[Cites 10, Cited by 0]
Bombay High Court
Andheri Pmgp Colony Co Operative ... vs State Of Maharashtra on 28 January, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally
signed by
PRASHANT
PRASHANT
2026:BHC-OS:2436-DB
VILAS
RANE
VILAS RANE
Date:
2026.01.28
WPL-19246-25RESERVED.DOC
19:20:03
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L)NO. 19246 OF 2025
Andheri P.M.G.P. Colony Co-op.Hsg. Societies
Association Ltd. ...Petitioners
VS
1. State of Maharashtzra.
2. Mumbai Housing and Area Development Board
3. Maharashtra Housing and Area Development Authority,
4. Shreepati Real Ventures Pvt. Ltd.
5. B. G. Shirke Construction Techno Pvt. Ltd. ...Respondents
__________
Mr. Anil Sakhare, Senior Advocate with Mr. Chaitanya R. Kulkarni with Mr.
Hrutik Chavan and Ms. Sneha Tewari i/b. Mr. Chaitanya R. Kulkarni, for
Petitioners.
Mr. P.G. Lad with Ms. Sayali Apte, for the MHADA.
Ms. P. H. Kantharia, Govt. Pleader with Mr. Akshay Patakar, AGP for the State.
Mr. Abhijeet Joshi with Mr. Onkar Joshi, for Respondent No4..
Mr. Kunal Mehta with Mr. Madhur Surana, Ms. Prangana Barua, Ms. Vyoma
Joshi i/b. Crawford Bayley & Co., for Respondent No.5.
__________
CORAM:
G. S. KULKARNI &
AARTI SATHE, JJ.
RESERVED ON : 22 JANUARY 2026.
PRONOUNCED ON : 28 JANUARY 2026
JUDGMENT (Per G. S. Kulkarni, J.).
1. Rule returnable forthwith. Respondents waive service. By consent of the
parties, heard finally.
2. This petition concerns subject matter of the redevelopment of 17
buildings belonging to the Maharashtra Housing Area Development Authority
(for short, "the MHADA"). In respect of such redevelopment, the Housing
Department of the Government of Maharashtra issued a communication dated
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28 May 2025 inter alia permitting redevelopment of the said 17 buildings,
subject to a condition that each of the co-operative societies of the said 17
buildings shall pass a resolution granting its no objection for redevelopment, as
contemplated under Clause 7(b) of Regulation 33(5) of the Development
Control & Promotion Regulations, 2034 (for short "DCPR 2034"). By the
impugned communication dated 30 May 2025, the State Government has
deleted/waived the said condition requiring a prior No Objection Certificate
from the 17 societies, considering the facts and circumstances of the present case.
At the outset, the said impugned communication is required to be noted which
reads thus:-
"(Translation of a photocopy of a Corrigendum, typewritten in Marathi.)
GOVERNMENT OF MAHARASHTRA
HOUSING DEPARTMENT
3 rd Floor, Madam Cama Road, Hutatma Rajguru Chowk,
Mantralaya (Main Building), Mumbai 400032.
E-mail:- [email protected] Telephone No. 022-22793696
No. Miscellaneous-2019/M. No.19/Hsg. Date:- 30 th May, 2025.
To,
The Vice President and Chief Executive Officer,
Maharashtra Housing and Area Development Authority,
Bandra (East), Mumbai - 51.
Subject :- Regarding redevelopment of total 17 buildings viz.
Buildings Nos. 1 to 17 situated on the plots of land
bearing C. S. Nos. 175 (Part), 193 (Part) S. No.
42 Hissa No. 3 at Poonam Nagar, P. M. G. P.
Colony, Village-Majas, Andheri (E.).
References:- 1) Government Letter bearing Even Number dated 28.05.2025.
2) Letter dated 29.05.2025 from the Vice-President, MHADA.
Respected Sir,
As per the request made by your Letter referred to hereinabove, you are hereby
informed to exclude the condition viz. "to obtain resolutions granting consent
from all the Co-operative Housing Societies as per the provisions of Regulation
No. 7 (b) of 33 (5) of the Development Control and Promotion Regulations,
2034 as mentioned in the Government Letter referred to hereinabove at Sr. No.
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1, in the case of only this redevelopment project of the buildings i.e. Buildings
Nos. 1 to 17 in MHADA Colony, situated at P. M. G. P. Colony, Poonam Nagar,
Meghwadi, Jogeshwari (East), under the subject.
Yours faithfully,
Pramod Pandit
Desk Officer, Government of Maharashtra ."
Factual Matrix:
3. The petitioner contends that it is an association of 17 co-operative
housing societies which are formed by the cooperative societies of each of these
17 buildings, which were constructed by the Mumbai Housing and Area
Development Board (MHADB). The allotment of tenements in each of these
building(s) were made by MHADB. It is not in dispute that the MHADA is not
only the owner of these buildings, but also the owner of the land beneath the
buildings. The 17 buildings in question are ground plus four structures which
were built in the year 1990-92 under the Prime Minister Grant Programme.
There are about 986 tenements which were constructed, out of which 942 are
residential and 44 are non residential.
4. By passage of time, the buildings have become old and dilapidated. It is
not in dispute that these buildings have been classified by the MHADA as also by
the municipal corporation in the 'C-1' category " i.e. building being
unsafe/dangerous, and unfit for habitation and required to be vacated and
demolished". Thus, the situation is that 942 families who are living in these
buildings have become extremely dangerous and are likely to suffer an untoward
incident of a collapse. The further discussion would point out to the different
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forums taking cognizance of the seriousness of the condition of the buildings and
that human life itself is in peril. The MHADA being the owner is, therefore,
seriously concerned with the redevelopment of these buildings.
