Bombay High Court
Gaurav Arun Rane vs Maharashtra Housing And Area ... on 6 March, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-OS:3708-DB
1/36 Judgment IAL-5170-21.odt
Digitally signed by MANDIRA
MANDIRA MILIND
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND SALGAONKAR
SALGAONKAR Date: 2025.03.07 01:21:31
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.4611 OF 2021
IN
PUBLIC INTEREST LITIGATION NO.93 OF 2013
The Chief Officer/Vice President,
Maharashtra Housing & Area
Development Board (MHADA) .. Applicant
In the matter between
Manjula Kadir Veeran .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
PUBLIC INTEREST LITIGATION NO.93 OF 2013
WITH
CHAMBER SUMMONS NO.83 OF 2013
WITH
INTERIM APPLICATION NO.1210 OF 2021
WITH
INTERIM APPLICATION NO.3368 OF 2021
WITH
INTERIM APPLICATION NO.2798 OF 2023
WITH
NOTICE OF MOTION (L) NO.68 OF 2013
WITH
NOTICE OF MOTION (L) NO.62 OF 2013
WITH
NOTICE OF MOTION (L) NO.66 OF 2013
WITH
NOTICE OF MOTION (L) NO.67 OF 2013
WITH
NOTICE OF MOTION (L) NO.69 OF 2013
WITH
NOTICE OF MOTION (L) NO.70 OF 2013
WITH
NOTICE OF MOTION (L) NO.71 OF 2013
WITH
CHAMBER SUMMONS NO.82 OF 2013
M.M.Salgaonkar/Ashish
::: Uploaded on - 06/03/2025 ::: Downloaded on - 06/03/2025 22:09:06 :::
2/36 Judgment IAL-5170-21.odt
WITH
NOTICE OF MOTION (L) NO.75 OF 2013
WITH
CHAMBER SUMMONS NO.24 OF 2013
WITH
CHAMBER SUMMONS NO.35 OF 2013
WITH
CHAMBER SUMMONS NO.34 OF 2013
WITH
CHAMBER SUMMONS NO.71 OF 2013
WITH
CHAMBER SUMMONS NO.141 OF 2014
WITH
INTERIM APPLICATION NO.1701 OF 2021
Manjula Kadir Veeran .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
INTERIM APPLICATION (L) NO.5170 OF 2021
IN
PUBLIC INTEREST LITIGATION NO.103 OF 2013
The Chief Officer/Vice President,
Maharashtra Housing & Area
Development Board (MHADA) .. Applicant
In the matter between
Tekchand Gopaldas Khanchandani .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
PUBLIC INTEREST LITIGATION NO.103 OF 2023
WITH
INTERIM APPLICATION NO.3336 OF 2024
WITH
NOTICE OF MOTION NO.321 OF 2013
M.M.Salgaonkar/Ashish
::: Uploaded on - 06/03/2025 ::: Downloaded on - 06/03/2025 22:09:06 :::
3/36 Judgment IAL-5170-21.odt
WITH
IN-PERSON APPLICATION NO.38 OF 2016
Tekchand Gopaldas Khanchandani .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.3863 OF 2024
Motilal Nagar Rahivashi Vikas Sangh .. Petitioner
Versus
Maharashtra Housing and Area .. Respondent
Development Authority
WITH
WRIT PETITION NO.776 OF 2023
Gaurav Arun Rane .. Petitioner
Versus
Maharashtra Housing and Area .. Respondent
Development Authority
WITH
WRIT PETITION (L) NO.22731 OF 2021
WITH
INTERIM APPLICATION (L) NO.7543 OF 2021
Motilal Nagar-1, Panchshil Co-Op. .. Petitioner
Housing Society Limited
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.2370 OF 2023
Motilal Nagar Shiv Co-Op. Hsg. .. Petitioner
Society
M.M.Salgaonkar/Ashish
::: Uploaded on - 06/03/2025 ::: Downloaded on - 06/03/2025 22:09:06 :::
4/36 Judgment IAL-5170-21.odt
Versus
Maharashtra Housing & Area .. Respondents
Development Authority (MHADA) &
Ors.
WITH
PUBLIC INTEREST LITIGATION (L) NO.6555 OF 2022
Kamal Jagdish Singh .. Petitioner
Versus
Maharashtra Housing & Area .. Respondent
Development Authority
...
Mr.Darius Khambatta, Senior Advocate with Mr.Mayur
Khandeparkar, Mr.Sumeet Nankani, Ms.Vidhi Shah i/b
Mr.P.G.Lad with Ms..Shreya Shah, Ms.Sayli Apte and
Ms.Aparna Kalathil for the Applicant in IAL/4611/21,
IAL/5170/21 and for the Respondent No.2 in PIL/103/13 and
PIL/93/13.
Mr.Tekchand Gopaldas Khanchandani (through VC),
Petitioner-in-person in PIL/103/13 and the Applicant-in-
Person in IA/3336/24.
Mr.Yogesh Yagnik for the Petitioner in PIL/93/2013.
Mr.Shishir Joshi with Kamlesh Kharade i/b India Law Alliance
for the Respondent No.4 in IAL/4611/21
Mr.Rajendra K. Vaingankar for the Petitioner in WP/3863/24
and in WP/2370/23 and for the Respondent in CHSW/82/13 &
CHSW/83/13.
Mr.Gaurav A. Rane, Petitioner-in-Person in WP/776/23.
Mr.Datta Mane with Mr.Shreyas Chaudhari for the Petitioner
in WPL/22731/21 and for the Application in IAL/7543/21.
Mr.Pradeep Havnur for the Petitioner in PIL(L)/6555/22.
Ms.Oorja Dhond i/b Ms.Komal R. Punjabi for the Respondent
No.3/BMC in IAL/5170/21 in PIL/103/13.
M.M.Salgaonkar/Ashish
::: Uploaded on - 06/03/2025 ::: Downloaded on - 06/03/2025 22:09:06 :::
5/36 Judgment IAL-5170-21.odt
Mr.Ravi Kadam, Senior Advocate with Mr.Abhay Patki,
Addl.G.P. and Mr.Vaibhav Bhure for the State in IAL/5170/21,
PIL(L)/6555 of 2022, PIL/103/13, NMW/321/13, IPA/38/16,
IAL/27017/24, IAL/7543/21, IA/3336/24.
Mr.Ravi Kadam, Senior Advocate with Smt.Jyoti Chavan,
Addl.G.P. with Smt.Pooja Patil, A.G.P. and Mr.Vaibhav Bhure for
the State in IAL/4611/21, PIL/93/13, CHSW/83/13,
NMWL/68/13, NMWL/62/13, NMWL/66/13, NMWL/67/13,
NMWL/69/13, NMWL/70/13, NMWL/71/13, CHSW/82/13,
NMWL/75/13, CHSW/35/13, CHSW/34/13, CHSW/71/13,
CHSW/141/14.
Mr.Ravi Kadam, Senior Advocate with Mr.Dipesh Siroya, A.G.P.
and Mr.Vaibhav Bhure for the State in WP/776/23.
