Bombay High Court
Pramod Vishwanath Saraf vs The State Of Maharashtra Through ... on 9 July, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally
signed by
PRAJAKTA
PRAJAKTA SAGAR
2025:BHC-OS:10763-DB
SAGAR
VARTAK
VARTAK
Date:
905-WPL 19558-25@IAL 10220-25.DOC
2025.07.14
20:01:16
+0530
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L.) NO. 19558 OF 2025
WITH
INTERIM APPLICATION (L.) NO. 20220 OF 2025
Pramod Vishwanath Saraf & Ors. ...Petitioners
Vs.
The State of Maharashtra & Ors. ...Respondents
_________
Mr. G. S. Godbole, Senior Advocate i/b. Mr. G. B. Naik for Petitioner.
Ms. Varsha Sawant, AGP for State.
Mr. Akshay Shinde for Respondent Nos.2 to 4.
Mr. Mayur Khandeparkar with Mr. Ravleen Sabhrawal, Mr. Aman Anand, Mr.
Chirag Sarawagi, Ms. Aarushi Yadav, Mr. Mandar Waidande and Mr. Somesh
Pathak i/b. R.S. Justicia Law Chambers for Respondent No.5.
__________
CORAM: G. S. KULKARNI &
ARIF S. DOCTOR, JJ.
DATE: 09 JULY 2025.
P.C.
1. We have heard learned counsel for the parties on the present proceedings.
2. The petitioners claim to be tenants of a building known as 'Kalyan
Bhawan' (Building No. 352-358) (for short "the said building") situated in a very
busy commercial area namely Kalbadevi, Mumbai - 400 002. The owner of the
building is stated to be respondent no.5.
3. At the outset, we may observe that, it is not in dispute that the building
was in a dilapidated and dangerous condition and considering such position of
the building, the petitioners who alongwith other tenants as also respondent
no.5/landlord had taken appropriate position accepting that the building needs to
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be redeveloped i.e. it is required to be demolished and reconstructed. We also
find that respondent no.5/landlord at the material time, to which we would make
a reference little later, as also the petitioners/tenants submitted their respective
proposals for redevelopment with respondent no.2-MHADA / respondent no.3-
Mumbai Building Repair and Reconstruction Board, MHADA Unit (for short,
"MHADA").
4. Thus, MHADA has competing redevelopment proposals one from the
landlord-respondent no.5 and other from the tenants. In the normal
circumstances, depending as to what would be the purport, authority and the
mandate of Section 79-A of The Maharashtra Housing and Area Development
Act, 1976 (for short, "the MHADA Act") a decision would be required to be
taken by the competent officer of MHADA to determine as to who would be
entitled to redevelop the building in question.
5. As informed to us by Mr. Shinde, learned counsel for MHADA,
considering the building to be dangerous, MHADA has already resorted to lawful
procedure and the demolition of the building has already commenced since last
two weeks. He has also stated that tenants however are not co-operating and
from what we gather is such non-cooperation is on account of the proposal for
redevelopment of the building as made by the tenants which is stated to be
pending consideration of MHADA which is required to be decided on the
backdrop of what has happened between the MHADA, the landlord and the
tenants.
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6. Be it so, when we make the above observations, the immediate question,
which would come to the mind is as to why such rival claims are made on the
issue of redevelopment, namely a claim as made by the landlord/respondent no.5
and secondly a claim made by the tenants. The law would recognize the right of
the landlord to be the first right to undertake redevelopment, about which there
is no dispute. We find that in the present facts per se the tenants' entitlement
crops up on certain circumstances, considering the provisions of law under which
such rights are sought to be asserted by the petitioners/tenants, namely the
provisions of Section 79-A of the MHADA Act.
