# 6 S.C.R. 750 BALASAHEBARJUN TORBOLE & ORS v. THE ADMINISTRATOR & DIVISIONAL COMMISSIONER &ORS

- **Citation:** [2015] 6 S.C.R. 750
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Civil Appeal No.9363 of2011
- **Bench:** M.Y. Eqbal, Shiva Kirt! Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-s-c-r-750-balasahebarjun-torbole-ors-v-the-administrator-divisional-30782
- **Pages:** 32

## Headnote

Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971:
s. 3A, 38, 3C, 4 - Object of- Discussed.
D
Clubbing of slum areas over municipal plots and those
over private plots - Appellants, residents in the slum on
private plots owned by developer/owner of the land -
Grievance of appellants that authorities have wrongly treated
that there existed a consent for redevelopment from 70% of
E the occupants and in declaring common slum area over two
different kind of lands - Appellant claimed that they should
be allowed to have the redevelopment through a cooperative
of occupants of private plots exclusively - Held: There is no
F illegality in clubbing of private land and Municipal
Corporation land for declaring a contiguous area as slum
area for the purposes of approving a slum rehabilitation
scheme for such area - The authorities having verified the
particulars contained in Annexure II, were entitled to treat the
G 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
H
750
BALASAHEBARJUN'TORBOLE v. THE ADMINISTRATOR 751
& DIVISIONAL COMMISSIONER
available, the authorities did not commit any illegality so as A
to vitiate the grant of approval for slum development scheme
in question - Development Control Regulations, 1991 -
Maharashtra Regional and Town Planning Act, 1966 -
ss.2(15), 2(19)- Mumbai Municipal Corporation Act, 1888s.354AAA.
B
Dismissing the appeals, the Court
HELD: 1. The procedure for submission, processing
and approval of slum rehabilitation schemes contains a C
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 o
residential, industrial etc. and the list of eligible and
ineligible occupants and consent to join the scheme.
The guidelines also indicate that circular no.4 dated
27 .08.1997 had been issued by SRA to give details of
the simplified procedure. This circular provides that in E
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/GP/NGO. A copy of the same will F
be then forwarded to the competent authority for getting
it certified. [paras 14, 15] [771-B-D; 772-A-C]
2. The appellants have failed to produce any material
to show that there was no Annexure II submitted before G
the SRA or that there was no verification made by the
competent authority. The records clearly disclosed 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% H
752
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A 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
B 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. When in
aggregate consent of 70% or more slum dwellers has
been obtained, the essential purpose of slum
C 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
0
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 o

## Text

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A
B
c
(2015) 6 S.C.R. 750
BALASAHEBARJUN TORBOLE & ORS.
v.
THE ADMINISTRATOR & DIVISIONAL COMMISSIONER
&ORS.
(Civil Appeal No.9363 of2011)
APRIL01,2015
[M.Y. EQBAL AND SHIVA KIRT! SINGH, JJ.]
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971:
s. 3A, 38, 3C, 4 - Object of- Discussed.
D
Clubbing of slum areas over municipal plots and those
over private plots - Appellants, residents in the slum on
private plots owned by developer/owner of the land -
Grievance of appellants that authorities have wrongly treated
that there existed a consent for redevelopment from 70% of
E the occupants and in declaring common slum area over two
different kind of lands - Appellant claimed that they should
be allowed to have the redevelopment through a cooperative
of occupants of private plots exclusively - Held: There is no
F illegality in clubbing of private land and Municipal
Corporation land for declaring a contiguous area as slum
area for the purposes of approving a slum rehabilitation
scheme for such area - The authorities having verified the
particulars contained in Annexure II, were entitled to treat the
G 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
H
750
BALASAHEBARJUN'TORBOLE v. THE ADMINISTRATOR 751
& DIVISIONAL COMMISSIONER
available, the authorities did not commit any illegality so as A
to vitiate the grant of approval for slum development scheme
in question - Development Control Regulations, 1991 -
Maharashtra Regional and Town Planning Act, 1966 -
ss.2(15), 2(19)- Mumbai Municipal Corporation Act, 1888s.354AAA.
B
Dismissing the appeals, the Court
HELD: 1. The procedure for submission, processing
and approval of slum rehabilitation schemes contains a C
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 o
residential, industrial etc. and the list of eligible and
ineligible occupants and consent to join the scheme.