5. The other admitted position on record is that there is neither any
conveyance of the land and the buildings in favour of the society nor any lease
agreement entered between the MHADA and the societies, whereby it can be
said that in a manner known to law, the legal rights of the MHADA in respect of
the land and the buildings were extinguished and transferred in favour of these
societies, so that the societies independently can assert legal rights in respect of
anything to do with the buildings and/or the land. This aspect is certainly vital,
when a redevelopment of these buildings was proposed and more particularly,
taking recourse to the provisions of Regulation 33(5) of the DCPR 2034 when it
confers an additional Floor Space Index (FSI) to be utilized in the redevelopment
of these buildings coupled with the added advantage of free sale components
(tenements/flats) being created under such redevelopment which would
otherwise be available to a private developer. To this aspect, we shall advert a
little later.
6. Although the societies were formed, they appeared to have been quite
conscious for the urgent need to redevelop the buildings considering the
condition of the building(s), which in fact stood deteriorated in or about the year
2010. This is clear from the fact that on 2 May 2010, an Annual General
Meeting of the petitioner was convened wherein a resolution was passed for
redevelopment of these buildings, and tenders to be invited in that regard. The
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petitioner is stated to have resolved to initially appoint respondent No.4 -
Shreepati Real Ventures Pvt. Ltd. (for short 'Shreepati') as the developer for
redevelopment of these buildings. It is the petitioner's case that on 4 April 2011,
appointment of Shreepati was confirmed in the Special General Body meeting in
the presence of Deputy Registrar of Co-operative Societies. Also, an MOU was
executed between the petitioner and Shreepati. In regard to the redevelopment,
the MHADA also issued its no objection dated 16 May 2011.
7. In pursuance of such appointment, Shreepati submitted a proposal to the
MHADA for redevelopment of these buildings. A revised proposal was
submitted by Shreepati which was for obtaining a Letter of Intent for
redevelopment being proposal dated 11 August 2013. Also, sometime in October
2013, the MHADA also demarcated the boundaries of the property and called
upon Shreepati to resubmit a proposal, as per the amended regulation No.33(5)
of the Development Control Regulations, 1991 (for short 'DCR 1991'). It
appears that at the time of submitting the said proposal, 70% consent letters of
the cooperative societies of building Nos.9, 11 and 12 were not received. A Letter
of Intent dated 13 November 2014 was issued, whereunder, as per the provisions
of Regulation 33(5), MHADA was to get 17369.90 sq.meters of construction
area (including fungible area) free of cost.
8. On the aforesaid backdrop, on 27 August 2015 a tripartite agreement
came to be executed between the 'petitioner', 'Shreepati' and the 'MHADA' in
regard to the redevelopment of the said buildings, which also came to be
registered on 26 April 2016.
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9. It appears that on 19 May 2016, Shreepati having received consent letters
from the remaining building Nos.9, 11 and 12, requested MHADA to issue a
revised offer letter, which was issued by MHADA qua the 17 buildings on 8 July
2016. The term of the said letter of offer was six months.
10. On the aforesaid premise, on 7 May 2018, Shreepati submitted plans to
the Municipal Corporation for Greater Mumbai (MCGM) which was almost after
a period of eight years since the appointment of Shreepati by the petitioner as the
developer.
11. In June 2018, the State Government appointed MHADA as the Special
Planning Authority for the MHADA layouts which included the redevelopment
in question. Much thereafter on 15 February 2020, the State Government
addressed a letter to the MHADA imposing certain conditions for Shreepati to
continue with the redevelopment, which inter alia was to the effect that: (i)
Shreepati shall furnish a bank guarantee at 20% of total project cost within 30
days as per the Government Resolution dated 4 July 2019, (ii) it was for
Shreepati to furnish an undertaking as to how Shreepati will raise finances
required for the said project; (iii) regarding titbit area, MHADA shall make a
report to the State Government and the decision of the Government regarding
titbit area shall be binding on the parties; (iv) Shreepati shall furnish an
undertaking to complete the project as per the bar chart; (v) Shreepati shall
furnish personal guarantee for completion of the project; (vi) as also furnish an
undertaking, regarding shifting of occupants to transit accommodation, and (vii)
in case of failure of Shreepati to redevelop, MHADA shall redevelop the
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buildings in question.
12. In pursuance of the State Government's letter dated 15 February 2020,
the MHADB by its letter dated 17 June 2020 called upon Shreepati to fulfill the
conditions mentioned in the State Government's letter. This was responded by
Shreepati by its letter dated 29 June 2020 wherein it was recorded that a bank
guarantee of Rs.45 crores could be furnished by Shreepati. To this letter of
Shreepati, the MHADA by its letter dated 17 July 2020 addressed to the Housing
Department of the State Government, informed that Shreepati was not willing to
submit bank guarantee of 20% of the project cost (Rs. 304 crores) as required by
the State Government under the Government Resolution dated 4 July 2019. The
MHADA also referred to the report of the Auditor and Finance Controller of
MHADA and stated that Shreepati lacked financial wherewithal to undertake the
redevelopment of the said project, which was a large redevelopment.
13. On the aforesaid backdrop, on 15 December 2020 the MHADB directed
the MHADA to cancel the appointment of Shreepati as the developer.
Accordingly, on 28 January 2021 the MHADB addressed a letter to Shreepati,
cancelling the appointment of Shreepati, on the ground that it was not willing to
furnish the bank guarantee and lacked financial capacity to undertake the
redevelopment. This was resisted by Shreepati by its letter dated 12 February
2021, whereby Shreepati made an offer to furnish a bank guarantee of Rs.47
crores. Also on 31 January 2022 Shreepati addressed a letter to the MHADA to
issue an NOC for conversion of the said scheme from DCR 33(5) 1 to DCPR
1 Low Cost Housing Schemes for economically weaker sections and low income groups.
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33(9)2.
