1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION 1. WRIT PETITION NO.1772 OF 2008 A/W C.A. NO.635 OF 2009 Nalini Ganpat Malpekar, .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 2. WRIT PETITION NO. 1782 OF 2008 A/W C.A. NO. 627 OF 2009 Satywati B Yeram (deceased), her heir -Subhash Bhikaji Yeram .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 3. WRIT PETITION NO.1783 OF 2008 A/W C.A. NO. 628 OF 2009 Anant Yashwant Arolkar .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH T 2 4. WRIT PETITION NO.1784 OF 2008 A/W C.A. NO.634 OF 2009 Ramesh Ramnath Shukla .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 5. WRIT PETITION NO.1785 OF 2008 A/W C.A. NO.638 OF 2009 Shri Eknath Vitthal Sawant .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 6. WRIT PETITION NO.1788 OF 2008 A/W C.A. NO. 637 OF 2009 Priya Gyneshwar Sawant .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 7. WRIT PETITION NO.1789 OF 2008 A/W C.A. NO.636 OF 2009 Shri Santosh V Metri .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. 3 WITH 8. WRIT PETITION NO.1792 OF 2008 A/W C.A. NO.632 OF 2009 Smt Laxmi Ramchandra Pawar .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 9. WRIT PETITION NO.1796 OF 2008 A/W C.A. NO.633 OF 2009 Shri Sunil Sadanand Salvi .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 10. WRIT PETITION NO.1833 OF 2008 A/W C.A. NO.629 OF 2009 Smt Sulochana Rajaram Kocharekar .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 4 11. WRIT PETITION NO.1834 OF 2008 A/W C.A. NO.625 OF 2009 Sitaram Laxman .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 12. WRIT PETITION NO.1835 OF 2008 A/W C.A. NO.626 OF 2009 Heirs and Legal Representatives of Laxmi Ratan Khapre,i.e. Shivaji R Khare .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 13. WRIT PETITION NO.1836 OF 2008 A/W C.A. NO.622 OF 2009 Kishor Digamber Phatak .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 14. WRIT PETITION NO.1837 OF 2008 A/W C.A. NO.623 OF 2009 5 Sitabai Laxman Sadik (deceased) Her legal heir - Radhika Balkrishna Sawant .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 15. WRIT PETITION NO.1838 OF 2008 A/W C.A. NO.624 OF 2009 Yashodhara L Hedulkar .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 16. WRIT PETITION NO.1839 OF 2008 A/W C.A. NO.630 OF 2009 Sharadchandra Narayan Kalyankar .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. WITH 17. WRIT PETITION NO.1840 OF 2008 A/W C.A. NO.631 OF 2009 Vijay Rohidas Khorjuvekar .. Petitioner. Vs Municipal Corporation of Greater Mumbai and ors. .. Respondents. 6 Mr Dinyar Madon, Senior Counsel, i/b R.M.Nakhawa, Mahendra Kumthekar and Suraj.S.Kudalkar, for the petitioners in all matters. Mr A.S.Khandeparkar, i/b D Brijesh for respondent no.3 in all matters- Intervenor. Mr A.Y.Sakhare, Senior Counsel, i/b M.M.Malvankar, Advocate for respondent no.1 – BMC. Mr S.G.Deshmukkh i/b Mr Gautam T Kamble, for respondent no. 3. CORAM : D.B.BHOSALE, J. DATE : 01/10/2009 ORAL ORDER: 1. This group of seventeen writ petitions is directed against the Judgment and order dated 27.2.2008 rendered by the Principal Judge, City Civil and Sessions Court, Greater Bombay, whereby seventeen Misc Appeals filed by the petitioners have been dismissed. The Misc. Appeals were directed against an order of eviction passed under section 105-B(1) of the Mumbai Municipal Corporation Act, 1888, (for short, “MMC Act”). The order of eviction was passed by Inquiry Officer, appointed by the Municipal Corporation of Greater Mumbai (for short, “the Corporation”) in Inquiry Case nos FS/97 to FS/113/2006. The inquiry premises in this group of petitions are required by the Corporation for redevelopment of the municipal property known 7 as “Parsi Chawl”. Since redevelopment is needed in public interest, a show cause notice to each of the petitioners in view of section 105-B(2) of the MMC Act, was issued. The Inquiry Officer, after giving an opportunity of being heard to all the concerned, passed the order dated 15.3.2007, directing all the petitioners to vacate the tenements in the Parsi Chawl. This order of Inquiry Officer was challenged by the petitioners in Misc. Appeals, which have been disposed of by the common judgment and order dated 27.2.2008. 2. There exists two Chawls, namely, Koli Chawl and Parsi Chawl, situate on the plot nos 138, 139, 140 and 147 of Suparibaug Estate Scheme No.31, Patel Sewree Division, Dadar, Mumbai. Admittedly, the Corporation is the owner of the plots and the Chawls. The Paris Chawl and the Koli Chawl are having 69 and 106 tenements respectively in two independent Chawl type structures. 