Bombay High Court
Narayan Dhyanchandbhai Darji vs Mangal Buildhome Pvt Ltd And 12 Ors on 20 March, 2023
Bench: G. S. Kulkarni, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 5130 OF 2022
1. Raj M. Ahuja
2. Jain M. Ahuja ... Petitioners
Versus
1. The Municipal Corporation of Gr.Mumbai
through the Municipal Commissioner.
2. The Executive Engineer (Building
Proposals), Municipal Corporation of
Gr.Mumbai. ...Respondents
WRIT PETITION (LODG) NO.8486 OF 2022
with
INTERIM APPLICATION (L) NO.1929 OF 2023
with
INTERIM APPLICATION (L) NO.1323 OF 2023
M/s.Mangal Buildhome Pvt.Ltd. ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
Mr.Ashish Kamat, Senior Advocate with Mr.Mayur Khandeparkar with
Ms.Pooja Kane-Kshirsagar, Mr.Jitendra Jain, Mr.Laxman Jain, Rohit
Bamne i/b. Yogesh Adhia, for Petitioners in WP 5130/22
Mr. Mayur Khandeparkar a/w Mr. Rajesh Sharma, Ms.Tehashree Paraz i/
b Rajesh Sharma & Associates for Petitioner in WPL/8486/2022
Mr.Amarendra Mishra for Respondent Nos.3 to 9 in WP 5130/22.
Mr. S. K. Pise with Shahin K. Sayed for Applicant in IAL/1929/2023 and
1323/2023 and for R. No. 7 and 9 in WPL/8486/2022.
Mr.Sukanta Karmakar, AGP for Respondent No.1 State in WPL 8486/22.
Mr. A. Y. Sakhare, Senior Advocate a/w Ms. Vandana Mahadik for
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MCGM in WPL/8486/2022
Mr.Dharmesh Vyas with Ms.Vandana Mahadik, for MCGM in WP
5130/22.
_______________________
CORAM: G. S. KULKARNI &
R. N. LADDHA, JJ.
Reserved on: MARCH 15, 2023
Pronounced on : MARCH 20, 2023
_______________________
JUDGMENT: (Per G.S.Kulkarni, J.)
1. These are petitions under Article 226 of the Constitution of India,
concerning redevelopment or construction of new buildings. The
existing buildings were demolished, after being declared dilapidated and
dangerous, and were facing action for their demolition under Section
354 of the Mumbai Municipal Corporation Act,1888 (for short 'the MMC
Act').
2. A short question of contemporary importance, which arises for
determination in these petitions is as to whether the Municipal
Corporation for Greater Mumbai (for short 'MCGM') would be justified
in imposing a condition that the owner/landlord who intends to
undertake redevelopment of a demolished building, is required to obtain
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100% consent of all the erstwhile tenants/occupants, by submitting to
the MCGM, 'permanent alternate accommodation agreements', executed
with all the tenants, as a condition for issuance of a commencement
certificate (CC), stated to be mandated by Clause 1.15 of the
"Guidelines issued by the MCGM for declaring private and municipal
buildings as 'C-1' category (Dangerous, Unsafe)" (for short "the 2018
Guidelines") and a similar consequential condition in the Intimation of
Disapproval (IOD).
3. For convenience, we refer to the facts in the first Petition (Raj M.
Ahuja & Anr. Vs. The Municipal Corporation of Gr.Mumbai & Ors.).
4. The petitioners are owners of land bearing Survey No.113(part)
and Survey No.114(part) and bearing CTS No.89/A, 89/A 1 to 13 of
Village Pahadi Eksar, Taluka Goregaon, situated at Jay Prakash Nagar
Road No.2, Goregaon (East), Mumbai. There was an existing building
on such land, having ground plus one upper floor known as 'Madhu
Estate' having an industrial user. It housed 39 industrial units. There
were 17 tenants on the ground floor. Respondent Nos. 3 to 9 are some
of the tenants out of the 17 tenants.
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5. It is not in dispute that on 22 July 2017, MCGM had issued a
notice to the petitioners under Section 354 1 of the MMC Act. Also the
Technical Advisory Committee (TAC) of the MCGM had inspected the
petitioners' building and had declared the same to be dangerous falling
within 'C-1' category. Consequent to such notice, the petitioners
requested the occupants / tenants to vacate the subject building. On 26
December 2017 the MCGM had prepared a list of
tenants/occupants/owners occupying the units, alongwith the carpet
area statement, of each of the units, in the building, which forms part of
the record of the MCGM. After all the formalities were completed, in
December 2017, the MCGM demolished the building.
6. Out of the 39 units housed in the building, 22 units were on the
first floor which were owned by the erstwhile owners of the building
and some of which were let out on leave and licence to third parties.
There is no dispute in regard to any rights being claimed by any third
parties in respect of those 22 units. The remaining 17 units which were
on the ground floor, were in occupation of the tenants. Out of said 17
units, two tenants surrendered their rights in favour of the petitioners.
There is an eviction decree passed against four tenants, the proceedings
1 Sec.354. Removal of structures, etc., which are in ruins or likely to fall.
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in that regard are sub-judice before the Small Causes Court at Mumbai.
