Upkar Singh Lalsingh Kochhar vs Maharashtra Housing And Area ...
2023 Latest Caselaw 1137 Bom

                                           906-OSWPL-12246-2021+F.DOC




Gaikwad RD



   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICTION
                WRIT PETITION(L) NO.12246 OF 2021


Upkar Singh Lalsingh Kochhar                             ...Petitioner
     Versus
Maharashtra Housing & Area Development
Authority & Ors                                       ...Respondents

                               WITH
             SUO MOTU WRIT PETITION NO. 1 OF 2023

High Court on its own Motion                            ... Petitioner
       Versus
State of Maharashtra & Ors                            ...Respondents


Mr Upkar Singh Lalsingh Kochhar, Petitioner-in-person present.
Mr PG Lad, with Sayli Apte, for Respondent No.1/MHADA in
     WPL/12246/2021 & for Respondent No.2 in SMWP/1/2023.
Mr Gautam Ankhad, with Hiral Thakkar, Viral Dilip Shukla, Priti
     Viral Shukla & Rudra Dani, i/b M/s Shukla & Associates, for
     Respondent No.3 in WPL/12246/2021 & for Respondent No.4 in
     SMWP/1/2023.
Mrs PH Kantharia, Government Pleader, with Hemant Haryan
     AGP, for Respondent No.1/State in SMWP/1/2023.
Mr Anil Sakhare, Senior Advocate, with Sagar Patil, for Respondent
     No.3/MCGM in SMWP/1/2023.
Mr Sekhar Paradkar, Ward Inspector (Assessment) - 'D' Ward
     present.
Mr Pranav Yeole, Junior Engineer (B & F) - 'D' Ward present.




                             Page 1 of 5
                          3rd February 2023
                                             906-OSWPL-12246-2021+F.DOC




                      CORAM        G.S. Patel &
                                   Dr Neela Gokhale, JJ.

                      DATED:       3rd February 2023
PC:-

1. Mr Sakhare is instructed by officers from the Assessment Department. He states on instructions that property tax dues for Ratilal Mansion have accumulated to about Rs.6,02,12,721/-. A further amount of about Rs.1,34, 928/- is due towards MHADA cess as on March 2019. The MCGM attached the property in question sometime in 2019. Photographs tendered by Mr Sakhare show that the partly-built construction up to the 9th floor is indeed in a poor condition. That set of photographs and MHADA's covering communication of 3rd February 2023 are taken on record and marked "X-1" for identification with today's date.

2. For his part, Mr Lad on behalf of MHADA states that while the structure is indeed lying unattended, MHADA is in the process of appointing a structural consultant because a more careful and detailed structural audit is necessary. This is undoubtedly true because even today nobody is able to tell whether the partly-built structure can be completed or whether it needs to be demolished and the entire project begun afresh. We request Mr Lad to place the structural audit report after four weeks.

3. The building is currently sealed by the MCGM. Mr Sakhare states that there will be no hindrance to the Structural Engineer from MHADA inspecting the premises and carrying out the

3rd February 2023 906-OSWPL-12246-2021+F.DOC

necessary tests. We would request the Structural Engineer to carry out the maximum possible non-destructive tests so that there is no controversy about his report.

4. Mr Lad also draws our attention to the Maharashtra Housing and Area Development (Amendment) Act 2020 which received Presidential assent on 2nd December 2022. This has been notified in the Maharashtra Government Gazette. For completeness, Mr Lad's covering report, photographs and the copy of the Gazette are taken on record and marked "X-2" for identification with today's date.

5. For future reference and for convenience, a copy of the Gazette Notification of the Amendment Act is annexed to this order.

6. The amending Act essentially allows, by way of an amendment to Section 77 of the MHADA Act, that MHADA may itself undertake redevelopment as provided in Section 91-A. This is in contra-distinction to an earlier regime where MHADA was arguably limited to carrying out repairs but could not itself carry on redevelopment.

7. There is also the addition of Section 79-A to the MHADA Act. But this prima facie seems to apply to a situation where the building in question is declared dilapidated by the MCGM and is the subject of a declaration by the MCGM under Section 354 of the Mumbai Municipal Corporation Act 1888.

