Bombay High Court
Chandralok People Welfare Association vs State Of Maharashtra on 20 September, 2023
Author: G.S. Patel
Bench: G.S. Patel
901-OSWPL-17361-2023.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 17361 OF 2023
Chandralok People Welfare Association ...Petitioner
Versus
State of Maharashtra ...Respondent
Mr Abhishek Sawant, with Vaishali Sanghavi, Aniket Shendekar,
Mansi Solanki & Ameet Mehta, i/b Solicis Lex, for the Petitioner.
Mr Kunal Waghmare, i/b SK Sonawane, for the Respondent-MCGM.
Mr Amit Shastri, AGP, for the Respondent-State.
Mr Vinay Ashok Dwivedi, Respondent No. 6 - present in person.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 20th September 2023
PC:-
Digitally
signed by
ASHWINI 1. The 6th Respondent, who says he is a lawyer, continues to ASHWINI H GAJAKOSH GAJAKOSH Date:
2023.09.21 09:57:32 conduct himself in regard to his ownership building at Goregaon in +0530 the most unreasonable manner. We have reference to our orders passed previously. For completeness, these will now need to be set out. The order of 21st August 2023 read thus:
"1. This is a most unfortunate situation. The Petitioner Association has 103 or 104 members. They are tenants of a structure that was called Chandralok at CTS No. 872, 872/1 to 46 Dubey Wadi, Sudhakar Dubey Compound, Aarey Road, Village Pahadi, Goregaon (West), Mumbai -Page 1 of 10
20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC 400104. Respondent No. 2 is the Municipal Corporation of Greater Mumbai ("MCGM"). Respondent No. 6 is one Vinay Ashok Dwivedi. He appears in person. Respondent No. 9 is one Shamina Pramod Jaykar. She is the owner and lessor of the plot on which the building stood. Mr Dwivedi attempted to begin addressing this problem by saying that he was the lessee and not the lessor, as if to suggest that the issues with the tenants were that of Ms Jaykar and were not his concern. But it emerges as an undisputed position that Ms Jaykar is the lessor only of the land not the structure, and that it is Mr Dwivedi who is the lessee of the land, but the owner of the structure. The law in India recognises explicitly the concept of dual ownership, separately for land and separately for structure. Mr Dwivedi should be well aware of this.
2. The building Chandralok is said to have been not only more than 55 years old, but also consistently neglected. It was the subject of notices under Section 354 of the Mumbai Municipal Corporation Act, 1888 from the MCGM. While those notices were indeed challenged in civil proceedings, the fact also undisputed is that the building has been brought down. Mr Dwivedi would have it that it is the Petitioner Association that "demolished" the building, but this is hardly relevant. Indeed, we would venture so far as to say that it is entirely irrelevant. The tenants are now scattered across the city, forced to fend for themselves, and to find accommodation wherever they can on whatever terms they are best able to afford. They are provided no transit rent. There is so far no indication of any redevelopment proposal. There is no prospect in sight of their homes being rebuilt or redeveloped.
3. It is not the law that tenancies end with the pulling down of a structure. The law is to the reverse. The obligations of the owner of a structure are well settled, both in municipal law as also under the Maharashtra Rent Page 2 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC Control Act, 1999. These are not obligations that can be avoided, and this Court has repeatedly held as much, even if Mr Dwivedi is presently unaware of those legal obligations.
4. We require an Affidavit in some urgency from the MCGM about the state of the building, the details of when it was brought down and whether the MCGM has on its files any proposal at all from the owners of the structure for redevelopment of the building, the appointment of a developer and any proposals for payment of transit rent or the provision of transit accommodation.
5. Similarly, Mr Dwivedi is to file an affidavit setting out what he proposes to do in regard to the property that has now been demolished. We make it clear that it is open to Mr Dwivedi to say on affidavit, though at his peril, that he proposes to do precisely nothing about the re-development of this building. If that be his stand, we will decide what the law requires him to do and what he is, therefore, then obligated to do. If he does have a proposal, we will need those details on affidavit. All Affidavits are to be filed and served on or before 25th August 2023.
6. List the matter high on board on 29th August 2023."
(Emphasis added)
2. Then on 29th August 2023 we passed the following order:
"1. The Municipal Corporation of Greater Mumbai ("MCGM") has filed one Affidavit. Its further Affidavit is to be filed in the Registry by e-filing.
