PUBLIC INTEREST LITIGATION NO. 48 OF 2016 WITH NOTICE OF MOTION (WRIT PETITION) NO. 473 OF 2016 WITH CHAMBER SUMMONS NO. 181 OF 2016

19th OCTOBEBR 2018

Petitioner Counsel: Mr. Janak Dwakardas Mr. Rohan Cama Mr. Zulfikar Jariwala Ms. Tamanna TavadiaNaik Mr.Shanay Shah Ms. Natasha Gupta M/s. Thakore Jariwala
Respondent Counsel: Ms. Geeta R. Shastri Mr. A. Y. Sakhare Mr. Rohan Mirpury Ms. Trupti Puranik Nasir Ali Shaikh Mr. Rafique Dada Dr. Milind Sathe Senior Counsel Dr. Birendra Saraf Mr. Chirag Balsara Mr. Naushad Engineer Mr. Aditya Mehta Mr. Jehaan Mehta Mr. C.Rashmikant Mr. Rohan Dakshini Ms. Shweta Jaydev Ms. Anuja Abhyankar M/s. Federal Rashmikant M/s. Desai & Diwanji Mr. P. K. Dhakephalkar Ms. Jaya Bagwe Ms. Sharmila U. Deshmukh

Cases Cited :
Para 6: Federation of Churchgae Residents and others Vs. The Municipal Corporation of Greater Mumbai and others, in PIL no. 54 of 2012 delivered on 14/03/2014
Paras 11, 17, 24: Jayant Achyut Sathe Vs. Joseph Bain D'Souza and others, [(2008) 13 SCC 547]
Paras 12, 29, 30: Fatima w/o Caetano Joao Vs. Village Panchayat of Merces & Anr. [2000 Vol. 102 (3) Bom.L.R. 354]
Para 13: M.I. Builders Pvt. Ltd. Vs. V. Radhey Shyam Sahu and others, [(1999) 6 SCC 464]
Para 14: Royal Paradise Hotel Private Limited Vs. State of Haryana & Ors, [(2006) 7 SCC 597]
Para 15: Friends Colony Development Committee Vs. State of Orissa, [AIR 2005 SC 1]
Paras 16, 29, 30, 31: K. Ramdas Shenoy Vs. Chief Officers, Town Municipal Council, Udipi and Ors, [AIR 1974 SC 2177]
Para 22: Arun R. Chitale Vs. State of Maharashtra [2014 (5) BomC.R. 139]
Para 23: Faqir Bakhsh Vs. Murli Dhar and Others, [J.C. 1931 Volume 58 Indian Appeals pgs. 7678]
Para 23: Pramod Kumar Jaiswal Vs. Bibi Husn Bano, [2005 (5) SCC 4922]
Para 24: Rohitash Kumar and Ors Vs. Om Prakash Sharma and others, [2013 (11) SCC 451]
Para 24: Deekay Realtors Pvt. Ltd. and Ors Vs. Municipal Corporation of Greater Mumbai and others, [2012 (2) MhLJ 887]
Para 27: R and M Trust Vs. Kormangala Residents Vigilance Group and Ors, [2005 (3) SCC 91]
Para 27: Mr. Imran Qureshi Vs. Mumbai Building Repair and Reconstruction Board and others
Para 44: Noida Enterpreneurs Association and Ors Vs. Noida and Ors., [2011 (6) SCC 508]
Para 47: A. L. Ranjane Vs. Ravindra Ishwardas Sethna and Ors., [AIR 2003 SC 300]

JUDGEMENT

1. This petition is by residents of Carmichael Road who claim to be active in preserving the area and surrounding, much less the heritage precinct in the area. It is claimed by the petitioners that they are residents of the area referred supra i.e. Carmichael Road and are deeply affected by the illegal actions on the part of the respondents which includes the State, Municipal Corporation of Greater Bombay, Maharashtra Housing and Area Development. Amongst other, the prayer moved by the petitioners is the declaration against respondent no. 9 as regards the illegal permissions granted by respondent nos. 1 to 8 & 10 for carrying out the redevelopment in its favour, which are alleged to be violative of Articles 14 & 21 of the Constitution of India. It is also prayed that the declaration be granted that respondent no. 3 has illegally exercised powers. The Municipal Commissioner of Greater Bombay has illegally exercised the powers under Regulation 67 (2) (iii) (b) of the Development Control Regulations (Hereinafter referred to as 'DCR') whereby permission and sanction was granted in favour of respondent no. 9 to carry out construction of building in excess of 24 meters height which is in contravention to Regulation 67 (7) of the DCR. A further direction is prayed that respondent no.3Municipal Corporation be directed to frame general guidelines in consultation with Heritage Conservation Committee alongwith other ancillary reliefs. It is also claimed that respondent no. 10 MHADA without application of mind has granted NOC.

2. The facts necessary for deciding the present PIL are as under:
(i) The property which is the subject matter of the present petition claimed to situated in heritage precinct at M. L. Dahanukar Marg standing on Plot no. C.S. 4/733 of Malbar Hill (Hereinafter shall be referred to as 'the said property' for the sake of brevity). It is claimed that respondent no. 9 has sought to redevelop the said property by demolishing the existing structure with height of 69.95 meters. It is claimed that there is collusion between respondent no. 9 i.e. Developer and Authorities respondent nos. 2 to 8 & 10 in obtaining no objection certificate, sanctions, permissions, commencement certificate for redevelopment of the property contrary to the provisions of the Development Control Regulations. According to petitioners, the said property is GradeIII structure situated within the precinct at M. L. Dahanukar Marg.
(ii) Petitioners claim that the property was initially owned by Shrimant kumar Khanderao Shivajirao Gaekwar who has created tenancy right in favour of Nityanand Mangesh Wagle & Taru Jethmal Lalvani. The said Maharaj entered into the agreement of sale with Mahindra Corporation, however since same was not materialized, he sold that property in favour of the tenant for a valuable considerations vide Conveyance Deed dated 03/05/1975. A suit by Mahindra Corporation in 1978 for specific performance of agreement was disposed of in terms of the consent terms dated 28/01/2011. In terms of the consent terms dated 28/11/2011, a Decree was drawn up, however, this Court by modified consent Decree, pursuant to modified consent terms dated 15/07/2015 and passed a modified consent Decree. It is further alleged that in spite of Conveyance Deed in favour of Mr. Wagle and Mr. Lalwani, respondents shown them tenants and assigned tenancy rights in favour of Mr. Kashimpuria and Mr. Bhalgat in 2011.
(iii) The structure of the said property was then demolished. It is then claimed that one of the activist i.e. the petitioner sought certain information under Right to Information Act, 2005 and the inspection of the file in question was taken in the office of respondent no. 6. It is then claimed that on 13/02/2015, the petitioner approached respondent no. 3 with a written request, raising concern about the alleged illegal development activity started by respondent no. 9. Pursuant to the request of the petitioner, inspection of relevant record was permitted. According to petitioner, upon perusal of the relevant record, they have come across several internal reports, notes, correspondences which lead to the granting permission by respondent nos. 2 to 8 in favour of respondent no. 9 for carrying out the development activity of construction of building. It is claimed that the height of the building which is permitted by respondent nos. 2 to 8, in excess of 24 meters is contrary to the restrictions imposed by provisions of 67 (2) (III) (b) of DCR. It is claimed that on 20/04/2012, respondent no. 2 sanctioned and issued revised development plan.