Mr.Ravi Kadam, Senior Advocate with Mr.Himanshu Takke,
A.G.P. and Mr.Vaibhav Bhure for the State in WPL/22731/21.
Mr.Ravi Kadam, Senior Advocate with Mr.Manish Upadhye,
A.G.P. and Mr.Vaibhav Bhure for the State in WP/2370/23.
Ms.Dnyanda D. Mahajan for the Applicant in IA/1210/21,
IA/3368/21, IA/2798/23 and IA/1701/21.
...
CORAM: ALOK ARADHE, CJ. &
BHARATI DANGRE, J.
RESERVED ON : 20th FEBRUARY, 2025
PRONOUNCED ON : 06th MARCH, 2025
...
JUDGMENT (PER BHARATI DANGRE, J.) :
-
1. Mr.Tekchand Gopaldas Khanchandani, a social activist,
feeling concern about the social, political, administrative and
other affairs indirectly affecting the society, filed a Petition as
Public Interest Litigation (PIL NO.103 of 2013), being
aggrieved with the inaction on part of the Respondents in not
removing the illegal structures, despite several complaints
M.M.Salgaonkar/Ashish
6/36 Judgment IAL-5170-21.odt
being made and for sitting tight over the issue, by completely
remaining dormant.
The Petition impleaded the State of Maharashtra
alongwith the Chief Officer/Vice President of the Maharashtra
Housing & Area Development Board (for short, "MHADA") as
well as the Municipal Corporation of Greater Mumbai as the
Respondents.
The Petitioner, who sought permission from the Court to
appear in person, sought the following primary reliefs :-
"(a) The Hon'ble Court be pleased to issue a writ in the nature
of Mandamus or any other writ, direction or order thereby directing
the Respondents to demolish the unauthorised extension over
Sewerage Water Drain in front, back side and side of the tenements
open to sky and construct the SWD if not constructed due to
encroachment, at Motilal Nagar No.1, 2 and 3 of MHADA Colony,
Goregaon West, Mumbai 400 104.
(b) The Hon'ble Court be pleased to issue a writ in the nature
of Mandamus or any other writ, direction or order thereby directing
the respondents to demolish the unauthorized construction at
Motilal Nagar I, II and III other than the tenants of the colonies.
(f) The Hon'ble Court be pleased to issue a writ in the nature
of Mandamus or any other writ, direction or order thereby directing
the Respondents to demolish structures which are obstructing in
implementing the pending Brims toward Project from Link Road to
Creek of Goregaon West."
In addition, by way of an interim measure, the Petitioner
sought a direction to appoint a Court Commissioner to inspect
the unauthorized construction carried out at all MHADA
colonies of ground floor tenements and to permit individual
gala holders to redevelop their own tenements as per DC Rules
in force.
Another PIL 93 of 2013, praying for an identical relief is
filed by Ms.Manjula Kadri Veeran, a social activist, in a matter
of unauthorized construction in Motilal Nagar, MHADA Colony,
Goregaon (E) Mumbai.
M.M.Salgaonkar/Ashish
7/36 Judgment IAL-5170-21.odt
Interim Application No.3336 of 2024, is filed by the PIL
petitioner, seeking direction to MHADA to give water
connection till the new water pipelines are laid. The further
direction is sought that MCGM shall not misuse the charges
from the tenants applying for new connection and it should not
charge digging of the road.
2. Today, the two PILs are listed before us for consideration
of Interim Application (L) No.5170 of 2021 in Public Interest
Litigation No.103 of 2013 (PIL (L) No.87 of 2013) and Interim
Application (L) No.4611 of 2021 in Public Interest Litigation
No.93 of 2013 (PIL(L) No.58 of 2012), both filed by MHADA,
seeking the following relief :-
"(a) that the Applicant be permitted to redevelop Motilal
Nagar I, II and III jointly with "Construction and Development
Agency(ies)" to be selected through tender process on FSI sharing
basis, in terms of the present DCPR 2034".
The Applications are listed before us alongwith several
other proceedings, which are in form of independent Petitions,
but the relief in all the proceedings revolve around
redevelopment of Motilal Nagar I, II and III.
3. We have heard learned senior counsel Mr.Darius
Khambatta for MHADA, which has taken out the Interim
Applications in both the PILs and the PIL Petitioner,
Mr.Tekchandani who marked his appearance through VC and
also the respective counsel representing the Petitioners in
distinct Petitions.
4. Mr.Khambatta, has invited our attention to the orders
passed in the PIL, which sought direction to MHADA and the
M.M.Salgaonkar/Ashish
8/36 Judgment IAL-5170-21.odt
Municipal Corporation, Greater Mumbai to demolish the
unauthorized construction at Motilal Nagar, in the background
that the unauthorized constructions have taken place in the
colonies, but no action was taken, though it was found in
defiance of the existing regulations. Mr. Khambatta has invited
our attention to distinct orders, which we reproduce in
seriatim.
A] On 08/01/2013, when Public Interest Litigation (L) No.58
of 2012 was listed before the Division Bench, the Court
recorded thus :-
"4. Having heard learned counsel for the parties, we are of the view
that since the land belongs to MHADA and if any scheme for
redevelopment were to be submitted, MHADA would get premium
and/or built up area as per the development agreement, it would be
in the fitness of things that MHADA, which is also a public
authority, should make survey of the unauthorised constructions in
the above MHADA colonies. Hence such a survey shall be made
within six months in three parts, i.e. first report shall be submitted
to the Municipal Corporation by 28 February 2013, second report
by 30 April 2013 and the final report by 30 June 2013. Copies of the
survey reports which shall be furnished to the Municipal
Corporation shall also be placed on record of these proceedings.
5. After receiving survey reports from MHADA the Municipal
Corporation shall take necessary action in accordance with law for
demolition of unauthorised constructions in the above three
colonies.
6. After receiving the survey reports as aforesaid the Municipal
Corporation shall carry out demolition of unauthorised
constructions in the above three MHADA colonies and recover the
costs from MHADA. In turn, MHADA will be entitled to recover such
costs from the concerned parties.
7. In the meantime it will be open to the occupants of the buildings
in the three MHADA colonies to submit applications to MHADA
seeking permission of MHADA for redevelopment and thereupon it
will be open to MHADA and all concerned to undertake
redevelopment in accordance with law. Since the land belongs to
MHADA it will be open to MHADA, while issuing N.O.C. for such
redevelopment, to ask for appropriate amounts of premium and/or
built up area.
M.M.Salgaonkar/Ashish
9/36 Judgment IAL-5170-21.odt
8. Ms.Surve, learned counsel states that she has instructions to
appear for the Association of occupants of the buildings in the above
three MHADA colonies and that once the copy of the PIL petition is
served upon her, she will make necessary application for
intervention. Copy of the PIL Petition shall be served upon the
learned Advocate for the Association by tomorrow.
9. The Association of occupants in the above three MHADA
colonies shall also indicate in the intervention application whether
the Association proposes to go for any redevelopment scheme. The
intervention application along with affidavit to that effect shall be
filed within three weeks from today.
