Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4890 OF 2010 (Arising out of SLP [C] No.5007/2006)

Avinash Gaikwad & Ors. … Appellants

Vs.

State of Maharashtra & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Heard the parties.

2. The  appellants  challenge  the  order  dated  5.5.2005  by  which  

W.P.No.649/2005 filed by them was dismissed by the Bombay High Court.

3. A  property  known  as  Pimpalwadi  at  CS  No.370  Tatya  Gharpure  

Marg, Girgaon Division, Mumbai, originally belonged to Sir Harkishandas  

Trust. The said property consisting of several Chawls, Godowns and Sheds  

was  acquired  by  the  State  of  Maharashtra  under  section  41  of  the  

Maharashtra  Housing & Area  Development  Act,  1976 in  the  year  1988.

Thereafter, the State Government delivered possession of the said property  

to the Maharashtra Housing & Area Development Authority (‘MHADA’ for  

short)  on  31.1.1989  for  redevelopment  under  Urban  Renewal  Scheme.  

However,  due  to  certain  protracted  litigation  between  the  owners  of  the  

property and Pimpalwadi Bhadekaru Sangh formed by the occupants of the  

said property, MHADA could not take up the reconstruction. At that stage,  

the  said  Pimpalwadi  Bhadekaru  Sangh,  gave  a  proposal  to  MHADA  to  

permit  development  of  the  property  through  M/s.  Shreepati  Towers  -  a  

private developer (an AOP of respondents 5 to 12 described also as “R.R.  

Chaturvedi & Others of M/s. Shreepati Group”). The said property had 312  

residential tenements and 23 non-residential tenements. MHADA considered  

the  proposal  and  granted  a  no  objection  certificate  dated  27.2.2001  for  

redevelopment  of  the  said  property  in  favour  of  the  developer,  under  

Regulation  No.  33(7)  of  Development  Control  Regulations  for  Greater  

Mumbai, 1991 (for short ‘DC Regulations’).   

4. The said NOC was challenged by some occupants/tenants by filing  

WP  No.1299/2001  in  the  Bombay  High  Court.  The  said  petition  was  

allowed by order dated 30.4.2002 and the NOC dated 27.2.2001 granted by  

MHADA to the developer was set aside with a direction to MHADA to itself  

develop the property. The said decision was challenged by MHADA in C.A.  

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Nos.2046-47/2003 before this Court. The developers and some tenants also  

filed appeals. In those appeals, this Court by interim order dated 23.9.2002  

called upon the State Government and MHADA to state whether the State  

Government  would  direct  MHADA  to  take  up  and  proceed  with  the  

construction. In pursuance of it, the State Government and MHADA held  

deliberations  and  MHADA  prepared  a  scheme  in  consonance  with  the  

guidelines issued under the Urban Renewal Scheme by the Government read  

with  DC  Regulation  33(9).  Thereafter,  the  State  Government  filed  an  

affidavit  dated 15.2.2003 wherein  they  set  out  the  terms of  a  scheme as  

follows :

“Under the scheme, the property can be developed by MHADA utilizing  up  to  4  FSI.  The  contractor/developer  involved  in  the  scheme  shall  construct  335  tenements  for  the  existing  tenements  free  of  cost  to  MHADA. He shall get some areas for free sale which will be equivalent to  2.5  FSI  minus  the  FSI  required  for  construction  of  tenements  for  the  tenants.  He  shall  also  construct  additional  tenements  free  of  cost  for  MHADA to accommodate  tenants  in  the  Master  List  using  part  of  the  balance 1.5 FSI out the total 4 FSI available under the scheme. The said  scheme can be implemented by MHADA involving contractor/developer  who  has  consent  of  atleast  70%  of  the  occupants  of  the  property  in  question.

In nutshell since MHADA does not have adequate funds to construct the  houses  for  tenants,  Government  proposes  after  due  consultations  with  MHADA, to execute the project through developer, who within 2.5 F.S.I.  will construct free flats for 335 tenants. Remaining FSI out of 2.5 can be  utilized by developer for his free sale flats.  

MHADA  gets  4.00  F.S.I.  Therefore,  within  remaining  1.5  F.S.I,  it  is  proposed to construct 134 in the same premises, flats for those who are in  the transit  camp for which separate negotiations will  be made with the  developer.

