Earth Graphics And ANR. v. State Of Maharashtra And 4 ORS.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.501 OF 2015 Earth Graphics, having its office at 101, Akruti Aditya Tower, 36 Noshir Bharucha Marg, Grant Road (W), Mumbai - 400 007.
Mr. Bhupesh Jain, Partner of Petitioner No.1 having his office at 101A, Akruti Aditya Tower, 36 Noshir Bharucha Marg, Grant Road (W), Mumbai - 400 007.
..... Petitioners V/s State of Maharashtra Secretary, Housing Department, Government of Maharashtra having his office at Mantralaya, Mumbai - 400 032.
Maharashtra Housing & Area Development Authority, a body constituted under the provisions of the MHADA Act, 1976, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai - 400 051.
Vice President and Chief Executive Officer, MHADA, having his office at Griha Nirman Bhavan, Bandra (East), Mumbai - 400 051.
Chief Officer, MHADA, having his office at Griha Nirman Bhavan, Bandra (East), Mumbai - 400 051.
..... Respondents 1/21
2/21 Mr. Milind Sathe, Senior Counsel i/b Mr. Hiren Mehta for Petitioners. Ms. Anjali Helekar, AGP for Respondent Nos.1 and 2. Mr. Girish D. Utangale with Mr. Vinay Bhorge i/b M/s. Utangale & Co. for Respondent Nos.3 to 5.
CORAM : A.A. SAYED, J.
DATED : 8 DECEMBER 2015 JUDGMENT:
The Petitioners have invoked Article 226 of Constitution of India to impugn (i) order dated 12 July 2012 passed by Chief Officer, MBR&R Board, (ii) order dated 6 May 2013 passed by the Vice President and Chief Executive Officer, MHADA, Mumbai, and (iii) order dated 2 January 2015 passed by the Secretary, Housing Department, Government of Maharashtra. The Petitioners claim that their rights are affected as they are denied the benefit of additional incentive FSI under Regulation 33(7) of the Development Control Regulation for Greater Mumbai, 1991 (hereinafter referred to as DCR) by the impugned orders passed in the proceeding/Appeals filed by the tenants/occupants (Mr. Misrimal Jain and 4 others who are the Petitioners in companion Writ Petition (L) No.409 of 2015).
By the impugned orders it was held that the 14 rooms on the first floor of Building No.114-E will be considered as one occupancy and the contention of the tenants/occupants for considering their rooms as independent occupancies under Regulation 33(7) of DCR, is rejected. The Petitioners were not parties to the proceeding/Appeals.
3/21 The Petitioner No.1 is a partnership firm and is the owner of the property bearing C.S. No. 683, 684, 685 of Girgaon Division comprising of Building Nos.114, 114-A, 114-B, 114-C, 114-D, 114-E, 106/112 situated at V.P. Road, Mumbai (hereinafter referred to as 'the said property'). Petitioner No.2 is partner of Petitioner No.1. Respondent No.1 is the State of Maharashtra. Respondent No.2 is the Secretary, Housing Department, Government of Maharashtra. Respondent No.3 is Maharashtra Housing & Area Development Authority (MHADA), a body established under the provisions of the Maharashtra Housing and Area Development Act, 1976 (MHAD Act). Respondent Nos.4 and 5 are the functionaries of Respondent No.3 MHADA.
On 20 April 2009 the said property was purchased by the Petitioners from a Trust. According to the Petitioners, 14 separate rooms admeasuring 165 sq.ft. each on the first floor of the Building No.114E (hereinafter referred to as 'the said rooms') were used by the Trust to run Dharamshala. The structures standing on the said property were constructed prior to 1 September 1940 and therefore the buildings are categorized as Category 'A' cessed buildings which can be redeveloped under Regulation 33(7) of DCR. According to the Petitioners there are seven structures consisting of 99 residential tenements on the said property.
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4/21 It is the case of the Petitioners that sometime in 1996, MHADA issued a brochure prescribing the procedure and manner of redevelopment of Category 'A' cessed buildings and the benefit which would accrue by virtue of the said redevelopment. The said brochure also summarized the procedure for certifying the eligibility of occupants for permanent alternate accommodation. On 31 May 2010, the Municipal Corporation issued Inspection Extract to the Petitioner No.1 for the year 1995-96 in respect of the said property. According to the Petitioner, the Inspection Extract shows that the entire first floor consists of 14 independent rooms which are assessed separately. On 5 June 2010 another Inspection Extract was issued by the Municipal Corporation in which all 14 rooms were shown in occupation of 14 different tenants.
