Bombay High Court
Mr. Murtuza Shabbir Tinwala vs The State Of Maharashtra And 5 Ors on 2 July, 2015
Author: B.P. Colabawalla
Bench: V.M. Kanade, B.P. Colabawalla
WP13.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.13 OF 2015
Mr Murtuza Shabbir Tinwala ... Petitioner
v/s
The State of Maharashtra and others ... Respondents
Mr Uday P. Warunjikar i/b Mr Siddesh A. Pilankar for Petitioner.
Mr Milind More, AGP for Respondent Nos.1 and 2.
Mr P.G. Lad, with Ms Aparna Murlidharan for Respondent Nos.4 and
5. Dr Virendra Tulzapurkar, Sr. Counsel with Mr Virag Tulzapurkar, Sr. Counsel, Mr S.U. Kamdar, Sr. Counsel, Mr Nikhil Sakhardande, Mr Chirag Kamdar, Mr Denzil Aranbhan, Ms Rati Patni, Ms Divyankar Kapoor, Ms Apeksha Munot i/b M/s Wadia Ghandy and co. for Respondent No.6.
CORAM: V.M. KANADE & B.P. COLABAWALLA JJ.
DATE : 2ND JULY 2015 JUDGMENT [ Per B.P. Colabawalla J. ] :-
1. By this Writ Petition, challenge has inter alia been laid to the Letter of Intent (LOI) dated 10th August, 2011 issued in favour of the Respondent No.6 under Regulation 33(9) of the Development Control Regulations, 1991 [hereinafter referred to as "DCR 33(9)"] VRD 1 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc and for a direction against Respondent Nos.1 to 5 to inquire into the alleged illegalities and irregularities in the documents which were submitted for obtaining the said LOI. In the alternative to the above reliefs, the Petitioner seeks a writ of mandamus directing Respondent No.6 herein to execute and register agreements for permanent alternate accommodation with the tenants / occupants in respect of the cluster re-development of the Bhendi Bazaar Area and which is the subject matter of the LOI dated 10th August, 2011.
2. Before we deal with the facts of the case it would be appropriate to make note of DCR 33(9). DCR 33(9) deals with re-
construction or re-development of cluster(s) of Buildings under Urban Renewal Schemes and contemplates constitution of a High Power Committee (HPC). A detailed proposal for re-development under DCR 33(9) is first submitted to the HPC. Once the HPC scrutinizes the proposal and is in favour of re-development, it sends its recommendations to the Government of Maharashtra (Respondent No.1) for approval along with the concerned documents and plans.
Respondent No.1 then considers this proposal and either grants or VRD 2 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc refuses to grant its approval. If Respondent No.1 grants it's in principle approval, then the HPC issues the LOI incorporating therein the terms and conditions which have to be complied with by the person in whose favour the LOI is issued.
3. Having said this, we shall now briefly narrate the facts of the present case. Respondent No.6 is a Public Charitable Trust and has been incorporated with the principal object of uplifting the lives of more than 20,000 residents of "Bhendi Bazar Area" admeasuring approximately 16.5 acres of land. The Bhendi Bazar Area is a congested area in the island city of Mumbai with dilapidated buildings which have no facilities which are considered essential today. Even the infrastructure is virtually non-existent and as such is in urgent need of re-development. Looking at this precarious condition and the fact that it poses a real and present danger to the life, limb and property of the people not only residing there but also commuting through that area, Respondent No.6 undertook the onus and responsibility to develop the Bhendi Bazar Area under DCR 33(9) as an Urban Renewal Scheme. Some of the salient features of the VRD 3 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc Scheme were as under :-
(a) All eligible tenants / occupants would be accommodated in modern and new buildings on an ownership basis. 11 new buildings would be constructed for rehabilitation of existing residential and commercial tenants.
(b) Residential tenants would be provided with units admeasuring a minimum of 350 sq.ft. of carpet area with self-contained toilets.
(c) More than 700 trees would be planted as opposed to one tree presently existing.
