Bombay High Court
Jawahar Jyoti Co-Operative Housing ... vs The State Of Maharashtra And Ors on 4 October, 2019
Bench: S.C. Dharmadhikari, G.S. Patel
Jawahar Jyoti CHSL v State Of Maharashtra & Ors
915-aswp8972-19.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8972 OF 2019
Jawahar Jyoti Co-operative Housing Society Ltd ...Petitioner
Versus
The State of Maharashtra & Ors ...Respondents
Ms Neeta Karnik, for the Petitioner.
Mr VM Mali, AGP, for Respondent No.1.
Mr NR Bubna, for Respondents Nos.2 & 3.
CORAM: S.C. DHARMADHIKARI &
G.S. PATEL, JJ
RESERVED ON: 27th September 2019
PRONOUNCED ON: 4th October 2019
PC:- (Per GS Patel, J.)
1. This Petition, fled under Article 226 of the Constitution of India, has a limited challenge to a report dated 10th December 2018 approved by the 2nd Respondent, the Municipal Corporation of Thane's General Body, and a Resolution No. 584 /2018 dated 10th December 2018. Although this Petition can be disposed of by accepting the statement made by Mr Mali, learned AGP, in terms of the averments in the Afdavit in Reply fled by one Mr Shailendra Bendale, Executive Engineer of the 2nd Respondent corporation in paragraph 2 as set out hereinafter, we will briefy refer to the facts so Page 1 of 8 4th October 2019 ::: Uploaded on - 05/10/2019 ::: Downloaded on - 05/10/2019 23:45:48 ::: Jawahar Jyoti CHSL v State Of Maharashtra & Ors 915-aswp8972-19.doc that there is absolutely no misunderstanding or room for further controversy.
2. Rule. Respondents waive service. By consent, rule made returnable forthwith and the petition is taken up for hearing and fnal disposal.
3. The sole Petitioner is a cooperative housing society in Thane (West). It is a tenant co-partnership cooperative housing society. It is registered under the Maharashtra Cooperative Societies Act 1960. The 1st Respondent is the State of Maharashtra. The 2nd Respondent, as already noted is the Municipal Corporation of Thane. The 3rd Respondent is its Municipal Commissioner. The 4th Respondent is the High Power Committee for Cluster Development, Thane.
4. The Petitioner has about 114 members. The property is freehold and is fnal Plot No. 101, Survey No. 251B, 250B and 259 at village Panchpakhadi, Taluka and District Thane. It is about 16030 sq yards. It was part of a larger property frst owned by one Khandu Dharma Bhoir. He sold this to the Petitioner by registered Deed of Conveyance dated 28th June 1966. The Petitioner and its members have been in occupation since then. A part of the property went in a road widening or a road proposal. On this plot there stand 11 residential buildings. These were issued fnal occupation certifcates on various dates between 1966 and 1985.
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5. Some of the structures (Buildings 7, 8 and 10) were incomplete. These were sold with the land underneath admeasuring 3300 sq yards to one Parmeshwaridevi Garodia Trust. This is now the property of a separate society known as the Garodia Cooperative Housing Society Ltd.
6. It seems that this Garodia Cooperative Housing Society fled an application for a deemed conveyance under Section 11 of the Maharashtra Ownership of Flats Act. It obtained that deemed conveyance.
7. In 2015, the Petitioner decided to take up redevelopment of its property. It followed the Maharashtra Government directives under the Maharashtra Cooperative Societies Act, 1960 and convened a special general body meeting. It appointed a project management consultant for phase I. The entire process continued, but we are not concerned with the details of this or with the threats of demolition etc for the limited purposes that require our attention today.
8. What is material is that a revised development plan for Thane was sanctioned by the Government in Urban Development Department by a notifcation dated 4th October 1999 with efect from 22nd November 1999. Some parts originally excluded were notifed on 3rd April 2003 with efect from 14th April 2003. Revised Development Control Regulations for the Thane Municipal Corporation were sanctioned by the State Government on 28th April 1995 with efect from 1st June 1995.
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9. Regulation 165 of this Development Control Regulations deals with special provisions inter alia of urban redevelopment schemes. On 4th March 2014, the State Government issued a notifcation under Section 37(1)(AA)(a) of the Maharashtra Regional Town Planning Act to incorporate a provision for urban renewal projects/proposals/schemes in Regulation 165 read with a newly introduced Appendix R-I. After some challenges in this Court, the operation of that newly introduced provision was permitted and the provision was brought into efect. This provision essentially deals with what is called cluster redevelopment projects as part of urban renewal or regeneration schemes.
10. It seems that a proposal for such an urban renewal or cluster redevelopment scheme was published for suggestions and objections from various properties in the Panchpakhadi area. These schemes as notifed did not include the Petitioners' land or property. What the Petitioners then found was that at the instance of two other societies, namely, Rajtara CHSL and Garodia CHSL (which itself had been formed by splintering of from the Petitioners' original landholding as noted above), the Petitioners' property was sought to be swept into this proposed cluster re-development in an urban renewal plan. This was sought to be done although the Petitioners' property had not been so included in any of the 44 URPs (Urban Renewal Projects) published until then. The suggestion by these two societies were made part of the report that is impugned in this Petition. This report was placed before the Thane Municipal Corporation general body meeting and approved at a general body meeting. Hence this Petition.
