Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.15843 OF 2008
M/s Veena Corp.
Through Rajan Babulal Mehta …Petitioner
Vs.
Ashok Arjanbhai Jolia & Ors. …Respondents
J U D G M E N T
ALTAMAS KABIR,J.
1. This special leave petition arises out of steps
taken by the Municipal Corporation of Greater
Mumbai to remove 11 structures on Kulupwadi Road,
Borivali (East), which were allegedly causing a
traffic bottleneck. Out of the 11 structures 9
th
were demolished on 12 February, 2001. One of the
structures, however, occupied by Ganesh Flour Mill
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could not be removed on account of BCCC Suit No.907
of 2001 filed by the said flour mill. Since the
structures in question were situated in a slum
area, wherein there was a Slum Rehabilitation
Authority (S.R.A.) Scheme in respect of CTS Plot
Nos.545 and 546 and the construction of an SRA
building was also going on, the Assistant Municipal
Commissioner concerned wrote to the Executive
Officers of MHADA, with a copy to the Deputy
Collector (SRA), to confirm the status of the
owners of the two structures and to provide them
suitable alternate accommodation in the said SRA
Scheme by instructing the Developer accordingly.
The Developer, M/s. Veena Corporation, is the
petitioner in this Special Leave Petition.
nd
2. On 2 July, 2001, the S.R.A. confirmed the
status of the respondent Nos.1 and 2 herein, who
were allegedly running the above-mentioned flour
mill, as being eligible for a residential-cum-
commercial allotment. As respondent Nos.1 and 2
were dissatisfied with the decision of the S.R.A.,
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they filed Writ Petition No.2213 of 2002 before the
Bombay High Court claiming that in lieu of the
areas which were under their occupation, they were
entitled to two commercial units, one for the flour
mill and the other for a godown. The said writ
petition was rejected on the finding that the said
respondent Nos.1 and 2 were entitled to one unit
equal to the total area under their occupation as a
commercial-cum-residential unit. Their claim for
two commercial units was, therefore, disallowed.
3. In Appeal No.225 of 2003 filed against the
order of the learned Single Judge, the Division
Bench granted leave to the respondent Nos.1 and 2
herein to make an appropriate application to the
S.R.A., who were directed to consider afresh as to
whether the respondent Nos.1 and 2 were entitled to
use the residential-cum-commercial premises to run
the flour mill. The S.R.A. reconsidered the matter
and reiterated the earlier position holding that
the applicants were eligible for one commercial
structure only since the same were not used for
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residential purposes so as to make the occupants
eligible as slum dwellers to have a residential
unit. Thereafter, Writ Petition No.990 of 2004
filed by the respondent Nos.1 and 2 challenging the
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decision of the S.R.A. dated 12 December, 2003
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came to be disposed of on 27 July, 2006, by the
following order :-
“The learned counsel appearing for
Petitioners states that they give up their
challenge to the order impugned in the
Petition because by that order, it is
clearly recorded that the premises where
the Petitioners were running a flour mill
has been found to be of 275 sq. ft. area
and the Petitioners have also been found
running flour mill in those premises.
The statement is accepted. The learned
counsel appearing for Respondents states
that according to the relevant regulation,
the petitioners would be entitled to 225
sq. ft. of structure for running their
flour mill free of cost and additional
area of 50 sq. ft. on payment as per the
regulation, if they make an application to
the Chief Executive Engineer, S.R.A. for
that purpose. The statement is accepted.
The learned counsel appearing for
Respondent No.1 states that in case such
an application is made by the Petitioners
within a period of four weeks, the
respondent No.1 shall consider it in
accordance with law and pass orders
thereon in accordance with law within a
period of four weeks from the date of
receipt of the application. The statement
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is accepted. In view of these statements,
Petition is disposed of. Rule is
discharged with no order as to costs. In
case the petitioners make an application,
the Respondent No.1 shall grant personal
hearing to the Petitioners before
disposing of that application.”
