Bombay High Court
Ashok Kumar Gupta vs State Of Maharashtra Through The Office … on 8 May, 2025
Author: R. I. Chagla
Bench: R. I. Chagla
2025:BHC-OS:7772
wp (L) 30829 of 2024.docx
Kishor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 30829 OF 2024
1) Ashok Kumar Gupta & Ors. .. ...Petitioners
Versus
1) State of Maharashtra through the
office of the Govt. Pleader, High Court,
Bombay & Ors. .. ...Respondents
....................
Mr. Cherag Balsara a/w. Mr. Prathmesh Seth i/b. Mr. Joseph
Fernandes for the Petitioners.
Mr. Nishigandh Patil, AGP for Respondent No.1.
Ms. Jyoti V. Mhatre a/w. Ms. Anuja Tirmali i/b. Ms. Komal Punjabi
for Respondent No.2.
Mr. Vineet Naik, Senior Counsel a/w. Mr. Vishwanath Patil and Mr.
Kedar Nhavkar for Respondent No.3.
Mr. J. G. Aradwad (Reddy) for Respondent No.4.
Mr. Mayur Khandeparkar a/w. Mr. Rahul Arora, Ms. Krutika Pokale
and Ms. Preeti Limbachiya i/b. Mr. Jeet Gandhi for Respondent
No.5.
Mr. Anil Singh, Senior Counsel a/w. Mr. Amogh Singh, Mr. Adarsh
Vyas, Ms. Ruchita Verma and Ms. Rama Gupta i/b. Mr. Akash
Gupta for Respondent Nos.6 and 7.
Mr. Yuvraj Narvankar a/w. Ms. Raufa Shaikh for Respondent No.8.
SHARAYU
PANDURANG
...................
KHOT
Digitally
signed by
SHARAYU
PANDURANG
CORAM : R. I. Chagla, J.
KHOT
Date:
2025.05.08
14:40:54
+0530
RESERVED ON : 27 FEBRUARY 2025
PRONOUNCED ON : 8 MAY 2025
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JUDGMENT :
1. By this Writ Petition the Petitioners are impugning the order
dated 26th September 2024 (‘the impugned order’) passed by the
Respondent No.4 – Apex Grievance Redressal Committee (‘AGRC’) in
Application No.306 of 2024 approving the scheme of amalgamation
amongst Yogiraj Ashram SRA Co-Operative Housing Society
(Proposed) – Respondent No.6 herein and Galaxy Heights SRA Co-
operative Housing Society (Proposed)-Respondent No.7 herein and
for cancellation of Letter of Intent (‘LOI’) dated 17th June 2022 in
respect of CTS Nos.5040, 5041, 5042, 5044A, 5044B, 5068, 5085,
5086, 5087, 5088, 5089 and 5091 (‘the said plots’) which are
occupied by the Petitioners alongwith 41 occupants out of 53
occupants whose particulars have been provided in Exhibit-A to the
petition and who are claimed to be supporting the Petitioners.
2. Brief background facts is necessary :-
(i) The Notification bearing No. ‘DC/ENC/A-22-Yogiraj
Ashram’ (‘1977 Notification’) was issued by the Deputy
Collector (ENC) and Competent Authority on 27 th September
1977. By the 1977 Notification the Galaxy land (except CTS
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wp (L) 30829 of 2024.docxNo.5069) was declared as ‘slum area’ under Section 4(1) of
the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (‘Slum Act‘).
(ii) An order dated 22nd January 1985 was passed by the
Maharashtra Slum Tribunal in Appeal No.77 of 1983 filed by
Jaggir Singh against Deputy Collector and Competent
Authority. By the said order the declaration of Galaxy land as
‘slum area’ was set aside and matter was remanded back to
the Competent Authority to decide after hearing the parties.
(iii) A Corrigendum to the 1977 Notification was issued
by the Deputy Collector (ENC) and Competent Authority,
Andheri on 28th February 1985, whereby Galaxy land was
deleted from the 1977 Notification.
(iv) A Development Agreement was executed by the
Respondent No.7 – Galaxy CHS in favor of Respondent No.5
for the Galaxy land on 17th April 2013.
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(v) A Development Agreement was executed by
Respondent No.6 – Yogiraj CHS in favour of Respondent
No.5 for the Yogiraj land on 23rd August 2013.
(vi) Respondent No.5 submitted its proposal under
Regulation 33(10) of the DCR, 1991 to the Respondent No.3
– SRA for the declaration of Slum Scheme on the Yogiraj land
on 14th November 2013.
(vii) The SRA vide report dated 23rd July 2014 accepted
the proposal of Respondent No.5 with respect to the Yogiraj
land. Pertinently the report duly notes that Yogiraj land is a
‘census slum’.
(viii) An order was passed by CEO, SRA on 20 th December
2014 under section 3C of the Slum Act, declaring a portion
of the Galaxy land as ‘Slum Rehabilitation Area’.
(ix) Annexure-II was issued by CEO, SRA in respect of
Yogiraj CHS on Yogiraj land on 21 st July 2015 and 24 th
September 2015. It is noted that Annexure-II reflects that the
slum dwellers on the Yogiraj land are protected slum
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dwellers. Various supplementary Annexure-II have been
issued from time to time determining the eligibility of slum
dwellers of Yogiraj CHS. The Petitioners have not
participated in this process and hence have been declared as
ineligible.
(x) Respondent No.5 submitted its proposal in the year
2014 under Regulation 33 (10) of the DCPR 2034 to the SRA
for implementation of slum scheme on the Galaxy land.
(xi) The SRA vide Report dated 5th January 2021
accepted the proposal of Respondent No.5 with respect to
the Galaxy land.
(xii) Respondent No.5 submitted a proposal on 6 th
December 2021 for amalgamation of the scheme of Yogiraj
CHS with Galaxy CHS under Regulation 33 (10) of the DCPR
2034.
(xiii) A letter of intent (‘LOI’) was issued by SRA
sanctioning Slum Rehabilitation Scheme on the said land in
favour of Respondent No.5 (‘said scheme’).
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(xiv) The Petitioners being 3 out of 208 slum dwellers of
Yogiraj CHS refused to vacate their respective hutments.
