C

ou

rt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1326 OF 2007

.. Petitioners

ig
h

Tulsiwadi Navnirman Coop.

Housing Society Ltd. & Anr.
Versus
State of Maharashtra & Ors.

.. Respondents

om

ba
y

Mr.S.U.Kamdar with Archana Panchal i/b.P.G.Desai

for petitioners
Mr.K.K.Singhvi, Senior Advocate with S.S.Pakale
and Aruna Savla for Mumbai Municipal Corporation.
Mr.T.N.Subramaniam,
Senior
Advocate
for
intervenors
Mr.Shrihari Aney, Senior Advocate with Sanjay
Jain and N.M.Dhruva i/b. M.Dhruva and Company
for respondent No.6
Mr.Ravi Kadam, Advocate General with K.R.Belosey,
G.P. for State
Mr.Ravi
Kadam,
Advocate
General
with
Mr.G.D.Utangale i/b. Utangale & Co. for S.R.A.
WITH

WRIT PETITION NO.887 OF 2004

Anup Kalyandasani
Versus
Municipal Corporation of Gr.
Mumbai and Ors.

.. Petitioner
.. Respondents

WITH
WRIT PETITION NO.75 OF 2006
WITH

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C
ou

rt

NOTICE OF MOTION NO.750 OF 2006

Daryus Panthakey
Versus
Municipal Corporation of Gr.
Mumbai and Ors.
WITH

.. Petitioner

.. Respondents

ig
h

WRIT PETITION NO.1707 OF 2006

Vilas Nana Agawane & Ors.
.. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents

WITH

WRIT PETITION NO.2186 OF 2006

ba
y

Lokhandwala Idnfrastructure
Pvt.Ltd.
Versus
Slum Rehabilitation Authority
and Ors.

.. Petitioner
.. Respondents

WITH

PUBLIC INTEREST LITIGATION NO.20 OF 2007

om

Mangesh V. Hedulkar
Versus
B.M.C. & Ors.

.. Petitioner
.. Respondents
WITH

WRIT PETITION NO.74 OF 2007

WITH
CHAMBER SUMMONS NO.244 OF 2007

Shivaji Nagar Rahiwashi Sangh

and Ors.

.. Petitioners

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Versus
State of Maharashtra & Ors.

C
ou

rt

.. Respondents

WITH

WRIT PETITION LOD.NO.678 OF 2007

.. Petitioners

ig
h

Ravindra C. Patra and Ors.

Versus
Slum Rehabilitation Authority
and Ors.

.. Respondents

WITH

WRIT PETITION LOD.NO.759 OF 2007

Lok Jagran Manch, Mumbai & Ors. .. Petitioners

Versus
Slum Rehabilitation Authority
and Ors.
.. Respondents

ba
y

WITH
WRIT PETITION NO.1193 OF 2007

om

Anvarul Mehbula Chaudhary

Versus
Chief Executive Officer (SRA)
and Ors.
CORAM

.. Respondents

SWATANTER KUMAR, C.J.

DR.D.Y.CHANDRACHUD, J &
S.C.DHARMADHIKARI, J.
22nd August 2007
1st November 2007.

Reserved on:
Pronounced :

.. Petitioner

JUDGMENT

(Per Dharmadhikari, J) :-

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.
Full

These

petitions

C
ou

rt

are placed

before

the

Bench after a detailed order was passed

in

2.

The

ig
h

W.P.No.1326 of 2007 on 27th July, 2007.

Maharashtra Slum Areas (Improvement,

Clearance

and

Re-development)

Act,

1971,

(hereinafter referred to as "Slum Act" for short)

to

2001,

be extensively amended in

came

introducing

Chapter

I-A

1996-97

therein.

and
That

Chapter is entitled "Slum Rehabilitation Scheme".

that

Chapter

ba
y

Under

provision

falls

Section

om

This

is inserted with a view to establish a

Slum Rehabilitation Authority (S.R.A.

for

3A.

implementing

Slum

for short)

Rehabilitation

Scheme.

After this Chapter was introduced in the Slum Act

and

such

Authority

Brihanmumbai

and

decided

undertake

to

of

functional

its suburbs, that

rehabilitation schemes.
proliferation

became

Slums

and

the

implement

for
S.R.A.

several

The State took notice of

on

public

lands

and

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properties.
powers
are

Therefore, it decided to confer wide

on

the S.R.A.

cleared

with

the

so that the public

by S.R.A.

acting

local authorities.

in

lands

coordination

For that

purpose,

State Government made appropriate amendments

ig
h

the

C
ou

rt

and inserted provisions in the planning and local

laws.
was

Insofar

S.R.A.

put in charge of permitting developments

which had large slum pockets.

lands,
of

as, Mumbai is concerned,

private/public

amending

Lands were

Therefore,

Maharashtra Regional and Town

(M.R.T.P.

ba
y

Act

ownership.

Act) for short, the

after

Planning

Development

Control Regulations for Brihanmumbai (D.C.

1991)

also

amended.

Regulations

om

Control

were

22(m) of the M.R.T.P.

development

to

be

are

These

traceable

Act, 1966.
controlled,

on

Rules

Development
to

section

For individual
monitored

and

regulated as also restricted, development control

rules

were

made and they are traceable

to

the

Development Plan itself.

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3.

One

of

Regulations,

C
ou

rt

the

to

Regulations in the

set

control development in

of

Mumbai,

pertains to Floor Space Index and its computation

(F.S.I).

While, computing the permissible F.S.I.

were

offered

by

ig
h

for development of the lands/property, incentives

(Brihanmumbai

the

State

Local

Body

Corporation)

to

Municipal

and

and Builders.

upon

them

as also the owners of

lands

to

same

site

as

far

ba
y

this

plot/land.

The

as

possible

obligation

private

to

adjustments

outer limit.

the

and

after

develop

the

incentive was increased

appropriate

permissible

om

these

rehabilitate the slum dwellers at

discharging

or

An obligation was cast

Developers

in

F.S.I.

computing

At the same time,

the

slum pockets were also offered incentive inasmuch

as

persons

organise
Societies

residing in slums were permitted

themselves
and

into

Cooperative

such Cooperative

to

Housing

Societies

were

further permitted to come forward with a proposal

for

development of the land, on which slums

are

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situated

or

themselves

located,

C
ou

rt

by

societies

an outside Agency and

incentives

or

either

were offered for the same as well.

The underlying object for the above being

clearance
and

of

ig
h

4.

the lands by removal of the

dilapidated

structures.

has

been

fact

taken

repeatedly, that large scale

takes

place as far as Government properties

and

lands

are

and

its

unable

to

concerned.

ba
y

instrumentalities
control

and

encroachment,

unauthorised

encroachment

The Government
agencies

are

illegal

squatting

development

on

its lands

om

political will and strength is lacking.

pockets

being

prohibitory
time.

well

which judicial notice

known

of

It is now

slums

Vote

Banks,

as

and
the

The slum

preventive

measures are not initiated at

or
right

The number of encroachers and squatters on

lands, roads and pavements have increased and one

can

witness the same.

offered

as

above

Once the incentives

and

regulatory

were
and

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rehabilitation

C
ou

rt

number

of

measures and schemes were

mooted

disputes and differences between

the

slum dwellers/encroachers and the local authority

appropriate

consuming

valuable time of this Court.

disputes,

the

Authorities
State

agencies have arisen which

and

such

of

the

Agencies are highlighted.

The

acts

and

are

In

ig
h

and

and

omissions

grievance.

Hence, steps are taken

principal

the SRA does not resolve them is

the
to

approach this Court.

Every

Division

ba
y

5.

constitutional

Bench

assigned

and writ matters on the

Original

Side has to deal with petitions under Article 226

om

of the Constitution of India arising specifically

from

Mumbai,

differences

resolve

are

wherein

above

involved.

disputes

The request

the same in this Courts

and
is

to

constitutional

and Writ Jurisdiction.

6.

Noticing

an

increasing

spate

of

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litigation

and

differences

the

nature

projected

that

certain

which

would

of

C
ou

rt

disputes

therein, it

parameters

was

need to be

and

decided

laid

down

enable this Court to take note

of

first

foremost

and

genuine grievances.

Hence,

ig
h

cognisance

and

objective of setting

the
up

larger bench was laying down the parameters.

The

second

constituting
was

raised

which

conflicting

but

om

been
not

with regard to parameters referred to above

also the rights of the slum dwellers and the

question

rights.
invited

have

by Division Benches of this Court

extent to which the State and S.R.A.

the

contention

views

ba
y
only

necessitated

Full Bench is that a

that

expressed

reason

7.

Court,

In

and
this

issues arising
behalf,

the

can go into
out

of

attention

such
was

to some Division Bench decisions of this

which

(consisting

are

noticed by a

Division

Bench

of Honble Chief Justice and Honble

Dr.Justice D.Y.Chandrachud).

The conflict was on

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account

C
ou

rt

10

of some observations in these

decisions

with

regard to the nature of the power conferred

upon

the State and the S.R.A.

of

implementation

resolve

monitoring

Scheme.

of

A request was

Slum

made

to

the disputes and differences and set

at

ig
h

Rehabilitation

and

during the course

rest the controversy with regard to the authority

power of the State Government and S.R.A.

settle
and

to

and adjudicate upon the questions, issues

disputes

and

raised

during

the

course

of

ba
y

implementation and rehabilitation scheme.

8.

Noticing

the issues and questions of far

reaching public importance raised during the oral

om

arguments,
felt

that

that

a Division Bench of this

Court

it would be just, fair and proper

to

constitute a larger bench and refer to it certain

questions,

for

being answered.

This is

how

Full Bench has been constituted.

9.

The

facts in the Writ Petitions need not

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be noticed in great details.

in

reliefs

Writ

declared

the

powers

Municipal

the

2005

of

respondent Nos.

arising

thereof

2 and

Corporation and S.R.A.

not

and

as illegal, invalid, ultravires

of

the

of

viz.,

Although, this

petition which could be

representative

said

questions

and

to

be

issues

frequently, yet, some indication thereof

ba
y

available from the allegations and statements

made

therein.

tenants

Petitioners therein are occupiers

of tenements situate at

Mumbai.

om

Tardeo,
tenants

2007,

of building plans in pursuance

be

and

of

February 2005 and 30th April

sanction

is

No.1326

claimed are that, the permission granted

11th

is

Suffice it to state

ig
h

on

Petition

that

C
ou

rt

11

Some

of

the

Tulsiwadi,

occupiers

and

from amongst 3220 families are Municipal

Employees.

The Municipal Employees are housed in

structures

and

Municipal

building

Corporation

are

slums

The

occupants

which

whereas other

and huts occupied by

of

are

these

slum

owned

by

structures
dwellers.

tenaments/chawls

and

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structures

promoted

including

respondent

society.

Later

these

societies

umbrella

of

17

different

societies

No.5 which is

proposed

on 16 of the societies
came

petitioner

together
No.1.

out

under

The

ig
h

17

C
ou

rt

12

of

the

petitioner

persuaded the proposed society also to join them.

That

attempt

could

occupiers

in

not

succeed.
the

became

with

usual

dilapidated

members

structures/slums/huts
societies

As

of

these

a view to fulfil their dream

having

alternate

ba
y

construction/tenaments.

of

permanent
Shanties,

slums

and

dilapidated structures in which such persons were

staying

om

of

for decades together being on the

collapse

or

likely

to

be

verge

demolished,

an

opportunity was taken by the occupants thereof to

present

the

a proposal or scheme for development

property/land upon which the structures

standing.
opinion

However,

there being

difference

of
are
of

between two societies, two proposals for

development

were

presented.

Thus,

on

one

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C
ou

rt

13

property there was a scheme which was proposed by

society which was yet to be registered whereas
was

society,

proposed

yet,

respondent
for

another

No.6.

further

common

eminent

by

this

proposed

and

scrutiny.

the

by

It

is

proposals/schemes

these societies were

on

No.1

and developers.

financed

There

by

was

account of the rival schemes

a
and

Court by an order dated 23rd February

1999

2406 of 1998 appointed Mr.Justice

M.N.Chandurkar

(Retd.

ba
y

passed in W.P.

Court)

to

om

with

regard

developer
was

the

record
Learned

to

had

the

schemes.

appointed

allegations

The

respondent

Municipal

for the scheme/project which

subject

petition

Chief Justice Madras High

consider and go into the

Corporation

petitioner

All the schemes were presented

that

builders

litigation

the

scheme was

processing

ground

presented

by

ig
h

another

matter

of

No.6

as

decision

challenge

in

the

and the Honble Judge was requested

to

his opinion and forward it to this Court.

Judge opined that the decision to

award

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the

C
ou

rt

14

contract to respondent No.6 does not

suffer

from any undue preference or favouritism.

urban

renewal scheme of Tulsiwadi what

petitioners
several

allege

that

permissions

implementing
the

is

scheme

entertaining

despite

and

the

obtaining

clearances

for

the comprehensive scheme, later

was

sought

to

the

After setting out the salient features of

ig
h

10.

of

the property for

D.C.

Regulation

ba
y

divided

by

request from slum dwellers on

portion

D.C.Regulations.

be

on

development

No.33(10)

under

of

the

Petitioners contention is that

Regulation 33(9) of the said Regulations would be

applicable one but taking into consideration

om

the
the

request

pockets

scheme

of

slum

dwellers

on

portion

the properties in question,

purporting to be under D.C.

33(10),
being

of

in

derogation

entertained.

It

another

Regulations

of the main
is

or

alleged

scheme,
that

is
the

bifurcated scheme is supported by an minuscule of

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C
ou

rt

15

slum dwellers and hutment occupiers.

separate
the
been

pocket or portion or property to say in

least.

Yet, a list of these structures

separately

prepared

and

the

property

comprising

of

developed

113

known

has

map/plan

is

Thus, a portion

ig
h

prepared pertaining to the same.

of

It is not a

as

Jijamata

Nagar

structures is sought

separately under D.C.

to

be

Rule 33(10) and

that purpose, approvals have been granted by

the

B.M.C.

therefore,

for

and

S.R.A.

The

larger

scheme,

has necessarily been given a go-by by

ba
y

this action of the authorities, who are owners of

the

properties as well.

In such

circumstances,

permitting redevelopment for housing occupants of

om

only

113 structures is neither beneficial nor in

the interest of slum dwellers and other occupants

nor

is

the

supportable
malafide
and

21

decision
in

law.

taken

on

that

The decision is

basis

contrary,

and violative of mandate of Article

of the Constitution of India.

In

14
such

circumstances, the decision and orders be quashed

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C
ou

rt

16

and set aside.

11.

Insofar

This
Court

petition was earlier

on

disputed

of

that

facts.

it

by

involves

However,

the
Court

behalf and remanded the matter to

Court

to

reconsider

Supreme

Court

open

the

expressed

writ
no

petition.

this

opinion

on

The
the

or otherwise of the submissions.

ba
y

correctness

all

questions

including

that

It
of

of the petition and grant of any

relief therein.

In that petition, the petitioner

om

maintainability

claims

to

have right, title and interest in

immovable
Wadi,

ground

of

dismissed

Court set aside the order of this

that

left

the

questions

Supreme
in

representative

is concerned, the same is W.P.No.75

2006.
this

another

ig
h

petition

as

into

Naigaon, Dadar.
this

petition
is

property being Dastoor Block,

aspect

an

Dastoor

It is not necessary to go

in details

inasmuch

proceeds to allege that the

as

the

petitioner

co-owner of this property, which has

been

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particularly described at Annexure A to the

petition.

