Bombay High Court
Nehru Nagar Soubhagya ... vs State Of Maharshtra And 2Ors on 5 May, 2016
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2428 OF 2013
1. Nehru Nagar Soubhagya Co- ]
operative Housing Society ]
registered under the provisions of ]
the Maharashtra Co-operative ]
Societies Act, 1960, having its office ]
at Building No. 129, Nehru Nagar, ]
Kurla (East), Mumbai - 400024. ]
]
2. Bhaskar V. Sonavane,
ig ]
An Adult, Indian Citizen, Secretary ]
of Petitioner No. 1 having his office ]
at Building No. 129, Nehru Nagar, ]
Kurla (East), Mumbai - 400024. ] ..Petitioners.
VERSUS.
1. State of Maharashtra ]
through its Department of Housing ]
& Special Assistance & Urban ]
Development, having its office at ]
Mantralaya, Mumbai - 400032. ]
]
2. Maharashtra Housing & Area ]
Development Authority, a Statutory ]
Authority consitutted under the ]
provisions of the Maharashtra ]
Housing and Area Development Act, ]
1976, having its office at Griha ]
Nirman Bhavan, Bandra (East), ]
Mumbai - 400051. ]
]
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3. Mumbai Housing & Area ].
Development Board, a Board ]
constituted under the provisions of ]
the Maharashtra Housing and Area ]
Development Act, 1976, having its ]
office at Griha Nirman Bhavan, ]
Bandra (East), Mumbai - 400051. ] ..Respondents.
Dr. V. V. Tulzapurkar, Senior Advocate with Mr. S. U. Kadam and
Ms. Apeksha Sharma i/b Kadam & Co., for the Petitioner.
Ms. Geeta Shastri, AGP for Respondent No.1.
Ms. Phiroz Ankalesaria, Senior Advocate with Mr. P. G. Lad and
Aparna Murlidharan for Respondent Nos.2 and 3.
Coram : RANJIT MORE &
SMT. ANUJA PRABHUDESSAI, JJ.
Date of reserving : 10th February 2016.
Date of Pronouncement : 5th May 2016.
Judgment [Per Ranjit More, J.] :
1. Rule. Rule is made returnable forthwith. Counsel
appearing on behalf of the Respondents waive notice. With the
consent of the learned Counsel appearing for the respective
parties, matter is heard finally and is being disposed of at the
stage of admission itself.
2. Heard the learned Counsel appearing for the
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respective parties.
3. By this petition filed under Article 226 of the
Constitution of India, the Petitioner is seeking a direction that the
discretion to select between Option Nos.(i) and (ii) contained in
Clause (2)(c) of DCR 33(5) rests with the concerned society/
developer undertaking the redevelopment schemes under DCR
33(5). The Petitioner has also prayed for quashing and setting
aside of :
[a] Resolution bearing No.2849 dated 8th September 2010
passed by Respondent No.3;
[b] Decision No.6507 dated 20th September 2010 taken by
Respondent No. 2;
[c] Circular dated 22nd May 2012 issued by Respondent No.2;
and
[d] The Offer Letter dated 16th September 2013 issued in
favour of the Petitioner by Respondent No.3.
4. The case of the Petitioner as can be discerned from
the writ petition is as under :
That, Petitioner No.1 is the co-operative housing
registered under the provisions the Maharashtra Co-operative
Societies Act, 1960. Petitioner No.2 is the member of the
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Petitioner No.1-society and presently the honorary secretary of
the society. The society is the lessee of the plot of land belonging
to Respondent Nos.2 and 3 and the owner of the building
standing thereon. Respondent No.2 is the statutory authority
constituted under the provisions of the Maharashtra Housing and
Area Development Act, 1976 [for short "the MHADA Act"] and
Respondent No.3 is the Board constituted under the provisions of
section 18 of the MHADA Act.