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In view of the resources crunch faced both by Government and MHADA,  they both after discussion with each other have together decided the above  course  of  action,  for  which  Government  requests  the  approval  of  the  Supreme Court.

x x x x x

If  the above scheme is  approved by the Hon’ble Supreme Court,  State  Government  shall  issue  appropriate  guidelines  for  the  purpose  of  the  implementation  of  the  reconstruction  scheme  by  availing  FSI  in  accordance  with  the  provisions  of  DC  Regulations  33(9)  of  the  DC  Regulation 1991. The guidelines shall prescribe transparent purpose of the  implementation  of  the  reconstruction  scheme  by  availing  FSI  in  accordance  with  the  provisions  of  DC  Regulations  33(9)  of  the  DC  Regulation  1991.  The  guidelines  shall  prescribe  transparent  procedure  such as explaining the plans of the new building, municipal & other taxes  likely to be incurred by the occupants, formation and registration of the  Co-operative  Housing  Society,  area  to  be  utilized  for  the  purpose  of  rehabilitation and free sale etc. as directed by the Hon. High Court in its  judgment  MHADA  would  be  directed  to  complete  the  reconstruction  scheme within the four corners of the administrative guidelines issued by  the Government.”

This  Court  considered  the  said  scheme  and  by  order  dated  7.3.2003,  

recorded the acceptance thereto by MHADA and others also, barring some  

tenants, and accepted the said Scheme and disposed of the matter in terms of  

it.  

5. In pursuance of the order of this Court, the State Government issued  

guidelines  on 24.3.2003. The Mumbai  Building Repair  & Reconstruction  

Board (‘MBRRB’ for short,  the third respondent herein),  issued an NOC  

dated 23.5.2003 to the  Developer for redevelopment  of the said property  

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jointly by MHADA and the developer in pursuance of DC Regulation 33(9)  

read with  Regulation 33(7). Thereafter, MHADA entered into an agreement  

dated 30.6.2003 with the developers (respondents 5 to 12) in regard to the  

development of the said property. In pursuance of it,  the developer, after  

securing possession, has re-developed the property.  

6. During the course of the execution of the development project, five  

tenants  filed  Writ  Petition  Nos.108/2003  and  3096/2003  challenging  the  

subsequent NOC dated 23.5.2003 issued by third respondent in accordance  

with the order of this Court, approving the Scheme. The Bombay High Court  

by  its  judgment  dated  16.2.2004  dismissed  the  said  petitions  and  in  the  

course of the said judgment, observed as under :-

“The NOC dated 23.5.2003 granted by MHADA pursuant to the directions  given by the Supreme Court is now sought to be challenged primarily on  the ground that the DC Regulation 33(7) has no application to the said  property  as  DC  Regulation  33(7)  is  applicable  to  cessed  properties  whereas the said property is acquired property, and therefore the state has  committed  an  error  in  applying  DC Regulation  33(7)  and  the  NOC is  invalid…….DC Regulation 33(9) is applicable to properties acquired by  the  State/MHADA  whereas  DC  Regulation  33(7)  apply  to  cessed  properties. However, there is nothing in the provisions of DC Regulations  33(9) and 33(7) cannot be invoked simultaneously so that MHADA can  get additional tenements in order to house dishoused persons as per the  Master  List.  In  fact  both  provisions  were  incorporated  in  the  scheme  submitted  before  the  Supreme  Court.  The  scheme  approved  by  the  Supreme Court  specifically contemplate  that the land, though vested in  MHADA/State would be developed through the builder by invoking the  provisions of DC Regulation 33(9) read with D C Regulation 33(7) of the  D C Regulations.”

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7. Thereafter, the present appellants along with two others (all previous  

occupants  of  the  property)  filed  Writ  Petition  No.649/2005  seeking  the  

following, among others, reliefs : (a) declaration that the re-development of  

Pimpalwadi property was not being done in accordance with law and the DC  

Regulations,  and  for  a  direction  to  respondents  to  carry  out  the  re-

development by removing the defects pointed out in the writ petition; (b) a  

direction  to  the  developers  to  demolish  the  rehabilitation  tenements  

constructed so far as they were not conforming to the DC Regulations; (c)  

for  a  direction  to  MHADA  and  MBRRB  to  construct  the  rehabilitation  

tenements at their own cost as per DC Regulations. However, when the said  

petition came up for hearing before the High Court, only two contentions  

were urged, presumably because the other contentions were covered by the  

decision of this Court and subsequent  High Court order dated 16.2.2004.  

