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2019 Supreme(Bom) 1490
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, G.S. PATEL, JJ.
Jawahar Jyoti Co-Operative Housing Society Ltd. - Appellant
Versus
State of Maharashtra And Others - Respondent
Writ Petition No. 8972 of 2019
Decided On : 04-10-2019
Advocate Appeared:
Neeta Karnik, Adv., V.M. Mali, Adv., N.R. Bubna, Adv.
Proper notice, hearing, and consent of the property owner are essential before inclusion in any development or redevelopment scheme.
Headnote:
Urban Renewal Scheme - Cooperative Housing Society - Maharashtra Cooperative Societies Act 1960, Maharashtra Ownership of Flats Act, Maharashtra Regional Town Planning Act - Regulation 165, Appendix R-I - The court discussed the provisions of Regulation 165 of the Development Control Regulations, the Maharashtra Regional Town Planning Act, and the Maharashtra Cooperative Societies Act in the context of urban renewal and cluster redevelopment schemes. The court emphasized the need for proper notice, hearing, and consent of the property owner before inclusion in any development or redevelopment scheme. The court ruled that the property will not be included in any urban renewal scheme or cluster development project, leaving the rights and contentions of the property owner open.
Fact of the Case:
The petition challenged the inclusion of a cooperative housing society's property in an urban renewal and cluster redevelopment scheme without proper notice, hearing, and consent.
Finding of the Court:
The court ruled that the property will not be included in any urban renewal scheme or cluster development project, leaving the rights and contentions of the property owner open.
Issues: Inclusion of property in urban renewal and cluster redevelopment scheme without proper notice, hearing, and consent.
Ratio Decidendi: Proper notice, hearing, and consent of the property owner are essential before inclusion in any development or redevelopment scheme.
Final Decision: The court made the rule absolute, ruling that the property will not be included in any urban renewal scheme or cluster development project.
JUDGMENT :
G S PATEL, J.
1. This Petition, fled under Article 226 of the Constitution of India, has a limited challenge to a report dated 10th December 2018 approved by the 2nd Respondent, the Municipal Corporation of Thane's General Body, and a Resolution No. 584 /2018 dated 10th December 2018. Although this Petition can be disposed of by accepting the statement made by Mr. Mali, learned AGP, in terms of the averments in the Affidavit in Reply fled by one Mr. Shailendra Bendale, Executive Engineer of the 2nd Respondent corporation in paragraph 2 as set out hereinafter, we will briefly refer to the facts so that there is absolutely no misunderstanding or room for further controversy.
2. Rule. Respondents waive service. By consent, rule made returnable forthwith and the petition is taken up for hearing and final disposal.
3. The sole Petitioner is a cooperative housing society in Thane (West). It is a tenant co-partnership cooperative housing society. It is registered under the Maharashtra Cooperative Societies Act 1960. The 1st Respondent is the State of Maharashtra. The 2nd Respondent, as already noted is the Municipal Corporation of Thane. The 3rd Respondent is its Municipal Commissioner. The 4th Respondent is the High Power Committee for Cluster Development, Thane.
4. The Petitioner has about 114 members. The property is freehold and is final Plot No. 101, Survey No. 251B, 250B and 259 at village Panchpakhadi, Taluka and District Thane. It is about 16030 sq yards. It was part of a larger property first owned by one Khandu Dharma Bhoir. He sold this to the Petitioner by registered Deed of Conveyance dated 28th June 1966. The Petitioner and its members have been in occupation since then. A part of the property went in a road widening or a road proposal. On this plot there stand 11 residential buildings. These were issued final occupation certificates on various dates between 1966 and 1985.
5. Some of the structures (Buildings 7, 8 and 10) were incomplete. These were sold with the land underneath admeasuring 3300 sq yards to one Parmeshwaridevi Garodia Trust. This is now the property of a separate society known as the Garodia Cooperative Housing Society Ltd.
6. It seems that this Garodia Cooperative Housing Society fled an application for a deemed conveyance under Section 11 of the Maharashtra Ownership of Flats Act. It obtained that deemed conveyance.
7. In 2015, the Petitioner decided to take up redevelopment of its property. It followed the Maharashtra Government directives under the Maharashtra Cooperative Societies Act, 1960 and convened a special general body meeting. It appointed a project management consultant for phase I. The entire process continued, but we are not concerned with the details of this or with the threats of demolition etc for the limited purposes that require our attention today.
8. What is material is that a revised development plan for Thane was sanctioned by the Government in Urban Development Department by a notification dated 4th October 1999 with effect from 22nd November 1999. Some parts originally excluded were notified on 3rd April 2003 with effect from 14th April 2003. Revised Development Control Regulations for the Thane Municipal Corporation were sanctioned by the State Government on 28th April 1995 with effect from 1st June 1995.
9. Regulation 165 of this Development Control Regulations deals with special provisions inter alia of urban redevelopment schemes. On 4th March 2014, the State Government issued a notification under Section 37(1)(AA)(a) of the Maharashtra Regional Town Planning Act to incorporate a provision for urban renewal projects/proposals/schemes in Regulation 165 read with a newly introduced Appendix R-I. After some challenges in this Court, the operation of that newly introduced provision was permitted and the provision was brought into effect. This provision essentially deals with what is called cluster redevelopment projects as part of urban renewal or regeneration schemes.
10. It
