Bombay under the provisions of Section  159  of  the  1966  Act.
These Development Control Regulations for Greater Mumbai, 1991 (for  brevity
'DCR') came into force on 25.03.1991.  Regulation 33(10) was inserted  later
in 1997.  Its salient features are as follows :

"I. Eligibility for redevelopment Scheme.-(a)  For  redevelopment  of  slums
including pavements, whose inhabitants' names and structures appear  in  the
electoral roll prepared with reference to 1st January 1995 or a  date  prior
thereto, but where the inhabitants stay at present  in  the  structure,  the
provisions of Appendix IV  shall  apply  on  the  basis  of  a  tenement  in
exchange for an independently numbered structure.

(b)   Subject to the foregoing provisions, only the actual occupants of  the
hutment shall be held eligible and the so called structure-owner other  than
the actual occupant, if any, even if his name  is  shown  in  the  electoral
roll for the structure, shall have no right whatsoever to the  reconstructed
tenement against that structure.

II. Definition of  Slum,  Pavement,  and  Structure  of  hut.-(i)  For  this
purpose, slums shall mean those censused, or declared and notified,  in  the
past or hereafter under the Maharashtra Slum Areas  (Improvement,  Clearance
and  Redevelopment)  Act,  1971.   Slum  shall  also   mean   areas/pavement
stretches hereafter notified as Slum Rehabilitation Areas.

If any  area  fulfills  the  conditions  laid  down  in  section  4  of  the
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act,  1971
to qualify as slum area and has  been  censused  or  declared  and  notified
shall be deemed to be and treated as Slum Rehabilitation Areas.

Slum rehabilitation area shall also mean any area declared as  such  by  the
Slum Rehabilitation Authority though preferably fulfilling  conditions  laid
down in section 4 of the Maharashtra Slum Areas (Improvement, Clearance  and
Redevelopment) Act, 1971 to  qualify  as  slum  areas  and/or  required  for
implementation of  any  slum  rehabilitation  project.   Any  area  where  a
project under Slum Rehabilitation Scheme has been approved by CEO/SRA  shall
be deemed slum rehabilitation area.

Any area required or proposed for the purpose of construction  of  temporary
or permanent transit camps  and  so  approved  by  the  Slum  Rehabilitation
Authority shall also be deemed to be  and  treated  as  Slum  Rehabilitation
Areas and projects  approved  in  such  areas  by  the  Slum  Rehabilitation
Authority shall be deemed to be Slum Rehabilitation Projects.

A pavement shall mean any Municipal/Government/Semi-Government pavement  and
shall include any viable stretch  of  the  pavement  as  may  be  considered
viable for the purpose of Slum Rehabilitation Scheme.

A structure shall mean all the  dwelling  areas  of  all  persons  who  were
enumerated as living in that one numbered house in  the  electoral  roll  of
the latest date, upto 1st January, 1995 and  regardless  of  the  number  of
persons, or location of rooms or access.

A composite building  shall  mean  a  building  comprising  both  rehab  and
freesale components or parts thereof in the same building.

Censused shall mean those slums located on lands  belonging  to  Government,
any undertaking of Government, or Brihan Mumbai  Municipal  Corporation  and
incorporated in the records of the land  owning  authority  as  having  been
censused in 1976, 1980 or 1985 or prior to 1st January 1995.

III.  Joint ownership with spouse.-The reconstructed tenement  shall  be  of
the ownership of the hutment-dweller and spouse conjointly, and shall be  so
entered and be deemed to be so entered in the records  of  the  co-operative
housing society, including the share  certificates  or  all  other  relevant
documents.

IV.    Denotification  as  Slum  Rehabilitation  Area.-Slum   Rehabilitation
Authority on being satisfied  that  it  is  necessary  so  to  do,  or  when
directed by the State Government, shall  denotify  the  slum  rehabilitation
area."

      Appendix IV contains various guidelines  as  indicated  in  Regulation
33(10) and some of the relevant guidelines are extracted hereinbelow :

" RIGHT OF THE HUTMENT DWELLERS-

Hutment dwellers, in the slum or on  the  pavement  eligible  in  accordance
with the provisions of  Development  Control  Regulation  33(10)  shall,  in
exchange for their structure, be given free of cost a  residential  tenement
having a carpet area of [20.90 sq.m. (225 sq.ft)]  including  balcony,  bath
and watercloset, but excluding common areas.

