2015 Supreme(Bom) 111

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MOHIT S. SHAH & B.P. COLABAWALLA, JJ.
Vijay Shantaram Mandavkar & Ors. – Appellants
Versus
State of Maharashtra & Ors. – Respondents
Writ Petition (L) No. 2549 of 2014
Decided on: 06-02-2015

Headnote:Development Control Regulation for Greater Mumbai, 1991 - Regulation 43 Fire safety NOC. Fire safety NOC is required only if height of building is more than 24 metres. It would not be out of place to note that the respondents have shown photographs of the structures presently occupied by the petitioners demonstrating that the present structures are so congested that the space between the two structures would not allow even an autorickshaw to move on the passage between the rows of structures. As against that, that on the suit property, the developer had in fact brought the fire engine to demonstrate that there was no impediment to the fire engine having access to the new buildings in case of a fire. In fact, photographs have been brought on record showing that the fire engine had clear access to all the buildings in case there was a fire. In respect of building Nos. 4-A and 4-B, where the petitioners are to be accommodated, the aforesaid provisions contained in DCR No. 43 is not applicable as the height of the buildings is less than 24 mtrs. (i.e. 23.45 mtrs.), the grievance made by the petitioners with reference to violation of DCR No. 43 or with reference to fire safety is wholly unfounded.

       Development Control Regulation for Greater Mumbai, 1991 - Regulation 64(b) Power of relaxation. When particular regulation itself not confers power of relaxation of requirement of open spice, Regulation 64(b) confers such power of relaxation. It is necessary to note that when a project is under Regulation 33(7) or Regulation 33(10), the development Control Regulations envisage a situation where persons already occupying the structures on the land in question are required to be rehabilitated on the same land and may be required to be given carpet area larger than the area already in their occupation in the existing structures. For instance, in the present case, the petitioners are occupying structures with carpet area ranging from 100 to 200 sq. ft. but in the redevelopment project sanctioned by the Municipal Corporation more than 5 years ago, the reconstructed tenements have carpet area of 300 sq. ft. each. Moreover, where the land belongs to Government or MHADA, the Developer is also required to give tenements to MHADA. Such rehab tenements for the occupants of the present structures or for MHADA are required to be constructed by the Developer free of cost and the Developer can recover the entire expenditure on the project plus reasonable profit from out of construction and sale of free sale tenements.

       The Developer is thus required to construct a much larger built up area than the existing construction and, therefore, Regulation 33(7) and Regulation 33(10) permit the Developer to have higher FSI than the permissible normal FSI of 1 or 1.33. In the instant case, the FSI given to the Developer is 3 as per DCR. The natural consequence would be that the Developer has to construct more built up area and, therefore, the open space, which would be available in the redevelopment project for the benefit of the occupants/tenants, would be less than the open space which would have been available if FSI of only 1.33 is to be utilized. It is for this reason that clause 6.11 in Annexure “A” to Appendix IV to the DCR specifically envisages that the front and marginal open spaces for buildings may be less than the minimum marginal open spaces required under Regulation 23. Clause 6.16 also envisages relaxation of the stipulation in Regulation 23. Clause 6.19 envisages relaxation of Regulation 23 regarding minimum open spaces and Regulation 22 regarding means of access. Since the above clauses themselves envisage such relaxation, there is no question of importing regulation 64(b) which contemplates relaxation by special permission in special cases where clearly demonstrable hardship is caused.

       Maharashtra Housing and Area Development Authority Act, 1976 - Section 95-AEviction of tenant. - Summary eviction of tenant under Section 95-A of Act, can be awarded only by Board and not by arbitrator. - Section 95-A(1) inter alia provides that where the owner of the building or the members of the proposed Co-operative Housing Society or the occupiers of the said building, submit a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less than 70% of the total occupiers of that building, and an NOC for such reconstruction is issued by the Board, then it shall be binding on all the occupiers of the said building to vacate the premises. Sub-section (2) of Section 95-A provides for the contingency when an occupier refuses to vacate the premises as provided for in sub-section (1). In such circumstances, sub-section (2) of Section 95-A stipulates that it would be competent for the Board, on being approached by the holder of such NOC, to effect summary eviction of such occupiers. In fact sub-section (4) of Section 95-A further stipulates that any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with a fine which may extend to five thousand rupees, or with both.

       On a bare perusal of Section 95-A it is clear that the remedy provided thereunder is for a summary eviction. Under the statute (MHADA Act), this summary eviction can be ordered only by the Board, on being satisfied that all the conditions as mentioned therein have been complied with/established. The arbitrator would have no jurisdiction to award summary eviction as contemplated under Section 95-A. This power can be exercised only by the Board under Section 95-A of the MHADA Act. Court do not find any substance in the argument that the notices and the orders passed under Section 95-A of the MHADA Act were liable to be quashed and/or set aside on the ground that they were obtained without disclosing and/or invoking the arbitration clause in the agreement (Clause 27). The arbitration clause in the agreement between the developer, society and its members has no role to play when it comes to issuing notices or ordering summary eviction under the provisions of Section 95-A of the MHADA Act.

       Maharashtra Housing and Area Development Authority Act, 1976 - Section 95-Ascope of. - Ambit and scope of Section 95-A of Act is very limited and proceedings thereunder are not for purposes of adjudicating disputes inter se between members, society and developer. - The moment it is demonstrate to the Board that 70% of the members have given their consent to the redevelopment and there is a valid NOC to the project, coupled with the fact that the developer has made suitable. arrangements for shifting the member/occupants to a transit accommodation, no further inquiry is necessary. The ambit and scope of Section 95-A is very limited and proceedings thereunder are not for the purposes of adjudicating disputes inter se between the members, the society and the developer.