Quashed

M/S. Dahyabhai Paper and Boards Pvt. Ltd. and Anr. v. Maharashtra Housing and Area Development Authority and 2 Ors.

Bombay HC21 Aug 2012WP/235/2011

Case brief

AI extract

What is this about?

In a writ petition, the Bombay High Court quashed the Chief Officer of the Mumbai Building Repairs and Reconstruction Board's order which invalidated developers' redevelopment plans based purely on municipal inspection extracts regarding tenement use. The court directed a fresh inquiry considering all documentary evidence.

What did the court decide?

Impugned order dated 10 November 2008 and High Power Committee decision quashed; directive for fresh consideration after producing documentary evidence.

M/S. Dahyabhai Paper and Boards Pvt. Ltd. and Anr. Vs… — Property and Title | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.235 OF 2011

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Dahyabhai Papers & Boards Pvt.Ltd. and another Petitioners

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versus

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Maharashtra Housing and Area Development Authority and others

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Respondents

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Mr.Shrihari Aney, Sr.Advocate with Ms.Veena Advani i/by Law Charter for Petitioners. Mr.V.M.Parshurami for Respondents 1 and 2. Mr.B.V.Phadnis i/by Utangale & Co. for Respondent no.3. Ms.Geeta Joglekar for Respondent no.4.

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CORAM : DR.D.Y.CHANDRACHUD AND A.A.SAYED, JJ.

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DATE : 21 August 2012

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JUDGMENT - (PER : DR.D.Y.CHANDRACHUD, J.) :

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Rule. Counsel for the Respondents waive service. By consent, the Rule is made returnable forthwith. The writ petition is taken up for hearing and final disposal, by consent and on the request of learned counsel.

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The First Petitioner is the owner of a plot of land being C.S. No.952 of Bhuleshwar Division, situated at 583, Jagannath

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Shankershett Road, Mumbai-400 002. A building consisting of a ground floor and five floors was situated on the land, having been constructed prior to 1940. The building was a Cessed A' category building in the island city. The building was in a dilapidated condition and according to the Petitioners, had partially collapsed. On 11 April 2001, an application for redevelopment and for obtaining the No Objection Certificate of the First Respondent was submitted under Development Control Regulation 33(7) of the Development Control Regulations, 1991 (DCR'). On 14 August 2001, the Mumbai Building Repairs and Reconstruction Board (`the Repair Board') the Second Respondent, granted its no objection for the redevelopment of the property under DCR 33(7). The no objection certificate stipulated that residential occupants of the old building would be entitled to an equivalent carpet area subject to a minimum of 225 sq.ft. and a maximum of 753 sq.ft.. Non-residential occupants were required to be furnished with alternative accommodation equivalent to the area occupied in the old building. The no objection certificate provided that if it was subsequently found that the documents/information submitted with the application for a no objection certificate are found to be incorrect or forged, the permission would be cancelled and the Petitioners would be held responsible for all the consequences.

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On 17 August 2002, the Executive Engineer of the Repair Board issued a duly certified list of tenants of the old building on the basis of the no objection certificate issued by the Repair Board. The Petitioners applied to the Municipal Corporation for sanctioning the plans. On 20 December 2002, the Municipal Corporation addressed a

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letter through its Executive Engineer (Building Proposals, City-III) to the Chief Officer of the Repair Board. The letter stated that the final list of certified tenants issued by the Repair Board on 14 August 2002 stated that the existing tenants on the First, Second and Fourth Floors were non-residential and that the carpet area in their occupation was in excess of 70 sq.mtrs.. This was with particular reference to tenements 5 and 6 on the First Floor, tenements 7 and 8 on the Second Floor and tenement 11 on the Fourth Floor. The Municipal Corporation stated that the inspection extract for 1994-95 from the Assessor and the Collector shows that these tenements on the First, Second and Fourth floors were residential. According to the Corporation, no proposal for change of use from residential to commercial have been received. The Chief Officer of the Repair Board was called upon to offer his remarks in regard to the nonresidential use since that would have a bearing on the permissible F.S.I.. In response, by a letter dated 30 December 2002, the Chief Officer of the Repair Board stated that the certification of tenements 5 and 6 on the First Floor, tenements 7 and 8 on the Second Floor and tenement 11 on the Fourth Floor was based on the documentary evidence submitted by the Developer.

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The Municipal Corporation issued an I.O.D. on 15 March 2004 and plans were sanctioned for the construction of a building consisting of a ground floor and fifteen upper floors. A commencement certificate was issued on 14 June 2004. The old building was demolished in October 2004 and construction commenced. The no objection certificate which was issued by the

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Repair Board was thereafter extended from time to time. By 2008, the Petitioners had proceeded with the work of redevelopment and constructed eleven floors.

