Smt.Jayawanti Hiraji Shivkar & Ors. v. Municipal Corporation for Greater Mumbai & Ors.

The petitioners have challenged (i) the order dated 8th December, 2009 passed by the second respondent – Enquiry Officer in Enquiry No.FN/4 of 2010 and FN/5 of 2010 as also (ii) the execution notice dated 25th January, 2011 and (iii) the Judgment and order dated 24th March, 2011 passed by the learned Judge, Bombay City Civil Court, Mumbai in Misc. Appeal Nos.38 of 2011 and 39 of 2011. The facts and circumstances that are necessary for the disposal of writ petition are as follows. 3] The petitioners are the tenants of the first respondent – Municipal Corporation for Greater Mumbai (for short “MCGM”) in respect of their respective rooms situate at the address mentioned in the cause title. The said premises are situate on Municipal property known as Bhandarwada at Plot bearing C.T.S. No.6(Pt.) of Sion Division, Road No.28, Scheme No.6, Sion, F/North Ward, Mumbai (for short “suit property”). The first respondent MCGM issued show cause notice dated 7th September, 2010 under Section 105(B) (2) of the Mumbai Municipal Corporation Act, 1888 (for short “the Act”) seeking eviction of the petitioners from their respective premises. The eviction was sought on the ground that the said premises are required for the public purpose viz redevelopment scheme under DCR 33(7) of the Development Control Regulations for 3 wp-L-964-11.odt Greater Mumbai, 1991 (for short D.C.R.). The tenants in the suit property had formed Shiv Koliwada Co-op Housing Society (Proposed) and appointed M/s.Mhatre and Associates as their Architect and M/s.Jay Kay Developers, an associate firm of M/s.Bawa Developers Ltd. as their developers. The Society obtained written consent of more than 70 % occupants for re-development scheme under DCR 33(7). The proposal submitted was scrutinized and approved by the Improvement Committee under Resolution No.150 of 29th March, 2000 as also by the Corporation under Resolution No.106 of 30th March, 2000. The necessary Annexure II was prepared and submitted where the petitioners are found eligible. 4] The petitioners being eligible were offered transit accommodation which they refused and failed to shift themselves with their belongings in the transit accommodation. Since the petitioners were not willing to participate in the redevelopment scheme, show cause notice was issued to the petitioners and other similarly situated persons. Before the Enquiry Officer, the first respondent MCGM examined Mr.A.D.Pandya, Rent Collector. His examination-in-chief was recorded on 30th September,

2010. The said witness has also produced documents before the Enquiry Officer. The petitioner no.1 filed reply to the show cause notice. The petitioner no.2, however, did not file any reply. The petitioners and the others were given sufficient opportunity. However, they did not avail of 4 wp-L-964-11.odt the said opportunity. Witness Mr.Pandya examined on behalf of MCGM was also not cross-examined by the petitioners. The Enquiry Officer passed order on 8th December, 2010 directing the petitioners and others to vacate the premises in their occupation within one month from the date of service of notices under Section 105(B) of the Act. 5] The Enquiry Officer in the order dated 8th April, 2010 recorded that the petitioner no.1, though filed reply, did not challenge the ground mentioned in the show cause notice issued under Section 105 (B) of the Act. The issues raised by her fell outside the scope of the Enquiry proceedings contemplated under Section 105(B) (2) of the Act. In arriving at this conclusion, he relied upon the judgment of this Court in Writ Petition No.4487 of 2007 dated 12 th October, 2007, Sadanand Palker Vs. Municipal Corpn. of Gr. Mumbai. 6] Aggrieved by this order, the petitioners preferred Misc. Appeal Nos.38 of 2011 and 39 of 2011 before the Bombay City Civil Court, Mumbai. These appeals were dismissed on 24th March, 2011. It is against these orders, the petitioners have filed this petition. 5 wp-L-964-11.odt 7] Mr.S.G.Surana, learned counsel has tendered Chamber Summons on behalf of the Society for intervention in this petition. I have heard Mr.Surana on behalf of the Society as also Mr.Venkatesh Dhond, learned counsel on behalf Intervenor - the developer. 8] Mr.Deshmukh, learned counsel for the petitioners raised the following contentions:- (a) In the show cause notice dated 7th September, 2010 under Section 105(B) of the Act, no reason is given. The reason that is given namely, land is required for public purpose i.e.redevelopment scheme under DCR 33(7) cannot be termed as public purpose; (b) No permission of the Mumbai Repairs and Reconstruction Board (for short “Board”) as required under DCR 33(7) read with Appendix III is obtained by the Society and Developer; (c) No individual agreements have been entered into with the petitioners; and (d) The signatures of the petitioners among others are forged signatures. 