3. Initially, both the Chawls came together and formed a Co- operative Housing Society, being Mahapurush Co-operative Housing Society (proposed). These Chawls were to be developed together. Necessary NOC was issued by the Corporation and since steps for redevelopment were not being taken and the 8 Chawls had become dilapidated, the Corporation cancelled the NOC. The action/order of cancellation of the NOC, it appears, was challenged by way of Writ Petition No.2250 of 2005 in this Court. This writ petition was disposed of by the order dated 23.9.2005, directing the concerned authority to give a detailed hearing to the parties and decide the matter afresh. Accordingly, hearing was given to the parties and a detailed order was passed by the Joint Commissioner on 25.11.2005. This order permitted separate development of the Parsi Chawl. The tenants/occupants of the Parsi Chawl accordingly formed a society, being Pavanputra Co-operative Housing Society (for short, “Pavanputra”) and submitted their separate proposal for redevelopment. It appears that the tenants/occupants of the Koli Chawl continued as Mahapurush Co-operative Housing Society Ltd (Proposed), (for short, “Mahapurush”). 4. The order dated 25.11.2005, passed by the Joint Commissioner, was challenged by some of the tenants/occupants by way of Writ Petition No.160 of 2006. The petitioners, in that writ petition, contended that the remaining portion, that would be available with the Koli Chawl, would not be economically viable for a separate development. This court, after hearing the learned counsel for the parties and after 9 perusing the entire record that was placed before the court including the report of Technical Committee, so also the calculations with respect to area left after granting a separate NOC to the Parsi Chawl, found that separate development of both these Chawls is viable. In the writ petition, a specific interim prayer was made against redevelopment of the Parsi Chawl and that prayer was rejected vide order dated 8.2.2006. 5. Before I proceed further, it would be relevant to quote certain observations made by this court in the orders passed in Writ Petition No.160 of 2006 and the statements made on affidavit dated 23.2.2006 by the Corporation. Paragraph 4 of the order dated 8.2.2006 reads thus: “4. We will be able to examine the merits of these submissions only when we get the report of the Technical Committee. The Municipal Corporation, therefore, will keep present in Court the report of the technical Committee as well as the calculations with respect to the area now left after granting a separate NOC to the Parsi Chawl. From those calculations, we can find out as to whether the separate development is viable in any way. We also note the statement made by Mr Rajadhyaksha that the developers of the Parsi Chawl are ready to develop the Koli Chawl independently since according to them the project is independelty viable.” (emphasis supplied) 10 The Sub-Engineer-Shingarpure of the Corporation filed reply affidavit dated 23.2.2006 in Writ Petition No.160 of 2006. Paragraph 6 of the reply affidavit reads thus: “6. I deny the contention of the petitioner that considering the plot area available for Koli Chawl, independent redevelopment of Koli Chawl is not feasible. I say that it is observed by the Jt Municipal Commissioner (Improvement) in his order that the Koli Chawl can be developed independently, as it has separate access required for independent development. I say that pursuant to the Hon’ble Court’s direction dated 8.2.2006, these respondents have prepared a rough and tentative calculations of the scheme parameters in respect of the scheme of dilapidated Municipal property known as Koli Chawl, showing that the said development proposal can be implemented independently. I say that the exact scheme parameters can be worked out only on submission of detailed redevelopment scheme by the tenants of the Koli Chawl. I say that these tentative scheme parameters may very 5% to 10% on details scrutiny of the actual proposal received for the scheme and on actual demarcation of the scheme boundaries/reservations area by the competent authority, i.e. D.I.L.R. Hereto annexed and marked Exhibit “A” is the copy of the said tenatative ESI calculation for Koli Chawl.” (emphasis supplied) Writ Petition No.160 of 2006 was finally disposed of by the Division Bench, presided over by the then Honourable the Chief Justice, vide order dated 2.3.2006. Paragraphs 5,6,7 and 8 of the order dated 2.3.2006 read thus : 11 “5. The Joint Municipal Commissioner has now passed a reasoned order and has relied upon several aspects including inspection of the properties by the Municipal Engineers. On that basis he has held that it is feasible to develop the properties in question independently. While protecting the interest of petitioners to come forward with a revised proposal for development of Koli Chawl, the Joint Municipal Commissioner has directed that Parsi Chawl occupants can go ahead with their independent proposal. 