Bombay High Court
Parijat Co-Operative Housing Society … vs State Of Maharashtra Th. Principal … on 2 July, 2026
Author: M. S. Karnik
Bench: M. S. Karnik, S. M. Modak
CNR No : HCBM020196992026
2026:BHC-OS:14630-DB
Bhogale 1.wpl-16257-2026 & ors.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.16257 OF 2026
M.I.G. Adarsh Nagar Co-operative
Housing Society Limited
A co-operative housing society
registered under the provisions of
Maharashtra Co-operative Societies,
1960 through its Secretary
Having its address at Pump House,
M.I.G. Adarsh Nagar, Worli,
Mumbai - 400030 ... Petitioner
Versus
1. The State of Maharashtra
Through the Department of Housing
Represented by the Office of the
Government Pleader, Original Side
Bombay High Court
2. The Maharashtra Housing and
Area Development Authority
Having address at Gruhnirman
Bhavan, Kala Nagar, Bandra [E],
Mumbai - 400 051
3. The Mumbai Housing and Area
Development Board, through its
Vice Chairman and Chief Officer
Having address at Gruhnirman
Bhavan, Kala Nagar, Bandra [E],
Mumbai - 400 051.
4. The Resident Executive Engineer,
Mumbai Circle, Maharashtra Area
Development Board
Having address at Gruhnirman Bhavan,
1
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Kala Nagar, Bandra [E]
Mumbai - 400 051
5. The Government of Maharashtra
through the Department of Urban Development,
Having its address at 4th Floor, Main Building,
Mantralaya, Mumbai - 400 032
6. The Municipal Corporation of Greater Mumbai
through its Commissioner
Having its head office at
Mahanagarpalika Marg,
Mumbai - 400 001 .... Respondents
WITH
WRIT PETITION (L) NO.15197 OF 2026
1. Bandra (H.I.G.) Suman Co-operative
Housing Society Limited,
a Co-operative Housing Society registered
under the provisions of the Maharashtra
Co-operative Housing Societies Act, 1960,
bearing registration no.
BOM/W-H-WEST/HCG[OH]/4573
dated 27th October, 1989, having its address
at: Building No.25, Krishna Chandra Marg,
Bandra Reclamation, Bandra (West),
Mumbai - 400 050
2. Bandra (H.I.G.) Saptarshi Co-operative
Housing Society Limited,
a Co-operative Housing Society
registered under the provisions of the
Maharashtra Co-operative Housing
Societies Act, 1960, bearing registration
no.BOM/[W-H-WEST]/HCG[OH]/4615/89-90
dated 8th February, 1990, having its address at:
2
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Building No.26, Krishna Chandra Marg,
Bandra Reclamation, Bandra (West),
Mumbai - 400 050
3. Bandra (H.I.G.) Sagar Kiran Co-operative Housing
Society Limited, a Co-operative Housing Society
registered under the provisions of the Maharashtra
Co-operative Housing Societies Act, 1960, bearing
registration no.BOM/[W-H/W]/HCG[OH]/4342/
88-89 dated 26th May, 1989, having its address at:
Building No.29, Krishna Chandra Marg,
Bandra Reclamation, Bandra (West),
Mumbai - 400 050 ... Petitioners
Versus
1. The State of Maharashtra,
Through the Additional Chief Secretary/
Principal Secretary,
Government of Maharashtra,
Department of Housing, having office
at: Mantralaya, Mumbai - 400032
Email : [email protected]
2. The Maharashtra Housing and Area
Development Authority, through its
Vice President and Chief Executive Officer,
having office at: MHADA, Griha nirman Bhavan
Kalanagar, Bandra (East),
Mumbai - 400 051
Email : [email protected]
3. The Mumbai Housing and Area
Development Board,
Through its Vice Chairman & Chief Officer,
having office at : Griha Nirman Bhavan,
Bandra (East), Mumbai - 400051
Email : [email protected]
[email protected]
3
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4. The Government of Maharashtra,
Department of Urban Development through
its Principal Secretary having office
at: 4th Floor, Main Building, Mantralaya,
Mumbai - 400032
Email : [email protected]
5. The Municipal Corporation of Greater Mumbai,
through its Commissioner, having office
at: Brihanmumbai Municipal Corporation,
Head Quarter, Mahanagarpalika Marg,
Mumbai - 400 001
Email : [email protected]
6. Bandra (H.I.G.) Anand Sagar Co-operative
Housing Society Limited,
a Co-operative Housing Society
registered under the provisions of the
Maharashtra Co-operative Housing
Societies Act, 1960, bearing registration
no.BOM/[W-H-W]/HCG[OH]/4343/88-89
dated 26th May, 1989, having its address at :
Building No.24, Krishna Chandra Marg,
Bandra Reclamation
Bandra (West), Mumbai - 400 050
7. Bandra (H.I.G.) Sagar Sangam Co-operative
Housing Society Limited,
a Co-operative Housing Society
registered under the provisions of the
Maharashtra Co-operative Housing Societies
Act, 1960, bearing registration
no.BOM/[W-H-W]/HCG[OH]/4341/88-89
dated 26th May, 1989, having its address at:
Building Nos.27 and 28, Krishna Chandra Marg,
Bandra Reclamation, Bandra (West),
Mumbai - 400 050.
4
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8. Bandra (H.I.G.) Agasti Co-operative
Housing Society Limited,
a Co-operative Housing Society registered
under the provisions of the Maharashtra
Co-operative Housing Societies Act, 1960, bearing
registration no.BOM/[W-H-W]/HCG[OH]/
3988/88-89 dated 31st January, 1989, having
its address at : Building No.30,
Krishna Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050.