3. According to Shri. Dwarkadas, the learned senior counsel for the petitioner, before consent Decree was passed on 28/01/2011, on 21/01/2011, purported Deed of Assignment of tenancy came to be executed by erstwhile tenants Mr. Nityanand Wagle and Mr. Lalwani assigning their tenancy rights in favour of one Mr. Kashimpuria and Mr. Bhalgat. He then submits that not a single rent receipt is produced on record evidencing the creation of tenancy in favour of Mr. Wagle & Mr. Lalwani but for two tenancy receipts for the period prior to 2011 viz 01/12/1974 and 01/04/1975 issued by erstwhile owner Mr. Gaekwar. According to him, a complete unnatural transaction was entered into at the behest of respondent no. 9 who with a premeditated intention assigned the tenancies based on the terms which are best suited to his convenience so as to redevelop property under DCR 33 (7). Both these tenants Mr. Wagle and Mr. Lalwani sold their rights in favour of respondent no. 9 and by virtue of same, respondent no. 9 by taking undue advantage under Regulation 33(7) has illegally obtained permission to develop the property. He would urge that DCR 33 (7) is applicable to reconstruction/redevelopment to be undertaken by the Cooperative Housing Societies of tenants or Cooperative Housing Societies of Landlords and/or of occupiers of cessed building which falls under category 'A' in the Island city. He submits that the prerequisite for enjoying benefit under DCR 33 (7) can be summarised as :
(a) That it should a Cooperative Housing Society.
(b) The redevelopment should be in relation to cessed building.
(c) Such property should attract the provisions of MHADA Act, 1976.

4. According to him respondent no. 9 is neither a Cooperative Housing Society nor the building in question is a cess building. Respondent no. 9 through its architect has approached respondent MHADA and MCGM seeking permission to redevelop 'Villa Nirmala'. According to him, the documents which were annexed alongwith such application for grant of permission to develop the property is by circumventing the very object of the said DCR, by illegally obtaining the benefits thereunder particularly of 3 FSI by creating false case existence of old tenancy. According to him, as to achieve the aforesaid object of getting 3 FSI, respondent no. 9 has created false case of assignment of tenency in favour of Mr. Kashimpuria and Mr. Bhalgat. He would then urge that the said tenants to whom the tenancy rights were assigned by Mr. Nityanand Wagle and Mr. Lalwani were not entitled for such transfer of tenancy rights having regard to the Indenture of Conveyance dated 03/05/1975 by which Mr. Wagle and Mr. Lalwani became owners and ceased to be tenants of the property. According to him, in absence of evidence of tenancy of Mr. Wagle and Mr. Lalwani, the authorities having accepted the theory of transfer of tenancy in favour of Mr. Kashimpuria and Mr. Bhalgat is with an intent to favour respondent no. 9 of his intention of developing 'Villa Nirmala' in deriving 3 FSI.

5. Mr. Dwarkadas, the learned senior counsel would invite the attention of this Court to the fact that both these tenants i.e. Wagle and Lalwani for the first time, after 35 years, paid cess on 28/01/2011 i.e. the date on which the consent Decree was passed which fact is not disputed.

6. In the aforesaid background, he would urge that there is apparent breach of DC Regulation no. 67 (7), 23 (1) (a) and 31 (1). According to him, the property in question is a heritage precinct and under DCR 67 (7) permission of respondent no. 3Municipal Commissioner is required. For the purpose of development of the building in heritage precinct, guidelines framed by the Municipal Commissioner in consultation with the Mumbai Heritage Conservation Society ought to have been appreciated. So as to substantiate his contentions, he would draw support from the Judgment of this Court in the matter of Federation of Churchgae Residents and others vs. The Municipal Corporation of Greater Mumbai and others in PIL no. 54 of 2012 delivered on 14/03/2014. In the aforesaid background, he would add that respondent no. 4 in the internal report dated 04/07/2014, incorporated a note about the approval of the building plans for subject building having height of 69.95 meters, after the guidelines and clarification in respect of heritage precinct will be received from Urban Development Department. According to him, but for respondent no. 4 rest of the respondents have intentionally ignored the said objection and has proceeded to deal with the case of the respondent no. 9 under DCR 33 (7).

7. He would then urge that pursuant to the provisions of DCR 23 (1) (a), if the area of the plot is between 1001 to 22500 Sq. meters, 15% recreational open space/ground is required to be provided. According to him, the area of plot where the development activity is carried out is 2228.27 Sq. meters and as such by not providing 15% open space for recreation, violation of DCR 23 (1) (a) can be inferred. He would invite the attention of this Court about reduction to 8% of the recreational open space as the authorities got itself misguided so as to invoke DCR 33 (7).

8. He would then urge that Regulation no. 31 regulates the height of the building which should not exceed one and half times the total width of the street on which the said property abuts. The said restrictions are relaxed in case if the plot is abutting the road width of more than 18 meters. According to him, respondent no. 9 misrepresented that the width of the roads is 18.30 meters by representing that the road in front was S. K. Badodawala Marg whereas the building is abutting M. L. Dahanukar Marg which is admittedly having width of less than 18 meters. According to him, the width of the road was found to be 9.12 meters. Even if footpath of 3.13 meters added, will in any case, the width will not go beyond 18 meters. He would then urge that respondent no. 10 MHADA authorities, have in mechanical manner proceeded to issue NOC dated 12/04/2012 in favour of respondent no. 9 on the basis of DCR 33 (7) in disregard to Deed of Conveyance dated 03/05/1975. According to him, even consent Decree dated 28/01/2011 was not properly looked into and appreciated particularly in the backdrop of the fact that Mr. Wagle and Mr. Lalwani were the owners of the property in question. Attention of this Court is invited to the fact that property before transfer to respondent no. 9, was neither occupied by either of the group of tenants i.e. Mr. Wagle or Mr. Kashimpuria. There are no MTNL Landline consumption, absence of consumption of the electricity as reflected in the electricity bills, absence of consent of the landlord, absence of rent receipts from 03/05/1975, speaks of sham and bogus transactions of transfer of tenancy. From the entries in the passbook of Mr. Kashimpuria and Mr. Bhalgat as they have opened the bank account on 06/07/2011 i.e. the date on which consent terms were entered into would lead to only conclusion of artificial transaction so as to reap benefit of maximum FSI. He would also urge that Mr. Wagle and Mr. Lalwani initially were tenants of Mr. Gaekwar and later on became owner of the said property which fact is also lost sight by MHADA while considering the claim of respondent no. 9 under the provisions of Regulation 33 (7). According to Shri. Dwarkadas, the present PIL in the above backdrop is very much maintainable by overruling the objections raised by respondent no. 9 about the lack of bonafides of the petitioner. He submits that the present petition raises an issue of larger public interest. The petition is filed by in all four petitioners and even if it is presumed that allegations against petitioner no. 4 are correct, still the PIL at the behest of other three petitioners is very much maintainable. According to him, preservation of area surrounding M. L. Dahanukar precinct, absence of any adverse allegations against petitioner nos. 2 & 3 should prompt this Court to entertain this petition. He submits that petitioners are bonafide public spirited individuals so as to protect the sanctity of heritage precincts. Apart from above, he submits that petition is neither filed at belated stage nor it suffers from latches. He would add that it is an attempt on the part of respondent no. 9 to avoid dealing with the meritorious points raised in the petition. He would then urge that the information which was received under Right to Information Act, 2005, enquiries were made time and again with the office of the Commissioner of the Municipal Corporation and MHADA has took substantial time to collect the information. As such, according to him, petition is very much maintainable.

