Bombay High Court
Ansari Jamal Akhtar Abdullah And ... vs Municipal Corporation Of Greater ... on 15 November, 2022
Bench: R.D. Dhanuka, Kamal Khata
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2022.11.19
11:58:35 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.13551 OF 2022
ALONG WITH
INTERIM APPLICATION (L) NO.16031 OF 2022
Ansari Jamal Akhtar Abdullah & Ors. ] ... Petitioners
Vs.
Municipal Corporation of Greater ]
Mumbai & Ors. ] ... Respondents
...
Mr. Ashish Kamat with Mr. Bhavin Gada and Mr. Mangesh
Bansod and Mr. Sumeet Bansod i/b M/s. Law Loyals for the
petitioners.
Mr. Dharmesh Vyas with Ms. Pooja Yadav i/b Mr. Sunil
Sonawane for respondent Nos.1 to 3.
Mr. Chetan Kapadia i/b Mr. Pratik Shah for respondent No.4.
Mr. Mayur Khandeparkar with Mr. Chirag Sarawagi, P.R.
Zaiwalla i/b Mr. Tushar Goradia for respondent No.4.
...
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
DATED : 15TH NOVEMBER, 2022.
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P.C.:-
1. By this petition filed under Article 226 of the Constitution
of India, the petitioners have prayed for a writ of mandamus
against respondent Nos.1 to 3 from directly or indirectly
interfering, obstructing or otherwise prejudicing the peaceful
possession of the petitioners of their respective premises. The
petitioners have further prayed for a writ of certiorari for
quashing and setting aside (I) the report dated 11/01/2018 of the
Technical Advisory Committee (for short, "the TAC"),
impugned Development Proposal dated 18/02/2019 submitted by
respondent No.5 appointing respondent No.4 with the officers of
respondent Nos.1 to 3, Letter of Intent dated 10/12/2021 and
Intimation of Disapproval dated 31/12/2021 granted by the
Municipal Corporation to respondent No.4 in respect of the
redevelopment of the chawl.
2. The petitioners claim to be the tenants/occupants and/or
heirs of the tenants/occupants of the building known as 'Lambi
Cement Chawl' (for short, "the chawl"). The said chawl was
constructed on the plot of land owned by the Municipal
Corporation. The chawl consists of 223 tenanted residential
premises, 11 tenanted commercial premises and 54 tenanted
looms.
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3. On 27/09/2013, the BMC staff quarters, being in
dilapidated condition, collapsed. On 20/04/2014, the Municipal
Commissioner visited the chawl along with TAC members. On
08/05/2014, the TAC prepared a report after visiting the chawl.
Some of the tenants formed the proposed Society on 30/05/2015.
4. On 15/11/2016, around 70 tenants filed a writ petition
being Writ Petition No.211 of 2017 challenging the notice dated
10/11/2016. The said writ petition was disposed off on
12/12/2017 directing the Municipal Corporation to refer the case
of the subject building to TAC. The TAC on 11/01/2018
declared the said chawl as C-1 category structure.
5. Some of the tenants filed a writ petition being Writ Petition
No.895 of 2019 in this Court impugning the order passed by the
TAC. On 19/12/2017, few of the tenants approached Veermata
Jijabai Technological Institute (for short, "VJTI") for
conducting structural audit of the chawl. According to the
petitioners, after the audit, the said VJTI, classified it as C2B
category structure.
6. It is the case of the petitioners that the petitioners came to
know sometime in the year 2018 that one Grace and Rubberwala
City Developers, including respondent No.4, had been
blacklisted by the Municipal Corporation. In the writ petition
filed by the said Grace and Rubberwala City Developers against
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the blacklisting, till date, no relief has been granted in favour of
the said developers.
7. It is the case of the petitioners that though the said
developers viz. Grace and Rubberwala was blacklisted along
with their sister concerns, the Municipal Corporation agreed to
give the contract of redevelopment to respondent No.1, who
according to the petitioners, is a sister concern of the Grace and
Rubberwala City Developers.
8. On 14/03/2019, respondent No.1-TAC gave its opinion on
the proposal submitted for redevelopment of the chawl. Consent
of the tenants came to be verified by the Estate Department of
respondent No.1 and submitted a report on 07/12/2019 on
Consent Verification submitted by respondent No.4. According
to the petitioners, there are several discrepancies in the said
Consent Verification report.
