Sakharam Arjun Ghadigaonkar & Ors vs The Municipal Corporation Of ...
2012 Latest Caselaw 445 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                O. O. C. J.




                                                                                     
                      WRIT PETITION (L) NO.2736 OF 2012
                                   WITH




                                                            
                     CHAMBER SUMMONS NO.291 OF 2012

    Sakharam Arjun Ghadigaonkar & Ors.                    ...Petitioners.
               Versus
    The Municipal Corporation of Greater Mumbai & Ors.    ...Respondents.




                                                           
                            .......
    Mr.Nilesh Pawaskar for the Petitioners.
    Mr.Vinod Mahadik for Respondent No.1.
    Ms.Aparna Murlidharan with Mr.P.G.Lad for Respondent Nos.2 and 3.
    Mr.S.G.Surana for Respondent No.4.




                                                 
    Mr.R.J.Mane, AGP for Respondent No.5.
    Mr.Vijay Patil for Respondent No.6.
                                
                            ......
                            CORAM : DR. D.Y. CHANDRACHUD &
                                      A.A.SAYED, JJ.

December 4/5, 2012.

ORAL JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.):

These proceedings have been instituted before the Court by

seven persons acting for themselves and for and on behalf of 217 residents.

The Petition has been verified by the Seventh Petitioner, who is the son of the

First Petitioner, acting as a Constituted Attorney. The subject matter of these

proceedings relates to the redevelopment of a property known as Haji Kasam

Chawls. This cluster of buildings consists of Chawls 59, 60 and 60A and

Building Nos.(6A), 368, 386(10/18), 346/364, 364A, 364-B, 368-A and 368-B

situated on land comprising in City Survey 71 (part), 72, 77, 213/74 and

214/74 at Islam Mill Compound, Currey Road, Lalbaug, Mumbai. The Fourth

Respondent is the owner and developer of the property which consisted of six

buildings constructed - the Court is informed - about 140 years ago. All the

buildings are admittedly old and dilapidated. There were as many as 736

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occupants of which 627 were comprised in Cessed-A category structures, 85

were non-cessed structures and 24 were slum structures.

2. Initially, on 19 April 2007, an agreement was entered into between

the Fourth Respondent and the proposed Co-operative Housing Society

representing the occupants of the chawl structures. The agreement inter alia

envisaged the provision of alternate accommodation admeasuring 225 sq.ft.

in addition to which there was a provision for a dry balcony of 75 sq.ft. This

was followed by a further agreement dated 5 June 2007 between the

developer and the proposed society. While reiterating in clause (1) that the

occupants of some of the buildings will be provided alternate accommodation

admeasuring 225 sq.ft. and a dry balcony of 75 sq.ft., clause 17 of the

agreement stipulated that if before the commencement of construction any

additional benefit came to be provided in respect of the permissible area

under the relevant Regulations, the benefit of such concession would be

extended to the occupants. According to the developer, in 2007 over 90% of

the occupants gave their consents for redevelopment. On 28 June 2008,

MHADA issued an NOC for redevelopment under DCR 33(7).

3. On 2 March 2009, as a result of a notification issued by the State

Government, the eligible area for rehabilitation of occupants under DCR

33(7) was enhanced from 225 sq.ft. to 300 sq.ft., it being stipulated that in the

case of redevelopment schemes already in progress where construction had

not been completed upto the plinth level, the proposal may be converted in

accordance with the modified regulations at the option of the project

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proponent. Simultaneously, DCR 33(9) came to be substituted. Whereas

DCR 33(7) relates to the redevelopment of cessed structures, DCR 33(9)

deals with reconstruction or redevelopment of cessed buildings/Urban

Renewal Schemes and provides as follows:

"(9) Reconstruction or redevelopment of cessed buildings/Urban Renewal Schemes on extensive area. - For reconstruction or

redevelopment of cessed buildings/Urban Renewal Schemes in Island City, undertaken by (a) the Maharashtra Housing and Area Development Authority or Municipal Corporation of Greater Mumbai either departmentally or through any suitable agency or

(b) MHADA/MCGM jointly with land owners and/or Co-operative

Housing Societies of tenants/occupiers of buildings or Developer or Co-operative Housing Society of hutment dwellers therein, (c)

independently by land owners and/or Co-operative Housing Societies of tenants/occupiers of buildings or Developer, the FSI shall be 4.00 or the FSI required for rehabilitation of existing tenants/occupiers plus incentive FSI as given in Appendix III-A,

whichever is more."

