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

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 appealWhat 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 ‘Slumby 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 shortOn 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 Certificate.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.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 appealt 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 ‘Slumby 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 shortn 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 Certificate.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.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 ina viable stretch at oneplace 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 respectively.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 ofrecognized 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.

Reasoning:
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.