It

predecessors

is

of

rights

in

public

purpose

the

benefit

alleged
to

Rule

said property to

for putting up a school and

not

private

are M.C.G.B.

developer.

and its

officers

for combined re-development

bearing
and

C.S.No.4
1/5

ba
y
om

the

in the petition that respondent Nos.

respondent

are

and

of

have

4-1/4

Matunga

of

of

the

Naigaon

Division.

The

to develop the same was moved

Nos.

societies

5 and 6 who

are

proposed

of the occupants.

beneficiaries

re-development.

his

is

cooperative

to

conveyed

for

proposals/requests

they

the

permission to respondent No.4 under D.C.

Division

by

of

MCGB

of

33(7)

plots

petitioner

one

It

who

granted

the

that

for

alleged

ig
h

more

C
ou

rt

17

in

Respondent Nos.

the
7 and 8

be owners of entire Dastoorwadi which

Thus,
said
claim
claim,

according to petitioner, is false and bogus since

the

property was sold by one of the

of petitioner to M.C.G.B.

predecessor

Its employees who have

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also

formed

C
ou

rt

18

cooperative societies desired

that

the

fruits of the development be made

available

to

them.

as

They

respondents

been

with

joined

statutory

party

authorities,

and

the State through its Education Department

ig
h

viz.,

along

have

the

Repair Board because certain

statutory

obligations are cast upon it.

The subject matter of the petition arises

12.

out of and is related, inter alia, to the failure

to discharge the statutory obligations and duties

ba
y

by the respondent No.1 to 3, and granting illegal

sanction

to

respondent

No.5

om

sub-Regulation
regard

the

respondent
and

under

of

the

D.C.

No.4,

Regulation

33,

Regulation

in

to the combined redevelopment proposal of

plots

bearing

C.S.No.4

and

1/4

of

Division known as Dastoorwadi C.H.S.

through

with

Plots

Old

Naigain

Marathi

Naigaon

(Proposed),

bearing No.1/5 of the Visanji

Park,

Cross Road, in Matunga Division

Grantha

Sangrahalaya

Marg,

at
more

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particularly
subject

C
ou

rt

19

set

out in the description of

plots.

The said action of

the

sanctioning

the said redevelopment proposal of the respondent

4

to 6 by the respondent Nos.

contrary

to

and

statutes

and

violative

settled

provisions

of

Development

Control

in

of

and

is

other

law,

the

of

the

33(7),

Regulations 1991 and

void ab initio.

fact

requirements

ultra

The

does not qualify any

said

of

the

and

of the said provision of Regulation

the Annexure - III to the

ba
y

33(7)

principles

Regulation

illegal

proposal

among

vires,

of,

1 to 3

ig
h

Nos.

said

D.C.

Rules and, therefore, the impugned sanction could

never

have

that

om

learnt

been granted.

proposed

the

to

Control
the

respondent Nos.
permit

Reconstruction
purposes,

The petitioners

the

to

had

of the said school for commercial

Regulation

respondent

Redevelopment/

under Regulation 33(7) of

said

have

Development

for Greater Mumbai and

development

was

No.4

consideration

at

assigned

to
of

that
the
about

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C
ou

rt

20

Rs.12.5 Crores.

13.

This

33(7)

petition

which

by

belonging

FSI

to

the

Corporation.

which may be allowed in

or

in

this case only to

ba
y
Mumbai

Additional

om
B

allowed

framed

F.S.I.

categories.

certain
slum

in

which

and

provides
be

projects

involving

structures

and
are

development,

old

to

undertake

buildings,

in

to

be
for

housing

dilapidated

slum pockets.

It is

involved

construction

in

for

allowed

Additional F.S.I.

developers

the

Regulation for

1991
may

to

highlight

in certain category is an incentive

builders

agencies

The

matter, yet, a reference is made

aspect that Regulation 33 of D.C.

certain

old

Though, this is not a typical

facts

Greater

of

categories.

the

society

or

regulation, (Regulation 33) provides for

additional

dispute

Cooperative

ig
h

subject

D.C.Regulation

is dealing with re-construction

re-development
buildings

concerns

when

such
or

by slum dwellers who have organised

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themselves,

that

differences
that

crop up.

groups

interested

majority

or

of

disputes

and

The slum dwellers complain

sub-groups

in

C
ou

rt

21

another

amongst

builder

them

or

are

developer

ig
h

thereby frustrating the entire project.

In other

words,

they fear and apprehend that the original

scheme

would be highjacked by another developer.

It

in

is

such

circumstances,

fights

between

groups of slum dwellers on the same property land

up in this Court.

Broadly,

before

the Court and highlighted by the facts in

ba
y

14.

the

the disputes which are

brought

two petitions noticed above are between slum

om

dwellers themselves, Slum Dwellers and Developer,

Developer
acceptable

slum

S.R.A.

to

dwellers,

developer
slum

in a Rehabilitation project who is not

a particular group or section
they

propose

name

of

of

another

and last but not the least between the

dwellers,
This

developers and the

is

common

B.M.C.

complaint.

and
The

::: Downloaded on - 08/03/2014 14:29:41 :::

implementation
obstructed
account

scheme

or

of inaction by the S.R.A.

is

Minority

and the State

They do not take any cognisance

grievances,

for example, removal of

of

the

or obstructing occupants from the

etc.

On

some

intervene.

occasions,

they

The allegation is that SRA or

with one group or the other.

disputes

site

refuse

to
State

Resultantly

sides

project

ig
h

common

how

the

and often comes to a complete halt on

Government.

all

of

C
ou

rt

22

land up in this Court and that

petitions

under

Article

226

of

is
the

ba
y

Constitution of India, are filed.

15.

om

been

There are several such matters which have

It is in the backdrop of

such

factual

with

regard to implementation/non implementation

of

grouped together.

the

dwellers

and other disputes and

schemes
that

and
the

projects
following

meant

complaints

for

slum

questions

were

formulated, for being answered in this reference,

by the Division Bench :-

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(a)

C
ou

rt

23

Whether, a private party can seek

resolution
entirely

of

relief

falling in the private

the

domain,

garb of Public Authority

ig
h

under

dispute and claim

not

functioning?

(b)

under

are

Municipal Corporation or

responsible

S.R.A.

Whether

the schemes of Slum

for

defaults,

Redevelopment

ba
y

or under Urban Renewal Schemes?

16.

Before we consider the contentions of the

learned

appropriate

if

reference is

made

to

would
some

om

be

Counsel appearing for parties, it

statutory provisions and Regulations relevant for

our purpose:-

Section 22 of M.R.T.P.

"22.

Act.

Development

plan

shall

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generally

indicate

C
ou

rt

24

the manner in

which

the use of land in the area of a Planning

Authority

shall

indicate

the

manner

of

land

in

carried

out.

provide

so

and

also

which

the

therein

ig
h

development

be regulated

In particular,

shall
it

be

far as may be necessary

shall
for

all or any of the following matters, that

om

ba
y

is to say:-

(a)
proposals for allocating
the use of land for purpose, such
as
residential,
industrial,
commercial,
agricultural,
recreational;
(b)
proposals for designation
of land for public purpose, such
as schools, colleges and other
educational institutions, medical
and public health institutions,
markets,
social
welfare
and
cultural institutions, theatres
and
places
for
public
entertainment,
or
public
assembly, museums, art galleries,
religious building and Government
and other public buildings as may
from time to time be approved by
the State Government;
(c)

proposals for designation

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C
ou

rt

25

of
areas for
open
spaces,
playgrounds, stadia, zoological
gardens,
green
belts, nature
reserves,
sanctuaries
and
dairies;

ig
h

(d)
transport
and
communications, such as roads,
highways, parkways,
railways,
waterways, canals and airports,
including their
extension and
development;

(e)
water supply, drainage,
sewerage, sewage disposal, other
public utilities, amenities and
services including
electricity
and gas;

om

ba
y

(f)
reservation of land
community
facilities
services;

for
and

(g)
proposals for designation
of sites for service industries,
industrial estates and any other
development
on
an
extensive
scale;
(h)
preservation,
conservation and development of
area of natural
scenery
and
landscape;
(i)
preservation of features,
structures
or
places
of
historical,
natural,
architectural
and
scientific
interest and educational value
and of heritage buildings and
heritage precincts;

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C
ou

rt

26

(j)
proposals
for
control and prevention of
pollution;

flood
river

om

ba
y

ig
h

(k)
proposals of the Central
Government, a State Government,
Planning
Authority or
public
utility undertaking or any other
authority established by law for
designation of land as subject to
requisition for public purpose or
as specified in a Development
plan,
having regard
to
the
provisions of section 14 or for
development or for securing use
of
the land in
the
manner
provided by or under this Act;
(l)
the
filling
up
or
reclamation of low lying, swampy
or unhealthy areas or levelling
up of land;
(n)
provisions for permission
to be granted for controlling and
regulating
the
use
and
development of land within the
jurisdiction of a local authority
including
imposition
of
conditions and restrictions in
regard to the open space to be
maintained about buildings, the
percentage of building area for a
plot, the location, number, size,
height, number of storeys and
character
of
buildings
and
density of population allowed in
a specified area, the use and
purposes to which buildings or
specified areas of land may or

::: Downloaded on - 08/03/2014 14:29:43 :::

C
ou

rt

27

ig
h

may not be
appropriated, the
sub-division
of
plots,
the
discontinuance of objectionable
users of land in any area in
reasonable periods, parking space
and loading and unloading space
for any building and the size of
projections and
advertisement
signs and boardings and other
matters as may
be considered
necessary for carrying out the
objects of this Act."
Section 3K of Slum Act - reference will
be made in the foregoing paragraphs.

D.C.Regulation No.33(10) - reference will

be made in the foregoing paragraphs.
17.

After

the

Clearance

ba
y

(Improvement,

Maharashtra
and

Slum

Area

Redevelopment)

Act,1971(hereinafter referred to as the Slum Act)

was

amended

with effect from 18th May 2001

and

om

Chapter I-B was incorporated therein, it has come

to

light

that

rehabilitation

beneficiaries
schemes,

of

which

the
are

slum
being

implemented by the concerned authorities on lands

belonging
complaining

to

Government
about

and local

bodies

the denial of benefits

are
meant

for them.

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18.

C
ou

rt

28

In this behalf, it is worthwhile noticing

that

the

3X(d).

"scheme" is defined

in

section

That definition will have to be read with

term "protected occupier" defined in section

3X(c).
the

ig
h

the

word

The term "photo-pass" is also crucial and

same

is

defined

in

section

3X(b).These

definitions are as under:

19.
card

"3X(b)"

"photo-pass"

means an

identity

cum certificate issued by the Government in

ba
y

the prescribed format under section 3Y, and shall

include such other document or documents declared
by Government, by order issued in this behalf, to
equivalent of photo-pass for the purposes

om

be

of

this Chapter.

20.
occupier

"3X(c)"
of

"protected

occupier"

dwelling structure who

means
holds

an
a

photo-pass;

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21.

3X(d)

plan

prepared

Government

C
ou

rt

29

"scheme" means any arrangement

and

for

declared

the protection,

by

the

or

State

relocation

and

22.

Thus,

the

ig
h

rehabilitation of the protected occupiers.

entire intent is to

have

an

identification done of the dwelling structure and

issue a photo-pass for the purpose of the Act, in
prescribed

format

the

thereof.

Section

photo-pass

actual

3Y(1) contemplates

occupier
that

the

is issued to the actual occupier of a

structure

ba
y

dwelling

1st January 1995.

that

to the

in existence on or prior

to

Sub-section (2) thereof states

if the photo-pass issued under

sub-section

om

(1) is lost or destroyed or defaced,the holder of

the photo-pass shall forthwith intimate the loss,
destruction

the

concerned

photo-pass
said
of

or

defacement of the photo-pass

authority which has

to
the

shall apply, in writing, to

the

and

granted

authority with the prescribed fee for issue

a

duplicate.

Sub-section

(3)

contemplates

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C
ou

rt

30

issuance of duplicate photo-pass.

23.

Section

states that

notwithstanding

contained in the Act, on and after

commencement
occupier

of the Amendment Act, no

shall, save as provided in

(2),be

evicted,

However

in

from

larger

his

the

protected

ig
h

anything

3Z

dwelling

sub-section
structure.

public interest, he

may

be

so

after

evicted, but the State Government will have to do

relocating and rehabilitating

him

in

accordance with the scheme or schemes prepared by

ba
y

the State Government in this behalf.

24.

There

powers

authority

om

competent

are

unauthorised

or

conferred
for

illegal

upon

demolition

dwelling

the
of

structure.

However, what we are really concerned is with the

rehabilitation

and

relocation

of

the

slum

dwellers / dwelling structures/ occupants but the

very

scheme

indicate

that

which has been noticed above

if a photo-pass is

issued,

would
then

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such

photo-pass

protection.

He

occupier.
in

holder
has

is

C
ou

rt

31

entitled

been termed

to

as

the

protected

Larger question that arises before us

several matters is whether protected occupier

been

ig
h

as set out in law and those persons, who have not

issued

the

land

the cut off date, would fall in the

same

before

category.

photo-pass,

on

In other words, a person, occupier of

to

dwelling structures, which is existence

but are

1st

January

eligible

1995,

can

be

prior

classified

as

slum dweller and would thus be entitled

ba
y

for rehabilitation or relocation.

25.

om

in

In

this behalf Chapter IA is

as much as its Title is "Slum Rehabilitation

Scheme."

Making

Government
taken

important,

or

care

of

competent

as

the

scheme

by

the

State

Slum Rehabilitation Authority

rehabilitation
declared

of

by section 3B.
area"

such

means

an

The

authority

under section
in

term

Area

"slum

which

3C(1)

pursuance of

is

by
the

is
the
slum

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rehabilitation
The
in

C
ou

rt

32

scheme notified under section 3B.

term "slum rehabilitation scheme" is defined

section

further

3B.

There are powers

provisions

of

the

Act

conferred

and

for

by

that

26.

Section

ig
h

purpose, the Act has been extensively amended.

24,

which

is now

holding

the

field reads as under:

om

ba
y

"24(1) Where an occupant of any premises

in
an
area declared
as
a
slum
rehabilitation area has vacated, or is
evicted from such premises on the ground
that the premises are required for the
purpose of development under the Slum
Rehabilitation scheme such occupant may,
within such time as may be prescribed
file
a
declaration
with the
Slum
Rehabilitation Authority that he desired
to be rehabilitated in that area after
its redevelopment under the said Scheme.
(2)
On
the
receipt
of
such
declaration
the
Slum
Rehabilitation
Authority shall register his declaration
in
the
prescribed
manner
and
no
completion of the development of the area
and reconstruction of the buildings in
the said area under the scheme, give
notice to the registered occupants by
affixing it in some conspicuous part of
the building and sending it by post to
the
address
which
may
have
been

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C
ou

rt

33

27.

bare

perusal

of the

said

provision

indicate that it contemplates allotment of

tenement

to

the

Rehabilitation
allotment,

occupants

would

ig
h

registered with the Slum Rehabilitation

Authority by such occupants in such other
manner as may be determined by the Slum
Rehabilitation
Authority
that
the
building is likely to be or is ready for
occupation from a specified date and that
they should vacate transit accommodation,
if any, given to them and occupy the
building so erected
within a period
specified in the notice."

his

Authority

and

shifting into a

by

the

Slum

pending

such

vacant

transit

ba
y

accommodation.

