M/s. M. I. Builders v. Maharashtra Housing And Area Development Authority & Ors.

10-WP-1816-2024.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 1816 OF 2024M/s. M. I. Builders...PetitionerVersusMaharashtra Housing And Area Development Authority & Ors....RespondentsWITHINTERIM APPLICATION (L) NO. 21289 OF 2024INWRIT PETITION NO. 1816 OF 2024_______Mr. A. Y. Sakhare, Sr. Adv. i/b Mr. Rohan MIrpury for Petitioner. Mr. Piyush Raheja i/b Sumit Kothari for Applicant.Mr. P. G. Lad a/w Ms. Aparna Kalathi and Ms. Sayali Apte for Respondent No. 1 &2 MHADA.Ms. Smita Tondwalkar i/b Ms. Komal Punjabi for Respondent No. 3 BMC.Mr. Milind More, Addl. G.P. a/w Ms. Usha Rahi, AGP for State Respondent No. 4.Mr. Girish Godbole, Sr. Adv. a/w Mr. Chirag Kamdar, Mr. Tushar Kadam & Ms.Shivani Varade i/b MDP Associates for Respondent No. 5._______CORAM:G. S. KULKARNI &ARIF S. DOCTOR, JJ.DATE:09 JUNE 2025P.C.1. This petition under Article 226 of the Constitution is filed praying for thefollowing substantive reliefs:"(a) This Hon'ble Court be pleased to issue a Writ in the nature ofMandamus or any other appropriate writ, order or direction, therebydirecting the Respondent No. 1 and 2 to withdraw the Impugned Letterdated 06/02/2024 issued by the Respondent No. 2 bearing no.EE/GN/RR/DE-IV/RD/422 of 2024; (b) That this Hon'ble Court be pleased to issue a Writ in the nature ofMandamus or any other appropriate writ, order or direction, therebyrestraining the Respondent No. 1 and 2 from considering, processing or inany manner acting upon any proposal for redevelopment from theRespondent No. 5 or any other Developer other than the Petitioner inPage 1 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOCrespect of the said larger layout, i.e. the properties bearing C.S. No. 981,982, 983, 984-987, 988, 989, 997, 1003, 1004, 1005 and 1006 of Mahi, Division, in "G-North" ward bearing Street No. 8,6,4,44A-44C, 44B, 2,46, 12, 10, 25C, 44E Bazar Gully, Mahim Bazar Road no. 2, Kapad BazarGully, Mahim Cross Road, Mumbai 400 016, buildings known as"Margimulla Trust Chawl, Azad Manzil, Ikbaal Manzil, Dhanaji Chawl, Dilshad Hotel, Kamakshi Kunj, Ilahi Bux Mansion, Narielwala Chawl, Mahium Education Social Organization, Pathan Building; (c) By a Writ in the nature of Mandamus or any other appropriate writ, order or direction, this Hon'ble Court may be pleased to direct theRespondent No. 1 and 2 to consider the representation of the Petitionerdated 17/08/2023 for amalgamation of the redevelopment of the saidproject i.e. land admeasuring about 786.71 sq. mts. bearing CTS No. 979,980, 985, 4/997, & 997(part) Mehar building, Kapad Bazar, Mahim CrossRoad, Mahim, Mumbai 400 016 alongwith the structures standing thereonnamely, "Mehar Building" with the said larger layout i.e. the propertiesbearing C.S. No. 981, 982, 983, 984-987, 988, 989, 997, 1003, 1004,1005 and 1006 of Mahi, Division, in "G-North" ward bearing Street No.8,6,4,44A-44C, 44B, 2, 46, 12, 10, 25C, 44E Bazar Gully, Mahim BazarRoad no. 2, Kapad Bazar Gully, Mahim Cross Road, Mumbai 400 016,buildings known as "Margimulla Trust Chawl, Azad Manzil, IkbaalManzil, Dhanaji Chawl, Dilshad Hotel, Kamakshi Kunj, Ilahi BuxMansion, Narielwala Chawl, Mahium Education Social Organization, Pathan Building;2.The petitioner had submitted a proposal for redevelopment of the property /building which was acquired by MHADA under the acquisition notification underdated 18 November 1989 (Exhibit – A) issued under Section 41(1) of MaharashtraHousing and Area Development Act, 1976. A Joint development agreement dated24 January 2023 was entered between the MHADA and the petitioner forredevelopment of the property as described in paragraph (B) of this agreement asalso described in the scheduled annexed to the said agreement which reads thus:"B. Prior to 1989 the immovable property being ALL THAT landadmeasuring about 786.71 sqmt bearing CS No. 979, 980, 985, 4/997 &997 (Part), Mehar Building, Kapad Bazar, Mahim Cross Road, Mahim, Mumbai 400 016; alongwith structures standing thereon namely 'MeharBuilding' and situate at Kapad Bazar, Mahim Cross Road, Mahim, Mumbai 400 016 was Owned by "Goswami Tikayot, Shri 106, Shri. Govindji Maharaj, The Tikayot Maharaj of the idol of Shri. Nathaji atPage 2 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOCNathdwara and Lessee Pillaji Govind Meher and Padminibai PillajiMeher"." SCHEDULE OF THE PROPERTY ABOVE