Bombay High Court
S. D. Svp Nagar Redevelopment ... vs State Of Maharashtra on 20 February, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
SD SVP Nagar & Anr v State of Maharashtra & Ors
12-oswpl-1163-2023-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1163 OF 2023
1. SD SVP Nagar
Redevelopment Private
Limited,
a company incorporated under the
provisions of the Companies Act, 1956
and having its registered office at
41/44, Minoo Desai Marg, Colaba,
Mumbai 400 005
2. Leena Ranadive
Authorised signatory of Petitioner
No.1, having his office address at 41/44
Minoo Desai Marg, Colaba,
Mumbai 400 005. ...Petitioners
~ versus ~
1. State of Maharashtra,
Through the Urban Development
Department, having its office at
Mantralaya, Mumbai 400 032.
2. The Municipal Corporation
of Greater Mumbai,
SHEPHALI a statutory corporation established and
SANJAY
MORMARE constituted under the provisions of the
Digitally signed
by SHEPHALI
Mumbai Municipal Corporation Act,
1888 having its office at
SANJAY
MORMARE
Date: 2023.02.21
Mahanagarpalika Building,
10:39:07 +0530
Mahanagarpalika Marg,
Mumbai 400 001.
Page 1 of 7
20th February 2023
SD SVP Nagar & Anr v State of Maharashtra & Ors
12-oswpl-1163-2023-J.doc
3. The Maharashtra Housing
and Area Development
Authority,
Grihanirman Bhavan, Kalanagar,
Bandra East, Mumbai 400 051. ...Respondents
A PPEARANCES
for the petitioners Mr Mayur Khandeparkar, with
Aryan Srivastava, i/b Wadia
Ghandy & Co.
for respondent no.1- Mr Abhay Patki, Addl GP.
state.
for respondent Mr Sagar Patil.
no.2-mcgm.
for respondent Mr PG Lad, with Sayli Apte & Shreya
no.3-mhada Shah.
CORAM : G.S.Patel &
Neela Gokhale, JJ.
DATED : 20th February 2023
ORAL JUDGMENT (Per GS Patel J):-
1. Heard. Rule. Rule returnable forthwith. Respondents waive
service.
2. The issue is narrow. The 3rd Respondent, Maharashtra
Housing and Area Development Authority ("MHADA") owns a
cluster plot No. AD-90 of about 1168.86 square metres at Survey
20th February 2023
SD SVP Nagar & Anr v State of Maharashtra & Ors
12-oswpl-1163-2023-J.doc
No. 120 at Versova. MHADA developed this land and divided it into
some 31 plots, which it then allotted to various individuals. These
allottees then constituted themselves into the Versova Andheri
Shantivan Co-operative Housing Society Limited ("the Society").
3. On the Society's application, MHADA and the Society
executed a Lease Deed dated 15th October 1993. The Society and its
members constructed some buildings and tenements on this land.
4. By 2010, these structures and tenements had fallen into
disrepair. They were in urgent need of reconstruction after
demolition. The Society invited offers and expressions of interest
from various developers. In 2013, the Society granted
redevelopment rights to the 1st Petitioner. This is a developer
company. On behalf of the Society, it made applications to MHADA
which, on 26th March 2013, issued an offer letter in the name of the
Society to grant a no objection for the redevelopment of the land.
Pausing briefly for a moment, to explain precisely what this means,
the Society wanted to redevelop the land but the Society was a
lessee from MHADA. MHADA's consent was therefore required
for redevelopment. MHADA was willing to grant that no objection
for redevelopment but this obviously came at a price, or a premium.
Hence the so-called offer. What MHADA said was that for a
payment of Rs.5,19,20,186.00, within six months from the date of
the offer letter, MHADA would issue the required no objection.
Some time went by. On 30th September 2013, the Society asked
MHADA to revalidate its offer. Thereafter the 1st Petitioner made
payments in the aggregate of Rs.5,19,20,186.00. Some payments
20th February 2023
SD SVP Nagar & Anr v State of Maharashtra & Ors
12-oswpl-1163-2023-J.doc
were to MHADA, and some were to the Municipal Corporation of
Greater Mumbai ("MCGM") A table showing the payments and
particulars is in paragraph 3.8. There are some receipts as well.
Copies are annexed. Then there is no dispute about the payments.
There is also no dispute that MHADA did grant a no objection
certificate or NOC dated 7th November 2014.
5. On 23rd May 2018, the State Government's Urban
Development Department notified MHADA as the planning
authority for various areas. One of those was the area where this
land is located.
