IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1817 OF 2003 1. New Woodlands Co-operative Housing Society Ltd., having its office at 67, Dr. Gopalrao Deshmukh Marg, (formerly known as Pedder Road) Mumbai-400 026. 2. Mr.Chandrakant T. Sanghvi residing at 67, Dr.G. Deshmukh Marg, Mumbai-400 026. .. Petitioners Versus 1. State of Maharashtra 2. Maharashtra Housing & Area Development Authority 3. Municipal Corporation of Greater Mumbai 4. BEST Undertaking 5. Union of India 6. Dr. Syed Ahmed Minister of Housing 7. Govind T. Shah .. Respondents And Govind Niwas Tenants’ Association .. Interveners Mr.Shyam Divan, Senior Advocate i/b Khaitan & Jaykar for the Petitioners. Mr.R.M. Kadam, Advocate General, with Mr.G.W. Mattos, A.G.P. for Respondents No.1, 2 and 6. Ms.Aruna Savla for Respondent No.3. Ms.Soumya Srikrishna for Respondent No.4. Respondent No.5 served. Mr.Jai Chinai, Senior Advocate with Mr.Sanjay Jain i/b M.P. Savla & Co. for Respondent No.7. - 2 - Mr.Janak Dwarkadas, Senior Advocate with Ms.Neepa Gupte for the interveners. CORAM : H.L. GOKHALE & S.R. DONGAONKAR, JJ. DATE OF RESERVING THE JUDGMENT : 28TH APRIL 2006 DATE OF PRONOUNCING THE JUDGMENT: 28TH JUNE 2006 JUDGMENT JUDGMENT JUDGMENT : (Per H.L. Gokhale, J.) 1. The 1st Petitioner herein is a cooperative housing society having its building on Gopalrao Deshmukh Marg (formerly known as "Pedder Road") in South Mumbai. The 2nd Petitioner is its Managing Committee member. 2. This writ petition under Article 226 of the Constitution of India seeks to challenge the No Objection Certificate dated 19th October 2001 issued by Respondent No.2 - Maharashtra Housing and Area Development Authority (MHADA) (constituted under the Maharashtra Housing and Area Development Act, 1976) in favour of Respondent No.7. This N.O.C. permits Respondent No.7 to demolish his old four storey building "Govind Niwas" situated behind the building of the 1st Petitioner Society and to construct over there a 18 storey tower for the claimed reason of housing the erstwhile 31 occupants of this building. This permission to demolish and to construct the new building - 3 - with a Floor Space Index (FSI) of 2.5 is given under the Development Control Regulation (DCR) 33(7) framed under the Maharashtra Regional and Town Planning Act (MRTP Act). This high FSI is permitted with a view to accommodate the old tenants/occupiers and under clause 13 of Appendix III to DCR 33(7) no new tenancy created after 13th June 1996 is to be considered for these FSI calculations. It is the case of the Petitioners that there were only 7 or 8 tenants in this Govind Niwas prior to 13th June 1996. All of them have accommodated themselves elsewhere long back without any claim on the building and that Respondent No.7 has created 31 fictitious tenancies thereafter to claim this higher FSI. It is the case of the Petitioners that therefore the NOC under DCR 33(7) is without any basis and is completely vitiated. The Petitioners therefore pray that apart from quashing and setting aside the NOC, Respondent No.7 should be restrained from carrying on any development or construction on the said property. The petitioners also pray that the IOD (Intimation of Disapproval, which contains the conditions of construction, and any construction contrary to which is disapproved) granted by Respondent No.3 Municipal Corporation should also be consequently set aside. 3. (i) DCR 33(7) provides that this facility of reconstruction with higher FSI is available for the - 4 - cooperative housing societies of existing tenants or of the landlord and/or occupiers of a old cessed building of "A" category in the island city of Mumbai. The building has to be one which has been constructed prior to 1940. Clause 1 of Appendix III of this DCR 33(7) provides that before any such construction is permitted, 70% of the occupiers of the old building must give an irrevocable written consent for that purpose. They have to be all reaccommodated in the new building. The minimum space to be provided for each of the old tenants in the new building will be 20.90 sq.ms. (225 sq.ft.) or maximum of 70 sq.ms. (753 sq.ft.). The non-residential occupiers (i.e. commercial) are to be given an area equivalent to the earlier area. It is however material to note that under clause 3 of Appendix III, the list of occupants and the area occupied by each one of them in the old cessed building is to be certified by the Mumbai Repair and Reconstruction Board (a unit of MHADA), and the irrevocable written consent of such occupants is also to be certified by the Repair Board. Clause 4 provides that the tenements in the reconstructed building are to be allotted to the occupiers