Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.4339 OF 2022
Ankush Vitthal Narvekar ...Petitioner
Mumbai.
2. The Assistant Commissioner, G/North Ward, 3. Skyline Realty Private Limited
4. Lawoo Vithal Narvekar ...Respondents
Dilip Vitthal Narvekar ...Petitioner
Mumbai.
2. The Assistant Commissioner, G/North Ward, 3. Skyline Realty Private Limited
4. Lawoo Vithal Narvekar ...Respondents ...
Mr. Mayur Khandeparkar I/B. Mr. Mehul A. Rathod for the
Petitioner in WP/5196/2022.
Mrs. Pooja Kshirsagar Kane with Mr. Laxminarayan Shukla, Ms
Pragya, Ms Dhanashree Pawaskar, Ms Darshana Vora and Mr. Ameya Khot i/b. Mr. Mehul A. Rathod for the Petitioner in
WP/4339 /2022.
Mr. Sagar Patil for MCGM, Respondent Nos.1 & 2 in both the petitions.
Megha ___Page No. 1 of 25____
Mr. Joaquim Reis, Senior Advocate with Mr. Bernardo Reis, Mr. Bharat Jain and Mr. Hrishikesh Tajane i/b. M/s. IC Legal for
JUDGMENT
1. Rule. Rule made returnable forthwith and with the consent of the learned counsel appearing for parties, Petitions are taken up for hearing.
2. The Petitions arise out of grant of benefits of redevelopment of tenanted structures. Late Vitthal Narvekar was a tenant in respect of Room No. 13 located at C. B. Dhuruwadi, Final Plot No. 840, TPS-V of Mahim Division, Dadar, Mumbai. Apparently, the tenanted structure bearing Room No. 13 was earlier in three parts viz. main room, verandah and toilet block. Vitthal Narvekar has three sons: Lawoo, Dilip and Ankush. It appears that after Vitthal’s death, the three sons occupied the above three parts of the tenanted structure. While Lawoo continued residence in main room, it appears that Ankush converted the verandah into a room and started residing therein whereas Dilip converted toilet block into a residential room. The Municipal Corporation has recognised the structures of Ankush and Dilip as contravening structures in respect Megha ___Page No. 2 of 25____ of neighboring Final Plot No. 751-752 under which Ankush and Dilip would receive permanent alternate accommodations, whereas Final Plot No. 840, on which Lawoo’s structure is located, is not taken up for redevelopment as of now. Grant of benefit of permanent alternate accommodations to brothers Ankush and Dilip has caused heartburn for Lawoo, who has orchestrated cancellation/withholding of NOCs issued by MCGM by orders dated 14 May 2021, which are subject matter of challenge in the Petitions.
3. By these Petitions, Petitioners challenge the Orders dated 14 May 2021, by which the Respondent-Municipal Corporation has kept on hold No Objection Certificate of Petitioner in Writ Petition No.4339 of 2022 and has cancelled the No Objection Certificate of Petitioner in Writ Petition No.5196 of 2022.
4. Brief factual narration as prologue to the judgment would be necessary. This is a typical fight amongst three brothers in respect of their competing claims to rights resulting out of redevelopment of structures in their occupation. There is one tenanted structure identified as Room No.13 in which Late Vitthal Narvekar was a tenant. After father’s death, Lawoo Vitthal Narvekar claims tenancy therein. Said Room No.13 is divided into three parts viz. main room, its verandah and a toilet block. According to Lawoo, all three sub parts are part of singular and composite structure numbered as Room No.13 and Lawoo claims exclusive tenancy rights in respect of the entire composite structure of Room No.13. Contrary to the Lawoo’s claim, his two brothers, Dilip and Ankush claim that three sub parts are independent structures. The middle portion, referred to as Megha ___Page No. 3 of 25____ verandah by Lawoo, is in fact a room in Ankush’s possession. Similarly, the structure referred to by Lawoo as toilet block is again an independent room in Dilip’s possession.