28.

We

are

not

much

concerned

with

the

om

constitution of Slum Rehabilitation Authority but

Section

3K

Government

which
to

rehabilitation
noticed.

confers powers on

issue

directions

authority

also

the

to

State

needs

the
to

slum
be

It reads as under:"(3K):
Power of
issue direction:-

State

Government

to

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C
ou

rt

34

ig
h

1) The State Government may issue to the

Slum
Rehabilitation
authority
such
general or special
directions as to
policy as it may think necessary or
expedient for carrying out the purposes
of this Act and the Slum Rehabilitation
Authority shall be bound to follow and
act upon such directions.

om

ba
y

(2)(a)
Without
prejudice
to
the
generality of the foregoing provision if
the State Government is of opinion that
the execution of any resolution or order
of the Authority is in contravention of,
or in excess of, the powers conferred by
or under this Act or any other law for
the time being in force, or is likely to
lead to abuse or misuse of or to cause
waste of the Fund of the Authority the
State
Government may in the
public
interest by the order in writing suspend
the execution of
such resolution or
order.
A copy of such order shall be
sent forthwith by the State Government to
the Authority and its Chief Executive
Officer.
(b) On receipt of the order sent as
aforesaid the Authority shall be bound to
follow and act upon such order.

29.

it

Thus, as far as the Slum Act is concerned

contemplates

dwelling

protection

of

occupiers

in

structure by issuing them photo-pass so

that the eviction of such slum dwellers/protected

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occupiers

in

relocation

public

interest

C
ou

rt

35

is

subject

to

and rehabilitation of such persons in

accordance with the schemes prepared by the State

30.

The

question

frequently

is

before

is

Act

and

Maharashtra

Housing
and

ba
y

Authority

Development
and

other

of

encroachment

Area

on

and

there

the occupants on such lands

themselves

into coop.

that

are eligible for permanent

Societies and

accommodation,

proposals

are

behalf

either

such

by

moved

is

pavements.

Sometimes,

they

Region

encroachers

lands,

footpaths

as

Development

Apart from

these

on

such

Metropolitan

Authority.

the

Municipal

bodies,

and

Mumbai

squatters

om

local

us

alone.

posed in the backdrop

which are the properties of the

Corporation

arises

not relating to Slum

question

lands

that

The

ig
h

Government.

organise
contending
alternate
on

societies

their
or

developers/builders.

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31.

As

Greater

far

C
ou

rt

36

as the Municipal Corporation

Mumbai

is

concerned,

The

of

Maharashtra

Regional and Town Planning Act 1966 which confers

under

regulating

Control

of

making

has resulted

Regulations

in

for

making
Greater

Rules.

For Greater Mumbai, 1991, for

As

far

as

there

are

also

concerned

which

ba
y

therein,

need

the

D.C.

certain

to be noticed.

The

the

"hazardous

regulation
defined

2(e).

in

building"

word

whereas

defined

in

The term "unsafe building"

is

regulation 2(o).

is

are

definitions

is defined in regulation 2(7)

term

short

Rules

"Amenity"

om

rules

and they are known as Development Control

Regulations
D.C

22(m)

development

Development
Mumbai

section

ig
h

powers

The term "FSI"

is

defined in regulation 2(42) to mean total covered

area

of

definition

all floors divided by plot area.

This

would provide some guideline when one

is considering various regulations.

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32.

C
ou

rt

37

Regulation 33 deals with additional floor

space

index

which

categories.
notice

this

allowed

behalf, one

certain

should

also

the notifications which have been

the State Government.

with

in

issued

Regulation 33(5) deals

ig
h

by

In

may be

low cost housing schemes of the Maharashtra

Housing
the

and Area Development Authority.

additional

FSI is permitted

There,

while

housing

economically weaker sections and low income group

categories.

Regulation

reconstruction
have

demolished,

om

in

Housing
to

that

the

which

by

fire

have

redevelopment

been

Island

City

of

by

with
cessed

Cooperative

Societies or of old buildings

permitted

the

and

the Corporation.

is

or

with

whereas Regulation 33(7) deals

reconstruction
building

deals

buildings destroyed

collapsed

ba
y

which

of

33(6)

belonging

Thus, the additional FSI is

to be consumed in such cases.

Similar

case where housing is for dishoused

category is dealt with in Regulation

and
33(8)

which reads as under:

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C
ou

rt

38

Bare

perusal

indicates

that

projects

undertaken

those

of

ba
y

implementation
development

of

33.

ig
h

"33(8) Construction for

housing
the
dishoused- For the construction of the
building
by the
Corporation in the
category of "Housing the Dishoused" in
the Island of City for the purpose of
housing those who are displaced by the
project
the
Corporation
for
implementation
of proposals
of
the
development plan, the FSI shall be l.00
.Such
additional
FSI
will not
be
available
when
owner
undertakes
development as in Sr No.1(c) in Table-l."

who

by
the

plan

the

said

are
the

regulation

displaced

by

Corporation

for

proposals

the

and

for

can be rehabilitated

of

such purpose FSI is 1.00, additional FSI will not

available

om

be

to

the

development as in Sr.

34.

For

of

schemes

Maharashtra

undertaking

No.1(c) in Table 1.

the schemes which are of repairs and

reconstruction
renewal

owners

cessed

buildings

undertaken

by

and

urban

MHADA

Housing and Area Development

or

Board,

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or

C
ou

rt

39

the Corporation in the Island City, FSI shall

be 1.00.

Regulation

eligibility

for

33(1)(l)

is

entitled

"The

redevelopment

scheme"

and

ig
h

35.

Regulation 33(10)(ll) is entitled "The definition

of slum, pavement and structure of hut".

of

Regulation
sites

reserved

rehabilitation

of

for

project

resettlement
affected

and

persons,

Regulation 33(14) sets out the provision

ba
y

whereas

33(13) deals with development

36.

relating

to

rehabilitation

transit

camp

scheme.

tenements

for

slum

Then comes Regulation 34

om

which deals with TDR.

37.

such

Thus,
as

additional

redevelopment
tenement

there are incentives and

scheme.

FSI,
The

if

one

benefits
undertakes

eligibility

for

is dealt with by Regulation 33(10)

a
and

slum including pavement, whose inhabitants names

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and

structure

appear

in

C
ou

rt

40

the

electoral

roll

prepared with reference to 1st January 1995, or a

date

prior

stay

at

thereto, but where

present

inhabitants

The

in the structure are

held

provisions of Appendix IV

as

shall

ig
h

eligible.

the

apply on the basis, a tenement in exchange for an

independently
clearly

numbered structure.

It is however

stated that only the actual occupants of

so

the hutments shall be held eligible, and that the

called structure-owner other than the

actual

occupant if any, even if his name is shown in the

roll for the structure, shall have

ba
y

electoral
right

whatsoever

against

that structure.

"slums

om

to the reconstructed

and

adopted

tenement

Definition of the terms

slum rehabilitation

area"have

been

from the Slum Act and pavement means any

Municipal/Government/
and

no

shall

pavement

include

purpose

as

structure

of

may
slum

shall

Semi-Government
an

viable

stretch

pavement,

be considered viable
rehabilitation

of

the

for

the

projects.

mean all the dwelling areas

of

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C
ou

rt

41

all persons who were enumerated as living in that

one

numbered house in the electoral roll of

the

latest date, upto 1st January 1995 and regardless

of

the numbers of persons, or location of

rooms

38.

Thus,

slum

area/

the

concept is of

censued

pavement being cleared of

structures,

but

while

such

and

ig
h

or access.

undertaken,

slum/

occupants

project

is

protect those who are found to be in

occupation

prior

to 1st January 1995 or on

1st

ba
y

January 1995.

39.

Appendix
i.e.

om

quoted

IV of D.C.

construction
pavement

dealing

of

Rules is also often

with

dwellers

accommodation
through

redevelopment/
for

hutment/

owners/developers/

cooperative housing societies of hutment/pavement

dwellers/

public authority such as MHADA,

MIDC,

and MMRDA etc.

A project is also permitted to be

undertaken

NGOs approved by SRA.

by

Therefore

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Appendix

IV

constructing

applies

dwellers

accommodation for

redeveloping/

hutment/pavement

through owners/developers/

Housing

Cooperative

societies or persons enumerated therein.

is a very big attraction and incentive

builders
while

and

ig
h

This

while

C
ou

rt

42

developers.

fulfilling

The concept

a social obligation

is

for

they

that
can

make profit by disposing of some flats /tenements

open market.

However, the rehabilitation

in

of

eligible slum dwellers is their prime duty.

Rights

ba
y

40.

enumerated

of

the

in Appendix IV.

hutment

dwellers

There clause 1.5

are
is

om

relevant, which reads as under:

"1.5 A certified extract of the relevant
electoral rolls be considered adequate
evidence to establish the eligibility of
a person provided he is found residing in
the structure.
This is to avoid the
possibility of persons who have left the
structures coming back to claim free
tenement under the scheme even though
they have in the normal course left the
slum and gone away into a proper non-slum
areas or out of
Brihan Mumbai.
If
hutment dwellers are found resident in

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C
ou

rt

43

ig
h

the structure, but the names are on the

electoral roll on or prior to 1st January
1995 at another slum/pavement site in
Brihan Mumbai, they shall be considered
eligible but only at the place of present
residence.
In case of doubt or dispute,
the decision of the Competent authority
to be appointed by the Government in
Housing and Special Assistance Department
shall be final and binding on all the
parties concerned."
41.

A bare reading of the same would indicate

certified extract of the relevant electoral

rolls

that

is

considered

adequate

evidence

to

establish the eligibility of a person provided he

found residing in the structure.

ba
y

is

doubt

or

person

dispute

at

authority

residence

site, the decision of

to

and

om

Housing

about the

In case

the

of

of
the

Competent

be appointed by the Government

Special

Assistance

in

Department

is

final and binding on all the parties concerned.

42.
building

After

that

permission

Appendix
for

IV(2)

slum

deals

with

rehabilitation

project and SRA is designated as an authority for

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approval
note

of

that

plan etc.
SRA

approval

laying

prescribing

down

of

to

granting

guidelines

and

therein the percentage of the

built

areas of both rehab and free sale components.

ig
h

up

Here, it is material

is to be in charge

by

C
ou

rt

44

Thereafter, clause 3 is important.

It deals with

rehab and free sale components.

Temporary transit camps are dealt with at

Sr.

No.4

43.

under

Appendix

IV.

Commercial/official/shop/economic activities free

costs

is dealt with at item 5 and there

ba
y

of

are

other stipulations as well.

om

44.

Appendix

computation of FSI provided in D.C.

Regulations.

As

deals

stated

above

additional

III and IV are traceable to the

33

FSI, which may be allowed in

categories.
with

Regulation

certain

Regulation 33(7) deals specifically

reconstruction and redevelopment of

buildings

with

in

the

Island

city

by

cessed

cooperative

::: Downloaded on - 08/03/2014 14:29:49 :::

housing

C
ou

rt

45

societies or of old buildings

to the Corporation.
Regulation
scheme.

33(10), which speaks of redevelopment

This redevelopment scheme is with regard

slums including pavement.

those

inhabitants

appear

in

the

reference

to

thereto,

but

where

the

structure.

shall

be

om

only

electoral
right

the

structures

prepared

inhabitants

structure,

for

an

Regulation

that

any,

roll

and

with

the

at

provisions

of

tenement

independently

numbered

10(1)(b) clearly

states

the actual occupants of the

held

eligible,

and

that

hutments
so

owner other than the actual

even

if

his

name

is

prior

stay

IV shall apply on the basis a

exchange

structure

names

electoral

ba
y

in

The scheme is that

1st January, 1995 or a date

in

Appendix

whose

present

if

We are concerned mainly with

ig
h

to

belonging

called

shown

occupant,
in

roll for the structure, shall have

whatsoever

to the reconstructed

the
no

tenement

against that structure.

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of

It

is necessary to find out the

the

Annexure II.
relevant

concept

This concept is referred to

notification under Slum Act.

appears

structure

meaning

to

appears

be

that

in

person,

The

whose

in the survey carried out

by

ig
h

45.

C
ou

rt

46

as

the office of the Collector shall be eligible for

the benefit under the scheme.
with

Such survey, along

number

voters
as

in

the relevant

the

the details of the persons, the

structure,

document

such

list, ration card etc., which is entitled

Annexure II.

Thus, the basis for the same is

ba
y

the survey and if the survey which is carried out

does

not refer to the structure and the persons,

om

then no rights would accrue in their favour.

46.

The grievance is that several persons are

eligible

for

tenements because their names

are

appearing

in

the electoral roll, but since

the

survey

of

1985

is silent with

structure,

therefore,

benefit.

This

has

to

the

they are not granted

any

resulted

regard

in

multiple

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litigations.

C
ou

rt

47

Therefore, whether an eligible slum

dweller

should get the benefit under the Act

not

something,

is

matter

of

D.C.

writ

petitions.

subject

For

this

even the procedure contemplated by

the

Rules needs to be understood.

47.

The

D.C.
of

Regulations

the

slums,

redevelopment

structures or huts i.e.

As

the

ig
h

purpose,

several

which has been

or

is

observed

ba
y

redevelopment/

D.C.

above

om

and

i.e.

providing

for

construction of accommodation for

through

owners/

cooperative housing society of

persons.
nature

pavements

Regulation 33(10).

hutment/pavement-dwellers
developers/

contemplate

is

scrutiny of the proposals of

such

undertaken

by

the

office

above
of

the

Collector (Encroachment) (Slum Improvement).

The

proposals for redevelopment are received only, if

same are accompanied by an application, which has
to

be

in

accordance

with

Annexure

and

certificate of the Collector(Encroachment) in the

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C
ou

rt

48

prescribed form in Annexure II for lands owned by

a

private

owner

is

also

necessary

and

certificate in Annexure II either from Additional

Collector

(Encroachment)

or

from

MHADA

or

necessary

in case of slums on lands belonging to

these bodies.
Certificate

Thus, Annexure II is nothing but a

from

Bench

correctly

the Competent Authority.

of this Court in Om Sai

The

(supra)

Division
has

ig
h

Government or Housing Board as the case may be is

outlined the policy of the

State

ba
y

and the role of SRA (see paras 13 and 14)

48.

It

which

are

circular

om

should
more

also contain other

documents

particularly mentioned

in

dated 15.7.1993 (copy enclosed).

the
This

circular as also a circular bearing No.CHE/59/DPC

of

6th

July 1992(copy enclosed) would

make

it

clear that the Architect has to submit along with

a

building proposals, as stipulated in

Annexure

I, to the circular dated 6th July 1992.

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49.