On 16 August 2010, the State Government vide a Government Resolution (GR) issued guidelines setting out the procedure and the mechanism for verification of tenements and certification for eligible tenements for the purpose of permanent alternate accommodation. Clause 13 of Annexure B of said guidelines provides that if at the time of certification one person has more than one room adjacent to each other, the total area of all the rooms collectively shall be considered for the purpose of alternate accommodation.
5/21 tenant/occupant by the owner, where such tenement/ occupant was reflected in the Inspection Extract and pre-1996 was in possession of any other tenant/occupant then the new tenant in possession should be considered as eligible.
The said property was visited by the officers of MBR&RB/MHADA. According to the Petitioners at the time of verification of tenancy at site, it was found that all separate 14 rooms were occupied by 14 different tenants and that no tenant was in occupation of more than one room. On 13 July 2012, No Objection Certificate for redevelopment was issued by Mumbai Building Repair and Reconstruction Board ('Repair Board' for short), a unit of Respondent No.3 MHADA, in favour of the Petitioner No.1 as owner/developer. Respondent No.5 Chief Officer of the Repair Board in the meanwhile issued the impugned order dated 12 July 2012 to the 14 occupants of the said rooms informing them that all 14 rooms have been clubbed together and held as a single occupancy, copy whereof was also sent to the Petitioner No.1. The aggrieved tenants/occupants therefore filed their 1st Appeals against the order of Chief Officer, Repair Board before the Vice President & Chief Executive Officer, MHADA.
On 22 February 2013, the Government Resolution dated 16 August 2010 was amended by the State Government and clause 13 of 5/21
6/21 Annexure B of the original guidelines was substituted. The new clause 13 provides that if one person has more than one room which may be either adjacent to each other or separate and there is a separate rent receipt and/or Agreement for each of the rooms then all such all rooms should be considered as separate occupancies. Similarly, if the tenant has only one rent receipt or Agreement for more than one room adjacent to each other, it should be considered as one occupancy only. As indicated earlier, some of the aggrieved tenants/occupants of the said rooms filed their respective 1st Appeals before the Vice President and Chief Executive Officer, MHADA, against the order of the Chief Officer, Repair Board dated 12 July 2012 which were dismissed by the impugned order dated 6 May 2013. The Vice President and Chief Executive Officer held as follows:
"The property in question was owned by a Trust and the Trust was running Dharamshala occupying 14 rooms as per inspection extract. The Dharamshala ceased to exist after the new owner has taken over the property in 2009. The following order is passed in respect of tenancies of Dharamshala:
The premises of Dharamshala by its very definition are allotted on temporary basis free of costs or for nominal charges. Person occupying these premises could not be regarded as tenants. The word "Dharamshala" only exemplifies the charitable nature of the organization where rooms are let out 6/21
7/21 to needy person. For the Appellant to argue that such let out rooms also amount to creation of tenancy is unacceptable. The current owner has issued receipt and created tenancies after 2009. The GR in this respect is very clear and states that any tenancy created after 13th June 1996 would not be eligible. Therefore, logically all the 14 rooms now belong to the landlord and therefore have been correctly clubbed as one unit and considered as one room for residential purpose for the purpose of redevelopment."
The tenants/occupants challenged the aforesaid order in 2nd Appeal before the Respondent No.2 Secretary, Housing Department, Government of Maharashtra. According to the Petitioners, on 15 January 2015, one of the tenant/occupant, Mr. Misrimal Jain, (the Petitioner No.1 in companion in Writ Petition (L) No.409 of 2015) who is in occupation of the Room No.16 forwarded to the Petitioners a copy of the order dated 2 January 2015 passed by the Principal Secretary, Housing Department disposing off his Appeal and holding him ineligible for independent permanent alternate accommodation.