as per the said list. . (ii) This clause 4 further provides that thereafter if any surplus built-up area is available, then a prescribed percentage thereof as arrived at under - 5 - Schedule III of MHAD Act is to be made available to the Mumbai Repair and Reconstruction Board for accommodating the occupants of other cessed building which cannot be reconstructed. The table in the Third Schedule is to be read with clause 3 of section 103-I of the MHADA Act which provides as to how the surplus area is to be calculated. Mumbai Repair and Reconstruction Board has to pay for acquiring this surplus area an amount as may be prescribed under the MHAD Act. Since this is a project for rehabilitation, an FSI of 2.5 of the gross plot area or the FSI required for rehabilitation of existing occupiers plus 50% incentive FSI is permitted. In the present case, it is everybody’s case that the FSI utilised is 2.5 only and not additional incentive FSI. 4. The petition states that sometimes around May 2003, the Petitioners became aware about the likely development of Govind Niwas. They are neighbours of Govind Niwas for about 40 years and as per their knowledge, it had hardly 7 or 8 tenants. However, on inquiries, they came to know about the N.O.C. having been granted by MHADA for a tall building for accommodating larger number of tenants. According to the Petitioners, the same was not justified. Therefore, they collected the information about the electric meters, voters’ list and telephone particulars to substantiate that there were hardly 7 or 8 tenancies. - 6 - They rely upon MHADA’s Circular dated 13th May 2003 which cautions about the malpractices in such schemes. The Petitioners therefore approached the Housing Minister (Respondent No.6) first. He initially granted a stay. He caused an inquiry to be made. He was however satisfied that there were 40 tenants in 1975 and the Petitioners obtained a list of their names. The minister vacated his stay on 28th July 2003. This petition was thereafter filed on 31st July 2003. 5. As stated above, the case of the Petitioners is that Respondent No.7 has inflated and created 31 bogus tenancies subsequent to 13th June 1996. To justify this submission reliance is placed on various public documents as follows:- (i) Voters’ List (i) Voters’ List (i) Voters’ List: Paragraph 3(i)(iv) of the petition states that in the voters’ list of 1993, the names of only two tenants appear. The Petitioners have subsequently placed on record an extract of the voters’ list of the year 1995. It shows the names of family members of only 6 families staying in this building. They are as follows:- (1) Ground Floor Shah Govindji (Respondent No.7) and Room No.2 his family members (2) First Floor Gupta Shagunwari Kamalnain and her Room No.4 family members - 7 - (3) First Floor Padsha Peshonji Jal and his family Room No.5 members (4) Second Floor Patel Deena Rustom and her family Room No.6 members (5) Second Floor Antia Mayar Peshotan and his family Room No.7 members (6) Third Floor Patel Avaji and her family members Room No.8 Similarly we have the voters’ list of the year 1998 where we have the same 6 families. (ii) Electric Meters (ii) Electric Meters (ii) Electric Meters: The Petitioners have placed on record the particulars to show that there existed only 10 electric meters on the premises from 1934 to 1969. They have given their dates of installation and also the fact that during February 1999 to May 2000, suddenly 32 meters were added. The Petitioners have placed on record that subsequently these 32 meter owners sent a common letter dated 22nd March 2003 asking for disconnection of their electric meters. The fact that the tenancies created were bogus is sought to be proved by placing on record the electric bills of these 32 meters during 14th November 2002 and 14th January 2003 which show that absolutely nominal amounts (and which are all practically less than Rs.100/-) were billed on the basis of these meters per month. A chart is placed on record for the benefit of the court which chart is prepared by an electrical contractor and which shows that practically everybody’s power consumption - 8 - was below what was normally expected of the installations in such flats which would include at least two tube lights, one fan, one geyser and one point for iron. (iii) Telephone Connections (iii) Telephone Connections (iii) Telephone Connections: Thereafter the Petitioners have pointed out in para 3(i) III that only 7 tenants of Govind Niwas figure in the telephone directory of 1996. 