Sugee Developers v. The State of Maharashtra

10) Mr. Miskita further submits that, under Clause 4(A)(5) of the GR, one of the mandatory criteria for certification is that an occupant must furnish documents establishing occupation prior to 13th June 1996. Annexure-A of the Government Resolution specifies the documents acceptable for establishing such occupation.

11) Clause 3 of the GR categorically provides that a mere inclusion of premises in the inspection extract issued by the MCGM, is not sufficient to confer eligibility for rehabilitation unless there is proof of occupation prior to the datum line - 13th June 1996.

12) Clause 8 further stipulates that an occupant claiming eligibility for an enclosed space under the staircase, will qualify only if: (i) the premises are included in the inspection extract, (ii) the tenant produces documents showing occupation prior to 1996; and

(iii) the occupant is actually in possession of the premises.

Additionally, where an occupant is not included in the inspection extract, an occupant may be certified as eligible in exceptional circumstances upon proving occupation prior to 1996.

13) It is submitted that Respondent No.6 has failed to satisfy the parameters and threshold for certification as prescribed under the GR. The record clearly indicates that Respondent No.6 has not produced any document evidencing occupation prior to the datum line of 13th

14) The only documents produced by the Respondent No.6 are rent receipts dated January 1999, February 1999, January 2008, September 2010 and October 2010, all of which are well beyond the prescribed datum line. The impugned Order itself records this fact.

15) Further, in his Affidavit-in-Reply dated 6th February 2025, filed in the present Petition, Respondent No.6 has merely annexed the very same rent receipts mentioned hereinabove, thereby affirming that no document evidencing the occupation prior to 13th June 1996, has been produced.

THE FSI BENEFIT

16) It is submitted that, Room No.16-B is nothing else but an enclosed space under the staircase, measuring 36.48 sq.ft. Clause 3 and Clause 8 of Annexure-B of GR specifically deal with such premises and are applicable for ascertaining Respondent No.6’s eligibility in respect of Room No.16-B.

17) The Petitioner did not utilize the FSI benefit of Room No.16-B in constructing the new building, a fact confirmed by MHADA. Furthermore, Respondent No.6 is not deprived of accommodation; against his earlier premises, Room Nos. 24 to 26, he has been allotted three flats - Room Nos.503 to 505 - admeasuring a total of 1,185 square feet.

18) By Order dated 14 November 2013, passed pursuant to a representation by Respondent No. 6 seeking certification of Room NO. 16-B, the Chief Officer, MBRRB, rejected the claim, recording that Respondent No. 6 had only produced rent receipts for January 1999 and had not submitted any proof of occupation prior to 13th June 1996, as mandated under the GR dated 16th August 2010.

(IV) Full OC granted for Sugee Sadan by the BMC on 15th March

2017.

19) The learned counsel Mr. Miskita further relies on the Order of the Chief Executor Officer, MHADA dated 9th November 2015, which dismissed the Respondent No.6’s Appeal against the above Order, holding that: (i) no documents prior to the datum line had been produced; and (ii) the Respondent No.6 has already been certified for three other premises - Room Nos.24, 25 and 26 - and could not claim double benefits under the same scheme.

20) The Chief Officer, MBRRB, has also, by letter dated 28th November 2018, confirmed that Respondent No.6 has not submitted any documents to prove occupancy prior to the cut-off date of 13th

21) He further submits that, under Regulation 33(7) read with Appendix-III of DCR 1991, and in particular Clause 5 of Appendix-III, the permissible FSI was higher of; (i) 3 times the gross plot area, or (ii) the FSI required for rehabilitation of existing occupier’s plus 50% incentive FSI. Accordingly, the FSI was calculated based on the area required for rehabilitating the existing occupiers. Since the permissible FSI under Clause 5 is directly linked upon the number of occupiers and the actual area occupied by them, no new tenancies can be created after 13th June 1996, and any unauthorized constructions in the cessed buildings are to be excluded from the computation of existing FSI. As Room No.16-B was never certified by MHADA, the Petitioner neither utilized nor derived any FSI benefit from the said room while undertaking the redevelopment.

22) Mr. Miskita submits that, in the letter dated 28th November 2018, issued by the Chief Officer, MBRRB, it is expressly recorded that the Petitioner has not availed of any FSI benefit of Room No.16-B. Consequently, the Respondent No. 6 has not been allotted any flat in the newly constructed building in lieu of Room No.16-B.

23) The learned Counsel further submits that construction of the new building was completed in 2016, and by letter dated 13th December 2016, the MBRRB issued its “No Objection Certificate” (NOC) for obtaining “Occupation Certificate” (OC).

24) Thereafter, by letter dated 14th February 2017, the MBRRB granted its NOC for procuring full OC from MCGM, which in turn issued the full OC for the new building, now known as ‘Sugee Sadan’, on 15th March 2017.