2. Respondent No. 6, Dwivedi, has the leasehold rights from Respondent No. 9 for 99 years. He agrees that the building itself was brought down in 2019. The tenants are scattered across the city. There has been no Page 3 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC progress in re-development. There is no transit rent. There is no proposal presently for redevelopment. Dwivedi appeared on the last occasion in person. He is now represented. He seeks time of a week to work out a proposal. We will grant him that indulgence. He is free to meet with the representatives of the Petitioner, the Tenants Welfare Association. Any proposal must necessarily take into account the development potential of this land at Goregaon including incentive FSI, fungible FSI if any, loading of TDR and so on. We will not accept an argument that without an appropriate order of a Court of competent jurisdiction, any tenancy can be held to have been terminated merely because the building has been demolished or brought down. That is not the state of the law. Tenants' rights continue. Whether on redevelopment these are to be converted to ownership or to be continued as tenancy is not our concern in a Writ Petition under Article 226 of the Constitution of India.
3. Having said this, we must bear in mind the limits on the exercise of our discretion and these will have to be read with the prayers in the Petition. Prayer (a) seeks a mandamus demanding that the MCGM direct compliance with various sections of the Mumbai Municipal Corporation Act, 1888 ("MMC Act") to compel the reconstruction or redevelopment of the building in question and for grant of compensation in lieu of transit accommodation etc. The alternative prayer (b) is for a direction to that Tenants Association to call for tenders from interested developers to redevelop the property.
4. This is, therefore, the frame of the discussion. At the first stage, we are leaving it to Dwivedi and the Petitioner to see if they can arrive at some understanding, arrangement or agreement in regard to redevelopment. We do however make it clear that we will require the public authority, namely, the MCGM to supervise the project until Page 4 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC completion including monitoring progress, ongoing welfare of tenants and so on. All of that is part of the planning process.
5. List the matter on 6th September 2023. "
(Emphasis added)
3. The matter came up again on 11th September 202. At that time Mr Chavan was engaged inter alia by Respondent No. 6 Dwivedi. Our order of that date itself notes, even then, our grave disapproval of the 6th Respondent's conduct. The 11th September 2023 order read thus:
"1. Even at this stage, we have to express our grave disapproval of the manner in which the 6th Respondent has gone about addressing this Petition. He is the lessee for the 99 year-old property in question CTS Nos. 872 and 872/1 to 46 at Sudhakar Dubey Compound, Aarey Road, Village Pahadi, Goregaon (West), Mumbai, 400 014. The plot is about 2702.5 sq mts. The Petitioner is a welfare association of 103 or 104 tenants or occupants of the Chandralok Building. The Association is registered. The Chandralok building is not in existence. It was built in 1965. The land is leasehold. The building was not repaired for a long period of time. There were structural audits. The members of the Petitioner vacated the building in about July 2019. Following this, the Municipal Corporation of Greater Mumbai ("MCGM"), the 2nd Respondent partly demolished the building and made it inhabitable.
2. There the matter has remained.
3. In this Petition, what the Association seeks is an order directing the MCGM to take action under Section 489 of the Mumbai Municipal Corporation Act, 1888 compelling the owner to carry out necessary works and if he Page 5 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC does not do so to have those works done at the owner's cost. This is to be read with Section 354 for removal of whatever skeletal structure presently remains. The principal prayer seeks that redevelopment be done under DCR 33(7)(a) which deals with redevelopment of a non- cessed building. The alternative prayer (b) is to permit the Petitioner Association to call for tenders for an appropriate redevelopment.
4. On 21st August 2023 when the matter was first before us, Respondent No. 6, Dwivedi appeared in person. We noted some of the facts including that the present condition affects over 100 persons, many of them senior citizens, all forced to vacate their homes five years ago and with no visible prospect of rehousing or redevelopment. We required an Affidavit from Dwivedi as to what he proposed to do in regard to the property.
5. There was no answer.
6. The matter came up again on 29th August 2023. We noted in paragraph 2 that there was still no proposal for redevelopment. Dwivedi was now represented by Mr Chavan. We said that he was free to meet with a representative of the Petitioner, but that a proposal must be placed before the Court.
7. Today, Mr Dwivedi has instructed Mr Chavan to make an altogether different submission. The attempt is to divert this entire Petition into a completely unintended course. He now says for the first time that on this plot that he owns, there are residential chawls. Unless there is what he calls a 'composite development', the Chandralok building cannot be redeveloped. A so- called composite redevelopment will benefit all is the submission made before us.
