Bombay High Court
Mrs.Rashida Shabbir Tinwala And Anr vs Mumbai Building Repairs And ... on 2 July, 2015
Author: B. P. Colabawalla
Bench: V. M. Kanade, B. P. Colabawalla
writ petitionl.1662.15 with 328.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.1662 OF 2015
WITH
WRIT PETITION (L) NO.328 OF 2015
Rashida Shabbir Tinwala and Another ..Petitioners
Vs.
Bombay Building Repairs and Reconstruction
Board and Another ig ..Respondents
Mr. Uday Warunjikar i/b Mr. Siddhesh A. Pilankar, for the
Petitioners.
Mr. P. G. Lad a/w Ms. Aparna Murlidharan, AGP for Respondent
No.1.
Dr. Virendra Tulzapurkar, Senior Counsel a/w Mr. Virag
Tulzapurkar, Senior Counsel, Mr. S. U. Kamdar, Senior Counsel a/w
Mr. Nikhil Sakhardande, Mr. Chirag Kamdar, Mr. Denzil Aranbhan,
Ms.Rati Patni, Divyanka Kapoor, Apeksha Munot i/b Wadia Ghandy
and Co, for Respondent No.3 in WPL 1662/2015 and Respondent
No.2 in WPL 328/2015.
CORAM :- V. M. KANADE &
B. P. COLABAWALLA, J.
DATE :- JULY 2, 2015.
JUDGMENT [ Per B. P. Colabawalla J. ]:-
1. In Writ Petition (L) No.1662 of 2015, the Petitioners Aswale 1/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc have challenged the notices issued by Respondent Nos.1 and 2 (MBRRB and the Executive Engineer thereof) dated 16 th May, 2015 and 18th May, 2015 under Section 95A of the MHAD Act, 1976.
Petitioner No.1 is an occupant of Room No.27 on the second floor and Petitioner No.2 is in occupation of Shop No.32 on the ground floor of a building called Sardharia Building situated at City Survey No.3635, 123/127 Pakmodia Street, Bhendi Bazar, Mumbai-3. The structure in question is a part and parcel of an area which is known as the "Bhendi Bazar Area" and which has been granted in-principle approval for re-development under DCR 33(9). The Petitioners are the certified tenants/occupants as per the list prepared by MBRRB.
2. In Writ Petition (L) No.328 of 2015, the Petitioners have interalia challenged the order dated 9th August, 2012 passed by MBRRB (Respondent No.1) in favour of the Saifee Burhani Upliftment Trust (SBUT) - Respondent No.2 therein. In this Writ Petition, the Petitioners have also asked for certain omnibus reliefs which we shall deal with later in this judgment. Considering the fact that the parties are the same and common questions arise, both the Aswale 2/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc Writ Petitions are being disposed off by this common judgment.
3. The brief facts in Writ Petition (L) No.1662 of 2015 are that Respondent No.3 - (SBUT) is a Public Charitable Trust with the main object of uplifting the lives of more than twenty thousand residents of the Bhendi Bazaar area. Respondent No.3 - SBUT is also the owner of the said Sardharia Building which is a part of the Bhendi Bazaar Area and is a cessed (C-1) category building as certified by MBRRB under the provisions of the MHAD Act, 1976.
The photographs produced on record clearly show that the said building is in a dangerous and precarious condition.
4. Respondent No.3 - SBUT has undertaken the responsibility of redeveloping the Bhendi Bazaar Area under DCR 33(9) read with Appendix IIIA, and accordingly, submitted a detailed proposal to the HPC on 7th April, 2011 for its in-principle approval in terms of DCR 33(9) read with Appendix IIIA thereof, along with supporting documents and plans. Once the HPC scrutinized the proposal and was in favour of re-development, it sent Aswale 3/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc its recommendations to the Government of Maharashtra for approval along with the concerned documents and plans. The Government of Maharashtra by its letter dated 22nd July, 2011 granted its in-
principle approval. Accordingly, the HPC, after detailed deliberation, approved the re-development proposal of Respondent No.3 - SBUT and issued the Letter of Intent (LOI) dated 10th August, 2011 whereby Respondent No.3 was given necessary permissions to implement the re-development project on the terms and conditions as set out thereunder.
