Professional Documents
Culture Documents
MINAL by MINAL
SANDIP PARAB
SANDIP Date:
PARAB 2021.08.31
15:06:40 +0530
WP1366_09.doc
WITH
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4.4. Since all the buildings on the petitioners’ land were constructed
prior to 01.04.1940, Bombay Municipal Corporation (BMC) categorized
the said buildings as ‘A-cess category’ and issued corresponding
certificates to that effect.
4.6. The 423 occupants residing in the six buildings on the petitioners’
property formed a co-operative housing society and requested petitioner
No.1 to develop the property under Development Control Regulation
(DCR) No.33(7) of the Development Control Regulations for Greater
Mumbai, 1991. It is stated that 319 occupants out of 423 occupants gave
written consent in favour of petitioner No.1 for development of the said
property which is more than 70% of the total number of occupants, thus
fulfilling one of the essential requirements of that provision.
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4.8. In the meanwhile petitioner No.1 invited tenders for sale of the
said property. Offer made by petitioner No.2 was the highest and was
accordingly accepted. Petitioner No.1 agreed to sell the said property to
petitioner No.2 on ‘as is where is basis’. In this connection, on an
application filed by petitioner No.1 the concerned Charity Commissioner
passed an order dated 31.05.2007 according sanction / allowing
petitioner No.1 to sell the said property to petitioner No.2 for an amount
of Rs.1,30,00,000.00. Following the same and upon payment of the
aforesaid amount by petitioner No.2 together with the amount covering
stamp duty and registration charges, petitioner No.1 executed deed of
conveyance dated 15.12.2007 transferring the right, title and interest in
respect of the said property in favour of petitioner No.2.
4.9. Since more than 70% of the occupants had given consent for
redevelopment through petitioner No.1, petitioners submitted proposal
on 29.03.2006 before respondent Nos.3 to 5 for issuance of no objection
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4.10. It is stated that respondent No.6 vide letter dated 18.11.2006 had
informed respondent Nos.3 to 5 that more than 70% of the occupants
were objecting to the redevelopment through MHADA. He accordingly
requested the said respondents to drop the acquisition proceedings.
4.14. It may be mentioned that respondent No.5 had time and again
addressed letters to respondent No.2 pointing out that the acquisition
order was defective in as much as three out of the six buildings on the
acquired land were not acquired. Such letters were issued on 08.03.2007,
01.06.2007 and 20.10.2007 requesting respondent No.2 to issue
corrigendum. Again on 28.11.2007 respondent No.5 wrote to respondent
No.2 stating that proper notice was required to be given to all the tenants
for acquisition which could not be done as only three out of the six
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4.16. Thereafter, the present writ petition came to be filed seeking the
reliefs as indicated above.
5.1. It is stated that the lands bearing C.S.Nos.641 and 642 were
acquired by MHADA on 21.12.2006 by virtue of the impugned
notification issued under section 93(5) of the MHADA Act. On and from
the date of publication of the said notification in the official gazette the
said lands stood vested absolutely with respondent No.3 free from all
encumbrances. Under DCR 33(9), respondent Nos.3 to 5 are empowered
to carry out reconstruction of cessed buildings.
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5.4. However, it is stated that DCR 33(9) was amended with effect
from 02.03.2009. Following the same petitioners made an application to
the High Power Committee constituted thereunder for obtaining NOC
for redevelopment of the property. It is stated that Housing Department
had approved the said proposal in principle and thereafter forwarded the
same to the Urban Development Department.
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weeks. This was accepted by the Court and petitioners were permitted to
redeposit the withdrawn amount. On the aforesaid basis, the interim
application filed by the State was disposed of.
7.1. It is stated that after filing of the writ petition and after
amendment of the same, additional relief was sought for seeking
approval for redevelopment of the petitioners’ property under the
provisions of DCR 33(9). As the proposal submitted by the petitioners
was accepted by the High Power Committee in principle in its meeting
held on 28.07.2009, this Court upon consideration of the provisions of
DCR 33(9) passed order dated 19.07.2010 (corrected by order dated
02.08.2010) permitting the petitioners to undertake redevelopment of the
property in joint venture with MHADA on deposit of the amount to be
determined by MHADA. When MHADA determined the amount to be
paid by the petitioners at Rs.3,96,61,760.00, the same was deposited by
the petitioners before this Court in two tranches on 22.11.2012 and
07.12.2012. The amount so deposited was invested in fixed deposit by
the Prothonotary and Senior Master of the Court.
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7.3. It is stated that in view of change in the policy under DCR 33(9),
Board and petitioner No.2 executed supplementary agreement on
24.07.2017 whereby certain terms of the original agreement were
modified. In view of above, petitioner No.2 applied for modification of
the NOC dated 22.09.2015 whereafter the Board issued revised NOC
dated 13.06.2018.
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9.2. They have admitted that petitioners have taken on lease from
respondent No.3 rooms at New Hind Mills Compound for the purpose of
transit accommodation of the tenants / occupants. All the 422 (sic)
tenants have been either provided alternate accommodation or are being
paid rent in lieu thereof. It is also acknowledged that none of the
tenants / occupants have complained against the petitioners regarding
transit accommodation or rent.
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10. Respondent Nos.1 and 2 have also filed reply affidavit to the writ
petition very recently on 18.02.2021 through Ramchandra K.
Dhanawade, Deputy Secretary to Government of Maharashtra in the
Housing Department. At the outset it is stated that the writ petition
involves disputed questions of fact and contractual obligations of the
petitioners. Therefore, this Court may not entertain the writ petition
under Article 226 of the Constitution of India. It is further stated that the
reliefs sought for in the writ petition have been rendered infructuous in
as much as petitioners had sought to redevelop the property under DCR
33(7) vide proposal dated 29.03.2006. However, they undertook the
redevelopment under DCR 33(9). Thus it is contended that petitioners
have acquiesced to the acquisition of the property and taken benefits
under DCR 33(9) which pertains to the acquired property. In view of
such acquiescence, petitioners are estopped from pursuing the writ
petition. In any view of the matter since approval sought for by the
petitioners for redevelopment of the property has been granted by the
Government, the writ petition does not survive.
10.1. It is stated that out of the six buildings standing on the petitioners’
property, building Nos.289/299, 299A and 299B were declared as being
beyond economic repairs under section 88(3)(a) of the MHADA Act.
Building Nos.299A and 299B were demolished by respondent No.5.
Tenants / occupants of the said two buildings were shifted by respondent
No.5 to transit camps. Building No.289/299 is adjacent to Rambhau
Bhogale Marg. Access to the remaining five buildings was through
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10.6. Respondent Nos.1 and 2 have contended that right from the
beginning petitioners were fully aware of the fact that redevelopment
scheme under DCR 33(9) was undertaken by them on the petitioners’
property since acquired and thereafter belonging to respondent No.5 in
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joint venture.
10.9. Answering respondents have denied that there were flaws in the
acquisition process. However, while not admitting any such flaws as
alleged it is contended that even if flaws were there in the acquisition
process those would be deemed to have been waived by the petitioners
by undertaking redevelopment scheme under DCR 33(9). Prior to
acquisition, hearing notices were issued to the petitioners. Those who
had attended the hearing were personally heard. Thus, due process was
followed. Therefore, impugned notification dated 21.12.2006 is legal
and valid.
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11. Mr. Sharan Jagtiani, learned senior counsel for the petitioners at
the outset submits that the impugned order dated 21.12.2006 suffers
from fundamental errors rendering the same null and void. He submits
that the total land area of petitioners’ property would be approximately
4721.60 sq.mtrs. with six structures standing thereon. However, only
three of the structures bearing Nos.289/299, 299A and 299B were
acquired along with the land leaving out the other three structures
bearing municipal house Nos.299C, 299D and 299E. In other words,
though the land was acquired, all the structures standing thereon were
not acquired. Resultantly, the tenants / occupants of the remaining three
buildings were not given notice and were not heard prior to acquisition.
This was brought to the notice of MHADA by its various authorities
including respondent No.6 requesting MHADA to issue necessary
corrigendum to rectify the defect in the acquisition process. But that was
not done. For lack of completeness as well as for denial of opportunity
of hearing to the tenants / occupants of the three left out structures, the
acquisition process stood vitiated. Thus there is clear violation of the
principles of natural justice and fair procedure. Therefore, the impugned
order cannot be sustained and should be declared as void.
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11.1. Mr. Jagtiani’s further contention is that more than 70% of the
tenants / occupants of the six structures had objected to development
through MHADA. They wanted petitioners to develop the property.
Initially petitioners had submitted proposal prior to issuance of the
impugned order before respondent Nos.3 to 5 seeking permission for
development of the property under DCR 33(7). He submits that when
DCR 33(9) was amended, petitioners submitted proposal to respondent
No.5 for redevelopment under the amended DCR 33(9).
11.2. Mr. Jagtiani, learned senior counsel has referred to order of this
Court dated 19.07.2010 as corrected on 02.08.2010 and submits that
after admission of the writ petition, petitioners were permitted to carry
out joint development as per sanction given by High Power Committee
under DCR 33(9). He submits that after approval was granted by the
State Government and the amount of premium to be deposited by the
petitioners was quantified, petitioners deposited total amount of
Rs.3,96,61,760.00 in two tranches on 22.11.2012 and 07.12.2012. After
receipt of NOC and letter of intent from the competent authorities,
petitioners commenced construction of the rehabilitation buildings.
