Bombay High Court
Amit Mahadev Parkhande And 23 Ors vs Maharashtra Housing And Area ... on 27 July, 2021
Bench: S.J. Kathawalla, Surendra Pandharinath Tavade
Digitally signed by
SWAROOP SWAROOP
SHARAD SHARAD PHADKE
Date: 2021.07.27
PHADKE 17:52:48 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 800 OF 2019
WITH
NOTICE OF MOTION NO. 369 OF 2019
Amit Mahadev Parkhande and others ... Petitioners
Versus
Maharashtra Housing and Area Development
Authority (MHADA) and others ... Respondents
WITH
WRIT PETITION NO. 394 OF 2017
WITH
NOTICE OF MOTION NO. 370 OF 2019
WITH
NOTICE OF MOTION NO. 264 OF 2018
WITH
INTERIM APPLICATION NO. 452 OF 2020
IN
WRIT PETITION NO. 394 OF 2017
Vimalchand Champalal Mehta and others ... Petitioners
Versus
Maharashtra Housing and Area Development
Authority (MHADA) and others ... Respondents
WITH
WRIT PETITION NO. 3047 OF 2019
Ravindra Mahadev Sakre and others ... Petitioners
Versus
Maharashtra Housing and Area Development
Authority (MHADA) and others ... Respondents
Mr. Aditya Pimple alongwith Mr. Kiran Jain, Ms. Radha Ved and Mr. Nipeksh Jain
instructed by Kiran Jain and Co. for the Petitioners.
Mr. P.G. Lad for the MHADA.
Ms. Manisha Jagtap for Respondent No.1.
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Mr. Rakesh Agarwal for Respondent Nos.5 to 8.
Ms. Oorja Dhond for the MCGM.
CORAM: S.J. KATHAWALLA &
SURENDRA P. TAVADE, JJ.
(VACATION COURT
THROUGH VIDEO CONFERENCING)
RESERVED ON : 21st MAY, 2021
PRONOUNCED ON : 27th JULY, 2021
ORDER : ( PER S.J.KATHAWALLA, J. )
1. "Hirji Bhojraj Chawl" situated at Mazgaon, Mumbai ('the said Chawl')
has 109 tenants, i.e. 99 residential and 10 commercial tenants. Of these tenants, 24
residential tenants are the Petitioners in Writ Petition No. 800 of 2019, 37 residential
tenants are the Petitioners in Writ Petition No. 3047 of 2019 and 9 commercial tenants
are the Petitioners in Writ Petition No. 394 of 2017.
2. The said Chawl is owned by a Partnership Firm, i.e. Respondent No. 5 -
J. K. Builders. The Partners of the Respondent No. 5 are Mr. Ghewarchand Jogani,
Mr. Jitesh Ghewarchand Jogani and Mr. Pradeep Ghewarchand Jogani i.e. Respondent
Nos. 6 to 8 respectively (hereinafter referred to as the 'Owners / Developers').
3. The Owners / Developers undertook re-development of the said Chawl
by promising to pay to the tenants, monthly compensation in lieu of temporary
alternate accommodation and also to handover to them possession of new ownership
flats within 30 months from the date of receiving the Intimation of Disapproval
('IOD'). On the basis of the said promise the Owners / Developers obtained vacant
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possession of the premises under the occupation of the tenants and demolished the
said Chawl. Though the tenants have handed over their respective tenements to the
Owners / Developers about 4 years back they are till date waiting for the construction
to be completed. From the photograph annexed by the Owners / Developers to their
Affidavit dated 20th May, 2021, which is reproduced hereunder, it is clear that the
Owners / Developers have only put up a shell structure and the construction is
nowhere near completion.
4. As submitted by the tenants they had handed over the possession of their
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respective premises and had obtained temporary alternate accommodation on leave
and license basis only on the strength of an express promise made by the Owners /
Developers that they would pay monthly compensation to the tenants until the
Owners / Developers complete the construction of the new building, obtain
Occupation Certificate ('OC') from the Municipal Corporation of Greater Mumbai
('MCGM') and put the tenants in possession of their respective new flats / premises.
