Back
2008 Supreme(Bom) 841
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
S.B. MHASE & A.A. KUMBHAKONI, JJ.
Sanjali Sanjay Kadu & Ors. - Petitioners
Versus
State of Maharashtra - Respondents
WRIT PETITION NO. 612 OF 2008
Decided on : 20TH JUNE, 2008
Mr. Susheel Mahadeshwar i/b. Ms. Rajan Todankar for the Petitioners.
Mr. Akshay Patil with Mr. Shyam Mehta i/b. Mr. Satendrakumar for the Respondent No. 3.
Ms. S. M. Modle for the Respondents – MCGM.
Mr. P. M. Palshikar, AGP , for the Respondents – State.
Headnote:Bombay Municipal Corporation Act, 1888 - Sections 346 and 105-B-Development Control Regulation for Greater Bombay, 1991, Regulation 33 (7)-Maharashtra Housing and Area Development Act, 1976, Section 80-Dilapidated building-Applicability of Development Control Rules-The privately owned buildings are only such buildings which cannot be repaired within the monetary limits specified under Section 88(2) of MHADA Act etc. will not apply to the second set of building i.e. buildings of Corporation and Department of Police, Police Housing Corporation, etc. It was held that for applicability of the said DCR 33 (7) in issue, to the buildings constructed prior to 1940 of Corporation, Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, the ratio of the Division Bench judgment delivered in the case of Joseph Bain D’souza (supra) does not at all apply. In other words, it is not at all necessary, for invoking the said DCR for reconstruction or redevelopment of pre 1940 constructed buildings of Corporation, Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, that such building(s) should be dilapidated or structurally unsafe/unsound, as contended and/or prayed by the petitioners.
Development Control Regulations for Greater Bombay, 1991 - Regulation 33(7)-Maharashtra Housing and Area Development Act, 1976, Section 88-Bombay Municipal Corporation Act, 1888, Sections 346 and 105-B-Re-development of property- Grant of.-It is an admitted fact that both the buildings in issue are more than 120 years old and one of them having been found by IIT Bombay on its survey to be in extremely dangerous condition requiring its demolition (at least in part) and reconstruction, the Court does not find any substance in the contention of the petitioners that the buildings in issue should not be allowed to be re-developed. This is particularly because admittedly all the occupants/tenants of the buildings in issue have already formed 3rd respondent Co-operative Society which had engaged the Developer, who has agreed to re-develop the entire building. It has also come on record that on re-development of the property as contemplated by the relevant provisions of the DCR, No Objection Certificates/Approvals/Permissions granted by various Authorities, each and every occupants/tenants of the said chawl will be provided with an accommodation in the new structure/building to be constructed at the same site on its re-development. It has also come on record that each one of them will be provided by the Developer with either a transitory accommodation or Rs. 5,000/- per month towards rent in lieu of transitory accommodation immediately on vacating the premises in their occupation from the said chawls. This transitory accommodation is to be continued with these tenants/occupants till the time they are put in possession of the newly constructed accommodation.
The re-development scheme is very much in the interest of these occupants/tenants and there is no reason at all as to why only handful of them should venture to oppose such re-development and/or are not cooperating with it when the same is even in their own interest. No purpose is going to be served by stopping the re-development resulting into everybody continuing to adversely suffer by languishing in the present buildings which are more than 120 years old. Even otherwise it is in the larger public interest that such re-development must be encouraged failing which one day or the other these more than 120 years old structures are bound to collapse causing immense loss and irreparable hardship to all the occupants/tenants, which may also result into sometime unfortunate loss of lives, loss of property for sure.
Per: A. A. Kumbhakoni, J.
1. Rule. Rule made returnable forthwith.
2. In view of the fact that the question involved in the present petition needs to be answered urgently, as the same pertains to redevelopment of old buildings belonging to the Respondents, Municipal Corporation of Greater Mumbai (hereinafter referred to as “the said Corporation”), which is sought to be undertaken by applying the provisions of Regulation 33(7) of the Development Control Regulation (hereinafter referred to as the “DCR” for the sake of brevity) applicable to the area of the said Corporation, by consent of parties, we have heard all the parties at length for final disposal at the admission stage itself.
3. In Island City of Bombay 133 constructions were put up very many years ago by Bombay Improvement Trust to provide housing to the thousands of workers and their families migrating to the City of Bombay at that time, as a consequence of rapid industrialisation. These structures are known as “BIT Chawls”. These BIT Chawls are owned by the said Corporation and are occupied by various persons (of course, along with their families) who are tenants of the said Corporation. The present petition pertains to Chawl Nos. 5 and 7 out of these BIT Chawls, which are located at Agripada, Bombay ( hereinafter referred to as the 'said Chawls' for the sake of brevity).
4. Admittedly the construction of buildings of said chawls is about 120 years old and houses 144 tenants. Only 13 out of these 144 tenants have filed this petition. The petition appears to have been signed only by 11, the same having been not signed by the 4th and 13th Petitioner, which, of course, will not make any difference for deciding the issues raised by the petitioners.
5. In view of acute shortage of residential accommodation in the Island City of Bombay, to encourage redevelopment of old structures, to add to the existing housing stock and with such similar objects, DCR No. 33(7) along with Appendix III ( hereinafter referred to as the said DCR for the sake of brevity) have been brought into force. The relevant portion of the said DCR 33(7) reads thus:-
“33(7). Reconstruction or redevelopment of cessed buildings in the Island City by Cooperative Housing Societies or of old buildings belonging to the Corporation or of old buildings belonging to the Police Department. For Reconstruction / redevelopment to be undertaken by Co-operative Housing Societies of existing tenants or by Co-op. Housing Societies of landlords and/or occupiers of a cessed buildings of “A' category in Island City, which attracts the provisions of MHAD Act, 1976 and for reconstruction / redevelopment of the buildings of Corporation and Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, constructed prior to 1940, the Floor Space Index shall be 2.5 on the gross plot area or the FSI required for rehabilitation of existing tenants, plus incentive FSI as specified in Appendix-III whichever is more.
[Note: The development of land for Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra shall be permitted by the Commissioner after due approval of the committee mentioned in Note-3 below regulation 33(3)(A)}. Provided, however, that with previous approval of the Government, MHADA / Corporation shall be eligible to get additional incentive FSI over otherwise permissible FSI as specified in Annexure III of these Regulations. Provided further that in cases of composite redevelopment scheme for plot having “A” category as also “B' category cessed building, the above FSI shall be available. Provided further that in cases of reconstruction / redevelopment of buildings which have been declared as unsafe by the BHAD Board prior to monsoon of 1997, the above FSI will be available irrespective of category of cessed building. Provided further that reconstruction / redevelopment undertaken by proposed Cooperative Housing Societies of Landlords
