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Showing contexts for: DCPR 2034 in G M Heights Llp vs Municipal Corporation Of Greater ... on 29 March, 2023Matching Fragments
4. The petitioner, in these circumstances, proposed to undertake redevelopment so as to construct a commercial building, which according to the petitioner was permissible as per rules. The petitioner intends to undertake such redevelopment under the provisions of Regulation 33(19) of the Development Control and Promotion Regulation for Greater Mumbai, 2034 (for short 'DCPR 2034').
5. It is not in dispute that the petitioner had accordingly submitted a proposal to the Municipal Corporation and accepting such proposal, an Intimation of Disapproval (for short 'IOD') dated 11 November 2021 came to be issued in favour of the petitioner. It is also not in dispute that except for respondent no.3, the other 20 tenants have no objection for the redevelopment being undertaken by the petitioner as per the proposal submitted by the petitioner to the respondent- Municipal Corporation. It is only respondent no.3 who is now bipin prithiani 905-wp-5302.22.doc objecting to the redevelopment as proposed by the petitioner, for which an IOD has already been issued as noted above. The next step for the petitioner is to obtain a commencement certificate, however, as respondent no.3 is objecting and is refusing to enter into a Permanent Alternate Accommodation Agreement (for short 'PAAA'), and/or not issuing an NOC to the petitioner, the Municipal Corporation considering condition nos. 7 and 8 of the IOD has refused to grant a commencement certificate to the petitioner. Conditions nos. 7 and 8 of the IOD are required to be noted, which read thus :
(e) Interim and ad-interim in terms of prayers (c) and (d) above be bipin prithiani 905-wp-5302.22.doc granted.
(f) For such further and other reliefs as this Hon'ble Court may consider fit and proper on the facts and in the circumstances of the case;
(g) For costs."
7. Mr. Godbole, learned Senior Counsel for the petitioner has made extensive submissions. He would submit that at all relevant times the petitioner was ready and willing to offer alternate premises, as also permanent alternate premises on ownership basis to the respondent no.3, similarly as offered to the other tenants. However, respondent no.3 on totally untenable reasons is refusing to accept such offer as made to him and as accepted by the other tenants. Respondent no.3 is insisting that the petitioner ought not to undertake redevelopment as per Regulation 33(19) of the DCPR 2034 and ought to undertake redevelopment as per the Rules 33(7)(A), namely, a residential redevelopment. It is Mr Godbole's contention that such approach on the part of the respondent no.3 is untenable. It is submitted that respondent no.3 neither has any legal right, nor locus so as to dictate the course of redevelopment to be undertaken by the petitioner. It is his submission that proposal for redevelopment, as permissible in law, as put by the petitioner before the Municipal Corporation, was accepted by the Municipal Corporation by issuance of an IOD for permitting the petitioner to undertake commercial development as per the provisions of Regulations 33(19) of the DCPR 2034. It is his submission that the insistence of respondent no.3 that the redevelopment needs to take place as per Rule 33(7)(A) of the DCPR 2034 is an unwarranted assertion and in fact an obstacle being created by respondent no.3, prejudicial not only to the interest of the bipin prithiani 905-wp-5302.22.doc petitioner, but also causing a serious prejudice to the remaining tenants, who are also dishoused and who have accepted the redevelopment being undertaken by the petitioner. Mr. Godbole would submit that even otherwise considering the settled principle of law, respondent no.3 is a minority tenant/occupant of the building, which has been demolished. It is his submission that being a minority tenant, respondent no.3 cannot oppose and/or withhold the entire redevelopment.
10. Mr. Jain, learned counsel for the respondent no.3 in opposing the petition has peculiar submissions. On a query made to Mr. Jain, as to whether a single tenant, i.e., only respondent no.3 can dictate the course of redevelopment to be undertaken by the petitioner. Mr. Jain is not in a position to show any legal right, which could permit a single tenant to dictate the course of redevelopment to be undertaken by the landlord. Mr. Jain is also not in a position to draw the Court's attention to any embargo on the owner of the land, to undertake redevelopment, different from the nature of the existing building which has stood demolished. Mr. Jain is also not in a position to make good that the proposal of the petitioner as submitted to the Municipal Corporation under Regulation 33(19) of the DCPR 2034 is in any manner illegal. The insistence of Mr. Jain is that the redevelopment ought to be as per Regulation 33(7)(A) of the DCPR 2034. This, on the ground that in 2021, a draft permanent alternate accommodation agreement was forwarded to the respondent no.3 by the petitioner under which clause 10.8 provided that a redevelopment proposal under Regulation 33(7)(A) shall be submitted by the petitioner. Mr. Jain submits that petitioner cannot foist commercial premises on respondent no.3, when what was in occupation of the respondent no.3 in the demolished building were residential premises, and for such reasons municipal corporation would be right in not issuing bipin prithiani 905-wp-5302.22.doc commencement certificate in favour of the petitioner, and/or necessarily in the building which is proposed to be constructed, respondent no.3 ought to be provided residential accommodation.
11. On the above conspectus, we have heard learned counsel for the parties. We have also perused the record.
12. At the outset, we need to observe that the primarily the relief as prayed by the petitioner is that the Municipal Corporation ought not to insist for compliance of condition nos. 7 and 8 of the IOD as in the facts of the present case, respondent no.3 is not entering into an agreement for an alternate accommodation with the petitioner, and thereby is stalling the entire redevelopment. In our opinion and as rightly contended by Mr. Godbole such issue is squarely covered by the decision of this Court in Raj M. Ahuja (supra) wherein this Court interpreting similar condition as contained in an IOD, subject matter of consideration in such case, had held that incorporation of such condition which was in pursuance of clause 1.15 of 2018-Guidelines issued by the Municipal Corporation, namely, the " Guidelines for declaring private and Municipal buildings as C-1 Category (Dangerous, Unsafe)" do not mandate consent to be obtained from all 100% tenants/occupants and that consent of 51% to 70% of the tenants/occupants of the building as may be applicable to the proposals made under the relevant Regulation of the DCPR 2034 shall amount to sufficient compliance, for processing of development/ redevelopment proposal for a commencement certificate to be issued including in respect of buildings covered under Section 354 of the MMC Act. Mr. Godbole is also correct in his contention that bipin prithiani 905-wp-5302.22.doc Regulation 33(19) in fact is different from the other regulations, which had fell for consideration before the Court in the said decision, where consent of 51% to 70% was incorporated in the DCPR 2034. The submission is that such a clause has not been incorporated in Regulation 33(19) of the DCPR 2034.