1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODG.) NO. 86 OF 2010 IN WRIT PETITION (LODG.) NO.10 OF 2010 1. Sushila Digambar Naik ) Adult, Occupation – House Wife, ) Residing at Room No.34/1860 ) 2. Kailas Narsaiya Adep ) Adult, Occupation : Retired ) Residing at Room No.34/1943 ) 3. Nilofar Shaikh ) Adult, Occupation : None ) Residing at Room No.34/1845 ) 4. Sarojini Mahabal Shetty ) Adult, Occupation : Service, ) Residing at Room No.34/1853 ) 5. Mahendra Kathrani ) Adult, Occupation : Service ) Residing at Room No.34/1857 ) 6. Sunil Digamber Naik ) Adult, Occupation : Service ) Residing at Room No.34/1859 ) 7. Eslinda Michael Serao ) Adult, Occupation : Housewife ) Residing at Room No.34/1875 ) 8. K.C. Govindan, ) Adult, Occupation : Retired ) Residing at Room No.34/1838 ) 9. Asha Rajendra Jain ) Adult, Occupation : Housewife ) 2 Residing at Room No.34/1858 ) All at Kher Nagar Ganeshkrupa ) Co-operative Housing Society Ltd., ) Bandra (East), Mumbai – 400 051 ) 10. Mangala Pansare ) Adult, Occupation : Housewife ) Residing at Room No.34/1830 ) 11. Hansa Bansidhar Bharucha ) Adult, Occupation : Housewife ) Residing at Room No.34/1833 ) 12. Natha R. Kadam ) Adult, Occupation : Retired, ) Residing at Room No.34/1846 ) 13. Henry S. Fernandes ) Adult, Occupation : Retired ) Residing at Room No.34/1856 ) 14. Manorama Manohar Rane ) Adult, Occupation : Housewife ) Residing at Room No.34/1863 ) 15. Gopal S. Amin ) Adult, Occupation : Retired ) Residing at Room No.34/1866 ) 16. Smitha Jayaram ) Adult, Occupation – None ) Residing at Room No.34/1867 ) 17. Pramod Kirdat Patil ) Adult, Occupation : Business ) Residing at Room No.34/1829 ) 18. Salim Khan ) Adult, Occupation : Business, ) Residing at Room No.34/1842 ) ) 3 19. Shantaram S. Shetty ) Adult, Occupation : Service, ) Residing at Room No.34/1840 ) ... Appellants (Ori. Petitioners). V/s. 1. Maharashtra Housing & Area ) Development Authority ) Having Registered Office at ) Griha Nirman Bhavan, Kala Nagar, ) Bandra (East), Mumbai – 400 051 ) 2. Mumbai Housing and Area ) Development Board, ) Having Office at Griha Nirman ) Bhavan, Kala Nagar, ) Bandra (East), Mumbai – 400 051 ) 3. Executive Engineer, ) Bandra Division, Mumbai Board, ) Having Office at Griha Nirman ) Bhavan, Kala Nagar, ) Bandra (East), Mumbai – 400 051 ) 4. Khernagar Ganeshkrupa Co- ) Operative Housing Society Ltd. ) Building No.34, Khernagar, ) Bandra (East), Mumbai – 400 051 ) 5. M/s. A.A. Estate Pvt. Ltd. ) Having Registered Office at ) 3rd floor, RNA House, Fort, ) Mumbai – 400 023. ) ... Respondents. Mr. K.V. Tembe a/w. Mr. Amol K. Tembe for the Appellants. Mr. S.B. Prabhawalkar i/b. M/s. Dipashri U. Raorane for Respondent No. 5. Mr. G.W. Mattos, AGP for Respondent Nos.1 to 3. 4 CORAM : ANIL R. DAVE, C.J. & S.C. DHARMADHIKARI, J. ORDER RESERVED ON : 17th FEBRUARY, 2010. ORDER PRONOUNCED ON : 12th MARCH 2010. ORAL ORDER :- Admit. By consent, Appeal heard finally. 2. This Appeal under Clause 15 of the Letters Patent is directed against the order of the learned Single Judge dated 4th February 2010 in Writ Petition (Lodg.) No. 10 of 2010. The Appellants are the Original Writ Petitioners whereas, the Respondents to this Appeal were the contesting Respondents in the Writ Petition. 3. By this Writ Petition, the Appellants/Original Petitioners prayed for issuance of a Writ of Certiorari or any other Writ order or direction in the the nature of certiorari calling for records in respect of an order dated 29th December 2009, passed by the Executive Engineer, Bandra Division of the Mumbai Housing and Area Development Board which is a unit of the Maharashtra Housing and Area Development Authority. The order was passed pursuant to the powers conferred by Section 95-A of the Maharashtra Housing and Area Development Act, 1976 (for short MHAD Act). 5 4. Few facts have to be noted for appreciating the submissions of Mr. Tembe, learned Counsel appearing on behalf of the Appellants. 5. The Fourth Respondent before us is a Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960. Respondent No.1 is the Authority established under the MHAD Act. Respondent No.2 is a Board established under Section 18(1)(a) of the said Act, whereas Respondent No.3 is a Officer of the Second Respondent - Board. The Fifth Respondent before us is a Company incorporated under the Companies Act, 1956. 6. The Fourth Respondent is a lessee of the First Respondent in respect of a piece of land admeasuring 1119.13 sq. mtrs. situated at Khernagar, Bandra (East), Bombay - 400 051. The Fourth Respondent is a owner of the Building No.34 standing on the said land. This building was sold and conveyed by the First Respondent to the Fourth Respondent – Society under a Deed of Conveyance. 