Bombay High Court
Babaji Sonu Kadam And 3 Ors vs The Collector Mumbai Suburban ... on 25 August, 2021
Bench: S.J. Kathawalla, Milind N. Jadhav
Digitally signed by
SWAROOP SWAROOP
SHARAD SHARAD PHADKE
Date: 2021.08.25
PHADKE 14:42:10 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.6325 OF 2021
1. Babaji Sonu Kadam,
Age : 81 years, having permanent
address at Room No.26, Plot Nos.31 and 32,
Sangam Co-operative Housing Society Ltd.,
Barrister Nath Pai Nagar, Ghatkopar East,
Mumbai - 400 077.
Presently residing at
Room No. 602, Building No. 122/B2,
Bhakti Heights, Tilak Nagar, Chembur,
Mumbai - 400 089.
2. Ramesh G. Kadam,
Age : 76 years, having permanent
address at Room No.34, Plot Nos. 31 and 32,
Sangam Co-operative Housing Society Ltd.,
Barrister Nath Pai Nagar, Ghatkopar East,
Mumbai - 400 077.
Presently residing at
Room No. 203, Gangasagar Co-op. Housing
Society Ltd., Plot No.21, Kamothe,
Navi Mumbai - 410 209.
3. Shri Kunal Pradeep Kedare,
Age : 40 years, having permanent
address at Room No.19, Plot Nos. 31 and 32,
Sangam Co-operative Housing Society Ltd.,
Barrister Nath Pai Nagar, Ghatkopar East,
Mumbai - 400 077.
Presently residing at
Flat No.21, Rajputra Mahindera Co-operative
Housing Society Ltd., B-Wing, Pestom Sagar Road
No.5, Chembur West, Mumbai - 400 089.
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4. M/s. Nakoda Infrastructures,
having its office at Shop No.5, Mistry Palace,
Trimurti Road, Sion Chunabhatti, Mumbai - 400 032
Through its partner Vimal Jain ... Petitioners
Versus
1. The Collector,
Mumbai Suburban District,
Administrative Building, 10th Floor,
Government Colony, Bandra East,
Mumbai - 400 051.
2. The Assistant Secretary,
Social Justice and Special Assistance Department,
Mantralaya, Mumbai - 400 032.
3. The Commissioner,
Social Welfare Department,
Having Office at Three Church Road,
Pune - 411 001.
4. State of Maharashtra,
Revenue & Forest Department,
Mantralaya, Mumbai. ... Respondents
Mr. Karl Tamboly i/by Mr. Abhishek P. Deshmukh for the Petitioners.
Mr. Abhay L. Patki, Addl. Government Pleader for the State.
CORAM: S.J. KATHAWALLA &
MILIND N. JADHAV, JJ.
ORDER RESERVED ON : 20th AUGUST, 2021
ORDER PRONOUNCED ON : 25th AUGUST, 2021
ORAL ORDER : (S.J. KATHAWALLA & MILIND N. JADHAV, JJ.)
1. Rule. Respondents waive service. By consent of both sides, Rule is made
returnable forthwith.
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2. Petitioner Nos. 1 to 3 are members of one Sangam Cooperative Housing
Society Ltd. ('the Society'), which is a housing society whose members belong to
backward classes. The Society was allotted land for housing its members under a
special scheme formulated by the State of Maharashtra for the benefit of persons
belonging to backward classes, known as the 'PWR 219 Scheme'. The Society's
building in which its members were residing was constructed on that land in 1979 -
1980, and has since been declared dilapidated and demolished in 2017 pursuant to
notices for pulling down the same by the Municipal Corporation of Greater Mumbai.
The Society has sought permission from the Respondents for redevelopment of the
land. By this Writ Petition filed under Article 226 of the Constitution of India, the
Petitioners have challenged the decision of the Social Justice and Special Assistance
Department of the State, sanctioning the proposed redevelopment by the Society on
the condition that even after redevelopment, ninety percent of the members of the
Society must belong to the backward class community, and only ten percent can be
from the open category. According to the Petitioners, such a restriction would affect
the marketability of the free sale component of the project and would render the
redevelopment effectively unviable, leaving the members of the Society homeless. The
Petitioners have asserted that there is no legal foundation for imposing such a
restriction. The Petitioners have also asserted that the impugned decision is violative
of Article 14 of the Constitution of India, as the State has previously permitted
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redevelopment of similarly placed societies by permitting eighty percent of their
members to be from the open category and requiring only 20 percent to be from the
backward / reserved category after redevelopment. The Petitioners have accordingly
sought directions against the Respondents to permit the Society to redevelop its
property on the same condition that after redevelopment, eighty percent of its
members can be from the open category and twenty percent from the backward /
reserved category.
3. The relevant facts in the matter are in brief set out hereunder :
3.1 Petitioner Nos. 1 to 3 are members of the Society. Petitioner No. 4 is the
developer appointed by the Society for redevelopment of its property.
3.2 Respondent No. 1 is the Collector, Mumbai Suburban District.
Respondent No. 2 is the Assistant Secretary, Social Justice and Special Assistance
Department. Respondent No. 3 is the Commissioner, Social Welfare Department.
Respondent No. 4 is the State of Maharashtra, through the Revenue and Forest
Department.