6. From a perusal of the relevant materials and the affidavit of the Municipal Corporation, we find no reason to interfere with the decision of Municipal Corporation, based as it is, on the assessment of the Municipal Engineers, Director of Engineering and Projects as well as Assistant Municipal Commissioner. Such decisions by public bodies, who are owners of properties, for development thereof with a view to eliminate miseries of the tenants occupying dilapidated tenements, require no interference in writ jurisdiction. Moreover when they are not demonstrated to be perverse or vitiated by any error apparent and cannot be termed as malafide as well. The petition is, therefore, dismissed. 7. The Joint Municipal Commissioner has, in his order, specifically observed that even at this stage it is open for the petitioner to come forward with an independent proposal for development of Koli Chawl and such revised and independent proposal would be considered and processed by the Corporation in accordance with the applicable policies and rules. 8. Shri Narula upon taking instructions from the petitioner who is present in the court, makes a 12 statement that the petitioner would come forward with a revised and/or independent proposal for development of Koli Chawl and we have no doubt that such proposal will be considered by the Municipal Corporation by taking into account the fact that even Koli Chawl occupants require establishment. The feasibility of the proposal should be considered in the light of the fact that part of the property is to be accused for construction of a Secondary school. The Corporation shall process the proposal and while ensuring construction of the school, shall also ensure that the petitioner can develop their portion with all benefits and concessions as are made available to the Parsi Chawl. “ (emphasis supplied) 6. In pursuance of the directions issued by the Division Bench vide order dated 2.3.2006 in Writ Petition No.160 of 2006, a separate proposal for redevelopment of the Koli Chawl under Regulation 33(7) of D.C.R through their Architects was submitted on 6.6.2006. The said proposal was for 121 residential and two commercial tenements as against 106 tenants/occupants of the Koli Chawl. The number of members of the Koli Chawl was increased in view of the fact that the petitioners, though are the tenants/occupants of the Parsi Chawl, opted to become members of Mahapurush. Since the names of the petitioners, who are tenants/occupants of the Parsi Chawl, were included in the fresh proposal of the Koli Chawl, the Corporation, vide its letter dated 10.10.2006, informed them 13 that their proposal cannot be processed further and called upon them to resubmit a correct proposal as per the check list. The proposal that was submitted by Mahapurush, naming the petitioners as its members on 6.6.2006, could not be considered in view of the fact that redevelopment of the Parsi Chawl had already commenced and the petitioners were part of their proposal. In the reply affidavit, the Corporation has stated that in case a fresh proposal is submitted, excluding the petitioners, for redevelopment of the Koli Chawl, same would be considered on its own merits within a fixed period. Similarly, on 25.4.2008, a statement was made by learned Senior Counsel for the petitioners on behalf of the respondent-society (Mahapurush), and it was recorded by this Court, that such a proposal will be submitted within a period of three weeks. In view thereof, the respondent-Corporation was directed to process and consider the same within the time frame. 7. As per the directions of this Court issued vide order dated 25.4.2008, the Koli Chawl, on 7.5.2008, submitted their separate proposal. Once again all the seventeen petitioners were named in the fresh proposal of Mahapurush of the Koli Chawl as their members. The Corporation, in their affidavit dated 16.9.2009, has, therefore, stated that since the proposal in respect of the 14 Parsi Chawl has already been approved by the Improvement Committee of the Corporation and the seventeen petitioners are part of the said proposal, the proposal submitted by the Koli Chawl including the seventeen petitioners cannot be approved and in view thereof the Corporation has once again requested the Koli Chawl to submit fresh proposal on behalf of 97 tenants plus 8 split up cases of the Koli Chawl. It is further stated in the affidavit that so far the Koli Chawl has not submitted fresh proposal excluding the seventeen petitioners. The Corporation has further stated on affidavit that on receipt of the fresh proposal of the Koli Chawl, excluding the seventeen petitioners, it will be scrutinized as per DCR 33 (7) and will be finalised within six months from the date of its receipt. In the course of hearing of this petition, I asked Mr Deshmukh, learned counsel for Mahapurush to take instructions from the Chief promoter, who was present in the court, and state whether Mahapurush is prepared to resubmit fresh proposal excluding the seventeen petitioners. His reply was in negative. 