Proceedings under Section 33 and 38 of the Slum Act were
initiated against Petitioners and Notices were issued to the
Petitioners (‘Section 33 and 38 Notices’) on 30th October
2023.
(xv) The Petitioners being aggrieved by the Section 33
and 38 Notices filed Appeal No.306 of 2023 in December
2023 before the Apex Grievous Redressal Committee,
Mumbai (‘AGRC’) inter alia seeking –
(a) Cancellation of the said LOI;
(b) Cancellation of amalgamation schemes of Galaxy
CHS and Yogiraj CHS;
(c) Quashing and setting aside the Section 33 and 38
Notices.
(xvi) The impugned order dated 26th September 2024 was
passed by AGRC dismissing the said Appeal.
(xvii) Aggrieved by the impugned order, the present
Petitioners Ashok Kumar Gupta and two others have filed the
captioned Writ Petition (L) No.30829 of 2024.
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(xviii) A Notification was issued by CEO, SRA in the
Government Gazette (‘Section 3C Notification’) under
Section 3C of the Slum Act whereby balance land out of the
Galaxy land was declared as ‘Slum Rehabilitation Area’.
3. Mr. Cherag Balsara, learned counsel appearing for the
Petitioners has submitted that none of the said plots mentioned in
paragraph No.1 of the present Writ Petition was ever declared as a
slum and the said CTS Numbers are not reflecting in said Notification
dated 27th September 1977 nor in the corrigendum.
4. Mr. Balsara has submitted that Respondent No.5 had filed an
Application dated 29th January 2014 before the Competent Authority
for declaration of the plot under Section 3C(i) of the Slum Act. By
virtue of the said Application, Respondent No.5 sought to declare
CTS Nos. 5069, 5071, 5071/1 to 10, 5073, 5073/1 to 6, 5074/1 to 5,
5075, 576, 5080A, 5084A/1 to 19, 5093, 5093/1 to 12, 5094,
5094/1 to 10 as slum under Section 3C of the Slum Act. He has
submitted that the Competent Authority by order dated 20 th
December 2014 concluded on the said Application that CTS No.5069,
5093 and 5093/1 to 12 could not be declared as Slum under Section
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3C of the Slum Act and CTS Nos.5071, 5074 were declared as slum
under Section 3C of proposed Galaxy Heights CHS under the Slum
Act.
5. Mr. Balsara has submitted that Section 3C(1) came to be
amended on 26th April 2013. The Circular bearing No.196 dated 27 th
January 2021 was issued by SRA whereby it was made mandatory for
the SRA scheme to ensure that amendment to Section 3C was
complied with in all respects i.e. for declaration of land as Slum
Rehabilitation Area on which Slum Rehabilitation Scheme is
proposed or submitted and this declaration is mandatory.
6. Mr. Balsara has submitted that by virtue of the LOI Report
issued by Respondent No.3 on 8th February 2022 the CTS Nos.
mentioned in paragraph No.1 of the Writ Petition had been
amalgamated. It was reported that Annexure-II of Yogiraj CHS had
been issued by Deputy Collector on 21 st July 2015 and draft
Annexure-II of Galaxy Heights CHS had been sent for Certification.
He has referred to Clause-7 of the LOI report where the status of
Slum is shown as ‘Status of the Declared slum vide Govt. Gazette
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Notification No. DC/ENC/A-22 – Yogiraj Ashram dated 31 st October
1977 and 5th February 2015′.
7. Mr. Balsara has submitted that it is important to note that the
slum declaration dated 31st October 1977 and 5th February 2015 did
not pertain to the plots occupied by the Petitioners. In any event vide
Order dated 22nd January 1985 certain plots were declared as in the
year 1977 were set aside by the Competent Authority on 22 nd
January 1985 on the application made by the father of the Chief
Promoter of the Respondent No.6 – Yogiraj CHS.
8. Mr. Balsara has submitted that the SRA on 17th June 2022
issued LOI wherein the plots mentioned in paragraph No.1 of the
Petition were added without the same being declared as slum under
Section 4, Section 3 or a censused slum. He has placed reliance upon
paragraph No.9 of the LOI which states “Details of slum declaration:
it is declared Slum vide Govt. Gazette Notification No.DC/ENC/A-22
– Yogiraj Ashram dtd. 31/10/1977 & 5/2/2015. Removed from Slum
in 1985 and in 2015, 7 plots were declared slum by CEO.”
9. Mr. Balsara has submitted that the Petitioners herein who are
Appellants in Appeal No.306 of 2023 before AGRC had sought
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cancellation of LOI dated 17th June 2022 and for other diverse reliefs.
He had submitted that the Petitioners herein being Appellants therein
were supported by 43 members of Yogiraj CHS before the AGRC. He
has submitted that the Appeal was heard firstly at the ad-interim
stage at length and after hearing parties, the AGRC on 2 nd February
2024 stayed the LOI dated 17 th June 2024 on the ground that prima
facie the title of property is not clear.
10. He has submitted that it was specifically pleaded by the
Petitioners herein/ Appellants therein that the plots mentioned in
paragraph No.1 of the present Writ Petition were not declared as
census slum and this is also one of the grounds in the Memorandum
of Appeal. The Respondent No.5 – Developer had filed Affidavit-in-
Reply to the Appeal No.306 of 2022 and at paragraph 12 it had
refuted the contentions on behalf of the Appellants therein viz that
the property was not declared as census slum and therefore Slum
Scheme cannot be implemented on the said lands. It has been
submitted by the Respondent No.5 – Developer that this contention is
wholly unfounded and incorrect.
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11. Mr. Balsara has referred to paragraph No.17 of the impugned
order wherein it is stated “The Status of slum shown as ‘Census Slum’
even though, none of the plots of Respondent No.6 was declared as
slum. Out of 240 occupants, the so called common consent is
purported to have executed by only 6 occupants.”
12. Mr. Balsara has submitted that it is evidently clear that the
AGRC has gone on the footing that the slum plot is declared as slum
by Notification dated 31st October 1977 and 5th February 2015. He
has submitted that reference of ‘census slum’ in the AGRC order
dated 26th September 2024 relates to the Galaxy CHS.