4. In March, 2007, the petitioner herein (the
promoter) constructed a wall blocking the spot in
the property which was suitable for construction of
the flour mill, the respondent Nos.1 and 2 herein
raised a protest upon which the S.R.A. amended the
plan and indicated the benefit to which the
respondent Nos.1 and 2 would be entitled.
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Although, this was done on 14 June, 2007, no
further steps were taken by the petitioner herein
or the authorities of the S.R.A. to implement the
amended plan.
5. The respondent No.1 thereupon made a
nd
representation to the Chief Executive Officer on 2
August, 2006. Since despite a hearing having been
given, no orders were passed on the representation,
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the respondent Nos.1 and 2 filed a Contempt
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Petition on 28 March, 2007. The same was dismissed
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on 26 September, 2007, upon the finding that the
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order passed on 8 April, 2005, wherein it had been
found that the respondent Nos.1 and 2 were entitled
to a commercial premises measuring 225 sq. ft.
which had been handed over by the petitioner herein
to the S.R.A. for being made over to the respondent
Nos.1 and 2, had been suppressed when Writ Petition
No.990 of 2004 was disposed of.
6. Subsequent to the dismissal of the Contempt
Petition, the respondent Nos.1 and 2 filed Writ
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Petition No.2298 of 2007 on 9 October, 2007,
challenging the letter/order passed by the S.R.A.
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on 14 June, 2007 in response to the letter dated
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8 February, 2007, written on behalf of the
petitioner herein with regard to the proposed
amended plan of the composite building of the S.R.
Scheme on the plots bearing CTS Nos.545, 545/1 to
30, 546, 546/1 to 5 of village Kanheri, Kulupwadi,
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Borivali (East), Mumbai, wherein the petitioner was
directed to comply with certain conditions.
7. Although, since according to the petitioner the
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conditions contained in the letter/order of 14
June, 2007, could not be complied with, the
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Division Bench by its order dated 13 March, 2008,
impugned herein, directed the S.R.A. to act and
ensure that the amended plan is fully implemented
and the entire area measuring 225 sq. ft. was
constructed and delivered to the respondent Nos.1
and 2 herein within a period of 8 weeks from the
date of the order. While passing the impugned
order, the High Court made it clear that the
respondent Nos.1 and 2 herein would have to comply
with the provisions of the law while obtaining
requisite licences from the competent authorities.
It was also made clear that the High Court was
passing its order to resolve the limited
controversy that the respondent Nos.1 and 2 were
entitled to the commercial space which would have
to be constructed in accordance with the plan
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sanctioned by the S.R.A. within the period
indicated in the order.
8. After the said order was passed, the
petitioner/promoter was served with a letter
nd
written by the S.R.A. on 2 April, 2008 requesting
the petitioner to submit a plan for the flour mill
with an area measuring 225 sq. ft. It is the
petitioner’s case that instead of challenging the
directions contained in the order of the Division
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Bench of the High Court passed on 13 March, 2008,
the S.R.A. was forcing the petitioner to implement
the directions, which were contrary to the
statutory provisions and the Building Rules. It
is also the grievance of the petitioner that the
Division Bench of the High Court had, by its
impugned order, ignored all the facts and had
directed the S.R.A. to construct the flour mill on
the compulsory open space which would have the
effect of blocking the access of the society
members in contravention of the provisions of the
Bombay Municipal Act, the Building Rules and the
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Slum Rehabilitation Scheme and in the process was
also compelling the petitioner to make such
unlawful construction.
9. It is on account of being aggrieved by the said
directions of the Division Bench of the Bombay High
Court in Writ Petition No.2298 of 2007, that the
present special leave petition was filed by the
petitioner herein.