Under Clause 1.1 of Appendix III-A, regulations have been framed for

reconstruction or redevelopment of cessed buildings under Urban Renewal

Schemes. An Urban Renewal Scheme under Clause 1.1 is a scheme in the

Island City of Mumbai with a minimum area of 4000 sq.mtrs., bounded by

existing distinguishing physical boundaries and consisting of a mix of

structures of different characteristics. The mix of structures may consist of

cessed buildings, buildings constructed before a stipulated date and acquired

by MHADA, buildings constructed before a stipulated date which are unfit for

human habitation, buildings belonging to the Government, semi governmental

bodies and the Municipal Corporation and slum areas including slums on

public lands prior to the cut off date of 1 January 1995. Under Clause 3(a)

redevelopment under an Urban Renewal Scheme requires irrevocable written

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consent of not less than 70% of the eligible tenants/occupiers of each plot

involved in the scheme. Clause 4 stipulates that each occupant/tenant is to

be given the carpet area occupied by him for residential purposes in the old

building subject to a minimum of 300 sq.ft. In the case of non-residential

occupiers, the area to be allowed in the reconstructed building is to be

equivalent to the area occupied in the old building. Clause 5 of Appendix III-A

provides for allocation of FSI for rehabilitation of the existing

tenants/occupiers, the share of the owner, the share of the Municipal

Corporation/MHADA and incentive FSI. The provision further envisages that

in the proposal for a maximum of four FSI, the permissible maximum FSI

over and above what is required to be provided for rehabilitation and as an

incentive shall be shared in terms of built up area between the Municipal

Corporation, MHADA and the private developer in a stipulated ratio.

4. The Government of Maharashtra granted its approval for

redevelopment under DCR 33(9) on 12 January 2010. A Letter of Intent was

issued by the High Power Committee set up by the State Government on 6

February 2010. The Municipal Corporation issued an IOD for rehab and

cessed buildings on 18 June 2010. On 22 July 2010, a commencement

certificate was issued by the Municipal Corporation for a rehab building upto

23 floors. A commencement certificate was issued at the same time for the

sale buildings. The Fourth Respondent has completed the construction of

one rehabilitation building comprising of a ground floor and 23 upper floors

consisting of 543 rehab tenements which are allotted to eligible occupants.

The Municipal Corporation has issued an occupation certificate for the first

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rehab building. Nearly 390 occupants have shifted to the rehab building upon

being granted possession of their permanent alternate accommodation. The

Municipal Corporation has also approved building plans for a composite

building and both an IOD and a commencement certificate have been issued.

A composite building consisting of a ground floor and 23 upper floors has

been constructed. This building, it has been stated in the affidavit in reply,

would shortly be ready for allotment. The Municipal Corporation has also

issued an IOD and a commencement certificate for the sale building

consisting of a ground and 51 upper floors and construction is in progress.

5. A Petition under Article 226 of the Constitution 1 was instituted

before the Court for the purposes of challenging the redevelopment. Counsel

appearing on behalf of the Petitioners in these proceedings states that they

were parties to the earlier proceedings. While disposing of that Petition, a

Division Bench of this Court noted that the relief sought in that proceeding

was that the Fourth Respondent should not be allowed to carry out

development work without the consent of the occupants and in breach of the

agreement with the proposed Co-operative Housing Society. During the

course of the hearing of the proceedings, the Petitioners stated before the

Court that they were not interested in challenging the development, but the

only submission was that the development should be carried out in

accordance with law and subject to IOD conditions. This was recorded in the

order passed by the Division Bench in the following terms:

"The learned counsel for the petitioners submitted that the petitioners are not interested in challenging the development

1 Writ Petition 1174 of 2011

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carried out by respondent No.4 but his argument is that the petitioners should be given area as provided by law and should

carry out development work in accordance with law and also to comply with IOD conditions. Learned counsel for the petitioners also pointed out that the premises where the petitioners are

presently staying require urgent repairs."

The Division Bench while disposing of the Petition, left it open to the

Petitioners to move the High Power Committee in respect of the grievance

relating to the area to be allotted to each occupant in the newly constructed

premises. The Fourth Respondent was directed to carry out repairs to the

existing building in order to obviate any danger to the inhabitants.

developer also stated before the Court that it was ready to provide The

compensation in lieu of transit accommodation to such of the occupants who

are desirous of obtaining transit premises. A Contempt Petition was

thereafter filed before a Learned Single Judge of this Court on the allegation

that in breach of the directions contained in the order of the Division Bench,

the developer had failed to carry out repairs. A Learned Single Judge of this

Court by a judgment dated 13 January 2012 dismissed the Petition holding

that there was no substance in the grievance of the occupants.