25) On 23rd October 2017, the occupants and flat purchasers formed a co-operative Society named Sugee Sadan Cooperative Housing Society Limited. The OC received by the Petitioner was thus handed over to the newly formed society well before the passing of the impugned Order dated 26th April 2019.

26) In support of his submissions, the learned Counsel for the Petitioner relies upon the Division Bench Judgment in Laxmi Gopinath Shetye v. MHADA & Anr.[1] wherein it was held that the existence of a shop and establishment certificate, a separate electric meter, or BMC assessment of premises does not, by itself, establish the legality of the structure or prove the existence of a tenancy. 2024:BHC–OS:4270–DB, dated 13th March 2024 27) Per Contra, Mr. Dinesh Kumar Bishnoi, learned Advocate for the Respondent No. 6, submits that the certified list of tenants and occupants of the cessed building expressly mentions about Room No. 16-B, and therefore, there was no justification for not recognising the said tenancy. He points out that, while the other tenants and occupants in the list were accepted, Room 16-B alone was excluded without any recorded reasons.

28) In support, he relies upon the MCGM inspection extract for the year 1995-96, which shows Room No. 16-B as a residential unit, and an office note dated 28th February 2011, prepared after inspection, wherein clause 3 also specifically mentions the existence of Room No. 16-B. He states that his father, Razaali Gulamhussain Zaboli, expired on 1st October 1995, after which the rent receipts were transferred to his mother, Smt. Munawar Bloor covering Room Nos. 24 to 26 as well as Room No. 16-B.

29) He asserts that Room No. 16-B ought to be treated as habitable and was in fact used for residential purposes. Since the name of the tenant and occupants were included in both the certified list of tenants and the 1995-96 MCGM inspection extract, the Petitioner could not disregard the tenancy. He further submits that although Room No. 16-B was a small premise under the staircase, it was used as a dwelling area for sleeping or as a rest room by the servants/ staff of restaurant and medical store operating from shops No. 6, 7 and 8.

30) It is submitted that there was no separate electricity or water connection for room No 16-B, and therefore no question producing electricity bills, ration cards, voter IDs, electoral IDs or shop licenses for that space. He contends that the authorities failed to give reasons for rejecting the tenancy and the Chief Officer, MBRRB, did not consider his claim in respect of Room No. 16-B, as it does not find mention in the Order - hence, it cannot be said to have been rejected.

31) He places strong reliance on the 1995-96 MCGM inspection extract predating the cut-off date 13th June 1996, to argue that the authorities failed to appreciate that the tenancy existed as on the datum line.

32) He explains that in 1993, during the communal riots in Mumbai, Shops Nos. 6, 7, and 8 were burnt down, resulting in the loss of all old documents and rent receipts. The only surviving documents were produced before the Chief Officer.

33) He further contends that the Petitioner has not produced any documentary proof to show that the FSI of Room No. 16-B was not used in the redevelopment, as no building plans have been annexed demonstrating FSI utilisation.

34) He argues that the Chief Officer did not conduct an independent assessment but merely reproduced the Petitioner’s letter dated 17th October 2018. He submits that Clause 13 of Appendix-III of Regulation 33(7) of the DCR does not apply in this case. Since the Deed of Conveyance dated 27th December 2009 records the existence of Room No. 16-B, and the Petitioner acquired title from the erstwhile landlord, the Petitioner ought to have accepted Room No. 16-B as residential.

35) He contends that as Room No. 16-B is residential and not a commercial gala, the GR dated 16th August 2010, is inapplicable. It would be self-contradictory, he says, to acknowledge the existence of room 16-B but require the Respondent to again prove his occupation of it. In his view, no further evidence was necessary to establish occupation. He maintains that the Second Appellate Authority rightly held that since Room No. 16B was assessed by MCGM and bore No.GN3348-1-2 prior to 1995, it was sufficient to accept the tenancy claim.

36) The learned counsel submits that MHADA is not being asked to allot any premises under the Project Affected Persons category, as this is a tenancy claim, and therefore the Respondent is not a PAP.

37) In response to the judgment cited by the Petitioner, he argues that the facts of that case are distinguishable and the ruling is not applicable here.

38) He also submits that by granting the full Occupation Certificate, Respondent No. 3 has imposed a binding condition on the Petitioner to abide by the outcome of the present claim, thereby making the Petitioner responsible for any resulting liability. Consequently, the Petitioner is liable to compensate Respondent No. 6 for the tenancy.

39) Lastly, he alleges that the Petitioner has approached the Court with unclean hands and mala fide intent, and therefore the Petition deserves to be dismissed with heavy costs.

40) Mr. Lad, learned counsel appearing for Respondents 2, 3 and 5 (MHADA), submits that these Respondents are bound to comply with the Orders of the Appellate Authority, which are binding on them. He states that he has no further submissions in the matter.

