1 wp1517-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1517 OF 2011 Birendrakumar Jiledar Singh & Ors .. Petitioners versus The Municipal Corporation of Greater Mumbai & Ors .. Respondents Mr.A.S.Desai a/w Mr.R.S.Ghadge for the petitioners. Ms.T.Puranik for respondent Nos.1 and 2. Mr.S.G.Aney, Sr.Advocate a/w Mr.N.N.Bhadrashete for respondent Nos.3 and 4. Mr.Aniruddha Joshi a/w Mr.P.Ghelani i/by Markand Gandhi & Co for respondent No.5. CORAM : S.C.DHARMADHIKARI, J. 30th August 2011. P.C.: . By this writ petition under Article 226 of the Constitution of India, the petitioners are challenging an order dated 5th July 2011 of the Additional Municipal Commissioner (E.S.), Municipal Corporation of Greater Bombay. The petitioners are also seeking a declaration that they are eligible tenants of respondent No.1- Corporation and are entitled to participate in the election of Managing Committee of respondent No.3-Society. A mandatory 2 wp1517-11.doc order and direction directing respondent No.2 to include the name of the petitioners in list of tenants of respondent No.1, is also prayed. 2 The petitioners and the member of the respondent No.3, claim to be municipal tenants. The building, viz., 110, New Municipal Vasahat, D.G.Mahajani Path, Sewri, Mumbai 400 015, is a property which belongs to the respondent No.1. The respondent No.3 is a Co-operative Housing Society of the tenants and occupants of the buildings which are situated in this immovable property. 3 It is a common ground that the Corporation owns this property which admeasures about 7640.54 sq.mts and more particularly described at Annexure A to this petition. There are about 11 chawls constructed on this property. The category of the tenants in these chawls and buildings is then referred to and it has been stated that for several years attempts have been made to re-develop this property by the Corporation itself. This was on account of the fact that there was an apprehension that the buildings are old and 3 wp1517-11.doc dilapidated. The Corporation itself desires to give better housing facilities. Ultimately, after prolonged discussion and negotiation, the tenants came forward and organised themselves into a Co- operative Housing Society. Initially, there were disputes between them and that Society. However, the orders interfering with the registration of the Society were questioned by the Society and the Chief Promoter by filing a writ petition in this Court, which writ petition came to be allowed by this Court on 7th July 2011. In Civil Writ Petition No.5057 of 2009 filed by the respondent Nos.3 and 4 to this writ petition against the State of Maharashtra and others, an order came to be passed on 9th June 2011. On 9th June 2011 this Court recorded the agreement between the parties to that writ petition wherein there was consent given for registration of the Society and to hold elections of the Managing Committee of the said Society. However, there was an issue raised as to who are eligible members who can participate in election process. Since the property belonged to the Municipal Corporation of Greater Bombay, all parties consented to issue of membership and entitlement to participate in the elections, being referred to the Municipal Corporation itself. Therefore, in furtherance of this agreement and 4 wp1517-11.doc the directions based thereon, the Municipal Corporation of Greater Bombay through its Additional Municipal Commissioner (E.S) passed an order on 5th July 2011. By this order, the voters list came to be finalised by issuing the following directions: “Decision As per the direction of the Hon’ble High Court, after going through the hearing and facts as mentioned in the discussion part above, I come to following decisions: 1 As 3 shopkeepers and 1 VLT are vehemently opposed to shifting to plots on Mahajani Marg and as 7 shop keepers nature of interest (business) is quite different from residents therein and as scheme has already been sanctioned, taken off on the ground and as plot of Mahajani Marg does not have enough frontage, we should not break this group of 11 into two and should not make 7 shopkeepers members of Ashwamedh Society. Also, 3 shopkeepers and 1 VLT, against their wishes cannot be sent to the Society having plot on Mahajani Marg, especially as their rights on the plot fronting Rafi Ahamed Kidwal Marg have been recognized and granted in the current scheme. 2 As all the due rights of the residents and other interest holders have been protected in the current development 5 wp1517-11.doc scheme, it must be allowed to continue and nobody should be allowed to misuse law to wrest more rights than due to him or her. In case, for whatever unforeseen reason, current developer is taken off from the scheme, MCGM should appoint developer through tendering process and in case incentive for redevelopment is outweighing cost, city should be selected and residents as well as shopkeepers should be given exactly what is due to them as per law, nothing more, nothing less. 3 As objectioners to the registration itself have said that objections go off if 7 shopekeepers are allowed to become members, I am of the clear opinion that objections to registration itself loose any moral or legal ground. 