Bombay High Court
Sanjary Co-Op-Hsg.Soc And 2 Ors vs Municipal Corporation Of Greater ... on 10 March, 2016
Bench: V.M. Kanade
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BDPPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.630 OF 2015
1. Sanjary Co-op. Hsg. Soc. )
(Proposed) )
Sewree Cross, Road, )
Near Sewree Dry Fish Market, )
R.A. Kidwai Marg, Sewree (West), )
Mumbai - 400 015 )
)
2. Aslam Khan and Abdul Rehman)
Chief Promoter, ig )
Sanjary Co-op. Hsg. Soc. )
(Proposed) )
Sewree Cross Road, )
Near Sewree Dry Fish Market, )
R.A. Kidwai Marg, Sewree (West), )
Mumbai - 400 015 )
)
3. Feroz Abdul Sattar Dharajiwala )
Secretary, )
Sanjary Co-op. Hsg. Soc. )
(Proposed) )
Sewree Cross Road, )
Near Sewree Dry fish Market, )
R.A. Kidwai Marg, Sewree (West), )
Mumbai - 400 015 ) ....... Petitioners.
V/s
1. Municipal Corporation of )
Greater Mumbai, )
Through its Municipal )
Commissioner, Mahapalika Marg, )
Mahapalika Building, )
V.T. Mumbai 400 001 )
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)
2. Dy. Municipal Commissioner, )
(Zone-II), M.C.G.M., )
F/South Division, Parel, )
Mumbai - 400 012 )
)
3. Dy. Municipal Commissioner )
(Improvements), M.C.G.M., )
Mahapalika Marg, Mahapalika )
Building, V.T. Mumbai 400 001 )
)
4. Asstt. Commissioner )
(Estates),M.C.G.M., ig )
MCGM Market Office Bldg., )
FP No.232, TPS-III, )
Mapalawadi CHS Area, )
Sitaram Keer Marg, )
Matunga (West), )
Mumbai - 400 016. )
)
5. Asstt. Commissioner )
F/South, Jaggnath Bhatnkar Marg,)
Parel, Mumbai - 400 012 )
)
6. Shankala Dream Realtors )
A.P. Swati Manor, Behind )
Cambrige Shop, N.C. Kelkar Road, )
Dadar (W), Mumbai - 400 028 )
)
7. Rubberwala & Royal Developers)
Rubberwala Shelters, )
Opp. Agripada Police Station, )
Dr. A.N. Road, )
Mumbai - 400 011 ) ..... Respondents.
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CHAMBER SUMMONS (L) NO.363 OF 2014
IN
WRIT PETITION NO.630 OF 2014
Maharashtra Rajya Machhimar )
Sahakari Sangh Ltd. ) .....Applicant/Intervenor
In the matter of
Sanjary Co-op. Hsg. Soc. )
(Proposed) and Others ) .....Petitioners.
V/s
Municipal Corporation of )
Greater Mumbai & Others ) ..... Respondents.
WITH
WRIT PETITION NO.2783 OF 2015
1. Sewri Cross Road Residents )
Welfare Association, )
Through its President )
Mr. Ahmed Rafique Dadan )
A registered association, )
Having its office at BMC Chawl )
No.6, Sewri Cross Road )
Sewri (W), Mumbai 400015 )
)
2. Mohammad Salim Sheikh )
Adam, aged 53 years, )
Secretary of Petitioner No.1, )
BMC Chawl No.6, room No.71, )
Dry fish market, Sewri Cross )
Road, Mumbai - 4000015 ) ..... Petitioners.
V/s
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1. Municipal Corporation of )
Greater Mumbai )
Through the Commissioner, )
Mahapalika Building, )
Mahapalika Marg, Mumbai 1 )
)
2. Royal Developers, )
a partnership Firm, having its )
office at 101, A Wing, Srushti )
Apartment, G.D. Ambekar Marg, )
Parel, Bhoiwada, Mumbai-400012 )
)ig
3. Rubberwala Developers )
Rubberwala Shelters, )
Opp. Agripada Police Station, )
Dr. A.N. Road, Mumbai 11. ) ....Respondents.
----
Mr. S.C. Naidu alongwith Mr. Aniket Poojari i/b C.R. Naidu & Co. for
the Petitioners in Writ Petition No.630 of 2015.
Mr. Mihir Desai, Senior Counsel alongwith Mr. Chetan Mali for the
Petitioner in Writ Petition No.2783 of 2015
Mr. S.U. Kamdar, Senior Counsel with Ms. Shobha Ajitkumar for
Respondent Nos. 1 to 5/BMC in Writ Petition No.630 of 2015 and for
Respondent No.1/BMC in Writ Petition No.2783 of 2015.
Mr. Sanjay Jain alongiwith Mr. Karan Vyas for Respondent No.6 in
Writ Petition No.630 of 2015.