5. At this juncture it would be important to note that owing to the mix of structures of different characteristics in any cluster redevelopment/urban renewal scheme, as per the provisions of Appendix IIIA to DCR 33(9), a HPC is to be constituted which shall be competent to approve Urban Renewal Schemes with the previous sanction of the State Government. Accordingly, the HPC has been constituted by Government Order dated 2 nd March, 2009. The constitution of the HPC comprises of the following statutory authorities:-
Aswale 4/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 :::writ petitionl.1662.15 with 328.doc i The Chief Officer, Mumbai Building, Repair and Redevelopment Board, Grihnirman Bhavan, Bandra(East), Mumbai; (emphasis supplied) ii The Municipal Commissioner, Brihanmumbai, Mumbai;
iii The Metropolitan Commissioner, Mumbai Metropolitan Region Development Authority, Bandra Kurla Complex, Bandra (East), Mumbai;
iv The Deputy Police Commissioner (Transport) Mumbai Pochkhanwala Road, Worli, Mumbai;
v The Chief Architect Public Constitution Section, Fort, Mumbai;ig vi The Deputy Director, Town Planning Brihanmumbai, Mumbai;
vii The Government appointed expert in Home Finance' viii The Director, Engineering Services and Projects, Brihanmumbai Mahanagarpalika, Mumbai."
(emphasis supplied) As can be seen from the authorities that constitute the HPC, the Chief Officer of MBRRB, along with other high ranking officials are all members of the HPC.
6. In this factual background, Mr. Warunjikar, the learned counsel appearing on behalf of the Petitioners, contended that the Aswale 5/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc notices issued to the Petitioners under Section 95A of the MHAD Act, 1976 were bad in law as they did not comply with the conditions as set out in the said section. He submitted that section 95A (1) stipulates two conditions that have to be fulfilled. The first condition is where the owner of the building or members of the proposed Co-operative Housing Society who are occupiers of the said building, submit a proposal to the Board for reconstruction of the building, the same can be done only after obtaining the written consent of not less than 70% of the total occupiers of that building.
The second condition is that a No Objection Certificate for such reconstruction has to be issued by the MBRRB to the owner or to the proposed Co-operative Housing Society, as the case may be. It is only when both these conditions are fulfilled that it would be binding on all the occupiers to vacate the premises. According to Mr. Warunjikar, in the present case, the second condition, namely the NOC for reconstruction of the building from the MBRRB has not been obtained, and therefore, there was no question of evicting the Petitioners under the provisions of Section 95A(2). Though several other contentions have been raised in the Writ Petition, this was the Aswale 6/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc only argument that was pressed before us.
7. After perusing the papers and proceedings in Writ Petition (L) No.1662 of 2015 and hearing the counsel at some length, we are unable to agree with the submissions made by Mr. Warunjikar. By Government Notification dated 2nd March, 2009 DCR 33(9) was substituted and Appendix IIIA was added to the said revised DCR 33(9). Thereafter by Government Notification dated 9 th September 2014, DCR 33(9) and Appendix IIIA were again substituted wherein some changes were made, though not really relevant for deciding the controversy before us. In a nutshell, DCR 33(9) read with Appendix IIIA allows re-development in the island city of Mumbai over clusters, each of which has a minimum area of 4,000 square meters bounded by existing distinguishing boundaries such as roads, nallahs, railway lines etc., and which consist of a mix of structures of different characteristics as provided in Appendix IIIA. Appendix IIIA interalia envisages the constitution of the HPC which would approve the schemes with the previous sanction of the Government under DCR 33(9). On approval by this HPC, the Aswale 7/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc proposal would be submitted to MCGM for approval of the plans.
Accordingly, the Government of Maharashtra constituted the HPC as per the provisions of Appendix IIIA to DCR 33(9).
8. In the present case, the approval in the form of the LOI, has been granted by the HPC to Respondent No.3 - SBUT for cluster re-development of the Bhendi Bazaar Area. The HPC, consists of several high ranking officials as mentioned earlier, including the Chief Officer of the Mumbai Building Repair and Redevelopment Board (MBRRB) (Respondent No.1) which is the board that is required to give its No Objection as contemplated under Section 95A.