5. This disputed position amongst Lawoo on one hand and Dilip and Ankush on the other, about the singular structure or three separate structures has a direct bearing on the redevelopment of the same under the provisions of Development Control and Promotion Regulations for Greater Mumbai, 2034 (DCPR). The main room in occupation of Lawoo (referred to as Room No.13) is located in final plot No. 840. The middle structure (referred to as Verandah by Lawoo), which is in Ankush’s possession partly falls in Final Plot No.840 and partly in Final Plot Nos.751-752. The third structure (referred to as toilet by Lawoo), being in possession of Dilip, falls in final plot No.751-752 with some portion of it protruding in final plot No.753. Under DCPR, every structure, which falls in one or more Final Plots under Town Planning Scheme are treated as contravening structures. Regulation 33(12)(A) deals with redevelopment of contravening structures included in the final plot of a town planning scheme. Therefore, the structures in which rights are claimed by Ankush and Dilip (on account of those structures jutting out in another final plot) have been treated as contravening structures whereas the main Room No.13 which falls entirely in Final Plot No.840 is not treated as contravening structure. As of now Final Plot Nos.751-752 is taken up for redevelopment by the Developer, who is under the obligation under Regulation 33(12) (A) to grant Permanent Alternate Accommodation (PAA) in respect of every contravening Megha ___Page No. 4 of 25____ structure in respect of said final plot Nos.751-752, Lawoo’s heart burn is that Ankush and Dilip would secure PAA from Respondent No.3-Developer whereas on account of no development occurring as of now in Final Plot No.840, Lawoo is being deprived of any PAA. With this main grievance, Lawoo appears to have challenged the NOCs granted by Municipal Corporation of Greater Mumbai (MCGM) in the name of Ankush and Dilip. On Lawoo’s complaints, the MCGM has proceeded to cancel the NOC dated 29 December 2020 issued to Respondent No.3 -Developer in respect of Dilip, whereas the NOC dated 3 December 2020 for Ankush is kept on hold. Common reason recorded for cancelling Dilip’s NOC and keeping on hold Ankush’s NOC is pendency of family disputes between Lawoo, Ankush and Dilip. Ankush is accordingly aggrieved by order dated 14 May 2021, keeping his NOC on hold has filed Writ Petition No.4339 of 2022 whereas Dilip is aggrieved by order dated 14 May 2021 cancelling his NOC and has filed Writ Petition No.5196 of 2022.
6. I have heard Mr. Mayur Khandeparkar, the learned counsel appearing for Dilip in Writ Petition No.5196 of 2022 and Ms Pooja Kshirsagar -Kane for Ankush in Writ Petition No.4339 if 2022. Both of them have demonstrated before me existence of structures of Dilip and Ankush as on the datum line of 1 January 2000. They have invited my attention to various documents to show the structures in their possession existed as on 1 January 2000. They have also heavily relied upon the admissions given by Lawoo in his affidavit-in-reply filed in Writ Petition No.4339 of 2022 in which Lawoo admits Megha ___Page No. 5 of 25____ construction of separate room in Bathroom area by Dilip and construction of room by Ankush, filing of complaints by the landlord dated 12 June 1988 in this regard, etc. They also referred to LC Suit filed by Lawoo in City Civil Court for a declaration that Room No.13 is a contravening structure. They invited my attention to separate Permanent Alternate Accommodation Agreement (PAAA) executed in Lawoo’s favour by the Developer in respect of Final Plot No.840. They also rely upon Court Commissioner’s report to show separate existence of structures of Dilip and Ankush. Mr. Khandeparkar would submit that impugned order in the case of Dilip is passed in violation of principles of natural justice as he was not given any notice of alleged hearing conducted on 4 May 2021.
7. Both Mr. Khandeparkar and Ms Kshirsagar -Kane would contend that pendency of title disputes between Lawoo, Dilip and Ankush cannot be used by MCGM for cancellation/withholding of NOC. That NOCs are issued for the purpose of allowing PAA in respect of two contravening structures. That if Lawoo establishes before Civil Court that he has right, title or interest in respect of those two contravening structures, allotment of said PAA would enure to Lawoo’s benefit. That therefore, Lawoo cannot and ought not challenge the NOCs granted to Dilip and Ankush.
8. Mr. Reis, the learned senior advocate appearing for Respondent No.3- Developer would support the petitions. He would submit that PAAA has already been executed in favour of Ankush and Dilip on 8 December 2020 and 29 December 2020, pursuant to which, their structures have been demolished on 12 January 2021. Megha ___Page No. 6 of 25____ That Respondent No.3-Developer is paying huge amount of rent aggregating to Rs.90,000/- per month to Ankush and Dilip cumulatively. He would therefore submit that cancellation /withholding of NOC at such belated stage adversely affects the right of Respondent No.3 and puts it under a huge financial burden.
