NOOR MOHD. SHAMI SHAIKH Vs. MAHARASHTRA HOUSING

JUDGEMENT

(1.) These appeals are directed against common order dated 6.2.2013 passed by learned City Civil Judge, Mumbai, in Chamber Summons No.784 of 2011 and Chamber Summons No.1317 of 2012 in L.C.Suit No.2145 of 2009, whereby, learned Judge held that the plaint in L.C.Suit No.2145 of 2009 is bound to be rejected under Order 11 Rule 7(d) of the Code of Civil Procedure on the ground that presuit statutory notices as mandatorily required under Section 527 of Mumbai Municipal Corporation Act, 1888, and as required under Section 164 of the Maharashtra Cooperative Societies Act, 1960, as required according to law, were not issued and served upon the Public Authorities namely Municipal Corporation of Greater Mumbai (MCGM) and Registrar of the Cooperative Societies.

(2.) It appears that the plaint in the L.C.Suit No.2145 of 2009 contained averments in respect of Development Control Regulations issued by the Planning Authority i.e. MCGM. According to plaintiffs, Maharashtra Housing and Area Development Authority (MHADA) is a body responsible for development of housing. According to plaintiff, defendant no.2 MCGM is owner of plot of land bearing C.T.Survey No. 1589, Byculla Division, while M/s.NAN Developers Pvt. Ltd. (defendant no.3) is a Developer and Builder, who undertook development work on the said plot of land. The plaintiff claimed possession of Room No.16, "C" Block in Afzal Chawl, Opposite Maratha Mandir, Dr.A.B.Nair Road, Mumbai Central, Mumbai 400 008. According to plaintiffs, tenants and occupants of Afzal Chawl situated on the City Survey No.1589 of Byculla Division decided to go for redevelopment under the scheme formulated under Development Control Regulations, and therefore, association of the occupants in the chawl had called a General Body Meeting on 24.12.2001, to discuss the benefit of redevelopment. Defendant no.3 was appointed as developer to pursue redevelopment work. Tenants and occupants of Afzal chawl consented in favour of defendant no.3 and the consent was forwarded to MCGM and other authorities concerned for necessary approval and sanction. Plaintiffs and defendant no.3 had entered into an agreement with the proposed Afzal Cooperative Housing Society under Agreement dated 27.9.2006, and agreed to complete the construction. To facilitate redevelopment, defendant no.3 agreed to provide temporary transit accommodation of 110 to 120 sq.feet on the same plot or in the same area and agreed to bear all the expenses. Meeting was held in September 2006 between committee members and defendant no.3 regarding the approval of redevelopment scheme and the plan to take benefit of Regulation 33(a) of the Development Control Rules. Defendant no.3 agreed to provide larger area and more benefits to tenants / occupants of the chawl. The builder had agreed for compensation / rent to enable the plaintiffs to make arrangements for temporary transit accommodation. Thus, plaintiffs have agreed to participate in redevelopment of Afzal chawl through defendant no.3 and also agreed to shift to the alternate transit accommodation as defendant no.3 was to pay rent for transit accommodation before he could hand over permanent accommodation for the plaintiffs.

(3.) It is case of the plaintiffs that two buildings "A" and "B" Wings of ground plus seven storeys for rehabilitation were constructed, but occupation certificate was not obtained by defendant no.3. Under these circumstances, tenants and occupants of Afzal chawl had forcibly taken possession of different rooms of their choice without following the procedure of lottery as agreed. Defendant no.3 paid compensation towards rent for transit accommodation till 31.3.2009. Thus, according to plaintiffs, after entire development, plaintiffs were entitled to minimum area of 27.88 sq.mts. (300 sq.feet carpet) in the newly constructed building as permanent alternate accommodation in lieu of their old premises under Rule 4 of Appendix IIIA. According to plaintiffs, it was obligatory upon sanctioning authority to consider prevailing law so as to direct defendant no.3 to construct rehabilitation components of required dimensions. But there was breach of statutory obligation on the part of MCGM, and therefore, plaintiffs are entitled for relief of declaration that they are entitled for all the benefits of redevelopment under Development Control Regulation 33(7) read along with Appendix III of Development Control Regulation. The plaintiffs also prayed for declaration that agreement dated 27.9.2006 is valid and subsisting and binding upon defendant no.3 and that plaintiffs were entitled for accommodation in the newly constructed building in lieu of the old premises in their possession. They also prayed for injunction against defendant no.3, not to create third party interest in respect of the premises to which plaintiffs are entitled. The plaintiffs in paragraph 25 averred that notice under Section 173 of MHADA Act is not required to be given on the ground that plaintiffs are seeking enforcement of statutory obligation against defendant no.1. It is also averred that statutory notice as contemplated under Section 527 of MMC Act is not required to be given as the defendant no.2 is sued in dual capacity as local body and Planning Authority which has not discharged its duty as local authority under MMC Act. Thus, according to plaintiff notice is deemed to have been waived. Further, according to plaintiffs, statutory notice contemplated under Section 164 of Maharashtra Cooperative Societies Act is also not required to be given.