WHIZ ENTERPRISE PRIVATE LTD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Counsel for the parties. Rule. Counsel waive notice for respective Respondents. Rule made returnable forthwith by consent. As short question is involved, Petition is finally heard at admission stage.

(2.) By this Petition under Article 226 of the Constitution of India filed on 6th January 2009, the Petitioners, who are the Developers/Builders engaged by the Respondent No. 3 Society to re-develop the building presently standing on Plot No. 223, Corner of 6th and 11th Road, Khar, Mumbai - 400 052, admeasuring about 870 square yards, pray as under:

(3.) Briefly stated, the building known as "Jeevan Deep" belonging to the Respondent No. 3 Society is almost 50 years old. Since the building was in a dilapidated condition, the Respondent No. 3 convened General Body Meeting to consider the issue of re-development of the building. The meeting was convened on 3rd February 2008, which was attended by ten members out of twelve members. The Respondents 4 and 5 did not attend the said meeting. In the said meeting, the General Body of the Respondent No. 3 unanimously resolved that the building should be redeveloped instead of undertaking extensive repairs which was unviable. Consequent to the General Body Resolution, the Respondent No. 3 Society entered into Development Rights Agreement with Petitioners herein on 18th April 2008. It is not necessary to elaborate on the terms of the said Agreement except to note that as per the said Agreement, the Petitioners have agreed to provide alternate accommodation in the newly constructed building to the members of the Respondent No. 3 Society in lieu of their present accommodation. Besides, until the construction of the building is in progress, the occupants of the building would be provided suitable rented accommodation. However, later on, it transpired that the premises offered by the Petitioners as transit accommodation were not acceptable to the members of the Respondent No. 3 Society. With the result, it was agreed between the Petitioners and the Respondent No. 3 Society that the members would be compensated with amount towards rent at the rate of Rs. 90 per sq.ft. of carpet area of members' existing flat in the existing building per month for a period of 21 months. Supplementary Agreement to that effect was entered into on 18th April 2008. After the said Agreement, the members/occupants in the suit building were expected to hand over vacant and peaceful possession to the Petitioners to enable the Petitioners to commence redevelopment work of the said building. In the meantime, however, on 2nd May 2008, the Assistant Commissioner of the Municipal Corporation sent notice to the Respondent No. 3 Society in exercise of powers under Section 354 of the Mumbai Municipal Corporation Act to pull down/repair the existing building. The notice provided 20 days time limit to the Respondent No. 3 Society to comply with the following: