Bombay High Court
Darshan Sky High Construction Llp And ... vs The Mumbai Buildings Repair And ... on 17 July, 2021
Author: Prithviraj K. Chavan
Bench: K.K. Tated, Prithviraj K. Chavan
28-WP-1425-2021.odt
Chitra Sonawane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1425 OF 2021
Darshan Sky High Construction
LLP & Anr. .... Petitioners.
Vs.
The Mumbai Buildings
Repair and re-construction
Board and Ors. .... Respondents.
WITH
INTERIM APPLICATION (L) 15365 OF 2021
IN
WRIT PETITION NO.1425 OF 2021
Shree Munjeshwar Coop.Housing
Society (proposed) & Anr. ...Applicant.
Vs.
Darshan Sky High Construction
LLP & Anr. .... Respondents.
....
Mr. Yadunath Chaudhari a/w Mr. Rupesh Mandhare i/b Sean Wassodew
for petitioner.
Ms Sharmila Deshmukh for respondent nos.1 to 3.
Mr. Mangesh D. Chavan for respondent nos. 6 to 28 except 5, 9, and
18.
Mr.S.B. Gore, AGP for State.
Mr.Siddharth Ingule for respondent nos.5, 9 and 18.
Mr.Deepak T. Raut for applicant in I.A.(L) no.15365/2021.
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CORAM : K.K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE : 17th JULY, 2021.
[Through Video Conferencing] P.C.
1. Heard learned Counsel for parties.
2. By this petition under Article 226 of the Constitution of India, the petitioner is seeking direction to Respondent Nos. 1 to 3 to take appropriate action against respondent no.5 to 28, their servants, agents and persons claiming through or under them or whomsoever is found in occupation of the said premises u/s 95-A of The Maharashtra Housing & Area Development Authority Act (hereinafter to be referred as 'the said Act') and implementing the same in time bound manner by forcibly evicting respondent nos. 5 to 28 from their tenements in chawl no.21-C.
3. Learned Counsel Mr.Yadunath Chaudhari appearing on behalf of the petitioner submits that in the present petition the petitioner is a Developer for re-development of property situated at CS No.718 of Mazgaon Division, sub-ces no. e-8143, 8144, e-8148.1, e.no.17, 19a and 21c D.P. Wadi, K.L.Borkar Marg, Ghorupdev, Mumbai-400 033, known as Chaskar Chawl. Learned Counsel for the petitioner submits that after following due procedure of law they entered into an Agreement for Permanent Alternate Accommodation with all respondents. He submits that respondent nos.5 to 28 also executed agreements. As per the said agreement they agreed to accept sum of Chitra Sonawane 2 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt Rs.16000/- p.m. by way of compensation. Clause 6 of the said Agreement (page no.64) reads thus;
6. It is agreed that the Owner/Developer/Lessee shall pay to the Tenant/Occupant a sum of Rs.16,000/- (Rupees Sixteen Thousand only) per month (hereinafter called the "Temporary Accommodation Charges") for first 11 months plus 1 month rent as a brokerage to enable the Tenant/Occupant to acquire and stay in the Temporary Alternate Accommodation. The said Temporary Accommodation charges plus 1 month rent as a brokerage for first 11 months shall be paid by the Owner/Developer/Lessee to the Tenant/Occupant at the time of Tenant/Occupant handing over the vacant possession of the existing premises to the Owner/Developer/Lessee for the purpose of demolition of the same and the Temporary Accommodation Charges for remaining period Owner/ Developer/Lessee shall pay at 10% increasing rate for every successive 11 months, till handing over possession of the new premises. That, Owner/Developer/Lessee hereby agrees that he shall pay Temporary Accommodation Charges by way of post dated cheque before one month ending the 11 months and shall hand over post dated cheque to tenant/occupant. The Owner/Developer/Lessee shall also pay the brokerage charges for the alternate 11 months. It is further agreed that the Owner/Developer/Lessee shall pay to the Chitra Sonawane 3 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt tenant/occupant a sum of Rs.8,000 as one time charges for transportation/shifting at the time of handing over possession of existing premise to the Owner/Developer/Lessee
4. Learned Counsel submits that inspite of several request, respondent nos. 5 to 28 failed and neglected to hand over their tenements for re-development, hence, he preferred present petition and seeking direction to respondent/MHADA to take appropriate action against these respondents u/s 95-A of the said Act.