. That, Respondent No.2 is the owner of the plot of land
bearing Survey No.229 and 267, CTS No.2(Part) of village : Kurla,
District Mumbai Suburban admeasuring around 725 sq. meters
situated at Nehru Nagar, Kurla (East), Mumbai [Hereinafter
referred to as "the said land"]. There is a building standing on the
said land, being Bldg. No.129 [Hereinafter referred to as "the said
building"]. The said building is constructed by Respondent No.2
around 60 years back under the subsidized industrial housing
scheme formulated by the Government of India for providing
rental housing to the industrial workers. The members of
Petitioner No.1-Society were occupying the tenements in the said
building on tenancy basis, however, by executing a deed of sale
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dated 25th May 2010 in favour of Petitioner No.1, Respondent
No.2 has sold the said building to Petitioner No.1 and further by
the lease deed of the even date, Respondent No.2 has granted
lease of he said land to Petitioner No.1 for a period of 90 years.
. That, the members of Petitioner No.1 belong to the
lower income group category, i.e., LIG. Since the said building is
in dilapidated and dangerous condition and its complete
reconstruction was necessary for the safety, security and well-
being of the occupants, Petitioner No.1 decided to redevelop the
same by implementing redevelopment scheme under Regulation
No.33(5) of the Development Control Regulations for Greater
Mumbai, 1991 [for short, "DCR 33(5)"]. Accordingly, on 21st
September 2011, Petitioner No.1 submitted a proposal to
Respondent No.3 for obtaining NoC to undertake the
redevelopment of the said land under DCR 33(5). It is the case of
the Petitioner that they expressly stated in its proposal that it has
opted for sub-clause (2)(c)(ii) of DCR 33(5), viz., the retention of
additional built-up area over and above the existing built up area
after paying premium in lieu thereof to Respondent No.3. It is
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further case of the Petitioner that in the month of January 2011
they received letter from Respondent No.1 stating that their said
proposal was incomplete as some papers were not submitted
with it. The Petitioner thereafter provided all the requisite papers
and resubmitted the proposal to Respondent No.3 in January
2011 itself. However, the Petitioner's proposal was not processed
by Respondent No.3;
.
That, in our around July 2012, the Petitioner learnt
following things :
[a] that, on 24th February 2009 Respondent No.3-Board has
passed a resolution bearing Resolution No.6383 whereby it has
arrogated the power of exercising options given under clause
2(c) of DCR 33(5). The said resolution provides that if additional
area is less than 1000 sq. mtrs. (carpet), then MHADA can
exercise either of the options provided under clause 2(c), but if
such additional area is more than 1000 sq. mtrs. (carpet), then
MHADA will take it in the form of constructed area only;
[b] that, on 5th May 2009, Respondent No.2-Authority has
passed a resolution being Resolution No.6397 whereby it has
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accepted with some modifications the resolution passed by the
Board, being Resolution No. 6383. By this resolution,
Respondent No. 2 has laid down that Resolution No. 6383
passed by Respondent No. 3 will be applicable in the city of
Mumbai, and in case of the MHADA colonies in the suburban
areas both the options will be available and choice will be with
the concerned society.
[c]
that, on 8th September 2010, Respondent No.3-Board has
passed another resolution, being Resolution No. 2849 whereby
it gave complete go-bye to MHADA's Resolution No.6397 and
provided that redevelopment proposals under DCR 33(5) would
be processed only under sub-clause (ii) of Clause 2(c), i.e.,
MHADA's share in the additional FSI will be accepted in the form
of housing stock only.
[d] that, in its meeting dated 20 th September 2010, MHADA
took a decision approving the resolution passed by Respondent
No.3, i.e., Resolution No.6397, subject to approval thereof by
the Urban Development Department of Government of
Maharashtra. However, MHADA did not wait for the approval
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from the UDD and thus the resolution become effective from
20th September 2010.
