Partly allowed

Augustine Francis Gabriel v. the Competent Authority, Executive Engineer and Ors.

Bombay HC6 Jul 2011WP/2930/2011

Case brief

AI extract

What is this about?

Two writ petitions challenging redevelopment orders under DCR 33(7) and Section 95A of the MHADA Act. The Court rejected a discrimination plea regarding flat sizes, enforced the eviction order, and directed possession handover within four weeks.

What did the court decide?

Dismissed WP 2930/2011. Disposed WP 963/2011 with direction to hand over possession within four weeks of availability of alternate accommodation.

Augustine Francis Gabriel Vs the Competent Authority… — Property and Title | Bombay HC (2011)

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VBC 1 wp2930.11-6.7

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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WRIT PETITION NO.2930 OF 2011 WITH O.S.WRIT PETITION NO.963 OF 2011

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WRIT PETITION 2930/2011

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Mr.Augustine Francis Gabriel. ..Petitioner. versus The Competent Authority, M.B.R.& R,Board & Ors. ..Respondents. .....

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O.S.WRIT PETITION 963/2011

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Redstone Realtors & Anr. ..Petitioners. versus Maharashtra Housing & Area Development Authority & Ors. ..Respondents.

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Mr.Aniket Nikam with Mr.Ketan Gupta i/b. Legaleye Associate for the Petitioner in W.P.2930/11 and for Respondent No.5 in WP 963/11.

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Mr.Vijay A.Thorat, Senior Advocate with Mr.Kishore Jain i/b. Mr.Tushar Goredia and Nisha Parmar for the Petitioners in WP 963/11 and for Respondent No.5 in WP 2930/11. Mr.G.W.Mattos, AGP for Respondent Nos.1 to 4 in both Petitions.

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CORAM : DR.D.Y.CHANDRACHUD & ANOOP V. MOHTA , JJ.

July 6, 2011.

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P.C. :

There are two petitions before the Court under Article 226 of the Constitution, in respect of a scheme for redevelopment under Development Control Regulation 33(7). Writ Petition 963 of 2011 is by a developer, who seeks enforcement of an order passed by MHADA under Section 95A of the Maharashtra Housing and Area Development Act, 1976, dated 1 April 2011. The occupant of the premises against whom the order of eviction has been passed, has in turn, filed Writ Petition 2930 of 2011 for challenging the order.

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The Fifth Respondent is a developer to whom an NOC has been granted by MHADA for redevelopment of a property bearing CS 412, 1/412, 2/412, 3/412, 4/412 and 4A/412 situated at Dr.Mascarenhas Road, E-Ward, Byculla, Mumbai. The property is being redeveloped under the provisions of Development Control Regulation 33(7). Three buildings were situated on the property, namely, (i) New Chawl, (ii) Shroff Building and (iii) Meher Mansion. All the three buildings are cessed buildings which outlived their life and are in a dangerous and dilapidated

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condition.

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In the affidavit filed by the developer, the position in respect of the three buildings has been clarified as follows:

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(i) New Chawl has 40 residential and 11 commercial tenements. All the residential tenants accepted allotment and shifted to their permanent alternate accommodation and handed over possession of their erstwhile tenements. The eleven commercial occupants also handed over their tenements and are awaiting allotment of permanent alternate accommodation. New Chawl has been completely demolished;

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(ii) Shroff Building has two wings in which there are 104 residential and 20 commercial tenements. 80 residential occupants accepted allotment of their permanent alternate accommodation and shifted after handing over their erstwhile tenements. Eleven residential occupants have similarly agreed to shift to permanent alternate accommodation by 15 July 2011. Thirteen residential occupants are stated to be not co-operating and against whom

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eviction proceedings have been instituted under Section 95A;

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(iii) Meher Mansion has 62 residential and 10 commercial tenements. Out of them, 61 residential occupants have accepted allotment of permanent alternate accommodation after handing over the tenements in their occupation in the building. The ten commercial occupants are also stated to have handed over the tenements in their possession for facilitating redevelopment.

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The Petitioner before the Court in Writ Petition 2930 of 2011 is the sole residential occupant, who continues to be in occupation of Room No.55 on the third Floor of Meher Mansion. The area in the occupation of the Petitioner is 155.43 sq.ft. Under Development Control Regulation 33(7), the Petitioner would be entitled to the allotment of 300 sq.ft. of accommodation in lieu of the existing tenement. The Court has been informed on affidavit that the Petitioner has been allotted Block No.402 in “C” Wing in the rehabilitation building, admesuring carpet area of 300 sq.ft. The Petitioner had, by his Advocate’s letter dated 8 February 2011 accepted the proposal of the builder for the allotment of self

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contained permanent alternate accommodation admeasuring 300 sq.ft. on ownership basis. The Petitioner stipulated that the allotment be unconditional and not subject to qualifications. During the course of the hearing, the Court has been informed that the developer is ready and willing to hand over possession of the permanent alternate accommodation admeasuring carpet area of 300 sq.ft. to the Petitioner on ownership basis.

