Bombay High Court
Vasant Kheraj Bhanushali And Others vs Goregaon Siddharth Nagar Sahakari on 10 February, 2011
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud, Anoop V.Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGNAL CIVIL JURISDICTION
WRIT PETITION (LODG.) NO.851 OF 2010
Vasant Kheraj Bhanushali and others ..Petitioners.
versus
Goregaon Siddharth Nagar Sahakari
Grih Nirman Sanstha Ltd. & Ors. ..Respondents.
WITH
WRIT PETITION (LODG.) NO.2690 OF 2010
Sandip Sudhakar Shejwal
and others ..Petitioners.
Vs.
Goregaon Siddharth Nagar
Sahakari Grih Nirman Sanstha
Ltd. and others ..Respondents.
WITH
WRIT PETITION NO.1478 OF 2009
WITH
NOTICE OF MOTION NO.532 OF 2010
WITH
NOTICE OF MOTION NO.547 OF 2010
WITH
NOTICE OF MOTION NO.548 OF 2010
Laxman Khandu Waghe and others ..Petitioners.
Vs.
Goregaon Siddharth Nagar
Sahakari Grih Nirman Sanstha
Ltd. and others ..Respondents.
And
Cruznary Susai Chettiyar and others ..Applicants (in NM 532/10)
And
Neeta Bipin Patel and others ..Applicants (in NM 547/10)
And
Ashish Somnath Sarawaat and others ..Applicants (in NM 548/10)
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......
Mr. M.M. Vashi i/b Mr. P.Y. Shankar for the Petitioners.
Mr. Y.R. Naik for Respondent No.1 in all the petitions.
Mr. G.W. Mattos, AGP with Mr. D.A. Nalavade, Government Pleader and
Ms. Geeta Shastri, AGP for Respondents 2 and 4 in WPL 2690 of 2010
and WP 1478 OF 2009.
Mr. G.W. Mattos, AGP for Respondents 2 and 4 in WPL 851 of 2010.
Mr. E.P. Bharucha, Senior Advocate with Mr. Atul Damle, Mr. Sachin
Mandlik, Ms. Swati Sagvekar and Mr. Sandesh Shukla i/b Legasis
Partners for Respondent No.3 in all the petitions.
CORAM : DR.D.Y.CHANDRACHUD &
ANOOP V. MOHTA , JJ.
10 February 2011.
ORAL JUDGMENT (Per. DR. D.Y. CHANDRACHUD, J.) :
1. In 1948 the Bombay Housing and Area Development Board became the owner of a large tract of land at Goregaon (West), Mumbai admeasuring 40 acres equivalent to 1,65,800 sq. meters. The Board had constructed 808 ground floor structures consisting of "Patra chawls" and each tenement admeasured 220 sq. ft. The area is now known as Siddharth Nagar. The Maharashtra Housing and Area Development Authority came into existence on 5 December 1977. In 1984 a co-operative society representing the occupants was formed comprising of 663 out of 808 tenants. The Court has been informed that the number of occupants at present stands at 672. The rest of the occupants were rehabilitated in various other schemes.
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2. The co-operative society representing the occupants entered into an agreement on 9 September 1986 with a developer - Lokhandwalla Society and Development Company Limited - to develop a gross land area of 13.18 acres. Net of reservations the area was 10 acres. On 8 February 1988 the Government of Maharashtra issued a resolution by which it provided that out of the 40 acres of land owned by MHADA, a net area of 10 acres would be alloted to the co-operative society representing 673 occupants of the ground floor chawls in the low income group subject to the conditions inter alia that - (i) out of a total of 10 acres to be alloted to the society, 8 acres would be allotted free of costs; and (ii) the balance representing 2 Acres would be allotted at the present market rate to be fixed by the Town Planning Department. The developer constructed three buildings in 1991-92 comprising of a ground floor and four upper storeys. On 23 November 1992 the co-operative society terminated the agreement with the developer, the ground being inter alia that the earlier developer had offered accommodation admeasuring 325 sq. ft. of carpet area as opposed to 365 sq. ft. for each occupant. The developer instituted a suit on the Original Side of this Court1. An ad interim injunction was granted by a Learned Single Judge on 12 December 1995. The Motion for interim relief was dismissed on 27 September 1996. The co-operative society thereafter passed a resolution on 1 September 2002 to enter into an agreement with a new developer, Guru Ashish Construction Private Limited2. An appeal filed by the earlier developer against the order of the learned Single Judge dismissing the Motion was rejected by the Division Bench on 8 1 O.O.C.J. Suit 4476 of 1995.
