Bombay High Court
Mulund New P M G P Colony, Om Sai Co-Op. ... vs State Of Maharashtra Through The ... on 13 April, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
12-OSWPL-3967-2022 +.DOC
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3967 OF 2022
WITH
INTERIM APPLICATION (L) NO. 22913 OF 2022
Shantaram Mahadev Umbarkar & Ors ...Petitioners
Versus
Maharashtra Housing and Area Development
Authority & Ors ...Respondents
WITH
INTERIM APPLICATION NO. 1710 OF 2022
IN
WRIT PETITION (L) NO. 3967 OF 2022
Gopal Ramchandra Bhagade & Ors ...Applicants
In the matter between
Shantaram Mahadev Umbarkar & Ors ...Petitioners
Versus
Maharashtra Housing and Area Development
Authority & Ors ...Respondents
WITH
WRIT PETITION (L) NO. 5503 OF 2023
Anand Dagadu Patil ...Petitioner
Versus
Maharashtra Housing and Area Development
Authority & Ors ...Respondents
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WITH
WRIT PETITION NO. 4651 OF 2022
Mulund New PMGP Colony, Om Sai
Cooperative Housing Society Ltd ...Petitioner
Versus
State of Maharashtra through the Ministry of
Housing Development & Ors ...Respondents
Ms Indira Labde, with Harsh Patel, for the Petitioners in WPL/5503/
2023.
Mr Vivek Shukla, for the Petitioners in WPL/3967/2022.
Mr SB Gore, AGP, with Hemant Haryan, AGP, for the Respondent-
State in WP/4651/2022.
Mr PG Lad, with Sayli Apte & Shreya Shah, for the Respondent-
MHADA in all Writ Petitions.
Ms Pratibha Rupnawar, with Akshata Mulik, for Respondent No. 2 in
WPL/3967/2022 with IA/1710/2022 & IAL/22913/2022.
Mr Mayur Khandeparkar, with Amrut Joshi, Nikhil Mishra &
Prakhar Tandon, for the Respondent-Richa Realtors in all Writ
Petitions.
Ms Jyoti Sinha, Nidhi Kulkarni, i/b Khaitan & Co, for the Respondent
No. 4 in WP/4651/2022 & for Respondent No. 5 in
WPL/3967/2022 & WPL/5503/2022.
Mr Sagar Patil, for the Respondent-MCGM in Writ Petitions.
CORAM: G.S. Patel &
Neela Gokhale, JJ.
DATED: 13th April 2023 PC:-
1. On 16th March 2022 we made the following order:Page 2 of 17
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1. The dispute here is of the usual type regarding redevelopment of a cooperative society. On one side, as Petitioners, are 67 individuals. On the other side is the Maharashtra Housing and Area Development Authority ("MHADA") as the 1st Respondent, the Society as the 2nd Respondent, Richa Realtors, the original sole developer as the 3rd Respondent, the MCGM as the 4th Respondent and Tata Housing Development Company Limited, a joint developer later introduced into the project, as the 5th Respondent.
2. The problem is complex partly because of the sheer numbers involved. We are told that there are more than 698 occupants or tenants who are to be re-accommodated. About 350 are in an in situ transit camp constructed on site.
The others are dispersed and are receiving, and are supposed to be receiving, transit rent. Just to give a further idea, these are the numbers of persons yet pending rehabilitation. Already 769 eligible persons and their families have been accommodated in four buildings spread over eight wings.
3. Between Richa Realtors and Tata Housing there is an internal agreement. But both have been recognized, Richa Realtors originally, and later Tata Housing as a joint developer by MHADA. Mr Khandeparkar for Richa Realtors candidly states that of the 67 Petitioners, 26 have not received transit rent since 2019. He has a figure of the amount due. Mr Khan for the Petitioners does not accept the correctness of this figure. We will shortly Page 3 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC turn to the mechanism that we have in mind to address this question. In addition, there are other tenants on transit rent or entitled to receive transit rent who are in the same position as these 26 Petitioners, that is to say these other persons also not received transit rent and there is an accumulation of arrears of transit rent.