10. It is clarified that if the Association of the occupants is ready to
go for redevelopment scheme, it will not be necessary for the
Municipal Corporation to demolish the unauthorised constructions
because the developer who will be entrusted the redevelopment
work will be responsible to demolish the existing constructions for
the purposes of putting up new buildings."
B] On 22/01/2013, Notice of Motion (L) No.36 of 2013 was
taken out by Motilal Nagar Vikas Samiti, society registered
under the Societies Registration Act, 1860 and claiming to
represent 16 societies with 510 occupants of Motilal Nagar I,
filed application for intervention seeking their impleadment in
the PIL and the Motion was allowed with a direction to the
Petitioner to implead the Applicant Association as party
respondent.
It was also expressed that it would be open for the
Associations representing other co-operative societies in the
Motilal Nagar to file intervention application through their
Associations. The submission made by the counsel
representing the intervenor Association was recorded that
they shall be making an application to MHADA for
redevelopment within a period of six weeks and similarly
liberty was conferred on the other Associations of the co-
operative societies to act accordingly.
M.M.Salgaonkar/Ashish
10/36 Judgment IAL-5170-21.odt
C] On 31/07/2013, the Court passed the following order:-
". By our order dated 8 January 2013 we had directed
Maharashtra Housing and Area Development Authority (MHADA)
and the Municipal Corporation of Greater Mumbai to demolish the
unauthorised constructions in Motilal Nagar I, II and III Colonies
situated at Goregaon West, Mumbai. We had, however, made it clear
that in case the Association of occupants is ready for
redevelopment it may not be necessary for the Municipal
Corporation of Greater Mumbai or the MHADA to demolish the
unauthorised constructions. Thereafter by our order dated 22
January 2013 we had clarified that since there appears to be
various Associations of Co-operative Societies in Motilal Nagar I, II
and III, the Associations will be at liberty to make applications to
MHADA for redevelopment and MHADA will consider such
applications on merits and in accordance with law.
2. Today a large number of learned Advocates have submitted that
they are appearing for different Associations or Co-operative
Societies in Motilal Nagar I, II and III and that they will be making
applications for intervention.
3. Having heard the learned Advocates for some time and also
having heard Mr. Lad, learned counsel for MHADA and Mr.
Sakhare, learned counsel for Municipal Corporation of Greater
Mumbai, we are of the view that in matter of this nature it would be
appropriate for MHADA to consider the entire matter whether the
redevelopment would be done by MHADA on its own or whether
redevelopment should be permitted to be done by the Federation of
Co-operative Societies in Motilal Nagar I, II and III or by cluster of
Associations of Co-operative Societies in Motilal Nagar I, II and III.
All those who are interested in making such applications for
redevelopment shall make such applications by 28 February 2013
with their respective proposals and MHADA shall take appropriate
decision as expeditiously as possible and preferably by 31 March
2013.
4. It is clarified that at this stage the applicant Societies who desire
to apply for redevelopment need not submit detailed drawings but
only give a broad outline of their proposed redevelopment schemes.
5. For taking such decision it will be open to MHADA to consult the
State Government as well as the Municipal Corporation of Greater
Mumbai.
6. The MHADA shall issue a public notice informing the residents in
Motilal Nagar I, II and III that MHADA is going to consider to take
up redevelopment scheme/s either by itself or through the
Associations of Co-operative Societies or Federation of Co-operative
Societies.
Stand over to 10 April 2013."
M.M.Salgaonkar/Ashish
11/36 Judgment IAL-5170-21.odt
D] On 02/07/2013, the Court recorded the statement made
on behalf of MHADA to the effect that MHADA does not have
any policy for redevelopment of its properties and as per
Regulation 33(5) of the Development Control Regulations,
1991, it will be open to the concerned co-operative societies to
submit proposals for redevelopment of MHADA properties and
upon such proposals being received in the prescribed formats,
MHADA will consider the same in accordance with the
amended Development Control Regulations and inform the
parties accordingly.
E] On 17/10/2013, learned Advocate General tendered an
affidavit, placing on record the Notification dated 08/10/2013
(yet to be published in the Gazette) for amendment of
Regulation 33(5) of the Development Control Regulation Act,
1991 (DCR) and as per the said modification, MHADA on its
own will take up redevelopment of the buildings in existence
on its housing scheme as per Clause 2.2. of the Schedule of
modified DCR 33(5).
A specific statement made on behalf of MHADA, was
recorded as below :-
"2. Learned Advocate General states that MHADA will take up
redevelopment of Motilal Nagar I, II and III on its own as per the
modified 33(5) of the DCR.
3. In view of the above, MHADA shall take further necessary steps
for redevelopment of Motilal Nagar I, II and III on its own as per the
modified DCR 33(5). In view of the above, since the buildings in
Motilal Nagar I, II and III will require to be demolished in the course
of redevelopment, this Court does not find it necessary to issue any
directions for demolition of unauthorized constructions at this
stage, that will be taken care of in the process of demolition for the
purpose of redevelopment.
4. It is further clarified that in case of Co-Operative Housing
Societies which are not ready to go for redevelopment, MHADA and
Municipal Corporation shall proceed to implement the previous
M.M.Salgaonkar/Ashish
12/36 Judgment IAL-5170-21.odt
directions for demolition for unauthorized structures/unauthorized
extensions."
5. Mr. Khambatta has urged before us that in the wake of
the modification in Regulation 33 (5) of the DCPR, which was
gazetted on 8/10/2013, the word 'departmentally' which was
in existence as a part of Regulation 33 (5) of DCPR, Greater
Mumbai under Section 37 (2) has been deleted and as a effect
of the revised regulation, the development is permitted to be
carried out by (I) MHADA or jointly by MHADA along with
housing societies or occupiers of the building or lessees of
MHADA; or (ii) Co-operative Housing Societies; or (iii)
occupiers of buildings; or (iv) lessees of MHADA.
Thus inviting our attention to the previous orders and in
particular to the order dated 17/10/2013, where the Court
taking note of the amendment of Regulation 33(5) of DCR had
categorically recorded, that MHADA shall take further
necessary steps for redevelopment of Motilal Nagar I, II and III
'on its own' as per the modified DCR (33) (5), he has prayed for
the relief in his application.
6. According to Mr. Khambatta, today MHADA intends to
undertake redevelopment of the entire colony including
making provision for the necessary infrastructure, but it do
not propose the redevelopment jointly with the housing
Societies, occupiers of building, or the lessees, however the
redevelopment is intended to be a holistic re-development,
where residents of Motilal Nagar would be provided with
topmost amenities and facilities, which they may be deprived
M.M.Salgaonkar/Ashish
13/36 Judgment IAL-5170-21.odt
of, if each society is permitted to carry out individual
redevelopment through an independent agency as it would be
a redevelopment in part and parcel and would not include the
redevelopment of common areas, infrastructure, removal and
rehabilitation of slums etc.
It is with this object in mind, MHADA has taken out the
Interim Applications in the pending/ Public Interest Litigation,
seeking appointment of a 'Construction and Development
Agency' ("C&DA") to be selected through a tender process on
an FSI sharing basis and for this purpose, it seek clarification
of the order passed by this Court on 17/10/2013, by way of
abundant precaution, though according to MHADA, it fully
understand that the term 'on its own' is used for enabling
MHADA to carry out redevelopment.