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Mr. Pravin Samdhani, Senior Counsel alongwith Mr. Chetan Kapadia,
Mr. Pratik Sakseria, Mr V.K. Merchant i/b Kishore Thakordas & Co. for
Respondent No.7 in Writ Petition No.630 of 2015 and for Respondent
Nos. 2 and 3 in Writ Petition No.2783 of 2015.
Mr. S. Wassoodew for Applicant/ Intervenor- Maharashtra Machhimar
Sangh Ltd. in Chamber Summons (L) No.363 of 2014.
--- ig CORAM: V. M. KANADE &
B.P. COLABAWALLA, JJ.
DATE: 10th March, 2016
JUDGMENT: (Per V.M. Kanade, J.)
1. Heard the learned Counsel appearing on behalf of the Petitioners
in Writ Petition No.630 of 2015, the learned Senior Counsel for the
Petitioners in Writ Petition No.2783 of 2015, the learned Senior
Counsel for Respondent No.7 in Writ Petition No.630 of 2015 and for
Respondent Nos. 2 and 3 in Writ Petition No.2783 of 2015 as also the
learned Senior Counsel for Respondent Nos. 1 to 5/Corporation in
Writ Petition No.630 of 2015 and for Respondent No.1/Corporation in
Writ Petition No.2783 of 2015, the learned Counsel for Respondent
No.6 in Writ Petition No.630 of 2015 and the learned Counsel for the
Applicant/Intervenor in Chamber Summons (L) No.363 of 2014 in
Writ Petition No.630 of 2015.
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2. Since the Petitioners in both the aforesaid Writ Petitions are
aggrieved by the same impugned orders, both these Petitions are being
disposed of by a common judgment.
3. Petitioners in Writ Petition No.630 of 2015 are seeking the
following reliefs:-
"(a) That this Hon'ble Court be pleased to
issue a Writ in the nature of Certiorari or
any other appropriate writ or Order or
Direction under Article 226 of the
Constitution of India directing the
Respondent Nos. 1 to 4 and call for the files
and records culminating in impugned
communication No.A.C./Estates/12534/A.O.
Soc.-1/AE(Imp.)-II dated 22nd August 2014
and at Exhibit-NN hereto and after
examining the legality, validity and propriety
be pleased to quash and set aside the said
communication;
(b) That this Hon'ble Court be pleased to
issue a Writ of Certiorari or a Writ in the
nature of Certiorari or any other appropriate
writ or Order or Direction under Article 226
of the Constitution of India directing the
Respondent Nos. 1 to 4 and call for the files
and records culminating in impugned
communication No. A.C. /Estates /
11509/A.O. Soc.-2AE(I)-I dated 12th August
2014 and at Exhibit-MM hereto and after
examining the legality, validity and propriety
be pleased to quash and set aside the said
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Annexure-II in respect of Plots C.S. Nos.
231(Part), 446, 450, 453, 454, 455, 456,
457 to 472, 1/472, 473, 474, 475, 699 &
776 (Patta - B);
(c) That this Hon'ble Court be pleased to
issue a Writ of Mandamus or a Writ in the
nature of Mandamus or any other
appropriate writ or Order or Direction under
Article 226 of the Constitution of India
directing the Respondent Nos. 1 to 4 to
scrutinize the redevelopment proposals
dated 25th April, 2006 and 18th July 2008
submitted by Petitioner No.1 society and
take all necessary steps for issuing
Annexure-II, in favour of Petitioner No.1
society in respect of Plot No. CS
Nos.231(Part), 446, 450, 453, 454, 455,
456, 457 to 472, 1/472, 473, 474, 475, 699
& 776 (Patta - B) within 30 days from date
of order;
(d) That Pending the hearing and final
disposal...
(e)........
(f)........."
4. Petitioners in Writ Petition No.2783 of 2015 are seeking the
following reliefs:-
"a) For a Writ of Certiorari or a Writ, order or
Direction in the nature of Certiorari or any other
appropriate writ, order or direction quashing
and setting aside the Annexure II dated
12.8.2014 and permission dated 26.8.14
alongwith all other permissions which may have
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been granted for developing Patta No.B, Sewri
Cross Road, F South Division, Sewri (West),
Mumbai - 400 015.
(b) Pending the hearing and final disposal....
(c).......
(d).......
(e)........"
5. Brief facts which are relevant for the purpose of deciding these
Petitions are as under:-
6. Respondent - Corporation owns a large parcel of land at Sewree
Mumbai, which is known as Municipal Estate, Sewree. It is divided in
to three distinct Pattas. Thus, there are three Pattas viz. 'A', 'B' and 'C'.
Both these Petitions are concerned with Patta 'B' lands.