[e] that, on 22th May 2012 MHADA issued a circular directing
that for the plot size less than 1000 sq. mtrs, where the society
has already been granted NoC under old DCR 33(5) on premium
basis, the revised NoC for consumption of 2.5 FSI shall also be
granted under sub-clause (c)(ii) of Clause (2) of DCR 33(5). In
the Circular, it is further provided that the aforesaid direction
would be applicable only in respect of such MHADA owned plots
for which the societies have already been granted
redevelopment NoCs under the old DCR 33(5) prior to the
appointed date, i.e., 20th September 2010.
[f] that, MHADA has refused to approve the Petitioner's
proposal for the reason that the Petitioner has opted to pay
premium in lieu of MHADA's share in the additional built up
area which is not in conformity with MHADA's resolution dated
20th September 2010 which states that MHADA would be
entitled to the additional housing stock.
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. In above set of facts and circumstances, by filing a
writ petition in this Court, being Writ Petition No.2138 of 2012,
the Petitioner had challenged Resolution No.2849 dated 8 th
September 2010 passed by Respondent No.3, Decision No.6507
dated 20th September 2010 taken by Respondent No.2 and the
Circular dated 22nd May 2012 issued by Respondent No.2. The
Division Bench of this Court vide order dated 12th July 2013
disposed of the said writ petition giving directions to Respondent
Nos.2 and 3 to decide the Petitioner's proposal dated 21 st
September 2010 "in accordance with law". The Court, however,
kept open all the rights and contentions between the parties
including and especially as regards the interpretation of DCR
33(5).
. That, in pursuant of the order dated 12 th July 2013
passed by this Court in Writ Petition No.2138 of 2012,
Respondent No.3 decided the Petitioner's proposal and issued
Offer Letter dated 16th September 2013, whereby the Board has
demanded housing stock admeasuring 207.70 sq. mtrs (built up
area) as MHADA's share in the additional FSI. It is the case of the
Petitioner that the computation of additional area was made on
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the incorrect basis that the scheme was for the EWS category and
as such each member's entitlement is for 27.88 sq. mtrs. (carpet
area), whereas the scheme being for LIG, each member's
entitlement is for 45.00 sq. mtrs. (carpet area).
5. Dr. Tulzapurkar, the learned Senior Counsel appearing
for the Petitioners submitted that the discretion to exercise the
option provided under sub-clause (c) of clause (2) of DCR 33(5)
vests with the concerned Society / Developer / Occupier. He
submitted that under Resolution No.6397 dated 5 th May 2009 the
choice was made available to the concerned society under clause
(2)(c) of the DCR 33(5) in case of the MHADA colonies in suburban
areas. This provision with regard to exercise of choice is
consistent with the Rules and Regulations framed under the
MHADA Act and by the impugned Resolution, Decision and
Circular, this choice is taken away from the society, which is
contrary to the Rules and Regulations framed under the MHADA
Act.
. Dr. Tulzapurkar also submitted that in view of the
subsisting contract between the MHADA and the Petitioner-
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Society, ie. Lease-Deed dated 25th May 2010, especially clause
2(m) thereof, MHADA is dis-entitled to contend that the discretion
to exercise the option under sub-clause (c) of clause (2) of DCR
33(5) vests in it.
. He then submitted that the impugned resolution is
contrary to the law and is not sustainable in law as the same is
not in conformity with the MHADA Rules and Regulations He also
urged that the impugned circular is the offshoot of the impugned
resolution and since the impugned resolution is not sustainable
in law, the impugned circular too cannot sustain. It is the
contention of the Petitioner that impugned circular makes
arbitrary and unfair distinction between the proposals which
were sanctioned as per DCR 33(5) on premium basis on or before
20th September 2010 and the proposals which were submitted
after the said appointed date. Thus, according to Mr.
Tulzapurkar, the impugned circular is violative of Article 14 of the
Constitution of India.
. Dr. Tulzapurkar then submitted that the Offer Letter
has its basis in impugned Resolution which is not at all
sustainable and therefore, the Offer Letter is also liable to be
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quashed and set aside. In this regard, he submitted that since
the Petitioner's scheme is for LIG, members of the Petitioner are
entitled for carpet area of 45.00 sq. mtrs, however in the
impugned Offer Letter, the board has computed the rehab area
at the rate of 33.45 sq. mtrs. (built up area), which in fact works
out to carpet area of 27.88 sq. mtrs. He submitted that this
amounts nothing but to confiscating the area lawfully belonging
to the Petitioner's members, which is impermissible under the
law.
