1 srk wp-L-2345-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.2345 OF 2010 Shyam Bhiva Jadhav and others. ... Petitioners Versus State of Maharashtra and others. ... Respondents Mr.Kishor V. Tembe for the petitioners. Mr. A.G. Damle for respondent No.5. Mr. G.W. Mattos, Assistant Government Pleader for State-respondent Nos.1 to 4. Mr. Satish Shetye for respondent No.6. CORAM : MOHIT S. SHAH, C.J. & DR. D.Y. CHANDRACHUD, J. Friday, October 22, 2010 P .C. The petitioners, five in number, have challenged the constitutional validity of the amended Development Control Regulation No.33(5) of the Development Control Regulations for Greater Mumbai, 1991 and also the constitutional validity of the provisions of section 95-A of the Maharashtra Housing and Area Development Act, 1976 (MHADA Act). The petitioners have also challenged the eviction order dated 17 October 2010 issued under the aforesaid provisions. 2. The petitioners herein are members of respondent No.5 which is a co-operative society registered under the Maharashtra Co-operative Societies Act. The co-operative society has 40 members occupying as tenants flats constructed by then Mumbai Housing Board, (Maharashtra Housing and Area Development Authority (MHADA). Each flat in building 125, Nehru Nagar, 2 srk wp-L-2345-10.sxw Kurla (East), Mumbai has carpet area of 225 sq.ft. Out of total 40 members, 39 members including petitioner Nos.2 to 5, granted consent for redevelopment scheme under Regulation 33(5)(7) of the Development Control Regulations, 1981 which reads as under: (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 95A of the MHADA 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. (emphasis supplied) 3. Section 95A of the MHADA Act reads as under: "95A. Summary eviction of occupiers in certain cases.- (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. 3 srk wp-L-2345-10.sxw (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. (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." (emphasis supplied) 4. On the basis of the consent given by 39 out of 40 members for Redevelopment Scheme to be executed by respondent No.6 developer for members of respondent No.5 society, development agreement dated 25 May 2009 was executed between respondent No.5 society and respondent No.6 developer M/s. Ekdant Construction Private Limited. Under the said agreement, tenant of each flat is to get a flat with carpet area of 345 sq. ft. excluding balconies, as against 225 sq. ft. carpet area in the existing flat. As per the redevelopment scheme, MHADA is also to get premium of Rs. 67,97,715/- from the developer. In view of consent of 97.5% of the members of respondent No.5 society, respondent No.5 society made an application to respondent No.3 for grant of NOC for redevelopment of the building under DCR 33(5). The application was made on 10 July 2009 and on 8 January 2010, respondent No.3 MHADA issued NOC for redevelopment to respondent No.5 society. 4 srk wp-L-2345-10.sxw 5. The petitioners herein, five in number, (out of whom four had also given consent) raised a dispute before the Co-operative Court for declaration that the resolution passed by respondent No.5 society for redevelopment was fraudulent, illegal and bad-in-law because the consent was given for redevelopment by M/s. Ekdant Construction Private Limited, whereas while granting NOC to respondent No.5 society, respondent No.3 MHADA had indicated that the redevelopment was to be done by Ekdant Developers. The Co-operative Court granted interim injunction on 21 April 2010. Aggrieved thereby, respondent No.5 society filed Appeal from Order No.47 of 2010 before the Maharashtra State Co-operative Appellate Court, Mumbai. By judgment dated 21 May 2010, the Appellate Court set aside the interim injunction order of the Co-operative Court. In the meantime, the members of respondent No.5 society started shifting to the transit accommodation and it is stated that at present, 34 out of 40 members have already shifted to the transit accommodation. 6. Since the present petitioners have not shifted to the transit accommodation, respondent No.5 society made an application to MHADA for initiating action under section 95A of the MHADA Act against the present petitioners for their non-cooperation. On 6 September 2010, the Executive Engineer of MHADA issued show-cause notice to the petitioners calling upon them to show cause as to why they should not be summarily evicted under section 95A of MHADA Act. The petitioners submitted their reply dated 15 September 2010. The petitioners also challenged the show cause notice by filing writ petition, but this Court did not entertain the same on the ground that the petition was premature. After hearing the petitioners, the Executive Engineer, MHADA passed the impugned order dated 7 October 2010 calling 5 srk wp-L-2345-10.sxw upon the petitioners to shift to the transit accommodation within seven days, failing which they would be evicted from the premises in question. Hence, the present petition came to be filed on 12 October 2010. 