Jagdish Mavji Tank vs Harresh Navnitrai Mehta

Harresh Navnitrai Mehta & Ors. ….Alleged Contemnor(s)/ Respondent(s)

WITH

Miscellaneous Application No. 2028 of 2021 ( in Civil Appeal No. 9878 of 2016)

Miscellaneous Application No. 1838 of 2021 ( in Civil Appeal No. 9878 of 2016)

JUDGMENT

L. NAGESWARA RAO, J.

1. The dispute in this Contempt Petition and Miscellaneous

Applications relates to the redevelopment of property situated at Plot

No.231, T.H. Kataria Marg, Mahim, Mumbai also known as Jariwala

Page 1 of 16 Chawls (“subject property”). As we are not concerned with the

historical background, the antecedent facts are not dealt with in this

judgment. The brief facts that are necessary for the adjudication of

the dispute herein are as follows.

2. The tenants/occupants of the Jariwala Chawl filed a Writ

Petition (Civil) No.2545 of 2006 in the High Court of Bombay for the

following reliefs:

“(a) That this Hon’ble Court be pleased to issue of Writ of

Mandamus or any other writ order or direction in the nature of

mandamus directing Respondent No.1 to permit

redevelopment of the said property known as Jariwala Chawl,

situated at Plot No.231, T.H. Kataria Marg, Mahim, Mumbai

400016 in accordance with the decision recorded in the

Minutes of the meeting dated 2.8.2004;

(b) That this Hon’ble Court be pleased to issue of Writ of

Mandamus or any other writ, order or direction in the nature of

mandamus directing Respondent No.1 to forthwith issue the

NOC for the purpose of redevelopment of the said property

known as Jariwala Chawl, situated at Plot No.231, T.H. Kataria

Marg, Mahim, Mumbai 400016 in accordance with the Minutes

of the meeting dated 2.8.2004;

(c) That Respondent No.6 be directed to forthwith commence

redevelopment of the said property known as Jariwala Chawl,

Page 2 of 16 situated at Plot No.231, T.H. Kataria Marg, Mahim, Mumbai

400016 in accordance with the provisions of Development

Regulations 33(7) and (9);”

3. On 21.01.2016, the High Court passed an order in the said Writ

Petition to the following effect:

“(a) The Chief Officer of the MBRRB in the first instance

will file an authenticated copy of the list of occupants in

his custody in a sealed cover in this Court on or before 2 nd

February 2016;

(b) On or before 15 th February 2016, both developers shall

also file in sealed covers in this Court and simultaneously

in sealed cover with the Chief Officer, MHADA a list of the

occupants from whom each of them they claim to have

obtained consents along with the necessary supporting

documents;

(c) All the sealed covers shall be retained by the

Prothonotary & Senior Master of this Court until further

orders;

(d) Thereafter, by 29th February 2016, the Chief Officer will

fix a meeting at which all these documents will be opened

and scrutinize. That would be done in the presence of the

representatives of these developers;

Page 3 of 16

(e) It is clarified that if the Chief Officer finds that the same

occupants has given consent to both sides, then the

consent so given will not be taken into account in

computing the 70% requirement for either side;

(f) The Chief Officer will then assess which of the two

Developers has authenticated and bona fide 70% consent.

Further development will be carried out only by the

developer having such confirmed consent;

(g) If neither Developer is able to establish such consent,

further development will be carried out on a priority basis

by MHADA itself through its own resources and for which it

may appoint Architects, Surveyors, Engineers and

Contractors (but not another developer);

(h) The decision of the Chief Officer will be final and

binding on all concerned and will not be called into

question;

(i) The entire exercise in terms of our directions will be

completed by the end of 15 th April 2016 and conclusions

reached by the Chief Officer shall be filed in a sealed cover

with this Court.”

4. In compliance of the directions issued by the High Court, an

exercise was conducted by the Maharashtra Housing and Area

Development Authority (for short “MHADA”) on 05.04.2016 to identify

Page 4 of 16 which developer/builder has the requisite 70% consent of the

tenants/occupiers to carry out the redevelopment of the subject

property. MHADA reported to the High Court that neither M/s. Raj Doshi

Exports Pvt. Ltd. nor M/s. Matoshree Infrastructure Private Limited had

the requisite 70% consent. The judgment of the High Court dated

21.01.2016 was challenged in this Court initially by M/s Raj Doshi

Exports Private Limited, wherein this Court directed the Chief Officer,

Mumbai Building Repair & Reconstruction Board (‘MBRRB’) to summon a

meeting of the tenants/ occupants for the purpose of ascertaining

whether M/s. Raj Doshi Exports Pvt. Ltd. has requisite 70% consent. A

Report dated 03.09.2016 was submitted by the Chief Officer, MBRRB in

which it was stated that M/s. Raj Doshi Exports Pvt. Ltd has 78.89%

consent of the eligible tenants/ occupants, and therefore the said

developer should be permitted to redevelop the subject property.