6. After filing this petition in July 2003, as stated above, the Petitioners filed a supplementary affidavit on 30th August 2003. In this supplementary affidavit, the Petitioners stated that the entire list of 31 tenants, as claimed by Respondent No.7, was fabricated and the Petitioner Society was sure that there were only 7 tenants staying in Govind Niwas since the very beginning and there was absolutely no possibility of more than 7 tenants living there. The Petitioners alleged a collusion between MHADA and its officers on one hand and Respondent No.7 on the other. The Petitioners reiterated their submission based on the electoral rolls and the voters’ list as also the telephone numbers. In para 20 of this affidavit, it was asserted that there was no possibility of there being 40 tenants living in this building as the building had 2 flats per floor. In para 21, it was - 9 - submitted that the list of 40 tenants which was handed over to the Minister by MHADA showed each room in each flat had been numbered as a separate tenement, whereas in reality there were only 2 flats on each floor and one on the top floor. It was pointed out that there were 2 flats each on three floors and one on the top floor and there were servants quarters in the rear building which consisted of ground + 2 floors. In para 27 and 28, it is stated that in June 2003 an informal committee inspected the site which consisted of Shri Shirish Patel, a renowned architect, Shri U.P.S. Madan, Vice President of MHADA and Shri Pant Balekundri, former Deputy Secretary, Urban Development Department of State of Maharashtra. The committee is said to have identified 7-8 flats and that in the year 1999, the owner had tried to show each room in the 7-8 flats as independent tenement to increase the number. None of these tenements had any independent toilet and that there were no brick walls as normally there are in the case of independent tenancies. There were only wooden partition between these tenements which showed that they were only paper tenements. The committee also noted that there were 4 electric meters till 1999 and 30-32 meters were installed in 1999-2000. The Petitioners therefore submit that what the developer was trying to claim was definitely not what was actually in existence. The Petitioners also placed on - 10 - record a sketch plan prepared by an architect showing the layout concerning the Petitioners’ building and Govind Niwas. It showed that the building of Respondent No.7 had a very narrow entrance and if a large vehicle goes through it, it will have a great difficulty in manoeuvring so. 7. The Petitioners filed a further supplementary affidavit on 10th October 2003 and reiterated many of the submissions made earlier. In para 20 of this affidavit, it was again reiterated that each of the rooms in the original flats were numbered as separate tenements. The Petitioners filed one more affidavit on 18th November 2003 to point out that excavation was going on in that property. 8. Respondent No.7 filed his initial reply on 1st December 2003. He raised some preliminary objections to begin with. He submitted amongst others that the petition involved disputed questions of fact, that it did not disclose any cause of action, that the tenants have not been joined as Respondents and that the petition was filed only because the new building was sure to obstruct the view of the members of the 1st Petitioner Society upto 18th floor. He pointed out that the Petitioner Society itself was having a multi-storyed building with 25 floors and more than 100 - 11 - flats and this Society had moved against Respondent No.7 only because their view was likely to be obstructed. He contended that since his building was a cessed "A" Category building, it was being reconstructed with 2.5 FSI and the grant of this FSI had nothing to do with the number of tenements. That number will be relevant for the purposes of calculating the percentage of surplus built-up area. In para 4(i), he pointed out that the list of tenants, for whom the NOC was given, was physically verified by the officers of Respondent No.2 - MHADA on site. The consent of tenants was obtained on the application for NOC. The Petitioners had made various grievances such as with respect to the likely difficulties for the fire fighting department, narrow entrance, deficiency of parking space, etc. Respondent No.7 pointed out that all these aspects were considered by the respective authorities and then only the Minister had vacated the stay after conducting necessary inquiry. It is however material to note that Respondent No.7 is not insisting that there were 40 tenants at the relevant time as claimed by MHADA in the year 1975. His contention is that there were 31 tenants as certified by the Municipal Corporation in the repairs plan of 1988. With respect to electricity bills, he pointed out that the bills being shown to the court were issued sometimes around February 2003. That was the time when - 12 - the tenants had either shifted or were in the process of shifting and hence they could not be the bills showing the regular consumption. He therefore denied the allegations in the petition as well as the supplementary affidavits. 