Full Judgment Text
2012:BHC-OS:8337-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) No.359 of 2012
1. Mrs.Radhika George,
Age 45 yrs, Occ.Service, residing at
Tenement No.7/25
2. Mr.Niteen Bhaskar Prabhu
Age 62 yrs, Occ.Service, residing
at Tenement No.8/29
3. David Moses,
Age 54 yrs, Occ.Services
Residing at Tenement No.6/24
4. Champak P. Poladia
Age 63 yrs, Occ.Service, residing
at Tenement No. 5/20.
5. Kanti D. Mahida
Age 55 yrs, Occ.Service,
residing at Tenement No.5/18
6. Pandurang G. Mayadeo
Age 77 yrs, Occ.retired
Residing at Tenement No.1/2
7. Mrs.Keena Desai
Age 33 yrs, Occ.housewife,
Residing at 8/31.
8. Mrs.Hemlata D. Sawant,
Age 72 yrs, Occ.housewife,
Residing at 7/27.
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The Petitioner nos.1 to 8 having
their tenements at CTS No.1269,
Chittaranjan Nagar Vidya Co-op.
Housing Society Ltd, Rajawadi,
Ghatkopar (East)Mumbai-77. ... Appellants
(Orig.Petitioners)
VERSUS
1. Maharashtra Housing and Area
Development Authority; Grih
Nirman Bhavan, Kalanagar,
Bandra (East),Mumbai – 51
Through it’s Chairman
2. The Executive Engieneer,
Ghatkopar Division, (MHADA)
Griha Nirman Bhavan,
Kalanagar, Bandra (East)
Mumbai 400 051.
3. Deputy Chief Engineer,
(BP) ES, Municipal Corporation
of Greater Mumbai. Near Raj
Legacy Building, Paper Mill
Compound, LBS Marg,
Vikhroli(W), Mumbai 400083.
4. The Chairman, Chittaranjan Nagar
Vidya Co-op. Housing Society, officer
at Chittaranjan Nagar,Rajawadi,
Ghatkopar(E), Mumbai 400077.
5. The Secretary, Chittaranjan Nagar
Vidya Co-op. Housing Society, officer
at Chittaranjan Nagar,Rajawadi,
Ghatkopar(E), Mumbai 400077.
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6. Tanishq Builders,
Through it’s Partner
Paresh Shah, Office at A/103,104,
Haveli Apts, Navneet Prabhu,
Haveli Compound, M.G.Road,
Ghatkopar (E), Mumbai – 77. ... Respondents
(Orig.Respondents)
...
Mr. Rajiv Kumar, Senior Advovate with Sheetal Kumar, Amit
Karkhanis and Priyanka Davka i/b Kay Legal and Associates for the
appellants.
Mr.P.G. Lad, learned AGP for respondent nos.1 and 2.
Mr.Aspi Chinoy, Senior Advocate with Mr.Ranjit Thorat i/b
Prabhanjan Gujar for respondent no.4.
Mr.P.K. Samdani, Senior Advocate i/b Prabhanjan Gujar for
respondent no.5.
Mr.Soli Cooper, Senior Advocate with Mr.R.D. Soni i/b Mr.Bipin
Joshi for respondent no.6.
CORAM : MOHIT S. SHAH, C.J. &
N.M. JAMDAR J.
JUDGMENT RESERVED ON : 20 JUNE 2012
JUDGMENT PRONOUNCED ON : 4 JULY 2012
JUDGMENT :- (Per - N.M.Jamdar J.)
1. The appellants who are the original petitioners in Writ Petition
(Lodging) No.2529 of 2011 have filed the present appeal challenging
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the order passed by the learned Single Judge dated 24 April 2012
disposing of the Writ Petition with certain directions. The appellants,
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in the Writ Petition had challenged the order of the Executive
Engineer of MHADA - respondent no. 2 in the proceedings under
section 95A of Maharashtra Housing and Area Development
Authority Act, (for short ‘The Act”) directing the appellants to vacate
the premises in their occupation. The appellants are aggrieved by the
order of the learned Single Judge inasmuch as it does not grant
protection to the appellants in respect of their possession over the
structures in question.
2. The subject matter of dispute is redevelopment of the property
bearing CTS No.1269 at Rajawadi, Ghatkopar (East). The
petitioners are owners of tenements situated therein and members of
Chittaranjan Nagar, Vidya Co-operative Housing Society (the
Society) Limited. The Chairman and Secretary of the Society are
respondent No.4 and 5 in this Petition. The Society had initiated
redevelopment of the structures and had resolved to get the same
done through respondent no.6 who is a developer. The appellants
have opposed the redevelopment.
3. The events leading upto the filing of the Writ Petition have
been enumerated in detail by the learned Single Judge in the
impugned judgment from paragraph no.4 to 67 and the said events
need not be reproduced in this judgment in detail again. Following
important dates may be noticed for the purpose of disposal of this
appeal.
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4. Initially, 32 tenements were allotted to the employees of
Bharat Petroleum, erstwhile Burmah Shell by the then Commissioner
for Housing on the land bearing CTS No.1269 Village Kirol at-
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Taluka Ghatkopar in and around the year 1954. On 18 May 1987,
the Government of Maharashtra came out with a policy permitting
conversion of such tenement holders as owners. The appellants took
benefit of the scheme and converted their occupation over the said
tenements to ownership basis. The 32 allottees came together and
formed Chittaranjan Nagar Vidya Co-operative Housing Society on
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7 February 2000. On 26 May 2005, MHADA executed a lease
deed in favour of the Society and also entered into a deed of sale.
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On 12 March 2006, the Society passed a resolution for
redevelopment of the Society and appointed the respondent no.6 as
the developer. Pursuant to the resolution, on 19 March 2006, a
Memorandum of Understanding was entered into for redevelopment
of the Society in favour of respondent no.6. The appellants opposed
the said resolution and did not agree for redevelopment through
respondent no.6 and asserted that they would redevelop the premises
in their occupation on their own and sought for tit-bit land for that
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purpose. On 7 April 2006, the Estate Manager of the Board issued a
letter to the Society that neither tit bit nor independently buildable
land could be allotted to the individual members and can only be
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allotted to the Society. On 18 June 2006, pursuant to the resolution
and Memorandum of Understanding, development agreement was
entered into between the Society and respondent no.6 which was
signed by 19 members of the Society. The appellants filed a suit in
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City Civil Court bearing No.2080 of 2006 challenging the letter
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dated 7 April 2006. The resolution dated 12 March 2006 appointing
the respondent no.6 as developer was challenged by the appellant in
the Co-operative Court, Bombay by case bearing No.CC/1115 of
2006. The appellants also filed a suit No.5556 of 2006 challenging
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the Memorandum of Understanding dated 19 March 2006 in favour
of respondent no.6. The appellants did not get any interim order in
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all these proceedings. On 19 September 2006, the Society
submitted a proposal to the Chief Officer of MHADA for
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redevelopment. On 17 April 2008, an offer letter was issued by
MHADA to the Society and the Society was called upon to pay a
sum of Rs.9,21,10,875/-. On 19 July 2008, NOC for redevelopment
under Development Control Rules of Bombay (DCR) was issued by
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MHADA in favour of the Society. Thereafter, on 6 December 2008,
the Development Control Regulation 33(5) was amended and the FSI
available to such projects was increased from to 2.00 to 2.5. It was
also provided that consent of 70% of the members will be necessary
for redevelopment and provision should be made by holder of the
NOC in respect of the transit accommodation of the occupants.
Section 95A of the Act of 1976 was made applicable for getting the
tenements vacated from members of societies who were in minority
and opposed to redevelopment.
5. Since some portion of the land in occupation of the members
of the Society was demolished and since the appellants were resisting
redevelopment of the property and inspite of instituting proceedings
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in Civil Court and Co-operative Court had not obtained any interim
order, the Society filed an application before the Executive Engineer
of MHADA for taking action under section 95A of the Act of 1976.
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Show cause notices were issued to the appellants on 16 May 2011.
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An order was passed under section 95A on 12 August 2011 and by
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virtue of order dated 21 September 2011 of this court, fresh hearing
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was to be given to the appellants. Accordingly, on 1 October 2011,
notices were again issued by the Executive Engineer to the appellants
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for preliminary date of hearing. On 12 October 2011, schedule for
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filing replies and rejoinder was given to the appellant. On 3
November 2011, advocates appeared on behalf of the Society,
developers and the appellants and addressed the Executive Engineer
on various issues.
6. The appellants contended before the Executive Engineer that
they have filed a suit in the City Civil Court as well as a dispute in
the Co-operative Court and during the pendency of the said
proceedings, the Society has executed documents in favour of the
developer. It was contended that since the challenge raised by the
appellants is pending in City Civil Court and Co-operative Court,
proceedings under section 95A of the Act of 1976 should not
continue. It was also argued by the appellants that the proposed
development includes a piece of land which is already acquired by
the Railways and therefore, lease deed could not have been executed
by the MHADA in favour of the Society in respect of the acquired
land. The appellants also urged that since 9 tenements out of 32 are
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located on the land acquired by Railways such 9 members cannot
participate in the redevelopment. Since their vote cannot be counted
70 % members cannot be considered have not given their consent.
The appellants contended that section 95-A cannot operate
retrospectively. The Society and the Developer countered the
submissions. The Executive Engineer found that 70% members have
given their consent to redevelopment scheme as the occupants on the
acquired land continue to be members. The Executive Engineer also
held that the acquisition was not complete as physical possession was
not handed over by the Collector to the Railways and compensation
was also not paid. The Executive Engineer held that in any case the
redevelopment was being sought in respect of area of 5532 sq.metres
and not in respect of the entire property. The executive engineer was
satisfied that premises were in order and transit camp
accommodation is provided for. The Executive Engineer thus by
order dated 11 November 2011 proceeded to direct the appellants to
vacate the premises and shift to the transit camp accommodation.
