~~ M/S Veena CORP.THROUGH Rajan Babulal Mehta vs Ashok Arjanbhai Jolia & Ors.

Borivali (East), which were allegedly causing a

traffic bottleneck. Out of the 11 structures 9

were demolished on 12th February, 2001. One of the

structures, however, occupied by Ganesh Flour Mill 2

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.

2. On 2nd 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., 3

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 4

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

decision of the S.R.A. dated 12th December, 2003

came to be disposed of on 27th 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 5

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.

Although, this was done on 14th 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

representation to the Chief Executive Officer on 2nd

August, 2006. Since despite a hearing having been

given, no orders were passed on the representation, 6

the respondent Nos.1 and 2 filed a Contempt

Petition on 28th March, 2007. The same was dismissed

on 26th September, 2007, upon the finding that the

order passed on 8th 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

Petition No.2298 of 2007 on 9th October, 2007,

challenging the letter/order passed by the S.R.A.

on 14th June, 2007 in response to the letter dated

8th 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, 7

Borivali (East), Mumbai, wherein the petitioner was

directed to comply with certain conditions.

7. Although, since according to the petitioner the

conditions contained in the letter/order of 14th

June, 2007, could not be complied with, the

Division Bench by its order dated 13th 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 8

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

written by the S.R.A. on 2nd 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

Bench of the High Court passed on 13th 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 9

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

godown, was dismissed on 9th September, 2002. The

appeal preferred against the order dated 9.9.2002,

being A.O. No.225 of 2003, was in its turn disposed

of on 17th 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 10

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

Executive Officer, S.R.A. on 10th 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

2004 on 27th 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 11

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 12

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 13

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 14

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 15

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 16

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 17

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 18

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) 19

________________J.

(MARKANDEY KATJU) New Delhi

Dated: 19.03.2009