Full Judgment Text
Non-Reportable
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
CONTEMPT PETITION (CIVIL) NO. 442 OF 2021
IN
CIVIL APPEAL NO. 9878 OF 2016
Jagdish Mavji Tank (Dead) Through Lrs. & Ors.
.... Petitioner (s)
Versus
Harresh Navnitrai Mehta & Ors.
….Alleged Contemnor(s)/
Respondent(s)
W I T H
Miscellaneous Application No. 2028 of 2021
( in Civil Appeal No. 9878 of 2016)
Miscellaneous Application No. 1838 of 2021
( in Civil Appeal No. 9878 of 2016)
J U D G M E N T
L. NAGESWARA RAO, J.
1. The dispute in this Contempt Petition and Miscellaneous
Applications relates to the redevelopment of property situated at Plot
No.231, T.H. Kataria Marg, Mahim, Mumbai also known as Jariwala
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Chawls (“subject property”). As we are not concerned with the
historical background, the antecedent facts are not dealt with in this
judgment. The brief facts that are necessary for the adjudication of
the dispute herein are as follows.
2. The tenants/occupants of the Jariwala Chawl filed a Writ
Petition (Civil) No.2545 of 2006 in the High Court of Bombay for the
following reliefs:
“(a) That this Hon’ble Court be pleased to issue of Writ of
Mandamus or any other writ order or direction in the nature of
mandamus directing Respondent No.1 to permit
redevelopment of the said property known as Jariwala Chawl,
situated at Plot No.231, T.H. Kataria Marg, Mahim, Mumbai
400016 in accordance with the decision recorded in the
Minutes of the meeting dated 2.8.2004;
(b) That this Hon’ble Court be pleased to issue of Writ of
Mandamus or any other writ, order or direction in the nature of
mandamus directing Respondent No.1 to forthwith issue the
NOC for the purpose of redevelopment of the said property
known as Jariwala Chawl, situated at Plot No.231, T.H. Kataria
Marg, Mahim, Mumbai 400016 in accordance with the Minutes
of the meeting dated 2.8.2004;
(c) That Respondent No.6 be directed to forthwith commence
redevelopment of the said property known as Jariwala Chawl,
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situated at Plot No.231, T.H. Kataria Marg, Mahim, Mumbai
400016 in accordance with the provisions of Development
Regulations 33(7) and (9);”
3. On 21.01.2016, the High Court passed an order in the said Writ
Petition to the following effect:
“(a) The Chief Officer of the MBRRB in the first instance
will file an authenticated copy of the list of occupants in
nd
his custody in a sealed cover in this Court on or before 2
February 2016;
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(b) On or before 15 February 2016, both developers shall
also file in sealed covers in this Court and simultaneously
in sealed cover with the Chief Officer, MHADA a list of the
occupants from whom each of them they claim to have
obtained consents along with the necessary supporting
documents;
(c) All the sealed covers shall be retained by the
Prothonotary & Senior Master of this Court until further
orders;
th
(d) Thereafter, by 29 February 2016, the Chief Officer will
fix a meeting at which all these documents will be opened
and scrutinize. That would be done in the presence of the
representatives of these developers;
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(e) It is clarified that if the Chief Officer finds that the same
occupants has given consent to both sides, then the
consent so given will not be taken into account in
computing the 70% requirement for either side;
(f) The Chief Officer will then assess which of the two
Developers has authenticated and bona fide 70% consent.
Further development will be carried out only by the
developer having such confirmed consent;
(g) If neither Developer is able to establish such consent,
further development will be carried out on a priority basis
by MHADA itself through its own resources and for which it
may appoint Architects, Surveyors, Engineers and
Contractors (but not another developer);
(h) The decision of the Chief Officer will be final and
binding on all concerned and will not be called into
question;
(i) The entire exercise in terms of our directions will be
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completed by the end of 15 April 2016 and conclusions
reached by the Chief Officer shall be filed in a sealed cover
with this Court.”
4. In compliance of the directions issued by the High Court, an
exercise was conducted by the Maharashtra Housing and Area
Development Authority (for short “MHADA”) on 05.04.2016 to identify
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which developer/builder has the requisite 70% consent of the
tenants/occupiers to carry out the redevelopment of the subject
property. MHADA reported to the High Court that neither M/s. Raj Doshi
Exports Pvt. Ltd. nor M/s. Matoshree Infrastructure Private Limited had
the requisite 70% consent. The judgment of the High Court dated
21.01.2016 was challenged in this Court initially by M/s Raj Doshi
Exports Private Limited, wherein this Court directed the Chief Officer,
Mumbai Building Repair & Reconstruction Board (‘MBRRB’) to summon a
meeting of the tenants/ occupants for the purpose of ascertaining
whether M/s. Raj Doshi Exports Pvt. Ltd. has requisite 70% consent. A
Report dated 03.09.2016 was submitted by the Chief Officer, MBRRB in
which it was stated that M/s. Raj Doshi Exports Pvt. Ltd has 78.89%
consent of the eligible tenants/ occupants, and therefore the said
developer should be permitted to redevelop the subject property.