3.3 Respondent No. 4, with a view to provide housing to persons belonging
to the backward class, formulated the PWR-219 Scheme.
3.4 The Society has thirty - six members, including Petitioner Nos. 1 to 3,
all of whom are from the backward community. By an order dated 31 st December 1966,
Respondent No. 1 allotted land admeasuring 1,442 square meters bearing Plot Nos. 31
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and 32 forming part of Survey No. 236A, City Survey No. 196 of Village Ghatkopar,
Taluka Kurla, Mumbai Suburban District ('the Land") to the Society under the PWR
219 Scheme for constructing a residential building thereon to house its members. The
Society constructed a residential building on the Land in the year 1979-80. Since then,
the members of the Society were in occupation of their respective tenements in the
building.
3.5 The condition of the building deteriorated over a span of forty - five
years. The Municipal Corporation of Greater Mumbai issued notices dated 16 th
September 2015 and 21st September 2016 under section 354 of the Mumbai Municipal
Corporation Act, 1888, declaring the building to be dilapidated and dangerous for
occupation, and called upon the occupants to vacate and pull down the same. The
members of the Society vacated the building pursuant to the notices issued by the
Municipal Corporation of Greater Mumbai.
3.6 The Society executed a development agreement dated 25 th July 2017 in
favour of Petitioner No. 4, who was appointed as the developer for redevelopment of
the property. Petitioner No. 4 thereafter demolished the existing building of the
Society.
3.7 By its letter dated 23rd February 2018, the Society informed Respondent
No. 1 of its decision to redevelop the Land in view of the demolition of the existing
building pursuant to the notices issued by the Municipal Corporation of Greater
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Mumbai. Respondent No. 1 was requested to grant his sanction for the redevelopment.
Since there was no response to the same, the Society by its letter dated 27 th November
2018 once again requested Respondent No. 1 to sanction the scheme for
redevelopment and to inform the Society of the quantum of premium payable in
respect of the same. In furtherance of the same, Respondent No. 1 by his letter dated
12th June 2019 informed the Additional Chief Secretary, Revenue Department that
permission can be granted to the Society for the proposed redevelopment subject to all
necessary premiums being paid. Similarly, the Divisional Commissioner, Konkan
Division by a letter dated 25th June 2019 sought sanction from the Additional Chief
Secretary, Revenue Department for the proposed redevelopment subject to payment
of all necessary premiums by the Society.
3.8 By its letter dated 28th March 2019 addressed to the Assistant
Commissioner, Social Welfare Department, the Society sought the no objection
certificate of the Social Welfare Department for the proposed redevelopment. By his
letter dated 20th July 2020, the Assistant Commissioner, Social Welfare Department
stated that the department has no objection in respect of the proposed redevelopment.
3.9 Since the sanction for the redevelopment scheme was not forthcoming
from the State Government, the Petitioners filed Writ Petition (L) No. 1004 of 2020
before this Court seeking directions to the concerned authorities to grant permission
for the proposed redevelopment ('the first Writ Petition').
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3.10 An Affidavit dated 13th August 2020 came to be filed by the Joint
Secretary, Revenue Department on behalf of the State in reply to the first Writ
Petition. It was stated in that Affidavit that since the Land had been allotted under a
special scheme meant for persons belonging to the backward class, the prior approval
of the Social Justice Department would be required before the State could sanction the
redevelopment scheme. The Affidavit stated that the Divisional Commissioner,
Konkan Division had sought the views and remarks from the Social Justice
Department, and the response from that department was awaited. The Affidavit went
on to state that in order to make the redevelopment viable, a certain percentage of the
salable component is permitted to be sold to other category of persons. In the case of
redevelopment of a society by the name of Dinanath Cooperative Housing Society, the
Revenue Department of the State had permitted eighty percent of the tenements to be
sold by way of free sale, and reserved twenty percent of the tenements for members
belonging to the backward category. Based on the same the Revenue Department had
sent a similar redevelopment proposal of one New Vikas Cooperative Housing Society
to the Social Justice Department for its approval, which was awaited. It was
accordingly stated that the Revenue Department of the State would approve the
proposal of the present Society after securing the consent and approval of the Social
Welfare Department.
3.11 The first Writ Petition came up for hearing before this Court on 14 th
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August 2020. On that date, it was contended by the Petitioners that the letter dated
20th July 2020 issued by the Social Welfare Department referred to above, constitutes
the necessary NOC by that Department for the proposed redevelopment. However,
the Assistant Government Pleader appearing for the State contended that it was not
so. Accordingly, an order was passed by this Court directing the Social Welfare
Department to file an Affidavit clarifying whether the letter dated 20th July 2020
conveys its consent / no objection for the development of the Land.
3.12 Pursuant to the same, the Joint Secretary, Social Justice and Special
Assistance Department of the State filed an Affidavit dated 17 th August 2020 stating
that the letter dated 20th July 2020 issued by the Social Welfare Department could not
be treated as the no objection / permission issued by the Social Justice and Special
Assistance Department. It was stated in that Affidavit that the Land was allotted to the
Society under the PWR 219 Scheme meant for the benefit of members of Scheduled
Castes and Tribes and other weaker sections of society. As per that scheme, lands
were allotted to societies of members of backward classes on the basis that ninety
percent of the members of the concerned societies must belong to the backward
category. Over passage of time the buildings of these societies have deteriorated
necessitating redevelopment. Such redevelopment will result in creation of new flats
forming part of the salable component of the developers. This would in turn affect the
ratio of members in such societies belonging to backward classes vis - a - vis members
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from other categories. It was stated that hence regulations for reserving membership
for persons from the backward classes would need to be formulated by taking a policy
decision. It was accordingly submitted that a period of eight weeks be granted to the
Social Justice and Special Assistance Department for finalizing the policy in this
regard.
