Writ Petition (L) No.2736 of 2012,Chamber Summons No.291 of 2012

5th December, 2012

Petitioner Counsel: Mr. Nilesh Pawaskar
Respondent Counsel: Mr. Vinod Mahadik,Ms. Aparna Murlidharan,Mr. P.G.Lad,Mr. S.G. Surana,Mr. R.J. Mane,Mr. Vijay Patil

JUDGMENT

-DR. D. Y. CHANDRACHUD, J. :- These proceedings have been instituted before the Court by seven persons acting for themselves and for and on behalf of 217 residents. The Petition has been verified by the Seventh Petitioner, who is the son of the First Petitioner, acting as a Constituted Attorney. The subject matter of these proceedings relates to the redevelopment of a property known as Haji Kasam Chawls. This cluster of buildings consists of Chawls 59, 60 and 60A and Building Nos.(6A), 368, 386(10/18), 346/364, 364A, 364-B, 368-A and 368-B situated on land comprising in City Survey 71 (part), 72, 77, 213/74 and 214/74 at Islam Mill Compound, Currey Road, Lalbaug, Mumbai. The Fourth Respondent is the owner and developer of the property which consisted of six buildings constructed - the Court is informed - about 140 years ago. All the buildings are admittedly old and dilapidated. There were as many as 736 occupants of which 627 were comprised in Cessed-A category structures, 85 were non-cessed structures and 24 were slum structures.

2. Initially, on 19 April 2007, an agreement was entered into between the Fourth Respondent and the proposed Co-operative Housing Society representing the occupants of the chawl structures. The agreement inter alia envisaged the provision of alternate accommodation admeasuring 225 sq.ft. in addition to which there was a provision for a dry balcony of 75 sq.ft. This was followed by a further agreement dated 5 June 2007 between the developer and the proposed society. While reiterating in clause (1) that the occupants of some of the buildings will be provided alternate accommodation admeasuring 225 sq.ft. and a dry balcony of 75 sq.ft., clause 17 of the agreement stipulated that if before the commencement of construction any additional benefit came to be provided in respect of the permissible area under the relevant Regulations, the benefit of such concession would be extended to the occupants. According to the developer, in 2007 over 90% of the occupants gave their consents for redevelopment. On 28 June 2008, MHADA issued an NOC for redevelopment under DCR 33(7).

3. On 2 March 2009, as a result of a notification issued by the State Government, the eligible area for rehabilitation of occupants under DCR 33(7) was enhanced from 225 sq.ft. to 300 sq.ft., it being stipulated that in the case of redevelopment schemes already in progress where construction had not been completed upto the plinth level, the proposal may be converted in accordance with the modified regulations at the option of the project proponent. Simultaneously, DCR 33(9) came to be substituted. Whereas DCR 33(7) relates to the redevelopment of cessed structures, DCR 33(9) deals with reconstruction or redevelopment of cessed buildings/Urban Renewal Schemes and provides as follows:

"(9) Reconstruction or redevelopment of cessed buildings/Urban Renewal Schemes on extensive area. - For reconstruction or redevelopment of cessed buildings/Urban Renewal Schemes in Island City, undertaken by (a) the Maharashtra Housing and Area Development Authority or Municipal Corporation of Greater Mumbai either departmentally or through any suitable agency or (b) MHADA/MCGM jointly with land owners and/or Co-operative Housing Societies of tenants/occupiers of buildings or Developer or Co-operative Housing Society of hutment dwellers therein, (c) independently by land owners and/or Co-operative Housing Societies of tenants/occupiers of buildings or Developer, the FSI shall be 4.00 or the FSI required for rehabilitation of existing tenants/occupiers plus incentive FSI as given in Appendix III-A, whichever is more."