The

C
ou

rt

49

proposals

procedure

for scrutiny of the

is enlisted in another circular

31st July 1992.

one

in

no manner of doubt that a

provided

for

proposals

scrutiny

and

mechanism

processing

for redevelopment of slums.

of

is
the

Further,

is abundantly clear that these circulars

it

dated

perusal of these circulars would leave

ig
h

50.

said

and

Rules postulate development of private lands upon

which

slums

Argument

ba
y

lands.

are

when

brought

or

om

and

there

is

misplaced.

no

are

procedure

There are

routed

some of them are very

that

proposals

submitted

through

and

whom

government

the

authorities

Officials.

is

also

therefore that

forward

scrutinised
scrutiny,

existing, so

such

number

proposals
High

not
for
of
are

Powered

Advisedly, they have been chosen

the grievances of slum dwellers are do

so
not

remain unheard and unredressed.

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51.

In

15.4.1997
purpose,

this
needs
it

chain,
to

be

the

C
ou

rt

50

circular

noticed.

For

dated

clarity

is restated that same is one

grants sanction under D.C.

which

Regulation 33(10) and

52.

ig
h

contains modifications to Annexure IV.

Clause

1.14 under caption Rights of

the

Hutment Dwellers reads as under:

ba
y

"A slum rehabilitation project shall be

considered
preferably
when submitted
through
a
proposed
or
registered
cooperative housing society of hutment
dwellers on site. The said society shall
include all the eligible hutment dwellers
on site when applied therefor and /or
other eligible and
allotted by slum
rehabilitation authority as members of
the society".

om

53.

slum

bare perusal thereof would show that a

rehabilitation

project

is

considered

preferentially

when submitted through a proposed

or

cooperative

registered

hutment dwellers on site.

housing

society

of

The said society shall

include all the eligible hutment dwellers on site

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when

C
ou

rt

51

applied therefor and /or other eligible and

allotted

by

slum

rehabilitation

members

of the society.

dweller

on

together with those,

the

criteria

above

ig
h

beneficiaries.

Eligibility

date

reproduced

Thus, eligible

site

satisfying

cut-off

authority

is

above.

in

are
the

and

the

clause

1.5

Further, those who are

held

the Slum Rehabilitation

but

at

site,

by

membership

who

are

eligible
not

hutment

criteria

enumerated

as

also

are

Authority,

eligible.

Thus,
to

slum dwellers to whom SRA will allot

ba
y

eligible

of the Housing Society is granted

particular

slum dwellers registered

cooperative

housing society.

Such eligible slum dwellers may

be

some project

om

affected

public

by

body.

undertaken

by

The SRA can allocate or allot them

to such slum dwellers societies as are chosen and

notified
The
whom

and the society will make them members.

membership
powers

issue is also decided by SRA

under the

Maharashtra

to

Cooperative

Societies Act, 1960 are delegated.

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54.

C
ou

rt

52

the

eligible hutment dwellers in a

pavement

rehabilitation
approval.
slum

slum

or

in a viable stretch at one place join a

scheme, it may be considered

ig
h

of

Clause 1.15 states that where 70% or more

for

Thus, 70% or more thereof of eligible

dwellers

stretch

can

in a slum or pavement
agree

to join

the

in

viable

rehabilitation

scheme and they may be considered for approval.

55.

The argument in most of the cases is that

ba
y

such eligible slum dwellers can come together and

if

70%

scheme

or

more of them decide to

and

om

authority,

submit

consider

the

it

it

approval

the

authority in its discretion

may

Here, the

authority

means the Slum Rehabilitation Authority.

of

Appendix

sub-paras

IV

makes

of

for approval.

for

formulate

together
it

with

its

Reading

paras

clear that there can

and
be

scheme for development of slums and slum dwellers

may

come together to form a Cooperative

Housing

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Society

or

70%

dwellers/pavement

or more of
dwellers

the
can

C
ou

rt

53

eligible

involve

slum
a

developer and such developer can forward a scheme

for

approval.

That developer can come

forward

56.

ig
h

and submit a scheme is also not ruled out.

The package is enumerated thus :-

om

ba
y

a) Appendix IV applies for redevelopment

/construction
of
accommodation
for
hutment/pavement
dwellers
through
owners/developers/cooperative
housing
society or such
developers/ such as
MHADA, MMRDA and Municipal Corporation
etc/ Non Governmental Organisations etc.
anywhere within the limits of Brihan
Mumbai.
b) The right of the hutment dweller is to
have in exchange of his structure free of
cost Residential area of not more than
20.90 sq m (225 sq ft) including balcony,
bath and water closet, but excluding
common area.
c) All eligible hutment dwellers/pavement
dwellers
taking
part in
the
slum
rehabilitation scheme shall have to be
rehabilitated according to the provisions
of Appendix IV and such rehabilitation
may be in site and in same plot as far as
possible.
d)

certified extract of the

relevant

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C
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54

electoral
roll shall
be
considered
adequate
evidence to
establish
the
eligibility of a person provided he is
found residing in the structure.
(see
clause 1.5 of Appendix IV -1)

ig
h

e) There can also

be an individual
agreement
by
owners/
developers/
cooperative
housing
society/NGO with
eligible
hutment dwellers
and
such
individual agreement shall be in joint
names of pramukh hutment dweller and
spouse for every structure.

f) The hutments
having a physically
handicapped person, or
female headed
households
shall
be
given
first
preference in allotment of tenement and
thereafter allotments are drawn from the
remaining tenements.

om

ba
y

g)
The land upon which development
takes place is to be granted on lease to
the slum cooperative society.
h) Slum dwellers can organise and unite
themselves into a cooperative housing
society and include all the eligible
hutment dwellers on site and take up the
development project.
i) 70% or more
of eligible hutment
dwellers at a site can agree to join a
rehabilitation scheme and such scheme can
be considered for approval.
j) Those
willingly
1.16.
k)

Till

who
are

do not join the project

dealt with under clause

the construction

of

permanent

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C
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55

alternative tenement is complete Transit

Accommodation is provided.
Thereafter,
those
who
are
coming forward
for
development project through developers
would
be housed in a
complementary
complex or component which is called
Rehabilitation Free Sale components.

ig
h

l)
The developer
can after
making
rehabilitation deal with the rest of the
tenements/components by disposing them of
in open market.This acts as incentive for
development.
In such
development, a
provision of rehabilitation free of costs
is
made
and
the
developer
gets
compensated by right to develop
the
remainder property and deal with the
construction by disposing of the flats
/tenements in open market. The entire
scheme is set out above.
We

have

ba
y

57.

provisions

and

referred

to

the

regulations in details

statutory
only

to

appreciate the submissions which have been raised

us.

om

before

The

submissions

are

broadly

summarised hereinbelow.

58.

Mr.Kamdar

petitioners

Constitution

of

India

would be maintainable if the complaint

is

under

lead

petition

Article 226 of

urges

for

that

petition

in

learned Counsel appearing

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C
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rt

56

that the slum rehabilitation scheme, as envisaged

the abovementioned statutes and

is

not

being

supervised
behind
that

to

implemented,

it.

fulfil

the

regulations,

monitored

object

In other words, his

and

doors

of

this

and

purpose

submission

ig
h

by

Court cannot

be

shut

is
to

parties, that is slum dwellers, societies of slum

acts

of

the

developers etc;

authorities

statutory

in charge of

scheme.

implementing

of

His submission is that

the
doors

sought to be shut by the respondents in

ba
y

are

for complaining about

omission and commission on the part

dwellers,

these

petitions

on

the

spacious

plea

all
that

disputed question of facts are involved and there

om

is

alternate

question.

He

remedy for resolving

submits

said

and

D.C.

that Slum Act

the

Regulations are completely silent on existence of

such
a

a remedy.

statutory

instance

He submits that in limited areas

with

remedy

is provided.

He

regard to eligibility of

gives
a

an
slum

dwellers and submits that if he is to be provided

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tenement,

criteria.

he

cut

has to

fulfil

C
ou

rt

57

the

prescribed

In other words, his occupation on the

off date is crucial and relevant.

where

such

In

cases

persons approach authorities with

ig
h

request to decide the Issue of Eligibility, then,

there is an alternate remedy provided in law.
this

behalf

Regulation

our

invites our attention

of the Slum Act.

attention

"competent

In this behalf, he

to

the definition

authority"

D.C.

appearing

of

invites
the

term

therein.

He

that only in a limited case, there is

ba
y

submits

to

33(10), Appendix IV read with section

35

he

In

statutory

remedy provided and writ petitions are

directed against the actions and orders passed in

om

such proceedings.
are

definitely

petitioners

the

He submits that such petitions

maintainable

demonstrating

and

upon

the

an error apparent

on

face of record or perversity on the part

of

statutory

authority

vitiated

on

so also their orders

account

of

arbitrariness

being
and

malafides, then, intervention by this Court under

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Article 226 is always permissible.

59.

Even

remedy

under Article 226 of the Constitution

is

that

other cases and

always available.

His

disputes,

the
of

submission

ig
h

India

in

C
ou

rt

58

is

in the absence of any statutory remedies or

alternatives,

from

this Court under Article 226 of

Constitution
because

cannot be prevented

of

India.

He submits that

approaching

parties

the

merely

the disputes involve private parties and

have some private Law element, does not mean that

normal

remedies

ba
y

the

parties.
is

of

being

by-passed

by

He submits that the ultimate complaint

improper and erroneous implementation

or

of welfare scheme

formulated

by the State and the local authority.

Therefore,

om

non-implementation

are

and

when authorities are exercising powers under

the

Statutes or subordinate legislations

framed

thereunder, then, all their actions have a public

Law
some

element in them.

Therefore, merely

because

private parties are also involved does

not

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C
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59

mean that a petition is not maintainable.

60.
whether

His

next submission is that to determine

a writ under Article 226 is maintainable

coming

ig
h

or not in cases of different challenges which are

up before this Court in respect of a Slum

Rehabilitation Scheme, it is necessary to keep in

mind various provisions of law.

which are coming before the Court arise

disputes

Essentially, the

from the following kinds of orders:-

om

ba
y

(a)
The order passed by the
SRA
sanctioning the scheme by selecting one
developer where another group of slum
dwellers are seeking to bring in another
developer;
(b)
Dispute as to the correctness of
Annexure II or issuance of Letter of
Intent;
(c)
Disputes as to the removal of
obstructing slum dwellers and the orders
passed
by the
Competent
Authority
directing their eviction or demolition of
their structures;
(d)
Dispute as to the actual nature
of work carried out by the developer or
defaults committed by him;

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C
ou

rt

60

.
It is also submitted that each of the
aforesaid issues are in fact in the public domain
and are arising out of the performance
of
statutory
functions by
the authorities and
therefore,
Writ Petition
under Article 226
against their orders or refusal to pass orders or
prohibiting them from passing the orders, lies
before this Court.

ig
h

61.
Under the provisions of the Slum Act a
limited alternate remedy is provided i.e. under
Section 4(3) of the Slum Act a person aggrieved
by a declaration of any area as a slum is
entitled
to file an
appeal
against
such
declaration to the Appellate Tribunal.
This
Appellate
Tribunal
has
a
very
limited
jurisdiction.
It can go into the issue of
declaration by the Competent Authority of any
area as slum under section 4(1) of the Act.

om

ba
y

62.
Another limited alternate
remedy
is
prescribed under section 35 of the Slum Act,
wherein it is provided that any person aggrieved
by any notice, order or direction issued by the
Competent
Authority,
can
appeal
to
the
Administrator within a period of 35 days from the
date of issue of such notice, order or direction.
Once again a very
limited jurisdiction
is
conferred on the Appellate
Authority as an
Administrator to go into the validity of the
notice, order or direction of the Competent
Authority.
63.
No Appeals are
provided against the
orders passed by the SRA sanctioning the scheme
or pertaining to the implementation of the scheme
of Slum Redevelopment.
64.
It is submitted that the remedy of a suit
is not an alternate remedy. It is held that for
a purpose of alternate remedy, the remedy must be

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C
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61

one which has been provided by a Statute and not

a general remedy by means of a suit under section
9 of the Civil Procedure Code, 1908. In support
of this submission Mr.Kamdar
relied upon a
decision of the Gujarat High Court in the case of
Ahmedabad Cotton Mfg. Co.Ltd. Vs.
Union of
India reported in A.I.R. 1977 Guj.113 (FB).

ig
h

65.
Mr.Kamdar submits that under the Slum
Act, in fact, a suit is barred under section 42
which, inter alia, provides that civil courts
shall have no jurisdiction in respect of any
matter
which the
Administrator,
Competent
Authority or Tribunal is empowered by or under
this Act to determine and no injunction shall be
granted by any Court or authority in respect of
any action taken or to be taken in pursuance of
the power conferred under this Act.

ba
y

66.
Thus, there is an absence of alternate
remedial machinery under the provisions of the
Slum Act. In such case, it becomes necessary to
entertain a Writ Petition challenging various
orders passed by the SRA under the Slum Act
and/or read with D.C.Regulation No.33(10).

om

67.
In support of his submissions
relies upon the following decisions:-

Mr.Kadmar

(a)
Awdesh Tiwari & Ors. Vs. Chief
Executive Officer, SRA (2006 MLJ 282)
(b)
Mohamed Hanif Vs.
(1969 (2) S.C.C. 782)

State of Assam

(c)
DFO, South Kheri & Ors.
Vs.Ram
Sanehi Singh (A.I.R. 1973 S.C. 205);
(d)
Ram and Shyam Company Vs. State
of Harayana & Ors. [(1985) 3 S.C.C.
267)]

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(e)
Life Insurance
India Vs. Escorts Ltd.
264)
(f)
Indian
S.C.C.

C
ou

rt

62

Corporation of
(1986 (1) S.C.C.

Mahavir Auto Stores & Ors.

Vs.
Oil Corporation & Ors. (1990 (3)
752)

ig
h

(g)
Kumari Shrilekha Vidyarthi & Ors.
Vs. State of UP & Ors. [(1991) 1 S.C.C.
212]

(h)
Nilabati
Behera
(Smt)
Alias
Lalita Behera (Through the Supreme Court
Legal Aid Committee Vs. State of Orissa
& Ors. [(1993) 2 S.C.C. 746]
(i)
LIC
of
India &
Anr.
Vs.
Consumer Education & Research Centre &
Ors. [(1995) 5 S.C.C. 482]

ba
y

(j)
Indian Statutory Corporation etc.
Vs.
United Labour Union & Ors. [(1997)
9 S.C.C. 377]

om

(k)
A.P.

Verigamto Naveen Vs. Govt.

& Ors. [(2001) 8 S.C.C. 344]

of

(l)
Dwarka Prasad Agarwal (D) by Lrs.
and
Anr.
Vs.
B.D.Agarwal &
Ors.
(A.I.R. 2003 S.C. 2686)
(m)
Union
of India & Anr.
S.B.Vohra & Ors. [(2004) 2 S.C.C.

Vs.
150]

(n)
State of U.P. Vs. Johri Mal
(2004 (4) S.C.C. 714)
(o)
Jayrajbhai Jayantibhai Patel Vs.
Anilbhai Nathubhai Patel & Ors. [(2006)

::: Downloaded on - 08/03/2014 14:29:56 :::

8 S.C.C.

C
ou

rt

63

200]

(p)
ZEE Telefilms Ltd. Vs. Union of
India & Ors. [(2005) 4 S.C.C. 649]
(q)
Noble Resources Ltd. Vs.
of Orissa [(2006) 10 S.C.C. 236]

State

68.

ig
h

(r)
Moran
M.
Baselios
Marthoma
Mathews II & Ors. Vs. State of Kerala &
Ors. (J.T. 2007 (6) AS.C. 282);

The

for

and Redevelopment) Act, 1971

provides

Clearance

Maharashtra Slum Areas (Improvement,

appeal as and by way of an alternate equally

ba
y

efficacious remedy only in following cases :-

(1)

Chapter

introduced

om

Act
a

1A

which

has

by the Maharashtra

been

Amendment

4 of 1996 as a special provision for

slum

rehabilitation

section

3C(2)

against

an

scheme.

appeal

declaration

is

Under

made

provided
by

Chief

Executive Officer declaring any area as a

slum

rehabilitation

area as

an

appeal

lies to the special tribunal.