9. Mr. Satish Chaudhari,
Chairman of Bandra (H.I.G.) Anand Sagar
Co-operative Housing Society Limited,
A Co-operative Housing Society
registered under the provisions of the
Maharashtra Co-operative Housing Societies Act,
1960, bearing registration no.BOM/[W-H-W]/
HCG[OH]/4343/88-89 dated 26th May, 1989,
having its address at: Building No.24,
Krishna Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050
10. Mr. Ramesh Jain,
Chairman of Bandra (H.I.G.) Sagar Sangam
Co-operative Housing Society Limited,
A Co-operative Housing Society registered
under the provisions of the Maharashtra
Co-operative Housing Societies Act, 1960,
bearing registration no.BOM/[W-H-W]/
HCG[OH]/4341/88-89 dated 26th May, 1989,
having its address at: Building Nos.27 and 28,
Krishna Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050
11. Mr. Shrikrishna Dwaram,
Chairman of Bandra (H.I.G.) Agasti Co-operative
5
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Housing Society Limited, A co-operative Housing
Society registered under the provisions of the
Maharashtra Co-operative Housing Societies Act,
1960, bearing registration no. BOM/[W-H-W]/
HCG[OH]/3988/88-89 dated 31st January, 1989,
having its address at: Building No.30,
Krishna Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050. .... Respondents
WITH
WRIT PETITION (L) NO.15631 OF 2026
1. Kamalpushpa Co-operative Housing Society Ltd.,
a co-operative housing society registered under
the Maharashtra co-operative Societies' Act, 1960
through its Hon. Secretary Mr. Satish Prannath Ganju,
having office at Kamalpushpa B Building,
Ground Floor, Plot No.6, Reclamation,
Bandra (W), Mumbai 400 050.
2. Satish Prannath Ganju, Age - 70
a Member and the Honorary Secretary
of Kamalpushpa Co-operative Housing
Society Ltd., residing at Flat No.B-64,
Kamalpushpa, Plot No.6, Reclamation,
Bandra (W), Mumbai 400 050. ... Petitioners
Versus
1. The Maharashtra Housing and Area
Development Authority, an authority
established and constituted under the
Maharashtra Housing and Area
Development Act, 1976, through its
Vice President and Chief Executive
Officer, having Office at Grihanirman
Bhavan, 4th Floor, Bandra (East),
Mumbai - 400 051.
6
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2. The Mumbai Housing and Area
Development Board, a Regional
Board constituted under the MHAD
Act, 1976, through its Chief Officer
having his office at Grihanirman
Bhavan, 3rd Floor, Bandra (East),
Mumbai - 400 051.
3. The Executive Engineer, Bandra
Division, Mumbai Housing and Area
Development Board, having his
office at Room No.321, Grihanirman
Bhavan, 3rd Floor, Bandra (East),
Mumbai - 400 051.
4. The Executive Engineer,
(Special Project Desk), Mumbai
Housing and Area Development
Board, having office at Grihanirman
Bhavan, 5th Floor, Bandra (East),
Mumbai - 400 051.
5. The Deputy Registrar,
Coopeative Societies, Mumbai
Western Suburbs, Mumbai Housing
and Area Development Board,
having office at Room No.211,
Grihanirman Bhavan, 1st Floor,
Bandra (East), Mumbai - 400 051.
6. State of Maharashtra
through the Principal Secretary,
Housing Department, having office at
Mantralaya, Mumbai 400 032. .... Respondents
7
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WITH
WRIT PETITION (L) NO.15680 OF 2026
1. Bandra (H.I.G.) Anand Sagar Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra Co-operative
Societies Act, 1960 and having its
registered office address
at : 'Anand Sagar' : 24, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
through its Chairman,
Mrs. Nandajanani Swaminathan and
Hon. Secretary
Mrs. Anju Tekchandaney ... Petitioner
Versus
1. The State of Maharashtra
through the Principal Secretary,
Ministry of Housing, Government of
Maharashtra and having its
office address at Mantralaya,
Dr. Madam Cama Road,
Nariman Point, Mumbai - 400032.
2. Maharashtra Housing and Area
Development Authority,
through its Chief Executive Officer/
Vice President having its office
address at 4th Floor, Griha Nirman Bhavan,
Bandra East, Mumbai - 400 051.
3. High Power Committee (HPC)
constituted under the GR dated
25th April, 2025 consisting of
i. Upper Chief Secretary/
8
Bhogale 1.wpl-16257-2026 & ors.doc
Principal Secretary
Housing Department
(Chairman)
ii. Vice Chairman, Executive Office,
MHADA (Member)
iii. Additional Commissioner
BMC (Member)
iv. Joint Secretary/Deputy Secretary
in Housing Department (Member)
v. Chief Officer MHADB
(Member Secretary)
Griha Nirman Bhavan, Bandra (East),
Mumbai - 400 052
4. Mumbai Housing and Area Development
Board, through its Chief Officer having its
office address at 3rd Floor, Griha Nirman
Bhavan, Bandra (East),
Mumbai - 400 051.
5. Bandra (H.I.G.) Phase III
Co-operative Housing Societies
Union Limited
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 27-28, Sagar Sangam
Co-operative Housing Society Limited,
Krishna Chandra Marg,
Bandra Reclamation, Bandra (West),
Mumbai - 400 050
6. Bandra (H.I.G.) Sagar Sangam Co-operative
Housing Society Limited, being a Society
9
Bhogale 1.wpl-16257-2026 & ors.doc
registered under the provisions of the
Maharashtra Co-operative Societies Act, 1960
and having its registered office address
at : 'Sagar Sangam' : 27-28, Krishna
Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050
7. Bandra (H.I.G.) Suman Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Suman' : 25, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
8. Bandra (H.I.G.) Saptarshi Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Suman' : 26, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
9. Bandra (H.I.G.) Sagar Kiran Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Sagar Kiran' : 29, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
10
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10. Bandra (H.I.G.) Agasti Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Agasti' : 30, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050 .... Respondents
WITH
WRIT PETITION NO.2642 OF 2026
Bandra (H.I.G.) Sagar Sangam Co-operative
Housing Society Limited, being a Society
registered under the provisions of the
Maharashtra Co-operative Societies Act, 1960
and having its registered office address
at : 'Sagar Sangam' : 27-28, Krishna
Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050
through its Chairman, Mr. Ramesh Jain
and Hon. Secretary, Mr. Bhavin Muni ... Petitioner
Versus
1. The State of Maharashtra
through the Principal Secretary,
Ministry of Housing,
Government of Maharashtra
and having its office address at
Mantralaya, Dr. Madam Cama Road,
Nariman Point, Mumbai - 400 032.