6. The Petitioners moved the High Power Committee, following the

judgment of the Division Bench. While disposing of the appeal, the

Committee noted that the land has been reserved for housing the dishoused

and Municipal staff quarters and consequently, the Fourth Respondent is

required to construct and hand over to the Municipal Corporation free of cost

built up area for that purpose admeasuring about 10,000 sq.mtrs. The

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Committee arrived at the finding that the scheme of redevelopment has been

approved with the consent of 70% of the occupants. However, the issue in

the case was whether following an increase in the FSI for a DCR 33(9)

scheme, the occupants were entitled to additional benefit in accordance with

Clause 17 of the redevelopment agreement with the developer. Dealing with

this issue, the High Power Committee has held as follows:

"The provisions of Regulation 33(9) of DCR 1991, are clear. The Government of Maharashtra has amended the provisions of DCR 33(9) and allowed higher FSI of 4 with the intention to have

integrated planning of Urban Renewal Schemes and to generate more PAP tenements/housing stocks. No additional benefits

accrue to the existing occupants under 33(9) scheme save and except provisions of corpus fund and better planning standards due to cluster approach. As far as rehab area is concerned the occupants are entitled only to rehab tenement of carpet area

admeasuring 300 sq.ft. as per DCR 33(9) which is the same as in DCR 33(7).

This Committee has perused the provisions contained in Clause 5 of Appendix III-A of Regulation 33(9), which states

that, the balance additional 1 F.S.I. is required to be shared between the Government/statutory Body and the developer in the

ratio of 1:0.5 wherein 67% area goes to MHADA/MCGM free of cost while 33% area goes to the developer in lieu of his investment cost towards providing of public amenities, constructions cost, transit cost, infrastructure cost and etc. in the scheme."

Finally, the Committee has noted that as regards the corpus fund, the Fourth

Respondent has agreed to create the fund in the amount of Rs.25,000/- per

occupant or in whatever other sum that may be fixed by the Committee

constituted under Clause 18 of Appendix III-A of DCR 33(9). The Committee

was directed to take a decision on that issue within a period of four weeks.

The appeal has accordingly been disposed of.

7. Counsel appearing on behalf of the Petitioners has submitted that

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(i) The scheme for redevelopment under DCR 33(9) has not received the

consent of 70% of the eligible occupants as mandated; (ii) Under the

agreement that was entered into with the Rahiwasi Sangh (Exh.A), Clause 17

envisages that any increase in the FSI before the commencement of

construction should enure to the benefit of the occupants. Consequently, it

was urged that since the FSI available is four, the benefit of the enhancement

of FSI must enure to the occupants. The grievance of the occupants is that

the conditions stipulated by the Municipal Corporation in the IOD have thus

not been fulfilled.

8. Opposing the grant of any relief, Counsel appearing on behalf of

the Fourth Respondent submitted that (i) The issue of consents cannot be

raised at this stage, having regard to the fact that in paragraph 14 of the

Petition there is an express admission of the fact that consents for

redevelopment under DCR 33(7) and/or DCR 33(9) have been granted.

Moreover, even before the Division Bench of this Court on 29 August 2011 in

the previous petition a categoric statement was made to the effect that the

Petitioners are not interested in challenging the redevelopment carried out by

the Fourth Respondent. MHADA, it was submitted, has duly examined the

extent of irrevocable consents and it has been communicated by the Chief

Officer of the Repair Board on 7 April 2010 to the Director, Engineering

Services and Projects and Member Secretary of the High Power Committee

constituted under DCR 33(9) that almost 90% of the occupants have

furnished their irrevocable consents; (ii) Originally under DCR 33(7) alternate

accommodation admeasuring 225 sq.ft. was required to be provided to each

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occupant. On 28 March 2009, following an amendment to the DCRs, the area

to be provided was enhanced from 225 sq.ft. to 300 sq.ft. and DCR 33(9) was

also substituted in similar terms. As a result of the amended provision every

one of the occupants would be now granted 300 sq.ft. in addition to which

there is a provision of a dry balcony of 75 sq.ft. The enhancement of FSI to

four does not enure to the benefit of occupants since the additional FSI of one

that is made available has to be handed over to MHADA and the Municipal

Corporation in the stipulated proportion as provided in the DCR; (iii) In the

present case, one rehab building consisting of 23 storeys has already been

constructed for which an occupation certificate has been received. 390

occupants have been handed over possession against the execution of

individual agreements. The Petition is motivated at the instance of seven

Petitioners and particularly the Seventh Petitioner who has verified the

Petition. The Seventh Petitioner, it is urged, does not have an individual

entitlement since his father, the First Petitioner, is eligible to the allotment of

