Holding

The petitioner cannot contest the SRA‑sanctioned amended plan; the SRA’s authority to relax the Building Rules under Regulation 6.24 is valid and the petition is dismissed.

Summary

The case arose from a dispute under the Slum Rehabilitation Scheme where the developer (M/s Veena Corp.) had obtained the Slum Rehabilitation Authority’s (SRA) sanction for an amended plan to provide a detached structure for a flour mill belonging to respondents No.1 and No.2. The respondents were entitled to a 225 sq ft commercial space, but the developer later objected to constructing it, claiming the plan violated the Building Rules. The Supreme Court examined whether the SRA, under Regulation 6.24 of the Development Control Regulation for Greater Mumbai, 1991, could lawfully relax the Building Rules and whether the developer could thereafter contest the approved plan. The Court held that the SRA was fully competent to grant such relaxation and that the developer, having itself submitted the amended plan, could not now raise an objection. Consequently, the petition was dismissed and the High Court’s direction to provide the space within eight weeks was upheld.

Issues considered

Whether a developer who obtained SRA sanction for an amended plan can later object to its implementation on the ground that it contravenes the Building Rules.
Whether the Slum Rehabilitation Authority has the statutory power to relax Building Rules under Regulation 6.24 of the Development Control Regulation for Greater Mumbai, 1991.
Whether the petitioner is bound by its earlier commitment to provide a detached structure for the flour mill.

Subjects

Slum Rehabilitation SchemeDevelopment Control RegulationBuilding RulesAmended planSpecial Leave PetitionDeveloper obligationsRelaxation of building regulationsResidential‑cum‑commercial allotmentFlour mill

Judgment

[2009] 4 S.C.R. 675

~~
M/S VEENA CORP.THROUGH RAJAN BABULAL MEHTA
V.
ASHOK ARJANBHAI JOLIA & ORS.
Special Leave Petition (C) No.158~3 of 2008
MARCH 19, 2009
· [ALTAMAS K,;BIR AND MARKANDEY KATJU, JJ.]

J
Slum Rehabilitation Scheme: Development control
Regulation for Greater Mumbai, 1991 - Regulation 6.24 -
Rehabilitation of flour mill - Developer obtained sanction of
amended plan from Slum Reh.abilitation Authority - Later (

raised objection to the raising of construction as per amended
plan contending that same was contrary to Building Rules and
not capable of being acted upon - Held: Objection-not tenable.
The question which arose for consideration in the [
present Special Leave Petition, was whether having
applied for and obtained sanction of the amended plan
from the Slum Rehabilitation Authority for rehabilitating
the flour mill of Respondent Nos.1 and 2, the petitioner-
developer can object to raising the construction as per
the amended plan upon contending that the ~dme was E=
contrary to the Building Rules and was not, therefore,
,. ~.
capable of being acted upon.
Dismissing the special leave petition, the Court
HELD: 1. Upon adjudication by the SRA, it was F
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. A space
-4
measuring 225 sq.ft. was kept apart in the main structure
for the Respondent Nos.1 and 2 and possession thereof G
was 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 remained vacant and a direction

675 H
676 SUPREME COURT REPORTS (2009] 4 S.C.R.

A was given to provide the Respondent Nos.1 and 2 with a
structure detached from the main structure for running
the flour mill, in keeping with the Building Rules. [Para
15] [684-B-E]
2. Under the amended provisions of Rule 51(xvi) of
8 OCR, 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 this, an amended plan was submitted by the petitioner
to the SRA for sanction of a detached structure which was
C 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
and sanction having been granted to the amended plan,
D till ·date such space was not provided to the said
respondents on one pretext or the other. The eligibility of
the respondents for being included in the said scheme
was decided by the SRA in 2001, but on account of the
recalcitrant attitude of the petitioner, the Respondent
E Nos.1 and 2 were unable to obtain possession of such
area for running their flour mill. [Para 16] [684-F-H; 685-A]
3. Under the Regulations related to the Slum
Development Scheme, the SRA was vested with authority
to grant sanction to schemes upon relaxation of the
F Bu11ding 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
G the scheme in question. In any event, the sanctioning
authority/SRA, has been vested with powers to relax the
Building 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
H the amended plan for the approval of the SRA in order to
M/S VEENA CORP.THROUGH RAJAN BABULAL MEHTA 677
V. ASHOK ARJANBHAI JOLIA & ORS.
__,, provide suitable space to the Respondent Nos.1 and 2 to A
set up and run their flour mill in consonance with the
Building Rules. [Para 17 & 18] [685-B-E]
4. 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 B
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 c
has occurred only with the object of trying to wriggle out
of the commitment made to provide the respondents with
the alternate space. Once the amended Building Plan was
approved by the SRA, which was competent to do so,
~
,l there could be no further objection on the part of the D
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.
[Para 19] [685-F-H; 686-A-B]
CIVIL APPELLATE JURISDICTION : Special Leave E
Petition (C) No.15843 of 2008
,. J
From the Judgement and Order dated 13.03.2008 of the
Hon'ble High Court of Judicature at Bombay, in Writ Petition
No. 2298 of 2007. F
Shekhar Naphade, S.R. Mishra, Vimal Chandra S. Dave,
for the Appellants.
Anitha Shenoy, Sanjay Parikh, Jitin Sahni, A.N. Singh,
,; • j. Mamta Saxena, Gaurav Tyagi, Sanjay V. Kharde Arvind S. G
Avhad, Chandan Ramamurthi, for the Respondent.
The Judgement of the Court was delivered by
ALTAMAS KABIR, J.
1. This special leave petition arises out of steps taken by H
678 SUPREME COURT REPORTS [2009] 4 S.C.R.

