Writ Petition (L) No.2549 of 2014

6th February, 2015.

Petitioner Counsel: Mr. G.S. GODBOLE with Mr. ABDUL LATIF N. KHATRI
Respondent Counsel: Mr. R.J. MANE, Mr. RAVI KADAM, Sr. Adv., with Mr. P.G. LAD with Ms. APARNA MURLIDHARAN, Mr. PRAVIN SAMDANI, Sr. Adv., with Mr P.K. DHAKEPHALKAR, Sr. Adv. and Mr. SAKET MONE i/b VIDHI PARTNERS, Mr. ZAL ANDHYARUJINA with Mr. KUNAL DWARKADAS and Ms. STUTI GADODIA i/b. KANGA & Co., Mr. A.Y. SAKHARE, Sr. Adv. with Ms. T.H. PURANIK

Cases Cited:
Radhika George & Ors. Vs. Maharashtra Housing and Area Development Authority, 2012(4) ALL MR 918=2012 (5) Bom.C.R. 697 [Para 13]
Rajendra Thakkar & Ors. Vs. M.C.G.M. & Ors., 2004 (4) Bom.C.R.1 [Para 24,30,31]

JUDGMENT

MOHIT S. SHAH, C.J. :- This petition under Article 226 of the Constitution of India challenges the notices/orders of eviction issued by Maharashtra Housing & Area Development Authority (MHADA) in respect of a redevelopment project and also permissions granted by other statutory authorities from time to time. Under the said project, the petitioners are offered alternative permanent accommodation on the same land, but the petitioners have nonetheless challenged the notices and orders of eviction.

2. The facts leading to filing of this petition, broadly stated, are as under:

(a) The subject matter of controversy in the present petition is a project for redevelopment of the following properties in Parel-Sewree Division popularly known as Dr. Vier's Wadi / Kale Wadi at G.D. Ambedkar Marg, Mumbai, under Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991 (DCR):-

Sr. Nos.	Description of	Area in sq.mtrs.
1	CS No.189 (Part)	9,915 sqm.
2	CS No.197 (Part)	6,876 sqm.
	Total :	16,791 sqm.

Both the properties have been amalgamated with consent of the proposed cooperative societies on the respective plots and being developed by respondent no.3. The occupiers of the structures on CS No.189 (Part) have formed a proposed cooperative housing society called Aikyadarshan Cooperative Housing Society and the occupants of CS No.197 (Part) have formed a proposed cooperative housing society called Ratna Sidhu Cooperative Housing Society. Both the societies have total number of 410 tenants/occupants, out of whom 260 tenants/occupants have already shifted from their structures to permanent accommodation constructed by the developer and 39 have expressed their willingness to shift, i.e. now 299 tenants/occupants (i.e.73%) are in favour of implementation of the ongoing project for redevelopment. In fact, even out of 253 tenants on the plot bearing CS No. 189, as many as 125 have already shifted to alternative permanent accommodation allotted to them. The remaining tenants/occupants (27%) have filed the present petition.

(b)The petitioners are occupants of structures on the land bearing CS No. 189 (Part) and were originally members of Aikyadarshan Cooperative Housing Society (proposed). The petitioners consented to redevelopment of the property under Regulation 33(7) of the DCR. Pursuant to the consent given by the occupants of the structures, a Tripartite Agreement between the Society, respondent no.3 developer and the members of Aikyadarshan Co-operative Society Ltd. including the petitioners was entered into on 5 August 2001. Similar Tripartite Agreement was entered into in respect of the other plot.

(c)In the above background, all the tenants on both the parcels of land agreeing for redevelopment, respondent no.3 developer requested for consent of both the societies for amalgamation of the two plots on 14 March 2004. Pursuant to the above request, on 13 June 2004 the Society, of which the petitioners are members, passed a resolution giving consent to the amalgamation.

(d) The question of amalgamation again came up for reconsideration and discussion at the General Body Meeting held on 7 January 2007 and the issue of providing extra amenities to the members was discussed. Thereafter at the meeting held on 8 April 2007, the issues of extra facilities, amenities, compensation and amalgamation were discussed and reiterated and pursuant thereto a Supplemental Agreement dated 18 April 2007 came to be executed between the two societies and the developer. MHADA undertook verification of consents between April and June 2007 and it approved the proposal for combined redevelopment by issuing NOC on 22 October 2007 which was revised on 10 May 2010.