REFERRED TO: All THAT land measuring 786.71 sq. mtrs. Bearing C.S. No. 979, 980,985, 4/997 & 997 (Part) of Mahim Division alongwith Building standingthereon namely Mehar Building and situate at- Kapad Bazar, Mahim CrossRoad, Mahim, Mumbai - 400 016; and bounded as follows that is to say:- On or towards West by:- Shamshuddin Pathan Manzil On or towards South by:- Nariyalwala Chawl On or towards North by:- Kapad Bazar RoadOn or towards East by:- Dhanji Building" 3.We find that apart from the aforesaid description of the property subject matterof development under the said agreement, there is a specific clause (clause 6.12) inthe said agreement which permits the petitioner to be entitled to amalgamate theproperty of the aforesaid description, with any of the adjoining property. Clause6.12 reads thus: "6.12 The Developer shall be entitled to amalgamate the said propertywith any of the adjoining property/properties or as per the prevailingpolicy if at all it desires. The parties agree that in the event ofamalgamation of the said property with any other property, the surplusarea to be handed over to MHADA shall be calculated as per amalgamatedproject."4. Mr. Sakhare, learned senior advocate for the petitioner has drawn our attentionto the Letter of Intent (LOI) dated 21 July 2023 which in the subject columndescribes not only the agreement properties but also the adjoining acquiredproperties bearing C.S. No. 981, 982, 983, 984, 987, 988, 989, 1003, 1004, 1005and 1006 of Mahim Division, building No.44E to be developed by the petitionerthrough the Joint Venture between MHADA and petitioner. Our attention is alsodrawn to a letter dated 24 August 2023 of the Chief Officer of the MHADAPage 3 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOCaddressed to the Deputy Chief Engineer (Building Proposal) of the MCGM,confirming the redevelopment in a Joint Venture between the MHADA and thepetitioner in respect of the properties as described in the said communicationsimilar to the LOI. 5.It is the petitioner's case that on 28 August 2023 IOD (Intimation ofDisapproval) was issued by the MCGM in favour of the petitioner for a largerlayout. It is on such backdrop, the grievance of the petitioner is that by theimpugned letter dated 6 February 2024, MHADA has initiated a process wherebythe Deputy Engineer will visit the tenements of the adjoining premises. Accordingto the petitioner, these premises (subject matter of the impugned letter) standamalgamated to the development, to be undertaken by the petitioner. Theimpugned communication records that the Deputy Engineer should verify andconfirm the irrevocable consent of the occupants / tenants to appoint respondentNo. 5 who is intending to redevelop the property as described in the impugnedcommunication under the provisions of Development Control Regulation 33(7).6.Mr. Sakhare, learned senior counsel for the petitioner submits that a perusal ofthis communication would indicate that this is clear breach / encroachment of thepetitioner’s rights as conferred under the joint developed agreement, as also theLetter of Intent, and the IOD dated 28 August 2023 already issued in favour of thepetitioner. It is the petitioner's case that respondent No.5 would not have any legalright much less any entitlement to undertake redevelopment under DCR 33(7) ofthe adjoining premises and subject matter of the impugned communication, as itPage 4 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOCwould be in breach and / or patently contrary to the Joint DevelopmentAgreement, entered between the MHADA and the petitioner. 7.The petition is opposed on behalf of the MHADA as also on behalf ofrespondent No.5 to contend that it is too premature for the petitioner to seek thereliefs as prayed for and the pleas as noted hereinabove. It is contended that theoccupants / tenants of the adjoining buildings have reposed confidence inrespondent No.5 for redevelopment of the buildings, and it is such verificationwhich is now being undertaken. It is submitted that only after such verification bythe Deputy Engineer of MHADA is complete, a final decision shall be taken byMHADA as to whether in respect of such buildings / premises, respondent No.5could at all be appointed as the developer to undertake Joint Development alongwith MHADA. It is also contended on behalf of respondent No.5 that the LOIissued in favour of the petitioner was valid for a period of one year and the samehas lapsed, hence, the petitioner cannot claim any right whatsoever either underthe LOI or under the Joint Development Agreement. 8.Reply affidavit on behalf of the MHADA is also placed on record of Ms. RekhaBorade, it may be appropriate to refer to the following relevant paragraphs of thereply affidavit which inter alia states that the tenants / occupants of the saidproperties subject matter of the impugned communication are stated to be “notwith the petitioner”:- "10. I say that the tenants / occupants of the properties mentioned inExhibit N to Petition are not with the Petitioner and they themselves haveissued Letter dated 3rd October, 2023 stating that they have approached tothe Respondent No.5 for the redevelopment with requisite consent and toverify the consents given by them at the earliest. Hereto annexed andPage 5 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOCmarked Exhibit - "A" is the copy of the Letter dated 3rd October, 2023 ofthe tenants / occupants.11. I say that the Letter of Intent dated 21st July, 2023 was issued to thePetitioner for enabling the Petitioner to approach the MunicipalCorporation of Greater Mumbai and to obtain the consent of thetenants/occupants and to obtain the approved plans for proposedredevelopment which is at Exhibit J to the Petition.15. I say that the main purpose of redevelopment is rehabilitation oftenants / occupants with their consent by simple majority i.e. 51% even incase of privately owned cessed properties. While issuing LOI to Petitioner, it was specifically mentioned that 1) It is issued in order to obtain consentsfrom tenants / occupants and 2) It cannot be construed as NOC forredevelopment. LOI was given to Petitioner to obtain consent fromtenants/occupants situate on these disputed plots and even after more than11 months, the Petitioner has failed to submit the proposal along withrequisite consent till date. Though the clause about including otheradjacent plots in approved scheme is mentioned / included in J.V.Agreement, the same cannot materialized unless and until supported byrequisite consents of tenants / occupants."9. We have heard learned counsel for the parties. 10. At the outset, we are of the opinion that as on date what is contemplated bythe impugned communication dated 6 February 2024 is merely a verification ofthe consent of the tenants as claimed in the proposal submitted by respondentNo.5 to the MHADA in respect of the adjoining premises. For convenience, wenote the impugned communication which reads thus: "No. EE/GN/RR/DE-IV/RD/422/2024 Date: 06/02/2024To,All tenants/Occupants, "Murgimulla Trust Chawl, Azad Manzil. Ikbaal Manzil, Dhanaji Chawl, Dilshad Hotel, Kamakshi Kunj, Mahi Buz Mansion, Narielwala Chawl, Mahim Education Secial Organisation, Pathan Building C.S. No. 981, 982,983,984-987, 988, 989, 997, 1003, 1004 1005 & 1006, Street No. 8,6,444A-44C, 44B. 2, 46, 12, 10, 25C, 44E, Bazar Gully, Mahim Bazar Cross Road Page 6 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOCno.2, Kapad Bazar Gully, Mahim Cross Road, Mumbai-400016Sub: Proposed Composite Redevelopment of Property bearing C.S.No. 981, 982, 983,984-987, 988, 989, 997, 1003, 1004 1005 & 1006 ofMahim Division, in 'G-North Ward, Bearing Street No. 8,6,4 44A-44C,44B, 2, 46, 12, 10, 25C, 44E, Bazar Gully, Mahim Bazar X Road no.2,Kapad Bazar Gully, Mahim Cross Road, Mumbai-400 016. BuildingKnown as "Murgimulla Trust Chawl, Azad Manzil, Ikbaal Manzil, Dhanaji Chawl, Dilshad Hotel, Kamakshi Kunj, Ilahi Bux Mansion, Narielwala Chawl, Mahim Education Social Organisation, PathanBuilding".Ref: 1) Resident Executive Engineer, MBRR Board's letter no.R/NOC/C.S. No. 981, 982, 983, 984-987, 988, 989, 997, 1003, 1004,1005 & 1006 of Mahim Divn./8063/MBRRB-2023, dated 11.09.2023.2) Proposal Submitted to Hon. CO/RR by M/S Wright Realty theirvide letter dated 04.09.2023. 