*1* wpl.1126.11.902.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.1126 OF 2011 Ajaykumar Omprakash Talwar. ..Petitioner -versus- Maharashtra Housing and Area Development Authority and others. ..Respondents ............ Mr.M.M.Vashi a/w Ms.Prachi Kandage i/b M.P.Vashi & Associates, for the Petitioner. Mr.P.G.Lad, AGP, for the Respondents/State. Mr.Atul Damle a/w Ms.Swati Sagvekar i/b Legasis Partners, for the Respondent No.3. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 21st September, 2011. P.C.: 1 By this Writ Petition under Article 226 of the Constitution of India, the Petitioner challenges the order at Annexure-A to the petition dated 04.06.2011. By this order passed by the Executive Engineer, Housing Ghatkopar Division of the Maharashtra Housing and Area Development Board, the Petitioner is called upon to handover vacant and peaceful possession of the tenement in his use, occupation and possession or else the possession of tenement will be taken by breaking open the locks forcibly and under the police protection. 2 The contention of the Petitioner is that while it may be true that the Maharashtra Housing and Area Development Board (MHADA) has permitted the Respondent No.2 Society to develop the property by engaging a Developer and thereafter, taking proper approvals and *2* wpl.1126.11.902.sxw permissions in accordance with Regulation 33(5) of the Development Control Regulations, yet, the Petitioner cannot be evicted from the existing premises on the ground that he is not cooperating with the redevelopment. In this case, the premises do not belong to the MHADA. For implementation of the scheme which has been sanctioned and approved by the MHADA, section 95A of the Maharashtra Housing and Area Development Act, 1976 (in short, MHADA Act) cannot be invoked. Section 95A provides for summary eviction of occupiers in certain cases. In this case the premises, namely, a building is claimed by the cooperative housing society and at the instance of the Respondent No.3 Developer, the Petitioner is sought to be evicted by resorting to section 95A. Such power is not available in this case and in this regard, reliance is placed upon a judgment of the learned Single Judge of this Court reported in 2006(1) Bombay C.R. 201 (Bharat Kanakia and another v/s Mumbai Building Repairs and Reconstruction Board (a MHADA Unit) and others), [Writ Petition No.1209/2005 decided on 16.09.2005]. 3 On the other hand, it is argued on behalf of the Respondents that the Petitioner is guilty of suppression of material facts. The Petitioner was part of a writ petition where-under the entire redevelopment scheme was challenged. The challenge failed before the Division Bench. The challenge proceeds on the basis that the premises and the land beneath, belong to MHADA. The redevelopment of the property through the Developer engaged by the society and by invoking the provisions of Regulation 33(5) is for the benefit and enrichment of the Developer. It is submitted that this challenge failed. In these circumstances and when out of 672 occupants, only 19 remain at site and the Petitioner is one of them, so also, temporary alternate accommodation being made available, that *3* wpl.1126.11.902.sxw the protection should not be granted and the eviction order be upheld. Reliance placed on the learned Single Judge's judgment is, therefore, misplaced. Secondly, the only grievance raised in this petition is that in the temporary/ transit accommodation meant for the Petitioner, one Mr.Shastri is in possession. Now, the Developer has clarified that the Petitioner can go and occupy the said temporary/ transit accommodation and none is in possession and occupation thereof. Even the keys are brought before this Court and handed over to the Petitioner. In these circumstances, the petition should not be entertained. 4 With the assistance of the learned counsel appearing for the parties, I have perused the petition and annexures thereto, so also, the affidavits on record. In this case, the notice and impugned order under section 95A itself recites the challenge to the scheme and upholding thereof by not only this Court but by the Honourable Supreme Court. It is clarified by the Society, as also, the Developer by filing separate affidavits that the Petitioner is in possession of Room No.313 in Chawl No.40, Road No.3, Siddharth Nagar, Goregaon (West), Mumbai-400104. The Petitioner claims to have purchased this property in May, 2005 from the earlier occupant. The Petitioner got the said premises transferred in his name in the records of the MHADA. The Petitioner was enrolled as a member of the Society sometime in 2006. There is large plot of land admeasuring 40 acres at Goregaon known as Siddharth Nagar. There were Chawls constructed and existing since 1948 or thereabout on this land and they came to be allotted to about 672 occupants. The land as well as the structures thereon belong to the MHADA. The Petitioner is stated to be a subsequent allottee/ purchaser, but not from the MHADA. There are several allegations made against the Petitioner of defaulting in payment of *4* wpl.1126.11.902.sxw the Society charges and for carrying out activities which are commercial in nature from the residential premises. In these circumstances and when the scheme is that there would be demolition of the old buildings and tenements and thereafter, new buildings would be put up which would belong to the Society and thereafter, the tenements would be allotted to the members, then, the Petitioner should not be allowed to obstruct the redevelopment scheme. 