Bombay High Court
Shantadevi M. Mehta And Ors vs The Executive Engineer Mhada And Ors on 15 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3220
Author: Milind N. Jadhav
Bench: Nitin Jamdar, Milind N. Jadhav
32.os.wpl.5245.20.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
WRIT PETITION (ST) NO.5245 OF 2020
Shantadevi M. Mehta & Ors. .. Petitioners
Versus
The Executive Engineer, MHADA & Ors. .. Respondents
Mr. Rajiv Narula i/b. Jhangiani Narula & Associates for
Petitioners.
Mr. Akshay Shinde, Advocate for Respondent Nos.1 & 2 -
MHADA.
Ms. Uma Palsuledesai, AGP for Respondent - State.
Mr. Mayur Khandeparkar a/w. Mr. Chaudhari i/b. Mr. Chinmaya
Acharya for Respondent No.5.
CORAM : NITIN JAMDAR &
MILIND N. JADHAV, JJ.
DATE : 15 DECEMBER 2020.
ORDER :(Per : Milind N. Jadhav, J.) . Heard the learned counsel for the parties.
2. This petition has been filed under Article 226 and 227 of the Constitution of India by the Petitioners for seeking the following reliefs:
"a) That this Hon'ble Court be pleased to pass a writ of mandamus or such other writ in the nature of mandamus as may be deem fit and proper by this Hon'ble 1 of 12
32.os.wpl.5245.20.doc Court directing the Respondent No.3 to consider and decide application dated 5/8/2002 made by the tenants Association for acquisition of the Building and land under Section 103-B of the Maharashtra Housing & Area Development Act, 1976 after giving opportunity to furnish and comply with the requirement of documents if any raised.
b) That this Hon'ble Court be pleased to pass writ of certiorari for record and proceedings with regard to issuance of NOC dated 30.8.2020 (Ex.K) and revised NOC dated 1/3/2019 and after going through the validity and legality thereof be pleased to quash and set aside the same.
c) That this Hon'ble Court be pleased to call for the records and proceedings pertaining to notice issued under Section 95-A of the Maharashtra Housing & Area Development Act, 1976 to the Petitioners and after examining the legality and validity of Impugned Orders dated 24/6/2020 (Ex.T), 21st September 2020 (Ex,X Colly) and 22nd October 2020 (Ex.AA Colly) be pleased to quash and set aside the same."
3. It will be apposite to briefly state the relevant facts which are not in dispute.
i. Petitioner Nos.1 to 9 are commercial tenants whereas Petitioner No.10 is residential tenant of building known as Kapole Nivas situated at S.V.P. Road, Mumbai - 400004.
2 of 12
32.os.wpl.5245.20.doc Municipal Corporation of Greater Mumbai is the owner of land on which the building is standing. The said land was leased to "Dullabhadas Shamhui Trust' a public Trust in 1933 and the building was constructed.
ii. In 2004 Respondent No.5 Firm acquired leasehold rights in respect of the building and in the year 2010 decided to redevelop under DCR 33 (7) r/w Appendix VIII-A as the building was categorised as A Category cessed structure and was dilapidated. All existing residential tenants at the then point of time conveyed their consent on the express promise of Respondent No.5 that they shall be rehabilitated and offered similar carpet area as per their holding.
iii. On 27 January 2011, the Sectional Inspector of MHADA inspected the property and prepared the measurement report dated 21 February 2011.
iv. Respondent No.2 Maharashtra Housing and Area Development Authority (for short 'MHADA') issued NOC on 30 October 2011 for redevelopment of the building and certified a list of 55 tenants as eligible out of which 39 are residential and 16 commercial. This NOC was issued on the basis of consent of 70% tenants having been obtained by Respondent No.5.
v. On 2 April 2018, IOD has been issued in pursuance of 3 of 12
32.os.wpl.5245.20.doc NOC granted by MHADA. A revised NOC is issued on 1 March 2019. Various permissions have been procured and statutory charges paid by Respondent No.5 for redevelopment thereafter.
vi. On 7 September 2019 and 9 September 2019 Respondent No.5 called upon MHADA to invoke action under Section 95A of MHADA Act against the Occupants / Petitioners. This was followed by filing of Writ Petition No.3176 of 2019 by Respondent No.5 in this Court for seeking direction to MHADA to invoke the aforesaid action. Writ petition was disposed of by order dated 10 December 2019 directing MHADA to consider the application for summary eviction filed by Respondent No.5 Developer in accordance with law within a period of six weeks.
vii. On 31 January 2020 and 15 February 2020 some of the Occupants / Petitioners addressed letter to Respondent No.1 and Chairman of Respondent No.3 Board, inter alia, stating that proceedings for acquisition under Section 103-B of MHADA Act which were filed by the erstwhile Tenants' Association had remained pending since 2002 and the same be cleared by Respondent No.5 Developer before undertaking redevelopment. MHADA was called upon to invoke action against Respondent No.5 for filing false undertaking that the tenants had not submitted any proposal 4 of 12
32.os.wpl.5245.20.doc under Section 103-B of MHADA Act and requiring Respondent No.5 to execute permanent alternate agreement with all tenants.