5. While disposing of Civil Appeal No.9878 of 2016 on 29.09.2016,

this Court took note of the meeting that was conducted by the Chief

Minister of Maharashtra on 02.08.2004 during which, a decision was

taken for handing over the entire subject property comprising of four

buildings to M/s. Raj Doshi Exports Pvt. Ltd. for carrying out the re-

development of the project in a joint venture with MHADA under

Regulations 33(7) and 33(9) of the Development Control Regulations,

1991 (“DCR”). By the said order dated 29.09.2016, this Court directed

the tenants/ occupants to vacate one building which remained occupied

Page 5 of 16 within a period of eight weeks. MHADA and all Government authorities

were directed to give necessary NOC/ clearances within eight weeks.

The assurance of M/s. Raj Doshi Exports Pvt. Ltd. that development

would be completed within a period of 42 months after the expiry of

eight weeks was recorded.

6. Pursuant to the said order, a No Objection Certificate was issued

by MHADA on 22.11.2016 in favour of the developer/builder levying

certain conditions which were not agreeable to the developer/builder.

Claiming these conditions to be the hitches in carrying out the re-

development process, Interlocutory Application Nos. 4 and 5 of 2017

were filed by Raj Doshi Exports Pvt. Ltd. for clarification of the

judgement dated 29.09.2016. During the course of deliberations, the

controversy narrowed down to three conditions which, according the

MHADA, were to be examined by this Court. The first condition related

to the land cost of Rs.29 Crores to be paid back to MHADA and the

second related to whether the area which was to be allotted to the

tenants should be 300 sq. ft. or 425 sq. ft. The third point raised by

MHADA was that the decision of the Chief Minister dated 02.08.2004

cannot be relied upon as it stood superseded by various subsequent

events, and therefore it was the NOC given by MHADA which solely

governed the re-development work being carried out by the

developer/builder.

Page 6 of 16

7. By an order dated 12.04.2017, this Court clarified the

aforementioned three issues. It was held that the MHADA was not

entitled to the land cost of Rs.29 Crores. This Court clarified that

though, the decision of the Chief Minister was to the effect that the

construction/redevelopment was to be a joint venture, it was only this

portion of the decision which was superseded by the order of this Court

dated 29.09.2016 and the remaining portion would still bind the parties.

Therefore, the condition for land cost in the NOC could not be insisted

upon by MHADA. It was further held that the tenants/occupants would

be entitled for 425 sq. ft. as it was only on Court’s insistence that the

developer/builder agreed to such a condition. Accordingly, MHADA was

directed to issue a fresh NOC within four weeks and the undertaking of

M/s. Raj Doshi Exports Pvt. Ltd. that the construction would be

completed within 42 months was also taken on record. While being

conscious of the fact that the project was pending for about three

decades, all the authorities were directed to cooperate so that the

project could be completed expeditiously.

8. Subsequent to the said order dated 12.04.2017, fresh NOC was

issued by MHADA on 09.05.2017 deleting the three conditions as

directed by this Court, along with the other conditions such as

requirement of demarcation and sub-division of the subject property;

issuance of separate property cards and for execution of lease with

Page 7 of 16 respect to 2807.15 sq. mtrs. of land in favour of the co-operative

housing society in terms of the policy of MHADA among others.

9. After the expiry of the period of 42 months, the tenants/occupants

filed the Contempt Petition (Civil) No.442 of 2021 complaining of non-

compliance of the judgment of this Court dated 29.09.2016 and the

order dated 12.04.2017. It has been alleged by the tenants/occupants

that the builder has not even commenced the construction/

redevelopment of the subject property in spite of the undertaking given

in this Court that the same would be completed in 42 months from

12.04.2017, which period expired on 12.10.2020.

10. On the other hand, Miscellaneous Application No.2028 of 2021 has

been filed on behalf of the MHADA seeking a direction to carry out the

redevelopment of the subject property i.e, four buildings in T.H. Kataria

Marg, Mahim, Mumbai marked as 102A, 102B, 102C and 102D

admeasuring 2975.85 sq. meters. The ground taken in the said

Application is that M/s. Raj Doshi Exports Pvt. Ltd. has not commenced

the construction even after 54 months and since the builder/developer

has miserably failed to carry out re-development, MHADA is ready and

willing to carry out the re-development of the four buildings.