The first contention was that the area of each tenement to be constructed and  

delivered to the previous occupants should have, in addition to a carpet area  

of 225 sq. ft. in respect of the tenement, a balcony measuring 10% of the  

tenement area. The second contention was that the height of the tenements  

(height between roof and floor) should not be less than 2.9 M, instead of 2.7  

M adopted by the developer. The High Court by its order dated 5.5.2005  

disposed of the said writ petition. It held that the first contention could not  

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be accepted as the Scheme was under DC Regulations and it did not require  

construction of a balcony in addition to the tenement measuring 225 sq. ft.  

In regard to the second contention, the High Court recorded the submission  

of the developer that the height of the units will be increased to 2.9 M in the  

buildings which were yet to be constructed.  

8. The said judgment is challenged in this appeal by special leave by the  

appellants  who  were  occupants.  In  the  special  leave  petition,  several  

contentions have been raised. When it was pointed out by the court that only  

two contentions were urged before the High Court (out of which one was  

conceded by the  developer  before  the  High Court,  leaving one issue for  

decision), the learned counsel for the appellants submitted that the appellants  

were pressing only one contention regarding the area of the tenements to be  

delivered to the previous occupants. It was contended that they should be  

delivered  tenements  of  minimum  carpet  area  of  225  sq.ft.  as  permanent  

alternative  accommodation  with  a  balcony  in  addition,  which  is  of  a  

minimum area of  22.5 sq.ft.  (10% of the  tenement area).  Thus,  the  only  

question that arises for our consideration is whether the developer is bound  

to construct and deliver to the previous occupants, tenements with a balcony  

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measuring a balcony area of a minimum area of 22.5 sq.ft. in addition to the  

minimum carpet area of 225 sq.ft.  

9. The  NOC dated  23.5.2003  issued  by  MBRRB and the  Agreement  

dated 30.6.2003 between MHADA and the developer, require the developer  

to deliver to each occupant of the old building, a tenement with a carpet area  

equal to area occupied by him for residential purpose subject to minimum  

carpet  area  of  225  sq.ft.  They  do not  require  delivery  of  any  additional  

balcony area. We extract below Clause (3) of the operative portion of the  

agreement dated 30.6.2003 :

“The second party shall out of the 2.5 FSI, construct and hand over  to the first party, 312 tenements for the residential tenants and 23  tenements for the non residential tenants of the said property and  free sale tenements for the second party as per provisions under  Appendix III of DCR 33(7).”

 10. Not  finding  any  support  from the  agreement  dated  30.6.2003,  the  

appellants attempted to seek support for their claim for balcony (with an area  

of 10% of the area of the tenement) with reference to DC Regulation No.  

33(9) read with Regulation 35(2)(k) and Regulation 38(22).  It is submitted  

that  the  development  being  a  reconstruction  under  the  Urban  Renewal  

Scheme,  it  was  governed  by DC Regulation  33(9);  that  in  regard  to  the  

developments  of  cessed  buildings  under  DC  Regulation  33(7)  and  

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development of slums under DC Regulation 33(10), the area of 225 sq.ft.  

would  include  the  area  of  balcony  also,  having  regard  to  Clause(2)  of  

Appendix  III  and  Clause  1.2  of  Appendix  IV;  that  in  regard  to  the  

development  under  DC  Regulation  33(9)  under  the  Urban  Development  

Scheme, the balcony of  an area of 10% of the tenement  area)  has to be  

provided in addition to the area of the tenement.  

11. To find out whether there is any merit in the contention, we may now  

refer to the relevant Regulations:  

“33(7) Reconstruction or redevelopment of cessed buildings  in the Island City by Cooperative Housing Societies or of  old  buildings  belonging  to  the  Corporation  or  of  old  buildings  belonging  to  the  Police  Department  :-  For  reconstruction/redevelopment to be under taken by Cooperative  Housing  Societies  of  existing  tenants  or  by  Co-op.  Housing  Societies of landlords and/or occupiers of a cessed buildings of  ‘A’  category  in  Island City,  which  attracts  the  provisions  of  MHADA Act,  1976  and for  reconstruction/redevelopment  of  the buildings of Corporation and Department of Police, Police  Housing Corporation, Jail and Home Guard of Government of  Maharashtra, constructed prior to 1940, the Floor Space Index  shall  be  2.5  on  the  gross  plot  area  or  the  FSI  required  for  rehabilitation of existing tenants plus incentive FSI as specified  in Appendix-III whichever is more.