7. The learned counsel for the petitioners has raised the following contentions: (i) In absence of specific provisions in MHADA Act incorporating the provisions of Regulation 33(5)(7) of the Development Control Regulations, MHADA cannot exercise the powers under the said Development Control Regulations. The Development Control Regulations made under the MRTP Act are for the purposes of MRTP Act which provides merely for making development plans and town planning schemes. (ii) The provisions of 95A of MHADA Act provide for summary procedure for eviction of occupants of public property without providing for an elaborate hearing or a right of appeal against the order of eviction. Even a trespasser is given a right to contest the proceedings and elaborate procedure before eviction order is passed and also a right of appeal under the Public Premises (Eviction of Unauthorised Occupants) Act but the lawful occupants of the building constructed by MHADA are discriminated against by the provision of summary procedure for eviction by an administrative authority under section 95A of MHADA Act without any provision for appeal. Hence the 6 srk wp-L-2345-10.sxw said provision is arbitrary and violative of the petitioners' fundamental right under Article 14 of the Constitution. iii) In any view of the matter, section 74 of MHADA Act provides that it is the Mumbai Repairs and Reconstruction Board established under section 18 of the Act which shall be the Board for the provisions of carrying out the purposes of Chapter VIII of MHADA and section 95 falls in Chapter VIII. Hence the powers under section 95A cannot be exercised by MHADA, but they can only be exercised by Mumbai Rapairs and Reconstruction Board. The eviction orders passed by Executive Engineer, MHADA are, therefore, without any authority of law and without jurisdiction. iv) The consent given by the occupants to M/s. Ekdant Constructions Private Limited cannot be utilised in favour of M/s. Ekdant Developers. v) The petitioners ought to have been given carpet area of 484 sq.ft. instead of giving them 345 sq. ft. of carpet area. 8. On the other hand, Mr. Mattos, learned AGP for respondent Nos.1 to 4 and Mr. Damle, learned counsel for respondent No.5 society and Mr. Satish Shetye, learned counsel for respondent No.6 developer have opposed the petition and made the following submissions: i) Provisions of section 95A and Regulation 33(5)(7) of 7 srk wp-L-2345-10.sxw Development Control Regulations have to be read together and so read they confer power on MHADA to summarily evict the non-cooperative members of a co-operative society who are 30% or less. (ii) The rules of natural justice have to be read in section 95A and when an Executive Engineer of MHADA gives opportunity of hearing and passes a reasoned order dealing with the objections raised by petitioners, it cannot be said that the procedure provided under section 95A is arbitrary. Section 95A can be invoked only when at least 70% of occupants, (97.5% members in the instant case) have already given their consent for the redevelopment scheme. Such a scheme has to be treated as a reasonable one and in the interest of the occupants and members of respondent No.5 society. iii) The controversy sought to be raised by the petitioners has already been examined by this Court in two judgments, one dated 12 March 2010 in Appeal (Lodging) No.86 of 2010 and another dated 6 July 2010 in Writ Petition (Lodging) No.652 of 2010. The two Division Benches of this Court have already held that powers under section 95A of the Act, in respect of the properties belonging to MHADA in Bombay Suburban areas are vested in MHADA. iv) M/s. Ekdant Constructions Private Limited and M/s. Ekdant Developers are one and the same party. The 8 srk wp-L-2345-10.sxw consent was given by 39 out of 40 members in favour of respondent No.6 M/s. Ekdant Constructions Private Limited and respondent No.5 society has also entered into an agreement for redevelopment with respondent No.6 Ekdant Constructions Private Limited. In popular parlance, the developers are often known by short name and therefore, M/s. Ekdant Constructions Private Limited was called M/s. Ekdant Developers and that is why reference was made to the developer by such a short name. However, realising that the petitioners were trying to make capital out of this issue, on 31 May 2010, respondent No.5 society has already passed a resolution stating that M/s. Ekdant Constructions Private Limited and M/s. Ekdant Developers are one and the same party in whose favour redevelopment contract has been awarded. It is further submitted that looking to the area of land which is only 950 sq.mts., and 40 occupants being required to be offered alternative accommodation, the carpet area of 345 sq.ft. excluding the balcony, is a reasonable area being allotted to the members of respondent No.5 society by the developer who is concluding the entire project at its own cost, after paying premium of Rs.67,79,715/- to MHADA. 9. Having heard the learned counsel for the parties, we have given anxious consideration to the rival submissions. 