5 In these circumstances, to my mind, section 95A of the Act is clearly applicable. Section 95A of the MHADA Act reads thus:- “95A. Summary eviction of occupiers in certain case:- (1) Where the owner of a building or the members of the proposed co-operative housing society of the occupiers of the said building, submits a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less than 70 per cent of the total occupiers of that building and a No Objection Certificate for such reconstruction of the building is issued by the Board to the owner or to the proposed co-operative housing society of the occupier, as the case may be, then it shall be binding on all the occupiers to vacate the premises: Provided that, it shall be incumbent upon the holder of such No Objection Certificate to make available to all the occupants of such building alternate temporary accommodation. (2) On refusal by any of the occupant to vacate the premises as provided in sub-section (1), on being approached by the holder of such No Objection Certificate for eviction of such occupiers, it would be competent for the Board, notwithstanding anything contained in chapters VI and VII of this Act, to effect summary eviction of such occupiers. (3) Any person occupying any premises, land, building or structure of the Board unauthorisedly or without specific written permission of the Board in this behalf shall, notwithstanding anything contained in Chapters VI and VII of this Act, be liable for summary eviction. *5* wpl.1126.11.902.sxw (4) Any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both.” 6 This provision was inserted by the Maharashtra Act 16 of 1998. The statement of objects and reasons to this Amendment Act, to the extent relevant, reads as under:- “Statement of objects and reasons:- There are 18,000 cessed old and dilapidated buildings in the Mumbai City District. Out of these, 15,000 buildings are constructed prior to the 1st September 1940. These buildings have outlived their lives. These old and dilapidated buildings pose a great danger to human life and property. 2. With a view to find a solution to the problem, the State Government had appointed a Study Group under the Chairmanship of Shri D.M.Sukhtankar, the then Chief Secretary, to study the problem of repairs and reconstruction of such old and dilapidated buildings and make recommendations to the Government. With reference to the recommendations of the said Study Group, the State Government has taken certain far reaching decisions and has, inter-alia, decided to suitably amend the Maharashtra Housing and Area Development Act, 1976 for protecting the interests of the occupiers of the old and dilapidated cessed buildings. 3. The salient features of the Amendment Bill are as follows:- (a) where the owner of the cessed building or proposed co-operative housing society of the occupiers of such buildings submit proposal for the reconstruction of such building, after obtaining written consent of not less than 70 per cent of the total occupiers of such building, the Board shall assist the owner of such cooperative housing society in getting the premises vacated, for reconstructing the building; *6* wpl.1126.11.902.sxw (b) for free of cost allotment of accommodation in the reconstructed buildings, to the occupiers of the old buildings; (c) for payment of increased annual contribution to the Authority:- (i) by the State Government in the form of matching grant equal to the amount of repair cess recovered during the financial year; and (ii) by the Mumbai Municipal Corporation of rupees ten crores annually; (d) for payment of annual contribution of rupees ten crores by the Authority to the Board for the purpose of repairs and reconstruction of the cessed buildings. 