::: Downloaded on - 08/03/2014 14:29:56 :::

C
ou

rt

64

(2)

Under section 4(3) an appeal lies

to

the Tribunal against a declaration by

a Competent Authority against any area as

69.

He

section

invited

3(C)(2),

our

attention

4(3), section

to

4A(2),

and

23

so

also section 35 of

the

Section

17(6), Section 18(2), 19(2) and

12(4),
22

has

ig
h

a slum area.

Sections

the

Act

to

highlight the aspect of appeals provided therein.

submits

that

ba
y

He

contemplate
regard

any

none

to

of

these

provisions

appellate or other remedy

the

implementation

with

of

Slum

om

Rehabilitation Scheme.

70.

On

Advocate

the

other

hand,

Mr.Kadam,

General appearing for the State submits

that

the

also

the Development Control Regulations

be

learned

object and purpose of the Slum Act

so

cannot

brushed aside while answering this reference.

::: Downloaded on - 08/03/2014 14:29:57 :::

He

submits

that

the issue is not

C
ou

rt

65

as

much

as

maintainability

of writ petition but the

extent

to

Court will exercise

the

powers

Article 226 of the Constitution of

India,

under
while

this

taking

grievances,

cognisance

of

matters

and

ig
h

which

pertaining to slum rehabilitation or

implementation
measures.

of

welfare

and

rehabilitation

He submits that the process has to be

and smooth with minimum hurdles

and

expeditious

obstacles placed in the way of rehabilitation and

removal of encroachments.
wider

question

ba
y

the

anybody.
assume

On

om

the

other hand,

not

one

can

trouble
safely

parties but the Mandate of Section

by
42

the Act so also other provisions should be at

back

of

provisions

really should

that writ jurisdiction can be invoked

aggrieved
of

the

In such circumstances,

expeditious
scheme.
should

the mind all through

out.

These

are advisedly incorporated to

ensure

implementation of the rehabilitation

In such circumstances, the interference

be minimal and in exceptional matters

on

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to

case

whether

basis.

Court

must

decide

the dispute involved is such as would be

capable

of

being

jurisdiction
the

This

resolved

in

the

limited

of this Court under Article 226

Constitution

of

appropriate orders.

71.

Mr.Kadam,

scheme

of

India

and

then

of

pass

ig
h

case

C
ou

rt

66

then emphasises that the broad

with

rehabilitation and the measures

regard to the same are set out under the Slum Act
whereas

incentive

and

and

particularly D.C.Regulation No.33(10).

He

om

is

that D.C.

the

to

Regulations

submits

complete

encouragement

of

rehabilitation
more

and

process

ba
y

initiate

the

in the D.C.

Regulations are traceable

the

development plan itself.

and

the D.C.

to

Thus, the Slum Act

Regulations complement each other.

They should be read and construed harmoniously so

that

the

intention of the

Legislature

becomes

apparent to all concerned.

::: Downloaded on - 08/03/2014 14:29:57 :::

72.

He

submits

issue

of

of writs in matters arising

out

maintainability
of

the

C
ou

rt

67

that

the

Slum Act may also be considered

in

the

of the Slum Act

and

(a)
the

The

ig
h

light of,

scheme

connected

Development

Control

(b)

Regulations.

The

disputes

nature and substratum of the

raised
private

ba
y

really

challenge

i.e.

whether they

disputes

raised

are

actions/inactions on the

to
part

om

of the State Government or its agencies.

(c)

The

alternate

availability
remedies

of

statutory

under the Slum

Act,

73.

1971.

remedies

According to Mr.Kadam there are different

available, such as Appeal to SRA

under

::: Downloaded on - 08/03/2014 14:29:58 :::

section

35,

from

any order

Authority,

Appeal

orders

provided

as

C
ou

rt

68

of

the

Competent

to the Tribunal from

and

approaching

various

to

State

74.

ig
h

Government to issue direction under section 3K.

Adequate

including

safeguards

at

every

stage

remedy of appeals to different forums/

authorities considering the nature of the notice/

The language of

orders/ directions are provided.

section 35 is very wide and encompasses all kinds

of notices/ orders or directions.

In addition to

ba
y

the appeals, is the power of the State Government

to

issue

directions

under Section

3K.

Thus,

before any person approaches this Court by way of

om

writ

petition

Constitution
that

the

of

under

Article

India, it is

remedies

226
only

of

the

appropriate

provided under the

Act

are

decision

of

the

of

exhausted.

75.
Division

Mr.Kadam
Bench

relies
of

upon

this Court in

case

::: Downloaded on - 08/03/2014 14:29:58 :::

Bhikaji Jadhav Vs.

2002(5)

Bom.C.R.

Court

has

order

under

Tribunal

State of Maharashtra reported

83 and states

held that the authority

Section

that

this

passing

35 of the Slum

the

Act

is

subject

to the supervisory jurisdiction of

Court

and discharges quasi judicial functions

ig
h

in

C
ou

rt

69

and

superintendence

under

Article 227 of the Constitution of India.

It was

held

that

to

from the order passed

in

further

subject

this

petition under Article 227 of the Constitution of

India,

Thus,

the

ba
y

lie.

no appeal under the Letters Patent

considering

an

role
order

of

this

passed by

would

Court
the

whilst
concerned

appellate authorities under the Slum Act would be

om

very
per

limited

and supervisory and restrained

as

the well settled principles for exercise

of

supervisory jurisdiction under Article 227 of the

Constitution of India.

76.

Development

delegated

legislation

Control
and

Regulations
form

part

of

are
the

::: Downloaded on - 08/03/2014 14:29:58 :::

development

plan

Maharashtra

32

the

Planning

Act.

Space

and

for

various

Index

occupancies

ig
h

locations

zones

as

mentioned

thereunder.

Regulation 33 provides for additional FSI.

Sub-regulation

redevelopment

10
of

provides

slum

rehabilitation

that

dwellers

for

and

for

of slums a total FSI upto 2.5

may

granted subject to the condition laid down in

ba
y

Appendix IV of the D.C.

77.

which

om

of

D.C.Regulations makes permissible FSI and

densities

be

Town

22(m)

lays down Floor

tenements

D.C.

Section

Regional

D.C.Regulation
(FSI).

under

C
ou

rt

70

Regulation.

Mr.Kadam further states that the disputes

can come before this Court may be

broadly

categorised in the following manner:-

(a)

Eligibility

of slum dwellers for

alternate

accommodation

is

involving

consideration

of

and

an

issue

complicated

disputed questions of facts.

These

::: Downloaded on - 08/03/2014 14:29:59 :::

are

issues

considered by the

Authority
under

C
ou

rt

71

and

thus would be

Competent

appealable

section 35 of the Slum Act to

(b)

ig
h

S.R.A.

Dispute

developers

between

two

the

rival

wanting to implement a scheme

and claiming support of 70 percent of the

dwellers.

There would be

slum

disputes

similar

between two managing committees

of societies/ proposed societies claiming

of

ba
y

support
This

is

of

dwellers.

om

percent

slum

primarily an issue

support

70

70

percent

dwellers.
as

regards

eligible

It involves consideration

slum
of

eligibility of slum dwellers and also the

number

of

slum dwellers supporting

scheme.

This

factual

exercise

rendering
being

it

would be a
by

fundamentally
the

completely

reviewed

in a

the

writ

Authority

incapable

of

jurisdiction

::: Downloaded on - 08/03/2014 14:29:59 :::

under

C
ou

rt

72

Article 226 of the Constitution of

India.

(c)

Disputes

the
is

and the Managing Committees

ig
h

dwellers

between individual slum

societies/ proposed societies.

of
This

essentially a private factual dispute

between

two private parties which

ought

not to be agitated/ entertained in a writ

petition.

Disputes

ba
y

(d)
of

the

regarding

registration

slum dwellers society cannot

be

om

entertained as this is not an order under

the

Slum Act or the D.C.

the

Authorities thereunder so also there

are

adequate

Regulation

remedies

under

or

the

Cooperative societies Act.

(e)
society/

Disputes
proposed

also

arise

society

when
of

a
slum

::: Downloaded on - 08/03/2014 14:30:00 :::

dwellers

terminates

agreement

of

them

and

the

a developer

replaces

developer.

C
ou

rt

73

development

appointed

them

Typically

by

by

in

another

such

impleading

the

essentially
the

dispute

ba
y

by

This is primarily

between the

developers

authorities are often

of

consequential

The proper remedy is therefore,

file a suit for specific

not

but

its removal

the

against

om

challenging

party

the slum dwellers and the orders

to

as a

and

orders.

performance

the society of slum dwellers and

to approach this Court under Article

226.

Mr.Aney,

respondent
adopted

S.R.A.

slum dwellers.

private

78.

ig
h

situation, the developer files a petition

learned

Senior

Counsel

for

No.6 in W.P.1326 of 2007 more or less

the contentions of the learned

Advocate

General and additionally submitted that there are

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self-imposed

restrictions

of

judicial

which are devised by the courts.

section

C
ou

rt

74

review

He submits that

42 of the Slum Act does not create a bar

this Court to exercise its writ jurisdiction

but

intent behind inserting such a provision

to

have

minimum

ig
h

for

invited

interference.

He

has

is
then

our attention to section 3(k)(1) and (2)

and contended that the only other power contained

the

limitation

Act
on

which

indicates

under

statutory

the power of this Court is to

be

ba
y

found in Section 3K.

79.

Section

invest

in

first

instance disputes that may arise under the

om

power

Act.

the State Government to decide at

Section

Government
necessary

3K (1) and (2) appear to

the

State

to issue directions as to the

policy

and

3(K)(1)

expedient

empowers

the

for carrying

out

the

purposes of the Act, and it enjoins a duty on the

Slum Authority to act upon such directions.

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80.

Section

Government

3(K)(2)(a)

in

writing

suspend

resolution

or order.

issued

any

powers

order

in

of

any

execution

The resolutions or
can,

orders

therefore,

of the view that these orders

are
of

be

State
or

in contravention of any of

the

the Act, or are in excess of

the

provisions

State

the State Government if the

is

resolutions

the

Authority

by

Government

the

ig
h

suspended

empowers

public interest, by an

to

by

C
ou

rt

75

conferred by the Act or any other law for

time

being in force.

may

suspend such order or resolution if it is of

the

view

ba
y

the

abuse

or

that

The State

Government

misuse

the same are likely to

or

waste

of

lead

to

of

the

funds

om

Authority.

81.

It

is also submitted that every order or

resolution

passed under this Act can, therefore,

fall

within the scrutiny of the State Government

under

the power vested in it by Section 3K(2)(a)

and

the

State Government is empowered to

issue

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appropriate

C
ou

rt

76

directions to the Authorities

under

it.

The said Authorities are bound to follow and

act

upon such an order.

every

Under section 3K(2)(b),

dispute which is traceable to some

action

ig
h

covered by the purposes of the Act or where there

appears to be a contravention of the Act or other
law

for the time being in force, where funds are

likely to be misused or wasted can, therefore, be

before the State Government who can pass

brought

necessary orders in that regard.

The

provisions

ba
y

82.

of Section 3K

fell

consideration of this Court in two cases.

Sai

Darshan

om

(W.P.No.910

Coop.Hsg.Society

for

(1) Om

Vs.

State

of 2005 with Notice of Motion No.698

of 2005) decided on 26th April 2006 by a Division

Bench of this Court where the bench held that the

power

under

issuing

Section 3K(i) extended only to

the

of general or special directions to

SRA

as

to policy.

Sai

Bhagwati

In a subsequent judgement in
Coop.Hsg.

Society

Vs.

Sri

S.R.A.

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reported

in

Division

2006(5)

Bench

of

Mh.L.J.

this

C
ou

rt

77

Court

483)

another

negatived

the

contention

that Section 3K would relate only

directions

as

policy.

In

view

of

this

subsequent

position, Mr.Aney submitted that the

ig
h

conflicting

to

to

judgement

is correct and

acceptable

not

merely because it is latter in point of time

but

also because it lays down the correct

after

considering and

position,

other judgements.

legal

distinguishing

The power contained in Section

3K must be held to extend to all matters where it

ba
y

is necessary for the State to issue directions to

prohibit

contravention of the Act or to

prevent

om

misuse or waste of funds.

83.
the

Edn)

Mr.Aney has then invited our attention to

work "Administrative Law by J.F.Garner
where

Mr.Aney,

the
has

learned
enumerated

Author,

according

(5th

certain

to

situations

wherein the power of Judicial Review would not be

exercised.

::: Downloaded on - 08/03/2014 14:30:02 :::

84.

Apart

learned

from

urged

Senior

Mr.Aney,

C
ou

rt

78

Mr.Subramaniam,

Counsel also addressed

us.

that there is no straight jacket

He

formula,

writ

jurisdiction

available
disputes

or

not.

of this Court

would

He submits that

there

be
are

precise

and differences which are incapable

classification.

jurisdiction

the

ig
h

which could be evolved for deciding as to whether

submits

is

He submits

available

in most

that

of
writ

cases.

He

Law

element and private law

ba
y

public

that the classification of disputes into

dispute

is

also not possible to be made in this case.

There

om

85.

wished

are

to addressed us.

several

aspects

liberty

to

submissions.
the

other learned

matters

disputes

them

of

Advocates

who

Since the issue touches

welfare measures,

to intervene

and

we

make

gave
their

Mr.Mihir Desai appearing in one of

contended

should

that the

questions

not be considered in a

and

limited

::: Downloaded on - 08/03/2014 14:30:02 :::

angle.
or

They are not merely contractual

disputes.

He

dis-housed

or

extremely

poor

submits

those

that

matters

housing

residing in slums

condition

is

It is part and parcel of Article 21

Constitution of India which guarantees

to

life.

He

submits

function.

It

is not a dispute

that

of

developers.

ba
y

of

jurisdiction

om

slum
the

is

public
between

He submits

that

public

function,

essentially

in law so also
public.

the

The

writ

available because there

remedy

the

answering

maintainability.

is

right

purely

be overlooked while

question

being

it

the function being

cannot

alternate

that

private

nature

the

In any

is

event,

when

function

then,

of this Court should not be rigid

flexible.

He
is

further

submits that

no

functions

dwellers are approaching this Court,

view

in

Constitutional

of

some

the

and

ig
h

obligation.

C
ou

rt

79

the

being performed by private

but
State

parties

and, therefore, writ jurisdiction is available.

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86.

Mr.Gangal,

Writ

Petition

in

writ

is maintainable in all cases except

dispute

is

between

Ultimately

two

developers

dispute

or

or

question

ig
h

builders.
arises

learned Counsel appearing

No.74 of 2007 contends that

jurisdiction
where

C
ou

rt

80

out of participation of S.R.A.

and

when

S.R.As.

decision is improper, then,

upon

the

facts and circumstances in each

this

Court will decide whether to interfere with

case,

the

depending

same or not.