Out of the 17 units, in regard to 5 units the petitioners have entered into
agreements/consent terms for permanent alternate accommodation. A
suit for eviction has been filed by the petitioners against one of the
tenants on the ground of sub-letting, which is pending before the Small
Causes Court. Also, there are suits filed by the petitioners against the
tenants in respect of 6 units, which are stated to be pending before the
Small Causes Court. Thus, there are only 7 occupants (Respondent
Nos.3 to 9) who are the disputing occupants, who are not ready and
willing to enter into a permanent alternate accommodation agreement
(for short "PAAA"). They are stated to be the non-consenting members.
7. The case of the respondent Nos.3 to 9 is to the effect that they are
entitled for a permanent alternate accommodation only in an industrial
building which they contend would be in accordance with the guidelines
laid down by a Division Bench of this Court in Writ Petition (L) No.1135
of 2014 (finally numbered as Writ Petition No.1080 of 2015). In short,
such respondents, are not consenting to the petitioners undertaking a
redevelopment, unless the nature of the rights being asserted by them
are recognized by the petitioners. These respondents have also filed a
civil suit before the City Civil Court at Mumbai, on 4 September 2018
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asserting such rights being Long Cause Suit No.2601 of 2018 interalia
praying for the following reliefs:-
"a) That this Hon'ble Court be pleased to declare/direct that the
Plaintiffs are entitle for Permanent Alternate Accommodation,
free of cost on the Suit Plot, in accordance/compliance of the
guidelines laid down by the Hon'ble High Court in W.P. (L)
1135 of 2014.
b) That this Hon'ble Court be pleased to declare that the Reply
Notice dt. 09/05/2018 addressed by the Defendant No.1 & 2's
Advocate, disputing the rights of the Plaintiffs for Permanent
Alternate Accommodation on the Suit Plot, is non-est, illegal,
bad-in-law and is contrary to the guidelines laid down by the
Hon'ble High Court in W.P. (L) 1135 of 2014.
c) That this Hon'ble Court be pleased to grant Permanent
Injunction against the Defendant No. 1 to 7 and/or their
servants, agents, persons, body, associations, company or
attorney, claiming through them, be restrained from making any
construction/ development/redevelopment of the Suit Plot in
any manner, whatsoever, without written consent of the
Plaintiffs as envisaged by the Hon'ble High Court in W.P.(L)
No.1135 of 2014.
d) That this Hon'ble Court be pleased to grant Permanent
Injunction, thereby restraining the Defendant No.8 Corporation
from issuing any development/redevelopment permissions of
the Suit Plot, in favour of the Defendant no.1 to 7 or any
persons/associations claiming through them, without following
the due process of law, more particularly, without written
consent of the Plaintiffs, as envisaged by the Hon'ble High Court
in W.P.(L) No.1135 of 2014.
e) That this Hon'ble Court be pleased to grant Temporary
Injunction against the Defendant No. 1 to 7 and/or their
servants, agents, persons, body, associations, company or
attorney, claiming through them, be restrained from making any
construction/ development/redevelopment of the Suit Plot in
any manner, whatsoever, without written consent of the
Plaintiffs as envisaged by the Hon'ble High Court in W.P.(l)
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No.1135 of 2014.
f) That this Hon'ble Court be pleased to grant Temporary
Injunction, thereby restraining the Defendant No.8 Corporation
from issuing any development/ redevelopment permissions of
the Suit Plot, in favour of the Defendant No.1 to 7 or any
persons/associations claiming through them, without following
the due process of law, more particularly, without written
consent of the Plaintiffs, as envisaged by the Hon'ble High Court
in W.P.(L) No.1135 of 2014.
g) That pending the hearing and final disposal. of the present
Suit, the Defendant No. 1 to 8 be directed to maintain 'Status-
Quo' in respect of the Suit Plot.
h) Ad-interim or interim reliefs in terms of prayer clause (e), (f)
& (g) be granted.
i) For the cost of the Suit."
8. These respondents, however, could not get any interim orders in
such civil suit, so as to restrain the petitioners and the MCGM from
granting any IOD/commencement certificate in favour of the petitioners.
9. The petitioners have contended that, being confronted with a
situation that in the redevelopment being undertaken by them,
construction of a 'industrial building', on the said land was not
economically viable under the prevailing Development Control and
Promotion Regulations-2034 (for short 'the DCPR-2034'). This for the
reason that the DCPR-2034, does not provide for utilization of either
"additional FSI" or "admissible TDR" in the industrial zone as per the
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DCPR Regulation 30 - Table 12. The petitioners state that it was thus
not economically viable to construct one building for industrial user and
another for residential user, and the only method under which the
redevelopment project was viable, was to construct a single residential
building, in which the erstwhile eligible occupants/tenants could be
offered an alternative residential accommodation of an equal size / area
on tenancy basis, subject to the outcome of the eviction suits filed by the
petitioners. The petitioners accordingly approached the MCGM for
change of the zone from 'industrial' to 'residential' which was granted in
favour of the petitioners by the MCGM on 21 April 2022. It is
petitioners case that they have also made a provision for accommodating
the non-consenting tenants, by reserving for them a residential alternate
accommodation, in lieu of the units occupied by them in the building to
be constructed.
10. In the above circumstances, the petitioners submitted plans for
the proposed redevelopment with the MCGM. In pursuance thereto, on
16 June 2022, the MCGM issued to the petitioners an Intimation of
Disapproval (IOD), however, with Condition No.39 and Note Nos. 20
and 21 which are objected by the petitioners. As the controversy in the
present proceedings interalia revolves around these conditions, which
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are based on the 2018 Guidelines as issued by the MCGM, it would be
appropriate to note Condition No.39 alongwith Notes 20 and 21, which
read thus:-
"Conditions
.........