The guidelines also indicate that circular no.4 dated
27 .08.1997 had been issued by SRA to give details of
the simplified procedure. This circular provides that in E
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/GP/NGO. A copy of the same will F
be then forwarded to the competent authority for getting
it certified. [paras 14, 15] [771-B-D; 772-A-C]
2. The appellants have failed to produce any material
to show that there was no Annexure II submitted before G
the SRA or that there was no verification made by the
competent authority. The records clearly disclosed 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% H
752
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A 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
B 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. When in
aggregate consent of 70% or more slum dwellers has
been obtained, the essential purpose of slum
C 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
0
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
E 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
F 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 should not be jettisoned only
on technical grounds or procedural infirmities unless the
G persons coming to the court and seeking relief through
writ petition are able to show that they have suffered
injustice or legal injury. In the present case, the only legal
injury to appellants as per their own submission was that
if the private plots were treated as separate slum area,
H the residents of these plots alone could have formed and
BALASAHEBARJUN TORBOLE v. THE ADMINISTRATOR 753
& DIVISIONAL COMMISSIONER
carried out development scheme through their own A
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, the appellants could
not have been granted relief in writ jurisdiction. [paras B
19, 20, 21] [775-A-H; 776-A-C]
3. IDCR of 1991 particularly clause 1.15 of Appendix
IV clearly shows that 70% or more of the eligible hutment
dwellers in a slum or pavement in a viable stretch at one C
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 D
'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 OCR 1991 also E
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 F
Space Index (FSI) thereto. [para 22] [776-D-H]
4. 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. No such case could be G
made out by the appellants so as to require interference
on account of alleged shortcomings in preparation or
verification of Annexure II. In the light of statutory
provisions brought about through amendments in the H
'
754
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A 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. The impugned
judgment of the High Court also records that out of a
total of 443 slum dwellers, 82% slum dwellers had
B 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
C long back. Photographs produced show that
redevelopment activity is going on and permanent
structures have cc-me up on a large area. Such facts
also were rightly considered by the High Court as
D relevant for dismissing the writ petitions. [paras 28, 29,
30] [780-G-H; 781-A-G]
E
• F
Pramila Suman Singh v. State of Maharashtra (2009) 2
SCC 729: 2008 (17) SCR 1517; Om Sai Darshan CHS v.
State of Maharashtra 2006(5) All.MR 323 - Distinguished.
Case Law Reference
2006(5) All.MR 323
Distinguished
Para 23
2008 (17) SCR1517
Distinguished
Para 28
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
9363 of2011
From the Judgment and Order dated 31.08.2010 of the
High Court of Judicature of Bombay in W. P. (L) No. 1915 of
2010.
G
With
H
Civil Appeal No. 9147 of 2011
Sanjay Parikh, Tushar Kochale, A.N. Singh, Ritwik Parikh,
Anitha Shenoy, A~un Krishnan for the appellants.
C.A. Sundaram, Shyam Divan, Atul Yeshwant Chitale,
BALASAHEBARJUN TORBOLE v. THE ADMINISTRATOR 755
& DIVISIONAL COMMISSIONER
Jayant Bhushan,Aftab Diamondwala, Devansh Mehta, Gaurav A
Agrawal, Sheetal Angane, Pradeep Jain, Devendra Patnakar,
Subrat Birla, S.C. Birla, SuchitraAtul Chitale, Priyanka Mehta,
Sanjay Kharde, Preshit Surshe, Chandan Ramamurthi, Prema
Mehta, Arjun Krishnan, Nitin S. Tambwekar, Aniruddha P.
Mayee, Asha Gopalan Nair for the respondents.
B
The Judgment of the Court was delivered by
SHIVA KIRTI SINGH, J. 1. These civil appeals are
directed against judgment of Bombay High Court dated
31.08.2010 in W.P.(L) No.1915 of2010 and dated 10.08.2010 C
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 0
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, E
106/1to5,107/1to9,108(Part), 111(Part), 111/1to77,80to
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
F
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 G
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 H
over private plots of having their own redevelopment activity
756
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
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
B 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
C 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.
D
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
E 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
F
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.
