1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 612 OF 2008 1. Sanjali Sanjay Kadu ] residing at Room No. 34, B.I.T. Chawl No. 7, ] Madhavrao Gangan Marg, Agripada, ] Mumbai 400 011 ] 2. Yaduvir Kalyan Naik ] residing at Room No. 68, B.I.T. Chawl No. 7 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 3. Mohan Sadashiv Madha ] residing at Room No. 25, B.I.T. Chawl No. 7 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 4. Prabhavati Rajaram Desai ] residing at Room No. 28, B.I.T. Chawl No. 7 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 5. Ratnakar Sitaram Khambal ] residing at Room No. 46, B.I.T. Chawl No. 7 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 6. Kishor Jagannath Chudnaik ] residing at Room No. 62, B.I.T. Chawl No. 7 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 7. Sunil Keshav Uplekarl ] residing at Room No. 4, B.I.T. Chawl No. 5 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 8. Nisha Nitin Mohite ] residing at Room No. 6, B.I.T. Chawl No. 5 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 9. Kishori Kishor Chudnaik ] residing at Room No. 10, B.I.T. Chawl No. 5 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 2 10. Jagannath D. Trimbakkar ] residing at Room No. 37, B.I.T. Chawl No. 5 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 11. Ajay G. Vengurlekar ] residing at Room No. 38, B.I.T. Chawl No. 5 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 12. Lavkumar Bhawan Bhagat ] residing at Room No. 53, B.I.T. Chawl No. 5 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ] 13. Malini Jagannath Chudnaik ] residing at Room No. 74, B.I.T. Chawl No. 5 ] Madhavrao Gangan Marg, Agripada, Mumbai 400 011 ]..Petitioners versus 1. State of Maharashtra ] through the Secretary, Urban Development ] Department, Mantralaya, Mumbai 400 033 ] 2. Municipal Corporation of Greater Mumbai ] Mahanagar Palika Marg, Mumbai 400 001 ] 3. Shree Sai Sahakari Co-op. Housing Society ] (Proposed) 5-29, B.I.T. Chawl, Madhavrao Gangan ] Marg, Agripada, Mumbai 400 0111 ]..Respondents Mr. Susheel Mahadeshwar i/b. Ms. Rajan Todankar for the Petitioners. Mr. Akshay Patil with Mr. Shyam Mehta i/b. Mr. Satendrakumar for the Respondent No. 3. Ms. S. M. Modle for the Respondents – MCGM. Mr. P. M. Palshikar, AGP , for the Respondents – State. CORAM: S.B. MHASE & A.A. KUMBHAKONI, JJ. DATE : 20TH JUNE, 2008. ORAL ORDER : (Per: A. A. Kumbhakoni, J.) 3 1. Rule. Rule made returnable forthwith. 2. In view of the fact that the question involved in the present petition needs to be answered urgently, as the same pertains to redevelopment of old buildings belonging to the Respondents, Municipal Corporation of Greater Mumbai (hereinafter referred to as “the said Corporation”), which is sought to be undertaken by applying the provisions of Regulation 33(7) of the Development Control Regulation (hereinafter referred to as the “DCR” for the sake of brevity) applicable to the area of the said Corporation, by consent of parties, we have heard all the parties at length for final disposal at the admission stage itself. 3. In Island City of Bombay 133 constructions were put up very many years ago by Bombay Improvement Trust to provide housing to the thousands of workers and their families migrating to the City of Bombay at that time, as a consequence of rapid industrialisation. These structures are known as “BIT Chawls”. These BIT Chawls are owned by the said Corporation and are occupied by various persons (of course, along with their families) who are tenants of the said Corporation. The present petition pertains to Chawl Nos. 5 and 7 out of these BIT Chawls, which are located at Agripada, Bombay ( hereinafter referred to as the 'said Chawls' for the sake of brevity). 4. Admittedly the construction of buildings of said chawls is about 120 4 years old and houses 144 tenants. Only 13 out of these 144 tenants have filed this petition. The petition appears to have been signed only by 11, the same having been not signed by the 4th and 13th Petitioner, which, of course, will not make any difference for deciding the issues raised by the petitioners. 