(e) Pursuant to the aforesaid MHADA NOC dated 22 October 2007, the Municipal Corporation sanctioned the layout on 4 March 2008 and granted first Intimation of Disapproval (building permission) on 19 April 2008 and Commencement Certificate on 26 July 2008. Pursuant to the aforesaid permissions, respondent no.3 developer commenced the construction and completed construction of building nos.3, 4, 5, 6 and 6B and Occupation Certificates were also granted by the Municipal Corporation on 10 October 2012 and 27 November 2013 in respect of the said buildings.

(f) As far as building no.4 is concerned, in the original plan sanctioned in the year 2008 building no.4 had much larger built-up area but by amended plan of 2012 building no. 4 was divided into 3 buildings, i.e. 4, 4A and 4B. The plans for building nos.4A and 4B came to be approved on 4 April 2012 and the Commencement Certificates in respect of the said two buildings were issued by the Municipal Corporation on 28 August 2012.

(g) The petitioners, who are physically occupying the old structures on C.S. No.189 (Part), are refusing to vacate the premises in their occupation in spite of permanent alternate accommodation having been offered to them in the above new buildings and, therefore, proceedings under section 95A of the MHADA Act were commenced. On 4 April 2014, the Chief Officer of MHADA passed an order of eviction against the petitioners. The petitioners challenged the same by filing Writ Petition No.1250 of 2014 before a learned Single Judge of this Court. The said petition was withdrawn on 12 September 2014 with liberty to file a fresh writ petition. The present petition came to be filed on 19 September 2014. The petition was, thereafter, amended to enlarge the scope of challenge.

3. By this petition under Article 226 of the Constitution of India, the petitioners have challenged:

(i) the notices dated 27 December 2013, 5 April 2014 & 5 May 2014 and the order dated 4 April 2014 issued by respondent no.2 - Maharashtra Housing & Area Development Authority (MHADA) under section 95A of the Maharashtra Housing & Area Development Act, 1976 (MHADA Act) requiring the petitioners to vacate the structures presently in their occupation;

(ii) by a subsequent amendment, the petitioners have also challenged the Government orders dated 15 October 1996 and 6 February 1997 and the Revised NOC dated 10 May 2010 granted by the Chief Officer of Mumbai Building Repairs and Reconstruction Board;

(iii) by another subsequent amendment, the petitioners have also challenged the Revised Building Permission called Revised Intimation of Disapproval (IOD) dated 4 April 2012 and the subsequent Commencement Certificate dated 28 August 2012 and 18 September 2012 issued by Municipal Corporation for Greater Mumbai (Municipal Corporation).

4.The petitioners have challenged the notices issued by MHADA and the final order dated 4 April 2014 under section 95A of MHADA Act on various grounds. We will discuss each of them separately.

5. The respondents have opposed the petition and filed affidavits-in-reply.

6. Before enumerating the contentions raised by the petitioners in the amended petition, we may first indicate the preliminary objection raised by the respondents that the petition suffers from gross delay and laches and also that the petition has been filed mala fide.

7. It is contended that the petitioners and both the proposed cooperative housing societies had given consent for amalgamation of the two plots as far back as on 13 June 2004 and reiterated the said stand for amalgamation of the two plots at subsequent meetings held on 7 January 2007 and 8 April 2007, pursuant to which the Supplemental Agreement dated 18 April 2007 was executed. It is, therefore, submitted that the petition filed in the year 2014 before the learned Single Judge as well as the present petition filed in September 2014 suffer from gross delay and laches. In fact, the construction of as many as 5 buildings out of the proposed 7 buildings was also completed and the occupation certificates were issued for the same in the years 2012 and 2013. The plans for building nos.4A and 4B were also approved as far back as on 4 April 2012 and commencement certificate for the same was issued on 28 August 2012. Thus, the petition suffers from gross delay and laches.

By now out of total 410 tenants/occupants, 260 have already shifted and are occupying permanent alternative accommodation and 39 have expressed their willingness to shift and respondent no.3 developer has spent more than Rs.200 crores on the project including the permanent accommodation already constructed where 121 flats are lying vacant and thus irreversible equities have been created and the developer has been placed in a very precarious financial situation where the developer is not allowed to generate any revenue even for the purpose of recovering any part of the huge expenditure already incurred by the developer and the inherent burden is mounting at the rate of Rs.9.40 lakhs per day.

8. We find considerable substance in the above preliminary objection because the petitioners have not explained the delay in challenging the Government orders dated 15 October 1996 and 6 February 1997. Similarly, the petitioners have not explained the delay in challenging the revised NOC dated 10 May 2010 issued by Mumbai Building Repairs and Reconstruction Board or the delay in Revised Intimation of Disapproval dated 4 April 2012 and the Commencement Certificates dated 28 August 2012 and 18 September 2012 issued by the Municipal Corporation.

