IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3189 OF 2004 1. Joseph Bain D’Souza 2. Cyrus J. Guzder 3. Shirish B. Patel .. Petitioners V/s 1. State of Maharashtra through the Secretary, Urban Development Department 2. Municipal Corporation of Greater Mumbai 3. Maharashtra Housing and Area Development Authority 4. D.M. Sukthankar .. Respondents AND 1. Jayant Achyut Sathe 2. Property Owners’ Association 3. M.K. Kelkar 4. Prashant Relekar 5. Property Redevelopers’ Association 6. Sashikant Patil And others .. Interveners WITH WITH WITH Chamber Summonses No.276/04, 278/04, 279/04, 307/04, 309/04, 312/04, 319/04, 324/04, 9/05, 22/05, 38/05, 53/05, 299/06, 300/06 Mr. Aspi Chinoi, Senior Advocate with Mr. Gautam Patel and Mr. Sharan Jagtiani i/b Thakore Jariwala & Associates for the Petitioners. Mr. Ravi Kadam, Advocate General with Mr. G.W. Mattos, A.G.P. for Respondents No.1 and 3. Mr. K.K. Singhvi, Senior Advocate with Mr. Suresh Pakale and Ms. Preeti Purandare for Respondent No.2. Respondent No.4 served. - 2 - Mr.T. Subramaniam, Senior Advocate with Mr.Chirag Balsara i/b M/s Vanita Kakar, Kachwaha and Partner for Intervener No.1. Mr.Devrajan with Ms.Mrudula Kadam with Mr. Ashok Rajgopalan and Mr.George Das i/b Vimadalal & Co. for Intervener No.2. Mr.A.N. Jakhadi for Intervener No.3. Mr. J. Reis with Mr. Vimal Tiwari for Intervener No.4. Mr. Y.M. Choudhari for Intervener No.5. Intervener No.6 in person. Mr.Dharam Sharma for the Intervener - Mumbai Bhadekari Ekta Sangh. Mr.A.N. Jakhadi for the Intervener - Girgaum Shri Swami Samarth Co-operative Housing Society Ltd. & Ors. Mr. Manoj Thatte for the Intervener Mr. Rajaram Tukaram Amkar. Other interveners are served. CORAM : H.L. GOKHALE & J.P. DEVADHAR, JJ. DATE OF RESERVING THE JUDGMENT : 23RD NOVEMBER 2006 DATE OF PRONOUNCING THE JUDGMENT: 11TH DECEMBER 2006 JUDGMENT JUDGMENT JUDGMENT: (Per H.L. Gokhale, J.) 1. This writ petition has been filed by three citizens of Mumbai in public interest. The petition seeks to challenge the legality of Regulation No.33(7) of the Development Control Regulations, 1991 for the city of Mumbai, as amended in the year 1999, to the extent it provides amongst others that the buildings owned by private landlords in the island area of the city and covered for reconstruction thereunder are - 3 - permitted Floor Space Index (FSI) of 2.5 or the FSI required for rehabilitation of existing tenants plus incentive FSI (as specified in Appendix III to the Regulations) whichever is more. The Petitioners have raised various grounds and invoked Article 14 of the Constitution of India for this purpose. 2. The three Petitioners are public spirited citizens. The 1st Petitioner is a former Municipal Commissioner of Mumbai, who is also a former Chief Secretary of the State of Maharashtra. The 2nd Petitioner has been a member of various committees concerning urban development. The 3rd Petitioner is a Civil Engineer by profession and for quite many years was an Executive Committee Member of the Bombay Metropolitan Authority. He was also a member of the Slum Rehabilitation Committee constituted by the State of Maharashtra. 3. Respondent No.1 to this petition is the State of Maharashtra through the Secretary, Urban Development Department. Respondent No.2 is the Municipal Corporation of Greater Mumbai, which is the Planning Authority for the city of Mumbai under the Maharashtra Regional and Town Planning Act, 1966 whereunder these Regulations are framed. Respondent No.3 is a statutory authority constituted under the Maharashtra Housing and - 4 - Area Development Act, 1976. It is an Act with a comprehensive approach towards the problem of housing development including repair and reconstruction of the dilapidated buildings in the city. Respondent No.4 is a former Municipal Commissioner of Mumbai whose report has, amongst others, led to the amendments to the D.C. Regulations in the year 1999. 4. A number of parties have intervened in this matter. Thus, Interveners No.1 and 3 are property owners. Intervener No.2 is the Property Owners’ Association. Intervener No.4 claims to be a tenant in a pre-1940 building. Intervener No.5 is Property Redevelopers’ Association. They are all opposing the reliefs in the petition. Intervener No.6 is an architect by profession who has intervened in the petition to support this petition. All those interveners have appeared either through their counsel or on their own. There have been other interveners in this matter who have filed their chamber summonses (applications) for intervention, but have not caused any appearance at the time of hearing. 