Case: Jayant Achyut Sathe Vs. Joseph Bain D'Souza &amp; Others

by the Corporation in 1980-81 showed that 30,237 buildings would have crossed their life span by 1996. The Kerkar Committee report also recorded that the vast majority of the buildings would have to be reconstructed. The report on the Development Plan for Greater Bombay showed that in 1981, 5,82,200 tenements were required to house the natural growth of population.31. In 1991 nearly 73% of the households occupied one room tenements - vertical slums; 18% occupied two rooms i.e. most of the persons - more than 90% lived in small areas. Those occupying large areas constitute 2.7% only. Between 1961 and 1991, the number of households increased to 20,88,000. Most of the tenements are of 100 to 120 square feet area only.32. It is thus clear that the policy was to enhance the quality of the lives of those living in such poor conditions by increasing the living space to nearly double. This is to be contrasted with the need to give a better lifestyle to those who can afford it namely those who can afford the time to live a leisurely life. If such people have to undergo some hardships, the policy cannot be faulted especially when they constitute a minority.33. In interpreting a statute, the meaning of particular words is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and object that is intended to be attained.34. The writ Petitioners did not challenge the validity of Regulation 33(9) pertaining to reconstruction by MHADA or Regulation 33(7) in so far as it applies to the reconstruction by the Government or the Municipal Corporation even though the FSI is the same. The proviso to Regulation 33(7) allows Government, MHADA/Corporation to get even more than the FSI specified in Appendix III.35. Most of the buildings constructed prior to 1940 (17,490 buildings) were constructed prior to 1905. Most of the buildings have outlived the period of their survival by 1979. 80% were occupying one-room tenements. [See: Vivian Joseph Ferreira and Anr. v. The Municipal Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).36. In Mahadeolal Kanodia v. The Administrator General of West Bengal (1960 (3) SCR 578 ), it was held that rules of grammar require that an adjectival phrase qualifies the proximate substance. [pages 584-585]. Applying that rule, the term "which attracts the provisions of MHADA Act, 1976" could only qualify the proximate substance "cessed building of A category in Island city" and nothing more.37. It would be seen that with respect to reconstruction of buildings both Chapters VIII and VIIIA require the building to be acquired by the Board for the reconstruction in terms of Sections 92 and 103B (3). This is not the case with Regulation 33 (7).38. Appendix III casts several duties on the Board for the working of Regulation 33 (7) as inter alia:(a) Clause 3 requires certification of the occupiers and irrevocable consent to be certified by the Board;(b) Clause 4 requires that the tenements have to be allotted to the occupiers as per the list certified by the Board;(c) Clause 11 requires the FSI as in Regulation 33 (7) should be allowed only after the Board is satisfied that the redevelopment proposal satisfies all the conditions to be eligible for the benefits under the Regulations.39. The challenge to the restriction of five feet open space (1.5 metres) is hopelessly delayed and barred by time as inter alia:(i) the requirement of limiting the open space to five feet has been in existence since 1984 and was also a part of Development Control Regulation of 1991.40. When the Board reconstructs a building it covers almost the entire land save for five feet open space. The Sukthankar Committee also recommended that the open space should be 5 feet. The challenge to the restriction of five feet open space has been made on the basis that the open spaces are already too low and that the DC Regulations made it even less. This is a contention which was rejected by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors. (2006) 3 SCC 434 ) at paras 297 & 298.41. The State and MHADA filed affidavits in CA 2970 of 2006 supporting the appeals. In the affidavit dated 12th March filed by the State, it was set out that:(i) The Tour Planning Act does not define category A cessed buildings and the reference to the provisions of Development Act were only to explain what the term "category A cessed buildings" meant.(ii) By and large the old buildings constructed prior to 1940 were built when there was no concept of FSI and the open spaces were at times only 2 to 3 feet.(iii) The width of most of the plots was about 30 feet and requiring a 12 feet open space to be left would mean that there would be no scope to redevelop the building.(iv) Where a building was in the set back area as per the development plan, the land covered by the set back area had to be given to the authorities and the road was widened.42. In the affidavit dated 17th March 2007 filed by MHADA, it was set out that:(i) Reference to Development Act is with reference to the definition of cessed buildings which is not found under the Town Planning Act or the DC Regulations and is found only in the Development Act.(ii) A perusal of Regulation 33 (7) shows that the emphasis is on pre 1940 buildings and nothing more.(iii) Confining Regulation 33 (7) to only the private buildings and not the Government buildings would make the Regulation arbitrary.(iv) Under Regulation 33 (10) the open space is 5 feet and to insist on 12 feet as per the High Court judgment it would make the same unreasonable and prevent even buildings which are on the verge of collapse from being redeveloped.