HAPPY HOME ESTATES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In furtherance to the order of this Court dated 21st February, 2007 in Civil Writ Petition No. 3160 of 2006, filed by the petitioners herein, the petitioners filed a representation before respondent Nos. 1 to 6 alleging that respondent No.6 and its selfstyled President and Secretary had no locus standi or right in relation to the property and/or its reconstruction in relation to non-cessed portion of the property in question. This representation dated 28th March, 2007 was disposed of by respondent No.5 vide his order dated 11th July, 2007, whereby he rejected the representation of the petitioners and allowed respondent No.6 to develop the property in question. It permitted the said respondent No.6 to reconstruct the building with 4 FSI area, a joint venture project with third party builders/developers and submit their proposal for approval of respondent No.1. This order of respondent No.5 has been challenged in the present writ petition by the petitioners on the ground that the petitioners have the first right to develop the noncessed portion of the property and they have been denied such a right contrary to law and the action of the said respondent is contrary to rules, in violation of the principles of natural justice and MHADA cannot involve itself in commercial activities and make profits.

(2.) The petitioners, a partnership firm, claim to be owners of the property admeasuring 3028 sq.yards located at Mithwala Chawl, Sayani Road, Prabhadevi, Mumbai-400 016, bearing Survey No. 1806 and Cadestral Survey No. 1169, Final Plot No. 1006, TPS-II, Mahim Division, Mumbai-400 025 (hereinafter referred to as the said property ). They had entered into an agreement dated 19th April, 1985 with the erstwhile owners being Aboobaker Kasammiya Ishque and others. Out of the total area admeasuring 2469.38 sq.mtrs., 1048 sq.mtrs. is cessed property and the remaining 1421.38 sq.mtrs. is non-cessed property. In terms of the agreement, the petitioners were put in full use and possession of the property. On 28th December, 1979, Executive Engineer of the Sub-Land Acquisition Officer had issued a notice on behalf of Mumbai Housing and Area Development Board invoking provisions of Section 88 and subsection (3) of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as the MHADA ), in relation to the said land. Part of the premises were demolished in the year 1980. Thereafter, on 6th January, 1981, the same Officer initiated acquisition proceedings in respect of non-cessed portion and a notification to that effect under Section 41 (i) of MHADA was issued. This notification was challenged by the erstwhile owners in Civil Writ Petiktion No. 525 of 1983. During the pendency of the said writ petition, consent terms were recorded on 26th October, 1988, and the writ petition was accordingly disposed of. In terms of the conditions of the letter of intent dated 9th October, 1985, the notification was to be withdrawn and cancelled by respondent No.1 and the project was to be completed within the stipulated time in terms of letter of intent dated 9th October, 1985 and all the 62 tenants of the cessed portion were to be rehabilitated. The Housing Board did not make payment of any compensation and they took no steps to acquire the land.

(3.) It is the case of the petitioners that in terms of the consent terms, the notifications were withdrawn and the terms of settlement had been attained finality. The petitioners sought permission of respondent Nos. 1 to 5 to construct a building to accommodate the tenants. The original owners committed breach of the consent terms and the petitioners were compelled to file a suit being Suit No. 3120 of 1989 seeking specific performance of the agreement. This suit also culminated into filing the consent terms between the parties which were recorded on 18th January, 1990. All the tenants consented to permit the petitioners to reconstruct the building on the petitioners land and list of such people was also annexed to the consent terms. The petitioners forwarded their proposal to the authorities to accommodate 62 tenants.