viii. On 12 February 2020, the Housing Development Department of Respondent No.4 State issued reply and clarification to Respondent No.5 that no permission for acquisition under Section 103-B was issued by the State.
ix. Respondent No.1 heard the Petitioners / Tenants on 24 June 2020 and 29 July 2020 in Section 95A proceedings initiated by Respondent No.5. On 24 June 2020 summary eviction of some of the Petitioners and other tenants was directed by Respondent No.1. On 21 September 2020 and 19 October 2020 eviction notices for possession were issued by Respondent No.1 to the Petitioners / Tenants calling upon them to handover vacant possession within 48 hours.
x. Petitioner have prayed for a direction to MHADA to decide Application for acquisition of the building dated 5 August 2002 under Section 103-B, impugned the eviction order dated 24 June 2020 and eviction notices dated 21 September 2020 and 19 October 2020.
4. Mr. Rajiv Narula learned counsel appearing for Petitioners submitted that Petitioners came to know about the pendency of Section 103-B proceedings only after 21 January 2020 and 5 of 12
32.os.wpl.5245.20.doc thereafter immediately addressed a representation to Respondent Nos.1 and 3. Petitioners were not aware about Section 103-B proceedings before this date. Therefore, the NOC dated 30 August 2011 issued in favour of Respondent No.5 Developer on the basis of false representation made by Developer in affidavit dated 5 August 2010 was null and void including any further revised NOC. Petitioner's case is that NOC was obtained by fraud by Respondent No.5 Developer, no process under Section 95A of MHADA Act could have been issued and hence all consequential proceedings thereafter i.e. the impugned eviction order dated 24 June 2020 and impugned eviction notices dated 21 September 2020 and 22 October 2020 are illegal and without validity of law. According to Petitioners pendency of Section 103-B acquisition proceedings was not even considered by the Appropriate Authority while passing the impugned eviction order dated 24 June 2020.
5. PER CONTRA, Mr. Mayur Khandeparkar learned counsel appearing for the contesting Respondent No.5 Developer submitted that Appropriate Authority has passed a reasoned order under Section 95A. By letter dated 12 February 2020, it was clarified that though application under Section 103-B was received the Respondent No.4 State had not accorded permission. Petitioners were responsible for prolonging and stalling the entire redevelopment project. The building was dilapidated and all residential occupants had vacated their premises except one. Respondent No.5 Developer had obtained consent of more than 6 of 12
32.os.wpl.5245.20.doc 70% tenants as required under law and pursued redevelopment, but because of non co-operation of Petitioners, was constrained to approach this Court in Writ Petition No.3176 of 2019 for seeking action of summary eviction under Section 95A of MHADA Act. Said writ petition was disposed of on 10 December 2019. Respondent No.5 was committed to provide permanent alternate accommodation free of cost to all tenants including Petitioners and also agreed to pay transit rent to each of the Petitioners / Tenants. Petitioners were entitled to permanent alternate accommodation of area certified by Respondent No.1 MHADA and the certified list of such eligible tenants was issued by MHADA in the year 2011. There was no challenge made by Petitioners to this certified list of tenants and the areas certified by MHADA in the year 2011 till date and now a belated claim was made for a higher area. Respondent No.5 has committed to either provide temporary transit accommodation immediately against vacating the premises or pay monthly rent @ Rs.100 per sq ft per month on the certified carpet area to each of the Petitioners in case of residential accommodation and a revised rate of Rs.200 per sq ft per month in case of commercial tenants. Respondent No.5 Developer offered to pay advance rent of one year at the time of vacating the premises and enhance the rent by 10% after every two years until permanent alternate accommodation was offered. Construction was to be completed in 48 months after issuance of Commencement Certificate and agreement for permanent alternate accommodation was to be executed before obtaining Commencement Certificate as 7 of 12
32.os.wpl.5245.20.doc per condition 22 of NOC. Thus Petitioners were adequately protected. There was no grievance of the Petitioners after participating in the redevelopment process from 2011 onwards and the issue now raised regarding pending Section 103-B acquisition proceedings initiated in the year 2002 by the then tenant Association was squarely answered by the letter dated 12 February 2020. Section 103-B proceedings therefore had become redundant and infructuous as also Petitioners' claim was not maintainable due to delay and laches as also subsequent events regarding redevelopment. Invoking the same now by the Petitioners was an attempt to browbeat the Developer into submission for higher returns and stall redevelopment.
6. We have heard the respective counsel for the parties and MHADA, perused the pleadings and considered the same.
7. The principal relief in prayer clauses 'a' and 'b' pertain to consideration of application dated 5 August 2002 made by tenant's association under Section 103-B of MHADA Act. This request is made by Petitioners in February 2020 for the first time. In the meanwhile from 2010 - 2011 Petitioners along with remaining 45 tenants participated in the redevelopment proceedings all along, which were undertaken by the Appropriate Authority. The first NOC was issued on 30 October 2011 by MHADA and revised NOC is now issued on March 2019 to Respondent No.5 Developer. The NOC contains 29 specific 8 of 12
32.os.wpl.5245.20.doc conditions, inter alia, pertaining to redevelopment of the property Kapole Niwas, in accordance with modified D.C. Regulation 33 (7) on various terms and conditions. The conditions elaborated in the NOC take care of the interest of Tenants with all checks and balances. It is also pertinent to note that Petitioners have participated in the redevelopment process since 2010 - 2011 and the Petitioners now cannot be heard to retract from the said position since they have not challenged the NOC dated 31 August 2011 for a period of more than 9 years after it was issued. The correspondence annexed to the petition shows that Petitioners and all other tenants were approached by Respondent No.5 Developer as far back as on 25 March 2010 and 29 July 2011 with respect to the terms and conditions of redevelopment.
