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Judgment
S.V.Gangapurwala, J
The petitioners assail the order dated 6th September 2022 in proceedings under Section 95A of the Maharashtra Housing and Area Development Authority Act, 1976 (hereinafter referred to as, ‘MHADA Act’) and further seek zxdirections to decide the representation made by the petitioner to the Authority. The landlord and the Developer of the concerned property proposed redevelopment of the property C.S.No. 2879, 2881 and 2883 of Bhuleshwar Division of VP Road and Ardeshir Dadi Street Building known as “Annapurna Sadan”, “Prabhu Bavan” and “Pathak Building”. The petitioners are the tenants of shop Nos.1,2,7 and 22 doing the business of sale of heavy duty metal pipes. The dispute, it appears, is that the petitioners were tenants on the ground foor. They are being allotted shops in redeveloped property on ground and frst foor.
Mr. Mandon, learned Senior Advocate for the petitioners submits that respondent No.3 has mischievously reduced the area allocated to petitioners and has tried to convert the shop premises in offce premises. The application preferred by respondent No.3 and approved by respondent No.2 shows the area to be allocated to the petitioners in the redevelopment project. Now, the said plan is changed and sought to be revised, thereby reducing the area allocated to the petitioners on the ground foor and increasing the area on the frst foor. The same is illegal. It will not be possible for the petitioners to do the business on the frst foor. The length of the pipes dealt with by the petitioners is more than 25 to 30 feet and the width of the shop is not more than 21 feet. It will not be possible for the petitioners to run the business. The learned Senior Advocate submits that respondent No.3 has committed illegality. The respondent No.3 has not entered into an Permanent Alternate Accommodation Agreement (hereinafter referred to as, ‘PAAA’) nor other document including the Development Agreement and the consent of the petitioners has not been obtained. No document has been executed or signed by the petitioners with respondent No.3 till date in connection with the redevelopment. The respondent No.3 has brought the JCB for demolition of building and causing the petitioners to vacate. The respondent No.3 was unable to demolish the said shop. However, the respondent No.3 damaged the ceiling of the petitioners’ shop.
The learned Senior Advocate for the petitioners submits that the petitioners do not intend to resist the redevelopment process. The respondent No.3 has not entered into the PAAA as is mandated in redevelopment norms. After numerous follow ups, respondent No.3 shared the draft PAAA with the petitioners. The area allotted to the petitioners as per the MHADA approved plans were drastically different. The area has been reallocated by changing the dimensions of the shop on the frst foor and allocated the offce premises instead of shop premises. The dimensions mentioned in the draft PAAA as regards the shop makes it virtually impossible for the petitioners to conduct the business of metal pipes. The MHADA was specifcally directed by this Court under its order dated 24th August 2022 in Writ Petition (L) No. 26760 of 2022 to decide the 95 A proceedings and the representation fled by the petitioners simultaneously. However, MHADA failed to decide the representation on the ground that it is not within its domain. The said observation is illegal. When this Court has directed the MHADA to decide the representation, it was duty bound to take decision upon the same along with proceedings under Section 95A of the MHADA Act. The petitioners are not obstructing the redevelopment, but only seeking what is duly receivable to them. The learned Senior Advocate for the petitioners relies on the judgment of Division Bench of this Court in Surendra Vishnu Masurkar v. The Municipal Commissioner, MCGM & Anr. Writ Petition No. 231 of 2016 Dtd. 15th November 2019.