39. Existing structure proposed to be demolished shall not
be demolished or necessary Phase Programme with agreement
will not be submitted & got approved before C.C."
Notes
..... .....
20) The Intimation of Disapproval is given exclusively for the
purpose of enabling you to proceeds further with the
arrangements of obtaining No Objection Certificate from the
Housing Commissioner under Section 13 (h) (H) of the Rent Act
and in the event of your proceeding with the work either
without an intimation about commencing the work under
Section 347(1) (aa) or your starting the work without removing
the structures proposed to be removed the act shall be taken as a
severe breach of the conditions under which this Intimation of
Disapproval is issued and the sanctioned will be revoked and the
commencement certificate granted under Section 45 of the
Maharashtra Regional and Town Planning Act 1966, (12 of the
Town Planning Act), will be withdrawn.
21. If it is proposed to demolish the existing structures after
the negotiations with the tenant, under the circumstances, the
work as per approved plans should not be taken up in hand
unless the City Engineer is satisfied with the following:-
i. Specific plans in respect of evicting or rehousing
the existing tenants on hour stating their number and the
areas in occupation of each.
ii. Specifically signed agreement between you and
the existing tenants that they are willing to avail or the
alternative accommodation in the proposed structure at
standard rent.
Iii. Plans showing the phased programme of
constructions has to be duly approved by this office
before starting the work so as not to contravene at any
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stage of construction, the Development Control Rules
regarding open spaces, light and ventilation of existing
structure."
(emphasis supplied)
11. It is the petitioner's case that after issuance of the IOD, although
respondent Nos.3 to 9 were minority unit-holders in the building which
was demolished, and who were not consenting for residential
redevelopment, the petitioners offered them an equivalent area of
residential accommodation. However, respondent Nos.3 to 9 did not
respond to such offer of the petitioners. In these circumstances, the
petitioners by their letter dated 28 June 2022, as addressed to the
MCGM requested that a commencement certificate be issued, interalia
pointing out that out of 32 unit-holders who were 82% of the unit-
holders/tenants, and who were having about 77% of the carpet area
occupied in the subject building, were agreeable to accept the
petitioners' offer of an alternate residential accommodation being
provided, in lieu of their service industrial units. The petitioners also
recorded that respondent Nos.3 to 9 were not agreeable to similar offers
made by the petitioners. The petitioners also recorded that a provision
was made for accommodating these non-consenting unit-holders by
reserving for them, equivalent alternate accommodation in the proposed
residential building, in lieu of the units occupied by them in the
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demolished building. The petitioners also forwarded to the MCGM a
legal opinion dated 25 July 2022, to the effect that in view of the
majority of the occupants having consented for the proposal, the MCGM
was required to proceed to issue a commencement certificate (CC),
without insisting on a condition of 100% of the tenants agreeing, and/or
permanent alternate accommodation agreements being entered with all
the tenants. As there was no response to the petitioners' request for
issuance of commencement certificate, the petitioners have approached
this Court by the present proceedings, which were filed on 10 August
2022. The petitioners have prayed for the following reliefs:-
"(a) This Hon'ble Court be pleased to declare that Clause 1.15 of
the Impugned Guidelines (being Exhibit L hereto) requiring
consents/agreements from all the tenants/occupants, is illegal
and bad in law, also violative of Article 14 of the Constitution of
India, being arbitrary, unreasonable, capricious, impracticable
and discriminatory, and this Hon'ble Court be pleased to strike
down the same.
(b) This Honourable Court be pleased to issue a Writ of
Mandamus, or any other Writ or Order in the nature of
Mandamus, ordering and directing the Respondent Nos.1 and 2
to treat the consents of 32 unit holders/occupiers as a sufficient
compliance of Condition No. A - 39 and Notes 20 and 21 of
Intimation of Disapproval bearing No. CHE/WSII/5566/P/S/337
(NEW)/IOD/1/New dated 16" June 2022;
(c) Pending the hearing and final disposal of the present
petition, the Respondent Nos.1 and 2 be directed to issue further
permissions, including Commencement Certificate to the
Petitioners for redevelopment of the said property, namely, plot
of land or ground bearing CTS No.89/A, 89 A 1 to 13 of Village
Pahadi Eksar, Taluka Goregaon and admeasuring about 3333.6
sq. yards equivalent to 2,787.32 Sq. mtrs. in the registration
District and Sub District of Mumbai City and Mumbai Suburban;
(d) Pending the hearing and final disposal of the present
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Petition, this Honourable Court be pleased to issue a mandatory
interim order directing the Respondent Nos.1 and 2 to not to
insist upon the consents of/agreements with all the
tenants/occupants as a precondition for grant of development
permissions including Commencement Certificate to the
Petitioners for redevelopment of the said property, namely, plot
of land or ground bearing CTS No.89/A, 89/A 1 to 13 of Village
Pahadi Eksar, Taluka Goregaon and admeasuring about 3333.6
sq. yards equivalent to 2,787.32 Sq. mts. in the registration
District and Sub District of Mumbai City and Mumbai Suburban;
(e) Ad-interim reliefs in terms of prayer clauses (c) and (d) be
granted to the Petitioners;
(f) For the costs of the present Petition; and
(g) For such other and further reliefs, as the nature and
circumstances of the case may require and this Hon'ble Court
may deem appropriate.
