: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.85 OF 2010 Shivaji Kashiram Patankar & Ors. ... Appellants V/s. Maharashtra Housing & Area Development Authority & Ors ... Respondents Mr.S.K. Dhara a/w A.N. Jakhadi for Appellants Mr.N.V. Walawalkar i/b S.P. Thorat for Respondent Nos.1, 2 & 3 Mr.P.K. Dhakephalkar i/b Mr.V.S. Kapse for Resp. No.4 Mr.P.G. Karande for Resp. No.5 CORAM: SMT.NISHITA MHATRE, J. DATED: FEBRUARY 11, 2010 P.C.: 1. The Appeal from Order has been filed impugning the judgment dated 30.9.2009. By this order, the trial Court has dismissed the Motion filed by the appellants. The trial Court has further granted the appellants three weeks to shift from the suit premises. 2. The suit has been filed by the appellants challenging the notice issued on 3.6.2009 and 1.7.2009 to vacate the premises which they occupy as illegal and not binding on them. They have also sought a declaration that the agreement dated 18.11.2008 executed between defendant Nos.1, 4 and 5 is null and void. The appellants claim to be the members of the Respondent No.5 society. The structures occupied by the appellants and other members of the society are located on land : 2 : owned by MHADA i.e. Respondent No.1. MHADA has decided to develop the property through a developer. As per the sanctioned plan, the appellants and other members of the society will be housed in a new building. Each member of the society will be entitled to permanent accommodation admeasuring 465 sq.ft carpet area (inclusive of niche cum flower bed area). Each member of the society will also be paid an amount of Rs.7,01,000/- by way of corpus fund which would be distributed in a phased manner. It appears from the impugned order that some of the appellants have already accepted Rs.51,000/- distributed from this corpus fund by Respondent No.4. 3. Since the appellants were not vacating their premises and were not willing to shift to the transit accommodation which is available on the same plot notices were issued by MHADA u/s 95A of the Maharashtra Housing Area and Development Act, 1976. It is these notices which are challenged by the appellants before the City Civil Court. 4. It is the contention of the learned advocate for the appellants is that the consent given by 70% of the members of the society was for redevelopment of the land under Development Control Regulation 33(7) whereas the respondents are seeking to redevelop it under Development Control Regulation 33(9) as well. He submits that when there is a change of the provisions under which the redevelopment is to take place, fresh consent must be obtained from the members. He relies on the judgment of this Court in the case of Mangesh J., Mohite vs. State of Maharashtra, 2002 (5) BCR 653. He further submits that in any event, the State Government has not consented to the amalgamation scheme and, therefore, there is : 3 : no point in evicting the appellants from the premises in their occupation. The next contention raised by the learned advocate is that the trial Court has erred in directing the appellants to vacate the premises within a stipulated time rather than either allowing or dismissing the notice of motion. He submits that such a direction which in fact finally disposes of the suit ought not to have been passed by the trial Court. 5. The first contention of the learned advocate that the consent of 70% of the persons has not been taken is untenable. The City Civil Court has while disposing of the notice of motion noted that there are 264 tenements on the plot. The suit has been filed by 100 persons. The Court has further observed thus: “22. ... The document at Sr.1 is the list of 61 plaintiffs who executed irrevocable consent for redevelopment. One can understand that some of the plaintiffs, gave their irrevocable consent but later on they were reluctant to go with process of redevelopment. On page No.4 of the compilation defendant No.5 has produced the list of 37 plaintiffs who have accepted the first installment of corpus fund of Rs.51,000/- each and executed the agreement. On page No.6 there is a list of 58 plaintiffs who have executed Tripartite Agreement with the defendant Nos.4 and 5. ............” Thus, more than 70% of the persons have consented to the scheme. The contention that, in view of the aforesaid judgment of this Court in Mohite’s case (supra) fresh consent would be required, is also unsustainable. The aforesaid judgment has been set aside by the Supreme Court by its order dated 7.3.2003 in Civil Appeal Nos. 4063-4064 of 2002 and others and therefore the judgment of the Division Bench is no longer a good law. 6. As regards the contention that the appellants are not being given permanent accommodation like other members and that the amalgamation would prejudicially : 4 : affect the appellants, in my view, this contention is also untenable. The City Civil Court has referred to the statement made by the learned counsel for the developer indicating the area which would be given to the appellants in the redeveloped building. In order to ensure that no prejudice is caused to the appellants, I directed the developer to file an undertaking in this Court indicating the terms and conditions on which he was redeveloping the property, the amount which would be paid to each member of the society besides the area which would be allotted to each member. Accordingly, an affidavit has been filed by Abhay Mutha, Director of Respondent No.4 in which he has undertaken thus: 3. I undertake on behalf of Respondent No.4 that Respondent No.4 has agreed to provide on free of costs basis permanent alternative accommodation of 465 sq.ft. carpet area (inclusive of niche-cum-flower bed area) as per the sanctioned plan to each member of the Respondent No.5. I undertake on behalf of Respondent No.4 that the Respondent No.4 will pay to each member of the Respondent No.5 a sum of Rs.7,01,000/- (Rupees Seven Lakhs One Thousand Only) as and by way of corpus fund which will be distributed in phase-wise manner as stated below: - “a. A sum of Rs.51,000/- already distributed to most of the members as per the resolution passed by the Respondent No.5. b. (i) A sum of Rs.1,00,000/- at the time of shifting to transit accommodation constructed by the Respondent No.4 at the site and also to those members, who opt to shift else where or make their own arrangement. (ii) A sum of Rs.1,00,000/- to those members who are not required to be shifted to transit camp for example – members residing in Building No.3,7,8 and 9. c. A sum of Rs.1,50,000/- to each member of the Respondent No.5 at the time of delivery of possession of permanent alternate accommodation and balance sum of Rs.4,00,000/- per member will be deposited with the Respondent No.5 for the purpose of using the same for the maintenance, repairs of the new building or as per the decision of General Body of the Respondent No.5.” 7. The affiant has further undertaken that Respondent No.4 i.e. the Developer : 5 : would complete the project in 36 months from the date of the issuance of the commencement certificate by the Corporation for completion of the rehabilitation component buildings, meant for the benefit of the members of Respondent No.5, subject to the cooperation of the members. The affiant has further undertaken that a penalty of Rs.5 lakhs per month would be paid to respondent No.5 if the period of completion of the rehabilitation component building exceeds 36 months from the date of the issuance of the commencement certificate. 8. This undertaking in my opinion, fully secures the appellants. The undertaking is accepted. 9. As regards the contention of the learned advocate for the appellants that there is no order passed by the State giving consent to the amalgamation under DCR 33(7) and DCR 33(9) it must be accepted. Mr.Walawalkar, appearing for the MHADA, concedes that the State Government is yet to sanction this amalgamation. In view of this fact the appellants shall not be evicted from the suit premises till such sanction is obtained by MHADA. 10. The Appeal from Order is disposed of in the following terms: (i) The undertaking furnished to this Court by Abhay Mutha, Director of Respondent No.4 in the affidavit sworn by him on 3.2.2010 is accepted. (ii) The appellants shall not be evicted from the premises in their : 6 : possession until MHADA obtains sanction to the amalgamation under DCR 33(7) and DCR 33(9) from the State Government. (iii) The MHADA shall inform the appellant when such sanction is received. 11. In view of the above, nothing remains in Civil application No.135 of 2010 and the same is disposed of as such.