A the Municipal Corporation of Greater Mumbai to remove 11
structures on Kulupwadi Road, Borivali (East), which were
allegedly causing a traffic bottleneck. Out of the 11structures9
ih
were demolished on 1 February, 2001. One of the structures,
however, occupied by Ganesh Flour Mill could not be removed
B 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
c 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
D Developer, Mis. Veena Corporation, is the petitioner in this
Special Leave Petition.
2. On 2"d 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-
E cum-commercial allotment. As respondent Nos.1 and 2 were
dissatisfied with the decision of the S.R.A., 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
F 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.
G 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 re:>pondent Nos.1 and 2 were entitled to use
H the residential-cum-commercial premises to run the flour mill.
,. MIS VEENA CORP.THROUGH RAJAN BABULAL MEHTA 679
V ASHOK ARJANBHAI JOLIA & ORS. [ALTAMAS KABIR, J]

---4 The S.R.A. reconsidered the matter and reiterated the earlier A
___, position holding that the applicants were eligible for one
commercial structure only since the same were not used for
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 B
1
the decision of the S.R.A. dated 12 h December, 2003 came to
be disposed of on 2ih 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 c
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 D
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. forthat purpose. The statement E
is accepted. The learned counsel appearing for
Respondent No.1 states that in case such an application
,. .l
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 F
a period of four weeks from the date of receipt of the
application. The statement 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
G
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 H
680 SUPREME COURT REPORTS [2009] 4 S.C.R. •·

A 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
1
and 2 would be entitled. Although, this was done on 14 h June,
2007, no further steps were taken by the petitioner herein or the
authorities of the S.R.A. to implement the amended plan.
B 5. The respondent No.1 thereupon made a representation
to the Chief Executive Officer on 2"d August, 2006. Since despite
a hearing having been given, no orders were passed on the
representation, the respondent Nos.1 and 2 filed a Contempt
Petition on 28th March, 2007. The same was dismissed on 26th
C 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,
D 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
E th . th
S.R.A. on 14 June, 2007 m response to the letter dated 8
February, 2007, written on behalf of the petitioner herein with
regard to the proposed amended plan of the composite building
of the S.R. Scheme on the plots bearing CTS Nos.545, 545/1
to 30, 546, 546/1 to 5 of village Kanheri, Kulupwadi, Borivali
F (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
1
G complied with, the Division Bench by its order dated 13 h 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
H the date of the order. VVhile passing the impugned order, the
;' M/S VEENA CORP.THROUGH RAJAN BABULAL MEHTA 681
V. ASHOK ARJANBHAI JOLIA & ORS. [ALTAMAS KABIR, J]
High Court made it clear that the respondent Nos.1 and 2 herein A
,--1
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 co.rnmercial space which would have to B
be constructed in accordance with the plan $anctioned 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 2"d April, 2008
requesting the petitioner to submit a plan for the flour mill with c
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,
D

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 E
contravention of the provisions of the Bombay Municipal Act,
A ~
the Building Rules and the·Slum Rehabilitation Scheme and in
the process was also compelling the petitioner to make such
unlawful construction.
F
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
G

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
H
682 SUPREME COURT REPORTS [2009] 4 S.C.R

A against the order dated 9.9.2002, being A.O. i\Jo.225 of 2003,
was in its turn disposed of on 1ih 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 opportunity of personal hearing to
B 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
C per the order passed by the Chief Executive Officer, S.R.A. on
1
10 h 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 2ih July,
2006, the petitioner-Developer had submitted the amended plan
D 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
E approved plans. It was not, therefore, for the petitioner to
challenge the amended plans which had been approved 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
F 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

G
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
H under the amended provisions of Rule 51 (xvi) of DCR-1991
M/S VEENA CORP.THROUGH RAJAN BABU LAL MEHTA 683
V. ASHOK ARJANBHAI JOLIA & ORS. [ALTAMAS KABIR, J.]

operation of a flour mill is permissible in a residential zone if it A
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 structure for the flour mill as per
the amended plan submitted. by the petitioner. Mr. Naphade
. also
drew our attention tq the statement made by the S.R.A. that since B
no space was available in the complex for construction of a
structure to house the flour mill as the rehabilitation building had
~I
already been constructed as per the revised plan, the SR.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 c
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
~ D
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 facts of this case, the same is reproduced
hereinbelow :
E
"6.24 In order to make the Slum Rehabilitation
4' j.
Scheme viable, the Chief Executive Officer
of Slum Rehabilitation Authority shall be
competent to make any relaxation
wherever necessary for reasons to be F
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. G

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 H
684 SUPREME COURT REPORTS [2009] 4 S.C.R.

A amended plan from the SRA for rehabilitating the flour mill of .,.
Respondent 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.
B
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
c 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 b~en made over to the SRA, but since the same was not
D
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
detached from the main structure for running the flour mill, in
keeping with the Building Rules.
E
16. It has been brought to our notice that under the
amended provisions of Rule 51(xvi) of OCR, 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-
F 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
G 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
H for being included in the said scheme was decided by the SRA
M/S VEENA CORP.THROUGH RAJAN BABULAL MEHTA 685
V. ASHOK ARJANBHAI JOLIA & ORS. [ALTAMAS KABIR, J.]
.-.--;; in 2001, but on account of the recalcitrant attitude of the A
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
B
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
c
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 D
vested with powers to relax the Building 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 E
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
F
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 G
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
Nos.1 and 2 to receive 225 sq.ft. of covered space in the new
H
686 SUPREME COURT REPORTS [2009] 4 S.C.R

A construction by way of re:1abilitation 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
B 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
C eight weeks from date.

21. There will be no order as to costs.

D.G. SLP dismissed.