G
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
H violation of law in grant of approval to the rehabilitation scheme
BALASAHEB ARJUN TORBOLE v. THE ADMINISTRATOR757
& DIVISIONAL COMMISSIONER [SHIVA KIRTI SINGH, J.)
in the instant case to which respondent no.8 had given his A
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 B
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 :
C
"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 o
present petitioners. In the appeal, the petitioners
"
challenged the sanction of a scheme by the Slum
Rehabilitation Authority on lands bearing CTS No .106,
106/1to5, 107/1to9, 108(pt), 111(pt), 111/1to77, 80
to 132 & 112(pt) of village Kurla, Hutatma Prabhakar E
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 F
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
G
be slum areas under section 4(1) of the Maharashtra
Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (for short 'Slum Act') by a
H
758
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
(2015] 6 S.C.R.
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 respondentMunicipal Corporation issued Annexure-11 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
BALASAHEB ARJUN TORBOLE v. THE ADMINISTRATOR 759
& DIVISIONAL COMMISSIONER [SHIVA KIRTI SINGH, J.]
individual agreements of at least 70% of the eligible slum A
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 B
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 C
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 D
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 E
respondent Nos.8 and 1 O 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 F
Committee dismissed the appeal. Hence the present
writ petition which came to be filed on 17 August 201 O."
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') G
define 'local authority' and 'planning authority' in following terms
"2(15) 'local authority' meansH
760
SUPREME COURT REPORTS
(2015] 6 S.C.R.
A
(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
B
Provincial Municipal Corporation Act, 1949,
c
D
(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 SamitisAct,
1961,
(ii) the Authority constituted under the Maharashtra Housing
andArea DevelopmentAct, 1976,
(iii) the Nagpur Improvement Trust constituted under the
Nagpur Improvement TrustAct, 1936
E
which is permitted by the State Government for any area under
F
G
H
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;"
BALASAHEB ARJUN TORBOLE v. THE ADMINISTRATOR 761
& DIVISIONAL COMMISSIONER [SHIVA KIRTI SINGH, J.]
It is rel.evantto note that' Planning Authority' not only means A
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.
8
7. The power available to the planning authority to modify
final development plan under sub-section (1) of Section 37 of
· the 1966Act has also been now vested in the SRA appointed
under Section 3-Aofthe 1971 Act by adding sub-section(18) C
to Section 37 through an amendment of 1996. This sub-section
reads as follows :
"(18) Notwithstanding anything contained in sub-section
(1), ifthe Slum Rehabilitation Authority appointed under o
section 3Aofthe 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 E
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 F
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 sanction."
G
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 H
762
SUPREME COURT REPORTS
[2015) 6 S.C.R.
A the 1971 Act. It reads as follows :
"354AAA. Empowerment of Slum Rehabilitation
Authority for implementation of Slum Rehabilitation
Scheme.-Notwithstanding anything contained in any
B
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
C
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
D
Act."
9. The Maharashtra Slum Areas (Improvement, Clearance
ar.d Redevelopment) Act, 1971(the1971 Act) was enacted to
m• 1ke better provision for the improvement and clearance of
E slL m 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,
re~roduced hereinbelow:
F
G
H
"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
section4A;
(h) 'Slum clearance' means the clearance of any slum
area by the demolition and removal of building therefrom;
(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
8ALASAHE8 ARJUN TOR80LE v. THE ADMINISTRATOR 763
& DIVISIONAL COMMISSIONER [SHIVA KIRTI SINGH, J.]
into or creates illegal tenancies or leave and licence A
agreements or any other agreements in respect of such
lands, or who constructs unauthorizeq 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 8
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, C
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 abovementioned things.
(h-b) 'Slum Rehabilitation Area' means a slum
rehabilitation area, declared as such under sub-section
(1) of section 3C by the CompetentAuthority in pursuance
of the Slum Rehabilitation Scheme notified under section
38;
(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 38;"
D
E
F
10. Section 3Aenvisages a Slum Rehabilitation Authority
(SRA) for implementing slum rehabilitation schemes. Section G
38 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 H
764
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A 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 :
B
"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
C
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
D
such manner as may be specified by the Slum
Rehabilitation Authority.
(2)Anyperson aggrieved by the slum rehabilitation order
may, within four weeks of the publication of such order
E
prefer an appeal to the Special Tribunal; and the decision
of the Special Tribunal shall be final.
F
(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
G 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.
H
It is not in dispute that for its own lands the Bombay
BAt:ASAHEB ARJUN TORBOLE v. THE ADMINISTRATOR 765
& DIVISIONAL COMMISSIONER [SHIVA KIRTI SINGH, J.]