8. It is against this backdrop, I have heard learned counsel for the parties at considerable length. There is no dispute that after development of these Chawls independently, every tenant/occupant of these chawls would get a tenement of 300 15 sq.ft (carpet) in the newly constructed buildings with similar amenities. From the orders passed by this Court in Writ Petition No.160 of 2006, it is clear that the tenants/occupants of the Parsi Chawl are allowed to develop their property independently and that a development of the Koli Chawl is also viable. It is further clear that since the Koli Chawl did not submit its proposal for redevelopment, they were directed to submit it independently and the directions were issued to the Corporation to consider the same in accordance with the applicable policy and the rules. Even today, there is no dispute, as submitted by Mr Sakhare, learned senior counsel for the corporation on instructions, that a separate development of the Koli Chawl for its tenants/occupants is possible/viable and if they submit fresh proposal, excluding the petitioners from their earlier proposals, the Corporation will scrutinise the same as per D.C.R 33(7) and will finalise within the shortest possible time. 9. The basic challenge in the writ petition is to the order passed by the learned Principal Judge of the City Civil Court. The scope of this petition is, therefore, absolutely limited. In other words, these proceedings arise from the order dated 15.3.2007 passed by the Inquiry Officer on the application filed by the Corporation seeking eviction of the petitioners from the 16 tenements in their possession in the Parsi Chawl for its redevelopment. 10. Mr Madon, learned senior counsel for the petitioners, took me through the material placed on record and all through out made an attempt to demonstrate as to how redevelopment of the Koli Chawl is not viable/possible. Mr Deshmukh, learned counsel for the respondent-Mahapurish, also made submissions in support thereof. Let me make it clear that I am not dealing with these submissions of the learned counsel for the petitioners, which sought to expand the scope of these writ petitions. Whether separate development of these chawls is possible/viable is not the questions involved in this group of petitions. As a matter of fact, these questions have already been considered and answered by the Division Bench while disposing of Writ Petition No.160 of 2006. 11. Insofar the impugned judgment and order of eviction passed by the Principal Judge of the City Civil Court is concerned, the only contention urged by Mr Madon, learned senior counsel for the petitioners, was that unless the proposal submitted by the Koli Chawl is approved by the Corporation, the petitioners cannot be evicted. He submitted that the petitioners 17 are the members of Mahapurush right from inception, and they cannot be compelled to become members of Pavanputra. In short, he submitted that the order of eviction is wrong and illegal in view of the fact that the proposal of the Koli Chawl, of which the petitioners are part and parcel for its redevelopment, has not been cleared so far. 12. Admittedly, as observed earlier, all the petitioners are the occupants/tenants of the Parsi Chawl and their names are included in the list of the tenants/occupants of Parsi Chawl, who are entitled for tenements in the newly constructed building after redevelopment of their dilapidated Chawl type structure. All other tenants/occupants, except the seventeen petitioners, of the Parsi Chawl have already shifted to the transit accommodation and since last about 2 – 3 years the petitioners have been refusing to shift to the transit camp stating that unless the proposal of the Koli Chawl is cleared they would not vacate the tenements in the Parsi Chawl. As a result thereof, the further development of the Parsi Chawl, which is allowed by this court and approved by the Improvement Committee of the Corporation by their Resolution No.57 dated 8.8.2006, has been stalled. It is against this backdrop the Corporation was left with no other alternative but to seek their eviction and accordingly 18 the impugned orders have been passed. 