13. Mr. Balsara has submitted that Respondent No.5 has proceeded
on the footing that there is a slum declaration in respect of the
captioned plots. He submitted that said slum declaration is not
relating to the plots of the Petitioners.
14. Mr. Balsara has submitted that at the time of arguments before
this Court Counsel for Respondent No.5 had submitted that the slum
declaration was not mandatory in view of Circular 302 dated 23 rd
May 2022. He has submitted that aforesaid submission is in fact not
accepted by the Law and Judiciary in case of Western Habitat
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wherein the Law and Judiciary has categorically stated that the
Housing Department shall first declare the said land as ‘Slum
Rehabilitation Area’ as per Section 3C of the Slum Act. It has further
been stated that Section 3C of the Slum Act provides that after
publication of Slum Rehabilitation Scheme, the CEO, SRA on being
satisfied about the circumstances in respect of any land, whether or
not previously declared as Slum Area, shall after giving the notice to
the land owners may declare the said land as Slum Rehabilitation
Area.
15. Mr. Balsara submitted that AGRC in the impugned order has
referred to the certified Annexure-II being issued for total 208
occupants, and out of 208 occupants, only 6 have been held to be
eligible for residential purpose, 129 are held to be non-eligible and
73 are kept in abeyance. He has submitted that based on these
findings, the proposal of Respondent No.5 could not have been
processed at all for the reason that the Circular No.153A dated 31 st
March 2016 in paragraph No.3 states that if more than 5% of the
total slum dwellers in Annexure-II of the Society is undecided, no
action should be taken on the said Annexure-II.
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16. Mr. Balsara has placed reliance upon the judgment of Division
Bench of this Court in Bishop John Rodriques vs. State of
Maharashtra and Ors.1 at paragraph No.99. The Division Bench has
commented on the SRA needing to be conscious of the ground
realities in regard to slum redevelopment namely that it is a
herculean task in a City like Mumbai to remove any encroachment on
private and public land. It has been further commented by the
Division Bench that “To say the least, we can certainly take a judicial
notice that this has been a sad reality, replete on this branch of slum
jurisprudence, as majority of the cases are asserted by the developers
with all resources and legal ammunition they could have.” He has
submitted that in order to comply for a declaration of Slum
Rehabilitation Scheme, the conditions mentioned in Circular No.153A
dated 31st March, 2016 referred to above have to be strictly complied
with.
17. Mr. Balsara has dealt with the arguments on behalf of the
Respondent No.5 that the present Writ Petition is supported by three
slum dwellers who have no locus as individuals when the Society has
supported the implementation of the Slum Rehabilitation Scheme. He
1. Writ Petition No.1212 of 2022 decided on 11th June 2024.
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has submitted that there is a list at Annexure – ‘A’ of the Writ Petition
which shows support of 43 slum dwellers to the Petitioners. He has
submitted that it is the further contention on behalf of Respondent
No.5 that major slum dwellers are not on the slum plots as set out in
Annexure-A to the Writ Petition. He has submitted that the fact that
notice under Sections 32 and 38 was issued by SRA, only goes to
show that the said notice could not have been issued if those persons
were not on the slum plots.
18. Mr. Balsara has submitted that the reliance placed by
Respondent No.5 on the judgment of this Court in Pant Nagar
Mahatma Phule Co-op. Hsg. Society Ltd. And Ors Vs. State of
Maharashtra and Others2 is misplaced. He has submitted that this
Court could not have considered the amendment to Section 3C(1) of
the Slum Act in the year 2018 and / or Circular No.196 (i.e. which
were subsequent to the said judgment). He has submitted that in the
present case LOI has been prepared on the basis of census slum and
slum declaration for the said land is mandatory. He has submitted
that in view thereof, the said judgment is not relevant.
2. (2016) SCC OnLine Bom.1784.
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19. Mr. Balsara has submitted that the slum dwellers vacated
merely because of the illegality in the proposal of SRA Scheme was
washed away. He has submitted that as per Circular 196 the
declaration under section 3C of the Slum Act is mandatory and the
said illegality could not be cured. He has relied upon Atesham
Lokdawala’s Judgment at paragraphs 10, 11 and 12. This is in
context of his submission that the Application for approval of Slum
Rehabilitation Scheme must fulfill the requirement of DCR 33(10)
and the Application, on the face of it must fulfill the requirement of
70% consent of the slum dwellers.
20. Mr. Balsara has submitted that the Respondent No.5 has relied
upon the judgment in Central Council for Research in Ayurvedic
Sciences and Anr. Vs. Bikartan Das and Others 3 which is
distinguishable on facts. He has submitted that in the present case the
entire Slum Rehabilitation Scheme is passed on the footing of various
illegalities and the said judgment cannot be applied in the present
case. He has also distinguished the judgment relied upon by the
Respondent No.5 viz. Balasaheb Arjun Torbole Vs. Administrator and
3. (2023) SCC OnLine SC 96.
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Divisional Commissioner4 on the ground that in the said judgment it
was held that minor infirmities in the Annexure-II cannot be
considered. The said principle in the said judgment cannot be applied
to the total illegalities in Annexure-II in the present case.
21. Mr. Balsara has accordingly submitted that the present Writ
Petition be allowed and the impugned order be set aside.
22. Mr. Anil Singh, learned Senior Counsel appearing for
Respondent No.6 – Yogiraj CHS and Respondent No.7 – Galaxy CHS
has submitted that the present Writ Petition is filed by three
encroachers, who have admitted in their Appeal filed before the
AGRC that they are slum dwellers having documentary evidence like
Ration Cards, Electricity Bills, Photo passes/ Slum cards issued by the
Collector.
23. Mr. Anil Singh has submitted that the present Writ Petition
which seeks setting aside of the impugned order passed by AGRC in
Appeal No.306 of 2023 as well as LOI dated 27 th June 2022 has been
filed at a belated stage when the Schemes have progressed far ahead.
In scheme-1 (Yogiraj CHS) – out of 280 hutments, 91 have been
4. (2015) 6 SCC 534.
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demolished and 119 hutment dwellers have executed PAAA and in
Scheme-2 (Galaxy CHS) – out of 117 hutments, 67 have been
demolished and 76 have executed PAAA. He has submitted that
substantial cost and expenses have been incurred in implementation
of the Scheme.