9. Shri. Dwarkadas, the learned senior counsel for the petitioner would draw support from the Division Bench Judgment of this Court in the matter of Ramesh Kumar Jhamb & anr V/s. Official Assignee, High Court, Bombay [1994 MhLJ 471] particularly paragraph 5 so as to substantiate his contention that once there was Indenture of Conveyance dated 03/05/1975, Mr. Wagle and Mr. Lalwani cease to become tenants having purchased the property from Mr. Gaekwar. According to him, the said tenants became owners of the property and by operation of law, tenancy in their favour stood extinguished. According to him, a person cannot be a tenant and the landlord at the same time.

10. He would also rely upon the Judgment of the Apex Court in the matter of Jahuri Sah & Ors V/s. Dwarika Prasad Jhunjhunwala & Ors [AIR 1967 SC 109] so as to prevail upon this Court to infer that there was no landlord and tenant relationship once Mr. Wagle and Mr. Lalwani purchased a property by express Indenture of Conveyance. According to him, if both are coowners, it cannot be inferred that there was relationship of landlord and tenants in between. He would draw support from the observations made in paragraph 11 & 12 of the said Judgment.

11. In addition, Shri. Dwarkadas would draw support from the Judgment of the Apex Court in the matter of Jayant Achyut Sathe Vs. Joseph Bain D'Souza and others [(2008) 13 SCC 547] so as to substantiate his claim in the backdrop of above referred factual aspect of tenants acquiring ownership, that DC Regulation no. 33 (7) will not be available to the present respondent no. 9. As such, FSI 3.00 claimed by respondent no. 9 and granted by respondent nos. 2 & 3 is without any authority of law. He would draw support from observations made by the Apex Court in paragraph nos. 19, 20, 21, 24, 26 & 27 of the said Judgment. According to him, if the object behind framing of Regulation 33 (7) under the Town Planning Act, 1966 if appreciated, the consent of the 70% of the occupants is mandatory apart from it being an old and dilapidated building. According to him, invoking of DCR 33 (7) in the case in hand is without any justification.

12. In addition he derives support from para 35 of the Judgment of Fatima w/o Caetano Joao Vs. Village Panchayat of Merces & Anr [2000 Vol. 102 (3) Bom.L.R. 354]. He would urge that if there is illegal construction, rights of the residents in the said area are affected. According to him, if the scheme is framed for the benefit of the residents in the locality, authorities like respondent nos. 2 & 3 are required to act in aid of the scheme. He would urge that the scheme for the residents must be planned in accordance with the requirement of the residents. In such background, the interpretation of the scheme or the bylaws or Building Control Regulations has to be read to the benefit of the citizens also, who are residing in the said area. According to him, neighbours who are affected by illegal construction has social obligation, at whose behest a suit is very much maintainable.

13. He would also draw support from the Judgment of the Apex Court in the matter of M.I. Builders Pvt. Ltd. Vs. V. Radhey Shyam Sahu and others [(1999) 6 SCC 464] particularly paragraph 73 so as to claim that even if the construction has been carried out by respondent no. 9, once this Court notices that the said is being carried out contrary to the legal provisions, the Court has power to order dismantling of the whole project and to restore the property to its original status.

14. He would also draw support from the Judgment of the Apex Court in the matter of Royal Paradise Hotel Private Limited Vs. State of Haryana & Ors [(2006) 7 SCC 597] so as to claim that offending construction in a controlled area in defiance of provisions of law should be liable to be demolished. He submits that this Court should not support respondent no. 9 who has defied the provisions of law and the Court is duty bound to ensure that such party should not be rewarded. According to him, the authority should not encourage the violations as has been noticed in the present case.

15. He would also rely upon the Judgment of the Apex Court in the matter of Friends Colony Development Committee Vs. State of Orissa [AIR 2005 SC 1] particularly paragraph 25 so as to claim that the professional builder like respondent no. 9 is supposed to understand the laws in a better manner. The defiance of respondent no. 9 needs to be inferred as a deliberate act done with an intention of earning profit and as such needs to be dealt with sternly.

16. He would also draw support from the Judgment of Apex Court in the matter of K. Ramdas Shenoy Vs. Chief Officers, Town Municipal Council, Udipi and Ors [AIR 1974 SC 2177] particularly from para 27 to 29 on the aforesaid line.

17. While resisting the aforesaid submission, the learned senior counsel for respondent no. 10MHADA would urge that plain reading of DCR 33 (7) postulates exercise of powers thereunder in regard to cessed building. According to him, neither any incentive FSI is granted or is claimed by respondent no. 9. He would invite our attention of this Court to Appendix 3 under Regulation 33 (7) so as to claim that there is categorization under the said Appendix. He would urge that even if respondent no. 9 is not a Cooperative Society same will not act as an embargo on the right of respondent no. 9 to claim benefit under DCR 33 (7). He would draw support from the Judgment of the Apex Court in the matter of Jayant Achyut Sathe [Cited supra]. He would then urge that there is a separate list maintained by respondent of the cessed buildings and the subject matter of the present petition i.e. property is very much included in the list of the cessed building. He would also try to substantiate his contention relying upon a report called from the Corporation as regards the confirmation of the status of the original tenant.

18 The learned senior counsel for respondent MHADA would invite attention of this Court to the provisions of subsection 9 of section 2 of MHADA Act which defines 'Cess'. According to him, cess is levied on the building and the same is collected by the MHADA whereas the tax is paid to the Corporation. The cess collected accordingly transferred to the account of the State Government. According to him, it is not necessary for MHADA to examine as to whether cess is paid by the landlord, as nonpayment thereof does not disentitle the owner to seek the said building to be cessed building. He would urge that what is required to be ascertained is whether the property on which the building is located is cessed building or not. He would draw support from provisions of section 83 (i) and section 83 (g) so as to claim that the building in question is exempted from the payment of cess. He would urge that such buildings which are in the possession of owner or for the such buildings which are owned by the society are exempted from payment of cess, provided Regulation 33 (7) is attracted. He would then urge that under section 84 of the Act, Corporation is duty bound to maintain assessment book depicting the assessment to buildings whether they are cessed or noncessed buildings. According to him, in the said register, it is specifically displayed that the building in question is cessed building and that being so, the provisions of Regulation 33 (7) are rightly invoked. He would then urge that the object behind Regulation 33 (7) of reconstruction needs to be appreciated. According to him, not only the Cooperative Society can apply but if the provisions of Appendix 3 Clause 5 and 13 are appreciated, the tenancy prior to 13/06/1996 if established, DCR 33 (7) is very much applicable can be rightly invoked by landlord. According to him, under the aforesaid clause what is permissible is 3 FSI or the FSI of occupier of 50% of incentive FSI. According to him, the object appears to be to rehabilitate the tenant and the owner.