... ... ... ... ...

1.3   All eligible hutment dwellers taking part in the  slum  rehabilitation
scheme shall have to be rehabilitated according to the  provisions  in  this
Appendix.  It may be in situ and in the same plot as far as possible.

... ... ... ... ...

1.7   The individual agreement entered into between hutment-dweller and  the
owner/developer/co-operative housing  society/NGO  shall  be  in  the  joint
names of pramukh hutment-dweller and spouse for every structure.

... ... ... ... ...

1.15  Where 70 per cent or more of the eligible hutment-dwellers in  a  slum
or pavement in a viable stretch at one place agree to join a  rehabilitation
scheme, it may be considered for approval.

       Provided  that  nothing  contained  herein  shall   apply   to   Slum
Rehabilitation  Projects  undertaken  by  the  State  Government  or  Public
authority or as the case may be a Government Company as defined  in  section
617 of the Companies Act, 1956 and being owned and controlled by  the  State
Government.

... ... ... ... ...

2. BUILDING PERMISSION FOR SLUM REHABILITATION PROJECTS :--

2.1   The proposal for each Slum Rehabilitation Project shall  be  submitted
to the Slum Rehabilitation Authority with all the necessary  documents,  no-
objection certificates, and  the  plans  as  may  be  decided  by  the  Slum
Rehabilitation Authority from time to time.

2.2   The approval to the Project shall be given by the Slum  Rehabilitation
Authority within a period of 30 days from the  date  of  submission  of  all
relevant documents.  In the  event  of  a  failure  by  Slum  Rehabilitation
Authority to do so, the said approval shall be deemed to  have  been  given,
provided the Project is in accordance with the provisions in this Appendix.

... ... ... ... ...

3.14  Amalgamation/Sub-division of Plots and Balancing of  FSI  thereon.-Any
land declared as slum rehabilitation area or on  which  slum  rehabilitation
project has been sanctioned, if it is spread on part or parts of  C.S.  Nos.
or CTS  Nos.  or  S.Nos.  shall  be  treated  as  natural  amalgamation/sub-
division/s of that C.S. or  C.T.S.  or  S.No.  or  F.P.  No.  for  which  no
separate approval for amalgamation/sub-division of land would be necessary.

... ... ... ... ...

3.16  The Chief Executive Officer,  Slum  Rehabilitation  Authority  may  if
required adjust the boundary of the plot  declared  as  slum  rehabilitation
area so as to suit the building design and  provide  proper  access  to  the
Project.

... ... ... ... ...

7.7   Wherever slum and  municipal/MHADA  property  are  found  together  or
adjoining it would be eligible for redevelopment using  provisions  of  both
DCR 33(7) and  DCR 33(10). Development of slum and contiguous non-slum  area
under any other provisions of regulations may be allowed together  in  order
to promote flexibility of  design  as  well  as  to  raise  more  resources,
provided that the FSI of non-slum quantum of area  shall  be  restricted  to
that permissible in the surrounding Zone inclusive of admissible TDR on non-
slum area.  Such a project shall be  deemed  to  be  a  Slum  Rehabilitation
Project and plans for non-slum area including the plans for  admissible  TDR
shall be approved by CEO, SRA.  The power under D.C.  Regulation  11(4)  for
shifting  and/or  interchanging  the  purpose  of  designations/reservations
shall be exercised by  the  Chief  Executive  Officer,  Slum  Rehabilitation
Authority in respect of slum rehabilitation areas/projects.

7.8   In case of two or more number of slums taken  up  for  development  by
same owner/developer/NGO/Co-operative Society of  the  Slum  dwellers,  both
Rehab and Free Sale Components  of  the  said  slums  can  be  combined  and
located in any proportion in those plots provided in any plot, the FSI  does
not exceed 2.5 subject to the condition that the said slums  have  the  same
ratio of Rehab component to Free Sale Component as laid down in  the  Clause
3.3 to 3.5 of this Appendix."