4 In view of above voter list should be kept as per the list of residential tenants reflected in last revised Annexure-II (Exhibit I) with amendments due to transfer of tenancies on the record of A.O.(Estates) F/South which is at Exhibit II. Submitted to Hon’ble High Court most respectfully. Addl.Municipal Commissioner(E.S.)” 4 In terms of this decision, that writ petition was disposed off on 7th July 2011 by this Court. 6 wp1517-11.doc 5 The present petitioners had intervened at the hearing of that writ petition, but, this Court clarified that since the present petitioners did not agree to the arrangements and their consent was not recorded, that they are free to adopt appropriate proceedings. It is in pursuance of this liberty, that the instant writ petition is filed to challenge the order of the Additional Municipal Commissioner dated 5th July 2011. 6 Mr.A.S.Desai, learned counsel appearing on behalf of the petitioners firstly submits that the present writ petition is the only remedy of the petitioners. True it is, that they have filed a dispute in competent Co-operative Court claiming membership of the 3rd respondent-Society, but, that dispute was filed on the basis that the 3rd respondent-Society had not given the necessary certificates and refused to grant the status of a member to these petitioners. They had, therefore, filed a dispute being Dispute No.145 of 2009 in the Co-operative Court. However, when this Court has passed an order on 9th June 2011 and 7th July 2011, in Writ Petition No.5057 of 2009 and referred the issue of membership to the Additional 7 wp1517-11.doc Commissioner, then, this dispute is no longer the remedy of the petitioners. The Co-operative Court cannot set aside the order of the Additional Municipal Commissioner nor can it override the directions of this Court. Mr.Desai, therefore, submits that the dispute is no longer maintainable and cannot be said to be alternate and equally efficacious remedy for the petitioners. He further submits that there are no disputed questions of fact and, therefore, even otherwise this writ petition is maintainable. 7 Mr.Desai submits that the Additional Municipal Commissioner has discriminated and erroneously left out so also excluded the petitioners from the scheme. The petitioners are entitled to participate in the re-development and enjoy the fruits thereof. The petitioner are eager and keen to become member of respondent No.3-Society. The issue of membership had to be decided by the Additional Municipal Commissioner in terms of the orders and directions of this Court. The Additional Municipal Commissioner, therefore, could not have made any distinction between some set of members and occupants. The Society consists of residential members/occupants, so also shopkeepers. There is no question of 8 wp1517-11.doc some other shopkeepers to be included as members and given ownership rights in the re-development scheme. Whether the petitioners can be left out from the same is the real issue. What would happen thereafter, is that the petitioners may be allotted shop premises pursuant to redevelopment of the property, but, they would continue as tenants of respondent No.1. They would not get rights on par with the members of the respondent No.3-Society. Therefore, when the petitioners are not disputing anything in relation to the area, location, nor are they challenging the building plans, then, there was no reason for excluding them from the membership of the Society and thereby the redevelopment scheme. For all these reasons, it is submitted that this writ petition be allowed by giving suitable directions to the Municipal Corporation to include the petitioners as members of respondent No.3 and give them right to vote and contest at the ensuing elections. 8 On the other hand Mr.Aney, learned senior counsel appearing for respondent Nos.3 and 4 submitted that the alternate and equally efficacious remedy of a dispute in the Co-operative Court has been availed off. The dispute can very well be amended and the issue of 9 wp1517-11.doc membership can be decided and particularly when this Court has not gone into the same. At the hearing of the writ petition filed by respondent Nos.3 and 4, this Court clarified in its order dated 7th July 2011 that as far as the petitioners in this writ petition are concerned, it is open to them to institute appropriate proceedings before the appropriate forum and claim all rights as are permissible in law. All contentions in that behalf were also kept open. In such circumstances, to now urge that this writ petition is maintainable, is not permissible and, therefore, this writ petition be dismissed on this ground alone. 