6. Ms. Ankalesaria, the learned Senior Counsel appearing
for Respondent Nos.2 and 3 vehemently opposed the petition.
She submitted that sharing of the additional FSI is the rule
prevailing under the DCR 33(5) and the premium is an alternative
only in cases of grave hardship. If premium is considered as the
prevailing rule, then, the purpose and object of DCR 33(5) of
providing larger size tenements to the weaker sections of the
society and to create more housing stock for the homeless would
be frustrated. She submitted that the impugned resolution,
decision and circular are the administrative guidelines of the
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Board; they do not create nor confer any right in favour of the
Petitioner and as such cannot be considered against the statutory
provisions of the DCR enacted under section 152 of the MRTP Act.
It is her further contention that administrative guidelines are not
amenable to the writ jurisdiction under Article 226 of the
Constitution of India. The reliefs claimed in the present writ
petition are not tenable in law and if such reliefs are granted it
would defeat the purpose and object of DCR 33(5), which is to
provide housing for the weaker sections of the society and it is
the fundamental right of such weaker section, which would be
violated.
. She further submitted that as per Resolution No. 6383
dated 24th February 2009, the MHADA has determined that the
minimum area to be allotted to EWS/LIG would be 300 sq. ft or
the existing carpet area, whichever is larger. The Government
Resolution dated 26th August 2009 prescribes the minimum area
to be allotted to LIG category would be 45 sq. mtrs and not more
than that, even when his existing area of occupation is much
larger. Thus, the said Government Resolution does not generally
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fix the maximum allottable area for LIG category at 45 sq. mtrs.
It is also submitted on behalf of the MHADA that the Petitioner's
reliance on Resolution No.6383 dated 24 th February 2009 is
misplaced and the said Resolution is an administrative decision
and does not prevail upon the Government Resolution dated 26 th
August 2009 prescribing the maximum area to the LIG Category
at 45 sq. mtrs. It is specific case of MHADA that its order dated
16th September 2003 showing he maximum area of 300 sq. fts
(free of cost) to each occupant, who were earlier living in
tenements of a smaller size, i.e., 262 sq. fts. and accordingly
computed the surplus area of 207.70 sq. mtrs to be surrendered
to the Board.
. Ms. Ankalesaria further submitted that the Petitioners
are being used as front by the Developer appointed by them and
in fact the interest of the builder concerned is represented by the
Petitioner-Society. She submitted that MHADA has showed its
readiness and willingness to consider the Petitioner's proposal in
accordance with new DCR 33(5) which came into force with effect
from 8th October 2013. According to the learned Counsel
appearing for MHADA if the Petitioner's proposal is considered in
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accordance with new DCR, its members would get larger rehab
area which is more than what they are claiming in the present
petition. But this better proposal is not acceptable to the
Petitioner. On the basis of these submissions, Ms.Ankalesaria
submitted that the petition is without any merit and the same
deserves to be dismissed.
7. Regulation No. 33 of Development Control Regulation
for the Greater Mumbai, 1991 prescribes different development
and rehabilitation schemes that can be undertaken within the city
of Mumbai and its suburbs, including that all of the old building
and slums. Regulation No.33(5) of DCR as introduced on 6 th
December 2008 provides for development and redevelopment of
MHADA buildings. For ready reference, the relevant provision of
DCR 33(5) is reproduced hereinbelow :
"(5) Development / Redevelopment of
Housing Schemes of Maharashtra Housing
and Area Development Authority :-
(1) The FSI for a new constructed tenements
schemes of Low Cost Housing Schemes on vacant
plots for Economically Weaker Section, Low
Income Groups and Middle Income Groups of the
MHADA having at least 60% built-up area in
the form of tenements under EWS, LIG and MIG
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categories shall be 2.50.