9. The petition was amended in November 2003 to add the prayer for appointment of a Commissioner. In view of the serious allegations made in the petition, a Division Bench of this Court by its order dated 26th March 2004 appointed a Commissioner to go through the documents relied upon by both the parties and also to record evidence, if required. The Court appointed Shri V.R. Kingaokar, then Registrar (Inspection) of this Court, who belonged to the cadre of District Judges (and now a Hon’ble Judge of this High Court) as Commissioner. Para 6 of the order reads as follows:- "6. Having considered the rival contentions of the parties and having perused the records we are satisfied that this is a fit case to appoint a Court Commissioner to ascertain whether the tenancies are genuine or not. We appoint Mr.V.R. Kingaonkar, Registrar (Inspection), High Court, Bombay who is also a District Judge, as Commissioner to investigate into the issue of existence of tenancies in - 13 - Govind Niwas and make a report to this court within four weeks from today. Parties are at liberty to produce further evidence before the Commissioner in support of their contentions, if they so desire. The Commissioner may call for the record from the Municipal Corporation and MHADA for the purpose of determining the issue." The Commissioner gave his report on 27th April 2004 holding the tenancies to be not genuine. On 7th June 2004, the Court permitted the parties to file their affidavits and objections to the Commissioner’s report which they have filed from time to time. The petition was directed to be heard finally at the admission stage but got adjourned for some reason or the other. After the completion of the pleadings, the same reached before this Bench in March 2006 and is thereafter heard finally by this Bench. 10. Various persons were examined before the Commissioner whom he has referred as witnesses. From the notes of evidence, however, it does not appear that the parties were given any opportunity to cross-examine the witnesses. One Shri Ganesh Jadhav, Deputy Engineer from BEST was examined as the first witness. He deposed about the circumstances in which the electric - 14 - connections were given to large number of tenants. He pointed out that the applications were received some times in February/March 2002. He however stated that he had not made any inquiries as to whether that house property was actually divided into small tenements and as to whether such connections were asked by the tenants who were really using the same. He stated that the inquiry was done by the investigating inspector one Shri Tekale whose report was accepted and that Shri Tekale was not attending the office for about 2-3 months and was on leave. 11. Witness No.2 was one Anil Wadke, Ward Officer of the Municipal Corporation. He produced the original register regarding inspection which was carried out in 1992-93. He stated that the building Govind Niwas was constructed prior to 1961. Entries of rent in respect of the flats are shown in such a register of properties and the entries are as per the declaration made by the owner. He has further stated that in the present case the rent declared by the landlord in 1992-93 was not found doubtful by the then inspector. He specifically stated that as per the record it did not appear that there were only 5 tenements and tenants in that building (at that time). In para 2 of his statement, he stated that Govind Niwas was then having 31 - 15 - tenements of various areas as shown against the entry of each flat. 12. Witnesses No.3 and 4 were one Altaf Patel and Waman Apte, both residing in the Petitioner Cooperative Housing Society. Shri Patel stated that in the year 1979 when Govind Niwas was under repairs, Shri Shah had given names of 7 tenants. He stated that the names of some 31 tenants are introduced in 1979 when the building was being repaired showing subdivisions of some flats with a view to make development in future. In 1979, only 7 tenants could be located. The statement of Shri Apte is also to the same effect. He also states that there were only 8 flats as per his personal knowledge in Govind Niwas. He stated that he had occasion to visit that building on several occasions since his childhood. 