Dismissed

Madhyavarti Samiti v. the State of Maharashtra and 7 Others

Bombay HC13 Aug 2018WP/1811/2017

Case brief

AI extract

What is this about?

This court dismissed a writ petition filed by an association of tenants challenging the redevelopment plan and occupation certificate granted to the developer. The court held that the construction complied with the conditions of the permission and that granting the sought relief would adversely affect those tenants who had already taken possession.

What did the court decide?

Writ petition dismissed; quashing of permission, sanction plans, and occupation certificate denied.

Madhyavarti Samiti Vs the State of Maharashtra and 7 Others — Land Acquisition | Bombay HC (2018)

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Madhyavarti Samiti 16_wp_1811_2017.doc

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

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WRIT PETITION NO.1811 OF 2017

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Madhyavarti Samiti …Petitioner Versus The State of Maharashtra & Ors. ...Respondents

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Ms Manisha Gawade with Mr. Y.E. Momman for the Petitioner.

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Mr. Manish Upadhye, AGP for the Respondent -State.

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Mr. Sagar Patil for the MCGM. Mr. P.G. Lad for the MHADA.

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Mr. Mayur Khandeparkar with Mr. S.V. Kadam I/b. M/s. Kadam and Co. for the Respondnet No.8.

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CORAM : RANJIT MORE AND SMT. ANUJA PRABHUDESSAI, JJ.

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DATED: 13^th AUGUST, 2018.

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P.C.:-

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Heard the learned counsels for the respective parties. The

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Petition is filed for following reliefs :-

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[a] this Hon'ble Court be issue a writ in the nature of certiorari quashing and setting aside permission granted and plan sanctioned by the Respondent No.6 on 16^th November, 2016 in respect of rehab building Nos.1, 2 and 3 situated and lying at C.S. No.1/A, 782, 2/783, 783, 784, 785 and 786 of Mazgaon Division known as Doctor's compound, being situated at D.L. Marg, Chinchpokli (E), Mumbai 400 012;

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[a-1] this Hon'ble Court be issue a writ in the nature of certiorari and cancel occupation certificate issued by the Respondent No.6 in the month of April 2017 in respect of rehab building Nos.1, 2 and 3 situated and lying at C.S.No.1/A, 782, 2/783, 783, 784, 785 and 786 of Mazgaon Division known as Doctor's Compound being situated at DL Marg, Chinchpokli (E), Mumbai- 400 012.”

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MEGHA/PPS/P.H.JAYANI 1/9

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Madhyavarti Samiti 16_wp_1811_2017.doc

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The respondent no.8 had purchased the subject land alongwith the buildings, structures/chawls standing thereon. The respondent no.8 had submitted a proposal for re-development of the said land under DCR 33(7). The respondent no.5 had granted NOC dated 24/11/2006 in favour of respondent no.8 for redevelopment of subject land with floor space index (FSI) of 2.5. The respondent no.6-Corporation also issued the requisite intimation of disapproval dated 29th March, 2007. The import of this negative communication is that if the terms and conditions are abided, then the property could be developed in accordance with the law.

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In the meantime, vide notification dated 21st May, 2011 clause (2) of Appendix (III) to DCR 33(7) was modified and FSI was increased from 2.5 to 3. In view of this modification, the occupants are entitled for permanent alternative tenement with 300 sq. ft carpet area. The respondent no.8 was not given the benefit under notification dated 21st May, 2011 as in terms of clause 10(a) such benefit could not be extended when the construction of rehabilitation building was completed upto plinth level. The respondent no.8 had challenged the said clause in Writ Petition No.2457 of 2011. By order dated 20th March, 2013 this Court struck down the said clause. Pursuant to the

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MEGHA/PPS/P.H.JAYANI 2/9

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Madhyavarti Samiti 16_wp_1811_2017.doc

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said order, the respondent no.8 opted to convert the proposal as per modified DCR 33(7) and requested respondent no.5 for grant of NOC with FSI 3. Accordingly, revised NOC dated 30th April, 2014 was issued in favour of the respondent no.4 for redevelopment of the subject property as per the modified DCR 33(7), after complying with the conditions mentioned therein.