alternate accommodation; (iv) The High Power Committee which is an expert

body has also found that under DCR 33(9), the occupants would be entitled to

a tenement admeasuring 300 sq.ft. in carpet area. The balance additional FSI

of one is required to be shared with MHADA/MCGM free of cost in the ratio of

1 : 0.5.

9. The issue as to whether the scheme under DCR 33(9) has

received the requisite consents of 70% of the eligible occupants is an issue

which stands concluded. In paragraph 14 of the Petition, the Petitioners have

themselves proceeded on the basis that an agreement was entered into

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between them and the developer based on the assurance that the property

would be developed under DCR 33(7) and/or DCR 33(9). The averment of

the Petitioners in paragraph 14 is thus:

"A final meeting was called on 19 April 2011 in which various representations were made. An agreement was arrived at between the Petitioners and Respondent No.4 based on representations and assurances given by the Respondent that

they shall develop the said property under Regulation 33(7) and/or 33(9) and each of the occupants/tenants would be provided with alternate premises in lieu of their existing premises."

In the earlier round of the proceedings before this Court (Writ Petition 1174 of

2011), a categoric statement was made before the Court "that the Petitioners

are not interested in challenging the development carried out by Respondent

No.4". That statement clearly postulated that the Petitioners to these

proceedings had accepted the authority of the Fourth Respondent to develop

the property. The grievance of the Petitioners was in regard to the area to be

allotted to them under the law in the newly constructed premises for which

they were relegated to the High Power Committee. On 7 April 2010, a report

was submitted by the Chief Officer of the Repair Board to the Director

(Engineering Services and Projects) who is also the Member Secretary of the

High Power Committee constituted under DCR 33(9) in which the position in

regard to the grant of irrevocable consent was summarised as follows :

"Regarding the irrevocable consents of total tenements/occupants

on the captioned property the details are shown as under:

                        Total    No.    of Irrevocable          Percentage
                        tenements/occupa Consents given
                        nts
    Cessed Building     618 Nos.               556 Nos.         89.96%
    Non        Cessed 46 Nos.                  44               90.36%
    Structures
    Total               664 Nos.               600              90.36%





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As seen above the Applicant M/s. Nish Developers Pvt. ltd. has submitted almost 90% irrevocable consents of tenants/occupants

on the captioned property and the same area verified by the Executive Engineer, F/South, Div/MBRRM."

No submission has been made before the Court on behalf of the Petitioners in

regard to the correctness of the aforesaid statement. The statement in the

report would indicate that the Fourth Respondent has the consents of nearly

90% of the tenants/occupants which were verified by the Executive Engineer,

F-South Division.

10.

Essentially, the grievance of the Petitioners both before the High

Power Committee and during the course of the submission in these

proceedings is that since Clause 17 of the agreement between the developer

and the proposed society (Exhibit A) envisaged that an increase in FSI prior to

the commencement of construction would enure to the benefit of occupants,

the Petitioners should be allotted accommodation in excess of 300 sq.ft. In

this regard, the High Power Committee in the course of its decision, has noted

that the amended provision of DCR 33(9) allows a higher FSI of four with the

intention of furthering integrated planning in Urban Renewal Schemes and to

generate more tenements in the housing stock inter alia for Project Affected

Persons (PAPs). Moreover, according to the Committee, no additional

benefit accrued to the Petitioners under a DCR 33(9) scheme save and

except provisions for a corpus fund and better planning standards due to

cluster approach. The occupants would be entitled to tenements

admeasuring a carpet area of 300 sq.ft. The additional FSI of one is required

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to be shared between the developer and the MHADA and Municipal

Corporation in the ratio stipulated in clause (5) of Appendix III-A. In the

affidavit filed by the Fourth Respondent, the manner in which the additional

FSI is to be shared with the Municipal Corporation and MHADA has been set

out. It has been stated that the distribution of additional FSI would take place

in the following manner:

Area to be constructed and handed 3,066.91 sq.mtrs. 46 Flats of 595

over free of cost in lieu of MSQ sq.ft.