2. Maharashtra Housing and Area
Development Authority,
through its Chief Executive Officer/
Vice President having its office
11
Bhogale 1.wpl-16257-2026 & ors.doc
address at 4th Floor, Griha Nirman Bhavan,
Bandra East, Mumbai - 400 051
3. High Power Committee (HPC)
constituted under the GR dated
25th April, 2025 consisting of
i. Upper Chief Secretary/
Principal Secretary
Housing Department
(Chairman)
ii. Vice Chairman, Executive Office,
MHADA (Member)
iii. Additional Commissioner
BMC (Member)
iv. Joint Secretary/Deputy Secretary
in Housing Department (Member)
v. Chief Officer MHADB
(Member Secretary)
Griha Nirman Bhavan, Bandra (East),
Mumbai - 400 052
4. Mumbai Housing and Area Development
Board, through its Chief Officer having its
office address at 3rd Floor, Griha Nirman
Bhavan, Bandra (East),
Mumbai - 400 051.
5. Bandra (H.I.G.) Phase III
Co-operative Housing Societies
Union Limited
being a Society registered under the
provisions of the Maharashtra
12
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Co-operative Societies Act, 1960 and
having its registered office address
at : 27-28, Sagar Sangam
Co-operative Housing Society Limited,
Krishna Chandra Marg,
Bandra Reclamation, Bandra (West),
Mumbai - 400 050
6. Bandra (H.I.G.) Anand Sagar Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra Co-operative
Societies Act, 1960 and having its
registered office address
at : 'Anand Sagar' : 24, Krishna Chandra Marg,
Bandra Reclamation
Bandra (West), Mumbai - 400 050
7. Bandra (H.I.G.) Suman Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Suman' : 25, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
8. Bandra (H.I.G.) Saptarshi Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Suman' : 26, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
13
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9. Bandra (H.I.G.) Sagar Kiran Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Sagar Kiran' : 29, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
10. Bandra (H.I.G.) Agasti Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Agasti' : 30, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050 .... Respondents
WITH
WRIT PETITION (L) NO.15773 OF 2026
1. Bandra (H.I.G.) Agasti Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Agasti' : 30, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
through its Chairman,
Mr. Srikrishna Dwaram and
Hon. Secretary
Mr. Arindham Chakrabarti ... Petitioner
Versus
14
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1. The State of Maharashtra
through the Principal Secretary,
Ministry of Housing, Government of
Maharashtra and having its office
address at Mantralaya, Dr. Madam
Cama Road, Nariman Point,
Mumbai - 400 032.
2. Maharashtra Housing and Area
Development Authority,
through its Chief Executive Officer/
Vice President having its office
address at 4th Floor, Griha Nirman
Bhavan, Bandra (East),
Mumbai- 400 051.
3. Mumbai Housing and Area
Development Board,
through its Chief Officer having its
office address at 3rd Floor, Griha Nirman
Bhavan, Bandra (East),
Mumbai- 400 051.
4. High Power Committee (HPC)
constituted under the GR dated
25th April, 2025 consisting of
i. Upper Chief Secretary/
Principal Secretary
Housing Department
(Chairman)
ii. Vice Chairman, Executive Office,
MHADA (Member)
iii. Additional Commissioner
BMC (Member)
15
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iv. Joint Secretary/Deputy Secretary
in Housing Department (Member)
v. Chief Officer MHADB
(Member Secretary)
Griha Nirman Bhavan, Bandra (East),
Mumbai - 400 052
5. Bandra (H.I.G.) Phase III
Co-operative Housing Societies
Union Limited
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 27-28, Sagar Sangam
Co-operative Housing Society
Limited, Krishna Chandra Marg,
Bandra Reclamation, Bandra (West),
Mumbai - 400 050
6. Bandra (H.I.G.) Anand Sagar
Co-operative Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Anand Sagar' : 24, Krishna
Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050
7. Bandra (H.I.G.) Suman Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
16
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at : 'Suman' : 25, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
8. Bandra (H.I.G.) Saptarshi Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Suman' : 26, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050
9. Bandra (H.I.G.) Sagar Sangam Co-operative
Housing Society Limited, being a Society
registered under the provisions of the
Maharashtra Co-operative Societies Act, 1960
and having its registered office address
at : 'Sagar Sangam' : 27-28, Krishna
Chandra Marg, Bandra Reclamation,
Bandra (West), Mumbai - 400 050
10. Bandra (H.I.G.) Sagar Kiran Co-operative
Housing Society Limited,
being a Society registered under the
provisions of the Maharashtra
Co-operative Societies Act, 1960 and
having its registered office address
at : 'Sagar Kiran' : 29, Krishna Chandra Marg,
Bandra Reclamation,
Bandra (West), Mumbai - 400 050 .... Respondents
WITH
WRIT PETITION (L) NO.40180 OF 2025
17
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1. Worli Smruti Co-operative
Housing Society Ltd.
Having office at Building No.21,
Adarsh Nagar, Prabhadevi,
Worli, Mumbai 400 030
2. Kashiram Vasant Savant : Age-57
Being the Secretary of
Worli Smruti Co-operative
Housing Society Ltd.,
Residing at Building No.21,
Adarsh Nagar, Prabhadevi,
Worli, Mumbai - 400 030 ... Petitioners
Versus
1. The State of Maharashtra
through Principal Secretary to the
Housing Department, having office at
Madam Cama Road, Mantralaya,
Mumbai - 400 032
2. Maharashtra Housing & Area
Development Authority (MHADA),
through its CEO Having office at
Gruh Nirman Bhavan, Bandra (East),
Mumbai - 400 051
3. Mumbai Housing & Area
Development Board, Having office
at Gruh Nirman Bhavan, Bandra East,
Mumbai - 400 051.