12. As seen from the petition, the primary grievance of the petitioner
is in regard to Clause 1.15 of the 2018-Guidelines issued by the MCGM
and the effect of such clause as incorporated in clause 39, and Condition
21(ii) of the Notes as contained in the IOD. The contention of the
petitioners is that the MCGM is interpreting these clauses to mean that
the petitioner is required to have a permanent alternate accommodation
agreement (PAAA) with 100% of the tenants and only after such
agreements are entered between the petitioners and the tenants, a
commencement certificate would be issued.
13. The petitioners contend that the basis for incorporating Condition
21(ii) in the IOD are the 2018-Guidelines ("Guidelines issued by the
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MCGM for declaring private and municipal buildings as C-1 category") ,
under which, clause No.1.15 stands incorporated to provide that the
MCGM while granting a sanction to the redevelopment, the zonal
building proposal department shall include a condition in the 'Intimation
of Disapproval (IOD)' that unless and until an agreement either
providing a permanent alternate accommodation in the newly
constructed building or a settlement is arrived at by and between the
tenants and /or occupiers and landlord, no Commencement Certificate
(C.C.) will be issued under Section 45 of the MRTP Act. Clause 1.15 in
the 2018-Guidelines reads thus:-
"1.15) The corporation shall, while granting the sanction for
redevelopment, the zonal building proposal department shall
include a condition in intimation of Disapproval (IOD) that
"unless and until an agreement either providing a permanent
alternate accommodation in newly constructed building or a
settlement is arrived at by and between the tenants and / or
occupier and the landlord, no Commencement Certificate (C.C)
will be issued under section 45 of M.R&T.P Act 1966."
14. It is the legality of Clause 1.15 which is challenged by the
petitioners interalia contending that the same is arbitrary, unreasonable,
impracticable, discriminatory and being violative of Article 14 of the
Constitution. In making such prayer, the petitioners contend that it may
not be always conceivable that 100% tenants agree for the
redevelopment being undertaken by the owners of the land, or it is
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likely that the tenants/occupants impose a counter condition and/or for
some other reasons they are not agreeable to enter into a permanent
alternate accommodation agreement. It is thus submitted that to have a
pre- condition of the owners/developers requiring to enter into PAAA
with 100% of the tenants for grant of a commencement certificate,
would create serious consequences interalia of the project itself being
brought to a stand-still by a minority/minuscule number of tenants or
members of a co-operative society. It is submitted that merely because
there is an opposition on some issues, by some tenants, it cannot result
in the project being delayed, causing a serious prejudice to the other
occupants of the building, the owners and other stakeholders. It is thus
the petitioners' case that such condition as interpreted by the MCGM in
clause 1.15 of the 2018-Guidelines and the impugned conditions as
incorporated in the IOD issued to the petitioners, are required to be held
to be arbitrary and illegal.
15. On the other hand, on behalf of the MCGM, the impugned
conditions as incorporated in the IOD as also Condition No.1.15 of the
2018 Guidelines, are sought to be justified on the ground that it is
incumbent on the Corporation to safeguard the interest of the tenants.
This more particularly, considering the orders dated 23 June 2014
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passed by the Division Bench of this Court in Writ Petition (lodg)
No.1135 of 2014 (Municipal Corporation for Gr. Mumbai vs. State of
Maharashtra & Ors.) whereby in the absence of any policy guidelines the
Division Bench by an interim order had formulated guidelines which are
now incorporated by the MCGM in the 2018-Guidelines. It is submitted
that in the present case all the tenants have not submitted their consent
as respondent Nos.3 to 9 have not consented to the redevelopment, as
also a permanent alternate accommodation agreement was not entered
with them by the petitioners. It is hence submitted that the MCGM was
justified in not issuing a commencement certificate to the petitioners.
Analysis
16. On the above conspectus, we have heard learned Counsel for the
parties, we have perused the record. As noted by us, Condition 39 of
the IOD and Condition Nos.20 and 21(ii) as contained in the Notes
under the IOD as also Clause No.1.15 of the 2018 Guidelines, are
impugned by the petitioners. On a plain reading of such conditions and
of clause 1.15 of the 2018 Guidelines, it is quite clear that the zonal
building proposal department, needs to include a condition in the
Intimation of Disapproval (IOD), that unless and until an agreement
either providing for a permanent alternate accommodation in the newly
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constructed building or a settlement is arrived at by and between the
tenants and / or occupier and the landlord, no Commencement
Certificate (C.C) would be issued under section 45 of M.R&T.P Act
1966. Thus, the MCGM requires consent of 100% tenants to be
submitted by the owner/landlord or the developer to the municipal
corporation, for the owner/landlord to become eligible for issuance of a
commencement certificate.
17. It appears that the basis of such stand as taken by the MCGM is
firstly on account of the interim order dated 23 June 2014 passed by a
Division Bench of this Court in the case of Municipal Corporation for Gr.
Mumbai vs. State of Maharashtra & Ors. (Writ Petition (l) No.1135 of
2014 )(supra). The said proceedings were filed by the MCGM making
prayers against the State of Maharashtra and the concerned police
personnel, to have forcible eviction of the occupants of a building known
as "Sohansingh Mansion" as also other buildings which are declared to
be dilapidated and dangerous by the MCGM and to issue appropriate
guidelines for removal of non-cooperating occupants of dilapidated and
dangerous buildings. In the said proceedings, the MCGM had contended
that it was necessary that guidelines be issued to the parties so as to
avoid any untoward incident of loss of lives of the occupants of the said
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buildings, as well as occupants of the adjoining structures and passers-
by. It is in such context, considering the provisions of the MMC Act, the
Court issued guidelines as contained in paragraph 9(l) to 9(p) of the
said order, observing that such guidelines were necessitated essentially
to make Section 354 of the MMC Act effective and to ensure that human
lives are not in any manner compromised. Such guidelines as contained
in paragraph 9(l) and 9(p) of the said order passed by the Division
Bench read thus:
"9. Accordingly, for the present, in the absence of
any policy in that behalf, the following guidelines are issued:-
... ... ..