    Reservation                  
    Area to be constructed and handed 11,954.80                  339 Tenements
    over free of cost in lieu of HD sq.mtrs.                     of   269 sq.ft.
    Reservation                                                  Carpet
                                

Area to be constructed and handed 9,952.95 sq.mtrs. 298 Flats of 300 over free of cost to MHADA for sharing sq.ft. carpet of surplus TOTAL AREA TO BE HANDED FREE 24,927.16 743 Tenements OF COST sq.mtrs. of different areas.

Additional Area due to DC Regulation 4,976.48 sq.mtrs.

33(9) to owner against construction of 25000 sq.mtr.

11. The High Power Committee has also noted that whereas the

Municipal Corporation and MHADA receive 67% of the additional FSI free of

cost in terms of built up area, 33% would enure to the developer in lieu of his

investment towards the provision of public amenities, construction cost, transit

cost and infrastructural expenses under the Scheme. This finding of the High

Power Committee has not been challenged during the course of the oral

submission urged on behalf of the Petitioners. No effort has been made to

demonstrate before the Court that this finding suffers from any error apparent.

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12. The stage at which the Petition has been filed is when the

construction of one rehab building of 23 floors has already been completed.

390 occupants have been allotted tenements against the execution of

individual agreements, a list whereof is appended at Exhibit 2 to the affidavit

in reply. Each of the Petitioners (save and except for the Seventh Petitioner

who is not eligible) is to be allotted alternate accommodation in accordance

with their entitlement. Counsel appearing on behalf of the Petitioners has

stated before the Court that the Petitioners were in occupation of individual

rooms admeasuring 120 sq.ft. in their old accommodation. As against this,

each of them is to be provided permanent alternate accommodation

admeasuring 300 sq.ft. in addition to which there is a provision of a dry

balcony admeasuring 75 sq.ft. Apart from the rehabilitation building which

has already been completed (for which an occupation certificate is received),

the construction of a composite building of 23 storeys is also complete (for

which the occupation certificate is still to be received). The construction of

the sale building has also commenced. In this view of the matter, on the

ground of delay alone, the Petitioners would be disentitled to the grant of

relief. However, we have also dealt with the submissions which were urged

on behalf of the Petitioners to determine as to whether there is any substance

in the grievance. No case for interference has been made out.

13. Before concluding the judgment, it would be necessary to note

that the Petition as originally filed was by seven Petitioners. The Petition has

been affirmed by the Seventh Petitioner acting as Constituted Attorney on

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behalf of the other Petitioners. Since the Petitioners claimed that they were

filing the Petition on behalf of 217 other persons, this Court in an order dated

29 November 2012 had observed that unless steps were taken to bring on

record the names of the other 217 persons by adopting a suitable procedure,

the Court will have to proceed on the basis that the Petition has been filed

only by seven persons. An unregistered Chamber Summons has been

tendered during the course of the hearing which Counsel appearing on behalf

of the Petitioners undertakes to get registered forthwith. The affidavit in

support of the Chamber Summons has once again been affirmed only by the

Seventh Petitioner. The Power of Attorney which is annexed to the Chamber

Summons has been executed only by eight persons among them being the

six Petitioners. In this view of the matter, it is evident that the grievance of the

Petitioners has been sought to be espoused only by seven Petitioners through

their constituted attorney, the Seventh Petitioner.

14. As regards the provision of a corpus fund, Clause 16 of Appendix

III-A stipulates that it is to be created by the developer to take care of the

maintenance of the building for a period of ten years, to be decided by the

High Power Committee constituted under Clause 18 of Appendix III-A of DCR

33(9). The HPC has directed the Committee under DCR 33(9) to take a

decision within four weeks of the date of the order. In the affidavit in reply

filed by the developer it has been stated that the Fourth Respondent shall

make a provision for a corpus fund as may be decided by the High Power

Committee, in the event that the direction is more than what is agreed by the

proposed Society. An undertaking to that effect has been tendered before the

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Court on behalf of the Fourth Respondent. Counsel appearing on behalf of the

Fourth Respondent has also undertaken before this Court that individual

agreements shall be entered into with all the Petitioners as indeed with all

other occupants who are eligible.

15. For the aforesaid reasons, we are of the view that there is no

merit in the Petition. The Petition shall accordingly stand dismissed. There

shall be no order as to costs.

16.

For the reasons indicated above, the Chamber Summons also

stands dismissed.

( Dr.D.Y.Chandrachud, J.)

( A.A.Sayed, J. )