Case Note & Summary
The matter arose from a writ petition under Article 226 of the Constitution of India filed by a partnership firm and its partner, who were tenants/occupants of godown No.17-A, Doctors Compound, Dattaram Lad Marg, Chinchpokli (East), Mumbai admeasuring 444.35 sq.mtrs carpet area. The respondents included the Executive Engineer, E-1 Division, MBR & R Board and the developer Respondent No.6. The redevelopment scheme was implemented under Regulation 33(7) of Development Control Regulations for Greater Mumbai, 1991 for cessed buildings. The Board issued an initial NOC dated 24.11.2006 when permissible FSI was 2.5; after amendment on 14.08.2013 increasing FSI to 3, a revised NOC dated 30.04.2014 was issued. On 29.12.2020, a notice was issued and on 23.03.2021 an order under Section 95-A of Maharashtra Housing and Area Development Act, 1976 directed the petitioners to vacate the tenanted premises within 48 hours and handover possession to respondent No.6, failing which compulsory eviction under Section 95-A(2) would be taken. The petitioners challenged these. The legal issues included whether the Section 95-A order was valid when no rehab plan was provided, whether permanent rehab premises must be on ownership basis, whether transit rent offered was discriminatory or inadequate, whether absence of registered agreement vitiated eviction, and the scope of Section 95-A proceedings. Petitioners contended that without these compliances, an order under Section 95-A cannot be passed. They relied on Surendra Vishnu Masurkar v. M.C.G.M. for ownership basis. Respondent No.6 argued the scope was narrow, requiring only irrevocable consent by minimum 70% occupiers, NOC by the Board, and alternate temporary accommodation, relying on Radhika George v. MHADA. It contended DCR Appendix III clause 2 only requires allotment of rehab premises, not necessarily ownership, referring to Nellichery Shivaram Seshadri. It stated it was ready to allot equivalent area on tenancy basis subject to pending eviction suits and pay Rs.1,31,000 per month as transit rent. The court noted relevant provisions of Regulation 33(7) and Appendix III of DCR 1991, including irrevocable consent by 70%, re-accommodation, equivalent area for non-residential occupiers, restriction on transfer until cooperative society formed, and NOC conditions regarding no discrimination, temporary transit accommodation during reconstruction, and separate building. The available judgment text ends before final reasoning and order. The court reserved judgment on 20 September 2021 and pronounced on 11 October 2021, but the final decision is not included in the provided text.
Headnote
A) Constitutional Law - Writ Jurisdiction under Article 226 - Challenge to Eviction Order - Constitution of India, 1950, Article 226 - Petitioners filed writ petition challenging notice dated 29.12.2020 and order dated 23.03.2021 passed under Section 95-A of Maharashtra Housing and Area Development Act, 1976 directing vacation of tenanted godown within 48 hours and handover to developer. Petitioners contended non-supply of rehab plan, non-ownership basis of permanent rehab, discriminatory transit rent, and no registered agreement. The court noted the submissions and relevant provisions (Paras 1-3). B) Maharashtra Housing and Area Development Act - Section 95-A Eviction Powers - Scope of Proceedings - Maharashtra Housing and Area Development Act, 1976, Section 95-A - Respondent No.6 contended that the scope of Section 95-A proceedings is narrow, requiring only irrevocable consent by minimum 70% occupiers, issuance of NOC by the Board, and providing alternate temporary accommodation, relying on Radhika George v. MHADA. Petitioners contended all requirements including plan, ownership rehab, transit rent, and registered agreement must be fulfilled. Court noted the contentions but no final holding appears in available text (Paras 3-4). C) Development Control Regulations - Redevelopment of Cessed Buildings - Regulation 33(7) and Appendix III - Development Control Regulations for Greater Mumbai, 1991, Regulation 33(7), Appendix III - For redevelopment of cessed buildings existing prior to 30.09.1969, permissible FSI was increased to 3 by amendment dated 14.08.2013. Clause 1(a) requires irrevocable consent by not less than 70% occupiers; Clause 2 requires non-residential occupants to be given equivalent area; Clause 18 restricts transfer of tenements until cooperative society formed, then governed by Maharashtra Co-operative Societies Act. NOC conditions mandated equivalent carpet area, no discrimination, temporary transit accommodation, and separate rehabilitation building (Para 9). D) Landlord and Tenant - Rehabilitation Premises Ownership vs Tenancy - DCR 1991 Appendix III Clause 2 and NOC Clause 1 - Petitioners argued permanent rehab premises must be allotted on ownership basis; Respondent No.6 argued that Clause 2 of Appendix III only requires allotment of rehab permanent premises, not necessarily ownership, and can be tenancy basis, relying on Nellichery Shivaram Seshadri. Court noted NOC clause requiring each occupant to be rehabilitated with equivalent carpet area, but no final determination in available text (Paras 3-4, 9). E) Landlord and Tenant - Transit Accommodation and Rent - Maharashtra Housing and Area Development Act, 1976, Section 95-A - Petitioners alleged transit rent offered was not in consonance with other occupants; Respondent No.6 offered Rs.1,31,000 per month as rent for transit accommodation for godown premises and contended comparison with shops/showrooms inappropriate, with pandemic reductions. Court considered contentions but no final determination in available text (Paras 3-4, 9). F) Administrative Law - Compliance with NOC Conditions - Non-Discrimination in Rehab Area - Maharashtra Housing and Area Development Act, 1976, Section 95-A; Development Control Regulations for Greater Mumbai, 1991, Regulation 33(7), Appendix III - NOC dated 24.11.2006 as modified on 30.04.2014 required no discrimination in providing rehab area, temporary transit accommodation, and separate building for rehabilitation; irrevocable consent format Clause 7 required satisfaction with scheme. Petitioners alleged non-compliance; Respondent No.6 contended compliance with narrow requirements. Court examined clauses (Paras 3-5, 9).
Issue of Consideration
Whether the notice dated 29.12.2020 and order dated 23.03.2021 under Section 95-A of Maharashtra Housing and Area Development Act, 1976 were valid in absence of rehab plan, ownership basis of permanent rehab premises under DCR 33(7), consistent transit rent, and registered agreement; what is the scope of proceedings under Section 95-A
Law Points
- Scope of Section 95-A of Maharashtra Housing and Area Development Act
- 1976 requires irrevocable consent by minimum 70% occupiers
- issuance of NOC by Board
- and providing alternate temporary accommodation
- DCR 1991 Regulation 33(7) and Appendix III govern redevelopment of cessed buildings
- requiring equivalent carpet area for non-residential occupants
- NOC conditions prohibit discrimination in rehab area
- restriction on transfer of tenements governed by Rent Control Act until cooperative society formed
- then Maharashtra Co-operative Societies Act
- writ jurisdiction under Article 226 available to challenge eviction order