The Owners / Developers as can be seen from the above photograph, not only failed to
complete the construction on time, but also failed to pay the promised monthly
compensation to the tenants because of which the tenants are unable to pay the
monthly license fee to their respective licensors, and consequently are virtually
brought on the streets by the Owners / Developers.
5. On 13th February, 2019, on account of the failure of the Owners /
Developers to pay the promised monthly compensation, a Consent Order was passed
by the Division Bench of this Court in Writ Petition No. 800 of 2019, wherein it was
recorded that the Owners / Developers have agreed to pay 50% of the outstanding
monthly compensation amount to the Petitioners within 4 weeks from the date of the
Order and the balance 50% within 8 weeks thereafter.
6. The Owners / Developers breached the Consent Order obtained on 13 th
February, 2019. The reason given for the breach was that the Owners / Developers
were facing financial difficulties.
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7. Thereafter, on 28th March, 2019 the Owners / Developers again gave an
assurance to the Court that they would pay 50% of the outstanding monthly
compensation as on 1st January, 2019, latest by 10th April, 2019 and the remaining 50%
would be cleared latest by 20th April, 2019. Accordingly, the statement of the Owners /
Developers was recorded and accepted in the Order dated 28 th March, 2019 passed in
Writ Petition No. 800 of 2019.
8. Even this statement made on behalf of the Owners / Developers which
was accepted and recorded in the Order dated 28 th March, 2019, came to be breached
by the Owners / Developers. The Division Bench of this Court by a common Order
dated 23rd April, 2019 passed in Writ Petition No. 800 of 2019 and Writ Petition No.
394 of 2017 expressed its displeasure with regard to the indefinite delay on the part of
the Owners / Developers in making payments to the tenants towards monthly
compensation in lieu of temporary alternate accommodation. In the said Order, it was
ordered / directed as follows :
"(i) The developer shall pay a total sum of Rs. 60 Lakhs to the Petitioners
latest by 30/04/2019. For such purpose, learned Counsel for the
Petitioners shall supply the bank account details of each Petitioner in whose
favour proportionate amount by RTGS transfer can be made. In case any of
the Petitioners do not have such account where the RTGS facility is
available, the learned Counsel may give the bank account details so that
the developer can issue pay order cheque of appropriate sum.
(ii) We are informed that one Mr. Gherverchand L. Jogani,
Respondent No. 6 is present before the Court on behalf of the developer. He
has instructed his Counsel that these directions would be complied with. He
shall file an undertaking before this Court latest by 24/04/2019 that the
amount as mentioned above would be paid by the due date.
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(iii) If there is any default in paying such sum by 30/04/2019,
the Respondent No. 6 shall personally remain present before the
Court to answer the question of disobeying Court's directions and breach of
his undertaking.
(iv) After paying such sum of Rs. 60 Lakhs to the Petitioners, it is
agreed between the parties (subject to minor correction) that a sum of Rs.
64,03,186/ will remain payable by the developer to the Petitioners towards
arrears of rent till 31/12/2018. Subject to the above conditions being satisfied,
we may consider granting limited further time to the developer for
clearing such dues.
(v) The developer should also be prepared to pay the rent for the period
after 01/01/2019. All these aspects would be gone into on 30/04/2019.
(vi) Stand over to 30/04/2019 at 3.00 p.m."
9. Pursuant thereto, Writ Petition No. 800 of 2019 and Writ Petition
No.394 came up before this Court on 30 th April, 2019, when the Owners / Developers
informed the Court that they have paid a sum of Rs. 60,66,406/- to the tenants, being
part payment towards the arrears of monthly compensation payable in lieu of
temporary alternate accommodation. The Owners / Developers proposed a schedule
of payments with regard to the balance arrears, which was accepted and recorded by
the Court in its Order dated 30th April, 2019, which reads thus :
"(i) The remaining rent for the period upto 31 st December, 2018 shall be
paid to the petitioners latest by 31st May, 2019.