3rd February 2023 906-OSWPL-12246-2021+F.DOC

8. To put the matter into perspective, the old building, Ratilal Manson, was in fact completely demolished. What we are concerned with is an in-between position where there is now a partly built new construction, which itself is not only incomplete but which has suffered by lying unattended for nearly a decade. This partly-built structure is not yet the subject matter of a Section 354 notice or declaration. Section 79-A would not, prima facie, be attracted in such a case.

9. The question that then arises and which we propose to address not only for this matter but generally, is for the assistance of Society and for MHADA as to how MHADA should ideally go about the process of redevelopment in such cases, which we may broadly call pipeline cases. This means that there is a redevelopment project that has halted before completion with the Society members being denied transit rent and also being out of their homes. Specifically, the dilemma before the Society and MHADA is not just about the structural audit and engineering technicalities, but about now making a proper, informed choice of a developer.

10. For this reason, and while the structural audit is going on, we seek the assistance of Ms Kantharia on behalf of State Government to ascertain whether an authority such as the Maharashtra RERA can identify, classify or rate developers according to such measure or metrics that it deems appropriate. This would be to the benefit of Society such as this one, as also MHADA, and would minimize the risk to a considerable extent in project completion. With a developer

3rd February 2023 906-OSWPL-12246-2021+F.DOC

database accessible, both the Society and MHADA would be able to make a better informed decision about the choice of developer.

11. We clarify that we are not issuing any directions or orders to MahaRERA. We would only like to know (a) if there exists such a database of developers; (b) whether MahaRERA has a rating system; and (c) if not, whether MahaRERA is willing to consider developing one. We have outlined one particular advantage to having such a system. There may be other benefits. Equally, there may be issues or pitfalls that we have not foreseen or considered. We, therefore, approach MahaRERA not just as a statutory authority, but as a body with specialized knowledge, expertise and data, seeking its assistance.

12. List the matter on 3rd March 2023.

                               (Dr Neela Gokhale, J)                                   (G. S. Patel, J)

            Digitally signed
            by RAJU
            DATTATRAYA
RAJU       GAIKWAD
DATTATRAYA
           Date:
GAIKWAD    2023.02.06
            20:31:20
            +0530





                                                           3rd February 2023
                           
                                                                                                           RNI No. MAHENG /2009/35528




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  ]                                       [    

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      In pursuance of clause (3) of article 348 of the Constitution of India, the following translation in English of the Maharashtra Housing and Area Development (Amendment) Act, 2020 (Mah. Act No. XLVIII of 2022) is hereby published under the authority of the Governor.

By order and in the name of the Governor of Maharashtra,

SATISH WAGHOLE, I/c. Secretary (Legislation) to Government, Law and Judiciary Department.

--------------------

MAHARASHTRA ACT No. XLVIII OF 2022.

(First published, after having received the assent of the President in the "

Maharashtra Government Gazette ", on th 2nd December 2022.) An Act further to amend the Maharashtra Housing and Area Development Act, 1976.

Mah. WHEREAS it is expedient further to amend the Maharashtra Housing XXVIII and Area Development Act, 1976, for the purposes hereinafter appearing; it of 1977. is hereby enacted in the Seventy-first Year of the Republic of India as follows :--

1. This Act may be called the Maharashtra Housing and Area Short title. Development (Amendment) Act, 2020.

Mah. 2. In section 77 of the Maharashtra Housing and Area Development Amendment XXVIII Act, 1976 (hereinafter referred to as "the principal Act"), after clause (a), the of section 77 of 1977. following clause shall be inserted, namely :-- of Mah.

XXVIII of "(a-1) undertake the redevelopment projects provided in section 1977. 91-A;".

                                                  
                         

Insertion of a 3. After section 79 of the principal Act, the following section shall be new section inserted, namely :-

79-A in Mah.

XXVIII of 1977.