5. A judgment has been rendered earlier in this petition by a Division Bench of this Court on 17th October 2005. The Division Bench accepted a number of grievances which have been canvassed in this petition and, amongst others, appointed a few committees to look - 5 - into some such aspects which, according to it, had relevance for the issues highlighted in the petition. One of the interveners, Jayant Achyut Sathe, filed Special Leave Petition (Civil) No.1376 of 2006 which was numbered as Civil Appeal No.2970 of 2006. Some other parties had also filed similar appeals. The Apex Court passed an order on this appeal on 14th July 2006 and observed that it was not clear as to whether the writ petition had been disposed of by the High Court or not. Hence, while keeping the appeal alive, it directed the High Court to deal with the basic issues raised in the petition. The Apex Court further observed - "The High Court has not dealt with the basic issues raised in the petition, i.e. as to whether the amended Regulation 33(7) suffered from any infirmity. We, therefore, think it appropriate to direct the High Court to examine those issues. The parties shall be permitted to place their respective stands before the High Court. It is open to the appellants to canvass before the High Court as to the non-maintainability of the Writ Petitions. The High Court shall appropriately deal with the same. It needs no reiteration that the High Court shall examine the challenge to Regulation 33(7) as amended in 1999." - 6 - The Apex Court has thereafter made it clear that the High Court shall deal with only the issue relating to the validity of the provisions and the maintainability of the writ petitions. 6. A few parties had filed intervention applications before the Apex Court. Those applications were also directed to be dealt with by the High Court and the High Court was to dispose of the matter within 3 months from the date of receipt of the order. It is material to note that this order of the Apex Court refers to an interim order passed earlier on 21st April 2006 whereby the Apex Court had directed that no third party rights shall be created without leave of the Apex Court. That order has been continued to be in operation till the disposal of the matter by the High Court and it is then observed that thereafter it will be for the High Court to deal with that aspect. 7. After this order was passed by the Apex Court, it was listed before different Benches, but could not be taken by them for some reason or the other. Thereafter it was listed before this Bench first on 18th September 2006. Mr.Gautam Patel, learned counsel for the Petitioners, pointed out that the interveners will have to be informed about this matter being taken up. He - 7 - assured to file their addresses with the office of the Prothonotary & Senior Master, who was directed to give notices to all of them to appear on 9th October 2006 when the matter was to be notified for reporting service of notices. Mr.Patel offered to give notices to them directly on behalf of the Petitioners also. The matter thereafter appeared on 9th October 2006 as directed when some of the interveners appeared before this Court and caused appearance. Mr.Patel filed an affidavit of service to prove the service. Two of the applicants, i.e. Jayant Achyut Sathe and Moreshwar Kelkar, had taken out chamber summonses No.300 and 299 of 2006 for intervention. They were specifically allowed by the orders passed on that day and the matter was adjourned to 8th November 2006 for hearing. Chamber summonses have been taken out by some other interveners bearing Nos.276/04, 278/04, 279/04, 307/04, 309/04, 312/04, 319/04, 324/04, 9/05, 22/05, 38/05 and 53/05. They were not present in spite of taking out chamber summonses. The matter was heard thereafter from 8th November 2006 from time to time and the hearing was concluded on 23rd November 2006. 8. The petition has been opposed by filing replies on behalf of the contesting Respondents. Thus, for the State of Maharashtra, Shri Ramanand Tiwari, Principal Secretary of the Urban Development Department, has filed an affidavit in reply affirmed on 19th January 2005. - 8 - Shri M.S. Rao, Chief Engineer, Development Planning, has filed a reply for the Municipal Corporation which was affirmed on 13th December 2004. Shri S.T. Karande, Chief Officer of the Mumbai Building, Repairs and Reconstruction Board has filed a reply affirmed on 20th January 2005. The Petitioners have filed their rejoinders to these replies. As far as the interveners are concerned, one Priyavadan Bhat has filed a reply affirmed on 15th January 2005 for the Property Owners’ Association. Some other interveners have also filed affidavits in that behalf. In view of the order passed on the chamber summonses taken out by Jayant Achyut Sathe, the affidavit in support thereof was directed to be treated as his reply to the petition. 