9. Per contra Dr. Warunjikar, the learned counsel appearing for Respondent No.4-Lawoo would strenuously oppose the petition. He would submit that the entire structure consisting of main room, verandah and toilet block is one composite structure, which is numbered as Room No.13. That the Developer deliberately and falsely divided the same into three parts with a view to extract undue benefit of incentive FSI under Regulation 33(12)(A) of the DCPR-
2034. That Lawoo has already lodged complaints at various levels including the police authorities about illegal grabbing of FSI by the Developer by artificially showing extra structures. He would submit that NOCs were issued with specific conditions that in the event of any litigation between the parties, the same would be cancelled. That Condition No.13 empowered MCGM to cancel the NOC without recording any reasons. Nonetheless, MCGM followed the procedure, heard the parties and then cancelled the NOCs.
10. Dr. Warunjikar would strongly rely upon consent terms filed in RAE & R No.721/1223/2000 before the Small Causes Court in which the parties, including Dilip and Ankush, agreed that except Room No.13, they did not have any claim against any other premises in C.B. Dhuruwadi. That it was specifically agreed that tenancy receipt would be solely in the name of Lawoo. That the consent Megha ___Page No. 7 of 25____ terms clearly indicate that Dilip and Ankush neither possessed nor have any claim in respect of any structure in C.B. Dhuruwadi. He would also rely upon reasoned order dated 3 September 2014 in pursuance of notice issued under Section 351 of the Mumbai Municipal Corporation Act, 1988, in which finding of fact is recorded that the structure, in which Dilip claims right, is not in Final Plot No.840 in respect of which the NOC is issued. That the same would indicate that the structure of Dilip is not on any boundary and cannot be treated as contravening structure. That Lawoo has sought to conduct enquiry into the scam committed by Respondent No.3- Developer.
11. Dr. Warunjikar would submit that though Lawoo is a lawful tenant in respect of the tenanted structure, he is left out in the entire redevelopment process, whereas Ankush and Dilip, who unauthorisedly converted portion of tenanted rooms into illegal structures, are getting the benefit of PAA, which are worth Rs. 2 crores each as per the market rate. He would submit that in the scam so committed by Respondent No.3-Developer, Ankush and Dilip are getting benefited, to the exclusion of Lawoo. That Respondent Nos.1&2 -Municipal Corporation has rightly taken note of the said scam and after granting of full opportunity of hearing to the parties, has rightly cancelled Dilip’s NOC and withheld Ankush’s NOC. That pendency of the Suit before the City Civil Court is an independent issue and the same has no bearing on cancellation of NOC by MCGM. He would pray for dismissal of both the Petitions. Megha ___Page No. 8 of 25____
12. I have also heard Mr. Sagar Patil, the learned counsel appearing for Respondent Nos.[1] and 2-MCGM., who would also oppose the Petitions and support the orders passed by the MCGM. He would submit that the Assistant Municipal Commissioner has fully complied with principles of natural justice and has cancelled /withheld NOC in accordance with Condition No.12 in the NOC, under which the same was to be cancelled in the event of any litigation.
13. Rival contentions of the parties now fall for my consideration.
14. The three brothers in the present case are fighting over their entitlements arising out of the tenanted structures. It appears that the landlord had filed Suit seeking eviction of father-Vitthal Narvekar being R.A.E. & R. Suit No.721/1223/2000. In that Suit the consent terms were filed on 30 September 2011. it appears that in the Suit there were initially five Defendants viz. Vitthal Narvekar, Ankush Vitthal Narvekar, Lawoo Narvekar, Lawoo’s two children - Smita Lawoo Narvekar and Ashish Lawoo Narvekar. After father’s death, Dilip Narvekar, Mrs. Shubhangi Sudhakar Murkar and Mrs. Shraddha Chandrahas Patil were brought on record as legal representatives of the father. In the Suit, consent terms were filed on 30 September 2011, which were signed by Lawoo Narvekar on the basis of Power of Attorney executed by Defendant Nos.1(a) to 1(d), 2, 4 and 5. It appears that the Suit was decreed, the appeal was dismissed and the order was confirmed by this Court. In the execution proceedings, the consent terms were filed, under which, Megha ___Page No. 9 of 25____ Plaintiff-landlords abandoned their rights to execute the Decree and recorded that the Decree was satisfied. The rent of the Suit premises were revised to Rs. 1,000/-. The Defendants therein agreed for redevelopment of the Suit premises in lieu of receipt of PAA. Plaintiffs-landlords accordingly relinquished their rights to seek possession of the suit premises.
