Case: Balasaheb Arjun Torbole  Vs. The Administrator &amp; Divnl.Commr

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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]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 ina viable stretch at oneplace can agree to join a rehabilitation scheme. There is no merit in the submission on behalf of the appellants that the clausea viable stretch at oneshould be read only in conjunction with the wordand not the wordalthough the use of the wordbetween slum and pavement clearly shows both have to be treated at same footing and therefore both are qualified by the clausea viable stretch at oneClause 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.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.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.