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7. The operative portion of the order dated 11 November 2011
reads thus:
“The Non-Cooperative Members No.1 to 8 are hereby
directed to vacate the tenements in their use, occupation
and possession and to shift to the Transit Camp
accommodation as described in the Show Cause Notces
dated 16.5.2010, within a period of 7 days from the date
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of receipt of this Order, failing which action for their
summary eviction under Section 95A of the MHADA
Act, 1976 be taken against them.
Since the tenement of Non Cooperative Member
No.9 is demolished on 25.8.2008, the above proceedings
under Section 95A of the MHADA Act, 1976 cannot
proceed against him and the same are accordingly
disposed.”
8. Thereafter, the appellants filed Writ Petition (L) No.2529 of
2011 challenging the order passed by the Executive Engineer dated
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11 September 2011. The appellants initially sought three
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substantive reliefs viz. that the NOC dated 19 July 2008 be declared
as illegal, scheme of redevelopment be declared as illegal and the
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order dated 11 November 2011 be quashed and set aside.
Thereafter, by way of a chamber summons, the prayer regarding
challenge to NOC was deleted.
9. Before the learned Single Judge, the appellants raised broadly
the same contentions which were raised before the Executive
Engineer. The learned Single Judge found that the Executive
Engineer had followed basic principles of natural justice and
adequate hearing was given to the appellants. The learned Single
Judge held that though the appellants have approached the Civil
Court and Co-operative Court, no interim orders were obtained by
the appellants against proceeding with the project. The learned
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Single Judge took note of an affidavit dated 9 January 2012 filed by
the Deputy Engineer in which the Deputy Engineer clarified that out
of total area of 7806.72 sq.metres allotted to the Society, an area
admeasuring 1618.56 sq.metres area was affected by the acquisition
of the Railways and thus balance plot available was 6186.16 and
NOC is being granted only to develop 5532.49 sq.metres and
therefore, the contention of the appellants regarding acquisition is
baseless. It was also pointed out in the affidavit that the reference in
the NOC dated 19 July 2008, to the plot No.1268(part) and
1269(Part) is due to inadvertence and redevelopment will take place
on plot CTS No.1269(Part) only. The learned Judge found 22 out of
32 members have already vacated the premises and no case for
interference under Article 226 was made out. The learned Judge
however held that the effect of the acquisition by Railways needs to
be ascertained and boundaries need to be demarcated, but the
redevelopment need not be held up for that purpose.
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10. The learned Single Judge by a detailed judgment dated 24
April 2012 disposed of the writ petition. The learned Single Judge
summarized his conclusions and proceeded to pass an order in
paragraph no.103 of the judgment which reads as follows.
“CONCLUSIONS:
a) The proceeding under Section 95-A of MHADA
Act as initiated is valid and maintainable.
b) The action and authority to decide the issues/
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controversy is well within the scope and jurisdiction of
Section 95-A read with the Regulations.
c) The sanctioned scheme based upon then existing
70% strength is correct and valid. All the parties and
members are bound by the approved scheme and to be
implemented in accordance with law.
(d) The NOC is valid and binding and also all the
subsequent actions based upon the same.
(e) The scheme is valid and binding. Certain
corrections will not affect the scheme based upon the
sanctioned/approved NOC. However, it is subject to
following order:
O R D E R
i) The order dated 11 November 2011 is quashed and
set aside only for deciding the effect of acquisition
of part of the property of the Central Railway; and
also the actual area available for the project and the
scheme and its effect on the area of the occupants
and/or to the Society members and the saleable
area for the developer. The rest of the order is
maintained.
ii) The concerned Respondents are at liberty to
proceed with the project phase-wise or part-wise in
accordance with law, subject to certain and/or
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necessary corrections of area/plot/map and plan of
the scheme, if any.
iii)Respondent No.2 i.e the Executive Engineer,
Ghatkopar Division, Mumbai Housing and Area
Development Board, to decide the above issued
within a period of 6 weeks after giving an
opportunity of being heard to all the parties.
iv) Petition is partly allowed.
v) There shall be no order as to costs.”
11. Since the Executive Engineer was directed by the learned
Single Judge by order dated 21 April 2012 to decide the effect of
acquisition of the part of the property, he proceeded to do so and
passed an order on 5 June 2012. This order has been placed on
record by the appellants in Notice of Motion filed in the present
appeal. The Executive Engineer gave hearing to the appellants and
the private respondents and came to the conclusion that gross area
allotted under NOC is 7806.72 sq.meters and physical area available
is 6188.16 sq.meters and out of this, permission is granted in respect
of only 5532.49 sq.mts. Thus the acquisition of the part of the
property by the Central Railway on the redevelopment project. The
Executive Engineer came to the conclusion that the only correction
that is required to be carried out is in the NOC dated 19 July 2008
where CTS 1268 (Part) and 1269 (Part) are mentioned out of which
reference to 1268 (Part) should be deleted.
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12. Being aggrieved, the appellants are before us in the present
appeal.
13. We have heard learned counsel appearing for the parties at
considerable length. Shri Rajiv Kumar, Senior advocate for the
appellants firstly submitted that the directions passed by the learned
Single Judge are self contradictory. Once the learned Single Judge
came to the conclusion that ascertaining the exact area and
measurements of the plot was mandatory and the requirement of the
clear description of the plot with clearly defined boundaries goes to
the root and needs to be considered before going further with the
project, the learned judge ought to have protected the possession of
the appellants. The learned counsel for the appellants submitted that
this observation regarding description of the plot is in favour of the
appellants and it has not been challenged by the respondents by filing
an independent appeal. The learned counsel for the appellants
contended that since a part of the land was acquired by the Railways,
it should have been treated as a different plot and the boundaries thus
ought to have been drawn. The primary contention of the appellants
against the order passed under section 95A is that the Executive
Engineer did not consider the effect of the acquisition of part of the
property in proper perspective. According to the learned counsel for
the appellants, the FSI of the land acquired by the Railways could
not have been utilised and furthermore, the 9 tenements which stood
on the acquired land could not have been counted for the purpose of
ascertaining the consent 70% of members. The learned counsel also
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submitted that the NOC granted on 19 July 2008 on the face of it is
not valid as it pertains to plot no.1268(Part) and 1269(Part) and the
explanation that it was due to inadvertence is purely an after-thought.
The learned counsel submitted that the speed at which the authorities
moved for demolition of some part of the property as well as the
changing stands of the officers of the authorities clearly show a
collusion on their part with the developer and the society. According
to the learned counsel, the action of the authorities amounts to
distribution of State largesse without justification. Reliance is placed
on the judgment of this Court in the case of M/s Lokhandwala
Infrastructure Pvt. Ltd. Vs Municipal Corporation of Mumbai &
others reported in 2008(5) ALL MR 743 and the judgment in the case
of Shree Oswal Builders Vs State of Maharashtra 2008(3) ALL MR
529.
14. The learned counsel submitted that in fact, the FSI of the
acquired land was consumed by the developer and the Society and
the developer got the plan sanctioned showing the acquired area as
part of the proposal which is clear from the subject matter of the
NOC which was granted. Learned counsel further submitted that
when the NOC was granted only 19 members had signed which is
not a compliance to the requirement u/sec.95-A of the Act of 1976.
The position as on the date of NOC should be seen as the section
95A is not retrospective. The learned counsel by relying on
judgments of Apex Court in the cases of (I) Union of India and
others vs Mohammad Ramzan Khan -1991 (1) SCC 588; (ii) Prakash
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Ratan Sinha Vs State of Bihar and others -2009 (14) SCC 690;
Hindustan Petroleum Corporation Ltd vs Darius Shapur Chenai and
others -2005 (7) SCC 627, contended that the Executive Engineer
while deciding an application u/sec.95A of the Act of 1976, has a
duty to act judicially and if he fails to do so this Court can set aside
the said decision in its power of judicial review. The learned counsel
also submitted several documents which were relied upon by the
Executive Engineer in his order were not supplied to the appellants
and thus there was a serious breach of principles of natural justice
and consequently, the order of the Executive Engineer is void. A list
of the documents which were not made available to the appellants is
enumerated by the appellants in paragraph no.34 of their appeal
memo. The learned counsel also urged that a tenement which was in
the name of one Harminder Singh ought to have been considered
while arriving at the figure of 70% as even though the occupant had
expired, his estate had survived. It was also urged by the appellants
that their case is not equivalent to a slum redevelopment scheme and
reliance placed by the learned Single Judge on his own judgment in
Shiv Krupa Builders and Ors vs. State of Maharashtra, 2011 (5) BCR
434 was misplaced. The learned counsel submitted that the
appellants desired to develop their own property by themselves and
not through any developer and by collusion and fraud on the part of
the authorities, the appellants are being deprived of their fundamental
rights.
15. The learned counsel further relied on an order passed by
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Division Bench of this Court in Writ Petition No.160 of 2008 in
respect of acquisition of the property by the Railways that the
acquisition is complete and thus, the Executive Engineer could not
have come to the conclusion that the acquisition was not complete
and only paper possession was taken. The learned counsel as relied
upon the letter issued by the Municipal Corporation dated 10 October
2008 which according to the learned counsel protects the possession
of the appellants. The learned counsel finally submitted that the
argument of prejudice to the 22 tenement holders cannot be held
against the appellants as those tenement holders have decided to
vacate the premises on their own accord. The appellants in short, re-
iterated their submissions made before the Executive Engineer and
the learned Single Judge.