3) This Office letter No EE/GN/RR/DE4/RD/3796/2023 Date26/09/2023.4) This Office letter No EE/GN/RR/DE4/RD/ON 110/2023 Date 03/10/2023.5) Approval by CO MBRRB vide office note no.435 Date 02/02/2024.Sir/Madam, This office is in receipt of proposal of redevelopment of captionedproperty under DCR33 (7) from M/S Wright Realty their vide letter dated04.09.2023 through resident executive engineer letter no.R/NOC/C.S.No. 981, 982, 983, 984-987, 988, 989, 997, 1003, 1004,1005 & 1006 of Mahim Divn./ 8063/ MBRRB-2023, dated 11.09.2023.In this regard, the undersigned along with Deputy Engineer willvisit your tenements on 12/02/2024 at 11:00 A.M. and onwards forinspection of documentary evidence of occupancy / tenancy and toconfirm the irrevocable consent, if given by you. You are requested to remain present at your premises along with oneset of following original documents for verification as regards to proof ofyour occupancy in above cess building and the irrevocable consent. Oneset of self attested Xerox copies of the same documents should also be keptready and furnished to this office.1. Rent receipt (Prior to 13/06/1996 and the latest one)2. Aadhar Card3. Latest Ration Card and copy of previous Ration card4. Electricity Bill (Prior to 13/06/1996 and the latest one)Page 7 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOC5. BEST's letter regarding First Date of Installation of electricity meter andload certificate showing first date of installation of electricity meter ofprevious tenant as well as present tenant, if there is any change.6. Election Identity Card issued by Election Commission prior to13/6/1996 and also latest if available.7. Telephone Bill (Prior to 13/06/1996 and the latest one)8. Any other proof of occupancy like Driving License, Passport, Gurmasta License ele.9. Death certificates and NOC of persons concerned with the tenancy /occupancy rights of the tenement if any.10. Aflidavit-cum-Declaration, Indemnity Bond on stamp papers in respect of documentary proofs submitted if required. Yours Faithfully, Executive Engineer, GN Divn., M.B.R. & R. Board, Mumbai"(emphasis supplied)11. It is clear from perusal of the impugned communication that as on date there isno final decision taken by MHADA that respondent No.5 needs to be appointed asa developer for the premises as described in the impugned letter, so as to undertakeany joint development along with MHADA for which a Letter of Intent needs tobe issued, which is so far has not been issued in favour of respondent No.5. 12. At this stage, there is no certainty as to what would be the outcome of thisverification which commenced on 6 February 2024, albeit stayed by a coordinateBench of this Court by an ad-interim order dated 8 May 2024. 13. In the aforesaid circumstance, we are of the opinion that it would be in theinterest of justice that the exercise of verification as set into motion by theimpugned communication needs to be taken forward. If as result of theverification, MHADA is inclined to take a decision, adverse to the petitioner byPage 8 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOCissuing a Letter of Intent in favour of respondent No.5 which, according to thepetitioner, breaches the rights of the petitioner, under the Joint DevelopmentAgreement dated 24 January 2023 and the subsequent correspondence as enteredbetween MHADA and the petitioner, in such event MHADA needs to hear thepetitioner and respondent No.5 and the representatives of the tenants / occupantson their respective contentions. 14. In this view of the matter, we are inclined to dispose of this petition in termsof the following order:ORDER (i) The verification exercise as contemplated under the impugnedcommunication dated 6 February 2024 shall be taken forward andbe completed as expeditiously as possible and in any event within aperiod of two months from today. (ii) In the event as a result of the verification being undertakenunder the impugned communication dated 6 February 2024, anydecision adverse to the petitioner is being taken, the MHADA shallissue a notice to the petitioner on such proposed decision, permittingthe petitioner to make a written representation in that regard andafter an opportunity of being heard is granted to the petitioner, respondent no. 5 as also the representatives of the tenants beingappointed by majority of the tenants, an appropriate decision betaken by MHADA strictly in accordance with law. All contentionsof the parties in that regard are expressly kept open. Page 9 of 1009 June 2025Kiran Kawre 10-WP-1816-2024.DOC(iii) If the final decision is adverse to the petitioner, the same shallnot be given effect to for a period of four weeks from the date of itscommunication.15. Writ Petition stands disposed of in the aforesaid terms. No costs.16. Interim Application would not survive, it accordingly stands disposed of. (ARIF S. DOCTOR, J.)(G. S. KULKARNI, J.)Page 10 of 1009 June 2025Kiran Kawre