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8. What is not pointed out is what steps, if any, Dwivedi has taken towards this much-vaunted composite development and why it required a Petition to be filed and directions of the Court. To our great surprise, he seems to have instructed Mr Chavan to suggest that he is not aware of exactly who the tenants are. There are undoubtedly rent suits filed one against the other and we find it astonishing that in a city like Mumbai a landlord does not know who is in occupation and who is a tenant. This is all the more surprising because Dwivedi claims to be a practicing advocate. That certainly gives him no immunity from the requirements of either the Rent Control Act or the planning law in question.
9. We also disapprove of the manner in which Dwivedi has conducted himself in Court despite having engaged the services of Mr Chavan. If he is a practicing advocate, we expect him to know better, and not parade such hubris. As a litigant, he has no special privileges just because he is an advocate. He is here in his capacity not as an advocate appearing for a client nor is he appearing in person, which we do not now propose to allow in any case, but he is here in his capacity as an owner of a tenanted immovable property. We will not permit him to constantly interrupt Mr Chavan, elbow him aside and to directly address the Court.
10. The chawls in question, Mr Sawant for the Petitioners confirms, are only ground floor residential structures and there is no great complexity as is sought to be suggested by Dwivedi through Mr Chavan.
11. At Mr Chavan's request, and since we appreciate his difficulty and predicament and to enable him to get appropriate instructions as also to advise Dwivedi correctly of where precisely he stands, we will take up the matter again on Friday, first on board. By that time, Page 7 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC we expect at least a basic proposal with some details. This must include finance sources, list of tenants and all other particulars including time frames. We do not insist that a proposal must necessarily be of a particular form. It may be separate for Chandralok building and separate for the chawls. It may be one for Chandralok building and none at all for the chawls or it may be a composite development as is being suggested. But we will not accept this position that Dwivedi just goes on seeking dates one after the other, with one excuse after the other but without adhering to the directions of this Court just because he is a 'practicing advocate'.
12. List the matter first on board on Friday, 15th September 2023."
(Emphasis added)
4. We adjourned the matter on that date, as paragraph 11 quoted above shows, to enable Mr Chavan to get appropriate instructions and to advise Dwivedi. We made it clear that we expected a basic redevelopment proposal. We indicated broadly what that proposal should have although we were not insistent that it must be in any particular form.
5. What has happened thereafter is that Mr Chavan is said to have withdrawn from the matter. Whether he has withdrawn or was discharge is unclear to us, but that is irrelevant. Dwivedi now seeks to represent himself. We will not permit this. It will not distract from the essential facts that we have noted, namely, as the building owner and landlord, Dwivedi has obligations. His obdurate refusal to show us a proposal causes the tenants a significant amount of prejudice. They are out of possession for a long time. We do not Page 8 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC believe that this is the state of the law that a property owner can contrive a situation where a tenant loses a tenanted residence and is then left with nothing at all simply because the property owner sits on his hands and does not come forward with any proposal for redeveloping the property.
6. We noted that it was only after this Court made an order that Dwivedi suddenly woke up to the realisation that there are ground floor chawl structures on the same plot. He then propounded, for the first time, some theory of a composite development. But even on that, he offers no details today.
7. If Dwivedi has an Affidavit, we do not see why we should receive it. Regrettably, Dwivedi seems to believe because he holds a law degree, therefore our rules and procedures do not apply to him, for example, that he does not need to serve a copy of his Affidavit in advance to other side. He can simply tender to it in Court and we are supposed to accept it. He also seems to believe that our established rules regarding allowing a party to appear in person have no application to him at all. He seems to believe that he can engage and discharge advocates at will and will get a hearing whenever he desires either in person or through an advocate momentarily engaged.
8. We decline to take Affidavit on file simply because it has not been served. Dwivedi will need to appear before the stipulated Committee to obtain leave to appear in person. If he desires, he is at Page 9 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 ::: 901-OSWPL-17361-2023.DOC liberty to engage another Advocate. We make it clear that we will not permit him to discharge Advocates freely at will like this.
9. This is a final opportunity to Dwivedi. We reiterate our insistence that a basic proposal must be place before us as earlier indicated. If that is not done, we will have little choice but to render a judgment on the state of law and rights of tenants in a situation such as this.
10. List the matter high on board on 4th October 2023.
(Kamal Khata, J) (G. S. Patel, J) Page 10 of 10 20th September 2023 ::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 01:48:15 :::