16. On the other hand, Mr.Aspi Chinoy, Senior Advocate
appearing for the Chairman of the Society submitted as under :
The scope of section 95 should be kept in mind before
deciding the grievance of the petitioner. The scope of section 95-A
of the Act is limited and moment it is demonstrated to the authorities
that 70% members have given their consent and there is a valid NOC
to the project and the developer has made suitable arrangement for
shifting the occupants to a transit accommodation, no further enquiry
is necessary. In the present case, all the ingredients were satisfied
and there was no reason to stall the redevelopment any further. Any
further delay in implementation of the project will be highly
inequitable as 22 out of 32 members have already shifted to the
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transit accommodation in the year 2006 and are awaiting allotment of
their new house. The redevelopment was in the interest of the
members of the Society as the developer had promised to give newly
constructed houses admeasuring 1800 sq.ft. As against 450 sq.ft.
previously occupied in addition a sum of Rs.17 lakhs to each
occupant. This being a collective decision for the benefit of the
Society, it must be honored by all the members. Out of balance area
of 6188 sq.m what was allowed to be used was only 5532 sq.meters,
thus, even if the land acquired by the Railway is kept aside, the FSI
which was available was still sufficient. The said position has been
placed on record by the affidavit filed by the Deputy Engineer in the
Writ Petition.
17. Mr.Chinoy also made a categorical statement that no part of
the land which was acquired by Railways be utilised for the purpose
of construction in the redevelopment project. It was also urged that
the mentioning of land [1269(Part) and 1268(Part)] in the subject
matter of NOC was a clear clerical error as the IOC mentions only
1269(Part) and same position was re-iterated in the order passed
under section 95-A of the Act. Thus, according to the learned
counsel, this was not an after-thought but a genuine error. As far as
consent of 70% members is concerned, the learned counsel submitted
that the members who had occupied structures acquired by Railways
continued to be members and their membership does cease
automatically. According to the learned counsel, when the action
under section 95-A is to be taken, that is the time the authority has to
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access whether 70% members have given their consent or not and in
present case 22 out of 31 have given their consent. As far as one
member i.e who had expired, the dispute between his heirs was still
pending and there was a status quo order restraining both the heirs
from dealing with the property and thus, the said member for the
purpose of ascertaining the majority under section 95A did not exist
and since 22 out of 31 members had given consent, it was a
compliance under section 95-A of the Act. The learned counsel
further submitted that the letter of the Municipal Corporation relied
upon by the petitioners to show that their premises are not to be
demolished was not the way it was construed by the petitioners. The
said letter according to the learned counsel only stated that the
approval will be given by the Municipal Corporation only after steps
as per the DCR 1991 are taken are , which means as per section 95-A
of the Act of 1976. The learned counsel also urged that untold
hardship is being caused to the 22 members who have vacated their
homes by the adamant attitude of the petitioners and he urged that
the Society be permitted to resume the redevelopment activity
forthwith.
18. Mr.Samdani, Senior advocate appearing on behalf of the
Secretary of the Society adopted the arguments made by Mr.Chinoy
and in addition submitted that the appellants in Writ Petition had
deleted the challenge to the NOC and once the challenge to the NOC
was deleted from the purview of the writ petition, only the action
under section 95A remained to be tested as the prayer is regarding to
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challenge to a redevelopment scheme cannot be examined in
vacuum. According to the learned counsel that the prayer was
deleted because it was subject matter of a suit and the petitioner had
failed to obtain any interim orders in the said suit and also in the
dispute filed in the co-operative court. The learned counsel also
placed reliance on the judgment of this court in case of Paygonda
Survgonda Patil and others v. Jingonda Surgonda Patil and others
reported in AIR 1968 Bom 198 to contend that, even if there are
minor infringements of legal provisions, writ petition need not be
entertained if substantial justice is done.
19. Mr.Cooper, Senior Advocate along with Mr.Soni, appearing
for the developers submitted that the developer had done nothing
wrong and had acted diligently. They have obtained all the
permissions as required, has provided for transit accommodation, has
shifted the 22 occupants to the transit accommodation and is paying
a monthly rent which is amounting to Five lakh rupees a month. It
was also pointed the cost incurred by the developer so far is in excess
of Rs.20 crores upon which they have to pay interest. The learned
counsel also urged that the developers being a business venture has
invested money, time and effort and the delay in the project from the
year 2006 onwards at the behest of the appellants is causing huge
loss to them.
20. Before we examine the rival contentions what needs to be kept
in mind is that the proceedings before the learned Single Judge arose
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from an order passed under section 95-A of the Act. What was filed
before the learned Single Judge was a Writ Petition challenging the
order passed under section 95-A of the Act and it is the exercise of
the writ jurisdiction of the learned Single Judge in respect of order
passed under Section 95-A that is in question before us.
21. Section 95-A is enacted in respect of redevelopment of old
tenements. Provisions of the Development Control Rules also came
to be amended. Section 95A and DCR 33(5)(7) reads as under -
“95-A Summary eviction of occupiers in certain cases. - (1)
Where the owner of a building or the members of the
proposed co-operative housing society of the occupiers of the
said building, submits a proposal to the Board for
reconstruction of the building, after obtaining the written
consent of not less then 70 per cent of the total occupiers of
that building and a No Objection Certificate for such
reconstruction of the building is issued by the Board to the
owner or to the proposed co-operative housing society of the
occupier, as the case may be, then it shall be binding on all the
occupiers to vacate the premises:
Provided that, it shall be incumbent upon the holder of such
No Objection Certificate to make available to all the
occupants of such building alternate temporary
accommodation.
(2) On refusal by any of the occupant to vacate the premises
as provided in sub-section (1), on being approached by the
holder of such No Objection Certificate for eviction of such
occupiers, it would be competent for the Board,
notwithstanding anything contained in Chapters VI and VII of
this Act to effect summary eviction of such occupiers.
(3) Any person occupying any premises, land, building or
structure of the Board unauthorisedly or without specific
written permission of the Board in this behalf shall,
notwithstanding anything contained in Chapters VI and VII of
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this Act, be liable for summary eviction”.
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“DCR 33(5)(7) -In any Redevelopment scheme where the Co-
operative Housing Society / Developer appointed by the Co-
operative Housing Society has obtained No Objection
Certificate from the MHADA / Mumbai Board thereby
sanctioning additional balance FSI with a consent of 70% of
its members and where such NOC holder has made provision
for alternative accommodation in the proposed building
(including transit accommodation) then it shall be obligatory
for all the occupiers / members to participate in the
Redevelopment Scheme and vacate the existing tenement for
the purpose of redevelopment. In case of failure to vacate the
existing tenements, the provisions of section 95A of the
MHADA Act mutatis mutandis shall apply for the purpose of
getting the tenements vacated from the non co-operative
members”.
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22. The object of the legislature by introducing the amendments
was to give an opportunity to the occupants of old structures who
were unable to develop them for lack of resources to move to better
accommodation at the same time create additional housing for
general consumption. The State Government revised the FSI and
encouraged housing development schemes by MHADA either by
itself or by the housing societies. Section 95-A was enacted to
enable speedy implementation of such redevelopment schemes. The
provision is to ensure seamless implementation of the project. When
the housing societies decide to get their premises redeveloped, care
should be taken that its members should have premises to stay when
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22
the original building is demolished and is being reconstructred. The
members should not be left in lurch being out of shelter while the
redevelopment goes at its own pace. Thus, what the authority needs
to examine is whether its a collective decision i.e. whether 70% of
members have consented, whether permissions like the NOC are in
order and whether the developer has provided adequate transit
accommodation. Once the authority under section 95-A finds that
these requirements are fulfilled, all that it does is to direct the
members to shift to the transit accommodation awaiting
reconstruction.
23. Action under section 95A does not result in determining rights
of the parties per-se. The authority under section 95-A does not
finally determine or terminate any ownership rights of the members
of such societies. The provision is not intended to provide a forum to
adjudicate the dispute inter se between the Society, members and the
developers. Those disputes will have to be adjudicated in competent
Courts of law. The proceedings under section 95-A of the Act,
cannot be converted into a full fledged judicial proceedings as if the
authority is trying a civil suit. It also needs to be noticed that the
authority i.e. executive engineer which passes the order under section
95-A is not a judicial officer equipped to decide complicated
question of law relating to dispute as to title etc.
24. The proceedings under section 95-A cannot be converted into a
civil trial as is sought to be done by the petitioners. If the members
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23
of the Society obtain any judicial orders restraining the Society or the
developer from acting in furtherance of their intention to redevelop,
then obviously the authority under section 95-A will be bound by
such judicial orders. In the present case, even though the appellants
approached the Civil Court as well as the Co-operative Court in the
year 2006 challenging the decisions of the Society to redevelop the
property, they did not secure any interim orders for last six years.
The Executive Engineer under 95-A thus is not expected to arrogate
himself the jurisdiction vested in Civil Court and Co-operative Court
and decide the issue raised by the appellants in those proceedings.
Once the jurisdictional facts before the Executive Engineer were
satisfied and that there was no restraint order, the authority under
section 95-A had no other option, rather was under obligation to
direct the appellants to move to transit accommodation to facilitate
the redevelopment.
25. The scope of section 95 being thus understood, it needs to be
emphasized that legislature has not provided any appeal from the
order passed under section 95-A. The petitioners approached the
learned Single Judge invoking Article 226 of the Constitution of
India. The scope of the exercise of the writ jurisdiction is now well
settled. The Court may decline to exercise writ jurisdiction if it
finds that the substantial justice has been done by the order
impugned before it. It is not necessary for each and every infraction
of law that a writ must issue. The Court is required to keep in mind
whether principles of natural justice were followed and whether the
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24
authority acted within its jurisdiction, and whether any failure of
justice has occasioned. In the appeal, what we are required to
examine is whether the exercise of the writ jurisdiction by the
learned Single Judge is perverse and whether the action of the
authority in requiring the appellants to move to transit
accommodation can be termed as failure of justice. This being the
scope of the Writ appeal before us, though the learned counsel for the
appellants has argued numerous points in detail before us, which
could be urged only if there was a statutory appeal from section 95-A
we granted full opportunity to the appellants in order to satisfy
ourselves whether any failure of justice has occasioned by the
impugned orders.