Besides the statutory provisions and statutory  regulations  of  1991  which
have been modified from time to  time,  the  concerned  authority  has  also
issued guidelines for the implementation of Slum  Rehabilitation  Scheme  in
Greater  Mumbai  and  also  circulars  reflecting  policy  decisions.    The
guidelines, inter alia, indicate the procedure  for  submission,  processing
and approval of slum rehabilitation schemes.  For the  purpose  of  deciding
the controversy at hand paragraphs 2, 3,  4,  5,  8  and  11  of  clause  IV
relating to the procedure for submission indicate 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 cooperative society of all eligible  hutment  dwellers
through a resolution to that effect.  The  chief  promoter,  office  bearers
and the members  of  the  proposed  society  should  collect  the  necessary
documents and get the plot surveyed/measured and prepare  map  of  the  plot
showing slum structures with the help of surveyors attached  to  the  office
of   Additional   Collector   (Encroachment)   or   the   Deputy   Collector
(Encroachment) of the zone.
The  procedure   for   submission,   processing   and   approval   of   slum
rehabilitation schemes also contains a guideline  that  by  undertaking  the
survey, information of the proposed members/slum  dwellers  should  also  be
collected and Annexure II prescribed by SRA should be filled  up  so  as  to
give the details of land occupied by the slum dwellers, number and  type  of
structures such as residential, industrial etc. and  the  list  of  eligible
and ineligible occupants and consent to join  the  scheme.   The  guidelines
also disclose that earlier the procedure of filling up  Annexure  II  format
was required to be carried  on  by  competent  authorities  but  by  way  of
subsequent simplification of procedure it is now required to  be  filled  up
by the promoter/cooperative housing society itself for  submitting  building
proposal to SRA.  The decision to search a competent developer to act  as  a
promoter can be taken up by the  proposed  cooperative  housing  society  of
slum dwellers  but  it  has  been  clarified  that  the  society  itself  or
NGO/developer/owner can take up slum rehabilitation scheme  as  a  promoter.
The promoter has to appoint  an  architect  to  prepare  the  plans  of  the
development of the slum area as per  DCR  33(10).   All  required  documents
such as building plan, layout plan etc. along with Annexure I,  Annexure  II
and Annexure III are to be submitted to SRA by the architect along with  the
application for approval of the slum rehabilitation  scheme.   The  proposal
so submitted is subjected to a pre-scrutiny by a designated engineer of  SRA
to ensure that it is complete with all documents and then the proposals  are
accepted.  Thereafter the scrutiny of Annexures I,  II  and  III  begins  in
different wings such as Building Permissions, Eligibility Certification  and
Accounts & Finance respectively.
The guidelines also indicate that circular no.4 dated  27.08.1997  had  been
issued by SRA to give details of the simplified procedure  in  the  form  of
Appendix -  D.   Inter  alia,  this  circular  provides  that  in  order  to
facilitate  the  disposal  of  slum  rehabilitation  schemes  submitted  for
approval, the architect/developer or society bearers may submit Annexure  II
in duplicate, as prepared by them  in  the  prescribed  proforma  signed  by
owner/developer/CP/NGO.  A copy of the same will be then  forwarded  to  the
competent  authority  for  getting  it  certified.   The  proposal  will  be
scrutinized on the basis of Annexure  II  submitted  by  the  architect  but
approval will be on the basis of certified Annexure II  from  the  competent
authority and for this the SRA will follow up with the respective  competent
authority.
While replying to the arguments  of  Mr.  Sanjay  Parikh,  counsel  for  the
appellants in both the appeals, Mr. Shyam Divan highlighted the basic  facts
first from the records of Civil Appeal No.9147 of 2011  to  show  that  plot
nos.106, 107 and 108 are the  concerned  private  plots  which  are  subject
matter of Civil Appeal No.9363 of 2011.  The  remaining  plots,  i.e.,  plot
no.109(pt), 110(pt), 111(pt) and 112(pt) are the concerned  municipal  plots
which are subject matter of the other civil appeal.  His stand is  that  the
notification dated 13.02.2003, no doubt  contained  a  declaration  of  slum
area under Section 3 of the 1971 Act even in respect of plots  of  Municipal
Corporation but that will not make any difference.  He referred  to  various
documents to point out that the concerned  plots  of  Municipal  Corporation
were censused slum colony as per  municipal  records  and  hence  they  were
covered under the definition of 'slum' recognized  under  Regulation  33(10)
