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2014 Supreme(Bom) 1997
IN THE HIGH COURT OF BOMBAY
Anoop V. Mohta and A.S. Gadkari, JJ.
Zubair Malik - Appellants
Vs.
Municipal Corporation of Greater Mumbai - Respondent
Writ Petition (Lodging) No. 2371 of 2014
Decided On: 08.10.2014
For Appellant/Petitioner/Plaintiff: Nitesh Acharya, Altaf Khan, Tanveer Nizam i/by Khan Mohd. Yousuf and Ponjatom
For Respondents/Defendant: Vandana Mahadik, R.J. Mane, AGP and Virendra T. Dubey
Headnote:Constitution of India - Article 226 Grant of relief under writ jurisdiction. - Since matter relates to private relationship as landlord and tenant which is based upon private contract hence no relief can be granted under writ jurisdiction. There are situation where the owners have expressed their inability to provide even the basic alternate accommodation, as expressed in the present case. The submission, therefore, to direct the respondents to provide temporary alternate accommodation immediately is unacceptable. This, in no way, read to mean that parties cannot settle the matter and/or the landlord/owners can, at any point of time, offer and/or settle the matter by all possible means, including paying compensation instead of providing temporary or permanent alternate accommodation. The power of writ jurisdiction for want of policy and/or law and in view of their private relationship as landlord and tenant, it is difficult to direct and/or pass order as prayed in this regard.
Mumbai Municipal Corporation Act, 1888 - Section 354 Maharashtra Rent Control Act, 1999, Sections 14 and 16 Claim for alternate accommodation on demolition. - Since relationship of private landlord and tenant is based upon private contract hence claim for alternate accommodation not sustainable. The provisions so read and referred are no way support their contention that the poor landlord or landlord who is not in a position to provide alternate accommodation (temporary or permanent) and/or event he Corporation and/or in a given case, the State, is under legal and/or statutory obligation to provide such alternate accommodation to the tenants/occupants as landlord is not in a position to provide the same. Court is not concerned with any "improvement scheme" as referred in those sections and so also no such "clearance" or "redevelopment plan". The relationship of private landlord and tenant is based upon the private contract. The constitutional and/or statutory obligation relating to town planning scheme is on different footing. The issue so raised is totally different. Nothing wrong with the respective provisions. The submission is made that "doctrine of implied powers and authority" need to be extended as the question is of their right to life as contemplated under Article 21 of the Constitution of India. Rights and legal obligations of all the parties based upon the law and the declared policy. There is no direct provision placed on record to justify the submission referring to respondent/ corporation and/or State’s obligation to provide such alternate accommodation. This, in no way, read to mean that if a policy decision is taken by the State and/or the Corporation, based upon which, in a given case, subject to other criterion and/or eligibility, they cannot do so. The point, at this stage, is to issue appropriate a writ, order or direction against the respondents, which is impermissible.
Maharashtra Rent Control Act, 1999 - Sections 14 and 16 Mumbai Municipal Corporation Act, 1888, Section 354 Invocation of provisions of Section 14 read with Section 16. Provisions of Section 14 read with Section 16 of Act cannot be involved by petitioners-tenants in writ jurisdiction for directing landlord to provide alternate temporary accommodation to them.
Anoop V. Mohta, J.
1. Rule, returnable forthwith. Heard finally by consent of parties.
2. The Petitioners have filed the present Petition, as the Respondent/Corporation has issued notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for short, "MMC Act"), basically with a prayer that as the landlord is not in a position to provide alternate temporary accommodation, though expressed intention to provide permanent accommodation (tenanted or ownership), based upon the actual commercial exploitation of the premises/land, that is after development of the land/building based upon the Development Control Regulations for Greater Mumbai, 1991 (for short, "DCR") and other related provisions.
3. The Respondents are under obligation to take effective steps if building is declared in C-1 category being in dangerous and dilapidated condition. The Respondent/Corporation's affidavit dated 22 September 2014 further supports the case that the building is required to be demolished.
4. This Court on 5 September 2014 has granted protective order, not to take coercive steps based upon the impugned notice with a clear observation that any occupancy shall be at the risk and consequences of the occupants. The submission again is made that Respondents 4 and 5 be directed to provide at least an alternate temporary accommodation pending the development of the property. Therefore, we issued notice to Respondents 4 and 5.
5. All Respondents are opposing the reliefs claimed. The submission is also made that the Petitioners must vacate premises of their own, failing which a requisite procedure needs to be followed, to evict them to avoid further complication and/or an untoward incident, which may result in loss of life apart from of occupants and also of passers-by. The statement is made that a portion of the building was already collapsed.
6. The learned counsel appearing for the Petitioners, on instructions, makes statement that there are 11 members including the Petitioners who are in possession of the premises. However, the statement is made by the learned counsel appearing for the landlord that except one or two, most of the occupants have already vacated the premises. The matter adjourned even for exchange of their proposal for settlement.
7. The Respondents-the Corporation/the landlord even otherwise are bound by the guideline orders of this Court in Original Side Writ Petition (Lodging) No. 1135 of 2014-Municipal Corporation of Greater Mumbai v. State of Maharashtra, (Anoop V. Mohta & A.A. Sayed, JJ.) decided on 23 June 2014 and 13 August 2014 [LAWS (BOM)-2014-6-52] as the building in question is of C-1 category.
8. At this stage, it is relevant to note the following paragraphs of Order (supra).
In order dated 23.06.2014: (Guideline-I)
"9 p) In case privately owned buildings are demolished by the Corporation in exercise of power under Section 354 read with the present order, then the Corporation shall, while granting sanction of redevelopment, impose a condition in IOD (Intimation of Disapproval) that no Commencement Certificate will be issued under section 45 of the MRTP Act, 1966 unless and until an Agreement either providing a Permanent Alternate Accommodation in a newly constructed building or a settlement is arrived at by and between the tenants and/or occupiers and the landlord in respect of the said demolished premises, is filed with the Corporation at the earliest.
10. The above order in no way restricts the power and scope and purpose of Section 354 of said Act. The Commissioner/Corporation and its Officers shall act in accordance with law. These guidelines will not affect any orders passed in pending proceedings and are not to be read and interpreted to restrict or permit the Corporation or any party to go beyond the statutory provisions of law. This order is necessitated essentially to make Section 354 effective and to see that human lives are not in any manner compromised. The Corporation and its officers to follow other p
