Case Note & Summary
The writ petition challenged an order of summary eviction under Section 95A of the Maharashtra Housing and Area Development Act, 1976, directed against nineteen non-cooperative members of a cooperative housing society. The society, respondent No. 4, had resolved to redevelop its property, and forty-five out of fifty-four members (83%) had given consent, exceeding the 70% threshold. MHADA issued a No Objection Certificate for redevelopment, and the project received IOD from the Bombay Municipal Corporation. The developer appointed by the society filed a suit in the City Civil Court seeking injunctions against the petitioners, obtained interim orders, but the petitioners appealed to the High Court and secured a stay. Subsequently, the Executive Engineer of the Mumbai Housing and Area Development Board issued show cause notices under Section 95A, and after hearing, passed the impugned order on 29 December 2009 directing the petitioners to vacate within 48 hours, failing which they would be summarily evicted. The petitioners contended that the Board lacked jurisdiction because Section 95A appears in Chapter VIII of the MHADA Act, which can only be exercised by the Mumbai Building Repairs and Reconstruction Board under Section 75. They also argued that the redevelopment did not have the consent of 70% of the members. The respondents submitted that Development Control Regulations for Greater Mumbai, 1991 were amended in 2008, and Regulation 33(5)(7) made the provisions of Section 95A mutatis mutandis applicable to redevelopment schemes of MHADA layouts, and since the colony layout was approved by MCGM under DCR 33(5), the Board had jurisdiction. The High Court accepted the respondents’ submission, noting that the layout approval letter, the offer letter from MHADA, and the NOC all confirmed that the redevelopment fell under DCR 33(5). Consequently, the Board was empowered to invoke Section 95A. The court also found that the consent of 83% members satisfied the 70% requirement. The writ petition was dismissed, and the eviction order was upheld.
Headnote
A) Statutory Interpretation - Applicability of Section 95A of MHADA Act to Mumbai Housing and Area Development Board - DCR 33(5) Amendment - Development Control Regulations for Greater Mumbai, 1991, Regulation 33(5)(7) - The dispute concerned the jurisdiction of the Mumbai Housing and Area Development Board to order summary eviction of non-cooperative members from a cooperative housing society situated in a MHADA layout - The court held that the redevelopment was undertaken under DCR 33(5), which by amendment made Section 95A mutatis mutandis applicable, thereby vesting jurisdiction in the Board - Held that the Board rightly exercised jurisdiction under Section 95A of the MHADA Act (Paras 9-14).
B) Housing Law - Redevelopment Consent Requirement - DCR 33(5)(7) - The petitioners contended that the redevelopment scheme lacked 70% member consent - The court noted that 45 out of 54 members (83%) had consented, satisfying the requirement - Held that the consent condition was fulfilled, making it obligatory for all members to vacate (Paras 5, 8).
Issue of Consideration
Whether the Mumbai Housing and Area Development Board had jurisdiction to pass an order under Section 95A of the Maharashtra Housing and Area Development Act, 1976; and whether the redevelopment scheme had the requisite 70% consent of members as required under DCR 33(5)(7)
Final Decision
The writ petition was dismissed. The impugned order dated 29 December 2009 was upheld. The court held that the Mumbai Housing and Area Development Board had jurisdiction under Section 95A because the redevelopment fell under DCR 33(5), and the consent requirement of 70% was met by the 83% member support.
Law Points
- Where a redevelopment scheme under DCR 33(5) has NOC from MHADA with 70% member consent and provision for alternative accommodation
- it is obligatory for all occupiers to vacate
- failure to vacate attracts application of Section 95A of MHADA Act mutatis mutandis
- the Mumbai Housing and Area Development Board has jurisdiction to invoke Section 95A for MHADA layouts approved under DCR 33(5)
Case Details
2010 LawText (BOM) (02) 82
WRIT PETITION (L) NO. 10 OF 2010
Mr. Kishor Tembe, Mr. Amol K. Tembe, Mr. G.W. Mattos, AGP, Mr. P.K. Dhakephalkar, Senior Advocate, Ashwin Ankhad & Associates
Sushila Digamber Naik, Kailas Narsaiya Adep, Nilofar Shaikh, Sarojini Mahabal Shetty, Mahendra Kathrani, Sunil Digamber Naik, Eslinda Michael Serao, K.C. Govindan, Asha Rajendra Jain, Mangala Pansare, Hansa Bansidhar Bharucha, Natha R. Kadam, Henry S. Fernandes, Manorama Manohar Rane, Gopal S. Amin, Smitha Jayaram, Pramod Kirdat Patil, Salim Khan, Shantaram S. Shetty
Maharashtra Housing & Area Development Authority, Mumbai Housing & Area Development Board, Executive Engineer, Bandra Division, Mumbai Board, Kher Nagar Ganeshkrupa Cooperative Housing Society Ltd., M/s. A.A. Estate Pvt. Ltd.
