Gaikwad & Ors. Vs. State of Maharashtra & Ors.  INSC 438 (5 July
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4890 OF
2010 (Arising out of SLP [C] No.5007/2006) Avinash Gaikwad & Ors. ...
Appellants State of Maharashtra & Ors. ... Respondents
Leave granted. Heard the parties.
The appellants challenge the order dated 5.5.2005 by which
W.P.No.649/2005 filed by them was dismissed by the Bombay High Court.
A property known as Pimpalwadi at CS No.370 Tatya Gharpure Marg,
Girgaon Division, Mumbai, originally belonged to Sir Harkishandas Trust. The
said property consisting of several Chawls, Godowns and Sheds was acquired by
the State of Maharashtra under section 41 of the Maharashtra Housing & Area
Development Act, 1976 in the year 1988.
the State Government delivered possession of the said property to the
Maharashtra Housing & Area Development Authority (`MHADA' for short) on
31.1.1989 for redevelopment under Urban Renewal Scheme.
due to certain protracted litigation between the owners of the property and
Pimpalwadi Bhadekaru Sangh formed by the occupants of the said property, MHADA
could not take up the reconstruction. At that stage, the said Pimpalwadi
Bhadekaru Sangh, gave a proposal to MHADA to permit development of the property
through M/s. Shreepati Towers - a private developer (an AOP of respondents 5 to
12 described also as "R.R. Chaturvedi & Others of M/s. Shreepati
Group"). The said property had 312 residential tenements and 23
non-residential tenements. MHADA considered the proposal and granted a no
objection certificate dated 27.2.2001 for redevelopment of the said property in
favour of the developer, under Regulation No. 33(7) of Development Control
Regulations for Greater Mumbai, 1991 (for short `DC Regulations').
The said NOC was challenged by some occupants/tenants by filing WP
No.1299/2001 in the Bombay High Court. The said petition was allowed by order
dated 30.4.2002 and the NOC dated 27.2.2001 granted by MHADA to the developer
was set aside with a direction to MHADA to itself develop the property. The
said decision was challenged by MHADA in C.A. 3 Nos.2046-47/2003 before this
Court. The developers and some tenants also filed appeals. In those appeals,
this Court by interim order dated 23.9.2002 called upon the State Government
and MHADA to state whether the State Government would direct MHADA to take up
and proceed with the construction. In pursuance of it, the State Government and
MHADA held deliberations and MHADA prepared a scheme in consonance with the
guidelines issued under the Urban Renewal Scheme by the Government read with DC
Regulation 33(9). Thereafter, the State Government filed an affidavit dated 15.2.2003
wherein they set out the terms of a scheme as follows :
the scheme, the property can be developed by MHADA utilizing up to 4 FSI. The
contractor/developer involved in the scheme shall construct 335 tenements for
the existing tenements free of cost to MHADA. He shall get some areas for free
sale which will be equivalent to
minus the FSI required for construction of tenements for the tenants. He shall
also construct additional tenements free of cost for MHADA to accommodate
tenants in the Master List using part of the balance 1.5 FSI out the total 4
FSI available under the scheme. The said scheme can be implemented by MHADA
involving contractor/developer who has consent of at least 70% of the occupants
of the property in question.
since MHADA does not have adequate funds to construct the houses for tenants,
Government proposes after due consultations with MHADA, to execute the project
through developer, who within 2.5 F.S.I.
construct free flats for 335 tenants. Remaining FSI out of 2.5 can be utilized
by developer for his free sale flats.
gets 4.00 F.S.I. Therefore, within remaining 1.5 F.S.I, it is proposed to
construct 134 in the same premises, flats for those who are in the transit camp
for which separate negotiations will be made with the developer.
4 In view
of the resources crunch faced both by Government and MHADA, they both after
discussion with each other have together decided the above course of action,
for which Government requests the approval of the Supreme Court.
the above scheme is approved by the Hon'ble Supreme Court, State Government
shall issue appropriate guidelines for the purpose of the implementation of the
reconstruction scheme by availing FSI in accordance with the provisions of DC
Regulations 33(9) of the DC Regulation 1991. The guidelines shall prescribe
transparent purpose of the implementation of the reconstruction scheme by
availing FSI in accordance with the provisions of DC Regulations 33(9) of the
DC Regulation 1991. The guidelines shall prescribe transparent procedure such
as explaining the plans of the new building, municipal & other taxes likely
to be incurred by the occupants, formation and registration of the Co-operative
Housing Society, area to be utilized for the purpose of rehabilitation and free
sale etc. as directed by the Hon. High Court in its judgment MHADA would be
directed to complete the reconstruction scheme within the four corners of the
administrative guidelines issued by the Government."