Under Clause 1.1 of Appendix III-A, regulations have been framed for reconstruction or redevelopment of cessed buildings under Urban Renewal Schemes. An Urban Renewal Scheme under Clause 1.1 is a scheme in the Island City of Mumbai with a minimum area of 4000 sq.mtrs., bounded by existing distinguishing physical boundaries and consisting of a mix of structures of different characteristics. The mix of structures may consist of cessed buildings, buildings constructed before a stipulated date and acquired by MHADA, buildings constructed before a stipulated date which are unfit for human habitation, buildings belonging to the Government, semi governmental bodies and the Municipal Corporation and slum areas including slums on public lands prior to the cut off date of 1 January 1995. Under Clause 3(a) redevelopment under an Urban Renewal Scheme requires irrevocable written consent of not less than 70% of the eligible tenants/occupiers of each plot involved in the scheme. Clause 4 stipulates that each occupant/tenant is to be given the carpet area occupied by him for residential purposes in the old building subject to a minimum of 300 sq.ft. In the case of non-residential occupiers, the area to be allowed in the reconstructed building is to be equivalent to the area occupied in the old building. Clause 5 of Appendix III-A provides for allocation of FSI for rehabilitation of the existing tenants/occupiers, the share of the owner, the share of the Municipal Corporation/MHADA and incentive FSI. The provision further envisages that in the proposal for a maximum of four FSI, the permissible maximum FSI over and above what is required to be provided for rehabilitation and as an incentive shall be shared in terms of built up area between the Municipal Corporation, MHADA and the private developer in a stipulated ratio.

4. The Government of Maharashtra granted its approval for redevelopment under DCR 33(9) on 12 January 2010. A Letter of Intent was issued by the High Power Committee set up by the State Government on 6 February 2010. The Municipal Corporation issued an IOD for rehab and cessed buildings on 18 June 2010. On 22 July 2010, a commencement certificate was issued by the Municipal Corporation for a rehab building upto 23 floors. A commencement certificate was issued at the same time for the sale buildings. The Fourth Respondent has completed the construction of one rehabilitation building comprising of a ground floor and 23 upper floors consisting of 543 rehab tenements which are allotted to eligible occupants. The Municipal Corporation has issued an occupation certificate for the first rehab building. Nearly 390 occupants have shifted to the rehab building upon being granted possession of their permanent alternate accommodation. The Municipal Corporation has also approved building plans for a composite building and both an IOD and a commencement certificate have been issued. A composite building consisting of a ground floor and 23 upper floors has been constructed. This building, it has been stated in the affidavit in reply, would shortly be ready for allotment. The Municipal Corporation has also issued an IOD and a commencement certificate for the sale building consisting of a ground and 51 upper floors and construction is in progress.

5. A Petition under Article 226 of the Constitution Writ Petition 1174 of 2011 was instituted before the Court for the purposes of challenging the redevelopment. Counsel appearing on behalf of the Petitioners in these proceedings states that they were parties to the earlier proceedings. While disposing of that Petition, a Division Bench of this Court noted that the relief sought in that proceeding was that the Fourth Respondent should not be allowed to carry out development work without the consent of the occupants and in breach of the agreement with the proposed Co-operative Housing Society. During the course of the hearing of the proceedings, the Petitioners stated before the Court that they were not interested in challenging the development, but the only submission was that the development should be carried out in accordance with law and subject to IOD conditions. This was recorded in the order passed by the Division Bench in the following terms:

"The learned counsel for the petitioners submitted that the petitioners are not interested in challenging the development carried out by respondent No.4 but his argument is that the petitioners should be given area as provided by law and should carry out development work in accordance with law and also to comply with IOD conditions. Learned counsel for the petitioners also pointed out that the premises where the petitioners are presently staying require urgent repairs."

The Division Bench while disposing of the Petition, left it open to the Petitioners to move the High Power Committee in respect of the grievance relating to the area to be allotted to each occupant in the newly constructed premises. The Fourth Respondent was directed to carry out repairs to the existing building in order to obviate any danger to the inhabitants. The developer also stated before the Court that it was ready to provide compensation in lieu of transit accommodation to such of the occupants who are desirous of obtaining transit premises. A Contempt Petition was thereafter filed before a Learned Single Judge of this Court on the allegation that in breach of the directions contained in the order of the Division Bench, the developer had failed to carry out repairs. A Learned Single Judge of this Court by a judgment dated 13 January 2012 dismissed the Petition holding that there was no substance in the grievance of the occupants.