7. Thus the issues before us are being asserted and approached considering
the provisions of Section 79-A of the MHADA Act, which was incorporated vide
an Amendment Act No. 48 of 2022 with effect from 02 December 2022. The
said provision is required to be noted which reads thus:-
"79-A. (1) Notwithstanding anything contained in sub-section (3) of
section 88 and section 92 of this Act and sections 354 and 499 of the
Mumbai Municipal Corporation Act, in case of the building to which
the provisions of sub-section (1) of section 82 applies (hereinafter in this
Act referred to as "cessed building"), which is declared dangerous by the
Mumbai Municipal Corporation under section 354 of the Mumbai
Municipal Corporation Act or by the competent authority, if the
redevelopment of such building is not taken up by the owner or landlord
of the cessed building, within three months from the date of issue of
notice under section 354 of the Mumbai Municipal Corporation Act by
the Mumbai Municipal Corporation or the competent authority, the
Board may adopt the following procedure :-
(a) a notice shall be issued to the owner or landlord of the cessed
building to submit the proposal for redevelopment within six months
from the date of issue of notice. Alongwith the proposal, consent of fifty-
one per cent. of the occupants or tenants of the said building shall be
accompanied ;
(b) if the owner or landlord fails to submit the proposal within the
period and the manner as provided in clause (a), the proposed co-
operative housing society of the occupants or tenants of such building
may submit the proposal to the Board, for redevelopment of such
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building under the relevant provisions of the Development Control and
Promotion Regulations-2034 for Greater Mumbai, within six months
from the date of communication received from the Board. The proposal
shall be accompanied with the consent of at least fifty-one per cent. of
the occupants or tenants :
Provided that, when the building is redeveloped by the
proposed co-operative housing society, the compensation to the owner
or landlord shall be paid by the concerned co-operative housing society
as per the provisions of sub-section (2) ;
(c) if the redevelopment is not initiated within the period and
manner as provided in clauses (a) and (b), the Board shall reconstruct the
building by acquiring such building, without insisting on consent of at
least fifty-one per cent. of the occupants or tenants of the said building.
(2) When the building is redeveloped under the provisions of
clauses (b) and (c) of sub-section (1), the compensation shall be paid to
the owner or landlord, at the rate of twenty-five per cent. of the amount
of Ready Reckoner Rates, determined under the Maharashtra Stamp
(Determination of True Market Value of Property) Rules, 1995 of the
open land of such building or fifteen per cent. of the built-up area of sale
component determined as per the Ready Reckoner Rates, whichever is
higher.
Explanation.- For the purposes of this sub-section, "sale component"
means the built-up area remaining after deducting Rehab Built-up Area
from the permissible Built-up Area admissible as per the relevant
provisions of the Development Control and Promotion Regulations-
2034 for Greater Mumbai.
(3) If the building is redeveloped by the Board under clause (c) of
sub-section (1), subject to the provisions of sub-section (2) for payment
of compensation, the provisions of sections 92 and 93 shall mutatis
mutandis apply, for acquisition of such building.".
(emphasis supplied)
8. Thus, from a plain reading of the aforesaid provision, it is clear that for the
application of Section 79-A in respect of the "cessed building", the building is
required to be declared as dangerous by the Mumbai Municipal Corporation
under section 354 of the Mumbai Municipal Corporation Act or by the
Competent Authority, which has been defined under Section 65 of the MHADA
Act (which provides for "Appointment of Competent Authority") and it is only
on such basic jurisdictional requirement being fulfilled, the Competent officer of
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MHADA can assume jurisdiction. If the redevelopment of such building is not
taken up by the landlord or owner of the cessed building, within three months
from the date of issue of notice under section 354 of the Mumbai Municipal
Corporation Act (for short, "MMC Act") by the Mumbai Municipal Corporation
or the competent authority, the Board is permitted to adopt the procedure as set
out in Section 79-A(1)(a), (b), (c).
