IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.15843 OF 2008

M/s Veena Corp.  Through Rajan Babulal Mehta …Petitioner

Vs.

Ashok Arjanbhai Jolia & Ors. …Respondents

J U D G M E N T  

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

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.,

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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

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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

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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,

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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)

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________________J. (MARKANDEY KATJU)

New Delhi Dated: 19.03.2009

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