4. The Resident Executive Engineer,
M.H. & A.D. Board, having office at
Gruh Nirman Bhavan, Bandra East,
Mumbai - 400 051 .... Respondents
18
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WITH
WRIT PETITION (L) NO. 17013 OF 2026
Tierra LandPro LLP
formerly known as Yaksh Trading
Company Pvt. Ltd., a limited
liability partnership through its
designated partner, Rasik Behari Gupta,
having its registered office at
A/49-1390, MIG Adarsh Nagar
Co-operative Housing Society Ltd.,
Adarsh Nagar, Worli, Mumbai - 400 030 ... Petitioner
Versus
1. State of Maharashtra
Through its Principal Secretary,
Housing Department,
having Office at 5th floor, Mantralaya,
Madam Cama Road, Mumbai - 400 032
2. Mumbai Housing and Area Development
Board, a regional unit of MHADA having
its office at Griha Nirman Bhavan,
Kalanagar, Bandra (East),
Mumbai - 400 051.
3. Executive Engineer, (Special
Project Cell) Mumbai Housing & Area
Development Board,
Mumbai having its office at
Griha Nirman Bhavan, Kalanagar,
Bandra (East), Mumbai 400 051
4. Maharashtra Housing and Area
Development Authority
A statutory corporation duly
constituted under the Maharashtra
19
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Housing and Area Development
Act, 1976 having its office at Griha
Nirman Bhavan, Kalanagar,
Bandra (East), Mumbai 400 051
5. Municipal Corporation of
Greater Bombay, a statutory
body established under the
Mumbai Municipal Corporation Act, 1888
having its head office
at Annex Building, Municipal
Head Office, 6th floor, Mahapalika Marg,
Fort, Mumbai 400 001
6. MIG Adarsh Nagar Co-operative
Housing Society Ltd.,
a society registered under
The Maharashtra Co-operative
Societies Act, 1960 having its
registered office at M.I.G. Adarsh
Nagar, Worli, Mumbai 400 030
7. Suyoga Co-operative Housing
Society Ltd., a society registered
under the Maharashtra Co-operative
Societies Act, 1960
having its registered office at
M.I.G. Adarsh Nagar, Worli,
Mumbai 400 025 .... Respondents
WITH
WRIT PETITION (L) NO. 17209 OF 2026
B-Adarsh Nagar Co. Operative Housing Society Ltd.
A society registered under the Maharashtra
Co-operative Societies Act, 1960,
20
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bearing Registration No.BOM/
W-GS/HSG (TC) 9735 of 1997-98,
having its registered office at :
10/153, Adarsh Nagar, Prabhadevi,
Mumbai - 400 030. Through its
authorized signatories,
Mr. Vasudev Lalwani (Chairman)
& Mr. Venugopal Nair (Hon. Secretary) ... Petitioner
Versus
1. The State of Maharashtra
Through the Additional Chief Secretary,
Housing Department,
Mantralaya, Madam Cama Marg,
Mumbai - 400 032.
2. Mumbai Housing and Area Development
Authority (MHADA),
a statutory corporation
constituted under the Maharashtra
Housing and Area Development Act, 1976,
Through its Vice President & Chief Executive Officer,
Grihanirman Bhavan, Kalanagar,
Bandra (East), Mumbai - 400 051.
3. Brihanmumbai Municipal Corporation,
Through its Municipal Commissioner,
Mahapalika Marg, Fort, Mumbai - 400 001 .... Respondents
WITH
WRIT PETITION (L) NO. 19699 OF 2026
Parijat Co-operative Housing Society Ltd.,
a co-operative housing society
registered under the Maharashtra Co-operative
Societies' Act, 1960 Having
address: Plot No.5, Reclamation,
Bandra (W), Mumbai 400 050.
21
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Through its Hon. Secretary
Mr. Ajay Deshpande ... Petitioner
Versus
1. State of Maharashtra
through the Principal Secretary,
Urban Development Department,
having office at Mantralaya,
Mumbai - 400 032.
2. The Maharashtra Housing and Area
Development Authority, an authority
established and constituted under the
Maharashtra Housing and Area
Development Act, 1976, through its
Vice President and Chief Executive
Officer, having Office at Grihanirman
Bhavan, 4th Floor, Bandra (East),
Mumbai - 400051.
3. The Mumbai Housing and Area
Development Board, a Regional
Board constituted under the MHAD
Act, 1976, through its Chief Officer
having his office at Grihanirman
Bhavan, 3rd Floor, Bandra (East),
Mumbai - 400 051.
4. The Executive Engineer, Bandra
Division, Mumbai Housing and Area
Development Board, having his office
at Room No.321, Grihanirman Bhavan,
3rd Floor, Bandra (East),
Mumbai - 400 051.
5. The Executive Engineer,
(Special Project Desk), Mumbai
22
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Housing and Area Development
Board, having office at Grihanirman
Bhavan, 5th Floor, Bandra (East),
Mumbai - 400 051. .... Respondents
****
Mr. Y. S. Jahagirdar, Senior Advocate a/w. Mr. Shailendra
Kanetkar a/w. Ms. Deeksha Jani, Mr. Niket Jani and Mr. Karan G.
Fafat i/b Jani & Parikh for the Petitioner in WPL/15631/2026.
Mr. Girish Godbole, Senior Advocate a/w. Mr. Bhushan Deshmukh,
Mr. Abhay Jadeja, Ms. Vanshika Shroff and Ms. Komal Patel i/b
Jadeja's & Partners for the Petitioner in WPL/17013/2026.
Mr. Zal Andhyarujina, Senior Advocate a/w. Mr. Nilesh Modi, Ms.
