The court ruled that notices issued under Section 79-A of the MHADA Act are invalid if the building is not officially declared dangerous, violating due process and natural justice.

JUDGMENT :

Kamal Khata, J.

1) Rule. Rule made returnable forthwith and by consent of parties heard finally at the admission stage.

2) By this Petition under Article 226 of the Constitution of India, the Petitioners are challenging Notice dated 19^th May, 2023 issued by Respondent No. 3-MBR&RB and the Order dated 24^th July, 2024 passed by Respondent No. 5-MHADA that was followed by the Notice dated 30^th July, 2024 issued by Respondent No.3. Additionally, the Petitioners also challenge the constitutional validity of Section 79-A of Maharashtra Housing Area Development Act, 1976 (MHADA), as arbitrary and violative of their fundamental and constitutional rights and consequently seek its striking off. Brief facts:

3) The Petitioner No. 1 is the owner of the property consisting of freehold land bearing Cadastral Survey No.1/291 and 2/291 (Lower Parel Division) admeasuring 2383 square yards and 135 square yards aggregating to 2518 square yards equivalent to 2105.35 square meters or thereabout situated at erstwhile Fergusson Road and now known as Ganpatrao Kadam Marg, Worli Naka, Mumbai and a chawl constructed thereon known as ‘Shoorji Vallabhdas Chawl’. It is a cessed building having 12 commercial tenements on the ground floor and 26 residential tenements on 2 upper floors.

4) The Petition states that the Petitioners have been attempting to redevelop a chawl since 1993 under the Development Control Regulation (DCR), initially securing permissions and agreements for alternate accommodations of 225 sq. ft. In 1996, they received approval from the Brihanmumbai Municipal Corporation (BMC) and a Commencement Certificate (CC) for rehabilitation construction, including a community hall and Jain temple. In 2008, after a policy change increased the Floor Space Index (FSI) to 2.5, allowing tenants 300 sq. ft., the Petitioners sought redevelopment approval under Regulation 33(7) of DCR 1991. However, tenants obstructed inspections and later revoked their consents. Disputes continued, with a FIR lodged in 2011 due to conflicts over temple construction. Permissions were revalidated multiple times until 2017 and by 2018, the Development Control Promotion Regulation (DCPR) 2034 came into effect. That on account of tenants’ obstruction and unreasonable demands they could not redevelop. In the meanwhile, the MBR&R Board has undertaken periodic repairs, including in 2011, 2017-18, and 2022-23.

4.1) Around November – December 2022, the tenants carried their grievances to the local MLA, Advocate Shri Aashish Shelar, who in turn placed the grievances of the tenants before the Respondent No.4 to 6- MHADA. This action resulted in Respondent No. 3-MBR&RB addressing letter dated 3^rd January 2023 to the Petitioner. This letter referred to another letter dated 16^th December 2022 allegedly sent to Petitioner No.1 at some other address because of which the meeting called for by the authority could not be attended by them. Later, on 24^th February 2023, Respondent No-3 MBR&RB called upon Petitioner to submit proposal for redevelopment. The Petitioner responded to this by his letter dated 2^nd May 2023 clarifying the efforts made in the past by the Petitioner that was thwarted by the tenants.

4.2) Suddenly, on 19^th May 2023 Respondent No.3-MBR&RB, issued Notice under Section 79-A. The Petitioners’ contend that, a closer look at the notice reveals that it is based only on a visible inspection and without any supporting material. Despite that, the Petitioners reached out to the tenants by their letter dated 23^rd June 2023 calling for meetings to show their readiness and willingness to redevelop the property and sought their co-operation and consent for the same. Surprisingly, the response was received from one Surji Vallabhdas Building Rahivashi Mandal, purportedly formed by the tenants, informing Petitioner about withdrawal of their past consents. There were inter-se correspondence between the Petitioners and the tenants particularly his letters dated 18^th April 2024 and 10^t