Bombay High Court
Estella Fernandes Nee Estella ... vs Swarna Highrise Constructions ... on 4 May, 2023
Bench: G. S. Kulkarni, R. N. Laddha
2023:BHC-OS:3980-DB
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PSV/PVR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2329 OF 2019
WITH
INTERIM APPLICATION NO. 770 OF 2023
Estella Fernandes Nee Estella Fernandes ...Petitioner
Versus
Swarna Highrise Constructions & Anr. ...Respondents
WITH
WRIT PETITION NO. 2411 OF 2019
Ali Akbar Lakhani ...Petitioner
Versus
Swarna Highrise Constructions & Anr. ...Respondents
WITH
WRIT PETITION NO. 2096 OF 2019
Nasim Banu Shabbir Ali Nayabi & Anr. ... Petitioners
Versus
Swarna Highrise Constructions & Anr. ...Respondents
WITH
WRIT PETITION NO. 2097 OF 2019
Domnie Iimon Nazareth ... Petitioner
Versus
Swarna Highrise Constructions & Anr. ...Respondents
WITH
WRIT PETITION NO. 2107 OF 2019
Anandi Anvekar & Ors. ... Petitioners
Versus
Swarna Highrise Constructions & Anr. ...Respondents
Page 1 of 42
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WITH
WRIT PETITION NO. 2104 OF 2019
Vilas Shankar Sawant ... Petitioner
Versus
Swarna Highrise Constructions & Anr. ...Respondents
WITH
WRIT PETITION NO. 2206 OF 2019
Anisha Imtiyaz Shaikh ... Petitioner
Versus
Swarna Highrise Constructions & Anr. ...Respondents
____________
Mr. Anil V. Anturkar, Senior Advocate a/w. Mr. Ranjit Shinde and Mr.
Harshwardhan Suryavanshi i/b. Patel & Associates for
Petitioner/applicant.
Mr. Shailendra S. Kanetkar for Respondent No. 1.
Mr. Anoop Patil a/w. Ms. Vandana Mahadik for MCGM.
_____________
CORAM : G. S. KULKARNI &
R. N. LADDHA, JJ.
RESERVED ON: APRIL 19, 2023
PRONOUNCED ON: MAY 04, 2023
JUDGMENT (Per G.S.Kulkarni, J.):
1. These are seven petitions in which common issues are raised by the
petitioners, hence they are being disposed of by this common judgment.
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2. This is yet another case whereby about seven tenants of the building
in question, intend to stall the redevelopment to the prejudice of majority
of the tenants who are out of their houses and awaiting redevelopment of
a building, which came to be demolished being dilapidated. The
ingenuity of the petitioners to raise issues under the Development
Control and Promotion Regulations 2034 is what falls for consideration.
3. Writ Petition No. 2329 of 2019 is argued as the lead petition. The
relevant facts are required to be noted:-
4. The petitioner is a tenant in respect of a building 'Haji Manzil'
situated on a Plot bearing CTS Nos. A/645M A/646 & A/647, Village
Bandra-A at 91, Chinchpokli Road, Off Hill Road, Bandra (W.), Mumbai
- 400 050 (for short, "the said building").
5. It is the case of the petitioner that the building was constructed in
the year 1968 which consists of 28 tenements. The said building is a
structure of ground plus two floors. Respondent no.1-Swarna Highrise
Constructions is the owner/landlord of the said building. Respondent
no.1 is undertaking the redevelopment of the said building, as the same
was dilapidated. The Technical Advisory Committee ("TAC") of the
Municipal Corporation in its report dated 17 November, 2018 declared
the said building as dilapidated/C-1 category and accordingly, it was
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ordered to be demolished.
6. It is not in dispute that at the time of filing of these petitions, all the
tenants residing in the said building have vacated the said building
without prejudice to their rights and contentions to have a temporary
accommodation. It also appears to be not in dispute that vacating of these
tenements by the tenants was in pursuance of notices issued by the
Municipal Corporation of Greater Mumbai (for short "MCGM") under
Section 354 of the Mumbai Municipal Corporation Act (for short, "MMC
Act") which were issued between the period 11 April, 2018 to 07 August,
2018. In fact, one of the tenants had approached this Court in Writ
Petition (L.) No. 3347 of 2018 assailing the notices issued under Section
354 of the MMC Act. Such petition came to be dismissed by the Division
Bench of this Court by an order dated 27 November, 2018. It is stated by
the petitioners that there were further proceedings before the Supreme
Court and in view of the liberty granted by the Supreme Court while
dismissing the Special Leave Petition No. 32198 of 2018, the present
petitions came to be filed.
7. The lead petitioner has averred that she was inducted as a tenant in
respect of Room No.2, on the 2nd floor and her tenement is admeasuring
250 sq. ft. The grievance of the petitioner is that respondent no.1 intends
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to undertake redevelopment of the said building by utilizing the 2.7 Floor
Space Index as per the Development Control and Promotion Regulation,
2034 (for short, "DCPR") in force, which was noticed from the letter
dated 02 September, 2016 of respondent no.1's architect Shirish
Sukhatme. The feasibility report of the architect, according to the
petitioner, proceeds on the basis of respondent no.1 consuming the full
development potential of 2.7 FSI on the said plot. As a part of the
redevelopment being undertaken, it is the petitioner's case that respondent
no.1 had forwarded a draft Permanent Alternate Accommodation
Agreement (for short, "PAAA") to the petitioner purporting to allot
alternate accommodation admeasuring 300 sq. ft. in lieu of existing area of
250 sq. ft. as occupied by the petitioner. The petitioner had grievances in
regard to the clauses of the PAAA.
8. It is the case of the petitioner that PAAA would not only entitle the
petitioner to a permanent alternate accommodation of a minimum carpet
area of 300 sq. ft., but in addition thereto, a benefit of fungible FSI
whereunder the petitioner's share would entitle her to a tenement
admeasuring a carpet area of 405 sq. ft. which needs to be made available
to the petitioner. The petitioner in paragraph 4(i) of the petition has
stated that the premises are lying vacant and the MCGM could proceed
with the demolition as contemplated under Section 354 of the MMC Act.