24. Mr. Anil Singh has submitted that Petitioners who are
encroachers on Government land have been allegedly occupying the
slum for nearly 40 years and claiming to have documentary evidence
like ration cards, electricity bills and photo passes/slum cards issued
by the Collector. The proposal under Section 33(10) of DCR 1991 had
been submitted by the developer of Yogiraj CHS on 14 th November
2013 and was accepted on 27st July 2014, where the status of slum
shown as ‘Census Slum’. The challenge before the AGRC and also in
the present Writ Petition is to the LOI dated 17 th June 2022, issued
qua amalgamation of the sanctioned scheme. He has submitted that it
is pertinent to note that the scheme itself has not been challenged.
25. Mr. Anil Singh has submitted that the Petitioners being
encroachers have absolutely no right in respect of the property in
question and the property belongs to the Government or Government
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Agencies who have no objection to the society or developer in
carrying out development. Both the Yogiraj CHS and Galaxy CHS
have consented to the development. The total number of hutment
dwellers in Yogiraj CHS are 208, only so far 90 have been held to be
eligible, 190 have executed PAAA and 91 structures have been
demolished. Similarly, in Galaxy CHS out of 117 hutment dwellers,
though 84 have been held to be eligible, 76 have executed PAAA and
33 hutments have been demolished.
26. Mr. Anil Singh has submitted that the Petitioners have not
participated and their eligibility is yet to be decided. He has
submitted that without being held eligible or without establishing any
right to the structures / property, the Petitioners, who are encroachers
have virtually held the entire Slum Rehabilitation Scheme to ransom.
He has submitted that it is pertinent to note that the Petitioners
entitlement at the most is only to the execution of a PAAA, transit
rent, once their eligibility is decided.
27. Mr. Anil Singh has submitted that the hurdles created by the
Petitioners in refusing to vacate their structures by raising issues are
against the interest of the majority of the slum dwellers / slum
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societies. He has submitted that opposing the Scheme by three slum
dwellers against the will of the majority / slum society is against the
very spirit and ethos of a slum scheme. Any delay in the scheme will
result in irreparable injury and hardship not only to the society and
and slum dwellers but also to the developers who have already
invested substantial time, energy and money in the development.
28. Mr. Anil Singh has placed reliance upon the judgment of the
Supreme Court in Balasaheb Arjun Torbole & Ors. (supra) and in
particular paragraph No.21 and 22 thereof where it is held that Slum
Rehabilitation could not be jettisoned only on technical grounds or
procedural infirmities unless the person coming to the Court seeking
relief through Writ Petition are able to show that they have suffered
injustice or legal injury.
29. Mr. Anil Singh has also placed reliance upon the judgment of
this Court in Pant Nagar Mahatma Phule Co-Op Housing Society Ltd.
(supra) in particular paragraph Nos. 74 and 75. The Petitioners in
that case had not established any right in themselves and inspite of
which had virtually held up the entire slum redevelopment scheme to
ransom.
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30. Mr. Anil Singh has submitted that out of total of 325 slum
dwellers from both the schemes i.e. (Yogiraj and Galaxy) only three
slum dwellers from Yogiraj have sought to challenge the scheme
which has been implemented by Respondent No.5. The Petitioners
have deliberately not participated in the process and because of
which they have been declared ineligible. He has submitted that the
process of redevelopment commenced in the year 2013 including
execution of the PAAA with various occupiers and thereafter
preparation of Annexure-II and demolition of structures. This is with
respect to Yogiraj. He has submitted that till Notice under Sections 33
and 38 dated 8th October 2020 was issued to the Petitioners, no
action/ objection whatsoever was taken by the Petitioners to
challenge the redevelopment. He has submitted that on the ground of
delay, the petition ought not to be entertained as the scheme has
progressed much ahead, substantial cost and expenses have been
incurred and irreparable loss and hardship would be caused
particularly to large number of slum dwellers who had vacated their
structures and their structures have been demolished.
31. Mr. Anil Singh has submitted that the present Petition has
raised the issue of Yogiraj not being a slum. He has submitted that
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this issue would not arise for consideration since the current
challenge is to the order of amalgamation and not to the property of
Yogiraj CHS being a census slum. He has submitted that without
prejudice to the fact there is no challenge to the property of Yogiraj
CHS being a census slum, it is trite that the decision of AGRC being a
quasi judicial authority will have to be tested on the anvil of
Wednesbury of reasonableness and its decision making process and
not the decision, which arises for consideration of the Writ Court. In
the instant case not only is the decision making process in accordance
with law but even the decision is in conformity with law and facts of
the instant case.
32. Mr. Anil Singh has referred to Regulation 33(10)II of the
DCPR, 2034 which defines slum as censused or declared and notified.
Further, censused slum has also been defined under Resolution
33(10)II(viii) to mean those slums located on lands belonging to the
Government, any undertaking of the Government or Brihanmumbai
Municipal Corporation and incorporated in the records of the land
owning authority as having been censused in 1976, 1980 or 1985 or
prior to 1st January 1995. He has submitted that slum shall also mean
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an area where the project under the Slum Rehabilitation Scheme has
been approved.
33. Mr. Anil Singh has submitted that in these circumstances even
if the property is not notified as slum under Section 4, but if it is
censused or if the area where a project under Slum Rehabilitation
Scheme has been approved, it would be a slum for the purpose of
DCR 33(10).
34. Mr. Anil Singh has submitted that in the present case the
Petitioners have occupied the said property which is a censused slum.
This has been admitted in paragraph No.1 of the Appeal of the
Petitioners before the AGRC. Apart from the property of the
Petitioners being censused, the project was approved under the Slum
Rehabilitation Scheme in 2014 and the same has not been
challenged.
35. Mr. Anil Singh has placed reliance upon the judgment of this
Court in Om-Sai Darshan Co-op Housing Society Vs. State of
Maharashtra5 at paragraph No.19 and 20 as well as the judgment of
this Court in Pant Nagar Mahatma Phule Co-Op. Hsg. Society Ltd.
