Writ Petition No. 1663 of 2011. Case: Vijaylaxmi Anandrao Mujumdar and Ors. Vs Mumbai Building Repairs and Reconstruction Board and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 1663 of 2011 |
| Counsel | For Appellant: Virag Tulzapurkar, Virendra Tulzapurkar, Senior Advocates, S.V. Kadam, Apeksha Sharma and Sanjeel Kadam i/b Kadam & Co. |
| Judges | Mohit S. Shah, C.J. and G. S. Kulkarni, J. |
| Issue | Constitution of India - Article 226 |
| Judgement Date | March 19, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
Mohit S. Shah, C.J.
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By this petition under Article 226 of the Constitution of India, the petitioners have challenged the communication dated 6 July 2007 (Exhibit C) of the Mumbai Building Repairs and Reconstruction Board (a unit of MHADA) (hereinafter referred to as "the Board") calling upon the petitioners to surrender built up area admeasuring 26.84 sq.mtrs. to the Board as surplus area as per Third Schedule to Maharashtra Housing & Area & Development Act, 1976 (MHAD Act).
During pendency of the petitions, the petitioners were asked to challenge the same in appeal. The petitioners' appeal came to be rejected by an order dated 25 January 2012 of the CEO & Vice President of Maharashtra Housing & Area Development Authority (MHADA). The petitioners have, therefore, challenged the said appellate order also. Since the impugned communication was based on condition no.22 of the NOC dated 27 September 2006 (Exhibit B) issued by MHADA for the purposes of redevelopment of the petitioners' property, the petitioners have also challenged the said condition.
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The facts leading to the filing of the present petition, broadly stated, are as under:
(a) Petitioner nos.1 to 8 were owners of land (and the building thereon) admeasuring about 546 sq. mtrs. being Final Plot No. 649 of TPS III of Mahim Division in Mumbai. Petitioner nos.1 to 8 entrusted development rights of the said property to petitioner no.9 developer. The petitioners approached the Board for an NOC for redevelopment of the said property. The relevant portion of DCR 33(7) Appendix III at the relevant time reads as under:
"1. (b) All the occupants of the old building shall be reaccommodated in the redeveloped building.
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Each occupant shall be rehabilitated and given the carpet area occupied by him for residential purpose in the old building subject to....... maximum carpet area upto 70 sq. mtrs.......
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The list of occupants and area occupied by each of them in the old cessed building shall be certificated by respondent no.1 Board.......
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The tenements in the reconstructed building shall be allotted by the landlord/occupants cooperative housing society to the occupiers as per the list certified by respondent no.1 Board. The prescribed percentage of the surplus built up area....... shall be made available to respondent no.1 Board......."
(b) There were in all 10 tenements in the old building. Out of these 10 tenements, 5 tenements on the ground floor and 1 tenement on the first floor were occupied by the tenants of the petitioners and the remaining 4 flats (popularly known as tenements) on the second and third floor were occupied by petitioner no.1 (Vijayalaxmi Anandrao Mujumdar), petitioner no.4 (Dilip Shrinivas Mujumdar) and petitioner no.5 (Urmila Sudhir Mujumdar).
(c) The officers of the Board undertook an inspection in regard to the occupation of the tenements in the existing building. Based on the site inspection of the said property, the Board prepared the following statement showing details of the tenants / occupants of the said old building in what is commonly known as Certified List dated 31 July 2006:
As per the said Certified List, 2 tenements described as room nos.4 and 7 on the second and third floor were shown to be in occupation of Vijaya A. Mujumdar and Devraj Mujumdar and the said tenements were shown as clubbed together and treated as a single unit. The remaining 2 tenements, i.e. room no.5 on the second floor occupied by Urmila Sudhir Mujumdar and room no.6 on the third floor occupied by Dilip Shriniwas Mujumdar, were shown as separate units. The officer made the following remark in the said Certified List in respect of each of the said tenement nos.5 and 6: "The separate electricity bill in respect of tenement produced by the occupant and his (her) name is reflected in the electoral list of year 1995, hence occupancy accepted". Thus, as per the said Certified List, out of 10 tenements 9 tenements were considered for the proposal...
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