4. For those who are now in the in-situ transit camp, the problem is more complex. Those transit camp buildings need to be removed to progress the project and for further constructions including rehab construction, and ancillary facilities. The transit buildings themselves are now in ruinous, dilapidated and dangerous conditions. But those inhabitants must also be assured that they will, from the date they vacate the transit camp, receive transit rent on parity with others, that their Permanent Alternate Accommodation Agreements ("PAAA") will be unaffected and that they will be entitled to re-accommodation once the project is completed. While we accept Mr Khandeparkar's statement on instructions that Richa Realtors will immediately begin making payment by account payee cheques to all unpaid Petitioners and also other persons entitled to transit rent but whose payments are in arrears and who may not be Petitioners, these amounts are to be accepted on a without prejudice basis.
5. We require of Mr Lad whether there is an officer of MHADA's Mumbai Board who can expeditiously take up the various tasks that lie ahead. He tells us that one Prakash Sanap, Page 4 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC the Resident Executive Engineer, Mumbai Board, is willing and able to execute these tasks in a very short time frame. We accept the nomination of Mr Sanap. We now proceed outline what we expect Mr Sanap to do.
(a) Mr Sanap will first assess the amount of transit rent arrears that are yet payable not only to the Petitioners but to all other eligible persons entitled to transit rent.
(b) Richa Realtors and Mr Khan as also the other individuals involved will be entitled to place before Mr Sanap there respective calculations. They may do so only once.
(c) On the question of transit rent we do not expect Mr Sanap to give a personal hearing to every claimant. We expect Mr Sanap to apply his mind to a statement of payments and to perform an exercise of reconciliation. In this, Mr Sanap may take the assistance of any other officers of MHADA that he thinks fit.
(d) Richa Realtors and the Petitioners will depute two persons to assist Mr Sanap and his team in this reconciliation exercise.
(e) We make it clear that the claims for arrears of transit rent will follow exactly the Development Agreement and PAAA. There will be no deviation and no demands for enhanced annual increases or interest except as provided Page 5 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC by the contractual documents. No such demands are to be entertained by Mr Sanap and his team is working out this reconciliation.
(f ) In addition, we accept Mr Lad's suggestion that all communications to Mr Sanap must come from and only from the Advocates for the Petitioners and Richa Realtors.
(g) For those who are not Petitioners, the communications must come through an office bearer of the 2nd Resident society and a representative of the 2nd Resident society will also assist Mr Sanap of their reconciliation.
6. We are making it clear these Petitioners may be allowed to be represented by Mr Khan today but all other persons will only speak through the Society. Individuals will not be heard by Mr Sanap separately from the society. If any of the other persons wish to be represented by Mr Khan they are free to execute an authorisation in his favour, whether or not they are made parties to the Petition.
7. As to the question of those in transit accommodation in situ transit camp, Mr Sanap will have to take such steps as he thinks appropriate to explain to the head of each family in a language that is understood by that person the need to vacate within a reasonable time. The assurance that must be conveyed is that transit rent will be made available to such persons after they vacate and that transit rent will continue to be paid until the rehab Page 6 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC premises are allotted. They must also be assured that this shifting from the transit buildings is not to their prejudice. Equally, it will earn them no special privileges or benefits or concessions. Their entitlements to permanent alternate accommodation and transit rent (as also any charges that may be associated with transit rents such shifting charges) must be explained and assured to these persons.
8. Finally, it must be conveyed to each of these families that a single cut-off date will be specified -- if necessary by the Court -- within which time these families must vacate. If they do not do so voluntarily, this Court will enforce that date without any possibility of any extension.
9. If any of the Petitioners who are willing to vacate, they must indicate their willingness in a singed writing to Mr Sanap.
10. We request a Report by Mr Sanap directly to us on these aspects. Should Mr Sanap require a clarification of any kind, liberty to Mr Lad to apply. Mr Lad states that Mr Sanap should be able to complete this work within three weeks.
