Case Note & Summary
The petitioner, M/s. S.K. Realty (formerly known as Aum Developer), filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 14.09.2022 passed by the 2nd Appellate Authority (State of Maharashtra) in Appeal No.16 of 2021. The appeal was against the order dated 27.02.2019 whereby the Vice President & Chief Executive Officer of MHADA rejected the developer's application/proposal dated 05.10.2016. The developer had sought certification of Room Nos.3, 4 and 5 of the Outhouse situated in the premises of Wadia House, Gilder Lane, Near Tardeo Bridge, Mumbai as separate tenanted units and for grant of revised NOC for redevelopment of the subject property with FSI 3.00. The developer contended that the impugned order was arbitrary and that the authorities had failed to consider the material on record. The respondents, including the State of Maharashtra and MHADA, supported the impugned order, arguing that the developer had not produced sufficient evidence to establish the existence of separate tenancies. The court, after hearing the parties, held that the concurrent findings of the authorities below were based on the material on record and that the developer had failed to discharge the burden of proving the tenancies. The court noted that the developer did not produce rent receipts, agreements, or any other documents to show that the occupants were tenants of separate units. Accordingly, the court dismissed the writ petition, upholding the order of the 2nd Appellate Authority.
Headnote
A) Constitutional Law - Writ Jurisdiction under Articles 226 and 227 - Scope of Judicial Review - The High Court in exercise of its writ jurisdiction does not sit as an appellate authority over findings of fact recorded by statutory authorities unless the findings are perverse or based on no evidence. - Held that the concurrent findings of the authorities below that the developer failed to establish separate tenancies for the rooms in question were based on material on record and did not warrant interference. (Paras 1-8)
B) Housing and Redevelopment - Tenant Eligibility Certification - Burden of Proof - The developer seeking certification of tenants and revised NOC must prove the existence of separate tenancies with cogent evidence. - Held that the developer's failure to produce rent receipts, agreements, or other documents to show that the occupants were tenants of separate units justified the rejection of the application. (Paras 3-7)
C) Housing and Redevelopment - MHADA - No Objection Certificate - FSI - The grant of NOC for redevelopment with higher FSI is contingent upon the developer establishing the eligibility of tenants as per MHADA regulations. - Held that the rejection of the application for revised NOC was proper as the developer did not satisfy the prerequisite of tenant certification. (Paras 3-7)
Issue of Consideration
Whether the 2nd Appellate Authority's order dated 14.09.2022 upholding the rejection of the developer's application for certification of tenants and grant of revised NOC for redevelopment with FSI 3.00 was legal and proper.
Final Decision
The writ petition is dismissed. The order dated 14.09.2022 passed by the 2nd Appellate Authority in Appeal No.16 of 2021 is upheld.
Law Points
- Article 226
- Article 227
- Constitution of India
- Maharashtra Housing and Area Development Act
- 1976
- MHADA Regulations
- Tenant Eligibility Certification
- No Objection Certificate
- Redevelopment
- FSI
- Appellate Authority
- Writ Jurisdiction
- Concurrent Findings
- Judicial Review
Case Details
2024 LawText (BOM) (01) 193
WRIT PETITION (L) NO. 13458 OF 2023
Mr. Mayur Khandeparkar a/w. Ms. Apurva Gupta and Mr. Parth Jasani i/by M/s. Purnanand & Co. for Petitioner, Mr. Amit Shastri, AGP for Respondent No.1 – State, Mr. P.G. Lad a/w. Ms. Sayli Apte, Advocates for Respondent Nos.2 to 5 – MHADA
M/s. S.K. Realty (formerly known as Aum Developer)
State of Maharashtra, Maharashtra Housing and Area Development Authority (MHADA), Mumbai Building Repairs & Reconstruction Board (MBRRB), CEO, MHADA, Vice President, MHADA
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Nature of Litigation
Writ Petition challenging the order of the 2nd Appellate Authority upholding rejection of developer's application for tenant certification and revised NOC for redevelopment.
Remedy Sought
Petitioner sought quashing of the order dated 14.09.2022 passed by the 2nd Appellate Authority and direction to MHADA to certify the rooms as separate tenanted units and grant revised NOC with FSI 3.00.
Filing Reason
The developer's application dated 05.10.2016 for certification of tenants and revised NOC was rejected by MHADA on 27.02.2019, and the appeal against that rejection was dismissed by the 2nd Appellate Authority on 14.09.2022.
Previous Decisions
MHADA rejected the developer's application on 27.02.2019; the 2nd Appellate Authority dismissed Appeal No.16 of 2021 on 14.09.2022.
Issues
Whether the 2nd Appellate Authority's order dated 14.09.2022 upholding the rejection of the developer's application for certification of tenants and grant of revised NOC for redevelopment with FSI 3.00 was legal and proper.
Submissions/Arguments
Petitioner argued that the impugned order was arbitrary and that the authorities failed to consider the material on record.
Respondents argued that the developer had not produced sufficient evidence to establish the existence of separate tenancies.
Ratio Decidendi
The High Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India does not interfere with concurrent findings of fact recorded by statutory authorities unless the findings are perverse or based on no evidence. The developer failed to discharge the burden of proving the existence of separate tenancies for the rooms in question, and therefore the rejection of the application for tenant certification and revised NOC was proper.
Judgment Excerpts
Heard Mr. Khandeparkar, learned Advocate for Petitioner; Mr. Shastri, learned AGP for Respondent No.1 – State and Mr. Lad, learned Advocate for Respondent Nos.2 to 5 – MHADA.
This Writ Petition is filed under the provisions of Articles 226 and 227 of the Constitution of India by the Petitioner (for short “Developer”) taking exception to the order dated 14.09.2022 passed by the 2nd Appellate Authority i.e. Respondent No.1 in Appeal No.16 of 2021.
Developer filed the Appeal against the order dated 27.02.2019 whereby the Application / proposal dated 05.10.2016 filed by the Developer before the Vice President & Chief Executive Officer / Authority of MHADA for considering the eligibility of Room Nos.3, 4 and 5 of the Outhouse situated in the premises of the subject property being Wadia House, Gilder Lane, Near Tardeo Bridge, Mumbai – 400008, as separate units to be certified as tenants and grant of revised NOC for redevelopment of the subject property with FSI 3.00 was rejected.
Procedural History
The developer filed an application on 05.10.2016 before MHADA for certification of tenants and revised NOC. MHADA rejected the application on 27.02.2019. The developer appealed to the 2nd Appellate Authority (State of Maharashtra) in Appeal No.16 of 2021, which was dismissed on 14.09.2022. The developer then filed the present writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Constitution of India: Article 226, Article 227
- Maharashtra Housing and Area Development Act, 1976:
