REPORTABLE

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  ….. Respondents

J U D G M E N T

S.B. SINHA, J.

Leave granted.

1.  In 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.

2. For  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) thereof.   

3. Section 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 permission.

(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, unconditionally; (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;

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(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 by regulations.

(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

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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.”    

4. Indisputably  all  Planning  Authorities  are  conferred  with  power  to

make Regulations as envisaged under Section 159 of the 1966 Act.   

5. The  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.

(3) Information 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) below.

(ii) Ownership  title  and  area.-  Every application for development permission  and commencement  certificate  shall  be

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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 applicable.”     

33(10).  Rehabilitation  of  slum  dwellers  through owners/developers/cooperative  housing  societies. -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.”

6. In  terms  of  Regulation  33(10)  of  DCR,  three  annexures  were

prescribed in Appendix IV.   

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7. Although 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 provisions

thereof.   

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 3A.”

Section 2(hd) of the 1971 Act reads :-

“ ‘Slum Rehabilitation  scheme’ means  the  Slum Rehabilitation Scheme notified under section 3B “

8. Chapter  I-A, however, was inserted by Maharashtra  Act 4 of 1996

providing for Slum Rehabilitation Scheme.

9. Sections 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 different areas.   

(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 Government.

(2A) Every  Slum  Rehabilitation  Authority appointed  under  sub-section  (1)  shall  be  a  body corporate  by  the  name  of  “The………………… Slum  Rehabilitation  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

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Rehabilitation Authority shall be such as may be specified by the State Government.

(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.”   

“3B Slum 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

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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 Rehabilitation Scheme;  

(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;  

(d)  provision  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

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option  available  to  the  Slum  Rehabilitation Authority for taking up such development in the event  of  non-participation  of  the  landholders  or occupants;  

(f)  provision  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;  

(g) provision regarding non-transferable nature of tenements for a certain period, etc.”

“3D. Application 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

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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 Officer.

(b) On receipt of the order  sent as aforesaid,  the Authority shall  be bound to follow and act upon such order.”

“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.”  

10. In 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

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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.

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11. Concededly 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.   

12. The  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.  

13. As  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

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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.   

14. Appendix 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.  

15. The  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 Scheme. 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: (a) Resolution electing a chief promoter.

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(b) Resolution giving the chief promoter authority to  apply for  reservation  of  name for  cooperative housing society. (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

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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. (a) Consent-cum-agreement between the promoter and the slum-dwellers.

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(b)  Development  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- dwellers. (d)  Lease  agreement  between  the  land-owning authority  and  the  cooperative  society  of  freesale tenement buyers.

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

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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 respectively.”

16. Indisputably 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 the land.   

17. On 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.

18. We 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

18

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.  

19. On  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.  

20. Appellant  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.   

21. F. 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,

19

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.   

22. The 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.  

23. Appellant  also  filed  an  application  and  obtained  a  ‘no  objection

certificate in respect of F. Plot No. 559.   

24. Indisputably 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.

20

Indisputably a copy thereof had not been forwarded to the appellant which,

as would be noticed hereinafter, will have some bearing.   

25. Indisputably 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.   

26. Thereafter  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.  

27. A 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.  

28. A 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

21

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.   

29. The 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).

b) Petitioner’s  Annexure-III  was  not  certified  by Financial Controller, SRA.

c) Petitioner  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.”

22

30. Questioning 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 non-existent.”   

31. A  Division  Bench  of  the  High  Court  dismissed  the  said  writ

application principally on the following grounds:-

a) This is a proxy litigation between two developers;

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.”   

32. Principal  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.    

24

(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:-

• the  same  did  not  create  any  monopoly  in  its

favour;’  

25

• it should not have been kept alive for an indefinite

period;  

• such a ‘no objection certificate’ did not have any

statutory force; and  

• 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.  

33. Mr.  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 statutory force.

(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.  

34. Mr. 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 thereof.   

(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 entertained.

(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.

35. Mr.  Mukul Rohtagi,  learned senior  counsel  appearing on behalf  of

respondent No.6 would contend:

(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.  

(iv) Huge 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.  

36. Mr. 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.  

(ii) Appellant  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.  

37. Appellant 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. 569 (part).   

38. Contention 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

31

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.

39. For 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.

32

40. Contention of Mr. Naphade that the owner of a plot even in terms of

the slum rehabilitation scheme vis-à-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.

41. Regulation 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.

42. In  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

33

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.   

43. Regulations  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.

44. Unlike  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

34

executed within a period of sixty days as would appear from Para 1.11 of

Appendix IV.

45. Submission 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.

46. Such 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.

35

47. The 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 reservation.”

48. The  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.

49. Contention  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

36

application,  she  did  so  as  would  appear  from  the  statements  made  in

paragraphs 2.22 and 2.23.

50. The said letter was written in response to the authority’s letter dated

10th August, 2001, the relevant part whereof reads as under:

“Please  find  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.”

51. The Corporation in its letter dated 31st August, 2001 stated:

“Ref:  No.  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.”

52. We 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

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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

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our  opinion,  it  was  necessary  for  the  appellant  to  question  the  validity

thereof.   

53. Annexure 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.

54. This 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

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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 August, 2001.   

55. There 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.

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56. We, 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 Ltd. (supra).

57. Appellant  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).

58. It 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

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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.”

59. Appellant 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.

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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.”   

60. Furthermore,  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.

61. If  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

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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.

62. For  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-à-vis the respondent Nos. 6 and 7.

63. Before 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

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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

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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 thereunder.  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 endeavours 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

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shall bestow its serious consideration in framing an appropriate regulation

in terms of 1971 Act as expeditiously as possible.

64. We, therefore, agree with the judgment of the High Court, albeit for

different reasons.  Appeal is dismissed.  No costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; December 19, 2008

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