-: 1 :- WP-1184/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1184 OF 2010 Dilip Chintamani Koli & Ors. ..Petitioners. Versus Brihanmumbai Municipal Corporation & Others. ..Respondents. Mr. M. P. Vashi i/b M/s. M. P. Vashi & Associates for the petitioners. Mr. V. Tulzapurkar, Sr. Advocate with Birendra Saraf i/b M/s. Wadia Gandhy and Co., for respondent no.4. Mr. P. M. Samdani for respondent no.5. Ms. Shobha Ajitkumar, for the BMC. Coram : SMT. RANJANA DESAI & R. V. MORE, JJ. Date : September 9, 2010. P. C. (R. V. More, J.) : 1. Heard learned counsel for the respective parties. 2. The petitioners by filing the present writ petition under Article 226 of the Constitution of India are seeking directions for cancellation of the whole scheme sanctioned under Regulation No.33(7) of the D.C.R on the plot bearing C.S. No. 6(part), Sion Division at Sion-Bhandarwad Road No.28, F/North Ward, Sion-Koliwada Bombay–22 [for short “the said property”]. In the alternative, the petitioners have also sought directions to demolish the construction of 7 storyes from 8 to 14 floors in the rehabilitation buildings in the said scheme. Further directions are also srp -: 2 :- WP-1184/10 claimed against respondent no.4 to construct 6 buildings of all 7 storyes for rehabilitation component as per the project sanctioned. 3. There are 18 chawls and other structures constructed by respondent no.1– Corporation on the said property. The said chawls and structures are occupied by 191 tenants of 1st respondent. The aforesaid chawls were constructed prior to 1940. There are about 113 hutment dwellers existing on the said property. Respondent no.5–society has been formed by 191 tenants of respondent no.1 and said 113 hutment dwellers existing on the said property. In the year 1999 re-development proposal was submitted under Regulation 33(7) of the DCR, 1991. Consent for the said re-development scheme was obtained from the occupants of the said property. Annexure- II came to be issued by respondent no.2 wherein list of tenants of respondent no.1 is set out. The said annexure further shows that 70% of the occupants have given consent for redevelopment. On 4th April 2000, Letter of Intent was issued by respondent no.1 thereby granting approval and sanction for the re-development of the said property under Regulation 33(7) of the DCR in the manner and on the terms and conditions stated therein. By the development agreement dated 19-10-2004 respondent no.5 has granted development rights in favour of respondent no.4 in respect of the said property. Tri-partite agreement -: 3 :- WP-1184/10 was executed on 19-11-2004 between respondent no.1, respondent no.5 and respondent no.4 whereunder respondent no.1 granted development rights to respondent no.4 to develop the said property. 4. It is the contention of the petitioner that in view of clause 23 of the Letter of Intent, the buildings to be constructed for municipal tenants, shall be of Ground or Stilt + 7 upper floors with one lift, however, 3rd respondent illegally sanctioned the plan permitting 4th respondent to construct two rehabilitation component buildings upto 14 floors. The petitioners by filing affidavit-in-rejoinder, have relied upon photograph annexed at Exhibit-N to the said affidavit and submitted that the development rights are given to respondent no.4, however, one Sahana Group of Companies is carrying out development work. Mr. Vashi, learned counsel for the petitioners submitted that in the absence of any development agreement with said Sahana Group of Companies, redevelopment work cannot be undertaken by the said Sahana Group of companies. 5. Mr. Tulzapurkar, learned senior counsel appearing on behalf of respondent no.4 opposed the petition. He submitted that the petition itself is not maintainable inasmuch as petitioner no.2 is not residing in the chawls or structures on the said property. He further submitted that Letter of Intent was granted in April 2000 for 5 rehabilitation buildings, -: 4 :- WP-1184/10 all consisting of Ground/Stilt + 7 upper floors. On 30/12/1999 Annexure-II as per Regulation 33(7) of DCR was prepared and issued by the competent authority of BMC. Development agreement was executed between respondent no.1, respondent no.4 and respondent no.5 on 19/10/2004. He submitted that necessity of increasing floors from 7th to 14th floors of two rehabilitation buildings arose in view of the subsequent developments, namely, the restrictions imposed by the Airport Authority. The Airport Authority has granted NOC to the project with restriction of hight of building upto 64.936 meters only. He submitted that in view of these developments, general body meeting of the society was conveyed on 2nd June 2007, wherein it has unanimously approved the revised plans for increase of floors of two rehabilitation buildings from 7th to 14th floors. He further submitted that this resolution is not challenged in the present petition. Pursuant to this resolution. respondent no.6 – Architect sought permission of respondent no.1 to construct two rehabilitation buildings of 14 floors instead of 7 floors. Respondent no.2 accordingly by its letter dated 19th July 2008 granted No-Objection/permission to construct two rehabilitation buildings consisting of 14 floors. Thereafter on 1/9/2009, respondent no.1 has approved the amended building plans submitted by respondent no.6. The commencement certificate was also issued on 24th December 2009. Mr. Tulzapurkar further submitted that in -: 5 :- WP-1184/10 these circumstances, the petitioners cannot take any exception to the increase of floors of two rehabilitation buildings. He lastly submitted that respondent no.4 alone is developing the said property. In reply to the contention raised in re-joinder by the petitioners, Mr. Tulzapurkar submitted that respondent no.4 is part of Sahana Group of Companies and this fact is evident from the said photographs itself. 