9. At the hearing of the Writ Petition, the learned counsel for the petitioners sought to submit that the petitioners are not basically challenging the redevelopment but only demanding access to building nos.4A and 4B which are proposed to be allotted to the petitioners, through the open land where the sale component building is proposed to be constructed.

10. There is no dispute about the fact that the petitioners have been offered alternative permanent accommodation in building nos.4, 5 and 6 having flats of the carpet area of 300 sq.ft. each which are already constructed and for which occupation certificates have already been granted by the Municipal Corporation. It is to be noted that these buildings are on lands bearing CS No. 197 which has been amalgamated with the plot bearing CS No. 189 upon which the petitioners are having their present structures. The petitioners through Aikyadarshan Co-operative Housing Society, of which the petitioners are members, had agreed for such amalgamation in the year 2004 and again in the year 2007. It is, therefore, not open to the petitioners to object to allotment of flats in building nos.4, 5 and 6 on the ground that the said buildings are on the plot bearing CS No. 197 and not on the plot bearing CS No. 189 on which the petitioners' present structures are situate.

11. Without prejudice to these contentions, learned counsel for the Developer submitted that the Developer is ready to offer building nos.4A and 4B to the petitioners which buildings are on the plot bearing CS No. 189. However, learned counsel for the petitioners submitted that the access to building nos.4A and 4B should be given only through the plot bearing CS No.189 and it should not be through the plot bearing CS No. 197. Learned counsel for the Developer thereupon submitted that it would not be possible for the Developer to have the free sale flats on the plot bearing CS No.189 and it would make the project unviable. We also note that the petitioners had never objected to the building plans sanctioned by the Municipal Corporation between 2008 and 2012 and when the Developer has already invested more than Rs.200 crores by now with interest burden of Rs.23 crores in the last 8 months and with interest burden of Rs.9.40 lakhs per day, any delay on the part of the petitioners in handing over possession of the structures presently in their occupation delays commencement of free sale flats on CS No. 189 and the Developer, who has already invested more than Rs.200 crores in the last 10 years, is not in a position to get return of a single rupee of the redevelopment project.

12. We are, therefore, more than satisfied that the challenges levelled by the petitioners to the impugned orders/ permissions/ commencement certificate issued by the concerned authorities between 1997 and 2012 not only suffer from gross delay and laches, but also lack in bona fides. The petitioners cannot be permitted to challenge those orders/permissions at such a belated stage after 260 out of 410 tenants/occupants have already vacated their premises and shifted to the permanent alternative accommodation, and 39 occupants have shown willingness to shift to permanent alternative accommodation for all of which respondent no.3 has spent about Rs.200 crores. In short, 73% tenants/occupants have no grievance whatsoever.

13. Once we decline to entertain challenge to the orders/ permissions granted between 1997 and 2010, the petition is restricted to challenge to the notices and orders under section 95A of the MHADA Act which is a summary remedy for ensuring expeditious commencement and completion of such rehabilitation scheme. In proceedings of such summary nature, the scope of inquiry is very limited. This question came to be examined by a Division Bench of this Court in Radhika George & Ors. vs. Maharashtra Housing and Area Development Authority, 2012 (5) Bom.C.R. 697 : [2012(4) ALL MR 918]. In the aforesaid case, the Court noted that for speedy and seamless implementation of such redevelopment schemes, the legislature has enacted the provisions of section 95A of the MHADA Act and laid down the following principles :-

(1) What the Board under section 95A of the MHADA Act is required to examine is -

(a) whether it was a collective decision of the members to go in for redevelopment (i.e. whether 70% of the members had consented to the redevelopment);

Clause (1) in Appendix-III of DCR provides that the redevelopment of cessed buildings by the cooperative housing society may be permitted in pursuance of an irrevocable written consent by not less than 70% of the occupiers of the old building. Clause (1) of Appendix III of DCR reads as under:-

" Appendix III

Regulation for the reconstruction of redevelopment of cessed buildings in the Island City by the Landlord and/or Co-operative Housing Societies (D.C. Regulation No. 33(7)).

1. (a) The new building may be permitted to be constructed in pursuance of an irrevocable written consent by not less than 70 per cent of the occupiers of the old building.

(b) All the occupants of the old building shall be re-accommodated in the redeveloped building."

(b) whether the permissions like the NOC etc. were in order; and

(c) whether the developer has provided transit accommodation to the members/occupiers of the building being redeveloped;

(2) Once the Board under section 95A of the MHADA Act finds that these requirements are fulfilled, all that it has to do is to direct the members/occupiers to shift to the transit accommodation, awaiting the completion of the redevelopment.

