2010 Supreme(SC) 506

Supreme Court of India
THE HONOURABLE MR. JUSTICE R.V. RAVEENDRAN & THE HONOURABLE MR. JUSTICE P. SATHASIVAM
Avinash Gaikwad & Others
Versus
State of Maharashtra & Others
CIVIL APPEAL NO.4890 OF 2010 (Arising out of SLP [C] No.5007/2006)
Decided on : 05-07-2010

Headnote:(a) Constitution of India – Article 226 – Agreement between MHADA and developer not requiring construction of a balcony – Appellants not even alleging that balcony was required to be constructed – Raising contention during arguments before the High Court that they were entitled to a balcony in the tenement whose measurement should be of 10% of the area of the tenement – Not permissible. (Para 12)

       (b) Development Control Regulations for Greater Mumbai, 1991 – Regulation 35 (2)(k) r/w Regulation 38(22) – Not casting a liability upon the developer to construct a balcony (whose extent is 10% of the area of the tenement) when constructing and delivering tenements to the previous occupants of the demolished building. (Para 13)

       (c) Development Control Regulations for Greater Mumbai, 1991 – Regulation 33(9) – Benefit of Regulation 33(9) only for utilizing the higher FSI floor – Development by the developer will be governed by DC Regulation 33(7) r/w Appendix III – Regulation 33(9) does not require tenement measurement of 225 sq.ft. plus a balcony of a minimum measurement of 10% thereof. (Para 13)

       Facts of the case:

       A property known as Pimpalwadi at CS No.370 Tatya Gharpure Marg, Girgaon Division, Mumbai, originally belonged to Sir Harkishandas Trust. The said property consisting of several Chawls, Godowns and Sheds was acquired by the State of Maharashtra and possession of the said property was delivered to the Maharashtra Housing & Area Development Authority for redevelopment under Urban Renewal Scheme. However, due to certain protracted litigation between the owners of the property and Pimpalwadi Bhadekaru Sangh formed by the occupants of the said property, MHADA could not take up the reconstruction. At that stage, the said Pimpalwadi Bhadekaru Sangh, gave a proposal to MHADA to permit development of the property through M/s. Shreepati Towers – a private developer. The said property had 312 residential tenements and 23 non-residential tenements. MHADA considered the proposal and granted a no objection certificate dated 27.2.2001 for redevelopment of the said property in favour of the developer, under Regulation No. 33(7) of Development Control Regulations for Greater Mumbai, 1991.

       The said NOC was challenged by some occupants/tenants by filing WP No.1299/2001 in the Bombay High Court which was allowed and the NOC dated 27.2.2001 granted by MHADA to the developer was set aside with a direction to MHADA to itself develop the property.

       The said decision was challenged by MHADA before Supreme Court. The State Government and MHADA held deliberations and MHADA prepared a scheme in consonance with the guidelines issued under the Urban Renewal Scheme by the Government read with DC Regulation 33(9).

       Supreme Court accepted the said Scheme and disposed of the matter in terms of it.

       In pursuance of the order of this Court, the State Government issued guidelines. The Mumbai Building Repair & Reconstruction Board issued an NOC to the Developer for redevelopment of the said property jointly by MHADA and the developer in pursuance of DC Regulation 33(9) read with Regulation 33(7). Thereafter, MHADA entered into an agreement with the developers (respondents 5 to 12) in regard to the development of the said property. In pursuance of it, the developer, after securing possession, has re-developed the property.

       During the course of the execution of the development project, five tenants filed Writ Petitions challenging the subsequent NOC issued by third respondent. The Bombay High Court by its judgment dated 16.2.2004 dismissed the said petitions

       Thereafter, the present appellants along with two others (all previous occupants of the property) filed Writ Petition pressing two contentions. The first contention was that the area of each tenement to be constructed and delivered to the previous occupants should have, in addition to a carpet area of 225 sq. ft. in respect of the tenement, a balcony measuring 10% of the tenement area. The second contention was that the height of the tenements (height between roof and floor) should not be less than 2.9 M, instead of 2.7 M adopted by the developer. The High Court by its order dated 5.5.2005 disposed of the said writ petition. It held that the first contention could not be accepted as the Scheme was under DC Regulations and it did not require construction of a balcony in addition to the tenement measuring 225 sq. ft. In regard to the second contention, the High Court recorded the submission of the developer that the height of the units will be increased to 2.9 M in the buildings which were yet to be constructed.

       Finding of the Court:

       There is no merit in the appeal.

       Result:

       Appeal dismissed.