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9. It is in these circumstances, this petition has been filed. The
petitioner has raised grounds (A) to (O) in support of the reliefs as prayed
for. The primary grievance of the petitioner in all these grounds is to the
effect that respondent no.1 is seeking benefits under the DCPR, however
it is not passing on the benefits as legally permissible to the tenants under
the rules. It is not appropriate for respondent no.1 to offer an area of 300
sq. ft. under the PAAA to the petitioner, as also the PAAA would not
satisfy the requirements of law. It is contended that respondent No. 1 has
a moral and contractual obligation to provide to the tenants of the said
building with temporary accommodation until the period of handing over
of the respective flats of the tenants. It is on such premise, in the lead
petition, the following relief is prayed for :-
"(a) that this Hon'ble Court be pleased to issue a Writ of
Mandamus with a direction to Respondent no.1 and 2 to execute an
agreement with the Petitioner and all tenants residing in the said
building in compliance with the regulations under the Development
Control Regulations and provide permanent alternate
accommodation, temporary alternate accommodation and corpus
fund as per the Development Control Rules, in the proposed
redevelopment project."
10. Following are the companion writ petitions:-
i. Writ Petition No. 2411 of 2019 - Ali Akbar Lakhani v/s. Swarna
Highrise Constructions & Anr.
ii. Writ Petition No. 2096 of 2019 - Nasim Banu Shabbir Ali Nayabi &
Anr. v/s. Swarna Highrise
Constructions & Anr.
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iii. Writ Petition No. 2097 of 2019 - Domnie Iimon Nazareth vs.
Swarna Highrise Constructions
& Anr.
iv. Writ Petition No. 2107 of 2019 - Anandi Anvekar & Ors. Vs.Swarna
Highrise Constructions & Anr.
v. Writ Petition No. 2104 of 2019 - Vilas Shankar Sawant v/s. Swarna
Highrise Constructions & Anr.
vi. Writ Petition No. 2206 of 2019 - Anisha Imtiyaz Shaikh v/s. Swarna
Highrise Constructions & Anr.
11. The petitioners in the above petitions intend to pursue similar
issues as in the lead petition. It is interesting to note that in all these
petitions, there is a specific averment that the petitioners in these petitions
have filed a declaratory suit against respondent no.1 praying that they be
declared as tenants and that they are entitled to the tenancy rights in
respect of the tenements occupied by them. Illustratively, the said
averment as made in paragraphs 4(i) and (j) in Writ Petition No. 2107 of
2019 is required to be noted which reads thus:-
"i. ............ The Petitioners state that they have filed a
Declaratory Suit against Respondent no.1 seeking to be declared as
tenants and entitled to tenancy rights in respect of the said room.
j. The Petitioners submit that the said room is lying vacant and
Respondent no.2 is at liberty to proceed with permissible demolition
contemplated under Section 354 of the MMC Act and as per the
law."
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12. Also, the prayers in these companion petitions are common.
Illustratively, prayers in Writ Petition No. 2104 of 2019 (Vilas Shankar
Sawant v/s. Swarna Highrise Constructions & Anr.) are required to be
noted which read thus:-
"a. that this Hon'ble Court be pleased to issue a Writ of
Mandamus with a direction to Respondent no.2 not to sanction any
plans, with respect to the said building known as 'Haji Manzil'
situated on plot bearing CTS Nos. A/645M A/646 & A/647, Village
Bandra-A at 91, Chinchpokli Road, Off Hill Road, Bandra (W),
Mumbai 400 050, which are contrary to the Development Control
Rules 33(7)(A) of 2034 for providing temporary alternate
accommodation, perm alternate accommodation, and corpus fund in
the proposed redevelopment project;
b. that this Hon'ble Court be pleased to issue a Writ of
Mandamus with a direction to Respondent no.1 to execute an
agreement with Petitioners and all tenants residing in the said
building known as 'Haji Manzil' situated on plot bearing CTS Nos. A/
645M A/646 & A/647, Village Bandra-A at 91, Chinchpokli Road,
Off Hill Road, Bandra (W), Mumbai 400 050 in accordance with the
Development Control Rules 33(7)(A) of 2034 for providing
temporary alternate accommodation, permanent alternate
accommodation, and corpus fund in the proposed redevelopment
project;
c. for ad-interim and interim reliefs in terms of prayer clauses (a)
and (b) above be granted;
d. for costs of this Petition."
Reply of the Respondents
13. A composite reply affidavit has been filed on behalf of respondent
No.1 opposing these petitions. At the outset, it is submitted that insofar as
the petitioner - Estella Fernandes is concerned, she is a tenant and the
respondent is a landlord, hence the relationship between the parties is that
of a landlord and tenant. It is next contended that respondent No.1 is a
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partnership firm and is a private entity, hence, it is neither a State nor an
instrumentality of the State, hence, a prayer for writ of mandamus against
respondent No.1 would certainly be not maintainable. Thus the petition is
not maintainable. It is further contended that there are several disputes
questions of facts which cannot be gone into by this Court in its
extraordinary jurisdiction under Article 226 of the Constitution and on
such count also the petitions also deserve to be dismissed. It is next
contended that respondent No.1 is the owner and landlord of the building
in question known as "Hazi Manzil" which had in all 29 tenants including
the petitioner Estella Fernandes and six others who have filed companion
petitions. It is stated that the building had become dilapidated and was
categorized as C-1 category and in these circumstances, respondent No.1
proposed to all tenants that respondent No.1 shall demolish the existing
building and reconstruct the same, in which all the tenants would be
accommodated, and would be allotted premises in lieu of the existing
tenanted premises on ownership basis. It is stated that 22 out of 20
tenants have vacated the building as it has become dilapidated. These 22
tenants also executed agreements for permanent alternate accommodation
in lieu of the existing tenanted premises, which were registered in the year
2018. However, the petitioner - Estella Fernandes and six others
(petitioners in other companion petitions) refused to vacate, although a
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notice was issued by respondent No.2-Municipal Corporation under
Section 354 of the MMC Act. The building being categorized under the
'C-1' category has attained finality, not only in view of the TAC report but
also a challenge to such report of the TAC having failed before this Court
as Writ Petition (L) No.3347 of 2018 filed by the petitioner - Estella
Fernandes being dismissed on 27 November 2018, by a coordinate Bench
of this Court. It is stated that in such judgment the Court observed that
the petitioner was not cooperating with the redevelopment of the property
and more than 70% of the occupants have already vacated the building. It
is contended that the petitioners being the minority tenants, cannot
maintain this petition which is against the interest of respondent No.1 and
the majority of tenants who are awaiting redevelopment to progress and
allotment of permanent alternate accommodation. It is contended that the
present petitioners have, from the beginning, adopted the approach of
non-co-operation and the building could be demolished only with the
assistance of police authorities.