The Petitioners have avered in the Petition that through Right to Information (RTI) they have received a copy of the letter dated 16 June 2011 addressed by the Executive Engineer, Repair Board to Assistant Assessor & Collector, 'D' Ward, M.C.G.M. requesting for clarification regarding the use of Dharamshala and a copy of the reply of the 7/21
8/21 Assistant Assessor & Collector, 'D' Ward, MCGM dated 17 June 2011 wherein it is stated that 'the use of Dharamshala may be for residence or commercial'. According to the Petitioner on one hand the Respondents have disposed off the Appeals filed by the aggrieved tenants/occupants of the said rooms holding them ineligible for a separate permanent alternate accommodation on the ground that the 14 rooms on the first floor were used as Dharamshala, on the other hand, the Respondents have considered the use of Dharamshala as 'residential', which was arbitrary. The Petitioners have therefore approached this Court to set aside the impugned orders and to direct the Respondents to consider the 14 occupancies/tenancies of the said rooms as independent occupancies/tenancies and grant the benefit of additional incentive FSI accordingly under DCR 33(7) to the Petitioners and permit the redevelopment as per NOC dated 13 July 2012.
I have heard learned Counsel for the parties and perused the material on record.
Learned Senior Counsel for the Petitioners made the following submissions:
(i) It is not in dispute that the rooms in question are 14 independent rooms of the size of 165 sq.ft. each which is the same as all other single rooms in the building and other buildings in the said property. This is not 8/21
9/21 a case where that the tenancies are artificially inflated and each room was occupied by the different person at all times when it was run as Dharamshala where there were tenants/occupants with occupancy ranging from few days to few years and these rooms were never occupied by the owners. Therefore, the said rooms are eligible for being considered as an independent alternative accommodation; (ii) The Inspection Extract issued by Municipal Corporation reflects that there are 14 separate rooms which are considered as separate tenements. The certified list issued by the Repair Board also shows that there are 14 separate tenements. Since the said rooms are in existence prior to 13 June 1996 the occupants/tenants are eligible for permanent alternate accommodation as separate units. There has been no increase in the tenancies or the rooms post 13 June 1996. There is no division of any room which was given to any new tenant and the number of tenancies/occupancies have remained the same as can be verified from Inspection Extract for the year 1995-96;
(iii) As per clause 21 of Annexure B of the Government Resolution dated 16 August 2010 if a tenement was in existence prior to 1996 and new tenancy is created by the landlord post 1996 such tenancy is considered to be eligible and the new tenant in occupation is considered eligible for alternate accommodation;
(iv) By Government Resolution dated 22 February 2013 the guidelines 9/21
10/21 in the Government Resolution dated 16 August 2010 were amended and clause 13 of Annexure B of the original guidelines was substituted. The new clause 13 provides that 'if a person has more than one room which may be either adjacent to each other or separate or there is a separate rent receipt or Agreement for each of the rooms then all such rooms should be considered as separate occupancies'; (v) All the 14 rooms have been treated as separate tenancies and have been assessed separately by the Municipal Corporation for property taxes. Merely because the rooms were used as Dharamshala prior to 2009 by the erstwhile owner (Trust) would not mean that these occupancies can be clubbed together. Each of the tenements/ occupants would have to be rehabilitated as otherwise they would be shelter-less and grave hardship would be caused to them;
(vi) The object of Regulation 33(7) is to incentivize reconstruction of old and dilapidated buildings and the guidelines under the Government Resolutions are required to be interpreted to enhance the object of the Regulation 33(7) and to give the benefit to the occupants/tenants. The Petitioners who are the owners/project proponent/NOC holders are required to be rehabilitate all occupants/tenants; (vii) Alternatively, the said rooms which were used as Dharamshala ought to be considered as commercial and the Petitioners should be held eligible for 50% of the area as incentive FSI; 10/21
11/21 (viii) If the tenement has been in existence prior to 13 June 1996 and if the tenement was occupied as on 13 June 1996 then even if the occupant has changed, the new occupant is eligible even if the tenement is surrendered to the landlord and the same is allotted to another tenant and the area of such tenement is required to be considered for the alternate area;
(ix) The occupants/tenants are occupying 165 sq.ft. carpet area each and are required to be provided fixed 300 sq.ft. carpet area under Regulation 33(7), which the Petitioners are not in a position to provide if the tenants are not treated as separate occupancies, and the entire project becomes inviable;
(x) The Authorities below have not appreciated the scheme under Regulation 33(7) and their approach is too technical. Learned Counsel for the Respondent Nos.3 to 5 on the other hand supported the impugned orders. He reiterated what has been stated in the Affidavit-in-Reply filed on behalf of the Respondent Nos.3 to 5 and submitted that the tenants/occupants have failed to produce necessary and material documents before the Authorities and in view of the concurrent findings of the three Authorities, this Court ought not to entertain the Petition.
