Case Note & Summary
The petitioners, owners of a property admeasuring about 546 sq. mtrs. in Mumbai, sought redevelopment and obtained a No Objection Certificate (NOC) from the Mumbai Building Repairs and Reconstruction Board (a unit of MHADA) on 27 September 2006. Condition No. 22 of the NOC required the petitioners to surrender surplus built-up area as per the Third Schedule to the Maharashtra Housing & Area Development Act, 1976 (MHAD Act). On 6 July 2007, the Board issued a communication demanding surrender of 26.84 sq.mtrs. as surplus area. The petitioners challenged this communication and the condition in the NOC by filing a writ petition under Article 226 of the Constitution. During the pendency of the petition, the petitioners were directed to file an appeal, which was rejected by the CEO & Vice President of MHADA on 25 January 2012. The petitioners then amended the petition to challenge the appellate order as well. The court examined the relevant provisions of DCR 33(7) Appendix III, which mandates that occupants be rehabilitated with carpet area up to 70 sq.mtrs., and that surplus built-up area be made available to the Board. The court held that the condition in the NOC and the subsequent demand for surrender of surplus area were valid and in accordance with the statutory scheme. The petition was dismissed, upholding the communication and the appellate order.
Headnote
A) Property Law - Redevelopment of Cessed Buildings - Surplus Area Surrender - Condition 22 of NOC - Third Schedule to Maharashtra Housing & Area Development Act, 1976 - The petitioners challenged a communication dated 6 July 2007 from the Mumbai Building Repairs and Reconstruction Board calling upon them to surrender 26.84 sq.mtrs. of built-up area as surplus area under the Third Schedule. The court upheld the condition, holding that the Board is entitled to demand surrender of surplus area as per the statutory schedule, and the petitioners' appeal was rightly rejected. (Paras 1-2)
B) Administrative Law - Appellate Order - Challenge to Rejection of Appeal - The petitioners' appeal against the communication was rejected by the CEO & Vice President of MHADA on 25 January 2012. The court found no infirmity in the appellate order and dismissed the petition. (Para 1)
Issue of Consideration
Whether the condition imposed by MHADA in the NOC for redevelopment requiring the petitioners to surrender surplus built-up area as per the Third Schedule to the MHAD Act is valid and enforceable.
Final Decision
The petition is dismissed. The communication dated 6 July 2007 and the appellate order dated 25 January 2012 are upheld.
Law Points
- Surplus built-up area
- Redevelopment of cessed buildings
- Condition 22 of NOC
- Third Schedule to MHAD Act
- 1976
- DCR 33(7) Appendix III
- Rehabilitation of occupants
- Carpet area entitlement
Case Details
2015 LawText (BOM) (03) 80
WRIT PETITION NO. 1663 OF 2011
MOHIT S. SHAH, C.J., G.S. KULKARNI, J.
Mr. Virag Tulzapurkar, Senior Advocate with Dr. Virendra Tulzapurkar, Senior Advocate, Mr. S.V. Kadam, Ms. Apeksha Sharma and Mr. Sanjeel Kadam i/b Kadam & Co. for the petitioners. Mr. A.Y. Sakhare, Senior Advocate with Mrs. T.H. Puranik for the respondent – BMC. Mr. V.M. Parshurami for the respondent – MHADA. Mr. H.S. Venegaonkar, A.G.P. for the respondent – State.
Vijaylaxmi Anandrao Mujumdar & Ors.
Mumbai Building Repairs and Reconstruction Board & Ors.
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Nature of Litigation
Writ petition under Article 226 challenging a communication demanding surrender of surplus built-up area and the condition in NOC for redevelopment.
Remedy Sought
Quashing of communication dated 6 July 2007 and condition no.22 of NOC dated 27 September 2006, and setting aside of appellate order dated 25 January 2012.
Filing Reason
The Board demanded surrender of 26.84 sq.mtrs. as surplus area under the Third Schedule to MHAD Act, which the petitioners contended was illegal.
Previous Decisions
The petitioners' appeal against the communication was rejected by the CEO & Vice President of MHADA on 25 January 2012.
Issues
Whether condition no.22 of the NOC requiring surrender of surplus built-up area is valid under the MHAD Act and DCR 33(7) Appendix III.
Whether the communication dated 6 July 2007 demanding surrender of 26.84 sq.mtrs. is lawful.
Whether the appellate order dated 25 January 2012 rejecting the petitioners' appeal is sustainable.
Submissions/Arguments
Petitioners argued that the demand for surplus area was arbitrary and not in accordance with law.
Respondents (Board, BMC, MHADA, State) supported the demand as per statutory provisions.
Ratio Decidendi
The condition in the NOC requiring surrender of surplus built-up area as per the Third Schedule to the MHAD Act is valid and enforceable. The Board is entitled to demand such surplus area for the purpose of rehabilitation of occupants and redevelopment of cessed buildings.
Judgment Excerpts
By this petition under Article 226 of the Constitution of India, the petitioners have challenged the communication dated 6 July 2007 (ExhibitC) of the Mumbai Building Repairs and Reconstruction 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).
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).
Procedural History
The petitioners filed a writ petition in 2011 challenging a communication dated 6 July 2007. During pendency, they were directed to file an appeal, which was rejected on 25 January 2012. The petition was then amended to challenge the appellate order. The court heard the matter and dismissed the petition on 19 March 2015.
Acts & Sections
- Maharashtra Housing & Area Development Act, 1976: Third Schedule
- Constitution of India: Article 226