9. Sub-section (1)(a) of Section 79-A provides that such notice shall be
issued by the MHADA to the owner or landlord of the cessed building to submit
the proposal for redevelopment of the building within six months from the date
of issuance of notice. After receipt of such notice, alongwith the proposal,
consent of fifty-one per cent of the occupants or tenants of the said building is
required to be submitted by the owner/landlord to the MHADA. Sub-section (b)
provides that if the owner or landlord fails to submit the proposal within the said
period of six months and in the manner as provided in clause (a), the proposed
co-operative housing society of the occupants or tenants of such building may
submit the proposal to the Board, for redevelopment of the building under the
relevant provisions of the Development Control and Promotion Regulations-
2034 for Greater Mumbai, within six months from the date of communication
received from the Board and such proposal, which may be made by the proposed
co-operative society, is required to be accompanied with the consent of at least
fifty-one per cent of the occupants / tenants.
10. The controversy in the present petition, despite the earlier round of
litigation, to which, we will immediately advert, has rested on the purport of
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Section 79-A and more particularly 79-A(1)(b) and/or whether it would be a
situation that the MHADA would be required to take recourse to Section 79-A of
the MHADA Act.
11. It is not in dispute that a notice under Section 79-A(1)(a) of the MHADA
Act dated 18 May 2023 was issued to respondent no.5-landlord. In order to
ascertain the jurisdictional requirements to consider the application of Section
79-A of the MHADA Act, we asked Mr. Shinde, learned Counsel for the
MHADA, as to whether to invoke sub-section (1)(a) of Section 79-A, a notice
declaring the building in question to be dangerous under Section 354 of the
MMC Act was issued by the Mumbai Municipal Corporation or by the
Competent Authority under Section 65 of the MHADA Act had declared the
building to be dangerous. Mr. Shinde, on instructions, has submitted that neither
of these compliances were met. It is hence contended on behalf of respondent
no.5, that resultantly, the basic jurisdictional requirement to issue such notice is
lacking in the present case.
12. Be that as it may, albeit accepting this position that there was no
jurisdiction for invoking Section 79-A(1) in the absence of two basic
requirements as mandated by sub-section (1) of Section 79-A i.e. Municipal
Corporation declaring the building to be dilapidated under Section 354 or is
being so declared by the Competent Authority, it appears that parties namely the
landlord as also the tenants proceeded on the assumption that the building would
require redevelopment as it has become dangerous, however, sans the Municipal
Corporation or the competent authorities saying so and are accordingly asserting
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their rival claims for redevelopment of the building. It is quite acceptable for the
landlord or the tenants to assume so, as they are occupants of the building and it
is them who realized that the building is in dangerous condition and would
require redevelopment. However, as the parties would not dispute the
complexion of such assertion changes the moment redevelopment under the garb
of the provisions of Section 79-A is the subject matter of controversy, as Section
79-A is a provision wherein sub-sections (1)(a) and (1)(b) recognizes distinct
rights of redevelopment on different parties namely the landlords and thereafter
the tenants. The basis of such rights would stem from what has been provided
for under Section 79-A(1) from what has been informed by Mr. Shinde, and not
disputed by any of the parties, there was no trigger for Section 79-A to be
invoked in the absence of either a Section 354 of the MMC Act notice or the
building being declared dangerous by the Competent Authority.
13. As urged by Mr. Shinde, although not permissible in law after such notice
dated 18 May 2023 was issued under Section 79-A(1)(a) to respondent
No.5/landlord by the MHADA, a writ petition was filed in this Court by the
landlord being Writ Petition No. 232 of 2024 in which the following prayer was
made by respondent no.5:-
"(a) That the writ of mandamus and/or any other appropriate writ or
directions and/or appropriate order be passed against the respondents to
exercise its statutory powers under the Maharashtra Housing and Area
Development Act and the Mumbai Municipal Corporation Act to get
the petitioners building, i.e., Kalyan Bhuvan building situated at
Kalbadevi, Mumbai - 400 002 be vacated and to be demolished as the
said building is in dangerous and dilapidated condition and likely to fall
at any point of time."