15. Dr. Warunjikar has particularly relied upon Clause 9 of the consent terms, which records that except Room No.13, Defendants agreed not to have any claim against any other premises in C.B. Dhuruwadi. He also relies on a covenant in the consent terms, under which tenancy receipt was to be issued in the name of Lawoo Narvekar. Based on the consent terms it is contended by Lawoo that he alone is the tenant in respect of Room No.13 and Ankush and Dilip have absolutely no concern with any portion of
16. As observed above, Room No.13, apparently consist of three parts viz. main room, verandah and toilet block. Ankush claims rights in respect of the portion, which is described as verandah, whereas Dilip claims rights in respect of portion, which is described as toilet block. However, it appears that the so-called conversion of verandah and toilet block into residential premises took place before
1988. This is evident from landlord’s letters dated 12 June 1988 addressed to the Ward Officer, MCGM, under which allegation was made that Ankush Narvekar made unauthorised room in Dhuruwadi. There is a sketch plan to the said application dated 12 June 1988, which shows construction of unauthorised room immediately Megha ___Page No. 10 of 25____ adjoining Room No.13. Thus, so far as Ankush’s room, which Lawoo described as verandah is concerned, its construction is proved since 12 June 1988. It appears that Court Receiver had made a site visit on 20 July 2017, which shows that there were 18 rooms in Dhuruwadi, one of which was occupied by Ankush Narvekar and another one by Lawoo Narvekar. Ankush has produced electricity bill of the year 1998 in respect of electricity meter, separate and distinct from Room No.13 in possession of Lawoo. Thus, so far as Ankush is concerned, occupation of a separate structure by him before 01-01-2000 is clearly proved.
17. Coming to the structure of Dlilip, Lawoo alleges that Dilip is claiming rights in respect of toilet block, which is located at a slight distance from Room No.13 and verandah, which was converted into room by Ankush. The plan placed before me shows that Dilip’s structure is not in continuation with Room No.13 or Ankush’s room. According to Dr. Warunjikar all the toilet blocks for all tenanted rooms are situated in line and the toilet block in respect of Room No.13 is illegally occupied and converted into residence by Dilip Narvekar. MCGM has proceeded to revoke the NOC on the ground that the electricity bill produced by Dilip is in respect of Room No.13, which is in possession of Lawoo. Mr. Khandeparkar has submitted that electricity supply was being taken from common meter installed in respect of Room No.13.
18. Lawoo’s assertion that rights claimed by Dilip are in respect of bathroom/toilet structure are apparently belied by the Court Receiver’s report dated 20 July 2017 in which “one residence Megha ___Page No. 11 of 25____ room (L-Shape) at west side occupant -Mr. Dilip Vitthal Narvekar” is shown at FP No.751-752. Thus residence of Dilip in Room located in final plot Nos.751-752 is clearly proved. In his affidavit-in-reply filed in Ankush’s Petition (Writ Petition No.4339 of 2022) Lawoo has pleaded that “furthermore, Dilip illegally constructed a separate room in bathroom area. Now in these circumstances, the present Petitioner herein is claiming his right over the illegally constructed room, which is essentially a part of the Room No.13, Chawl No.14. In and around 1988, the landlord had made various complaints to the Respondent Nos.[1] and 2 seeking to take action and further to demolish the illegal structures built by the Petitioner and Dilip”. Thus, Lawoo has specifically admitted construction of separate rooms by Dilip and Ankush and possible existence since the year
1988. Here again existence of Dilip’s room is admitted since the year
1988.
19. Dr. Warunjikar, relying on the consent terms, has submitted that parties had agreed that no other right was being claimed in respect of any structure other than Room No.13. However, it is Lawoo’s own claim that all the three structures are part of Room No.13. In that sense, his reliance on consent terms are thus irrelevant.