Drishti Modi, Mr. Karan Bhide and Mr. Ashish Rebello i/b M/s.
Rustamji & Ginwala for the Petitioner in WP/2642/2026.
Mr. Vishwajeet Sawant, Senior Advocate a/w. Mr. Nilesh Modi, Ms.
Drishti Modi, Mr. Ashish Rebello and Mr. Raoul Sawant i/b M/s.
Rustamji & Ginwala for the Petitioner in WPL/15773/2026.
Mr. Surel Shah, Senior Advocate a/w. Mrs. Jai Kanade, Mr. Maulik
P. Vora i/b Pramodkumar & Co. for the Petitioners in
WPL/40180/2025.
Mr. Praveen Samdani, Senior Advocate a/w Mr. Anshuman Jagtap
a/w. Ms. Vyoma Mehta, Mr. Rushit Chhadwa and Ms. Chandrama
Raje i/b Economic Laws Practice for the Petitioner in
WPL/16257/2026.
Mr. Shailendra Kanetkar a/w. Mr. Rohit M. Gogte, Mr. Pranay
Kothari for the Petitioner in WPL/19699/2026.
Mr. Karl Tamboly a/w. Mr. Nilesh Modi, Ms. Drishti Modi, Mr.
Ashish Rebello and Mr. Bhavin Shah i/b M/s. Rustamji & Ginwala
for the Petitioner in WPL/15680/2026.
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Mr. Mayur Khandeparkar a/w. Ms. Nidhi Singh, Mr. Ishan
Gambhir, Mr. Bikramjit Hundal and Mr. Raghav Dharmadhikari i/b
India Law LLP for the Petitioner in WPL/15197/2026.
Mr. Huzefa Nasikwala a/w. Mr. Raman Misra, Ms. Meghana
Lakhyani i/b Narayani Associates for the Petitioner in
WPL/17209/2026.
Mr. Ravi Kadam, Senior Advocate a/w Mr. P. G. Lad, Ms. Ariana
Somandy, Ms. Sayli Apte, Ms. Aparna Kalathil and Mr.
Muralidharan Kalathil for the Respondent-MHADA in
WP/2566/2026, WPL/15197/2026, WPL/15631/2026,
WPL/15681/2026, WPL/15680/2026 and WPL/15773/2026.
Mr. Darius Khambata, Senior Advocate a/w. Ms. Manisha Jagtap,
Adv. Ammar Faizullabhoy and Ms. Yashashree Raut for the
Respondent-MHADA in WPL/17013/2026 and WPL/17209/2026.
Dr. Milind Sathe, Advocate General a/w Jyoti Chavan, Addl GP and
Mr. Manish Upadhye, AGP for the Respondent-State in
WPL/17209/2026.
Dr. Milind Sathe, Advocate General a/w. Mr. Milind More, Addl GP
and Smt. Yugandhara Khanvilkar, AGP for the Respondent-State in
WPL/19699/2026.
Dr. Milind Sathe, Advocate General a/w. Smt. Anjali Helekar, GP
and Smt. Jyoti Chavan, Addl. GP for the Respondent-State in
WPL/17013/2026.
Dr. Milind Sathe, Advocate General a/w. Smt. Anjali Helekar, GP
and Mr. Vikrant Parshurami, AGP for the Respondent-State in
WPL/15197/2026.
Dr. Milind Sathe, Advocate General a/w Mr. Mohit P. Jadhav, Addl.
GP and Smt. Anupamaa Pawar, AGP for the Respondent-State in
WPL/15631/2026.
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Dr. Milind Sathe, Advocate General a/w. Mr. Dipesh Siroya, AGP
for the Respondent-State in WPL/15680/2026.
Dr. Milind Sathe, Advocate General a/w. Mr. Rakesh Pathak, AGP
for the Respondent-State in WPL/2642/2026 & WPL/40180/2025.
Dr. Milind Sathe, Advocate General a/w. Ms. Lavina Kriplani, AGP
for the Respondent-State in WPL/15773/2026.
Dr. Milind Sathe, Advocate General a/w Smt. Jyoti Chavan, Addl
GP, Mr. Manish Upadhye, AGP for the Respondent-State in
WPL/16257/2026.
Dr. Milind Sathe, Advocate General a/w. Ms. Manisha Jagtap, Mr.
Aditya Mhase, Ms. Rasika Satone and Ms. Yashashree Raut for the
Respondent-MHADA in WPL/16257/2026 and WPL/40180/2025.
Ms. Anjali Ghuge for the Respondent-BMC in WPL/17013/2026,
WPL/17209/2026, WPL/16257/2026 and WPL/15197/2026.
Mr. P. G. Lad a/w. Ms. Aparna Kalathil, Ms. Sayli Apte and Mr.
Muralidharan Kalathil for the Respondent-MHADA in
WPL/19699/2026.
****
CORAM : M. S. KARNIK &
S. M. MODAK, JJ.
RESERVED ON : 25th JUNE, 2026
PRONOUNCED ON : 2nd JULY, 2026
JUDGMENT (PER M. S. KARNIK, J.) :
1. Rule. Rule heard forthwith by the consent of the parties.
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2. Since the questions of law involved in all these cases are
common, these writ petitions are disposed of by a common
judgment. We refer to the facts in Writ Petition (L) No.16257 of
2026 (M.I.G. Adarsh Nagar Co-operative Housing Society Limited
vs. State of Maharashtra and others) for convenience. The fact
situation in M.I.G. Adarsh Nagar, in our opinion, represents a best-
case scenario which would cover the issues involved in the rest of
the writ petitions as well. Factually, there are some additional
contentions raised by learned counsel viz. discriminatory treatment
in excluding similarly situated societies from the cluster
redevelopment; the contention that High Income Group (“HIG”, for
short) societies not finding a mention in the GRs tantamount to its
exclusion from the cluster redevelopment and the consequent
action of its inclusion in the tender published for cluster
redevelopment being arbitrary etc.