14. It is contended that the order dated 27 November 2018 passed on
Writ Petition (Lodg) No.3347 of 2018 filed by Estella Fernandes was
assailed by her before the Supreme Court. The Supreme Court refused to
interfere in the orders passed by this Court and dismissed the Special
Leave Petition, however, permitted the said petitioner to approach this
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Court with regard to the prayer for the execution of the agreement. In
regard to the execution of the permanent alternate accommodation
agreement (PAAA) is concerned, it is stated that respondent No.1 has
already executed and registered the agreements with 22 tenants, as also
respondent No.1 offered to execute the agreements with all the tenants
except three tenants against whom eviction suits are pending before the
Small Causes Court. It is stated that the petitioner - Estella Fernandes
and three other petitioners, did not join the other majority tenants in
signing the PAA Agreements and refused to cooperate in the
redevelopment of the building.
15. Respondent No.1 had contended that the existing building had
become dilapidated and having being demolished, respondent No.1 to
undertake redevelopment has obtained an IOD in the year 2015 itself,
however, due to non-co-operation by the petitioner and other similarly
placed tenants, the project has got delayed. It is stated that there was a
delay on account of the outbreak of the COVID-19 pandemic to progress
with the re-development, however, now respondent No.1 is in a position
to complete the project. It is stated that respondent No.1 has agreed to
provide, to each of the tenants, a tenement of an area of 300 sq. ft plus 8%
additional carpet area totaling 324 sq. ft. carpet area in the redeveloped
premises. It is further stated that the property has an approach road which
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is less than 9 meters and in view of the size of the plot and the plinth of
the approach road, there are constraints on the vertical height of the
building, hence respondent No.1 would not be in a position to give
fungible compensatory area to any of the tenants. It is stated that the IOD
was already issued in the year 2015, whereas the Development Control
and Promotion Regulations for Greater Mumbai,2034 (for short 'DCPR
2034') have come into effect only in June 2018.
16. It is stated that respondent No.1 can execute an agreement in
favour of the petitioner - Estella Fernandes similar to the agreements
executed with the existing tenants and such agreement can also be entered
with the other tenants, barring three tenants against whom eviction
proceedings are pending before the Small Causes Court and their
entitlement shall be subject to the outcome of the eviction suit filed by
respondent No.1. It is submitted that insofar as the petitioner in Writ
Petition No.2097 of 2019 (Domnie Iimon Nazareth vs. Swarna Highrise
Constructions & Anr.) is concerned, he is not the original tenant and the
original tenant was one Xavier Nazareth. It is stated that Domnie is not
the son of the original tenant and the father of the petitioner, one Veris
was never the tenant, and no document was produced to show the alleged
tenancy of the father of the petitioner namely Iimon Nazareth. Hence,
the claim of the said petitioner cannot be considered as he is not a tenant
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even on the record of the municipal corporation. It is stated that the
proceedings before the Supreme Court were only at the behest of the
petitioner - Estella Fernandes. It is, therefore, contended that the
petitioners being the minority occupants, cannot stall the redevelopment
by making demands which are not tenable. Accordingly, the petition
needs to be dismissed.
17. There is a rejoinder affidavit filed by one Elton Andhony D'Souza
who claims to be the son of Estella Fernandes, who does not appear to
have any power of attorney issued by the petitioner - Estella Fernandes
permitting him to pursue the present proceedings or to file the present
affidavit. Such affidavit denies the case of respondent No.1 in the reply
affidavit. The contention as, interalia, urged in the affidavit is that there
was a renewed IOD dated 9 July 2021 issued to respondent No.1 as also a
fresh commencement certificate was issued on 30 August 2021, and from
such permission what was expected was the compliance of the DCPR by
respondent No.1. It is thus, submitted that reliance on the first IOD of
2015 is not relevant. The case of respondent No.1 that respondent No.1
is not in a position to give the benefit of the fungible area to the petitioner,
for the reason that the approach road is less than 9 meters, creating
constraints of vertical height, is misleading for the reason that respondent
No.1 has given the benefit of fungible FSI to some selected favourite
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tenants, and list of seven tenants has been annexed in support of such
contention. It is contended that it is incumbent upon respondent No.2 to
grant the benefit of fungible FSI to the petitioner in the light of the
guidelines issued by the Municipal Corporation for declaring private and
municipal buildings as the "C-1" category dated 15 November 2017.
18. There is a reply affidavit filed on behalf of the Municipal
Corporation of Mr.Sanjiv Pandhare, Assistant Engineer (Building
Proposal) H/Ward, contending that the petitioners are not entitled to any
reliefs against the Municipal Corporation. It is interalia contended that the
proposal for redevelopment on the plot of land occupied by the building
in question, was submitted by respondent No.1, and considering such
proposal and on approval of the Municipal Commissioner by considering
the requisite concessions, the Municipal Commissioner on 30 June 2015
issued Intimation of Disapproval (IOD). It is stated that the said proposal
was put forth by respondent No.1 through its Architect. Such IOD was
not revalidated by Respondent No.1 in time, and further upon coming
into force the DCPR 2034, the IOD so granted to Respondent No.1 had
lapsed. Respondent No.1, accordingly, had appointed a new Architect
Mr.Mukesh Bahadur through whom respondent No.1 had applied to the
office of the Municipal Corporation by Online Application on 14 June
2021 whereby seeking Zero Floor Space Index (FSI) IOD as per the
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relevant clauses of Ease of Doing Business Manual (EODB), published by
the office of the Municipal Corporation, and as per the DCPR 2034. It is
stated that the clause providing for the issuance of Zero FSI IOD under
EODB is Clause III which reads thus:-
"III. Intimation of Disapproval (IOD) and Commencement
Certificate (CC) upto plinth stage:
1. IOD up to plinth and CC up to plinth:
In case of vacant plot or property with vacant structure to be
demolished, the Developer/Owner may at his option, apply for IOD
up to plinth and C.C. up to plinth, pending approval of concessions,
HRC, MOEF (for construction area up to 20,000 sq. mt.) on
submission of undertaking as per the Form 6 of Section I-E of the
manual, such application can only be made after approval of layout.
The concerned E.E. (B.P) shall issue IOD up to plinth and CC up to
plinth for construction area up to 20,000 sq. mt. within 7 days of such
application and submission of undertaking. The IOD up to plinth
shall be issued subject to the condition mentioned in the registered
Undertaking, from the owner/developer, as per Form 6 of section IE of
the Manual submitted by the architect/L.S. (copy of EODB manual is
attached at page 61 to 81)."