2 The Third Respondent in Writ Petition (Lodg.) 2690 of 2010.
::: Downloaded on - 09/06/2013 16:50:35 :::PNP 4 WPL851-10.2.sxw December 2005. The co-operative society passed a resolution for the appointment of the new developer noted earlier on 22 January 2006.
The Supreme Court dismissed a Special Leave Petition of the earlier developer against the judgment of the Division Bench on 10 April 2006. Eventually on 13 September 2007 a consent decree was passed in the suit instituted by the earlier developer by which all the rights and liabilities of the earlier developer were assigned in favour of the new developer.
3. The society and its newly appointed developer submitted a joint proposal for development on 26 September 2007 to MHADA. MHADA issued a resolution on 1 November 2007 sanctioning the redevelopment scheme. On 3 March 2008 the State Government granted its approval to redevelopment. On 1 April 2008 a tripartite agreement was entered into between the co-operative society, the newly appointed developer and MHADA. A petition under Article 226 of the Constitution, (Writ Petition 1478 of 2009), was filed on behalf of 153 petitioners to challenge the proposal for redevelopment. A Division Bench of this Court by its order dated 9 June 2009 referred the case to the High Powered Committee and in the meantime, granted an ad interim injunction. The earlier writ petition was withdrawn on 1 February 2010. On 27 October 2010 68 occupants were served with a notice of eviction under Section 95A of the Maharashtra Housing and Area Development Authority Act 1976. An order of eviction was initially passed which came to be withdrawn and thereafter a fresh order was passed on 18 December 2010. On 2 February 2011 a learned Single Judge of this Court disposed of a writ petition challenging the orders of eviction under Section 95A. The ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 5 WPL851-10.2.sxw learned Single Judge was of the view that since the submission which was sought to be canvassed on merits in that case would be similar to those which arose in these proceedings, the orders of eviction be deferred for a period of eight weeks until these proceedings before the Division Bench were concluded.
4. Presently, in this batch there are two writ petitions under Article 226 : (i) Writ Petition (Lodg.) 2690 of 2010 has been instituted by three petitioners who claim the support of 68 other occupants of Siddharth Nagar; and (ii) Writ Petition (Lodg.) 851 of 2010 has been instituted by 7 petitioners to challenge the resolution dated 1 November 2007 of MHADA sanctioning the redevelopment scheme.
The petition which impugns the legality of the redevelopment scheme has been purported to be supported by 83 occupants who have filed affidavits in support of the petition. In addition to the two writ petitions, there are three Motions before the Court3. All these Motions have been taken out in Writ Petition 1478 of 2009 for recalling the order passed by a Division Bench of this Court on 1 February 2010 permitting the withdrawal of the petition. In support of the Motions, Counsel appearing on behalf of the Applicant submitted that the writ petition had been filed in pursuance of a power of attorney given to three petitioners. The case was referred by the Division Bench to the High Powered Committee on 9 June 2009 and an ad interim injunction was issued by the Court. The Petition was withdrawn on 1 February 2010 when it was not on Board and without notice to the amicus curiae who was appointed to assist the Court. Counsel appearing on behalf of the Petitioner in the 3 Notices of Motion 532, 547 and 548 of 2010.
::: Downloaded on - 09/06/2013 16:50:35 :::PNP 6 WPL851-10.2.sxw Motions has, however, submitted that the grievance in regard to the order of the Court permitting the withdrawal of the petitions would not have any practical relevance once the Court determines the correctness of the submissions made in the writ petitions under Article 226 since similar issues arise in all the cases. Accordingly, the submissions have been heard on merits.
5. On behalf of the Petitioners, four submissions have been urged :
(i) Under the Government Resolution of 8 February 1988 a net area of 10 acres of land was alloted to the co-operative society representing the occupants of Siddharth Nagar. The resolution passed by MHADA on 1 November 2007 as well as the subsequent approval of the State Government dated 3 March 2008 also reiterate the same position. However, under the scheme for redevelopment the co-operative society has accepted 4.43 acres for the purpose of rehabilitating the existing occupants whereas the developer would be entitled to develop and sell the balance area representing 5.57 Acres. The submission therefore is that the co-operative society is entitled to a net land area of 10 acres. Even though the developer has agreed to provide a net built up area of 10 acres to the co-
operative society, this would not serve the purpose of the scheme of rehabilitation;
(ii) Under the tripartite agreement between the society, MHADA and the developer each of the occupants is entitled to be allotted tenements of 650 sq. ft. (initially 555 sq. ft. which has since been enhanced to 650 sq. ft.). After the amendment of DCR 33(5) of the Development Control Regulations on 6 December 2008, a ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 7 WPL851-10.2.sxw circular has been issued by the State Government on 26 August 2009 under which the maximum area which can be provided to the occupants of the low income group under such a scheme has been enhanced from 30 sq. meters to 45 sq. meters (carpet area corresponding to 323 sq. ft. and 484 sq. ft. respectively). In the circumstances, any agreement under which the occupant should be provided a higher area is contrary to the Development Control Regulations;
(iii)Despite a specific prohibition contained in the tripartite agreement, the developer had effected an assignment of his rights in favour of a third party - HDIL; and
(iv)70% of the occupants have not consented to the scheme.
