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2018 Supreme(Bom) 714
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, RIYAZ I. CHAGLA, JJ.
MIG (Bandra) Realtors and Builders Pvt. Ltd. – Petitioner
Versus
Municipal Corporation of Gr. Mumbai & Anr. – Respondents
Writ Petition No. 1516 Of 2016
Decided On : 05-06-2018
For the Petitioner: Mr. Virendra Tulzapurkar, Senior Counsel with Mr. Nikhil Sakhardande and Mr. Gaurav Gopal and Ms. Divyanka Kapoor i/b Wadia Ghandy & Co.
For the Respondent: Ms. Vandana Mahadik, Mr. S. Gaikwad, i/b Vishwajit Parshuram Sawant
Headnote:
MRTP Act, 1966 - Section 45 - Development Agreement - Quash – Petitioner is developer of immovable property in Mumbai- Petitioner has acquired redevelopment rights in respect of land admeasuring approximately bearing survey having corresponding CTS of village Gandhi Nagar in registration Sub-District of Bandra Mumbai Suburban District at Bandra (East) Mumbai (for short “ said land”) from Middle Income Group CHS Ltd- Group (for short “ said Society”)- Petitioner carrying out redevelopment of said land under Regulation Development Control Regulations for Greater Mumbai (for short “DCR”)- said land is owned by Respondent - Respondent constructed buildings on said land consisting total flats and sold existing flats constructed thereon “Middle Income Group Housing Scheme” and allotted flats in said existing buildings allotees on hire purchase basis thereafter became members of said society- Respondent leased said land to said society by way of Residential Land Lease Deed- Respondent by Deed of Sale executed with Society simultaneously with Residential Land Lease Deed conveyed granted and assured to said society said existing buildings to have and hold said buildings as owner for residential use –Held Developer to Society for its visitors and car parking spaces shall be allotted by Developer to purchasers of premises in Project (“Developers Parking Spaces”)- excess parking spaces over and above aforesaid car parking spaces being Members Parking Spaces Visitors Parking Spaces and Developers Parking Spaces shall be shared between Developer and Society in ratio of their respective Court observe that Respondent– MHADA has not insisted on imposition of such condition as reflected in documents obtained by Petitioner Right to Information Actand relied upon by Petitioner in respect of similar projects of redevelopment of buildings Regulation DCR- It has been stated in Report of compliance of IOD that Condition of IOD in respect of said project is not applicable as per Ease of Doing Business- Respondent also has not insisted upon submission of separate agreements with each of occupants and is concerned only whether consent or more of occupants have been obtained for redevelopment project prior to grant of its NOC- Court find that Respondent No-1 by imposing such a condition has acted in an arbitrary manner apart from condition being illegal- redevelopment process which will benefit middle income group - Order Accordingly
Riyaz I. Chagla J.
1. The Petitioner by the present Petition is seeking the quashing and setting aside of Condition No.10 in I.O.D. issued by the Respondent – Corporation. The condition No.10 reads thus:
“That the Registered Agreement with the existing tenant along with the list will not be submitted before C.C.”
2. The Petitioner has also sought directions against Respondent – Corporation for issuance of commencement certificate for commencement of redevelopment on the land without insisting on performance of Condition No.10 of the IOD. Notice has been issued for final hearing and disposal of the Petition at the admission stage.
3. The Petitioner is a developer of immovable property in Mumbai. The Petitioner has acquired redevelopment rights in respect of land admeasuring approximately 20149.40 sq. mtrs. bearing survey No. 341 (part) having corresponding CTS Nos. 649 (Part) 649/1 (part) to 48 (part) of village Bandra, Gandhi Nagar in the registration Sub-District of Bandra, Mumbai Suburban District at Bandra (East), Mumbai – 400 051 (for short “the said land”) from the Middle Income Group CHS Ltd. - Group I (for short “the said Society”). The Petitioner is carrying out redevelopment of the said land under Regulation 33 (5) of the Development Control Regulations for Greater Mumbai, 1991 (for short, “DCR”). The said land is owned by Respondent No.2. The Respondent No.2 constructed 19 buildings on the said land, consisting of total 176 flats and sold existing flats constructed thereon under the “Middle Income Group Housing Scheme” and allotted the flats in the said existing buildings to allotees on hire purchase basis. The allotees thereafter became members of the said society. Respondent No.2 leased the said land to the said society by way of Residential Land Lease Deed. Respondent No.2 by Deed of Sale executed with the said Society simultaneously with the Residential Land Lease Deed conveyed, granted and assured to the said society, the said existing buildings to have and hold the said buildings as the owner for residential use. The Deed of Sale was registered with the office of Sub-Registrar of Assurance at Bombay at Bandra. The said society was also granted Deed of Supplementary Lease executed between Respondent No.2 and the said society registered with the Sub-Registrar of Assurances, Bombay at Bandra (“Additional Plot Lease Deed”) whereby the society was granted an additional plot of land designated as ‘Recreation Ground’ bearing Survey No. 341 (part) corresponding tot CS No. 649, 649/1 to 649/48 admesuring 4,242.08 Sq. mtrs. situated at Gandhi Nagar, Bandra (East), Mumbai – 400 051 in Municipal 'H' Ward East.
4. The said society resolved to redevelop the said land by demolition of existing buildings and construction of new buildings, by utilizing and exploiting its development potential and for better common amenities and facilities. The said society executed a Development Agreement dated 31st October, 2010 in favour of the Petitioner which is duly registered, granting redevelopment rights in respect of the said land to the Petitioner. The Petitioner has taken upon itself to redevelop the said land under the agreement and redevelopment is under Regulation 33 (5) of the DCR. Subsequently, a Deed of Modification dated 23rd August, 2014 was executed for modification of certain terms of the said Development Agreement. The said Deed of Modification has also been registered. Respondent No.2 had thereafter issued a no objection certificate on 16th November, 2011 for utilization of 39768.30 sq. mtrs. of built up area on the said lands. On 23rd September, 2013, an Intimation of Disapproval (for short “the said IOD”) was issued by the Respondent No.1 to the Petitioner which states “that the Registered Agreement with the existing tenant along with the list will not be submitted before the CC” in clause 10 of the said IOD.
5. The said society has by letter dated 21st September, 2015 addressed to the Petitioner stated that all 176