19. It is stated that accordingly, on receipt of the proposal from the
Architect of Respondent No.1, the Municipal Corporation has scrutinized
the proposal as per the EODB Manual and since the earlier IOD had
lapsed, such proposal is considered under the provisions of the DCPR
2034. It is stated that accordingly, the office of the Municipal
Corporation had issued a Zero Floor Space Index IOD on 9 July 2021
and a plinth Commencement Certificate on 30 August 2021. It is stated
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that the plinth Commencement Certificate was issued by the Municipal
Corporation only after the conditions of Zero FSI IOD were complied by
respondent No.1. It is further stated that the building, which was of
ground plus two upper floors, has already been demolished as per the
orders issued by the Assistant Engineer (B&F), H/W Ward under Section
354 of the MMC Act, and on 4 January 2020 a demolition completion
certificate to that effect was issued by the Designated Officer. It is stated
that as regards the applicability of Regulation 33(7)(A) of the DCPR 2034
to the redevelopment in question, is concerned, the parameters of the
same and the conditions put forth to the owner/Architect would be
determined once such proposal is actually submitted by the owner/
Architect for availing the benefit under the Regulations and, if such
proposal is received, it would be scrutinized on its own merits. It is next
contended that the redevelopment in question is on a plot of land which is
a private plot and respondent No.1 is therefore, bound to issue permission
based on the proposal submitted to it by the owners or their Architect. It is
submitted that no case is made out by the petitioner against the Municipal
Commissioner.
20. There is a rejoinder affidavit filed by the petitioner - Estella
Fernandes against the affidavit filed by the Municipal Corporation. It is
contended that the affidavit filed on behalf of the Municipal Corporation
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does not address the grievance of the petitioner in regard to the grant of
fungible compensatory area/fungible FSI as per the Development Control
Regulations. It is contended that there is a statutory benefit entitlement to
the petitioner by award of a fungible FSI and such statutory benefits have
not been shared by Respondent No.1 with the petitioners. It is contended
that the policy of respondent No.2 - Municipal Corporation is that unless
the agreements are entered with the tenants, no commencement certificate
should be granted, and hence, unless the agreements are entered,
respondent No.1 ought not to be permitted to carry the development any
further.
Submissions on behalf of the petitioners:-
21. Mr.Anturkar, learned Senior Counsel for the petitioners in support
of the reliefs as prayed for in the petition, has made the following
submissions:
(I) It is submitted that the entitlement of the petitioners would be to a
proportionate share in the fungible FSI which would be available to
respondent No.1 in undertaking the redevelopment. This would entitle
the petitioners to a tenement of higher area than a tenement of 324 sq. ft.
as offered by respondent No.1. It is submitted that this is an obligation
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enforceable against respondent No.1 in the proceedings of Writ Petition,
despite the fact that Respondent No.1 had already entered into a PAA
Agreement with 22 tenements.
(II) It is submitted that respondent No.1 is also under a statutory
mandate to adhere to the provisions of Regulation 33(7)(A) and more
particularly Clause 19 thereof to grant a permanent alternate
accommodation in the redeveloped premises on ownership basis. The
contention is to the effect that in the redeveloped premises by virtue of
Clause 19 of Regulation 33(7)(A), the petitioners tenements would form a
part of the cooperative society being formed, which according to Mr.
Anturkar, would provide a membership of the society to the petitioners
and consequent to the petitioners becoming the members of a cooperative
society, the landlord and the tenant relationship would cease to exist by
operation of law, hence the petitioners would become owners of their
tenements. In such context, in a brief note as submitted by Mr.Anturkar,
the following submissions have been made:-
"The developer is not giving anything more, than what has been
provided by the provisions of DCPR 33(7)(A) of 2034, The said
provisions provides i.e. Clause (19) of 33(7)(A) of DCPR 2034
that ultimately, the flat will be given as a member of the Co-
operative Society, which will be constituted and thereafter,
whatever restriction have been provided, as a member of the Co-
operative Society would apply. Those restriction would include,
the restriction, such as the flat cannot be transferred to any other
person, without the permission of the Society, without payment
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of Transfer Fee and without the purchaser, becoming the
member of the society. In other words, it is not as if the DCPR
provision provides only for giving the premises on tenancy basis
and the Respondent No. 1 - Developer is giving something by
way of gratis or by way of mercy, something more than what is
the statutory requirement. Therefore, in this case the Developer
is not giving anything more by way of gratis. By following the
same provisions the Developer, with all other tenants have
already, given on the ownership basis."
22. The next contention of Mr.Anturkar is that Respondent No.1
cannot proceed with the redevelopment unless PAA Agreements are
executed by Respondent No.1 with the petitioners and in such context,
the decision of this Court in the case Raj Ahuja & Anr. Vs. The Municipal
Corporation of Gr.Mumbai & Anr. (Writ Petition No.5130 of 2022,
Order/Judgment dated 20 March 2023), as also the decision in
G.M.Heights LLP vs. Municipal Corporation of Gr.Mumbai & Ors. (Writ
Petition No.5302 of 2022, Judgment dated 29 March 2023), would not
be applicable.
23. It is next submitted that by virtue of the provisions of DCPR
33(7)A), Clause (13) read with the provision of DCPR 31(3) the
Municipal Corporation needs to give fungible FSI to the extent of 35%,
i.e, the benefit which is statutorily entitled to the tenants, and non-grant of
such benefit is failure to comply with the public duties by the Municipal
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Corporation.
24. It is submitted that even assuming that the relief in the present
proceedings is sought against respondent No.1, such relief would be
entitled in the proceedings under Article 226 of the Constitution against a
private person considering the decision of the Supreme Court in Shalini
Shyam Shetty & Anr. Vs. Rajendra Shankar Patil1.
25. It is submitted that the Municipal Corporation is colluding with
respondent No.1 in not providing for 35% of fungible FSI to respondent
No.1. The contention of respondent No.1 that on account of height
restriction, it is not possible them to avail of the entire fungible FSI, is not
correct and that it is actually possible to avail the benefit. It is submitted
that the petitioners have prepared a building plan which would
demonstrate that without changing the design as made by the developer
namely two staircases and four lifts and without a change in sale flat design
and by following all requirements, it is possible to give the benefit of the
fungible FSI to the seven petitioners (8 units). It is submitted that the
benefit of fungible FSI as stated in Clause No.13 of the DCPR 33(7)(A) is
over and above the basic entitlement of 324 sq. ft. and it is also required to
be granted as it is the statutory duty of the Corporation to provide the
same. It is urged that on such submissions, the petitions deserve to be
1 (2010)8 SCC 329
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allowed.
Submissions on behalf of respondent no.1:-
26. On the other hand, Mr. Kanetkar, learned Counsel for respondent
No.1 in opposing the petitions would submit that these petitions per se
are not maintainable as they canvass totally untenable pleas and that too at
the behest of minority of tenants. It is submitted that majority of the
tenants i.e. 22 numbers have already entered into Permanent Alternate
Accommodation Agreements (PAA agreements) with respondent No.1
accepting all terms and conditions as discussed and offered to them under
which they would now become entitled to permanent alternate
accommodation on ownership basis, although their basic rights are merely
as tenants. It is submitted that however, the petitioners are opposed to be
such beneficiaries and to have such rights and are insisting for the benefits
which cannot be granted by respondent No.1 undertaking the
redevelopment in question.