9 Without prejudice, it must be at once held that this writ petition is not a bonafide proceeding by these petitioners. All that is being argued today before this Court by the learned counsel appearing for the petitioners, does not find place in the pleadings. There is no affidavit filed before the Municipal Commissioner or in this writ petition stating that the petitioners have no objection to the redevelopment of the property in terms of the building plans that have been already presented to the Municipal Corporation. They have not stated that they have no objection to the redevelopment 10 wp1517-11.doc being carried out by respondent Nos.3 and 4, through respondent No.5-developer. They have not stated anywhere that no dispute is raised with regard to the area that would be made available for shopkeepers like the petitioner nor have they stated that they have no objection to the location. Now they state that they are not claiming any frontage of particular road. However, there is no such statement made in the pleadings. Therefore, all arguments are contrary to the pleadings and they should not be countenanced. In such circumstances, assuming that the Co-operative Court cannot give any directions, yet, the doors of Civil Court are kept open for the petitioners. For all these reasons and because of the stand taken by the Municipal Corporation, that it does not wish to include the petitioners in the scheme, this writ petition should not be entertained, but, must be dismissed. 10 While adopting the arguments of Mr.Aney, Mr.Joshi appearing on behalf of respondent No.5 submits that there is suppression of material facts and, therefore, the petitioners are disentitled to any equitable and discretionary reliefs. Inviting my attention to para 26 of this writ petition, it is submitted by Mr.Joshi that the petitioners 11 wp1517-11.doc have availed off multiple remedies. They firstly sought to disturb the working of the Society by approaching a Civil Court. They were not successful in getting any reliefs from the Civil Court. Then they have approached the Co-operative Court by filing a dispute. Thereafter, they sought to intervene in the writ petition which was filed by these respondent Nos.3 and 4. At all stages, the petitioners have been unable to obtain any reliefs based on their plea of alleged discrimination and arbitrariness on the part of the B.M.C. Now, to permit them to raise these pleas and by entertaining them, all that would happen is that the redevelopment work would be obstructed and interfered with. The other tenants/occupants and all members of the respondent No.3 will suffer. Equally, when considerable expenses have been incurred by respondent No.5 to develop the property, this Court should not entertain the writ petition. 11 For all these reasons, it is submitted that this writ petition be dismissed. 12 With the assistance of Mr.Desai, Mr.Aney and Mr.Joshi, I have 12 wp1517-11.doc perused the petition carefully together with all annexures thereto. I have also perused the order that is impugned in this writ petition and the order passed in the earlier writ petition. 13 I am proceeding on the basis that the petitioners do not desire to claim any further reliefs by amending their pending dispute before the Co-operative Court. I am also proceeding on the basis that the petitioners do not desire to approach the Civil Court to seek any reliefs or declarations in their favour. Since they are proceeding on the basis that they have no remedy, other than this writ petition, under Article 226 of the Constitution of India to challenge the order of the Additional Municipal Commissioner, that, this writ petition is entertained. 14 The writ petition proceeds on the basis that the property which belongs to the Municipal Corporation is sought to be redeveloped and the redevelopment efforts have been underway since 1999. My attention is invited to Annexure B to this writ petition, which is a communication in relation thereto. Interestingly, my attention is also invited to a communication dated 16th November 1999, a copy of 13 wp1517-11.doc which is at Annexure C to the writ petition, which is addressed by the Ward Officer (Estates) of the 1st respondent to the Secretary, Deep Mandir Co-operative (Prop.) Housing Society of the persons like the petitioners. The writ petition itself proceeds on the basis that no progress could be made for redevelopment of the property by this entity (Deep Mandir). Then, my attention is invited to the proposals that are submitted for redevelopment of the subject property in the year 1999-2000 and the Corporation finalising the list of occupants. The petitioners also claim to be associated with the proposed Deep Mandir Society. Later on, they refer to the documents in relation to respondent Nos.3 and 4 as also respondent No.5 pertaining to redevelopment of the municipal property and the permission to do so. My attention is invited to the communications in that behalf so also a letter which is addressed by the petitioners to the then Municipal Commissioner on 16th July/ 1st August 2007. 