Regarding the status of construction as on 22.07.2021, he submits that
nine commercial tenants of ground floor have already been handed over
possession; in so far ‘A’ Wing (rehabilitation building) of 35 floors is
concerned, construction of all 35 floors is complete. Petitioners are in a
position to handover possession of the completed floors as soon as it
receives occupancy certificate. Regarding ‘B’ Wing (rehabilitation
building), out of 35 floors, slab cast has been done upto 8 th floor; as
regards the ‘C’ Wing (sale wing) is concerned, out of total 45 floors
already 28 floors have been completed. He submits that construction is
in progress on day to day basis and petitioners would be in a position to
complete construction shortly.
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11.4. Learned senior counsel for the petitioners have filed a compilation
of case laws to support his submissions. In so far acquisition under
MHADA Act is concerned, he has placed reliance on a Division Bench
decision of this Court in Bhalchandra Datey Vs. State of Maharashtra,
2012 (2) Mh.L.J. 543. Relying upon this judgment he submits that in
the said case Court had set aside the acquisition of the property after the
Court found that the tenants for whose benefit the property was acquired
did not want the acquisition. He further submits that this Court observed
that no useful purpose would be served by continuing the property under
acquisition because the property was being acquired basically for the
benefit of the tenants who did not want such acquisition or that the
purpose for which acquisition was sought for had been achieved
otherwise.
12. Mr. Takke, learned AGP for respondent Nos.1, 2 and 7 has
referred to the orders passed by this Court and submits that there is clear
acquiescence on the part of the petitioners to redevelopment of the
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13. Supporting Mr. Takke, Mr. Lad, learned counsel appearing for
MHADA submits that as a matter of fact following the turn of events
after this Court’s order dated 19.07.2010 as corrected on 02.08.2010,
nothing survives in the writ petition. Though the writ petition was filed
challenging the order of acquisition dated 21.12.2006, at the intervention
of the Court petitioners have accepted joint redevelopment with
MHADA under amended DCR 33(9). Mr. Lad has referred to various
provisions of the MHADA Act and submits that acquisition under the
MHADA Act is different. In the course of his submissions, Mr. Lad also
raised a technical objection regarding belated filing of the writ petition
after withdrawal of the suit which cast aspersions on the bonafides of the
petitioners. Reverting back to the arrangement or course of action
directed by this Court vide order dated 19.07.2010 as corrected on
02.08.2010, he submits that redevelopment of the property under DCR
33(9) is not an interim arrangement. Such a course of action by its very
nature has attained finality. All that remains is payment of premium by
the petitioners to MHADA.
14. In his reply submissions, Mr. Jagtiani, learned senior counsel for
the petitioners strongly refuted the contention that there was
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16. At the outset we may advert to the stand taken by MHADA and
its authorities i.e., respondent Nos.3, 4 and 5 in the reply affidavit filed
to the interim application of the petitioners. This is because this affidavit
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16.2. The said respondents have also admitted that construction activity
on the petitioners’ property is being carried out in full swing. Petitioners
have not defaulted on any conditions of redevelopment.
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in slum areas. The objective behind enactment of the MHADA Act has
been explained in section 1A by declaring that MHADA Act is for
giving effect to the policy of the state towards securing the principle
specified in Article 39(b) of the Constitution of India and for execution
of proposals, plans or projects therefor and acquisition of the lands and
buildings and transferring the lands, buildings or tenements therein to
the needy persons and the co-operative societies of occupiers of such
lands or buildings.
18.1. Various words and expressions used in the MHADA Act are
defined in section 2. As per section 2(3), ‘authority’ has been defined to
mean the Maharashtra Housing and Area Development Authority
(MHADA) established under section 3. ‘Board’ has been defined under
section 2(6) to mean a Board established under section 18. Section 18
deals with establishment of Boards. Clause (c) says that the state
government shall by notification in the official gazette establish two
Boards for carrying out the activities of repairs and reconstruction and
slum improvement having the area of jurisdiction in the districts as
shown against each of them. Amongst the two Boards established the
one relevant for the present purpose is the Mumbai Repairs and
Reconstruction Board, already referred to as the ‘Board’ hereinabove for
the city of Mumbai.
18.2. Going back to the definitions, we find that under section 2(7)
building for the purpose of Chapter VIII has been defined to mean
building in respect of which cess is levied under that chapter and
includes a tenement let or intended to be let or occupied separately and a
house, out-house, stable, shed, hut and every other such structure but
does not include unauthorized or temporary building or structure.
Section 2(13) defines ‘development’ to mean carrying out of building,
engineering, mining or other operations in or over or under any land or
the making of any material change in any building or land and includes
redevelopment and lay out and sub-division of any land and also the
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18.3. ‘Land’ has been defined in section 2(16) as including open sites
and land which is being built upon or is already built upon, benefits to
arise out of land and things attached to the earth or permanently fastened
to anything attached to the earth and also includes land under sea, creek,
river, lake or any other water.