20. In my view therefore, existence of three separate structures in occupation of Lawoo, Ankush and Dilip is proved.
21. Regulation 33(12)A of DCPR deals with redevelopment of contravening structures included in the Final Plot of TP scheme. It reads thus:- Megha ___Page No. 12 of 25____ 33(12)Redevelopment of contravening structures included in the Final Plot of a Town Planning (TP) Scheme and Removal and re-accommodation of tolerated structures falling in the alignment of road: (A) Redevelopment of contravening structures included in the Final Plot of a TP Scheme. For the redevelopment/reconstruction of contravening structures situated in TP Schemes, additional FSI over and above permissible FSI prescribed under these Regulations shall be admissible as under: *[(a) In the redevelopment scheme the number of tenants as recorded in the TP Scheme Book and residing in the contravening structures shall be accommodated by giving alternative accommodation in the redevelopment schemes in the same scheme or in the same administrative ward having carpet area of 27.88 sq. m. (300 Sq. ft.) each, irrespective of their original holding provided the overall FSI consumption the Final Plot shall not exceed 4.0.] (b) The Commercial users may be permitted in the redevelopment scheme to accommodate the existing commercial tenants, provided the commercial area in the redevelopment scheme shall not exceed the original commercial area. [(c) The tenants not listed in the records of TP Scheme but residing in contravening structure or such structures which have come up after TP Scheme is finalized, but are existing on date as notified by the GoM from time to time and where structures and inhabitants names are appeared in the Legislative Assembly Voter's List of year as notified by the GoM from time to time shall also be eligible for being included in the Redevelopment Scheme. Such tenants shall also be granted accommodation at the rate of 27.88 sq. m in case of residential/residential cum commercial occupants and in case commercial occupants, existing area or 20.90 sq. m., whichever is less provided the total FSI of the plot does not exceed 4.0.] Megha ___Page No. 13 of 25____ *[(d) BUA equivalent to the area held by the tenant or 27.88 sq.m. whichever is less, shall be handed over free of cost to the respective tenant by the Developer/Owner, while for the balance BUA, an amount as may be mutually agreed to between tenant and Owner/Developer shall be paid by the tenant. Condition to this effect shall be prescribed by the MCGM while approving redevelopment proposal.] (e) For the purpose of this redevelopment scheme, the owner/developer shall get further additional FSI to the extent of 50% of the area of the structures covered under Sr. No. (a), (b), (c) & (d) above provided further [(f) The Fungible compensatory area shall be permissible for rehab component for the tenants as recorded in the TP Scheme Book and residing in the contravening structures without charging premium and to the incentive BUA by charging premium.] Notes: For the purpose of this Regulations the contravening structures shall mean:
(i) Structure situated outside the original plot but included fully or partly within the final plot allotted to a person in the TP Scheme.
(ii) Structures which are partly included in the final plot allotted to a person and partly included in the roads sites reserved for public purpose/adjoining final plot.
(iii) Structures which are included in the TP Scheme area but situated outside the final plot allotted to a person and are affected by sites reserved for public purpose, provided the Planning Authority has no objection for rehabilitation of such structures.”
22. At the time of preparation of town planning scheme and assignment of Final Plot numbers, names of tenants and their structures are recorded in the TP Scheme Book. Those structures, which partially fall outside the final plot are treated as contravening structures and their names are also included in the TP Scheme Book. Megha ___Page No. 14 of 25____ Under DCPR 33(12) A(a), such persons whose names are reflected in TP Scheme Book are to be accommodated by giving alternative accommodation in the redevelopment scheme. However, in respect of those tenants whose names are not reflected in the records of TP Scheme, but who reside in contravening structures or such structures which have come up after TP Scheme is finalised, but are existing on the date as notified by the Government of Maharashtra from time to time and where their names appear in the Voter’s List, they are also considered eligible for being included in the redevelopment scheme.
23. Thus, to be eligible for being included in the redevelopment scheme it is necessary for a person, whose name is not included in the records of TP Scheme to prove that he is residing either in a contravening structure or in a structure in the final plot, which was in existence as on the datum line and whose name is included in the Voter’s List on the datum line. There is no dispute to the position that the datum line is declared by the Government of Maharashtra as 1 January 2000.