5. In view of acute shortage of residential accommodation in the Island City of Bombay, to encourage redevelopment of old structures, to add to the existing housing stock and with such similar objects, DCR No. 33(7) along with Appendix III ( hereinafter referred to as the said DCR for the sake of brevity) have been brought into force. The relevant portion of the said DCR 33(7) reads thus:- “33(7). Reconstruction or redevelopment of cessed buildings in the Island City by Co- operative Housing Societies or of old buildings belonging to the Corporation or of old buildings belonging to the Police Department. For Reconstruction / redevelopment to be undertaken by Co-operative Housing Societies of existing tenants or by Co-op. Housing Societies of landlords and/or occupiers of a cessed buildings of “A' category in Island City, which attracts the provisions of MHAD Act, 1976 and for reconstruction / redevelopment of the buildings of Corporation and Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, constructed prior to 1940, the Floor Space Index shall be 2.5 on the gross plot area or the FSI required for rehabilitation of existing tenants, plus incentive FSI as specified in Appendix-III whichever is 5 more. [Note: The development of land for Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra shall be permitted by the Commissioner after due approval of the committee mentioned in Note-3 below regulation 33(3)(A)}. Provided, however, that with previous approval of the Government, MHADA / Corporation shall be eligible to get additional incentive FSI over otherwise permissible FSI as specified in Annexure III of these Regulations. Provided further that in cases of composite redevelopment scheme for plot having “A” category as also “B' category cessed building, the above FSI shall be available. Provided further that in cases of reconstruction / redevelopment of buildings which have been declared as unsafe by the BHAD Board prior to monsoon of 1997, the above FSI will be available irrespective of category of cessed building. Provided further that reconstruction / redevelopment undertaken by proposed Co- operative Housing Societies of Landlords and/or Occupiers of cessed building of “B' category, and where composite development is undertaken by different owners of 5 or more plots, the FSI required for Rehabilitation of existing tenants plus incentive FSI as specified in Appendix III will be available.” 6. The Division Bench of this Court had an occasion to examine the validity of the said DCR. This Judgment delivered by the Division Bench in the case of Joseph Bain D'souza & Ors. vs. State of Maharashtra & Ors. And 6 Jayant Achyut Sathe – Interveners is reported in 2007(1) Bom. C.R. 303. However we will hasten to add that the Division Bench had an occasion to examine the said DCR in regard to “the privately owned buildings” only situate in the Island City of Bombay. This aspect of the matter is also admitted by the petitioners in as much as in paragraph 7 of the Writ Petition, the petitioners state thus : “ The petitioners state that in the aforesaid case of Joseph Bain D'souza and others this Hon'ble Court has confined its judgment only to privately owned buildings and has not dealt with the buildings of the Municipal Corporation as the petitioners therein had confined their case to privately owned cessed building of 'A' Category.” 7. It is the submission of the petitioners that as held by the Division Bench of this court in the case of Joseph Bain D'souza (supra) in the case of privately owned buildings, in the case of buildings owned by the Respondent said Corporation also, the said DCR can be made applicable for reconstruction/redevelopment of only and only such buildings owned by the Respondent – said Corporation which are dilapidated and structurally unsafe/unsound. The petitioners have filed this petition contending that the said DCR applies only to dilapidated buildings of the Corporation constructed prior to 1940 and that the said Chawls, are not dilapidated buildings. The contention of the petitioners is that the structure of the said chawls is not dilapidated as such and therefore, said DCR cannot be invoked for redevelopment of these two 7 buildings in issue. The petitioners further contend that the said chawls have been recently repaired and hence are not dilapidated and/or structurally unsafe/unsound as such and therefore Regulation 33(7) cannot be invoked for their redevelopment. 8. First the facts, enough to decide the aforesaid contentions of the petitioners, before we deal with the same. The tenants occupying the said chawls formed “ Shree Sai Sahakari Co- operative Housing Society”, the 3rd Respondent herein. It is an admitted fact that more than 70% of the tenants/occupants of the said chawls not only decided that redevelopment of buildings of the said chawls needed to be carried out but also that such redevelopment be carried out by one M/s. Vignahartha Builders and Projects Pvt. Ltd. Accordingly the said Developer was appointed by the 3rd Respondent for conducting redevelopment of the said chawls. The Respondent Corporation on 23.12.2004 granted No Objection Certificate for such redevelopment to be carried out at the instance of 3rd Respondent. The Improvements Committee of the said Corporation also recommended and approved such redevelopment scheme by passing a Resolution No. 5 dated 25.4.2007. Even the said Corporation granted approval 8 to the Development Scheme by its