27. It is submitted that the plea as urged by the petitioners is opposed
to the decision of this Court in Raj Ahuja & Anr. Vs. The Municipal
Corporation of Gr.Mumbai & Anr. (supra) and G.M.Heights LLP vs.
Municipal Corporation of Gr.Mumbai & Ors. (supra) wherein this Court
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filed7bec20fc039fd385d505541632424.odt
has held that the minority occupants/tenants cannot stall the
redevelopment on the condition as contained in the IOD that the owner/
developer should enter permanent alternate accommodation agreements
with 100% of the occupants/tenants, which was held by the Court to be
not legal and valid. It is submitted that this Court has also held in
G.M.Heights (supra) that the tenants cannot dictate the owner on issues
pertaining to redevelopment.
28. It is submitted that the petitioner - Estella Fernandes right from
inception has caused innumerable hurdles in not only dragging the entire
project and redevelopment being taken up expeditiously. Also the
petitioners in the companion petitions are obstructing the course of
redevelopment, opposite to the majority interest of the other tenants by
raising untenable pleas.
29. It is submitted that respondent No.1 has set out valid grounds as to
why the contention of the petitioners for additional fungible FSI cannot
be considered which is rightly not insisted by the other majority tenants,
considering the nature of the project. It is, therefore submitted that the
petitions do not call for any interference on any of the counts and deserve
to be dismissed with costs.
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Submissions on behalf of Municipal Corporation:-
30. Mr. Patil, learned Counsel appearing for the Corporation has
opposed the petitions to submit that the petitions against the Municipal
Corporation are not maintainable. It is his submission that the dispute
between the petitioners and respondent No.1 is a private dispute. He
submits that Municipal Corporation is bound to consider the plans
submitted and as per the Rules and Regulations approve such plans, as per
the requirement of law. Thus, his submission is that all actions taken by
the MCGM are in accordance with law.
Analysis and conclusion:-
31. Having heard the learned Counsel for the parties and having
perused the record, we may at the outset observe that respondent No.1 is
undertaking redevelopment of the building which came to be demolished
on 4 January 2020. The building had total of 29 tenants out of which
these are 7 petitioners, barring 3 petitioners who are stated to be tenants of
respondent No.1-landlord, who would be the beneficiaries of the
redevelopment on the same terms and conditions as offered to the
majority of the tenants, who are 22 in number and who have already
executed Permanent Alternate Accommodation Agreements (PAAA) with
respondent No.1.
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filed7bec20fc039fd385d505541632424.odt
32. As seen from the facts noted above, the petitioners intend to assert
rights that were not asserted by the majority of the tenants who are not
opposing the redevelopment as sought to be asserted by the petitioners.
The petitioners are opposed to the majority consensus on redevelopment.
33. We may at the threshold observe that we put it to Mr.Anturkar that
the petitioners-tenants are being offered permanent alternate tenements
on ownership rights in the redeveloped premises, hence, considering such
fair stand taken by respondent No.1 to offer ownership apartments, would
it be tenable for the petitioners to foist upon respondent No.1 and/or to
dictate the course of redevelopment, in petitioners' capacity as tenants.
Mr. Anturkar, on instructions and for taking such instructions, the
proceedings were adjourned, submits that the petitioners are not
interested to have ownership tenements and are interested to get the
benefits of the redevelopment only as tenants. Mr. Anturkar submits that
such a stand of the petitioners is in any event, justified taking into
consideration the benefit as provided by Clause 19 of Regulation 33(7)(A)
which reads thus:-
"Regulation 33(7)(A)
"19. Restriction on transfer of tenements shall be governed by
provision of Rent Control Act till Cooperative Society is formed and
after that the same shall be governed by the provision of Maharashtra
Cooperative Society's Act."
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filed7bec20fc039fd385d505541632424.odt
34. It needs to be stated that Regulation 33(7)(A) pertains to the
reconstruction or redevelopment of dilapidated/unsafe existing authorized
tenant-occupied buildings in Suburbs and extended Suburbs and existing
authorized non-cessed tenant-occupied buildings in Mumbai City. It
would be appropriate to note the contents of Regulation 33(7)(A) along
with Appendix which read thus:-
"33(7)(A) Reconstruction or redevelopment of
dilapidated/unsafe existing authorized tenant occupied building
in Suburbs and extended Suburbs and existing authorized non-
cessed tenant occupied buildings in Mumbai City.
For reconstruction/redevelopment of existing authorized tenant-
occupied buildings, which have been declared unsafe for human
habitation by or are to be demolished for the same reason under a
lawful order by the Municipal Corporation of Greater Mumbai
and duly certified as such, undertaken by landlord/s or
Cooperative Housing Societies of existing tenants, the
permissible FSI prescribed under these regulations and Appendix
below, shall be admissible as under: -
a) In case of the plot consisting of only tenant occupied building,
the F.S.I. shall be equal to F.S.I. required for rehabilitation of
existing lawful tenant plus 50% incentive F.S.I.
b) In case of composite development i.e. the plot consisting of
tenant occupied building along with non-tenanted building such
as owner occupied building/existing Co-op Housing Society
buildings etc., the FSI available shall be equal to FSI required for
rehabilitation of existing lawful tenant plus 50% incentive FSI
plus FSI that has already authorisedly been utilized/consumed by
the non-tenanted buildings/ structures.
Appendix
1. The F.S.I. permissible for the new building shall be as given in
sub-regulation (7) (A) of Regulation No.33.
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filed7bec20fc039fd385d505541632424.odt
2. (a) A new building may be permitted to be constructed in
pursuance of an irrevocable written consent by not less than 70
51 per cent of the tenants of the old building.
(b) All the tenants of the old building shall be re-
accommodated in the redeveloped building.
3. Each tenant shall be rehabilitated and given the carpet area
occupied by him for residential purpose in the old building
subject to the minimum fixed carpet area of 27.88 sq. m (300 sq.
ft) and/or maximum carpet area up to 70 sq. m (753 sq. ft) free
of cost. In case of non-residential occupier the area to be given
free of cost in the reconstructed building shall be equivalent to
the area occupied in the old building.
Provided that if carpet area for residential purpose exceeds 70.00
sq. m (753 sq. ft.) the cost of construction shall be paid by tenant
to the developer. The cost of construction shall be as per ready
reckoner rate of that year. However, the carpet area exceeding
70.00 sq. m (753 sq. ft.) shall be considered for rehab FSI but
shall not be considered for incentive FSI. Provided further that
each eligible residential cum commercial occupant shall be
entitled to a tenement of minimum carpet area of 27.88 sq. m
(300 sq. ft.).