(ii) Rent for the period from 1st January, 2019 till 30th June, 2019 shall
be paid latest by 20th June, 2019.
(iii) Rent for the period between 1st July, 2019 to 31st July, 2019 shall be
paid latest by 31st July, 2019".
10. The Owners / Developers failed to abide by the said schedule of
payments which they themselves had offered and was accepted by the Court. The
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Petitioners therefore filed a Contempt Notice of Motion No. 369 of 2019 in Writ
Petition No. 800 of 2019 and Contempt Notice of Motion No. 370 of 2019 in Writ
Petition No. 394 of 2017, and the said Notices of Motion along with the three Writ
Petitions came to be listed before this Court on 13 th November, 2019. In the Order
dated 13th November, 2019 passed by this Court, the Court recorded that the Owners /
Developers have not only stopped construction, but have also stopped paying the
tenants the agreed monthly compensation in lieu of the temporary alternate
accommodation. It was also noted that the Owners / Developers had obtained a loan
from the State Bank of India in the sum of Rs. 30 Crores by mortgaging the land on
which the said Chawl stood earlier, as well as the proposed flats forming part of the
free sale component, in favour of the Bank. It was further recorded in the Order that
the Owners / Developers had paid the 1 st instalment and had thereafter failed and
neglected to pay any amounts to the tenants; that in view of the Owners / Developers
discontinuing making payment of the monthly compensation, the tenants were unable
to pay the leave and license charges to the licensors from whom they had obtained
temporary accommodation and that the tenants were therefore virtually brought on
the streets by the Owners / Developers; that since the Owners / Developers had
agreed to disclose on oath all the particulars required by the Court qua the Partnership
Firm, its Partners and their immediate family members, this Court before passing any
Orders in the contempt proceedings directed the Owners / Developers to disclose on
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oath the following :
a. Particulars of the project/s undertaken by them in the last five years in the
name of the Partnership Firm and / or their individual names and / or in the names of
their immediate family members, and the present status of such projects.
b. Bank statement/s of the last five years in respect of all bank accounts
standing in the name of the Partnership Firm and / or in the single or joint names of
the Partners and their immediate family members.
c. Income tax returns of the Partnership Firm, the personal income tax returns
of the Partners and their immediate family members, of the last five years.
d. The encumbered and unencumbered movable and immovable assets held by
the Partnership Firm, individual partners and their immediate family members, in the
last five years.
e. The statement of the loan account with regard to the loan of Rs.30 Crores
obtained from the SBI along with the documents executed with the Bank and a letter
from the SBI setting out the amount which is due and payable to the Bank as on date.
f. The break-up of how the amount of Rs.30 Crores received from SBI, is
utilized by the Partnership Firm and its Partners.
g. The amounts received / adjusted towards sale of two free sale flats.
h. The approved plans in respect of the subject project along with copies of
IOD, CC received.
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i. Any construction carried out till date in violation of the sanctioned plans
and/or in breach of any of the provisions of law.
11. It is pertinent to note here that during the hearing held on 13 th
November, 2019, a submission was made by the Owners / Developers that the Court
may take over the subject project and have the same completed through the Court
Receiver, which proposal the Court at that time did not find viable for reasons
recorded in paragraph 7 of the Order dated 13th November, 2019, which reads thus :
"7. The Advocate appearing for the owners / developers submitted that the
Court may take over the subject project and have the same completed through
the Court Receiver. This is not possible since the Court Receiver can get the
project completed only from the consideration received by sale of flats forming
part of the free sale component. If the Court Receiver sells any flats forming
part of the free sale component, he will have to handover the entire
consideration received from such sales to SBI since the free sale flats are
already mortgaged by the owners / developers to SBI. The Court Receiver will
therefore have no funds to complete the subject project."
Therefore, it is clear that even as on 13 th November, 2019, the Owners / Developers
had lost interest in the subject project for reasons which came to light thereafter and
set out hereunder.
12. Pursuant to the said Order, the Owners / Developers filed their
respective Disclosure Affidavits dated 20th November, 2019.
