Indian Kanoon - Search engine for Indian Law

6. Sometime in March, 2009 Government of Maharashtra introduced a scheme for reconstruction/redevelopment of cessed buildings constructed before 30th September, 1969 WP/1680/2014 a/w CHSWL/269/14 and which were acquired by MHADA under the Maharashtra Housing and Area Development Act, 1976 (For short "MHAD Act, 1976). The said scheme was popularly known as "DCR 33(9)". Under the said scheme, Government decided to provide incentive FSI and other relaxations as specified in Appendix III-A of DCR 33(9). Since the occupants were languishing in transit camp accommodation or residing in dilapidated structures standing at the site, they decided to avail the benefit of the scheme under DCR 33(9). They formed a society and out of total number of 187 occupants, more than 70% supported the scheme and granted their consent. Petitioner-Society then appointed Petitioner No.5 as a Developer for redevelopment of the said property under the said scheme.

7. The State of Maharashtra under its Urban Development Department constituted a High Power Committee ("HPC") as per clause (18) of Appendix III-A of DCR 33(9). The HPC grants approval to the proposals made under the said scheme.

Petitioners accordingly submitted proposal for seeking NOC for redevelopment of the property under DCR 33(9). After procedural formalities were complied with, on 7 th August, 2009 certification of occupancies was issued under Annexure-II.

Secondly, it was submitted that amongst the several conditions that the Developer had to comply, if the cluster development was to be allowed, was that the land cost @ 25% had to be paid to MHADA prior to issuance of final NOC.

It was contended that it was made clear that proposal was required to be processed in accordance with DCR 33(9) and an agreement had to be executed with MHADA at the time of final NOC and till such time Developer was not entitled to get Commencement Certificate from BMC. It was further submitted that the terms and conditions of the said agreement were to be finalized by the Government and the Bombay Board and would be binding on the Developer. It was then submitted that the subject property was purchased by MHADA after getting sanction of the Government under section 37 of the 1969 Act for reconstruction and rehabilitation of the occupiers and it was necessary to obtain appropriate permission of the Government before issuance of LOI/NOC. It was submitted that the contention of the Developer that he had obtained 70% consent of the WP/1680/2014 a/w CHSWL/269/14 occupiers was premature since the MHADA had not asked him to obtain such consent at the stage of LOI and that the MHADA had not verified the correctness of the consent. It was then submitted that for cluster development referred to in DCR 33(9), there had to be minimum area of 4000 sq. mtrs. It was submitted that in the present case, area of redevelopment was only 3732 sq. mtrs and, therefore, it did not fit within the parameters of DCR 33(9).

18. In our view, there is much substance in the submissions made by the learned Senior Counsel appearing on behalf of the Petitioners. Condition No.1.1.(ii) explicitly makes it clear WP/1680/2014 a/w CHSWL/269/14 that permission of the Government is not required to be taken. Whenever MHADA felt that permission is necessary, it has said so in the rules itself. After having obtained NOC, Petitioner No.5 - Developer of the Petitioner-Society had taken various steps for obtaining NOCs from various Departments and had also spent an amount of Rs 1.25 crores and almost after three years, abruptly, the 1 st and 2nd impugned order/letter dated 6th May, 2014 and third impugned order/letter dated 27th June, 2014 were issued during the pendency of the Petition. In our view, this action obviously is malafide action and is completely arbitrary, capricious and therefore liable to be set aside since it is not supported by any legal provision. When condition No.1.1(ii) does not require any permission to be taken from the Government, it was not open for the MHADA and the Government to impose the said condition on the Petitioners. Secondly, construction of the Petitioners falls in the first category viz the structures which were situated on MHADA land and which were constructed prior to 30 th September, 1969. 70% of the occupants of the Soceity were in favour of Petitioner No.5 - Developer. Thirdly, Respondents - Urban Development Department had not taken any decision and the Petitioners had to approach this Court for seeking a direction, directing the Urban Development Department to take a decision. When a direction to that effect was given, even the said direction of this Court was not complied with WP/1680/2014 a/w CHSWL/269/14 and, therefore, Contempt Petition had to be filed. Only after the Contempt Petition was filed, an affidavit-in-reply was filed, stating therein that decision had already been taken on 6th May, 2014 and 27th June, 2014. It is contended in the impugned order/letter that the NOC which was granted to the Petitioners-Society and Petitioner No.5 is contrary to Section 79 of the MHAD Act, 1976. The said reasoning giving by Urban Development Department is without any substance. DCR 33(9) gives sanction to cluster development and the Petitioners' case clearly falls within the said parameters given in the said DCR 33(9). Section 79 of the Maharashtra Housing and Area Development Act, 1976 reads as under.