5 2006 SCC OnLine Bom.480
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(supra) at paragraphs 65, 68 and 69. In the context of Regulation
33(10) it has been held by this Court that it is not necessary to have a
declaration of the particular parcel of land as a Slum Rehabilitation
Area in exercise of power under Section 3C(1) of the Slum Act for
sanction of the Scheme. In the decision of this Court in Pant Nagar
Mahatma Phule Co-op. Hsg. Society Ltd. (supra) the Division Bench
has placed reliance upon the prior judgment of this Court in Amba
Chawl Wadi Rahiwasi Seva Sangh Vs. Municipal Corporation of
Greate Mumbai6 wherein it has been held that the issuance of a
notification under Section 4 of the Slum Act is not a pre-requisite for
an area to be considered as Slum Rehabilitation Area.
36. Mr. Anil Singh has submitted that the Petitioners who are
taking advantage / protection on government land are relying upon
the census and hence for the scheme, they cannot dispute that the
property is not censused. The Petitioners cannot approbate and
reprobate the position of photo passes and censused slum. He has
submitted that the Petitioners cannot complain that there is no
finding on issue of census since the said fact is admitted and
indisputable and therefore the theory of ‘useless formality’ would
6. (2005) BCI 230.
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apply as admitted facts lead only to one conclusion. He has in this
context placed reliance upon the judgment of this Court in
Samantwadi Mahila Vikas Foundation Vs. Municipal Corporation of
Greater Mumbai, Appeal from Order No.851 of 2023 at paragraph
Nos.37 and 39.
37. Mr. Anil Singh has submitted that the principle of natural
justice cannot be over stretched to make a mockery of it, specifically
in the case where the Petitioners, are the encroachers suffering no
legal injury and have no right and locus.
38. Mr. Anil Singh has also placed reliance upon the judgment of
this Court in Atlantic Construction Co. Vs. State of Maharashtra and
Ors.7 wherein learned Single Judge of this Court had relied upon the
judgment of the Supreme Court in State of Uttar Pradesh Vs. Sudhir
Kumar Singh8 and has held that where facts can be stated to be
admitted or indisputable and only one conclusion is possible, the
Court does not pass futile orders of setting aside or remand when
there is, in fact, no prejudice caused.
7. Writ Petition (L) No.21694 of 2024 decided on 4th September 2024.
8 2020 SCC OnLine SC 847
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39. Mr. Anil Singh has submitted that it is well settled that remedy
under Article 226 of the Constitution is discretionary and in a given
case even if some action or order challenged in the petition is found
to be illegal and invalid, the High Courts, while exercising its
extraordinary jurisdiction, can refuse to accept it with a view to do
substantial justice between the parties.
40. Mr. Anil Singh has submitted that entire object of the Slum Act
is to make provision for improvement and clearance of slum area and
its redevelopment. The Slum Rehabilitation Scheme is implemented
to fulfill the object of the Slum Act. Slum dwellers in the scheme are
residing in very bad and unhygienic conditions.
41. Mr. Anil Singh has submitted that in the present case the owner
of the land has consented to the development and the process of
development has commenced from 2013 onward. During the process
large number of PAAA’s have been executed and several structures
have been demolished. He has relied upon photographs submitted
before this Court which shows the condition of the entire property.
He has submitted that the Petitioners who are encroachers have
inspite of these photographs which have been submitted before this
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Court, submitted to the contrary. It is their submission that they are
staying in habitable and hygienic condition and the property does not
require redevelopment. He has submitted that this is factually
incorrect and against the view of the majority of slum dwellers and
the owner i.e. the Government.
42. Mr. Anil Singh has submitted that the Courts have been
reluctant to maintain / entertain any objection by a small number of
slum dwellers in SRA Society and also by few members in a
redevelopment of a regular co-operative society. He has submitted
that every single days delay is causing much hardship to a large
number of Slum dwellers and the developers and accordingly there is
no question of remand or reconsideration as this will only lead to
delay and heavy escalation of the cost of the project and at the site
where a large number of structures have been demolished as the
same had become totally uninhabitable which is clear from the
photographs of the site submitted before this Court.
43. Mr. Anil Singh has submitted that the balance of convenience
in the present case is required to be seen by this Court and which is
in favour the owner of the property, majority of slum dwellers, the
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society, the developer and everybody interested in development on
the one hand and on the other hand three encroachers without
establishing any right over the property have held the scheme to
ransom. He has placed reliance upon the judgment of Supreme Court
in M. S. Sanjay Vs. Indian Bank & Ors.9 wherein it has been held that
it is settled principle of law that the remedy under Article 226 of
Constitution of India is discretionary in nature and in a given case,
even if some Action or order challenged in the petition is found to be
illegal and invalid, the High Court while exercising its extraordinary
jurisdiction thereunder can refuse to uphold with a view to doing
substantial justice between the parties.
44. Mr. Anil Singh has submitted that three slum dwellers who are
the Petitioners herein cannot compensate the Society and the
Developer for the huge loss that will be caused to the Society and the
Developer for each day’s delay as also the increasing suffering of the
family of other slum dwellers. This is in the context of Rule 148 of
the Bombay High Courts (Original Side) Rules which requires an
undertaking by the parties to pay damages by virtue of interim order.
9. 2025 SCC OnLine SC 368.
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45. Mr. Anil Singh has submitted that the Writ Petition filed by the
three encroachers who have admitted in their Appeal that their
structure is censused structure and now stalling the project against
the will of the majority slum dwellers and slum society is liable to be
dismissed.
46. Mr. Mayur Khandeparkar, learned counsel appearing for
Respondent No.5 has submitted that the Petitioners have no locus to
file the present Writ Petition. The Petitioners are merely occupiers/
encroachers and neither are the owners nor have any right in the said
land. Their names are reflected in Annexure-II, however, they have
voluntarily refused to participate and give their details for
preparation of Annexure-II. He has submitted that Yogiraj land is a
Government land and not privately owned. There are no permissions
granted for the structures or hutments situated on the said land. The
Petitioners, despite being beneficiaries of the said Scheme are
challenging the amalgamation of the said scheme, which is essentially
being implemented for rehabilitation of slum dwellers. He has
submitted that the Petitioners are essentially acting contrary to the
interest of eligible slum dwellers who are to be benefited from
implementation of the said scheme.