9. Since the HPC (comprising of high ranking officials from authorities like the MBRRB and MCGM) has issued the LOI in favour of Respondent No.3 - SBUT, we are clearly of the view that no separate or independent No Objection is required as contemplated Section 95A. The reason for coming to this conclusion is one which is quite simple. The NOC contemplated under section 95A is issued Aswale 8/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc by the MBRRB under section 79 of the MHAD Act, 1976. The highest ranking officer of the MBRRB is a party to granting the LOI and it would be futile to suggest that this very officer whilst agreeing to grant the LOI in favour of Respondent No.3 - SBUT, would be in a position to take a contrary stand whilst issuing a NOC as contemplated under section 95A of the MHAD Act, 1976. If this was indeed the case then the MBRRB would be effectively wearing two different hats in relation to the same re-development and could give two contrary decisions (one of granting the LOI and allowing re-development under DCR 33(9), and the other, withholding the NOC as contemplated under section 95A and not allowing the very same re-development). We do not think that either DCR 33(9) read with Appendix IIIA or sections 79 or 95A of the MHAD Act, 1976 contemplate such an absurd result. If the argument of Mr Warunjikar is to be accepted, it would mean that for every single building/structure in a cluster re-development / Urban Renewal Scheme, a separate and independent NOC would have to be obtained from the MBRRB. This would defeat the very purpose of DCR 33(9) which specifically deals with cluster re-development / Urban Aswale 9/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc Renewal Schemes. We are therefore clearly of the view that once the HPC has issued the LOI for cluster re-development, there is no question of again seeking the NOC of the MBRRB as contemplated under Section 95A(1). The NOC as contemplated under section 95A(1) of the MHAD Act, 1976 is deemed to have been granted in view of the fact that the Chief Officer of the MBRRB is a member of the very same HPC that has granted the LOI.
10. We find support to this interpretation also from a Division Bench judgement of this Court in the case of Bhartiya Vidya Bhavan (Bavla Compound) Co-op. Housing Society (proposed) and Others V/s State of Maharashtra and Others, 1 to which one of us (V. M. Kanade, J) was a party. Though the issue involved in the said Writ Petition was quite different than the one raised before us, the Division Bench construed the provisions of Section 79 of MHAD Act, 1976 and came to the conclusion that the No Objection Certificate granted under DCR 33(9) is in consonance with Section 79. The relevant portion of the said judgment reads 1 Writ Petition No.1680 of 2014 decided on 25.03.2015 Aswale 10/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc thus:-
"18. ................................. It is contended in the impugned order/letter that the NOC which was granted to the Petitioners-
Society and Petitioner No.5 is contrary to Section 79 of the MHAD Act, 1976. The said reasoning giving by Urban Development Department is without any substance. DCR 33(9) gives sanction to cluster development and the Petitioners' case clearly falls within the said parameters given in the said DCR 33(9). Section 79 of the Maharashtra Housing and Area Development Act, 1976 reads as under.
"79 Power of Board to undertake building repairs, building reconstruction and occupiers, housing and rehabilitation schemes - (1) The Authority may, on such terms and conditions as it may think fit to impose, entrust to the Board the framing and execution of schemes for building repairs or for reconstruction of buildings or for housing and rehabilitation of dishoushed occupiers, whether provided by this Act or not and the Board shall thereupon undertake the framing and execution of such schemes as if it had been provided for by this Act.
(2) The Board may, on such terms and conditions as may be agreed upon, and with the previous approval of the Authority -
(a) hand over the execution under its own supervision of any, building repairs scheme, building reconstruction scheme, or dishoused occupiers housing scheme to the Municipal Corporation or to a cooperative society or to any other agency recognized for the purpose by the Board, as it may deem necessary, and
b) transfer by sale, exchange or otherwise in any manner whatsoever any new building constructed on any land acquired under this Chapter to any cooperative society, if it is formed by all the occupiers, or to apartment owners for the purposes of the Maharashtra Apartment Ownership Act, 1970 (Mah. XV of 1971),(the apartment owners being all such occupiers)"Aswale 11/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 :::
writ petitionl.1662.15 with 328.doc It cannot be said under any stretch of imagination that NOC which is granted under DCR 33(9) is not in consonance with Section 79(a). ......................"
(emphasis supplied)
11. In fact this interpretation has been correctly understood even by the Government of Maharashtra as is clear from their letter dated 20th March, 2012 written to MHADA as well as to the Chief Officer, MBRRB. The subject of the said letter reflects initiating further action in connection with recognized re-development schemes under DCR 33(9). Paragraph 6 of the said letter clearly states that in the event the tenant opposes to vacate, to initiate necessary action by shifting the concerned tenant from the old building as per the provisions of the MHAD Act, 1976 while implementing the cluster re-development scheme.
12. In this view of the matter, we find no substance in the argument of Mr Warunjikar that since the NOC as contemplated under Section 95A(1) was not obtained for reconstruction of the said Sardharia building, the occupants thereof could not be summarily evicted under Section 95A(2).
