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IN THE HIGH COURT OF BOMBAY
(O.S)
Before :
Gokhale H.L. & Dongaonkar S.R., JJ.
New Woodlands Co-operative Housing Society Ltd. & anr . ... Petitioners.
Versus
State of Maharashtra & ors . ... Respondents.
Writ Petition No. 181 7 of 2003,
decided on 28-4/28-6-2006.
Advocates appeared:
Shyam Divan, Sr. A., i/b. Khaitan & Jaykar, for petitioners.
R.M. Kadam, A.G. & with G.W. Mattos, A.G.P., for respondents No. 1, 2 & 6.
Ms. Arona Savla, for respondent No.3.
Ms. Soumya Srikrishna, for respondent No.4.
Jai Chinai, Sr. A., with Sanjay Jain i/b., M.P. Savla & Co., for respondent No.7.
Janak Dwarkadas, Sr. A., with Ms. Neepa Gupte, for interveners.
Maharashtra Housing and Area Development Act, 1976 - Sections 2(25) and 103-B - Development Control Regulations for Greater Bombay, 1991, Regulation 33(7) - Cess Building - Reconstruction and re-development of - NOC granted by MHADA to respondent No. 7 for - Challenged by way of writ petition - Contention that respondent No. 7 created fictitious tenancies to claim higher FSI - Court - Commissioner holding tenancies not genuine - Respondent contended that 31 occupants/tenants not made party - Contention tenable - Commissioner’s report cannot be accepted. - There is no difficulty in saying that the factors relied upon by Mr. Divan are quite significant and raise strong suspicion. At the same time, the explanation of the respondents is also a plausible one and it cannot be rejected when Court have a wide definition of occupier. Their defence that they were occupying separate tenements as on 13th June, 1996 cannot be said to be untenable. The petitioners have relied upon the material that they could lay hands on and some of which could be said to be contemporaneous. It is, however, not possible even on probabilities to draw the inference that on 13th June, 1996 there were only 6 or 7 occupants. Courts cannot, therefore, accept the report of the Commissioner that the 31 occupiers were not genuine tenants or occupiers. The petition must therefore fail to that extent.
Maharashtra Housing and Area Development Act, 1976 - Sections 2(25) and 103-B - Development Control Regulations for Greater Bombay, 1991, Regulation 33(7) - Cess building - Reconstruction and re-development of - NOC granted by MHADA to respondent No. 7 for - Challenged - No consent of 70% occupants obtained by respondent No. 7 - NOC vitiated - 31 tenants not joined as respondents - Court cannot non-suit them - Violation of provisions not permissible - Respondent No. 7 directed to comply things mentioned in para 53 before construction proceeds. - Since respondent No. 7 has not done this so far, the NOC would get vitiated. However, just as we cannot non-suit the 32 tenants when they are not joined as respondents, Court cannot permit the violation of the provisions that are in their favour (and which are condition precedent) in their absence. However, the respondent No. 7 can be permitted to correct himself which he should do hereafter by calling a meeting of all these 31 occupants. That meeting will have to be attended by Senior Officer of the Mumbai Building Repairs and Reconstruction Board. This is because under clause 11 of Appendix III, the FSI under DCR 33(7) is to be allotted by the Municipal Commissioner only after the Board is satisfied that the redevelopment proposal fulfils all the conditions to be eligible for the benefits under these regulations. What has happened is that respondent No. 7 has started the construction without furnishing this information to the occupants and without Board being satisfied that the redevelopment proposal fulfils all the conditions. It is rather strange that in spite of the aforesaid affidavit made before the Apex Court and in spite of the MHADA’s circular dated 13th May, 2003 and in spite of the clear provisions in Appendix III, the Board has not cared to take necessary steps and has permitted the reconstruction by issuing the NOC and the BMC has cleared the plans for a high rise building.
When the matter was pending before the Commissioner, the construction of the building was not started and the earlier building was razed to the ground. Even after the receipt of the Commissioner’s report, the earlier Division Benches did not restrain respondent No. 7 from proceeding with the reconstruction though the petition does contain a prayer for such injunction. By now, we are told that the building has been constructed upto 16th floor. Since some of the conditions precedent to NOC are not taken care of the NOC could be cancelled. However, in the facts of the present case, we may no t cancel the NOC, but direct compliance therewith before the construction proceeds further. This is in the interest of the 31 occupants for whose benefit the respondent No. 7 is reconstructing the building.