(3) Once the Board is satisfied that these jurisdictional facts are established, and there is no judicial order that has the effect of restraining it from exercising its powers under the MHADA Act, it has no option, but rather is under an obligation to direct the members of the society to move to transit accommodation in order to facilitate the redevelopment.

(4) The Board under section 95A does not finally determine or terminate any ownership rights of the members and the proceedings thereunder do not result in determining the rights of the parties inter se.

(5) MHADA exercising powers uner section 95A of the MHADA Act is not a forum to adjudicate disputes inter se between the society, members and the developers, which disputes are to be adjudicated in competent courts of law.

(6) The proceedings under section 95A cannot be converted into full-fledged judicial proceedings as if the Board is trying a civil suit.

14. The scope of section 95A of the MHADA Act thus understood, makes it clear that the moment it is demonstrated to the Board that 70% of the members have given their consent to the redevelopment and there is a valid NOC to the project, coupled with the fact that the developer has made suitable arrangements for shifting the members/occupants to a transit accommodation, no further inquiry is necessary. The ambit and scope of section 95A is very limited and proceedings thereunder are not for the purposes of adjudicating disputes inter se between the members, the society and the developer. In the facts of the present case, we find that the jurisdictional facts as set out above have been duly established and therefore, we find no merit in the challenge to the notices and the orders passed under section 95A of the MHADA Act.

15. Learned counsel for the petitioners next submitted that issuance of notices under section 95A of MHADA Act is in violation of the arbitration clause contained in the agreements executed by the petitioners in favour of respondent no.3 developer. It was submitted that clause 27 of the Agreement for permanent alternative accommodation entered into between the petitioners and respondent no.3 contains an arbitration clause. Hence, it was obligatory on the part of respondent no.3 developer to approach the Arbitrator to resolve his complaints. However, without adopting the said legal remedy, the developer has got notices under section 95A of MHADA Act issued through MHADA. Even the MHADA Authorities have issued the said notices without verifying the documents and the Agreements executed by and between the parties, was the submission.

16. We find this argument wholly without merit. Section 95A(1) inter alia provides that where the owner of the building or the members of the proposed Co-operative Housing Society or the occupiers of the said building, submit a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less than 70% of the total occupiers of that building, and an NOC for such reconstruction is issued by the Board, then it shall be binding on all the occupiers of the said building to vacate the premises. Sub-section (2) of section 95A provides for the contingency when an occupier refuses to vacate the premises as provided for in sub-section (1). In such circumstances, sub-section (2) of section 95A stipulates that it would be competent for the Board, on being approached by the holder of such NOC, to effect summary eviction of such occupiers. In fact sub-section (4) of section 95A further stipulates that any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with a fine which may extend to five thousand rupees, or with both. On a bare perusal of section 95A it is clear that the remedy provided thereunder is for a summary eviction. Under the statute (MHADA Act), this summary eviction can be ordered only by the Board, on being satisfied that all the conditions as mentioned therein have been complied with/established. The arbitrator would have no jurisdiction to award summary eviction as contemplated under section 95A. This power can be exercised only by the Board under section 95A of the MHADA Act. In this view of the matter, we do not find any substance in the argument that the notices and the orders passed under section 95A of the MHADA Act were liable to be quashed and/or set aside on the ground that they were obtained without disclosing and/or invoking the arbitration clause in the agreement (clause 27). The arbitration clause in the agreement between the developer, society and its members has no role to play when it comes to issuing notices or ordering summary eviction under the provisions of section 95A of the MHADA Act.

17. Learned counsel for the petitioners submitted that the respondent developer and the Municipal Corporation have violated the Regulation regarding open spaces being DCR No. 23 of Development Control Regulations for Greater Mumbai, 1991, and further submitted as under:

(a) Amenity Open Space: As per Regulation 23 of the DCR for the plot area above 10,000 sq.mtrs., 25% thereof has to be provided as a recreational / amenity open space and as such the total amenity open space requirement would be more than 4197 sq. mtrs.. However, under the guise of concession provided by clause 6.20 of Appendix IV under Regulation 33(10), the amenity open space has been reduced to 8% solely with a view to provide almost 50% of land area for only building no.9 and the entire remaining area for 9 buildings (1 to 6A, 7 and 8) and one Dhobi Ghat and amenity open space. The said reduction is a complete denial of right of life guaranteed under Article 21 of the Constitution.

(b) Under Regulation 23(1)(C) the minimum dimention of recreation space has to be 7.15 mtrs. However, respondent no.3 developer has shown the said margins as 5 mtrs. at some places and 5.2 mtrs. at some places between building nos.4 an 5. The margin spaces between building nos. 4A and 4B have been shown as part of open amenities which is not permissible under Regulation 33 unless they are more than 3 mtrs. and only the area above 3 mtrs. can be calculated.