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14. In the said writ petition, the tenants (petitioners in the present petition)
were also parties. The prayer as noted by us indicates that the petitioner therein
(landlord) asserted that the building needs to be vacated as it was required to be
demolished, and in that regard, MHADA needs to exercise statutory powers.
Such petition came to be adjudicated by a co-ordinate Bench of this Court in
terms of the order dated 14 February 2024, by which the Division Bench of this
Court, observed that "the owner must now submit the necessary applications to
MHADA and follow the process prescribed in law including under recently
amended Section 79A of the MHADA Act in regard to a redevelopment
proposal". The said order is required to be noted which reads thus:-
"1. We do not think that there is any surviving controversy in this
Petition. The Petitioner is the owner of a structure called Kalyan Bhavan
at Kalbadevi. The prayer is for a direction to Maharashtra Housing and
Area Development Authority ("MHADA") and the Municipal
Corporation of Greater Mumbai ("MCGM") to have it vacated so that it
can be pulled down. Respondent Nos 5 and 6 are two
tenants/occupants. There may be others. Before us, there is no dispute
that the building is not in the best of conditions. We are not required to
enter into the controversy of whether it is a C1 category or a C2A
category building because, as Mr Shah for Respondent Nos 5 and 6
points out, propping work is being carried out and therefore major
repairs are being undertaken.
2. This necessarily means that the owner must now submit the
necessary applications to MHADA and follow the process prescribed in
law including under recently amended Section 79A of the MHADA Act
in regard to a redevelopment proposal. We have recently held in
Chandralok People Welfare Association vs State of Maharashtra1 that
the doing nothing is not an option available to a property owner. There
is a time limit within which owner must submit a redevelopment
proposal. If not done, tenants or occupants have the option of
reconstructing the building (not redeveloping) and adjusting those costs
against future rents. This position in law the Petitioner owner will bear
in mind going forward.
3. We see no purpose achieved by keeping this petition pending.
It is disposed of but with liberty to both sides to adopt appropriate
proceedings."
(emphasis supplied)
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15. The aforesaid order passed by the Division Bench as accepted and
understood by respondent no.5 (landlord) as also the MHADA and the
petitioners (tenants) was to the effect that, when the Division Bench in paragraph
2 of the said order (supra) observed that "the owner must now submit the
necessary applications to MHADA and follow the process prescribed in law
including under recently amended Section 79A of the MHADA Act", in regard
to the redevelopment, respondent no.5 (petitioner therein) would then be
required to submit his proposal, as also for the reason that about nine months had
already elapsed from the first notice dated 18 May 2023 issued to the landlord/
respondent no.5 under Section 79-A of the MHADA Act. Mr. Khandeparkar,
learned counsel for respondent no.5 has submitted that a proposal was hence
submitted by respondent no.5 on 14 June 2024 for redevelopment of the
building, which according to him was within four months of the said order
passed by the Division Bench. It appears that oblivious to such proposal for
redevelopment being already filed by the landlord (respondent no.5), on 08 July
2024 the Deputy Chief Engineer, Zone-1/respondent no.4 issued a notice under
Section 79A to respondent no.5/ landlord for submission of redevelopment
proposal of the building at the earliest and as per prevailing rules and regulations
of the Board. The operative part of the said order reads thus:-
"ORDER:
Under the above circumstances It is ordered to Issue an Order to
landlord/owner for submission of redevelopment proposal of building
no, 352-358, Kallbadavi Road, Mumbai-02, as per Hon'ble Court Order
W. P. No. 232 of 2024 Dated 14.02.2024 at the earliest as per prevailing
rules and regulations of M. B. & R. Board."
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16. In such order, a statement as made on behalf of respondent no.5/landlord
was also recorded that the landlord had applied to the Executive Engineer of
respondent no.3, vide a letter dated 14 June 2024 for issuance of Letter of Intent
("LOI") under 33(7) DCPR 2034, and that an approval to the same was awaited
from the Chief Officer of the Board. The landlord also stated that he had
requested all the tenants/occupants vide letters dated 18 January 2024, 09 May
2024 and 14 May 2024 to co-operate in the redevelopment of the said building.