6 wp-L-964-11.odt 9] On the other hand, it was submitted on behalf of the respondents that the land is admittedly owned by MCGM. It is further submitted that this is not a cessed building. An irrevocable written consent by not less than 70% occupiers of the building was obtained. The proposal submitted by the Society was considered by the Improvement Committee as also by the Corporation. The show cause notice dated 7th September, 2010 clearly spelt out public purpose namely the land is required for public purpose of redevelopment scheme under DCR 33(7). Since the property admittedly belongs to the Corporation, the permission of the Board is not necessary. 10] I have considered the rival submissions made by learned counsel for the parties. Section 105(B) of the Act empowers the Municipal Commissioner to evict the person from the Corporation premises. When the Commissioner is satisfied that any corporation premises in the occupation of any person are required by the corporation in the public interest, the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice, order that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate the premises within one month of the date of the service of the notice. Before an order under Sub-Section (1) is 7 wp-L-964-11.odt made against any person, sub-section (2) of Section 105 (B) requires that the show cause notice is required to be issued calling upon the person as to why an order of eviction should not be made. 11] In the instant case, show cause notice was issued on 7th September, 2010 calling upon the petitioners to show cause as to why the order under Section 105(B)(1) should not be made. Now the scope of enquiry under Section 105(B)(1)(C), having regard to its very nature, scope is very limited in the sense the object is to find out whether the purpose set out in the Show Cause Notice is a public purpose or not. In the instant case, public purpose mentioned is redevelopment scheme under DCR 33(7). In the order dated 8th December, 2010, the Enquiry Officer has recorded that though the petitioner No.1 has filed reply to the show cause notice, she had not challenged the ground mentioned in the said notice. In paragraphs 4 and 5 of the judgment of this Court in Writ Petition No.4487 of 2007 and companion Writ Petitions decided on 12th October, 2007, it has been observed that truly speaking when the Corporation issues show cause notice under Section 105(B)(1)(c) the permissible plea for an occupant or tenant could be that the requirement of the Corporation is not in public interest or is not bonafide. The other issues/objections fall outside the scope of enquiry contemplated under sub-section (2) of Section 105(B) of the Act and could not have been considered by the Enquiry Officer or Principle Judge of the City Civil 8 wp-L-964-11.odt Court. 12] In paragraph 12 of the order dated 24th March, 2011,, the learned Judge of the City Civil Court observed that the redevelopment of the property is obviously in the interest of the occupants. Redevelopment of this kind is in the larger public interest. I do not find that the learned Judge committed any error in arriving at this conclusion. I do not find any substance raised by the petitioners that no public purpose is spelt out in the show cause notice issued under Section 105(B) of the Act. 13] The learned counsel for the petitioners submitted that no permission of the Board is obtained under DCR 33(7) read with Appendix III by the Society and the developer. In support of this submission, he relied upon clauses 3 and 11 of Appendix III under DCR 33(7) as also clause 10 of the L.O.I. dated 24th April, 2000 which requires the Society to submit regular proposal under DCR 33(7). DCR 33(7) reads as follows :- (7) Reconstruction or redevelopment of cessed buildings in the Island City by co-operative Housing Societies or of old buildings belonging to the Corporation or of old Buildings belonging to the Police Department.