Avinash Gaikwad & Ors vs State Of Maharashtra & Ors

2. The appellants challenge the order dated 5.5.2005 by which W.P.No.649/2005 filed by them was dismissed by the Bombay High Court.

3. A property known as Pimpalwadi at CS No.370 Tatya Gharpure Marg, Girgaon Division, Mumbai, originally belonged to Sir Harkishandas Trust. The said property consisting of several Chawls, Godowns and Sheds was acquired by the State of Maharashtra under section 41 of the Maharashtra Housing & Area Development Act, 1976 in the year 1988. 2 Thereafter, the State Government delivered possession of the said property to the Maharashtra Housing & Area Development Authority (`MHADA' for short) on 31.1.1989 for redevelopment under Urban Renewal Scheme. However, due to certain protracted litigation between the owners of the property and Pimpalwadi Bhadekaru Sangh formed by the occupants of the said property, MHADA could not take up the reconstruction. At that stage, the said Pimpalwadi Bhadekaru Sangh, gave a proposal to MHADA to permit development of the property through M/s. Shreepati Towers - a private developer (an AOP of respondents 5 to 12 described also as "R.R. Chaturvedi & Others of M/s. Shreepati Group"). The said property had 312 residential tenements and 23 non-residential tenements. MHADA considered the proposal and granted a no objection certificate dated 27.2.2001 for redevelopment of the said property in favour of the developer, under Regulation No. 33(7) of Development Control Regulations for Greater Mumbai, 1991 (for short `DC Regulations').

4. The said NOC was challenged by some occupants/tenants by filing WP No.1299/2001 in the Bombay High Court. The said petition was allowed by order dated 30.4.2002 and the NOC dated 27.2.2001 granted by MHADA to the developer was set aside with a direction to MHADA to itself develop the property. The said decision was challenged by MHADA in C.A. 3 Nos.2046-47/2003 before this Court. The developers and some tenants also filed appeals. In those appeals, this Court by interim order dated 23.9.2002 called upon the State Government and MHADA to state whether the State Government would direct MHADA to take up and proceed with the construction. In pursuance of it, the State Government and MHADA held deliberations and MHADA prepared a scheme in consonance with the guidelines issued under the Urban Renewal Scheme by the Government read with DC Regulation 33(9). Thereafter, the State Government filed an affidavit dated 15.2.2003 wherein they set out the terms of a scheme as follows :

5. In pursuance of the order of this Court, the State Government issued guidelines on 24.3.2003. The Mumbai Building Repair & Reconstruction Board (`MBRRB' for short, the third respondent herein), issued an NOC dated 23.5.2003 to the Developer for redevelopment of the said property 5 jointly by MHADA and the developer in pursuance of DC Regulation 33(9) read with Regulation 33(7). Thereafter, MHADA entered into an agreement dated 30.6.2003 with the developers (respondents 5 to 12) in regard to the development of the said property. In pursuance of it, the developer, after securing possession, has re-developed the property.

6. During the course of the execution of the development project, five tenants filed Writ Petition Nos.108/2003 and 3096/2003 challenging the subsequent NOC dated 23.5.2003 issued by third respondent in accordance with the order of this Court, approving the Scheme. The Bombay High Court by its judgment dated 16.2.2004 dismissed the said petitions and in the course of the said judgment, observed as under :-

7. Thereafter, the present appellants along with two others (all previous occupants of the property) filed Writ Petition No.649/2005 seeking the following, among others, reliefs : (a) declaration that the re-development of Pimpalwadi property was not being done in accordance with law and the DC Regulations, and for a direction to respondents to carry out the re- development by removing the defects pointed out in the writ petition; (b) a direction to the developers to demolish the rehabilitation tenements constructed so far as they were not conforming to the DC Regulations; (c) for a direction to MHADA and MBRRB to construct the rehabilitation tenements at their own cost as per DC Regulations. However, when the said petition came up for hearing before the High Court, only two contentions were urged, presumably because the other contentions were covered by the decision of this Court and subsequent High Court order dated 16.2.2004. The first contention was that the area of each tenement to be constructed and delivered to the previous occupants should have, in addition to a carpet area of 225 sq. ft. in respect of the tenement, a balcony measuring 10% of the tenement area. The second contention was that the height of the tenements (height between roof and floor) should not be less than 2.9 M, instead of 2.7 M adopted by the developer. The High Court by its order dated 5.5.2005 disposed of the said writ petition. It held that the first contention could not 7 be accepted as the Scheme was under DC Regulations and it did not require construction of a balcony in addition to the tenement measuring 225 sq. ft. In regard to the second contention, the High Court recorded the submission of the developer that the height of the units will be increased to 2.9 M in the buildings which were yet to be constructed.

xxx xxx xxx Sub-regulation (22) of Regulation 38 referred to in Regulation 35(2) is extracted below:

(b) All the occupants of the old building shall be re- accommodated in the redeveloped building.

2. Each occupant shall be rehabilitated and given the carpet area occupied by him for residential purpose in the old building subject to the minimum carpet area of 20.90 sq.mt. (225 sq.ft.) and/or maximum carpet area upto 70 sq.mt. (753 sq.ft.) as provided in the MHAD Act, 1976. In case of non-residential occupier the area to be given in the reconstructed building will be equivalent to the area occupied in the old building.

Carpet area shall mean exclusive of all areas under walls including partition walls if any in the tenement. Only 20.90 sq.mt. carpet area shall be given and if proposal contains more area, it shall not be taken up for consideration.

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