(d) The infrastructure of the entire Bhendi Bazar Area would be upgraded by realigning all existing roads and streets. The width of all the internal roads and streets would be increased, ranging from 15 meters to 16.5 meters while pavements and footpaths would be provided for pedestrians.
(e) The provision would also be made for parking to ensure that no parking would be made on the streets.
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(f) New sewerage and sanitation facilities would be
developed by Respondent No.6 and a sewerage
treatment plant is also proposed to be set up with a plan for efficient disposal of garbage.
4. In furtherance of ensuring that the said Scheme is successfully implemented, Respondent No.6 acquired / purchased lands and buildings comprising of 197 Cadastral Survey Numbers out of 250 Cadastral Survey Numbers that were privately owned. To this end, Respondent No.6 invested huge amounts of money.
5. Keeping in line with DCR 33(9), Respondent No.6 submitted a detailed proposal to the HPC on 7 th April 2011 for its in-
principle approval in terms of DCR 33(9) read with Appendix IIIA thereof, along with supporting documents and plans. After analyzing the proposal and after adopting the procedure summarized above, the Government of Maharashtra by its letter dated 22 nd July, 2011 granted its in-principle approval for the re-development of the Bhendi Bazar Area as an Urban Renewal Scheme. Pursuant thereto, the HPC has VRD 5 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc also by and under the LOI dated 10 th August, 2011 (impugned in this Petition) granted its approval to Respondent No.6 to undertake re-
development of the Bhendi Bazar Area as an Urban Renewal Scheme.
The said LOI has been revalidated from time to time and presently it is valid upto August 2015. To ensure the implementation of the said Scheme, several steps have been taken by the Respondent No.6.
Amongst other things, according to Respondent No.6, it has acquired lands and buildings forming part of the Bhendi Bazar Area; obtained irrevocable written consents of more than 85% of the owners from and out of the privately owned parcels of land not owned by Respondent No.6; and obtained irrevocable consents of more than 77% of the total tenants / occupants in the Bhendi Bazar Area. The revised master layout of the project submitted by Respondent No.6 has also been discussed in detail by the HPC in its meeting held on 23rd April 2012 and has been approved in principle by the HPC. The Ministry of Environment and Forests (MOEF) after detailed appraisal and evaluation in accordance with the Environment Impact Assessment Notification 2006, has accorded final environmental clearance for implementation of the said Scheme in July 2013, and VRD 6 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc Respondent No.6 has obtained in principle approval for the DP reservations for the entire project by a letter dated 8th July, 2013.
6. In this factual backdrop, Mr Warunjikar, learned counsel appearing on behalf of the Petitioner, submitted that there were serious illegalities and irregularities in the documentation submitted by Respondent No.6 to the relevant authorities for the purposes of obtaining the LOI dated 10th August, 2011. He invited our attention to pages 75 to 78 of the paper-book to contend that the requisite consents of the tenants were not obtained and therefore, the LOI could not have been issued. He also drew our attention to certain irrevocable consents given by some of the occupants wherein his contention was that some of these consents are ante-dated inasmuch as the date of franking of the said documents is after the date of its execution. He also contended that some of the affidavits-cum-undertakings executed by the owners in favour of the Chief Officer, MBRRB are unsigned.
On this basis, Mr Warunjikar submitted that there were serious illegalities and irregularities and therefore, the LOI ought to be quashed and set aside and the relevant authorities be directed to VRD 7 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc inquire into these illegalities.
7. In the alternative, Mr Warunjikar submitted that Respondent No.6 is required to enter into a registered agreement for permanent alternate accommodation which has not been executed in favour of many tenants /occupants. Respondent No.6 therefore be directed to execute those registered agreements as required under the law.
8. On the other hand, Dr Tulzapurkar, learned Senior Counsel appearing on behalf of the Respondent No.6 - Trust, has raised a preliminary objection regarding the maintainability of the present Writ Petition. He submitted that the Petitioner has no locus to file or maintain this Petition as the Petitioner has failed to disclose violation of any of his legal rights. He submitted that admittedly, the Petitioner himself was not a tenant of any premises and was only a resident in his capacity as a family member of a tenant (his mother) of "Sardharia Building" which is one of the cessed buildings being redeveloped by Respondent No.6. He submitted that the Petitioner is VRD 8 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc neither a tenant nor an occupier as contemplated under DCR 33(9).