24. For the purpose of DCPR 33(12)(A), a contravening structure means a structure situated outside the original plot but included fully or partly within the Final Plot allotted to person in the TP Scheme.
25. For better understanding of the location of the three structures in which Lawoo, Ankush and Dilip claim rights following map is incorporated:- Megha ___Page No. 15 of 25____
26. Thus, Room No.13 is fully included in final plot No.840. Ankush’s structure though mostly included in final plot No.840, part of it juts out in final plot Nos.751-752. Therefore, Ankush’s structure is a contravening structure within the meaning of Regulation 33(12) (A) of DCPR, 2034. So far as Dilip’s structure is concerned, none of its part lies in final plot No.840 and it is mostly included in final plot Megha ___Page No. 16 of 25____ Nos.751-752. However, part of Dilip’s structure juts out in adjoining final plot No.753. Therefore, Dilip’s structure is also treated as contravening structure. Final plot Nos.751-752 is taken up for redevelopment and since Ankush and Dilip’s structures form part of said final plot Nos.751-752 as contravening structures MCGM has issued NOCs in respect of their structures treating them as contravening structures. The main Room No.13 of Lawoo at final plot No.840 is not taken up for redevelopment. No part of Lawoo’s structure juts out in final plot Nos.751-752 therefore Lawoo is not receiving any benefit out of redevelopment carried out at final plot Nos.751-752. However, as and when Final Plot No.840 is taken up for redevelopment, Lawoo would ofcourse be entitled for redevelopment benefits. In fact, it appears that a PAAA was executed in favour of Lawoo in the year 2011 in respect of Room No.13. At that time, it appears that the landlords themselves were in the process of carrying out redevelopment of Chawl No.14 and had agreed to grant PAA to Lawoo in respect of Room No.13. However, it appears that actual redevelopment of Chawl No.14 has not yet taken place. The heartburn of Lawoo is that his two brothers, despite holding unauthorised structures, are receiving benefits of redevelopment whereas Lawoo, despite being a tenant of an authorised structure in the form of Room No.13, is not receiving any benefit of redevelopment.
27. In my view above grouse of Lawoo is nothing but a one arising out of pure fortuitous circumstances. Merely because Final Plot No.840 in which Lawoo’s Room No.13 is situated is not taken up for Megha ___Page No. 17 of 25____ redevelopment, the same cannot and does not mean that Lawoo can insist that the two structures which are treated as contravening structures in respect of Final Plot Nos.751-752 should also not be taken up for redevelopment. In fact, Lawoo’s heartburn appears to be so grave that he has accused the Developer of artificially increasing the number of contravening structures so as to receive maximum benefit of incentive FSI. All these steps are taken by Lawoo only out of his heartburn where he is, at this juncture, unable to receive any benefit out of his tenancy rights in respect of Room No.13. His grievance also stems out of the fact that contravening structures receive higher incentive FSI on account of which Ankush and Dilip are going to receive PAA of large size (400 sq.ft. Carpet each), which may not be available when Room No.13 is taken up for development in future. This again is a purely fortuitous circumstance.
28. The grievance of Lawoo is thus simple. He is essentially aggrieved because (i) his brothers are receiving PAA before him and
(ii) that they might receive PAA of larger size than him. This is how
Lawoo feels being missed out in the redevelopment process that is shaping up at present. He possibly will have to reside in old tenanted structure (Room No, 13) located fully on FP No. 840, whereas his brothers, who, according to Lawoo, indulged in unauthorised activity of conversion of verandah and toilet block into residential rooms, are reaping the benefit of redevelopment on FP No. 751-752 before him. In my view, this anxiety of Lawoo is misplaced as the law confers benefit of PAA on occupiers of contravening structures, if their existence is proved on the datum line. Megha ___Page No. 18 of 25____
29. In my view therefore the feeling of being missed out in the mind of Lawoo could not have been a ground for MCGM to step in and cancel/withhold the NOCs granted in favour of Dilip and Ankush. I therefore find the impugned action of MCGM in cancelling /withholding the NOCs granted in favour of structures of Ankush and Dilip to be totally unsustainable. MCGM appears to have been pressurized on account of the source through which the complaints were received by it. Apparently Lawoo routed his complaints through office of Hon’ble Minister of Tourism, Environment Protection, Government of Maharashtra. In my view, once MCGM was satisfied that the structures of Ankush and Dilip were eligible to be treated as contravening structures as per DCPR 33(12)A, it should have steered clear of dispute amongst the brothers, particularly when the disputes stem out of pure anxiety of Lawoo about delay in not receiving his own PAA on account of nondevelopment of FP No. 840.