The order also recorded that in a joint meeting, the tenants/occupants had stated
that they were also trying for redevelopment of the property and they were also in
the process to pursue their proposal for redevelopment of the said building, and
to that effect, they had submitted a letter to respondent no.3/Board dated 22
June 2024. This letter was subsequent to the landlord's proposal. It is on such
premise, it was observed that the landlord and tenants/occupants are ready for
redevelopment of the property. On such backdrop, this Court passed an order
dated 14 February 2024 on Writ Petition No.232 of 2024 that the
landlord/owner of the property to follow the process prescribed in law including
under the amended Section 79-A of the MHADA Act in regard to the
redevelopment proposal. It is on such premise, an order came to be passed by the
Deputy Chief Engineer, Zone - I, M. B. R & R Board, Mumbai as noted by us
hereinabove. The relevant paragraphs of the said order is required to be noted
which reads thus:-
" Also, Hon'ble High Court in WP no. 232 of 2024 Order dated
14.02.2024, has pointed that, there is no dispute that the building is not
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in best of condition, also directed the landlord/owner of the property to
follow the process prescribed in law including recently amended section
79A of MHAD Act in regards to redevelopment proposal which owner
must submit redevelopment proposal within the time limit. If not done,
tenants or occupants have the option of reconstructing of the building
(not redevelopment).
Following persons were present during the hearing:-
1. Executive Engineer/C-2 Ward/MBRRB
2. Shri Satinder Pal Singh Ahuja(Landlord)
3. Shri. Jagdish M. Mulchandani
4. Shri. Hijri Ratansi Patel & other tenants
The landlord/owner/tenants/occupants have submitted the following:
1) The landlord of the building has stated that, he is in the process
of submission of redevelopment proposal for this purpose landlord has
also applied to Resident Executive Engineer, M. B. R & R. Board vide
his letter dated. 14.06.2024 for issue of LOI under 33(7) DCPR 2034.
The same is awaited from Hon'ble Chief Officer, M. B. R& R. Board.
Also he requested to all tenants/occupants vide his letter dated
18.01.2074, 09.07.2024 and 14.03.2014 to cooperate for redevelopment
of the said building.
2) In joint meeting, tenants/occupants have stated that they are
also trying for redevelopment of property and they are also in process of
redevelopment of the said building. In his connection tenants/occupants
have also submitted letter to M. B. R & R. Board, Mumbai vide their
letter dated 22.06.2024.
3) The landlord and tenants/occupants are ready for
redevelopment of property and as the Hon'ble High Court W.P. No. 232
of 2024 dated. 14.02.2024 passed an Order that, landlord/owner of the
property to follow the process prescribed in law including recently
amended section 796 of 14HAD Act in regards to redevelopment
proposal.
17. It appears that on such proposal as moved on behalf of the landlord/
respondent no.5, the Chief Officer of respondent no.3/Board issued a LOI in
favour of respondent no.5 dated 10 July 2024 qua the redevelopment of the said
building, subject to the terms and conditions as set out therein.
18. On such backdrop, one Jagdish Madhavdas Mulchandani, a tenant and
some others who are also petitioners in the present petition (namely petitioner
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nos.1 to 13, 15, 16, 17, 18, 20, 21 and 23) approached this Court in the
proceedings of Writ Petition No. 4629 of 2024 [Writ Petition (Stamp) No.
27839 of 2024] challenging the order dated 08 July 2024 passed by respondent
no.4 permitting respondent no.5 to submit a redevelopment proposal (supra), as
also the LOI dated 10 July 2024, praying that the same be quashed and set aside.