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47. Mr. Khandeparkar has referred to paragraph 63 of the
impugned order of AGRC. It is held that the Petitioners, being
members of the Society, do not have any individual rights to
challenge the LOI. Their rights as individual members is protected on
issues of rent payment, alternate accommodation, etc. The act of the
Petitioners seems only to delay the implementation of subject Slum
Rehabilitation Scheme which is affecting the rights of the majority of
slum dwellers who are awaiting for decent housing.
48. Mr. Khandeparkar has submitted that it is only after the
Petitioners were called upon to vacate the structures for the
implementation of the said scheme on the said land did the
Petitioners seek to challenge the said scheme with the sole intention
to resist vacation and hinder the said scheme. He has submitted that
this clearly evidences the dishonest conduct of the Petitioners to
hinder the said scheme.
49. Mr. Khandeparkar has referred to the settled law that a slum
scheme cannot be hindered on account of frivolous objections raised
by handful of slum dwellers. He has submitted that these purported
objections have sought to be raised by Petitioners only when the
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proceedings under Section 33 and 38 of the Slum Act were initiated
against them. He has placed reliance upon following judgments :
(i) Om-Sai Darshan Co-op. Housing Society Vs. State of
Maharashtra, (proposed) (supra) at paragraph No.25.
(ii) Anil Anant Mandavkar & Ors Vs. State of Maharashtra ,
[Writ Petition (L) No.13323 of 2024] at paragraph
Nos.13 to 15.
(iii) Satish Sanjeev Shetty Vs. State of Maharashtra , (2024)
SCC OnLine Bom.245 at paragraph Nos.15 and 18.
50. Mr. Khandeparkar has submitted that the Petitioners have not
been able to demonstrate any locus in challenging the entire Scheme
which has been sanctioned after following due process of law. He has
submitted that the aforementioned judgments have not been dealt
with by the Petitioners. He has accordingly submitted that the
present Writ Petition ought to be dismissed at the threshold.
51. Mr. Khandeparkar has submitted that Yogiraj Land is a
‘censused slum’ which is an admitted position. He has submitted that
this has been admitted by the Petitioners in paragraph No.1 of their
Appeal before AGRC. They have admitted that ‘Photo passes and
Slum Cards’ were issued to them. Further, it is admitted in paragraph
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Nos.7.16 of the said Appeal by the Petitioners that the status of slum
is shown as ‘censused slum’.
52. Mr. Khandeparkar has referred to the definition of ‘censused’ in
DCPR Regulation 33(10) of DCPR 2034. He has also referred to the
relevant provisions of the Slum Act viz. Section 3Y and 3Z which
concerns censused slum and protection, relocation and rehabilitation
of protected occupiers.
53. Mr. Khandeparkar has submitted that the Petitioners have
incorrectly contended that prior to sanction of Slum Rehabilitation
Scheme, it is a mandatory pre-requisite that the subject land be
declared under Section 4 or Section 3C of the Slum Act. He has
submitted that it is trite law that the slum scheme may be undertaken
even on a censused land without the same being declared as ‘Slum
Rehabilitation Area’ under Section 3C of the Slum Act. He has placed
reliance on the decision of this Court in Om-Sai Darshan Co-op.
Housing Society (proposed) (supra) at paragraph No.20. He has also
placed reliance on The Tehsildar-1, Special Cell & Ors. (SLP ©
No.1665 of 2023 at paragraph No.16). The Supreme Court has
observed that a censused slum is also a slum as per Regulation
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33(10) DCR and a separate notification under Section 4 of the Slum
Act is not required.
54. Mr. Khandeparkar has submitted that the present scheme has
progressed substantially and the same cannot be put to peril on mere
technicalities and inordinate delay in challenging the LOI. In this
context he has placed reliance upon the judgment of Supreme Court
in Balasaheb Arjun Torbole & Ors. (supra) at paragraph No.21.
55. Mr. Khandeparkar has submitted that the Petitioners have
failed to show how they are prejudiced by the said scheme much less
showing any legal injury suffered by the Petitioners. He has
submitted that the Petitioners have not challenged the acceptance of
the said scheme but the challenge is to the said LOI and which is a
belated challenge with inordinate delay.
56. Mr. Khandeparkar has submitted that no interference or
remand is warranted to the impugned order in view of the admitted
facts. He has placed reliance upon the judgment of Supreme Court in
State of Uttar Pradesh Vs. Sudhir Kumar Singh and Ors. 10 wherein
10. (2021) 19 SCC 706.
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Supreme Court has observed that in cases where only one conclusion
is possible basis admitted facts, remand should not be granted.
57. Mr. Khandeparkar has submitted that even in cases where an
isolated finding is erroneous, then that itself could not vitiate the
order or conclusion, particularly, given the lack of locus and facts and
circumstances in the present case. He has submitted that apart from
that the impugned order can be sustained for other findings
contained therein.
58. Mr. Khandeparkar has submitted that while exercising
jurisdiction under Article 226 of the Constitution of India, the High
Court cannot not exercise the powers of Appellate Tribunal. He has
placed reliance upon the judgment of the Supreme Court in Central
Council of Research in Aayurvedic Sciences (supra) at paragraph
Nos.51, 52, 65, 66 and 72. It has been held in the said judgment that
even if some action or order challenged in the Writ Petition is found
to be illegal and invalid, the High Court while exercising its
extraordinary jurisdiction can refuse to accept it with a view to doing
substantial justice between the parties.
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59. Mr. Khandeparkar has submitted that the Circular dated 27 th
January 2021 bearing No.196 has been superseded by Notification
dated 23rd May 2022 issued by the CEO, SRA. He has submitted that
in any event the issue as regards the Circular cannot be raised at this
stage as the same was not raised before the AGRC for consideration
and deliberation. He has referred to the said Circular. He has
submitted that the proposal for Slum Rehabilitation Scheme for
Yogiraj land was accepted on 23 rd July 2014 and therefore, the said
Circular relied upon by the Petitioners having been issued
subsequently is inapplicable. In any event in the Notification dated
23rd May 2022 issued by CEO, SRA it is provided that all such slum
occupied lands on 1st January 2011 or prior thereto excluding the
lands falling under Section 3Z-6 of the Slum Act shall deemed to be
‘Slum Rehabilitation Area’ under Section 3C of the Slum Act for the
purpose of implementation of the Slum Rehabilitation Schemes.
