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

4. The background facts in a nutshell are as follows:The three writ petitioners (respondent Nos. 1, 2 and 3 herein) claiming to be public spirited citizens filed a writ petition before the Bombay High Court. The 1st petitioner is a former Municipal Commissioner of Mumbai, who is also a former Chief Secretary of the State of Maharashtra. The 2nd petitioner has been a member of various committees concerning urban development. The 3rd petitioner is a Civil Engineer by profession and for many years was an Executive Committee Member of the Bombay Metropolitan Authority. He was also a member of the Slum Rehabilitation Committee constituted by the State of Maharashtra.The respondents in the writ petition were the State of Maharashtra through the Secretary, Urban Development Department, Municipal Corporation of Greater Mumbai which is the Planning Authority for the city of Mumbai under the Maharashtra Regional and Town Planning Act, 1966 (in short the ‘Town Planning Act) whereunder the regulations are framed. Respondent No.3 was a statutory authority constituted under the Maharashtra Housing and Area Development Act, 1976 (in short the ‘Development Act). The concerned authority is Maharashtra Housing and Area Development Authority (MHADA). Respondent No.4 was the former Municipal Commissioner of Mumbai whose report was amongst others led to the amendment of the Regulations in the year 1999. Several parties intervened in the matter. Two of them were the property owners. One was the Property Owners Association and one claimed to be a tenant in pre 1940 building. One of the interveners was Property Redevelopers Association. Intervener No.6 was an Architect by profession who supported the petition while others opposed the petition.Earlier, a Division Bench of the High Court rendered a judgment on 17.10.2005. The Division Bench accepted number of grievances and amongst others appointed a few Committees to look into some such aspects which according to it had relevance for the issues highlighted in the petition. One of the interveners filed an appeal relatable to Special Leave Petition(C) No.1376 of 2006 and others also filed appeals. By order dated 14th July, 2006 this Court disposed of the appeals inter-alia with the followingHigh Court has not dealt with the basic issues raised in the petition, i.e. as to whether the amended Regulation 33(7) suffered from any infirmity. We, therefore, think it appropriate to direct the High Court to examine those issues. The parties shall be permitted to place their respective stands before the High Court. It is open to the appellants to canvass before the High Court as to the non-maintainability of the writ petitions. The High Court shall appropriately deal with the same. It needs no re-iteration that the High Court shall examine the challenge to Regulation 33(7) as amended inthis Court directed the High Court to deal with only that issue relating to the validity of the provisions and the maintainability of the writ petitions. Intervention applications had also been filed before this Court. These applications were also to be directed to be dealt with by the High Court.The grievances of the petitioners as noted before the High Court were aspetitioners are concerned with the problem of congestion of the population in the island city of Mumbai. The island area of the city covers the area from Colaba in the South to Mahim and Sion in the North (which originally consisted of eight islands before they were all linked). The areas of suburbs and extended suburbs are not covered when one speaks of the island city. The existing infrastructure in the island city, particularly with respect to roads, water supply, sewage system, open areas and gardens, is already over stretched and under extreme strain. The petitioners point out that the island city has already reached the saturation point with respect to the population that it can accommodate, which is not disputed by any of the public authorities concerned. According to the report entitled "Report on the Development Plan of Greater Bombay, 1966", the total acreage of the island city is 17, 388.83 acres and the ultimate population, which it can accommodate, is 32.5 lakhs. As of now, the existing population of the island city is already in excess of this figure of ultimate population. It is now estimated to be 33.4 lakhs. It is another matter that the population in the suburbs is much more, but the area covered there is also much more than the island city. The petition is concerning only the island city.There is no dispute whatsoever that the present pubic amenities are inadequate to cater to the present population. Hence, according to the Petitioners, any cause for the increase in the population in the island city has to be appropriately dealt with. Coupled with this deterioration of the infrastructure in the island city, it is also a fact that a very large number of buildings, i.e. more than 16,500 (16,502 according to one estimate) were constructed prior to 1940 and are in the need of urgent repairs and in some cases reconstruction. The State has taken it upon itself to see to it that these buildings are repaired and, wherever necessary, reconstructed and for that purpose, it created the Bombay Building, Repairs and Reconstruction Board by passing the Bombay Building Repairs and Reconstruction Board Act (Act No.XLVII of 1969). One of the main reasons for this large number of unattended buildings has been the freezing of the rent under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent Act" for short). Rents received by the landlords were found very much insufficient for them to carry out repairs.The Bombay Buildings, Repairs and Reconstruction Board Act was later on repealed and the activities under the Act were taken over by the Maharashtra Housing and Area Development Authority (MHADA) when the Maharashtra Housing and Area Development Act (MHAD Act) was passed in 1976. A cess was to be contributed by the tenants of the private buildings known as Mumbai Building, Repairs and Reconstruction Cess under Section 82 of the said Act. Lands and buildings owned by the Central Government, State Government, Municipal Corporation of Mumbai, Mumbai Port Trusts, lands and buildings vested in MHADA, lards and buildings of the Public Trusts exclusively occupied for worship or educational purposes and those vested in or leased to a cooperative society, buildings exclusively in occupation of the owner, buildings exclusively used for non-residential purposes and some other properties as mentioned in section 83 were exempted from this requirement of paying the cess. These cessed buildings were divided into the following three categories under section 84 of the MHAD Act.Category "A" Buildings erected prior to 1/9/ 1940Category "B" Buildings erected between 1/9/ 1940 and 31/12/1950Category "C" Buildings erected prior to 1/ 1/ 1951 and 30/12/1969It appears to be the common case that as of now as per the affidavit of the State Government in the present