7. Two issues, therefore, fall for our consideration;
(i) Whether the wording 'on its own' as used in order dated
17/10/2013, is capable of admitting the 'construction and
development agency' to be appointed by MHADA subject to
MHADA retaining control over the entire redevelopment process
but the agency shall only facilitate the redevelopment.
(ii)Whether the amended DC Regulation 33(5) permits MHADA
to carryout re-development by appointing an agency.
8. Mr. Khambatta, at the outset, would submit that neither
the DC Regulation 33 (5) clause 2.2 nor this Court vide its
order dated 17/10/2013, prohibited MHADA from undertaking
the redevelopment by appointment of a C&DA, or from seeking
assistance from any other external agencies, in form of
financial/technical assistance or otherwise. It is urged before
M.M.Salgaonkar/Ashish
14/36 Judgment IAL-5170-21.odt
us that the phrase 'on its own' applied by the Court in its order,
is intended to denote redevelopment by MHADA, in
contradistinction to a joint redevelopment to be carried out by
MHADA along with the Societies, lessees or the occupants of
the building. It is urged that MHADA is the owner of the
property and therefore, no restrain can be imposed upon it in
developing the property, though some of the properties have
been leased out to the Societies and if MHADA is going to be
benefited by the expertise of the construction agencies or by
appointment of consultants and contractors in the
redevelopment process, it shall not be outside the scope of the
DCPR specifically dealing with the redevelopment of MHADA.
9. On perusal of the present Interim Applications filed by
MHADA, it can be discerned that Motilal Nagar I, II and III is a
layout developed by MHADA in the year 1961 on distinct CTS
Numbers and the area housed 3,686 ground structure
structure tenement with carpet area 21.36 sq mt each. 115
societies of different buildings in Motilal Nagar I, II and III
were registered, as the occupants of different chawls. The
State of Maharashtra issued a direction in the year 1987-1988,
to convert all the tenements which were allotted on rental
basis into ownership basis by recovering the cost of tenements
at subsidised rate and accordingly the tenements were
converted into ownership basis. Out of the 115 societies, the
buildings of only 26 societies were conveyed with lease of land
beneath their respective structure, however, in case of other
buildings, the ownership is still with MHADA.
M.M.Salgaonkar/Ashish
15/36 Judgment IAL-5170-21.odt
The two Public Interest Litigations filed by the two public
spirited citizens namely Ms.Manjula Kadir Veeran and
Tekchand Gopaldas Khanchandani, were filed with a plea that
despite various directions issued to the statutory authorities
for removal of illegal structures and actions to be taken, no
steps were taken and the grievance was made in respect of all
those unauthorised constructions carried out at Motilal Nagar
I, II , III MHADA colony situated at Goregaon West Mumbai.
Pleading that the petitioners had no personal interest in the
matter but they are aghast to take note of the unauthorized
structures situated in the city of Mumbai and the inaction on
part of the respondents in taking any action, they sought a
writ of mandamus directing the respondents to demolish the
unauthorized constructions at Motilal Nagar I, II and III.
10. We have already made reference to the various orders
passed by this Court which indicate that the Court was
assured that on receipt of the report from MHADA which
would carry a survey of unauthorized constructions in the
colony, the Municipal Corporation shall take necessary steps
in accordance with law for demolition of unauthorized
structures. However, a door was also opened for the occupants
of the building in three MHADA colonies to submit their
applications for permission for redevelopment since the land
belonged to MHADA. In the order dated 31/01/2013, the Court
reiterated that though a demolition was directed to be carried
out of the unauthorized constructions in Motilal Nagar, in case
the association of occupants are ready for redevelopment, it
may not be necessary to carry out the demolition and it would
M.M.Salgaonkar/Ashish
16/36 Judgment IAL-5170-21.odt
be appropriate for MHADA to consider whether the
redevelopment would be carried out by MHADA on its own or
it shall be permitted by federation of co-operative Societies or
by cluster of co-operative societies in Motilal Nagar. MHADA
was directed to issue public notice informing the residence of
Motilal Nagar about their schemes being taken up for
redevelopment and various orders came to be passed from
time to time in the two Public Interest Litigations, ultimately
the Court recognizing the power of MHADA to carry out
redevelopment of its properties in terms of Regulation 33(5)
of DCR.
When the report was presented to the Court, it was noted
that except two tenements out of 3686 all of them were guilty
of unauthorized construction. In the meantime, Regulation
33(5) of the DCR 1991 was modified, the Court recorded
willingness of MHADA to carry out redevelopment 'on its own',
which would not require demolition of unauthorized work,
however, in case of those co-operative societies, which were
not ready to go for redevelopment, they were directed to be put
under hammer by demolishing unauthorized structure/
unauthorized extension.
11. In terms of the order dated 17/10/2023, 53 applications
were received by MHADA but none of the applications were
supported with formal resolution of societies and were without
demarcation of plot and they were not found to worth the
consideration.
Even in those cases where land is leased to the societies/
occupants, adequate provisions have been made under the
M.M.Salgaonkar/Ashish
17/36 Judgment IAL-5170-21.odt
lease deeds to reserve MHADA's right to redevelop. The lease
deeds executed by MHADA in respect of the land underneath
the tenements in Motilal Nagar usually include any one or
more of the following clauses:
(i) That lessee shall abide by the terms and conditions
vis-a-vis Development permission as well as policies and
Guidelines prescribed by the Authority in case lessor
decides to revise the layout as per modified DCR 33 (5).
(ii) It is agreed that since in pursuance of the orders
passed by the Hon'ble Court dated 17th October 2013 in PIL
No.58 of 2012 read with PIL No.87 of 2013 lessor is carrying
out redevelopment therefore lessee is not entitled for
separate FSI;
(iii) To get the chawls situated on the said plot of Land
duly redeveloped from lessor and abide by all the
instruction in this respect given by the Lessor from time to
time;
(iv) To abide by all rules regulations bye-laws and
conditions now or at any time hereafter duly prescribed by
the Government, Municipal Corporation of Greater Bombay
or of the Authority in so far as they relate to the said land;
and
(v) to abide by and be bound by the provisions of the
said Act and the rules and regulations and bye-laws made
under the said Act or under any law for the time being in
force in so far as they relate to the said land.
12. In order to proceed with the redevelopment, in
accordance with the modified DCR, MHADA appointed M/s.
P.K. Das & Associates, as Architect for land use planning and
conceptual planning on 01/03/2014.
On 22/07/2014, it passed a resolution setting out the
entitlements of the occupants, corpus fund, rent and recovery
of previous dues. The said resolution clarify that every
individual occupant would be entitle for 41.60 sq.mt. carpet
M.M.Salgaonkar/Ashish
18/36 Judgment IAL-5170-21.odt
area plus 10.41 sq mt fungible area. At the relevant time, as
per the DCR only 25% fungible area was permitted. Each
occupant was thus held entitle to approximately 62.45 sq.mt.
which is equivalent to 672 sq.ft. area, whereas commercial
occupants were entitled to 41.51 sq.mt., which is equivalent to
446 sq.ft. of area.