4. The Bill intends to achieve the above objectives. Mumbai, Suresh Jain, Dated the 16th April, 1998. Minister for Housing.” It provides for summary eviction of persons like the Petitioner. It is stated in sub-section (1) of section 95A that where the owner of a building or the members of the proposed cooperative housing society of the occupiers in such building submits a proposal to the MHADA for reconstruction of the building after obtaining the written consent of not less than 70% of the total occupiers and a No Objection Certificate for such construction is issued by the MHADA to the owner of the proposed cooperative housing society, then, it shall be binding on all the occupiers to vacate the premises. Proviso thereto states that it shall be incumbent upon the holder of such No Objection Certificate to make available to all occupiers of such building an alternate temporary accommodation. 7 In this case, the Society has clarified that the consent of more than 70% of occupants was taken at initial stage and at present 94% have consented for redevelopment. The affidavit that has been filed on behalf *7* wpl.1126.11.902.sxw of the Respondent No.3 Developer clarifies the matter with regard to the No Objection Certificate (NOC). It is not as if the Society could not have sought eviction of the Petitioner from the subject premises and particularly when there is compliance with the proviso. If the Society has ensured that the Developer would make available the temporary alternate accommodation to the occupants, then, by no means it can be construed that the Society is disentitled from going ahead and redeveloping the property after obtaining necessary consent. Sub-section (2) of section 95A deals with a situation where any of the occupant refuses to vacate the premises on being approached by the holder of such NOC, then, for eviction of such occupiers it would be competent for the MHADA, notwithstanding anything contained in Chapters VI and VII of the MHADA Act to effect summary eviction of such occupant. It is very clear from the provisions of Chapter VI that they deal with the powers to evict persons from authority premises and to recover dues, whereas Chapter VII entitled the “Tribunal” makes a Tribunal constituted under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to hear the Appeals and discharge other functions as a Tribunal under the MHADA Act. Thus, the power under sub-section (2) of section 95A is notwithstanding anything contained in Chapter VI and VII and for obvious purpose, namely, to enable the MHADA to effect the eviction in cases covered by sub-section (1) of section 95A. 8 It is also because Section 95A appears in a chapter entitled “Repairs and Reconstruction of Dilapidated Buildings”. This chapter opens with section 74 which makes the Mumbai Repairs and Reconstruction Board, the Board for the purpose of this chapter. Section 75 states that the Board shall work to exercise powers and perform duties subject to the *8* wpl.1126.11.902.sxw superintendence, direction and control of the Authority (MHADA). Section 76 sets out the duties relating to repairs and reconstruction of dilapidated buildings and reads as under:- “76. Duties relating to repairs and reconstruction of dilapidated buildings:- Subject to the provisions of this Chapter, it shall be the duty of the Board:- (a) to undertake and carry out structural repairs to buildings, in such order of priority as the Board, having regard to the exigencies of the case and availability of resources, considers necessary, without recovering any expenses thereof from the owners or occupiers of such buildings; (b) to provide temporary or alternate accommodation to the occupiers of any such building, when repairs thereto are undertaken, or a building collapses; (c) to undertake, from time to time the work of ordinary and tenable repairs in respect of all premises placed at the disposal of the Board; (d) to move the State Government to acquire old and dilapidated buildings and which are, in the opinion of the Board, beyond repairs; and to reconstruct or to get reconstructed new buildings thereon for the purpose of housing as many occupiers of those properties as possible, and for providing alternative accommodation to other affected occupiers; (e) to move the State Government to acquire old and dilapidated buildings and which were once structurally repaired by the Board, but in respect of which further structural repairs are not, in the opinion of the Board possible or economical, and to reconstruct or to get reconstructed (on demolishing existing buildings) new buildings thereon for the purpose of housing as many occupiers of those properties as possible and for providing alternative accommodation to other affected occupiers; (f) having regard to the exigencies of the case and availability of resources, to construct or to get constructed through an approved agency, transit camps with a view to providing temporary accommodation to persons affected by house collapse, fire, torrential rain or tempest *9* wpl.1126.11.902.sxw in its area of operation; (g) to take action for demolition of dangerous and dilapidated buildings or portions thereof, which are not capable of being repaired at reasonable thereof, which are not capable of being repaired at reasonable expense, and thereby save human lives; (h) with the prior approval of the Authority, to do all other things to facilitate the carrying out its powers, duties and functions provided by or under this Act.” Section 77 sets out special powers of Board and reads thus:- “77. Special powers of Board:- The board, in the exercise of its powers performance of its duties and discharge of its functions under this Chapter may:- (a) authorize any person, by general or special order, to enter into or upon any building or land with or without assistance of workmen for making any inquiry, inspection, survey, measurement, valuation or taking levels of such building or land or for carrying out any structural repairs or to execute any work which is authorized by or under this Act, or which it is necessary to execute for any of the purpose or in pursuance of any of the provisions of this Act or of any rule or regulation made thereunder:- Provided that, before exercising such power, so far as may be compatible with the exigencies of the purpose for which the entry is to be made, reasonable notice shall be given to the owner and occupiers, and the power shall be exercised as far as possible in their presence or in the presence of their representatives, and due regard shall be had to the social and religious usages of the owner or occupiers; (b) cause any building proposed to be structurally repaired or reconstructed or demolished to be vacated if so considered necessary, within a specified period, and take or cause to be taken such steps and use or cause to be used such force as may be reasonably necessary therefor. *10* wpl.1126.11.902.sxw Where any such building or part thereof is caused to be vacated, the Board shall allot to the occupiers who are dishoused or required to vacate their premises temporary accommodation in any building maintained by the Authority at such place and to such extent as it deems fit; and the relevant provisions of this Chapter shall mutatis mutandis apply to such occupiers.” Section 78 prescribes penalty for contravening section 77 and section 79 reads thus:- “79. Power of Board to undertake building repairs, building reconstruction and occupiers, housing and rehabilitation schemes:- (1) The Authority may, on such terms and conditions as it may think fit to impose, entrust to the Board the framing and execution of schemes for building repairs or for reconstruction of buildings or for housing and rehabilitation of, dishoused occupiers, whether provided by this Act or not, and the Board shall thereupon undertake the framing and execution of such schemes as if it had been provided for by this Act. (2) The Board may, on such terms and conditions as may be agreed upon, and with the previous approval of the Authority:- (a) hand over the execution under its own supervision of any, building repairs scheme, building reconstruction scheme, or dishoused occupiers housing scheme to the Municipal Corporation or to a co-operative society or to any other agency recognized for the purpose by the Board, as it may deem necessary, and (b) transfer by sale, exchange or otherwise in any manner whatsoever any new building constructed on any land acquired under this Chapter to any co-operative society, if it is formed by all the occupiers, or to apartment owners for the purposes of the Maharashtra Apartment Ownership Act, 1970 (Mah.XV of 1971), (the apartment owners being all such occupiers).” *11* wpl.1126.11.902.sxw Section 80 provides for the material of old building which is replaced to become property of the Board and section 81 provides for use of property assigned by the Government and Municipal Corporation. Then, comes section 82 to 87 which provides for imposition, collection and assessment, so also, exemption from repair and reconstruction cess. Section 88 onward deal with structural repairs, the procedure for undertaking the same, provision for temporary accommodation pending structural repairs, repairs or reconstruction of buildings which suddenly collapse or become uninhabitable, submission of proposal for acquisition, clearance and compulsory acquisition, temporary and alternative accommodation to affected occupiers where the property is acquired and then comes section 95 which reads as under:- “95. Temporary and alternative accommodation to certain affected occupiers where property is not to be acquired:- If, for any reason in respect of any building the Board decide not to move the State Government to acquire the property under sub-section (3) of section 91 or under Section 92 or the State Government decides not to approve the proposal under sub-section (1) of section 93 and all or any of the occupiers of any such buildings are dishoused or required to vacate their premises, the Board may, where possible, allot temporary and