4. No new tenancy created after 13/6/96 shall be considered.
Further, unauthorized construction made in buildings for
creating new tenancy in the existing tenancies shall not be
considered while doing computation of existing FSI. A certified
inspection extract of the Municipal Corporation for the year
1995-96 or Court Order proving the existence of tenements
prior to 13/6/96 shall be considered adequate evidence to
establish the number of tenements. However, the Govt. may
issue comprehensive guidelines for determination of eligibility of
occupiers and tenants therein.
5. The list of tenants and area occupied by each of them in the
old building and the irrevocable written consent as specified in 2
(a) above shall be certified by the Municipal Corporation of
Greater Mumbai.
6. The tenements in the reconstructed building shall be allotted
by landlord/s or Cooperative Housing Societies of existing
tenants to the tenants as per list certified by the Municipal
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filed7bec20fc039fd385d505541632424.odt
Corporation of Greater Mumbai.
7. The entire FSI available under this regulation shall be allowed
to be utilized on plot/plots under redevelopment scheme.
8. Reconstruction of a new building on the plot should strictly
conform to the provisions of the development plan and these
Regulations.
9. No construction or reconstruction shall be permitted on set-
back areas or areas required for road-widening and such areas
shall be handed over to the Municipal Corporation.
10. For the purpose of calculating the FSI for tenanted building,
the entire area of the plot/layout including Development Plan
roads and internal roads but excluding the land under the
reservation of public amenities shall be considered.
11. New building shall be reconstructed in accordance with these
Regulations and all other Regulations and orders as applicable
from time to time. The Municipal Commissioner may exercise
his powers under Regulation No 6 for condonation of minor
variations in respect of such reconstruction.
12. 20% of the incentive FSI can be used for non-residential
purposes otherwise permissible as per the DCPR.
13. The fungible compensatory area admissible on rehab
component shall be granted without charging premium and such
fungible compensatory area for rehabilitation component shall
not be used for free sale component and shall be used to give
additional area over and above eligible area to the existing
tenants.
14. For smooth implementation of the redevelopment
scheme undertaken by landlord/s or Co-operative Housing
Societies of existing tenants, temporary transit camps may be
permitted on the same land or land situated elsewhere belonging
to the same landlord/s with the concessions permissible under
SRS project under Regulations 33(10) of these Regulations. Such
transit camps should be demolished within one month from the
date of occupation certificate granted by the Corporation for the
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reconstructed buildings.
15. An amount of Rs.5000/- per sq. m shall be paid by the
landlord/s or Co-operative Housing Societies of existing tenants,
as additional development cess for the built-up area over and
above the F.S.I. permissible as per table 12 under Regulation 30,
for the rehabilitation and free sale components. This amount
shall be paid to the Municipal Corporation in accordance with
the time schedule for such payment as may be laid down by the
Municipal Commissioner, MCGM, provided the payment of
instalments shall not go beyond the completion of construction.
This amount shall be used for Scheme to be prepared for the
improvement of off-site infrastructure in the area around the
development. The above development cess shall be enhanced @
10% every three years.
16. As per the provision of clause 3, each residential/non-
residential tenant shall be rehabilitated only for carpet area
mentioned in the said clause 3 and such areas shall be clearly
shown on the building plan submitted to the Municipal
Corporation.
17. The landlord/s or Co-operative Housing Societies of
existing tenants shall commence the reconstruction or
redevelopment work within the period of one year from the date
of demolition of the building and complete it within a period of
five years. In the meantime the landlord/s or Co-operative
Housing Societies of existing tenants shall make arrangement of
alternate accommodation of tenants.
18. A corpus fund is to be created by the landlord/s or Co-
operative Housing Societies of existing tenants which will take
care of the maintenance of the building for a period of 10 years.
19. Restriction on transfer of tenements shall be governed by
provision of Rent Control Act till Co. Op. Society is formed and
after that the same shall be governed by the provision of
Maharashtra Co-Op. Society's Act.
20. The State Government/ Municipal Commissioner shall
prescribe the guidelines for better implementation of the scheme
in respect of model agreement, alternate accommodation of
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filed7bec20fc039fd385d505541632424.odt
existing tenants, eligibility criteria for tenants etc. separately.
21. If the rehab plus incentive as per this regulation is less
than the permissible FSI as per regulation 30, then the owner
may opt for development up to permissible FSI by availing TDR/
Additional FSI on payment of premium as per Regulation 30."
(emphasis supplied)
35. In our opinion, Mr. Anturkar's contention that Clause (19) of the
Appendix under Regulation 33(7)(A) be interpreted to mean that the
petitioners/tenants are deemed to receive tenements on an ownership basis
in the redeveloped premises, is untenable. Regulation 33(7)(A) along
with paragraphs (1) to (21) of the Appendix below it, are required to be
read holistically. The DCPR is a subordinate legislation framed in the
exercise of powers conferred under sub-section (1) of Section 31 of the
Maharashtra Regional and Town Planning Act, 1966. It is misconceived
for the petitioners to contend that Clause (19) under the Appendix below
Regulation 33(7)(A) would change the nature and character of the rights
of the petitioners from that of the 'tenants' to be the 'owners' if they
become members of the proposed co-operative society, also cannot be
accepted. It is difficult to accept Mr.Anturkar's submission that these
tenants would become members of the co-operative society when they
have limited rights of tenancy. Under no law and none shown to us,
supports the petitioners' contention that even if a cooperative society is
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filed7bec20fc039fd385d505541632424.odt
formed of the redeveloped premises, a tenant would become a member of
a cooperative society. Regulation 33(7)(A) merely pertains to the
reconstruction or redevelopment of dilapidated/unsafe existing authorized
tenant-occupied buildings in Suburbs and extended Suburbs and existing
authorized non-cessed tenant-occupied buildings in Mumbai City, which
per-se cannot be read to mean that it changes the basic legal rights
between the landlord and tenants so as to bring about a consequence to
the imagination of the petitioners that after the redevelopment is complete
under the provisions of Regulation 33(7)(A), the tenants become deemed
owners of their tenanted tenements on mere formation of the society. We
accordingly, reject Mr. Anturkar's contention that the petitioners having
decided not to enter into PAA Agreements they would be entitled to the
ownership rights of their respective tenements by virtue of the
membership of the co-operative society. We may thus, observe that the
petitioners being not interested to enter the PAA Agreements, their
entitlement would be to occupy the redeveloped premises as tenants
recognizing all rights of respondent No.1 as the landlord, under the
relevant laws.