26. The first point that is whether 70% members had given their
written consent to the present redevelopment proposal as required
u/sec.95A of the Act. The Executive Engineer considered this issue
at length as it is one of the criteria that need to be considered u/sec.
95A of the Act. It is an admitted position that the Society had 32
members and out of the 32 members, one member has expired. 22
members have given their consent in writing. It is the contention of
the appellants that 9 members were located on the land which was
affected by Central Railway Expansion Project. These members
according to the appellants, cannot be considered for the purpose of
counting the 70 per cent requirement as they ceased to have any
right. It was pointed out by the Society to the Executive Engineer
that 8 out of 9 members, after signing the development agreement
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25
had shifted to the transit camp provided to them. One member out of
the nine was a member who had opposed the redevelopment. The
Executive Engineer and the learned Single Judge have both held that
the said members whose structures were effected by Railways
Expansion Programme cannot be considered to have ceased to be
members of the Society. As long as the members of the Society
continue to be on the register of membership of the Society either
they will have to be removed from membership by action taken by
the Society or by an order of the competent authority. The
Maharashtra Co-operative Societies Act, lays down the procedure for
removal of a member from the Society. Admittedly, no such action
has been taken. In fact, the appellants even though approaching the
Co-operative Court have failed to obtain any order in that regard.
The members of the Co-operative Society will lose their membership
only as per the provisions of the Maharashtra Co-operative Societies
Act. Therefore, for all practical purposes while counting the 70% of
members, u/sec.95A, said members will have to be counted. The
Executive Engineer has thus correctly held that, since 22 members
have accepted the redevelopment proposal, the requirement as regard
section 95A of the Act, stands satisfied. No perversity can be found
with the finding of the Executive Engineer and the Single Judge in
this regard.
27. It was urged that membership of Harminder Singh who had
expired was not counted while considering, whether 70% members
have agreed for redevelopment or not. It was urged before the
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26
Executive Engineer and the learned single Judge and also before us
that the estate of said Harminder Singh continues to be present and
thus, if his tenement is counted then only 22 out of 31 members have
given their consent, which would be less than 70%. The Executive
Engineer has noted that the heirs of this Harminder Singh have been
restrained by an order of the Court from dealing with the property in
any manner. If that be so there is no person who could, in law, give
or withhold permission for redevelopment of the property on behalf
of the said member. This contention is rightly rejected by the learned
Single Judge.
28. Much capital has been made by the appellants regarding the
mention of two lands, 1269(Part) and 1268 (Part) in the subject
matter of the NOC. It has been clarified by the MHADA by filing an
affidavit before the learned Single Judge that mentioning 1268(Part)
in the subject matter of the NOC was a clerical mistake. Though as
contended by the appellants such stand was taken belatedly, it cannot
be brushed aside on that ground alone, if the examination of other
relevant documents shows that it was indeed a clerical mistake. The
Intimation of Disapproval (IOD) clearly shows that it was issued in
respect of the CTS No.1269(Part) only. Thus, it is very clear that the
mentioning of 1268 (Part) in the NOC was clearly a clerical error.
29. The contention regarding the land under acquisition of the
Railways being counted towards redevelopment project when it
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27
cannot be done so, is without any substance. The Executive
Engineer in his order has noted that the perusal of plans submitted to
the Corporation shows that the redevelopment is sought only of 5532
sq. metres. The MHADA in its affidavit has placed on record that
out of 7806.72 sq.metres land, 168.56 metres was affected by
Railways Expansion Programme, thus leaving 6,188.16 metres were
available for the Society for redevelopment and FSI available on
such land. The NOC was only in respect of 5532.9 sq.metres and
thus, even otherwise if the land acquired by Railways is taken into
consideration the redevelopment is taking place for an area lesser
than balance area left after deducting the acquired land. Condition
20 of the NOC dated 19 July 2008 directs the Society to submit an
undertaking that no construction will be done on the land affected by
Railways and the said land will be handed over to the Railways as
and when demanded. Condition 20 reads as under -
“An undertaking should be obtained from the society
mentioning that no construction will be allowed on the land
affected by Railways proposed acquisition and this land will
be handed over to Railways as and when it will be demanded
from Railway Authority.”
30. The learned counsel for the respondents No.5 and 6 have
reiterated their assurance that no part of the land which is effected by
Railways Expansion Programme will be taken into consideration in
respect of the re-development and have contended even after the land
which is subject matter of Railways Expansion Programme is kept
aside, enough area as FSI is available to the Society as well as the
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28
developer to carry out the redevelopment project. The appellants
have simply tried to build their case on few errors in the document
here and there to stall the redevelopment project.
31. The appellants had challenged the Resolution of the Society
and the memorandum of understanding entered into with the
developer by filing a suit and proceedings in the Co-operative Court.
In both these proceedings which are pending since 2006 the issues
raised by the appellants could have been agitated and an order in
favour of the appellants could have been obtained. Inspite of lengthy
argument on behalf of the appellants, no explanation is coming forth
why inspite of approaching the Civil and Co-operative Courts, the
appellants did not secure any interim relief. Instead of pursuing the
grievance in the competent Courts of law, the appellants have tried to
convert the proceedings before the Executive Engineer into a suit and
a co-operative dispute.
32. As far as the grievance regarding non-supply of documents is
concerned, we may notice that such documents were referred by the
Executive Engineer while giving a background of the matter. None
of these documents would be termed as documents which were used
against the appellants. It is only when a document is used against the
party without disclosing that such document will be used against it
and a copy of which not given, then a grievance could be made. In
the present case, the documents in question were merely mentioned
in the narration of facts and not, in that sense, used against the
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29
appellant. The Executive Engineer has given adequate notice to the
appellants of the procedings. The appellants engaged an advocate,
submitted documents and were given full hearing. The grievance
regarding breach of principles of natural justice is made merely to
create a ground to challenge the impugned order.
33. As far as the reliance of the appellants on the order of the
Division Bench dated 10 March 2011 is concerned, we find that the
issue whether the acquisition by the Railways is complete or not was
not an issue that was under active consideration of this Court. The
observations made in respect of claim made by an individual member
which will have to be read in facts and circumstances of the case.
Even otherwise, as we have already held that the issue of acquisition
by the Railways need not detain the redevelopment project as there is
sufficient area available even otherwise. This ground taken by the
appellants thus has no merit.
34. The reliance of the learned Counsel for the appellants on the
letter of the Municipal Corporation dated 10 October 2008 is of no
avail as the letter merely states that the action will be taken after the
action, contemplated in D.C.R of 1991 is taken. The proceeding will
no doubt include the proceeding under section 95A of the Act of
1976 and thus, this letter dated 10 March 2011 will be of no avail to
the appellants.
35. After the order of the learned single Judge, as per the direction
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30
of the learned single Judge, the Executive Engineer has held that the
only correction that needs to be done is in the NOC to delete the
reference to CTS 1268(Part) and no other correction is required. The
Executive Engineer is right in coming to this conclusion as the area
which is available to the Society for redevelopment in fact, need not
be changed and as the acquisition by Railways does not affect the
redevelopment.
36. We may also note the arguments made on behalf of the
respondents that once a challenge to the NOC was deleted from the
petition filed before the learned Single Judge, there could not have
been general omnibus inquiry into the legality of the scheme except
to find out whether order u/sec.95A of the Act was validly passed. It
appears that the challenge to the NOC was deleted from the prayers
in the petition. If that be so, there is no challenge before the learned
Single Judge in that regard. Once the NOC, IOD and all other
requisite documents are in place and have not been set aside by any
Court of law, the Executive Engineer u/sec.95A cannot assume
jurisdiction to examine legality of these permissions. The entire
thrust of the appellants arguments is that the Executive Engineer
u/sec.95A of the Act should have either waited till the proceedings in
Court of law were over, or the Executive Engineer must examine
those issues on his own. The appellants having failed to obtain any
interim relief in either of suit and or in the Cooperative Court cannot
demand that an Executive Engineer or a Writ Court should grant
them such indulgence. The conduct of the appellant indicates that
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31
the appellants are more interested in creating hurdles in the
redevelopment than getting their rights adjudicated in the competent
Court of law.
37. The question before us is thus, whether the Executive
Engineer was right in asking the appellants to vacate the premises
and move to the transit accommodation. As we have already pointed
out in the preceding paragraphs, the object of section 95A is not to
determine rights of the parties but speed up the work of
redevelopment while ensuring a shelter for the members / occupants.
In the present case the permissions have been granted in the year
2006, demolition in part has been carried out, 22 members have
already vacated the premises, the developer has invested more than
22 crores in the project. No grievance has been made before us, that
the transit accommodation is not available. The members whose
houses are demolished are waiting in transit accommodation since
the year 2006. The members whose houses were on the Railway
project land were demolished and the compensation will be given to
the Society. If the appellants arguments is accepted that they should
not be treated as members then those members will neither get
compensation nor get a newly constructed place. The developer has
pointed that as per the agreement the members will get permission of
1800 sq.ft. as against 440 sq.ft. and in addition, an amount of Rs.17
lakhs each. The developer and the Society has reiterated that suitable
transit accommodation is ready and available for the appellants If
this be the position, we find that the order of the Executive Engineer
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32
and the learned Single Judge to facilitate recommencement of the
redevelopment project by asking the appellants to shift to transit
accommodation is in furtherance of interest of justice.
38. Once we find that the Executive Engineer was right in holding
that 70% members had in fact consented for redevelopment, the
developer and the Society had taken all the requisite permissions, the
provision for transit camp was made and that majority of members
have already shifted to the transit camp, then to delay the project
which has been stalled for last six years any further would be
travesty of justice. The appellants cannot be permitted to hold the
developer and other members at ransom and must follow the
majority decision.
In view of this above discussion, we are satisfied that the order
passed by the learned Single Judge requires no interference and the
Appeal and Notice of Motion are accordingly dismissed.