(l) The rights of the tenants and/or occupiers and/or
owners in respect of the said premises/property will not be
affected by virtue of evacuation or demolition carried out by the
Corporation of such dilapidated and dangerous building in
exercise of the power under section 354 of the said Act or by
virtue of the fact that the Corporation is the owner of the
premises. Such tenant and/or occupier and/or owner will be
entitled to re-occupy the premises in respect of the same area
after the reconstruction of the building, subject to the prevalent
provisions of law pertaining to redevelopment of the property or
subject to any arrangement or agreement arrived at by and
between such tenants and/or occupiers with the owner of the
building. Any action of evacuation/removal / demolition will
not affect the inter se rights of owners if there be more than one
owner or there is a dispute as to the title of the property.
.... ... ...
(p) In case privately owned buildings are demolished by the
Corporation in exercise of power under Section 354 read with
the present order, then the Corporation shall, while granting
sanction of redevelopment, impose a condition in IOD
(Intimation of Disapproval) that no Commencement Certificate
will be issued under section 45 of the MRTP Act,1966 unless and
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until an Agreement either providing a Permanent Alternate
Accommodation in a newly constructed building or a settlement
is arrived at by and between the tenants and/or occupiers and
the landlord in respect of the said demolished premises, is filed
with the Corporation at the earliest."
Thus, the Division Bench in the above order has observed that the
rights of the tenants and/ or occupiers and/or the owners in respect of
the said premises/property would not be affected by virtue of evacuation
or demolition carried out by the Corporation of such dilapidated and
dangerous buildings, in exercise of the power under section 354 of the
MMC Act or by virtue of the fact that the Corporation is the owner of the
premises. It was interalia observed that a tenant/occupier and/or owner
will be entitled to re-occupy the premises of the same area after the
reconstruction of the building, subject to the prevalent provisions of law
pertaining to redevelopment of the property or subject to any
arrangement or agreement arrived at by and between such tenants and/
or occupiers, with the owner of the building. It was also observed that
any action of evacuation /removal / demolition will not affect inter se
rights of owners if there be more than one owner or there is a dispute as
to the title of the property. It was also observed that in case privately
owned buildings are demolished by the MCGM in exercise of powers
under Section 354, read with the said order passed by the Division
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Bench, then the MCGM while granting sanction for redevelopment, shall
impose a condition in the Intimation of Disapproval (IOD) that no
'Commencement Certificate' will be issued under section 45 of the MRTP
Act,1966 unless and until an Agreement either providing for a
Permanent Alternate Accommodation in a newly constructed building or
a settlement is arrived at by and between the tenants and/or occupiers
and the landlord, in respect of the said demolished premises, and the
same is submitted to the Corporation. It is exactly as what has been
observed by the Division Bench in paragraph 9 Clause (l) and (p) of its
order dated 23 June 2014 finds recognition in Clause 1.15 of the 2018-
Guidelines for declaring private and Municipal buildings as C-1 Category
(Dangerous, Unsafe).
18. As noted above the 2018-Guidelines were issued under the
interim orders dated 23 June 2014 passed by this Court in the
"Municipal Corporation for Gr. Mumbai vs. State of Maharashtra & Ors."
(supra). The said writ petition was finally disposed of by judgment and
order dated 28 February 2018 passed by a Division Bench of this Court.
The said judgment in paragraph 3 has observed that an affidavit was
filed on behalf of the MCGM dated 8 February 2018, interalia stating
that the MCGM had framed guidelines for declaring private and
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municipal buildings as falling in 'C-1' category (Dangerous/Unsafe). It
was stated that such guidelines were approved by the Municipal
Commissioner. The Court observed that at the earlier hearing of the
said proceedings, on behalf of the MCGM a note dated 22 February
2018 signed by the Director (E.S.&P) and Chairman of the Technical
Advisory Committee (TAC), was tendered across the bar. Such note was
also approved by the Municipal Commissioner on 23 February 2018. It
was observed that the policy annexed to the said affidavit as filed on
behalf of the MCGM, was amended to the extent provided in the said
note dated 22 February 2018. The Court observed that in view of the
policy guidelines which were placed on record by the said affidavit, it
was no longer necessary for the Court to exercise jurisdiction to issue
policy guidelines. The operative part of the said order passed by the
Division Bench in paragraph 28(9) observes that in view of the policy
guidelines which were placed on record, it was also not necessary for
the Court to continue interim order dated 23 June 2014, as the
Municipal Corporation was bound to follow its own policy guidelines. It
was observed that for exercising powers under Section 354 of the MMC
Act, from the date of the said judgment, the Municipal Commissioner
shall follow its own policy guidelines as the interim directions were no
longer operative. The relevant paragraphs of the said order are required
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to be noted, which reads thus:
"4 We have perused the said policy which lays down an
elaborate procedure to be followed before issuing a notice under
Section 354 of the said Act of 1888. In this Petition, we are not
called upon to go into the question of legality and validity of the
contents of the said policy. But suffice it to say that policy as
amended on 23rd February 2018 by the Municipal Commissioner
is binding on the Municipal Corporation.
5 The necessity of passing interim order dated 23 rd June
2014 was the absence of a policy or guidelines. That is very
clear from the observations made in the paragraph 8 of the said
order. In view of the policy guidelines which are placed on
record by the affidavit dated 8th February 2018 as modified on
23rd February 2018 now it is no longer necessary for this Court
to exercise Writ Jurisdiction by issuing policy guidelines. ... ...
... ... ..
28 Our conclusions and the final directions are as
under :
... ... .. ...
(ix) We make it clear that in view of the policy guidelines
which are placed on record, it is not necessary for us to continue
interim order dated 23rd June 2014 as the Municipal
Corporation is bound to follow its own policy guidelines.
Therefore, for exercising powers under Section 354 of the said
Act of 1888 from the date of this Judgment, the Municipal
Commissioner shall follow its own policy guidelines as the
interim directions are not
longer operative. We also make it clear that we have not
examined the issue of legality and validity of the policy
guidelines framed by the Municipal Corporation;"
19. In pursuance of the observations of this Court in "Municipal
Corporation for Gr. Mumbai vs. State of Maharashtra & Ors." (supra) the
'2018 Guidelines' were issued by the Municipal Corporation on 25 May
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2018 (as signed by the Municipal Commissioner on the said date)
incorporating impugned clause No.1.15. As noted above, the grievance
of the petitioners is in regard to Clause 1.15 of the 2018-Guidelines to
the effect that clause 1.15 ought not to mean that consent from all the
tenants/occupiers of a dilapidated building is mandated for issuance of a
commencement certificate.
20. In our opinion, there is much substance in the contention as urged
on behalf of the petitioners, that Clause 1.15 cannot be interpreted to
mean that the consent of all the occupants/tenants or 100% consent of
the tenants/occupants in the manner as suggested in Clause 1.15 would
be necessary for a commencement certificate to be issued. This for more
than one reason. Firstly, it cannot be countenanced that once the
majority of the occupants / tenants are agreeable to vacate the building
and/or to accept the permanent alternate accommodation being offered
by the owner, by protecting their occupancy rights as they stood at the
time the building was demolished, it cannot be heard from minority of
such tenants/occupants, for whatever reasons, that they are not
agreeable to a settlement in this regard or resist a permanent alternate
accommodation as offered by the owner to the majority of the tenants /
occupants, for a reason that a permanent alternate accommodation does
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not suit their requirements, or for some other reasons they are not
agreeable to enter into a PAAA, as in the present case. This would
amount to few tenants/ occupants bringing the entire redevelopment to
a standstill, by not consenting to a permanent alternate accommodation
or by raising disputes.
21. Certainly, it cannot be the intention of the Division Bench when it
passed the order dated 23 June 2014 issuing guidelines in the absence
of a policy of the MCGM, that the redevelopment project be put to a
standstill untill 100% of the tenants/occupants consent for
redevelopment, by accepting a permanent alternate accommodation.
Moreover it needs to be noted that the order dated 23 June 2014 was an
order in invitum at the behest of the MCGM and the State Government
as clear from the following contents of paragraph 3 of the said order
which reads thus:-
"3. Sometimes owners/builders are non-cooperative and fail to
take care of their obligations. Sometimes tenants/occupants do not
co-operate. Mere initiation of Civil and/or Criminal proceedings
for the same is also of no use or effective mechanism to evacuate
or evict immediately the non-cooperative tenants/ occupants/
owners. In view of the urgency expressed, we are inclined to pass
the following order based upon the draft of minutes of order
prepared and submitted by the Senior Counsel for the Petitioner-
Corporation and approved by the State Government and MHADA.
A copy of the draft of Minutes of Order is taken on record and
marked "X" for identification."
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22. It also clearly appears that the MCGM incorporated Clause 1.15 in
the 2018- Guidelines, pursuant to the same being formulated by the
Division Bench of this Court in its order dated 23 June 2014 (supra). In
such context, in our opinion, on a holistic reading of the guidelines as
formulated in the said order passed by the Division Bench the intention
of the Court was to protect the interest of the tenants so that when the
building was demolished, in an action resorted under Section 354 of the
MMC Act, the rights of the occupants/tenants are protected and do not
extinguish. No other intention can be inferred from Clauses 9(l) and
9(p) of the said order passed by the Division Bench as extracted
hereinabove. Significantly, such guidelines were issued by the Division
Bench, as there was no policy framed by the MCGM on such issues.
23. Be that as it may, in any event when the MCGM issued the 2018-
Guidelines it was wholly available to the MCGM to consider all issues
form different perspectives. There was no embargo on the MCGM, when
it took upon itself to formulate such guidelines from examining the
effect its policy guidelines on all aspects of the redevelopment process.
Thus, to stretch such directions of the Division Bench as transformed
into Clause 1.15 of the 2018 guidelines, to mean that consent of 100%
tenants / occupants, to be necessary as a condition for grant of
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commencement certificate, certainly brings about unwarranted
consequences, of stalling the redevelopment project by some
tenants/occupants/members not consenting the redevelopment. To
attribute such consequences to Paragraphs 9(l) and (p) of the order
dated 23 June 2014 passed by the Division Bench would amount to a
wrong reading of such directions. A fortiori, such intention cannot be
attributed to Clause 1.15 of the 2018 Guidelines. Significantly, even
Clause 1.15 does not use the word "all the tenants and/or occupiers",
thus, to read such words or attribute such meaning to Clause 1.15, in
our considered opinion would, in fact, render such condition
unreasonable, unworkable as also arbitrary, when some of the
tenants/occupants/members who are minority in number are not willing
to consent to redevelopment and/or are not ready to enter into a PAAA
akin to a situation as in the present case.