11. We make it clear the NOC condition that recognized or empanelled Tata Housing said that the transit rent will be the joint responsibility of both Richa Realtors and Tata Housing. Since we are dealing with the public authority, as a Writ Court we are not concerned with any internal arrangement, agreement or understanding that Richa Realtors may have Page 7 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC with Tata Housing or the resolution of their mutual disputes. If Richa Realtors is discharging solely what is in the NOC as a joint responsibility, Richa Realtors' rights and contentions vis-à-vis Tata Housing (and vice versa) are left open for appropriate proceedings between them.
12. By 6th April 2022, we expect Richa Realtors to present us at least with a tentative plan or a proposal of how they will proceed to completion of the project including providing for the rehab units, as also delivering possession of constructed units to MHADA as per its entitlement. That proposal must indicate at least generally or in a time-range a period for completion.
13. List the matter on 6th April 2022 high on the supplementary board for further directions.
2. Then on 6th April 2022 we said this:
1. Of the 67 Petitioners, fully 65 are members of the 2nd Respondent Society. Whether or not the individual members can agitate concerns that properly required to be taken up by the Society, and whether the Society has adequately represented and served the interests of all members of the Society will be decided on another occasion. For the present, we believe orders are necessary in the common interest of the Petitioners as also the 2nd Respondent Society.
2. Mr Khandeparkar for Richa Realtors and Mr Kadam for Tata Housing and Development Company Ltd say they will need a few more days to sort out the terms of their Page 8 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC agreement. They will also need to meet the officials of the MHADA and they will do so tomorrow, 7th April 2022.
What we have explained to Mr Khan for the Petitioner and to the learned Advocate for the Society is this:
(a) All eligible persons will be treated on an exactly equal basis.
(b) No eligible persons will get any preferential treatment or preferential benefits in any form whatsoever.
(c) Those who are on transit rent will be entitled to be paid transit rent and to be paid accumulated arrears of transit rent as appropriately settled or negotiated and approved by MHADA. We will not entertain individual complaints in this regard for a higher or better rate.
(d) For those who are in transit accommodation or have not vacated their existing accommodation, dates of vacating will need to be communicated to them in advance so that they can make arrangements. They will be entitled to transit rent from the date that they vacate.
(e) All those entitled to transit rent will be entitled to payment of that transit rent until they are put into lawful possession of their Permanent Alternate Accommodation.
(f ) All eligible persons will be entitled to execution and registration of Permanent Alternate Accommodation Agreement on exactly the same terms as other members.
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(g) Those who have been offered and have taken Permanent Alternate Accommodation Agreement will not be entitled to transit rent.
(h) Those who have been offered but have refused Permanent Alternate Accommodation Agreement will also not be entitled to transit rent.
3. The expression 'transit rent' will necessarily include any agreed or mandated annual increases. In addition to transit rent, other charges such as shifting or brokerage will also need to be paid on the same footing as everyone else.
4. We note a few numbers. There were a total of 1467 affected persons. Of these, 773 have been given Permanent Alternate 694 are balance. Of these, 297 are owed transit rent. The remaining are still in occupation of their respective tenements.
5. Turning to the Petitioners, of the 67 Petitioners, five have been offered Permanent Alternate Accommodation Agreement and 29 are owed transit rent. The remainder are in their own accommodation.
6. There is also one rehab building that is under construction. So far up to 1st floor has been constructed.
7. To monitor progress, list the matter on Monday, 11th April 2022.
8. Mr Lad makes a statement that the representation dated 30th December 2021 made jointly by Richa Realtors and Tata Housing and Development Company Ltd will be decided and a decision will be communicated by 9th April 2022. This is noted.
3. There is a subsequent order of 22nd June 2022 which reads thus:
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1. Pursuant to the earlier orders passed by this Court, a report is submitted under the signature of Mr. Prakash Sanap, Resident Executive Engineer, MHADA. He was directed by this Court to figure out the prevailing transit rent. According to the said report, the prevailing transit rent is @ Rs.13,000/- to Rs.14,000/- on an average for carpet area of 300 to 400 sq.ft. per month.