Therefore, no general rule can

ba
y

be laid down.

87.

Mr.K.K.Singhvi,

appearing

Senior

Counsel

for BMC submits that no constitutional

should limit its powers under Article 226.

om

court

learned

He submits that it is a guarantee provided by the

Constitution

discriminatory
injustice

is

entertained.

makers
action.

against

arbitrary

He submits that wherever

writ large, a petition

He

and

submits

that

the

should

be

Rule

of

Exhaustion of alternate remedy is only of caution

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and

C
ou

rt

81

necessity but that rule does not control the

plenary

power of this Court.

Consequently,

the

reference should be answered by holding that writ

jurisdiction is permissible to be invoked but the
of

the

interference would

depend

ig
h

extent

upon

facts and circumstances of each case.

88.

For

properly

brief

it

would

reference

Courts

these

be necessary to

contentions,

appreciating

make

powers

to the ambit and scope of

under

Article

226

of

this
the

ba
y

Constitution of India.

In

S.C.

1723,

om

89.

decision reported in A.I.R.

at

page 1734,

the

Supreme

1999
Court

observes thus:-

"27.

....

Constitution
possible

Article
is

couched

226

of
in

term and unless there is

the
widest
clear

bar to jurisdiction of the High Court its

::: Downloaded on - 08/03/2014 14:30:03 :::

powers

under

Constitution

Article

C
ou

rt

82

226

of

the

can be exercised when there

is any act which is against any provision

law

or violative

of

constitutional

provisions

and

had

ig
h

of

when recourse cannot

be

to the provisions of the Act for the

appropriate relief."

1999

In an another decision reported in A.I.R.

S.C.

90.

1786 (State of Himachal Pradesh

Vs.

ba
y

Raja Mahendra Pal) the Supreme Court holds thus:-

"6.

The learned Counsel appearing for

the

appellant has vehemently argued that

om

the

writ

petition

maintainable
justified

in

as

consequently
respondent

filed

was

not

the High Court was

not

entertaining the same

and

granting the relief to

the

No.1.

The

rights

of

respondent No.1, if any, are stated to be

based

upon

a contract for which he

was

::: Downloaded on - 08/03/2014 14:30:04 :::

obliged

to

avail

efficacious
either

remedy

rendition

of

alternative

filing

vested

suit

accounts.

or

It

that the discretionary

in

of

of

ig
h

contended

is

powers

the High Court under

Article

the Constitution could not

been

exercised

in

of

circumstances
find

the

for the recovery of the money

for

226

of

C
ou

rt

83

the

have

facts

the case.

and

Though,

substance in the submission of

we
the

learned Counsel for the appellant, yet we

not inclined to allow the appeal and

ba
y

are

om

dismiss

the writ petition of

No.1

only

is

true

that

the powers conferred upon the

High

Court

on this ground.

respondent

under

Constitution
which
of
but

Article

It

226

of

the

are discretionary in nature

can be invoked for the enforcement

any fundamental right or legal

not

arising

for

mere

contractual

right
rights

out of an agreement particularly

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in

C
ou

rt

84

view of the existence of

alternative
Court

remedy.

should

The

efficacious

Constitutional

insist upon the

party

to

avail of the same instead of invoking the

Court.

writ

Court

from

relief

to

granting

facts
of

remedy.

The

appropriate
and

notwithstanding

alternative

existence of

circumstances

ba
y

the

the

a citizen under peculiar

existence

the

efficacious
the

special

are required to be noticed

before

issuance of the direction by

the

High

Court

the

while

jurisdiction

om

the

This does not however debar

special

jurisdiction of

ig
h

extraordinary

the

under the said Article.

In

instant case, the High Court did not

notice

any

could

be

deviate
law

invoking

special circumstances

which

held to have persuaded

it

to

from the settled proposition

of

regarding

jurisdiction

the exercise of the

under

Article 226

of

writ
the

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C
ou

rt

85

Constitution.

For exercise of the

writ

jurisdiction, the High Court pressed into

service

the alleged fundamental right to

livelihood

of

the respondent which

was

ig
h

found to have been violated by not making

him the payment of the amounts claimed in
the

writ

Article

petition.
21

of

It

is

true

the Constitution

that
is

of

and
or

utmost importance, violation of which, as

when found, directly or

even remotely, has to be looked

The violation of the right to

livelihood

is

But

right

ba
y
om

with

disfavour.

the

contemplated

indirectly,

Constitution
construed
the

required to be

under

to

remedied.

livelihood

cannot

Article
be

21
so

of

which may result in

as
the

widely
defeating

purpose sought to be achieved by the

aforesaid

Article.

It is also true that

the right to livelihood would include all

attributes of life but the same cannot be

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extended
embrace
sorts

to

the

or

C
ou

rt

86

extent

take

that

may

ambit

all

within its

it

of claim relating to the legal

rights

completely

ignoring

approaching
violation
Court

the

of

the

parties

the

person

Court and

the

the said right.

appears

to

alleged
The

High

very

have adopted

general and casual approach in

generous,

of

ig
h

contractual

applying
facts

the right to livelihood to

and

circumstances

ba
y

apparently
itself
under

or

for

with

of

the

the purpose of

the power and

Article

the
case

clothing

jurisdiction

226

of

the

om

Constitution......"

91.

Thus,

the

Supreme

Court

holds

that

and limitations

have

self-imposed

restrictions

been

upon exercise of its power

Court

placed

merely

by

the

and the Court would not exercise the power

for

the asking or because it is

of

the

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view

that

parties

prejudice

be

caused

if the same is exercised.

attributes
the

would

C
ou

rt

87

to

the

The essential

for exercise of such powers have been

subject matter of number of decisions of the

92.
Vs.

ig
h

Supreme Court.

In A.I.R.
Harilal

1964 S.C.

Bhai),

Supreme

Court

has

the same time we cannot

lose

observed thus:-

the

1006 (State of M.P.

"17.

At

ba
y

sight of the fact that the special remedy

provided

om

to

in Article 226 is not

supersede

completely

the

intended
modes

of

obtaining

relief by an action in a civil

court

to deny defences

open

or

in such actions.

clear

more

give

relief

It has been

made

than once that the power

discretionary
true

legitimately

under
power.

Article
This is

226

is

to
a

specially

in the case of power to issue writs

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in

the

C
ou

rt

88

nature of mandamus.

several

matters

rightly

take

which the

Among

High

the

Courts

into consideration in

the

of that discretion is the delay

made

the aggrieved party in

by

ig
h

exercise

seeking

this special remedy and what excuse there

is

for

it.

controversy
to

of

be

decided

availability

nature

of

that

may

facts and law

have

Another is the

of

as

regards

consequential

the

relief.

Thus,

where, as in these cases, a person

comes

to

ba
y

the

Court

for

relief

under

Article 226 on the allegation that he has

been

assessed

om

legislation
mistake

if

under

void

having paid it under

it finds that the

void,

provision
made

and

tax

is entitled to get it back,

court,
was

to

by

exercise

being
of

made

the

assessment

under

law, and the

payment

void

mistake, is still not bound

its

discretion

was
to

directing

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repayment.

C
ou

rt

89

ordered

Whether repayment should

in

discretion

the
will

exercise

of

be

this

depend in each case

its

own facts and circumstances.

is

not

easy nor is it desirable to lay down

any

rule for universal application.

may

however be stated as a general

ig
h

It

on

It
rule

that if there has been unreasonable delay

court

ought not ordinarily to

lend

its

aid to a party by this extraordinary

the

remedy of mandamus.

is no such delay the Government or

ba
y

there

Again, where even if

the

Statutory authority against whom the

consequential relief is prayed for raises

om

prima

the

facie triable issue as

availability

regards

of such relief on

the

merits on the grounds like limitation the

courts
the
In

should ordinarily refuse to issue

writ

of mandamus for such

payment.

both these kinds of cases it will

sound

use

of

discretion to

leave

be
the

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party

C
ou

rt

90

to seek his remedy by the ordinary

mode

of

refuse

action in a civil court and

to

exercise

in his

favour

to

the

extraordinary remedy under Article 226 of

93.
Bench.

This

is

The

a decision by the

Constitution

same Constitution Bench in

reported

in

A.I.R.

decision

ig
h

the Constitution."

(Thansingh

Nathmal

Superintendent

of

&

Taxes,

1964

another

S.C.

1419

Ors.

Vs.

The

Dhubri

and

Ors.)

ba
y

observed thus:-

"7.

om

High

......

Court

The jurisdiction of

under

Article

226

of

the
the

Constitution is couched in wide terms and

the

exercise

thereof is not subject

any

restrictions except the

to

territorial

restrictions which are expressly provided

in

the Article.

But the exercise of the

jurisdiction is discretionary;

it is not

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exercised
do

C
ou

rt

91

merely because it is lawful to

so.

The

very

jurisdiction

amplitude

ordinarily

demands
be

that

of

exercised

the

it

will

subject

Resort

ig
h

certain self-imposed limitations.

to

to

that jurisdiction is not intended

an

alternative

may

remedy for relief

which

be obtained in a suit or other

by

Statute.

mode

Ordinarily

prescribed

as

the

Court will not entertain a petition for a

writ

under

ba
y

petitioner
which

om

has

without

provides

Article
an

226

where

being

alternative
unduly

an equally efficacious

the

remedy,
onerous,
remedy.

Again

the High Court does not

generally

enter

upon a determination of

questions

which

demand an elaborate examination of

evidence
enforce
High

to

establish

the

right

which the writ is claimed.

Court

does not therefore act as

to
The
a

court of appeal against the decision of a

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court

or

fact,

tribunal to correct errors

and

does

jurisdiction
an

statute
is

under

by

Article

of

assuming

226

trench

alternative remedy provided

for obtaining relief.

open

move

not

by

Where

it

to the aggrieved petitioner

to

ig
h

upon

C
ou

rt

92

another tribunal, or even itself in

another

in

the

redress

jurisdiction

for

manner

obtaining

provided

by

Statute, the High Court normally will not

permit

ba
y

Article

by entertaining a petition
226

of

the

under

Constitution

the

machinery created under the statute to be

by-passed,

om

applying

In

reported

Court

to

it

will

leave

the

to seek resort

party
to

the

machinery so set up."

94.

Vs.

and

another
in A.I.R.

Deputy

Excise

Constitution Bench
1975 S.C.

1121

Commissioner)

decision

(Harshankar
the

Supreme

observed that the writ jurisdiction of the

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C
ou

rt

93

High Courts under Article 226 of the Constitution

of

India is not intended to facilitate avoidance

of

obligations

words,

voluntarily incurred.

In

other

been entered into voluntarily and

accepted

ig
h

have

such of the contractual obligations which

accordingly, cannot be avoided by taking recourse

to writ jurisdiction.

In

a Two Judge Bench decision of Supreme

95.
Court

reported

D.F.O.

South

in A.I.R.

Kheri

1973 S.C.

& Ors.

Vs.

205
Ram

(The
Sanehi

ba
y

Singh) the Supreme Court observed thus:-

"4.

Counsel

for

the

appellants

om

contends that since the dispute arose out

of

the

terms

of the contract

and

the

Divisional Forest Officer under the terms

of
any

the contract had authority to

action taken by a subordinate forest

authority,
was

modify

the remedy of the

respondent

to institute an action in the

Civil

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Court

C
ou

rt

94

and that the writ petition was not

maintainable.

But

in the present

case

the order is passed by a public authority

modifying

the

forest

authority.

ig
h

subordinate

order or proceeding of
By

that

order he has deprived the respondent of a

valuable

right.

merely

right

which

because the source

initially

in

hold

of

the

claims

was

the respondent

that

We are unable to

a contract, for

obtaining

relief against any arbitrary and unlawful

ba
y

action
he

must

petition

om

the

on the part of a public authority

resort to a suit and not
by

way of a writ.

judgement

K.N.Guruswamys
A.I.R.

of

this

to

In view

of

Court

in

case (1955) 1 SCR 305

1954 S.C.

592, there can be

=
no

doubt that the petition was maintainable,

even
an

if the right to relief arose out of

alleged breach of contract where

action

challenged

was

of

the

public

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C
ou

rt

95

om

ba
y

ig
h

authority invested with statutory power."

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96.

C
ou

rt

96

Thus,

what emerges from these

is that :-

There

are

self-imposed

ig
h

a)

decisions

restrictions

on the exercise of

plenary

and constitutional powers.

They are not be exercised for the

b)

asking and merely because it is lawful to

ba
y

exercise them.

c)

ordinary

They are not meant to replace the

remedy

of

civil

suit

or

om

statutory remedy.

d)
not

The powers under Article 226 will

be

serious

exercised

in

cases

involving

dispute about the right to claim

the relief in writ jurisdiction.

issues

If such

or questions are to be determined

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and

C
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rt

97

decided by elaborate examination

evidence.

Lastly,

exercised

to

contractual
incurred.

This

bring
not

obligations

remedy

ba
y
of

the

implementation

om

of

voluntarily

available

to

is

aggrieved

even while questioning the actions

inactions

the

avoidance

the point that writ jurisdiction

only

parties,

be

facilitate

not

much, according to us, is enough to

home
the

power will

97.

the

ig
h

e)

of

Slum

authorities

of

in

and

charge

rehabilitation schemes

of

Act and the D.C.

Regulations.

under
It

is

well settled that all actions of Public Bodies or

those involving public bodies are not necessarily

of

public character.

involve

private

undertaken
Private

More so, when some of them

participation or

jointly

Operator.

by

a Public

concern
Authority

acts
and

It cannot be assumed straight

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C
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98

away that whenever they are participating in such

scheme

or measures, by the very nature of

their

participation, the duties and functions which are

and discharged by them assume a public

law character.

It is not disputed before us that

ig
h

performed

the functions and duties of these authorities are

performed

by them with the assistance of private

entities.

The same is envisaged and contemplated

the

Act

provided
or

and

Rules.

Some

by

incentives

are

to such private parties if they perform

fulfil

public

their

ba
y

whenever,

the

function.

actions

are

Therefore,
impugned

or

challenged, merely because public bodies are also

involved

does

not

mean that all

om

amenable to writ jurisdiction.

disputes

public

and

of

but
the

also

involve

if their resolution
limited

are

There are several

questions which may

bodies

them

possible

in

jurisdiction,

recourse

to private law remedies is

is

not
then,

permissible

and should be insisted upon.

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98.

C
ou

rt

99

We

do

not intend to lay down any

principles

as

each

of them are

well

broad

settled.

Therefore, under the garb of filing Writ Petition

against

grievance or dispute so also raising

issue

an

which is not possible of being resolved in

jurisdiction,

directed
Merely
the

to

avail

then,
of

writ

he

private

can

always

law

be

remedies.

because, a Letter of Intent is issued

S.R.A.

cases

and for all times

ba
y

all

by

to the applicant does not mean

applicant/developer
the S.R.A.

to

come,

that

is the agent of S.R.A.

the
and

is capable of being dragged into writ

along with private developer by

om

jurisdiction

aggrieved party.
essentially

if

applicant/petitioner is ventilating a purely

private

in

State/ B.M.C./ MHADA/ MMRDA

ig
h

the

S.R.A./

an

If the aggrieved party, who has

grievance

against

the

builder/developer

approaches the S.R.A.