(c) Under Regulation 23(1)(D) every plot meant for recreational open space is supposed to have independent means of access. This is not provided.

18. The learned counsel appearing for respondent no.3 has submitted that the redevelopment carried out on the said property is under DCR 33(7), and the amenities space requirements are as per provisions of clause 6.20 of Appendix 4 of DCR 33(10) which is also applicable to proposals under DCR 33(7). As per the said provisions, amenity open space to the extent of 8% is permissible. In the present case, the amenity open space is provided as under:-

S. No.	Amenity Open Space	Area in sq.mtrs.
1.	Total area of plot after amalgamation	16791.48
2.	Less setback	(-) 14.29
3.	Less 25% of Dhobi Ghat Reservation area (1281 x 25%)	(-) 320.25
4.	Balance area of plot	16456.94
5.	Amenity Open Space required (8% of 16456.94)	1316.56

Respondent no.3 has provided the amenities open space at the rate of 8% as required under DCR 33(7) Appendix III read with Appendix IV.

19. The learned counsel appearing for the Municipal Corporation has supported the submission of respondent no.3 and relied on the affidavit dated 11 November 2014 of the Assistant Engineer (BP), City, E Ward, Byculla, Mumbai and submitted that there is no violation of DCR 23. The said affidavit reads as under:-

" 1 ... ... ...

2 ... ... ...

3 ... ... ...

4 ... ... ...

(a) I say that the NOC for redevelopment under the provisions of D.C.R.33(7) have been issued by the MHADA u/no. R/NOC/F-1519/ 4698/MBRRB-07 dt 22.10.2007. The proposal for amalgamation/layout of C.S.No.189, 197 of Parel Sewree Division was submitted alongwith Notice u/s.302 of MMC Act vide letter dated 05.11.2007. The amalgamation of C.S. No. 189 and 197 of Parel Sewree Division is approved with the approval of competent authority and layout of amalgamation approved same No.EB/3239/FS/AL on 4.3.2008. Further amended layout is issued 4.4.2012 u/no. EB/3239/FS/AL. The amalgamation/layout are considered as per provision of section 302 of MMC Act. The development proposal as per provision of D.C.R.33(7) 1991, Development Control Regulation 1991.

(b) I say that the proposal under reference is of redevelopment of cessed properties as per provision of D.C.R.33(7) and Appendex-III.

(c) I say that the requirement of access provided is as per relevant provision of D.C.R. The amalgamated plot is directly accessible from the G.D.Ambekar Marg at two locations. The width of access is based on area served from the said internal road. As per layout proposed building no.1 and proposed building No.9 building area directly accessible from G.D.Ambekar Marg at two locations. The width of access is based on area served from the said internal road. As per layout proposed building no.1 and proposed building No.9 building are directly accessible from G.D.Ambekar Marg.

(d) I say that the proposal under reference is of redevelopment under D.C.R.33(7) wherein relaxation for rehab and composite building as sidelined in clause 6 of Appendix -IV of D.C.R.33(10) are applicable to the D.C.R.33(7) (as per Clause -8 of Appendix-III). The pathway and means of access are governed by the provisions of Clause 6.17 to 6.19 of Appendix-IV of D.C.R.33(10).

(e) I say that as described above and on the basis of area served, the access provided to the layout of proposed development are as per above mentioned provisions of D.C.R. And same are approved with the sanction of competent authority.

(f) I say that the proposal under reference is of redevelopment under D.C.R.33(7), the amenity space requirement as pr provision of Clause 6.20 of Appendix-IV of D.C.R.33(10) is applicable to the proposal of D.C.R.33(7) as per Clause 8 of Appendix-III. Thus, the provision of amenity space to the extent of 8% is permissible. As per P.R. Card, the total plot area considered for development is 16791.98 sq.ft. As per approved plan and provision of 33(7), the amenity space requirement is worked out on net plot area i.e. excluding the set back area of 14.29 and area of Dhobighat reservation of 320.25 sq.mtrs. i.e. 16456.94 sq.mtrs. and provided is 1321.60 sq.mtrs. in the layout.

(g) I say that the competent authority/MCGM have taken into consideration the relevant provision of D.C.R.33(7) and accordingly layout, building plans have been approved. The occupation certificate to the rehab building 3,4,5 and 6 have also been granted. The IOD of building No.4-A and 4-B having height 23.45 mt. (less than 24.00 mt.) have been issued under No.EB/6490/FS/A on 04.04.2012 and under no. EB/6491/FS/A on 04.04.2012 respectively and Commencement Certificate for the said buildings meant for rehab component is granted on 28.08.2012. The open space requirement as applicable under relevant provision of D.C.R. with the sanction of competent authority are provided."