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging an order of summary eviction issued under Section 95A of the Maharashtra Housing and Area Development Act, 1976 by the Executive Engineer of the Mumbai Housing and Area Development Board.
Remedy Sought
The petitioners sought to quash the order dated 29 December 2009 directing them to vacate their respective tenements within 48 hours, failing which they would be summarily evicted.
Filing Reason
The petitioners opposed the redevelopment of the cooperative housing society's property and contested the Board's jurisdiction to invoke Section 95A, as well as the adequacy of member consent for the redevelopment scheme.
Previous Decisions
The City Civil Court had passed interim orders in favour of the developer on 1 September 2007; the petitioners appealed to the High Court and obtained a stay; that appeal is pending. The petitioners also filed Writ Petition No. 1802 of 2009 challenging the show cause notices issued under Section 95A, which is pending.
Issues
Whether the Mumbai Housing and Area Development Board had jurisdiction to invoke Section 95A of the Maharashtra Housing and Area Development Act, 1976.
Whether the redevelopment scheme had the consent of at least 70% of the members of the society as required under DCR 33(5)(7).
Submissions/Arguments
Petitioners argued that Section 95A is contained in Chapter VIII of the MHADA Act, and only the Mumbai Building Repairs and Reconstruction Board, under Section 75, can exercise powers thereunder; therefore, the Board had no jurisdiction.
Petitioners contended that the redevelopment scheme lacked the mandatory 70% member consent.
Respondents submitted that by an amendment to the Development Control Regulations in 2008, Regulation 33(5)(7) made Section 95A mutatis mutandis applicable to redevelopment of MHADA layouts, and since the layout was approved under DCR 33(5), the Board had jurisdiction.
Respondents pointed out that 45 out of 54 members (83%) had consented to the redevelopment, satisfying the statutory threshold.
Ratio Decidendi
In a redevelopment scheme governed by DCR 33(5), where a cooperative housing society or its developer has obtained No Objection Certificate from MHADA/Mumbai Board with consent of 70% of members and has made provision for alternative accommodation, it is obligatory for all occupiers/members to vacate; in case of failure to vacate, the provisions of Section 95A of the MHADA Act apply mutatis mutandis. The Mumbai Housing and Area Development Board is competent to invoke Section 95A for MHADA layouts approved under DCR 33(5).
Judgment Excerpts
In any Redevelopment scheme where the Co operative Housing Society / Developer appointed by the Cooperative Housing Society has obtained No Objection Certificate from the MHADA / Mumbai Board thereby sanctioning additional balance FSI with a consent of 70% of its members and where such NOC holder has made provision for alternative accommodation in the proposed building (including transit accommodation) then it shall be obligatory for all the occupiers/ members to participate in the Redevelopment Scheme and vacate the existing tenement for the purpose of redevelopment. In case of failure to vacate the existing tenements, the provisions of section 95A of the MHADA Act mutatis mutandis shall apply for the purpose of getting the tenements vacated from the non cooperative members.
Thus as per the said amended provisions of DCR 33(5), respondent nos. 2 and 3 are empowered to invoke the provisions of section 95A of the MHADA Act, 1976 and the respondent nos. 2 and 3 have rightly exercised the jurisdiction under section 95A of the MHADA Act.
Procedural History
In 2007, the developer filed Suit No. 2697 of 2007 in the City Civil Court and obtained interim orders on 1 September 2007. The petitioners appealed to the High Court and obtained a stay; the appeal is pending. On 10 August 2009, the Executive Engineer issued show cause notices under Section 95A. The petitioners challenged those notices by filing Writ Petition No. 1802 of 2009, which is pending. After hearing, the Executive Engineer passed the impugned order on 29 December 2009 directing eviction within 48 hours. The present writ petition was filed impugning that order.
Acts & Sections
- Maharashtra Housing and Area Development Act, 1976: Section 75, Section 95A
- Development Control Regulations for Greater Mumbai, 1991: Regulation 33(5), Regulation 33(5)(7)