A brief introduction to the controversy
3. The statement of objects and the reasons of the
Maharashtra Housing and Area Development Act, 1976 (“MHADA
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Act”, for short) provide that on account of rapid growth of
industries in the urban areas and fast growth of population and
commercial activities in such areas, the need for housing
accommodation could not be met by the limited house construction
activities in the private sector. An important object of the MHADA
Act is to deal with the problem of housing accommodation.
4. The Maharashtra Housing and Area Development
Authority (“MHADA”, for short) leased plots of land in favour of
the petitioner societies for various tenures extending to 99 years.
The petitioner societies claim to be the owner of the structure i.e.
the building, and sub-lessee of the land. The petitioner society
claims that by virtue of the lease/sub-lease executed in its favour, it
has a beneficial right to enjoyment of the property in terms of the
provisions of the Transfer of Property Act during the subsistence of
the lease.
5. The lands were allotted to MHADA by the State
Government as well as the Municipal Corporation of Greater
Mumbai on a perpetual lease of 999 years. The State Government
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and MHADA decided to undertake urban renewal by resorting to
cluster redevelopment under DCPR 33(9) as well as a
redevelopment under DCPR 33(5).
6. This group of writ petitions involve two layouts. The
project envisages a massive redevelopment exercise of Adarsh
Nagar layout involving approximately 34.33 acres of land in Worli.
Some of the writ petitions involve a project envisaged by MHADA,
again a massive redevelopment exercise of integrated
redevelopment of Bandra Reclamation layout involving
approximately 98.27 acres of land in Bandra. The petitioner
societies are affected by this redevelopment exercise undertaken by
MHADA.
7. The stand of the petitioner societies is that during the
subsistence of the lease, without any breach being alleged, unless
the lease is determined by following the due process of law, such
an exercise of redevelopment affects the valuable statutory rights of
the lessees to carry out the redevelopment on its own, which is in
the teeth of the provisions of the Transfer of Property Act. The
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decision of MHADA to redevelop the property as a cluster directly
puts fetters on the statutory rights of the petitioner societies to
enjoy the property during the subsistence of the lease and hence,
such an exercise carried out is completely in breach of the terms of
the lease which violates not only the provisions of the Transfer of
Property Act but even the provisions of the DCPR 2034, as the
redevelopment is undertaken by MHADA through an Agency
without obtaining the consent of the petitioner societies which is a
mandatory requirement. It is also the petitioners’ case that they are
being deprived of their property without following the due process
of law, which is in complete defiance of Article 300A of the
Constitution of India. The petitioner says that the societies are
sought to be amalgamated/merged contrary to the provisions of
the Maharashtra Co-operative Societies Act (“MCS Act“, for short)
which affects their rights guaranteed by the Constitution under
Article 19(1)(c) of the Constitution of India.
8. On the other hand, the stand of the State Government and
MHADA is that the petitioners are not at all being deprived of their
property. Even under the DCPR, which the petitioners themselves
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claim to be applicable, the petitioners are at the highest entitled to
rehabilitation in terms of the statutory entitlement. As MHADA is
undertaking the redevelopment on its own in terms of DCPR 33(5)
by developing the lands owned by MHADA as a cluster
redevelopment under DCPR 33(9), the petitioners are entitled to
substantial additional incentive. It is thus the case that the
petitioners are not being deprived of their property and, as a result
of redevelopment, they are assured not only of the very same area
which is in their possession but substantial additional area, which
additional incentive is much more than the statutory entitlement
under the DCPR which the petitioner societies would get if the
redevelopment is carried on by themselves.
9. MHADA says that cluster redevelopment is permissible
under DCPR 2034 and therefore for the purpose of an urban
renewal which necessarily entails a planned development of the
cluster by making provisions for roads, infrastructure, other
amenities, the redevelopment is in public interest. The members of
the petitioner societies would be allotted tenements within the
cluster completely in conformity with the statutory provisions
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governing such allotments. It is MHADA’s case that the overarching
provisions of a special statute i.e. MHADA Act and the object for
which MHADA Act has been enacted, one such object being to
coordinate the housing programmes with an orderly development
of urban areas in the State, for a more comprehensive and
coordinated approach to the entire problem of housing
development, and planning and development of certain areas in a
balanced manner, with sufficient attention to ecology, pollution,
overcrowding and amenities required for leading a wholesome civic
life, that the single corporate authority for the whole State and
boards for certain areas are established to carry out the plans and
programmes of such authority, while addressing the problem of
housing accommodation in urban areas. It is thus MHADA’s case
that the rights of the petitioner societies are not being affected in
any manner but on the contrary by protecting their existing rights,
MHADA being the owner of the land, proposes to further the object
of the Act which is in the public interest of providing more housing
stock, that MHADA is undertaking redevelopment of the Adarsh
Nagar and Bandra Reclamation layout on its own. It is thus the
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submission that the private interest claimed by the petitioners is
completely eclipsed by the redevelopment which is in the larger
public interest to address the acute shortage of accommodation in
urban areas, which causes no prejudice to the petitioner society
members, as their interests are adequately safeguarded. Whatever
inconvenience is caused to the petitioners as a result of such a
cluster redevelopment is minuscule compared to the larger public
interest of creating housing stock which is sought to be addressed
by the cluster redevelopment, which is completely in conformity
with the statutory provisions, by resorting to integrated and
planned development with all civic amenities instead of individual
standalone haphazard development. It is submitted by the State
Government and MHADA that the provisions of the Transfer of
Property Act are subservient to the provisions of the MHADA Act
under which the sub-lease has been executed.
The challenge in these writ petitions
10. The petitioner societies are HIG, Middle Income Group
(“MIG”, for short) and Low Income Group (“LIG”, for short)
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societies concerned with the integrated redevelopment of Adarsh
Nagar and Bandra Reclamation layout.