19 In the backdrop of the facts of the present case, he would urge that in the case in hand, no fresh tenancy is created after 13/06/1996 i.e. the date on which the incentive FSI was introduced for rehabilitation of the tenants. He would then urge that transfer of tenancy is not permissible and is barred, however, what is permissible is transfer of right in tenancy. If such transfer of right is allowed, the same has not given rise to increased or to confer additional FSI. According to him, no fresh tenancy in the case is created. He would then invite attention of this Court to Appendix 3 Clause 13 & 5 therein so as to claim that if the landlord is an occupier, the said Clauses are applicable. He would add that there is an embargo on the right of landlord in creating new tenancy pursuant to the said provisions. Shri. Dhakephalkar would then invite attention of this Court to Government Resolution dated 16/08/2010, particularly Clause 21 so as to claim that the tenant should be resident of the building in question prior to 1996 and apparent evidence to that effect should be made available. According to him, in case if more than 3 FSI is claimed, then only the answering respondent i.e. MHADA has role to play so as to ensure that the tenants are lawfully rehabilitated. According to him, it is clearly established that the tenancy was prior to 1996 and whether the erstwhile tenant ie. Wagle was paid any consideration is not an issue which needs to be gone into by MHADA, in absence of dispute to that effect. He would also claim that pursuant to the Appendix 3 attached to Regulation 33 (7) and proviso to Clause 113, what is required is 50% of the surplus area needs to be given to MHADA free of cost and in lieu of 50% area, the area equal to the cost of the said area in other locality in the same municipal ward can be given to MHADA. He would draw support from tripartite agreement entered into between MHADA, respondent no. 9 and third party i.e. Rubarewala Housing Infrastructure so as to demonstrate the compliance of the said contentions. He would then invite attention of this Court to the office note of respondent MHADA in which the entire history of the building is considered. According to him, the issue of clearance from the Conservation Committee was also within the knowledge of this respondent. The existence of only two tenants in the building and registered Deed of Assignment of tenancy was produced by both occupants. He would then invite attention of this Court as regards the calculation of 3 FSI which was as per DCR. According to him, the total carpet area required for rehousing the existing occupiers, the incentive built up area, FSI for rehabilitation and permissible built up area was appropriately worked out by maintaining complete transparency. He would then urge that the petition is filed on 20/04/2016 by which time already, six floors of the building in question were constructed. The no objection given by MHADA is not questioned in the petition initially after amending the petition after 8 months which delay is not at all explained. He would then urge that the consent Decree is believed by MHADA as they have no reason to doubt the same and have accordingly processed the prayer of respondent no. 9 by issuing no objection certificate on 12/04/2012. He submits that it is subsequent to above, the role of Corporation comes into picture. He sought dismissal of the petition.

20. According to the learned senior counsel Shri. Sakhare appearing for respondent nos. 2 & 3 i.e. the Municipal Corporation of Greater Mumbai and the Commissioner, the 1984 policy and 1991 Development Control Regulations since were not found to be feasible, as there was no encouraging response, the Government formed Sukhtankar Committee to overview the implementation of the scheme. Regulation no. 33 (7) was substantially amended in the year 1999. The amended Development Regulation 33 (7) provides for redevelopment of 'A' category cessed buildings which were constructed before 1940 and said redevelopment is undertaken by landlord or Cooperative Housing Society of the landlord or occupiers, the FSI was 2.5 of the gross plot area or the FSI for rehabilitation for existing occupiers to 50% incentive FSI whichever is higher. According to him, under the amended policy, the developer was assured minimum 50% FSI for free sale and also ensure rehabilitation of all occupants in the same property. The policy further prescribes flat area of minimum 225 Sq. ft. and maximum 753 Sq.ft carpet area to the old residential tenants occupants whereas shopkeepers are provided with equivalent area of their old holding. In case of 'B' category cessed buildings, permissible FSI was as required for rehabilitation of existing occupiers in addition, 50% incentive FSI. According to him, the formula discussed herein above provides for FSI to be depending on number of occupiers, the actual area occupied by them, provided no new tenancy is created after 13/06/1996. Apart from the tenancy created after 13/06/1996, the tenants in unauthorized constructions are not required to be considered while computing FSI and it is for the NOC holder to take care of such new tenants or those who are occupying unauthorized constructed area. According to him, such buildings which do not belong to 'A' or 'B' category cessed buildings, may at times belongs to 'C' category and in such an eventuality if found to be dilapidated or dangerous, the Government has granted additional incentive FSI at par with 'A' category buildings. The policy also prescribes for redevelopment of old buildings by clubbing them together instead of developing each property separately so as to avoid congestion and better infrastructural amenities.

21. In case if, the entire permissible FSI is not utilized on the same plot because of height restrictions or fire safety regulation etc, NOC holder is entitled to avail the benefit of transfer of development rights to be used in suburbs in accordance with 1991 DCR for Greater Mumbai. The object with which the aforesaid provision is incorporated is to ensure that the scheme remains feasible.

22. In case of heritage buildings in Grade3 and precincts, according to him, the permission of Municipal Commissioner or heritage conservation Committee is required, provided the height of the building exceeds 24 meters excluding the stealth. He would then invite attention of this Court to survey report carried out by survey section of the respondent Corporation by physically visiting the plot in question. According to him, the property is located in Malbar Hill area and is abutting 60 ft. S. K. Badodewala Street. He would then urge that the same is located at Carmichael Road in 'D' ward, Mumbai and that being so, the height restrictions as are alleged are not applicable. So as to substantiate his contentions, he would draw support from the Division Bench Judgment of this court in the matter of Arun R. Chitale Vs. State of Maharashtra [2014 (5) BomC.R. 139]. According to him, Regulation 67 of DCR 1991 does not warrant to have clearance from the heritage committee in regard to Grade-3 heritage and precincts. He would invite attention of this Court to Clause 6.11 and 6.20 of Appendix 4 of Regulation 33/7. According to him DCR 31 governs the height of the building. He would try to make out the difference between the provisions of DCR 31 & 31/4 (c) so as to claim that what has been ordered by this Court in the matter of Preservation of Marine Drive Precinct will not be applicable to the case in hand. He would then urge so far as the Judgment cited by the Petitioner as regards the Marine Drive Precinct will apply to 'A' ward and not 'D' ward. According to him, it is always open for the land owners to seek redevelopment under 33 (7). He would then urge that once Municipal Authorities have found that the height restrictions and the FSI restrictions cannot be attracted in the case in hand as claimed by the petitioner, the petitioners have failed to demonstrate any other case to overcome expertise decision and that being so, petition is liable to be dismissed.