11. M/s. Raj Doshi Export Pvt. Ltd. has filed the Miscellaneous

Application No. 1838 of 2021 for a clarification that the Applicant should

continue to be the owner of the portion comprising of 2807.15 sq. Page 8 of 16 meters of the subject property, as the acquisition process for the said

portion by MHADA was not complete. Further, permission was sought

from this Court to redevelop all the three plots together and to execute

deed of conveyance in favour of the proposed society or condominium

in respect of the entire plot admeasuring 6067.96 sq. mts. which

includes the portion of 2807.15 sq. mts. The grievance of the Applicant

in this Application is that there was a deliberate delay on the part of

MHADA in not granting necessary approvals and by imposing

unreasonable conditions in the NOCs. Apart from the other points, M/s.

Raj Doshi Exports Pvt. Ltd. alleged in the Application that the layout was

conditionally approved by the Municipal Corporation of Greater Mumbai

(‘MCGM’) only on 11.11.2019 with a condition to delineate the subject

property into sub plots. This condition was incorporated due to

insistence on the part of MHADA to demarcate the subject property and

for the issuance of separate property cards indicating that MHADA was

the owner of the portion of land admeasuring 2807.15 sq. mtrs.

According to the builder/developer, MHADA cannot insist on the

condition for issuance of separate property cards and for sub-division of

the subject property after the order passed by this Court on 12.04.2017.

During the course of the hearing, an affidavit was filed by the Chief

Officer, MHADA on 14.03.2022 in which it was stated that the condition

of sub-division of the plot shall not be insisted upon in terms of the NOC

dated 09.05.2017 and that the builder could approach MCGM for further

process.

Page 9 of 16

12. The tenants have been eagerly waiting for the construction of flats

since more than 25 years. After hearing the learned counsel for the

parties on several occasions, we are convinced that there is gross

negligence on the part of the builder in not complying with the

directions of this Court dated 29.09.2016 and 12.04.2017. Ordinarily,

we would have proceeded to hold the builder guilty of Contempt of

Court and to impose suitable punishment. As construction of the

buildings promptly would subserve the interest of the

tenants/occupiers, we directed the builder/developer to file an

undertaking to the effect that the redevelopment project would be

completed in a stipulated time frame. This was done after getting a

clearance from MHADA and MCGM that the condition for sub division of

the plot would not be insisted upon. In compliance of the said direction,

an affidavit was filed on 14.03.2022 by M/s. Raj Doshi Exports Pvt. Ltd.

to the following effect:

“2. Raj Doshi Exports Pvt. Ltd. will undertake to complete the

redevelopment on entire land adm. 6067.96 sq mtrs. being Final

Plot No. 231, Cadastral Survey No. 582 at Mahim Division, situated

at T.H. Kataria Marg, Mahim, Mumbai-400016, known as “Jariwala

Compound” as one single plot and subdivision will not be insisted

upon by MHADA/MCGM.

Page 10 of 16

3. The Redevelopment will be done in accordance with regulation

33(7) and/or (9) DCPR-2034.

4. The Deponent will submit the plan for amendment before the

MCGM in accordance with DCPR 2034 within 4 weeks from the

date of the order in case this Hon’ble Court will please to direct

the deponent for that and after that the MCGM will be required to

approve the plans within 8 weeks from the date of submission of

such plans. In so doing, the MCGM/MHADA will continue all

concessions, orders, NOCs and permissions granted from time to

time in respect of applicant’s application made over the last 6

years from 2016 and will not vary the same and the Deponent will

not be required to reapply for the same. The Deponent shall

comply only with the terms and conditions as mentioned in the

NOC dated 09.05.2017 issued by MHADA and the conditions of the

previous NOC dated 22.11.2016 which stood deleted by this

Hon’ble Court’s Order dated 12.04.2017, shall not be insisted

upon by MCGM/MHADA.

5. That within 30 days of the receipt of approvals, in case this

Hon’ble Court will please to direct the tenants/occupants to vacate

the premises held by them and on such vacation, the

tenants/occupants of building 102-A shall be paid Rs.

25,000/month to each eligible tenant who has vacated their

respective premises till such time their new premises are ready

Page 11 of 16 and possession is offered in lieu of their existing area as and by

way of Permanent Alternate accommodation.

6. That all eligible tenants/occupants will be provided appropriate

accommodation admeasuring minimum 508 sq. ft. carpet area

(including fungible area) in redeveloped building. The MCGM shall

allow incentive FSI on the rehab area which will be provided to the

existing tenants i.e. on minimum 508 sq. ft. (inclusive of fungible).

7. That the deponent will execute Permanent Alternate

Accommodation Agreement (PAA agreement) in terms of DCPR

33(7) and/or 33(9) read with appendix 3 within 8 weeks from the

receipt of all approvals.