6. The Petitioners moved the High Power Committee, following the judgment of the Division Bench. While disposing of the appeal, the Committee noted that the land has been reserved for housing the dishoused and Municipal staff quarters and consequently, the Fourth Respondent is required to construct and hand over to the Municipal Corporation free of cost built up area for that purpose admeasuring about 10,000 sq.mtrs. The Committee arrived at the finding that the scheme of redevelopment has been approved with the consent of 70% of the occupants. However, the issue in the case was whether following an increase in the FSI for a DCR 33(9) scheme, the occupants were entitled to additional benefit in accordance with Clause 17 of the redevelopment agreement with the developer. Dealing with this issue, the High Power Committee has held as follows:

"The provisions of Regulation 33(9) of DCR 1991, are clear. The Government of Maharashtra has amended the provisions of DCR 33(9) and allowed higher FSI of 4 with the intention to have integrated planning of Urban Renewal Schemes and to generate more PAP tenements/housing stocks. No additional benefits accrue to the existing occupants under 33(9) scheme save and except provisions of corpus fund and better planning standards due to cluster approach. As far as rehab area is concerned the occupants are entitled only to rehab tenement of carpet area admeasuring 300 sq.ft. as per DCR 33(9) which is the same as in DCR 33(7).

This Committee has perused the provisions contained in Clause 5 of Appendix III-A of Regulation 33(9), which states that, the balance additional 1 F.S.I. is required to be shared between the Government/statutory Body and the developer in the ratio of 1:0.5 wherein 67% area goes to MHADA/MCGM free of cost while 33% area goes to the developer in lieu of his investment cost towards providing of public amenities, constructions cost, transit cost, infrastructure cost and etc. in the scheme."

Finally, the Committee has noted that as regards the corpus fund, the Fourth Respondent has agreed to create the fund in the amount of Rs.25,000/- per occupant or in whatever other sum that may be fixed by the Committee constituted under Clause 18 of Appendix III-A of DCR 33(9). The Committee was directed to take a decision on that issue within a period of four weeks. The appeal has accordingly been disposed of.

7. Counsel appearing on behalf of the Petitioners has submitted that (i) The scheme for redevelopment under DCR 33(9) has not received the consent of 70% of the eligible occupants as mandated; (ii) Under the agreement that was entered into with the Rahiwasi Sangh (Exh.A), Clause 17 envisages that any increase in the FSI before the commencement of construction should enure to the benefit of the occupants. Consequently, it was urged that since the FSI available is four, the benefit of the enhancement of FSI must enure to the occupants. The grievance of the occupants is that the conditions stipulated by the Municipal Corporation in the IOD have thus not been fulfilled.

8. Opposing the grant of any relief, Counsel appearing on behalf of the Fourth Respondent submitted that (i) The issue of consents cannot be raised at this stage, having regard to the fact that in paragraph 14 of the Petition there is an express admission of the fact that consents for redevelopment under DCR 33(7) and/or DCR 33(9) have been granted. Moreover, even before the Division Bench of this Court on 29 August 2011 in the previous petition a categoric statement was made to the effect that the Petitioners are not interested in challenging the redevelopment carried out by the Fourth Respondent. MHADA, it was submitted, has duly examined the extent of irrevocable consents and it has been communicated by the Chief Officer of the Repair Board on 7 April 2010 to the Director, Engineering Services and Projects and Member Secretary of the High Power Committee constituted under DCR 33(9) that almost 90% of the occupants have furnished their irrevocable consents; (ii) Originally under DCR 33(7) alternate accommodation admeasuring 225 sq.ft. was required to be provided to each occupant. On 28 March 2009, following an amendment to the DCRs, the area to be provided was enhanced from 225 sq.ft. to 300 sq.ft. and DCR 33(9) was also substituted in similar terms. As a result of the amended provision every one of the occupants would be now granted 300 sq.ft. in addition to which there is a provision of a dry balcony of 75 sq.ft. The enhancement of FSI to four does not enure to the benefit of occupants since the additional FSI of one that is made available has to be handed over to MHADA and the Municipal Corporation in the stipulated proportion as provided in the DCR; (iii) In the present case, one rehab building consisting of 23 storeys has already been constructed for which an occupation certificate has been received. 390 occupants have been handed over possession against the execution of individual agreements. The Petition is motivated at the instance of seven Petitioners and particularly the Seventh Petitioner who has verified the Petition. The Seventh Petitioner, it is urged, does not have an individual entitlement since his father, the First Petitioner, is eligible to the allotment of alternate accommodation; (iv) The High Power Committee which is an expert body has also found that under DCR 33(9), the occupants would be entitled to a tenement admeasuring 300 sq.ft. in carpet area. The balance additional FSI of one is required to be shared with MHADA/MCGM free of cost in the ratio of 1 : 0.5.