Also a prayer that an appropriate permission/LOI be directed to be issued by
MHADA in pursuance of Section 79-A(1)(b) of the MHADA Act in favour of
the petitioners/tenants was made. The prayers as made in said petition are
required to be noted which read thus:-
"a. That this Hon'ble Court by necessary Writ of Certiorari and any
other writ of like nature or order may be pleased to quash and set aside
the impugned direction in the nature of order contained in letter dated
8th July 2024 and the purported Letter of Intent as contained in letter
dated 10th July 2024 being Exhibits "H" and "I" annexed to the Petition,
calling upon Respondent Nos.5 and 6 Landlords for the redevelopment
of the building and further be pleased to quash and set aside the same.
b. That this Hon'ble Court by necessary Writ of Mandamus and
any other writ of like nature or order directing Respondent Nos.2 to 4
to issue an appropriate permission, LOI as provided and in pursuance to
Section 79A(1)(b) of MHAD Act permitting the Petitioners i.e., the
tenants to undertake the redevelopment of the building Kalyan Bhavan,
property Cess No. C-1868-69 on Plot No. 791, C-Ward, situated at
352-358, Kalbadevi, Mumbai-400 002."
19. Such petition came to be adjudicated by an order dated 26 November
2024 passed by a co-ordinate Bench of this Court, whereby the Court taking into
consideration the rival contentions and the provisions of Section 79-A of the
MHADA Act and on the reasoning as set out in paragraphs 8 to 10, such Writ
Petition was allowed in terms of prayer clauses (a) and (b). The said paragraphs
read thus:-
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"8) The Order dated 14th February, 2024 is unambiguous. The
Order in no way extends the six month period of limitation permitted
79A(1)(a) of the MHAD Act for the landlord. On the contrary, the
second paragraph of the Order dated 14 th February, 2024 indicates the
rights of the tenants by referring to a recently decided case of
Chandralok People Welfare Association Vs. State of Maharashtra
reported in 2023 SCC OnLine Bom 2300, by holding that doing
nothing is not an option available to property owner and that there is a
time limit within which the owner must submit a redevelopment
proposal. It reiterates that if the landlord failed to take steps for
redevelopment the tenants or occupants would have the option of
reconstructing the building and adjusting the costs against future rents.
Thus, the tenants would have a right to reconstruct the building but not
redevelop the building. That was not a case of cessed buildings.
9) This is a case of a cessed building where MHAD Act applies. As
per the provisions of 79A(1)(b) of MHADA Act, extracted herein above
the tenants clearly have a right to redevelop the property under the
provision of Development Control and Promotion Regulations 2034.
10) In view of the aforesaid, Petition is made absolute in terms of
prayer clauses (a) and (b)."
20. Being aggrieved by the aforesaid order passed by the Division Bench,
respondent no.5/landlord filed a Review Petition (L.) No.39002 of 2024 in the
said proceedings (Writ Petition No. 4629 of 2024) praying for review of the
order passed by the Division Bench of this Court dated 26 November 2024
(supra). Such review petition was permitted to be withdrawn, however, granting
the petitioners liberty to file appropriate representation with the competent
authority of MHADA for exercising its powers under Section 79-A of the
MHADA Act, as may be permissible in law. The said order reads thus:-
"1) Mr. Sakhare, learned Senior Advocate appearing for the
Petitioner on instructions seeks leave to withdraw the Petition with
liberty to file appropriate representation with the Competent Authority
of MHADA for exercising its powers under Section 79-A of the
Maharashtra Housing and Area Development Act, 1976, as may be
permissible in law.
1.1) Leave and liberty granted.
2) Disposed off as withdrawn."
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(emphasis supplied)
21. Respondent no.5/landlord assailed the final judgment and order dated 26
November 2024 passed by the Division Bench in Writ Petition No. 4629 of
2024 (supra) as also the order passed by the Division Bench dated 23 April 2025
in the review proceedings before the Supreme Court in Special Leave Petition
(Civil) Diary No. 31419 of 2025 which came to be dismissed by the Supreme
Court by an order dated 25 June 2025 which reads thus:-
" ORDER
1. Delay condoned.
2. We have heard Mr. Gaurav Agrawal, learned senior counsel for
the petitioner.