8. It appears that, the Petitioners / Tenants were well aware of redevelopment of the property since the year 2010 - 2011 onwards. It is also an admitted fact that out of 55 tenants a majority of the tenants have already executed agreement for permanent alternate accommodation with Respondent No.5 Developer. There is also no explanation given in the petition for the delay of 18 years in approaching this Court to invoke the pending 103-B proceedings. The principle prayers in this petition namely prayer clauses 'a' and 'b' therefore suffer from gross delay and laches without any plausible explanation by the Petitioners and more specifically in view of the Government not giving any permission for acquisition. Considering that the Petitioners rights have been crystallized and most importantly Respondent No.5 Developer having been issued 9 of 12
32.os.wpl.5245.20.doc the NOC for redevelopment on 30 August 2011 and the various steps taken thereafter, we are not inclined to grant any relief in terms of prayer clauses 'a' and 'b' of the petition. Hence, petition fails in so far as prayer clauses 'a' and 'b' are concerned.
9. In so far as prayer clause 'c' of the petition is concerned, the interest of the Petitioners being eligible tenants is required to be protected as Petitioners are entitled to permanent alternate accommodation and transit rent as per law. The scope of Section 95-A of the MHADA Act is limited and the authority needs to examine whether the stipulated numbers have consented, whether statutory permissions like NOC are in order and whether the developer has provided adequate transit accommodation / transit rent. Once this requirement is fulfilled the authority under Section 95-A of the MHADA Act has to direct the Tenant / Occupants to shift to the transit accommodation awaiting redevelopment. Though Respondent No.5 has expressed willingness to provide temporary transit accommodation to some of the non cooperating tenants, today it appears that Petitioners before us are interested in the same and would be happy to receive transit rent from Respondent No.5.
10. On instructions, Respondent No.5 is ready and willing to provide transit rent @ Rs.100/- per sq ft per month for residential premises and Rs.200/- per sq ft per month for commercial premises in terms of the area certified by MHADA and which is 10 of 12
32.os.wpl.5245.20.doc mentioned in column No.5 of Exhibit 'H' to the affidavit in reply dated 4 November 2020 filed by Respondent No.5. With this offer commercial tenants would be entitled to rent @ Rs.200/- per sq ft per month for the area as mentioned in column No.5 of Exhibit 'H' whereas residential tenants shall be entitled to rent @ Rs.100/- per sq ft per month.
11. Learned counsel for Respondent No.5 after taking instructions has specifically conveyed that residential tenants shall be given transit rent @ Rs.100/- per sq ft per month of the certified area in possession of each tenant as on 15 July 2011. This rate in so far as commercial tenants are concerned is enhanced to Rs.200/- per sq ft per month for certified areas in possession of the commercial tenants. We note that except the Petitioners all other tenants have already vacated the building. Petitioners have remained conspicuously silent in challenging 103-B proceedings since 2002 and after 2010 onwards have actively participated in the redevelopment proceedings and have also not challenged the NOC dated 30 August 2011 for a period of 9 years thereafter. Petitioners have not sought rectification for an almost a decade in challenging the above NOC.
12. In view of the above, we dispose of the petition by the following order:-
a. Petitioners shall hand over possession of their premises to Respondent No.5 Developer within a period of two 11 of 12
32.os.wpl.5245.20.doc weeks from the date when this order is uploaded;
b. Respondent No.5 Developer shall pay transit rent @ Rs.100/- per sq ft per month in case of residential premises and @ Rs.200/- per sq ft per month in case of commercial premises for the certified area in possession of Petitioners as per column No.5 in Exhibit 'H' with 10% enhancement every two years as agreed upon by the Developer;
c. If Petitioners do not vacate and hand over possession to Respondent No.5 Developer as per this order then Respondent No.5 Developer will be free to execute the impugned orders;
d. Respondent No.5 Developer shall execute agreement for permanent alternate accommodation with all eligible Tenants of the Building including the Petitioners before issuance of Commencement Certificate and shall submit the same to MHADA / MCGM before issuance of Commencement Certificate as required by the NOC;
e. Any other condition as already agreed upon by Respondent No.5 Developer with the Tenants / Petitioners which is not the subject matter of this petition shall be complied with by Respondent No.5.
13. Writ petition is disposed of in above terms.
[ MILIND N. JADHAV, J. ] [ NITIN JAMDAR, J. ]
Ravindra Digitally signed
by Ravindra M. 12 of 12
M. Amberkar
Date: 2020.12.17
Amberkar 17:54:26 +0530