Resolution No. 201 dated 8.5.2007. A Letter of Intent was accordingly issued by the Respondent said Corporation on 20.5.2007 followed by issuance of Intimation of Disapproval (IOD) under Section 346 of the Mumbai Municipal Corporation Act (hereinafter referred to as “the said Act”) dated 29.8.2007. It has come on record that only 33 out of total 144 tenants/occupants are not co-operating with this redevelopment project of the 3rd Respondent. In other words, save and except 33 tenants/occupants out of 144, everybody has co- operated with this redevelopment activity even by shifting out of the buildings of the said chawls. The families of thus 111 tenants/occupants today are admittedly staying either in transit accommodations provided by the said developer or are staying at an alternative accommodation secured by them after vacating the said chawls, by accepting Rs. Five thousand per month towards rent in lieu of transitory accommodation of the Developer. The Petitioners are from and out of this group of 33 tenants/occupants who are not co-operating for the aforesaid redevelopment in issue. 9. The affidavit in reply filed on behalf of the said Corporation discloses following facts that are not disputed by the Petitioners. As 33 occupants/tenants, some of whom are the present petitioners, were not shifting, notices were issued on 6.7.2007 calling upon them to cooperate 9 and shift to alternative accommodation which was offered by the developer. These notices evoked no response and therefore the said Corporation was constrained to issue Quit Notices under Section 105-B of the said Act on 2.8.2007. Thereafter individual hearing was also given to all of them as contemplated by sub section (2) of Section 105-B of the said Act. At the time of this hearing, the entire Redevelopment scheme was explained to each of these tenants/occupants who was not co-operating and it was tried to be impressed upon them that the re- development work was in their interest. Accordingly Minutes were recorded dated 8.11.2007 and communicated to each of the tenants. The Assistant Commissioner, 'E' Ward took action in accordance with the law and after hearing the objectors aforesaid, explained to them that redevelopment was intended to secure better accommodation to them and to protect their lives and properties which were otherwise in danger in case if the structures of said chawls collapse. However, wiser counsel did not prevail upon these objectors and they adamantly continued with their approach of non co-operation, which has resulted ultimately into issuance of Notices to them terminating their tenancies and asking them to vacate by treating them as unauthorized occupants. 10. The affidavit filed by the Developer points out following additional facts that are also not in dispute. On an earlier occasion, this group which is objecting to the redevelopment had filed Writ Petition no. 183 of 2006 in this court. A list of 10 names of persons on whose behalf that petition was filed (that was enclosed as annexture to that petition) contains the names of all the present petitioners. A Division Bench of this Court was pleased to dismiss that petition by its Order dated 20.3.2006 by specifically recording the statement made on behalf of the Developer that the petitioners therein, including the present petitioners, will be rehabilitated in terms of NOC Granted by the said Corporation and further that they will be also provided with transit accommodations in the meanwhile during the period during which the redevelopment work goes on. 11. However, the Division Bench granted liberty (indirectly) to the petitioners therein to take independent action in respect of their grievances regarding the N.O.C. granted by the said Corporation for the redevelopment as the same constituted an independent cause of action. It appears that therefore the present petitioners have continued the litigation by filing this petition. In this petition, the prayer clause reads thus : “(a) this Hon'ble Court may be pleased to declare that in so far as buildings of the Municipal Corporation are concerned, Regulation 33(7) is applicable only to dilapidated and structurally unsafe / unsound buildings; (b) this Hon'ble Court may be pleased to quash and set aside the NOC dated 23.12.2004 (Exhibit “D”), Resolution No. 5 dated 25.04.2007 of the Improvements Committee (Exhibit “E”), Resolution No. 201 dated 08.05.2007 of the Municipal Corporation (Exhibit “F”), Letter of Intent dated 28.05.2007 (Exhibit “G” and Intimation of Disapproval (IOD) dated 29.08.2007 (Exhibit “H”); 11 (c) pending the hearing and final disposal of this petition, this Hon'ble Court may be pleased to restrain the respondents from taking any further steps for redevelopment / reconstruction of B.I.T. Chawl Nos. 5 and 7; (d) pending