3.13 By an order dated 24th October 2020 passed in the first Writ Petition,
this Court directed the Social Justice and Welfare Department to consider the
redevelopment proposal filed by the Society within a period of four weeks from the
date of the order.
3.14 The Deputy Secretary, Social Justice and Special Assistance
Department filed an Affidavit dated 30th September 2020 stating that the policy
governing such redevelopment proposals of societies which had originally been
allotted lands under the PWR 219 Scheme was not yet formulated. The present
Society's proposal for redevelopment would also be governed by the proposed policy.
Hence it was submitted that the Department be given a period of eight weeks to
consider the proposal in accordance with the final policy.
3.15 In view of the above Affidavit dated 30 th September 2020, by an order
dated 6th October 2020, this Court disposed of the first Writ Petition by directing the
Social Justice and Special Assistance Department of the State to take a final decision
on the redevelopment proposal submitted by the Society within a period of eight
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weeks from the date of receipt of a copy of the order.
3.16 The Social Justice and Special Assistance Department of the State did
not decide the proposal of the Society within the time stipulated by this Court. This
led to the Petitioners filing Contempt Petition (L) No. 819 of 2020 alleging breach of
the aforesaid order dated 6th October 2020 disposing of the first Writ Petition.
3.17 During the pendency of the aforesaid Contempt Petition, Respondent
No. 2 i.e. the Assistant Secretary of the Social Justice and Special Assistance
Department addressed a letter dated 2 nd February 2021 to Petitioner No. 1,
communicating the decision taken by the Department to permit the redevelopment
proposal of the Society, subject to the condition that even after redevelopment, ninety
percent of the members of the Society must be from the backward category and only
ten percent can be from the open category.
3.18 Being aggrieved by condition imposed by the aforesaid decision of the
Social Justice and Special Assistance Department as contained in the communication
dated 2nd February 2021 addressed by Respondent No. 2, the Petitioners have filed the
present Petition on 1st March 2021, seeking the following substantive reliefs :
"(a) that this Hon'ble Court be pleased to pass an order thereby
directing the Respondent Nos. 1 to 4 to give benefit to the Petitioner's
Society at par with other societies of PWR-219 Scheme thereby giving
benefit of the redevelopment scheme at the ratio of 80% reserved for open
category / Non backward class and 20% reserved for Backward class;
(b) that his Hon'ble Court be pleased to pass an order thereby
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setting aside the impugned order dated 2nd February, 2021 to the extent of
not giving benefits to the Society of the Petitioners of 80% to the open class /
non backward class and 20% to the backward class and further the
Respondent NO. 2 be directed to give benefit of 80:20 ratio as the same is to
give by the Respondents to all the other societies in PWR-219 Scheme as like
the Petitioners Society;
(c) that this Hon'ble Court be pleased to pass an order thereby
directing the Respondent Nos. 1 to 4 to forthwith allow the members of the
Sangam Co-op Hsg. Soc. Ltd. To redevelop and further start the
construction work on the plot bearing Plot No. 31 and 32, Survey No. 236A,
City Survey No. 196, admeasuring 1442 sq. meter of Village Ghatkopar, Tal.
Kurla, Mumbai Suburban District on the basis of 80% to the open class / non
backward class and 20% to the backward class as the said ratio is made
applicable to all the similarly situated societies coming under PWR-219
Scheme situated in Mumbai and the Petitioners be further permitted to pay
the premium on the basis of the ratio of 80:20 for the redevelopment of plot
bearing plot bearing Plot No. 31 and 32, Survey No. 236A, City Survey No.
196, admeasuring 1442 sq. meter of Village Ghatkopar, Tal. Kurla, Mumbai
Suburban District;"
4. The Petitioners filed an additional Affidavit dated 17 th March 2021 of
Petitioner No. 3 in support of the Petition. In that Affidavit, it was contended that after
the filing of this Petition, the Petitioners received a response from the State to an
application filed by them under the provisions of the Right to Information Act, 2005.
By that response, the Petitioners discovered that in the case of redevelopment of a
similarly placed society by the name of Dinanath Cooperative Housing Society, the
State Authorities had issued permission for redevelopment on the condition that
eighty percent of the members from the free sale component can be from the open
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category and only twenty percent of the members of the free sale component must be
from the backward category. It was contended that this permission was granted
pursuant to a judgement dated 8 th December 2016 passed by this Court in Writ
Petition No. 1939 of 2016 in the case of Dinanath Co-operative Housing Society Ltd. v/s
State of Maharashtra. It was contended that pursuant to the permission granted to
Dinanath Cooperative Housing Society, the State had issued permission for
redevelopment to various similarly placed societies who had been allotted lands under
the PWR 219 Scheme, on the condition that from the free sale component, eighty
percent members may be from the open / non backward category and twenty percent
must be from the backward category.