7. In Writ Petition No.630 of 2015, it is contended that Petitioner
No.1 - Sanjary Co-operative Housing Society (Proposed) consisted of
occupants of structures located on the properties owned by the
Municipal Corporation of Greater Mumbai, known as Patta 'B'
properties, whereas Petitioner No.1 in Writ Petition No.2783 of 2015
was also a proposed Society of occupants which was formed in the
year 2004 and is known as Sewri Cross Road Residents Welfare
Association. There are two other Societies on the said lands viz. Green
Maharashtra Co-operative Housing Society and Eklas Co-operative
Housing Society. Each of these Societies had given a proposal for
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redevelopment under Regulation 33(7) of the Development Control
Regulations, 1991 ("D.C. Regulations") and each Society claimed that
it had obtained consent of 70% of its members.
8. In Writ Petition No.630 of 2015, Petitioners' case was that
their Society was established first in 2004 and their application for
allotment was not being processed by the Corporation. They,
therefore, filed a Writ Petition No.1292 of 2009 and Division Bench of
this Court in the said Writ Petition directed the Corporation to process
their application. The Corporation, pursuant to the directions given by
this Court, processed all the applications and came to the conclusion
that Respondent No.7 had established that it had obtained the consent
of 70% members and therefore permitted Respondent No.7 to
redevelop the entire plot known as Patta 'B'.
9. Petitioners, being aggrieved by the said impugned orders have
filed both these Petitions, challenging the orders and decisions passed
by the Corporation.
10. Mr. Naidu, the learned Counsel appearing on behalf of the
Petitioners in Writ Petition No.630 of 2015, submitted that the
directions given by this Court have not been scrupulously followed by
the Corporation. He submitted that Petitioner No.1 - Sanjary Co-
operative Housing Society (Proposed) had filed consent of 70% of its
members and the consent given by some of the members was not
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scrutinized. Secondly, it was submitted that it was incorrectly
observed in the impugned order that the Developer of Sanjary Co-
operative Housing Society had withdrawn its proposal. He submitted
that despite directions given by this Court to Respondent No.7 and to
the Corporation to produce the letter of withdrawal of proposal by
Developer of the said Society, no such letter was produced. He
submitted that the Petitioners came to know about the said alleged
withdrawal only after the impugned order was communicated to them.
He submitted that the Society was entitled to redevelop the said plot
and an opportunity ought to have been given to the Petitioners to
establish their 70% strength. He submitted that therefore the record
was fabricated by the Corporation only in order to favour Respondent
No.7. He then pointed out that the order could not have been passed
in favour of Respondent No.7 because, firstly, Respondent No.7 did
not have the adequate number of members with them and, secondly,
Petitioner No.1 had submitted 178 consent letters in the new format
and, therefore, re-development rights could not have been given in
favour of Eklas on the basis of the impugned communication dated
22/08/2014. It was then submitted that the consent tendered by the
Petitioners was prior in point of time and the consent was irrevocable
and hence the fresh consent could not have been accepted on
18/06/2014. It was again submitted that the Corporation had
wrongly held that Respondent No.6 had withdrawn its proposal. It
was submitted that this remark was false and this was evident from
the Petitioners' letters dated 28/8/2009, 15/2/2009, 24/2/2009 and
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15/6/2010.
11. On the other hand, Mr. Samdhani, the learned Senior Counsel
appearing on behalf of Respondent No.7, submitted that the
members of the Committee which had processed the applications of
the proposed Societies were high ranking Officers working in the
Corporation and no allegations of malafide were levelled against any
of the members of the said Committee. He submitted that the said
Committee scrutinized the applications according to the norms laid
down by the Corporation in its Circular dated 05/05/2012. He
submitted that the Scheme under Regulation 33(7) envisaged that
only tenants of Municipal Corporation could submit the Scheme under
Regulation 33(7). He submitted that the Scheme submitted by the
Sanjary Co-operative Housing Society and other Societies consisted of
occupants who were not tenants of the Municipal Corporation and, as
such, the consent given by such unauthorized occupants who were not
tenants of the Corporation could not be taken into consideration for
the purpose of calculating 70% members who had given their consent.
He submitted that Respondent No.7 had established that it had
obtained consent of 70% of tenants of Municipal Corporation and
therefore permission to redevelop was correctly granted to Respondent
No.7. He invited our attention to a detailed affidavit-in-reply filed by
Respondent No.7 and pointed out that, in fact, Petitioner No.1 -
Sanjary Co-operative Housing Society was aware about withdrawal of
the proposal by their Developer in 2009 itself. He invited our
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attention to the letter written by the Petitioners in which there is a
clear reference of withdrawal of proposal by their Developer.