That being the case, Dr Tulzapurkar argued that the Petitioner could not file or maintain the present Petition and / or make any grievance with reference to the issuance of the LOI dated 10 th August, 2011 in favour of Respondent No.6.
9. Without prejudice to the aforesaid argument, Dr Tulzapurkar also addressed us on the merits of this Writ Petition which we shall deal with subsequently in this judgment.
10. On the issue of locus of the Petitioner to maintain the present Petition, we find considerable force in the argument of Dr Tulzapurkar. It is not in dispute that the present Petitioner is not a tenant or an occupier of Sardharia Building, which is one of the buildings included in the Scheme of re-development. In fact, in paragraph 5 of the affidavit in rejoinder of the Petitioner dated 14 th January 2015, the Petitioner has categorically stated that he is a member of the family of the tenant (his mother - Mrs Rashida Shabbir Tinwala) and that he is her legal heir. It is important to note that the VRD 9 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc mother of the Petitioner and who is a tenant of Sardharia Building, has filed an independent Writ Petition in this Court being Writ Petition (L) No.1662 of 2015 wherein no challenge has been laid to the LOI dated 10th August, 2011. In fact, in the said Writ Petition, the said Mrs Rashida Tinwala (mother of the Petitioner) has only challenged the notices dated 16th May 2015 and 18th May 2015 issued under section 95A of the MHAD Act, 1976. Mr Warunjikar was unable to point out any provision which would entitle a family member of the tenant to have any locus to make a grievance with reference to re-development undertaken under DCR 33(9). The Petitioner, neither being a tenant nor an occupier of Sardharia Building as contemplated under DCR 33(9), we are clearly of the view that he has no locus to challenge the LOI issued in favour of Respondent No.6. DCR 33(9) contemplates re-development of cessed buildings for the benefit of tenants / occupiers (i.e. eligible tenants) of such buildings certified by the competent authority. Consequently, only such eligible tenants / occupiers are entitled to raise a grievance if any, against the re-development. This being the case, there is considerable force in the argument of Dr Tulzapurkar that the VRD 10 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc Petitioner has no locus as admittedly he is neither a tenant nor an occupier as contemplated under DCR 33(9). On this short ground alone, we would be justified in dismissing this Writ Petition.
However, as the Petitioner as well as Respondent No.6 have addressed us on the merits of the matter, for the reasons stated hereafter, we find that even on merits, this Writ Petition ought not to be entertained and deserves to be dismissed.
11. On merits, the first contention raised by Mr Warunjikar was that the LOI dated 10th August, 2011 could not have been granted by the HPC unless written consent of 70% of the eligible tenants / occupiers was obtained. In this regard, Mr Warunjikar relied upon pages 75 to 78 of the paper-book which shows that certain tenants had not given their consent. We find this argument to proceed on an erroneous and misconceived notion that the LOI dated 10 th August, 2011 could be granted by the HPC only after Respondent No.6 had received consent of 70% of the eligible tenants. The Government of Maharashtra, through the Urban Development Department, has issued a Government Order dated 10th December, 2009 wherein two options VRD 11 of 16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:49 ::: WP13.15.doc have been specified for the purpose of obtaining a LOI under DCR 33(9) for cluster re-development. Option II of the said Government Order clearly specifies that a developer can submit a proposal for cluster re-development by obtaining consents of 70% of the land owners in that particular cluster. After this is done, the proposal is submitted by the developer to the HPC who may give its in principle consent or reject the same with valid reasons. If in principle consent is given, the LOI is issued after following the due procedure. The LOI would be granted in respect of the proposals which are accepted in principle. Option II of the Government Order dated 10 th December, 2009 reads as under:-
"OPTION II "3(3). For Development under the Urban Renewal Scheme, the Developer, MHADA or with BMC or implementing organization to include them as independent implementation organization shall submit proposal to the High Power Committee with consent by way of grant of development rights of minimum 70 % of the land owners in that particular cluster proposed to be developed as well as land owners owning 70 % of the cluster area with the layout plan including the matters mentioned in Serial Nos.1 and 2 above.
