The authority under Sec. 95A needs to ensure collective decision-making, permissions, and adequate transit accommodation for redevelopment. Circulars issued under Sec. 79A are recommendatory, and material compliance is sufficient. The court cannot examine the petitioners' contentions in proceedings under Sec. 95A.

JUDGMENT

M.S.KARNIK, J. - Heard learned counsel for the parties. The issue involved in these writ petitions is common, hence decided by a common judgment.

2. The challenge in this writ petition filed under Article 226 of the Constitution of India is to an order dated September 21, 2022 passed by the Respondent no.3 on an application made under Sec. 95A of the Maharashtra Housing and Area Development Authority Act, 1976 (hereafter "the said Act", for short). The occupants-petitioners of two rooms in respect of a ground floor structure having 8 units are before this Court. The majority of the members agreed for redevelopment and consequently a development agreement dated December 24, 2021 was entered into between the developer and the Society. These two petitioners are the two occupants who are opposing the redevelopment. The redevelopment is under Regulation 33(5) of the DC Regulations.

3. Assailing the impugned order passed by the competent authority i.e. Respondent no.3 under Sec. 95A of the said Act, learned counsel for the petitioners vehemently submitted that the said order does not take into consideration the interest of the members of the Society. Placing reliance on a Circular dated January 3, 2009, it is submitted that in terms of such circular issued by the State of Maharashtra, the development agreement should include the clause as regards the developer giving bank guarantee of 20% price of redevelopment project. Learned counsel submits that such circular is mandatory in nature and the order passed under Sec. 95A is in breach of such a mandatory condition in the circular. It is next submitted that even the circular dated July 4, 2019 which provides for furnishing bank guarantee of 20% price of the project cost of redevelopment is breached.

4. Mr. Kini then relied upon the Government Resolution dated March 5, 2021 which provides that the NOC granted to a project should be cancelled if 10% of the bank guarantee in respect of the price of redevelopment cost is not furnished. Learned counsel submitted that even the circular dated July 4, 2019 is breached as the agreement with the petitioners has not been signed and the draft was given for the first time vide letter dated September 21, 2022 after this writ was filed. Mr. Kini submitted that the entire action of the Managing Committee in entering into such a development agreement with the developer is malafide and to the detriment of the petitioners.

5. To demonstrate the prejudice caused, Mr. Kini submitted that in respect of adjoining plot no.27 in which redevelopment is in progress, the area offered to all members is 1200 square feet, whereas lesser area is offered to the petitioner viz. 935 square feet. Even so far as corpus is concerned, the corpus provided in respect of adjoining plot no.27 is Rs.25, 00, 000.00 whereas in respect of the present redevelopment, the corpus is Rs.10, 00, 000.00. It is further submitted that rent payable in respect of the adjoining plot is Rs.40, 000.00, whereas the rent payable to the members of the present Society is Rs.30, 000.00 per month which is on a much lesser side. Learned counsel expressed an apprehension that the developer will leave the project midway and petitioners will not be treated on par with other members. It is then submitted that purposely the Society has not enrolled the petitioners as the members of the Society despite the fact that they have validly purchased the said residential units.

6. Mr. Kini, learned counsel relied upon the decision of the Supreme Court in the case of Kamgar Swa Sadan Co-operative Housing Society Ltd. vs. Mr. Vijaykumar Vitthalrao Sarvade and others Civil Appeal No.1222 of 2022 to contend that as per New DCPR 2034 vide circular dtd. 5/3/2021 of Maharashtra Government, a Developer is bound to give Security Deposit/Bank Guarantee of 10% as Rehab Construction cost. A reference is also made to the decision of this Court in the case of Vishwanath Shahaji Awaghade vs. The Chief Officer, MHADA and o