Saturday, 26 September 2015

When non statutory provisions can be treated as mandatory?

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.

Balasaheb Arjun Torbole & Ors.
The Administrator & Divisional Commissioner
& Ors. …..Respondents

Citation; (2015)6SCC534, 

1. 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.
2. 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.
3. 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.
4. 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.
5. 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
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.”

6. 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 –
(a) 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,
(b) a Council and a Nagar Panchayat
constituted under the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Township
Act 1965.
(c)(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)a Special Planning Authority constituted or
appointed or deemed to have been appointed
under Section 40;

(b)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.
7. 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

8. 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.”
9. 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;
8Page 9
C.A.No.9363/2011 etc.
(h) ‘Slum clearance’ means the clearance of any slum
area by the demolition and removal of building
(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;”
10. 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.”
11. 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.
12. 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
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.

(ii) 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.
(iii) 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.
(iv) 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
(v) 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.
(vi) 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.
(vii) A composite building shall mean a building
comprising both rehab and freesale components or
parts thereof in the same building.
(viii) 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
Appendix IV contains various guidelines as indicated in
Regulation 33(10) and some of the relevant guidelines are extracted
hereinbelow :
1.1 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
… … … … …

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.
… … … … …
2.1 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
… … … … …
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
… … … … …
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 nonslum
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
7.8 In case of two or more number of slums taken up
for development by same owner/developer/NGO/Cooperative
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.”
13. 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.
14. 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
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.

22. 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/subdivision
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.
23. 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.
24. 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.
25. 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.

26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. In the result, we find no merit in the appeals and the same are
dismissed but without any order as to costs.

C.A.No.9363/2011 etc.
New Delhi.
April 01, 2015

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