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On 10 November 2008, a letter was addressed by the Chief Executive Officer of the Repair Board to the Petitioners. The letter stated that the inspection extracts of the Municipal Corporation for 1995-96 showed that the use of tenements 5 and 6 on the First Floor, tenements 7 and 8 on the Second Floor and tenement 11 on the Fourth floor was residential. However, while issuing a no objection certificate, the Repair Board had relied upon the documentary evidence of non-residential use submitted by the Developer. The letter stated that a complaint had been received on 21 February 2007 by the Repair Board in which the complainant (a person by the name of Vimal Bharati) had objected to the change of use from residential to non-residential. The letter recorded that the Petitioners were called upon to submit documentary evidence in respect of the nonresidential use of the five tenements in question and to submit a certified copy of the permission granted by the Municipal Corporation for change of use. The letter stated that while the Petitioners had pointed out that they had already submitted the documentary proof regarding non-residential use of the tenements, they had not submitted a certified copy of the permission for change of use by the Municipal Corporation. Based on the view of the legal adviser, the Chief Officer informed the Petitioners that the inspection extract of the Municipal Corporation for 1995-96 showed the use as residential based on which his office had decided to treat the use of the five tenements as

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residential. Based on this, the permissible built-up area including the incentive F.S.I. was recomputed and the Petitioners were called upon to get their sanctioned plans duly amended.

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The Petitioners thereupon submitted representations on 14 November 2008 and 8 December 2008. The Municipal Corporation issued stop work notices on 24 November 2008 and 3 January 2009. In response to the representations, the Petitioners were informed by a communication dated 23 March 2009 that the earlier decision was in order. The Petitioners thereupon moved the High Power Committee which has maintained the decision of the Chief Officer of the Repair Board. Accordingly, these proceedings under Article 226 of the Constitution of India have been instituted.

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Learned counsel appearing on behalf of the Petitioners submits that :

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(I) In the present case, a certification was carried out by the Repair Board and a list of certified tenants was issued to the Petitioners after the position at site was verified and documentary evidence produced by the Petitioners was scrutinized. According to the Petitioners, though originally the tenancies which were created were for residential purposes, the tenants had, in turn, created subtenancies including in favour of limited companies and the premises had been used for commercial purposes by the sub-tenants;

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(II) DCR 33(7) read with Appendix-III requires a certification by the Repair Board of the nature of the use by each of

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the occupants of the building when a list of occupants together with the area occupied is drawn up. Since the permissible FSI depends upon the number of occupants and the actual area occupied, Clause14 of the Appendix-III stipulates that no new tenancy created after 14 June 1996 shall be considered. However, Clause-14 allows each occupier to declare whether the tenancy is residential or nonresidential;

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(III) In the present case, the sole basis on which the Chief Officer of the Repair Board has purported to revoke the permission, which was granted earlier, is that the inspection extract for 1995-96 maintained by the Municipal Corporation shows the use as being residential. DCR 33(10) which constitutes subordinate legislation, does not expressly provide for the incorporation of the inspection extract of the Municipal Corporation, nor is the inspection extract made conclusive;

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(IV) The no objection certificate which is issued by the Repair Board provides that it can be revoked in case of a mistake or fraud. In the present case, a certification was carried out before the no objection certificate was issued and the building was demolished. The complainant at whose behest the proceedings have now been initiated, is motivated by the pendency of a litigation initiated by the Petitioners against his close associate. Hence, there is no reason or justification for MHADA to once again seek a certification in regard to the nature of the use.

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On the other hand, it has been submitted by the learned counsel appearing on behalf of the First and Second Respondents that :

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(i) The nature of the use of tenements in a building which is to be redeveloped under DCR 33(7) is of crucial importance. In the case of a residential tenement, DCR 33(7) introduces a cap of 753 sq.ft. which is the maximum area that can be allotted to an occupier. On the other hand, in the case of non-residential tenements an equivalent area without a cap has to be allotted. The available FSI for the Developer including the incentive FSI is based on the area which is required for the purposes of rehabilitation of the existing occupiers. In the circumstances, the Repair Board is justified, when it proceeds to certify the list of tenants, to demand production of all relevant documentary evidence including the inspection extracts to determine the use. The Repair Board also conducts a physical verification at site;

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(ii) In the present case, the Repair Board has acted on the basis of a complaint which was received. The Repair Board is justified in re-inquiring into the issue with a view to determine whether the original certification was based upon mistake or on a fraudulent representation. If a tenement which was residential in character is shown to be used for non-residential purposes, that would result in a serious fraud being perpetrated on the legislation.