5. While disposing of Civil Appeal No.9878 of 2016 on 29.09.2016,
this Court took note of the meeting that was conducted by the Chief
Minister of Maharashtra on 02.08.2004 during which, a decision was
taken for handing over the entire subject property comprising of four
buildings to M/s. Raj Doshi Exports Pvt. Ltd. for carrying out the re-
development of the project in a joint venture with MHADA under
Regulations 33(7) and 33(9) of the Development Control Regulations,
1991 (“DCR”). By the said order dated 29.09.2016, this Court directed
the tenants/ occupants to vacate one building which remained occupied
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within a period of eight weeks. MHADA and all Government authorities
were directed to give necessary NOC/ clearances within eight weeks.
The assurance of M/s. Raj Doshi Exports Pvt. Ltd. that development
would be completed within a period of 42 months after the expiry of
eight weeks was recorded.
6. Pursuant to the said order, a No Objection Certificate was issued
by MHADA on 22.11.2016 in favour of the developer/builder levying
certain conditions which were not agreeable to the developer/builder.
Claiming these conditions to be the hitches in carrying out the re-
development process, Interlocutory Application Nos. 4 and 5 of 2017
were filed by Raj Doshi Exports Pvt. Ltd. for clarification of the
judgement dated 29.09.2016. During the course of deliberations, the
controversy narrowed down to three conditions which, according the
MHADA, were to be examined by this Court. The first condition related
to the land cost of Rs.29 Crores to be paid back to MHADA and the
second related to whether the area which was to be allotted to the
tenants should be 300 sq. ft. or 425 sq. ft. The third point raised by
MHADA was that the decision of the Chief Minister dated 02.08.2004
cannot be relied upon as it stood superseded by various subsequent
events, and therefore it was the NOC given by MHADA which solely
governed the re-development work being carried out by the
developer/builder.
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7. By an order dated 12.04.2017, this Court clarified the
aforementioned three issues. It was held that the MHADA was not
entitled to the land cost of Rs.29 Crores. This Court clarified that
though, the decision of the Chief Minister was to the effect that the
construction/redevelopment was to be a joint venture, it was only this
portion of the decision which was superseded by the order of this Court
dated 29.09.2016 and the remaining portion would still bind the parties.
Therefore, the condition for land cost in the NOC could not be insisted
upon by MHADA. It was further held that the tenants/occupants would
be entitled for 425 sq. ft. as it was only on Court’s insistence that the
developer/builder agreed to such a condition. Accordingly, MHADA was
directed to issue a fresh NOC within four weeks and the undertaking of
M/s. Raj Doshi Exports Pvt. Ltd. that the construction would be
completed within 42 months was also taken on record. While being
conscious of the fact that the project was pending for about three
decades, all the authorities were directed to cooperate so that the
project could be completed expeditiously.
8. Subsequent to the said order dated 12.04.2017, fresh NOC was
issued by MHADA on 09.05.2017 deleting the three conditions as
directed by this Court, along with the other conditions such as
requirement of demarcation and sub-division of the subject property;
issuance of separate property cards and for execution of lease with
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respect to 2807.15 sq. mtrs. of land in favour of the co-operative
housing society in terms of the policy of MHADA among others.
9. After the expiry of the period of 42 months, the tenants/occupants
filed the Contempt Petition (Civil) No.442 of 2021 complaining of non-
compliance of the judgment of this Court dated 29.09.2016 and the
order dated 12.04.2017. It has been alleged by the tenants/occupants
that the builder has not even commenced the construction/
redevelopment of the subject property in spite of the undertaking given
in this Court that the same would be completed in 42 months from
12.04.2017, which period expired on 12.10.2020.
10. On the other hand, Miscellaneous Application No.2028 of 2021 has
been filed on behalf of the MHADA seeking a direction to carry out the
redevelopment of the subject property i.e, four buildings in T.H. Kataria
Marg, Mahim, Mumbai marked as 102A, 102B, 102C and 102D
admeasuring 2975.85 sq. meters. The ground taken in the said
Application is that M/s. Raj Doshi Exports Pvt. Ltd. has not commenced
the construction even after 54 months and since the builder/developer
has miserably failed to carry out re-development, MHADA is ready and
willing to carry out the re-development of the four buildings.