20. On hearing the respective counsel and perusing the affidavit dated 11 November 2014 of the Assistant Engineer (BP), City), 'E' Ward, Byculla, Mumbai, we find no substance in the argument made on behalf of the Petitioners that there has been any violation of DCR No.23 of the Development control Regulations of Greater Mumbai 1991. Facts as elaborately set out in the said affidavit, the relevant portion of which is reproduced above, clearly go to show that the provisions of DCR No.23 have been duly complied with. We therefore find no substance in the submission of the Petitioners that there has been non-compliance of the provisions of DCR No.23 of the Development Control Regulations.

21. Learned counsel for the petitioners then contended that there is violation of fire safety norms under DCR No. 43 by the Municipal Corporation and respondent no.3 developer:-

(a) The Municipal Corporation and respondent no.3 developer has flouted the provisions of Regulations 28, 29, 43 and 64. The acts of respondent no.3 developer has materially affected health safety, fire safety, structural safety and public safety.

(b) Fire safety NOC issued by the Fire Department is of year 2009. No subsequent NOC has been issued by the Fire Department.

(c) Respondent no.3 developer has not provided a separate open space for each building. The minimum side margins have not been provided and the areas covered by such margins are utilized for calculating amenity space.

(d) Side and rear margins are not maintained. The said side and rear margin of 6 mtrs. is absolutely essential to ensure the fire engine or any rescue vehicle can reach the building. This requirement is flouted by respondent no.3 developer.

(e) The Commissioner or Fire Chief Officer has no discretionary power to relax any condition which will adversely affect the safety of residents.

(f) The access of 6 mtrs. was required to be maintained from Eastern Boundary of C.S. Nos. 189 and 197. But respondent no.3 has failed to maintain the said open space.

22. Learned counsel for the Municipal Corporation and learned counsel for the developer have submitted that as per DCR 43 which was brought about by amendment dated 6 January 2012 requires fire NOC only if the height of the building is more than 24 mtrs. In respect of building No.4A and 4B offered to the petitioners, the aforesaid provision contained in DCR 43 is not applicable as the height of building4A and 4B is 23.45 mtrs, which is less than 24 mtrs. The learned Senior Counsel appearing for the Municipal Corporation has relied on the affidavit of Mr.Ashok V. Bangar, the Divisional Fire Officer, Regional Command Centre-2, Antop Hill, Wadala, Mumbai dated 21 November 2014.

23. At this stage, it would not be out of place to note that the respondents have shown photographs of the structures presently occupied by the petitioners demonstrating that the present structures are so congested that the space between the two structures would not allow even an autorickshaw to move on the passage between the rows of structures. As against that, we find that on the suit property, the developer had in fact brought the fire engine to demonstrate that there was no impediment to the fire engine having access to the new buildings in case of a fire. In fact, photographs have been brought on record showing that the fire engine had clear access to all the buildings in case there was a fire. Furthermore, as rightly submitted by the learned counsel for the Municipal Corporation, DCR No.43 which was brought about by an amendment dated 6 January 2012 requires the fire NOC only if the height of the building is more than 24 mtrs. In respect of building Nos.4A and 4B, where the Petitioners are to be accommodated, the aforesaid provisions contained in DCR No.43 is not applicable as the height of the buildings is less than 24 mtrs. (i.e. 23.45 mtrs.). We, therefore, find that the grievance made by the Petitioners with reference to violation of DCR No.43 or with reference to fire safety is wholly unfounded.

24. Learned counsel for the petitioners also contended that there is misuse of discretionary powers by the Municipal Commissioner conferred under Regulation No. 64 of Development Control Regulations for Greater Mumbai, 1991. The Commissioner may use discretionary powers under Regulation 64(b) of the DCR to modify any of the dimensions prescribed by the Regulations in cases where a clearly demonstrable hardship is caused for reasons to be recorded in writing which will not affect health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood. The only demonstrable hardship in this case is to maintain division of the two plots i.e. the plot upon which rehabilitation building is to be constructed and the plot upon which the saleable building is to be constructed.

It is contended that in Rajendra Thakkar & Ors. vs. M.C.G.M. & Ors., 2004 (4) Bom.C.R.1, it is held that under Regulation 64, the discretionary powers are to be sparingly exercised in specific cases where a demonstrable hardship is caused. Thus, Regulation 64 is to be utilized as an exception and not by way of a rule.