5. Learned Counsel for the petitioner submits that respondent nos. 5 to 28 failed and neglected to vacate the premises due to which petitioner is suffering loss day by day. Therefore, in the interest of justice this court be pleased to direct MHADA to take action u/s 95-A of the said Act immediately for evicting respondent nos. 5 to 28.
6. Learned Counsel appearing on behalf of respondent nos.5, 9 & 18 submits that they have no objection to vacate the premises as per agreement dated 31.10.2015 executed by the Developer with the on payment of usual charges. He submits that these respondents filed their affidavit dated 26.2.2021. Same is on record at page no. 212 to
218. He submits that these respondents specifically stated in para 3 and 6 that they are ready and willing to vacate their premises as soon as the Developer called upon them. Para 3 and 6 of the affidavit (page no.213) reads thus;
3. I say that the agreement dated 31.10.2015 for permanent alternate accommodation was entered into by me. I say that tersm and conditions thereof are binding on me and I fully agree to abide by the Chitra Sonawane 4 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt provisions thereof. I say that I have entered into fresh agreement for permanent alternate accommodation on 15.10.2020. I say that the said agreement has the same terms and conditions as the earlier agreement dated 31.10.2015, for permanent alternate accommodation. I say that I am ready to register the fresh agreement for permanent alternate accommodation. I say that the terms and conditions thereof are binding on me.
6. Without prejudice to the aforesaid, I say that though, IOD is obtained on 30th August 2018 and Commencement Certificate is obtained on 21 st August 2019, and though 27 tenants have been vacated from their premises, the Petitioners have not taken any serious steps to vacate the other tenants and commence the redevelopment. I say that myself and similarly situated tenants are being seriously prejudiced by the delay in implementation of the project. I say that we are deprived of the permanent alternate accommodation that we have been promised. I say that the Petitioners ought to take immediate steps for vacating all the tenants and forthwith carrying out the redevelopment project in accordance with law. I say that if the petitioners fail to take necessary steps for vacating the other tenants and forthwith carrying out the redevelopment project, I may be constrained to claim appropriate damages from the petitioners and/or obstructing tenants for the delay in implementation of the project.
7. Learned Counsel Mr.Mangesh Chavan appearing on behalf of respondent nos.6 to 8, 10 to 17 and 19 to 28 vehemently opposed the present writ petition. He submits that the petitioner executed an agreement with them in the year 2015 and thereafter, he took more than 4 years to get sanction from MHADA. Not only that, the petitioner also changed the plan. Learned Counsel for these respondents submit that their main grievance in respect of not handing over possession of tenements are mentioned in para 11 of affidavit-in-reply which reads as Chitra Sonawane 5 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt under, (page no.258).
8. The respondents submit that their main grievances against the petitioners are as follows;
a) The petitioners had not explained the redevelopment scheme to the tenants/occupants including these respondents.
b) These respondents have gained some knowledge and understanding that the Developer has completely changed the redevelopment scheme via online application through his L.S.Mr.Nilesh Kadakia, Architect and has proposed to convert entire proposal from DCR 1991 33 (7) into DCPR 2034 as per regulation no.9(6)(a) of DCPR 2034 which itself is a breach as per the condition no.(vi) &(vii) of the permanent alternate accommodation agreement. Hereto annexed nd marked an Exhibite "E" are the copies of the proposal which has been downloaded through Website. In this context, it is submitted that the petitioner has not explained these scheme to the tenants/occupants, by doing so, he had claimed additional benefits such as additional 5% carpet area free of cost as per DCPR 2034, increased approved parking slots, Yogalaya, Fitness center (Gym) for the Rehab component, unfortunately the tenants are not going to get these benefits as such all these benefit are not mentioned in the permanent alternate accommodation agreement.
c) The respondents submit that MCGM in their IOD bearing no.CHE/CTY/0581/E/337(new) as per condition no.12 saying that "That the existing structure proposed to be demolished will not be demolished or necessary phase program with agreement with existing tenements as finalized by monitoring committee will not be submitted." In this context, it is submitted that the petitioners has not provided transit camp or had also not submitted any such plan/phased program for temporary transit accommodation till redevelopment of Rehab building.