5. Respondent No. 2 filed an Affidavit dated 1 st July 2021 in reply to the
present Petition. It was contended that the Society is a beneficiary of the PWR 219
Scheme which was introduced for upliftment of members of backward communities.
In order to protect the interests of the beneficiaries under that scheme, the Social
Justice and Special Assistance Department is required to regulate the admission of
members to such societies. It was contended that in the case of redevelopment of the
Land, additional tenements would be generated by virtue of the Transferable
Development Rights (TDR) which would be permitted to be loaded on the Land. Such
excess tenements would be sold in the open market and if the same are sold to persons
other than from the backward classes, the composition of the membership in the
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Society would be altered contrary to the PWR 219 Scheme. It was reiterated that a
regulatory policy in this regard was under consideration by the State. It was contended
that the impugned decision of the Social Justice and Special Assistance Department
was in accordance with the PWR 219 Scheme and a Government Resolution dated 26 th
June 2009. It was contended that the case of Dinanath Cooperative Housing Society
was not comparable on facts to the present case, and hence the same could not be
cited as a precedent by the Petitioners. It was contended that no other society had
been permitted by the State to redevelop its property without maintaining the
mandatory 90:10 ratio i.e. ninety percent of members from the backward classes and
ten percent from the open category.
6. The Petitioners filed an Affidavit dated 12 th July 2021 of Petitioner No. 3
in rejoinder to the reply filed by Respondent No. 2. The Petitioners contended that the
stand taken in the reply to the effect that no other society has been permitted to
redevelop its property without maintaining the aforesaid 90:10 ratio is incorrect. The
Petitioners annexed an order dated 12th September 2014 issued by the Department of
Revenue and Forests, State of Maharashtra granting permission to one Youngmens
Progressive Cooperative Housing Society on the condition that after redevelopment,
eighty percent of the members may be from the open category, and twenty percent
must be from the backward category.
7. We have heard Shri Tamboly on behalf of the Petitioner, and Shri Patki,
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learned AGP on behalf of the Respondents.
7.1 At the outset, Shri Tamboly contended that the issue as to whether the
State can impose a condition requiring the Society to maintain the ratio of its members
as ninety percent from the backward classes and ten percent from the open category at
the time of sanctioning a scheme for redevelopment, is no longer res integra. Shri
Tamboly contended that this issue is now squarely covered by the judgment of a
Division Bench of this Court in the case of Dinanath Co-operative Housing Society
Ltd. Vs. State of Maharashtra and Ors. 1 He argued that this Court has clearly held in
that judgment that there is nothing in the scheme or subsequent government
resolutions which would warrant the State taking a stand that in the case of
redevelopment of such societies, a ratio of members must be maintained where ninety
percent are from the backward category and ten percent are from the open category.
He argued that it has been held in that judgment that the State has itself understood
the policy to mean that the additional premises in the redevelopment can be disposed
of in the ratio of eighty percent to the open / non backward class and twenty percent
to the backward class. It was accordingly argued that the impugned decision of the
Department of Social Justice and Special Assistance is contrary to the above judgment
of this Court and hence deserves to be quashed and set aside. It was also argued that
following the ratio of this judgment, the Society ought to be permitted to redevelop the
1 2017 (1) AIR Bom R 362 :: 2018 (5) All.M.R. 105
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Land and be free to deal with eighty percent of the free sale flats in favour of persons
from the open category, reserving only twenty percent of the same for persons from
the backward category.
7.2 Shri Tamboly next contended that the decision of the Department of
Social Justice and Special Assistance is violative of Article 14 of the Constitution of
India. According to him, the State has in the past permitted redevelopment of similar
societies by permitting sale of eighty percent of the free sale component in favour of
persons from the open category, and reserving only twenty percent in favour of
persons from the backward category. In this regard, he cited the cases of Dinanath Co-
operative Housing Society and Youngmens Progressive Co-operative Housing Society
as examples to show that the State has permitted this in the past. It was argued that by
not allowing the Society to redevelop the Land along similar lines, the State was
treating equals unequally, which is in contravention of Article 14 of the Constitution.
7.3 Shri Tamboly next submitted that the opposition of the Respondents to
the present Petition is contrary to the stand taken by the State on oath in the first Writ
Petition. He contended that the stand taken by the Joint Secretary, Revenue
Department in his Affidavit dated 13th August 2020 clearly demonstrates that even
according to the State, eighty percent of the free sale component can be disposed of in
favour of persons from the open / non backward category, reserving only twenty
percent for members of the backward community.
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7.4 Shri Tamboly lastly submitted that the building of the Society has been
demolished since the year 2017. The members of the Society require to get the Land
redeveloped on an urgent basis to regain the roofs over their heads. If the condition
imposed by the impugned decision that even after redevelopment, ninety percent of
the members of the Society can be from the backward category is not set aside, it will
not be viable or feasible to redevelop the Land. The same shall effectively deprive the
members of the Society of their rights to their property.
7.5 For all these reasons, Shri Tamboly submitted that the Petition be
allowed.