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The petitioner which claims to be an association of the tenants / occupants of the subject land which is redeveloped by the Respondent No.8 had by filing Writ Petition No.1029 of 2015 with Writ Petition No.1187 of 2014 sought cancellation and revocation of NOC dated 24/11/2006 as well as NOC dated 30/04/2014 and IOD dated 29/03/2007. The petitioner had claimed that as per the modified condition, the respondent no.8 was specifically directed to provide minimum 300 sq. mtrs of carpet area excluding the free FSI or fungible area. The petitioner had alleged that the tenements/flats do not admeasure 300 sq. ft area.

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The Division Bench of this Court by judgment dated 06th October, 2018 held that there is a dispute as to whether the construction meets the requirement in terms of the NOC and the

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MEGHA/PPS/P.H.JAYANI

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Madhyavarti Samiti 16_wp_1811_2017.doc revised NOC. It was held that the MHADA and the Board have statutory duty to ensure that the terms and conditions thereof are abided by the parties. This Court accepted the statement made by the counsel appearing for MHADA that a fresh show cause notice would be issued to the developer/owner to satisfy as to why the NOC initially issued and revised later on should not be cancelled and after hearing all the parties concerned, a speaking order would be passed. The said petitions were disposed of in view of the said statement which were accepted as undertakings given to the Court.

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The records reveal that pursuant to the said judgment, the respondent no.5 issued a show cause notice to respondent no.8 for non compliance of condition no.9 of initial NOC dated 24/11/2006 and condition no.1 of revised NOC dated 30/04/2014. After hearing the parties, the respondent no.5 stayed the revised NOC dated 30/04/2014 till such time the amended plans showing therein rehab tenaments of 300 sq. ft carpet area excluding free of FSI and fungible area are approved by MCGM.

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The respondent no.8 challenged the said order in Writ Petition No.1255 of 2016. The learned Single Judge of this Court held that the

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MEGHA/PPS/P.H.JAYANI

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Madhyavarti Samiti 16_wp_1811_2017.doc

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Municipal Corporation has taken an unequivocable stand before the Chief Officer that the amended plans submitted by the Developer are approvable in nature and in consonance with the prevailing DCR. There are no free of FSI areas under the prevailing DCR and if the area earlier shown as balcony/chhaja as permissible under the then operating DCR are included in the carpet area under the existing DCR now applicable to the building projects, it cannot be said that such carpet areas are in breach of the conditions of the revised NOC. The Single Judge observed that there is no breach of any condition. Even the executive engineer of MBRRB has noticed that the carpet area of the rehab tenements inspected admeasured over 300 sq.ft. Hence, by order dated 05/05/2016, the learned Single Judge stayed the impugned order and clarified that the Corporation should proceed to consider the amended plans filed by the respondent no.8 in accordance with the law without reference to the impugned order dated 11/04/2016 of the Chief Officer, MMRRB, Mumbai. Pursuant to the said order, the respondent no.6-Corporation sanctioned the plans on 16/11/2016 as as a result thereof, the respondent no.8 withdrew the petition.

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The respondent no.8 completed construction of the building and

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MEGHA/PPS/P.H.JAYANI

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Madhyavarti Samiti 16_wp_1811_2017.doc

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out of 220 tenants, 70 tenants have taken possession of rehab building. Some of the tenants/occupants of building no.15 in chawl no.6 and 12 (progressive building no.15) who had not taken possession, constituted a committee under the name M/s. Progressive Kruti Samiti (Proposed), filed a Writ Petition No.912 of 2012. One of the prayers was for setting aside the approved plan and commencement certificate mainly on the ground that though the developer had agreed to allot premises admeasuring 309 sq. ft to each occupant infact a lesser area has been allotted. The said petition was dismissed by the Division Bench of this Court by order dated 08th March, 2013. It was observed that when 225 occupants have benefited by the scheme, the petition cannot be entertained under Article 226 of the Constitution of India at the instance of unregistered association which is claiming membership of only 79 occupants.

