T
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
1. WRIT PETITION NO.1772 OF 2008
A/W C.A. NO.635 OF 2009
Nalini Ganpat Malpekar, .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
ig WITH
2. WRIT PETITION NO. 1782 OF 2008
A/W C.A. NO. 627 OF 2009
Satywati B Yeram (deceased),
her heir -Subhash Bhikaji Yeram .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
3. WRIT PETITION NO.1783 OF 2008
A/W C.A. NO. 628 OF 2009
Anant Yashwant Arolkar .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
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4. WRIT PETITION NO.1784 OF 2008
A/W C.A. NO.634 OF 2009
Ramesh Ramnath Shukla .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
5. WRIT PETITION NO.1785 OF 2008
A/W C.A. NO.638 OF 2009
Shri Eknath Vitthal Sawant .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
6. WRIT PETITION NO.1788 OF 2008
A/W C.A. NO. 637 OF 2009
Priya Gyneshwar Sawant .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
7. WRIT PETITION NO.1789 OF 2008
A/W C.A. NO.636 OF 2009
Shri Santosh V Metri .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
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WITH
8. WRIT PETITION NO.1792 OF 2008
A/W C.A. NO.632 OF 2009
Smt Laxmi Ramchandra Pawar .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
9. WRIT PETITION NO.1796 OF 2008
A/W C.A. NO.633 OF 2009
Shri Sunil Sadanand Salvi .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
10. WRIT PETITION NO.1833 OF 2008
A/W C.A. NO.629 OF 2009
Smt Sulochana Rajaram Kocharekar .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
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11. WRIT PETITION NO.1834 OF 2008
A/W C.A. NO.625 OF 2009
Sitaram Laxman .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
12. WRIT PETITION NO.1835 OF 2008
A/W C.A. NO.626 OF 2009
Heirs and Legal Representatives
of Laxmi Ratan Khapre,i.e.
Shivaji R Khare .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
13. WRIT PETITION NO.1836 OF 2008
A/W C.A. NO.622 OF 2009
Kishor Digamber Phatak .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
14. WRIT PETITION NO.1837 OF 2008
A/W C.A. NO.623 OF 2009
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Sitabai Laxman Sadik (deceased)
Her legal heir -
Radhika Balkrishna Sawant .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
15. WRIT PETITION NO.1838 OF 2008
A/W C.A. NO.624 OF 2009
Yashodhara L Hedulkar .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
16. WRIT PETITION NO.1839 OF 2008
A/W C.A. NO.630 OF 2009
Sharadchandra Narayan Kalyankar .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
WITH
17. WRIT PETITION NO.1840 OF 2008
A/W C.A. NO.631 OF 2009
Vijay Rohidas Khorjuvekar .. Petitioner.
Vs
Municipal Corporation of
Greater Mumbai and ors. .. Respondents.
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Mr Dinyar Madon, Senior Counsel, i/b R.M.Nakhawa, Mahendra
Kumthekar and Suraj.S.Kudalkar, for the petitioners in all
matters.
Mr A.S.Khandeparkar, i/b D Brijesh for respondent no.3 in all
matters- Intervenor.
Mr A.Y.Sakhare, Senior Counsel, i/b M.M.Malvankar, Advocate
for respondent no.1 - BMC.
Mr S.G.Deshmukkh i/b Mr Gautam T Kamble, for respondent no.
3.
CORAM : D.B.BHOSALE, J.
DATE : 01/10/2009
ORAL ORDER:
1. This group of seventeen writ petitions is directed against
the Judgment and order dated 27.2.2008 rendered by the
Principal Judge, City Civil and Sessions Court, Greater Bombay,
whereby seventeen Misc Appeals filed by the petitioners have
been dismissed. The Misc. Appeals were directed against an
order of eviction passed under section 105-B(1) of the Mumbai
Municipal Corporation Act, 1888, (for short, “MMC Act”). The
order of eviction was passed by Inquiry Officer, appointed by
the Municipal Corporation of Greater Mumbai (for short, “the
Corporation”) in Inquiry Case nos FS/97 to FS/113/2006. The
inquiry premises in this group of petitions are required by the
Corporation for redevelopment of the municipal property known
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as “Parsi Chawl”. Since redevelopment is needed in public
interest, a show cause notice to each of the petitioners in view of
section 105-B(2) of the MMC Act, was issued. The Inquiry
Officer, after giving an opportunity of being heard to all the
concerned, passed the order dated 15.3.2007, directing all the
petitioners to vacate the tenements in the Parsi Chawl. This
order of Inquiry Officer was challenged by the petitioners in
Misc. Appeals, which have been disposed of by the common
judgment and order dated 27.2.2008.