8. On the other hand, Shri Patki, learned AGP appearing on behalf of the
Respondents submitted that the Petitioner's society was allotted the Land, which was
government land, free of cost under the PWR 219 Scheme meant for backward class
members. Various terms and conditions were mentioned in the said scheme for
securing the needs of the backward class community and for providing low cost
housing, thereby affording financial assistance for construction of residential houses.
The membership of such societies was being controlled by the Department of Social
Justice and Special Assistance by issuing various policies and Government
Resolutions. He submitted that the original PWR 219 Scheme has undergone a few
changes, particularly as regards "the continuation of majority of membership" of the
persons belonging to backward class community. He submitted that in case of
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redevelopment such societies are required to adhere to all such terms and conditions
as prescribed from time to time through various Government Resolutions,
notifications and policy regulations issued by the Department of Social Justice and
Special Assistance, Government of Maharashtra. He relied upon a Government
Resolution dated 26th June 2009 to contend that the terms and conditions of the
original PWR 219 Scheme requiring the ratio of membership of such societies to be
maintained as ninety percent from backward class and ten percent from the open
category is required to be maintained on redevelopment. The societies under the said
scheme which intend to carry out redevelopment of their buildings are required to
maintain this ratio of 90:10 even when the additional tenements are made available
upon redevelopment.
8.1 Shri Patki contended that the judgment of this Court in Dinanath's case
(Supra) would not apply to the facts of the present case. He contended that in that
case, the stage at which the Court's interference was called for was when the new
buildings in question had already been constructed, and thereafter the Occupation
Certificate was sought to be withheld on the ground that the terms and conditions of
the PWR 219 scheme were not complied with, that too at the instance of a stranger. It
was in these circumstances that this Court passed the judgment in that case, and the
same would not apply to the present case where the proposal for redevelopment of the
Society is still in its infancy, according to Shri Patki.
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8.2 Shri Patki concluded by contending that any stand taken by the Revenue
and Forest Department of the State in the first Writ Petition would not bind the Social
Justice and Special Assistance Department, which is the principal authority to uphold
the beneficial intent of the PWR 219 Scheme in favour of persons belonging to
backward communities.
8.3 For all of these reasons, Shri Patki contended that there is no merit in
the Petition and the same deserves to be dismissed.
9. We have heard the learned counsel appearing for the respective parties
at length. We have perused and considered the pleadings, documents and written
submissions filed by both sides. Our findings are as follows :
9.1 The central issues which arise for determination in this Petition are :
(i) Whether after redevelopment, the Society is required to ensure
that ninety percent of its members are from the backward category, and only ten
percent can be from the non backward category?
(ii) In the course of redevelopment of the Society, what percentage of
the additional / sale premises which become available due to consumption of
additional FSI, TDR etc. can be disposed of in the open category, and what percentage
is to be reserved for members of the backward community?
9.2 Admittedly all thirty - six members of the Society belong to the
backward class category. The Society has been allotted the Land by the State under
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the PWR 219 Scheme, which is meant for the benefit of the backward class category
members. There is also no dispute about the fact that building which had been
constructed on the Land had outlived its life and has been demolished in the year
2017. In this view of the matter, the only manner in which the members of the Society
can regain the roofs over their heads is if the property is redeveloped.
9.3 The question is whether the State or its departments at the time of
sanctioning such redevelopment is justified in imposing a condition that even after
redevelopment, the ratio of members in the Society would have to be ninety percent
from the backward class and ten percent from the non backward / open category. This
would necessarily mean that after providing tenements to the existing members of the
Society, the majority of the additional flats which would be constructed by utilizing the
permissible FSI and TDR can only be transferred to persons from the backward class.
Though Shri Patki has vehemently argued in support of this ratio, no material by way
of any legislation, policy or government resolution which dictates the same has been
placed before us.
9.4 On the contrary, in this regard we find the reliance placed by Shri
Tamboly upon the decision of a Division Bench of this Court in the case of Dinanath
(supra) to be apposite. That case is similar to the present one. The Petitioner society in
that case had been allotted a plot of land in Andheri under the PWR 219 Scheme for
the purpose of housing its members. In that case also, the buildings which were
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constructed on the allotted land had deteriorated and were the subject matter of
notices from the Municipal Corporation declaring the same to be ruinous. The
Petitioner society in that case accordingly initiated the process of redevelopment of its
property. A development agreement came to be executed in favour of Respondent No.