Court considered the said scheme and by order dated 7.3.2003, recorded the
acceptance thereto by MHADA and others also, barring some tenants, and accepted
the said Scheme and disposed of the matter in terms of it.
In pursuance of the order of this Court, the State Government
issued guidelines on 24.3.2003. The Mumbai Building Repair & Reconstruction
Board (`MBRRB' for short, the third respondent herein), issued an NOC dated
23.5.2003 to the Developer for redevelopment of the said property 5 jointly by
MHADA and the developer in pursuance of DC Regulation 33(9) read with
Regulation 33(7). Thereafter, MHADA entered into an agreement dated 30.6.2003
with the developers (respondents 5 to 12) in regard to the development of the
said property. In pursuance of it, the developer, after securing possession,
has re-developed the property.
During the course of the execution of the development project,
five tenants filed Writ Petition Nos.108/2003 and 3096/2003 challenging the
subsequent NOC dated 23.5.2003 issued by third respondent in accordance with
the order of this Court, approving the Scheme. The Bombay High Court by its
judgment dated 16.2.2004 dismissed the said petitions and in the course of the
said judgment, observed as under :- "The NOC dated 23.5.2003 granted by MHADA
pursuant to the directions given by the Supreme Court is now sought to be
challenged primarily on the ground that the DC Regulation 33(7) has no
application to the said property as DC Regulation 33(7) is applicable to cessed
properties whereas the said property is acquired property, and therefore the
state has committed an error in applying DC Regulation 33(7) and the NOC is
invalid.......DC Regulation 33(9) is applicable to properties acquired by the
State/MHADA whereas DC Regulation 33(7) apply to cessed properties. However,
there is nothing in the provisions of DC Regulations 33(9) and 33(7) cannot be
invoked simultaneously so that MHADA can get additional tenements in order to
house dishoused persons as per the Master List. In fact both provisions were
incorporated in the scheme submitted before the Supreme Court. The scheme
approved by the Supreme Court specifically contemplate that the land, though
vested in MHADA/State would be developed through the builder by invoking the
provisions of DC Regulation 33(9) read with D C Regulation 33(7) of the D C
Thereafter, the present appellants along with two others (all
previous occupants of the property) filed Writ Petition No.649/2005 seeking the
following, among others, reliefs : (a) declaration that the re-development of
Pimpalwadi property was not being done in accordance with law and the DC
Regulations, and for a direction to respondents to carry out the re-
development by removing the defects pointed out in the writ petition; (b) a direction
to the developers to demolish the rehabilitation tenements constructed so far
as they were not conforming to the DC Regulations; (c) for a direction to MHADA
and MBRRB to construct the rehabilitation tenements at their own cost as per DC
Regulations. However, when the said petition came up for hearing before the
High Court, only two contentions were urged, presumably because the other
contentions were covered by the decision of this Court and subsequent High
Court order dated 16.2.2004.
contention was that the area of each tenement to be constructed and delivered
to the previous occupants should have, in addition to a carpet area of 225 sq.
ft. in respect of the tenement, a balcony measuring 10% of the tenement area.
The second contention was that the height of the tenements (height between roof
and floor) should not be less than 2.9 M, instead of 2.7 M adopted by the
developer. The High Court by its order dated 5.5.2005 disposed of the said writ
petition. It held that the first contention could not 7 be accepted as the
Scheme was under DC Regulations and it did not require construction of a
balcony in addition to the tenement measuring 225 sq. ft.
to the second contention, the High Court recorded the submission of the
developer that the height of the units will be increased to 2.9 M in the
buildings which were yet to be constructed.
The said judgment is challenged in this appeal by special leave by
the appellants who were occupants. In the special leave petition, several
contentions have been raised. When it was pointed out by the court that only
two contentions were urged before the High Court (out of which one was conceded
by the developer before the High Court, leaving one issue for decision), the
learned counsel for the appellants submitted that the appellants were pressing
only one contention regarding the area of the tenements to be delivered to the
previous occupants. It was contended that they should be delivered tenements of
minimum carpet area of 225 sq.ft. as permanent alternative accommodation with a
balcony in addition, which is of a minimum area of 22.5 sq.ft. (10% of the
tenement area). Thus, the only question that arises for our consideration is
whether the developer is bound to construct and deliver to the previous
occupants, tenements with a balcony 8 measuring a balcony area of a minimum
area of 22.5 sq.ft. in addition to the minimum carpet area of 225 sq.ft.