2. There exists two Chawls, namely, Koli Chawl and Parsi
Chawl, situate on the plot nos 138, 139, 140 and 147 of
Suparibaug Estate Scheme No.31, Patel Sewree Division, Dadar,
Mumbai. Admittedly, the Corporation is the owner of the plots
and the Chawls. The Paris Chawl and the Koli Chawl are
having 69 and 106 tenements respectively in two independent
Chawl type structures.
3. Initially, both the Chawls came together and formed a Co-
operative Housing Society, being Mahapurush Co-operative
Housing Society (proposed). These Chawls were to be developed
together. Necessary NOC was issued by the Corporation and
since steps for redevelopment were not being taken and the
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Chawls had become dilapidated, the Corporation cancelled the
NOC. The action/order of cancellation of the NOC, it appears,
was challenged by way of Writ Petition No.2250 of 2005 in this
Court. This writ petition was disposed of by the order dated
23.9.2005, directing the concerned authority to give a detailed
hearing to the parties and decide the matter afresh.
Accordingly, hearing was given to the parties and a detailed
order was passed by the Joint Commissioner on 25.11.2005.
This order permitted separate development of the Parsi Chawl.
The tenants/occupants of the Parsi Chawl accordingly formed a
society, being Pavanputra Co-operative Housing Society (for
short, “Pavanputra”) and submitted their separate proposal for
redevelopment. It appears that the tenants/occupants of the
Koli Chawl continued as Mahapurush Co-operative Housing
Society Ltd (Proposed), (for short, “Mahapurush”).
4. The order dated 25.11.2005, passed by the Joint
Commissioner, was challenged by some of the
tenants/occupants by way of Writ Petition No.160 of 2006. The
petitioners, in that writ petition, contended that the remaining
portion, that would be available with the Koli Chawl, would not
be economically viable for a separate development. This court,
after hearing the learned counsel for the parties and after
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perusing the entire record that was placed before the court
including the report of Technical Committee, so also the
calculations with respect to area left after granting a separate
NOC to the Parsi Chawl, found that separate development of
both these Chawls is viable. In the writ petition, a specific
interim prayer was made against redevelopment of the Parsi
Chawl and that prayer was rejected vide order dated 8.2.2006.
5. Before I proceed further, it would be relevant to quote
certain observations made by this court in the orders passed in
Writ Petition No.160 of 2006 and the statements made on
affidavit dated 23.2.2006 by the Corporation. Paragraph 4 of the
order dated 8.2.2006 reads thus:
“4. We will be able to examine the merits of
these submissions only when we get the report of the
Technical Committee. The Municipal Corporation,
therefore, will keep present in Court the reportof the technical Committee as well as the
calculations with respect to the area now left
after granting a separate NOC to the Parsi
Chawl. From those calculations, we can find out
as to whether the separate development is
viable in any way. We also note the statementmade by Mr Rajadhyaksha that the developers of the
Parsi Chawl are ready to develop the Koli Chawl
independently since according to them the project is
independelty viable.”(emphasis supplied)
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10The Sub-Engineer-Shingarpure of the Corporation filed
reply affidavit dated 23.2.2006 in Writ Petition No.160 of
2006. Paragraph 6 of the reply affidavit reads thus:
“6. I deny the contention of the petitioner
that considering the plot area available for KoliChawl, independent redevelopment of Koli Chawl is
not feasible. I say that it is observed by the Jt
Municipal Commissioner (Improvement) in his order
that the Koli Chawl can be developed independently,as it has separate access required for independent
development. I say that pursuant to the Hon’ble
Court’s direction
ig dated 8.2.2006, these
respondents have prepared a rough and
tentative calculations of the scheme parameters
in respect of the scheme of dilapidatedMunicipal property known as Koli Chawl,
showing that the said development proposal can
be implemented independently. I say that the
exact scheme parameters can be worked out
only on submission of detailed redevelopmentscheme by the tenants of the Koli Chawl. I say
that these tentative scheme parameters may very 5%to 10% on details scrutiny of the actual proposal
received for the scheme and on actual demarcation
of the scheme boundaries/reservations area by the
competent authority, i.e. D.I.L.R. Hereto annexedand marked Exhibit “A” is the copy of the said
tenatative ESI calculation for Koli Chawl.”