Mr. Godbole, learned Advocate for the respondents submits that the petitioners are awarded more area than what the petitioners are entitled to. It is only the petitioners that are not cooperating with the respondents. All other tenants have entered into agreement with respondent No.3. No other tenants have any objection. The respondent No.3 is owner and is doing composite development of the property. Till today, the respondent No.3 has already obtained irrevocable consents of about 24 tenant families and it roughly constitutes 86% of the persons consenting. The respondent No.3 has already got possession and demolished 24 out of 28 tenements and occupants of demolished buildings have accepted money in lieu thereof and are keenly waiting to be rehoused in their respective premises. As per the list of certifed occupants prepared by MHADA, there are 28 premises in writ petition building and out of the which 10 premises are situated on ground foor and out of said 10 premises 7 premises on the ground foor are non-residential premises. They are in nature of shop or commercial premises. All premises of old building on the frst, second and third foor are residential premises. The respondent No.3 in spite of offering more area than the petitioners are entitled to along with common area with 8% further beneft, the petitioners are not cooperating and ready to vacate the premises and are trying to use pressure tactic to get additional area than the petitioners are entitled to as per DCPR 2034. The petitioners are only persons making complaint of non-execution of agreement, whereas remaining 24 tenants have signed the agreement and vacated the premises. The petitioners are the only defaulting occupants. The petitioners cannot be accommodated solely and entirely on the ground foor. There are other tenants also. The respondent is ready to give transit rent to the petitioners. The learned Counsel relies on the judgment of the Division Bench of this Court in case of M/s. Karim Esmail v. State of Maharashtra Writ Petition (L) No. 1350 of 2016 Dtd. 14th June 2016, to contend that the respondents cannot be compelled to make any offer to the petitioners of accommodation on the ground foor.
The factual matrix about the petitioners being tenants of shops in redeveloped project is not disputed.
It does not appear that there is dispute of the area to which the petitioners are entitled to. The only dispute, it appears, is the location of the shop being allotted to the petitioners in redeveloped building. According to the petitioners, the petitioners ought to be given commercial shop on the ground foor as they are tenants on the ground foor, whereas it is the contention of the respondent that it will not be possible to accommodate the petitioners totally on the ground foor but they are being accommodated on ground and frst foor.
The petitioners had also approached this Court earlier. This Court while disposing of the writ petition of the petitioners directed MHADA Authority to decide the proceedings under 95A of the MHADA Act and representation fled by the petitioners simultaneously. While passing impugned order, MHADA Authority observed that the dispute between the occupant and NOC Holder of occupier seeking more commercial area on the ground foor than at frst foor in the proposed amended plan is out of the purview of his offce.
The Division Bench of this Court in M/s. Karim Esmail (supra) observed as under :
“10. It is made clear that Respondent No.5-Trust cannot be compelled to make any offer to the Petitioners of accommodation on the ground foor or the exchange of the above nature. It is for the Petitioners and those located on the ground foor in the reconstructed building to work out any arrangements and present the same for consideration of the Authorities or the Trust. We have no doubt that the Trust as well as the Authorities will duly co-operate with the Petitioners, if at all any scheme or arrangement is provided.”
It will not be possible for this Court in its writ jurisdiction to embark upon the investigation or enquiry as to how and in what manner the space would be allotted to the petitioners in the redeveloped project. It is for the petitioners and respondent so also other tenants to arrive at an arrangement. It is, in this view, we had directed the representation of the petitioners be decided by the MHADA Authority after considering the stand of respondent No.3.
All factors are required to be considered. There are about 28 tenants. 24 have not objected to the allotment. These are the only four tenants objecting the plan. It is submitted that the revised plan has been approved by the Authority. We had directed the representation to be decided by the Authority only with a view that the petitioners and respondent No.3 may put forth as to how it is feasible to allot shops to the petitioners and other tenants.
As observed above, it would not be within domain of this Court to discuss and decide about the area that can be allotted to the petitioners on the ground foor or frst foor or the other tenants would be affected and it is, thus, left to the petitioners and respondents to arrive at an arrangement. The parties may, as such, arrive at an arrangement as may be possible and permissible.
We have not been shown any policy of MHADA as to how the accommodation has to be given in the redeveloped project. The MHADA has certifed the area that the petitioners are entitled to in the approved plan. It appears that the petitioners are provided the area they are entitled to. Further, the area provided on frst foor is more and on the ground foor is less. It is only for the parties to arrive at settlement in that regard. The MHADA was directed to consider the representation. It has opined that it is beyond its purview. The MHADA could have seen and opined whether area on ground and 1st foor is properly awarded or could have been awarded in a better manner. It could have only opined in that regard, which could have been assistance to the Court.
In light of the above, MHADA may decide the application as observed above within fve days from today. Parties may appear on 13th October 2022.
The writ petition, as such, is disposed of. No costs.