8. That the Deponent shall execute conveyance deed of the entire

land admeasuring 6067.96 sq. mtrs., as owners thereof, in favour

of the one or more Co-operative housing society/ies which shall be

formed of existing tenants/occupants and the new flat purchasers

as provided under DCPR 2034 r/w Appendix III ignoring the

acquisition of portion of land admeasuring 2807.15 sq. mtrs. out

of larger land admeasuring 6067.96 sq. mtrs. In pursuance

thereof, the plot will not be required to be subdivided and insisted

by MHADA/MCGM and MHADA will communicate the aforesaid to

MCGM forthwith.

9. That the MCGM will sanction the plans to maintain carpet to built

up area ratio as mentioned in decision dated 02/08/2004 of the

State Government taken in presence of Hon’ble Chief Minister. Page 12 of 16

10. That both MHADA and MCGM will implement orders of this Hon’ble

Court dated 29.09.2016 & 12.04.2017 and decision taken by Chief

Minister on 02/08/2004 and will not raise any objection in

development of project.

11. That the deponent builder and its agencies undertakes through

Chairman to complete rehabilitation of all tenants within 36

months from the date of vacation of all the eligible

tenants/occupants.”

13. An objection was taken by MHADA to the aforementioned

undertaking filed by the builder regarding execution of conveyance

deed by the builder for the entire land admeasuring 6067.96 sq. mtrs.

in favour of the proposed Co-operative Housing Society. While

objecting to this undertaking, a direction was sought to the builder to

facilitate execution of Lease Deed between MHADA and the proposed

Co-operative Housing Society for the portion of land measuring

2807.15 sq. meters on completion of the project. According to

MHADA, 2807.15 sq. meters of land out of the 6067.96 sq. meters was

acquired by MHADA and the acquisition proceedings had attained

finality. It is the case of MHADA that the builder/developer has been

given the land acquired by MHADA only for construction and

redevelopment, while the ownership of the same still vests with

MHADA. Therefore, it is MHADA which has the right to execute the

Page 13 of 16 Lease qua 2807.15 sq. meters of land with the proposed Co-operative

Housing Society and the builder is free to execute conveyance deeds

on freehold basis for the remaining portion of the land. It was

contended on behalf of MHADA that neither the decision of the Chief

Minister nor the orders of this Court dated 29.09.2016 and 12.04.2017

would help the builder/developer in claiming title over the entire

subject property, including the land acquired by MHADA. It was also

contended that the builder/developer has not disputed that 2807.15

sq. meters was acquired by MHADA and that the builder cannot now

claim any right over the said land.

14. The claim of MHADA for title over 2807.15 sq. meters of land is

unsustainable. One of the objections raised by MHADA before this

Court which was rejected by the order dated 12.04.2017 was that the

builder has to pay back the land cost of Rs. 29 Crores for the land

admeasuring 2807.15 sq. mtrs. The second objection was that the

project was to be a joint venture as was agreed during the meeting

conducted by the Chief Minister. In the order dated 12.04.2017, this

Court has categorically held that a portion of the decision of the Chief

Minister stood superseded by subsequent events and by the order

dated 29.09.2016 in as much as the re-development of the subject

property was to be carried out by builder/developer solely. In other

words, it was held that the entire property was to be handed over to

the builder/developer and that MHADA was not entitled to the land Page 14 of 16 cost of Rs. 29 Crores. As there can be no manner of doubt about the

said finding recorded by this Court in the order dated 12.04.2017, it is

totally unreasonable on the part of MHADA in insisting that it should

be permitted to execute Lease Deed in favour of the proposed Co-

operative Housing Society qua 2807.15 sq. mtrs.

15. As mentioned above, the builder is guilty of delaying the

construction by not taking suitable steps in complete disobedience of

the orders passed by this Court based on its undertaking. Equally,

MHADA is also responsible for creating hurdles, initially by imposing

unreasonable conditions of sub division of the plots and issuance of

property cards in the NOC dated 22.11.2016 and later in insisting that

MHADA still has ownership over 2807.15 sq. meters of land. We are of

the considered opinion that the builder as well as the concerned

authorities of MHADA are guilty of non-compliance of the directions of

this Court. They are warned that any further disobedience of the

directions given by this Court shall be viewed seriously. The

undertaking filed by the builder/developer on 14.03.2022 is taken on

record which shall be scrupulously complied with by all concerned.

16. With the aforesaid directions, the Contempt Petition is closed

with liberty to the tenants/occupants to approach this Court in case

of non-compliance of the directions given above. The other

Page 15 of 16 Miscellaneous Applications filed by M/s Raj Doshi Exports Pvt. Ltd.

and MHADA are disposed of.

..................................J. [ L. NAGESWARA RAO ]

..................................J. [ B.R. GAVAI ]

New Delhi, April 19, 2022.

Page 16 of 16