15 Mr.Desai would submit that the promoters of the respondent No.3-Society had submitted the scheme for redevelopment of the property through respondent No.3-Society and such a scheme is 14 wp1517-11.doc necessarily under Development Control Regulation 33(9) of the Development Control Regulations for Greater Bombay, 1991 (D.C.Regulations for short), the letter of intent which has been issued on 21st September 2007 would go to show that the proposal was indeed scrutinised in terms of these regulations by the Corporation. There are several terms and my attention is invited to them and particularly clauses 3, 12, 21, 30 and 33 of same. Mr.Desai submits that the commercial tenants on the property, such as the petitioners, have to be given commercial area as mentioned in Annexure 2. He submits that these terms and conditions are binding on respondent Nos.3 to 5. It may be that they are so binding. It may be that they have to carry out the development in terms of this letter of intent and the approvals granted by Bombay Municipal Corporation. They will also have to abide by the Development Control Regulations and notifications issued from time to time. However, on the own showing of the petitioners, the issue is not that their rehabilitation is in any way in jeopardy. They are bound to be rehabilitated and that is what the Corporation has made it clear. However, they want to be associated with the redevelopment scheme which has been proposed by the 15 wp1517-11.doc respondent No.3 and implemented by respondent No.5. The question is to what extent this association can be permitted. It is not for this Court to give any opinion or finding as to how a property belonging to the Municipal Corporation should redeveloped and what benefits should accrue to the Municipal Corporation and to the public at large. If it is a public property and Municipal Corporation acts as a trustee of the public and in such capacity, takes a decision to have the property redeveloped through a Co-operative Housing Society of the occupants, then, it is not for this Court to interfere in writ jurisdiction when there are no allegations of malafides or contravention of any law. 16 The parties came to this Court earlier because when the scheme was at a advanced stage, there was interference by the authorities and particularly under the Maharashtra Co-operative Societies Act, 1960. It was pointed out that at the instance of parties like the petitioners, the registration of respondent No.3-Society was interfered with and set aside. Therefore, this Court was constrained to take cognizance of that grievance and while taking such cognizance, it not only heard the affected parties, but, even the 16 wp1517-11.doc present petitioners. The parties agreed that the matter must be resolved by the Corporation itself. That is how the directions on 9th June 2011 and 7th July 2011 came to be issued. This Court ensured that the existence of the respondent No.3-Society is in no way touched, as majority of tenants/occupants desire to be associated with the redevelopment scheme through the respondent No.3 and it being implemented by assistance of respondent No.5. 17 To smoothen the process of redevelopment and to iron out certain differences between the members of the respondent No.3- Society, that the directions were issued to hold elections of the Managing Committee so that there is complete transperancy and no allegations are made against the Chief Promoter of collision or any under hand dealings. Therefore, the Assistant Registrar of the concerned Ward was directed to take steps to hold elections of the Managing Committee. However, there was an impediment inasmuch as who would be entitled to vote and who are the members of respondent No.3. In that regard, all parties to the earlier writ petition agreed that even this issue must be resolved by Municipal Corporation itself. It is for the Municipal Corporation to 17 wp1517-11.doc take such decision as it is dealing with its own tenants. If the tenants have formed a Co-operative Housing Society and are going to manage and administer the municipal property, then, the Municipal Corporation should exercise the power of regulation and control over such development. Moreover, the parties accepted and rather did not dispute that power in the Corporation and that is how it was directed to finalise the list of voters by appropriate order and direction in that behalf. The names of the voters on the basis of their membership of respondent No.3-Society was an issue which was completely left to the Municipal Corporation. At that stage, even the present