(2) For redevelopment of existing housing
schemes of MHADA, undertaken by the MHADA
departmentally or jointly with societies /
occupiers of buildings or by housing
societies / occupiers of buildings or by
lessees of MHADA of by the developer, the FSI
shall be as under :-
(a) Total permissible FSI shall be 2.5 on
gross plot area.
(b) The incentive FSI admissible against
the FSI required for rehab shall be as
under -
(i) In Island City, for the area upto
4,000 s. mt. the incentive FSI
admissible will be 50%.
(ii) In Island City, for the area above
4,000 sq. mt. the incentive FSI
admisible will be 60%.
(iii) In suburban area, for the area
upto 4,000 sq. mt, the incentive
FSI admissible will be 60%.
(iv) In the suburban area, for the area
above 4,000 sq. mt. the incentive
FSI will be 75%.
(c) In the redevelopment scheme either
(i) difference between 2.5 FSI and the FSI
required for rehab + incentive shall
be shared between MHADA and society /
developer in the ratio of 2 : 1; OR
(ii) for additional built up area over and
above the permissible FSI as per DCR
32, MHADA shall charge premium at the
rate decided by Government in Housing
Department from time to time."
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8. The issue involved in the present writ petition is about
the interpretation of sub-clause (c) of clause (2) of DCR 33(5).
Thus, for permitting such redevelopment, MHADA under sub-
clause (c) of Clause (2) of DCR 33(5) gets the benefit in either of
the following two forms :
[a] share in incentive FSI in the prescribed
ratio. MHADA gets housing stock from the
society/ occupants/ builders ;
ig OR
[b] premium on the additional built up area
over and above the existing built up area/
FSI. Premium is paid at the rate decided by
the Government in Housing Department.
. Clause (2)(c) of DCR 33(5) is, however, silent about
who is entitled to exercise the above option.
9. Respondent Nos.2 and 3 in pursuance of its delegated
powers have framed policy by passing resolutions from time to
time. The first of such resolutions on the subject was passed by
Respondent No.2 on 24th February 2009, being Resolution No.
6383. Clause (b) of the said Resolution reads thus :
"(b) in case of proposals received if area
becoming available under Rule 2(c)(i) is 1000
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sq. mtrs. or less, then MHADA can use the
option of accepting premium in respect of the
balance carpet area as per regulation
No.2c(ii). In cases, where carpet area more
than 1000 sq. mtrs. becomes available, it will
be necessary that such carpet area should be in
the form of constructed tenements as per the
plans approved by the MHADA."
. Reading of this Resolution makes it abundantly clear
that Respondent No.3 was entitled to exercise the option
provided therein.
10.
Respondent No.2 thereafter on 5th May 2009 passed
Resolution No. 6397, approving the Resolution of Respondent No.
2, bearing No. 6383, subject to following modifications :
(I) The said Resolution No.6383 will be
applicable in respect of MHADA colonies
situated within the city of Mumbai;
(II) In respect of MHADA colonies situated in
Mumbai Suburban area, sanction was
granted to take action in pursuance to
both the alternatives under sub-clause
(c) of Clause (2) of the Regulation No.
33(5). Both the alternatives available
under the said rule will be available to
the concerned societies to choose from.
11. Respondent No.3 in its meeting dated 8th September
2010, passed Resolution No.2849 under which it was resolved
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that the redevelopment proposal under DCR 33(5) would be
accepted and processed under sub-clause (2)(c)(i) only. This
meant that MHADA would accept its share in the balance FSI
becoming available in such schemes, in the form of housing stock
only.
12. The above resolution, i.e., Resolution No. 2849 dated
8th September 2010, came to be approved by Respondent No. 2
under section 16(2) of the MHADA Act. Respondent No. 2 in its
meeting dated 20th September 2010 took a decision vide their
Resolution No. 6507 to approve the Resolution bearing No.2849,
passed by Respondent No.3 subject to approval thereof by the
Urban Development Department of Government of Maharashtra.