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]29. The provisions relating to buildings which have been declared unsafe are specifically covered by Regulation 33(6) and reconstruction by MHADA is covered by Regulation 33(9). When the situation has been differently expressed in different sections, the legislature must be taken to have intended to express a different intention.30. A survey conducted by the Corporation in 1980-81 showed that 30,237 buildings would have crossed their life span by 1996. The Kerkar Committee report also recorded that the vast majority of the buildings would have to be reconstructed. The report on the Development Plan for Greater Bombay showed that in 1981, 5,82,200 tenements were required to house the natural growth of population.31. In 1991 nearly 73% of the households occupied one room tenements - vertical slums; 18% occupied two rooms i.e. most of the persons - more than 90% lived in small areas. Those occupying large areas constitute 2.7% only. Between 1961 and 1991, the number of households increased to 20,88,000. Most of the tenements are of 100 to 120 square feet area only.32. It is thus clear that the policy was to enhance the quality of the lives of those living in such poor conditions by increasing the living space to nearly double. This is to be contrasted with the need to give a better lifestyle to those who can afford it namely those who can afford the time to live a leisurely life. If such people have to undergo some hardships, the policy cannot be faulted especially when they constitute a minority.33. In interpreting a statute, the meaning of particular words is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and object that is intended to be attained.34. The writ Petitioners did not challenge the validity of Regulation 33(9) pertaining to reconstruction by MHADA or Regulation 33(7) in so far as it applies to the reconstruction by the Government or the Municipal Corporation even though the FSI is the same. The proviso to Regulation 33(7) allows Government, MHADA/Corporation to get even more than the FSI specified in Appendix III.35. Most of the buildings constructed prior to 1940 (17,490 buildings) were constructed prior to 1905. Most of the buildings have outlived the period of their survival by 1979. 80% were occupying one-room tenements. [See: Vivian Joseph Ferreira and Anr. v. The Municipal Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).36. In Mahadeolal Kanodia v. The Administrator General of West Bengal (1960 (3) SCR 578 ), it was held that rules of grammar require that an adjectival phrase qualifies the proximate substance. [pages 584-585]. Applying that rule, the term "which attracts the provisions of MHADA Act, 1976" could only qualify the proximate substance "cessed building of A category in Island city" and nothing more.37. It would be seen that with respect to reconstruction of buildings both Chapters VIII and VIIIA require the building to be acquired by the Board for the reconstruction in terms of Sections 92 and 103B (3). This is not the case with Regulation 33 (7).38. Appendix III casts several duties on the Board for the working of Regulation 33 (7) as inter alia:(a) Clause 3 requires certification of the occupiers and irrevocable consent to be certified by the Board;(b) Clause 4 requires that the tenements have to be allotted to the occupiers as per the list certified by the Board;(c) Clause 11 requires the FSI as in Regulation 33 (7) should be allowed only after the Board is satisfied that the redevelopment proposal satisfies all the conditions to be eligible for the benefits under the Regulations.39. The challenge to the restriction of five feet open space (1.5 metres) is hopelessly delayed and barred by time as inter alia:(i) the requirement of limiting the open space to five feet has been in existence since 1984 and was also a part of Development Control Regulation of 1991.40. When the Board reconstructs a building it covers almost the entire land save for five feet open space. The Sukthankar Committee also recommended that the open space should be 5 feet. The challenge to the restriction of five feet open space has been made on the basis that the open spaces are already too low and that the DC Regulations made it even less. This is a contention which was rejected by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors. (2006) 3 SCC 434 ) at paras 297 & 298.41. The State and MHADA filed affidavits in CA 2970 of 2006 supporting the appeals. In the affidavit dated 12th March filed by the State, it was set out that:(i) The Tour Planning Act does not define category A cessed buildings and the reference to the provisions of Development Act were only to explain what the term "category A cessed buildings" meant.(ii) By and large the old buildings constructed prior to 1940 were built when there was no concept of FSI and the open spaces were at times only 2 to 3 feet.(iii) The width of most of the plots was about 30 feet and requiring a 12 feet open space to be left would mean that there would be no scope to redevelop the building.(iv) Where a building was in the set back area as per the development plan, the land covered by the set back area had to be given to the authorities and the road was widened.42. In the affidavit dated 17th March 2007 filed by MHADA, it was set out that:(i) Reference to Development Act is with reference to the definition of cessed buildings which is not found under the Town Planning Act or the DC Regulations and is found only in the Development Act.(ii) A perusal of Regulation 33 (7) shows that the emphasis is on pre 1940 buildings and nothing more.(iii) Confining Regulation 33 (7) to only the private buildings and not the Government buildings would make the Regulation arbitrary.(iv) Under Regulation 33 (10) the open space is 5 feet and to insist on 12 feet as per the High Court judgment it would make the same unreasonable and prevent even buildings which are on the verge of collapse from being redeveloped.43. Above being the position, the inevitable conclusion is that the High Court was not justified in reading additional requirements into Regulation 33(7) after holding the same to be valid. The appeals are allowed but in the circumstances with no order as to costs.44. In view of the order passed in Civil Appeal No.2970/2006 and other connected appeals, no order is necessary to be passed in contempt petition.