which is part of Development Control Regulations for  Greater  Mumbai,  1991
(DCR).  It was  also  pointed  out  that  Chief  Executive  Officer  of  SRA
approved the slum development scheme covering the slum over municipal  plots
as well as private plots on 26.03.2006 resulting into issuance of letter  of
intent on 29.06.2006 and first intimation of approval (planning  permission)
on 14.02.2007.  Thereafter only 6 persons preferred  an  appeal  before  the
Maharashtra Slum Areas Tribunal with a  prayer  to  quash  the  notification
dated 13th February 2003 containing  declaration  of  slums  in  respect  of
municipal plots.  This appeal bearing no.22 of 2009 suffered from  delay  of
6 years which was not condoned by the  Tribunal  but  while  dismissing  the
same on 11.08.2009, the Tribunal noted the lacuna in the case of  appellants
that they had failed to support even their claim that  they  were  residents
of the municipal plots or that there did not exist any slum  over  the  area
and how they were affected by the declaration when the owner  of  the  land,
the Municipal  Corporation,  had  no  objection  to  such  declaration  with
respect to  its  own  land.   The  writ  petition  bearing  No.316  of  2010
preferred against the order of the Tribunal was  dismissed  by  order  dated
10.8.2010, under appeal in Civil Appeal No.9147 of  2011.   The  High  Court
noticed that out of 6 petitioners only petitioner no.1 was  an  occupant  of
structure over the Municipal Corporation land whereas petitioner nos.2 to  4
resided on private lands and being not concerned with  the  municipal  plots
could not maintain the writ petition.  With respect to petitioner no.1,  the
court noticed that his name was included in Annexure II of  the  SRA  scheme
and he had accepted an amount of Rs.60,000/- as rent in  lieu  of  temporary
transit accommodation and hence the High Court  held  that  petitioner  no.1
was  estopped  from  challenging  the   notification   declaring   Municipal
Corporation plot as slum area.
No reply to the grounds mentioned by the High Court for dismissing the  writ
petition has been offered on behalf of  the  appellants  in  C.A.No.9147  of
2011 and as noted earlier, Mr.  Parikh  has  confined  his  submissions  and
arguments only against SRA scheme for the private  plots  which  is  subject
matter of C.A.No.9363 of 2011.  The main two contentions of Mr. Parikh  that
there is no valid Annexure II for the private plots; and there was no  valid
consent of 70%  of  slum  dwellers  because  the  consent  was  not  counted
separately for residents of private plots have been  addressed  and  replied
at length.
In respect of Annexure II, Mr. Divan has placed reliance upon  Annexure  P-6
to C.A.No.9363 of 2011 and some other materials from the same  very  record.
He pointed out that  in  the  synopsis,  against  the  date  05.03.2004  the
appellants have averred in following words:-  "Dy.  Collector  (E/I)-Chembur
recorded the findings of his enquiry conducted on 20.11.2004 in the list  of
Annexure II that not a single  person  on  private  plots  gave  consent  in
favour of Jan Kalyan Society.  A true and correct copy  of  the  eligibility
list of Annexure II  as  verified  by  the  Deputy  Collector  (E/I)-Chembur
purportedly acting as competent authority dated 5.3.2004 is  Annexure  P-6".
In continuation of above the appellants have also averred that 17  residents
were not present on 20.01.2004 and on the basis of their consents  allegedly
given in the year 2001, the Deputy Collector (E/R)-Chembur  wrongly  treated
them to have given consent  to  the  slum  rehabilitation  scheme.   It  was
pointed out that the  document  Annexure  P-6  dated  05.03.2004  bears  the
signature of concerned Deputy Collector and discloses verified list  of  124
persons containing all the required details including consent  etc.  and  on
that basis it has been submitted  that  appellants'  contention  that  there
exists no Annexure II for the private plots is against their  own  pleadings
and contrary to records.  By referring to  the  prayers  made  in  the  writ
petition, it was also shown that there was no prayer to set aside  or  quash
Annexure II for the private plots.
The appellants have failed to produce any worthwhile material to  show  that
there was no Annexure II submitted before the  SRA  or  that  there  was  no
verification made by the competent authority.  The records clearly  disclose
that there was an objection raised by the verifying authority that only  25%
slum dwellers of private plots have consented to the  rehabilitation  scheme
and not  the  70%  as  required  by  the  regulations  and  the  guidelines.
However, such objection  was  considered  and  overruled  by  the  competent