36. Insofar as Mr.Anturkar's contention in regard to respondent No.1
being under a mandatory obligation to make available only to the
petitioners' benefit of the fungible FSI, we are far from being persuaded to
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accept such contention. It may be observed that the redevelopment
scheme not only concerns the minority of the tenants, but all the tenants
who are 29 in number. In the present case, majority of the tenants have
agreed to whatever has been provided for in the PAA agreements as
entered by respondent No.1 with such majority members. It is not
possible to accept such contention of the minority members that only for
their benefit the building plans are required to be changed and special
adjustments are required to be made. This would disturb the entire
redevelopment scheme that too at the behest of such handful of tenants
who are putting up a case opposed to the majority interest in the
redevelopment. In this view of the matter, it is not possible for us to accept
the petitioners' contention that barring other tenants who have already
entered into the PAA agreements with respondent No.1, special treatment
needs to be accorded by respondent No.1 to the petitioners by changing
the plans and giving the benefit of fungible FSI, which in fact on
respondent no.1's showing cannot be utilized in the manner as desired by
the petitioners.
37. We may also observe that it is for respondent No.1 owner to
undertake redevelopment as may be permissible in law. The contention as
urged by the petitioners militates against what has been provided for in
the regulations that each tenant shall be rehabilitated and given the carpet
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filed7bec20fc039fd385d505541632424.odt
area occupied by him for residential purposes in the old building subject
to the minimum fixed carpet area of 27.88 sq. m (300 sq. ft) and/or
maximum carpet area up to 70 sq. m (753 sq. ft) free of cost. It is not the
case that respondent No.1 is confining the permanent alternate
accommodation being offered to the tenants to a lesser area than the
stipulated of 300 sq. ft. in fact respondent no.1 is offering an area of more
than 300 sq. ft. In this view of the matter, it cannot be conceived that
Clause 13 of the Appendix below Regulation 33(7)(A) can be pressed into
service by the petitioners to canvass that their entitlement would be to
avail of tenements having 35% more area. Certainly, such is not the
purport of Clause 13 of the Appendix below Regulation 33(7)(A). As to
what extent respondent No.1 would offer the benefit of fungible FSI to all
the tenants considering the other technical parameters, is completely the
lookout of respondent No.1. This more particularly when respondent
No.1 is on record to submit that it is not possible for respondent No.1 to
use the full fungible FSI given the restrictions not only whereby the height
of the building is required to be restricted due to limited access, but there
are other issues as set out in the reply affidavit which appears to be not in
dispute. Be that as it may, these are all technical issues and certainly
cannot be the subject matter of adjudication in the proceedings of the
present writ petition.
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38. We may also observe that on the pleas as raised by the petitioners as
noted above, certainly, the redevelopment project cannot be stalled. In the
event, the petitioners are of the opinion that some of the tenants have
been given larger areas, all these are the contentions that are required to be
proved based on the evidence and which certainly cannot be adjudicated
in the proceedings of a writ petition.
39. Considering the facts of the case that the petitioners who are
minority tenants who are insisting on implementing the conditions in the
IOD of a PAAA to be entered with them by respondent no.1 as per the
petitioners wishes, to have more area than the other/majority tenants, Mr.
Kanetkar would be correct in placing reliance on the decision of this Court
in Raj Ahuja & Anr. (supra) wherein this Court has observed that the
Municipal Corporation cannot insist on the landlord to enter into
permanent alternate accommodation with 100% of the tenants/occupants
and for such non-compliance withhold the grant of commencement
certificate. This Court has observed that Clause 1.15 of the Guidelines
issued by the MCGM for declaring private and municipal buildings as C-1
category (dangerous/unsafe) cannot mandate obtaining consent
agreements with all 100% tenants/occupants and consent of 51% to 70%
of the occupants/tenants of the building shall amount to sufficient
compliance. In granting reliefs to the petitioners, this Court had also taken
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into consideration the rights of minority occupants/tenants. It would be
appropriate to extract the relevant observations of the Court and the
operative order, which read thus:-
"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 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.
..........
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. , Westin Sankalp
Developers Vs. Ajay Sikandar Rana & Ors. ; Sarthak Developers Vs.
2 2010(2) MhLJ 657
3 2019 SCC OnLine Bom 823.
4 2021 SCC OnLine Bom 421.
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filed7bec20fc039fd385d505541632424.odt
Bank of India Amrut Tara Staff Co-op. Hsg. Society Ltd. & Ors. 5;
Choice Developers Vs. Pantnagar Pearl CHS Ltd. & Ors.
... ... .. ... ... ... ....
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 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."
40. We are of the firm opinion that once the landlord has guaranteed
that the tenants would not be deprived of permanent alternate
accommodation in lieu of their original premises, the tenants or occupants
including the minority or majority tenants would not have any legal rights
to dictate and/or foist on the landlord the nature of the development to be
undertaken by the landlord, in the event the old dilapidated building is
demolished. If such a right of the tenants/occupants is recognized, it is
likely to bring about a situation that the corporeal rights of the owners of
5 2012 SCC OnLine Bom 525.
6 2022 SCC OnLine Bom 786.
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the property would stand fully defeated. In any event the tenants/
occupants cannot assert any higher rights being conferred on them in
relation to redevelopment, unless expressly provided by the provisions of
law. The nature and character of the rights of the tenants do not change
merely because redevelopment of the existing building is taking place. As
a sequel to this, the tenants/occupants cannot dictate their notions and any
facet in that regard on the redevelopment being undertaken, unless the
law recognizes such rights or any say of the tenants. In any event, it
cannot be accepted as a proposition of law that the rights of the owners to
undertake development depends on the dictate of the tenants, when the
basic right of providing an alternate tenement as per law is protected by
the landlord.
41. In G.M.Heights LLP (supra), the Court was considering the
question as to whether tenants (it was only one tenant in the said case) can
dictate the nature of the redevelopment to be undertaken by the landlord,
by insisting that the redevelopment of the building necessarily should be,
as the building originally stood, prior to its demolition illustratively that
residential premises should be redeveloped only as residential and not as
commercial or vice-versa.' The Court held that it would not be within the
rights of the tenants to foist upon the owner to dictate the nature of the
redevelopment. It would be necessary to extract the relevant observations
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of the Court which read thus:-
"18. It may be observed that respondent no.3 in his capacity as
a tenant has limited rights. Respondent No.3 within the ambit of
such rights cannot dictate the petitioner-owner, as to the nature
of redevelopment. If such contention, as urged on behalf of the
respondent no.3, is accepted, it would amount to recognizing
rights which are certainly not conferred by law on the tenants.
Recognizing such rights would infact take away and/or obliterate
the legal rights of the owners of property to undertake
redevelopment in a manner as may be permissible in law,
including under the DCPR 2034.