CHIEF JUSTICE
N.M.JAMDAR, J
Mlns
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) No.359 of 2012
1. Mrs.Radhika George,
Age 45 yrs, Occ.Service, residing at
Tenement No.7/25
2. Mr.Niteen Bhaskar Prabhu
Age 62 yrs, Occ.Service, residing
at Tenement No.8/29
3. David Moses,
Age 54 yrs, Occ.Services
Residing at Tenement No.6/24
4. Champak P. Poladia
Age 63 yrs, Occ.Service, residing
at Tenement No. 5/20.
5. Kanti D. Mahida
Age 55 yrs, Occ.Service,
residing at Tenement No.5/18
6. Pandurang G. Mayadeo
Age 77 yrs, Occ.retired
Residing at Tenement No.1/2
7. Mrs.Keena Desai
Age 33 yrs, Occ.housewife,
Residing at 8/31.
8. Mrs.Hemlata D. Sawant,
Age 72 yrs, Occ.housewife,
Residing at 7/27.
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2
The Petitioner nos.1 to 8 having
their tenements at CTS No.1269,
Chittaranjan Nagar Vidya Co-op.
Housing Society Ltd, Rajawadi,
Ghatkopar (East)Mumbai-77. ... Appellants
(Orig.Petitioners)
VERSUS
1. Maharashtra Housing and Area
Development Authority; Grih
Nirman Bhavan, Kalanagar,
Bandra (East),Mumbai – 51
Through it’s Chairman
2. The Executive Engieneer,
Ghatkopar Division, (MHADA)
Griha Nirman Bhavan,
Kalanagar, Bandra (East)
Mumbai 400 051.
3. Deputy Chief Engineer,
(BP) ES, Municipal Corporation
of Greater Mumbai. Near Raj
Legacy Building, Paper Mill
Compound, LBS Marg,
Vikhroli(W), Mumbai 400083.
4. The Chairman, Chittaranjan Nagar
Vidya Co-op. Housing Society, officer
at Chittaranjan Nagar,Rajawadi,
Ghatkopar(E), Mumbai 400077.
5. The Secretary, Chittaranjan Nagar
Vidya Co-op. Housing Society, officer
at Chittaranjan Nagar,Rajawadi,
Ghatkopar(E), Mumbai 400077.
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3
6. Tanishq Builders,
Through it’s Partner
Paresh Shah, Office at A/103,104,
Haveli Apts, Navneet Prabhu,
Haveli Compound, M.G.Road,
Ghatkopar (E), Mumbai – 77. ... Respondents
(Orig.Respondents)
...
Mr. Rajiv Kumar, Senior Advovate with Sheetal Kumar, Amit
Karkhanis and Priyanka Davka i/b Kay Legal and Associates for the
appellants.
Mr.P.G. Lad, learned AGP for respondent nos.1 and 2.
Mr.Aspi Chinoy, Senior Advocate with Mr.Ranjit Thorat i/b
Prabhanjan Gujar for respondent no.4.
Mr.P.K. Samdani, Senior Advocate i/b Prabhanjan Gujar for
respondent no.5.
Mr.Soli Cooper, Senior Advocate with Mr.R.D. Soni i/b Mr.Bipin
Joshi for respondent no.6.
CORAM : MOHIT S. SHAH, C.J. &
N.M. JAMDAR J.
JUDGMENT RESERVED ON : 20 JUNE 2012
JUDGMENT PRONOUNCED ON : 4 JULY 2012
JUDGMENT :- (Per - N.M.Jamdar J.)
1. The appellants who are the original petitioners in Writ Petition
(Lodging) No.2529 of 2011 have filed the present appeal challenging
th
the order passed by the learned Single Judge dated 24 April 2012
disposing of the Writ Petition with certain directions. The appellants,
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4
in the Writ Petition had challenged the order of the Executive
Engineer of MHADA - respondent no. 2 in the proceedings under
section 95A of Maharashtra Housing and Area Development
Authority Act, (for short ‘The Act”) directing the appellants to vacate
the premises in their occupation. The appellants are aggrieved by the
order of the learned Single Judge inasmuch as it does not grant
protection to the appellants in respect of their possession over the
structures in question.
2. The subject matter of dispute is redevelopment of the property
bearing CTS No.1269 at Rajawadi, Ghatkopar (East). The
petitioners are owners of tenements situated therein and members of
Chittaranjan Nagar, Vidya Co-operative Housing Society (the
Society) Limited. The Chairman and Secretary of the Society are
respondent No.4 and 5 in this Petition. The Society had initiated
redevelopment of the structures and had resolved to get the same
done through respondent no.6 who is a developer. The appellants
have opposed the redevelopment.
3. The events leading upto the filing of the Writ Petition have
been enumerated in detail by the learned Single Judge in the
impugned judgment from paragraph no.4 to 67 and the said events
need not be reproduced in this judgment in detail again. Following
important dates may be noticed for the purpose of disposal of this
appeal.
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5
4. Initially, 32 tenements were allotted to the employees of
Bharat Petroleum, erstwhile Burmah Shell by the then Commissioner
for Housing on the land bearing CTS No.1269 Village Kirol at-
th
Taluka Ghatkopar in and around the year 1954. On 18 May 1987,
the Government of Maharashtra came out with a policy permitting
conversion of such tenement holders as owners. The appellants took
benefit of the scheme and converted their occupation over the said
tenements to ownership basis. The 32 allottees came together and
formed Chittaranjan Nagar Vidya Co-operative Housing Society on
th th
7 February 2000. On 26 May 2005, MHADA executed a lease
deed in favour of the Society and also entered into a deed of sale.
th
On 12 March 2006, the Society passed a resolution for
redevelopment of the Society and appointed the respondent no.6 as
the developer. Pursuant to the resolution, on 19 March 2006, a
Memorandum of Understanding was entered into for redevelopment
of the Society in favour of respondent no.6. The appellants opposed
the said resolution and did not agree for redevelopment through
respondent no.6 and asserted that they would redevelop the premises
in their occupation on their own and sought for tit-bit land for that
th
purpose. On 7 April 2006, the Estate Manager of the Board issued a
letter to the Society that neither tit bit nor independently buildable
land could be allotted to the individual members and can only be
th
allotted to the Society. On 18 June 2006, pursuant to the resolution
and Memorandum of Understanding, development agreement was
entered into between the Society and respondent no.6 which was
signed by 19 members of the Society. The appellants filed a suit in
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6
City Civil Court bearing No.2080 of 2006 challenging the letter
th
dated 7 April 2006. The resolution dated 12 March 2006 appointing
the respondent no.6 as developer was challenged by the appellant in
the Co-operative Court, Bombay by case bearing No.CC/1115 of
2006. The appellants also filed a suit No.5556 of 2006 challenging
th
the Memorandum of Understanding dated 19 March 2006 in favour
of respondent no.6. The appellants did not get any interim order in
th
all these proceedings. On 19 September 2006, the Society
submitted a proposal to the Chief Officer of MHADA for
th
redevelopment. On 17 April 2008, an offer letter was issued by
MHADA to the Society and the Society was called upon to pay a
sum of Rs.9,21,10,875/-. On 19 July 2008, NOC for redevelopment
under Development Control Rules of Bombay (DCR) was issued by
th
MHADA in favour of the Society. Thereafter, on 6 December 2008,
the Development Control Regulation 33(5) was amended and the FSI
available to such projects was increased from to 2.00 to 2.5. It was
also provided that consent of 70% of the members will be necessary
for redevelopment and provision should be made by holder of the
NOC in respect of the transit accommodation of the occupants.
Section 95A of the Act of 1976 was made applicable for getting the
tenements vacated from members of societies who were in minority
and opposed to redevelopment.
5. Since some portion of the land in occupation of the members
of the Society was demolished and since the appellants were resisting
redevelopment of the property and inspite of instituting proceedings
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7
in Civil Court and Co-operative Court had not obtained any interim
order, the Society filed an application before the Executive Engineer
of MHADA for taking action under section 95A of the Act of 1976.
th
Show cause notices were issued to the appellants on 16 May 2011.
th
An order was passed under section 95A on 12 August 2011 and by
st
virtue of order dated 21 September 2011 of this court, fresh hearing
st
was to be given to the appellants. Accordingly, on 1 October 2011,
notices were again issued by the Executive Engineer to the appellants
th
for preliminary date of hearing. On 12 October 2011, schedule for
rd
filing replies and rejoinder was given to the appellant. On 3
November 2011, advocates appeared on behalf of the Society,
developers and the appellants and addressed the Executive Engineer
on various issues.
6. The appellants contended before the Executive Engineer that
they have filed a suit in the City Civil Court as well as a dispute in
the Co-operative Court and during the pendency of the said
proceedings, the Society has executed documents in favour of the
developer. It was contended that since the challenge raised by the
appellants is pending in City Civil Court and Co-operative Court,
proceedings under section 95A of the Act of 1976 should not
continue. It was also argued by the appellants that the proposed
development includes a piece of land which is already acquired by
the Railways and therefore, lease deed could not have been executed
by the MHADA in favour of the Society in respect of the acquired
land. The appellants also urged that since 9 tenements out of 32 are
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8
located on the land acquired by Railways such 9 members cannot
participate in the redevelopment. Since their vote cannot be counted
70 % members cannot be considered have not given their consent.
The appellants contended that section 95-A cannot operate
retrospectively. The Society and the Developer countered the
submissions. The Executive Engineer found that 70% members have
given their consent to redevelopment scheme as the occupants on the
acquired land continue to be members. The Executive Engineer also
held that the acquisition was not complete as physical possession was
not handed over by the Collector to the Railways and compensation
was also not paid. The Executive Engineer held that in any case the
redevelopment was being sought in respect of area of 5532 sq.metres
and not in respect of the entire property. The executive engineer was
satisfied that premises were in order and transit camp
accommodation is provided for. The Executive Engineer thus by
order dated 11 November 2011 proceeded to direct the appellants to
vacate the premises and shift to the transit camp accommodation.
th
7. The operative portion of the order dated 11 November 2011
reads thus:
“The Non-Cooperative Members No.1 to 8 are hereby
directed to vacate the tenements in their use, occupation
and possession and to shift to the Transit Camp
accommodation as described in the Show Cause Notces
dated 16.5.2010, within a period of 7 days from the date
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9
of receipt of this Order, failing which action for their
summary eviction under Section 95A of the MHADA
Act, 1976 be taken against them.
