SHABBIR SHARAFALLY HARIANAWALLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN these proceedings, the petitioners seek to challenge proceedings for acquisition initiated under section 91 (3) of the Maharashtra Housing and Area Development Act, 1976 in respect of property situated at 51-53, Keshavrao Khade Marg, Mumbai-400 011. The property in question is stated to have been purchased by the first and second petitioners and their deceased brother in a public auction held by the Municipal Corporation for Greater Bombay on 15th September, 1970 under the provisions of the Bombay Municipal Corporation Act, 1888. A certificate of sale dated 14th January, 1971 was issued to the petitioners which was then registered with the Sub- Registrar of Assurances. The brother of the first and second petitioners expired on 15th September, 1992 and the third petitioner is his widow.

(2.) PRIOR to September 1976, the property comprised of a Ground Floor and three upper floors. The upper floors and a portion of the Ground Floor were being used for residential purposes. The Bombay Housing and Area Development Board levied a repair cess on the aforesaid property and under the provisions of section 84 of the Maharashtra Housing and Area Development Act, 1976 ("the Act"), the property was classified as belonging to category A since it was constructed prior to 1st September, 1940.

(3.) THE property is stated to have been in need of structural repair and, under the provisions of the Bombay Building Repairs and Reconstruction Board Act, 1969, a certificate under section 33 (3) was issued on 2nd March, 1972. Plans and estimates were prepared in May 1972 under which the estimated cost of repair was determined at Rs. 78,871/- at the rate of Rs. 92. 24 per sq. meters. Under the then applicable provisions of law, the budgetary limit for carrying out repairs was Rs. 75/- per sq. mtr. Since the petitioners and the tenants did not collect or pay the excess amount, a certificate under section 33 (3) came to be issued. Subsequently, the prescribed limit was enhanced from Rs. 75/- per sq. mtr. , to Rs. 120/- per sq. mtr. and in 1975, upon the tenants offering to pay the excess amount, the certificate was withdrawn by the Board under a resolution dated 29th September, 1975. The plans and estimates were thereafter modified by the architect and the cost of repair was computed at the rate of Rs. 117. 30 per sq. mtr. An amount of Rs. 28,000/- was communicated to the tenants as being the excess liable to be paid by them and it has been stated that the tenants paid the aforesaid amount on 21st April, 1976. In its affidavit in reply, the authority has stated in these proceedings that by the time the property was inspected, its condition had become dilapidated and the revised estimate was now computed at Rs. 241. 40 per sq. mtr. for carrying out repairs. According to the authorities, the tenants were thereupon called to pay an amount of Rs. 1,04,117/- which they failed to pay. Accordingly, the Board passed a resolution to cancel the withdrawal of the certificate issued under section 33 (3), in a meeting on 31st December, 1976 and a demolition order was also issued under section 34 (4 ).