Bombay High Court
Borivali Shree Krupa Co-Operative ... vs Deputy Registrar, C.S. R-South Ward, ... on 24 February, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
5.WP5448_2018.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5448 OF 2018
Borivali Shree Krupa Cooperative Housing ... Petitioner
Society
Versus
1. Deputy Registrar, C.S. R-South Ward,
Mumbai.
2. Divisional Joint Registrar, Cooperative
Societies, Mumbai.
3. SBM Realtors Pvt. Ltd. ...Respondents
Builders, Developers & Contractors
Ms. J.A. Sarkhot i/b. Devashree Raut a/w. Mubeen Sirkhot and Mr.
Ganesh Narula for the petitioner.
Mr. P.G. Lad a/w. Ms. Sayali Apte for respondent no.1-MHADA.
Mr. Sachin H. Kankal, AGP for respondent no. 2/State.
_______________________
CORAM: G. S. KULKARNI, J.
DATED: 24 February 2023
_______________________
ORAL JUDGMENT
1. Rule. Rule returnable forthwith. Respondent nos. 1 and 2 waives service. Respondent no. 3, though served, is not represented. By consent heard finally.
2. Heard Ms. Sarkhot, learned counsel for the petitioner, Mr. Lad, learned counsel for respondent no. 1-MHADA and Mr. Kankal, learned AGP for the State.
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3. This petition brings to the forefront the anxiety of the petitioner-society in regard to its continuous attempts from the year 2010 to undertake redevelopment of its premises. In an additional affidavit as filed on behalf of the petitioner, it is pointed out by the petitioner that the condition of the building has become dangerous. There is a structural audit report which has categorized the petitioner's building in the "C-1" category, namely, of being a dilapidated building and likely to collapse. The building of the petitioner is stated to be Building no. 27 in Gorai Nagar MHB Colony, Gorai Road, Borivli (W), which is on a layout/plot as allotted by respondent no. 1-Mumbai Housing and Area Development (for short " the MHADA"). There are other buildings in the vicinity, in respect of which independent cooperative housing societies are formed, which are also on plots allotted to such Societies by the MHADA. The buildings of these other societies had also become old and dilapidated, as these buildings were also constructed in or about the year 1978 and were suffering deterioration. For such reason, there was a move on behalf of an association of these societies, that a joint development popularly known as "cluster redevelopment" be undertaken, after obtaining an approval/permission from the MHADA, the plots housing these buildings being long-leasehold plots of the MHADA.
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4. It may be stated that earlier, the petitioner-society had passed a resolution that it was agreeable for a joint redevelopment with other societies, however, in the year 2012 a decision was taken by the petitioner society to sever itself from redevelopment to be undertaken by the other societies or by their association. The petitioner thus intended to undertake the redevelopment of its building independently. It also appears that the association of the societies had appointed respondent no. 3-SBM Realtors Pvt. Ltd. as a developer to undertake redevelopment of the buildings of such member societies,however, it appears that disputes had arisen in regard to such cluster redevelopment.
5. Learned counsel for the petitioner has drawn the Court's attention to a decision taken by the MHADA dated 20 October, 2014 that some of the plots, housing building nos. 1, 2, 3,4, 8, 9, 11, 12, 13, 14, 17, 18, 20, 21, 23 and 24, i.e., 16 buildings having 1280 tenements could proceed for cluster redevelopment. These 16 buildings were part of total 26 buildings. It was observed that remaining 10 buildings (which would include the petitioner's building) were free to proceed for an independent redevelopment. Such decision is annexed at Page nos. 226 and 227 of the Paper book, being extracts from relevant file at N/6 and N/27. From the perusal of a copy of the said resolution/decision of the MHADA, it is seen that such resolution/decision Page 3 of 10 24 February 2023 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 07/06/2023 01:19:23 :::
5.WP5448_2018.DOC has been approved at the highest level of the MHADA. The petitioner relying on the said decision of the MHADA approached the Deputy Registrar, MHADA with a proposal to initiate redevelopment of its premises, by appointing one "M/s. Kaustubh Constructions Pvt. Ltd". The Deputy Registrar had passed an order dated 12 October, 2015 on the petitioner's application granting an approval to the petitioner to undertake redevelopment by appointing M/s. Kaustubh Constructions Pvt. Ltd.