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When the Petition came up for hearing before the Court on 29 June 2011, the submission of the Petitioner was that he has been discriminated against. The submission of the Petitioner was that persons who are in occupation of areas admeasuring 150 to 170 sq.ft. and were similarly situated, were allotted alternate accommodation, admeasuring 400 sq.ft. whereas the tenement allotted to the Petitioner admeasures 300 sq.ft. Having regard to this submission, the developer was directed to file an affidavit to clarify the position. An affidavit has accordingly been filed on 4 July 2011, which clarifies the factual position as follows:

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(i) In New Chawl, 39 out of 40 residential occupants were

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holding areas in excess of 225 sq.ft. Each of them was allotted permanent alternate accommodation admeasuring 400 sq.ft. One occupant who was holding an area of 150.64 sq.ft., was allotted permanent alternate accommodation admeasuring 300 sq.ft.;

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(ii) In Shroff Building, all the residential occupants in A- Wing have been allotted permanent alternate accommodation admeasuring 300 sq.ft. Ten occupants who are not co-operating are subject to proceedings under Section 95A for eviction. In B- Wing, all residential occupants have been allotted accommodation admeasuring 300 sq.ft. Eviction proceedings under Section 95A have been instituted against three persons who are not cooperating. One residential occupant was in occupation of a carpet area admeasuring 125.89 sq.ft. to whom an allotment has been made of an area admeasuring 400 sq.ft. against the payment of Rs. 8 lakhs in 2010;

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(iii) In Meher Mansion, 46 out of 62 residential occupants were allotted permanent alternate accommodation admeasuring 400 sq.ft. Since they were in occupation of carpet areas in excess

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of 210 sq.ft. 16 persons are stated to have been allotted permanent alternate accommodation admeasuring 300 sq.ft. since they were in occupation of areas approximately admeasuring 200 sq.ft. or less. Four occupants were occupying more than 180 sq.ft, but less than 200 sq.ft. carpet area to whom an allotment of premises admeasuring 400 sq.ft. has been made. All of them have paid additional consideration between Rs.5 lakhs and 11 lakhs.

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In the rejoinder, the Petitioner has stated that as a matter of fact, there were 63 tenants in Meher Mansion. 29 were in occupation of a carpet area in excess of 210 sq.ft. to whom an area admeasuring 400 sq.ft. has been allotted. The remaining 34 occupants held an area less than 210 sq.ft., of whom 12 tenants have been allotted a carpet area of 300 sq.ft. while four purchased an additional area of 100 sq.ft. from the developer. Hence, accordingly to the Petitioner, 18 tenants who were holding an area of less than 210 have been allotted 400 sq.ft of area and it is alleged that this amounts to discrimination against the Petitioner. The basic contention that has been urged on behalf of the Petitioner is that the developer has discriminated against him.

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Now, it cannot be disputed, as it has not been, that the

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entitlement of the Petitioner is to an area admeasuring 300 sq.ft. As a residential occupant, the Petitioner is in occupation of an area admeasuring 155.43 sq.ft. Under Development Control Regulation 33(7), the Petitioner is entitled to the allotment of permanent alternate accommodation admeasuring 300 sq.ft. The developer is ready and willing to do so and a tenement admeasuring a carpet area of 300 sq.ft. is earmarked and ready for allotment to the Petitioner. The material which has been placed on record would indicate that the occupants in Meher Mansion to whom an area of 400 sq.ft was allotted, were in occupation of areas of over approximately 200 sq.ft. Counsel appearing on behalf of the developer submitted before the Court that those occupants, who were in occupation of comparatively larger areas over 200 sq.ft., were allotted in the course of negotiations, tenements of an area admeasuring 400 sq.ft. As noted earlier, one residential occupant of Shroff Building, who was in occupation of an area of 125 sq.ft., was allotted permanent alternate accommodation admeasuring 400 sq.ft. as against the payment of an amount of Rs.8 lakhs in 2010.

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In this view of the matter, it is not possible to accept the contention of the Petitioner that he has been discriminated against. The Petitioner has not co-operated in the process of redevelopment. Subject to compliance with the requirements of DCR 33(7), it was open to the developer to negotiate with occupants who were in occupation of comparatively larger areas of over 200 sq.ft. and to provide an incentive to them for participating in the scheme by allotting tenements of 400 sq.ft. The additional area which has been allotted by the developer, the Court has been informed by Learned Senior Counsel, is out of the incentive FSI that is made available to the developer. The Petitioner cannot be heard to make a grievance of the fact that others who were in occupation of substantially higher areas have been allotted accommodation admeasuring 400 sq.ft. A plea for discrimination cannot be founded on that basis. The area in occupation of the Petitioner is 155.43 sq.ft. He is being allotted permanent accommodation on ownership basis admeasuring 300 sq.ft. That is consistent with DCR 33(7). The scheme has been substantially implemented. The large body of tenants has supported the scheme and have vacated their tenements to facilitate redevelopment. No other challenge

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has been urged to the order of eviction under Section 95A. The Court has been informed that when the order of eviction was sought to be enforced, the petitioning occupant had obstructed due process of law.

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In the circumstances, Writ Petition 2930 of 2011 filed by the occupant to challenge the order of eviction under Section 95A of the MHADA Act, 1976 shall stand dismissed.

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Writ Petition 963 of 2011 is to seek enforcement of the order of eviction passed under Section 95A. Writ Petition 963 of 2011 shall stand disposed of in terms of a direction that the occupant (Respondent No.5 to the Petition) shall have a period of four weeks from today to hand over vacant and peaceful possession of the premises upon the developer handing over vacant possession of permanent alternate accommodation admeasuring a carpet area of 300 sq.ft. being Flat No.402 situated on the “C” Wing of the rehabilitation building. In the event that the Fifth Respondent to Writ Petition 963 of 2011 fails to hand over vacant and peaceful possession, the Respondents shall take necessary police assistance

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VBC 11 wp2930.11-6.7 for obtaining vacant possession of the premises and shall implement the order under Section 95A.

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The Petitions are accordingly disposed of. There shall be no order as to costs.

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( Dr.D.Y.Chandrachud, J.)

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( Anoop V. Mohta, J.)

Augustine Francis Gabriel v. the Competent Authority, Executive Engineer and Ors.

Case brief

What is this about?

What did the court decide?

Augustine Francis Gabriel v. the Competent Authority, Executive Engineer and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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