14. On 20 June 2022, the MHADB terminated the tripartite development
agreement entered into between the parties, the consequence of which was that
Shreepati ceased to have any legal rights to undertake the redevelopment of the
project in regard to the 17 buildings. The tripartite agreement contained an
arbitration agreement between the parties. Shreepati invoked the arbitration
agreement and assailed the termination, firstly by filing an application under
Section 9 of the Arbitration and Conciliation Act, 1996 (for short 'ACA') before
this Court, however, no substantive orders were passed on the said proceedings.
15. On 3 July 2024, the MHADB and the MHADA (respondent No.2 and
respondent No.3 respectively) published e-tender notice inviting bids for the
work of "Appointment of Construction & Development Contract for
Redevelopment of PMGP Colony Majaswadi, Jogeshwari (E), (CTS No.175(pt),
191/5)". It appears that on 5 July 2024, MHADB sought consent of 17 societies
for redevelopment of these 17 buildings. The members of the societies were
offered transit accommodation or transit rent at the rate of Rs.20,000/- per
month amongst other benefits. It appears to be an admitted position that 14
societies consented for the redevelopment being initiated by MHADA under the
consent resolutions passed in that regard. Thus, the majority of the societies (14
societies out of 17 societies) consented for MHADA to undertake such
redevelopment.
2 Reconstruction or Redevelopment of Cluster(s) of Buildings Under Cluster Development Scheme(s) (CDS)
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16. Insofar as the arbitration proceedings were concerned, on 22 July 2024
the learned Single Judge of this Court appointed Mr. Justice S. J. Kathawalla
(Retired) as the sole Arbitrator to adjudicate the disputes and differences between
the parties which had arisen under the tripartite agreement. By such order, the
Section 9 ACA application was directed to be treated as an application under
Section 17 of the ACA. The learned Single Judge also observed that the opening
of the bids on 25 July 2025 shall be subject to the outcome of the Section 17
application.
17. The arbitral tribunal entered a reference, and by an ad-interim order dated
20 August 2024 passed on the Section 17 ACA application directed the
MHADA to inform every bidder about the arbitral proceedings and the order
dated 22 July 2024 passed by the High Court.
18. Thereafter, in terms of the Government Resolution dated 12 January
2023, the MHADA made an application to the State Government for approval of
the redevelopment project, as the project cost was estimated at Rs.893.31 crores.
Further on 25 April 2025, the MHADA sought approval from the MHADB for
appointment of construction and development agency for redevelopment of the
said property under Regulation 33(5) of DCPR 2034. On such proposal, the
State Government granted its approval subject to obtaining consent from the
society vide its letter dated 28 May 2025. The said letter is required to be noted
which reads thus:
(Translation of a photocopy of a Letter, typewritten in Marathi.)
GOVERNMENT OF MAHARASHTRA
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HOUSING DEPARTMENT
3rd Floor, Madam Cama Road, Hutatma Rajguru Chowk,
Mantralaya (Main Building), Mumbai 400032.
E-mail:- [email protected] Telephone No. 022-22793696
No. Miscellaneous-2019/M. No.19/Hsg. Date:- 28th May, 2025
To,
The Vice President and Chief Executive Officer,
Maharashtra Housing and Area Development Authority,
Bandra (East), Mumbai - 51.
Subject :- Regarding redevelopment of total 17 buildings viz.
Buildings Nos. 1 to 17 situated on the plot of land
bearing C. S. Nos. 175 (Part), 193 (Part) S. No. 42
Hissa No. 3 at Poonam Nagar, P. M. G. P. Colony,
Village Majara, Andheri (E.).
References :- 1) Government Order bearing No. Resolution-
2022/M. No. 59/Housing 'Bhu', dated12.01.2023.
2) Government Letter bearing Even Number dated 01.07.2024.
3) Letter bearing Outward No. 1/1105701/2025 dated 04.04.2025 from
the Vice President and Chief Executive Officer, MHADA.
4) Letter dated 25.04.2025 from the Chief Officer, Mumbai Board.
Respected Sir,
By the Government Letter referred to hereinabove at Sr. No. 2, an approval
was granted as per Regulation 33 (5) of the Development Planning and
Promotion Regulations, 2034 to the proposal for appointing 'Construction and
Development Agency' and for carrying out the redevelopment. However, the
tender process carried out according to the same, did not receive any response.
2. Therefore, in connection with your proposal submitted under the Letter
referred to hereinabove at Sr. No. 3 on the abovementioned subject, I am directed
to inform you that Government approval for carrying out the redevelopment of
the Buildings viz. Buildings Nos. 1 to 17 in MHADA Colony situated at P. M. G.
P. Colony, Poonam Nagar, Meghwadi, Jogeshwari (East), subject to obtain
Resolutions granting Consent from all the Cooperative Housing Societies as per
the provisions of Regulation Nos. 33(5), 7 (b) of the Development Planning and
Promotion Regulations, 2034, is hereby granted as under.
(I) For the purpose of carrying out construction of the rehabilitation and sale
components of the redevelopment project of the Buildings viz. Buildings Nos. 1
to 17 in MHADA Colony situated at P. M. G. P. Colony, Poonam Nagar,
Meghwadi, Jogeshwari (East), tender process should be implemented by the
MHADA for the appointment of the "Engineering Procurement and
Construction (EPC) Contractor".
(II) Subject to the guidelines mentioned in the Government Order dated
12.01.2023 referred to hereinabove at Sr. No. 1, the administrative approval in-
principle is hereby granted for inviting tenders by the MHADA for an amount to
the tune of Rs. 893,31,86,988/- (Eight hundred ninety- three crore, thirty-one
lakh, eighty-six thousand, nine hundred eighty- eight rupees only) made of the
amount of Rs.500,89,39,036/- for rehabilitation component of the said project
and of the amount of Rs.392,42,47,952/- for the residential buildings under the
sale component.
(III) Moreover, Government approval is hereby granted to the MHADA to
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implement the tender process through e-tender for sale of the remaining available
construction area by excluding the residential buildings under the rehabilitation
and sale components in the said project.