23. Respondent no. 9 who is represented by the learned senior counsel Shri. Rafique Dada would invite our attention to some of the important dates. According to him, on 08/12/2011, two public notices were issued giving notice about the project. The demolition of existing Villa Nirmala started in October 2014. Petitioner took inspection of record of respondent no. 10MHADA in June 2015 whereas petition is filed on 28/04/2016. According to him, respondent no. 9 purchased property on 28/01/2011 whereas permission to develop the property from the various authorities were processed in between 2011-2014. He would then urge that it is in 2015, petitioner gathered information under Right to Information Act and on 27/04/2016, petition came to be presented. Shri. Rafique Dada then would urge that respondent no. 9 on 22/01/2016 has entered into tripartite agreement with MHADA & private developer as prescribed in Regulation 4 of Appendix 3 of DCR 33 (7) over the issue of handing over built up area of 1629.61 square meters. According to him, third party interests are created in property in question. According to him, since long the petitioner has not taken steps to get it listed and kept the petition pending. According to him, there is motivated and malafide delay on the part of delay.
According to him, the original petition was filed seeking declaration as regards sanctions issued by the respondent as arbitrary, illegal and contrary to DCR. According to him, for the first time, after amending the petition, he has incorporated the pleadings so as to suit his convenience claiming that the invocation of DCR is contrary to the very object and scheme. According to him, it is by way of amending the claim, for the first time, violation of DCR 67 (7) as the height of the proposed building was sanctioned upto 69.95 meters is sought to be incorporated. By amending the claim, plea of redevelopment being affected M. L. Dahanukar precinct, affecting skyline of precinct and absence of guidelines by the Municipal Commissioner, violation of DCR 31 for increasing height of the building, the width of the road and reduction of 15% to 8% of recreational ground area contrary to DCR 23 is raised. According to him, repeated change in the grounds of challenge are noticed which speaks voluminous about the very intent and object of the petitioners. He would then urge that even if Conveyance Deed dated 03/05/1975 was executed in favour of Mr. Wagle and Mr. Lalwani becoming coowners of the suit property, still as cotenants they continue to occupy the property and their tenancy right does not get extinguish. According to him, in the backdrop of tenancy rights as are reflected in the consent Decree, provisions of DCR 33 (7) are rightly invoked. He would then urge that there is no challenge to NOC issued by MHADA so also the consent Decree. So as to substantiate his contentions that there is no merger of tenancy in spite of the Conveyance Deed in favour of tenants Mr. Wagle and Mr. Lalwani, he would draw support from the Judgments of Privy Council in the matter of Faqir Bakhsh vs. Murli Dhar and Others [J.C. 1931 Volume 58 Indian Appeals pgs. 7678] so also in the matter of Pramod Kumar Jaiswal vs. Bibi Husn Bano [2005 (5) SCC 4922]. According to him, what is acquired by the tenant was a limited interest in the property whereas the interest of the tenant in whole of the property cannot be that of owner. As such, the possession of Mr. Wagle continues to be that of tenant. According to him, the tenancy never got converted into ownership on account of alleged Conveyance Deed as both tenants i.e. Mr. Wagle and Mr. Lalwani continued to be tenants of their respective wings and coowners of the entire property post 1975 as could be inferred from the terms of the consent Decree. According to him, the claim of the petitioner is contrary to terms of the consent Decree. The consent Decree is not questioned in the present PIL and it is not open for either of the parties or this Court to travel beyond the consent Decree.

24. The next limb of submission of Shri. Rafiqe Dada is provisions of Regulation 33 (7) can be invoked even by the landlord as DCR 33 (7) cannot be given restrictive meaning. So as to substantiate his contention, he would draw support from the language of Regulation 33 (7) and Appendix 3 particularly Clauses 1, 4, 5, 6, 14 & 18. Relying upon the Judgment of the Apex Court in the case of Jayant Achyut Sathe [Cited supra] he would urge that the said DCR are very much applicable for the reconstruction and redevelopment of cessed building existing prior to 30/09/1969 in the Island city. According to him, structure in the project was category 'A' cess structure constructed prior to 1940 and as such, provisions of DCR 33 (7) are very much applicable for redevelopment of the building. According to him, redevelopment can also be carried out by the landlord under Regulation 33 (7). He would then urge that landlord need not to wait for building to get dilapidated as he is very much entitled to reconstruct, so as to augment his income. He would rely upon para 19 and 36 of the aforesaid Judgment. He would also invite attention of this Court to the Circular dated 11/01/1990 issued by respondent no. 10-MHADA and the guidelines for landlord developers of May 1999 so as to claim that FSI as has been sanctioned is very permissible. According to him, it is not mandatory that there should be registered Cooperative Society. Even a proposed society can also seek NOC for redevelopment. He would invoke the Rule of interpretation viz. Contemporanea Exposito so as to claim that the words used in the Statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance with respect to area in which the said law is in force or by the people who ordinarily deal with the same. He would draw support from the Judgment of the Apex Court in the matter of Rohitash Kumar and Ors vs. Om Prakash Sharma and others [2013 (11) SCC 451] to substantiate the said contention. According to him, provisions of Section 83 of the MHADA Act, particularly SubSection 1 (g) provides for exemption of certain buildings and lands from payment of cess so as to claim that petitioners are trying to misread the said provisions to the detriment of respondent no. 9. He would also rely upon the object with which DCR 33 (7) is enacted and further submits that the said provision is also meant to the benefit of respondentMHADA and BMC. According to him, Villa Nirmala is very much a cess structure and would draw support from the affidavit of respondent no. 10MHADA so as to infer the same. According to him, once DCR 33 (7) is invoked, the FSI permissible is 3 on the gross plot area or the FSI for rehabilitation of existing tenants plus incentive FSI as specified in the Appendix 3 whichever is more. According to him, under Appendix 4 to DCR 33 (10), particularly clause 6.20, there is stipulation that “Even if the amenities space is reduced to make the project viable, minimum of at least 8% amenity space shall be maintained”. According to him, accordingly, minimum amenity/recreational requirement under DCR 33 (7) is 8% and not 15%. He would then urge that under DCR 67 (7), which provides for maintaining skyline, is applicable to only Grade1 and Grade2 categories of heritage buildings and admittedly the structure is Grade-3 as is claimed in the petition. As such, according to him, there is no violation of DCR 67 (7). He would then urge that M. L. Dahanukar Marg Precinct situated at Carmichael Road, area having high rise building above 24 meters. It is also claimed that some of the petitioners are residing in Usha Kiran Building in the same precinct having height of more than 24 meters. He would then urge that DCR 67 (7) cannot be made applicable to M. L. Dahanukar Heritage Precinct particularly when same is not affected by Marine Drive Precinct to which the Judgment of this Court in the matter of Deekay Realtors Pvt. Ltd. and Ors Vs. Municipal Corporation of Greater Mumbai and others [2012 (2) MhLJ 887] particularly paragraphs 5, 7, 8 & 8 are applied. Based on above, he has sought dismissal of the petition.