6. However, it appears that although the petitioner had disassociated itself from the association of the other Societies (Federation of Societies) in the year 2012, respondent no. 3 who was the developer appointed by the said association of societies, had approached the Deputy Registrar contending that the petitioner's building ought to form part of the cluster redevelopment. This was certainly oblivious to the decision taken by MHADA permitting independent redevelopment of the ten buildings in its 2014 decision as noted above, which approved a cluster re-development only of 16 buildings excluding the petitioner's building from being part of such cluster re-development. The Deputy Registrar however accepted the contentions as urged on behalf of respondent no. 3, and passed an order dated 3 March, 2017 revoking approval granted to the petitioner vide his order dated 12 October, 2015. The petitioner, being aggrieved by the said decision of the Deputy Registrar, Page 4 of 10 24 February 2023 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 07/06/2023 01:19:23 :::
5.WP5448_2018.DOC approached the Divisional Joint Registrar in a Revision Application as filed under section 154 of the Maharashtra Cooperative Societies Act. By the impugned order, the said revision application has been dismissed.
7. Learned counsel for the petitioner in assailing the impugned order would submit that there is no application of mind by the Divisional Joint Registrar on several aspects. She would firstly contend that it is clear from the record and as accepted by MHADA, that the petitioner was not part of cluster redevelopment which was in respect of 16 buildings, which excluded the petitioner which was clear from the MHADA's resolution dated 20 October, 2014. She submits that this decision of the MHADA was not taken into consideration or referred in the impugned orders. It is submitted when such position on record was absolutely clear, respondent no. 3 could not have foisted any cluster redevelopment on the petitioner and contrary to the decision of the MHADA taken in the year 2014. She submits that the petitioner-society had already taken a decision to remain independent of the cluster re-development, as far back in the year 2012, hence, respondent no. 3 could not have asserted any of its rights against the petitioner. It is next submitted that in the absence of any independent contract of the petitioner with respondent no. 3, it was not appropriate for respondent no. 3 to foist any cluster re-development on the petitioner only at the hands of respondent no. 3. She submits that even Page 5 of 10 24 February 2023 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 07/06/2023 01:19:23 :::
5.WP5448_2018.DOC otherwise in respect of other 16 other societies, respondent no. 3 had not taken any action whatsoever, to commence the redevelopment, as not a single brick was laid by him in respect of any of such 16 buildings. In support of such contention, she has referred to the order dated 1 August, 2022 passed by MHADA (Page 479 Exhibit 5) permitting independent redevelopment to few societies which were a part of the cluster re-development, on the ground that respondent no. 3- developer had failed to commence redevelopment. It appears that such decision was taken after a show cause notice was issued to respondent no. 3 and after a hearing on such show cause notice had taken place. It was observed that no convincing explanation was offered by respondent no. 3. It is informed by learned counsel for the petitioner that to the knowledge of the petitioner, no proceedings are initiated by respondent no. 3 assailing the said decision of MHADA, cancelling the NOC granted for redevelopment at the hands of respondent no. 3. It was also categorically observed in such decision of the MHADA, that for 12 years redevelopment was not commenced by respondent no. 3 and accordingly, also a NOC issued for transit rent in Building no. 15 on share basis in favour of respondent no. 3 was cancelled and Executive Engineer was directed to take possession of the transit camp, which was to entail to the benefit of respondent no. 3. Page 6 of 10
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8. It is in the above circumstances, the petitioner is before the Court contending that the things have worsened in regard to the petitioners building which is required to be demolished as it has become extremely dangerous and accordingly it is an urgent need that redevelopment needs to commence. It is submitted that in any event, respondent no. 3 has no concern whatsoever in respect of redevelopment being undertaken by the petitioner-society, as clear from the decision of MHADA dated 20 October, 2014. It is also submitted that in any case no proceedings are filed by respondent no. 3, so as to obtain any reliefs after decision dated 1 August, 2022 was taken by MHADA cancelling the NOC in his favour. It is on such backdrop, learned counsel for the petitioner would pray that the reliefs as prayed for in the present petition be granted.