6. On the other hand, it has been submitted on behalf of the developer that :
(i) For a period of nearly 21 years virtually no steps were taken by the earlier developer to carry out the process of redevelopment;
(ii) The tenements in Siddharth Nagar which consisted of patra chawls are in a dilapidated condition and were urgently in need of redevelopment;
(iii)The present developer settled the dispute with the earlier developer by paying an amount of Rs.14.51 Crores;
(iv)In addition, the developer has agreed to provide a corpus of Rs.
25 Crores to the co-operative society;
(v) The agreement with the present developer involves a substantial enhancement of the benefits to the occupants of the co- operative society. As against an area of 325 sq. ft. which the earlier developer was to provide, the present developer has ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 8 WPL851-10.2.sxw agreed to provide an area admeasuring 650 sq. ft. with a parking space to each occupant. The developer has agreed to provide monthly compensation in lieu of transit accommodation between Rs.18,000/- to Rs.20,000/- to each occupant. In addition, it has been submitted that under the tripartite agreement the developer is required to provide 1.11 lac sq. meters of constructed built up area to MHADA free of cost.
7. The learned AGP appearing on behalf of MHADA has similarly submitted that the agreement which was entered into between the new developer and the co-operative society provides substantial benefits to the existing occupants as well as to MHADA to whom a built up area of 1,11,476 sq. meters is to be provided free of cost. Moreover, it was submitted that since an overwhelmingly large body of the occupants who form part of the co-operative society consented to the scheme, it would not be open to a few dissenting members to resist the proposal for redevelopment.
8. While considering the merits of the rival submissions, it must at the outset be noted that the agreement with the earlier developer was entered into by the co-operative society as far back as in September 1986. No substantial progress was achieved in fulfilling the agreement since the society terminated the agreement in November 1992 and the earlier developer instituted a suit on the Original Side of this Court. Eventually, it was in September 2007 that the suit was settled in terms of Consent Terms that were arrived at under which the earlier developer agreed to assign its rights to the new developer who has stepped into the redevelopment project. In ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 9 WPL851-10.2.sxw this background, it will be necessary to have due regard to the terms of the tripartite agreement which has been entered into between the society, the new developer and MHADA. Clause 2.1.2 of the agreement postulates that in accordance with the Government Resolution dated 8 February 1988 under which the land was allotted to the co-operative society, out of a net land area of 10 acres, 2 acres is to be allotted at the current market value to be determined by the Town Planning Department. The agreement envisages that the tenants would be alloted tenements each of a carpet area of 555 sq. ft. in multi-storied buildings free of costs. The developer is entitled to sell the balance of the built up area required for recovering the project cost from out of the net land area of 10 acres. The remaining balance of 26.82 acres is to be developed by the developer and the constructed area is to be shared in equal proportion between the developer and MHADA. As a result MHADA becomes entitled to receive 1,11,476.82 sq. meters. The relevant details in this regard are contained in Annexure III to the tripartite agreement.