6. The developer tried to get approval but could not proceed.
The land was affected by CRZ-II Regulations. On 6th November
2020, the 1st Petitioner wrote to MHADA saying that it could not
obtain the approvals required and could not proceed with the
redevelopment. The 1st Petitioner had not acted upon the MHADA
NOC at all. Consequently, the 1st Petitioner asked for a refund of
the premia that it had paid. On 6th November 2020, the Society also
wrote to MHADA saying that the Society did not object to the
amount being refunded to the 1st Petitioner. On the 1st Petitioner's
request, MHADA cancelled its redevelopment NOC by a letter of
30th March 2021. It also confirmed the amount to be refunded to
the 1st Petitioner. A copy of this letter is at Exhibit "H".
7. In April 2021, MHADA refunded a sum of Rs.2,38,24,764.00
by RTGS. This is also not disputed. The online payment details are
at Exhibit "I". On 3rd May 2021, the 1st Petitioner asked the 2nd
20th February 2023
SD SVP Nagar & Anr v State of Maharashtra & Ors
12-oswpl-1163-2023-J.doc
Respondent, the MCGM to refund a part of the payment because as
the table at paragraph 3.8 shows, some of the total expenditure made
by the 1st Petitioner was to the MCGM. The MCGM acknowledged
receipt but did not reply. Therefore the 1st Petitioner wrote to
MHADA on 13th February 2021, asking it to direct the MCGM to
refund the amount of Rs.2,42,35,076.00. Of course, this was
accompanied by a more than somewhat ambitious demand for 9%
compound interest, but we will let that pass.
8. On 18th May 2021, the 1st Petitioner requested MHADA for
a refund (again making a demand for compound interest). Paragraph
3.19 is interesting. The Petitioners filed an RTI query and that
revealed certain internal correspondence between MHADA,
MCGM and the State Government. It seems that a certain amount
has been transferred to the "Maharashtra Nivara Nidhi".. The funds
were locked up with this Nidhi. They had to be routed back to
MHADA for it to make a refund to the 1st Petitioner.
9. The Petition, therefore, presents a simple point. The amount
required by MHADA under its offer letter was for its NOC for
redevelopment. That redevelopment never happened. It was found
not to be possible because of the CRZ-II Regulations. MHADA was
informed of this. MHADA cancelled its NOC. It is impossible to
accept that either MHADA or MCGM could retain any part of the
payment. That payment was made only to obtain the NOC. If the
payment is not against some dues that have already been incurred,
the payment is a fee or a premium that is by its nature refundable. If
the development does not happen and the NOC itself for
20th February 2023
SD SVP Nagar & Anr v State of Maharashtra & Ors
12-oswpl-1163-2023-J.doc
redevelopment stands cancelled, then there is clearly a complete
failure of consideration and there is no possibility of either MHADA
or the MCGM retaining any part of the amount.
10. It is of no consequence to us or, for that matter. to the
Petitioners, where the amount paid by the Petitioners has been
invested or placed. The Petitioners had no say in the matter.
11. Prayers (a) and (b) of the Petition at pages 23 and 24 read
thus:
"(a) That this Hon'ble Court be pleased to issue a writ of
mandamus and/or any other writ, order or direction in the
nature thereof directing Respondent No.2 to refund the
amount of Rs. 2,42,35,076/- (Rupees Two Crore Forty Two
Lakh Thirty-Five Thousand Seventy-Six only) along with
9% interest thereon within a period of 2(two) weeks or
within such time this Hon'ble Court deems fit;
(b) That this Hon'ble Court be pleased to issue a writ of
mandamus and/or other writ, order or direction in the
nature thereof directing Respondent No.3 to refund the
amount of Rs.2,78,53,222.00 (Rupees Two Crores Seventy-
Eight Lakh Fifty-Three Thousand Two Hundred Twenty-
Two only) along with 9% interest thereon within a period of
2(two) weeks or within such time this Hon'ble Court deems
fit."
12. In fairness, Mr Khandeparkar points out that the amount due
from each of the Respondents is actually less than what is stated in
the prayers. He draws attention to the table in paragraph 3.8 and
says that so far as the MCGM is concerned, the Petitioners are
entitled to refund of only items 1, 3, 4 and 5 of the first part of the
20th February 2023
SD SVP Nagar & Anr v State of Maharashtra & Ors
12-oswpl-1163-2023-J.doc
table. So far as MHADA is concerned, 50% has been paid of Item 3
in the second part of the table. The balance and item 5 are due. The
amount due from MHADA is Rs. 2,56,98,711/- not Rs.
2,78,53,222/-. The amount due from MCGM is Rs. 2,36,03,076/-
and not Rs. 2,42,35,076/-. The amounts in the prayers should be
read accordingly.
13. In view thereof, Rule is made absolute in terms of prayer
clauses (a) and (b) with the corrected amounts as shown above.
14. The payment is to be released to the Petitioners within six
weeks from today. As to the question of interest, we have nothing to
say on the subject and leave it to the Petitioners to file a civil suit, if
they are so inclined.
(Neela Gokhale, J) (G. S. Patel, J)
20th February 2023