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13. Since no other argument has been canvassed before us, we have not dealt with the other grounds raised in Writ Petition (L) No.1662 of 2015.
14. Before parting, however, we must note that Respondent No.3 - SBUT has filed an additional affidavit dated 24 th June, 2015 giving certain undertakings therein. We direct that the undertakings as mentioned in the said affidavit shall be complied with by Respondent No.3 - SBUT. With these observations, Writ Petition (L) No.1662 of 2015 is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
15. Having said this, we shall now deal with Writ Petition (L) No.328 of 2015. In this Writ Petition, Respondent No.1 is MBRRB and Respondent No.2 is the Saifee Burhani Upliftment Trust (SBUT). The Petitioners, in Writ Petition (L) No.328 of 2015 as it originally stood, have prayed for the following reliefs:-
"(a) Be pleased to direct the respondent Nos.1 to place on Aswale 13/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc record before this Hon'ble High Court on oath as to what steps the respondent Nos.1 have taken for discharging the duties casted under different enactments with reference to the dilapidated building in question namely building standing on City Survey No.3635, building No.123-125, Sardharia Building, Pakmodia Street, Bhendi Bazar, Mumbai, within such period as this Hon'ble High Court may deem fit and proper;
(b) Be pleased to direct the respondent Nos.1 to disclose on oath before this Hon'ble High Court as to what steps the respondent Nos.1 have taken and/or are proposing to take in respect of carrying out repairs in respect of the said building in question as mentioned hereinabove, within such period as this Hon'ble High Court may deem fit and proper;ig
(c) Further be pleased to direct the respondent No.2 herein to disclose on oath before this Hon'ble High Court as to what steps the respondent No.2 has taken for carrying out the structural repairs in respect of the said building in question in the capacity as a owner of the building having various duties under the provisions of the MHADA Act.
(d) Be pleased to appoint a structural engineer/consultant from the panel of the Structural Consultants/Engineers on the Panel of this Hon'ble High Court with a further direction, directing them to inspect the present building in question and submit a report about the stability of the said building in question as well as whether demolition is necessary for carrying out the repairs is sufficient and the report be submitted within such period as this Hon'ble High Court may deem fit and proper'
(e) Upon receipt of the above referred report, as mentioned in prayer clause (d) above, be pleased to direct the respondents herein to carry out such repairs as this Hon'ble High Court may deem fit and proper in respect of the building in question.
(f) Be pleased to direct respondent No.2 to enter into an registered agreement for permanent alternate accommodation with the petitioners of the above Aswale 14/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc mentioned building."
16. Thereafter, by way of an amendment, which was allowed by an order dated 10th February 2015, two additional prayers were inserted which read as under:-
"bb) Be pleased to quash and set aside the order dated 09.08.2012 passed by respondent No.1 in favour of respondent No.2.
bbb) Be please to stay the order dated 09.08.2012 passed by respondent No.1 in favour of respondent No.2."
17. As far as prayer clauses (a) to (f) are concerned, we are of the view that these prayers cannot be granted in a Writ Petition as the same are vague and omnibus in nature. In any event of the matter, we are of the view that these prayers really do not survive in view of the fact that we have already upheld the validity of the LOI dated 10th August, 2011 in relation to the cluster re-development of the Bhendi Bazaar Area and the Petitioner's building is one of the buildings included in the said cluster re-development. We have upheld the validity of this LOI in Writ Petition No.13 of 2015 wherein the son of Petitioner No.1 (and who is the power of attorney holder in the present Writ Petition) had challenged the LOI on Aswale 15/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 ::: writ petitionl.1662.15 with 328.doc various grounds. In this view of the matter, we do not think that prayers (a) to (f) can be granted in favour of the Petitioners.
18. On the same parity of reasoning even the amended prayers (bb) and (bbb) would not survive. In view of the fact that cluster re-development of the Bhendi Bazaar Area has been sanctioned vide LOI dated 10th August, 2011 and the fact that the building in which the Petitioners reside, namely Sardharia building, forms part of the said cluster re-development, there is no question of setting aside the order dated 9 th August, 2012 passed by Respondent No.1 under which demolition of the Petitioners' building, along with other buildings, has been ordered. In this view of the matter, there is no merit in Writ Petition (L) No.328 of 2015 and the same is hereby dismissed. In facts and circumstances of the case, there shall be no order as to costs.
(B. P. COLABAWALLA J.) (V. M. KANADE J.) Aswale 16/16 ::: Uploaded on - 14/07/2015 ::: Downloaded on - 10/09/2015 19:42:51 :::