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An affidavit-in-reply is filed by the Repair Board in which it has been stated that prior to the issuance of a no objection certificate

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under DCR 33(7), a report is forwarded by the concerned Executive Engineer to the Second Respondent, inter alia, in respect of the status of the building, certifying the list of the occupants/tenants in accordance with Clause-14(4) and 14 of Appendix-III to DCR 33(7). On 14 August 2002, the Second Respondent issued a no objection certificate for redevelopment and certified 12 tenants/occupants in respect of the building. The inspection extract of the Municipal Corporation certified that there were 12 tenants/occupants of which 7 were residential and 5 were non-residential. The inspection extract pertains to 1995-96. However, the Petitioners submitted a representation to the office of the Executive Engineer, C-III Division contending that the tenants at serial numbers 5 and 6, 7 and 8 and 11 be considered as non-residential and submitted sub-tenancy agreements and declarations in support of the submission. Based on those documents, the then Executive Engineer submitted a revised proposal to consider the said tenants/occupants as non-residential and furnished a modified list of tenants. Based thereon, a no objection certificate was issued on 14 August 2002. On 21 February 2007, a complaint was received from one Vimal Bharati stating that the tenements which were certified as non-residential by the Executive Engineer were, in fact, residential tenements. In view thereof, the Chief Officer of the Repair Board called upon the Petitioners to furnish proof of use of the tenements as non-residential, which the Petitioners omitted and failed to do. According to the affidavit, no permission from the Municipal Corporation for change of the use of the premises has been submitted till date. It was in this background that the order came to be passed by the Chief Officer on 10 November

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2008 certifying the tenements which were earlier certified as nonresidential as residential and the Petitioners were called upon to submit amended plans to the Municipal Corporation and to stop work.

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The Municipal Corporation has filed affidavits of its Assistant Assessor and Collector and its Assistant Engineer (Building Proposals). The affidavit filed by the Assessor and Collector states that the building originally comprised of five floors. During the year 1995-96, the use of the tenements from the first to fourth floors was residential, whereas, the ground and the fifth floors were assessed as commercial premises. The Assistant Engineer in his affidavit states that the assessment records of the Municipal Corporation are primarily used for determining the number of tenants in a cessed building so as to ensure that no new tenancies are created after 14 June 1996 are recognized in view of Clause-14 to Appendix-III of DCR 33(7). As per the said clause, the occupier has to declare whether the tenement is residential or non-residential. In the present case, it was so stated by the Petitioners and this was verified by MHADA on the documents submitted to it by the Petitioners. The Municipal Corporation processed the proposal for redevelopment and issued an I.O.D. and Commencement Certificate in March and June 2004 respectively. The commencement certificate was extended in September 2006 for the entire work consisting of a building of 12 floors. Following the revised no objection certificate issued by the Repair Board on 10 November 2008, by which tenements approved as non-residential earlier, have been considered to be residential, the Municipal Corporation has issued a stop work notice.

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The proposal in the present case for redevelopment was under DCR 33(7). Redevelopment under DCR 33(7) applies to Cessed A' category buildings in the island city. Under Appendix-III to DCR 33(7), a new building can be permitted to be constructed in pursuance of an irrevocable written consent of not less than 70% of the occupiers of the old building. All the occupants of the old building are required to be re-accommodated in the redeveloped building. These provisions which are contained in Clause-1 of Appendix-III would indicate that the rehabilitation that is contemplated is of occupiers, a term which is broader in ambit than a tenant. Section 2(25) of MHADA Act, 1976 defines Occupier' as follows :

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"(25) `occupier' includes -

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(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;

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(b) an owner in occupation of, or otherwise using, his land or building;

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(d) a licensee in occupation of any land or building; and

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(e) any person who is liable to pay to the owner damages for the use and occupation of any land or building."

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Clause-2 of Appendix-III requires each occupant to be rehabilitated and to be allotted an equivalent area in the case of residential premises subject to a minimum of 225 sq.ft. and a maximum of 753 sq.ft.. In the case of a non-residential occupier, the area to be furnished in the reconstructed building is to be equivalent to the area occupied in the old building. Hence, a clear distinction is made in DCR 33(10) read with Appendix-III in regard to the entitlement of a residential occupier as compared to that of a nonresidential occupier. While a cap is imposed on the maximum area that can be allotted to a residential occupier, no such limit has been imposed on non-residential occupiers who are required to be furnished with an equivalent area in the reconstructed building.