3(4). The proposal so submitted by the Developer / implementing organization shall be scrutinized by the High Power Committee who may give in principle consent with suggestions if any or shall reject the same by giving valid reasons. The Letter of Intent will be granted in respect of the proposals which are accepted in principle.
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3(5). The concerned Developer / implementing organization within one year from the date of the Letter of Intent or before obtaining Commencement Certificate for construction shall submit eligibility of the residents certified by MHADA as well as non- transferable consent letter from minimum 70% of the tenants / residents and also grant of development rights from all the remaining land owners / development right holders within that particular cluster proposed to be developed to the High Power Committee with the proposed layout plan for its final approval.
Such proposals shall be scrutinized and the High Power Committee shall specify the time limit for implementing the scheme."
12. In the present case, Respondent No.6 has obtained the LOI on the basis of the aforesaid Option II and thereafter even proceeded to obtain valid consent of 77.67% of the total number of tenants / occupants in the Bhendi Bazar Area. In this view of the matter, we find that the argument canvassed by Mr Warunjikar that the LOI could not have been granted by the High Power Committee unless 70% of the eligible tenants consented to re-development is wholly misconceived. No land owners are before us contending that they had not given their consent to the re-development or that their consent was obtained either by coercion, undue influence and/or misrepresentation. In this view of the matter, we have no hesitation in rejecting the aforesaid argument.
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13. The next argument canvassed by Mr Warunjikar was that certain irrevocable consents signed by the some of the occupants are ante-dated. This, according to Mr Warunjikar, would clearly show that no proper consent has been obtained from the occupants before issuing the LOI. We are unable to accept this submission for more than one reason. Firstly, as stated above, Respondent No.6 has applied for the LOI under Option II of the Government Order dated 10th December, 2009 whereby consent of 70% of the owners is required. Therefore, obtaining the irrevocable consent of 70% of the tenants was wholly irrelevant before the issuance of the LOI. The consent of the eligible tenants is to be obtained as set out in the Government Order dated 10th December, 2009 after the LOI is issued.
This is clearly spelt out in clause 3(5) of Option II of the Government Order dated 10th December, 2009. Even otherwise, we find this argument to be without merit for the reason that none of these occupants have raised any grievance with reference to the irrevocable consent given by them. In this view of the matter, we fail to see how the Petitioner can raise this grievance and contend that the LOI dated 10thAugust, 2011 ought to be quashed.
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14. The last contention raised by Mr Warunjikar is that the affidavits-cum-undertakings executed by Respondent No.6 in favour of the MBRRB are not signed. Firstly, all these are disputed questions of fact which cannot be gone into in a writ petition.
Secondly, these affidavits-cum-undertakings are to be given after the LOI has been issued. As noted earlier, the LOI is dated 10 th August, 2011 and these affidavits-cum-undertakings have been executed in November 2011. Thirdly, the authority in whose favour the undertakings are executed viz. Respondent No.5, have not raised any grievance with reference to the undertakings given by the Respondent No.6 - Trust. In this view of the matter, we find no merit in this argument also.
15. Mr Warunjikar next submitted that the Trust has not executed registered agreements for permanent alternate accommodation in favour of the tenants. We may mention here that this argument cannot be canvassed by the Petitioner as admittedly he is neither a tenant nor an occupier as contemplated under DCR 33(9).
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If any eligible tenant / occupier is aggrieved by this so called non-
execution of a registered agreement for permanent alternate accommodation, that tenant is always free to take appropriate proceedings in accordance with law.
16. For all the aforesaid reasons, we find no merit in this Writ Petition. The same is hereby dismissed. In the facts and circumstances of the case, we leave the parties to bear their own costs.
(B.P. COLABAWALLA, J.) (V.M. KANADE J.)
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