25. Considered rival submissions.

26. Though the respondent has categorically raised objection to the maintainability of the present PIL claiming it to be malafidely motivated, this Court is required to look into whether present PIL at the behest of the petitioner is maintainable or not. The Notice of motion no. 473 of 2016 is specifically taken out for the said purpose. According to respondent, PIL Rules framed by the High Courts are not complied with and the petitioner lacks bonafide as the same is filed for extraneous reasons. According to respondents, petitioners are espousing cause of Anand Kamal, a registered Cooperative Housing Society which is adjoining Villa Nirmala. It is also claimed that in the backdrop of preexisting dispute pertaining to garden area of Anand Kamal Society and access way to Villa Nirmala, there being a common entrance. It is also brought to the notice of this Court that husband of the petitioner no. 4 is the Secretary of Anand Kamal Society and that being so, the petition is moved in private interest so as to settle the above referred dispute.

27. In support of the aforesaid contentions, respondents have relied upon certain Judgments so as to claim that sacrosanct jurisdiction of PIL should be invoked very sternly and only in favour of vigilant litigant. The said jurisdiction cannot be invoked for the persons for the sake of publicity or for the purpose of serving private ends. A support is drawn from the Judgment of Apex Court in the case of R and M Trust vs. Kormangala Residents Vigilance Group and Ors [2005 (3) SCC 91] particularly para 23 & 24. In addition, support is also drawn from the Judgment in the matter of Public Litigation No. 43 of 2016 initiated by one Mr. Imran Qureshi Vs. Mumbai Building Repair and Reconstruction Board and others in relation to the very same property which is allegedly owned by respondent no. 9 so as to claim that an issue as regards the maintainability of PIL is already looked into by the Division Bench of this Court.

28. Respondent no. 9 has also sought to canvass that there is gross delay in filing a petition.

29. Per contra Shri. Dwarkadas, the learned senior counsel would invite attention of this Court to the Judgment in the matter of Fatima w/o Caetano Joao [Cited supra] and K. Ramdas Shenoy [Cited supra]. He would draw support from para 35 of the Judgment of Fatima and para 27, 28 & 29 so as to claim that the petitioners being neighbours have every right to file PIL.

30. If both these contentions are appreciated, it is required to be noted that the issue of delay is dealt with by the petitioners stating that it took certain time to collect the documents under the Right to Information Act and also inspection of the original record of the respondentPublic Authorities. It is also claimed by the Petitioner that certain queries raised, still remained unanswered and as such, the Public Interest Litigation was initiated little late in time than the expectation of the respondents. Apart from above, petitioner no. 4, there are other three petitioners at whose behest the petition can be held to be maintainable against whom no allegations of personal interest are alleged. The petitioners have claimed that they are public spirited persons and are actively involved in the preservation of area surrounding M. L. Dahanukar Marg precinct. It is also brought on record that PIL no. 118 of 2014 and 34 of 2016 were initiated by the petitioner nos. 2 & 3 in regard to the protection of heritage structure known as ‘Morena’. Apart from above, the observations made by the Apex Court in the matter of Fatima w/o Caetano Joao [Cited supra] particularly paragraphs 26 & 35 are worth referring to which reads thus:
“ The aforesaid consideration compelled the Apex Court to recognize a citizen's right in the matter of K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi and others The Apex Court held as follows :
"An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases."

35. Any scheme framed under the Act, is for the benefit of the residents of the locality. The local authority acts in the aid of the scheme. The rights of the residents in an area are invaded by illegal construction. A scheme for the residents must be planned in accordance with the requirements of the residents. It is, therefore, clear that making of a scheme, or byelaws or building regulations is for the planned development of the area. It is for the benefit of the citizens residing in the area. A neighbour who is affected, therefore, by an illegal construction, has an obligation in his favour based on which he can maintain a suit for perpetual injunction. We, therefore, find no difficulty in holding that a neighbour would have the right to maintain a suit.”

31. In addition to above, the aforesaid view is reiterated by the Apex Court in the matter of K. Ram Shenoy [Cited supra], particularly 27, 28 & 29. That being so, the Public Interest Litigation, in our opinion is very much maintainable at the behest of the petitioner.

32. From the record, few of the admitted facts as could be inferred are on 28/1/2011, said property i.e. Villa Nirmala was purchased by respondent no. 9 with structure in view of the terms of the consent Decree passed in Suit No. 70 of 1978. From 2011 to 2014, the developer processed his request for grant of permission for development on the said plot under DCR 33 (7). Respondent MHADA issued NOC on 12/04/2012. Pursuant to the same, in October 2014, respondent no. 9 demolished the property. The property namely ‘Villa Nirmala’ was constructed prior to 1948 as is apparent from the affidavit of MHADA and the fact that electric bill of 1936 is traced on record. Both Mr. Wagle and Mr. Lalwani, tenants of erstwhile owner namely Mr. Gaekwar claimed to have assigned their tenancy in favour of Mr. Kashimpuria and Mr. Bhalgat in recent past i.e. in September 2011. It can also be noted from the record that on 03/05/1975 said Nityanand Wagle and Taru Lalwani by Deed of Conveyance became owner of respect part of the property which is divided into North and South flats consisting of Ground + 2 structures. As such, it can be inferred that they became owner of the property. Their status as tenant of Mr. Gaekwar whether ceased to exist or continues in view of ownership, and assignment of tenancy if any, is sought to be concluded in favour of respondent no. 9 based on consent Decree.

33. It is the case of all the respondents that both these alleged tenants namely Mr. Wagle and Mr. Lalwani by Deed of Assignment assigned their tenancy rights in favour of Mr. Kashimpuria and Mr. Bhalgat who stepped into their shoes as tenants in the property of ‘Villa Nirmala’. The aforesaid factual matrix can be inferred from the affidavit of respondent MHADA. Respondent no. 9, pursuant to consent Decree claimed to have acquired rights in the property ‘Villa Nirmala’ on 28/01/2011 and has paid cess for 36 years on the said date. As such, it is required to be ascertained whether the purported Assignment dated 21/01/2011 executed by Mr. Wagle and Mr. Lalwani claimed to be tenants has identity in Law particularly when they claimed to have assigned their tenancy in favour of Mr. Bhalgat and Mr. Kashimpuria.

34. Apart from above, it is also required to be addressed as to whether for ascertaining whether the property is located abutting Carmichael Road or M. L. Dahanukar Marg or Badodawala Street and what was the dimension of such streets wherein the sanction of height of more than 24 meters is permitted pursuant to the Building Control Regulation. This Court is also required to find out as to whether the property was hit by any Heritage Precinct and if so whether the permission of Heritage Committee was obtained. It is also required to find out as to whether is it open for respondent no. 9 to claim right of redevelopment under Regulation 33 (7) by satisfying ingredients therein viz property ‘Villa Nirmala’ ‘A’ category cessed building was in existence prior to 1940 and Deed of Assignment of tenancy was lawfully executed. So far as the issue of satisfaction of ingredients of Development Control Regulation 33 (7) is concerned, it is not in doubt that DCR 33 (7) is applicable to reconstruction/redevelopment to be undertaken by the Cooperative Housing Societies of occupiers of ‘A’ category cessed building in the Island city. Respondent no. 9 is claimed to be owner of the property in question and as such in the capacity of landlord/owner, has invoked the provisions of DCR 33 (7). The basis for invoking the same amongst other one of the object for invoking the said DCR is to rehabilitate the existing tenants namely Mr. Kashimpuria and Mr. Bhalgat.