13. Thereafter, the above-captioned three Writ Petitions and the Contempt
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Notices of Motion were listed before this Court on 3 rd January, 2020, when the Court
realised and noted that the Owners / Developers had suppressed certain facts in their
Disclosure Affidavits. In the Order dated 3rd January, 2020, this Court once again
recorded the dishonest conduct of the Owners / Developers. It was recorded that
from the huge loan of approximately Rs. 30 Crores obtained from the State Bank of
India by mortgaging the land as well as the flats forming part of the free sale
component in favour of the Bank, under the pretext of the loan amount being used for
completing the subject project, the Owners / Developers had siphoned away several
Crores under the garb of utilizing the same for their other project, which too had not
been completed. It was noted that a sum of Rs.7,27,00,000/- was withdrawn by
Owners / Developers for their use. It was recorded that the Owners / Developers had
therefore perpetrated a fraud on the tenants and their family member by making them
vacate their original tenements by promising them new flats on ownership basis in the
proposed new construction and by promising them monthly compensation in lieu of
temporary alternate accommodation, which promises had not only been brazenly
breached, but the Owners / Developers who are admittedly owners of 5 cars including
a BMW, have now admittedly stopped construction on the ground that they do not
have money to reconstruct the building which they have demolished.
14. In view of the suppression of facts by the Owners / Developers in their
Disclosure Affidavits, this Court called upon the Owners / Developers to file
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Affidavits disclosing their further assets and in the meantime, they were directed not
to leave the Country without seeking prior permission from this Court.
15. The three Writ Petitions and the Contempt Notices of Motion were
thereafter listed before the Court on 6th January, 2020, when the Owners / Developers
were represented by a Counsel, who on instructions, gave an undertaking to the Court
that an amount of Rs. 64 Lakhs with 9% interest from 13 th February, 2019 will be paid
to the tenants by 10th January, 2020, which undertaking was accepted. On that day the
Counsel appearing for the Owners / Developers also sought and obtained liberty to file
an Affidavit to explain / deal with certain statements recorded in the Order dated 6th
January, 2020.
16. Pursuant to the said Order dated 6th January, 2020, the Owners /
Developers made payments towards the outstanding arrears of rent i.e. upto July 2019
to the tenants who are the Petitioners in Writ Petition No. 800 of 2019 and Writ
Petition No. 394 of 2017. The Owners / Developers also filed an Affidavit contending
that no facts have been suppressed intentionally and that they have not siphoned away
any amount as recorded in the Order dated 3rd January, 2020. However, no payments
of rent / monthly compensation have been paid thereafter to any of the tenants.
17. The Petitioners who are now facing an acute financial crisis during this
second wave of the Pandemic and the consequent Lockdown due to the Owners /
Developers not having completed the construction, and also refusing and neglecting to
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make payments towards rent / monthly compensation in lieu of temporary alternate
accommodation, have moved the above three Writ Petitions and the Contempt
Notices of Motion for urgent reliefs.
18. The Learned Advocate for the Petitioners has taken us through the
contents of the above proceedings, the facts set out hereinabove and the Orders
referred to therein. He has submitted that in view of the promises made by the Owners
/ Developers, the Petitioners vacated their respective premises and handed over the
same to the Owners / Developers to redevelop the same. In the last 4 years the
Owners / Developers have not only failed to complete the construction, but have also
failed to pay the monthly compensation as promised, because of which the tenants are
unable to pay the license fees to their respective licensors and are virtually on the
streets. In the meantime, the Owners / Developers in order to defraud the tenants,
have mortgaged the land on which the said Chawl stood and which is now demolished,
to the State Bank of India, in return for a loan of Rs. 30 Crores and have also
mortgaged the proposed free sale flats to the Bank. The Owners / Developers have
now lost interest in the project and have left the original tenants completely high and
dry.