the hearing and final disposal of this petition, this Hon'ble Court may be pleased to restrain the Respondents from taking any coercive steps or evicting the tenants / occupiers from their tenements in B.I.T. Chawl Nos. 5 and 7; (e) for ad interim and interim reliefs in terms of prayer clauses (c) and (d) above; (f) for costs of the petition; (g) for such further and other reliefs as the nature and circumstances of the case may require;” The grounds on which these reliefs are sought have been set out in this order at the threshold itself and the same need not be repeated at this juncture. However it is pertinent to note that the validity of the said DCR, in as much as its second part ( which applies to the buildings not owned privately) is concerned, is not questioned by this petition. That is the reason as to why the entire prayer clause of this petition is reproduced herein above by us. 12. The petition is opposed by all the respondents basically contending that the development is being carried out in accordance with law and that almost more than 90% of the occupants/tenants of the buildings in issue have not only 12 accepted the redevelopment scheme but have also acted upon it by physically vacating their premises. At the cost of repetition it may be restated that these occupants with their families have either shifted to transitory accommodation provided by the developers or have made their alternative arrangements by accepting an amount of Rs.5,000/- per month towards rent in lieu of transitory accommodation. 13. It needs to be emphasized that the Developer and consequently the 3rd Respondent Society have undertaken to provide identical benefits to each of the petitioners as have been provided to the other occupants/tenants of the said chawls as a part of redevelopment scheme approved and sanctioned by all concerned Authorities including the said Corporation. 14. A bare perusal of the said DCR clearly demonstrates that it deals with two separate categories of buildings situate in the Island City of Mumbai. The first category of buildings are privately owned buildings and the second category of buildings are the one which belong to Corporation, Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra. The present case deals with only the second category of buildings and not the first one as the buildings of the said chawls are admittedly not privately owned but are owned by the said Corporation. 13 15. As aforesaid, even according to the case of the Petitioners themselves the Division Bench in the case of Joseph Bain 'D'souza (supra) has dealt with only first category of buildings i.e. the buildings which are privately owned. Even according to the petitioners as reflected from the pleadings of the present petition, particularly, paragraph 7 thereof, this decision of the Division Bench does not apply to the buildings in issue of the said chawls. 16. In fact a perusal of various paragraphs of the aforesaid Division Bench judgment delivered in the case of Joseph Bain D'souza (supra) such as paragraph Nos. 1, 17, 20 in particular demonstrates that in that case the Division Bench of this Court was dealing with only private buildings and not buildings owned by the State Government, Police etc. In other words, these paragraphs clearly show that the Division Bench of this Court in the aforesaid case was dealing with first part of the said DCR and not the second part of the DCR with which we are concerned in the present matter. The present petition in fact seeks to apply the ratio of the aforesaid Division Bench judgment even to the second part of the said DCR, viz. the building owned by the said Corporation, Police etc. 17. The first contention of the petitioners that the said chawls have been repaired recently and that therefore they are not dilapidated and/or structurally unsafe/unsound, does not appeal to us. Even according to the case of the 14 petitioners one of the building, namely, BIT Chawl No. 7 was repaired as far back as in the year 1997-98 at total expenditure of Rs.16,46,255/-. Looking to the extent of building and the year of its construction i.e. more than 120 years old ex-facie demonstrates that the building cannot be said to be structurally very sound. Admittedly, the other building in issue, namely, BIT Chawl No. 5 was surveyed by IIT Bombay, who had recommended that at least some portion of the building was in extremely dangerous condition and was required to be demolished and reconstructed. Be that as it may. 18. It is an admitted fact that both the buildings in issue are more than 120 years old and one of them having been found by IIT Bombay on its survey to be in extremely dangerous condition requiring its demolition (at least in part) and reconstruction, we do not find any substance in the contention of