In the year 2016, M/s Sandeep Shirke and Associates
were appointed as project management consultants and on
18/07/2019 agreement was executed with the consultants.
The project management consultant submitted the report
estimating the total cost of redevelopment as 21,918.14 Crores
(revised to 36, 295 Crores) and an area of 7,95, 516.57 sq mt
was contemplated for rehabilitation and amenities.
13. With the aforesaid statistics being made available, and
considering the magnitude of the project and the cost which
was approximately estimated, a decision was taken by MHADA
to appoint construction and development agency for
redevelopment of Motilal Nagar I, II and III as per modified
DCR 33 (5). It is worth to note that Court was apprised of the
aforesaid development by filing an affidavit in the PIL.
14. MHADA which has been constituted under the
Maharashtra Housing Act, 1976, an Act to whose principle
object is to unify, consolidate and amend laws relating to
housing, repairing and reconstructing dangerous buildings
and carry out improvement work in slum areas.
In the wake of the rapid growth of industries in the
urban areas and the fast growth of population and commercial
M.M.Salgaonkar/Ashish
19/36 Judgment IAL-5170-21.odt
activities, the need for housing could not be met by limited
housing construction activities in private sector and it was
also felt necessary to reconstruct the buildings which have
lived its life and since various slums had come up which
necessitate taking up their improvement, the authority known
as MHADA is constituted under Section 3 of the Act, which is
cast with the functions, duties and powers as set out in
MHADA Act, 1976.
Principal object of having MHADA as a planning and
statutory authority is aimed to achieve housing in urban area,
as well to take effective steps and acquisition of lands and
buildings for carrying out repairs, construction and re-
construction. The proposed development of Motilal Nagar thus
squarely fall within the objective and purposes and within the
powers and authorities vested in MHADA. Under Section 28
(1), which set out the duty and function of the authority
constituted under the Act, MHADA possess the powers of the
land owner, namely to develop and manage all lands vested in
MHADA and to raise resources for the purpose of carrying out
the object of the Act and also to develop the lands vested in it
including the power of closure or demolition of dwellings or
portions of dwellings unfit for human habitation and
demolition of obstructive or dangerous and dilapidated
buildings or portions of such buildings. MHADA is also
empowered to enter into contracts and agreements while
discharging its functions and duties. MHADA is also competent
to exercise the power of eviction and/or land acquisition and
direct vacation of the premises for the purpose of
implementing any plan or project and also to evict occupants,
M.M.Salgaonkar/Ashish
20/36 Judgment IAL-5170-21.odt
who are non-cooperative and obstruct any of the aforesaid
activities.
The Maharashtra Housing and Area Development
(Estate management, sale, transfer and exchange of
tenements) Regulation 1981, prescribe that in case of a
conveyance of the building, it will always be subject to a
condition that the land beneath or appurtenant to such
building shall be held on lease from MHADA and as per sub-
rule (5) of Rule 21, the Housing Society, the Company or
allottee shall hold the property on lease and only while such
lease is in force the property shall remain as authority
premises subject to the provision of MHADA Act, 1976. The
conveyance of the building is thus made co-terminus and runs
concurrently with the lease.
15. MHADA has proposed an integrated and holistic
redevelopment for Motilal Nagar, which envisages:-
(i) rehabilitation buildings for both existing and
commercial users;
(ii) development of markets, shopping centres, offices,
houses and work places, mixed use buildings, cultural
centres, clubs, public halls, recreational centres, schools,
community centres, shelters for women and children,
shelters for old, health-care and medical centres, hostels
and residential buildings of various sizes of apartments for
sale; and
(iii) a network of open spaces and parks and pedestrian
plazas."
16. Considering the nature of the proposed project, it may
not be possible to be undertaken by individual co-operative
housing societies, or associations formed by occupants thereof
on a piecemeal and individual basis. Each co-operative society
would look solely to the personal interest of itself and its
M.M.Salgaonkar/Ashish
21/36 Judgment IAL-5170-21.odt
members, and likely appoint a developer to undertake a
narrow and limited development of its land / buildings. This
would not be in the interest of orderly planning and
infrastructural development. It would also expose each society
and its occupants to the exigencies of commercial
developments by developers.
Moreover, it is only a holistic redevelopment that
proposes a solution for the long-term problem of flooding and
water-logging faced by the occupants of Motilal Nagar, which
certainly cannot be resolved by individual and piecemeal
redevelopment of separate parcels of land.
17. With this object, the interim applications filed by MHADA
seeking permission for redevelopment by appointing C&DA to
be selected through a tender process, on an FSI sharing basis
and this application being filed on 12/02/2021, clearly
highlighted that the C&DA shall infuse funds required for the
redevelopment.
On 20/07/2021, this Court was informed through the
learned Advocate General that MHADA will take steps towards
the redevelopment, by obtaining cabinet approval, issuance
and finalization of tender, etc. without prejudice to the rights
and contentions of all parties, without claiming any equities
and subject to further orders in the present proceedings.
However, no work order will be issued in favour of the
successful bidder till further orders of this Hon'ble Court.
18. On 08/09/2021, the Cabinet passed a Resolution
approving redevelopment of Motilal Nagar by MHADA through
M.M.Salgaonkar/Ashish
22/36 Judgment IAL-5170-21.odt
C&DA and the Cabinet conferred a special project status on the
project. On 06/10/2021, the State Government issued a
Resolution taking a decision regarding redevelopment of
MHADA colonies of Motilal Nagar I, II and III in the
background of the directions issued by this Court on
17/10/2013 and as MHADA proposed to appoint C&DA for
carrying out the redevelopment project.
Recording that the number of hutments and units on the
said ground and the total area of the land, the density of units
being 106 units per hector, which is less than 450 units per
hector, as mentioned in DCPR 2034, so as to make available
the maximum land for redevelopment, and the project being
conferred a status of 'special project', by approving the
construction area in excess of permissible construction area
for residential and non-residential use, approval was granted
to appointment of C&DA through MHADA.
The approval is subject to the following conditions :-
"(1) While appointing C&DA, the share of carpet area index should
be done on F.S.I. Sharing principle and the required tender process
should be implemented by MHADA.
(2) While finalizing the tender of C&DA for the said redevelopment
project, the tender of C&DA providing maximum share of the
remaining carpet area excluding rehabilitation should be finalized.
(3) 1600 sq.ft. per acre for residential use under the said
redevelopment project Construction area (BUA) should be
sanctioned. However, this 1600 sq.ft. out of the construction area,
833.80 sq.ft. construction costs for an area larger than the
construction area should be borne by the C&DA assigned to the
redevelopment project.
(4) For non-residential use 987 sq.ft. construction area (BUA)
should be sanctioned and as per DPR Rules 2034 of 33(5) the
construction area 502.83 sq.ft. construction costs for an area larger
than the construction area should be borne by the C&DA to be
assigned to this redevelopment project.