State

for their intervention in

requesting

and the
the

dispute and they refuse to do so on untenable and

false

grounds

or

that

they

act

arbitrarily

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C
ou

rt

100

capriciously or malafide, writ jurisdiction could

be

permitted to be invoked in appropriate cases.

This

is

because, the aggrieved party

recourse

to the remedy of a suit or

provided

in

has

full

Arbitration

State/SRA/Public

ig
h

the contract and by impleading

declarations

Body,

it can seek

and reliefs.

the

appropriate

The bar under section

42

of the Slum Act cannot straight away be

held

to

be applicable to such cases.

wish

to

go into the interpretation so also the

and

scope

of

section

reference.

ba
y

present
doors

of

litigant

42 for

Suffice

civil

the

ambit

purpose

it to

by

court cannot be

express

provision

of

state
shut

or

that
to

unless the jurisdiction of civil

ousted

om

is

We do not

court

necessary

implication.

99.

The

decision

of the three

Judge

(supra)

has

cases.

That apart, if it is possible to resolve

the

been later on explained in

bench

controversy

several

in the limited jurisdiction

on

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the

principles

notwithstanding

enunciated
it

being

in

C
ou

rt

101

above,
the

nature

contract, a writ petition would lie.

are

of

view that in some of

the

disputes

have been narrated above, there is

private

of

However, we

purely

ig
h

which

the

then,

issue involved and by impleading

public

bodies as parties, the petitioners cannot by-pass

available

otherwise.
given

instances of such disputes

or
are

by both Mr.Kamdar and the learned Advocate

General
by

in their submissions.
no means exhaustive.

ba
y

is

The

to them of filing a suit

remedies

The list provided

These are

commonly

raised grievances.

While

not giving an exhaustive list

but

om

100.

to outline the nature of the dispute which can be

taken cognisance of in writ jurisdiction, we wish

to make some observations on this aspect because,

it

was seriously contended that when it comes to

the
their

rehabilitation and relief of slum

dwellers,

eligibility, rights, the bargaining

power

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being
the

unequal,

so also no remedies provided

relevant Laws at all, the writ

is always open to be invoked.

In this behalf, in the two Division Bench

decisions

[(1)

Darshan

W.P.No.910

Cooperative

of

2005

Housing Society

Om-Sai

(Proposed)

and

Chandrakant Ramchandra Thakur v/s.The

of

Maharashtra,

through

Section

represented

and Ors.

- Coram :

and

(2)

ba
y

JJ.

Bhagwati

the

State

Secretary,

through the Govt.

SRA

Pleader

H.L.Gokhale and Abhay S.Oka,

W.P.No.5068 of 2005

Shri

Sai

Co.Op.Housing Society (Proposed) & Anr.

v/s.Slum Rehabilitation Authority & Ors.

H.L.Gokhale

- Coram

and J.H.Bhatia, JJ.] brought

to

om

in

jurisdiction

ig
h

101.

C
ou

rt

102

our notice it is observed thus:-

(2006 (5) Mh.L.J.483)

"8.

Mr.Sugdare

judgements

relied

upon

of the Apex Court.

two

Firstly,

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C
ou

rt

103

he relied upon a judgement in the case of

Bangalore

Development

Hanumaiah
case

Authority

(2005) 12 SCC 508.

Vs.

That was a

concerning the interference by

the

Minister into certain decisions of

ig
h

Chief

the

Bangalore

exercising
Government

the

under

powers

of

1976.

the

section

by

the

Authority

Act,

Development

65

State
of

Bangalore

Development Authority

of

This section is quoted in para 50

that

judgement

which

reads

as

om

ba
y

follows:-

".

"65.
Governments power
to
give directions to the Authority
as in its opinion are necessary
or expedient for carrying out the
purposes of this Act, and it
shall
be
the
duly of
the
Authority to comply with such
directions."

Court

What

pressed

in

is

observed

paragraphs

by

the

51, 52 and

Apex
58

into service by Mr.Sugdare.

is
He

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C
ou

rt

104

submitted

that under this section only a

direction

for carrying out the

of

the

Act

instant

could

case,

be

purposes

given.

In

the Apex Court has

the

noted

ig
h

that it has not been shown that the Chief

Minister

was

directions

authorised

to

Authority.

Bangalore

to

issue

Development

That apart, on the facts, the

given

Court noted in para 52 that the direction

by

instant

case

purposes

ba
y

the

the

Chief

Minister

in

the

would not be to carry

out

of the Act rather than

it

would be to destroy the same.

of

para

51,

the

Court

has

At the end
clearly

om

observed:".
The Government can give
such directions to the Authority
which
in
its
opinion
are
necessary
or
expedient
for
carrying out the purpose of the
Act."
"9.

The

second Judgement relied upon

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is

in

the

Neeraj

section

(2006) 1 SCC

section
26-M

in

U.P.

Vs.

667.

The

consideration

of the U.P.Krishi

Adhiniyam,

1964.

That

was

Utpadan
section

ig
h

mandi

case of State of

Awasthi

relevant

C
ou

rt

105

reads as follows:-

om

ba
y

"26-M(1)
In the discharge
of its functions, the Board shall
be guided by such directions on
question of policy as may be
given
to
it by
the
State
Government.

"While
Court
of

considering

that

section,

the

has observed in para 40 that power

the State Government was confined

issue
It

(2)
If any question arises
whether any matter is or is not a
matter as respects
which the
State Government may
issue a
direction under sub-section (1),
the
decision of
the
State
Government shall be final."

to

directions on questions of policy.

however,

day-to-day

cannot

interfere

in

functioning of the Board.

the
In

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our

understanding,

that

C
ou

rt

106

clearly

arose

from the wording of section 26-M that was

under consideration in the matter."

As far as the present scenario is

ig
h

"10.

concerned, section 3K is quite wide as we

have

seen

it.

It is

undoubtedly

true

that in day-to-day functioning, the State

is not expected to interfere.

At

Government
the

what

same time, in the present

has

happened is that on facts

of

ba
y

action

the SRA in

om

application

case,
the

entertaining

the

of the 1st petitioner before

disposing

of

respondent

No.5, was clearly contrary to

the
by

the

pending

one

of

Scheme of Development as interpreted

this

Secretary

Court.

That

(Housing)

being

so,

was clearly

his

powers and he has rightly set

the

entertaining

the

within
aside

of the application

of

the petitioners by SRA."

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C
ou

rt

107

MANU/MH/0197/2006 (Om Sai Darshan C.H.S.)

"22.

Shri

the

relied

the

upon the Minutes

ig
h

petitioners

Govilkar appearing for

of

meeting held on 18th October 2003 in

Chamber

of

Housing.

the

to

copy

of

of

State

of

Minutes

is

the petition

the

which

annexed

Minister

records

that the office bearer of petitioner No.1

society and the Resident Deputy Collector

ba
y

were present in the meeting.

The minutes

do

not disclose that any

representative

of

the Hanuman Nagar Society was present

om

in the meeting or was given notice of the

meeting.

The

representative

Minutes record
of

the

that

Petitioner

the
No.1

Society

pointed out that though Annexure

II

issued

was

Nagar
by

in the name

of

Hanuman

the

Society no progress had been

said society for a period

made
of

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years.

C
ou

rt

108

The original Minutes which are in

Marathi record that the minister of State

directed
the

that the proposal submitted

Petitioner
and

Annexure

II

decided

should

Petitioner

should

be

immediately

ig
h

examined

No.1 Society

by

be

issued

No.1 Society.

and

to

the

Shri.Govilkar

submitted that this is a direction issued

Section 3K of the Slum Act.

under

assuming

that

it

can

be

read

Even
as

direction under Section 3K, it is obvious

the

direction

ba
y

that

consider
No.1

the proposal of the

Society

om

direction
grant

was to the

immediately.

SRA

to

Petitioner
The

said

cannot be read as direction to

approval

Petitioner

to the proposal

of

the

No.1 Society as neither under

the Slum Act nor under Regulation 33(10),

the

Minister of State for Housing has

power

Scheme.

to sanction either Annexure or the

Apart from this, by no

stretch

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of

imagination,

C
ou

rt

109

the direction which

is

recorded in the Minutes of Meeting can be

read as direction under Section 3K issued
by the State Government.
(1)

of Section

3K

extends

ig
h

sub-Section

The power under

only to the issuing of general or special

directions
may

to the SRA as to policy as it

think

out

expedient

the purposes of

carrying

necessary and

Act.

the

for

Whatever is stated in the

Slum

Minutes

of Meeting cannot be read as a special or

ba
y

general direction as regards policy.

power

under Section 3K cannot extend

giving

om

to

a direction that Annexure II of a

particular

The

sanctioned.

proposed

society

should

be

When the purported direction

was

given, slum Rehabilitation Scheme of

the

Respondent No.4 was already approved

by SRA.

The Petitioner No.1 was claiming

to develop a smaller area out of the area

for

which scheme of the Respondent

No.4

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was

already sanctioned.

C
ou

rt

110

the

of the Petitioner could

not

Application

Therefore,

have been entertained either by SRA or by

the State.
as

one

under sub-Section

ig
h

read

Thus, the direction cannot be

(1)

of

Section 3K by any stretch of imagination.

23.

Sub-Section

of

the

opinion

resolution

Section

that execution

3K

of

any

or order of the authority

contravention or in excess of

is

powers

ba
y

in

of

that if the State Government is

provides

(2)

om

conferred by the Slum Act or is likely to

cause

waste of the funds of the SRA, the

State

Government in public interest

suspend
or

the execution of such resolution

order.

power

can

is

In

the present

obviously not

case,

exercised.

this
As

pointed out earlier, the meeting was held

on

18th

October,

2003

and

letter

of

intent in favour of Hanuman Nagar Society

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was

issued by SRA on 12th May, 2003, the

sanction

was issued by the SRA in favour

the

2003,

said

October,

to construct transit camp.

Minister

of

orders

The

State has not suspended

the

passed in favour of Hanuman Nagar

Society

by the SRA.
was

already

favour

intent

When the letter

of

issued

in

by

SRA

of Hanuman Nagar Society on

May,

2003,

the Minister of State

directed the SRA

ba
y

have

Annexure
No.1

II

to

prepared by the

12th
could

consider
Petitioner

Society of only 28 eligible hutment

dwellers

om

21st

and on the same day permission was

granted

not

society on

ig
h

of

C
ou

rt

111

scheme

as area in respect of which the

was

sought

by

intent

was already covered

letter

by

No.1

submitted

Petitioner
of

Hanuman

to be

issued in

Nagar Society.

favour

of

In any event, no

such

decision

could have been taken

the

Minister

without

following

by
the

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elementary
by

C
ou

rt

112

principles of natural justice

giving an opportunity of being

to Hanuman Nagar Society."

In

decision

this

behalf the Supreme Court

reported

ig
h

102.

in

(P.R.Murlidharan

& Ors.

Theertha

&

Padar

plenary.

of

2006(4)

v/s.

Ors.)

the

writ

made

writ

of

om

civil

Mandamus

Civil Court

proceeding

is

that

wide

cannot

and

be

It is also observed

rights.
wide

meaningful

cannot be

seeking

relief for

converted

be
A

into

adjudication

The Supreme Court observes

Jurisdiction under Article 226 of

Constitution

observed

forum for adjudicating civil rights.

proceeding

the

501

this decision that a writ petition cannot

ba
y

in

S.C.C.

has

substitute for a civil suit.

in

Swamy Dharmananda

jurisdiction

heard

a
of

that
the

of India would remain effective and

only

when it is exercised

prudently

and in appropriate situation.

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103.

In

2005

S.C.

A.P.

&

that

the

another

decision reported in

4455, (G.Srinivas Vs.

question

of

title

A.I.R.

Government

Ors.), the Supreme Court

has

of

observed

could

in the writ jurisdiction.

not

The

be

scope

ig
h

determined
of

C
ou

rt

113

judicial review is limited in cases involving

the property rights.

However,

there

it was contended before us that

104.

is

an absence of corrective machinery

the

Statute and, therefore, recourse to

226

is

ba
y

permissible.

review,

is

permitted

In other
whenever

in

Article

words,

Judicial

there

is

no

om

alternate remedy, is the submission.

105.

Reliance

decision

11

in

the

impugned

placed

upon

recent

of the Supreme Court reported in (2006)

S.C.C.

Kanan).

was

67 (Indian Airlines Ltd.

Vs.

Prabha

The Supreme Court decision must be seen

backdrop
before

of

the

fact

that

what

the Supreme Court and the

was
High

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Court

was an action of Board of Directors

away

with

the services of a permanent

employed

with

the

Indian

employee
Ltd.

13 which confers powers on the

Board

the

Argument

ig
h

Directors was invoked and the order

before

Supreme

was,

because

the

Court

was

impugned

passed.

The

there was no remedy of an

decision

is taken by

the

appeal
Highest

of the Corporate entity viz., Board of

Directors,

Authority

doing

Airlines

Regulation
of

C
ou

rt

114

which

includes

the

Chairman.

Therefore, it was urged that in the absence of an

to

anybody

ba
y

appeal

Judicial

Review

context

the

is permissible.

establishment,
It is in

this

that the observations have been made

by

Supreme Court and more particularly in paras

om

the

within

34 to 46.

106.
in

It is not as if there is no remedy at all

the matters before us.

The State

has a power to issue directions.

referred

Government

We have already

to the said power in the Slum Act.

The

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State
to

C
ou

rt

115

Government is empowered to direct the

take

such

successful,

steps

as

are

SRA

meaningful

necessary
and

for

purposeful

implementation of the rehabilitation scheme meant

slum

dwellers.

itself

is

also

Letter

of

Intent

taking

recourse

if

the

powerless.

Once

it

issues

to the Developer, it

to

the

terms

SRA

and

can

a
by

conditions

monitor and supervise the activities of

thereof,

It is not as

ig
h

for

development at site and can even make suggestions

and

direct

has

to

changes.

ba
y

implement

Slum

slum

Rehabilitation

is

its

scheme

om

within

of the Act,

scheme.

duty.

by the State Government.

the

which

rehabilitation

established

It

is

Therefore,

Rules

and

the

D.C.Regulations

so also the terms and conditions

of

of Intent, the

the

Letter

including

Thus, it is S.R.A.

aggrieved

party

the slum dweller can approach the slum

rehabilitation

authority

and seek redressal

any of the grievances.

If the S.R.A.

intervene,

State Government

then,

the

of

refuses to
can

be

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approached.
take

C
ou

rt

116

If the State Government refuses

cognizance

exercise

its

recourse

to

powers
a

upon

writ

in

that

behalf,

petition

other facts

is

and

to

then,

permissible,

circumstances.

ig
h

depending

of the grievances and fails

to

Therefore, we are of the view that the submission

that

there is no alternate remedy or absence

corrective

circumstances,

petition
are

is

of

we

founded.

do not find

view that corrective

ba
y

then,

we

cannot

In

that

maintainable straightway.

the

available

is not well

such

machinery

of

writ

Once

we

mechanism

is

render

such

conclusion.