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These respondents state that developer is not willing to provide temporary transit accommodation to tenants/occupants though he had promised orally at the time of executing permanent alternate accommodation agreement.
d) The respondents submit that as per the term no.2 of the permanent alternate accommodation agreement which says as follows-
"The owner/developer/lessee will obtain N.O.C. from MHADA and thereafter submit the plan for approval to Mumbai Municipal Corporation and will get the approval within 18-24 months and/or as per the law and thereafter if further delay then owner/ developer/lessee and Tenants Occupants mutual discussion."
In this context, it is submitted that the developer failed to keep up the timelines of the redevelopment project as agreed. From the above context, it is submitted that Developer has defaulted on the timeline and as per the agreement, it was obligatory on the part of the developer to have mutual discussion with the tenants/ occupants but developer failed to do so.
e) The developers by their letter dated 21st October 2020 issued to respondent no.14 and similar letters of the same date issued to all tenants whereby called upon to attend Sub-Resigstrar office for execution and registration of permanent alternate accommodation agreement without approval of their consent and/or consent of their Society (Prop.). These respondents state that after perusal the contents and/or clauses of the new permanent alternate accommodation agreement is altogether different clauses from the old one, which shows that malafide intention of the developers. Hereto annexed and marked an Exhibit "F" are the copy of the letter dated 21 st October 2020 calling upon the tenants for execution/registration of permanent alternate accommodation agreement and Exhibit "G" is the copy of the new permanent alternate accommodation agreement.
f) It is further submitted that considering the year of Chitra Sonawane 7 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt execution of permanent alternate accommodation agreement in the year 2013 to 2015 and today's position, it is not possible for the tenants including these respondents to accept the transit compensation of Rs.16,000/- per month without prejudice their rights. Moreover, there are number of writ petitions are pending against the various developers in the nearby vicinity regarding not paying transit compensation to the tenants, these respondents are in apprehension that the petitioners may not pay transit compensation to the tenants. It is also pertinent to note that tenants/occupants have received the information under RTI Act that there are several constructions nearby vicinity has been stalled for various reasons of CORONA, Demonetization etc. and the compensation towards the temporary alternate accommodation has not been paid to their respective occupants by their respective developers. Hereto annexed and marked Exhibit H is the information received from MHADA under RTI. Whereas there is report from MHADA Architect showing that the Developers can build transit camp on the PG plot. Hereto annexed and marked an Exhibit "I" is the copy of the Architect report dated 8th April 2021 showing the possibility of construction of transit camp on site. The developers can make an application to the MCGM nfor relaxation of the condition of IOD for surrendering P.G. plto after consuming 50% approved built up area.
g) It is submitted that permanent alternate accommodation agreement was executed way back in the year 2013. Therefore, there are few clauses in agreement viz Carpet area (as revised under DCPR 2034) corpus fund considering the increasing inflation and parking slots given to rehab tenants in rehab building needs to be incorporated in the agreement considering the respective policy in force as on date etc.
h) It is submitted that the permanent alternate accommodation agreement should be governed by MOF Act and provisions and regulations laid by MOF Act.