2. Mr. Khan, learned Counsel for the Petitioner disputes the same and submits that the Petitioners were never given notice for hearing by Mr. Sanap.
3. The report is submitted. If the Petitioners have objection to the said report, the Petitioners may file objection.
4. The learned Advocates for the parties are at ad idem that the building where the Petitioners are presently residing, is in dilapidated condition. In that event, it would be in the fitness of things for the Petitioners to vacate the same instead of residing in the said building.
5. Nonetheless, the Authorities are also entitled to proceed further.
6. In case there is dispute with regard to the claim of the transit rent, that can be decided. The first step has already been complied with. The report is received from Mr. Sanap.
7. As the objection is raised by the learned Counsel for the Petitioners with regard to the quantum of the transit rent, place the matter on 20th July 2022.
4. Finally, there is an order of 20th July 2022 which reads as follows:
1. At the request of the parties, S.O. to 7th September 2022.Page 11 of 17
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2. The dispute with regard to the rent is not yet resolved. There are objections one way or the other. The contention of the Developer that the cheques were being offered of the rent, they are not being accepted. The objection of the tenement holders is that the rent offered is not as per the market rate. The amount of rent as may have been quantified by Mr. Sanap, may be accepted by the tenement holders, without prejudice to their rights and contentions.
3. It is not disputed by any of the parties that the building is in dilapidated condition. The human life is precious. In view of that the tenement holders may not retain the possession of their tenements which admittedly are in dilapidated condition. They are required to vacate the same so as to avoid loss of human life.
4. Earlier orders passed by this Court may also be complied with by the parties.
5. S.O. to 7th September 2022.
5. There is an Interim Application (L) No. 22913 of 2022. The Interim Application seeks the addition of the remaining members of the Society. The Interim Application is allowed. It is made absolute. Amendment is to be carried out by 20th April 2023 without need of reverification.
6. The Society is at Navghar Road, Mulund. It has a total of 1399 members. The society itself is under administratorship.
7. As the previous order shows, Richa Realtors was the original developer. Tata Housing and Development Co Ltd ("Tata Page 12 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC Housing"), is now involved in the project as a Joint Developer. This is a composite project.
8. We also have before us in Writ Petition No. 4651 of 2022, a Society called the Mulund New PMGP Colony Om Sai Cooperative Housing Society Ltd ("Om Sai CHSL"). This is said to occupy building or Block No. 56.
9. The Petitioners in Writ Petition (L) No. 3967 of 2022 ("Umbarkar & Ors") are all occupying Maharashtra Housing and Area Development Authority ("MHADA") transit accommodation. There is no dispute that they are all entitled to Permanent Alternative Accommodation and to transit rent in the meantime. This is why we had set up a protocol or system by our order of 6th April 2022 precisely towards the sale.
10. Mr Lad states on behalf of MHADA that this process has been undertaken and notices under Section 95-A of the Maharashtra Housing and Area Development Act 1976 have been issued and orders have been passed as well. That may now not be necessary in view of what has transpired today and of the order that we now propose to make which is in the interest of all and is agreed to by all before us.
11. The persons entitled to re-accommodation are obviously Umbarkar & Ors who are in the transit buildings, plus all the eligible members of the Om Sai CHSL.
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12. The Om Sai CHSL had 39 members. Of these, 14 remain in site in the building. Before this Division Bench, on 22nd June 2022 it was common ground that the building was dilapidated. We therefore decline to enter into any controversy at the instance of these remaining 14 Petitioners that the building is not dilapidated or that a Structural Audit Report should be called for. We do so all the more for the reason that these are the only 14 persons continuing in occupation. Twelve have already been given permanent alternate accommodation. The remaining 13 are elsewhere already on transit rent.