13. Witness No.5 before the Commissioner was Respondent No.7 (Govindji Shah). Shri Shah stated that his father purchased the building some time in 1944 from the original owner one Shri Patel. At that time, the building consisted of 5 floors in the main building and 3 floors in the adjacent building. According to him, there were some 40 tenants in the year 1944. He assured to produce the rent receipt from 1995 onwards. He thereafter stated that there were some 12 commercial - 16 - tenants who were allowed some times in the year 1994-95. They were as follows:- (1) Mr.Dayani was occupying Flat No.3-C on the 1st floor on behalf of Marois Oils (P) Ltd. (2) Kalpesh Shah was occupying Tenement No.1 of Out-house for M/s Vishakha Diamonds (P) Ltd. (3) Rajan Jain used to occupy Tenement No.4-C on the 2nd floor on behalf of Satya Sai Enterprises. (4) Mr.Cheda of Jatashree Foods (P) Ltd. used to occupy a tenement. (5) Dalpatrai Phulpagar was occupying tenements of Balaji Traders . (6) Nikhil Gandhi of Prafulla Share Custodian (P) Ltd. was occupying the tenements. (7) Pravin Savla of Amber Cosmetics (P) Ltd. was residing in a tenement. (8) Ajit Narayan Shas of Ganesh Corporation was residing in a tenement. - 17 - (9) Sameer Mehta of Geena Aluminium (P) Ltd. used to occupy a tenement. (10) Ashwin Seth of Poornima Films (P) Ltd. used to reside in a tenement. Thereafter he stated that there were no separate agreements of lease entered with them and all the lease agreements were orally settled after accepting pagdi from the old tenants as the continuation. 14. As far as electric meters are concerned, he stated that initially there were 14 meters. In or about 1999, the tenants got separated their meters and each one of them made separate applications. He stated that as the tenements were small, they might have applied for one electric bulb and one fan connection. As far as the persons, who were claiming to be the tenants, i.e. Taher Kadiyani, Dr. J.R. Patel, Pesi Padsha, Khush Gupta, Khubchandani and A.P. Antia, he stated that they left their premises from time to time. Kadiyanis left the premises in 1983-84 after subletting their premises. Same was the position of Dr. J.R. Patel. Pesi Padsha and his mother vacated the tenement in 1979-80. Father of Khush Gupta died in 1983-84 and the tenement was vacated by his family members. - 18 - Khubchandani died in 1978. A.P. Antia died in 1980. Nobody has stayed thereafter from these families. 15. As far as the firms Vishakha Diamonds, Jatashree Foods, Prafulla Share Custodian, Quit Agrofarms are concerned, he stated that they are registered companies, but are not found on internet because of spelling mistakes made by the Petitioners. This aspect was specifically explained in the court by Shri Chinai. Thus, the case of Respondent No.7 is that the persons, who were claiming to be the original tenants, had left the premises long back and subsequently they were divided and the present occupants were put into possession. As far as proposal to reconstruct is concerned, he stated as follows:- "I had entered into an agreement with the tenants of which list is given and they will be allotted the floor space as per the area of each tenant i.e. lease-hold right and they will become owner of such built up area. I gave those agreements to M.H.A.D.A. The copies of occupants’ irrevocable consent are the same agreements. The tenants will pay The tenants will pay The tenants will pay only cost of the construction only cost of the construction only cost of the construction as per the agreement and I will produce xerox copies of - 19 - such agreements which are now with our Project Manager." (emphasis supplied) 16. Witness No.6 was one Harish Bhatia, an Engineer of the Bombay Building Repairs & Reconstruction Board. He stated that as per his record there were some 40 tenants in the year 1975, but the number later on dwindled to 31. He further stated that the consent of all 31 tenants was taken in writing before the permission to reconstruct was granted. He stated that he had personally verified the location and particulars of each tenement. 17. The next witness examined as one Shri Shirish Patel, a leading Civil Engineer & Architect. He stated that he visited the building in June 2003 when it was already vacated and was in a dilapidated condition before its demolition. He stated that he had visited it along with Shri Madan, the then Vice President of MHADA. When he visited the building, he found that it was partly demolished, but on visiting it he could not find dividing walls to separate the tenements. According to him, it was clear that the entire space on either side of the north staircase was used as a single flat. 18. The