authority under the 1971 Act by holding that  there  was  no  illegality  or
error in clubbing the  adjoining  municipal  plots  and  private  plots  and
treating the same as a slum area and permitting slum  rehabilitation  scheme
for such slum area in aggregate as consent of 70% of the slum  dwellers  was
found existing.  In such a situation, we do not find merit in the  stand  of
the appellants that their writ petition should  have  been  allowed  on  the
ground that there was no Annexure II available for the private plots.
When in aggregate consent of 70% or more slum dwellers  has  been  obtained,
the essential purpose of slum rehabilitation scheme cannot be put  to  peril
on the ground that certain procedures were not  strictly  followed  or  some
steps were against procedures prescribed in the guidelines  for  preparation
of Annexure II in a prescribed format.  From  the  documents  submitted  and
shown at the stage of hearing it  has  been  noticed  that  even  subsequent
claims of some slum dwellers that they are eligible for rehabilitation  have
been verified and many have been allowed on the basis of relevant  documents
because it is not infrequent that at the time of one particular checking  or
verification some dwellers may be absent and might have gone to  some  other
place.  Clearly  the  process  of  preparation  of  the  list  described  as
Annexure II and its verification is meant to find out the claims of  genuine
slum  dwellers  who  may  be  eligible   for   benefits   under   the   slum
rehabilitation scheme.  Such beneficial provisions meant to  ameliorate  the
poor condition of slum dwellers, in  our  considered  view,  should  not  be
jettisoned only on technical grounds or procedural  infirmities  unless  the
persons coming to the court and seeking relief  through  writ  petition  are
able to show that they have suffered injustice or legal injury.
In the present case, the only legal injury to appellants as per  submissions
of Mr. Parikh is that if the private plots were  treated  as  separate  slum
area, the residents of these plots alone could have formed and  carried  out
development scheme through their own cooperative  society  and  gained  some
advantages including monetary.  Such a plea is too far-fetched to  establish
legal injury to the appellants who claim to be slum  dwellers  and  on  such
plea, in our considered view the appellants  could  not  have  been  granted
relief in writ jurisdiction which has been rightly denied  to  them,  albeit
for other reasons, after considering all their pleas on merits.
The only other substantial issue raised by Mr. Parikh that there could  have
been no clubbing of private  lands  with  municipal  lands  for  purpose  of
counting consent of 70% of the slum dwellers is also  found  to  be  without
any merits.  Mr. Divan rightly relied upon  DCR  of  1991  and  particularly
clause 1.15 of Appendix IV which clearly shows  that  70%  or  more  of  the
eligible hutment dwellers in a slum or pavement in a viable stretch  at  one
place can agree to join a rehabilitation scheme.  There is no merit  in  the
submission on behalf of the appellants that the clause "in a viable  stretch
at one place" should be read only in conjunction with  the  word  'pavement'
and not the word 'slum' although the use of the word 'or' between  slum  and
pavement clearly  shows  both  have  to  be  treated  at  same  footing  and
therefore both are qualified by the clause  "in  a  viable  stretch  at  one
place".  Clause 3.14 providing for  amalgamation/sub-division  of  plots  of
Appendix IV of the DCR 1991 also goes a long way to support  the  submission
that the  statutory  provisions  clearly  permit  natural  amalgamation/sub-
division of plots for the sanction of slum rehabilitation  project  as  well
as for planning of Floor Space Index (FSI) thereto.  Clause 7.7 and  7.8  in
the same Appendix D lend further support to the aforesaid arguments  of  Mr.
Divan.
Although it is not directly related to issues  under  consideration  already
noticed earlier, Mr. Sundaram has placed reliance on several  provisions  of
Appendix IV noted above which is part of  DCR  1991  to  highlight  that  in
respect of private plots the owner has been given a  recognition  and  role.
The relevant provisions to support  the  aforesaid  submission  are  in  the
introductory para 1 of Appendix IV as well as in  schedule  annexed  to  the
general  slum  rehabilitation  scheme  notified   by   the   Government   of
Maharashtra in the Gazette dated 09.04.1998.  The relevant  provisions  such
as 2(B) and 11(B) & (C) do show that the owner can  also  be  the  developer
for implementing slum rehabilitation scheme  and  before  carrying  out  the
redevelopment work of the slum located over private lands,  the  consent  of