10. Appearing for the petitioner, Mr. Shekhar
Naphade, learned Senior Advocate, submitted that
Writ Petition No.2213 of 2002 filed by the
respondent No.1 for a determination that he was
having two commercial places, a flour mill and a
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godown, was dismissed on 9 September, 2002. The
appeal preferred against the order dated 9.9.2002,
being A.O. No.225 of 2003, was in its turn disposed
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of on 17 June, 2003, with leave to the respondent
No.1 to make an application to the S.R.A., which
was directed to consider the said application
within a period of eight weeks after giving an
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opportunity of personal hearing to the respondent
No.1. He then referred to various orders passed by
the S.R.A., as also the High Court, and the
counter-affidavit filed on behalf of the S.R.A. in
which it had been stated that the respondent Nos.1
and 2 were jointly held to be eligible under the
Scheme for a portion of the structure for
commercial use as per the order passed by the Chief
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Executive Officer, S.R.A. on 10 December, 2003,
under the Slum Rehabilitation Scheme. Thereafter,
pursuant to the said order and after the order
passed by the High Court in Writ Petition No.990 of
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2004 on 27 July, 2006, the petitioner-Developer
had submitted the amended plan for the flour mill
and had requested that approval be given to the
same. The said plans were, thereafter, approved by
the S.R.A. according to the provisions of Clause
6.24 of the amended DRC-1991 Rule 33(10) read with
Appendix-IV. The petitioner then applied for
Commencement Certificate as per the approved plans.
It was not, therefore, for the petitioner to
challenge the amended plans which had been approved
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by the S.R.A. on the petitioner’s own submissions.
In the said counter-affidavit, it was also stated
that the amended plan submitted by the petitioner
was for an independent ground floor structure and
an application was also made by the petitioner-
Developer for condonation of the open space
deficiency to allow the structure to touch the
compound wall. It is on such application that the
open space deficiency of 100% on 3 sides of the
structure for independent commercial structure was
allowed by the S.R.A. in accordance with the powers
vested in the Authority under the amended Sub-
regulation 6.24 of Rule 33(10) of DCR-1991.
11. Mr. Naphade drew our attention to paragraph 9
of the counter-affidavit where it had been
submitted by the S.R.A. that under the amended
provisions of Rule 51(xvi) of DCR-1991 operation of
a flour mill is permissible in a residential zone
if it is in a single-storeyed detached structure or
semi-detached structure and it was on such account
that the S.R.A. had sanctioned a single detached
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structure for the flour mill as per the amended
plan submitted by the petitioner. Mr. Naphade also
drew our attention to the statement made by the
S.R.A. that since no space was available in the
complex for construction of a structure to house
the flour mill as the rehabilitation building had
already been constructed as per the revised plan,
the S.R.A. had no option but to sanction the
amended plan for the flour mill on the available
open space on the application made by the
petitioner to protect the interests of the eligible
slum dwellers.
12. Mr. Naphade submitted that although Regulation
6.24 of the Development Control Regulation for
Greater Mumbai, 1991, had been relied upon to
justify the approval of the amended plans in
relaxation of the Building Rules, the said
provision was not intended to relax the said Rules
in order to cover a situation like the present one.
Since the said Regulation has a bearing on the
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facts of this case, the same is reproduced
hereinbelow :
“6.24 In order to make the Slum
Rehabilitation Scheme viable,
the Chief Executive Officer
of Slum Rehabilitation
Authority shall be competent
to make any relaxation
wherever necessary for
reasons to be recorded in
writing.”
13. Mr. Naphade contended that the petitioner was
being asked to make a construction which was in
contravention of the Building Rules and the
orders and directions issued in that regard
were liable to be quashed.
14. From the submissions of the learned counsel for
the respective parties it is evident that the
scope of the Special Leave Petition is very
limited and is confined to the question as to
whether having applied for and obtained
sanction of the amended plan from the SRA for
rehabilitating the flour mill of Respondent
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Nos.1 and 2, the petitioner can object to
raising the construction as per the amended
plan upon contending that the same was contrary
to the Building Rules and was not, therefore,
capable of being acted upon.