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sub-section (3), if the Board is of the opinion that, (a) the cost of
structural repairs to a building per square meter will exceed such amount
as may be specified by the State Government by notification in the
official gazette to be the structural repairs cost per square meter, or (b)
the cost of structural repairs to a building per square meter will exceed
the amount specified under clause (a) but the size of the land on which
such building is standing is such that for some reason or the other it
would not be possible or economical to erect any new building thereon
and there is an adjoining building but the cost of structural repairs to
such building per square meter does not exceed the amount specified
under clause (a), then in such cases falling under both the clauses, the
Board may not consider such building or buildings for repairs and
instead may issue a certificate to that effect to the owner thereof, fix a
copy of the relevant certificate in some conspicuous part of the building
or buildings for the information of the occupiers and proceed to take
action as provided in Chapter VIII. As per the first proviso, in cases of
special hardship, the Board may consider a building for structural repairs
even if the cost of such repairs is likely to exceed the limits specified. As
per the second proviso, where the occupiers of the building undertake
that they shall bear the cost of such repairs which are in excess of the
amounts specified under clause (a) and abide by such terms and
conditions for payment of the excess cost to the Board, the Board may
carry out structural repairs to such building.
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thereof to pull down the building with a view to preventing all causes of
danger therefrom and the Board is of the opinion that such building is
not capable of being repaired or rendered fit for habitation at reasonable
expense and is dangerous or injurious to the health or safety of the
inhabitants thereof or where the Mumbai Corporation under section 354-
R of the Mumbai Municipal Corporation Act, 1888 has passed a
resolution declaring the area in which any such building is situated as
the clearance area, the Board may submit to the State Government a
proposal to acquire the land including a proposal for issue of a clearance
and compulsory acquisition order to clear and acquire the land with the
existing building in whatever condition and for constructing a new
building on the same site and simultaneously prepare plans and
estimates for the same. As per sub-section (2) in preparing the plans and
estimates of the building to be reconstructed, it shall be the duty of the
Board to see that all the occupiers in the building proposed to be
demolished shall as far as practicable be provided in the reconstructed
building accommodation with a floor area equivalent to their floor area
in the old building.
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to the occupiers affected by the proposal. The notice should also indicate
the timeline for vacating the building. Such a notice shall be published
by the land acquisition officer simultaneously in the official gazette and
in at least four newspapers having circulation within Greater Mumbai.
Under sub-sections (4) and (5), the land acquisition officer shall serve
the notice referred to in sub-section (3) upon the occupiers and owner of
the building as well as on the mortgagee of the building calling upon
them to submit objections and suggestions as to why the land should not
be acquired. On objections and suggestions being made, the land
acquisition officer shall provide a reasonable opportunity of being heard
to the persons affected by the proposal whereafter the land acquisition
officer may sanction the proposal with or without any modification. This
shall be followed by publishing a notification in the official gazette
fixing a date on which the proposal as approved shall become operative
and on and from such a date the land in question shall vest absolutely in
the Board on behalf of MHADA free from all encumbrances.
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20. Having analyzed the above, we may now advert to the facts of the
present case.
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21. Thus, from the factual narrative as above, it is evident that the
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23. For the aforesaid reasons, the impugned order dated 21.12.2006
cannot be sustained and on this ground alone, the same is liable to be set
aside and quashed.
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27. Therefore what is deducible from the above is that the amended
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other party.
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34. Having noticed the above, we find that in the instant case,
petitioners had initially submitted proposal on 29.03.2006 before
respondent Nos.3 to 5 for development of the entire property under DCR
33(7) which had the support of 70% of the tenants. The said proposal
was stated to be pending. When respondent No.6 issued the impugned
order dated 21.12.2006, this order dated 21.12.2006 came to be
challenged by the petitioners in the present writ proceeding.
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36.1. We may also mention that once a writ petition is admitted for
hearing by issuing Rule, it would be highly unjust and inequitable to
non-suit the petitioners on the ground of delay and laches after a decade
or so at the stage of final hearing. However, in the given facts and
circumstances of the case, we are of the opinion that there was no undue
delay by the petitioners.
37. Thus having regard to the above we are of the considered view
that the plea of acquiescence by the petitioners as raised by the
respondents is without any substance and is accordingly rejected.
38. Though learned counsel for the petitioners had referred to and
relied upon the Division Bench decision of this Court in Bhalchandra
Datey (supra), in view of the conclusions reached, it may not be
necessary for us to dwell on the same.
39. For the reasons already indicated we are of the unhesitant view
that the impugned order dated 21.12.2006 cannot be sustained.
Accordingly the same is hereby set aside and quashed.
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Minal Parab
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