alternative accommodation to such occupiers in any building maintained by the Authority at such place and to such extent as it deems fit, in accordance with the provisions of the last preceding section, so far as they may be applicable: Provided that, in the case of temporary accommodation such occupiers shall be required to pay to the Board on behalf of the Authority rent [including service charges, if any] for such accommodation from the date the Board decides not to move the State Government to acquire the property or the State Government decides not to approve the proposal or from the date of occupation of the allotted accommodation, whichever is later.” *12* wpl.1126.11.902.sxw Thereafter, there are certain incidental and enabling provisions so as to facilitate repairs and reconstruction of old and dilapidated buildings. 9 Thus, it is not only to evict persons from the authority premises, but also to evict persons who are occupying the premises in buildings which are to be reconstructed by either the owner thereof or the proposed society of occupants and NOC is granted by the MHADA to the members of the Society or the owner as contemplated by sub-section (1) of section 95A, that this section is inserted. As far as sub-section (3) of section 95A is concerned, it deals with the cases of persons occupying any premises, land, building or structure of the MHADA unauthorisedly or without specific written permission of the MHADA and it contemplates that such persons are liable for summary eviction notwithstanding anything contained in Chapters VI and VII of the MHADA Act. Thus, in case of unauthorised occupation of premises belonging to MHADA which are to be reconstructed by occupants thereof upon grant of NOC in that behalf, that MHADA can ensure vacation thereof by resorting to section 95A(3) and in cases of private buildings also to facilitate their reconstruction after grant of NOC, that power to evict is conferred by section 95A(2). Ultimately, the NOC is granted by MHADA and it retains control of the matter till the object of the NOC is fulfilled. It is empowered to oversee, supervise and ensure reconstruction, so also, rehousing that the powers of eviction are conferred. 10 It is not possible to agree with Mr.Vashi that a summary *13* wpl.1126.11.902.sxw eviction would not include dispossession by force. The aim and object of section 95A would be defeated if the competent authority only passes an order of eviction and if a person fails to abide by the same, the consequence would be conviction and imprisonment or fine. The purpose thereof is to ensure the redevelopment of the building and to ensure that a person who refuses to vacate the premises therein, has to be summarily evicted to facilitate it. The words “summary eviction” itself indicate ouster of a person by a short or quick remedy, immediately or instantaneously and with such force as is permissible in law. It is not as if only in terms of Order XXI of the Code of Civil Procedure, 1908 that the police aid can be taken. It is also in case of summary eviction and for premises which have to be vacated urgently or immediately that it is permissible to seek police aid. If that is not permissible, then, the very purpose of introduction of section 95A in the MHADA Act w.e.f. 15.05.1998 would be defeated. The insertion was with specific purpose and to see that the old and dilapidated cessed buildings can be demolished so as to facilitate their redevelopment. The judgment of the learned Single Judge in Bharat Kankia’s case (supra) does not hold anything which would militate against this scheme of the enactment. Both paragraphs of the judgment, namely, 5 and 7 which are relied upon would go to show that the learned Single Judge was dealing with a argument that the redevelopment in that case was not in pursuance of any acquisition under section 103B of the MHADA Act which falls under Chapter VIII-A of the MHADA Act and further even if the case of the Respondent No.3 before this Court was accepted, even then the Chief Officer of the Mumbai Building Repairs & Reconstruction Board does not have jurisdiction. To my mind, while dealing with such an argument and particularly when there is no acquisition of the premises by the MHADA, that resort to such provision is impermissible that the learned Single *14* wpl.1126.11.902.sxw Judge has held that sub-sections (2) and (3) would apply to only premises which belong to the MHADA. 11 Section 95A provides for summary eviction of occupiers in certain cases. The sub-section (1) deals with a situation where owner of the building or cooperative housing society submits a proposal to the MHADA for reconstruction after obtaining written consent of 70% of total occupiers and the MHADA grants NOC and to facilitate further steps, that a person who is holding that NOC can request the MHADA to take action