Since the tenement of Non Cooperative Member
No.9 is demolished on 25.8.2008, the above proceedings
under Section 95A of the MHADA Act, 1976 cannot
proceed against him and the same are accordingly
disposed.”
8. Thereafter, the appellants filed Writ Petition (L) No.2529 of
2011 challenging the order passed by the Executive Engineer dated
th
11 September 2011. The appellants initially sought three
th
substantive reliefs viz. that the NOC dated 19 July 2008 be declared
as illegal, scheme of redevelopment be declared as illegal and the
th
order dated 11 November 2011 be quashed and set aside.
Thereafter, by way of a chamber summons, the prayer regarding
challenge to NOC was deleted.
9. Before the learned Single Judge, the appellants raised broadly
the same contentions which were raised before the Executive
Engineer. The learned Single Judge found that the Executive
Engineer had followed basic principles of natural justice and
adequate hearing was given to the appellants. The learned Single
Judge held that though the appellants have approached the Civil
Court and Co-operative Court, no interim orders were obtained by
the appellants against proceeding with the project. The learned
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10
Single Judge took note of an affidavit dated 9 January 2012 filed by
the Deputy Engineer in which the Deputy Engineer clarified that out
of total area of 7806.72 sq.metres allotted to the Society, an area
admeasuring 1618.56 sq.metres area was affected by the acquisition
of the Railways and thus balance plot available was 6186.16 and
NOC is being granted only to develop 5532.49 sq.metres and
therefore, the contention of the appellants regarding acquisition is
baseless. It was also pointed out in the affidavit that the reference in
the NOC dated 19 July 2008, to the plot No.1268(part) and
1269(Part) is due to inadvertence and redevelopment will take place
on plot CTS No.1269(Part) only. The learned Judge found 22 out of
32 members have already vacated the premises and no case for
interference under Article 226 was made out. The learned Judge
however held that the effect of the acquisition by Railways needs to
be ascertained and boundaries need to be demarcated, but the
redevelopment need not be held up for that purpose.
th
10. The learned Single Judge by a detailed judgment dated 24
April 2012 disposed of the writ petition. The learned Single Judge
summarized his conclusions and proceeded to pass an order in
paragraph no.103 of the judgment which reads as follows.
“CONCLUSIONS:
a) The proceeding under Section 95-A of MHADA
Act as initiated is valid and maintainable.
b) The action and authority to decide the issues/
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11
controversy is well within the scope and jurisdiction of
Section 95-A read with the Regulations.
c) The sanctioned scheme based upon then existing
70% strength is correct and valid. All the parties and
members are bound by the approved scheme and to be
implemented in accordance with law.
(d) The NOC is valid and binding and also all the
subsequent actions based upon the same.
(e) The scheme is valid and binding. Certain
corrections will not affect the scheme based upon the
sanctioned/approved NOC. However, it is subject to
following order:
O R D E R
i) The order dated 11 November 2011 is quashed and
set aside only for deciding the effect of acquisition
of part of the property of the Central Railway; and
also the actual area available for the project and the
scheme and its effect on the area of the occupants
and/or to the Society members and the saleable
area for the developer. The rest of the order is
maintained.
ii) The concerned Respondents are at liberty to
proceed with the project phase-wise or part-wise in
accordance with law, subject to certain and/or
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12
necessary corrections of area/plot/map and plan of
the scheme, if any.
iii)Respondent No.2 i.e the Executive Engineer,
Ghatkopar Division, Mumbai Housing and Area
Development Board, to decide the above issued
within a period of 6 weeks after giving an
opportunity of being heard to all the parties.
iv) Petition is partly allowed.
v) There shall be no order as to costs.”
11. Since the Executive Engineer was directed by the learned
Single Judge by order dated 21 April 2012 to decide the effect of
acquisition of the part of the property, he proceeded to do so and
passed an order on 5 June 2012. This order has been placed on
record by the appellants in Notice of Motion filed in the present
appeal. The Executive Engineer gave hearing to the appellants and
the private respondents and came to the conclusion that gross area
allotted under NOC is 7806.72 sq.meters and physical area available
is 6188.16 sq.meters and out of this, permission is granted in respect
of only 5532.49 sq.mts. Thus the acquisition of the part of the
property by the Central Railway on the redevelopment project. The
Executive Engineer came to the conclusion that the only correction
that is required to be carried out is in the NOC dated 19 July 2008
where CTS 1268 (Part) and 1269 (Part) are mentioned out of which
reference to 1268 (Part) should be deleted.
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13
12. Being aggrieved, the appellants are before us in the present
appeal.
13. We have heard learned counsel appearing for the parties at
considerable length. Shri Rajiv Kumar, Senior advocate for the
appellants firstly submitted that the directions passed by the learned
Single Judge are self contradictory. Once the learned Single Judge
came to the conclusion that ascertaining the exact area and
measurements of the plot was mandatory and the requirement of the
clear description of the plot with clearly defined boundaries goes to
the root and needs to be considered before going further with the
project, the learned judge ought to have protected the possession of
the appellants. The learned counsel for the appellants submitted that
this observation regarding description of the plot is in favour of the
appellants and it has not been challenged by the respondents by filing
an independent appeal. The learned counsel for the appellants
contended that since a part of the land was acquired by the Railways,
it should have been treated as a different plot and the boundaries thus
ought to have been drawn. The primary contention of the appellants
against the order passed under section 95A is that the Executive
Engineer did not consider the effect of the acquisition of part of the
property in proper perspective. According to the learned counsel for
the appellants, the FSI of the land acquired by the Railways could
not have been utilised and furthermore, the 9 tenements which stood
on the acquired land could not have been counted for the purpose of
ascertaining the consent 70% of members. The learned counsel also
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14
submitted that the NOC granted on 19 July 2008 on the face of it is
not valid as it pertains to plot no.1268(Part) and 1269(Part) and the
explanation that it was due to inadvertence is purely an after-thought.
The learned counsel submitted that the speed at which the authorities
moved for demolition of some part of the property as well as the
changing stands of the officers of the authorities clearly show a
collusion on their part with the developer and the society. According
to the learned counsel, the action of the authorities amounts to
distribution of State largesse without justification. Reliance is placed
on the judgment of this Court in the case of M/s Lokhandwala
Infrastructure Pvt. Ltd. Vs Municipal Corporation of Mumbai &
others reported in 2008(5) ALL MR 743 and the judgment in the case
of Shree Oswal Builders Vs State of Maharashtra 2008(3) ALL MR
529.
14. The learned counsel submitted that in fact, the FSI of the
acquired land was consumed by the developer and the Society and
the developer got the plan sanctioned showing the acquired area as
part of the proposal which is clear from the subject matter of the
NOC which was granted. Learned counsel further submitted that
when the NOC was granted only 19 members had signed which is
not a compliance to the requirement u/sec.95-A of the Act of 1976.
The position as on the date of NOC should be seen as the section
95A is not retrospective. The learned counsel by relying on
judgments of Apex Court in the cases of (I) Union of India and
others vs Mohammad Ramzan Khan -1991 (1) SCC 588; (ii) Prakash
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15
Ratan Sinha Vs State of Bihar and others -2009 (14) SCC 690;
Hindustan Petroleum Corporation Ltd vs Darius Shapur Chenai and
others -2005 (7) SCC 627, contended that the Executive Engineer
while deciding an application u/sec.95A of the Act of 1976, has a
duty to act judicially and if he fails to do so this Court can set aside
the said decision in its power of judicial review. The learned counsel
also submitted several documents which were relied upon by the
Executive Engineer in his order were not supplied to the appellants
and thus there was a serious breach of principles of natural justice
and consequently, the order of the Executive Engineer is void. A list
of the documents which were not made available to the appellants is
enumerated by the appellants in paragraph no.34 of their appeal
memo. The learned counsel also urged that a tenement which was in
the name of one Harminder Singh ought to have been considered
while arriving at the figure of 70% as even though the occupant had
expired, his estate had survived. It was also urged by the appellants
that their case is not equivalent to a slum redevelopment scheme and
reliance placed by the learned Single Judge on his own judgment in
Shiv Krupa Builders and Ors vs. State of Maharashtra, 2011 (5) BCR
434 was misplaced. The learned counsel submitted that the
appellants desired to develop their own property by themselves and
not through any developer and by collusion and fraud on the part of
the authorities, the appellants are being deprived of their fundamental
rights.
15. The learned counsel further relied on an order passed by
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16
Division Bench of this Court in Writ Petition No.160 of 2008 in
respect of acquisition of the property by the Railways that the
acquisition is complete and thus, the Executive Engineer could not
have come to the conclusion that the acquisition was not complete
and only paper possession was taken. The learned counsel as relied
upon the letter issued by the Municipal Corporation dated 10 October
2008 which according to the learned counsel protects the possession
of the appellants. The learned counsel finally submitted that the
argument of prejudice to the 22 tenement holders cannot be held
against the appellants as those tenement holders have decided to
vacate the premises on their own accord. The appellants in short, re-
iterated their submissions made before the Executive Engineer and
the learned Single Judge.