33(9)  Repairs  and reconstruction  of  cessed  buildings  and  Urban  Renewal  Scheme:- For  repairs  &  reconstruction  of  cessed buildings and Urban Renewal Scheme undertaken by the  Maharashtra Housing and Area Development Authority or the  Mumbai Housing and area Development Board or Corporation  

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in the Island City, the FSI shall be 4.00 or the FSI required for  rehabilitation of existing tenants / occupiers, whichever is more.

33(10)  Rehabilitation  of  slum  dwellers  through  owners/developers/co-operative  housing  societies:-  For  redevelopment of restructuring of censused slums or such slums  whose  structures  and inhabitants  whose names  appear  in  the  Legislative  Assembly  voters'  list  of  1985  by  the  owners/developers of the land on which such slums are located  or by Cooperative Housing Societies of such slum dwellers a  total  floor  space  index  of  upto  2.5  may  be  granted  in  accordance with schemes to be approved by special permission  of the Commissioner in each case. Each scheme shall provide  inter-alia  the  size  of  tenements  to  be  provided  to  the  slum  dwellers, the cost at which they are to be provided on the plot  and  additional  tenements  which  the  owner/developer  can  provide  to  accommodate/rehabilitate  slum  dwellers/project  affected persons from other areas etc. in accordance with the  guidelines laid down in the Regulations in Appendix IV.”

35. Floor Space Index Computation -

(1)  Floor Space Index/Built-up calculations  - The total area  of a plot shall  be reckoned in floor space index/built-up area  calculations  applicable  only  to  new  development  to  be  undertaken hereafter as under:- xxx xxx xxx  

(2) Exclusion from FSI computation - The following shall not  be counted towards FSI:-   xxx   xxx  xxx  (k)  Area  of  balconies as provided in sub-regulation (22) of Regulation 38.   

xxx   xxx  xxx

Sub-regulation (22) of Regulation 38 referred to in Regulation 35(2) is  

extracted below:  

38(22) --  Balcony –  In  any  residential  zone  (R-1)  and  residential zone with shop line (R-2), or in a purely residential  

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building in any other zone, balconies may be permitted free of  FSI at each floor, excluding the ground and terrace floors, of an  area not more than 10 per cent of the area of the floor from  which  such  balcony  projects  subject  to  the  following  conditions:         

x x x”

The relevant portions of Appendix III and Appendix IV which are referred  

in Regulation 33(7) and 33(10) are as under:  

APPENDIX III

Regulation  for  the  reconstruction  or  redevelopment  of  cessed buildings in the Island City by the Landlord and/or  Co-operative Housing Societies.  

[D.C. Regulation No. 33(7)]

1. (a) The new building may be permitted to be constructed in  pursuance of an irrevocable written consent by not less than 70  per cent of the occupiers of the old building.

(b)  All  the  occupants  of  the  old  building  shall  be  re- accommodated in the redeveloped building.

2. Each occupant shall be rehabilitated and given the carpet area  occupied  by  him  for  residential  purpose  in  the  old  building  subject to the minimum carpet area of 20.90 sq.mt. (225 sq.ft.)  and/or  maximum  carpet  area  upto  70  sq.mt.  (753  sq.ft.)  as  provided in the MHAD Act, 1976. In case of non-residential  occupier the area to be given in the reconstructed building will  be equivalent to the area occupied in the old building.

x x x x x

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APPENDIX IV [Regulation No.33(10)]

1.  Applicability  of  the  provisions  of  this  Appendix  :  The  following provisions will apply for redevelopment/construction  of  accommodation  for  hutment/pavement-dwellers  through  owners/developers/co-operative  housing  societies  of  hutment/pavementdwellers/public authorities such as MHADA,  MIDC,  MMRDA  etc./Non-Governmental  Organisations  anywhere within the limits of Brihan Mumbai. …….

1. Right of the hutment dwellers:

1.1  Hutment-dwellers,  in  the  slum  or  on  the  pavement,  eligible  in  accordance  with  the  provisions  of  Development  Control Regulation 33(10) shall, in exchange for their structure,  be given free of cost a residential tenement having a carpet area  of 20.90 sq. m. (225 sq.ft.) including balcony, bath and water  closet, but excluding common areas.