owner is required otherwise in given circumstances the Government will  have
to acquire such land if slum rehabilitation scheme is to be implemented.
Mr.  Shishodia,  learned  senior  advocate  for  the   Slum   Rehabilitation
Authority also placed reliance upon Section 4 of  the  1971  Act  to  submit
that slum contemplated under the Act is over an area and not plot  and  that
the  plot  numbers  are  relevant  only   for   the   limited   purpose   of
identification of the area over which a slum  may  be  found  existing.   He
supported the submission of Mr. Divan by referring to clause  1.3  and  1.15
of Appendix IV of DCR 1991.  According to him, the use of the  term  "....in
the same plot as far as possible" in clause 1.3 supports the  interpretation
advanced by Mr. Divan to the expression "in a viable stretch at  one  place"
in clause 1.15 and these provisions, according to him, go  to  show  that  a
slum is not plot specific but area  specific  and  hence  there  is  nothing
wrong in the action of SRA in treating the  contiguous  area  comprising  of
municipal plots as well as private plots as a  slum  area  and  approving  a
slum rehabilitation scheme for the same after ascertaining that  consent  of
at least 70% of the residents of such slum area was available in  favour  of
the rehabilitation scheme.
In our considered view, the submissions advanced by Mr. Divan, Mr.  Sundaram
and Mr. Shishodia  deserve  to  be  accepted  as  having  merit.   Mr.  Atul
Chitale, learned senior advocate for the Municipal Corporation has  referred
to Section 159 of the Maharashtra Regional and Town Planning Act,  1966  for
showing that  it  vests  power  to  make  regulations  and,  therefore,  the
Development Control Regulations framed under such statutory  provision  have
to be followed by the concerned authorities and such  regulations  providing
for   eligibility   for   redevelopment   scheme,   definitions   of   slum,
qualification as slum area on account  of  being  censused  or  declared  as
such, their treatment as deemed slum rehabilitation  areas  etc.  cannot  be
ignored by the concerned authorities be it the Municipal Corporation or  the
SRA until a particular provision is challenged and found to be  ultra  vires
on account of lack of power to frame the regulations or  conflict  with  any
superior  law.   According  to  Mr.  Chitale,  in  the  present   case   the
authorities have acted in accordance with law and,  therefore,  neither  the
Committee nor the High Court found it fit to  interfere  with  the  approved
rehabilitation scheme which will benefit all the slum dwellers of  the  slum
area comprising of lands belonging to the Municipal Corporation as  well  as
private lands and for which consent of more than 70% of such  slum  dwellers
was found available after proper verification.
In view of discussions made above and on finding merit  in  the  submissions
advanced on behalf of respondents we record our  agreement  with  the  views
expressed by the High Court that there  is  no  illegality  in  clubbing  of
private land and Municipal Corporation land for declaring a contiguous  area
as a slum area for the purposes of approving a  slum  rehabilitation  scheme
for such area.  As discussed earlier, we find no merit in the submission  on
behalf of the appellants that the required  particulars  were  not  compiled
and were not available in the form of Annexure II for the private  lands  or
it led to illegality and  vitiated  the  approval  of  the  particular  slum
rehabilitation scheme for the slum area  in  question.   In  our  view,  the
authorities had verified  the  particulars  contained  in  Annexure  II  and
thereafter they were entitled to treat the entire slum  area  existing  over
private lands as well as Municipal Corporation lands as one  slum  area  and
since consent of 70% or more of slum dwellers of such  area  was  available,
the authorities did not commit any illegality so as to vitiate the grant  of
approval for slum development scheme in question.
The appellants have relied upon judgment of Bombay High Court  in  the  case
of Om Sai Darshan CHS v. State of Maharashtra  reported  in  2006(5)  All.MR
323 in support of the proposition stated in paragraph 15  of  that  judgment
that so far as grant of approval to Annexure  II  is  concerned,  the  power
vests in the competent authority and not in the SRA.  There  is  no  quarrel
with the  aforesaid  proposition.   In  this  case  the  facts  reveal  that
Annexure II was verified by the  competent  authority  and  it  found  after
verification that only 25% of the  slum  dwellers  over  private  plots  had
given their consent for the rehabilitation scheme.   The  opinion  regarding
adequacy of consent and its legal implications in the context  of  a  larger