11. M/s. Raj Doshi Export Pvt. Ltd. has filed the Miscellaneous
Application No. 1838 of 2021 for a clarification that the Applicant should
continue to be the owner of the portion comprising of 2807.15 sq.
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meters of the subject property, as the acquisition process for the said
portion by MHADA was not complete. Further, permission was sought
from this Court to redevelop all the three plots together and to execute
deed of conveyance in favour of the proposed society or condominium
in respect of the entire plot admeasuring 6067.96 sq. mts. which
includes the portion of 2807.15 sq. mts. The grievance of the Applicant
in this Application is that there was a deliberate delay on the part of
MHADA in not granting necessary approvals and by imposing
unreasonable conditions in the NOCs. Apart from the other points, M/s.
Raj Doshi Exports Pvt. Ltd. alleged in the Application that the layout was
conditionally approved by the Municipal Corporation of Greater Mumbai
(‘MCGM’) only on 11.11.2019 with a condition to delineate the subject
property into sub plots. This condition was incorporated due to
insistence on the part of MHADA to demarcate the subject property and
for the issuance of separate property cards indicating that MHADA was
the owner of the portion of land admeasuring 2807.15 sq. mtrs.
According to the builder/developer, MHADA cannot insist on the
condition for issuance of separate property cards and for sub-division of
the subject property after the order passed by this Court on 12.04.2017.
During the course of the hearing, an affidavit was filed by the Chief
Officer, MHADA on 14.03.2022 in which it was stated that the condition
of sub-division of the plot shall not be insisted upon in terms of the NOC
dated 09.05.2017 and that the builder could approach MCGM for further
process.
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12. The tenants have been eagerly waiting for the construction of flats
since more than 25 years. After hearing the learned counsel for the
parties on several occasions, we are convinced that there is gross
negligence on the part of the builder in not complying with the
directions of this Court dated 29.09.2016 and 12.04.2017. Ordinarily,
we would have proceeded to hold the builder guilty of Contempt of
Court and to impose suitable punishment. As construction of the
buildings promptly would subserve the interest of the
tenants/occupiers, we directed the builder/developer to file an
undertaking to the effect that the redevelopment project would be
completed in a stipulated time frame. This was done after getting a
clearance from MHADA and MCGM that the condition for sub division of
the plot would not be insisted upon. In compliance of the said direction,
an affidavit was filed on 14.03.2022 by M/s. Raj Doshi Exports Pvt. Ltd.
to the following effect:
“2. Raj Doshi Exports Pvt. Ltd. will undertake to complete the
redevelopment on entire land adm. 6067.96 sq mtrs. being Final
Plot No. 231, Cadastral Survey No. 582 at Mahim Division, situated
at T.H. Kataria Marg, Mahim, Mumbai-400016, known as “Jariwala
Compound” as one single plot and subdivision will not be insisted
upon by MHADA/MCGM.
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3. The Redevelopment will be done in accordance with regulation
33(7) and/or (9) DCPR-2034.
4. The Deponent will submit the plan for amendment before the
MCGM in accordance with DCPR 2034 within 4 weeks from the
date of the order in case this Hon’ble Court will please to direct
the deponent for that and after that the MCGM will be required to
approve the plans within 8 weeks from the date of submission of
such plans. In so doing, the MCGM/MHADA will continue all
concessions, orders, NOCs and permissions granted from time to
time in respect of applicant’s application made over the last 6
years from 2016 and will not vary the same and the Deponent will
not be required to reapply for the same. The Deponent shall
comply only with the terms and conditions as mentioned in the
NOC dated 09.05.2017 issued by MHADA and the conditions of the
previous NOC dated 22.11.2016 which stood deleted by this
Hon’ble Court’s Order dated 12.04.2017, shall not be insisted
upon by MCGM/MHADA.
5. That within 30 days of the receipt of approvals, in case this
Hon’ble Court will please to direct the tenants/occupants to vacate
the premises held by them and on such vacation, the
tenants/occupants of building 102-A shall be paid Rs.
25,000/month to each eligible tenant who has vacated their
respective premises till such time their new premises are ready
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and possession is offered in lieu of their existing area as and by
way of Permanent Alternate accommodation.
6. That all eligible tenants/occupants will be provided appropriate
accommodation admeasuring minimum 508 sq. ft. carpet area
(including fungible area) in redeveloped building. The MCGM shall
allow incentive FSI on the rehab area which will be provided to the
existing tenants i.e. on minimum 508 sq. ft. (inclusive of fungible).
7. That the deponent will execute Permanent Alternate
Accommodation Agreement (PAA agreement) in terms of DCPR
33(7) and/or 33(9) read with appendix 3 within 8 weeks from the
receipt of all approvals.
8.