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Upon dismissal of the said petition, the said tenants have filed the present petition once again alleging that the rehab tenements do not admeasure 300 sq. ft carpet area. Ms Manisha Gawde, the learned counsel for the Petitioner in this regard relied upon the condition put by the MHADA while granting NOC and especially, condition No.1. We have gone through the same.

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MEGHA/PPS/P.H.JAYANI

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Madhyavarti Samiti 16_wp_1811_2017.doc

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It is not in dispute that modified regulation 33(7) and clause 10(a) provides for allotment of 300 sq. ft carpet area, exclusive of free of FSI or fungible area. In this regard, the affidavit filed by Arvind Shankar Joshi, Resident Executive Engineer, MBRRB, respondent no.4 clearly indicates that the respondent no.8 had submitted amended plans to MCGM converting/merging the niche/chhajja etc. in the carpet area by counting the FSI to meet the requirement of minimum 300 sq. ft of carpet area of rehab tenements. It is stated that the amended plans submitted by the respondent no.8 were approvable and in consonance with the prevailing DCR. It is further stated that the Corporation has given the approval of 300 sq. ft carpet area without free of FSI area and fungible area.

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It is pertinent to note that the petitioner does not dispute that the respondent no.8 has carried out the construction as per the amended plan and that the carpet area of each rehab tenement is 300 sq. mtrs. The contention of the petitioner is that while submitting the amended plans, the respondent no.8 has included area of balcony and chhajja which was earlier free of FSI. It is not in dispute that under the prevailing DCR, applicable to building projects, the areas shown as balcony, chhajja etc. are not free of FSI areas and are now counted in

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MEGHA/PPS/P.H.JAYANI 7/9

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Madhyavarti Samiti 16_wp_1811_2017.doc

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FSI. Hence, the said area which was earlier shown as balcony or chhajja cannot be excluded while calculating the carpet area. Furthermore, the Corporation approved the plans on being satisfied that the carpet area of tenements including FSI or fungible area admeasuring 300 sq. ft. Hence, there is no merit in the contention of the petitioner that the carpet area includes free FSI or fungible area. It is also pertinent to note that Aniket Bharat Gala, Partner of respondent no.8 has filed his affidavit wherein he has categorically stated that the respondent no.8 has not and does not intend to use or take any benefit of fungible FSI of rehab component for sale component. He has stated that the fungible FSI meant for rehab component has been used for rehabilitation buildings only. We are therefore of considered view that the construction is not in breach of modified DCR or any of the conditions of NOC.

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It is to be noted that the petitioners have been receiving transit rent. They have refused to occupy the premises which were ready in all respects since the year 2013, when the majority of the tenants/occupants have already taken possession of rehab tenements. Furthermore, 37 flats have already been handed over to MHADA as per the requirement of the NOC. Therefore it is too late in the day for the

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MEGHA/PPS/P.H.JAYANI

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Madhyavarti Samiti 16_wp_1811_2017.doc petitioners to seek quashing of permission, sanction plans and occupation certificate. Needless to state that granting the relief as prayed for will substantially affect the rights of those tenants/occupants who have already taken possession of rehab tenants.

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Under the circumstances, the petition has no merits and is accordingly dismissed.

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(SMT. ANUJA PRABHUDESSAI, J.) (RANJIT MORE, J.)

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Digitally signed by Prasanna Prasanna Pradeep Salgaonkar Pradeep Date: Salgaonkar 2018.09.26 11:22:20 +0530

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MEGHA/PPS/P.H.JAYANI

Madhyavarti Samiti v. the State of Maharashtra and 7 Others

Case brief

What is this about?

What did the court decide?

Madhyavarti Samiti v. the State of Maharashtra and 7 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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