3. We are not inclined to exercise our discretionary jurisdiction
under Article 136 of the Constitution of India, more particularly, having
regard to the previous order of the High Court dated 14.02.2024 as well
as the impugned order dated 26.11.2024.
4. The Special Leave Petitions are, accordingly, dismissed.
5. Pending application stands disposed of."
22. As a result of the aforesaid order passed by the Supreme Court both the
orders passed by the Division Bench have attained finality. The order passed on
the review petition having attained finality, is of more significance considering
the facts and circumstances as they stand. It is on the aforesaid backdrop, now
the petitioners/tenants are before the Court in the present proceedings primarily
asserting their rights to undertake redevelopment. Such rights are emanating
from the provisions of Section 79-A(1)(b) of the MHADA Act and on the basis
of the proposal for redevelopment, which they have filed on 27 June 2024. The
substantive prayers as made in the present petition need to be noted:-
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"(a) This Hon'ble Court may be pleased to quash and set aside
impugned letter/notice dated 19.06.2025 issued by the Executive
Engineer, c-2 Division, M.B.R& R. board, Mumbai to the
petitioners/owner.
(ai) This Hon'ble Court may be pleased to direct the Respondent
No. I to 4 to finalize the Petitioner's proposal for redevelopment dated
27.06. 2024.
(b) This Hon'ble Court by necessary Writ of Certiorari and any
other writ of like nature or order may be pleased to restrain the
Respondents from demolishing the said building.
(c) This Hon'ble Court by necessary Writ of Mandamus and any
other writ of like nature or order directing Respondent Nos.2 to 4 to
carry out the structural repair to the building since the excess amount
towards Structural Repair is demanded by M.B.R. & R. Board Authority
have been paid by Petitioners to carry out Structural Repair of the
building being Kalyan Bhavan, property Cess No. C-1868-69 on Plot
No.791, C-Ward, situated at 352-358, Kalbadevi, Mumbai - 400002;
(d) In alternate to the Prayer clause (b) above, this Hon'ble Court
may be pleased to direct the Respondent Nos. 1 to 4 to forthwith grant
NOC for Structural Repair to the Tenants/ Occupants at their own cost
by appointing panel Architect and contractor appointed by the
petitioner for redevelopment.
(e) Further direct the M.B.R. & R. Board to supervise the said
Structural Repair work by the Tenants / Occupants / Petitioners and to
releases the fund collected by them lying to the credit of the said
building with the authorities towards repair cess and further the excess
amount collected by the M.B.R. & R. Board Authority from the
petitioners/tenants."
(emphasis supplied)
23. As seen from the prayers, as also from the averments as made in the
petition, the petitioners/tenants would not dispute that the building in question
would require redevelopment, however, at the same time, quite astonishingly a
contradictory prayer is also made that a direction be issued to respondent nos.2 to
4 to undertake repairs. Thus, there is an ex facie conflicting and inconsistent
prayer made in the petition. The position which has been consistently taken by
the petitioners is to assert rights of redevelopment of the building belonging to
respondent No.5.
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24. Thus, the situation, as canvassed before us by the learned counsel for the
parties on the backdrop of the previous orders passed by the Court as noted
hereinabove, is whether it would be the legal right of respondent no.5/landlord to
undertake redevelopment under the provisions of Section 79-A(1)(a) or it would
be the right of the petitioners/tenants to undertake such redevelopment under
the provisions of Section 79-A(1)(b) on a failure on the part of respondent no.5
to undertake redevelopment.