7. It is alleged in the Writ Petition that the Fourth Respondent appears to have authorized the Fifth Respondent to re-develop the land by demolishing Building No.34. The Second Respondent appears to have given their No Objection Certificate for such re-development. It is the case of the Petitioners that out of 54 members of the Fourth Respondent – Society, 34 have 6 vacated their premises and shifted to alternate accommodation. The Petitioners are opposing the proposed re-development of the land. Certain litigation is pending in the City Civil Court at the instance of the Fifth Respondent, inter-alia, against the Petitioners. 8. The principal allegation in the Writ Petition is that the Third Respondent issued to the Petitioners and one another member, 20 identical show cause notices, all dated 10th August 2009 purportedly under Section 95-A of the MHADA Act, calling upon them to show cause as to why they should not be summarily evicted from their premises. The allegation is that these show cause notices are wholly without jurisdiction and completely illegal. It is alleged that a Writ Petition being Writ Petition No.1802 of 2009 was filed, challenging these show cause notices but during the pendency thereof, the third Respondent proceeded with the hearing of the show cause notices and passed the order impugned in the Writ Petition, copy of which is annexed at Exhibit ‘F’ to the Petition. 9. Three grounds to challenge the notices and the impugned order were raised in the Writ Petition. 10. It was contended that Respondent No.3 has no jurisdiction or authority to issue the show cause notice and pass the order of summary eviction. It was contended that Section 95- A is appearing in Chapter VIII of the MHAD Act. It was urged that Section 74 of the Act contemplates “a Board”. The Board for 7 carrying out the purposes of the said Chapter is not the Second Respondent but the Mumbai Repair and Reconstruction Board. Therefore, Respondent Nos. 2 and 3 could not have issued any notice under Section 95-A or pass the impugned order. Section 95-A also appears under the same Chapter. Further, the Repair Board alone being empowered under Section 75 so also under Section 18(1)(c) of the MHAD Act, then, the order impugned in the Writ Petition cannot be sustained and it should be set aside on this ground alone. 11. The next contention was that assuming without admitting that by G.R. dated 6th December 2008, Section 95-A of the MHAD Act was extended to buildings Respondent No.1 situate in Mumbai Suburban District, even then, the G.R. has only prospective effect. In the instant case, even by virtue of the G.R., Section 95-A could not have been applied to the buildings in question. 12. It was contended that Petitioner Nos.10 to 19 having withdrawn their consent to the re-development project by signing a declaration dated 27th October 2007 and forwarding their letters dated 17th November 2007, the re-development project of Respondent No.4 does not have the support of 70% of the members of Respondent No.4. Hence, Section 95-A could not have been invoked in the facts of this case. It was then contended that the N.O.C./Sanction dated 9th November 2004 is for re- construction of the existing residential building on the basis of the 8 terms and conditions enlisted in the letter of the Chief Officer, Maharashtra Housing and Area Development Board. That is a sanction under Regulation 32 and not under modified Regulation 33(5) of the Development Control Rules for Greater Bombay. Thus, the NOC is under the old Rules and therefore, the Regulation 33(5) as relied upon by the Respondents is inapplicable. Therefore, the order passed by Respondent Nos.2 and 3 is vitiated by non-application of mind and is otherwise bad in law. Therefore, it must be set aside. 13. Upon the Writ Petition being served, Respondent No.3 filed an affidavit in reply. That affidavit is affirmed by the Deputy Engineer, working in the office of Respondent No.3 on 11th January 2010. In the said affidavit it is stated that the argument that Respondent No.3 has no jurisdiction to take any action under Section 95-A of the MHAD Act is erroneous and deserves to be rejected. It is stated that Respondent No.2 is concerned with MHADA lay outs in the Island City of Mumbai and Mumbai Suburbs. As far as Section 18(1) is concerned, the Mumbai Building Repairs and Re-construction Board has no jurisdiction in so far as buildings which are situated and located outside the city limits. Thus, in Mumbai suburban area, the powers have to be exercised by none other than Respondent Nos.1 and 2. Therefore, the argument that Respondent Nos.2 and 3 has no jurisdiction is without any substance. 