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Clause-3 of Appendix-III states that a list of occupants and the area occupied by each of them in the old cessed building shall be certified by the Repair Board and the irrevocable written consents shall be certified by the Board. Clause-5 provides for computation of F.S.I. and incentive F.S.I.. In the case of the redevelopment of `A' category cessed building undertaken by the landlord or by a cooperative housing society of the landlord or the occupiers, the total F.S.I. shall be 2.5 of the gross plot area or the F.S.I. required for rehabilitation of the existing occupiers plus 50% incentive F.S.I., whichever is more. The F.S.I. which is required to be utilized for the rehabilitation of the existing occupiers, thus, forms the basis of the total F.S.I. which is made available for the developer. From this perspective, a proper certification of the nature of the occupation of the occupiers in the existing building is crucial. That is because in the

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case of a residential occupier, the regulation introduces a limit on the area of rehabilitation in the newly constructed building. There is no such limit in the case of non-residential occupiers. Clause-14 of Appendix-III provides that since the permissible F.S.I. in Clause-5 is dependent upon the number of occupiers and the actual area occupied by them, no new tenancy created after 14 June 1996 shall be considered. Moreover, unauthorized constructions made in cessed buildings are required to be disregarded while computing the existing F.S.I.. However, the occupier is allowed to declare whether the tenement is residential or non-residential.

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DCR 33(10) read with Appendix-III constitutes a part of subordinate legislation framed under the provisions of the Maharashtra Regional and Town Planning Act, 1966. Clause-3 of Appendix-III requires that the certification of occupants and of the area occupied by them is to be done by the Repair Board. The duty of certification is cast upon the Repair Board. Clause-15 has the effect of disregarding new tenancies created after 14 June 1996. This provision was introduced in order to ensure that by the device of creating artificial tenancies, the F.S.I. which is available to the developer together with the incentive F.S.I., would not be artificially inflated. Clause-14 requires each occupier to declare whether the tenement is residential or non-residential. However, a mere certification by an occupier in regard to the nature of the use, cannot be conclusive. Such a certification would be self serving. It is for the Repair Board to certify on the verification as to whether in each case the occupation was residential or, as the case may be, non-residential.

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Ordinarily, where the building which is to be pulled down for redevelopment exists at site and has not collapsed, the premises would be available for inspection by the Repair Board. Problems in regard to an actual verification at site may arise where the building has either collapsed due to natural causes or where the building has been rendered uninhabitable as a result of which the occupants have been required to vacate the premises. The certification which has to be carried out by the Repair Board must be based on a consideration of the entirety of the documentary evidence that is available and where possible, by a physical inspection at the site. The certification cannot be based only on a declaration filed by the occupier. The genuineness of the declaration must be verified by the Repair Board. The certification affects the entitlement of the occupier and the area to which he is found entitled, even if he is otherwise eligible. The Repair Board has to certify the list of occupiers. The certification extends also to the area occupied. The claim that the nature of the occupation is residential, or as the case may be, non-residential has to be verified. This involves a determination based on an application of mind. The ipse dixit of the developer or occupier is not conclusive.

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The records that the Assessment and Collection Department of the Municipal Corporation maintains are for the purposes of assessment for the collection of property taxes. The nature of the use which is reflected in the records of the of the assessment and collection department of the Municipal Corporation, would constitute relevant evidence but would not be the only factor to be borne in mind in regard to the nature of the use of the premises. In the present

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case, for instance, it was the contention of the Petitioners that while originally the tenancies that were created were for residential purposes the tenants had, in turn, created sub-tenancies and the subtenants were using the premises for non-residential purposes for long. Whether this is in fact so, was a matter to be determined by the Repair Board both on the basis of the physical inspection which took place at site and on considering the totality of the documentary evidence that may be produced by the Developer or as the case may be by an individual occupant. In the process of certification, the Repair Board must bear in mind the requirement of Clause-14 of Appendix-III that no tenancy created after 14 June 1996 can be approved.