slum area extending to private as well as municipal  lands  was  beyond  the
competence of the authority having power  to  verify  the  actual  state  of
affairs in respect of particulars  of  Annexure  II.   The  opinion  of  the
competent verifying or certifying authority that consent  was  only  of  25%
slum dwellers was based  upon  a  wrong  premise  that  the  slum  area  was
required to be divided in at least 2 parts,  based  upon  ownership  of  the
lands comprising the entire slum area.  This view was rightly  not  accepted
by the SRA.  When the entire slum area was  treated  as  one  slum  area  on
which more than 70% slum dwellers were found to have  given  their  consent,
there was no  legal  impediment  in  acting  upon  the  particulars  already
verified as per Annexure II available with the authorities.   Hence  in  the
facts of the case the judgment noted above does not help the appellants.
Mr. Parikh, has also placed reliance upon a judgment of this  Court  in  the
case of Pramila Suman Singh v. State of Maharashtra  (2009)  2  SCC  729  in
support of the proposition that a composite slum area could not be  declared
as such when it covered private  lands  as  well  as  Municipal  Corporation
lands.  The facts of  that  case  were  quite  different  and  as  noted  in
paragraph 29, the SRA had rejected the plan of the appellant  of  that  case
for as many as five reasons including the  reason  that  appellant  had  not
submitted proper Annexure II.  In paragraph 52 this Court had  recorded  its
satisfaction that the appellant had not annexed Annexure II  in  respect  of
concerned plot along with her original application and therefore this  Court
found no legal infirmity in the impugned order of  the  authority.   Clearly
the issue decided in that case was quite different and  hence  the  judgment
is not of any help to the appellants  in  this  case.   It  may  however  be
useful to note that in para 50 this Court made observations  to  the  effect
that (i) Annexure  II  may  not  have  any  statutory  force  as  it  was  a
requirement under the guidelines and (ii) a conformity with  the  guidelines
is required to be maintained unless the guidelines are  found  to  be  ultra
vires.  In the context of facts of the present  case  it  is  sufficient  to
observe that non statutory provisions can hardly  be  treated  as  mandatory
unless their non  observance  is  shown  to  have  caused  legal  injury  by
affecting some valuable  rights  of  the  writ  petitioners.   As  discussed
earlier no such case could be made out by the appellants so  as  to  require
interference  on  account  of  alleged  shortcomings   in   preparation   or
verification of Annexure II.
The written submissions raise some other minor issues  too  but  these  were
not raised before and decided by the High  Court.   Hence  we  refrain  from
going into such issues.  It is, however, necessary to  record  that  in  the
light of statutory provisions brought about through amendments in  the  1966
Act and in the Mumbai Municipal Corporation Act, 1888 and in  the  light  of
provisions of 1971 Act, the SRA was  competent  to  approve  the  Scheme  by
taking the required ancillary decisions.
In course of arguments, it has  been  shown  to  us  by  filing  details  of
petitioners/appellants that out of a total of 97, 60  are  eligible  and  33
non-eligible.  Name of 4 petitioners, i.e., 90, 91, 93 and  97  are  not  in
Annexure II to which several other persons have  been  added  after  further
verification of later claims, during the pendency  of  the  litigation.   It
has also been shown through a summary  that  pending  the  hearing  of  this
appeal, 26 appellants have settled their dispute and handed over  possession
of their respective structures.  The impugned judgment  of  the  High  Court
also records in paragraph 25 that out of a total of 443 slum  dwellers,  82%
slum dwellers had already given consent for redevelopment of  the  slum  and
redevelopment  is  going  on   by   allotment   of   permanent   alternative
accommodation to the slum dwellers.  Majority of occupants of the  municipal
plot as noted in the High Court judgment had vacated their  structures  long
back.  Photographs produced before us show that  redevelopment  activity  is
going on and permanent structures have come up on a large area.  Such  facts
also, in our  estimate,  were  rightly  considered  by  the  High  Court  as
relevant for dismissing the writ petitions.
In the result, we find no merit in the appeals and the  same  are  dismissed
but without any order as to costs.


.....................................J.
[M.Y. EQBAL]


.....................................J.
[SHIVA KIRTI SINGH]
New Delhi.
April 01, 2015
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