9 14. As far as the next argument is concerned, it was urged that the D.C. Regulations 33(5) are applicable to a MHADA lay out. The building in question is situate in a MHADA lay out. The application for approval of the Khernagar lay out was forwarded to Municipal Corporation of Greater Mumbai, by the Senior Architect and Planner – I of the Second Respondent on 24th October 2000. The lay out approval was granted by the MCGM on 21st June 2001. Thereafter, an application was made by the 4th Respondent – Society to the 2nd Respondent for re-development. Thereafter, an offer letter dated 13th October 2003 was issued by Respondent No. 2 to Respondent No.4 and it was on the condition that all terms imposed by the MCGM in its lay out approval letter dated 21st June 2001 are applicable. Based upon this condition, that the N.O.C. for re-development was issued by Respondent No.2 on 9th January 2004. Hence, even the second argument is baseless. 15. The third contention that 70% of the members have not given their consent is also baseless because a Special General Body Meeting was convened and a decision was taken thereat. Thereafter, a development agreement was entered into by Respondent Nos.4 and 5. The agreement is duly signed by 45 out of 54 members of Respondent No.4 – Society. Further, a declaration was also signed by the same number of members of Respondent No.4. Hence, after the condition of 70% has been satisfied that the N.O.C. came to be issued. 34 out of the 54 members have vacated the premises in their possession. In these circumstances, the re-development scheme has the requisite 10 support and therefore, the argument to the contrary be rejected. 16. The Writ Petition was placed before the Single Judge, who, by the impugned order, has dismissed the same. Hence, the instant appeal. 17. We have heard Mr. Tembe, learned Advocate appearing on behalf of the Appellants and Mr. Mattos and Mr. Prabhawalkar, appearing for the contesting Respondents. With their assistance, we have perused the Judgment under Appeal, the original Writ Petition and all annexures thereto, so also the affidavit in reply filed before the Single Judge. 18. The Maharashtra Housing and Area Development Act, 1976 defines the term “Board” in Section 2(6). It means the Board established under Section 18 of the Act. Section 18 of the Act states that the five (5) Boards which have been established before the commencement of the MHADA (2nd amendment) Act, 1992 and shown in Column 1 of the table appearing below sub-Section 1(sub-clause (a) of Section 18) shall have the area of jurisdiction shown against each of such Board in Column 2 of the table. Serial No.1 is the Mumbai Housing and Area Development Board and its area of jurisdiction is District and City of Mumbai and Mumbai Suburbans. Thereafter, Section 18(1)(c) states that the State Government, by Notification in the Official Gazette, establish two (2) Boards for carrying out the activities of repairs and reconstruction and slum improvement. The Board shall have the 11 jurisdiction over the area in the Districts as shown against each of them on and with effect from such date as may be specified in that Notification. As far as the Mumbai Repairs and Re- construction Board which is enlisted at Serial No.1 below sub- clause (c) is concerned, its area of jurisdiction is the City of Mumbai. 19. Therefore, there is no substance in the contentions of Mr. Tembe that Mumbai Repairs and Re-construction Board established under Section 18 of the Act shall be the Board for the purpose of carrying out Chapter VIII of the MHAD Act, 1976. In other words, his argument that Section 95-A can be invoked only by the Mumbai Repairs and Reconstruction Board established under Section 18 cannot be held to be valid as the said Board has no jurisdiction in so far as the premises in the present Petition and Appeal are concerned. Admittedly, these premises are not located and situated in the City of Mumbai but are in Mumbai Suburban District. Mumbai Suburban District is not specified as the area of jurisdiction of the Mumbai Repairs and Reconstruction Board [see Section 18(1)(c)]. Therefore, Respondent No.2 to the Petition and Appeal was the Board having jurisdiction in respect of the premises covered by the present Petition. Therefore, the Executive Engineer of the Second Respondent was competent to issue the show cause notice under Section 95-A of the Act. Therefore, the first contention of Mr. Tembe that the show cause notices and the order passed in furtherance thereof, are without jurisdiction and therefore, void must fail. 12 20. Equally, untenable is his argument that the NOC in this case being of 9th January 2004, the amended D.C. Regulation 33(5) is inapplicable. 