MANGESH JANARDHAN MOHITE PRESIDENT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two petitions raise important questions of law with respect to some of the provisions of Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as MHAD Act ) concerning development of acquired land as well as the provisions of the Development Control Regulations of Greater Bombay, 1991 (hereinafter referred to as the D. C. Regulations or D. C. R.) and particularly Regulation No. 33 (7) read with Appendix III thereof framed under the Maharashtra Regional and Town Planning Act, 1966. The petitions raise important questions concerning public policy as to whether the provisions of one beneficial scheme can be insisted to be implemented on lands acquired by the State under other provisions of a statute.

(2.) THESE questions have arisen in this matter which is concerning a large property known as Pimpalwadi having an area of about 5716. 91 sq. metres (or 6805. 78 sq. yards) situated in the Mugbhat area of Girgaon, in Southern Mumbai. It consists of eleven chawls which have become old and dilapidated. There are in all about 335 tenements therein, out of which 312 are supposed to be residential and 23 non-residential. Two of these chawls have been demolished and occupants have been living in different transit camps for a long time. A large number of tenants from amongst them have come together under the leadership of one Mr. Mangesh Mohite and some others who have formed a Society under the Societies Registration Act and they want the property to be developed through a group of builders known as Shreepati Builders. They feel that the construction through a private builder will be quicker and better than one by an agency of the State Government. They are taking support of above-referred Regulation 33 (7) read with Appendix III thereof which permits reconstruction in certain circumstances at the instance 70% of the occupiers of particular old cessed buildings in the island city coming together and arriving at an agreement for this purpose. They are supported in their submissions by the Maharashtra Housing and Area Development Authority (hereinafter referred as MHADA or Authority ) constituted under the above-referred MHAD Act, MHADA, in justification of its position is relying upon a policy decision of the State Government dated 5th July, 1985.

(3.) THE submissions of this group of tenants are opposed by another group of tenants and occupants led by one Mr. Kiran Shukla and others (who are occupying commercial premises also) who dispute that this Mohite group is having 70% membership. That apart, they submit that the scheme proposed by Mangesh Mohite and others and Shreepati group of builders will lead to a huge profit to this group of builders without giving any additional area or benefits to the tenants beyond what would become available under the Government scheme. The submission of this group is supported by the State of Maharashtra which contends that this Regulation 33 (7) has no application to the facts of the present case. The land herein is acquired by the State Government under section 41 of the MHAD Act and the acquisition has already been upheld by this Court in an earlier judgment. There are directions/observations of the a Division Bench of this Court in that matter that this land has to be used for the purpose for which it is acquired and it cannot be allowed to be passed on to others for development. This is because whereas the surplus space available after giving the legally minimum area to the tenants of the particular property will be utilized by the builders for accommodating a rich few and making huge profits, the State Government can utilize the additional space for accommodating a larger number of persons who are dishoused due to the fall of other buildings and who are also staying in the transit camps for years together waiting to be rehabilitated. Thus, on the one hand Mangesh Mohite and others are submitting that the builder will develop the property better and quickly, may be for his profit, on the other hand, the State Government is submitting that under the law as it stands, private construction is not permissible and that the interest of similarly dishoused persons is required to be kept in mind rather than permitting additional space (which is very scarce in Mumbai and particularly southern part of it) to be utilized for the benefit of a few rich.