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12/21 I have given my anxious consideration to the rival contentions and also considered the written submissions filed by the parties. At the outset, it would be necessary to extract Regulation 33(7) of the DCR as it stood at the relevant time, which sets out the scheme for redevelopment which is applicable in the present case. Regulation 33(7) reads as under:
"33(7) Reconstruction or redevelopment of cessed buildings in the Island City by Co-operative Housing Societies or of old buildings belonging to the Corporation or of old buildings belonging to the Police Department.- For reconstruction/redevelopment to be undertaken by Co-operative Housing Societies of existing tenants or by Co-op. Housing Societies of Landlords and/or Occupiers of a cessed buildings of 'A' category in Island City, which attracts the provisions of MHADA Act, 1976 and for reconstruction/redevelopment of the buildings of Corporation and Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, constructed prior to 1940, the Floor Space Index shall be 2.5 on the gross plot area or the FSI required for rehabilitation of existing tenants plus incentive FSI as specified in Appendix-III whichever is more." (emphasis supplied) It may be mentioned here that the said Regulation 33(7) has been modified by an amendment on 14 August 2013 so as to extend the 12/21
13/21 benefit of the scheme interalia to cessed buildings existing prior to 30 September 1969 and the FSI has been increased to 3. Regulation 33(7) of DCR thus grants incentive package of higher FSI interalia for redevelopment/reconstruction undertaken of certain category of buildings in the Island city. The FSI granted is either 3.0 (2.5 prior to amendment) on the gross plot area or the FSI required for rehabilitation of existing tenants plus 50% incentive FSI whichever is more. In case of composite redevelopment of 2 or more plots the incentive FSI goes upto 60% to 70% as stated in Regulation 33(7). The owner/developer is thus assured of atleast 50% FSI for free sale after accommodating the old tenants/occupants. It may be stated here that the normal FSI in respect of other buildings in the Island city not covered under any Scheme is 1.
33. Appendix-III provides that reconstruction of new building is permitted in pursuance of irrevocable written consents by not less than 70 percent of the occupiers of the existing building and all the occupants of the existing building are required to be re-accommodated in the proposed redeveloped building. By amendment of 21 May 2011 to Appendix III, it is provided that each occupant shall be rehabilitated and given the carpet area occupied by him for residential purpose in the old building subject to minimum fixed carpet area of 300 sq.ft. and maximum carpet area of 753 sq.ft. as provided in MHADA Act, 1976.
14/21 building will be equivalent to the area occupied in the old buildings. The list of occupants and area occupied by each of the tenant/occupant in the old cessed building is required to be certificated by the Repair Board and the irrevocable written consents of the tenants/occupants are also required to be certified by the Repair Board. The tenements in the reconstructed building are to be allotted by the landlord/Co-operative Housing Society to the occupiers as per the list certified by the Repair Board. The prescribed percentage of surplus built-up area as provided in the Table in the Third Schedule of the MHADA Act, 1976, is to be made available to the Repair Board for accommodating the occupants in transit camps or cessed buildings which cannot be constructed on payment of an amount as may be prescribed under the MHADA Act, 1976; provided that the area equivalent to the market value of area admissible as per prescribed percentage of built-up area can be made available within the same Municipal Ward of MCGM. Clause 13 of the Appendix III is material. It provides as follows:
"13.