The NOC dated 23.5.2003 issued by MBRRB and the Agreement dated
30.6.2003 between MHADA and the developer, require the developer to deliver to
each occupant of the old building, a tenement with a carpet area equal to area
occupied by him for residential purpose subject to minimum carpet area of 225
sq.ft. They do not require delivery of any additional balcony area. We extract
below Clause (3) of the operative portion of the agreement dated 30.6.2003 :
second party shall out of the 2.5 FSI, construct and hand over to the first
party, 312 tenements for the residential tenants and 23 tenements for the non
residential tenants of the said property and free sale tenements for the second
party as per provisions under Appendix III of DCR 33(7)."
Not finding any support from the agreement dated 30.6.2003, the
appellants attempted to seek support for their claim for balcony (with an area
of 10% of the area of the tenement) with reference to DC Regulation No. 33(9)
read with Regulation 35(2)(k) and Regulation 38(22). It is submitted that the
development being a reconstruction under the Urban Renewal Scheme, it was
governed by DC Regulation 33(9); that in regard to the developments of cessed
buildings under DC Regulation 33(7) and 9 development of slums under DC
Regulation 33(10), the area of 225 sq.ft.
include the area of balcony also, having regard to Clause(2) of Appendix III
and Clause 1.2 of Appendix IV; that in regard to the development under DC Regulation
33(9) under the Urban Development Scheme, the balcony of an area of 10% of the
tenement area) has to be provided in addition to the area of the tenement.
To find out whether there is any merit in the contention, we may
now refer to the relevant Regulations:
Reconstruction or redevelopment of cessed buildings in the Island City by
Cooperative Housing Societies or of old buildings belonging to the Corporation
or of old buildings belonging to the Police Department :- For
reconstruction/redevelopment to be under taken by Cooperative Housing Societies
of existing tenants or by Co-op. Housing Societies of landlords and/or
occupiers of a cessed buildings of `A' category in Island City, which attracts
the provisions of MHADA Act, 1976 and for reconstruction/redevelopment of the
buildings of Corporation and Department of Police, Police Housing Corporation,
Jail and Home Guard of Government of Maharashtra, constructed prior to 1940,
the Floor Space Index shall be 2.5 on the gross plot area or the FSI required
for rehabilitation of existing tenants plus incentive FSI as specified in
Appendix-III whichever is more.
Repairs and reconstruction of cessed buildings and Urban Renewal Scheme:- For
repairs & reconstruction of cessed buildings and Urban Renewal Scheme
undertaken by the Maharashtra Housing and Area Development Authority or the
Mumbai Housing and area Development Board or Corporation 1 in the Island City,
the FSI shall be 4.00 or the FSI required for rehabilitation of existing
tenants / occupiers, whichever is more.
Rehabilitation of slum dwellers through owners/developers/co-operative housing
societies:- For redevelopment of restructuring of censused slums or such slums
whose structures and inhabitants whose names appear in the Legislative Assembly
voters' list of 1985 by the owners/developers of the land on which such slums
are located or by Cooperative Housing Societies of such slum dwellers a total
floor space index of upto 2.5 may be granted in accordance with schemes to be
approved by special permission of the Commissioner in each case. Each scheme
shall provide inter-alia the size of tenements to be provided to the slum
dwellers, the cost at which they are to be provided on the plot and additional
tenements which the owner/developer can provide to accommodate/rehabilitate
slum dwellers/project affected persons from other areas etc. in accordance with
the guidelines laid down in the Regulations in Appendix IV."
Space Index Computation - (1) Floor Space Index/Built-up calculations - The
total area of a plot shall be reckoned in floor space index/built-up area
calculations applicable only to new development to be undertaken hereafter as
under:- xxx xxx xxx (2) Exclusion from FSI computation - The following shall
not be counted towards FSI:- xxx xxx xxx (k) Area of balconies as provided in
sub-regulation (22) of Regulation 38.
xxx Sub-regulation (22) of Regulation 38 referred to in Regulation 35(2) is
Balcony - In any residential zone (R-1) and residential zone with shop line
(R-2), or in a purely residential 1 building in any other zone, balconies may
be permitted free of FSI at each floor, excluding the ground and terrace
floors, of an area not more than 10 per cent of the area of the floor from
which such balcony projects subject to the following conditions:
relevant portions of Appendix III and Appendix IV which are referred in
Regulation 33(7) and 33(10) are as under:
III Regulation for the reconstruction or redevelopment of cessed buildings in
the Island City by the Landlord and/or Co-operative Housing Societies.
Regulation No. 33(7)]
The new building may be permitted to be constructed in pursuance of an
irrevocable written consent by not less than 70 per cent of the occupiers of
the old building.
the occupants of the old building shall be re- accommodated in the redeveloped
occupant shall be rehabilitated and given the carpet area occupied by him for
residential purpose in the old building subject to the minimum carpet area of
20.90 sq.mt. (225 sq.ft.) and/or maximum carpet area upto 70 sq.mt. (753
sq.ft.) as provided in the MHAD Act, 1976. In case of non-residential occupier
the area to be given in the reconstructed building will be equivalent to the
area occupied in the old building.
