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2012 Supreme(Bom) 1056
High Court of Judicature at Bombay
D.Y. CHANDRACHUD & R.D. DHANUKA, JJ.
M/s. Bevenu Infra Projects pvt. Ltd. & Others
Versus
The High Power Committee & Others
WRIT PETITION NO.1976 OF 2010 WITH WRIT PETITION NO.2073 OF 2010 WITH WRIT PETITION NO.2074 OF 2010
Decided on : 14-06-2012
For the Petitioners:Aspi Chinoy, Senior Advocate with Pravin K. Samdani, Senior Advocate, Shrikant Shah & Ms. Sheetal Dasgupta i/b Mehta & Girdharlal, S.G. Surana, Advocates.
For the Respondents:R1, R2 & R4, D.A. Nalavade, J.G. Aradwad, R3, V.M. Parshurami, R5, Ivor Peter D'Cruz, R6, Yatin N. Shah, Advocates.
Headnote:Development Control Regulation for Greater Mumbai, 1991 - Regulation 33(7) - Appendix (iii) - Scheme for redevelopment of property.
These must exist an element of certainty in process of redevelopment of property. - The whole object of a scheme for redevelopment is that there must exist an element of certainty in the process of redevelopment. Occupiers who grant their consents to a proposed scheme must be held down to the consents already granted unless the grant of the consent is demonstrated to be vitiated by fraud, misrepresentation or other valid consideration.
Unless the sanctity of irrevocable consents voluntarily granted is maintained, a situation of chaos is liable to result. Rival developers may step into the fray and occupants are liable to become objects of bidding between unscrupulous rival interests. No scheme for redevelopment could possibly proceed if occupants are permitted to withdraw from the consents once granted.
In the present case, the owners of the property having expressed an intent to redevelop the property under Development Control Regulation 33(7) and having received the consents of the requisite number of occupants, there is no reason or justification as to why the proposal should not be allowed to proceed.
DEVELOPMENT CONTROL REGULATION FOR GREATER MUMBAI, 1991 - Regulation 33(7), Appendix III - Scheme for redevelopment. In a scheme for redevelopment, an element of certainty in process of redevelopment must exist.
The provisions of DCR 33(7) read together with Appendix III constitute subordinate legislation and the use of the expression ’irrevocable consents’ is not without significance. The whole object of a scheme for redevelopment is that there must exist an element of certainty in the process of redevelopment.
Occupiers who grant their consents to a proposed scheme must be held down to the consents already granted unless the grant of the consent is demonstrated to be vitiated by fraud, misrepresentation or other valid consideration unless the sanctity of irrevocable consents voluntarily granted is maintained, a situation of chaos is liable to result.
The High Power Committee entered into a finding of fact that the petitioners had irrevocable consents of nearly 98% of the occupants. In these circumstances, the Committee concluded by holding that the decision of the Chief Officer of the Repair Board in not granting an NOC to the petitioners to redevelop the property is not correct or in accordance with the provisions of law. Having held this, the High Power Committee inexplicably remanded the proceedings back to the Chief Officer of the Repair Board to consider the irrevocable consents which were earlier submitted by the occupants and to determine whether they have been legally withdrawn by the occupants. This direction issued by the High Power. Committee is clearly contrary to the reasoning and the findings of fact which have been arrived at by the Committee in the earlier part of its decision and set aside.
(Dr. D.Y. Chandrachud, J.) :
Rule, made returnable forthwith. Counsel appearing on behalf of the Respondents waive service. With the consent of counsel and at their request the Petitions are taken up for hearing and final disposal.
2. The subject matter of the present proceedings is a proposed redevelopment under Development Control Regulation 33(7) of a plot of land admeasuring 3297.68 sq. mtrs. being final plot No.1063, TPS IV of Mahim Division. The land houses 3 chawls consisting of a ground floor and one upper storey all of which admittedly are in a dilapidated condition. The Petitioners are the owners of the property under and in pursuance of a deed of conveyance dated 26 March 2010.
3. The Sixth Respondent is an association formed by the tenants and occupants. Respondent No.s 7 to 21 are occupants who have sought to form a rival association having once issued irrevocable consents for the redevelopment of the property by the First Petitioner.
4. On 30 September 2005 the managing committee of the Sixth Respondent agreed to the appointment of the First Petitioner for the redevelopment of the property. On 27 December 2005 all the occupants of the property furnished irrevocable consents to the First Petitioner to carry out the work of redevelopment. Accordingly a letter was executed by 230 occupants agreeing to the proposal for redevelopment by the First Petitioner. A memorandum of understanding was entered into on 11 July 2006 between the First Petitioner and the Sixth Respondent for redevelopment of the property. Following this, between August and November 2006, 227 individual tripartite agreements were entered into by the occupants with the First Petitioner. Under each of those agreements every occupant furnished an unconditional irrevocable consent to the Petitioner to develop the property.
5. On 20 April 2007 the First Petitioner submitted a proposal to the Executive Engineer of the Repair Board, the Third Respondent, for developing the property under DCR 33 (7). On 8 October 2007 the Third Respondent addressed letters to the tenants, with reference to the proposal for redevelopment estimating the cost of repairs to be in excess of the statutory limit and calling upon the tenants to deposit a stipulated amount, failing which it was stated that action would be taken under Section 88(3)(a) of the MHADA Act 1976 to declare the building beyond the normal limits of repair. The Sixth Respondent by a letter dated 31 December 2007 reiterated that the occupants sought redevelopment and did not opt for repair since they were unable to pay the requisite deposit. On 25 April 2008 the Repair Board issued certificates under Section 88(3) certifying that the structures in question were beyond economic repair under the provisions of the Act.
6. Commencing from December 2007 and until April 2008 site visits were carried out by the officials of the Repair Board for inspecting the structures and for the purpose of verifying the irrevocable consents of the occupants. On 30 April 2008 the Executive Engineer of the Repair Board addressed individual letters to the occupants calling upon them to furnish documentary evidence in support of their individual status. On 10 June 2008 a report was prepared by the Executive Engineer certifying that out of a total 188 occupants, 185 occupants had furnished irrevocable consents. The report stated that 98.40% of the occupants had consented to the redevelopment of the property by the First Petitioner. As regards the non-consenting tenants, the First Petitioner had furnished an undertaking agreeing to protect the tenancy rights of such persons. The report stated that on 8 May 2008 a list of tenants/occupants had been published in the newspapers and though objections were invited, no claim or objection had been received by the date stipulated.
7. The Deputy Chief Engineer in the office of the Repair Board certified by his report dated 12 June 2008 that 96.98% of the occupiers had consented to