9. On 24/05/2021, this Court in the Writ Petition No.895 of
2021 directed the petitioners therein/occupants to vacate the
premises within two weeks from the date of the said order.
Respondent No.5-Society is registered on 14/06/2021.
10. On 25/04/2022, the petitioners filed this petition.
11. Mr. Kamat, learned counsel for the petitioners submitted
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that the petition is filed by 85 occupants. He submitted that the
development agreement entered into between the Society and
respondent No.4 is not in accordance with the requirement of
Guidelines framed by the Municipal Corporation. Relevant
provisions of the Guidelines have not been followed by the
respondents. The requisite consent of the number of tenants
required to be obtained for carrying out redevelopment has not
been obtained. Though the said Grace and Rubberwala City
Developers is blacklisted, the Municipal Corporation
deliberately allowed respondent No.4, the sister concern of the
said blacklisted developer to carry out the redevelopment. In
support of his submission learned counsel also placed reliance on
various documents annexed to the petition and also the judgment
passed by this Court in Public Interest Litigation No.65 of 2013
filed by one Imran Suleman Qureshi against respondent No.4
herein and the order passed by the Supreme Court on 11/11/2022
in Special Leave Petition (C) No.19621 of 2022. He submitted
that the conduct of respondent No.4 is deprecated by this Court
and also by the Supreme Court in those proceedings.
12. It is submitted by learned counsel that the survey required
to be carried out by the Municipal Corporation before granting
permission to carry out redevelopment has not been carried out.
He relied upon the photocopies of few Consent Verification
annexed at page No.444 and submitted that the signatures of the
tenants were not found on the so-called Consent Verification. He
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submitted that the development agreement dated 25/08/2015 is
not a registered document.
13. Learned counsel for the petitioners relied upon the
affidavit in reply filed in writ petition filed by the Grace and
Rubberwala City Developers in support of the submission that
the Municipal Corporation had defended their action of
blacklisting the said developer, but awarded the contract for
redevelopment in favour of respondent No.4, a sister concern of
the said Grace and Rubberwala City Developers.
14. Mr. Kapadia, learned counsel for respondent No.4, on the
other hand, opposed this petition vehemently and submitted that
the project in question is governed by the provisions of the
DCPR - 2034 and not D.C. Regulations 1991. The said DCPR -
2034 had come into effect on 08/05/2018. Under the said DCPR
- 2034, consent of 51% of the tenants is required and not 70%
as sought to be canvassed by the petitioners. He submitted that
all the steps in this case has been taken after 08/05/2018. He
invited our attention to various documents annexed to the
petition and submitted that the consent of more than 51% tenants
was already obtained by the Society. He submitted that the
Municipal Corporation also admitted this position and only after
verifying these documents has permitted the Society and the
developer to proceed with the redevelopment of the chawl. He
submitted that all the tenants have already vacated; their
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respective structures/existing building has already been
demolished; the piling work has been completed and the
developer has already started excavation activities on the plot. 5
of the petitioners have accepted transit rent, 9 of the petitioners
have already accepted transit accommodation from the
Municipal Corporation, 23 of the petitioners have not been
recognized in Annexure-II and 8 of the petitioners have
consented for redevelopment.
15. It is submitted by learned counsel that the proposal of the
developer was submitted by the Society under Regulation 33(7)
of the DCPR - 2034. The said proposal was scrutinized by the
Municipal Corporation and was put up before the Improvement
Committee and was duly sanctioned by the General Body of the
Corporation. It is submitted that the issue of blacklisting raised
by the petitioners has already been rejected by this court by an
order passed by this Court in writ petition filed by some of the
tenants on 20/10/2022. This Court while dismissing the said
Writ Petition (L) No.6855 of 2022 rejected the contention raised
by the petitioners about the alleged blacklisting of respondent
No.4.
16. He submitted that similar contention now raised by these
petitioners cannot be allowed to be raised. More than 67% of the
tenants have already given their consent for carrying out
redevelopment. It is submitted by Mr. Kapadia that his clients
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would comply with all the guidelines including execution of any
other writing as prescribed in the Guidelines framed by the
Municipal Corporation.
