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R.V.RAVEENDRAN, J.

Leave granted. Heard the parties.

2. The appellants challenge the order dated 5.5.2005 by which W.P.No.649/2005 filed by them was dismissed by the Bombay High Court.

3. A property known as Pimpalwadi at CS No.370 Tatya Gharpure Marg, Girgaon Division, Mumbai, originally belonged to Sir Harkishandas Trust. The said property consisting of several Chawls, Godowns and Sheds was acquired by the State of Maharashtra under section 41 of the Maharashtra Housing & Area Development Act, 1976 in the year 1988. Thereafter, the State Government delivered possession of the said property to the Maharashtra Housing & Area Development Authority (`MHADA' for short) on 31.1.1989 for redevelopment under Urban Renewal Scheme. However, due to certain protracted litigation between the owners of the property and Pimpalwadi Bhadekaru Sangh formed by the occupants of the said property, MHADA could not take up the reconstruction. At that stage, the said Pimpalwadi Bhadekaru Sangh, gave a proposal to MHADA to permit development of the property through M/s. Shreepati Towers - a private developer (an AOP of respondents 5 to 12 described also as "R.R. Chaturvedi & Others of M/s. Shreepati Group"). The said property had 312 residential tenements and 23 non-residential tenements. MHADA considered the proposal and granted a no objection certificate dated 27.2.2001 for redevelopment of the said property in favour of the developer, under Regulation No. 33(7) of Development Control Regulations for Greater Mumbai, 1991 (for short `DC Regulations').

4. The said NOC was challenged by some occupants/tenants by filing WP No.1299/2001 in the Bombay High Court. The said petition was allowed by order dated 30.4.2002 and the NOC dated 27.2.2001 granted by MHADA to the developer was set aside with a direction to MHADA to itself develop the property. The said decision was challenged by MHADA in C.A. Nos.2046-47/2003 before this Court. The developers and some tenants also filed appeals. In those appeals, this Court by interim order dated 23.9.2002 called upon the State Government and MHADA to state whether the State Government would direct MHADA to take up and proceed with the construction. In pursuance of it, the State Government and MHADA held deliberations and MHADA prepared a scheme in consonance with the guidelines issued under the Urban Renewal Scheme by the Government read with DC Regulation 33(9). Thereafter, the State Government filed an affidavit dated 15.2.2003 wherein they set out the terms of a scheme as follows :

"Under the scheme, the property can be developed by MHADA utilizing up to 4 FSI. The contractor/developer involved in the scheme shall construct 335 tenements for the existing tenements free of cost to MHADA. He shall get some areas for free sale which will be equivalent to 2.5 FSI minus the FSI required for construction of tenements for the tenants. He shall also construct additional tenements free of cost for MHADA to accommodate tenants in the Master List using part of the balance 1.5 FSI out the total 4 FSI available under the scheme. The said scheme can be implemented by MHADA involving contractor/developer who has consent of atleast 70% of the occupants of the property in question.

6. During the course of the execution of the development project, five tenants filed Writ Petition Nos.108/2003 and 3096/2003 challenging the subsequent NOC dated 23.5.2003 issued by third respondent in accordance with the order of this Court, approving the Scheme. The Bombay High Court by its judgment dated 16.2.2004 dismissed the said petitions and in the course of the said judgment, observed as under :-

"The NOC dated 23.5.2003 granted by MHADA pursuant to the directions given by the Supreme Court is now sought to be challenged primarily on the ground that the DC Regulation 33(7) has no application to the said property as DC Regulation 33(7) is applicable to cessed properties whereas the said property is acquired property, and therefore the state has committed an error in applying DC Regulation 33(7) and the NOC is invalid.......DC Regulation 33(9) is applicable to properties acquired by the State/MHADA whereas DC Regulation 33(7) apply to cessed properties. However, there is nothing in the provisions of DC Regulations 33(9) and 33(7) cannot be invoked simultaneously so that MHADA can get additional tenements in order to house dishoused persons as per the Master List. In fact both provisions were incorporated in the scheme submitted before the Supreme Court. The scheme approved by the Supreme Court specifically contemplate that the land, though vested in MHADA/State would be developed through the builder by invoking the provisions of DC Regulation 33(9) read with D C Regulation 33(7) of the D C Regulations."