9. I have heard learned counsel for the parties. I have also perused the documents on record, relevant orders as noted above as also the impugned order.
10. Mr. Lad learned counsel for the MHADA has fairly stated that from the orders as passed by MHADA, there is no impediment for the petitioner to undertake its redevelopment by appointing its own developer, however, subject to approval which may be granted by MHADA.
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11. From the perusal of the record, it appears that clearly the petitioner had disassociated itself from any cluster redevelopment and/or from the association of other Societies. Thus, the petitioner has no concern and has nothing to do with whatever the other Societies are doing, in respect of their redevelopment. This position is clear from the order dated 20 October, 2014 passed by MHADA as discussed above. However, it appears that there is an absolute error on the part of the Deputy Registrar in passing an order dated 3 March, 2017, when he recalled his prior order dated 12 October, 2014 granting NOC in favour of the petitioner-Society, recognizing that the petitioner-society had already disassociated itself from any redevelopment being undertaken along with other cluster of buildings. This basic aspect has been missed in the impugned orders being passed by the authorities below.
12. In any event, it appears that as on date, respondent no. 3 has not proceeded to commence redevelopment in respect of other buildings as well, consequently in July, 2022 MHADA had taken a well considered decision that the rights of respondent no. 3 in respect of the cluster development were required to be cancelled and accordingly such rights were cancelled. MHADA, in fact, has also permitted other 5 Societies, which were part of the cluster development, to proceed for independent self-redevelopment. Page 8 of 10
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13. In these circumstances, in any event, it was illegal and far from correct for respondent no. 3 to assert any rights on the petitioner so as to foist its redevelopment rights on the petitioner. The Divisional Joint Registrar has seriously erred in overlooking the clear orders passed by the MHADA in that regard. Also, the Divisional Joint Registrar in passing such drastic order has caused a serious prejudice to the petitioner-society by delaying the redevelopment of the petitioner's building, overlooking that the condition of the building was ruinous as also to the fact that there was no reason whatsoever to pass the impugned order, when the MHADA itself had permitted the petitioner to undertake the re-development of its building as observed above. In fact the impugned order passed by the Divisional Joint Registrar appears to be not only factually perverse but also legally perverse, seriously affecting the fundamental rights of the members of the petitioner to live in safe buildings. Looked from any angle, the impugned orders cannot be sustained and are required to be quashed and set aside.
14. For the aforesaid reasons, the petition needs to succeed. Rule is made absolute in terms of prayer clauses (a) and (b) which reads thus :-
"a) The record and proceedings of Case No. 951 of 2017 before the Respondent no. 1 and the record and proceedings of the Revision Application No. 200 of 2017 before the Respondent no. 2, i.e. the Divisional Joint Registrar, be called for;
b) That by appropriate Writ, Order or direction, the impugned order dated 03.03.2017 passed by the respondent no. 1 in Case no. 951 of 2017 as well as the Page 9 of 10 24 February 2023 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 07/06/2023 01:19:23 :::
5.WP5448_2018.DOC order dated 24.07.2017 passed by the respondent no. 2 in Revision Application No. 200 of 2017 be quashed and set aside."
15. For the sake of clarification, it is observed that the petitioner-society is permitted to immediately take steps to commence redevelopment. MHADA shall accord all approvals considering plight of the building and the suffering which is already caused to the members of the petitioner-society on account of delay caused by present litigation and the perverse order passed by the Divisional Joint Registrar. Copy of this order be forwarded to the Divisional Joint Registrar for his appraisal.
16. Needless to observe that all formalities be complied by the petitioner when the proposal is being put up for redevelopment.
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