24. Secondly, such an intention to be attributed to Clause 1.15 as
being canvassed on behalf of the MCGM, would not hold good also in
terms of what the DCPR-2034 would provide. Regulation 33(6) is a
regulation providing for 'Reconstruction of buildings destroyed by fire or
which have collapsed or which have been demolished under lawful
order'. Such regulation itself provides that reconstruction would be
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subject to agreements by at least 70% of the occupants with the
landlord. The said regulation reads thus:
"33(6) Reconstruction of buildings destroyed by fire or which have
collapsed or which have been demolished under lawful order.
Reconstruction of buildings that existed on or after 10th June 1977
and have ceased to exist for reasons cited above, shall be allowed
to be reconstructed with FSI as per the Regulation No 30(C).
Provided that if the area covered under staircase/lift has not been
claimed free of FSI as per then prevailing Regulation as per the
occupation plan, the area covered under staircases/ lifts shall be
considered while arriving protected BUA in such cases the premium
for entire staircase lift area in the proposed building as per these
Regulations shall be recovered.
This FSI will be subject to the following conditions: -
1. Reconstruction of the new building on the plot should conform
to provisions of DP and these Regulations.
2. Reconstruction will be subject to an agreement executed by at
least 70 per cent of the landlord and occupants each in the original
building, within the meaning of the Mumbai Rents, Hotel and
Lodging House Rates Control Act, 1947, and such agreement shall
make a provision for accommodation and re-accommodate the said
landlord/all occupants in the new building on agreed terms and a
certificate from a practicing advocate having minimum of 10 years'
experience, is submitted confirming that on the date of application,
reconstruction, agreements are executed by at least 70% of the
landlords and occupants each in the original building with the
developer/owner. The Advocate shall also certify that the
agreements with occupants are valid and subsisting on the date of
application.
...... ....... ........ ...... ....... ........ ..........................."
(emphasis supplied)
25. Even other regulations under the DCPR-2034 which concern
reconstruction or redevelopment, a consent of 51% of the
occupants/tenants is what is mandated. These regulations are
Regulations 33(5), 33(7), 33(7A), 33(9), 33(10) which read thus:-
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Reg Name of the Scheme % Related Clause in Scheme about consent
Reqd
33(5) Development / 51%
Redevelopment of 7) a) In any Redevelopment Scheme
Housing Schemes of where the Cooperative Housing
Maharashtra Society/Developer appointed by the Co-
Housing Area operative Housing Society has obtained
Development
NOC from the MHADA/Mumbai Board,
Authority (MHADA)
there by sanctioning additional balance
FSI with the consent of 51% of its
members and where such NOC holder
has made provision for alternative
permanent accommodation in the
proposed building (including transit
accommodation/Rent Compensation),
then it shall be obligatory for all the
occupiers/members to participate in
the Redevelopment Scheme and vacate
the existing tenements for the purpose
of redevelopment. In case of failure to
vacate the existing tenements, the
provisions of section 95A of the MHAD
Act. mutatis mutandis shall apply for
the purpose of getting the tenements
vacated from the non-co-operative
members.
33(7) Reconstruction or 51% (2)1(a) The new building may be
redevelopment of permitted to be constructed in pursuance
cessed buildings in of an irrevocable written consent by not
the Island City by less than 51% of the occupiers of the old
Co-operative building.
Housing Societies or
of old buildings
belonging to the
Corporation.
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33(7A) Reconstruction or 51% 2(a) A new building may be permitted to
redevelopment of be constructed in pursuance of an
Dilapidated/unsafe irrevocable written consent by not less than
existing authorised 51 per cent of the tenants of the old
tenant occupied building.
building in Suburbs
and extended
Suburbs and existing
authorized non-
cessed tenant
occupied buildings in
Mumbai City.
33(9) Reconstruction or 51% 4. a) Redevelopment or Reconstruction
redevelopment of under CDS may be permitted in pursuance
Cluster(s) of of an irrevocable registered written consent
Buildings under by not less than 51 percent of each
Cluster Development building or 70 percent overall of the
Scheme(s) (CDS) scheme of the eligible tenants/occupiers of
all the authorized buildings on each plot
involved in the CDS or as provided in
MHAD Act, 1976. Consent as aforesaid of
such 51 percent of each building and 70%
overall of the scheme of tenants/occupiers
for reconstruction or redevelopment shall
not be required, if MHADA/MCGM
undertakes redevelopment, on its own
land, directly without any developer.
33(10 Redevelopment for 70% 1.15 Where 70 percent or more of the
) Rehabilitation of eligible hutment-dwellers in a slum and
Slum Dwellers stretch of road or pavement contiguous to
it at one place agree to join a rehabilitation
scheme, it may be considered for approval,
subject to submission of irrecoverable
written agreements of eligible hutment-
dwellers before LOI. Provided that nothing
contained herein shall apply to Slum
Rehabilitation Projects undertaken by the
State Government or Public authority or as
the case may be a Govt. Company as
defined in Sec. 617 of the Companies Act
1956 and being owned & controlled by the
State Government.