On the same day, Respondent No.2 modified Resolution No. 6507
which came to be subsequently confirmed in the meeting dated
3rd March 2011 whereby it was decided that approval of UDD of
Government of Maharashtra was not required and the said
Resolution/Decision would be implemented immediately.
13. MHADA thereafter issued Circular on 22th May 2012
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directing that for plot size of less than 1000 sq. mtrs., where the
society has already been granted NoC under the old DCR 33(5) on
premium basis, the revised NoC for consumption of 2.5 FSI shall
also be granted under Regulation No.33(5)(2)(c)(ii). In this
Circular, it is provided that the same would be applicable only in
respect of the MHADA owned properties for which the society has
already been granted NoC under the old DCR 33(5) prior to the
appointed date, i.e., 20th September 2010. As stated earlier, the
Petitioner's proposal was submitted on 21st September 2010 and
in view of the policy as prevalent on that day, coupled with the
decision of this Court in Writ Petition No.2138 of 2012,
Respondent No.3 issued the Offer Letter to the Petitioner under
which MHADA demanded from the Petitioner the housing stock
of 207.70 sq. mtrs (built up) area as MHADA's share in the
additional built up area.
14. The Petitioner as stated above, has challenged
Resolution No.2849 dated 8th September 2010 passed by
Respondent No.3, Decision No. 6507 dated 20th September 2010
taken by Respondent No.2, Circular dated 22nd May 2012 issued
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by Respondent No.2 and the Offer Letter dated 16th September
2013 given by Respondent No.3 in favour of the Petitioner. By
these Resolutions and Circulars, MHADA has changed its earlier
policy whereunder option under clause (2)(c) of DCR 33(5) is to be
exercised by MHADA. In our considered view, the said
Resolutions and Decisions are consistent with and in furtherance
of the object sought to be achieved by DCR 33(5). The whole
object and purpose of granting of additional FSI of 2.5 to the
societies redeveloping the MHADA colonies is to provide for
comfortable and larger size tenements to the economically
weaker section of the society residing in the MHADA colonies and
to create additional housing stock for housing the homeless. The
submission of the Petitioner that the discretion of exercising
option under sub-clause (c) of clause (2) of DCR 33(5) vests with
the Society / Developer / Occupier, in our considered view, has no
merit inasmuch as DCR 33(5) is silent as to who can exercise that
discretion. Though in the guidelines issued by MHADA earlier
namely as contained in Resolution No.6397, there was a choice
given to the concerned society to exercise the option, the said
policy is changed by passing subsequent resolution, namely,
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Resolution No.2849 dated 8th September 2010 and Resolution No.
6507 dated 20th September 2010. This change in the policy, in
our considered view, cannot be said to be contrary to the
provisions of clause (2)(c) of DCR 33(5). On the contrary, the
same is consistent with the object sought to be achieved by the
said provision.
16. The Petitioner's contention that the earlier policy as
contained in Resolution No.6397 was consistent with the
provision of Regulation No.23 of the Maharashtra Housing and
Area Development (Estate Managements, Sale, Transfer and
Exchange of Tenements) Regulations, 1981 also cannot be
accepted. Under the said Regulation No.23, where the FSI in
respect of any building, the tenements in which have been
allotted, has not been fully utilised, the authority may utilise the
FSI by erecting an additional floor/floors or otherwise, at any time
before the building is conveyed under a duly executed deed of
sale to the housing society. DCR 33(5) prescribes the different
redevelopment and rehabilitation schemes that can be
undertaken within the city of Mumbai and its suburbs. The
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common premise for providing these schemes is that the
occupant of the old buildings and slums do not have financial
capacities / resources to undertake the redevelopment on their
own nor do the Respondent authorities have adequate funds at
their disposal. Therefore, the additional FSI of 2.5 is granted to
the societies to redevelop the MHADA colonies and this is with an
object to provide more comfortable and larger size tenements to
the economically ig weaker sections of the society and
simultaneously to create additional housing stock for housing the
homeless. Thus, provisions of Regulation No.23 of the Regulation
of 1981 and the DCR 33(5) operate in different fields. In any case,
Regulation No.23 of the Regulations of 1981 are not applicable to
the present case and the same cannot be relied upon by the
Petitioner to interpret Clause (2)(c) of the DCR 33(5) inasmuch as
the said Regulation deals with the cases in respect of the
buildings in which FSI has not been fully utilised. In the present
case, the proposal of the Petitioner is about the redevelopment
of the said building situated on the said land which are
admittedly owned by MHADA.