11. Now we refer to the facts in Writ Petition (L) No.16257 of
2026 for convenience. The petitioner is the M.I.G. Adarsh Nagar
Co-operative Housing Society Limited. The challenge is to the
impugned Government Resolution dated 25/04/2025 and
15/12/2025; the impugned tender published on 08/04/2026
thereby including the petitioner society as part of the purported
‘integrated redevelopment of the Adarsh Nagar Layout’. The
petitioners are aggrieved by the action on the part of the MHADA
and respondent No.3-The Mumbai Housing and Area Development
Board (“MHADB”, for short) promulgating a proposal for
redevelopment in terms of Regulation 33(5) of the Development
Control and Promotion Regulations for Greater Mumbai, 2034
(“DCPR 2034”, for short) of plots including the said property
through a Construction and Development Agency (“C & DA”, for
short) which arbitrarily includes the property within its scope, and
forms the subject matter of the petition. The petitioner society
further aggrieved by the conditions imposed upon it in view of the
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unconstitutionality of the provisions of Regulation 33(9)(4)(a) of
the DCPR 2034 in respect of MHADA being empowered to propose
cluster redevelopment without seeking consent of the tenement
holders/residents, such as the petitioner’s and its members, when
proposing a scheme of redevelopment or cluster redevelopment
under the aforementioned provisions of DCPR 2034.
12. Additionally, the petitioner is aggrieved by the provisions
of Regulation 21(5) of the Maharashtra Housing and Area
Development (Estate Management, Sale, Transfer and Exchange of
Tenements) Regulations, 1981, as the same unilaterally favours
MHADA to impinge upon the rights and interest of the petitioner in
the said property. According to the petitioner, the society is
effectively left at the mercy of MHADA and MHDBA, which is
contrary to and is ultra vires the provisions of Article 14, Article 20,
Article 21 and Article 300A of the Constitution of India, as the
fundamental right to life which includes the right to shelter of the
petitioner’s members is being impacted and hindered by MHADA
and MHDBA via the subject redevelopment.
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13. The details of subject property in so far as MIG Adarsh
Nagar are:-
The lands/parcels of land bearing C.S. Nos.205 (part),
209 (part), 224 (part), 226 (part), 227 (part), 228 (part), 229
(part), 230 (part) and 231 (part) admeasuring 19,873.73 square
meters situate, lying and being at Adarsh Nagar, Worli, Mumbai
(“said lands”, for short). The petitioner society comprises of 24
buildings (“said buildings”, for short) spread over approximately
over 6 acres. The said lands of the petitioner along with the said
buildings are together referred to as the “said property”.
14. The petitioner is a co-operative housing society duly
registered under the provisions of the Maharashtra Co-operative
Societies Act, 1960 (“MCS Act“, for short). The said buildings are
numbered as 43 to 66 situated on the said lands. The society
comprises 224 members and approximately 700 residents reside/
occupy the said buildings.
Detailed facts of the case
15. In the year 1949, the MCGM granted on a perpetual lease
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inter alia the aforesaid lands in terms of a letter dated 21/07/1949
addressed to the Executive Engineer, Housing, Bombay West
Division for the purpose of undertaking housing schemes. The
aforesaid perpetual lease was entrusted by the Government of
Maharashtra to the Bombay Provincial Housing Board, which
eventually culminated in the hands of the erstwhile Maharashtra
Housing Board (“MHB”, for short). The MHB constructed a housing
scheme in or about the year 1964-1965 by constructing buildings
on the said lands. The erstwhile MHB allotted tenements in the
buildings constructed by it either on a rental basis or on the basis
of deferred payment ordinarily referred to as ‘hire-purchase’ basis.
The allottees of the said buildings came together and formed the
petitioner society which was registered in the year 1973.
16. As a result of the dissolution of MHB in the year 1977, the
entire property, rights, liabilities and obligations of the erstwhile
Board stood vested in MHADA. In or around the year 1982, by and
under Deeds of Sub-Lease executed between MHADA and the
petitioner society, MHADA granted the said lands on lease to the
petitioner society on the terms and conditions set out therein for a
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period/term of 99 years. Resultantly, the petitioner society became
entitled to the said lands/parcels of the said lands being Adarsh
Nagar, Worli, Mumbai. It is the contention of the society that the
entitlement of the petitioner is larger/greater than the area of the
lands stated in the Sub-Lease Deeds.
17. MHADA executed various Sale Deeds transferring the
entire right, title and interest in respect of the said buildings
standing on the said lands in favour of the petitioner society. It is
the petitioner’s case that they thus became absolutely seized,
possessed and entitled to the said buildings as the owner thereof.
By a letter dated 24/08/1995, MHADA confirmed and stated that
the petitioner society would be entitled to the FSI with respect to
the additional area that was being rectified resulting in increase in
area as leased to the society under the Deed of Rectifications. The
petitioner says that FSI benefits are absolutely vested in the society
and MHADA has no right to deal with the same. The petitioner
society has paid the entire land costs as premium pursuant to
Section 27 of the Maharashtra Land Revenue (Disposal of
Government Lands) Rules 1971. The petitioner society has also
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paid the development charges, arrears of lease rent and interest on
the blocked capital under the Hire Purchase Scheme. The petitioner
says that the area under their possession is about 24,867.39 square
meters inclusive of the area under the occupation of one Suyog Co-
operative Housing Society Limited as demonstrated in the Physical
Survey Report dated 18/06/2022 issued by a Licensed Surveyor.
The sanctioned scheme plan of the M.I.G. prepared in the year
1990 indicates that the net area under the possession of the
petitioner society is about 23,545.12 square meters. It is therefore
the petitioner’s case that their entitlement is larger/greater than
the area of the lands stated in the Sub-Lease Deeds.