21. His argument was that in the instant case, the old D.C. Regulation 33(5) would apply and the Notification dated 6th December 2008 modifying the same will be inapplicable. With his assistance, we have perused the old D.C. Regulation 33(5) and the Notification dated 6th December 2008. The preamble to the Notification states that the Government has sanctioned D.C. Regulations for Greater Mumbai and they came into effect from 25th March 1991. D.C. Regulation 33(5) of the Regulations deals with low cost housing schemes of the MHADA. The Government in the Housing Department has declared a Housing Policy and the Policy proposed to allow redevelopment of MHADA colonies by providing higher FSI and to revise the size of old tenements. This will enable the present occupants to have better accommodation as well as create additional housing stock. Therefore, the Government found it necessary to prepare a new set of Regulation No.33(5) by replacing the existing Regulation 33(5). Thereafter, the Government followed the necessary procedure for modification of the D.C. Regulations and declared that Regulation 33(5) as existing stands deleted and replaced by the Schedule to the Notification. The Schedule to the Notification reads thus :- 13 “33(5) Development/redevelopment of Housing Schemes of Maharashtra Housing & Area Development Authority : 1] The FSI for a new constructed tenements scheme of Low Cost Housing Schemes on vacant lands for Economically Weaker Section, Low Income Groups & Middle Income Group of the MHADA having at least 60% built up area in th form of tenements under EWS, LIG & MIG categories shall be 2.50. 2] For redevelopment of existing housing schemes of MHADA, undertaken by the MHADA departmentally or jointly with societies/occupiers of builders or by housing societies/occupiers of building or by lessees of MHADA or by the developer, the FSI shall be as under :- a) Total permissible FSI shall be 2.5 on gross plot area. b) The incentive FSI admissible against the FSI required for rehab shall be as under :- (i) In Island City, for the area upto 4000 sq.mt. the incentive FSI admissible will be 50%. 14 (ii) In Island City, for the area above 4000 sq.mt. the incentive FSI admissible will be 60%. (iii) In suburban area, for the area upto 4000 sq.mt. the incentive FSI admissible will be 60%. (iv) In suburban area, for the area above 4000 sq.mt., the incentive FSI will be 75%. (c) In the redevelopment schemes either (i) difference between 2.5 FSI and the FSI required for rehab + incentive shall be shared between MHADA and Society/Developer in the ratio of 2:1 or (ii) for additional built up area over and above the permissible FSI as per DCR 32, MHADA shall charge premium at the rate decided by Govt. in Housing Department from time to time. (d) In the scheme, for the land developed for societies of HIG and developed plot allotted individually to HIG group, the permissible FSI shall be as per Development Control Regulation 32. Provided that if the redevelopment of existing housing scheme of MHADA fulfills the provision of 33(9) of the said Regulation, modified from time to 15 time, then it may be undertaken under Regulation 33(9). 3] For the purpose of calculating the FSI, the entire area of the layout including development plan roads and internal roads but excluding the land under the reservation of public amenities shall be considered. Sub-division of plots will be permissible on the basis of compulsory open spaces as to these Regulations. For low cost housing schemes of MHADA for EWS, LIG categories, the Regulations in Appendix-1/excluding 1(b) shall apply. 4] For the purpose of this Regulation the carpet areas for EWS, LIG or MIG tenements shall be as determined by the Government from time to time. 5] For the off site infrastructure, MHADA shall pay to the MCGM 12.5% of the charges collected by MHADA for the grant of additional FSI (FSI over and above the normally permissible FSI) for the Redevelopment Schemes. 6] Notwithstanding anything contained in these regulations, the regulations, incorporated in Regulations No.33(10) of these regulations shall 16 apply for Housing schemes under this regulation for tenements under EWS/LIG and MIG categories. However, the front open space shall not be less than 3.6 mt. 7] In any Redevelopment scheme where the Co-operative Housing Society/Developer appointed by the Co-operative Housing Society has obtained No Objection Certificate from the MHADA/Mumbai Board thereby sanctioning additional balance FSI with a consent of 70% of its members and where such NOC holder has made provision for alternative accommodation in the proposed building (including transit accommodation) then it shall be obligatory for all the occupiers/members to participate in the Redevelopment Scheme and vacate the existing tenement for the purpose of redevelopment, in case of failure to vacate the existing tenements, the provisions of Section 95-A of the MHAD Act mutatis mutandis shall apply for the purpose of getting the tenements vacated from the non co-operative members. 