16. On the other hand, Mr.Aspi Chinoy, Senior Advocate
appearing for the Chairman of the Society submitted as under :
The scope of section 95 should be kept in mind before
deciding the grievance of the petitioner. The scope of section 95-A
of the Act is limited and moment it is demonstrated to the authorities
that 70% members have given their consent and there is a valid NOC
to the project and the developer has made suitable arrangement for
shifting the occupants to a transit accommodation, no further enquiry
is necessary. In the present case, all the ingredients were satisfied
and there was no reason to stall the redevelopment any further. Any
further delay in implementation of the project will be highly
inequitable as 22 out of 32 members have already shifted to the
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17
transit accommodation in the year 2006 and are awaiting allotment of
their new house. The redevelopment was in the interest of the
members of the Society as the developer had promised to give newly
constructed houses admeasuring 1800 sq.ft. As against 450 sq.ft.
previously occupied in addition a sum of Rs.17 lakhs to each
occupant. This being a collective decision for the benefit of the
Society, it must be honored by all the members. Out of balance area
of 6188 sq.m what was allowed to be used was only 5532 sq.meters,
thus, even if the land acquired by the Railway is kept aside, the FSI
which was available was still sufficient. The said position has been
placed on record by the affidavit filed by the Deputy Engineer in the
Writ Petition.
17. Mr.Chinoy also made a categorical statement that no part of
the land which was acquired by Railways be utilised for the purpose
of construction in the redevelopment project. It was also urged that
the mentioning of land [1269(Part) and 1268(Part)] in the subject
matter of NOC was a clear clerical error as the IOC mentions only
1269(Part) and same position was re-iterated in the order passed
under section 95-A of the Act. Thus, according to the learned
counsel, this was not an after-thought but a genuine error. As far as
consent of 70% members is concerned, the learned counsel submitted
that the members who had occupied structures acquired by Railways
continued to be members and their membership does cease
automatically. According to the learned counsel, when the action
under section 95-A is to be taken, that is the time the authority has to
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18
access whether 70% members have given their consent or not and in
present case 22 out of 31 have given their consent. As far as one
member i.e who had expired, the dispute between his heirs was still
pending and there was a status quo order restraining both the heirs
from dealing with the property and thus, the said member for the
purpose of ascertaining the majority under section 95A did not exist
and since 22 out of 31 members had given consent, it was a
compliance under section 95-A of the Act. The learned counsel
further submitted that the letter of the Municipal Corporation relied
upon by the petitioners to show that their premises are not to be
demolished was not the way it was construed by the petitioners. The
said letter according to the learned counsel only stated that the
approval will be given by the Municipal Corporation only after steps
as per the DCR 1991 are taken are , which means as per section 95-A
of the Act of 1976. The learned counsel also urged that untold
hardship is being caused to the 22 members who have vacated their
homes by the adamant attitude of the petitioners and he urged that
the Society be permitted to resume the redevelopment activity
forthwith.
18. Mr.Samdani, Senior advocate appearing on behalf of the
Secretary of the Society adopted the arguments made by Mr.Chinoy
and in addition submitted that the appellants in Writ Petition had
deleted the challenge to the NOC and once the challenge to the NOC
was deleted from the purview of the writ petition, only the action
under section 95A remained to be tested as the prayer is regarding to
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19
challenge to a redevelopment scheme cannot be examined in
vacuum. According to the learned counsel that the prayer was
deleted because it was subject matter of a suit and the petitioner had
failed to obtain any interim orders in the said suit and also in the
dispute filed in the co-operative court. The learned counsel also
placed reliance on the judgment of this court in case of Paygonda
Survgonda Patil and others v. Jingonda Surgonda Patil and others
reported in AIR 1968 Bom 198 to contend that, even if there are
minor infringements of legal provisions, writ petition need not be
entertained if substantial justice is done.
19. Mr.Cooper, Senior Advocate along with Mr.Soni, appearing
for the developers submitted that the developer had done nothing
wrong and had acted diligently. They have obtained all the
permissions as required, has provided for transit accommodation, has
shifted the 22 occupants to the transit accommodation and is paying
a monthly rent which is amounting to Five lakh rupees a month. It
was also pointed the cost incurred by the developer so far is in excess
of Rs.20 crores upon which they have to pay interest. The learned
counsel also urged that the developers being a business venture has
invested money, time and effort and the delay in the project from the
year 2006 onwards at the behest of the appellants is causing huge
loss to them.
20. Before we examine the rival contentions what needs to be kept
in mind is that the proceedings before the learned Single Judge arose
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20
from an order passed under section 95-A of the Act. What was filed
before the learned Single Judge was a Writ Petition challenging the
order passed under section 95-A of the Act and it is the exercise of
the writ jurisdiction of the learned Single Judge in respect of order
passed under Section 95-A that is in question before us.
21. Section 95-A is enacted in respect of redevelopment of old
tenements. Provisions of the Development Control Rules also came
to be amended. Section 95A and DCR 33(5)(7) reads as under -
“95-A Summary eviction of occupiers in certain cases. - (1)
Where the owner of a building or the members of the
proposed co-operative housing society of the occupiers of the
said building, submits a proposal to the Board for
reconstruction of the building, after obtaining the written
consent of not less then 70 per cent of the total occupiers of
that building and a No Objection Certificate for such
reconstruction of the building is issued by the Board to the
owner or to the proposed co-operative housing society of the
occupier, as the case may be, then it shall be binding on all the
occupiers to vacate the premises:
Provided that, it shall be incumbent upon the holder of such
No Objection Certificate to make available to all the
occupants of such building alternate temporary
accommodation.
(2) On refusal by any of the occupant to vacate the premises
as provided in sub-section (1), on being approached by the
holder of such No Objection Certificate for eviction of such
occupiers, it would be competent for the Board,
notwithstanding anything contained in Chapters VI and VII of
this Act to effect summary eviction of such occupiers.
(3) Any person occupying any premises, land, building or
structure of the Board unauthorisedly or without specific
written permission of the Board in this behalf shall,
notwithstanding anything contained in Chapters VI and VII of
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21
this Act, be liable for summary eviction”.
--------
“DCR 33(5)(7) -In any Redevelopment scheme where the Co-
operative Housing Society / Developer appointed by the Co-
operative Housing Society has obtained No Objection
Certificate from the MHADA / Mumbai Board thereby
sanctioning additional balance FSI with a consent of 70% of
its members and where such NOC holder has made provision
for alternative accommodation in the proposed building
(including transit accommodation) then it shall be obligatory
for all the occupiers / members to participate in the
Redevelopment Scheme and vacate the existing tenement for
the purpose of redevelopment. In case of failure to vacate the
existing tenements, the provisions of section 95A of the
MHADA Act mutatis mutandis shall apply for the purpose of
getting the tenements vacated from the non co-operative
members”.
--------
22. The object of the legislature by introducing the amendments
was to give an opportunity to the occupants of old structures who
were unable to develop them for lack of resources to move to better
accommodation at the same time create additional housing for
general consumption. The State Government revised the FSI and
encouraged housing development schemes by MHADA either by
itself or by the housing societies. Section 95-A was enacted to
enable speedy implementation of such redevelopment schemes. The
provision is to ensure seamless implementation of the project. When
the housing societies decide to get their premises redeveloped, care
should be taken that its members should have premises to stay when
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22
the original building is demolished and is being reconstructred. The
members should not be left in lurch being out of shelter while the
redevelopment goes at its own pace. Thus, what the authority needs
to examine is whether its a collective decision i.e. whether 70% of
members have consented, whether permissions like the NOC are in
order and whether the developer has provided adequate transit
accommodation. Once the authority under section 95-A finds that
these requirements are fulfilled, all that it does is to direct the
members to shift to the transit accommodation awaiting
reconstruction.
23. Action under section 95A does not result in determining rights
of the parties per-se. The authority under section 95-A does not
finally determine or terminate any ownership rights of the members
of such societies. The provision is not intended to provide a forum to
adjudicate the dispute inter se between the Society, members and the
developers. Those disputes will have to be adjudicated in competent
Courts of law. The proceedings under section 95-A of the Act,
cannot be converted into a full fledged judicial proceedings as if the
authority is trying a civil suit. It also needs to be noticed that the
authority i.e. executive engineer which passes the order under section
95-A is not a judicial officer equipped to decide complicated
question of law relating to dispute as to title etc.
24. The proceedings under section 95-A cannot be converted into a
civil trial as is sought to be done by the petitioners. If the members
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23
of the Society obtain any judicial orders restraining the Society or the
developer from acting in furtherance of their intention to redevelop,
then obviously the authority under section 95-A will be bound by
such judicial orders. In the present case, even though the appellants
approached the Civil Court as well as the Co-operative Court in the
year 2006 challenging the decisions of the Society to redevelop the
property, they did not secure any interim orders for last six years.
The Executive Engineer under 95-A thus is not expected to arrogate
himself the jurisdiction vested in Civil Court and Co-operative Court
and decide the issue raised by the appellants in those proceedings.
Once the jurisdictional facts before the Executive Engineer were
satisfied and that there was no restraint order, the authority under
section 95-A had no other option, rather was under obligation to
direct the appellants to move to transit accommodation to facilitate
the redevelopment.
25. The scope of section 95 being thus understood, it needs to be
emphasized that legislature has not provided any appeal from the
order passed under section 95-A. The petitioners approached the
learned Single Judge invoking Article 226 of the Constitution of
India. The scope of the exercise of the writ jurisdiction is now well
settled. The Court may decline to exercise writ jurisdiction if it
finds that the substantial justice has been done by the order
impugned before it. It is not necessary for each and every infraction
of law that a writ must issue. The Court is required to keep in mind
whether principles of natural justice were followed and whether the
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24
authority acted within its jurisdiction, and whether any failure of
justice has occasioned. In the appeal, what we are required to
examine is whether the exercise of the writ jurisdiction by the
learned Single Judge is perverse and whether the action of the
authority in requiring the appellants to move to transit
accommodation can be termed as failure of justice. This being the
scope of the Writ appeal before us, though the learned counsel for the
appellants has argued numerous points in detail before us, which
could be urged only if there was a statutory appeal from section 95-A
we granted full opportunity to the appellants in order to satisfy
ourselves whether any failure of justice has occasioned by the
impugned orders.