That the Deponent shall execute conveyance deed of the entire
land admeasuring 6067.96 sq. mtrs., as owners thereof, in favour
of the one or more Co-operative housing society/ies which shall be
formed of existing tenants/occupants and the new flat purchasers
as provided under DCPR 2034 r/w Appendix III ignoring the
acquisition of portion of land admeasuring 2807.15 sq. mtrs. out
of larger land admeasuring 6067.96 sq. mtrs. In pursuance
thereof, the plot will not be required to be subdivided and insisted
by MHADA/MCGM and MHADA will communicate the aforesaid to
MCGM forthwith.
9. That the MCGM will sanction the plans to maintain carpet to built
up area ratio as mentioned in decision dated 02/08/2004 of the
State Government taken in presence of Hon’ble Chief Minister.
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10.
That both MHADA and MCGM will implement orders of this Hon’ble
Court dated 29.09.2016 & 12.04.2017 and decision taken by Chief
Minister on 02/08/2004 and will not raise any objection in
development of project.
11. That the deponent builder and its agencies undertakes through
Chairman to complete rehabilitation of all tenants within 36
months from the date of vacation of all the eligible
tenants/occupants.”
13. An objection was taken by MHADA to the aforementioned
undertaking filed by the builder regarding execution of conveyance
deed by the builder for the entire land admeasuring 6067.96 sq. mtrs.
in favour of the proposed Co-operative Housing Society. While
objecting to this undertaking, a direction was sought to the builder to
facilitate execution of Lease Deed between MHADA and the proposed
Co-operative Housing Society for the portion of land measuring
2807.15 sq. meters on completion of the project. According to
MHADA, 2807.15 sq. meters of land out of the 6067.96 sq. meters was
acquired by MHADA and the acquisition proceedings had attained
finality. It is the case of MHADA that the builder/developer has been
given the land acquired by MHADA only for construction and
redevelopment, while the ownership of the same still vests with
MHADA. Therefore, it is MHADA which has the right to execute the
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Lease qua 2807.15 sq. meters of land with the proposed Co-operative
Housing Society and the builder is free to execute conveyance deeds
on freehold basis for the remaining portion of the land. It was
contended on behalf of MHADA that neither the decision of the Chief
Minister nor the orders of this Court dated 29.09.2016 and 12.04.2017
would help the builder/developer in claiming title over the entire
subject property, including the land acquired by MHADA. It was also
contended that the builder/developer has not disputed that 2807.15
sq. meters was acquired by MHADA and that the builder cannot now
claim any right over the said land.
14. The claim of MHADA for title over 2807.15 sq. meters of land is
unsustainable. One of the objections raised by MHADA before this
Court which was rejected by the order dated 12.04.2017 was that the
builder has to pay back the land cost of Rs. 29 Crores for the land
admeasuring 2807.15 sq. mtrs. The second objection was that the
project was to be a joint venture as was agreed during the meeting
conducted by the Chief Minister. In the order dated 12.04.2017, this
Court has categorically held that a portion of the decision of the Chief
Minister stood superseded by subsequent events and by the order
dated 29.09.2016 in as much as the re-development of the subject
property was to be carried out by builder/developer solely. In other
words, it was held that the entire property was to be handed over to
the builder/developer and that MHADA was not entitled to the land
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cost of Rs. 29 Crores. As there can be no manner of doubt about the
said finding recorded by this Court in the order dated 12.04.2017, it is
totally unreasonable on the part of MHADA in insisting that it should
be permitted to execute Lease Deed in favour of the proposed Co-
operative Housing Society qua 2807.15 sq. mtrs.
15. As mentioned above, the builder is guilty of delaying the
construction by not taking suitable steps in complete disobedience of
the orders passed by this Court based on its undertaking. Equally,
MHADA is also responsible for creating hurdles, initially by imposing
unreasonable conditions of sub division of the plots and issuance of
property cards in the NOC dated 22.11.2016 and later in insisting that
MHADA still has ownership over 2807.15 sq. meters of land. We are of
the considered opinion that the builder as well as the concerned
authorities of MHADA are guilty of non-compliance of the directions of
this Court. They are warned that any further disobedience of the
directions given by this Court shall be viewed seriously. The
undertaking filed by the builder/developer on 14.03.2022 is taken on
record which shall be scrupulously complied with by all concerned.
16. With the aforesaid directions, the Contempt Petition is closed
with liberty to the tenants/occupants to approach this Court in case
of non-compliance of the directions given above. The other
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Miscellaneous Applications filed by M/s Raj Doshi Exports Pvt. Ltd.
and MHADA are disposed of.
..................................J.
[ L. NAGESWARA RAO ]
..................................J.
[ B.R. GAVAI ]
New Delhi,
April 19, 2022.
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