(emphasis supplied)
Writ Petition No.160 of 2006 was finally disposed of by the
Division Bench, presided over by the then Honourable the Chief
Justice, vide order dated 2.3.2006. Paragraphs 5,6,7 and 8 of the
order dated 2.3.2006 read thus :
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“5. The Joint Municipal Commissioner has now
passed a reasoned order and has relied upon several
aspects including inspection of the properties by the
Municipal Engineers. On that basis he has held
that it is feasible to develop the properties in
question independently. While protecting the
interest of petitioners to come forward with a revised
proposal for development of Koli Chawl, the Joint
Municipal Commissioner has directed that Parsi
Chawl occupants can go ahead with their
independent proposal.
6. From a perusal of the relevant materials and
the affidavit of the Municipal Corporation, we find no
reason to interfere with the decision of Municipal
Corporation, based as it is, on the assessment of the
Municipal Engineers, Director of Engineering and
Projects as well as Assistant Municipal
Commissioner. Such decisions by public bodies, who
are owners of properties, for development thereof
with a view to eliminate miseries of the tenants
occupying dilapidated tenements, require no
interference in writ jurisdiction. Moreover when they
are not demonstrated to be perverse or vitiated by
any error apparent and cannot be termed as
malafide as well. The petition is, therefore,
dismissed.
7. The Joint Municipal Commissioner has, in
his order, specifically observed that even at this
stage it is open for the petitioner to come
forward with an independent proposal for
development of Koli Chawl and such revised and
independent proposal would be considered and
processed by the Corporation in accordance
with the applicable policies and rules.
8. Shri Narula upon taking instructions from the
petitioner who is present in the court, makes a
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statement that the petitioner would come forward
with a revised and/or independent proposal for
development of Koli Chawl and we have no doubt
that such proposal will be considered by the
Municipal Corporation by taking into account
the fact that even Koli Chawl occupants require
establishment. The feasibility of the proposal
should be considered in the light of the fact that part
of the property is to be accused for construction of a
Secondary school. The Corporation shall process the
proposal and while ensuring construction of the
school, shall also ensure that the petitioner can
develop their portion with all benefits and
concessions as are made available to the Parsi
Chawl. ”
ig (emphasis supplied)
6. In pursuance of the directions issued by the Division
Bench vide order dated 2.3.2006 in Writ Petition No.160 of
2006, a separate proposal for redevelopment of the Koli Chawl
under Regulation 33(7) of D.C.R through their Architects was
submitted on 6.6.2006. The said proposal was for 121
residential and two commercial tenements as against 106
tenants/occupants of the Koli Chawl. The number of members of
the Koli Chawl was increased in view of the fact that the
petitioners, though are the tenants/occupants of the Parsi
Chawl, opted to become members of Mahapurush. Since the
names of the petitioners, who are tenants/occupants of the Parsi
Chawl, were included in the fresh proposal of the Koli Chawl,
the Corporation, vide its letter dated 10.10.2006, informed them
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that their proposal cannot be processed further and called upon
them to resubmit a correct proposal as per the check list. The
proposal that was submitted by Mahapurush, naming the
petitioners as its members on 6.6.2006, could not be considered
in view of the fact that redevelopment of the Parsi Chawl had
already commenced and the petitioners were part of their
proposal. In the reply affidavit, the Corporation has stated that
in case a fresh proposal is submitted, excluding the petitioners,
for redevelopment of the Koli Chawl, same would be considered
on its own merits within a fixed period. Similarly, on 25.4.2008,
a statement was made by learned Senior Counsel for the
petitioners on behalf of the respondent-society (Mahapurush),
and it was recorded by this Court, that such a proposal will be
submitted within a period of three weeks. In view thereof, the
respondent-Corporation was directed to process and consider
the same within the time frame.
7. As per the directions of this Court issued vide order dated
25.4.2008, the Koli Chawl, on 7.5.2008, submitted their separate
proposal. Once again all the seventeen petitioners were named
in the fresh proposal of Mahapurush of the Koli Chawl as their
members. The Corporation, in their affidavit dated 16.9.2009,
has, therefore, stated that since the proposal in respect of the
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Parsi Chawl has already been approved by the Improvement
Committee of the Corporation and the seventeen petitioners are
part of the said proposal, the proposal submitted by the Koli
Chawl including the seventeen petitioners cannot be approved
and in view thereof the Corporation has once again requested
the Koli Chawl to submit fresh proposal on behalf of 97 tenants
plus 8 split up cases of the Koli Chawl. It is further stated in the
affidavit that so far the Koli Chawl has not submitted fresh
proposal excluding the seventeen petitioners. The Corporation
has further stated on affidavit that on receipt of the fresh
proposal of the Koli Chawl, excluding the seventeen petitioners,
it will be scrutinized as per DCR 33 (7) and will be finalised
within six months from the date of its receipt. In the course of
hearing of this petition, I asked Mr Deshmukh, learned counsel
for Mahapurush to take instructions from the Chief promoter,
who was present in the court, and state whether Mahapurush is
prepared to resubmit fresh proposal excluding the seventeen
petitioners. His reply was in negative.