APPENDIX IV [Regulation No.33(10)]
Applicability of the provisions of this Appendix : The following provisions
will apply for redevelopment/construction of accommodation for hutment/pavement-dwellers
through owners/developers/co-operative housing societies of
hutment/pavementdwellers/public authorities such as MHADA, MIDC, MMRDA
etc./Non-Governmental Organisations anywhere within the limits of Brihan
of the hutment dwellers:
Hutment-dwellers, in the slum or on the pavement, eligible in accordance with
the provisions of Development Control Regulation 33(10) shall, in exchange for
their structure, be given free of cost a residential tenement having a carpet
area of 20.90 sq. m. (225 sq.ft.) including balcony, bath and water closet, but
excluding common areas.
those structures having residential areas more than 20.90 sq.m will be eligible
only for 20.90 sq.m of carpet area.
area shall mean exclusive of all areas under walls including partition walls if
any in the tenement. Only 20.90 sq.mt. carpet area shall be given and if
proposal contains more area, it shall not be taken up for consideration.
The grievance of the appellants in the writ petition was that
tenements constructed were of an area less than the required carpet area of 225
sq.ft, and that was a violation of the DC Regulations. The writ petition did
not raise any contention about any requirement of providing a balcony of 10% 1
of the area of the tenement. When the agreement between MHADA and developer did
not require construction of a balcony and when the appellants had not even
alleged in the petition that balcony was required to be constructed, we fail to
understand that how the appellants could raise a contention during arguments
before the High Court that they were entitled to a balcony in the tenement
whose measurement should be of 10% of the area of the tenement. It is not
disputed that the inspection report showed that the extent of tenement was not
less than 225 sq.ft. and the appellants had agreed to take the tenements
subject to the result of the case.
Let us consider whether Regulation 35(2)(k) and 38(22) are of any
assistance to appellants. Regulation 38(22) relates to `Balconies' and provides
that in any residential zone, balconies may be permitted free of FSI at each
floor (excluding ground and terrace floors) of an area not more than 10% of the
area of the floor from which such balcony projects. Regulation 35 deals with
Floor Space Index computation and Note (ii) thereof relates to exclusion from
FSI computation. One of the items to be excluded from the FSI computation vide
entry (k) is the area of balconies which are provided under Regulation 38(22).
The effect of Regulation 35 (2)(k) read with Regulation 38(22) is that if a
balcony is constructed as per Regulation 1 38(22) it will be excluded for the
purpose of calculating FSI. These Regulations by no stretch of imagination can
be construed as casting a liability upon the developer
reconstructing/developing a property under the Urban Renewal Scheme to
construct a balcony (whose extent is 10% of the area of the tenement) when
constructing and delivering tenements to the previous occupants of the
demolished building. The area to be given to such occupants is clearly
specified in Regulation 33(7) read with Appendix III (Clause 2), the NOC and
the agreement. An old occupant is entitled to a tenement only under Regulation
33(7) and not Regulation 33(9). Regulation 33(9) was invoked only to get
additional FSI of 1.5 by MHADA. We may at this juncture note that the question
whether Regulation 33(9) will apply as contended by the appellant or Regulation
33(7) read with Regulation 33(9) will apply, as contended by the respondents,
is academic and not relevant for the purpose of ascertaining whether the
appellants as old occupants are entitled to any additional balcony area.
the Scheme approved by this Court, MHADA which did not have adequate funds for
constructing tenements, proposed to execute the project through a developer.
The arrangement as per the Scheme was that the benefit of Regulation 33(9) was
to be taken only for utilizing the higher FSI floor and the development by the
developer will be governed by DC 1 Regulation 33(7) read with Appendix III.
Appendix III requires that each occupant to be rehabilitated should be given a
minimum carpet area of 225 sq.ft. As per the Scheme approved, the contractor
had to construct 335 tenements for the rehabilitation of the existing occupants
free of cost and each tenement was to be of an area of 225 sq.ft. The Scheme
did not contemplate construction and delivery of any balcony in addition to the
225 sq.ft. carpet area. In so far as the area to be delivered to the previous
occupants, the extent is clear, that is 225 sq.ft. without any balcony.
Further, the assumption of the appellants that if the matter had been governed
by Regulation 33(9), the tenement measurement would have been 225 sq.ft.
balcony of a minimum measurement of 10% of the 22.5 sq.ft., is baseless as
Regulation 33(9) does not require it. Be that as it may.
We therefore find no merit in this appeal and the same is
............................J. (R V Raveendran)