CONSTITUTION OF INDIA, 1950 - Article 226 Maintainability of writ Disputed question of facts Bogus tenancy Writ jurisdiction not proper forum Natural justice available in cross hearing at trial Court Facts are considered at trial Court only. It has been held by the Apex Court in State of Bihar v. Jain Plastics, (2002) 1 SCC 216 that seriously disputed question of facts or rival claims cannot be entertained in a writ petition. Even in Breach Candy Residents Association v. Municipal Corporation, Writ Petition No. 1585 of 1977, decided on 27th January, 2000, wherein a similar question of allegedly bogus tenancies came up before this Court, a Division Bench has observed in paras 45 and 46 on the question of bogus tenancies that "since this is also a disputed question of facts, on the basis of documents and affidavits it is not possible for the Court to come to any final conclusion on this aspect" though later on the Court did observe that prima facie it appeared that additional tenancies were created. It is another matter that the petition was not entertained due to delay in filing the same. There are large number of disputed facts involved in the present matter. The parties have their own say with respect to them. Thus, the interveners rely upon their rent receipts, whereas Mr. Diwan has his comments on their format and serial numbers and chronology as against those of the earlier tenants. In a situation like this, the explanation of the landlord and the occupants cannot be brushed aside except after a due procedure of law which will include the right of participation and cross-examination to say the least. It is settled legal position since the decision of State of Orissa v. Binapani Dei, AIR 1967 SC 1269, that the decisions which involve civil consequences have to be made consistent with natural justice. Else the ultimate decision will be null and void as held in Swadesi Cotton Mills v. Union of India, (1981) 1 SCC 664.
2. This writ petition under Article 226 of the Constitution of India seeks to challenge the No Objection Certificate dated 19th October 2001 issued by respondent No.2 Maharashtra Housing and Area Development Authority (MHADA) (constituted under the Maharashtra Housing and Area Development Act, 1976) in favour of respondent No.7. This N.O.C. permits respondent No.7 to demolish his old four story building "Govind Niwas" situated behind the building of the 1st petitioner Society and to construct over there a 18 storey tower for the claimed reason of housing the erstwhile 31 occupants of this building. This permission to demolish and to construct the new building with a Floor Space Index (FSI) of 2.5 is given under the Development Control Regulation (DCR) 33(7) framed under the Maharashtra Regional and Town Planning Act (MRTP Act). This high FSI is permitted with a view to accommodate the old tenants/occupiers and under Clause 13 of Appendix III to DCR 33(7) no new tenancy created after 13th June 1996 is to be considered for these FSI calculations. It is the case of the petitioners that there were only 7 or 8 tenants in this Govind Niwas prior to 13th June 1996. All of them have accommodated themselves elsewhere long back without any claim on the building and that respondent No.7 has created 31 fictitious tenancies thereafter to claim this higher FSI. It is the Case of the petitioners that therefore the NOC under DCR 33(7) is without any basis and is completely vitiated. The petitioners therefore pray that apart from quashing and setting aside the NOC, respondent No.7 should be restrained from carrying on any development or construction on the said property. The petitioners also pray that the IOD (Intimation of Disapproval, which contains the conditions of construction, and any construction contrary to which is disapproved) granted by respondent No.3 Municipal Corporation should also be consequently set aside.
3. (i) OCR 33(7) provides that this facility of reconstruction with higher FSI is available for the cooperative housing societies of existing tenants or of the landlord and/or occupiers of a old ceased building of "A" category in the island city of Mumbai. The building has to be one which has been constructed prior to 1940. Clause 1 of Appendix III of this OCR 33(7) provides that before any such construction is permitted, 70% of the occupiers of the old building must give an irrevocable written consent for that purpose. They have to be all reaccommodated in the new building. The minimum space to be provided for each of the old tenants in the new building will be 20.90 sq.ms. (225 sq.ft.) or maximum of70 sq.ms. (753 sq.ft.). The non-residential occupiers (i.e. commercial) are to be given an area equivalent to the earlier area. It is however material to note that under clause 3 of Appendix III, the list of occupants and the area occupied by each one of them in the old ceased building is to be certified by the Mumbai Repair and Reconstruction Board (a unit of MHADA), and the irrevocable written consent of such occupants is also to be certified by the Repair Board. Clause 4 provides that the tenements in the reconstructed building are to be allotted to the occupiers as per the said list.
(ii) This Clause 4 further provides that thereafter if any surplus built-up area is available, then a prescribed percentage thereof as arrived at under Schedule III of MHAO Act is to be made available to the Mumbai Repair and Reconstruction Board for accommodating the occupants of other cessed building which cannot be reconstructed. The table in the Third Schedule is to be read with Clause 3 of section 103-1 of the MHAOA Act which provides as to how the surplus area is to be calculated. Mumbai Repair and Reconstructio
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