41) I have heard all counsel and perused the record.

42) At the outset, a query was posed to the learned Advocate for Respondent No.6 to produce the documents required under the G.R. dated 16th August 2010. In response, he referred to an inspection extract dated 11th August 2011, showing Room No.16-B as residential premise with rent of Rs. 16.15, along with rent receipts of January 2008, September 2010, October 2010 and subsequent periods. He was unable produce any document evidencing lawful occupation of Room No.16-B prior to 13th 43) The conditions laid down in the GR provide detailed guidelines for determining the eligibility of tenants/occupants of repair cess buildings and the permissible area to be allotted. The relevant clauses of GR are reproduced herein below for ready reference:

6. The Divisional Executive Engineer should inspect the site, verify the 100% proofs submitted by the tenants/occupants, decide the eligibility list of the tenants/occupants and submit the signed list and complete proposal to the concerned Dy. Chief Engineer with remarks. The concerned Dy. Chief Engineer should accurately scrutiny the proofs submitted by the tenants/occupants in accordance with provisions of the Indian Evidence Act, 1872 and the procedure laid down under Annexure "A" and "B". So also he should visit the building, inspect minimum 20% tenants/occupants and should pass self-reasoned order regarding eligibility/non-eligibility of the tenants/occupants and attest the list of the tenants/occupants. Disclosure of eligibility list The list of tenants/occupants in the building should be forwarded to all the eligible and non-eligible tenants/occupants and the developer. Acknowledgment of receipt of the said list by them should be recorded permanently on the file. After receipt of the certified list, if the developer/tenants/occupants have any complaints/objections regarding the list, eligibility/non-eligibility, then they should submit the objections with the Chief Officer/R.&R. Board within 30 days and take acknowledgement thereof. On the basis of complaint/application or if deemed necessary by the Chief Officer he shall suo motu review the eligibility list before issuing No Objection Certificate. On the basis of the tenants/occupants list certified by the Chief Officer, the. Board will approve the redevelopment proposal. First Appeal

7. If the applicant/resident is not satisfied after the Chief Officer issuing No Objection Certificate, the aggrieved applicant/resident or developer can file first appeal before the Vice President & Chief Executive Officer, MHADA within 45 days from receipt of the order. Second Appeal

8. If the tenant/occupant or developer is not satisfied with the order passed by the Vice President & Chief Executive Officer, MHADA on the appeal, they can file an appeal before the Government within 45 days from receipt of the order. The decision given by the Government shall be final and decisive.

9. The Government/Authority has issued directions from time to time in the matter of deciding eligibility/non-eligibility of the tenants/residents of repaircess buildings. Vide Government Resolution dated 1.6.2005 as referred to at Sr. No. 2 above, detail instructions to a certain extent have been given for deciding eligibility of the tenants/occupants. If decisions are already taken for deciding eligibility of the tenants/occupants by taking into consideration the resolutions, directions etc. which were available at the relevant times, then eligibility of such tenants/occupants should not be verified again on the basis of the new improved guidelines.

10. This Government Resolution will become effective from the date of its issuance.

11. This Government Resolution is made available on the Government's website www.maharashtra.gov.in and its compute code No. is 20100816180710001. As per the order and in the name of the Governor of Maharashtra. Enclosures: Annexure A & B.

1) Ration Card

2) Electrol Roll

3) Passport

4) Driving License

5) PAN Card

6) Employee Identity Card issued by State/Central Govt., Public Undertakings, Local Self Governing Bodies 7) Bank or Post Passbook

8) School Leaving Certificate issued by recognized educational institution

9) Income Certificate/SC/ST/OBC Caste Certificate issued by the Competent Authorities 10) Freedom Fighter Identity Card 11) Weapon License

12) Electricity Bill

13) Telephone Bill

14) Papers of Sales Tax/Income Tax

15) Shops and Establishment License

16) Tenants as per the electoral roll of 1995 and no. of families in the repaircess building

17) No. of tenants/occupants at the time of actual survey and area in their possession

18) Matching and non-matching area in the repaircess building

19) Any Government/Semi-Government proofs showing occupation by the tenant/occupant prior to 13th June, 1996 or the earea in possession of such tenent/occupant

20) Vacation Notice

21) Rent Receipts

22) Agreement between the tenant/occupant/owner. It is expected that the contents of the proofs at Sr. No.12 to 15 in the above referred prooofs be considered for taking decision on non-residential use. ANNEURE-B (1) ------------------- (2) ------------------ (3) Inclusion in inspection non actual occupational and no documentary proofs showing occupation prior to 1996: Gala should not be certified as eligible for rehabilitation just merely because the gala is inclined in Inspection Extract. (4) ---------------- (5) ---------------- (6) ---------------- (7) ---------------- (8) Tenants/ occupants under the staircase: If a gala under the staircase is included in the inspection extract, an if the tenant/ occupant has documents showing occupation prior to 1996 and if the tenant/occupant actually occupies such gala, then that tenant should be certified as eligible. If such gala under the staircase is not included in the inspection extract, but if it is undoubtedly proved that the tenant has been occupying it since prior to 1996 then in such exceptional circumstances, the tenant should be certified as eligible. (9) TO (24) -----------------” [Emphasis Supplied]

44) Respondent No. 6 has failed to produce any documents in respect of Room No. 16-B satisfying the GR requirements.