9. A chronology of dates and events and written submissions have been filed on behalf of the Petitioners, the State of Maharashtra and the Municipal Corporation. As far as the interveners are concerned, the Property Owners’ Association, Jayant Achyut Sathe and Prashant Relekar have filed their written submissions. Shri Shashikant Patil, an architect by occupation, who has intervened in this petition to support the petition, has also filed his written submissions. A number of reports have been filed by both the parties. All of them have relied upon a number of authorities. We have considered all this material as also the submissions of the counsel appearing for all of - 9 - them as well as the intervener in person. THE QUESTION OF VALIDITY OF D.C. REGULATION 33(7) THE QUESTION OF VALIDITY OF D.C. REGULATION 33(7) THE QUESTION OF VALIDITY OF D.C. REGULATION 33(7): 10. As noted earlier, the petition seeks to challenge the validity of the D.C. Regulation 33(7) as amended in the year 1999 on various grounds. 11. The Petitioners are concerned with the problem of congestion of the population in the island city of Mumbai. The island area of the city covers the area from Colaba in the South to Mahim and Sion in the North (which originally consisted of eight islands before they were all linked). The areas of suburbs and extended suburbs are not covered when one speaks of the island city. The existing infrastructure in the island city, particularly with respect to roads, water supply, sewage system, open areas and gardens, is already over stretched and under extreme strain. The Petitioners point out that the island city has already reached the saturation point with respect to the population that it can accommodate, which is not disputed by any of the public authorities concerned. According to the report entitled "Report on the Development Plan of Greater Bombay, 1966", the total acreage of the island city is 17,388.83 acres and the ultimate population, which it can accommodate, is 32.5 lakhs. As of now, the existing population of the island city is already in excess of - 10 - this figure of ultimate population. It is now estimated to be 33.4 lakhs. It is another matter that the population in the suburbs is much more, but the area over there is also much more than the island city. The petition is concerning only the island city. 12. There is no dispute whatsoever that the present public amenities are inadequate to cater to the present population. Hence, according to the Petitioners, any cause for the increase in the population in the island city has to be appropriately dealt with. Coupled with this deterioration of the infrastructure in the island city, it is also a fact that a very large number of buildings, i.e. more than 16,500 (16,502 according to one estimate) were constructed prior to 1940 and are in the need of urgent repairs and in some cases reconstruction. The State has taken it upon itself to see to it that these buildings are repaired and, wherever necessary, reconstructed and for that purpose, it created the Bombay Building, Repairs and Reconstruction Board by passing the Bombay Building, Repairs and Reconstruction Board Act (Act No.XLVII of 1969). One of the main reasons for this large number of unattended buildings has been the freezing of the rent under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent Act" for short). Rents received by the landlords were found very much - 11 - insufficient for them to carry out repairs. 13. The Bombay Building, Repairs and Reconstruction Board Act was later on repealed and the activities under the Act were taken over by the Maharashtra Housing and Area Development Authority (MHADA) when the Maharashtra Housing and Area Development Act (MHAD Act) was passed in 1976. A cess was to be contributed by the tenants of the private buildings known as Mumbai Building, Repairs and Reconstruction Cess under section 82 of the said Act. Lands and buildings owned by the Central Government, State Government, Municipal Corporation of Mumbai, Mumbai Port Trust, lands and buildings vested in MHADA, lands and buildings of the Public Trusts exclusively occupied for worship or educational purposes and those vested in or leased to a cooperative society, buildings exclusively in occupation of the owner, buildings exclusively used for non-residential purposes and some other properties as mentioned in section 83 were exempted from this requirement of paying the cess. These cessed buildings were divided into the following three categories under section 84 of the MHAD Act: Category "A" : Buildings erected prior to 1/9/1940 Category "B" : Buildings erected between 1/9/1940 and 31/12/1950 Category "C" : Buildings erected between 1/1/1951 and 30/12/1969 - 12 - It appears to be the common case that as of now as per the affidavit of the State Government in the present matter, there are some 16502 buildings in "A" Category, 1491 buildings in "B" Category and 1651 buildings in "C" Category. 