matter, there are some 16502 buildings in "A" Category, 1491 buildings in "B" Category and 1651 buildings in "C" Category.Chapter VIII of MHAD Act provided for repairs and reconstruction of dilapidated buildings. Under section 88 from Chapter VIII of the MHAD Act, Mumbai Housing and Area Development Board was supposed to undertake structural repairs of the buildings, which were in ruinous condition and likely to deteriorate and fall. However, section 88 (3) provides that where the cost of the structural repairs exceed Rs.1200/- per sq. m., the Board may not consider such buildings for repairs and issue a certificate to that effect to the owner of the buildings and affix it on the building for the information of occupiers and then proceed to take action as provided in this Chapter. Thereafter where the occupiers were ready to contribute to the cost in excess of Ps.1200/- per sq. metre, the Board may carry out the structural repairs, for which a provision is made in section 89 of the MHAD Act. This will mean that otherwise the steps for reconstruction will be taken by acquiring the property as provided in sections 91 and 92 of this Chapter. Section 91 provides for reconstruction where a building suddenly collapses or becomes inhabitate due to fire, torrential rein or tempest or otherwise. Section 92 lays down the procedure for acquisition where however a building suddenlyHigh Court noted that there was no dispute that there was hardly any progress in the matter of repairs and/or re-construction by the procedure provided. Therefore, even in the year 1981 the Government appointed a Committee under one Mr. Ajit Kerkar to consider the problems. The Committee emphasized that there should be a shift from re-construction of individual buildings to the re-development of the entire localities and the formulation of a programme of urban renewal.The High Court noted that it was a common case that MHADA found it difficult to put in adequate funds for acquisition of properties for reconstruction under Chapter VIII of the Development Act and, therefore, Chapter VIII-A was introduced in the said Act. The provisions of this Chapter have been stated to be notwithstanding what was provided in Chapter VIII as stated in Section 103-B of Chapter VIII-A. The provisions under this Chapter were to operate when 70% of the occupiers came together and approached the Government to acquire the property. They were required to assure to contribute towards acquisition and take steps since the landlords were not cooperating and under the Scheme of this Chapter the developed buildings were to be given FSI 2. These provisions also did not receive adequate response. On 25.3.1991 the Regulations were notified for greater Mumbai. Regulation 33(7) to which these cases relate provided for reconstruction or re-development of cessed buildings in the island city by cooperative housing societies or of old buildings belonging to the Corporation. The Regulation provided for old consumed FSI or FSI 2 whichever is higher. This Regulation was further amended on 25.1.1999 to provide the FSI of 2.5 on the gross plot area or the FSI required for rehabilitation of the existing tenants plus incentive FSI as specified in Appendix III to the Regulations. This amendment was brought about after a report was submitted by Study Group under the Chairmanship of Shri D.M. Sukhtankar, former Municipal Commissioner who was respondent No.4 in the writ petition.The Study Group had submitted its reply to the State Government in July 1997 leading to amendments in the year 1999. The Regulation was further amended by adding a new clause w.e.f. 27th February, 2004 whereby apart from the Corporation buildings, those of Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra constructed prior to 1940 were also covered. The main grievance in the writ petitions was that there was gross misuse of the amended Regulation 33(7) when applied to private buildings with which the petitions were concerned. They submitted that taking shelter under the amended Regulation 33, there has been misuse by pulling down buildings which are otherwise in good conditions merely because they were constructed prior to 1940. It was further submitted that there are no guidelines under the Regulations to lay down as to who are the tenants or occupiers who are eligible to be protected under the Regulations. Numbers of instances were cited. It was submitted that builders and developers and people with money and muscle power were dishousing genuine tenants/occupiers. The numbers of tenants/occupiers were being inflated by creating bogus tenancies to claim extra FSI. The consequence, it was submitted, was that there was going to be unjustified and tremendous increase in the population in the island city causing further strain on its infrastructure. It was their case that the extra FSI as per the amended Regulation was meant for the reconstruction of unsafe and dilapidated buildings only and not for all the 16502 ‘A category cessed buildings. The dilapidated buildings are supposed to be just about 10% of them. Accordingly, there was a prayer to prevent strong and sound cessed buildings which are not in danger of collapse to be not pulled down and Regulation 33(7) should be declared to be applicable only to those cessed buildings which are dilapidated and are in unsound and in unsafe condition. Challenge was to the reduction in the marginal open space requirement for the buildings under Regulation 33(7) read with Appendix III as provided for the buildings under other regulations and it was prayed that same should be also struck down.Stand of the respondents apart from questioning the maintainability of the writ petitions, the locus standi of the writ petitioners, was that Regulation 33(7) as amended was applicable to all ‘A category cessed buildings which are constructed prior to 1940. Whenever 70% of the tenants/occupiers of such buildings came together alongwith their landlords for redevelopment of their properties, they were entitled to get extra FSI. This will provide houses with minimum 225 sq.ft. free of cost to all tenants in these pre-1940 buildings. Many of them are otherwise cramped in still smaller tenements. The benefit could not be restricted only to the old and dilapidated buildings. There was no such restriction contemplated under Regulation 33.The High Court while upholding the validity of Regulation 33(7) accepted some of the prayers of the writ petitioners which are led to the filing of the appeals.5. Stand of appellants in these appeals is that the amended Regulation 33(7) came into force on 25th January, 1999 after inviting suggestions/objections from the public at large under Section 37 of the Town Planning Act, 1966 and after considering the same. Neither any suggestions nor any objections were filed by the writ petitioners nor did they challenge the said amended D.C. Regulation 33(7) from 1999 till October, 2004. In other words there was a delay of nearly 6 years.

Court's reasoning:
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.