25. Learned senior counsel for the petitioners, submitted that as per Regulation 22, the developer is required to give open amenity areas of the land as required under Regulation 23, which provides that for land having area above 10,000 sq.mtrs., open space in any layout or subdivision of vacant land in a residential or commercial zone shall be to the extent of 25%. It is submitted that instead of providing such 25% open area, the developer has provided only 8% of open area and the Corporation has granted such relaxation, which is in clear breach of the provisions of Regulation 64(b), which reads thus:

"64. Discretionary Powers.-

(a) ...

(b) In specific cases where a clearly demonstrable hardship is caused, the Commissioner may for reasons to be recorded in writing, by special permission permit any of the dimensions prescribed by these Regulation to be modified, except those relating to floor space indices unless otherwise permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood."

26. On the other hand, learned senior counsel for the Developer, and the learned senior counsel for the Municipal Corporation have submitted that the scheme in question is redevelopment scheme sanctioned under Regulation 33(7) and that clause 8 of Appendix-III to the DCR clearly provides for relaxation in the following terms:-

" APPENDIX III

Regulation for the construction or redevelopment of cessed buildings in the Island City by the Landlord and/or Co-operative Housing Societies (D.C. Regulation No. 33(7))

8. Relaxation in building and other requirements for rehabilitation -Notwithstanding anything contained in these regulations, the relaxations incorporated in regulation No.33(10) of these regulations shall apply. No further relaxations shall be applicable." (emphasis supplied)

It is submitted that the concessions under Appendix IV of Regulation 33(10) cannot be applied to Appendix III of Regulation 33(7) on the basis of orders under section 154 of the MRTP Act dated 15 October 1996 and 6 February 1997.

27. It is submitted that Regulation 33(10) of the DCR read with Annexure "A" to Appendix IV to DCR provides for relaxation in terms of clauses 6.16, 6.19 and 6.20, which read thus:-

" 6.16 Wherever more than the minimum front and the marginal spaces have been provided, such additional area provided may be considered as part of the amenity open space in the project comprising both rehabilitation and free sale components, and without charging any premium, in relaxation of the stipulation in DC Regulation No.23, wherever necessary.

6.19 The means of access shall be normally governed by the provisions of D.C. Regulation No.22. However, in the project, wherever the design of the buildings in the same land requires relaxation, it may be given. Access through existing pathways including the roads maintained under section 63K of the Mumbai Municipal Corporation Act, 1888 but not less than 3.6 m. in width shall be considered adequate for any slum rehabilitation project containing building having height upto 25 m. including stilts.

6.20 Even if the amenity space is reduced to make the Project viable, a minimum of at least 8 percent of amenity open space shall be maintained."

As per the above clauses, the relaxation for the project under Regulation 33(10) is to the effect that a minimum of at lest 8% of amenity open space shall be maintained. It is submitted that since relaxations under Regulation 33(10) are available to the project under Regulation 33(7), as already indicated hereinabove, there is no question of any violation of the provisions of Regulation 64(b). It is submitted that Regulation 64(b) confers general power of relaxation where an individual regulation does not provide for any relaxation on its own and, therefore, Regulation 64(b) is a residuary provision for granting relaxation. However, Regulation 33(7) and Regulation 33(10) themselves provide for relaxation to be granted by the Municipal Corporation in respect of the redevelopment projects.

28. It is submitted that in the instant case, apart from providing 410 rehab tenements to the occupants having their structures on the two parcels of land in question, the Developer has been required to provide 200 tenements to MHADA free of cost for which MHADA NOC was required to be obtained for redevelopment of the project in question. It is submitted that the Developer is thus required to provide 610 tenements having carpet area of 300 sq.ft. each and on ownership basis as against the present status of the petitioners as tenants and, therefore, the Developer is permitted to construct free sale buildings. The land presently occupied by the petitioners is earmarked for the free sale buildings and without removing the structures occupied by the petitioners, the Developer will not be in a position to commence construction of the free sale buildings. It is submitted that by now the Developer has already spent Rs.206 crores for construction of the rehab buildings plus the Developer will be required to spend for construction of the buildings to be allotted to MHADA. From 1 April 2014 till December 2014, the Developer has incurred interest costs at the rate of 15% per annum with interest burden of Rs.22.59 crores and the per day interest cost on the Developer is Rs.9.40 lakhs.

29. Learned senior counsel for the Developer submitted that it is too late in the day for the petitioners to raise any contention about the open amenity space when the building plans were sanctioned by the Municipal Corporation between 2008 and 2010 and the occupation certificates were also granted between 2010 and 2012.