14. Chapter VIII of MHAD Act provided for repairs and reconstruction of dilapidated buildings. Under section 88 from Chapter VIII of the MHAD Act, Mumbai Housing and Area Development Board was supposed to undertake structural repairs of the buildings, which were in ruinous condition and likely to deteriorate and fall. However, section 88(3) provides that where the cost of the structural repairs exceeded Rs.1200/- per sq.m., the Board may not consider such buildings for repairs and issue a certificate to that effect to the owner of the buildings and affix it on the building for the information of occupiers and then proceed to take action as provided in this Chapter. Thereafter where the occupiers were ready to contribute to the cost in excess of Rs.1200/- per sq. metre, the Board may carry out the structural repairs, for which a provision is made in section 89 of the MHAD Act. This will mean that otherwise the steps for reconstruction will be taken by acquiring the property as provided in sections 91 and 92 of this Chapter. Section 91 provides for reconstruction where a building suddenly collapses or becomes - 13 - inhabitable due to fire, torrential rain or tempest or otherwise. Section 92 lays down the procedure for acquisition where however a building suddenly collapses. 15. It is not disputed that there was not much progress in the matter of repairs and/or the reconstruction by this procedure. Therefore, some times in the year 1981, the Government appointed a committee under one Mr. Ajit Kerkar to consider the problems of dilapidated buildings and slums. The Kerkar Committee, however, emphasised that there should be a shift from reconstruction of individual buildings to the redevelopment of the entire localities and the formulation of a programme of urban renewal. It was of the view that otherwise there would be no major improvement in the quality of life of people living in the buildings in the neighbourhood. It is common case that the MHADA found it difficult to put in adequate funds for acquisition of properties for reconstruction under Chapter VIII of the MHAD Act and, therefore, Chapter VIII-A was introduced in the MHAD Act. The provisions of this Chapter are notwithstanding what was provided in Chapter VIII as stated in section 103-B of Chapter VIII-A. The provisions under this Chapter were to operate when 70% of the occupiers came together and approach the Government to acquire the property. They assured to contribute towards the acquisition and take - 14 - steps since the landlords were not cooperating. Under the scheme of this Chapter, the developed buildings were to be given FSI 2. 16. These provisions also did not receive adequate response. On 25th March 1991, the Development Control Regulations were notified for Greater Mumbai. D.C. Regulation 33(7) thereunder provided for reconstruction or redevelopment of cessed buildings in the island city by co-operative housing societies or of old buildings belonging to the Corporation. This D.C. Regulation 33(7) provided for old consumed FSI or FSI 2 whichever is higher. This DCR was further amended on 25th January 1999 to provide FSI of 2.5 on the gross plot area or the FSI required for rehabilitation of the existing tenants plus incentive FSI as specified in Appendix III to these Regulations. This amendment was brought about after the report submitted to the State Government by a Study Group under the chairmanship of Shri D.M. Sukhtankar, former Municipal Commissioner and who is Respondent No.4 herein. The Study Group has submitted its report in July 1997 leading to the amendments in the year 1999. This D.C. Regulation 33(7) has been further amended by adding a new clause with effect from 27th February 2004 whereby apart from the Corporation buildings, those of Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra constructed - 15 - prior to 1940 were also covered under this clause for the extra FSI. 17. It is the case of the Petitioners that there has been a gross misuse of this amended D.C. Regulation 33(7) when applied to private buildings with which the petition is concerned. The Petitioners submit that this amended D.C. Regulation 33(7) has been misused to pull down buildings which are otherwise in good condition merely because they were constructed prior to 1940. It is their further case that there are no guidelines under the D.C. Regulations to lay down as to who are the tenants or occupiers who are eligible to be protected under these D.C. Regulations. The Petitioners have cited a number of instances