3. However, while implementing tender process in the present matter, the
guidelines mentioned in the Government Order dated 12.01.2023 issued by
Housing Department and the guidelines issued by the Central Vigilance
Committee (CVC), should be implemented. Moreover, while taking steps in the
present matter, action should be taken as per the Rules by taking into
consideration the Orders/Instructions and prevailing Orders issued by the
Government from time to time.
Yours faithfully,
Pramod Pandit
Desk Officer, Government of Maharashtra."
(emphasis supplied)
19. On the backdrop of the aforesaid letter of the Housing Department
of the Government of Maharashtra, on 29 May 2025, a letter was
addressed by the MHADA to the housing department seeking waiver of the
condition to obtain consent of the societies, as such condition did not form
part of the Government Resolution dated 12 January 2023. It is such
communication of MHADA which was responded by the State
Government by the impugned communication dated 30 May 2025 (supra
para-2), whereby the State Government waived the condition to obtain
consent of all the co-operative housing societies as per the provisions of
clause 7(b) of Regulation 33(5) of DCPR 2034.
20. Thereafter on 16 June 2025, the MHADA issued tender notice for
"Survey, Soil Investigation, Planning, Designing, Building Construction,
Obtaining all relevant Permissions and Occupancy Certificate from
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concerned local Authority on Lump-sum Turnkey basis for
Redevelopment" in regard to the said buildings. While this was happening,
the arbitral tribunal on 11 July 2025 passed an interim order on the Section
17 ACA application filed by Shreepati inter alia observing that the
MHADA was admittedly the owner of the land in question, which had
constructed 17 buildings on the said land. The learned Arbitrator noted
that the buildings were in a dilapidated condition. It was observed that the
photographs placed on record of the learned Arbitrator, which were in fact
made part of the substantive order of the learned Tribunal, depicted the
dangerous condition of the buildings. The arbitral tribunal observed that
the MHADA was free to commence and complete the redevelopment
project comprising of 17 buildings on the said land without any obstruction
from Shreepati. The relevant observations as made by the arbitral tribunal
are required to be noted, which read thus:
"31. To come to a definite conclusion qua the allegations made by the
Applicant Developer and MIHADA against each other and to reach a
conclusion as to whether the Applicant Developer is in fact guilty of
committing any breaches as alleged by MHADA or whether the fault lies at
the door of MHADA as alleged by the Applicant-Developer and MHADA
ought not to have terminated the Development Agreement, parties will be
required to lead substantial evidence before the Tribunal. However, since all
the parties have agreed before the Tribunal that the 17 buildings categorized
under Cl Category are in a dilapidated condition and the photographs
reproduced above-speaks for itself, there is no doubt whatsoever that the lives
and property of a few thousand people residing in 942 residential units and
occupying 44 shop premises and passers-by is in grave danger. It is therefore
not at all possible for the Tribunal to pass an Order directing a stay on the
termination Notice issued by MHADA and/or directing the parties to
maintain status quo prevailing as on date. The Applicant Developer will
certainly be entitled to claim monetary reliefs against MHADA at the final
hearing stage, in case it succeeds in its case that the Termination of the
Development Agreement dated 27.08.2015 by MHADA was not legal or
valid in the circumstances, since MHADA has the wherewithal to provide
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transit accommodation to a huge number of occupants (who are few
thousand in number) within a short period and MHADA having decided to
itself carry out the redevelopment of the 17 buildings at the cost of
approximately 500 crores and have already initiated the tender process for
appointment of a Contractor for the redevelopment of the project, the
following Order is passed:
ORDER
(i) MHADA is free to commence and complete the redevelopment
project comprising of 17 buildings on the said land without any obstruction
from the Applicant Developer
(ii) MHADA shall forthwith proceed to shift the residents/shopkeepers
of Respondent No.2 to transit camps or pay them compensation in lieu of
temporary alternate accommodation/premises.
(iii) All rights and contentions of the parties are kept open.
(iv) Application under Section 17 of the Act is accordingly disposed off
with no order as to costs.
(v) Claimant/Developer to file Statement of Claim on or before 28th of
July, 2025. Respondents to file Statement of Defense and Counterclaim if
any, on or before 22nd August, 2025.
(vi) Stand Over to 4th September, 2025 at 5 p.m. for further directions."
(emphasis supplied)
21. The petitioner being aggrieved by the order passed by the arbitral
tribunal, approached this Court by filing Commercial Arbitration Petition
(L) No.25438 of 2025 which came to be disposed of by the learned Single
Judge by an order dated 25 August 2025 keeping open all contentions of
the parties urged in the present petition. Thereafter the State Government,
by its communication dated 25 September 2025 annexed at Exhibit BB to
the writ petition, approved the bids which were received from the EPC
contractor-respondent No.5 at Rs.472.87 crores. On 30 September 2025,
the Letter of Acceptance was issued in favour of respondent No.5. This was
also communicated to the 17 societies on 10 October 2025 by the
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MHADA.