19. Thus, tenants cannot take a position to foist, dominate
and/or dictate to the owner the nature and the course of
redevelopment the owner desires to have. The rights of the
owners of the property to undertake redevelopment of the
manner and type they intend, cannot be taken away by the
tenants, minority or majority. Tenancy rights cannot be
stretched to such an extent that the course of redevelopment can
be taken over by the tenants, so as to take away the basic
corporeal rights of the owner of the property, to undertake
redevelopment of the owners choice. The only rights the tenants
have, would be to be provided an alternate accommodation of an
equivalent area occupied by them before the building was
demolished.
20. Before us, was a similar situation in the case of Raj M.
Ahuja (supra), wherein an industrial building was demolished
and the owner had taken recourse to residential development.
Thus, there are situation and situations, as to why a particular
type of redevelopment is intended by the owner. Such inherent
rights of the owners to have a redevelopment of their choice
cannot be questioned by the occupants/ tenants, when the owner
is ready and willing to protect the rights of the tenants, by
providing alternate accommodation in the redeveloped premises.
We have not been pointed out any legal rights and rights so
overwhelming of the tenants, which would override the legal
rights of the owners, to undertake redevelopment as per the
choice of the owners of the land, as in the present case."
42. We may also observe that Regulation 33(7)(A) is required to be
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read in the context of what Part VI of the DCPR 2034 provides. Part VI
provides for an 'additional floor space index', under which Regulation 33
provides for an additional floor space index (FSI) which may be allowed to
certain categories. The categories are as under:-
33. Additional Floor Space Index (FSI) which may be allowed to
certain categories:
33 (1) Additional FSI to Religious building
33(2) Buildings of Medical and Educational Institutions and
Other Institutional Buildings covered under Regulation (2) (IV)
(16 17) (g)
33(3) Buildings of Government/MCGM/Statutory Bodies, Semi-
Government and PSU Offices:
33(3) (A) Development/Redevelopment for construction of staff
quarters of Govt. or its statutory bodies (including CISF) or
MCGM or its statutory bodies, on lands belonging to such Public
Authorities.
33(3) (B) Development/Redevelopment for construction of staff
quarters of Govt. or its statutory bodies (including CISF) or
Municipal Corporation of Greater Mumbai or its statutory bodies
on private lands.
33(4) Building of Residential Hotels on independent plot:
33(5) Development/Redevelopment of Housing Schemes of
Maharashtra Housing & Area Development Authority
(MHADA)
33(6) Reconstruction of buildings destroyed by fire or which have
collapsed or which have been demolished under lawful order
33(7) Reconstruction or redevelopment of cessed buildings in the
Island City by Co-operative Housing Societies or of old buildings
belonging to the Corporation:
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filed7bec20fc039fd385d505541632424.odt
33(7)(A) Reconstruction or redevelopment of dilapidated/unsafe
existing authorized tenant occupied building in Suburbs and
extended Suburbs and existing authorized non-cessed tenant
occupied buildings in Mumbai City.
33(7)(B) Additional FSI for Redevelopment of existing
residential housing societies excluding cessed buildings:
33(8) Construction of Affordable Housing in Special
Development Zone (SDZ)
33(9) Reconstruction or redevelopment of Cluster(s) of Buildings
under Cluster Development Scheme(s)(CDS)"
43. Thus, once the above Regulations pertain to FSI for specific
purposes, the scheme under each head of the Regulation is required to be
read holistically and not in the manner, the petitioners intend to interpret,
picking up one clause so as to interpret the same purporting the same to
be of their benefit. This would be an erroneous reading of the scheme of
Regulation 33 and 33(7)(A). In fact on a comprehensive reading of
Regulation 33(7)(A), we are not persuaded to accept the contention that
such regulation carves out any special rights for a certain category of
tenants in the building to be redeveloped as opposed to the other category
of tenants and in the present case, the majority of the tenants being the
other category. We are thus of the opinion that the petitioners have failed
to point out any legal rights which can be enforced only qua the
petitioners and leaving aside the majority of the tenants, much less any
overwhelming rights, that they need to discard the rights of the majority
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tenants/occupants.
44. In any event, once the petitioners have taken a stand that they
intend to continue to possess the rights as tenants in the redeveloped
premises, it would not lie in the mouth of the petitioners to dictate the
course of redevelopment to respondent No.1, as petitioners have limited
rights as tenants as opposed to the others majority tenants who have
preferred to accept the tenements in the redeveloped buildings as owners.
It may be observed that in these circumstances the petitioners having
limited rights as tenants, cannot assert any further better rights which are
not available to the tenants even under the provisions of the Maharashtra
Rent Control Act, 1999, governing the relationship between the landlord
and tenants. The contentions of the petitioners apart from being totally
unreasonable, are wholesomely opposed to law. By raising such
contentions, the petitioners cannot cause any impediment, obstruction,
and hurdles in respondent No.1 pursuing the redevelopment.
45. We find much substance in the contention of Mr.Kanetkar that in
fact the reliefs in the present petitions filed under Article 226 of the
Constitution are primarily against respondent No.1 who is a private entity.
A writ petition for any reliefs against a private party is certainly not
maintainable. In such context insofar as the petitioners' reliance on the
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decision in Shalini Shyam Shetty (supra) to support a proposition that a
writ petition under Article 226 of the Constitution is maintainable against
respondent No.1 although respondent No.1 is a private party, in the facts
of the case is not well founded. In our opinion, undertaking
redevelopment and re-housing of the tenants by the landlord does not
amount to discharge of a public duty by the landlord. Further taking
benefit of the incentives if any as available under the rules and regulation
as may be available also would not create any enforceable legal right for
the tenants to dictate to the landlord course of the redevelopment once the
statutory minimum area of the tenement to be provided to the tenant as
per the redevelopment scheme is being made available to the
tenants/occupants of the building, which came to be demolished.
46. In the light of the above discussion, the petitions are wholly
misconceived. The petitioners are not entitled to any relief. The petitions
are accordingly rejected. No costs. Interim orders, if any, stand vacated.
47. Interim application would not survive. It is accordingly disposed of.
48. All contentions of the parties in the pending suits, if any, are
expressly kept open. Such pending proceedings be decided on their own
merits.
49. At this stage, a request is made for continuation of the ad-interim
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filed7bec20fc039fd385d505541632424.odt
order. The entire redevelopment at the behest of minority tenants cannot
be stalled. This is a case that the petitioners intend to prejudice the
interest of the majority of the tenants as also of the landlords. We are thus
not inclined to accept such request. It is accordingly rejected.
[R. N. LADDHA, J.] [G. S. KULKARNI, J.]
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