4 in that case. The developer applied to the Social Welfare Department of the State
seeking its no objection for the proposed redevelopment. That Department responded
by stating that no provisions were made in the PWR 219 Scheme requiring its NOC for
redevelopment. In the meantime, the State issued a Circular dated 26 th June 2009
issuing guidelines in respect of redevelopment of plots allotted to societies under the
PWR 219 Scheme. These guidelines inter alia provided that (a) if a society is accepting
a new member in place of an existing member belonging to the backward community,
such new member must also be from the same community, and (b) the State's
permission is mandatory for redevelopment of such societies. The developer took
various steps towards development of the Petitioner society and obtained various
permissions and approvals from the State and Municipal Corporation. The existing
buildings were vacated and demolished. The developer constructed one wing of the
new building to house all the original members of the Petitioner society. Utilizing the
balance FSI and sanctioned TDR, the developer constructed another wing of the new
building containing flats for sale as per the terms of the development agreement with
the Petitioner society. As per permission received from the office of the Collector, the
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developer was obliged to sell twenty percent of the sale flats to members of the
backward class. The project was nearly completed when in furtherance of a complaint
received from Respondent No. 5 in that case, a show cause notice came to be issued by
the Assistant Commissioner, Social Welfare Department alleging violation of the
Government Resolution dated 26th June 2009 by the Petitioner society. In furtherance
of the show cause notice, the State passed an order staying further redevelopment of
the Petitioner society. In furtherance of that order, the Municipal Corporation too
passed an order staying further redevelopment work. These orders came to be
challenged in a Writ Petition filed before this Court. The submissions made by the
State Authorities to oppose that Petition are similar to those that have been made by
the Respondents in the present case. Whilst dealing with the State's contention that
even after redevelopment, ninety percent of the members of the society must be from
the backward community, this Court held as follows :
"85. Though Mr. Godbole would emphasise the stand in the affidavit of
respondent no. 2 that in PWR-219 Scheme, the ratio of members of the Backward
Class Co-operative Society is 90% Backward Class and 10% Open Class and this
ratio has to be maintained even while redeveloping the society's property,
Mr.Godbole has been unable to point out anything from the whole scheme to
the above effect. We have carefully perused each and every document which
has been placed before us by Mr. Godbole. We find that though the allotment
of land or plot to the petitioner society consisting of Backward Class
members is in accordance with the old PWR-219 Scheme, we have not found
in the primary document or in the document, namely, Government
Resolution dated 21st February, 1974 any condition which would oblige the
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petitioner to maintain any specific ratio. Annexure 'A' to that Government
Resolution having been carefully perused by us, we do not find that though the
benefits of the scheme are available to Scheduled Caste, Schedule Tribe, Nomadic
Tribe, Other Backward Class etc, still, the scheme postulates communal mixing. It
also aims at removing untouchability. Therefore, 10% Non-Backward Class
persons are permitted to be members of Backward Class Co-operative Housing
Societies of all categories. These Non-Backward Class members are entitled to get
the same financial benefits which are made available to the majority members of
the Backward Class Co-operative Housing Societies. However, the Backward
Class persons can join Non-Backward Class societies and they would be entitled to
certain concession. Therefore, though Mr. Godbole vehemently relies on this
Government Resolution, we do not find that the same prohibits enrollment of
Non-Backward Class members. Now, with regard to the ratio, even in the
additional affidavit filed, we do not find that after redevelopment, 90%
members have to be from Backward Class.
For the redevelopment of such societies, a distinct policy is enunciated
and in that, it is apparent that the essential composition has to be maintained.
Meaning thereby, the original society of Backward Class persons must comprise of
90% Backward Class members and 10% Open Class members. After TDR is
generated and additional premises are made available, they have to be disposed of
in terms of the Government Resolution dated 25th May, 2007, which has been
highlighted in the order of the Government dated 30th April, 2010 and the
Collector's communication dated 5th May, 2010 (see page 96). The ratio that has
to be maintained is that the additional premises have to be disposed of as
20% to Backward Class and 80% to Open Class/Non-Backward Class. This
is how the Government has understood its policy. That is part and parcel of
the record and with the Government itself. It is in these circumstances that
presently we are not inclined to agree with Mr. Godbole that the redevelopment
project suffered from fundamental legal infirmities or that the same defeats the
very purpose and object of allotment of plots of land to Backward Class persons."
[emphasis supplied]
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9.5 Thus, the Division Bench of this Court has clearly returned a finding
that there is nothing in the PWR 219 Scheme or other resolutions of the government
which would demonstrate that even after redevelopment, such societies are required
to maintain a particular ratio of backward class members to non backward class
members, or that the same has to be 90:10. On the contrary, this Court has clearly
found that during redevelopment, twenty percent of the additional premises which
become available due to consumption of TDR have to be disposed of to persons from
the backward category, and eighty percent can be disposed of in the open category. In
view of these findings, we find that the Petitioners are correct in their submission that
the impugned decision of Department of Social Justice and Special Assistance
directing that ninety percent of the members of the Society even after redevelopment
must be from the backward category is contrary to the decision of this Court in the
case of Dinanath (supra).
9.6 We are unable to accept Shri Patki's submission that the Dinanath
judgment would not apply to the facts of the present case, merely because the Court's
interference in that case was called for at the stage after the redevelopment was nearly
complete. We find this distinction too subtle to disregard the findings of this Court in
that case. On the contrary, we find that the material facts involved in that case, which
we have set out above, are quite similar to the facts of the present case. The principal
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questions which are the subject matter of the present Petition, were squarely in issue
in that case as well viz. whether after redevelopment, a society originally allotted land
under the PWR 219 Scheme is required to maintain ninety percent of its members
from the backward classes; and whether during redevelopment, such societies can
dispose of eighty percent of the sale premises in the open category. Moreover, this
Court has interpreted the scheme and the applicable government resolutions and
circulars with respect to redevelopment of societies who have been allotted plots
under the PWR 219 Scheme. The same is binding on the State. Hence, we see no
reason why the Dinanath judgment should not apply to the present case.