9. We do not find any merit in the first submission which has been urged on behalf of the Petitioners that the agreement is not to the benefit of the society on the ground that the society ceased to be entitled to a net land area of 10 acres. Initially, under the terms of the Government Resolution dated 8 February 1988 government had resolved that out of 40 acres of land allotted by MHADA for the patra chawls a net land area of 10 acres would be allotted to the co- operative housing society representing 673 occupants. The patra chawls had to be redeveloped. Under the tripartite agreement each of the occupants is now entitled to 650 sq. ft. of carpet area free of ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 10 WPL851-10.2.sxw costs and in addition thereto, a further component of 117 sq. ft. which is described as an area free of FSI. In addition, the new developer has agreed to provide a corpus of Rs.25 Crores to the co-operative society. Annexure III to the tripartite agreement which contains the computations of the area which is required to be provided to the occupants shows that the total built up area for 672 occupants works out to 46,431.84 sq. meters which is equivalent to approximately 10.81 acres of built up area. The grievance of the Petitioners is that the society should have been entitled to 10 acres of net land area and not 10 acres of net built up area. We do not find any reason or justification to accept the submission. Obviously, a developer who is providing permanent alternative accommodation to the existing occupants free of cost would be required to recover his costs and investment in the project. In this background, a portion of the land is to be utilized for constructing multi-storied buildings in which the existing occupants would be rehoused. The developer has also agreed to provide to MHADA free of cost a built up area of 1,11,476.82 sq. meters. In this view of the matter, what the developer has agreed to provide to the co-operative society is constructed area in excess of 10 acres. As already noted earlier as opposed to each member of the co-operative society receiving 325 sq. ft. under the agreement with the earlier developer, the present agreement envisages an entitlement of 650 sq. ft. carpet area. In that view of the matter, there is no merit in the first submission.
10. The second submission which has been urged on behalf of the Petitioners is in regard to the enhancement of the area which has been provided by the developer to the existing occupants. As noted ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 11 WPL851-10.2.sxw earlier, under the tripartite agreement each occupant was to be provided 555 sq. ft. of carpet area free of costs. This has been re-
negotiated and enhanced to 650 sq. ft. for each occupant. The Petitioners who represent the interest of some of the occupants cannot be heard to complain about the enhancement in the area. DCR 33(5) was amended on 6 December 2008. On 26 August 2009 the State Government, by a circular enhanced the maximum area that can be provided under the low income group scheme from 30 sq. meters to 45 sq. meters. In the present case, the developer has made a statement before the Court through the learned counsel that the enhanced area which is being provided by the developer to the existing occupants is obtained from the FSI component that would otherwise be available to the developer and not out of the entitlement of MHADA. If, as in the present case, the developer has agreed upon negotiations with the occupants to forsake a part of his entitlement of developable area for obtaining the consents of the tenants, there can be no objection and least of all from the existing tenants. The general body of tenants having accepted the proposal, the dissenting members cannot be allowed to oppose and obstruct the scheme.
11. As regards the allegation that there was an assignment by the new developer in breach of the provisions of the tripartite agreement, it has been stated before the Court that on 4 January 2010 an agreement for project management was entered into by the developer with HDIL. That agreement has since been cancelled on 26 July 2010. In that view of the matter, the submission would cease to have any practical relevance. Finally, it has been urged that the ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 12 WPL851-10.2.sxw scheme does not have the support of 70% of the occupants. In this regard, it is common ground before the Court that the High Powered Committee had called upon MHADA to carry out a physical verification of the consents of the existing tenants. There is a finding of fact that 70% of the occupants have consented to the scheme. In a project such as the one which is involved in the present case, there is always a shifting body of occupants, consisting of persons who are willing to shift loyalties to rival builders against a promise of better incentives. Consents once given cannot be allowed to be revoked at the whim and fancy of individual occupants. If that was to be allowed, no scheme for redevelopment could be successfully implemented. Though none of the Petitioners had furnished their consents, what is material is that there is a determination of fact that 70% of the existing occupants have consented to the scheme.
12. For all these reasons we are of the view that there is no merit in the submissions. There is also substance in the contention urged on behalf of the society and the developer that there has been a delay in instituting these proceedings under Article 226. The work of development has already progressed. Out of the 672 occupants, the present developer claims to have the consents of 571 occupants.
Documents have been registered with 472 of the occupants. The structures of 412 occupants have already been demolished and they have either shifted to transit accommodation or are in receipt of payment in lieu thereof. The construction work is already in progress. In this view of the matter, it would be manifestly against the interest of the occupants whose structures have been demolished and who are now awaiting the completion of the scheme, for this ::: Downloaded on - 09/06/2013 16:50:35 ::: PNP 13 WPL851-10.2.sxw Court to intervene in exercise of the jurisdiction under Article 226. However, we have also considered the merits of the contentions and have found that there is no substance in the grievances of the Petitioners.
13. For these reasons, Writ Petitions (Lodg.) 2690 of 2010 and 851 of 2010 shall stand dismissed. As we have noted earlier, we have considered the submissions on merits including of the Applicants in the three Motions which sought a recall of the order of the Division Bench permitting the withdrawal of the earlier writ petition. The Motions shall accordingly stand disposed of.
(Dr. D.Y. Chandrachud, J.) (Anoop V. Mohta, J.) ::: Downloaded on - 09/06/2013 16:50:35 :::