22. It is on such backdrop, the present petition is filed praying for the
following substantive reliefs:-
"a. This Hon'ble Court be pleased to declare that the
communication dated 30.05.2025 bearing
No.Sankin-2019/Pra.Kra.19/GruNiPa issued by the Housing
Department of the Government of Maharashtra by which requests of
MHADA to omit the requirement of obtaining consent resolutions of
the Societies on the said land under Regulation 33(5)(7)(b) of DCPR
2034 was approved is ultra vires the provisions of the Maharashtra
Regional Town Planning Act, 1966 and the Development Control
Regulations 2034.
b. This Hon'ble Court be pleased to issue a Writ of Certiorari
or a writ in the nature of certiorari thereby quashing and setting aside
the communication dated 30.05.2025 bearing
No.Sankirn-2019/Pra.Kra.19/GruNiPa issued by the Housing
Department of the Government of Maharashtra by which requests of
MHADA to omit the requirement of obtaining consent resolutions
of the Societies on the said land under Regulation 33(5)(7)(b) of
DCPR 2034 was approved.
c. This Hon'ble Court be pleased to quash and set aside the Tender
Process initiated by the Mumbai Housing And Area Development
Board by the E-Tender Notice No.EE/SPC/MB/e-tender/02/2024-25
dated 4.07.2024 regarding Appointment Of Construction &
Development Contract For The Redevelopment Of PMGP Colony At
Majaswadi, Jogeshwari (E), (Cts No.175(Pt), 191/5).
cl. This Hon'ble Court be pleased to declare that the communication
dated 25.09.2025 bearing No.Sankin. 2019/Pra.Kra. 19/GruNiPa
issued by the Housing Department of the Government of Maharashtra
whereby approval was granted to acceptance of bid of the Respondent
No.5 is illegal and void ab initio.
c2. This Hon'ble Court be pleased to issue a Writ of Certiorari or a writ
in the nature of certiorari thereby quashing and setting aside the
communication dated 25.09.2025 bearing
No.Sankin-2019/Pra.Kra.19/GruNiPa issued by the Housing
Department of the Government of Maharashtra whereby approval was
granted to acceptance of bid of the Respondent No.5.
c3. This Hon'ble Court be pleased to declare that the Letter of Award
dated 30.09.2025 issued by Maharashtra Housing Area Development
Authority to Respondent No.5 is illegal and void ab initio.
c4. This Hon'ble Court be pleased to issue a Writ of Certiorari or a writ
in the nature of certiorari thereby quashing and setting aside Letter of
Award dated 30.09.2025 bearing issued by Maharashtra Housing Area
Development Authority to Respondent No.5."
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23. A reply affidavit to the petition is filed on behalf of the MHADB of
Shri.Ankit Mose, Executive Engineer of the MHADB opposing this petition. In
paragraph 7 of this reply affidavit, a categorical contention is raised that the
Petitioner-Association is comprising of 17 societies as its members, out of which
14 societies have passed the General Body Resolutions thereby authorising
Respondent No. 2-MHADB to undertake the redevelopment in question. The
copies of the resolutions are annexed at Exhibit "C" to the reply affidavit. The
reply affidavit further states that the position as on date, is that out of the 17
societies, 14 societies have withdrawn their Authority in favour of petitioner to
take decision qua the redevelopment of these buildings. It is further contended
that all 17 buildings are categorised as C-1 category by the Structural Auditor,
hence, being required to be demolished immediately, as these buildings have
been in a dangerous condition for a long period. Insofar as the challenge to the
impugned communication is concerned, it is contended that same was issued by
the Housing Department and not by the Urban Development Department and
which has nothing to do with any dilution of requirement of DCPR 2034
conditions. The relevant averments as made in the reply affidavits are required to
be noted which read thus:-
"7. I say that the Petitioner union is comprising of 17 societies as its
members. I say that out of 17 societies, 14 societies have passed the General
Body Resolutions thereby authorised the Respondent No. 2 to develop the
Petition land. Hereto annexed and marked Exhibit "C" is list of 14 societies
who have passed the Resolution thereby authorised the Respondent No. 2 to
redevelop the property.
8. I say that the position as on today is that out of 17 societies, 14 societies
have withdrawn their Authority in favour of Petitioner to take decision about
redevelopment. I say that the signatories of the Petition viz. the office bearers
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of the Petitioner society have neither authority to file this Petition in the
name of the Petitioner nor authority to represent themselves as an office
barer of the Petitioner. I say that Deputy Registrar Co-operative Societies by
letter dated 23rd August, 2024 informed the Respondent No. 2 that the
term of office bearers have come to end and there is no election conducted.
Hereto annexed and marked Exhibit "D" is the communication received by
Respondent No. 2 from the Deputy Registrar Co-operative Societies dated
23rd August, 2024.
9. I say that the present Petition is filed with the Resolution dated 23rd June,
2025. I say that office bearer has passed an Resolution and the signatories
who have signed and verified the Petition are no longer entitled to represent
the society as their term has already come to end.
10. I say that all 17 buildings are categorised as C-1 category by the Structural
Auditor therefore, required to be demolished. 1 say that the buildings are in
most dangerous conditions. Hereto annexed and marked Exhibit "E" are the
copies of the photographs showing the condition of the building
11. I say that the Respondent No. 2 has taken the decision to redevelop the
Petition property viz. 17 buildings by themselves and appointed the
Contractor-the Respondent No. 5. All the necessary formalities are
completed and vacating program is already commenced. The members of
societies of Petitioner have either offered Transit Accommodation or Transit
Rent at the rate of Rs.20000/- p.m. I say that intention to file a present
Petition is only to create obstacles in the redevelopment. In fact the Petition
is filed at the instance and behest of Respondent No. 4.
.......
13. I say that the Respondent No. 2 is Owner of the land. The buildings are
not conveyed to the society nor the land is leased to the society. Therefore,
the Respondent No. 2 has the right to redevelop the property under
Regulation 33(5)(2) of DCPR 2034.
.....
15. I say that as far as the aspect of Redevelopment of Poonam Nagar PMGP
Colony Andheri is concerned the Respondent No. 1 is redeveloping the said
Poonam Nagar PMGP Colony consisting of 17 buildings as Respondent No.
2 is owner of theland and owner of buildings. The Petitioner cannot dispute
right of Respondent No. 2 to redevelop as the Petitioner has accepted the
same by not challenging the interim decision of Arbitral Tribunal dated 11th
July, 2025.
16. I say that Petitioner is neither Owner of the land nor lessee of the land
and has no right to question the right of the Respondent No. 2 to redevelop
Poonam Nagar PMGP colony Andheri. I say that the members of the society
of the Petitioner have right for rehabilitated area as per DCPR 33(5)(2)
which the Petitioner is already offering.