30. We have carefully considered the rival submissions on the question of relaxation of provisions of Regulations 22 and 23 of the DCR. We find considerable substance in the submissions made on behalf of the Municipal Corporation and the Developer that Regulation 64(b) confers power of relaxation where a particular regulation itself does not confer any such power of relaxation. However, when the Municipal Corporation is considering proposal for a redevelopment project under Regulation 33(10) or a proposal for a redevelopment project under Regulation 33(7), the relaxations provided therein have to be read on their own and it is not necessary to import the provisions of Regulation 64(b) therein. In Rajendra Thakkar vs. M.C.G.M. (supra), this Court was not concerned with the interpretation of Regulation 64(b) in the context of any project under Regulation 33(7) or Regulation 33(10). It is necessary to note that when a project is under Regulation 33(7) or Regulation 33(10), the Development Control Regulations envisage a situation where persons already occupying the structures on the land in question are required to be rehabilitated on the same land and may be required to be given carpet area larger than the area already in their occupation in the existing structures. For instance, in the present case, the petitioners are occupying structures with carpet area ranging from 100 to 200 sq.ft. but in the redevelopment project sanctioned by the Municipal Corporation more than 5 years ago, the reconstructed tenements have carpet area of 300 sq.ft. each. Moreover, where the land belongs to Government or MHADA, the Developer is also required to give tenements to MAHDA. Such rehab tenements for the occupants of the present structures or for MHADA are required to be constructed by the Developer free of cost and the Developer can recover the entire expenditure on the project plus reasonable profit from out of construction and sale of free sale tenements. The Developer is thus required to construct a much larger built up area than the existing construction and, therefore, Regulation 33(7) and Regulation 33(10) permit the Developer to have higher FSI than the permissible normal FSI of 1 or 1.33. In the instant case, the FSI given to the Developer is 3 as per DCR. The natural consequence would be that the Developer has to construct more built up area and, therefore, the open space, which would be available in the redevelopment project for the benefit of the occupants/tenants, would be less than the open space which would have been available if FSI of only 1.33 is to be utilized. It is for this reason that clause 6.11 in Annexure "A" to Appendix-IV to the DCR specifically envisages that the front and marginal open spaces for buildings may be less than the minimum marginal open spaces required under Regulation 23. Clause 6.16 also envisages relaxation of the stipulation in Regulation 23. Clause 6.19 envisages relaxation of Regulation 23 regarding minimum open spaces and Regulation 22 regarding means of access. Since the above clauses themselves envisage such relaxation, there is no question of importing Regulation 64(b) which contemplates relaxation by special permission in special cases where clearly demonstrable hardship is caused.

31. The petitioners are getting flats of the carpet area of 300 sq.ft. each, which is an area much larger than the area presently occupied by them between 100 sq.ft. and 200 sq.ft. each. Apart from this, 410 tenements to be provided by the Developer to the existing tenants free of cost, the Developer is also required to provide 200 tenements to MHADA free of cost. If the tenements were not to be provided to MHADA, the open space would have been more than 8%. It cannot be said that the Regulations which themselves contemplate providing tenements to MHADA over and above providing tenements to the existing tenants would require the Developer to show demonstrable hardship under the residuary relaxation provision under Regulation 64(b) when the shortage of space is inherent in the nature of the project under Regulation 33(7) or Regulation 33(10) itself. As indicated earlier, the decision of this Court in Rajendra Thakkar vs. M.C.G.M. (supra) did not deal with a situation where this Court was not required to deal with the interpretation of Regulation 64(b) in the context of Regulation 33(7) or Regulation 33(10). We, therefore, do not find any substance in the submissions made on behalf of the petitioners that the Municipal Commissioner has misused his discretionary powers. As indicated above, the discretion has been exercised under the above quoted clauses of Annexure "A" to Appendix-IV to DCR and not under Regulation 64(b). Clause 8 of Appendix-III to DCR commences with a non obstante clause - " Notwithstanding anything contained in these Regulations", which would include Regulation 64(b) also. Once a scheme is being considered under Regulation 33(7), the relaxations incorporated in Regulation 33(10) read with Appendix-IV and Annexure "A" to the said Appendix have to be read into Regulation 33(7) read with clause 8 of Appendix-III.

32. Having considered the petitioners' objections, we are of the view that the petitioners, who are getting larger flats on ownership basis in lieu of their premises occupied as tenants and without paying any cost whatsoever for such redevelopment, are delaying implementation of the redevelopment project on the basis of contentions which are being raised after gross delay, laches and acquiescence and in which we find no substance. The petition, is therefore, dismissed.

Petition dismissed.