19. It is submitted on behalf of the Petitioners that no payment towards
rent / monthly compensation has been made by the Owners / Developers to the
Petitioners in Writ Petition No. 800 of 2019 and Writ Petition No. 394 of 2017 since
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August 2019. Infact, in Writ Petition No. 3047 of 2017, no rent / monthly
compensation has been paid since 2017 by the Owners / Developers, taking advantage
of the fact that the said Writ Petition was filed on 07 th August, 2019, i.e. after the
Order dated 30th April, 2019, was passed. The arrears payable upto April 2021 in Writ
Petition No.800 of 2019, Writ Petition No. 394 of 2017 and Writ Petition No. 3047 of
2017 is Rs. 1,14,01,203/-; Rs. 66,04,627/-; and Rs.3,75,24,342/- respectively. It is
submitted that the Owners / Developers i.e. Respondent Nos. 6 to 8 have wilfully
breached the Orders of this Court and are therefore guilty of Contempt of Court and
are liable to be punished for the breach of the Orders of this Court under the
Contempt of Courts Act, 1971. It is submitted that the Owners / Developers be
directed to forthwith pay the arrears of rent to the Petitioners in all the three Writ
Petitions.
20. The Learned Counsel for the Petitioners also relied upon the amended
Section 77 (a-1) and Section 91A of The Maharashtra Housing and Area Development
(Amendment Act), 2020 ('MHADA Amendment Act') which provides that :
"91-A. Notwithstanding anything contained in any of the
provisions of Chapter VIII or any other law for the time being in
force or in any agreement, contracts, judgment, decree or order of
any Court or Tribunal to the contrary, in cases where, after
obtaining No Objection Certificate for redevelopment of old cessed
building as per the Development Control and Promotion
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Regulations-2034 for Greater Mumbai or any other earlier
Development Control Regulations therefor, the building is
demolished and,-
a. the redevelopment work is left incomplete, delayed or has not
been commenced within three years from the date of issue of No
Objection Certificate; or
b. the redevelopment work of old cessed building is stalled for more
than two years from the date of issue of the Commencement
Certificate by the Mumbai Municipal Corporation or Planning
Authority; or
c. the holder of the No Objection Certificate has committed breach of
any of the terms and conditions of the No Objection Certificate or has not
paid rent for temporary alternate accommodation to the tenants or
occupants of such building, -
the Board may, after obtaining the prior approval of the
State Government, initiate the action for acquisition of such
building under the provisions of the Act and shall complete the
redevelopment work.".
21. It is submitted by the Advocate for the Petitioners that the Owners /
Developers are not in a position to complete the project, i.e. to complete the
construction of the rehab and the free sale buildings. The Owners / Developers have
also failed and neglected to pay the rent / monthly compensation to the Petitioners as
agreed and which they are mandatorily required to pay. The Owners / Developers
have therefore breached the terms of the No Objection Certificate ('NOC') issued by
MHADA dated 21st October, 2014 in favour of the Owners / Developers. The said
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NOC dated 21st October, 2014 and the IOD dated 21st November, 2014 ought to be
forthwith cancelled and Respondent No. 1 - MHADA be directed to undertake the
development of the said Chawl and accommodate and rehabilitate the Petitioners and
the other tenants of the said building known as 'Hirji Bhojraj Chawl' under the
scheme and provisions of the MHADA Act.
22. The Respondent Nos. 5 to 8 have disputed the figures contained in the
Statement of Rents submitted by the Petitioners, but have not denied the fact that
Respondent Nos. 5 to 8 have failed to pay the rents/monthly compensation to the
tenants. The Respondent Nos. 5 to 8 have admitted that there has been a default on
their part in paying the monthly rent. However, the Respondent Nos. 5 to 8 have
attempted to justify this default by claiming that the Developers were undergoing
financial difficulties, inter alia on account of having lost out on another project in a
litigation carried right up to the Supreme Court. The Counsel for the Respondent
Nos. 5 to 8 have filed an Affidavit dated 20th May, 2021 in the said three Writ
Petitions undertaking to pay 25% of the amount due to the Petitioners within 6 weeks
and the balance 75% of the outstanding in 3 tranches of 25% each, within a period of 12,
18, and 24 weeks, or within such reasonable period as maybe considered appropriate
by this Court.
