1 WP: 1446/2011 HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1446 OF 2011 Shashi Laxman Kadam .. Petitioner -Versus- Red Stone Realtors & Ors. .. Respondents Mr. S.C. Naidu a/w Mr. T.R. Yadav for petitioner. Mr. V.A. Thorat, Senior Advocate, a/w Mr. Kishore Jain, Mr. T. Garodia, Ms. N. Parmar for respondent no.1. Ms. T. Puranik for respondent no.2- BMC Mr. G.W. Mattos, AGP for respondent nos. 3 and 4. CORAM :- S.C.DHARMADHIKARI, J. Date : 10th October, 2011. P.C.:- 1. By this Writ Petition under Article 226, Constitution of India, the petitioner challenges the order passed by the Minister for Revenue, Government of Maharashtra dated 6th September 2011, letter of Collector dated 20th December 2007 and the No Objection Certificate dated 23rd June 2010 issued by Executive Engineer, MHADA, Annexure “P” and the order dated 19th April 2011 passed by Executive Engineer under Section 95-A(2) of 2 WP: 1446/2011 the Maharashtra Housing And Area Development Act, 1976. 2. From the record, it appears that various contentions have been raised and they have also been raised before this Court on the earlier occasion. On 29th April 2011, this Court refused to stay the Summary Eviction or continue the earlier Ad-Interim order. In such circumstances, though the ad-interim order granted was vacated and the petition was placed for admission, when the same appeared before another learned single Judge on 9th August 2011, the learned Single Judge recorded the statement that in pursuance of the order under Section 95-A(2) of the Act, the petitioner has been summarily evicted from the previous accommodation and shifted to permanent alternate accommodation, where he is residing and the earlier building has been demolished. Both these statements have been recorded and accepted. 3. It is in these circumstances and although by my order dated 12th September 2011, I had directed that a affidavit be filed by the MHADA and such an affidavit is filed, still it will not be possible to go into the rival contentions. Mr. Naidu, learned Counsel appearing for petitioner would argue that the affidavit 3 WP: 1446/2011 that is filed in pursuance of the order dated 12th September 2011 does not answer any of the queries or questions posed by this Court. The principal argument canvassed that under Regulation No.33(7) of the D.C. Regulations, 1991 it is not permissible for the owner of the building to avail of the facility of additional FSI. The term that is appearing in the modified version of these Regulations is that reconstruction or redevelopment of cessed building in the island city by co- operative housing societies of landlords and/or occupier of cessed building of “A” category, that the FSI would be available. In the instant case, the NOC holder is Red Stone Realtors- a partnership firm. It is a developer and even if it claims to be a owner of the building in question, yet, it does not fall within any of the requirements stipulated by the Regulation 33(7). Appendix III to the DC Regulations and the heading thereof cannot control the wording of substantive Regulation 33(7). For all these reasons, the NOC itself is invalid and illegal. Once the NOC itself is illegal, being de hors Regulation 33(7), then, all further steps culminating in the orders of eviction are bad in law. Once the scheme itself is based on an illegal NOC, then, 4 WP: 1446/2011 this Court should entertain the challenge. It should particularly entertain the challenge as the petitioner also impugns the order dated 6th September, 2007, passed by the Minister of Revenue, Government of Maharashtra. That imposes a liability to pay unearned income. The insistence by the Minister to execute an indemnity bond in favour of the State Government to pay such unearned income itself contravenes the law, particularly, when the matter is decided without hearing the affected parties. Now, re-development and re-construction of old and dilapidated cessed building, is the avowed object in enacting the provisions like Section 95A of MHADA and Chapter VIII thereof, itself. That would be defeated because of the stand taken by the Collector and affirmed by the Revenue Minister. The demand for payment of Rs.18,56,12,970/- is contrary to Government Resolution. 4. To my mind, it is not necessary to deal with any of these contentions, because, they are more or less academic. Today, the position is that the old building is demolished. The premises/tenement in which the petitioner was residing earlier is no longer in existence. The petitioner is evicted therefrom. 5 WP: 1446/2011 The permanent alternate accommodation meant for occupants of the old building like petitioners is complete and ready. The petitioner has shifted therein. Once the petitioner has accepted all the benefits under the scheme and has taken advantage thereof, to my mind at his instance, no challenge can be entertained at this belated stage to the scheme or the NOC itself. That would mean permitting the petitioner to wriggle out of all his obligations which were voluntarily undertaken by him. The writ jurisdiction is not meant to assist parties like the petitioners, who desire to resile from contractual obligations. The petitioner has taken permanent alternate accommodation from the first respondent developer. That was pursuant to an agreement executed by him with the said developer. As is clear from the affidavit of MHADA, he has accepted that permanent alternate accommodation, without any objection or grievance. He has voluntarily shifted therein. In these circumstances, the petitioner cannot be heard to complain that whatever has been done till date to his advantage is wholly bad in law. The challenge raised to the NOC and the order of the Collector is belated. The petitioner 6 WP: 1446/2011 has not approached the Court with clean hands. He has also not raised the challenge to the impugned orders by raising proper grounds and setting out complete details. 5. In the light of the above, without examining the rival contentions, this petition is disposed of. No costs. (S.C. Dharmadhikari, J)