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In the present case, the sole basis on which the Repair Board proceeded to modify the use as stated in the certified list of tenants of 17 August 2002, was the inspection extract of the Municipal Corporation. The record would indicate that on 20 December 2012 the Municipal Corporation had addressed a communication to the Chief Officer of the Repair Board pointing out that the inspection extract for 1994-95 of the Assessor and Collector showed the use of the tenements on First, Second and Fourth floors to be residential. In response to this, the Chief Officer of the Repair Board informed the Municipal Corporation on 30 December 2002 that it was on the basis of the documentary evidence submitted by the Developer that the certification of non-residential use came to be issued. In pursuance of a query under the Right to Information Act, 2005, the Repair Board intimated that a no objection certificate for redevelopment is issued under Appendix-III to DCR 33(7). The Repair Board stated that since

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it is responsible for certifying the list of tenants/occupiers, it is necessary to verify the certified change of user from the tenants or as the case may be occupier/landlord or developer. In our view, the Repair Board, when it proceeds to certify the list of tenants, would be entitled to rely upon all relevant documentary evidence which would include but would not be confined only to the inspection extract of the Municipal Corporation. The Repair Board, in cases where it is possible, conducts a physical verification at site in regard to the nature of the use of each tenement in a building, which is to be redeveloped under DCR 33(7). Apart from this, the Repair Board would be duty bound to require each occupier to produce before it documentary evidence that would establish the nature of the use of the premises. When the Repair Board issued a no objection certificate, it incorporated a condition to the effect that the no objection certificate would be liable to be cancelled if it is found that it was granted on the basis of documents or information which is found to be incorrect or forged. Such a condition has been imposed in Clause-14 of the no objection certificate issued to the Petitioners on 14 August 2002.

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The Repair Board was moved by a complainant. The grievance of the Petitioners is that the complainant was motivated by an animus of a personal nature against the Petitioners. Once circumstances were drawn to the notice of the Repair Board warranting further enquiry, it was justified in verifying the basis on which the no objection certificate was issued in the first instance. For the reasons that we have indicated, the Repair Board would not be correct in revoking the list certified earlier purely on the basis of the inspection extracts of

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the Municipal Corporation. That is one aspect which can be borne in mind by the Repair Board but it would have to be considered together with all the documentary material that may be available. The Petitioners have relied upon other documentary evidence including the records of the Registrar of Companies, Licenses under the Shops and Establishments Act, Sales Tax and Service Tax documents, Registration papers, Bank statements and Income Tax returns and PAN cards. The Petitioners would be at liberty to produce them before the Chief Officer of the Repair Board. The impugned communication dated 10 November 2008 has been issued purely on the basis of inspection extract of the Municipal Corporation.

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Having regard to the position in law as laid down in the earlier part of this judgment, it would be appropriate to quash and set aside the impugned order dated 10 November 2008 passed by the Chief Officer of the Repair Board and to direct a fresh consideration. In consequence, we also set aside the order passed by the High Power Committee on 18 July 2009. The petition shall stand disposed of in terms of following order :

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(i) The order dated 10 November 2008 passed by the Chief Officer of the Repair Board and the decision of the High Power Committee dated 18 July 2009 are quashed and set aside;

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(ii) The Petitioners would be at liberty to produce all relevant documentary material before the Chief Officer of the Repair Board in regard to the use of the respective premises (either as residential or, as

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the case may be, non-residential) within a period of two weeks;

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(iii) It would be open to the occupiers of the tenements in the erstwhile building and who are to be rehabilitated in the proposed construction to also produce relevant documentary material before the Chief Officer within two weeks. A copy of this order shall be forwarded by the Petitioners to each of the occupants by way of intimation;

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(iv) The Chief Officer of the Repair Board shall, on the basis of the documentary material and all relevant facts and circumstances including the report of the site verification, determine with reference to the provisions contained in Clause-14 of the no objection certificate dated 14 August 2002 as to whether any part of the documentary material or information submitted with the application for grant of a no objection certificate was incorrect or fabricated or whether the certification in regard to the use as residential or, as the case may be non-residential, was issued on the basis of such documents or information. This exercise shall be carried out after furnishing to the Petitioners and the occupiers an opportunity of being heard. A final order shall be passed by the Chief Officer of the Repair Board recording reasons, within a period of four weeks of the conclusion of the hearing and on the passing of a fresh order by the Chief Officer of the Repair Board, it would be open to the Petitioners to move the Municipal Corporation for modification of the stop work notice, and in terms of the decision of the Chief Officer with respect to the permissible area.

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Rule is made absolute in the above terms. There shall be no order as to costs.

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(DR.D.Y.CHANDRACHUD, J.)

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(A.A.SAYED, J.)

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MST

M/S. Dahyabhai Paper and Boards Pvt. Ltd. and Anr. v. Maharashtra Housing and Area Development Authority and 2 Ors.

Case brief

What is this about?

What did the court decide?

M/S. Dahyabhai Paper and Boards Pvt. Ltd. and Anr. v. Maharashtra Housing and Area Development Authority and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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