M.M.Salgaonkar/Ashish
23/36 Judgment IAL-5170-21.odt
(5) Protected slum holders coming under the redevelopment project
at Motilal Nagar 1, 2 and 3 should be given rehabilitation areas as
per the prevailing provisions of the Maharashtra Slum
(Improvement, Elimination and Redevelopment) Act, 1971.
(6) C & DA to be appointed for this redevelopment project.
Development rights, carpet area index etc. cannot be transferred to
third parties in any way without the permission of MHADA. So
they cannot create the rights of any third party without the prior
permission of MHADA."
19. The appointment of C&DA is justified by MHADA, on the
ground that the project envisaged is a massive redevelopment
exercise involving approximately 143 acres land in Goregaon
and, since, the redevelopment intends to holistically develop
residential and commercial centre, MHADA would require
assistance, funding, expertise, competence, network and
capacity of skilled third party, which it expects from C&DA,
who possess the potential to employ best of the technology for
speedy and quality construction. In addition, C&DA shall bear
the cost related to the project and shall bring in financial
outlay and management expertise, which according to MHADA
is not within its permissible limits.
20. The Interim Applications faced an opposition from
Mr.Tekchand Khanchandani, the PIL Petitioner and also from
the individual societies. We have heard learned counsel
Mr.Datta Mane with Mr.Shreyas Chaudhari for the Petitioner
in WPL/22731/21, learned counsel Mr.Rajendra K. Vaingankar
for the Petitioner in WP/3863/24 and in WP/2370/23 as well
as Mr.Gaurav Rane, petitioner-in-person in WP/776/23 and
Mr.Pradeep Havnur for the Petitioner in PIL(L)/6555/22. The
aforesaid Petitions have opposed the redevelopment through
C&DA.
M.M.Salgaonkar/Ashish
24/36 Judgment IAL-5170-21.odt
21. In Writ Petition No.2370 of 2023, filed by Motilal Nagar
Shiv Co-Operative Housing Society Limited, challenge is raised
to the Government Resolutions dated 08/09/2021 and
06/10/2021 and it is submitted that the decision of the State
Government be set aside as MHADA has been set up to protect
the public interest in large at Mumbai and not to sanction the
destruction. It is the specific contention raised in the
Petitioner that if the Petitioner is a co-operative housing
society and it is conferred with the welfare of the occupants, it
has a right to re-develop the society and it is specifically urged
before us that the societies are formed by the occupants of
different localities, with an object of getting conveyance in
their favour, and on 16/06/2011, the society got the
conveyance and its name was enrolled in the property card. In
this background, it is the claim of the society that it is their
prerogative to re-develop the society and not for MHADA to
decide the redevelopment programme with appointment of
C&DA, though valid resolution being passed by the occupants
of the society as mentioned in DCR 33(5) and, particularly,
when this Court on 17/10/2013 had permitted development of
Motilal Nagar by MHADA on its own.
22. Writ Petition No.3863 of 2024 is filed by Motilal Nagar
Rahivasi Vikas Sangh, a co-operative housing society, raise
similar challenge to the aforesaid Government Resolutions and
it opposed the Interim Applications on the ground that the
order dated 17/10/2013 is sought to be modified after much
water has flown, as this Court had permitted the
redevelopment to be carried out by MHADA itself.
M.M.Salgaonkar/Ashish
25/36 Judgment IAL-5170-21.odt
23. In Writ Petition No.776 of 2023, Mr.Gaurav Rane, while
raising a challenge to the very said GRs would submit that no
consent of the society was obtained before MHADA decided to
get the work of redevelopment done through C&DA and,
therefore, there is principle of violation of natural justice. In
addition, it is also urged that MHADA should develop the
property on its own, without intervention of any other agency
and he would also vehemently submit that MHADA has fixed
its rent, compensation unilaterally and Mr.Rane has urged
before us that in the past, while developing Patra Chawl,
MHADA has goofed-up the entire project, as a result, the
members are still awaiting their houses and he would submit
that he do not want that this should be repeated in Motilal
Nagar. It is the insistence of Mr.Rane that tripartite
agreement shall be executed if at all the C&DA is permitted to
redevelop, so that the societies have an assurance of the
compliances.
24. In PIL(L) No.6555 of 2022 filed by Mr.Kamal Jagdish
Singh, it is urged that if MHADA develops the property on its
own, it can retain the FSI and it will be able to accommodate
more people, as ultimately its object is housing and it must
ensure that the benefits of redevelopment of Motilal Nagar
accrues FSI, which is permitted to be utilized for rehabilitating
many people of economically weaker section from the society.
Even this Petitioner has raised an apprehension that the
residents of Motilal Nagar shall not be made to suffer the same
fate as Patra Chawl.
M.M.Salgaonkar/Ashish
26/36 Judgment IAL-5170-21.odt
25. We have also heard the Petition filed by Motilal Nagar-1-
Panchshil Co-Op. Housing Society Ltd. which has sought a
permission for self redevelopment and challenged the
impugned communication/letter dated 06/08/2019, refusing
the permission by stating that a consolidated redevelopment
process in terms of DCR 33(5) is proposed and no individual
permission can be granted.
26. Mr. Khambatta, has invited our attention to the RFQ cum
RFP for the redevelopment of the Motilal Nagar at Goregaon,
floated by MHADA for 'redevelopment of Motilala Nagar- I, II
and III colonies by MHADB through a construction cum
development agreement by appointed of C&DA. Bid document
has incorporated the principle terms and conditions of the
construction cum development contract and it has defined
C&DA to mean the SPB Company formed by the selected
Bidder for the project, who will construct the rehabilitation
component and MHADB premises, reservation amenities along
with the infrastructure as set out in the construction cum
development agreement.
The draft construction cum development agreement to
be entered with the C & DA or the SPB company is also placed
before us by MHADA and we have perused its clauses
minutely.
The agreement has highlighted scope of the project and
this contemplate preparation of master plan of the project,
preparation of necessary architectural and structural
drawings for each component that is to be constructed and to
obtain necessary approvals in the name of MHADA for
M.M.Salgaonkar/Ashish
27/36 Judgment IAL-5170-21.odt
rehabilitation component, reservation amenities and MHADA
premises. It also shall incur the cost to ensure shifting and
rehabilitation of the MHADA eligible tenants shops, and slum
dwellers and is responsible for facilitating and supporting
their redevelopment which shall be phase/sector wise.
The agreement clearly stipulate that C & DA shall
undertake at their cost for and on behalf of MHADA/MHADB,
the redevelopment of rehabilitation component, reservation
amenities and MHADB premises, which shall consist of the
following:-
"a. Rehabilitation houses for approximately 3,372 numbers of
MHADA eligible tenements, each having Built-up area of 1600 sqft.
b. Rehabilitation MHADA eligible shops for approximately 328
numbers, each having built-up area of 987 sqft.
c. Rehabilitation of MHADA eligible slums dwellers and
development of amenities for approximately 1,600 number, as per
applicable SRA norms and DCPR 2034.
d. MHADB Premises as per the Bid Criteria Share
e. Services and infrastructure based on town planning standards,
MCGM rules and relevant provisions of MHADA.
f. Transit accommodation as required for residential and
commercial units, as per the DCPR 2034.
g. Further the C& DA shall also be responsible to construct, for and
on behalf o MHADB, and at the costs of the C& DA, the various
Reservation Amenities."