Municipal Corporation has been appointed as the Competent A
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
B
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 'OCR') came into force on 25.03.1991. Regulation
33(10) was inserted later in 1997. Its salient features are as C
follows:
"I. Eligibility for redevelopment Scheme.-(a) For
redevelopment of slums including pavements, whose
inhabitants' names and structures appear in the electoral o
roll prepared with reference to 1 '1January1995 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.
E
(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 F
the structure, shall have no right whatsoever to the
reconstructed tenement against that structure.
II. Definition of Slum, Pavement, and Structure of
hut.-(i) For this purpose, slums shall mean those G
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.
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(ii) If any area fulfills the conditions laid down in section 4
of the Maharashtra SlumAreas (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
B
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
C
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
D
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
E
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 Projects.
F
G
H
(v) A pavement shall mean any Municipal/GovernmenU
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 1 •1 January, 1995 and regardless of the number of
persons, or location of rooms or access.
(vii) A composite building shall mean a building
BALASAHEB ARJUN TORBOLE v. THE ADMINISTRATOR 767
& DIVISIONAL COMMISSIONER [SHIVA KIRT! SINGH, J.]
comprising both rehab and freesale components or parts A
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 B
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.
Ill. Joint ownership with spouse.-The reconstructed c
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 cooperative housing society, including the share certificates
or all other relevant documents.
D
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 area." E
Appendix IV contains various guidelines as indicated in
Regulation 33(10) and some of the relevant guidelines
are extracted hereinbelow:
" RIGHT OF THE HUTMENT DWELLERSF
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 G
residential tenement having a carpet area of (20.90 sq.m.
(225 sq.ft)) including balcony, bath and watercloset, but
excluding common areas.
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B
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E
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1.3All 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 structure.
1.15 Where 70 per cent or more of the eligible hutmentdwellers 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.
BUILDING
PERMISSION
FOR
SLUM
REHABILITATION PROJECTS :-
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
BALASAHEB ARJUN TORBOLE v. THE ADMINISTRATOR 769
& DIVISIONAL COMMISSIONER [SHIVA KIRTI SINGH, J.)
Slum Rehabilitation Authority within a period of 30 days A
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.
B
3.14 Amalgamation/Sub-division of Plots and
Balancing of FSI thereon.-Any land declared as slum c
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 o
amalgamation/sub-division of land would be necessary.
3.16 The Chief Executive Officer, Slum Rehabilitation
Authority may if required adjust the boundary of the plot E
declared as slum rehabilitation area so as to suit the
building design and provide proper access to the Project.
F
7.7 Wherever slum and municipal/MHADA property are
found together or adjoining it would be eligible for
redevelopment using provisions of both OCR 33(7) and
OCR 33(10). Development of slum and contiguous nonslum area under any other provisions of regulations may G
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 TOR on non-slum area. Such a project shall H
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be deemed to be a Slum Rehabilitation Project and
plans for non-slum area including the plans for admissible
TOR 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
B
exercised by the Chief Executive Officer, Slum
Rehabilitation Authority in respect of slum rehabilitation
areas/projects.
7.8 In case of two or more number of slums taken up for
C
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
D
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
E 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 a/ia, indicate the procedure for submission,
F 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
G 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
H society should collect the necessary documents and get the
BALASAHEB ARJUN TORBOLE v. THE ADMINISTRATOR 771
& DIVISIONAL COMMISSIONER [SHIVA KIRT! SINGH, J.]
plot surveyed/measured and prepare map of the plot showing A
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 B
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
andAnnexure II prescribed by SRA should be filled up so as to
give the details of land occupied by the slum dwellers, number C
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 D
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 E
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 OCR 33(10). All
F
required documents such as building plan, layout plan etc. along
withAnnexure l,Annexure II andAnnexure Ill 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 G
to ensure that it is complete with all documents and then the
proposals are accepted. Thereafter the scrutiny of Annexures
I, II and Ill begins in different wings such as Building
Permissions, Eligibility Certification and Accounts & Finance
respectively.
.
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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
B architect/developer or society bearers may submitAnnexure II
in duplicate, as prepared by them in the prescribed proforma
signed by owner/developer/GP/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
C Annexure II submitted by the architect but approval will be on
the basis of certifiedAnnexure II from the competent authority
and for this the SRA will follow up with the respective competent
authority.
D
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
E Appeal No.9363 of 2011. The remaining plots, i.e., plot
no.109(pt), 11 O(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,
F 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.