Point of Law: Redevelopment scheme – Eviction of tenant - Agreement with the Petitioners regarding alternate permanent rehab premises proposed to be allotted on tenancy basis.

JUDGMENT :

MADHAV J. JAMDAR, J.

Petitioner No.1 is a partnership firm and Petitioner No.2 is one of the partners of Petitioner No.1. The Petitioners are tenants/occupants in respect of godown bearing No.17-A, Doctors Compound, Dattaram Lad Marg, Chinchpokli (East), Near Chinchpokli Station, Mumbai 400 012. It is the claim of the Petitioners that said godown admeasures 436.21 sq. mtrs. plus 8.14 sq. mtrs. aggregating to 444.35 sq.mtrs. carpet area inclusive of toilet (hereinafter referred to as “tenanted premises”).

2. The Petitioners by present Writ Petition filed under Article 226 of the Constitution of India are challenging legality and validity of notice dated 29.12.2020 as well as order dated 23.03.2021 passed by Respondent No.1- Executive Engineer, MBR & R Board, Mumbai. By the impugned order passed under section 95-A of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as “said Act”) the Petitioners were directed to vacate tenanted premises within 48 hours on receipt of said order and to handover possession to the developer i.e. Respondent No.6. By impugned order it was further directed that if Petitioners fail to handover possession of the tenanted premises then without giving any notice action of compulsory eviction under section 95(A)(2) of said Act would be taken.

3. Mr. Damle, learned Senior Counsel appearing for the Petitioners raised four issues.

(i) He submitted that no plan is handed over to the Petitioners showing rehab premises proposed to be handed over in lieu of tenanted premises. Therefore area of rehab premises which will be allotted to the Petitioner can not be verified.

(ii) He submitted that new rehab permanent premises after redevelopment are required to be allotted on ownership basis in the scheme which is being implemented under Regulation No. 33(7) of Development Control Regulations for Greater Mumbai, 1991 (hereinafter referred as “DCR, 1991”). In that behalf he pointed out various provisions of DCR, 1991 and also pointed out various clauses of NOC dated 24.11.2006 and revised NOC dated 30.04.2014. He relied on judgment of this Court dated 15.11.2019 passed in Writ Petition No. 231 of 2016 in the case of Surendra Vishnu Masurkar V/s M.C.G.M. and Anr. and particularly paragraphs 22 and 23 of the same in support of the said contention.

(iii) He submitted that rent in lieu of transit accommodation offered to the Petitioners is not in consonance with as offered to other occupants. Respondent No. 6 - Developer is discriminating Petitioners from other tenants/occupiers.

(iv) He submitted that Respondent No.6 is not executing registered agreement in favour of the Petitioners.

3.1. He submitted that unless all these requirements are fulfilled order under section 95-A of said Act cannot be passed.

4. Mr. Mayur Khandeparkar, learned Counsel appearing for Respondent No.6 raised following contentions :-

(i) He submitted that scope of proceedings under section 95-A of said Act is very narrow. Only requirement under said Section is irrevocable consent by minimum 70 % occupiers, issuance of NOC by M.B.R.R.B. (Board) and providing alternate temporary accommodation to all the occupants. He relied on judgment of this Court reported in 2012(5) Mah. L.J. 229 in Radhika George Vs. MHADA and Others on the point of scope of Section 95A of the said Act.

(ii) He pointed out Clause No.(2) of Annexure-III of D.C.R. 1991 and submitted that only requirement is that occupant shall be allotted rehab permanent premises and same need not be allotted on ownership basis. He submitted that the same can even be allotted on tenancy basis. To support this contention he relied on judgment of Learned Single Judge dated 13.03.2020 passed in Notice of Motion No. 94 of 2020 in Suit No. 203 of 2020 in Nellichery Shivaram Seshadri and Ors. Vs. Shree Ram Builders and Ors.

(iii) He further submitted Respondent No.6 has filed three eviction suits against the Petitioners in the Small Causes Court, Bombay and therefore allotment