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2024 Supreme(Online)(Bom) 316
HIGH COURT OF BOMBAY
SANDEEP V. MARNE, J
DILIP VITHAL NARVEKAR – Appellant
Versus
MUNICIPAL CORPORATION FOR GREATER MUMBAI AND 3 ORS – Respondent
WP/5196/2022
Mr. Mayur Khandeparkar I/B. Mr. Mehul A. Rathod for the Petitioner in WP/5196/2022. Mrs. Pooja Kshirsagar Kane with Mr. Laxminarayan Shukla, Ms Pragya, Ms Dhanashree Pawaskar, Ms Darshana Vora and Mr. Ameya Khot i/b. Mr. Mehul A. Rathod for the Petitioner in WP/4339 /2022. Mr. Sagar Patil for MCGM, Respondent Nos.1 & 2 in both the petitions. Mr. Joaquim Reis, Senior Advocate with Mr. Bernardo Reis, Mr. Bharat Jain and Mr. Hrishikesh Tajane i/b. M/s. IC Legal for Respondent No.3. Dr. Uday Warunjikar with Mr. Sumit Kate for Respondent No.4.
The court upheld the status of structures occupied by two brothers as contravening structures eligible for redevelopment, emphasizing that family disputes should not obstruct lawful entitlements.
Headnote:(A) Development Control and Promotion Regulations for Greater Mumbai, 2034 - Regulation 33(12)(A) - Tenancy dispute - Three brothers contesting claims over tenanted structure following the death of their father - Lawoo claims exclusive tenancy of Room No. 13, while Dilip and Ankush assert rights over converted structures - Municipal Corporation's withholding/cancellation of NOCs challenged - Court finds structures of Dilip and Ankush to be contravening structures eligible for redevelopment benefits, while Lawoo's structure is not - Court restores NOCs issued to Dilip and Ankush. (Paras 4, 5, 34)
(B) Tenancy Rights - The court emphasizes that the existence of structures prior to the datum line is crucial for eligibility in redevelopment schemes, and disputes among family members should not impede lawful entitlements. (Paras 27, 33)
(C) Natural Justice - The court notes that the Municipal Corporation must adhere to principles of natural justice when making decisions affecting tenants' rights. (Paras 6, 12)
Facts of the case:
The case involves a dispute among three brothers regarding their rights to a tenanted structure after the death of their father, with conflicting claims over the nature of the structure and eligibility for redevelopment benefits.
Findings of Court:
The court found that the structures occupied by Dilip and Ankush were contravening structures eligible for redevelopment, while Lawoo's claim to the entire Room No. 13 was not substantiated.
Issues: The main issues included the nature of the tenanted structure, the validity of the NOCs issued by the Municipal Corporation, and the rights of the brothers under the redevelopment scheme.
Ratio Decidendi: The court ruled that the Municipal Corporation erred in withholding and cancelling the NOCs based on family disputes, emphasizing that the structures of Dilip and Ankush met the criteria for contravening structures under the applicable regulations.
Result: Both Writ Petitions allowed; NOCs restored.
1.Rule. Rule made returnable forthwith and with the consent of the learned counsel appearing for parties, Petitions are taken up for hearing.
2. The Petitions arise out of grant of benefits of redevelopment of tenanted structures. Late Vitthal Narvekar was a tenant in respect of Room No. 13 located at C. B. Dhuruwadi, Final Plot No. 840, TPS-V of Mahim Division, Dadar, Mumbai. Apparently, the tenanted structure bearing Room No. 13 was earlier in three parts viz. main room, verandah and toilet block. Vitthal Narvekar has three sons: Lawoo, Dilip and Ankush. It appears that after Vitthal’s death, the three sons occupied the above three parts of the tenanted structure. While Lawoo continued residence in main room, it appears that Ankush converted the verandah into a room and started residing therein whereas Dilip converted toilet block into a residential room. The Municipal Corporation has recognised the structures of Ankush and Dilip as contravening structures in respect Megha___Page No. of ____ of neighboring Final Plot No. 751-752 under which Ankush and Dilip would receive permanent alternate accommodations, whereas Final Plot No. 840, on which Lawoo’s structure is located, is not taken up for redevelopment as of now. Grant of benefit of permanent alternate accommodations to brothers Ankush and Dilip has caused heartburn for Lawoo, who has orchestrated cancellation/withholding of NOCs issued by MCGM by orders dated 14 May 2021, which are subject matter of challenge in the Petitions.
3. By these Petitions, Petitioners challenge the Orders dated 14 May 2021, by which the Respondent-Municipal Corporation has kept on hold No Objection Certificate of Petitioner in Writ Petition No.4339 of 2022 and has cancelled the No Objection Certificate of Petitioner in Writ Petition No.5196 of 2022.
4. Brief factual narration as prologue to the judgment would be necessary. This is a typical fight amongst three brothers in respect of their competing claims to rights resulting out of redevelopment of structures in their occupation. There is one tenanted structure identified as Room No.13 in which Late Vitthal Narvekar was a tenant. After father’s death, Lawoo Vitthal Narvekar claims tenancy therein. Said Room No.13 is divided into three parts viz. main room, its verandah and a toilet block. According to Lawoo, all three sub parts are part of singular and composite structure numbered as Room No.13 and Lawoo claims exclusive tenancy rights in respect of the entire composite structure of Room No.13. Contrary to the Lawoo’s claim, his two brothers, Dilip and Ankush claim that three sub parts are independent structures. The middle portion, referred to as Megha___Page No. of ____ verandah by Lawoo, is in fact a room in Ankush’s possession. Similarly, the structure referred to by Lawoo as toilet block is again an independent room in Dilip’s possession.
5.This disputed position amongst Lawoo on one hand and Dilip and Ankush on the other, about the singular structure or three separate structures has a direct bearing on the redevelopment of the same under the provisions of Development Control and Promotion Regulations for Greater Mumbai , 2034 (DCPR). The main room in occupation of Lawoo (referred to as Room No.13) is located in final plot No. 840. The middle structure (referred to as Verandah by Lawoo), which is in Ankush’s possession partly falls in Final Plot No.840 and partly in Final Plot Nos.751-752. The third structure (referred to as toilet by Lawoo), being in possession of Dilip, falls in final plot No.751-752 with some portion of it protruding in final plot No.753. Under DCPR, every structure, which falls in one or more Final Plots under Town Planning Scheme are treated as contravening structures. Regulation 33(12)(A) deals with redevelopment of contravening structures included in the final plot of a town planning scheme. Therefore, the structures in which rights are claimed by Ankush and Dilip (on account of those structures jutting out in