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i) It is submitted that the developer has to make it clear that the Conveyance of the said property in the name of the society after completion of construction and handing over process as the said plot is lease of the State of Maharashtra.
j) These respondents requested the petitioners to arrange meeting of Tenants & Occupants jointly with to clearly understand the redevelopment process at various states.
k) Clarification regarding Civil Suit is pending in Hon'ble City Civil Court for ownership rights of 77 sq.mtr. Of piece and parcel of land bearing C.S. No.718 before vacating the existing MHADA certified tenants.
l) It is submitted that all the points/clauses need to be incorporated in agreement for permanent alternate accommodation which is required to be registered.
m) The developer should confirm first under which development scheme redevelopment will be carried out DCR 33(7) of 1991 or DCPR 2034.
n) The developer should provide the copy of project proposal submitted to MCGM and approved plants to tenants.
o) The developer need to show approved plan and 3D plans to tenants and occupants and help them to understand how the new building will be developed.
p) The permanent alternate accommodation should be handed over to tenants at free of cost on ownership basis with clear marketable title and having no encumbrances of any nature whatsoever on the flat as well as land.
q) After possession of the flat in Rehab society, tenants can let out/sale his/her ownership flat and builder should not insist tenant to take NOC from him and if builder NOC is mandatory for any transaction with respect to tenant ownership flat, then such NOC Chitra Sonawane 9 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt should be made available by the developer within 3 days after written request from the tenant free of charge.
r) The developer should form project monitoring committee as directed by Govt. authorities in their approvals.
s) The developers should deposit 50% of the Corpus funds to be given to the each tenant in the account of society which to be registered under MCS Act before vacating the old premises.
t) The developer should complete the redevelopment work within stipulated time frame as mentioned in the agreement.
u) The permanent alternate accommodation agreement should be governed as per MOF Act 1963/ RERA/MCS 1960 and all the prevailing rules and regulations stipulated by concerned govt authorities time by time.
v) The developer should hand over all the approved parking space to be developed in the new rehab building/parking tower to the proposed society of the tenants and society will allot/utilize this parking space handed over in the new rehab building/parking tower as per the need to the tenants/members.
w) All the new members except MHADA certified tenants shall be admitted in the society after completion of the re-development project and after approval of General Body Meeting of the society only.
x) The developer shall renew the lease of land occupied by the said rehab building in favour of rehab CHS for minimum period of 30 years and renewal fees and any other charges arising out of it shall be borne by developer.
y) It is submitted that litigation bearing Writ Petition No.6714/2016 pending in the Hon'ble High Court in respect of said land regarding breaches of terms and Chitra Sonawane 10 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt condition of the original Lease Deed dated 29 th August 1924 which is yet to be decided.
9. Learned counsel for respondents submit that these facts are stated by them in affidavit in reply dated 14/7/2021. He submits that even the Expert from MHADA specifically submitted in the Report that a Developer can construct transit accommodation on the same plot of land. He submits that instead of constructing alternate transit accommodation on the same plot of land, the petitioner is offering only Rs.16,000/- p.m. They also have an apprehension that in case the petitioner gets additional benefit it may or may not be transferred to the occupants. Therefore, there is no question of directing MHADA to take appropriate action u/s 95 of the said Act and petition is required to be dismissed with costs.
10. Learned Counsel appearing on behalf of MHADA submits that if the Court passes an order, they can take action u/s 95 of the said Act.
11. After hearing both the sides when this Court came to conclusion that, in the interest of justice it is necessary to direct MHADA to take action u/s 95A of the said Act, learned Counsel for respondent nos.6, 7 , 8 , 10 to 17, 19 to 28 submits that he require some time to take instructions from his client whether they are ready and willing to hand over possession to the Developer without prejudice to their rights. He submits that they may be permitted to make application before MHADA for their remaining grievances.
12. Considering these facts, at the request of learned Counsel Chitra Sonawane 11 of 12 ::: Uploaded on - 19/07/2021 ::: Downloaded on - 19/07/2021 21:39:11 ::: 28-WP-1425-2021.odt for respondent nos. 6 to 28 except respondent nos. 5, 9 and 18, Registry is directed to place this matter on 27 th July 2021 for making appropriate statement.
[PRITHVIRAJ K. CHAVAN, J.] [K. K. TATED, J.]
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