That apart we are of the view that as far

om

107.
as

ambit

Section

the

and scope of the powers

conferred

3K(1) and (2), there is no conflict

interpretation thereof is correct.

considering

by
and

Further,

the nature of the function and

duty

of the State, it would be appropriate to construe

that

the State Government can intervene so as to

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C
ou

rt

117

smoothen the process and remove all obstacles and

hurdles

in

the

way

rehabilitation.

proper

and

complete

Additionally, we are of the view

it is for the Legislature to intervene

provide

for

setting

up

Authority.

Supervisory

Such

and

by

Monitoring

an authority can be set up

State

by

making

appropriate

amendments

in

the relevant Statutes.

by

changes

the

and

a complete corrective mechanism

ig
h

that

of

We

or
hope

these steps are taken expeditiously.

Absence

of

ba
y

108.

executive
would

or

quasi

naturally

om

jurisdiction

authority

administrative,

judicial process

tilt

in

under

Constitution
indicate

adequate

favour

Article

of
226

or

forum

invoking
of

the

but the nature of the dispute would

that

by

vested

proper exercise of

afore-indicated

in
would

these
help

power

departments
of

reduction

or
as
in

litigation and expeditious resolution of disputes

or

problems, which might have arisen because

of

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of

coordination

administrative
involved

in

approach

sanctioning

of

of

scheme.

departments

litigation

various

with

generated

remedy

projects

the

and

sanctioning
under

dimensions

the

the

adequate

and

and lack of

of

within the statute compels us

ba
y

that the State may consider

objectively
Area

(Improvement,

Clearance and Redevelopment)

Act,

1971,

MRTPA,

MHADA,

amendment

to

to Maharashtra Slum

om

legislative

and

slum development scheme,

Compared

observe

of various

development scheme, and

developments

proper

systematic

the entire process of planning

rehabilitation

109.

and

ig
h

lack

C
ou

rt

118

not only

to

provide

for

appropriate forum for remedying the grievances of

the

persons

but also to some extent

collective

working of these authorities.

110.
of

During the interrugnm period constitution

the authority would serve the ends of justice

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and

would

result

in

C
ou

rt

119

reducing

litigation.

111.

We

have

avoidable

it

be

that we have in any way expressly

or

ig
h

understood

actually not nor should

implied

restricted the scope of applicability of

Article

226

We

of the Constitution to such

cases.

have only indicated certain cases where inter

or intra-departmental mechanism may be invoked in

consonance

with

approaching

exhaustive

class

scheme of the

this Court.

ba
y

not

the

Act

before

Such classification

but is merely an

indication

is
of

may

of cases where the Court in its discretion

require the parties to take recourse to such

om

remedy.
nor

These principles are neither innovative

new percepts but are re-appreciation of well

accepted principles.

112.
would

Compelling

nor

neither

the

parties

to

file

be efficacious, alternate

suits
remedy

would meet the ends of justice in all cases.

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C
ou

rt

120

The controversies in such cases are best resolved

at

the administrative level itself as the

of

action is founded on the inaction,

or

authorities.
their

incorrect

colourable exercise of powers by

the

The records of the authorities and

ig
h

action

cause

action based upon such matters can best be

corrected

in

accordance

percepts

of

administrative

executive

action

the

established

functioning

different

levels

at

with

and

of

the

departments within the frame work of the Statute.

Till

such time as the Legislature or the

ba
y

113.

State

Government makes changes or amendments, it

would

be just, fair and proper to direct that

om

Monitoring
the

State

Agency/mechanism should be set up

so

that the power to

supervise

a
by
and

issue directions available in the Slum Act can be

exercised

effectively.

also

Slum Rehabilitation Authority has

the

opposed
Hence,

this

course

The State Government

during

oral

as
not

arguments.

we are of the view that the State

should

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C
ou

rt

121

immediately establish a monitoring agency.

It is

necessary to do so for the following reasons:-

That

apart,

remove

all

in the minds of slum dwellers

and

apprehensions

aggrieved

learned

parties,

Advocate

immediately
mechanism

to

General that the State

set
so

we suggested

up

that

monitoring

the power to

other

with a view to

ig
h

114.

the

should

agency

supervise

/
and

issue directions available in the slum Act can be

exercised

effectively.

In all fairness, learned

ba
y

Advocate General stated that directions be issued

in that behalf.

The State should immediately put

om

a monitoring agency in place.

a)

Considering

criteria

is

Collectorate

that the Eligibility

determined by the
and

in

cases

District
of

land

belonging to public body by the Competent

Authority
cooperation

thereof, the scheme works with

and

coordination

of

these

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Authorities.

C
ou

rt

122

importance

It is, therefore, of utmost

that the SRA acts as a

Chief

Coordinator and the Government, being the

ultimate

and

up

authority like SRA and

sets
MMRDA

should have a final word.

The

bodies

Government

b)

have

implement

ba
y

sanction

permission.

to

it

is

and

to

all

such

undertake

projects.

and
The

is not restricted only to

and approval of plans and grant

of

SRA

duty

these

implementation

om

which

public authorities like MHADA,

etc.

body,

ig
h

establishes

final

The Government must

that the purpose of

see

establishing

achieved and slum

dwellers

are

rehabilitated, so that the government and

private lands are slum free.
pavements,

use

of

residents and tax payers are cleared.

In

other

which

Equally the

are meant for

words, if the Government does

not

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want

C
ou

rt

123

to

proliferation of slums, then it has

take steps to ensure Coordination and

Harmony

amongst

the

Agencies

c)

ig
h

Authorities.

It

that

and

would be of utmost importance

the

Government sets up high

committee,

consisting

person,

a Principal Secretary, to

be

preferably

of

power

nominated
assisted

by the Secretary, who shall be

CEO

ba
y

SRA,
CEO

by

Chief Executive

Officer

/ Vice President of MHADA

Vice

President

Commissioner

of

of

Municipal

MMRDA

and
and

Corporation,

om

Gr.Mumbai.

d)

That

eligibility
slum

any
of

dwellers

complaint

slum dwellers,
being

denied

about
eligible

tenement,

developers not undertaking and completing

the

project

as per the

permission

and

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approval
time

so

C
ou

rt

124

also within the

stipulated

frame, transit accommodation

unavailable
shall

or

not

provided

being

for

etc.

be addressed to this Committee and

be

looked

accordingly.
approached
above

into

ig
h

grievances

The

Courts

by

it

cannot

be

straightway unless and

until

mentioned Committee is first moved

by the aggrieved person in the form of an

application
the

/ complaint in writing.

grievance

ba
y

complaint

is

attended

not

redressed

If

representation

is

or
not

to, then and in that event this

Court can be approached under Article 226

om

of

115.
writ

the

Constitution and not

Ordinarily,
Court

otherwise.

no person can approach

directly

without

exhausting

this
the

above remedy.

In the result, we are of the opinion that

jurisdiction

is

available in

matters

of

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C
ou

rt

125

Rehabilitation of Slum Dwellers but the limits of

exercise

of

restricted
despite

to

remedies

be

confined

of

Appeals

and

unresolved

etc.

being

ig
h

Similarly, in the illustrations given

learned

Advocate General, this Court can

approached
is

should

matters, which remain

the

exhausted.
by

power

only if the decision of SRA or

be

State

permissible for being interfered with on

settled principles in writ jurisdiction.

given

illustrations

and

the

categories

We have
of

case

wherein a prerogative writ may be issued so as to

smooth

ba
y

ensure
Slum

and effective

Rehabilitation

jurisdiction

will

Scheme.

implementation

not

However, the

be available

of
writ

where

the

om

dispute is essentially private or contractual and

the

State Government, SRA and other local bodies

are

impleaded

petition.
is

not

as

parties

only

to

file

In other words, when the main

writ

sought against these bodies,

relief

yet,

they

have been impleaded as parties and the dispute is

mainly

and

essentially between private

parties

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C
ou

rt

126

involving purely private law, then, writ petition

is not the remedy.

116.

We

are

recording

our

conclusions

have

taken

Counsel,

an

extreme stand

whether

respondents,

do

Slum

Bodies

before

appearing for

us.

The

petitioners

not contend that in

all

invoking

Writ

or

cases

Dwellers, Developers and

involving

Public

Jurisdiction

is

impermissible.

They do not dispute the salutary

principles

out above, culled as

set

ba
y
from

the

could

om

having

not submit an exhaustive list of

public

are,

private

appearing

for

so also the learned Advocate General

that

safeguards

Counsel

They

disputes

law character or raising

The

petitioners
agreed

they

decisions of the Supreme Court.

grievances.

ig
h

hereinbelow on the basis that none of the parties

there

are

inbuilt

checks

and

so also enough powers reserved to the

Authorities

in

charge

supervision

of

the Slum

of

implementation
Rehabilitation

and
Scheme

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within

C
ou

rt

127

the frame work of the existing law.

They

broadly agree with the conclusion that the intent

of

the

Legislature

is

minimum

obstacles

and

obstructions in the way of implementation of Slum

measures

Scheme.

All

provisions

ig
h

Rehabilitation

are intended at smooth and

implementation
removal

of

of

on

Therefore,

interference

to

achieve

and

demolition

and

public

pavements

structures

expeditious

the scheme so as

encroachment

and

of

lands.

by the Court should

be

ba
y

minimum and bearing in mind the above intent.

117.

Having

Court

perused

the

decisions

of

this

on the issue of right of slum dwellers and

om

developers, both sides agree that there is really

no

difference

Bench

decisions

2006(5)

of opinion between

Society

Mh.L.J.

Mh.L.J.

282

Division

of this Court reported

483 (Sai Bhagwati

(Proposed)

Rehabilitation

two

and

Authority

(1)

Coop.Housing

Anr.
&

in

Vs.

Ors.),

(Awdesh Tiwari & Ors.

(2)
Vs.

Slum
2006
Chief

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Executive
find

Officer,

C
ou

rt

128

S.R.A.).

We also could

not

any conflict in the same insofar as States

power

to

issue directions under Section 3K

more particularly sub-Section 2 thereof.

Wide as

core

power is, its exercise or otherwise was

to

issue.
issue

Thus, on the existence of the power

directions, there is no difference

In

opinion at all.

118.

the

ig
h

the

and

the

result, we answer

the

of

question

ba
y

framed hereinabove as under:-

A)

and

While exercising the Jurisdiction

powers

under

om

Constitution
concerning

cannot

226

of

India

in

matters

Rehabilitation

Dwellers
relevant

of

Article

and

schemes

statutes,
be

carved

framed

distinct
out

of

nor

the

Slum
under

yardsticks
separate

parameters laid down by this Court.

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B)

However,

C
ou

rt

129

the

limits

and

restrictions which are placed on the writ

jurisdiction

of

Authoritative

pronouncements of

would

challenging
of

the

Court

govern the

writ

by

Supreme

petitions

ig
h

Court

this

the orders, actions/inaction

Authorities

implementing

in

charge

of

and/or monitoring the

slum

rehabilitation scheme.

C)

It is clarified that ordinarily a

under

ba
y

petition

Constitution

of

depending

upon

om

circumstances
can

decide

of
to

alternate

remedy

exhausted

by

such
the

Article

226

of

the

India can be filed

the

and

facts

and

each case, this

Court

intervene,

even

provided above is

the petitioner.

caution

and

must

abide by

the

not

However,

intervention should be minimum

Court

if,

Rule

Prudence enunciated by

and
of
the

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Supreme

Court

exceptional
Court

and

would

general

in

this

deserving

C
ou

rt

130

behalf.

In

cases,

this

exercise its powers and

rule

can be laid down

in

no

that

D)

As

ig
h

behalf.

involving

far as disputes and questions

the

slum

dwellers

Body/State,
of

Cooperative Housing

Slum

Slum

Authority/Public

Rehabilitation

and

Dwellers

and

Society

Developers,

ba
y

Registered Cooperative Housing Society of

Slum

Dwellers

Cooperative

Society

om

Developers
petition

on one hand and

and
under

Constitution

of

on

the

S.R.A./State,
Article

proposed

226

other,
a
of

Writ

India would not lie

the
or

would be entertained unless and until the

parties exhaust the remedy of approaching
the

High

Powered Committee referred

to

above.

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E)

The

made

only

C
ou

rt

131

exception that can

be

Writ

petitions

validity

and

challenging

legality

of

Regulations

Rules,

and

Circulars/directives
Statutory

issued

Policy
under

the

provisions or the vires of the

Statutory provisions themselves.

cases,

the

the

ig
h

to

to Clause (D) above, is with regard

the

In such

exhaustion

Court would not insist

upon

of remedies stipulated above.

if

ba
y

Similarly,

High

Powered

Committee/Authority refuses to act on the

om

representations/applications
proof

of the same having been

then,

in

can

despite

be

appropriate cases,

received,

However,

issued
the

to the

said

directions
Authority.

parties must satisfy

this

Court that they had made a grievance with

regard
Committee

to

inaction

of

High

Powered

to the State Government and it

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has

C
ou

rt

132

also refused to issue any directions

to

either that Authority or SRA.

if

the

then,

State inaction is also

the

the
by

petition can be
grant

of relief

alleged,

entertained.

would

ig
h

However,
upon

Thus,

depend

this Court satisfying itself

about

promptness or sense of urgency shown

the

aggrieved party apart

from

its

bonafides in approaching this Court.

F)

Prudence

ba
y

of

Needless

Supreme
of

alternate

om
B

remedy
If

questions

would

the

the

exhaustion
always

disputes

be
and

raised involve factual aspects

necessitate

documentary
can

Rule

and caution evolved by

Court with regard to

applicable.

or

to state that the

refuse

leading

evidence,
to

of

oral

then, this

interfere

in

and
Court
writ

jurisdiction leaving open to the parties,

remedy

of suit in competent civil

court

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or Arbitration.

G)

It

private

is

clarified

disputes

that

those

purely

involving

rights, brought before

ig
h

contractual

or

C
ou

rt

133

this

Court by way of writ petitions, will have

to

be ordinarily resolved by recourse to

civil

suit

where

ba
y
cases

om
who

this

petitions

State, S.R.A., B.M.C.,

MHADA

are impleaded as parties.

H)

119.

and

would apply even to

the

etc.

the

arbitration

principle

or

An

exhaustive

category of

such

and disputes cannot be framed

General

jurisdiction

principles

governing

would be applicable

and
writ

having

regard to the facts in each case.

We
have

are

thankful to the learned

appeared

in

the

matter

for

Counsel
their

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C
ou

rt

134

valuable assistance.

Lastly,

into

the

merits

petitions.
Bench

and

de-merits

of

individual

They were not placed before the Full

for

decision.

listed

before

issues

and

us,

The petitions

questions
the

which

were representative
commonly

facts

are

of

the

canvassed

therefore,
them.

we clarify that we have not gone

ig
h

120.

were taken from

and,

some

of

In the light of our opinion and conclusion

above,

ba
y

recorded
placed
under

before

each of these petitions

the respective

appropriate

headings

Division
i.e.

to

be

Benches

Admission

om

Hearing or Interim Relief.

121.

Office

However,
in

mind

to

take

steps

accordingly.

all matters will be disposed of bearing

the

above

mentioned

conclusions.

Reference is disposed of accordingly.

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C
ou

rt

135

ig
h

(Swatanter Kumar, C.J.)

(S.C.Dharmadhikari, J)

om

ba
y

(Dr.D.Y.Chandrachud, J.)

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