25. The respondent No.5/landlord's case is that such issue is at large before
the MHADA as recognized by the Division Bench of this Court in its order
passed on the Review Petition, which has attained finality on the Special Leave
Petition being dismissed by the Supreme Court. On behalf of the landlord, it is
contended that the consideration before the Competent Authority of MHADA is
the issue of exercise of the powers by the MHADA under Section 79-A of the
MHADA Act as recognized by the Division Bench in its order passed on the
review proceedings (supra). According to respondent no.5/landlord, Section 79-
A(1)(b) clearly provides that if the owner or landlord fails to submit the proposal
within the period and the manner as provided in clause (a), "the proposed co-
operative housing society of the occupants or tenants of such building may
submit the proposal to the Board for redevelopment on the basis that the
landlord has failed to submit a proposal for redevelopment. It is submitted that it
is not in dispute that the landlord has submitted his proposal. It is also the
landlord's contention that in fact, the landlord submitted his proposal, as also the
petitioners/tenants have submitted their proposal. It is also submitted and as
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agreed at the Bar that there is no society of the tenants which has been formed.
26. Thus, considering the prayers as made in the petition and on the backdrop
of the earlier orders, it appears to us that as the rights inter se between the
tenants/petitioners and the landlord/respondent no.5 stem and/or are premised
only on the provisions of Section 79-A of the MHADA Act (supra), as to what
position the designated officers under Section 79-A would be required to take in
the peculiar facts and circumstances of the case, is itself a subject matter of
consideration of the designated officer, in view of an application now being made
by respondent no.5/landlord dated 07 May 2025 which is in pursuance of the
orders passed by the Division Bench in the review proceedings (supra), which is
yet to be decided by the designated officer. We may observe that in the said order
dated 23 April 2025 passed by the Division Bench on the review proceeding
which has been upheld by the Supreme Court, the consequence is that the issue
in regard to "exercise of powers under Section 79-A of the MHADA Act", as may
be permissible in law, is itself open before the competent authority of MHADA,
as clearly seen from the said order of the Division Bench, which we have
extracted hereinabove. Thus, all issues, emanating from the powers under
Section 79-A of the MHADA Act vis a vis the rights the petitioners/tenants on
one hand and respondent no.5 on the other hand are now at large and are
required to be decided in accordance with law by the designated officer of the
MHADA, considering the orders passed by the Division Bench in the review
proceedings. In these circumstances, it may not be possible at this stage of the
proceedings to consider the prayer of the petitioners.
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27. Further as noted hereinabove, the demolition is already underway, it
would not be possible for us to grant a relief that respondent nos.1 to 4 be
directed to undertake structural repairs as the parties are certainly ad idem that
the building requires redevelopment and it is on such backdrop, an action of
demolition has already been commenced, about two weeks back as stated by
learned counsel for MHADA. Such action of demolition of the building cannot
be stopped and the tenants, subject to their rights and contentions in regard to
the redevelopment, need to cooperate to vacate their premises, so as to permit
respondent nos.1 to 4 to proceed with the demolition action. Hence, the
following order:-
ORDER
i. Keeping open all contentions of the parties including the substantive prayers in regard to the redevelopment proposal of the petitioners, including the substantive prayer of the petitioners in regard to their right to undertake redevelopment, we dispose of this petition by directing the designated officer/ competent authority of MHADA to decide respondent no.5/landlord's application dated 07 May 2025 made in pursuance of the orders dated 23 April 2025, passed by the Division Bench on the Review Petition (supra), in accordance with law. ii. Let such order be passed by the competent officer after hearing all parties as expeditiously as possible and in any event within a period of 15 days from the date copy of this order is available. At the first instance, the Page 18 of 19 09 July 2025 ::: Uploaded on - 14/07/2025 ::: Downloaded on - 02/08/2025 00:31:39 ::: 905-WPL 19558-25@IAL 10220-25.DOC parties are directed to appear before the said officer on 17 July 2025 at 03.00 p.m. iii. The aforesaid directions in no manner would affect the concerned officers of the MHADA to continue the work of demolition of the building in question, which has become dangerous. iv. All contentions of the parties to be urged before the competent officer are expressly kept open.
v. The petition stands disposed of accordingly. No costs.
28. At this stage, Mr. Godbole, learned counsel for the petitioners seeks stay of this order. In the facts of the case, the request for stay is rejected.
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