Writ petition challenging increase in floors of rehabilitation buildings under Municipal Corporation scheme. Court dismissed petition, finding increase legally sanctioned and petitioners lacking locus to challenge society resolution.
Petition dismissed as it is without merit and petitioners lack standing.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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srp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1184 OF 2010
Dilip Chintamani Koli & Ors. ..Petitioners.
Versus
Brihanmumbai Municipal Corporation & Others. ..Respondents.
Mr. M. P. Vashi i/b M/s. M. P. Vashi & Associates for the petitioners. Mr. V. Tulzapurkar, Sr. Advocate with Birendra Saraf i/b M/s. Wadia Gandhy and Co., for respondent no.4. Mr. P. M. Samdani for respondent no.5. Ms. Shobha Ajitkumar, for the BMC.
Coram : SMT. RANJANA DESAI & R. V. MORE, JJ. Date : September 9, 2010.
P. C. (R. V. More, J.) :
of the Constitution of India are seeking directions for cancellation of the whole scheme sanctioned under Regulation No.33(7) of the D.C.R on the
plot bearing C.S. No. 6(part), Sion Division at Sion-Bhandarwad Road No.28, F/North Ward, Sion-Koliwada Bombay–22 [for short “the said property”]. In the alternative, the petitioners have also sought directions
to demolish the construction of 7 storyes from 8 to 14 floors in the rehabilitation buildings in the said scheme. Further directions are also
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claimed against respondent no.4 to construct 6 buildings of all 7 storyes for rehabilitation component as per the project sanctioned.
In the year 1999 re-development proposal was submitted under Regulation 33(7) of the DCR, 1991. Consent for the said re-development scheme was obtained from the occupants of the said property. AnnexureII came to be issued by respondent no.2 wherein list of tenants of respondent no.1 is set out. The said annexure further shows that 70% of the occupants have given consent for redevelopment. On 4th April 2000, Letter of Intent was issued by respondent no.1 thereby granting approval
and sanction for the re-development of the said property under Regulation 33(7) of the DCR in the manner and on the terms and conditions stated therein. By the development agreement dated 19-10-2004 respondent no.5 has granted development rights in favour of respondent no.4 in respect of the said property. Tri-partite agreement
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was executed on 19-11-2004 between respondent no.1, respondent no.5 and respondent no.4 whereunder respondent no.1 granted development rights to respondent no.4 to develop the said property.
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all consisting of Ground/Stilt + 7 upper floors. On 30/12/1999 Annexure-II as per Regulation 33(7) of DCR was prepared and issued by the competent authority of BMC. Development agreement was executed between respondent no.1, respondent no.4 and respondent no.5 on 19/10/2004. He submitted that necessity of increasing floors from 7th to 14th floors of two rehabilitation buildings arose in view of the subsequent developments, namely, the restrictions imposed by the Airport Authority. The Airport Authority has granted NOC to the project with restriction of hight of building upto 64.936 meters only. He submitted that in view of these developments, general body meeting of the society was conveyed on 2nd June 2007, wherein it has unanimously approved the revised plans for increase of floors of two rehabilitation buildings from 7th to 14th floors. He further submitted that this resolution is not challenged in the present petition. Pursuant to this resolution. respondent no.6 – Architect sought permission of respondent no.1 to construct two rehabilitation buildings of 14 floors instead of 7 floors. Respondent no.2 accordingly by its letter dated 19th July 2008 granted No-Objection/permission to construct two rehabilitation buildings consisting of 14 floors. Thereafter on 1/9/2009, respondent no.1 has approved the amended building plans submitted by respondent no.6. The commencement certificate was also issued on 24th December 2009. Mr. Tulzapurkar further submitted that in
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these circumstances, the petitioners cannot take any exception to the increase of floors of two rehabilitation buildings. He lastly submitted that respondent no.4 alone is developing the said property. In reply to the contention raised in re-joinder by the petitioners, Mr. Tulzapurkar submitted that respondent no.4 is part of Sahana Group of Companies and this fact is evident from the said photographs itself.
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19th July 2008 granted No-Objection/permission to construct two rehabilitation buildings with ground+14 floors. Respondent no.1 thereafter on 1st September 2009 approved the amended building plans submitted by respondent no.6 and commencement certificate was also granted. In pursuance of this amended building plans, construction of two rehabilitation buildings is complete upto 13th floors. Thus, the floors of two rehabilitation buildings were increased from 7 to 14 floors in pursuance of resolution passed by general body of respondent no.5.
4 is concerned, same is without any substance inasmuch as Sahana is
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Group of Companies of which respondent no.4 is a part. Photographs at Exhibit-N on which the petitioners rely also mentions respondent no.4’s name at the bottom.
to go into that issue since we have already concluded that the petition itself is without any merit.
(Smt. Ranjana Desai,J.)
(R.V. More, J.)
3 issues framed by the court
Whether the general body of the society could unanimously approve increased floors for rehabilitation buildings in light of Airport Authority restrictions.
Whether petitioners have locus to challenge a society resolution passed by general body.
Whether petitioners are affected by the increase of floors in redevelopment project.
Dilip Chintamani Koli & Ors.
Brihanmumbai Municipal Corporation & Others.
Ranjana Desai
R. V. More
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