30. MCGM has thus erred in passing the impugned orders despite proof of existence of structures of Ankush and Dilip prior to the datum line of 1 January 2000.
31. While the controversy in the present petitions would have rested here, it appears that Lawoo has filed a Suit before the City Civil Court at Bombay, in which he has made the following prayers:- “a. That this Hon'ble Court may be pleased to direct the Defendant No.1 and 2 to issue NOC to the Megha ___Page No. 19 of 25____ Plaintiff thereby declaring that the suit premises is contravening structure by the Town Planning Scheme Bombay City No. IV, Mahim Division and the Plaintiff is entitled to all the benefits which arises out of the suit premises as contravening structure under the said T.P. Scheme in accordance with the D.C. Regulation, 2034; b. That this Hon'ble Court may be pleased to declare that the demolition of the part of the suit premises by the Defendant No. 3 is illegal, unlawful and without following due process of law and therefore Hon'ble Court may be pleased to order and direct the Defendant No. 3 to reconstruct the said demolished part of the suit premises at his own cost; c. in the alternative this Hon'ble court may permit the Plaintiff to reconstruct the demolish portion of the suit premises and recover the said amount spent by him for reconstructing the demolish portion of the suit premises d. That this Hon’ble Court may be please to declare that the agreement dated 8th December 2020 entered into by and between the Defendant No.3 and 4 and the agreement dated 29 December 2020 entered into by and between the Defendant No.3 and 5 is illegal, unlawful and void ab initio and not binding on the Plaintiff; e. That this Hon'ble Court may be pleased to direct the Defendant Nos. 1 and 2 to conduct an enquiry against Defendant No. 3 in respect of the NOC issued by the Defendant No. 2 as well as in respect of several illegalities and irregularities conducted by the Defendant No. 3 for sanctioning the proposal of the Defendant No. 3 in respect of Megha ___Page No. 20 of 25____ the redevelopment project of final plot no. 751- 752 T.P.S. IV of Mahim Division; f. Pending the hearing and final disposal of the above suit it is just and necessary that the Defendant No. 3 be restrained by an order and injunction from proceeding with the proposal sanctioned by the Defendant No. 1 and 2 on the basis of several illegalities and irregularities conducted by Defendant No. 3; g. Pending the hearing and final disposal of the above suit it is also just and necessary that a Commissioner/Architect may be appointed to identify and demarcate the location of the suit premises to ascertain the demolished portion of the suit premises and on such identification by the Commissioner/Architect the Defendant No. 3 be directed to reconstruct the said demolition portion of the suit premises at his own cost; h. That in the alternative the Plaintiff may be permitted to reconstruct the said identified demolished portion of the suit premises and recover the cost of the reconstruction from the Defendant No. 3; i. Pending the hearing and final disposal of the above suit the agreement dated 8th December 2020 and 29th December 2020 entered into by the Defendant No. 3 with Defendant No. 4 and 5 be directed to be deposited in this Hon'ble Court and the Defendant No. 3 to 5 be restrained by an order and injunction in any manner relying upon the said agreement for whatsoever reason; j. Pending the hearing and final disposal of the above suit the Defendant No. 3 be restrained by an order and injunction from carrying out any Megha ___Page No. 21 of 25____ construction on the said plot of land bearing final plot no. 751-752 T.P.S. IV of Mahim Division on the basis of the sanction obtained by Defendant No. 3 on relying on several fraudulent documents and by observing irregularities, illegalities for sanctioning the said proposal by the Defendant No. 1 and 2; k. Pending the hearing and final disposal of the above suit the Defendant No. 1 and 2 be directed by an order and injunction to issue stop work notice to the Defendant No. 3 in respect of the redevelopment carried out by Defendant No. 3 on the final plot 751- 752 T.P.S. IV of Mahim Division and the Defendant No.3 through himself, his agent and servant or any person claiming through him be restrained by an order and injunction from creating any third party rights in respect of the said larger property; l. Cost of the suit be provided for; m. Such other and further reliefs as the nature and circumstances of the case may required be granted.”