9.7 The Petitioners have relied upon an order of the Revenue and Forest
Department of the Government dated 12 th September 2014 (at page 158 of the paper
book) in the case of one Youngmens Progressive Co-operative Housing Society. That
order categorically stated that in the case of redevelopment of backward class
societies, if additional members are taken, then out of the total members a minimum
of twenty percent of the total members will have to be from the backward class
category. This in effect translates into a minimum of twenty percent for backward
category members and the balance eighty percent for open category / non backward
category members. This order incidentally also refers to the Government Resolution
dated 25th July 2007 referred to in Dinanath's case.
9.8 In view of the aforesaid position enunciated by the judgment of this
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Court in Dinanath's case, and the Government Order dated 12 th September 2014 in
the case of Youngmens Progressive Co-operative Housing Society, the impugned
decision requiring the Society to maintain ninety percent of its members from the
backward class even after redevelopment is not sustainable and deserves to be
interfered with. Once this Court has held in Dinanath's case that the additional
premises in the redevelopment can be disposed of in the ratio of eighty percent to the
open category and twenty percent to the backward category, we do not see why the
same should not apply to the Society in the present case as well.
9.9 Though it has been suggested by the Petitioners that redevelopment of
the Society on the basis of the impugned order is not at all feasible as the TDR
generated and the additional premises which would be available cannot be disposed in
view of the restriction imposed, we are not inclined to enter into the said issue of
feasibility in this Petition.
9.10 Respondent No. 2 in its Affidavit in reply has sought to contend that no
other society had been permitted by the State to redevelop its property without
maintaining the mandatory 90:10 ratio. We are unable to accept this contention. As set
out above, there is material to show that at least two other societies which have been
allotted plots under the PWR 219 Scheme viz. Dinanath Cooperative Housing Society
and Youngmens Progressive Cooperative Housing Society have been permitted to
maintain a ratio of eighty percent of members from non backward category of persons
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and twenty percent from the backward category. Hence the restriction imposed by the
decision impugned in this Petition amounts to treating equals unequally, and is
violative of Article 14 of the Constitution of India.
9.11 With regard to the controversy in this Petition, we find that the Affidavit
dated 13th August 2020 filed by the Revenue and Forest Department of the State in the
first Writ Petition is telling. In paragraph 6 of that Affidavit, the State has stated as
follows :
"6. I say and submit that considering the remarks so submitted by
the Divisional Commissioner Kokan Division, the State Government had
sought the views and remarks from the Social Welfare Department as
regards granting the permission to redevelop the structure over the
Government plot of land. It was necessary in that behalf to secure the
interests of the persons for whose benefit the special scheme of having
Society had been framed under which the concerned plot of land came to be
allotted to the Petitioner Society. The Revenue Department is still awaiting
the response from the Department of Social Welfare. It is suffice to
mention that in order to make the proposal for redevelopment viable
certain percentage of Redevelopment Component be permitted to be
sold to the other category of persons, apart from the Original allotee
members. While redevelopment of a plot, additional tenements become
available for sale. While disposing these additional tenements for
considering the feasibility of the project. Revenue Department has
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permitted 80% tenements for free sale and 20% tenements for backward
class reserved category in a redevelopment case of Dinanath Co.
Housing Society. On the same view we had sent a proposal of a New Vikas
Co. Hsg. Society to Social Justice Department for approval and consent. It
was therefore proposed that after securing the views from the Social Welfare
Department, the proposal of the Society could be processed expeditiously."
[emphasis supplied]
9.12 Thus, it is clear that the stand of the Revenue Department of the State
itself is that from the sale component in the redevelopment, eighty percent can be
disposed of in favour of non backward classes. We do not see how the State can now
take a contrary stand in this Petition. Shri Patki has tried to contend that any stand
taken by the Revenue and Forest Department of the State cannot affect the powers of
the Social Justice and Special Assistance Department, which is primarily responsible
for ensuring the protection of the backward communities. We are unable to agree with
this submission. Ultimately, the decision to grant permission for redevelopment is that
of the State Government. Hence, we do not see how one department of the State can
take a stand contradictory to that of another. Even otherwise, this very submission was
taken up by the State even in the Dinanath case. The submissions on behalf of the
State in this regard are recorded in paragraphs 59 and 69 of the Dinanath judgment as
follows :
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"59. Finally, it is alleged that it was the duty of the petitioner
society to take permission from the Social Justice and Special Assistance
Department for redevelopment of the property........................
Once again, it is stated that the Revenue and Forest Department and
the Social Justice and Special Assistance Department are two different
Departments implementing different schemes. The PWR-219 Scheme is under the
control of the Social Justice and Special Assistance Department and the Collector,
Mumbai Suburban District has no power to waive any of the conditions prescribed
by the Social Justice and Special Assistance Department. Hence, it is not admitted
that the Social Justice and Special Assistance Department is not concerned with
the use of TDR. The TDR has been granted on the land which was allotted under
the PWR-219 Scheme. The petitioner cannot take benefit under this scheme and at
the same time expect that rules and regulations of the said scheme would be
relaxed. For all these reasons, it is submitted that the writ petition be dismissed.