26. In view of the clear provisions of Regulation 33.6 as also the other
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regulations as noted above, which unfold the statutory intention
providing for 51% and 70 % of the consent of the tenants / occupants,
agreeing to accept permanent alternate accommodation as may be
offered by the owner/ landlord would be required to be accepted as an
appropriate compliance for an entitlement for a commencement
certificate to be issued for the redevelopment or reconstruction to be
undertaken under the relevant regulations of the DCPR. Thus, in our
clear opinion, it was arbitrary for the MCGM to insist from the
petitioners, consent of 100% of the tenants and in its absence withhold
the commencement certificate to be issued to the petitioners on
respondent Nos.3 to 9 not consenting to accept residential tenements.
27. For the sake of completeness, we may also observe that the
MCGM may receive proposals under Regulations 33(5), 33(7), 33(7A),
33(9) and 33(10) of the DCPR-2034. On such proposals being received
by the MCGM, there is nothing to suggest that the MCGM would not
apply Clause 1.15 of the 2018 Guidelines. In our opinion, the position in
regard to such proposals also would not be different and hence, the
requirement of 100% consent of tenants entering into a PAAA with the
landlord/owner would not be applicable in respect of such any proposal
when the DCPR 2034 itself mandates consent of 51% to 70%
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respectively of the occupants/ tenants.
28. It is a settled position in law that the interest of the minority
occupants/tenants cannot be opposed to the interest of the majority
occupants, as also such persons cannot foist on the owners a delay in
commencement of the redevelopment work, resulting in the project cost
being increased, which would be seriously prejudicial to the
owners/developers and above all the majority of the occupants. (See:
Girish Mulchand Mehta & Anr. Vs. Mahesh S. Mehta & Anr. 2; the
judgment of this Court in Kamla Homes and Lifestyle Pvt.Ltd. Vs. Pushp
Kamal Co-op. Hsg.Society Ltd. & Ors.3, Westin Sankalp Developers Vs.
Ajay Sikandar Rana & Ors.4; Sarthak Developers Vs. Bank of India Amrut
Tara Staff Co-op. Hsg. Society Ltd. & Ors.5; Choice Developers Vs.
Pantnagar Pearl CHS Ltd. & Ors.6
29. In the present context, our attention has also been drawn to an
order dated 28 January 2022 passed by a Co-ordinate Bench of this
Court in Writ (l) No.1591 of 2022 (Ratnesh Sheth and Anr. Vs.
2 2010(2) MhLJ 657
3 2019 SCC OnLine Bom 823.
4 2021 SCC OnLine Bom 421.
5 2012 SCC OnLine Bom 525.
6 2022 SCC OnLine Bom 786.
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Municipal Corporation for Gr.Mumbai & Ors) wherein in similar
circumstances the Court directed that non-consent of two tenants for
redevelopment of the building, would not hold good as the other 9
tenants have given their consent for redevelopment of the building
which was already demolished. It was observed that two tenants cannot
stall the entire redevelopment by withholding their consent, as it affects
rights of all other tenants. The Division Bench hence directed that
notwithstanding Condition No.12 of the IOD as issued in the said case,
the MCGM was required to be directed to process the building
permission of the petitioner - developer.
30. In the light of the above discussion, in our opinion, Writ Petition
No.5130 of 2022 is required to be allowed in the following terms:-
ORDER
(i) It is declared that Clause 1.15 of the 2018 Guidelines " Guidelines
issued by the MCGM for declaring private and municipal buildings as 'C-
1' category (Dangerous, Unsafe)" do not mandate consent/agreement to
be obtained from all (100%) tenants/ occupants, as consent of 51% to
70% of the occupants/tenants of the building, as applicable to the
proposals made under the relevant regulations DCPR-2034 as noted
above, shall amount to sufficient compliance for processing
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development/ redevelopment proposal, for a commencement certificate
to be issued, including in respect of buildings covered under Section 354
of the MMC Act.
(ii) Consequent to the directions in (i) above, the MCGM is directed
to accept the consent of 32 unit-holders / occupiers as sufficient
compliance of Clause 1.15 of the 2018 Guidelines and Condition No.A-
39 and Notes 20 and 21 of the Intimation of Disapproval (IOD) dated 16
June 2022.
(III) The petition is accordingly allowed in the above terms. No costs.
31. In so far as the Writ Petition (l) No.8486 of 2022 is concerned, the
petition shall stand allowed in terms of the orders passed by us in Writ
Petition No.5130 of 2022. The MCGM is accordingly directed to process
the commencement certificate in favour of the petitioners without
insisting for permanent alternate accommodation agreements in respect
of 100% of tenants. Mr. Khandeparkar, learned Counsel for the
petitioners states that the petitioners shall enter into a permanent
alternate accommodation agreement with respondent No.9 within two
weeks from today, similar to those executed with the other tenants. He
states that in so far as respondent No.7 is concerned, there are
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proceedings pending before the Small Causes Court at Mumbai, and as
there are dispute inter se between the private parties, his client is ready
to enter into a permanent alternate accommodation agreement subject
to the outcome of the said proceedings. Statement of Mr.Khandeparkar
is accepted.
32. In view of the petition itself being disposed of, Interim
Application (l) Nos.1929 of 2023 and Interim Application (l) No.1323 of
2023 in Writ Petition (l) No.8486 of 2022 would not require
adjudication and would stand disposed of.
33. Both the writ petitions stand disposed of. No costs.
(R. N. LADDHA, J.) (G. S. KULKARNI, J.)
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