23. The Owners / Developers have filed an Affidavit dated 20 th May, 2021,
wherein they have disputed the figures contained in the Statement of Rents submitted
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by the Petitioners, but have not denied the fact that they have failed to pay the
rents/monthly compensation to the tenants. When this Court enquired from the
Advocate for the Owners / Developers as to how much money the Partnership Firm
and its Partners who are the Owners / Developers of the said Chawl have in their
respective bank accounts, the Advocate appearing for the Owners / Developers on
instructions stated that the amounts available in the bank accounts were meagre, i.e. in
the range of Rs. 2,000/- to Rs. 3,000/-. When this Court enquired whether the
Partners of the Partnership Firm, i.e. Respondent Nos. 5 to 8 - Owners / Developers
are willing to give an undertaking that they will abide by what is today offered by them
in Court and face the obvious consequences upon default, the Learned Advocate
appearing for Owners / Developers declined to give any such undertaking.
24. We have perused the facts and have considered the submissions made
before us by the Advocates for the Parties. It is clear beyond any doubt that the
Partners of Respondent No. 5, i.e. Respondent Nos. 6 to 8 have perpetrated a fraud on
the tenants alongwith their family members by making them vacate their original
tenements, promising them new flats on ownership basis in the proposed new
construction and further promising them in the interregnum monthly compensation in
lieu of temporary alternate accommodation. After demolishing the original structure,
Respondent Nos. 6 to 8 not only breached the promises given by them to the tenants,
but went ahead and mortgaged the land on which the original structure stood,
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alongwith the flats proposed to be constructed and sold as free sale component to the
State Bank of India against a loan of Rs. 30 Crores. Sometime after collecting the loan
amount of Rs. 30 Crores, Respondent Nos. 6 to 8 have not only stopped carrying out
further construction work, but also failed to pay the promised monthly compensation
in lieu of temporary alternate accommodation to the tenants, who in turn are unable to
pay the monthly compensation to the licensors from whom they have obtained
temporary accommodation. Respondent Nos. 6 to 8 have therefore virtually brought
their tenants on the streets.
25. The Owners / Developers have now unabashedly submitted that they do
not have any money save and except sums of Rs. 2,000/- to Rs. 3,000/- in their bank
accounts. Respondent Nos. 6 to 8 are well aware that since they have already
mortgaged the land on which the new incomplete structure is put up and have also
mortgaged all the flats which they proposed to construct for the purpose of sale to
third parties at market value i.e the free sale component this Court is unable to appoint
any new developer to complete the project, since the new developer will not be able to
earn any profit, as Respondent Nos. 6 to 8 have, by receiving an amount of Rs. 30
Crores, already created substantial encumbrances on the land as well as in respect of
all the proposed flats forming part of the free sale component.
26. Respondent Nos. 6 to 8 have not only cheated the tenants but have also
repeatedly given undertakings to the Courts, which as stated hereinabove, have been
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repeatedly breached. We are therefore satisfied that the Respondent Nos. 6 to 8 are
clearly guilty of committing Contempt of Court and deserve to be punished under the
Contempt of Courts Act, 1971. Only in view of the repeated Orders passed by the
Courts, the Respondent Nos. 6 to 8 paid compensation in lieu of temporary alternate
accommodation upto July 2019 to the tenants who have filed Writ Petition No. 800 of
2019 and Writ Petition No. 394 of 2017. The Respondent Nos. 6 to 8 have not paid any
rent to the tenants who are the Petitioners in Writ Petition No. 3047 of 2019 only
because the said Writ Petition No. 3047 of 2019 was filed subsequent to the Orders
passed by this Court in Writ Petition No. 800 of 2019 and Writ Petition No. 394 of
2017.
