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2019 Supreme(Bom) 1204
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Sugrabai Gulam Abas Tambawala - Appellant
Versus
The Chief Officer, M.B.R and R Board & Ors. - Respondents
Writ petition No. 1811 of 2019
Decided On : 30-07-2019
For the Appellant :Mr. Sanjeev M. Gorwadkar, Senior Counsel a/w Mr. Yusuf S. Baugwala i/by Mrs. Sana Yusuf Baugwala, Advocate.
For the Respondent: Mr. Virag Tulzapurkar, Senior Counsel a/w Ms. Nanki Grewal, Mr. Shlok Bolar, Ms. Paridhi Saraf i/by M/s. Wadia Ghandy & Co. Mr. Rajiv Mane, Asst. Government Pleader.
Headnote:
Constitution of India,1950 – Article 226 - Maharashtra Housing Area Development Act, 1976 – Section 77(b),95A(2),95A(1) - Maharashtra Public Trust Act – Section 36 - demolition of a building - reconstruction - Building in dangerous condition - Petitioner claims to be one of the tenant of building in respect of Room - It is the case of the petitioner that both these rooms are located in the said building and are two separate rooms and not interconnected by any means - By a Deed of Conveyance respect of property known as Building or thereabouts, registered by Collector of land revenue under new survey said property came to be sold by previous landlord in favour of respondent no.3 trust - High Power Committee constituted by State Government issued a Letter of Intent (LOI) in favour of respondent no.3 whereby respondent no.3 became entitled to develop large number of properties in the area under Regulation 33(9) of the Development Control Regulations, 1991 - Respondent no.3 applied for approval of respondent nos. 1 and 2 for redevelopment of said Building - Respondent no.2 issued a NOC for redevelopment of the said property in favour of respondent no.3 - It is the case of the petitioner that no such permission was obtained by respondent no.3 from office of the Charity Commissioner for purpose of redevelopment under Regulation 33(9) of Development Control Regulations, 1991, though same was mandatory according to petitioner - On respondent no.2 issued a notice under Section 77(b) of Maharashtra Housing Area Development Act, 1976 stating that the said Building was found to be dangerous/unfit by human habitation and calling upon the petitioner to vacate the said tenements in her occupation within seven days - Whether the permissions like the no objection certificate are in order – Held, In court view, for purpose of implementing the Cluster Redevelopment Scheme involving large number of occupants/tenants under the said scheme, separate mechanism is provided under provisions of Development Control Regulation for greater Mumbai read with the provisions of Maharashtra Housing Area Development Act, 1976 - These powers are not to be mixed with up powers of a landlord to seek eviction from premises in occupation of a tenant for the purpose of demolition of a building and for reconstruction - Both these powers operate in different field and cannot be mixed up - A special machinery is provided under section 95A of the MHAD Act with the powers of summary eviction in case of compliance of those conditions - `no objection certificate holder or the holder of Letter of Intent under a Cluster Redevelopment Scheme cannot be asked to file a separate suit against each of tenant for eviction for the purpose of demolition or reconstruction of a building under provisions of the Rent Act - No case is thus made out by the petitioner for interference with impugned notices/orders passed by respondent nos.1 and 2 in this writ petition filed under Article 226 of the Constitution of India - Writ Petition is dismissed.
JUDGMENT :
1. By this petition filed under Article 226 of the Constitution of India, the petitioner has impugned the notice/order of Summary eviction dated 20th May 2019 issued by the Executive Engineer, Mumbai Building Repairs and Reconstruction Board, the respondent no.2 herein, notice/order dated 8th March 2019 issued by the respondent no.2, order dated 1st March 2019 passed by the respondent no.2 thereby directing the petitioner to vacate the premises bearing Room Nos.1 and 1K, 2nd Floor, 11Dhaboo Street, Bhendi Bazar, Mumbai 400003. Some of the relevant facts for the purpose of deciding this petition are as under:
2. The petitioner claims to be one of the tenant of Potia building in respect of the Room Nos.1 and 1K situated at 11Dhaboo Street, Bhendi Bazar, Mumbai 400 003, bearing Cadastral Survey No. 4266 of Bhuleshwar Division. It is the case of the petitioner that both these rooms are located on the 2nd Floor in the said building and are two separate rooms and not interconnected by any means.
3. By a Deed of Conveyance dated 19th May 2010 in respect of the property known as Potia Building admeasuring 138.80 sq. mtrs. or thereabouts, registered by Collector of land revenue under the new survey no.1/4463, the said property came to be sold by previous landlord in favour of respondent no.3 trust. On 10th August 2011, the High Power Committee constituted by the State Government issued a Letter of Intent (LOI) in favour of the respondent no.3 whereby the respondent no.3 became entitled to develop the large number of properties in the area of Bhendi Bazar, Mumbai covering about 16.5 acres under Regulation 33(9) of the Development Control Regulations, 1991. The respondent no.3 applied for approval of respondent nos. 1 and 2 for redevelopment of the said Potia Building. The respondent no.2 issued a NOC for the redevelopment of the said property in favour of respondent no.3.
4. It is the case of the petitioner that no such permission was obtained by the respondent no.3 from the office of the Charity Commissioner for the purpose of redevelopment under Regulation 33(9) of the Development Control Regulations, 1991, though the same was mandatory according to the petitioner. On 28th December 2017, the respondent no.2 issued a notice under Section 77(b) of the Maharashtra Housing Area Development Act, 1976 (for short 'MHAD Act, 1976') stating that the said Potia Building was found to be dangerous/unfit by human habitation and calling upon the petitioner to vacate the said tenements in her occupation within seven days.
5. It is the case of the petitioner that the petitioner pointed out to the respondent no.1 that the said Potia Building was in good condition and not dilapidated as sought to be alleged in the said notice of eviction. On 31st May 2018, the respondent no.2 issued a notice under Section 95A of the MHAD Act, 1976 against the petitioner for an eviction of the petitioner. The respondent no.2 proposed to hold a meeting on 31st May 2018. It is the case of the petitioner that the respondent no.3 assured the petitioner that the matter would be settled amicably and convinced the petitioner not to remain present before the respondent no.2 on the schedule date of hearing.
6. By letter dated 17th November 2018, the petitioner informed the respondent no.2 that the petitioner would be unable to remain present on 31st May 2018 when the respondent no.2 had proposed to hold a meeting. It is the case of the petitioner that by letter dated 20th November 2018, addressed by the petitioner to the respondent nos. 1 and 2, the petitioner protested against the clubbing of the two tenements as one by the respondent nos. 1 and 2 and called upon the respondent nos. 1 and 2 for re-measurement the Room No.1 and 1K, which were the tenanted premises of the petitioner. By letter dated 28th February 2019, addressed to the respondent nos.1 and 2, the petitioner made various allegations against the respondent no.3 and requested to pass a speaking order on the sai