Procedure of "79-A. (1) Notwithstanding anything contained in sub-section (3) redevelopment of section 88 and section 92 of this Act and sections 354 and 499 of the III of in case of dangerous Mumbai Municipal Corporation Act, in case of the building to which the 1888. buildings provisions of sub-section (1) of section 82 applies (hereinafter in this declared by Act referred to as "cessed building"), which is declared dangerous Mumbai by the Mumbai Municipal Corporation under section 354 of the Mumbai III of Municipal Municipal Corporation Act or by the competent authority, if the 1888. Corporation or competent redevelopment of such building is not taken up by the owner or landlord authority. of the cessed building, within three months from the date of issue of notice under section 354 of the Mumbai Municipal Corporation Act by III of the Mumbai Municipal Corporation or the competent authority, the 1888. Board may adopt the following procedure :-

(a) a notice shall be issued to the owner or landlord of the cessed building to submit the proposal for redevelopment within six months from the date of issue of notice. Alongwith the proposal, consent of fifty-one per cent. of the occupants or tenants of the said building shall be accompanied ;

(b) if the owner or landlord fails to submit the proposal within the period and the manner as provided in clause (a), the proposed co-operative housing society of the occupants or tenants of such building may submit the proposal to the Board, for redevelopment of such building under the relevant provisions of the Development Control and Promotion Regulations-2034 for Greater Mumbai, within six months from the date of communication received from the Board. The proposal shall be accompanied with the consent of at least fifty-one per cent. of the occupants or tenants :

Provided that, when the building is redeveloped by the proposed co-operative housing society, the compensation to the owner or landlord shall be paid by the concerned co-operative housing society as per the provisions of sub-section (2) ;

(c) if the redevelopment is not initiated within the period and manner as provided in clauses (a) and (b), the Board shall reconstruct the building by acquiring such building, without insisting on consent of at least fifty-one per cent. of the occupants or tenants of the said building.

(2) When the building is redeveloped under the provisions of clauses

(b) and (c) of sub-section (1), the compensation shall be paid to the owner or landlord, at the rate of twenty-five per cent. of the amount of Ready Reckoner Rates, determined under the Maharashtra Stamp (Determination of True Market Value of Property) Rules, 1995 of the open land of such building or fifteen per cent. of the built-up area of sale component determined as per the Ready Reckoner Rates, whichever is higher.

Explanation.- For the purposes of this sub-section, "sale component" means the built-up area remaining after deducting Rehab Built-up Area from the permissible Built-up Area admissible as per the relevant   provisions of the Development Control and Promotion Regulations-2034 for Greater Mumbai.

(3) If the building is redeveloped by the Board under clause (c) of sub-section (1), subject to the provisions of sub-section (2) for payment of compensation, the provisions of sections 92 and 93 shall mutatis mutandis apply, for acquisition of such building.".

4. After section 91 of the principal Act, the following section shall be Insertion of a inserted, namely :- new section 91-A in Mah.

XXVIII of 1977.

"91-A. Notwithstanding anything contained in any of the provisions Procedure in of Chapter VIII or any other law for the time being in force or in any case of agreement, contracts, judgment, decree or order of any Court or Tribunal incomplete or stalled to the contrary, in cases where, after obtaining No Objection Certificate projects. 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 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.".

  Amendment 5. In section 95-A of the principal Act,-

   of section
      95-A of           (1) in sub-section (1),-
 Mah. XXVIII

of 1977. (a) for the words and figures "not less than 70 per cent." the words and figures "not less than 51 per cent." shall be substituted;

(b) in the proviso, after the words "temporary accommodation"

the words "or to pay rent in lieu thereof" shall be added; (2) in sub-section (3), after the words "summary eviction" the words "or be shifted in Board Transit Camp wherever available" shall be added.

ON BEHALF OF GOVERNMENT PRINTING, STATIONERY AND PUBLICATION, PRINTED AND PUBLISHED BY DIRECTOR, RUPENDRA DINESH MORE, PRINTED AT GOVERNMENT CENTRAL PRESS, 21-A, NETAJI SUBHASH ROAD, CHARNI ROAD, MUMBAI 400 004 AND PUBLISHED AT DIRECTORATE OF GOVERNMENT PRINTING, STATIONERY AND PUBLICATIONS, 21-A, NETAJI SUBHASH ROAD, CHARNI ROAD, MUMBAI 400 004. EDITOR : DIRECTOR, RUPENDRA DINESH MORE.