-- For reconstruction/redevelopment to be undertaken by Co-operative Housing Societies of existing 9 wp-L-964-11.odt tenants or by Co-operative Housing Societies of Landlords and/or occupiers of a cessed building of `A’ category in Island City, which attracts the provisions of MHADA Act, 1976 and for reconstruction/redevelopment of the buildings of Corporation and Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, constructed prior to 1940, the Floor Space Index shall be 2.5 on the gross plot area or the FSI required for Rehabilitation of existing tenants plus incentive FSI as specified in Appendix III whichever is more. This is not the case of reconstruction/redevelopment undertaken by the Co-operative Housing Society of the existing tenants or the landlords and/or occupiers of a cessed building of `A’ category in Island City. As noted earlier, the building in question is not a cessed building. In the instant case, the redevelopment scheme is of the building of Corporation. DCR 33(7) provides availability of F.S.I. of 2.5 on the gross plot area or the F.S.I. required for Rehabilitation of existing tenants plus incentive FSI as specified in Appendix III whichever is more. Perusal of various clauses in Appendix III, in my opinion, would indicate that all these clauses are not applicable when the redevelopment/reconstruction of the building of Corporation is undertaken. In the instant case, the Improvement Committee as also Corporation has approved the proposal submitted by the Society for redevelopment of the building under DCR 33(7). The submission made by learned counsel for the petitioner that 10 wp-L-964-11.odt the permission of the Board is required as per clause 3 and 11 of the Appendix III, in my opinion, is misconceived. I do not find any substance in this submission. 14] The learned counsel for the petitioners further submitted that the individual agreements are not entered into with the petitioners. He invited my attention to communication dated 4th April, 2009 at exhibit “E” page nos.62 and 63. In the present case, as noted earlier, the petitioners are not willing to vacate the existing structure and shift to the transit accommodation offered by the Society and developer. In the Affidavit filed in support of Chamber Summons filed by Ms.Neeta Keni, it has been averred that the developer has agreed to provide tenements admeasuring 470 sq. ft to all the eligible tenants including present petitioners. The developer has already constructed rehab building consisting ground plus 12 upper floors consisting of 160 rehab tenements and the same are ready for allotment to eligible occupants. Though the Society and its developers offered monthly compensation towards transit accommodation, the petitioners failed and neglected to vacate their structures and consequently, the proceedings under Section 105(B) of the Act were initiated. Whereas on one hand the petitioners are not ready and willing to join redevelopment scheme, on the other hand, a contention is raised that individual agreements are not entered into with 11 wp-L-964-11.odt the petitioners. In view of this, I do not find any substance in this submission. 15] Lastly it was submitted that the signatures of the petitioners among others are forged. The said contention was also raised before the learned Judge of the Bombay City Civil Court. In paragraph 15 of the impugned order dated 24th March, 2011, the learned Judge observed that in case the petitioners herein feel that somebody played fraud or the project is completely illegal, the petitioners has to approach the appropriate forum raising that grievance as scope of the Enquiry under Section 105(B) is very limited. I do not find that learned Judge of the City Civil Court has committed any error arriving at this conclusion. In fact, as held by this Court in Writ Petition No.4487 of 2007 and companion Writ Petitions decided on 12th October, 2007, the scope of the Enquiry under Section 105(B) (1)(c) is very limited and permissible plea for an occupant or tenant could be that the requirement of the Corporation is not in public interest or is not bonafide. The Enquiry Officer recorded that though the petitioner no.1 filed reply, she has not challenged the ground mentioned in the said notice. Thus, the contentions which are raised by the petitioners, really speaking, fall outside the scope of enquiry under Section 105(B) of the Act. 12 wp-L-964-11.odt 16] After hearing learned counsel for the parties and considering the material on record, I do not find that the petitioners have made out any case. In my opinion, this is not a fit case for invocation of powers under Article 226 of the Constitution of India. In the result, petition fails and the same is dismissed. Rule is discharged with no order as to costs. In view of dismissal of the Writ Petition, no orders are necessary on the Chamber Summons taken out by the Society and the same stands disposed off. Mr.Surana states that he will get the Chamber Summons registered within 4 weeks from today. The statement is recorded. [R.G.KETKAR, J.]