9. The issue as to whether the scheme under DCR 33(9) has received the requisite consents of 70% of the eligible occupants is an issue which stands concluded. In paragraph 14 of the Petition, the Petitioners have themselves proceeded on the basis that an agreement was entered into between them and the developer based on the assurance that the property would be developed under DCR 33(7) and/or DCR 33(9). The averment of the Petitioners in paragraph 14 is thus:

"A final meeting was called on 19 April 2011 in which various representations were made. An agreement was arrived at between the Petitioners and Respondent No.4 based on representations and assurances given by the Respondent that they shall develop the said property under Regulation 33(7) and/or 33(9) and each of the occupants/tenants would be provided with alternate premises in lieu of their existing premises."

In the earlier round of the proceedings before this Court (Writ Petition 1174 of 2011), a categoric statement was made before the Court "that the Petitioners are not interested in challenging the development carried out by Respondent No.4". That statement clearly postulated that the Petitioners to these proceedings had accepted the authority of the Fourth Respondent to develop the property. The grievance of the Petitioners was in regard to the area to be allotted to them under the law in the newly constructed premises for which they were relegated to the High Power Committee. On 7 April 2010, a report was submitted by the Chief Officer of the Repair Board to the Director (Engineering Services and Projects) who is also the Member Secretary of the High Power Committee constituted under DCR 33(9) in which the position in regard to the grant of irrevocable consent was summarised as follows:

"Regarding the irrevocable consents of total tenements/occupants on the captioned property the details are shown as under:

	Total No. of tenements/ occupants	Irrevocable Consents given	Percentage
Cessed Building	618 Nos.	556 Nos.	89.96%
Non Cessed Structures	46 Nos.	44	90.36%
Total	664 Nos.	600	90.36%

As seen above the Applicant M/s. Nish Developers Pvt. ltd. has submitted almost 90% irrevocable consents of tenants/occupants on the captioned property and the same area verified by the Executive Engineer, F/South, Div/MBRRM."

No submission has been made before the Court on behalf of the Petitioners in regard to the correctness of the aforesaid statement. The statement in the report would indicate that the Fourth Respondent has the consents of nearly 90% of the tenants/occupants which were verified by the Executive Engineer, F-South Division.

10. Essentially, the grievance of the Petitioners both before the High Power Committee and during the course of the submission in these proceedings is that since Clause 17 of the agreement between the developer and the proposed society (Exhibit A) envisaged that an increase in FSI prior to the commencement of construction would enure to the benefit of occupants, the Petitioners should be allotted accommodation in excess of 300 sq.ft. In this regard, the High Power Committee in the course of its decision, has noted that the amended provision of DCR 33(9) allows a higher FSI of four with the intention of furthering integrated planning in Urban Renewal Schemes and to generate more tenements in the housing stock inter alia for Project Affected Persons (PAPs). Moreover, according to the Committee, no additional benefit accrued to the Petitioners under a DCR 33(9) scheme save and except provisions for a corpus fund and better planning standards due to cluster approach. The occupants would be entitled to tenements admeasuring a carpet area of 300 sq.ft. The additional FSI of one is required to be shared between the developer and the MHADA and Municipal Corporation in the ratio stipulated in clause (5) of Appendix III-A. In the affidavit filed by the Fourth Respondent, the manner in which the additional FSI is to be shared with the Municipal Corporation and MHADA has been set out. It has been stated that the distribution of additional FSI would take place in the following manner:

Area to be constructed and handed over free of cost in lieu of MSQ Reservation	3,066.91 sq.mtrs.	46 Flats of 595 sq.ft.
Area to be constructed and handed over free of cost in lieu of HD Reservation	11,954.80 sq.mtrs.	339 Tenements of269 sq.ft. Carpet
Area to be constructed and handed over free of cost to MHADA for sharing of surplus	9,952.95 sq.mtrs.	298 Flats of 300 sq.ft. carpet
TOTAL AREA TO BE HANDED FREE OF COST	24,927.16 sq.mtrs.	743 Tenements of different areas.
Additional Area due to DC Regulation 33(9) to owner against construction of 25000 sq.mtr.	4,976.48 sq.mtrs.