1.2  Even those structures having residential areas more than  20.90 sq.m will be eligible only for 20.90 sq.m of carpet area.  Carpet  area  shall  mean  exclusive  of  all  areas  under  walls  including  partition  walls  if  any  in  the  tenement.  Only  20.90  sq.mt. carpet area shall be given and if proposal contains more  area, it shall not be taken up for consideration.

x x x x x ”

12. The grievance of the appellants in the writ petition was that tenements  

constructed were of an area less than the required carpet area of 225 sq.ft,  

and that was a violation of the DC Regulations. The writ petition did not  

raise any contention about any requirement of providing a balcony of 10%  

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of the area of the tenement.  When the agreement between MHADA and  

developer did not require construction of a balcony and when the appellants  

had  not  even  alleged  in  the  petition  that  balcony  was  required  to  be  

constructed,  we  fail  to  understand  that  how the  appellants  could  raise  a  

contention during arguments before the High Court that they were entitled to  

a balcony in the tenement whose measurement should be of 10% of the area  

of the tenement. It is not disputed that the inspection report showed that the  

extent of tenement was not less than 225 sq.ft. and the appellants had agreed  

to take the tenements subject to the result of the case.  

13.  Let  us  consider  whether  Regulation  35(2)(k)  and  38(22)  are  of  any  

assistance  to  appellants.  Regulation  38(22)  relates  to  ‘Balconies’  and  

provides that in any residential zone, balconies may be permitted free of FSI  

at each floor (excluding ground and terrace floors) of an area not more than  

10% of the area of the floor from which such balcony projects. Regulation  

35 deals with Floor Space Index computation and Note (ii) thereof relates to  

exclusion from FSI computation. One of the items to be excluded from the  

FSI computation vide entry (k) is the area of balconies which are provided  

under  Regulation  38(22).  The  effect  of  Regulation  35  (2)(k)  read  with  

Regulation  38(22)  is  that  if  a  balcony  is  constructed  as  per  Regulation  

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38(22)  it  will  be  excluded  for  the  purpose  of  calculating  FSI.  These  

Regulations  by  no  stretch  of  imagination  can  be  construed  as  casting  a  

liability upon the developer reconstructing/developing a property under the  

Urban Renewal Scheme to construct a balcony (whose extent is 10% of the  

area  of  the  tenement)  when constructing and delivering tenements to  the  

previous occupants of the demolished building. The area to be given to such  

occupants is clearly specified in Regulation 33(7) read with Appendix III  

(Clause 2), the NOC and the agreement. An old occupant is entitled to a  

tenement only under Regulation 33(7) and not Regulation 33(9). Regulation  

33(9) was invoked only to get additional FSI of 1.5 by MHADA. We may at  

this juncture note that the question whether Regulation 33(9) will apply as  

contended by the appellant or Regulation 33(7) read with Regulation 33(9)  

will apply, as contended by the respondents, is academic and not relevant for  

the  purpose  of  ascertaining  whether  the  appellants  as  old  occupants  are  

entitled to any additional balcony area.  

13. Under the Scheme approved by this Court, MHADA which did not  

have  adequate  funds for  constructing  tenements,  proposed to  execute  the  

project through a developer. The arrangement as per the Scheme was that the  

benefit of Regulation 33(9) was to be taken only for utilizing the higher FSI  

floor  and  the  development  by  the  developer  will  be  governed  by  DC  

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Regulation 33(7) read with Appendix III. Appendix III requires that each  

occupant to be rehabilitated should be given a minimum carpet area of 225  

sq.ft.  As  per  the  Scheme  approved,  the  contractor  had  to  construct  335  

tenements for the rehabilitation of the existing occupants free of cost and  

each  tenement  was  to  be  of  an  area  of  225  sq.ft.  The  Scheme  did  not  

contemplate construction and delivery of any balcony in addition to the 225  

sq.ft.  carpet  area.  In  so  far  as  the  area  to  be  delivered  to  the  previous  

occupants, the extent is clear, that is 225 sq.ft. without any balcony.  Further,  

the assumption of the appellants that if the matter had been governed by  

Regulation  33(9),  the  tenement measurement  would have been 225 sq.ft.  

plus  a balcony of  a minimum measurement  of  10% of the 22.5 sq.ft.,  is  

baseless as Regulation 33(9) does not require it. Be that as it may.

14. We therefore find no merit in this appeal and the same is dismissed.

……………………….J. (R V Raveendran)

New Delhi; ………………………J. July 5, 2010. (P Sathasivam)            

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