10. Coming to the first contention raised by the petitioners, we find that the notice issued under section 95A of the Act does not suffer from any 9 srk wp-L-2345-10.sxw legal infirmity. The power has been invoked by the Executive Engineer of MHADA under section 95A of the MHADA Act which is to be read with Regulation 33(5)(7) of the Development Control Regulations for Greater Mumbai, 1991 (hereinafter referred to as DCR). The said DCR provides for schemes for redevelopment of the properties of MHADA so as to enable the tenants to get better accommodation in place of the dilapidated buildings in which the tenants are residing at present. However, in order to ensure that the scheme is reasonable and in the interest of members, the DCR specifically provides that MHADA can issue NOC and sanction additional FSI, provided at least 70% of the members of the Cooperative Housing Society approve the redevelopment scheme. In case of failure to vacate the existing tenements, the provisions of section 95A of the MHADA Act mutatis mutandis shall apply for getting the tenements evicted from non-cooperative members. It is, thus, clear that when more than 70% of members of the co-operative housing society have found the scheme to be reasonable, the non-cooperative members cannot be permitted to continue to occupy the existing tenements. Unless all the existing tenements are vacated and demolished, the developer cannot undertake the redevelopment project. Unless the power of summary vacation is conferred on MHADA authorities, the object of making DCR 33(5)(7) would be frustrated. The principles of natural justice have to be followed before passing order of eviction under section 95A. 11. Having regard to the above scheme under MHADA Act and the DCR Regulations, we have no hesitation in holding that the provisions of section 95A which have been challenged only on the ground of violation of Article 14 of the Constitution do not suffer from any constitutional invalidity. So also Regulation 33(5)(7) of the DCR having been made in exercise of powers under section 158 of the MRTP Act, cannot be considered as invalid.. 10 srk wp-L-2345-10.sxw The Apex Court has already held in Pune Municipal Corporation and another v. Promoters and Builders Association and another, (2004) 10 SCC 796, that the DCR are framed under section 158 of the MRTP Act and the Rules framed under the provisions of the statute form part of the statute. In other words, the DCR have statutory force. 12. Coming to the contention that the powers under section 95A can be exercised only by Mumbai Repairs and Reconstruction Board as provided in section 74 of MHADA Act, though the contention may prima facie appear to be attractive at the first blush, it cannot be accepted for the simple reason that DCR 33(5)(7) specifically provides that provisions of section 95A of MHADA Act shall apply mutatis mutandis where the property belonging to MHADA is to be redeveloped by the Co-operative Housing Society, after MHADA gives NOC upon 70% of the members of the society granting consent to the redevelopment scheme. Moreover, the jurisdiction of Mumbai Repairs and Reconstruction Board is for the purposes of carrying out repairs of the buildings which are in City of Mumbai. However, the property in question is in the Mumbai Suburban area for which the jurisdiction has been conferred by section 18(1) (a) of the MHADA Act on the Maharashtra Housing and Area Development Board. This question has also been examined by this Court in the decision dated 6 July 2010 in Writ Petition (Lodging) No.652 of 2010 wherein the following observations were made: "7. .......... Section 18 thereof specifies 5 different Boards for different territorial jurisdiction and also makes it clear that it is the MHADA which has jurisdiction over the city of Mumbai and the Mumbai Suburban Mumbai Repairs and Reconstruction Board and Mumbai Slum Improvement Board constituted under Section 11 srk wp-L-2345-10.sxw 18(1)(c) are only for the purposes of carrying out the activities of repairs and reconstruction and slum improvement. The said Boards are, therefore concerned with the repairs and reconstruction and Slum Improvement and they have nothing to do with the land over which MHADA had constructed the flats in question." 13. Coming to the contentions on facts, having regard to the fact that the consent given by 39 out of 40 members for redevelopment of the property in question was for redevelopment by M/s. Ekdant Constructions Private Limited (respondent No.6) and that redevelopment agreement is entered into by respondent 5 society with M/s. Ekdant Constructions Private Limited (respondent No.6), we do not find any substance in the contention that the agreement is executed in favour of a party other than the one in whose favour consent was given by the members. 14. As regards the carpet area to be allotted to the members of respondent No.5 society, this Court would not sit in appeal over the wisdom of 39 out of 40 members of respondent No.5 society who have agreed that they be allotted flats each with 345 sq.ft. carpet area excluding balcony, as against the carpet area of 225 sq.ft. each of existing flats. 15. In view of the above discussion, we find no merit in any of the contentions urged on behalf of the petitioners. The petition is, therefore, summarily dismissed. 16. At this stage, the learned counsel for the petitioners prays for stay of implementation of the eviction orders for four weeks. 12 srk wp-L-2345-10.sxw 17. In the facts and circumstances of the case, more particularly when 39 out of 40 members of the cooperative society including petitioner Nos.2 to 5, had given their consent for redevelopment scheme between respondent No.5 society and respondent No.6 developer and 34 out of 40 members of respondent No.5 society have already shifted to the transit accommodation, and when respondent No.6 developer has already provided for transit accommodation to the petitioners also, we see no justification to stay the operation of this judgment. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.