........
20 I say that as far as Respondent No. 2 and Respondent No. 3 are
concerned, they are under control of State of Maharashtra. I say that by GR
dated 12th January, 2023 the Housing Department has specifically imposed
financial restrictions on the Respondent No. 2 and Respondent No. 3 to take
the approval of Government for executing any project having value more
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than 50 Crore. Hereto to annexed and marked Exhibit - "F" is the copy of
the GR dated 12th January, 2023 has imposed condition on Respondent
No. 2 and Respondent No. 3 to obtain approval of Government for the
project more than 50 Cr.
......
22. I say that while granting the approval, Housing Department imposed a
condition to obtain the consent of the Societies. I say that as the said
condition is not part of incorporated GR dated 12th January, 2023. The
Respondent No. 2 had made an application for deletion of the said
condition. Accordingly Housing Department has deleted the said condition
by letter dated 30th May, 2025. I say that letter at Exhibit - X and Y to the
Petition is crystal clear on this issue.
.....
24. I say that GR dated 12th January, 2023 imposed a condition on
Respondent No. 2 and Respondent No. 3 to obtain approval for spending
more than 50 Cr. on any project and accordingly the application was made
and the approval was granted by Housing Department dated 28th May,
2025.
25. I say that the approval for the spending has nothing to do with the
condition of DCPR. Therefore necessary clarification in Letter dated 28 May.
2025 was required to be obtained. Accordingly, Housing Department issued
Letter dated 30th May. 2025 for deleting condition incorporated in Letter
dated 28th May, 2025. I say that reference of Letter dated 30th May, 2025
make the issue clearer. I say that Petitioner is trying to mislead this Hon'ble
Court and trying to interpret Letter dated 30th May. 2025 is the order for
waiver of condition incorporated in DCPR 33(5)(7)(b). I say that
Respondent no.2 has already taken step top comply with condition and
obtained resolution of 4 societies for consenting the redevelopment by
Respondent No.2.
The Petition is liable to be dismissed on following grounds:
a) The office barer of the Petitioner has no authority to take a
decision to file a present petition as their term has already come
to an end;
b) The Petitioner association formed for redevelopment of
Poonam Nagar Andheri PMGP has already disassociated and 14
members have withdrawn their consent and passed a resolution
in favor of Respondent No. 2 authorizing Respondent No. 2 to
redevelop their building.
c) That the letter under challenged is a communication of the
Housing Department and not of UD Department.
d) The withdrawal of the condition imposed in the administrative
approval letter which is Exhibit - X to the petition issued as per
GR dated 12th January, 2023 and has nothing to do with DCPR
condition.
27. I say that as the petition is filed at the instant and behest of Respondent
No. 4 who had failed to stall redevelopment has filed the petition with ill
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motive to stall the redevelopment and thereby attempted to jeopardized the
rights of 984 families who are living in the buildings which are most
dilapidated and have already been categorize as C-1 category. As the Petition
is filed with ill motive, the same is liable to be dismissed with compensatory
cost."
(emphasis supplied)
24. On behalf of respondent No.5, a reply affidavit is filed opposing the
petition which also reiterates the contentions as urged on behalf of MHADA to
submit that it was right and proper for the MHADA to undertake the
redevelopment and that the bid which was submitted by respondent No.5 was
legal, valid and rightly accepted by the State Government as also by the
MHADA.
Submissions
25. Mr. Sakhare, learned senior counsel for the petitioner in assailing the
impugned communication dated 30 May 2025 issued by the State Government
has limited submissions. The primary contention as urged by Mr. Sakhare is
referring to the provisions of Regulation 33(5) clause 7(b) to submit that it was
mandatory for the MHADA to have obtained a no objection / approval from 17
societies for the redevelopment, in the absence of which the MHADA could not
have taken over the development by appointing a contractor i.e. respondent
No.5. It is his submission that once such condition of approval / NOC is
incorporated in the statutory regulations, the same could not have been waived
by the State Government by the impugned communication. For this reason, the
impugned communication deserves to be quashed and set aside and the
MHADA should take steps to obtain no objection/approval from the 17 societies
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and only thereafter the redevelopment can commence as per the provisions of the
DCPR 33(5). It is his submission that there is no warrant in the Government
exercising its power to dispense with such statutory requirement. Mr. Sakhare
would next submit that the proceedings in regard to the redevelopment are sub
judice before the arbitral tribunal and in the event Shreepati - developer
succeeds, a situation would be brought about that Shreepati would not be in a
position to undertake redevelopment and it is for such reason also the writ
petition needs to be allowed. To buttress the position taken by the petitioner, Mr.
Sakhare submits that the societies would have more benefits in Shreepati
undertaking redevelopment, inasmuch as, the area of the permanent alternate
accommodation offered by Shreepati, was higher than what is offered by the
MHADA to the members of these 17 buildings, hence it is a prejudice being
caused to the members of the 17 societies.
26. On the other hand, Mr. Lad, learned counsel for MHADA has opposed
this petition extensively referring to the reply affidavit, to which we have made a
detailed reference hereinabove. He submits that the entire premise on which the
petitioner has founded its case, is misconceived inasmuch as the State
Government has rightly dispensed with / waived the requirements of a no
objection to be obtained from 17 societies, taking recourse to overall facts and
circumstances of the case, as also the purport of the DCPR 33(5) Clause 7(b). It
is also his contention that no prejudice whatsoever would be caused to the
members of the societies as they would be the beneficiaries of permanent
alternate tenements, of sufficiently enhanced area and which is strictly in
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accordance with the DCPR 2034. It is also his submission, that this petition is in
fact not of the petitioner association, but filed at the behest of Shreepati, who has
failed to obtain any favourable orders before the arbitral tribunal, hence, on such
count also the petition needs to be dismissed.