27. According to the Petitioners, an amount of Rs.1,14,01,203/-,
Rs.66,04,627/- and Rs.3,75,23342/- are payable by Respondent Nos. 6 to 8 in Writ
Petition No.800 of 2019, Writ Petition No.394 of 2017 and Writ Petition No.3047 of
2019 respectively, till 31st April, 2021. However, according to the Respondent Nos. 6
to 8 the amounts payable towards temporary alternate accommodation to the tenants
is Rs.64,68,987/-, Rs.3,74,330/- and Rs.2,22,70,192/- in Writ Petition No.800 of
2019, Writ Petition No.394 of 2017 and Writ Petition No.3047 of 2019 respectively, as
per the Affidavits dated 20th May, 2021 filed by Respondent Nos.5 to 8 in the three
Writ Petitions.
28. Though the above figures provided by the Petitioners, which according
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to them are payable, appear to be correct and genuine, when the Advocate for
Respondent Nos. 6 to 8 informed the Court that his Clients are willing to undertake to
pay in instalments the amounts which according to them are payable to the Petitioners
in the above three Petitions towards compensation in lieu of temporary alternate
accommodation, this Court inquired from the Advocate for Respondent Nos. 6 to 8
whether his Clients are agreeable to make a statement that they will accept the legal
consequences that will follow in case of default, the answer was an emphatic, "NO".
So much for the genuineness in regard to the undertaking given to the Court by
Respondent Nos. 6 to 8, as well as the regard and respect Respondent Nos. 6 to 8 have
towards the Orders passed by the Court/s.
29. The Learned Counsel for the Petitioners has, as set out hereinabove,
relied on the amended Section 77 (a-1) and Section 91-A of the MHADA Amendment
Act, 2020. The said Amendment is once again reproduced hereunder for ready
reference:
"91-A. Notwithstanding anything contained in any of the
provisions of Chapter VIII or any other law for the time being in
force or in any agreement, contracts, judgment, decree or order of
any Court or Tribunal to the contrary, in cases where, after
obtaining No Objection Certificate for redevelopment of old cessed
building as per the Development Control and Promotion
Regulations-2034 for Greater Mumbai or any other earlier
Development Control Regulations therefor, the building is
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demolished and,-
a. the redevelopment work is left incomplete, delayed or has not
been commenced within three years from the date of issue of No
Objection Certificate; or
b. the redevelopment work of old cessed building is stalled for more
than two years from the date of issue of the Commencement
Certificate by the Mumbai Municipal Corporation or Planning
Authority; or
c. the holder of the No Objection Certificate has committed breach of
any of the terms and conditions of the No Objection Certificate or has not
paid rent for temporary alternate accommodation to the tenants or
occupants of such building, -
the Board may, after obtaining the prior approval of the
State Government, initiate the action for acquisition of such
building under the provisions of the Act and shall complete the
redevelopment work.".
30. It is important to note that the said Legislation has been passed for
redressing an issue of this very nature that crop up regularly before Courts where
occupants of the buildings are made to vacate their premises and then left in the lurch
by the Developers who are not able to complete the project, nor are they in a position
to provide alternate accommodation to the tenants, or compensation in lieu thereof.
Unfortunately, on that date of hearing of the Application we were informed that the
said Amendment will soon be brought into force. We therefore delayed the
pronouncement of this Order. However, till date the said Amendment is not brought
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into force. In our considered opinion, had the MHADA Amendment Act, been in
force today, this was a fit case for directing MHADA to exercise its powers under the
Amended Section 91-A of the Act.
31. Despite the above facts, since the above Amendment is till date not
brought into force and only since the Advocate for the Respondent Nos. 5 to 8 has
urged the Court to give a last opportunity to the Respondent Nos. 5 to 8 and grant
them some time as and by way of last chance / opportunity to show their bonafides to
pay the rent / monthly compensation within the stipulated time to the Petitioners and
to complete the construction of the rehab building so that the tenants are not rendered
homeless, we pass the following Order :
a. The Respondent Nos. 5 to 8 are directed to pay within a period of four
weeks from the date of uploading this Order, the outstanding monthly compensation
in lieu of temporary alternate accommodation to each of the Petitioners in Writ
Petition No. 800 of 2019 and Writ Petition No.394 of 2017 from August 2019 till July
2021, at the rate at which their respective rents were paid by the Developer till July
2019 and thereafter continue to pay monthly compensation in lieu of temporary
alternate accommodation to each of the Petitioners at the rate paid by the Developers
till July 2021, on or before the 10th day of each successive month, until the Developers
handover permanent alternate accommodation to the Petitioners in the said Petitions.