Since the permissible FSI in clause 5 of this Appendix is dependent upon the number of occupiers and the actual area occupied by them, no new tenancy created after 13-06-1996 shall be considered. Further unauthorised constructions made in the cessed buildings shall not be considered while computation of existing FSI. However, the occupier may be allowed to declare whether the tenement is residential or non-residential." (emphasis supplied) 14/21
15/21 The procedure prescribed to determine the eligibility of tenants/ occupants/residents in cessed building and area permissible to them is laid down in the guidelines contained in the Government Resolution dated 16 August 2010. The Petitioners have adverted to Clause 13 and 21 of Annexure B of the aforesaid Government Resolution dated 10 August 2010. They read as follows:
"(13) Stay of tenant/resident in more than one consecutive tenement:
If the same tenant/resident has more than one consecutive tenements included in Inspection Report and if such tenant becomes eligible, then by consolidating the area of such tenements, it may be shown in the name of said tenant/resident. However, if such tenant/resident has more than one consecutive tenement not consecutive, then by treating the same separate, the tenant/resident may be treated as eligible for more than one tenement. (21) Tenements received back by owner from tenant/resident:
Due to Court's Order, provisions in requisition rules, etc., sometimes owner gets back the tenements. The owner gives such tenements to new tenant/resident. If tenement received back by owner for any reasons, is included in Inspection Extract and if sufficient evidence is available that tenant/resident was staying in the said tenement prior to 1996, then tenant/resident residing actually and came newly in tenement may be treated as eligible."
By the Government Resolution dated 22 February 2013, clause 13 of Annexure B reproduced above was deleted and substituted in the following terms:
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16/21 "(13) Stay of tenant/resident in more than one consecutive tenement:
If a resident has separate rent receipt or agreements for separate rooms/tenements consecutive or not consecutive than one, then they may be held eligible as separate tenements. If any resident has more than one consecutive rooms but has one rent receipt/agreement, then its independent eligibility may not be taken into account. However, by ascertaining that the said tenement is included in Inspection Extract of year 1995-96 of Municipal Corporation, besides this if he has government/semigovernment allotting evidences providing his stay of prior to 13th June 1996, then such tenant/resident may be treated as eligible and separate tenements may be declared as eligible for rehabilitation."
(emphasis supplied)
17. It is submitted that considering the aforesaid Government Resolutions and particularly paragraphs 13 and 21 extracted hereinabove, the benefit of additional incentive FSI under Regulation 33(7) cannot be denied - (i) if the tenement is in existence prior to 13 June 1996, (ii) if the tenement was in occupation as on 13 June 1996 then even if the occupant has changed, the new occupant is eligible, (iii) even if the tenancy is surrendered to the landlord and the same is allotted to another occupant/tenant then area of such tenement is to be considered in the computation of alternate area. 18.
The question for consideration in the present Petition is whether the said rooms viz.- 14 rooms in Building No.114E on the first floor are to be considered as separate independent rooms or they can be clubbed 16/21
17/21 and considered as one unit for the purposes of the redevelopment scheme under Regulation 33(7) of DCR. It appears that if the said 14 rooms are held to be independent and are not clubbed, then the Petitioners would be entitled to 50% (as stated in the NOC issued by the Repair Board) additional incentive FSI on 300 sq.ft. x 14 rooms = 4200 sq. ft. carpet area as provided in Appendix III. However, if the said 14 rooms are clubbed together, the Petitioners would be entitled to 50% additional incentive FSI on maximum 753 sq.ft. carpet area as provided in Appendix-III.
19.
Upon considering the scheme of Regulation 33(7) read with Appendix III and the Government Resolutions containing the guidelines setting out the procedure and the mechanism for verification of tenements and certification for eligible tenements for the purpose of permanent alternate accommodation, in my view, the Petitioners have not made out a case of interference with the impugned orders. First and foremost, it is required to be noted that there are three concurrent orders of the Authorities below. I do not find any patent illegality or infirmity in the impugned orders and the view of the Authorities below is certainly a possible view.
20.
It is not in dispute that the Petitioners have purchased the said property from the erstwhile owner (Trust) on 20 April 2009 by a Deed of 17/21
18/21 Conveyance dated 20 April 2009. It is also an admitted position that it is only after purchasing the said property on 20 April 2009 that the Petitioners have inducted tenants/occupants in the said rooms. In the Affidavit-in-Reply filed on behalf of the Respondent Nos. 3 to 5 in the companion Writ Petition (L) No. 409 of 2015, it is stated that the tenants/occupiers failed to produce failed to produce the required evidence to prove their eligibility. It is further averred in the said Affidavitin-Reply that in the list of tenants which is enclosed to the Deed of Conveyance dated 20 April 2009, only one tenant, namely, Mr. Umakant Laluram Shukla is shown as the sole tenant of the said rooms and therefore it is clear that in the entire first floor which comprises of 14 rooms was demised to only one tenant.