8. It is against this backdrop, I have heard learned counsel
for the parties at considerable length. There is no dispute that
after development of these Chawls independently, every
tenant/occupant of these chawls would get a tenement of 300
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sq.ft (carpet) in the newly constructed buildings with similar
amenities. From the orders passed by this Court in Writ Petition
No.160 of 2006, it is clear that the tenants/occupants of the
Parsi Chawl are allowed to develop their property independently
and that a development of the Koli Chawl is also viable. It is
further clear that since the Koli Chawl did not submit its
proposal for redevelopment, they were directed to submit it
independently and the directions were issued to the Corporation
to consider the same in accordance with the applicable policy
and the rules. Even today, there is no dispute, as submitted by
Mr Sakhare, learned senior counsel for the corporation on
instructions, that a separate development of the Koli Chawl for
its tenants/occupants is possible/viable and if they submit fresh
proposal, excluding the petitioners from their earlier proposals,
the Corporation will scrutinise the same as per D.C.R 33(7) and
will finalise within the shortest possible time.
9. The basic challenge in the writ petition is to the order
passed by the learned Principal Judge of the City Civil Court.
The scope of this petition is, therefore, absolutely limited. In
other words, these proceedings arise from the order dated
15.3.2007 passed by the Inquiry Officer on the application filed
by the Corporation seeking eviction of the petitioners from the
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tenements in their possession in the Parsi Chawl for its
redevelopment.
10. Mr Madon, learned senior counsel for the petitioners, took
me through the material placed on record and all through out
made an attempt to demonstrate as to how redevelopment of the
Koli Chawl is not viable/possible. Mr Deshmukh, learned
counsel for the respondent-Mahapurish, also made submissions
in support thereof. Let me make it clear that I am not dealing
with these submissions of the learned counsel for the
petitioners, which sought to expand the scope of these writ
petitions. Whether separate development of these chawls is
possible/viable is not the questions involved in this group of
petitions. As a matter of fact, these questions have already been
considered and answered by the Division Bench while
disposing of Writ Petition No.160 of 2006.
11. Insofar the impugned judgment and order of eviction
passed by the Principal Judge of the City Civil Court is
concerned, the only contention urged by Mr Madon, learned
senior counsel for the petitioners, was that unless the proposal
submitted by the Koli Chawl is approved by the Corporation, the
petitioners cannot be evicted. He submitted that the petitioners
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are the members of Mahapurush right from inception, and they
cannot be compelled to become members of Pavanputra.
In short, he submitted that the order of eviction is wrong and
illegal in view of the fact that the proposal of the Koli Chawl, of
which the petitioners are part and parcel for its redevelopment,
has not been cleared so far.
12. Admittedly, as observed earlier, all the petitioners are
the occupants/tenants of the Parsi Chawl and their names are
included in the list of the tenants/occupants of Parsi Chawl, who
are entitled for tenements in the newly constructed building
after redevelopment of their dilapidated Chawl type structure.
All other tenants/occupants, except the seventeen petitioners, of
the Parsi Chawl have already shifted to the transit
accommodation and since last about 2 – 3 years the petitioners
have been refusing to shift to the transit camp stating that
unless the proposal of the Koli Chawl is cleared they would not
vacate the tenements in the Parsi Chawl. As a result thereof,
the further development of the Parsi Chawl, which is allowed by
this court and approved by the Improvement Committee of the
Corporation by their Resolution No.57 dated 8.8.2006, has been
stalled. It is against this backdrop the Corporation was left with
no other alternative but to seek their eviction and accordingly
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the impugned orders have been passed.
13. I repeatedly asked Mr Madon, learned senior counsel for
the petitioners as to why the petitioners are not accepting
membership of Pavanputra and are insisting to be the members
of Mahapurush. He did not have any reply. I also asked him
what prejudice would be caused to them if they shift to transit
accommodation and allow redevelopment of the Parsi Chawl,
notwithstanding their desire to continue to be the members of
Mahapurush which they can peruse even after they shift to the
transit accommodation. To this also, he had no reply. I also
asked Mr Deshmukh, learned counsel for Mahapurush as to
whether the members of Mahapurush, in order to accommodate
the petitioners in their society are ready to sacrifice area of their
tenements to some extent in the new building, to which his
reply was in negative. I do not see any justification or rational in
the petitioners insistence to continue to be the members of
Mahapurush.