27. Clause 2.1., which deals with grant of development right
categorically prescribed that the authority, grant development
right in respect of the C & DA share coupled with the right and
entitlement to use the same in the development and
construction and disposal of the C & DA premises including
any right generated of such development, in the same
proportion to such proportion of Rehabilitation Component
M.M.Salgaonkar/Ashish
28/36 Judgment IAL-5170-21.odt
and the MHADA premises and associates amenities, the
construction of which has been sanctioned/ approved in
phasewise manner.
It is also further contemplated that the commencement
certificate and the occupation certificate for C& DA share will
be issued by MHADA in phases proportionate to the
commencement certificate issued for rehabilitation premises
and MHADA share.
28. The agreement also contemplate that the entire cost of
the project shall be borne by C & DA and the compensation to
be awarded to it shall be only in form of FSI and the bidder
quoting the highest bid criteria share of the sale FSI will be
appointed.
29. The agreement also cover the necessary details of grant
of development right and the effective date and clause 2.1.3.2
record thus:-
"2.1.3.2 Project land is owned by MHADB who shall continue to
retain land ownership. Land or land ownership rights will not be
parted with the C&DA. The ownership (free hold rights) of the land
shall at all times remain with MHADB. However, MHADB shall
convey the leasehold rights in respect of parts of the land to the
respective holders, purchasers and owners thereof, including
registered co-operative societies or similar such bodies, C&DA or
organisations formed by C&DA/ C&DA nominated agencies, in a
phased manner concurrent to the completion of such buildings and
such lease period shall be for a period as per the prevailing policies
of MHADA/MHADB."
30. When, we have perused the draft agreement, it is evident
to us that the MHADA shall continue to hold the title to the
M.M.Salgaonkar/Ashish
29/36 Judgment IAL-5170-21.odt
land even after appointment of the agencies and in no case the
ownership shall be parted with C & DA. In addition, it will not
be permissible for C & DA to mortgage the land in order to
raise finance and create the third party interest. Apart form
this, MHADA continue to exercise complete control over the
project and for this purpose it is imperative for C& DA to
furnish monthly progress reports to MHADA and attained the
quarterly review meetings. MHADA is also empowered to
conduct monthly inspections of the project so as to discourage
any delay/deficiency.
31. Certain safeguards in the proposed arrangement will
allay the fears of the Petitioners, who are opposing the Interim
Applications as well as the PIL Petitioner, and this includes the
following safeguards:-
(i) Timebound Development: Project completion timeline
established at 7 years, subject to limited exceptions such as force
majeure, approvals and permission from various authorities, and
facilitation by MHADA;
(ii) In case of delay due to a material breach on the part of the C&
DA (not on account of a force majeure event or delay in facilitation
by MHADA), pre-estimated damages for delay at 0.01.% per month
in proportion to the cost of the cluster affected, shall be levied.
(iii) Performance Guarantee: C& DA to furnish a performance
bank guarantee to MHADA equivalent to 3 % of ready reckoner
value of the Rehabilitation Component + Reservation Amenities +
MHADA share (estimated to be approximately INR 500 crores).
(iv) Phased Redevelopment: C& DA will implement the
Project in phases. During the construction of any phases, residents
of balance phases will be residing in the same place or in transit
accommodation. Further, the shifting of infrastructure will be
undertaken in a way that existing infrastructure and services to
other existing buildings/ chawls is not affected and remains
functional. Additionally, MHADA will convey leasehold rights in
respect of parts of the land to the relevant person / body in a
phased manner concurrent to the completion of such buildings.
M.M.Salgaonkar/Ashish
30/36 Judgment IAL-5170-21.odt
32. In addition, the MHADA has reserved its rights to
substitute the C& DA in case of any event of default, which
includes situation such as no progress in work in respect of the
rehabilitation component, reservation amenities, by
specifically setting out the event of default.
33. The aforesaid factors assist us in consideration of the
reliefs prayed in the Interim Applications filed by MHADA
seeking appointment of C& DA and also in modifying the order
dated 17/10/2013.
We have already noted order dated 17/10/2013, which
was passed when the unamended DCR 33(5) pertaining to
development/redevelopment of housing schemes of
Maharashtra Housing and Area Development Authority
MHADA was in force, the said DCR contemplated, re-
habilitation area entitlement for an existing residential
tenement in the manner set out in clause (A) along with the
incentive FSI under clause (B) with the sharing of balance FSI
as prescribed in clause (c).
The Government of Maharashtra through its Urban
Development Department on 5/12/2018 modified the
regulation 33(5) of DCR for greater Mumbai and at the
relevant time regulation 33(5) read thus:-
"33(5) Development/redevelopment of Housing Scheme of
Maharashtra Housing & Area Development Authority..
1) The FSI for a new constructed tenements scheme of Low Cost
Housing Schemes on vacant lands for Economically Weaker Section,
Low Income Groups & Middle Income Group of the MHADA having
at least 60% built up area in the form of tenements under EWS, LIG
& MIG categories shall be 2.50.
M.M.Salgaonkar/Ashish
31/36 Judgment IAL-5170-21.odt
2) For redevelopment of existing housing schemes of MHADA,
undertaken by the MHADA departmentally or jointly with
societies/occupiers of buildings or by housing societies/occupiers of
building or by lessees of MHADA or by the developer, the FSI shall
be as under -
a) Total permissible FSI shall be 2.5 on gross plot area.
b) The incentive FSI admissible against the FSI required for
rehabilitation shall be as under."
34. The aforesaid was substituted by notification dated
12/11/2018 and clause 2.2 of Regulation 33(5) thereafter,
read thus:-
"2.2 Where redevelopment of buildings in the existing
Housing Schemes of MHADA is undertaken by MHADA or jointly by
MHADA along with the housing societies or along with the
occupiers of such building or along with the lessees of MHADA, the
Rehabilitation Area Entitlement shall be as follows."
35. The amended clause therefore permit the redevelopment
of buildings in the existing housing scheme of MHADA, by
MHADA in either of the following modes:-
(i) MHADA;
(ii) jointly by MHADA along with Housing Society;
(iii) Jointly by MHADA along with occupiers of such building or;
(iv) jointly by MHADA along with lessees of MHADA.
36. In light of the amended DCR Regulation 33(5), when a
statement was made before this Court, on behalf of MHADA
that it was willing to undertake development itself, as per
amended DCR 33(5), this Court recorded that if MHADA is
willing to undertake development, the issue of unauthorized
construction will be taken care of and there is no necessity for
issuing directions for demolition of unauthorized
constructions. MHADA was clear in its stand to undertake
M.M.Salgaonkar/Ashish
32/36 Judgment IAL-5170-21.odt
redevelopment of the entire colony situated on the land
belonging to MHADA as a systematic activity and in the wake
of the deletion of the words 'departmentally' which was
present in the Regulation 33(5) prior to its amendment, the
contradiction is apparent that MHADA may not necessarily
contemplate the re-development departmentally i.e. by using
an inhouse mechanism. By deletion of the words
'departmentally' when the modified DCR 33(5) permit
development to be carried out by MHADA, we see no legal
impediment in MHADA carrying out the work of re-
development by appointing an agency who shall act on its
behalf but the entire control over the agency shall be retained
by MHADA itself and this is implicitly clear form the tender
document as well as the draft of the agreement to be entered
with the entity who shall act as a C&DA.