12. Mr. Kamdar, the learned Senior Counsel appearing on behalf of
the Corporation, submitted that the entire procedure had been
followed and all the proposals were scrutinized as directed by this
Court. He submitted that after scrutinizing all the proposals, it was
found that Respondent No.7 had obtained consent of 70% of members
and that other Societies had amalgamated with Respondent No.7. He
submitted that even those occupants who were not tenants of the
Corporation but were unauthorized slum dwellers on the property
would be entitled to be rehabilitated in accordance with the Scheme.
He submitted that Respondent No.7 had given proposal under DCR
33(7) and DCR 33(9).
13. After having heard all the parties at length, we are of the view
that there is no substance in the submissions made by Mr. Naidu, the
learned Counsel appearing on behalf of the Petitioners in Writ Petition
No.630 of 2015. The impugned order by which Annexure-II was
finalized clearly reveals that thorough investigation was made by the
Committee which consisted of high ranking Officers of the Municipal
Corporation. So far as redevelopment under DCR 33(7) is concerned,
only tenants of the Municipal Corporation are entitled to give their
consent for redevelopment under the Scheme. The record clearly
indicates that after scrutinizing the consent given by the Petitioners
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and the other Societies, the Committee came to the conclusion that
only Respondent No.7 had established that it had obtained consent of
70% of the municipal tenants. Large number of members of the
Petitioner No.1 - Sanjary Co-operative Housing Society were slum
dwellers and unauthorized occupants and therefore they were not
eligible under the Scheme under DCR 33(7) of the D.C. Regulations.
14. It was very strenuously urged by Mr. Naidu, the learned Counsel
for the Petitioners in Writ Petition No.630 of 2015 that the Committee
which had scrutinized the applications had wrongly observed that the
Developer of Petitioner No.1 - Sanjary Co-operative Housing Society
had withdrawn its proposal. He submitted that the order permitting
withdrawal of the proposal by the Developer of Petitioner No.1 was
never produced before this Court. This submission is without any
substance. There is material on record which indicates that, firstly,
Petitioner No.1 - Sanjary Co-operative Housing Society was aware that
their Developer had withdrawn its proposal in 2009. In a letter
written by Petitioner No.1 - Sanjary Co-operative Housing Society,
there is a clear reference of the withdrawal of the proposal by their
Developer. It is therefore not now open for the Petitioners to contend
that their Developer had never withdrawn the proposal. It is pertinent
to note that Developer of the Petitioners who is Respondent No.6 has
not filed affidavit-in-reply, stating therein that it had not withdrawn
the proposal. Respondent No.6, therefore had advisedly not made any
statement on oath. Apart from that, the Committee, after scrutinizing
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all proposals, came to the conclusion that the Petitioners had not
established that 70% of the members/tenants were with them and not
with Respondent No.7. The Committee, therefore, had rightly
observed that the proposal of the Petitioners was recorded. Apart
from that, all the questions which are raised by the Petitioners are
disputed questions of fact which cannot be decided by this Court while
exercising its writ jurisdiction under Article 226 of the Constitution of
India. This Court therefore only will have to see whether the
procedure prescribed under the Circular was followed by the
Committee. Perusal of the impugned order clearly reveals that all
steps were taken to scrutinize all applications and this verification was
carried out at various levels and only thereafter final Annexure-II was
issued and the final order was passed in favour of Respondent No.7
15. We therefore do not see any infirmity in the order passed by the
Committee of the Corporation. We are not inclined to interfere with
the said order while exercising our writ jurisdiction under Article 226
of the Constitution of India.
16. Writ Petition No.630 of 2015 is accordingly dismissed.
17. So far as Writ Petition No.2783 of 2015 is concerned, the
Petitioners in the said Writ Petition have challenged Annexure-II
which was issued. It is pertinent to note that the Petitioners in the
said case had given consent and were signatories to the said consent
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given to the successful Developer. A detailed affidavit-in-reply has
been filed by the Respondents in the said Petition and the allegations
made by the Respondents in the said affidavit-in-reply against the
Petitioners have not been controverted by the Petitioners by filing
rejoinder. There is therefore no substance in the submissions made by
Mr. Mihir Desai, the learned Senior Counsel appearing on behalf of
the Petitioners in the said Petition.
18. Writ Petition No.2783 of 2015 is therefore dismissed in limine.
19. Applicant - Maharashtra Rajya Machhimar Sahakari Sangh Ltd
has taken out Chamber Summons (L) No.363 of 2014 in Writ Petition
No.630 of 2015 for impleading the Applicant/Intervenor as party
respondent in the said Petition. Applicant/Intervenor has already
filed a suit in the City Civil Court and the said suit is pending.
Applicant/Intervenor can always pursue its remedy which is available
to it and therefore Applicant/Intervenor is not a necessary and
property party in the said Petition. Chamber Summons is accordingly
dismissed.
20. Both these Writ Petitions and the Chamber Summons are
disposed of.
(B. P. COLABAWALLA, J.) (V.M. KANADE, J.)
