DINESH KANTILAL PANCHAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this petition the Petitioners challenge the order dated 3-2-2003 passed by the Respondent No.1/State of Maharashtra. By the order dated 3-2-2003 the Government of Maharashtra has held that the action of the Bombay Municipal Corporation of exempting 21 structures owned by the Respondent No.5Co. operative Housing Society from payment of cess under the Maharashtra Housing & Area Development Act, 1976 is not proper and that cess is leviable on 21 structures owned by the Respondent No.5-society.

(2.) The brief facts relevant for deciding this petition are that there were several structures standing on C.S. No.375, Mazgaon Division, Mumbai. One Shri Dhankumar Thakurdas Jhaveri was the owner of the said property. The occupants of those structures in the year 1976 formed a Co.operative Housing Society called "Tarabaug Aikyavardhak Co.operative Housing Society Ltd.-the Respondent No.5." The owner of the property executed a deed of conveyance dated 7th July, 1977 in favour of the Respondent No.5-society. According to the Petitioners, there were 23 structures standing on the land. Out of 23 structures, 2 structures were repaired by the Bombay Building Repairs and Reconstruction Board. It appears that the Deputy Chief Administrative Officer of the Bombay Housing and Area Development Board by letter dated 15th October, 1979 informed the Corporation that in view of the provisions of the MHADA, the Board has no objection to the exemption of 21 structures from payment of repair cess with effect from 1-4-1978. In other words, the Bombay Housing & Area Development Board had an objection to 2 out of 23 structures being exempted from payment of repair cess. It appears that in the meantime the Managing Committee of the society decided to redevelop the property and constructed two buildings where some of the occupants were accommodated. It, thereafter, appears that for carrying out the balance development the Respondent No.5/Society entered into contract with the Respondent No.6. According to averments in the petition, the appointment of Respondent No.6 as developer of the Respondent No.5 society was not in accordance with law. It appears that the Respondent No.6, thereafter, took up the work of construction of the building. The application, pursuant to which the order which is impugned in the petition has been made, appears to have been made by the Respondent No.6 as a power of attorney holder of the Respondent No.5-society. In other words, the order dated 3-2-2003 has been made by the State Government at the instance of and on an application made by the Respondent No.5 society. The effect of the order is that the Respondent No.5-co.operative society becomes liable to pay repair cess to the State Government on all the 23 structures standing on the land. It is also common ground that net result of the order dated 3-2-2003 is that the Respondent No.5/society becomes entitled to larger FSI for carrying out the balance development on the land. As the order impugned in the petition has been made at the instance of the Respondent No.5-society, the order is actually invited by that society and direct beneficiary of that order is the Respondent No.5-society.

(3.) If one goes through the petition, it appears that according to the Petitioners the appointment of Respondent No.6 as a developer was made by the Managing Committee of the Respondent No.5 without passing proper resolution. But admitted position is that the Petitioners to this date have neither challenged the resolution passed by the Respondent No.5-society appointing the Respondent No.6 as a builder nor have they filed proceedings challenging the agreement that has been entered into by the Respondent No.5-society with the Respondent No.6-builder. In this background, therefore, we asked the Petitioners to satisfy us as to why we should entertain their petition challenging the order which apparently is in favour of the Respondent No.5-society of which the Petitioners are the members. Even according to the Petitioners, there are more than 140 members of the Respondent No.5-society and only 4 out of those members have filed this petition.