15. The fact situation in this case is quite
simple. Upon adjudication by the SRA it has been
established that the Respondent Nos.1 and 2 were
eligible for a residential-cum-commercial structure
measuring 275 sq.ft. under the Slum Rehabilitation
Scheme for CTS Plot Nos.545 and 548 of village
Kanheri Kulupwadi Road, Borivali (East), Mumbai.
It appears from the submissions made on behalf of
the petitioner that a space measuring 225 sq.ft.
had been kept apart in the main structure for the
Respondent Nos.1 and 2 and possession thereof had
been made over to the SRA, but since the same was
not conducive to the operation of a flour mill in
terms of the Building Rules, the same had remained
vacant and a direction had been given to provide
the Respondent Nos.1 and 2 with a structure
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detached from the main structure for running the
flour mill, in keeping with the Building Rules.
16. It has been brought to our notice that under
the amended provisions of Rule 51(xvi) of DCR,
1991, operation of a flour mill is permissible in a
residential zone if it is being operated in a
single-storyed detached structure or a semi-
detached structure. In view of the above, an
amended plan was submitted by the petitioner to the
SRA for sanction of a detached structure which was
situated in a portion of the area meant to be kept
as open space, upon relaxation of the Building
Rules. Despite recognition of their right to be
provided with at least 225 sq.ft. for operation of
their flour mill within the SRA Scheme relating to
Plot Nos.545 and 548, Kulupwadi Road, Borivali
(East) and sanction having been granted to the
amended plan, till today such space has not been
provided to the said respondents on one pretext or
the other. The eligibility of the said respondents
for being included in the said scheme was decided
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by the SRA in 2001, but on account of the
recalcitrant attitude of the petitioner, the
Respondent Nos.1 and 2 were unable to obtain
possession of such area for running their flour
mill.
17. Although, Mr. Naphade tried to convince us that
the amended plan had been approved by the SRA in
violation of the Regulations, the actual reality is
somewhat different. Under the Regulations related
to the Slum Development Scheme, the SRA has been
vested with authority to grant sanction to schemes
upon relaxation of the Building Rules in order to
further the policy of slum development. The
present case is one of those cases where such power
has been exercised by the SRA to provide suitable
space to the Respondent Nos.1 and 2, who were
eligible and entitled to receive the same under the
scheme in question.
18. In any event, the sanctioning authority/SRA,
has been vested with powers to relax the Building
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Rules under Regulation 6.24 to give effect to the
policy of Slum Development and Rehabilitation. It
cannot be ignored that it was the petitioner itself
which submitted the amended plan for the approval
of the SRA in order to provide suitable space to
the Respondent Nos.1 and 2 to set up and run their
flour mill in consonance with the Building Rules.
19. In our view, it is not for the petitioner to
question the approval granted to the amended plan
as the SRA was fully competent in law to grant such
approval. The plea, which has now been taken on
behalf of the petitioner, had not been raised
earlier and the petitioner had, in fact, agreed to
provide the Respondent Nos.1 and 2 with a separate
accommodation for setting up and running their
flour mill. It can only be presumed that a sudden
change in attitude has occurred only with the
object of trying to wriggle out of the commitment
made to provide the respondents with the alternate
space. We are unable to accept the stand taken by
the petitioner since the right of the Respondent
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Nos.1 and 2 to receive 225 sq.ft. of covered space
in the new construction by way of rehabilitation
under the SRA scheme for the area is no longer res
integra . Once the amended Building Plan was
approved by the SRA, which was competent to do so,
there could be no further objection on the part of
the petitioner to act in terms of the amended plan
and to provide the Respondent Nos.1 and 2 with the
alternate accommodation as provided for under the
amended plan.
20. We, therefore, see no merit in the Special
Leave Petition, which is accordingly dismissed. The
time for complying with the directions of the High
Court is extended by a period of eight weeks from
date.
21. There will be no order as to costs.
________________J.
(ALTAMAS KABIR)
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________________J.
(MARKANDEY KATJU)
New Delhi
Dated: 19.03.2009