60. Mr. Khandeparkar has submitted that an administrative or
executive circular cannot be applied retrospectively unless explicitly
authorized by the legislature. Without such explicit authorization,
any attempt to apply any Circular retrospectively would be legally
unsustainable. He has in this context placed reliance upon the
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judgment of Supreme Court in Bharat Sanchar Nigam Ltd. & Ors. Vs.
Tata Communications Ltd. etc.11 at paragraphs No.29 and 30.
61. Mr. Khandeparkar has accordingly sought for dismissal of the
Writ Petition.
62. Mr. Vineet Naik, learned Senior Counsel appearing for
Respondent No.4-SRA has supported the submissions of Mr. Anil
Singh and Mr. Mayur Khandeparkar. He has placed reliance upon the
Notification dated 23rd May 2022 issued by CEO, SRA. He has
submitted that the said Notification provides for censused slum to
existing as on 1st January 2011 or prior thereto and which has been
declared as such shall deemed to be ‘Slum Rehabilitation Area” under
Section 3C of the Slum Act for the purpose of implementation of
Slum Rehabilitation Scheme
63. Mr. Naik has relied upon the judgment of Division Bench of this
Court in Nirbhay Co-op. Hsg. Society (SRA Prop) & Anr. Vs. SRA &
Ors.12 wherein the Division Bench of this Court has held that once the
Slum Rehabilitation Authority has recognized the Society for the
11. (2022) SCC OnLine SC 1280.
12. Writ Petition (L) No.1112 of 2004, decided on 17th June 2004.
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purpose of development of the scheme, in the absence of the
Petitioners therein having any right or recognition, it will not be
possible for the Court to entertain the petition at the instance of
another proposed society, unless the Society recognized is de-
recognized by the Slum Rehabilitation Authority (SRA). He has
submitted that in the present case Respondent Nos.6 and 7 have been
recognized as Societies by the SRA and hence no other Society can be
recognized.
64. Mr. Naik has also placed reliance upon the judgment of
Division Bench of this Court in Awdesh Vasistha Tiwari & Ors. Vs.
Chief Executive Officer, SRA and Ors. 13 at paragraph No.13. The
Division Bench of this Court has held that the right of a hutment
dweller who is in possession of a hutment on an area to which the
Scheme is made applicable is for a tenement admeasuring 225 sq. ft.
in exchange of the hut irrespective of the area of the hut. An
individual hutment dweller gets this limited right apart from right to
seek protection from eviction under section 3Z(1) of the Slum Act.
However, there is nothing in the Scheme of DCR 33(10) that an
13. 2006 (4) Mh.L.J., 282.
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individual slum dweller gets a right to decide which Society or which
developer should implement the scheme.
65. Mr. Naik has also placed reliance upon judgment in Sahu
Devilal Shankarlal Vs. The Administrator and Divisional
Commissioner and Ors.14 wherein this Court has held that once a
letter of intent is issued, it is for the developer to see how the said
construction is to be carried out. If each and every slum dweller who
is occuping the premises starts raising objections and starts
contending that his possession should not be disturbed, then it will
not be possible for the developer to continue with the construction.
66. Mr. Naik has accordingly submitted that the Writ Petition be
dismissed.
67. Having considered the submissions, the Petitioners are three
slum dwellers who claim to have documentary evidence like Ration
Cards, electricity bills, photo passes / slum cards issued by the
Collector. This has been expressly stated in their Appeal filed before
the AGRC where the impugned order was passed. It is thus an
14. Writ Petition No.8881 of 2010, decided on 14th January 2011.
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admitted position that the Petitioners are occupying properties which
have the status of ‘Census Slum’.
68. Regulation 33(10) of DCPR 2034 has defined a slum to mean
those censused or declared and notified. The Censused slum has been
defined in Resolution 33(10) II (viii) as slum located on lands
belonging to the Government, any undertaking of the Government,
Brihanmumbai Municipal Corporation and incorporated in the
records of the land owning authority as having been censused in
1976, 1980, 1985 or prior to 1st January 1985. Thus slum means
where the project under the Slum Rehabilitation Scheme has been
approved.
69. The subject property of Yogiraj CHS, on which the Petitioners
are occupants is a censused slum and has been approved under the
Slum Rehabilitation Scheme in 2014. The Petitioners have not
challenged the said scheme but have challenged the amalgamation of
two schemes i.e. Yogiraj and Galaxy. This is by way of LOI dated 7 th
July 2022 which has sanctioned the amalgamation of the two
schemes which are the Yogiraj and Galaxy Schemes. Thus, it is not
open for the Petitioners to disturb a Slum Rehabilitation Scheme
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which had been accepted in the year 2014 and / or raise any
contention with regard to Annexure II which had been certified on
24th September 2015.
70. The impugned order at paragraph No.63 of the AGRC has held
that the Applicants / Petitioners herein being members of the Society
do not have any individual rights to challenge the LOI. Their rights as
individual members is protected on issues of rent payment, alternate
accommodation, etc. The act of the Applicants seem only to delay
implementation of the subject Slum Rehabilitation Scheme which is
affecting the rights of the majority of slum dwellers who are waiting
for decent housing. This finding of the AGRC is in conformity with
the settled law that a Slum Scheme cannot be hindered on account of
frivolous objections raised by handful of slum dwellers. This has been
held in Om Sai Darshan Co-Op. Hsg. Society (proposed) (supra) at
paragraph No.25; Anil Anant Mandavkar & Ors., (supra) at
paragraph Nos.13 to 15, Awdesh Vasistha Tiwari (supra) at paragraph
No. 13 and Satish Sanjeev Shetty (supra) at paragraph Nos. 15 to 18.
71. It has been held in Anil Anant Mandavkar & Ors. (supra) that
the rights of slum dwellers is for a tenement admeasuring 225 sq. in
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exchange of their tenement/ hut irrespective of the area of the hut.