32. It appears that the Suit was filed after this Court declined to entertain Writ Petition No.1845 of 2021 filed by Lawoo and relegated him to file a Civil Suit. In his Suit, Lawoo has claimed rights in respect of the redevelopment undertaken by Respondent No.3-Developer by treating Room No.13 as contravening structure. The Suit premises are described in his Plaint to be Room No.13 situated between Plot No.840 and final plot No.751 and 752, TPS-4 of Mahim division. Thus, what Lawoo has pleaded in his Plaint is that three structures forming part of composite structure being Room Megha ___Page No. 22 of 25____ No.13, which is required to be treated as a contravening structure and that he alone must receive the benefit of redevelopment. Theoretically assuming that what Lawoo claims is correct, only one PAA can be received in respect of redevelopment undertaken in final plot Nos.751-752. As against this, if the NOCs granted by MCGM are restored, there would be two PAA out of redevelopment carried out in final plot Nos.751 and 752 and additionally there would be third PAA in respect of Room No.13 situated at final plot No.840. Thus what Lawoo seems to be doing is to cut off his own nose to spite the face. Therefore, it is in the interest of all the three brothers that first three PAAs are secured and thereafter inter se disputes amongst them are agitated before the Civil Court. Lawoo claims rights in respect of verandah and toilet block, which according to him are converted into residential rooms by Ankush and Dilip respectively. If he can prove this case, Lawoo may be entitled to PAA in respect of verandah and toilet block arising out of redevelopment of final plot Nos.751 and 752. Therefore, in fact it is in the interest of Lawoo that two PAAs are granted out of Final Plot Nos.751 and 752. It is for Lawoo to amend his plaint appropriately and claim rights arising out of contravening structures in the names of Ankush and Dilip and consequential rights in respect of the PAAs given in lieu of those two contravening structures by Respondent No.3 -Developer. For the purpose of present petitions, this Court is not concerned with who exactly is entitled to receive PAAs in respect of the said two structures which are treated as contravening structures by MCGM. The controversy in the present petition is restricted to the status of Megha ___Page No. 23 of 25____ two structures within the meaning of Regulation 33(12)(A) of DCPR-
2034.
33. In my view, MCGM has rightly treated the said two structures as contravening structures and had correctly issued NOCs dated 29 December 2020 and 3 December 2020. The conditions necessary for treatment of the said two structures as contravening structures within Regulation 33(12) (A) of DCPR-2034 were fully met by proving that structures existed prior to datum line and the occupants’ names are included in the voters list as on the datum line. Therefore, what is done by the present judgment is upholding the status of the said two structures as contravening structures. Who would be entitled to receive benefits out of such contravening structures is something, which Civil Court can decide as and when Lawoo claims his rights in respect of the said two structures. All contentions in that regard are left open to be agitated by Lawoo in appropriate forum.
34. Both the petitions accordingly succeed and I proceed to pass following order:-
(i) Impugned orders dated 14 May 2021 withholding NOC issued in respect of the structure occupied by Ankush and cancelling NOC issued in respect of structure of Dilip are set aside.
(ii) NOCs issued by MCGM on 3 December 2020 and 29 December 2020 qua the structures of Ankush and Dilip are restored. Megha ___Page No. 24 of 25____ (iii)This Court has not decided the issue of entitlement of Ankush or Dilip to claim rehabilitation benefits in respect of the two contravening structures and this Court has merely upheld the status of the two structures as contravening structures within the meaning of Regulation 33(12) (A) of DCPR -2034. If Lawoo claims any rights in respect of the said two structures, it would be open for him to agitate his claims in appropriate Civil Court and the grant of PAA in favour of Ankush and Dilip would be subject to outcome of such claim.
35. With the above observations both the Writ Petitions are allowed. Rule is made absolute in both the petitions. [SANDEEP V. MARNE, J.]
36. After the judgment is pronounced, the learned counsel appearing for Respondent No.4 requests for stay of the Judgment for a period of four weeks. The request is opposed by the learned counsel appearing for Petitioners in both the Petitions. Considering the reasons recorded in the Judgment, it would not be appropriate to stay the Judgment. Request for stay is accordingly rejected. [SANDEEP V. MARNE, J.] Megha ___Page No. 25 of 25____