b. The Respondent Nos. 5 to 8 are directed to pay, within a period of four
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weeks from the date of uploading this Order, the outstanding monthly compensation
in lieu of temporary alternate accommodation to each of the Petitioners in Writ
Petition No. 3047 of 2019 till July 2021 at the rate stipulated in the Registered
Agreements executed between the Developer and the Petitioners in Writ Petition No.
3047 of 2019 and thereafter continue to pay monthly compensation in lieu of
temporary alternate accommodation to each of the Petitioners at the rate stipulated in
the Registered Agreements executed between the Developers and the Petitioners in
Writ Petition No. 3047 of 2019, on or before the 10 th day of each successive month,
until the Developers handover permanent alternate accommodation to the Petitioners
in the said Petition.
c. It shall be open for the Petitioners to claim any further arrears of rents
which they claim to be due, over and above as computed at the rate as stipulated above
from the Developers, before the appropriate forum, which shall be decided on its own
merits.
d. In the event the Developers makes any default in making any of the
payments as stated above, or breaches any of the directions contained in the present
Order, the NOC dated 21st October, 2014 and the IOD dated 21 st November, 2014
issued in favour of the Respondent Nos. 5 to 8, shall forthwith stand cancelled and it
shall be open for the tenants to apply to the relevant authorities, including MHADA,
to initiate process for acquiring the said Land and Building for the purposes of
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developing/completing the development of the said Building under the MHADA Act,
including the Amended Section 91A, if the same is brought into force.
e. In the event of the NOC dated 21 st October, 2014 and IOD dated 21st
November, 2014 being cancelled under the Order, and an Application being made by
the tenants for the purposes of initiating process for acquiring the said Land and
Building for the purposes of developing/completing the development of the said
Building, the same shall be considered and decided by the Respondent Nos.1 to 4
within a period of 3 months from the date of the Application.
f. In the event of the NOC dated 21 st October, 2014 and IOD dated 21st
November, 2014 being cancelled under this Order, on account of a default on part of
the Respondent Nos. 5 to 8, the Respondent Nos. 1 to 4 shall initiate such action as is
permissible by law, including attaching the moveable and immoveable assets of the
Respondent Nos. 5 to 8 to recover the outstanding amounts towards monthly
compensation in lieu of temporary alternate accommodation and to have the subject
Land and Building released from mortgage created in favour of State Bank of India.
i. Till the construction of the said Rehab Building is fully completed and
till a full Occupation Certificate is obtained for the said rehab Building, or in the event
the NOC dated 21st October, 2014 and IOD dated 21st November, 2014 stand cancelled
under this Order, and till all arrears towards rents are recovered and the subject Land
and Building are released from the Mortgage created in favour of State Bank of India,
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the Respondent Nos. 5 to 8 are hereby restrained, from in any manner whatsoever,
dealing with, selling, disposing of, creating third party rights with regards to any of the
moveable or immoveable assets disclosed in the Affidavits dated 06 th January, 2020
and 10th January, 2020, without the prior permission of this Court.
j. In the event that the Respondent Nos. 6 to 8 make any default with
respect to any of the payments as stated above, or breach any of the directions
contained in the present Order, Show Cause Notices shall be issued against
Respondent Nos. 6 to 8 under the Contempt of Courts Act, 1971, as to why they
should not be punished for contempt of various Orders of this Court as noted above.
k. Until Respondent Nos. 5 to 8 complies with the Order set out in Clauses
a, b and c above, Respondent Nos. 6 to 8 shall not leave the country without seeking
prior permission of this Court
l. Stand over to 31st August, 2021 for further orders / directions.
(SURENDRA P. TAVADE, J.) (S.J. KATHAWALLA,J.)
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