13. I repeatedly asked Mr Madon, learned senior counsel for the petitioners as to why the petitioners are not accepting membership of Pavanputra and are insisting to be the members of Mahapurush. He did not have any reply. I also asked him what prejudice would be caused to them if they shift to transit accommodation and allow redevelopment of the Parsi Chawl, notwithstanding their desire to continue to be the members of Mahapurush which they can peruse even after they shift to the transit accommodation. To this also, he had no reply. I also asked Mr Deshmukh, learned counsel for Mahapurush as to whether the members of Mahapurush, in order to accommodate the petitioners in their society are ready to sacrifice area of their tenements to some extent in the new building, to which his reply was in negative. I do not see any justification or rational in the petitioners insistence to continue to be the members of Mahapurush. 14. As per the Administrative Guidelines for the redevelopment of old Municipal properties by Municipal Tenants Co-operative Housing Societies on the land owned by the Corporation under Regulation no.33 (7) of the Development 19 Central Regulations for Greater Bombay, 1991, it is necessary that more than 70% of the eligible existing Municipal tenants should give written consent to redevelop the property under the scheme and form an association/co-operative society and initiate proposal of development. There is no dispute that more than 80% tenants/occupants of the Parsi Chawl have formed a society (Pavanputra) and their proposal for redevelopment has been sanctioned by the Improvement Committee of the Corporation on 8.8.2006. Under the guidelines, no choice is given to the tenants/occupants, who are in minority, i.e. 30% or less, to take different stand/decision, though it may be possible for such tenant/occupant or a group of tenants/occupants to give up their right and quit from the scheme. However, once 70% or more tenants/occupants give written consent to redevelop the property under the scheme and form an association/co-operative society and initiate proposal of redevelopment and if the scheme/proposal is approved by the Corporation, it is binding on all the tenants of the chawl/building whether they like it or not. If tenants in minority or non-co-operative tenants are given choice to become members of any other society, as of right, perhaps that will create chaos and no redevelopment would ever progress smoothly. 20 15. Mr Madon and Mr Deshmukh, learned counsel for the petitioners and Mahapurush, sought to re-open the issue as to whether the proposal of the Koli Chawl would be viable on the remaining portion which is now available with the Koli Chawl. It is pertinent to note that the Koli Chawl (Mahapurush) has not challenged the orders impugned in the writ petition nor did they carry the matter further against the order passed by the Division Bench disposing of Writ Petition No.160 of 2006. The Division Bench, on the basis of the report of the Technical Committee as well as the calculations with respect to the area left after granting a separate NOC to the Parsi Chawl, vide its orders dated 8.2.2008 and 2.3.206, held that the independent development of both the chawls is feasible. 16. The proposal of the Koli Chawl (Mahapurush) is yet not cleared and the Corporation has requested them to resubmit their proposal after excluding the petitioners from the list of their members. In any case, till the problem of Koli Chawl is sorted out, redevelopment of the Parsi Chawl cannot be allowed to be stalled any further. The petitioners, who are well protected and are entitled for tenements in the building that will be constructed for the tenants/occupants of the Parsi Chawl cannot be allowed to make tenants/occupants in both the chawls 21 to suffer any further. This Court is informed that the petitioners will be provided with transit accommodation if they shift. If, still, they want to state that they are entitled to become members of Mahapurush and if Mahapurush also wants the petitioners to be the members of their society, they may adopt such remedy as may be available in law for redressal of their grievance. But in any case they should vacate the tenements in their possession. I do not find the stand of the Corporation stating that they will consider the proposal of the Koli Chawl if they resubmit the same excluding the petitioners, unreasonable. The choice is now left to the members of Mahapurush and to the petitioners. If the petitioners do not want tenements in the newly constructed building meant for the tenants/occupants of the Parsi Chawl, they may so inform in writing to Pavanputra and the Corporation at the earliest. Similarly, though Mr Deshmukh, learned counsel for the respondent-society, on instructions, submitted that the Society is not prepared to submit fresh proposal deleting the names of the petitioners from their earlier proposal, it is open for the said society to submit their proposal deleting the petitioners therefrom. Mr Sakhare, learned senior counsel for the Corporation, submitted that if If they submit such proposal, the Corporation shall consider the same, notwithstanding the statements made in their affidavit dated 22 24.4.2009, in the light of the orders passed by