13. What we therefore propose is: (1) Umbarkar and Ors will be given a date, approximately towards the end of May 2023, by which they all will vacate the transit building. (2) Before that date the Developers (and we include both Richa Realtors and Tata Housing together) will put MHADA in sufficient funds to cover twelve months' transit rent in advance for Umbarkar & Ors.
14. Among Umbarkar & Ors there are at least two persons where there is an heirship dispute, i.e., the original occupant has passed away. We will make separate provisions for those two premises of requiring the advance transit rent to remain deposited with MHADA in separate accounts and also of making a provision in advanced of receivership of the permanent alternate accommodation so that all contentions among the rival heirs are kept in balance. Certain additional directions will be required if those proceedings are pending before a Testamentary Court such as permitting the parties to apply to the Testamentary Court to be Page 14 of 17 13th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 09:41:41 ::: 12-OSWPL-3967-2022 +.DOC appointed as an agent of the receiver or to have the premises let out on leave and licence pending the resolution of the testamentary disputes.
15. Umbarkar & Ors will be entitled to withdraw 12 months' rent in advance from MHADA from the funds made available by the Developers. Eleven months after the first withdrawal, the Developers will put MHADA in funds for the next 12 months and Umbarkar & Ors will be entitled to withdraw in advance for the next 12 months. This cycle will continue until the Occupation Certificate is obtained for the permanent alternate accommodation. Every one of the persons amongst Umbarkar & Ors will be entitled to a Permanent Alternative Accommodation Agreement ("PAAA on the same terms and conditions as are made available to others. For those who have passed away, that PAAA will be separately authorized to be executed on behalf of the heirs by the CEO of the MHADA under specific orders of this Court or by the Court Receiver to avoid further disputes.
16. So far as the Om Sai Society is concerned, the 14 members who are currently in occupation will also be given the same date towards the end of May to vacate. They will be entitled to 12 months' transit rent from the date that they vacate and the same pattern of withdrawing from MHADA after MHADA is put in funds will apply to Om Sai Members as well. Those members of the Om Sai Society who have permanent alternate accommodation already are not entitled to a fresh PAAA or to transit rent.
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17. Those 13 members of Om Sai Society who are elsewhere on transit rent will be entitled to all arrears of transit rent and thereafter to the same system of 12 months' transit rent in advance until the Occupation Certificate is obtained.
18. This is broadly the order we propose to make on the next date with specific dates, figures and timelines which are yet to be obtained by the parties. We have told all concerned that we will need a list of the names of the persons in the transit building identifying those who have passed away. This is of course available to us in the cause title of the Petition, but we would like it in a tabulated form so that we can annex it to an order to avoid all controversy. Similarly, we will need a list of all 39 members of the Om Sai Society identifying in a tabulated form which are the members yet in possession and required to vacate, who are the one on transit rent and who are the one who have been given permanent alternate accommodation.
19. Finally, to ensure that there is no controversy going forward we will require MHADA to work with these lists and for its own records to obtain sufficient identifying material or documentation or biometric material to prevent any sort of misunderstanding or controversy at a later stage.
20. At the joint request of the parties, list the matter on supplementary board on 19th April 2023.
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21. We have made it clear to all that we propose to make an order of default as well. This will need to be structured. By this we mean that the Developer will be given a cure period. If the time for making a payment is missed, the Developers will have six bank working days to make good the amount. If there is any one default, there will be an automatic termination of the NOC and all monetary claims will remain open to be agitated in an appropriate forum.
22. As regards the timelines for completion we require Mr Khandeparkar and Ms Sinha to give us an approximate estimate of time to completion. We intend to make a final order. These timelines must also be indicated by the next date. We will need from the Developer a list of the approvals that are required and at what stages they are so that we can make the appropriate directions to all necessary Authorities whether or not they are parties to the present proceedings.
23. It goes without saying that the same benefits will be available to others who may not be before us for the simple reason that no individual can expect preferential or different terms.
24. We will make it clear that the Transit Rent amount is as determined by Mr Sanap. That was why we established the entire protocol in the first place.
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