11. The High Power Committee has also noted that whereas the Municipal Corporation and MHADA receive 67% of the additional FSI free of cost in terms of built up area, 33% would enure to the developer in lieu of his investment towards the provision of public amenities, construction cost, transit cost and infrastructural expenses under the Scheme. This finding of the High Power Committee has not been challenged during the course of the oral submission urged on behalf of the Petitioners. No effort has been made to demonstrate before the Court that this finding suffers from any error apparent.

12. The stage at which the Petition has been filed is when the construction of one rehab building of 23 floors has already been completed. 390 occupants have been allotted tenements against the execution of individual agreements, a list whereof is appended at Exhibit 2 to the affidavit in reply. Each of the Petitioners (save and except for the Seventh Petitioner who is not eligible) is to be allotted alternate accommodation in accordance with their entitlement. Counsel appearing on behalf of the Petitioners has stated before the Court that the Petitioners were in occupation of individual rooms admeasuring 120 sq.ft. in their old accommodation. As against this, each of them is to be provided permanent alternate accommodation admeasuring 300 sq.ft. in addition to which there is a provision of a dry balcony admeasuring 75 sq.ft. Apart from the rehabilitation building which has already been completed (for which an occupation certificate is received), the construction of a composite building of 23 storeys is also complete (for which the occupation certificate is still to be received). The construction of the sale building has also commenced. In this view of the matter, on the ground of delay alone, the Petitioners would be disentitled to the grant of relief. However, we have also dealt with the submissions which were urged on behalf of the Petitioners to determine as to whether there is any substance in the grievance. No case for interference has been made out.

13. Before concluding the judgment, it would be necessary to note that the Petition as originally filed was by seven Petitioners. The Petition has been affirmed by the Seventh Petitioner acting as Constituted Attorney on behalf of the other Petitioners. Since the Petitioners claimed that they were filing the Petition on behalf of 217 other persons, this Court in an order dated 29 November 2012 had observed that unless steps were taken to bring on record the names of the other 217 persons by adopting a suitable procedure, the Court will have to proceed on the basis that the Petition has been filed only by seven persons. An unregistered Chamber Summons has been tendered during the course of the hearing which Counsel appearing on behalf of the Petitioners undertakes to get registered forthwith. The affidavit in support of the Chamber Summons has once again been affirmed only by the Seventh Petitioner. The Power of Attorney which is annexed to the Chamber Summons has been executed only by eight persons among them being the six Petitioners. In this view of the matter, it is evident that the grievance of the Petitioners has been sought to be espoused only by seven Petitioners through their constituted attorney, the Seventh Petitioner.

14. As regards the provision of a corpus fund, Clause 16 of Appendix III-A stipulates that it is to be created by the developer to take care of the maintenance of the building for a period of ten years, to be decided by the High Power Committee constituted under Clause 18 of Appendix III-A of DCR 33(9). The HPC has directed the Committee under DCR 33(9) to take a decision within four weeks of the date of the order. In the affidavit in reply filed by the developer it has been stated that the Fourth Respondent shall make a provision for a corpus fund as may be decided by the High Power Committee, in the event that the direction is more than what is agreed by the proposed Society. An undertaking to that effect has been tendered before the Court on behalf of the Fourth Respondent. Counsel appearing on behalf of the Fourth Respondent has also undertaken before this Court that individual agreements shall be entered into with all the Petitioners as indeed with all other occupants who are eligible.

15. For the aforesaid reasons, we are of the view that there is no merit in the Petition. The Petition shall accordingly stand dismissed. There shall be no order as to costs.

16. For the reasons indicated above, the Chamber Summons also stands dismissed.

Petition dismissed.