69. On the other hand, Mr. Godbole, learned Special Counsel appearing
on behalf of the State and particularly respondent nos. 2 and 3 would submit that
there is no merit in the writ petition and it must be dismissed. He submits that it
will be not proper and correct to proceed on the footing that all the powers and
authority vests only in the Collector of the Mumbai Suburban District or the
Revenue and Forest Department of the Government of Maharashtra. Mr. Godbole
submits that an interpretation which would empower only the Collector to deal
with allotments and of specific categories particularly favouring Backword Class
citizens would nullify the scheme of allotment of Government lands to Backward
Class citizens of the State. The Backward Class residents of the State and
particularly in the Mumbai City look to only the Department of Social Justice and
Special Assistance of the Government of Maharashtra."
Despite these submissions, this Court had found in favour of the Petitioner society in
Dinanath's case. For all of these reasons, we do not accept the submission of Shri Patki
that this Court ought not to rely upon the stand taken by the State Government in the
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Affidavit dated 13th August 2020 in the first Writ Petition.
9.13 The impugned decision of the Social Justice and Special Assistance
Department is solely based upon the Government Circular dated 26 th June 2009. That
Circular has been considered by this Court in Dinanath's case as set out above. As per
that Circular, in the case of such societies of persons belonging to backward classes,
wherever change in membership is effected, then, the outgoing member shall be
substituted by another backward class member. The Circular also states that before
such a society undertakes work of redevelopment, it should obtain permission of the
Government. We do not find any direction in this Circular that after redevelopment
ninety percent of the members of such societies have to be from the backward class.
9.14 The Government Resolution dated 25 th July 2007 read with the
Government Order dated 12th September 2014 clearly hold the field in this case, in as
much after TDR is generated and additional premises are made available, the ratio that
has to be maintained is that the additional premises have to be disposed of as twenty
percent to backward class and eighty percent to open class / non backward class.
9.15 Before we conclude, we must note that in its Affidavits filed both in the
first Writ Petition and in this Petition, the Department of Social Welfare and Special
Assistance has repeatedly contended that the State is considering formulating a policy
to regulate the redevelopment of societies which had originally been allotted land
under the PWR 219 Scheme. The State may do so in the exercise of its executive
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functions. However, in the meantime, we cannot permit the redevelopment of the
Society to be stalled. The members of the Society have been out of their homes since
2017. They are urgently awaiting redevelopment of the Society to regain the roofs over
their heads. They must be permitted to proceed with the redevelopment on the basis
of the judgment of this Court in Dinanath's case, and our findings rendered herein.
9.16 In view of the above discussion and findings, the issues requiring
determination as enumerated in paragraph 19 hereinabove are answered as follows :
Q. ISSUES ANSWERS
NOS.
(i) Whether after redevelopment, the
Society is required to ensure that ninety No
percent of its members are from the
backward category, and only ten
percent can be from the non backward
category?
(ii) In the course of redevelopment of the
Society, what percentage of the 80% to open /
additional / sale premises which non backward
become available due to consumption community
of additional FSI, TDR etc. can be
disposed of in the open category, and 20% to
what percentage is to be reserved for backward
members of the backward community? community
9.17 The impugned decision of the Department of Social Justice and Special
Assistance as communicated by the letter dated 2 nd February 2021 by Respondent No.
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2 to the extent that it requires ninety percent of the membership of the Society to be
from the backward community is accordingly quashed and set aside. It is clarified that
in the course of redevelopment, the Society by itself or through its developer shall be
entitled to deal with the premises in the sale component in the ratio of eighty percent
in the open / non backward category and twenty percent to the backward community.
The Writ Petition accordingly stands allowed in terms of prayer clauses (a) to (c)
which read thus:
(a) that this Hon'ble Court be pleased to pass an order thereby directing the
Respondent Nos. 1 to 4 to give benefit to the Petitioner's Society at par with
other societies of PWR-219 Scheme thereby giving benefit of the redevelopment
scheme at the ratio of 80% reserved for open category / Non backward class
and 20% reserved for Backward class;
(b) that his Hon'ble Court be pleased to pass an order thereby setting aside the
impugned order dated 2nd February, 2021 to the extent of not giving benefits to
the Society of the Petitioners of 80% to the open class / non backward class and
20% to the backward class and further the Respondent NO. 2 be directed to
give benefit of 80:20 ratio as the same is to give by the Respondents to all the
other societies in PWR-219 Scheme as like the Petitioners Society;
(c) that this Hon'ble Court be pleased to pass an order thereby directing the
Respondent Nos. 1 to 4 to forthwith allow the members of the Sangam Co-op
Hsg. Soc. Ltd. To redevelop and further start the construction work on the plot
bearing Plot No. 31 and 32, Survey No. 236A, City Survey No. 196,
admeasuring 1442 sq. meter of Village Ghatkopar, Tal. Kurla, Mumbai
Suburban District on the basis of 80% to the open class / non backward class
and 20% to the backward class as the said ratio is made applicable to all the
similarly situated societies coming under PWR-219 Scheme situated in
Mumbai and the Petitioners be further permitted to pay the premium on the
basis of the ratio of 80:20 for the redevelopment of plot bearing plot bearing
Plot No. 31 and 32, Survey No. 236A, City Survey No. 196, admeasuring
1442 sq. meter of Village Ghatkopar, Tal. Kurla, Mumbai Suburban
District;"
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9.18 Rule is made absolute in the above terms. Parties to act accordingly.
There shall be no order as to costs.
( MILIND N. JADHAV, J.) ( S.J.KATHAWALLA, J. )
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