14. As per the Administrative Guidelines for the
redevelopment of old Municipal properties by Municipal Tenants
Co-operative Housing Societies on the land owned by the
Corporation under Regulation no.33 (7) of the Development
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Central Regulations for Greater Bombay, 1991, it is necessary
that more than 70% of the eligible existing Municipal tenants
should give written consent to redevelop the property under the
scheme and form an association/co-operative society and
initiate proposal of development. There is no dispute that more
than 80% tenants/occupants of the Parsi Chawl have formed a
society (Pavanputra) and their proposal for redevelopment has
been sanctioned by the Improvement Committee of the
Corporation on 8.8.2006.
ig Under the guidelines, no choice is
given to the tenants/occupants, who are in minority, i.e. 30% or
less, to take different stand/decision, though it may be possible
for such tenant/occupant or a group of tenants/occupants to give
up their right and quit from the scheme. However, once 70% or
more tenants/occupants give written consent to redevelop the
property under the scheme and form an association/co-operative
society and initiate proposal of redevelopment and if the
scheme/proposal is approved by the Corporation, it is binding
on all the tenants of the chawl/building whether they like it or
not. If tenants in minority or non-co-operative tenants are given
choice to become members of any other society, as of right,
perhaps that will create chaos and no redevelopment would ever
progress smoothly.
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15. Mr Madon and Mr Deshmukh, learned counsel for the
petitioners and Mahapurush, sought to re-open the issue as to
whether the proposal of the Koli Chawl would be viable on the
remaining portion which is now available with the Koli Chawl. It
is pertinent to note that the Koli Chawl (Mahapurush) has not
challenged the orders impugned in the writ petition nor did
they carry the matter further against the order passed by the
Division Bench disposing of Writ Petition No.160 of 2006. The
Division Bench, on the basis of the report of the Technical
Committee as well as the calculations with respect to the area
left after granting a separate NOC to the Parsi Chawl, vide its
orders dated 8.2.2008 and 2.3.206, held that the independent
development of both the chawls is feasible.
16. The proposal of the Koli Chawl (Mahapurush) is yet not
cleared and the Corporation has requested them to resubmit
their proposal after excluding the petitioners from the list of
their members. In any case, till the problem of Koli Chawl is
sorted out, redevelopment of the Parsi Chawl cannot be allowed
to be stalled any further. The petitioners, who are well
protected and are entitled for tenements in the building that will
be constructed for the tenants/occupants of the Parsi Chawl
cannot be allowed to make tenants/occupants in both the chawls
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to suffer any further. This Court is informed that the petitioners
will be provided with transit accommodation if they shift. If, still,
they want to state that they are entitled to become members of
Mahapurush and if Mahapurush also wants the petitioners to be
the members of their society, they may adopt such remedy as
may be available in law for redressal of their grievance. But in
any case they should vacate the tenements in their possession. I
do not find the stand of the Corporation stating that they will
consider the proposal of the Koli Chawl if they resubmit the
same excluding the petitioners, unreasonable. The choice is
now left to the members of Mahapurush and to the petitioners.
If the petitioners do not want tenements in the newly
constructed building meant for the tenants/occupants of the
Parsi Chawl, they may so inform in writing to Pavanputra and
the Corporation at the earliest. Similarly, though Mr Deshmukh,
learned counsel for the respondent-society, on instructions,
submitted that the Society is not prepared to submit fresh
proposal deleting the names of the petitioners from their earlier
proposal, it is open for the said society to submit their proposal
deleting the petitioners therefrom. Mr Sakhare, learned senior
counsel for the Corporation, submitted that if If they submit
such proposal, the Corporation shall consider the same,
notwithstanding the statements made in their affidavit dated
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24.4.2009, in the light of the orders passed by this Court in Writ
Petition No.160 of 2006 and more particularly the report of the
Technical Committee and the calculations on the basis of which
the statement was made that the proposal of the Koli Chawl is
also viable. He further submitted that the Corporation shall
consider their proposal as expeditiously as possible and in any
case within a period of twelve weeks from the date of
submission of the fresh proposal by Mahapurush. Mahapurush
may also, accordingly, inform the Corporation in response to the
letter dated 10.10.2006 referred to in paragraphs 6 and 7 of the
affidavit dated 16.9.2009 whether they are ready to resubmit
the proposal after deleting the names of the petitioners
therefrom at the earliest.
17.In the circumstances, I pass the following order.
(i) The writ petitions are dismissed.
(ii) The petitioners are directed to vacate the tenements
in their possession in the Parsi Chawl on or before
15.11.2009. If they fail to do so, the Corporation may
forcibly remove them with the police aid, if necessary.
Consequently, all Civil Applications stand disposed of.
(D.B.Bhosale,J.)
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