petitioners agreed to appear before the Municipal Commissioner or the Additional Municipal Commissioner concerned, who was empowered to decide the said issue. They so appeared together with others. When they so appeared and raised the pleas and produced the necessary and relevant documents, the Additional Municipal Commissioner came to a conclusion that it is a Co-operative Housing Society of municipal tenants, residential as well as commercial. However, as far as the present petitioner- shopkeepers are concerned, they are excluded and that exclusion is for reasons that have been assigned by the Additional 18 wp1517-11.doc Commissioner. It is all very well now to say that before the Additional Municipal Commissioner and even before this Court the petitioners have taken a very reasonable stand and they did not raise any dispute about the redevelopment and their entitlement. They never sought any particular location nor any specific area, but, were always agreeing to the redevelopment in terms of the building plans already sanctioned and approved so also in terms of the conditions of the letters of intent issued in favour of the respondent Nos.3 to 5. However, before the Additional Municipal Commissioner, their conduct appeared to be otherwise. Were it not to be so, the Additional Municipal Commissioner would not have been constrained to observe that the whole issue is of greed and not of need. The Additional Municipal Commissioner was aware that the property is a public property and the residents so also the residents of Mumbai have a stake in the same. In such circumstances, the Municipal Corporation rightly did not allow either the Society to assume full control of the redevelopment or people like the petitioners to obstruct it by raising unnecessary and frivolous objections. The observations in paras 5 and 6 of the order of the Additional Municipal Commissioner would go to show that the 19 wp1517-11.doc petitioners at the relevant time did not adopt the stand which is now adopted and placed forward before this Court. It is in such circumstances, that when the earlier writ petition was heard and even before the Additional Municipal Commissioner there was no choice left, but to direct that out of eleven shopkeepers as far as three and one vacant land tenant is concerned, they are vehemently opposed to shifting to plots on Mahajani Marg and seven shopkeepers are propounding a different interest. Therefore, at the instance of these shopkeepers and with a view to not breaking the group, that the Additional Municipal Commissioner held that a group cannot be broken into two and these seven shopkeepers who are present petitioners cannot be made members of the respondent No.3-Society. The three shopkeepers and one vacant land tenant against their wishes cannot be made members of the Co-operative Housing Society and forced to have a plot on Mahajani Marg. 18 The Additional Municipal Commissioner has undertaken this exercise with the assistance of all parties and by scrutinising the relevant documents and records. He has arrived at a decision 20 wp1517-11.doc which is reproduced above. To my mind, there is nothing illegal, leave alone arbitrary of discriminatory in the decision rendered by the Additional Municipal Commissioner. He has in the best interest of the occupants and bearing in mind public interest so also upholding the doctrine of Public Trust sanctioned a scheme for redevelopment of subject immovable property. That he has taken into consideration time factor, the delay and impending cost burden arising therefrom so as to arrive at a conclusion that the objections to the registration of the society should not be entertained and the voters list be prepared, is apparent from his decision. 19 I do not find anything in the documents or annexures to the writ petition to which my attention is invited by Mr.Desai to hold that the Additional Municipal Commissioner was not empowered to render a decision on the issue of membership of the petitioners. That he was so empowered is clear from the said documents and the earlier orders. That he has rendered a decision which cannot be said to be arbitrary, perverse or vitiated by any error of law apparent on the face of record, is clear from the aforementioned findings and conclusions. To my mind, the petitioners cannot now argue to the 21 wp1517-11.doc contrary and that too without in any manner stating in clearest terms that they are agreeable to all the decisions that are taken by the Corporation and by the Society. The faint attempt by Mr.Desai to rely upon paras 31 to 33 of the writ petition to contend that the petitioners were all throughout ready and willing to join the redevelopment scheme and they also accepted the conditions of membership is an afterthought. That has not been substantiated by production of any documents. There is no affidavit or any declaration on oath which was filed