Thus, on the cut off date of 13 June 1996 there was only one tenancy in respect of the said rooms. There is no Rejoinder to the said Affidavit denying the aforesaid fact or giving any explanation in that regard. The order dated 27 January 2009 of the Charity Commissioner, Maharashtra State, granting permission to the Applicant-Trust (erstwhile owner of the said property), to sell the said property to the Petitioners which is annexed to the Conveyance Deed dated 20 April 2009 (which is placed on record), records the contention of the Applicant-Trust that the said rooms were in possession of the Trust and it was being used as a Dharamshala and that the Trust had completely stopped allotting the rooms of Dharamshala.
19/21 fresh tenancies, if any, were in the year 2009 which is after the cut off date of 13 June 1996. In these circumstances, the amended clause 13 and clause 21 of the Government Resolutions dated 16 August 2010 and 22 February 2013 cannot come to the aid of the Petitioners.
21. Merely because in the Inspection Extract the said rooms may be reflected as separate tenements would not entitle the tenants/occupants to claim eligibility and/or the Petitioners to claim the benefit of additional incentive FSI under Regulation 33(7) in respect of the said rooms. Clause 1 of Annexure B of the GR dated 16 August 2010 speaks of requirement of Inspection Extract as well as sufficient documents showing actual stay prior to the cut off date of 13 June 1996 and only then such resident/tenant is to be treated as eligible. As per clause 2 of Annexure B, for the tenant/occupant to be held eligible, it must be shown that there was a tenant/occupant who was residing in the tenement prior to the cut off date of 13 June 1996 and if that the tenant/occupant has left, then there was a transfer of tenancy which was a legal transfer.
Clause 3 says that only because the tenement is included in the Inspection Extract, the said tenement may not be declared as eligible for rehabilitation.
20/21 assuming that the tenants/occupants were otherwise eligible. Admittedly the said rooms were earlier being used as Dharamshala for residential purposes. Therefore, the alternate contention that the said rooms be considered as non-residential/commercial for the purposes of granting additional incentive FSI as provided in Appendix III, cannot be accepted. 22.
It is noticed that the NOC in favour of the Petitioner No. 1 is issued on 13 July 2012 wherein it is stated in paragraph 33 that in Building No. 114E, Room Nos 16 to 31 on the 1st floor are clubbed together. The Petitioners did not object to the clubbing at the relevant time. The Petitioners however have filed this Petition only on 21 February 2015. The Petitioner No. 1 was also apparently served with a copy of the impugned order dated 6 May 2013 of the VP & CEO, MHADA (copy whereof was marked to the Petitioner No.1) but it chose not to file any Appeal before the Secretary, Housing Department, State of Maharashtra. Prima facie, the filing of the present Writ Petition appears to be an afterthought.
It may be further stated that the grievance of the Petitioners in this Petition is confined to the grant of additional incentive FSI in connection with the rehabilitation of the tenants/occupants of said rooms only, as discussed in paragraph 18 hereinabove.
21/21 13 July 2012). The present Writ Petition as well as the companion Writ Petition filed by some of the tenants/occupiers is silent on whether or not the tenants/occupiers have granted their irrevocable written consents in favour of the Petitioners for the purposes of grant of NOC by the Repair Board, nor do the Writ Petitions disclose whether the tenants/occupiers have executed any Agreements with the Petitioners for providing them permanent alternate accommodation. Though, prima facie, there may be some substance in the contention on behalf of the Petitioners that the eligibility criteria is required to be more tenement-specific rather than tenant-specific, however since the vires of the provisions and GRs are not in challenge before me, I am not required to go behind the provisions and GRs.
23.
In light of the aforesaid discussion, no interference is warranted with the impugned orders in the exercise of extraordinary writ jurisdiction of this Court. The Petition is dismissed. There shall be no order as to costs.
(A.A. SAYED, J.) katkam 21/21