26. The first point that is whether 70% members had given their
written consent to the present redevelopment proposal as required
u/sec.95A of the Act. The Executive Engineer considered this issue
at length as it is one of the criteria that need to be considered u/sec.
95A of the Act. It is an admitted position that the Society had 32
members and out of the 32 members, one member has expired. 22
members have given their consent in writing. It is the contention of
the appellants that 9 members were located on the land which was
affected by Central Railway Expansion Project. These members
according to the appellants, cannot be considered for the purpose of
counting the 70 per cent requirement as they ceased to have any
right. It was pointed out by the Society to the Executive Engineer
that 8 out of 9 members, after signing the development agreement
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25
had shifted to the transit camp provided to them. One member out of
the nine was a member who had opposed the redevelopment. The
Executive Engineer and the learned Single Judge have both held that
the said members whose structures were effected by Railways
Expansion Programme cannot be considered to have ceased to be
members of the Society. As long as the members of the Society
continue to be on the register of membership of the Society either
they will have to be removed from membership by action taken by
the Society or by an order of the competent authority. The
Maharashtra Co-operative Societies Act, lays down the procedure for
removal of a member from the Society. Admittedly, no such action
has been taken. In fact, the appellants even though approaching the
Co-operative Court have failed to obtain any order in that regard.
The members of the Co-operative Society will lose their membership
only as per the provisions of the Maharashtra Co-operative Societies
Act. Therefore, for all practical purposes while counting the 70% of
members, u/sec.95A, said members will have to be counted. The
Executive Engineer has thus correctly held that, since 22 members
have accepted the redevelopment proposal, the requirement as regard
section 95A of the Act, stands satisfied. No perversity can be found
with the finding of the Executive Engineer and the Single Judge in
this regard.
27. It was urged that membership of Harminder Singh who had
expired was not counted while considering, whether 70% members
have agreed for redevelopment or not. It was urged before the
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26
Executive Engineer and the learned single Judge and also before us
that the estate of said Harminder Singh continues to be present and
thus, if his tenement is counted then only 22 out of 31 members have
given their consent, which would be less than 70%. The Executive
Engineer has noted that the heirs of this Harminder Singh have been
restrained by an order of the Court from dealing with the property in
any manner. If that be so there is no person who could, in law, give
or withhold permission for redevelopment of the property on behalf
of the said member. This contention is rightly rejected by the learned
Single Judge.
28. Much capital has been made by the appellants regarding the
mention of two lands, 1269(Part) and 1268 (Part) in the subject
matter of the NOC. It has been clarified by the MHADA by filing an
affidavit before the learned Single Judge that mentioning 1268(Part)
in the subject matter of the NOC was a clerical mistake. Though as
contended by the appellants such stand was taken belatedly, it cannot
be brushed aside on that ground alone, if the examination of other
relevant documents shows that it was indeed a clerical mistake. The
Intimation of Disapproval (IOD) clearly shows that it was issued in
respect of the CTS No.1269(Part) only. Thus, it is very clear that the
mentioning of 1268 (Part) in the NOC was clearly a clerical error.
29. The contention regarding the land under acquisition of the
Railways being counted towards redevelopment project when it
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27
cannot be done so, is without any substance. The Executive
Engineer in his order has noted that the perusal of plans submitted to
the Corporation shows that the redevelopment is sought only of 5532
sq. metres. The MHADA in its affidavit has placed on record that
out of 7806.72 sq.metres land, 168.56 metres was affected by
Railways Expansion Programme, thus leaving 6,188.16 metres were
available for the Society for redevelopment and FSI available on
such land. The NOC was only in respect of 5532.9 sq.metres and
thus, even otherwise if the land acquired by Railways is taken into
consideration the redevelopment is taking place for an area lesser
than balance area left after deducting the acquired land. Condition
20 of the NOC dated 19 July 2008 directs the Society to submit an
undertaking that no construction will be done on the land affected by
Railways and the said land will be handed over to the Railways as
and when demanded. Condition 20 reads as under -
“An undertaking should be obtained from the society
mentioning that no construction will be allowed on the land
affected by Railways proposed acquisition and this land will
be handed over to Railways as and when it will be demanded
from Railway Authority.”
30. The learned counsel for the respondents No.5 and 6 have
reiterated their assurance that no part of the land which is effected by
Railways Expansion Programme will be taken into consideration in
respect of the re-development and have contended even after the land
which is subject matter of Railways Expansion Programme is kept
aside, enough area as FSI is available to the Society as well as the
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28
developer to carry out the redevelopment project. The appellants
have simply tried to build their case on few errors in the document
here and there to stall the redevelopment project.
31. The appellants had challenged the Resolution of the Society
and the memorandum of understanding entered into with the
developer by filing a suit and proceedings in the Co-operative Court.
In both these proceedings which are pending since 2006 the issues
raised by the appellants could have been agitated and an order in
favour of the appellants could have been obtained. Inspite of lengthy
argument on behalf of the appellants, no explanation is coming forth
why inspite of approaching the Civil and Co-operative Courts, the
appellants did not secure any interim relief. Instead of pursuing the
grievance in the competent Courts of law, the appellants have tried to
convert the proceedings before the Executive Engineer into a suit and
a co-operative dispute.
32. As far as the grievance regarding non-supply of documents is
concerned, we may notice that such documents were referred by the
Executive Engineer while giving a background of the matter. None
of these documents would be termed as documents which were used
against the appellants. It is only when a document is used against the
party without disclosing that such document will be used against it
and a copy of which not given, then a grievance could be made. In
the present case, the documents in question were merely mentioned
in the narration of facts and not, in that sense, used against the
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29
appellant. The Executive Engineer has given adequate notice to the
appellants of the procedings. The appellants engaged an advocate,
submitted documents and were given full hearing. The grievance
regarding breach of principles of natural justice is made merely to
create a ground to challenge the impugned order.
33. As far as the reliance of the appellants on the order of the
Division Bench dated 10 March 2011 is concerned, we find that the
issue whether the acquisition by the Railways is complete or not was
not an issue that was under active consideration of this Court. The
observations made in respect of claim made by an individual member
which will have to be read in facts and circumstances of the case.
Even otherwise, as we have already held that the issue of acquisition
by the Railways need not detain the redevelopment project as there is
sufficient area available even otherwise. This ground taken by the
appellants thus has no merit.
34. The reliance of the learned Counsel for the appellants on the
letter of the Municipal Corporation dated 10 October 2008 is of no
avail as the letter merely states that the action will be taken after the
action, contemplated in D.C.R of 1991 is taken. The proceeding will
no doubt include the proceeding under section 95A of the Act of
1976 and thus, this letter dated 10 March 2011 will be of no avail to
the appellants.
35. After the order of the learned single Judge, as per the direction
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30
of the learned single Judge, the Executive Engineer has held that the
only correction that needs to be done is in the NOC to delete the
reference to CTS 1268(Part) and no other correction is required. The
Executive Engineer is right in coming to this conclusion as the area
which is available to the Society for redevelopment in fact, need not
be changed and as the acquisition by Railways does not affect the
redevelopment.
36. We may also note the arguments made on behalf of the
respondents that once a challenge to the NOC was deleted from the
petition filed before the learned Single Judge, there could not have
been general omnibus inquiry into the legality of the scheme except
to find out whether order u/sec.95A of the Act was validly passed. It
appears that the challenge to the NOC was deleted from the prayers
in the petition. If that be so, there is no challenge before the learned
Single Judge in that regard. Once the NOC, IOD and all other
requisite documents are in place and have not been set aside by any
Court of law, the Executive Engineer u/sec.95A cannot assume
jurisdiction to examine legality of these permissions. The entire
thrust of the appellants arguments is that the Executive Engineer
u/sec.95A of the Act should have either waited till the proceedings in
Court of law were over, or the Executive Engineer must examine
those issues on his own. The appellants having failed to obtain any
interim relief in either of suit and or in the Cooperative Court cannot
demand that an Executive Engineer or a Writ Court should grant
them such indulgence. The conduct of the appellant indicates that
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the appellants are more interested in creating hurdles in the
redevelopment than getting their rights adjudicated in the competent
Court of law.
37. The question before us is thus, whether the Executive
Engineer was right in asking the appellants to vacate the premises
and move to the transit accommodation. As we have already pointed
out in the preceding paragraphs, the object of section 95A is not to
determine rights of the parties but speed up the work of
redevelopment while ensuring a shelter for the members / occupants.
In the present case the permissions have been granted in the year
2006, demolition in part has been carried out, 22 members have
already vacated the premises, the developer has invested more than
22 crores in the project. No grievance has been made before us, that
the transit accommodation is not available. The members whose
houses are demolished are waiting in transit accommodation since
the year 2006. The members whose houses were on the Railway
project land were demolished and the compensation will be given to
the Society. If the appellants arguments is accepted that they should
not be treated as members then those members will neither get
compensation nor get a newly constructed place. The developer has
pointed that as per the agreement the members will get permission of
1800 sq.ft. as against 440 sq.ft. and in addition, an amount of Rs.17
lakhs each. The developer and the Society has reiterated that suitable
transit accommodation is ready and available for the appellants If
this be the position, we find that the order of the Executive Engineer
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and the learned Single Judge to facilitate recommencement of the
redevelopment project by asking the appellants to shift to transit
accommodation is in furtherance of interest of justice.
38. Once we find that the Executive Engineer was right in holding
that 70% members had in fact consented for redevelopment, the
developer and the Society had taken all the requisite permissions, the
provision for transit camp was made and that majority of members
have already shifted to the transit camp, then to delay the project
which has been stalled for last six years any further would be
travesty of justice. The appellants cannot be permitted to hold the
developer and other members at ransom and must follow the
majority decision.
In view of this above discussion, we are satisfied that the order
passed by the learned Single Judge requires no interference and the
Appeal and Notice of Motion are accordingly dismissed.
CHIEF JUSTICE
N.M.JAMDAR, J
Mlns
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