45) By an Order on 14th November 2013, the Chief Officer, MBRRB, rejected Respondent No. 6’s claim on the ground that no proof of occupation prior to 13th June 1996 was furnished and that a space under a staircase is ineligible for rehabilitation. This Order clearly followed the GR’s directions.

46) On 9th November 2015, the Vice President and CEO of MHADA upheld the rejection, reiterating the absence of pre-1995–96 documents and noting that Respondent No. 6 had already been allotted benefits for Room Nos. 24 to 26 and could not claim a double benefit.

47) The impugned Order provides no reason for overturning these concurrent findings and relies only on later documents and BMC inspection extract, without addressing the absence of documents required under the GR.

48) In Laxmi Gopinath Shetye (supra), the Division Bench of this Court held that the existence of a shop and establishment certificate, electricity meter, BMC assessment receipt, or even correspondence with an authority does not prove the legality of a structure or establish tenancy. The ruling is binding, and I see no reason to differ from it.

49) I find that the concerned authorities passed reasoned Orders in accordance with the GR dated 16th August 2010 and the Respondent No. 6 has not produced any document establishing a valid tenancy.

50) The claim appears to be an attempt to extract money or additional premises from the Developer. The premises in question— admittedly used as a sleeping/rest area for staff—reflect how open spaces are enclosed and styled as “rooms” to gain redevelopment benefits under the DCR.

51) The space under the staircase measures only 3.39 sq. m. (36.48 sq. ft.), has no separate utility connections, and cannot be regarded as a “room” in any real sense. At best, it is an enclosed space. Even if rent was collected for its use, this alone does not confer tenancy rights.

52) This case illustrates how rent control conditions incentivise landlords to monetize even the smallest open spaces, with such enclosures later being projected as legitimate tenancies.

53) Here, Respondent No. 6 sought to convert a 36.48 sq. ft. space into a residential allotment exceeding 400 sq. ft. in the redeveloped building—worth approximately Rs.1.20 crore at a conservative rate of Rs.30,000 per sq. ft. Such demands, lacking any legal basis, amount to unjust enrichment and cannot be entertained.

54) The impugned order ignores the GR and the binding law in Laxmi Shetye (supra) and therefore cannot be sustained.

55) Accordingly, the impugned Order is set aside and the Petition is allowed. Costs:

56) The Respondent No. 6 has previously filed a Writ Petition No. 655 of 2014, Writ Petition No. 430 of 2017, and an Appeal from the High-Powered Committee Order dated 9th November 2015, and has persistently abused the Judicial process. He has done so fully aware that the area he claims as tenancy is merely an enclosure under a staircase, without supporting documents. Despite repeated rejections of his claim by various authorities, he has continued to litigate purely as a gamble.

57) The Supreme Court in the case of Rakesh Kumar Goyal Vs. UP SIDCO[2] while imposing exemplary costs, held that Court is not for manipulators, speculators and land grabbers. The litigation in courts is not like buying a lottery ticket that if luck favours might bring a windfall (even though illegitimate) but would cost no more than the expenses of litigation. That is not the way of this court.

58) In my view, this constitutes a sheer abuse of process.

59) Further, Respondent No. 6 has taken liberties with the truth and, knowing that this space is not “premises” as contemplated under any law, nonetheless initiated proceedings with the sole intention of compelling the Developer to offer him compensation in cash or kind for such enclosure.

60) Evidently, the developer having successfully redeveloped the building and completed all formalities, including securing full OC for all concerned, has been forced to contest multiple litigations since

2013.

61) Such conduct must be viewed with strong disapproval and warrants imposition of exemplary costs – not only to deter similar frivolous claims but also to protect the judicial resources from being consumed by cases filed in the hope of windfall gains.

62) Accordingly costs of Rs.10 lakhs are imposed on Respondent No. 6, payable to the Petitioner within four weeks from the date of this uploading this order.

63) This approach is consistent with the Supreme Court’s ruling in the case of the Dnyandeo Sabaji Naik & Anr. Vs. Pradnya Prakash Khadekar & Ors.[3] The relevant passages are extracted herein below for ready reference:

64) The Petition is accordingly allowed in terms of prayer clauses (a) and (e) with cost of Rs.10 lakhs payable by Respondent No.6 to the Petitioner as above. (KAMAL KHATA, J.)