27. Mr. Kunal Mehta, learned Counsel for respondent No.5 has also made
extensive submissions supporting Mr. Lad's contention.
Analysis
28. We have heard learned Counsel for the parties. We have also perused the
record with their assistance. At the outset, we may observe that the limited
grievance of the petitioner is in regard to the impugned communication dated 30
May 2025 issued by the State Government dispensing with the NOC / approval
of 17 societies as noted by us hereinabove. In our considered opinion, the issue as
raised in the petition needs to be addressed on a holistic consideration of the facts
and circumstances.
29. Admittedly, 17 societies are struggling to have a successful redevelopment
of 17 buildings which have become extremely dangerous / dilapidated and as
observed by the arbitral tribunal having grave risk of collapse. In such context, we
do not intend to reiterate the facts, suffice it to observe that the petitioner-
association has attempted redevelopment from the year 2010 by appointing
Shreepati. The MHADA also, at the relevant time, granted its NOC. However,
as noted hereinabove, it appears to be a clear position on record that Shreepati
was not in a position to comply with the requirements for such large
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development entailing revenue of about Rs.800 crores. Under the terms and
conditions of the Government Resolution, Shreepati was not in a position to
offer the bank guarantee of about Rs.304 crores. Eventually, the petitioners and
Shreepati suffered termination of the tripartite agreement, and as stated
hereinabove, the proceedings are now pending before the arbitral tribunal.
However, merely for the reason that the proceedings are pending before the
arbitral tribunal, ought not to bring about a consequence, that in the dire
circumstances the redevelopment should be delayed, till the arbitral proceedings
are concluded as succinctly observed by the arbitral tribunal (supra). In the
meantime, the MHADA in fulfilling its obligations under the provisions of the
Maharashtra Housing and Area Development Act, was required to take
immediate steps so as to come to the rescue of the members of the 17 societies
and to enable early redevelopment, that is, by moving the State Government
seeking its approval for the redevelopment in question. In this regard, it has
taken steps to invite e-tenders for appointment of contractors. Such
redevelopment at the hands of MHADA is stated to be strictly in accordance with
the Regulation 33(5) of DCPR 2034, which would grant permanent alternate
tenements of enhanced area to the occupants. As set out in the reply affidavit
filed on behalf of respondent No.5, the area of the permanent tenements under
the redevelopment being offered, are as under:
Existing Area of the tenements Area of redeveloped tenements
180 sq.ft. (residential) 448 sq.ft.
270 sq.ft. (residential) 485 sq.ft.
180 sq.ft. (commercial tenements) 243 sq.ft.
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30. Thus, per se it appears that there is no prejudice whatsoever which would
be caused to the members of the society. In fact the members are benefited by this
redevelopment in a manner that firstly not only an early redevelopment is
facilitated and that too completely under the control of the statutory authority
like MHADA, in appointing an agency having a robust financial wherewithal to
undertake the project. Secondly, the members of the society would not be at the
mercy of a private developer on several issues, for completion of the project. This
is the biggest benefit which we note in the such redevelopment being
undertaken by a statutory body requiring not only the expertise, but also the
financial wherewithal in compliance of the directions issued by the State
Government as also the norms as set out by MHADA from time to time. The
obligation and accountability of a statutory body stands on a completely different
footing than of a private developer.
31. Now coming to the main plank of Mr. Sakhare's submission that the
impugned communication issued by the State Government through its Housing
Department is in breach of the statutory mandate, namely, as to what is provided
by clause 7(b) of Regulation 33(5) of DCPR 2034. To appreciate Mr. Sakhare's
contention, it is necessary to extract such provision of the DCPR 2034 which
reads thus:
33(5) Development/ Redevelopment of Housing Schemes of Maharashtra
Housing & Area Development Authority (MHADA)
1) The FSI for a new scheme of Housing, implemented by MHADA on
MHADA lands for Economically Weaker Sections (EWS), Low Income
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Group (LIG) and Middle Income Group (MIG) categories shall be 3.0 on
the gross plot area (exclusive of the Fungible Compensatory Area) and at
least 60% BUA in such scheme shall be in the form of tenements under the
EWS, LIG and MIG categories, as defined by the Government in Housing
Department from time to time.
Provided that the Floor Space Indices above may be permitted to be
exceeded up to 4.00 FSI in case of plots, having area of 4000 sq. m or above
which front on roads having width of 18.00 m or more with prior approval
of Govt.
.......
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:
Rehabilitation Area Entitlement:
The Rehabilitation Area Entitlement shall be increased by 15% of the
existing carpet area, over and above the Rehabilitation Area Entitlement
calculated in (A) of 2.1 above.
Note: Fungible compensatory area as applicable on the surplus area to be
handed over to MHADA shall not be allowed to be utilized on sale
component. No premium shall be charged on the fungible compensatory
area, in respect of area to be handed over to MHADA and surplus area to be
handed over to MHADA shall be exclusive of the Fungible compensatory
BUA if availed.
.......
7) a) In any Redevelopment Scheme where the Registered Co-operative
Housing Society/Developer appointed by the Registered Co-operative
Housing Society/ Federation/ Association/ Union has obtained NOC from
the MHADA/Mumbai Board, there by sanctioning additional balance FSI
with the consent of 51% of its members and where such NOC holder has
made provision for alternative permanent accommodation in the proposed
building (including transit accommodation/Rent Compensation), then it
shall be obligatory for all the occupiers/members to participate in the
Redevelopment Scheme and vacate the existing tenements for the purpose of
redevelopment. In case of failure to vacate the existing tenements, the
provisions of section 95A of the MHADA Act. mutatis mutandis shall apply
for the purpose of getting the tenements vacated from the non-co-operative
members.
b) For redevelopment of buildings in any existing Housing Scheme of
MHADA under clause 2.2 hereinabove, by MHADA, the consent of the
Cooperative Housing Society in the form of a valid Resolution as per the
Co-operative Societies Act, 1960 will be sufficient. In respect of members
not co-operating as per approval of the redevelopment project, action under
section 95(A) of the Maharashtra Housing and Area Development Act,
1976 may be taken by MHADA.
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(emphasis supplied)
32. On a plain reading of Clause 2.2, it is seen that where the redevelopment
of the buildings in the existing housing schemes of MHADA is being undertaken
by MHADA or jointly by MHADA along with the housing societies or with the
occupiers of such building or with lessees of MHADA, the entitlement to the
rehabilitation tenement shall be as per the Rehabilitation Area entitlement as
prescribed by the said regulation. In such context, the said regulation in clause
7(b) provides, that for redevelopment of buildings, in any existing Housing
Scheme of MHADA under clause 2.2, by MHADA, the consent of the Co-
operative Housing Society in the form of a valid Resolution as per the Co-
operative Societies Act, 1960 would be sufficient, and in respect of members not
co-operating as per approval of the redevelopment project, an action under
section 95-A of the Maharashtra Housing and Area Development Act, 1976 may
be taken by the MHADA.
33. On a conjoint reading of clause 2.2 read with sub-clause 7(b), we find that
it facilitates early redevelopment, so as to avoid any disputes in regard to a
consent of a co-operative society in the implementation of any redevelopment
scheme. In the normal course, it would be necessary for a society with whom the
MHADA has entered into a lease deed qua the land and/or a conveyance of the
building in favour of a co-operative society formed by the allottees of the
tenements, when any rights in the building and land are being dealt with in a
redevelopment to grant an explicit consent. The reason being the juridical rights
would stand altered. However, the facts in the present case are completely
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different from what normally could be when the MHADA has continued to
remain the owner of the land and the buildings. Thus, in the present situation
there was no harm whatsoever for these 17 societies to repose confidence in the
safe and robust redevelopment being resorted by MHADA, than suffer the
disadvantage of a private redevelopment.
34. In the present case, although the redevelopment is being resorted by
MHADA, it is not the case that the majority of the societies have not consented
for the same, as, in fact 14 societies as pointed out by MHADA have passed
resolution(s) in the Special General Body meeting of each of such Societies and
submitted the same to MHADA, so as to enable the MHADA, to proceed with
the redevelopment. In our opinion, such resolutions which forms part of the
record, if are to be disputed by the petitioner, which would be a dispute inter se
between the petitioner-association and its members is a matter which needs to be
resolved, by approaching the appropriate forum. However, in the facts of the
present case, the Societies appear to have taken an appropriate position in their
mutual interest, as any such dispute on any consent would neither benefit the
petitioner nor its members. In fact, in the present facts, such dispute in our
opinion, is wholly inconsequential considering that the consents have already
granted by 14 societies and things have materially progressed thereafter. We are
not informed by Mr. Sakhare that such consents were in any manner assailed in
an appropriate proceedings by the petitioner and/or there is any order of any
competent forum that such consent ought not be recognized in law.
35. Be that as it may, in the facts of the present case, whether stricto sensu the
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provisions of clause 7(b) of Regulation 33(5) would apply, is also another
question. Considering the aforesaid discussion, insofar as the land and the
buildings are concerned, we find that although the societies are formed, however,
as stated hereinabove, the legal rights in respect of the buildings and the land as
asserted by the MHADA has remained with the MHADA, in the absence of any
lease agreement being entered between the MHADA and the societies, qua the
land and the buildings. The rights of the MHADA in respect of the land and
buildings could be legally transferred, only if such transfer stands recognized
under the 'document of transfer', which the law would recognize and not
otherwise. Thus legally, the consequence necessarily would be that the societies
were formed merely for the management of day to day affairs of the buildings,
which were legally incapacitated to assert any corporeal rights in respect of the
land and buildings in question. In these circumstances, to stricto sensu apply the
requirements of sub-clause 7(b) of Regulation 33(5) of the DCPR (supra) insofar
as the requirement of an approval / no objection, being dispensed with and /or
waived by the State Government, cannot be said to be any illegality whatsoever.
The MHADA, which has continued to remain the owner of the land and the
buildings, therefore, was free to undertake development as any other owner of the
land and buildings would have in these circumstances, as permissible under the
provisions of Regulation 33(5) of the DCPR 2034. Thus, in the facts of the
present case, we are not persuaded to accept Mr. Sakhare's contention that there
is any illegality or breach of the conditions as incorporated under clause 7(b) of
Regulation 33(5) of the DCPR 2034.
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36. Also, considering the tenor of the writ petition and more particularly the
contention of the petitioner that what is being offered by Shreepati to the
members of the societies would be an area larger than what has been offered by
MHADA, smacks of an argument, not of the petitioner-federation of the societies
but of the developer. This is quite apparent from the averments as made in
paragraph 14(bb) of the petition, which reads thus:
14(bb). It ought to be considered that on one hand Respondent No.4 by
proposing to redevelop the said land and building under Regulatiori 33(9) is
offering the occupants areas ranging from 525 to 700 sq. ft., MHADA by
proposing to redevelop under Regulation 33(5) is only offering an area of
450 sq. ft. It ought to be considered that the transit accommodation, rent,
and other benefits offered by MHADA are of much inferior value than the
one offered by Respondent No.4.
37. Thus, there appears to be much substance in the contention of the
respondents not only taken on affidavit but also in the course of the arguments,
that the present writ petition is in fact at the behest of the developer-Shreepati,
hence not a bona fide proceeding, in invoking the discretionary and equitable
jurisdiction of this Court under Article 226 of the Constitution of India.
38. In the light of the above discussion, it is clear to us that no interference
whatsoever is called for in the present petition. Writ Petition stands dismissed.
39. Accordingly, Rule stands discharged. No costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
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