If MHADA can redevelop the societies and buildings
situated on its land through any other agency since it is its
specific stand, that it do not have the resources of its own to
undertake such a gigantic project and also do not possess the
expertise in technical field, we do not think that we are entitle
to substitute its decision, which is taken after considering the
pros and cons of the matter and with a avowed purpose of
reconstruction of the dilapidated buildings, which are now
posing threat and danger to life of its occupants. Acting in tune
with this objective as contemplated under the Statute under
which it is establish, MHADA is all it way to carry out the
project of redevelopment of Motilal Nagar I, II and III but
through an agency to be chosen by it by an open tender
process with specific stringent condition being imposed, which
M.M.Salgaonkar/Ashish
33/36 Judgment IAL-5170-21.odt
we are not call upon to decide here, but since Mr. Khambatta,
the learned Senior Counsel has made a statement that the DCR
in relation to re-development by MHADA i.e. Regulation 33(5)
shall be stringently followed and all the occupants shall be
given their due share of rent/compensation and separate
agreements will be executed with them and we have no
hesitancy in our mind that MHADA is on its forefront to re-
develop Motilal Nagar I, II, III, which are the building
constructed around the year 1960, under the slum
rehabilitation scheme and almost what unit holders have made
structural alteration in the original structure of the unit
without necessary permission and that is why the PIL
petitioner has approached this Court calling for its demolition.
However, since now MHADA has undertaken to re-develop
Motilal Nagar I and II by itself in terms of the amended DCR
regulation 33(5), with the said project being declared as
'Special Project' by the State Government, the only argument
advanced that MHADA has sufficient funds and it has
advanced loans to various entities definitely shall not deter us
from granting our approval to MHADA by permitting
redevelopment to be carried out by appointing C & DA as
stated in the application. According to us, though the order
dated 17/10/2013, do not fall for modification, but we must
clarify that when it was directed that the MHADA shall carry
out the re-development 'on its own' in the wake of the amended
DCR 33(5), it is permissible for MHADA to appoint an agency
to carryout the project of re-development.
37. Wisdom and advisability of economic policies are
ordinarily not amenable to judicial review unless it is
M.M.Salgaonkar/Ashish
34/36 Judgment IAL-5170-21.odt
demonstrated that the policy is contrary to any statutory
provision or the constitution itself. It is not open for the Courts
to consider the relative merits of different economic policies
and consider whether a wiser or better one can be evolved. In
the areas of commerce involving financial decisions, a greater
latitude is available to the executive and the Court shall not sit
in judgment over the wisdom of the policy of the legislature or
the executive. In BALCO Employees Union (REGD) vs. Union of
India1, the Court observed thus:-
"92. In a democracy, it is the prerogative of each elected
Government to follow its own policy. Often a change in Government
may result in the shift in focus or change in economic policies. Any
such change may result in adversely affecting some vested
interests. Unless any illegality is committed in the execution of the
policy or the same is contrary to law or mala fide, a decision
bringing about change cannot per se be interfered with by the court.
93. Wisdom and advisability of economic policies are ordinarily not
amenable to judicial review unless it can be demonstrated that the
policy is contrary to any statutory provision or the Constitution. In
other words, it is not for the courts to consider relative merits of
different economic policies and consider whether a wiser or better
one can be evolved. For testing the correctness of a policy, the
appropriate forum is Parliament and not the courts. Here the policy
was tested and the motion defeated in the Lok Sabha on 1-3-2001."
It is categorically held that 'it is not the domain of the
Court to embark upon an unchartered ocean of public policy in
an exercise to consider as to whether a particular public policy
is wise or a better policy could have been evolved and such
exercise is left to the discretion of the executive and the
legislative authorities as the case may be'.
38. The Courts are expected to act with a great caution while
it interferes with the priorities fixed by the Government,
unless it is established that the decision taken by it is patently
1 (2002) 2 SCC 333
M.M.Salgaonkar/Ashish
35/36 Judgment IAL-5170-21.odt
arbitrary and/or not in larger public interest. The Government
should be free to take policy decisions or to decide priorities
and it is better left to the wisdom of the State, which is well
advised by the bureaucrats, and its other officers, who posses
an expertise in taking policy decisions, which may involve
various factors like the availability of fund, the requirement of
the State to focus upon a particular sector in precedence over
the other etc. The wisdom and advisability of such policy
decisions are not ordinarily amenable to judicial review and it
is time and again specifically held that economic and fiscal
regulatory measures are field, where Judges should encroach
upon warily as Judges are not experts in these matters.
39. In the present case, when the State Government has
declared the project of Motilal Nagar as a 'Special Project' by
issuing a government resolution and has accorded its green
signal for MHADA to undertake the re-development of Motilal
Nagar- I, II and III, by appointing a C & DA, by ensuring that
MHADA retains its control over the project but in absence of
the necessary potential to accomplish the huge project, it is
chosen to work through the C&DA and, since, the decision is
based on economic viability as well as the capability of MHADA
to undertake the process of re-development, we are not
inclined to entertain with the same, in the wake of limited
scope being available to us in exercise of writ jurisdiction
under Article 226 of Constitution.
40. In the wake of the aforesaid, Interim Application(L) No.
4611 of 2021 in Public Interest Litigation No.93 of 2013 and
Interim Application (L) No.5170 of 2021 in Public Interest
M.M.Salgaonkar/Ashish
36/36 Judgment IAL-5170-21.odt
Litigation No.103 of 2013, are allowed in terms of prayer
clause (a).
Interim Application No.3336 of 2024 in Public Interest
Litigation No.103 of 2013 stands dismissed.
41. As far as the two Public Interest Litigation Nos.103 of
2013 and 93 of 2013 are concerned, which seek demolition of
the unauthorized structures in Motilal Nagar I, II and III, in
the wake of the Interim Applications filed by MHADA, being
allowed, nothing survives for adjudication in the said Public
Interest Litigation and the same are disposed off.
42. Writ Petition Nos.2370 of 2023, 3863 of 2024, 776 of
2023, Writ Petition (L) No.22731 of 2021, which raise
challenge to the Government Resolutions dated 08/09/2021
and 06/10/2021, are dismissed.
43. As far as Public Interest Litigation (L) No.6555 of 2022
is concerned, which has sought a direction to the Respondents
to permit redevelopment by MHADA 'on its own', in the wake
of the aforesaid discussion, deserve a dismissal and is
accordingly dismissed.
44. In view of the disposal of the Public Interest Litigations
and Writ Petitions as above, all the pending applications
therein stand disposed of.
(BHARATI DANGRE, J.) (CHIEF JUSTICE)
M.M.Salgaonkar/Ashish