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17. The Petitioner strongly relied upon the lease deed
dated 25th May 2010 and especially clause 2(m) thereof. Clause
2(m) of the lease deed reads thus :
"It is agreed that lessee is entitled only to the FSI
consumed under the building conveyed to him.
Any unutilised FSI for the said land in excess of
the said building or any additional FSI becoming
available due to any change or modification in
the DC Rules and Regulations at any point of time
shall be the property of the Authority. The lessee
shall be entitled to make a request to the
authority for utilisation of such additional or
balance FSI. Such request shall be considered on
merits and on payment of additional premium
and additional lease rent and on additional terms
and conditions as determined by the authority
from time to time."
. Admittedly, the Petitioner-Society has not applied to
MHADA under Clause (2)(m) of the lease-deed, to enable it to
consider their application. Therefore, relying upon this clause the
Petitioner cannot contend that the option under clause (2)(c) of
DCR 33(5) is with the society.
19. The Petitioner's contention that the impugned
resolutions and decisions are contrary to the rules and
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regulations of MHADA Act, cannot be accepted in view of the
observations made by us hereinabove, namely, that the said
regulation and DCR 33(5) operate in different fields and the
Petitioner cannot take support of the said Regulation.
20. The Petitioner's challenge to the impugned Circular
dated 22nd May 2012, in our considered view, is without any
substance. We have perused the said Circular.
ig The cases
contemplated under it are not comparable, even remotely to the
the Petitioner's case. The said Circular is intended to relieve the
hardships of the societies who have been granted only FSI of 1.2.
under the old DCR on premium basis and which are already well
into the process of redevelopment on that basis. In such cases,
Circular says MHADA should not turn about and ask for sharing
FSI on the application of the society to ask for enhanced FSI
which would make the redevelopment scheme already in
progress, unviable.
21. So far as the cut-off date of 20th September 2010 is
concerned, it is fixed on the basis that Resolutions of the Board to
be valid and effective, have to be confirmed by MHADA Authority
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under section 16(2) of the MHADA Act and since such
confirmation was made by MHADA Authority on 20 th September
2010, from that date, Board's Resolution became effective for
exercise of powers under the DCR 33(5) and therefore 20 th
September 2010 came to be fixed as the cut-off date. In our
considered view, there is a logic behind fixing this cut-off date
and the same cannot be said to be arbitrary and violative of
Article 14 of the Constitution of India.
22. This takes us to consider the Petitioner' challenge to
the impugned Offer Letter dated 12th July 2013. The Petitioner
has challenged the said Offer Letter as the same is based on the
impugned Resolution and Decision, which resolution and
decision, according to the Petitioner are contrary to the Rules and
Regulations framed under the MHADA Act. The Petitioner's
challenge to the said Resolutions and Decisions has already been
overruled by us and on that ground challenge to the impugned
Offer Letter will also not sustain.
23. In support of its submission that Respondent No.3-
Board has committed patent mistake in computing the rehab
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area, the Petitioner has relied upon the Government Resolutoin
dated 26th August 2009, under which the maximum ceiling of
rehab area to be provided in schemes for lower income group is
45 sq. mtrs (carpet) and in the schemes for economically weaker
sections, it is 27.88 sq. mtrs. (carpet). It is the case of the
Petitioner that since the Petitioner's scheme is for the LIG, its
members are entitled to get 45 sq. mtrs. carpet area, however, in
the impugned Offer Letter, MHADA has computed the rehab area
at the rate of 33.45 sq. mtrs of built up area ie., 27.88 sq. mtrs.
per member. Having seen the relevant Government Resolution
and having gone through the Offer Letter, we do not see any
merit in the Petitioner's submission in this regard. Under
Resolution No.6383 dated 24th February 2009, MHADA has
determined that the minimum area to be allotted to the EWS
would be 300 sq. fts or the existing carpet area whichever is
higher.