35. While considering the claim of respondent no. 9 for grant of right of redevelopment under DCR 33 (7) and admissibility of 3 FSI to the respondent no. 9, it was expected of the respondent particularly respondent-MHADA to look into the ownership right of Mr. Wagle and Mr. Lalwani in whose favour, ownership was created by Indenture of Conveyance Deed dated 03/05/1975. Once the existence of the said Indenture is not in dispute in faovur of Mr. Wagle and Mr. Lalwani, whether they continue to be tenants in the said property particularly as claimed by respondents is an issue which should have been addressed by the respondents while dealing with the permission as sought for by the respondent no. 9. The factual matrix of the present case reflects that Mr. Wagle and Mr. Lalwani were in possession of independent flats located at North and South side of the building consisting of Ground + 2 structure. As such, it can be prima facie given impression that they were independent owners of their structures in the form of individual flats. That being so, whether they continue to be tenants in common as is claimed by respondents and that being so, whether they have any right to assign their tenancy in favour of Mr. Bhalgat and Mr. Kashimpuria is an issue which should have been looked into by the respondents. Admittedly the record depicts that neither the said issue was looked into or the mind was applied by MHADA while issuing NOC in favour of respondent no. 9.

36. It is also required to be noted that the effect of respondent no. 9 becoming owner of the property after 21/01/2011 on the claim for grant of right of redevelopment in the aforesaid background is also not looked into by respondent.

37. In the aforesaid background, it is really difficult at this stage to infer that all the necessary ingredients of DCR 33 (7) for reconstruction/redevelopment of cessed building by the respondent no. 9 was satisfied.

38. Apart from above, the entire scenario as to the Mr. Lalwani and Mr. Wagle who were tenants of Mr. Gaekwar in 1975 becoming owners of the property, thereafter continued to claim that they remained to be tenants in common and assigning their tenancy rights in favour of Mr. Kashimpuria and Mr. Bhalgat also required to be viewed in the background of satisfaction of ingredients required for DCR 33 (7). Whether such transaction was artificial in nature so to avail the benefit under Regulation 33 (7) for redevelopment is an issue which in our opinion needs to be looked into by respondentMHADA. The alleged rent receipt of 1974 and 1975 in favour of Mr. Wagle and Mr. Lalwani, in our opinion is also not looked into by the authority while invoking DCR 33 (7) in favour of respondent no. 9. Vide communication dated 27/01/2011 respondent no. 9 informed respondent-MHADA that the structure ‘Villa Nirmala’ is a cessed structure, however, the fact remains that there is no material to infer that the Deed of Conveyance dated 03/05/1975 in favour of Mr. Wagle and Mr. Lalwani were brought to the notice of respondent-MHADA. What is noticed from the record of MHADA is an endorsement that on 03/06/1996, no new tenancy was created. However, from the record, it cannot be inferred that all the aforesaid events of 1975, Conveyance in favour of Mr. Wagle and Mr. Lalwani, whether they continued to be tenants in common and after becoming owners whether they have right to assign their tenancy right is not at all gone into. It is also not clear from the record as to whether contents of the telephone bill, passbook of the tenants Mr. Kashimpuria and Mr. Bhalgat of Union Bank of India which account was opened on 06/07/2011, irrevocable Deed of Assignment of tenancy, alleged rent receipts, electric bills in favour of Mr. Kashimpuria and Mr. Bhalgat duly appreciated by MHADA while dealing with invoking of DCR 33 (7) in favour of respondent no. 9.

39. In the aforesaid background, the claim that the said tenants were tenants in common is not at all looked into by respondent authorities.

40. Respondent-MHADA has produced extract of certified office notes in the matter of grant of no objection in favour of respondent no. 9 accepting that the property Villa Nirmala’ is ‘A’ category cessed building and DCR 33 (7) can be invoked for redevelopment. In the application, it is specifically referred to cess number and category of cess claiming that the property is located into ‘D’ ward of Carmichael Road. The application also speaks of existence of two tenants. In the headnote, salient features of development, in clause 9 (A) and clause 9 (C), it is specifically mentioned that the building on the plot under reference is under precinct and a clearance from Mumbai Heritage Precinct Committee will be necessary and it is under heritage.

41. In further notes, it is specifically mentioned that the building located in residential zone and since plot is under precinct, clearance from Heritage Conservation Committee is necessary. It is also mentioned therein the occupants namely Mr. Kashimpuria and Mr. Bhalgat have recently purchased the flats and copy of Deed of Assignment of tenancy is produced. New notes are signed by Executive Engineer MBR&R Board. The Deputy Chief Engineer of the Board claimed to inspected the site on 21/11/2011 alongwith Executive Engineer. A further note in Clause 17 speaks of DP reservation and in categorical terms an observation is made that the property in question is situated in M. L. Dahanukar Precinct. So far as the documents which are placed on record are concerned, including that of calculation of tentative surplus area, it is not clear whether respondent authorities have referred to the site plan of that area so as to find out the exact location of this building in question i.e. ‘Villa Nirmala’ to be more precise whether it is located abutting M. L. Dahanukar Marg, Badodawala Street or Carmichael Road. There is no material which can be noticed in the note produced on record by MHADA to infer that the property in question i.e. ‘Villa Nirmala’ was exactly located abutting Carmichael Road but for few words notes to that effect in its notesheet.

42. Upon appreciation of the site plan produced by respondentCorporation alongwith report of the Survey Section, it is required that even Corporation is also of opinion that the suit plot is located on Salebhai Karimji Badodawala Street which in its opinion is having 60 Ft width. The plan that was produced by the Architect Consultant of the respondent no. 9 and countersigned by officials from the respondentCorporation speaks of location of the property of Precinct M. L. Dahanukar and located on Carmichael Road. This aspect speaks voluminous about the fact that MHADA has failed to appreciate the location of the plot where ‘Villa Nirmala’ is located whether abutting which of the above three roads.

43. In the aforesaid background, if the contention of the petitioner about the admissible height of the building as is permitted by the respondent, if appreciated, in the backdrop of requirement of DCR 31, it is to be noted that the very requirement under Regulation 31 so as to grant height rise permission, the property having width more than 18 meters is not at all satisfying. It is also not clear as to whether the authorities from the area has ascertained that the plot in question abutting South S. K. Badodawala Marg as reflected in MCGM affidavit or M. L. Dahanukar Marg reflected in the consent Decree or Carmichael Road. The said aspect also required, in our opinion, relooked into by MHADA authorities.