6. Mr. Samdani, learned senior counsel appearing on behalf of respondent no.5 opposed the petition. He submitted that resolution passed by respondent no.5 on 2nd June 2007 unanimously resolving to approve the amended building plans for construction of two rehabilitation buildings with 14 floors cannot be questioned by the petitioners in the writ petition. He also submitted that the petitioners have no locus to file this petition. He lastly submitted that in the light of these facts and circumstances, the petition deserves to be dismissed and prayed for the same. 7. Ms. Shobha Ajitkumar, learned counsel appearing on behalf of the BMC also opposed the petition. She submitted that respondent no.4’s proposal to increase floors of rehabilitation buildings is approved by respondent no.5 and thereafter it is rightly sanctioned by respondent no. 1. Sanction is in accordance with law. She also prayed for dismissal of writ petition. -: 6 :- WP-1184/10 8. Having heard learned counsel for the respective parties and having gone through record, we do not find any merit in the petition. The re- development scheme on the said property for existing municipal tenants and hutment dwellers was approved on 19/3/2000 and accordingly Letter of Intent was issued on 4/4/2000. It was proposed in the approved lay-out plan of re-development scheme to construct 5 rehabilitation buildings having ground/stilt + 7 upper floors and two buildings of sale component consisting of 25 floors for consuming the available FSI of the said property. No-Objection to the project was granted by the Airport Authority on 9/12/2004, however, with restriction of height of the building upto 64.938 meters only. Respondent no.4 is therefore compelled to reduce floors of the sale component buildings upto one basement, two podiums and 19 storeyes and had no option but to increase the plinth area of sale component buildings to consume the entire built up area available for sale on the said property. A general body of respondent no.5 thereafter passed resolution on 2nd June 2007 unanimously agreeing to the amended building plans for construction of two rehabilitation buildings upto 14 floors. Pursuant to the resolution, respondent no.6-Architect by his letter dated 7th July 2008 sought permission of respondent no.1 to construct two rehabilitation buildings upto 14 floors in place of 7 floors. Respondent no.2 by its letter dated -: 7 :- WP-1184/10 19th July 2008 granted No-Objection/permission to construct two rehabilitation buildings with ground+14 floors. Respondent no.1 thereafter on 1st September 2009 approved the amended building plans submitted by respondent no.6 and commencement certificate was also granted. In pursuance of this amended building plans, construction of two rehabilitation buildings is complete upto 13th floors. Thus, the floors of two rehabilitation buildings were increased from 7 to 14 floors in pursuance of resolution passed by general body of respondent no.5. 9. By filing rejoinder the petitioners have challenged the resolution dated 2nd July 2007 passed by the general body of respondent no.5 unanimously agreeing to increase the floors of two rehabilitation component buildings upto 14 floors. However, in the present writ petition under Article 226, the petitioners cannot take exception to the legality of the said resolution. The remedy of the petitioners is to challenge the same before the Co-operative Court. We find that the petitioners could not point out how they are affected by the increase of floors of rehabilitation buildings. We do not find any merit in the contentions raised by the petitioners that the increase in floors of two rehabilitation buildings is illegal. So far as the petitioners’ contention that development work is being carried out by other than respondent no. 4 is concerned, same is without any substance inasmuch as Sahana is -: 8 :- WP-1184/10 Group of Companies of which respondent no.4 is a part. Photographs at Exhibit-N on which the petitioners rely also mentions respondent no.4’s name at the bottom. 10. The Respondents have also disputed the locus of the petitioners to file the present petition. It is their stand that name of none of the petitioners is reflecting in the Annexure-II issued by the competent authority under Regulation 33(7) of the DCR. We feel it appropriate not to go into that issue since we have already concluded that the petition itself is without any merit. 11. Taking overall view of the matter, we find that the petition is without merit and same is accordingly dismissed. (Smt. Ranjana Desai,J.) (R.V. More, J.)