Case Note & Summary
The writ petition was filed by Pantanagar Gokul C.H.S. Ltd., a cooperative housing society, seeking to avail the benefit of increased Floor Space Index (FSI) from 2.5 to 3.0 under the amended Regulation 33(5) of the Development Control Regulations for Greater Mumbai, 1991 (DCR) through a Notification dated 3rd July, 2017, for the redevelopment of its dilapidated building. The society had a lease from MHADA for a plot with building no. 156 comprising 32 tenements, which was part of a cluster of three buildings. Initially, redevelopment was entrusted to HDIL, but development rights were later assigned to respondent no.4. An offer letter was issued by MHADA in May 2012, and the building was vacated in 2011, yet no construction commenced until after 2017. In 2016, the three buildings were amalgamated, and respondent no.4 obtained rights through a Deed of Assignment dated 30th March, 2016. MHADA issued a No Objection Certificate (NOC) on 25th April, 2017 and a Commencement Certificate on 7th July, 2017, with permissible FSI of 2.5. Shortly before the commencement certificate, on 3rd July, 2017, the State Government notified an amendment raising FSI to 3.0 for low-cost housing schemes under Regulation 33(5). The petitioner requested the developer and MHADA to apply the higher FSI, but they refused, citing Clause (9) of the same regulation, which restricted the benefit to projects where NOC or offer letter was issued after October 2013; since the petitioner’s offer letter was from 2012, it was deemed ineligible. The petitioner then approached the High Court under Article 226, challenging the constitutional validity of Clause (9) as arbitrary and violative of Articles 14 and 300A, and also sought a direction that the 2017 Notification applies to its project. The petitioner argued that the classification based on the date of NOC/offer letter had no rational nexus with the objective of promoting redevelopment for economically weaker sections and resulted in unequal treatment of similarly situated societies. It also contended that the developer had contractually agreed to follow amended policies. The court heard the matter finally, but the available portion of the judgment does not contain the court’s reasoning or final order.
Issue of Consideration
Whether Clause (9) of Regulation 33(5) of the Development Control Regulations for Greater Mumbai, 1991 is unconstitutional and ultra vires, and whether the Notification dated 3rd July, 2017 applies to the petitioner's redevelopment project despite the NOC having been issued before the notification.
Law Points
- Validity of classification on basis of date of NOC/offer letter under Article 14
- Arbitrariness in denying equal benefits to similarly situated societies
- Legislative intent of DCR 33(5) for EWS/LIG housing
- Right to property under Article 300A
Case Details
2018 LawText (BOM) (09) 23
WRIT PETITION NO. 938 OF 2018
Ashutosh Kulkarni, Akshay Prakash Shinde for Petitioner; Sharmila U. Deshmukh for Respondent Nos.1 and 2; Manish Upadhye for Respondent No.3; P.K. Dhakephalkar, Muttahhar Khan, Niyathi Kalra, Rujuta Patil for Respondent No.4
Pantanagar Gokul C.H.S. Ltd.
The Chief Officer Mumbai Housing And Area Development Board and others
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India before the High Court.
Remedy Sought
Declaration that the Notification dated 3rd July, 2017 applies to the redevelopment project; direction to the developer to submit amended plans; declaration that Clause (9) of Regulation 33(5) of DCR is unconstitutional; quashing of MHADA letter dated 26/12/2017.
Filing Reason
The petitioner society sought higher FSI of 3.0 as per the 2017 Notification for redevelopment of its dilapidated building under DCR 33(5) for low-cost housing, but the developer and MHADA refused relying on Clause (9) which restricts the benefit to projects where NOC/offer letter was issued after October 2013, whereas the petitioner's offer letter was issued in 2012.
Previous Decisions
NOC and Commencement Certificate were already issued; MHADA's rejection letter dated 26/12/2017 is under challenge.
Issues
Constitutional validity of Clause (9) of Regulation 33(5) of Development Control Regulations for Greater Mumbai, 1991
Applicability of Notification dated 3rd July, 2017 to the petitioner's redevelopment project
Submissions/Arguments
Petitioner argued that Clause (9) of DCR 33(5) is arbitrary and violative of Article 14, as it creates an unreasonable classification between societies based on the date of issuance of NOC or offer letter, denying equal benefit of increased FSI under the 2017 Notification.
Petitioner contended that the restriction has no rational nexus with the legislative intent of promoting redevelopment for economically weaker sections and leads to discriminatory treatment of similarly situated societies.
Petitioner submitted that MHADA's NOC dated 25/4/2017 with FSI 2.5 ignored the State Government's Notification of 8/10/2013 providing FSI 3.0, and that the 2008 Notification was not in force; hence the benefit of 2017 Notification should apply.
Petitioner relied on Clause (K) of the Deed of Assignment which required the developer to follow the policy and FSI as amended from time to time.
Judgment Excerpts
Petitioner Pantnagar Gokul C.H.S. Ltd. has approached this Court under Article 226 of the Constitution of India for declaration that the Notification dated 3rd July, 2017 issued by the Respondent No. 3 – State of Maharashtra is applicable to the redevelopment project undertaken by the fourth Respondent – Developer.
learned Counsel submits that the said Clause (9) violates the fundamental rights of the petitioner guaranteed under Article 14 and Article 300A of the Constitution of India.
Procedural History
The writ petition was filed under Article 226. The Court issued Rule, made returnable forthwith, and heard the matter finally by consent of parties.
Acts & Sections
- Constitution of India: Article 14, Article 226, Article 300A
- Development Control Regulations for Greater Mumbai, 1991: Regulation 33(5), Clause (9)