the petitioners that the buildings in issue should not be allowed to be redeveloped. This is particularly because admittedly all the occupants/tenants of the buildings in issue have already formed 3rd Respondent Co-operative Society which had engaged the Developer, who has agreed to redevelop the entire building. It has also come on record that on redevelopment of the property as contemplated by the relevant provisions of the DCR, No Objection Certificates / Approvals / Permissions granted by various Authorities, each and every occupants/tenants of the said chawl will be provided with an accommodation in the new structure/building to be constructed at the same site on its redevelopment. It has also come on record 15 that each one of them will be provided by the Developer with either a transitory accommodation or Rs.5,000/- per month towards rent in lieu of transitory accommodation immediately on vacating the premises in their occupation from the said chawls. This transitory accommodation is to be continued with these tenants/occupants till the time they are put in possession of the newly constructed accommodation. 19. In the light of these and such other terms of the re-development scheme that is approved/sanctioned by all concerned authorities, we are satisfied that the redevelopment scheme is very much in the interest of these occupants/tenants and there is no reason at all as to why only handful of them should venture to oppose such redevelopment and/or are not cooperate with it when the same is even in their own interest. No purpose is going to be served by stopping the re-development resulting into everybody continuing to adversely suffer by languishing in the present buildings which are more than 120 years old. Even otherwise we find that it is in the larger public interest that such redevelopment must be encouraged failing which one day or the other these more than 120 years old structures are bound to collapse causing immense loss and irreparable hardship to all the occupants/tenants, which may also result into sometime unfortunate loss of lives, loss of property for sure. 20. The contention of the petitioners that only dilapidated and/or structurally 16 unsafe/unsound buildings alone belonging to the said Corporation should be held entitled for the benefit of the said DCR 33(7) aforesaid is also without any substance. Per se neither the said DCR nor Appendix III thereof says so. There is no reason as to why such a narrow interpretation of the said DCR be adopted in respect of the buildings that are owned by Corporation, Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, which are constructed prior to 1940. It need not be emphasized here that there is a acute shortage of accommodation, especially residential accommodation even for government employees and the employees of the said Corporation, Department of Police, Police Housing Corporation, Jail and Home Guards Departments of Government of Maharashtra. The only way to encourage reconstruction and redevelopment of such age old buildings is to make the benefit of said DCR available for their redevelopment so that housing stock in this regard increases, which is the acute need of the day. As a matter of policy, having failed to get enough response in this regard on account of other steps taken in that direction the DCRs have been accordingly amended from time to time and a provision has been introduced therein such as the said DCR for encouraging re-development activities in regard to such pre 1940 buildings of the said Corporation, police, Home Guard etc. which is clear from the legislative history of the said DCR set out in the aforesaid judgment of the Division Bench delivered in the case of Joseph Bain D'souza (supra), that need not be restated herein. 17 21. The learned counsel appearing on behalf of the petitioners tried to contend that the State Government in its written submissions made in some other case has almost conceded that even in respect of the buildings belonging to the second category set out in the said DCR i.e. the buildings belonging to the Corporation etc. the same interpretation should be made applicable as has been made applicable to the privately owned building by the aforesaid Judgment of the Division Bench delivered in the case of Joseph Bain D'souza (supra). He placed on record a copy of these submissions for our consideration. 22. In absence of the facts and circumstances of that case, in which such submissions were allegedly made, we are not able to appreciate the contention of the Petitioners and obviously therefore accept the same. The submissions made by the State Government in that case, a part of which was specifically read out by the Advocate of the petitioners, even otherwise does not support such contention of the petitioners. We