44. Respondent nos. 2 to 8 and 10 have admittedly exercised their Statutory powers in the matter of issuance of NOC and issuance of Commencement Certificate. Of course, in such eventuality, the principle of Audi alteram partem rule is not required to be strictly adhered to, however, the administrative act on the part of the respondent is required to be in exclusion of the rule against bias. While characterizing an intention as an administrative, the doctrine of fairness has to be kept in mind and should in all fairness be followed to its firm root. In case if the rule against bias is not applied to such administrative act, patently partisans administrative decisions may go unchallenged. The doctrine of public trust as could be read in Article 21 of the Constitution of India prompts that the powers vested in a public authority should be viewed as trust coupled with duty to be exercised in larger public as well as social interest. Such powers are required to be exercised within the four corners of the Statutory provisions. If an arbitrary, biased or unfair decision is taken by administrative authority in exercise of its powers, same can be read as contrary to the legal obligation vested in such an administrative authority. Such powers as sought are required to be exercised bonafide for the purpose for which such enactment is enacted. Appropriate support can be drawn in the matter of Noida Enterpreneurs Association and Ors Vs. Noida and Ors. [2011 (6) SCC 508].
No doubt, in the case in hand, no express powers are vested with the aforesaid respondents to deal with the issue as has been sought to be raised in the petition. By necessary implication of powers and duties incidental and necessary to make the exercise of the powers fully effective can be exercised by the respondents. While exercising the said powers an opinion needs to be formed on a question with which it is dealing with. Such opinion can not be formed in a casual or a subjective manner as it is required to be necessary for such an administrative authority to satisfy itself as regards the legal requirement as are prescribed under the relevant provisions under which the powers are being exercised. Such satisfaction, while forming an opinion should be the objective one, based on the relevant considerations. The purpose with which the powers are exercised qua the issue raised before it, should be a lawful purpose which should not fall outside the scope and purpose of the enabling provision. If the powers are conferred for a particular purpose, the same cannot be used or twisted for different purpose, as, such exercise will be regarded as an invalid exercise of the powers.

45. Of course, plain reading of the relevant provisions viz. Regulation 33 (7), 67 (7) & 31 confers powers to be exercised with an intent to achieve the purpose related to the objects of such provisions. No doubt the discretion is vested in the authority to exercise such powers, however, same should not be in an arbitrary act as there has to be reasonable control over the administrative action. Such discretionary powers, even cannot be used for a colateral purpose as, such exercise will amounts to illegality. Such discretion, in exercise of the powers conferred, should be for relevant and not for an irrelevant consideration. The authority in such an eventuality should not ignore or should not rely upon is relevant material for exercising powers. Such adverse material which are creating impediment in smooth decision should not be casually ignored.

46. If the case in hand is appreciated in the backdrop of aforesaid observations and the principles laid down by the Apex Court, what is noticed is the alleged assignment of tenancy, irrespective of the title vested in the erstwhile tenants, in such an eventuality, reliance placed on the consent Decree to which respondent nos. 2 to 8 and 10 are not parties, without appreciating the location of the suit plot as to whether it abuts M. L. Dahanukar Precinct or width of street having more than required one, are the issues which are not at all touched or looked into by the authority as there is no material to that effect to infer such application of mind but for few notings. Even in the notings, objections raised are also not dealt with. Even if it is considered that the Statute does not prescribe any considerations but confers power in a general way, it is expected of the authorities to deal with relevant consideration in the subject matter, keeping in mind the scope and purpose of the Statute in question. The authority is not supposed to ignore the relevant considerations in taking a decision in exercise of its discretionary powers as such exercise is required to be for relevant reasons.

47. The authority is also required to look into as to whether there is misrepresentation of vital facts as is referred to hereinabove. The issue as regards the assignment of tenancy is an important issue in the backdrop of transfer of ownership. So as to seek an escape, and to avoid plea of non application of mind on the said issue, the authorities have come out with an excuse that the consent Decree as is passed cannot be over looked by the authorities. No doubt, the orders of the Court needs to be respected, however, it is not open for the respondentauthorities to claim that the consent Decree is taken into account as it is without considering necessary requirement under the Regulations, when respondent nos. 2 to 8 and 10 are not party to the same. Such misrepresentation of fact vitiates the administrative justice and such decision cannot be termed as one taken by the application of mind. In support of the above observations, support can be drawn from the Apex Court in the matter of A. L. Ranjane Vs. Ravindra Ishwardas Sethna and Ors. [AIR 2003 SC 300].

48. As such, what is expected of the respondentauthorities is to take recourse to such measures and satisfy itself which should be inproportionate to the object which is sought to be persuaded so as to achieve the desired effect. Just because the consent Decree was advantageous to the authorities, that does not ifso facto mean that authorities should accept the same without appreciating as to whether there was proper assignment of tenancy, and by without understanding the binding effect of consent Decree.

49. As such, what is expected of the authorities is the strict scrutiny of the proposal moved by the authorities and to maintain utmost transparency in dealing with request of parties like respondent no. 9 in the matter of issuance of NOC, sanction of development plan and issuance of commencement certificate based on only relevant and lawful consideration.
The authorities i.e. respondent nos. 2 to 8 & 10 are not required to act mechanically and the record should reflect that the material brought before it was considered within the four corners of the Statutory requirements. Such material should be relevant one and there should not be any abuse of discretion or there should not be a mechanical approach to the decision making process. If the record discloses that there is non application of mind by the Statutory authority, then the decision reached at, renders invalid.

50. In the wake of aforesaid observations, this Court is left with no other option but to infer that respondent MHADA and Corporation has failed to apply their mind to the aforesaid factual matrix viz. whether tenancy was rightly assigned in law and location of ‘Villa Nirmala’ on the road with width of more than 18 meters. That being so, this Court is left with no other option but to direct the respondents to reconsider the issue of invoking of Regulation DCR 33 (7) in favour of respondent no. 9 granting no objection for redevelopment of ‘Villa Nirmala’ and also granting benefit under Regulation 31 of DCR by considering that the building ‘Villa Nirmala’ is abutting 18 Ft. wide road. Let both parties i.e. MHADA and Corporation should apply their mind afresh in the backdrop of aforesaid observations, if required by granting an opportunity to the respective parties and take appropriate decision in the matter.

51. This Court has already observed that the development of the structure on the suit plot will be subject to outcome of the present PIL. This Court refrains itself from putting any embargo or injunction on the right of respondent no. 9 by stalling the development activity, however, it will be appropriate to observe that the said development will be subject to decision as will be taken by the respondent Corporation and MHADA in the wake of aforesaid observations.

52. As such, PIL stands partly allowed.

53. Let the respondent authorities take decision in the matter within period of 10 weeks from today upon production of certified copy of the present Judgment by the petitioner.

54. In view of the order passed in PIL, the Notice of Motion and Chamber Summons does not survive and stand disposed of accordingly.

[NITIN W. SAMBRE, J.] [SHANTANU KEMKAR, J.]

55. At this stage, learned counsel for respondent no. 9 has prayed for stay of the operation of this judgment. On the other hand, learned senior counsel appearing for the petitioners has opposed the prayer.

56. Having considered the submissions made by the learned counsel for the parties, we stay only that part of the judgment by which the authorities i.e. respondent Corporation and MHADA have been directed to reconsider the matter. It is made clear that the part of the order by which it has been observed that till the fresh decision as aforesaid is taken by the Authorities, all the steps taken by respondent no. 9 will remain and will be subject to outcome of further proceedings.