of such misuse. It is their case that builders and developers and people with muscle power are dishousing genuine tenants / occupiers. The number of tenants / occupiers is inflated by creating bogus tenancies to claim extra FSI. The consequence of all this is that there is going to be unjustified and tremendous increase in the population in the island city causing further strain on its infrastructure. It is the case of the Petitioners that the extra FSI as per the amended D.C. Regulation 33(7) is meant for the reconstruction of unsafe and dilapidated buildings only and not for all the 16,502 "A" category cessed buildings. The dilapidated buildings are supposed to be - 16 - just about 10% of them. The Petitioners therefore pray through prayer clause (a) that if the D.C. Regulation 33(7) is to be read to operate / apply to grant additional FSI, even for reconstruction of structurally strong sound cessed buildings which are not in danger of collapse, to that extent the said Regulations be quashed and set aside. Alternatively, they seek a declaration through prayer (b) that D.C. Regulation 33(7) be declared applicable to only those cessed buildings which are in dilapidated and structurally unsafe / unsound condition, which fact may be certified by a panel of experts. Amongst other prayers, they have a specific prayer (f) to challenge the reduction in the marginal open space requirement for the buildings under D.C. Regulation 33(7) read with Appendix III from what is provided for the buildings under the other Regulations. 18. The submission of the contesting Respondents, on the other hand, is that D.C. Regulation 33(7) is applicable to all "A" Category cessed buildings which are constructed prior to 1940. Wherever 70% of the tenants / occupiers of such buildings come together along with their landlord for redevelopment of their property, they were entitled to get this extra FSI. This will provide houses with minimum 225 sq.ft. free of cost to all those in these pre-1940 buildings. Many of them are otherwise cramped in still smaller tenements. According to the Respondents, the benefit - 17 - could not be restricted only to the old and dilapidated buildings. There is no such restriction contemplated under D.C. Regulation 33(7). In fact, they submitted that it will be unfair to make any such classification and that is not contemplated under the provisions. 19. To examine the rival submissions, we will have to refer to relevant provisions of the MHAD Act and the Regulations. RELEVANT PROVISIONS OF MHAD ACT RELEVANT PROVISIONS OF MHAD ACT RELEVANT PROVISIONS OF MHAD ACT: . As far as the MHAD Act is concerned, the provisions of Chapter VIII and VIII-A are relevant for our purposes. Chapter VIII Chapter VIII Chapter VIII deals with repairs and reconstruction of dilapidated buildings and Chapter VIII-A deals with acquisition of cessed properties for cooperative societies of occupiers. Section 76 from Chapter VIII lays down the duties of the Board relating to repairs and reconstruction of relevant buildings. Sub-clauses (a) and (d) thereof are relevant for our purpose. They read as follows:- Duties relating to repairs and reconstruction of Duties relating to repairs and reconstruction of Duties relating to repairs and reconstruction of dilapidated buildings dilapidated buildings dilapidated buildings: "76. Subject to the provisions of this Chapter, it shall be the duty of the Board.- (a) to undertake and carry out structural - 18 - 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) ..... (c) ..... (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." 20. Section 82 from this Chapter VIII provides for levy and collection of the Mumbai Building Repairs and Reconstruction Cess for giving effect to the purposes of Chapter VIII. Section 83 provides that certain lands and buildings are exempted from payment of this cess. As stated earlier, they are principally the buildings or lands vested or leased in to the Central Government, State Government, Mumbai Municipal Corporation, MHADA, Mumbai Port Trust, properties leased to the public trust and exclusively occupied for public worship or for - 19 - education purposes, cooperative housing societies, buildings exclusively in occupation of the owners, etc. Section 84 gives the classification of these cessed category buildings into three categories "A", "B" and "C", i.e. buildings erected before 1/9/1940 (Category "A"), buildings erected between 1/9/1940 and 31/12/1950 (Category "B") and buildings erected between 1/1/1951 and the date immediately preceding the date on which the Bombay Building Repairs and Reconstruction Board came into force, i.e. 30/12/1969. 21. Section 88 provides for structural repairs. This section is relevant for our purpose. It