17. Mr. Khandeparkar, learned counsel for the Society
submitted that the petitioners have not challenged or raised any
ground that the consent of more than 51% of tenants by the
Society is invalid. He relied on a document at page No.359 in
support of his submission that more than 51% of the tenants have
given their consent. He submitted that though there are 85
tenants/occupants, who have filed this petition, according to him,
there are only 52 tenements and not 85. He submitted that three
of the tenants/occupants have already settled.
18. Learned counsel for the Municipal Corporation opposed
the petition and adopted the submissions made by Mr. Kapadia,
learned counsel for respondent No.4 and Mr. Khandeparkar,
learned counsel for the Society. He submitted that the Municipal
Corporation is the Lessor of the plot. The old building was
occupied by the tenants of the Municipal Corporation. Those
tenants have formed the Society. Since the building was in
dilapidated condition, the Society has sought permission for
redevelopment, which was duly granted by the Municipal
Corporation. He submitted that the Municipal Corporation had
duly considered the consent given by more than 51% of the
tenants.
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19. Insofar as the submission of Mr. Kamat, learned counsel
for the petitioners that the Municipal Corporation had granted
permission to carry out redevelopment in favour of a blacklisted
contractor is concerned, this issue has been dealt with in detail
by this Court in the order dated 20/10/2022 in Writ Petition (L)
No.6855 of 2022 in case of Ansari Mohd. Tahir Mohd. Sadique
& Ors. v. State of Maharashtra & Ors., while dismissing the
writ petition filed by a large number of tenants/occupants, inter
alia, praying for setting aside of IOD dated 31/12/2021 and the
Report dated 02/02/2021 submitted by the TAC. We are
informed that the said order has not been challenged by any of
the parties. We do not propose to take a different view in the
matter.
20. Insofar as the submission of learned counsel for the
petitioners that the development agreement is not signed in
accordance with the Guidelines prepared by the Municipal
Corporation is concerned, no such objection was raised by the
Municipal Corporation. Be that as it may, Mr. Kapadia, learned
counsel for respondent No.4 has agreed that all writings as
required under the Guidelines framed by the Municipal
Corporation would be executed. A large number of tenants have
either not challenged the redevelopment or having challenged,
have failed in their challenge before this Court. This Court by an
order dated 20/10/2022 has considered similar arguments and
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has rejected the writ petition. This Court has held that the
petitioners therein could not point out as to what prejudice has
been caused to the petitioners, if the redevelopment is carried out
by the developer appointed by the Society. This Court has held
that respondent No.4 was not appointed by the Municipal
Corporation, but by the Society.
21. Insofar as the issue raised by the petitioners that consent of
70% of the tenants was not obtained by the Society is concerned,
in our view, the redevelopment under question is governed by
the DCPR - 2034. All the steps are taken after 08/05/2018.
Under the DCPR - 2034, consent of 51% of the tenants was
required for the purpose of carrying out redevelopment. Perusal
of the record clearly indicates that consent of much more than
51% of the tenants has already been obtained and also confirmed
by the Municipal Corporation. There is no merit in the
submission made by learned counsel for the petitioners.
22. Insofar as the order passed by this Court in Public Interest
Litigation No.65 of 2013 and the order passed by the Supreme
Court in Special Leave Petition (C) No.19621 of 2022 on
11/11/2022 against respondent No.4 are concerned, those
observations are in respect of some other transaction. The said
observations made by this Court as well as the Supreme Court in
respect of other transaction cannot be made applicable to the
contract awarded to respondent No.4 by the Municipal
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Corporation in this case in a different circumstance. The said
development agreement is already acted upon. The tenants have
already vacated. The building is already demolished. The
developer has already completed the piling work and has started
excavation activities. The developer has already spent
substantial amount in the project. If the process of development
is interfered with by this Court at this stage, all the tenants, who
have already vacated their tenements would be seriously
prejudiced. The writ petition is thoroughly misconceived and is
accordingly dismissed with costs quantified at Rs.1,00,000/-
(Rupees One Lakh only), which shall be paid by the petitioners
to the Maharashtra State Legal Services Authority within two
weeks from today.
23. The petitioners shall produce the receipt acknowledging
the payment of costs to the Associate of this Court.
24. In view of the dismissal of the writ petition, the interim
application does not survive and stands dismissed.
[KAMAL KHATA, J.] [R. D. DHANUKA, J.]
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