This is limited right available to the slum dwellers. This has also been
held in Awdesh Vasistha Tiwari (supra).
72. In the present case the Petitioners as slum dwellers have raised
an objection to the scheme only when the Notice under Section 33
and 38 of the Slum Act was issued to them. The Petitioners were by
the said Notice called upon to vacate their structures for
implementation of the scheme on the said land. The belated
challenge to the said scheme is with a sole intention to resist vacation
and to hinder the scheme.
73. I am thus of the considered view that the Petitioners have
failed to demonstrate any locus to challenge the Slum Rehabilitation
Scheme which has been sanctioned. Thus, it is not open for the
Petitioners to raise any contentions on the merits of the said Scheme.
74. In the present case the said Scheme has progressed
substantially and the Respondent No.5-Developer has demolished
158 hutments of the slum dwellers and these slum dwellers are
presently staying on transit rent. In respect of Yogiraj CHS, the total
number of hutment dwellers is 208, though so far 90 have been held
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to be eligible, 119 have executed the PAAA and 91 structures have
been demolished. None of the slum dwellers other than the three
Petitioners have raised any grievance with regard to the said scheme
or the appointment of Respondent No.5 as developer. It has been held
in Balasaheb Arjun Torbole (supra) that the entire scheme cannot be
put to peril on account of certain technical infirmaries or objections
to the scheme being implemented. The Petitioners have not been able
to show any legal injury suffered by them and / or prejudice caused
to them by the implementation of the said Scheme. The majority
slum dwellers are awaiting rehabilitation and would suffer grave
prejudice and / or hardship on account of the stalling of the Slum
Rehabilitation Scheme by the Petitioners filing frivolous litigation.
75. I find much merit in the submission on behalf of the
Respondent No.5 that though there is an isolated incorrect finding in
the impugned order that the said plot of land in paragraph No.1 of
the petition had been declared as ‘Slum’ vide notification dated 31 st
October 1977 and/or in the corrigendum, no interference is
warranted in view of admitted facts. This is in view of the fact that
the Yogiraj land having been admitted by the Petitioners before the
AGRC to be a ‘Census land / Slum’, they cannot now dispute the
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same. It has been held by the Supreme Court in State of Uttar
Pradesh Vs. Sudhir Kumar Singh (supra) that in cases where only one
conclusion is possible, basis admitted facts, remand should not be
granted as the Court does not pass futile orders where no prejudice is
caused. In the present case even though there is an isolated finding
which is erroneous, that by itself will not vitiate the order or the
conclusion, particularly given the lack of locus of the Petitioners and
the facts and circumstances of the present case. The impugned order
can be sustained on other findings contained therein.
76. In Central Council for Research in Ayurvedic Sciences & Anr.
(supra) the Supreme Court held that even if some action or order
challenged in the Writ Petition is found to be illegal and invalid, the
High Court while exercising its extraordinary jurisdiction can refuse
to accept it with a view to doing substantial justice between the
parties.
77. I further find much merit in the submissions made on behalf of
the Respondent Nos.6 and 7 that where a fact has already admitted
by the Petitioners namely that the said land of Yogiraj CHS is a
‘censused slum’, the Petitioners cannot complain that there is no
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finding on the issue of census.. The theory of ‘useless formalities’
would apply as admitted facts lead to only one conclusion. The
judgment of this Court in Samantwadi Mahila Vikas Foundation
(supra) is apposite. This has also been held by the learned Single
Judge of this Court in Atlantic Construction Company (supra) by
placing reliance upon the judgment of Supreme Court in Uttar
Pradesh Vs. Sudhir Kumar Singh & Ors. (supra). Thus, no purpose
would be served if the matter is remanded back to the AGRC.
78. The Petitioners having not raised the issue of the Circular
dated 27th January 2021 being applicable, before the AGRC, they are
not permitted to raise the same before this Court. In any event the
Circular dated 27th January 2021 bearing No.196 relied upon by the
Petitioners for contending that the declaration of land as Slum
Rehabilitation Area on which Slum Rehabilitation Scheme is
proposed / submitted is mandatory, is inapplicable in view of the
proposal for Slum Rehabilitation Scheme for the Yogiraj land having
been accepted on 23rd July 2014 i.e. prior to issuance of the said
Circular. Further, an administrative or executive circular cannot be
applied retrospectively unless explicitly authorized by legislation. The
judgment of the Supreme Court in Bharat Sanchar Nigam Ltd. & Ors.
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(supra) is apposite. Further, the said Circular has been superseded by
the Notification dated 23rd May 2022 issued by CEO, SRA wherein it
is declared that public as well as private lands on which the slum was
existing on 1st January 2011 or prior thereto and which has been
declared as slum under Section 4 of the Slum Act or censused slum
shall be deemed to be ‘Slum Rehabilitation Area’ under Section 3C of
the Slum Act for the purpose of implementation of the Slum
Rehabilitation Scheme. Thus, said Circular dated 27 th January 2021
cannot in any event be made applicable to the present Slum
Rehabilitation Scheme.
79. In that view of the matter, I find no merit in the present Writ
Petition filed by three slum dwellers who allege to have support from
41 occupants who have not joined as Petitioners but merely put their
signatures to a resolution for non-implementation of the SRA
Scheme. The Petitioners in this manner cannot stall the said scheme
against the will of majority of slum dwellers and slum societies. This
is particularly when there is no dispute that the said property is a
‘censused slum’ and thus a ‘Slum Rehabilitation Area’ for the purpose
of implementation of the Slum Rehabilitation Scheme and that the
said Scheme has sufficiently progressed for the last 11 years since its
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sanction. Grave prejudice would be cause to Yogiraj CHS and the
Developer for each days delay and will also increase the suffering of
the family of other slum dwellers. Further, the Petitioners have no
locus in challenging the said Scheme which has been sanctioned after
following due process of law.
80. The Writ Petition accordingly lacks merit and is dismissed.
There shall be no order as to costs.
[ R. I. CHAGLA, J. ]
81. The learned Counsel appearing for the Petitioners has applied
for stay of this Judgment / Order.
82. Considering the above finding as to the Petitioners having no
locus to challenge the said scheme, the Application for stay is
rejected.
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