. In order to ensure that the benefit of the surplus area
is made available to the large number of members from the
eligible category, the Government of Maharashtra by Resolution
dated 26th August 2009 has prescribed the maximum area to be
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allotted to a member of LIG category would be 45 sq. mtrs and
not more than that, even if his existing area in occupation is
much larger. Thus, the said Resolution was intended to apply to
cases of LIG occupants, who occupied a much larger existing area
and by virtue of that benefit, would take away a large chunk of
the redeveloped area, to the grave detriment of those others who
are also entitled to the benefit of redevelopment. In our view,
the said Government Resolution viz., GR dated 26 th August 2009,
does not generally fix the maximum area allottable to the LIG
Category. By the Government Resolution dated 26th August 2009,
the existing area occupied by LIG category is limited to 45 sq.
mtrs after redevelopment. The Petitioner as a matter of right
cannot claim 45 sq. mtrs carpet area to each of its occupant, after
redevelopment. In this regard, learned Counsel appearing for
the Petitioner has placed reliance on the Chart of computation
giving details of the additional area as per DCR 33(5)(2)(c)(i), as
made by the Petitioner and the MHADA. Since we find that
MHADA's decision to allot 33.45 sq. mtrs. area to each of the
Petitioner's member/occupant, cannot be said to be
unreasonable and contradictory to the said Resolutions,
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computation arrived at by MHADA cannot be said to be
erroneous. In terms of these computations, MHADA's share is
207.70 sq. mtrs. , which cannot be faulted with.
24. Reference must be made at this stage to the
Petitioner's argument that Respondent No.3 in similar situations
has allotted 45 sq. mtrs carpet area to the occupants of other
societies after redevelopment by those societies. The Petitioner
in this regard placed reliance upon the NoCs granted by
Respondent No.3 to Chembur Vrushali CHS Ltd, Chembur and to
Ekta CHS Ltd, village Majiwade, Vartak Nagar, Thane. Ms.
Ankalesaria submitted that these are not comparable cases. The
case of Chembur Vrushall CHS Ltd and Ekta CHS Ltd are under
DCR 33(5)(2)(c)(ii) and their proposals were submitted prior to
2010 and on the contrary, the present case is covered by DCR
33(5)(2)(c)(i) and arises after the cut-off date, i.e., 20th September
2010. We find substance in the argument of Ms. Ankalesaria
inasmuch as the allotment of the area to the members of
Chembur Vrushali CHS Ltd and Ekta CHS Ltd, Thane was not on
sharing basis as contemplated under DCR 33(5)(2)(c)(i) and the
proposals of these societies were prior to 2010 and therefore the
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benefit of the impugned circular dated 22nd May 2012 was given
to them. We do not find any merit in the contention of the
Petitioner in this regard.
25. Before parting with the matter, reference must also
be made to the admitted fact that the Petitioner by their letter
dated 1st July 2011 informed Respondent No.3 that the Petitioner
has decided to accept either of the options provided under sub-
clause (c) of Clause (2) of DCR 33(5).
ig The Petitioner having
accepted that the choice under sub-clause (c) of clause (2) of DCR
33(5) has to be made by MHADA, cannot be permitted to take u-
turn and claim that the exercise of option under sub-clause (c) of
Clause (2) of DCR 33(5) vests with the society.
26. In the backdrop of the above discussion, we find no
merit in the petition and the same is accordingly dismissed. Rule
is discharged.
[SMT. ANUJA PRABHUDESSAI, J.] [RANJIT MORE, J.]
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