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11. Although it is not strictly necessary, we note Ms Karnik's objections to the inclusion of the Petitioners in a cluster redevelopment. She points out that this will result in severe restrictions on the Petitioners' rights over their own property including an inability to transfer, apart from other restrictions. We need not examine this aspect of the matter further because there can be no dispute that cluster redevelopment is subject to all such conditions.
12. Paragraphs 14 and 15 of the Petition reads thus:
"14. The Petitioner submits that Rajtara co-operative housing society have allegedly opted for cluster development by passing such a Resolution. Petitioner submits that however they have included Petitioners name in it without any Petitioner's knowledge and consent which is highly illegal The said resolution is not at all binding on the Petitioner. As also there is an ongoing legal litigation within the Rajtara co-operative housing society members who has fled complaint against the illegal Managing Committee and it's illegal resolution. The Managing committee which passed an illegal resolution for opting cluster was dismissed on 16th August 2018 under section 77A (1) and B (1) marked as Exhibit H and presently in Administrator is appointed to look in to said society's regular day to day work. The said Administrator cannot take any policy decision as per the directives under section 79(A) of Maharashtra co-operative societies Act 1960 by Government of Maharashtra issued circular no SAGRUYO- 201/pra.kra.360/14-SA dated 15th October 2011 marked as Exhibit I and vide High Court Writ Petition No. 9697/ 2010 dated 30th March 2011 is annexed hereto and marked as Exhibit J. Thus the suggestion made by the said society is Page 5 of 8 4th October 2019 ::: Uploaded on - 05/10/2019 ::: Downloaded on - 05/10/2019 23:45:48 ::: Jawahar Jyoti CHSL v State Of Maharashtra & Ors 915-aswp8972-19.doc illegal and does not have any support even from tis own members. The Managing Committee of the said society seems to have been set up some vested interest acting against the said society as well as Petitioner society. It is for the aforesaid reason that the Petitioner called upon the Respondent to disregard the suggestion put by the Rajtara Society.
15. Petitioner submits that in Garodia co-operative society also, the managing committee is not elected as per the provisions of the Society's bye-laws and also not constituted as per the provisions of the MCS Act, 1960, and no election held for more than 5 years which is in violation of MCS act U/S 73 CB. As also their buildings are not in the list of dangerous structures of the Thane municipal corporation to be added for cluster development. The Resolution presented by Garodia co-operative housing society to Respondent No. 2 is therefore illegal. That as per Petitioner's information there is no legal and valid Resolution passed by the said Society resolving to join cluster redevelopment. That Respondent No. 2 ought not to have considered the suggestions made by this Society as copy of resolution certifed by Dy. Registrar is non-existent. Here too it seems some vested interests are in play and are illegally dragging Petitioner in to the cluster development by illegally putting suggestions through other Co-operative Societies."
13. The Afdavit in Reply of the Thane Municipal Corporation, from pages 201 to 202, is short and the relevant portion is paragraph 2 which says this:
"2. I say that Petitioner is included in URP 11 pursuant to suggestion given by other neighbouring societies. I say that Respondent No.2 has fnaliied clusters including URP Page 6 of 8 4th October 2019 ::: Uploaded on - 05/10/2019 ::: Downloaded on - 05/10/2019 23:45:48 ::: Jawahar Jyoti CHSL v State Of Maharashtra & Ors 915-aswp8972-19.doc 11 after following due process of law. I say that if Petitioner is not willing to take beneft of Urban Renewal Scheme, it is free to develop its plot on its own subject to the provisions of MRTP Act and Development Control Regulations of Thane. I say that till date no plans for any development are submitted by Petitioner to Respondent No.2 Corporation. I say that if any development proposal is received from Petitioner, the same will be considered in accordance with law."
(Emphasis added)
14. We make it clear that it is in our view wholly impermissible for any neighbouring society to seek the inclusion of the Petitioners' property in any form of scheme of development, redevelopment or cluster development without notice to the Petitioners, a hearing being aforded to the Petitioners and the specifc consent of the Petitioners obtained in a lawful manner by a resolution appropriately carried at properly convened general body meeting of the Petitioners. Save and except in this manner none can dictate to the Petitioners how their property should be developed or redeveloped or in what proposal or project it should be included.
15. Although there is a Rejoinder, we need not turn to it. It is sufcient if we accept the statement made in paragraph 2 of the Afdavit in Reply and in particular the following statement:
"I say that if Petitioner is not willing to take beneft of Urban Renewal Scheme, it is free to develop its plot on its own subject to the provisions of MRTP Act and Development Control Regulations of Thane."Page 7 of 8
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16. This necessarily means that the Petitioners' property will not be included in any URP nor subject to the provisions of Appendix R-I or other regulations applicable to Cluster Development /Urban Renewal Projects or URPs. All the rights and contentions of the Petitioners as to the nature of development they desire and proposed are left open. Any application that they make for redevelopment will be considered on its own merits uninfuenced by these proceedings or by any application made by any neighbouring society.
17. We make rule absolute in these terms. This necessarily means that the report and the general body resolution published as also the URP plans will not apply to the Petitioners' property.
18. The Petition is disposed of in these terms. No order as to costs.
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