8] A corpus fund, as may be decided by MHADA, shall be created by the Developer which will remain with the societies for its maintenance.” 17 22. Mr. Tembe reads this Schedule in isolation and relies upon 33(5)(7) of the modified regulations. It will not be proper to read the same in the manner suggested by Mr. Tembe. If it is read as suggested by him and in the backdrop of the NOC issued in the present case, then, possibly a narrow view can be taken. However, once the Schedule is read as a whole, it would be apparent that the intent and purpose as set out in the preamble was to provide higher FSI so as to revise the size of old tenements. This is to enable the present occupants to have the better accommodation as well as create additional housing stock. With that intent and purpose, the Government revised the FSI and also encouraged redevelopment of existing housing schemes of MHADA undertaken by the MHADA departmentally or jointly with occupiers of the building or by the housing society or occupiers of building or by lessees of MHADA or by the developer. The total permissible FSI now is 2.5 on gross plot area. The computation and calculation of FSI is set out in the Schedule. The purport of Regulation 33(5)(7) is that in any redevelopment scheme where the Co-operative Housing Society/Developer appointed by the Society has obtained NOC from MHADA/Mumbai Board thereby sanctioning additional plans of FSI with a consent of 70% of its members and where such NOC holder has made provision for alternate accommodation of building (transit accommodation), then, it shall be obligatory for all occupiers/members to participate in the scheme and vacate the tenement for the purposes of redevelopment. So as to facilitate redevelopment by ensuring vacation of existing tenements that Section 95-A of the MHAD Act 18 has been made applicable. Therefore, from a reading of 33(5)(7) as modified, it cannot be argued that the modified Regulation 33(5) will apply only to NOC’s issued subsequent to the modification and not earlier. On a proper and complete reading of the modified regulation, it is clear that to facilitate redevelopment of the existing housing schemes of MHADA so also to facilitate construction of tenements for low cost housing scheme on vacant land, for economically weaker section that modification has been made. The NOC in this case is dated 9th January 2004. In the NOC itself it has been stated that the work of reconstruction should be carried out as per the plans submitted to the Chief Officer of Maharashtra Housing and Area Development Board. The built up area and other terms are set out. The NOC has a term and condition with regard to utilization of FSI but while setting out that no additional FSI should be utilized what NOC states is that in case of NOC of TDR, the responsibility to obtain the TDR and its permissibility for use on the plot will vest with the Applicant and MHADA is not responsible in any manner. While amendment to the plan for construction of building is permissible under the terms and conditions, the NOC further states that the Chief Officer, Mumbai Board reserves the right to cancel/amend the conditions of NOC. Once we find that the D.C. Regulations have been amended and Regulation 33(5) has been brought into force from 6th December 2008, the present reconstruction permitted by the Board under the subject NOC would also be covered by the modified D.C. Regulation 33(5) provided compliance is made in all respects with the modified Regulations. The benefit will not be 19 made available unless such compliance is made. The terms of the NOC can be amended in that behalf. Until that is done, the benefits including additional FSI could not be derived by the NOC holder. The terms of NOC do not control the interpretation of the modified D.C. Regulation 33(5). That would defeat the very purpose of the modification. 23. This aspect has been clarified by MHADA in its affidavit filed in reply to the Writ Petition. In paragraphs 3 and 4 of the affidavit, Respondent No.3 speaking on behalf of Respondent Nos. 1 to 3 has stated that amended Regulation 33(5) is applicable to the present re-development scheme. That is how they have invoked Section 95-A of the MHADA Act. The argument of Mr. Tembe that amended D.C. Regulation 33(5) would not be applicable because the NOC was issued on 9th January 2004 is thus answered by MHADA itself. On account of the stand of the MHADA and considering the intent and purpose