18. The petitioner society by the application dated
27/10/2023, through their consultants M/s. Ellora Project
Consultants Private Limited, applied to MHADA seeking its No
Objection for the redevelopment of the said property. The
petitioner received no response. The attempts on the part of the
petitioner society to redevelop the said property were conveniently
and intentionally disregarded and derailed by MHADA. The GR
incorrectly purports that the society never took any steps to
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redevelop the said property and therefore, the intervention of the
Authority was required. The petitioner society has actively
initiated the process of redevelopment in the society by following
the process as stipulated in the Guidelines under Section 79A of the
MCS Act, 1960 and accordingly, appointed M/s. Vivek Bhole
Architects Pvt. Ltd. as its Project Management Consultant for
redevelopment on 09/04/2025.
19. The Government of Maharashtra through the Department
of Housing issued a GR dated 25/04/2025 in respect of the
Integrated Redevelopment of the buildings in the Bandra
Reclamation and Adarsh Nagar (Worli) MHADA layouts through a
C & DA. The GR dated 25/04/2025 inter alia contemplates that the
buildings in the two MHADA layouts of Bandra Reclamation and
Adarsh Nagar (Worli) are to be redeveloped in an integrated/
group manner by appointing a C & DA through MHADA and under
the provisions of Regulation 33(5) of the DCPR 2034. The GR
dated 25/04/2025 inter alia stipulates that proposals for self-
redevelopment/standalone redevelopment of individual buildings
in such layouts shall not be considered. Further, it provides that the
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statutory protections afforded to the co-operative housing Societies
in terms of Section 79(A) of the MCS Act and the allied guidelines
shall not be available.
20. The petitioner addressed a detailed representation dated
21/07/2025 to the concerned officer of MHADA raising objections
to the inclusion of the petitioner society in the purported integrated
redevelopment of the Adarsh Nagar Layout under the GR dated
25/04/2025. In the representation, it is stated that the GR dated
25/04/2025 is in complete derogation of the rights and
entitlements of the petitioner society including in respect of the
Floor Space Index (“FSI”, for short) in respect of the said property
as contemplated under the Sub-Lease Deeds executed in its favour.
According to the petitioner, the application of the GR dated
25/04/2025 to the said property is arbitrary, without application of
mind and without considering the facts and circumstances in the
correct perspective. In the representation, it is stated that the
petitioner society is entitled to the FSI arising out of the said
property and the unilateral appointment of a private developer
styled as a C & DA to redevelop the said property is a breach of the
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sub-lease deeds and a gross violation of the rights of the petitioner
society. The petitioner relied on the relevant documents in support
of its case and also requested an opportunity of hearing within a
period of thirty days. The petitioner received no response.
21. The Government of Maharashtra through the Department
of Housing issued a GR dated 15/12/2025 in respect of
‘formulation of a policy for cluster/joint redevelopment of MHADA
layouts in Mumbai and suburbs having an area of 20 acres or
more’. It is inter alia provided that in respect of layouts at Adarsh
Nagar (Worli) owned or held as lessee by MHADA, a process has
been initiated for group/cluster redevelopment through
appointment of a C & DA. The GR dated 15/12/2025 inter alia
stipulates that the proposed C & DA may undertake redevelopment
not only under Regulation 33(5) of DCPR 2034 but also under any
other regulation after finalization of the tender process. It also
stipulates that there is no necessity to obtain individual consent
letters from all residents as required under the DCPR 2034.
22. In the month of April 2026, MHADA through the MHADB
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floated a tender inviting bids for appointment of a C & DA for
integrated/cluster redevelopment of the Adarsh Nagar layout
including the said property under the terms, conditions, and
guidelines set out therein. The said tender contains four volumes
i.e. Volume I being the Tender Document; Volume II being the
Draft Development Agreement; Volume III being the specifications
of the rehabilitation premises and Volume IV being the Maps and
Drawings. It is the petitioner’s case that there has been no
discussion/deliberation whatsoever with the petitioner society
before its inclusion as part of the said tender and/or the
finalization of the terms and conditions of the tender/the
development agreement and the specifications/location of the
rehabilitation premises. The tender was floated by MHADA despite
the petitioner’s specific objections and legal submissions without
following the principle of natural justice. Though the GR dated
15/12/2025 provides for the constitution of a Grievance Redressal
Committee, according to the petitioner the same has not been
constituted till date. There are several inherent deficiencies/glaring
problems stated by the petitioner with the impugned tender. The
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petitioner says that the layout provided for the subject
redevelopment includes several plots including the said property
despite no cogent reasoning evident for including the same into the
layout plan. The subject redevelopment is to be conducted under
the aegis and supervision of MHADA and MHADB in accordance
with the impugned GRs dated 25/04/2025 and 15/12/2025,
however the reason for including the said property within its scope
is unknown and no explanation has been offered by MHADA for its
inclusion despite the petitioner issuing specific
representations/notice.
23. The impugned tender provides for consent to be submitted
in the form of resolutions of at least 51 % of the societies which is
in contrast to the language of the impugned GR dated 25/04/2025
and other provisions of law. There is an inherent ambiguity in ‘the
execution of construction cum development contract subject to
obtaining required number of consents after selection of successful
bidder’ which does not garner any confidence. The timely
implementation is restricted to a ‘best effort’ basis which is not
explained/defined and/or elaborated relegating the petitioner and
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its members to a life of uncertainty. The proposed transit rent (Rs.
75,000/- per month) as well as the proposed Corpus Fund for
tenements having existing carpet area between 60 square meters to
70 square meters are ex-facie arbitrary figures dehors any
reasoning/basis of its computation.
24. The petitioner addressed another representation dated
30/04/2026 to MHADA requesting not to take any precipitative
steps in furtherance of the tender without affording proper
opportunity of hearing to the Petitioner. The petitioner society has
placed on record its serious fundamental objection to being
compulsorily included in the GRs driven cluster redevelopment and
tender floated in the month of April 2026 by comprehensively
setting out reasons for the same. The petitioner raised serious
commercial and other concerns regarding the said tender’s
structure and terms, including but not limited to the (i) erosion of
independent redevelopment rights; (ii) mechanism for consent of
51% of the members of the entire layout; (iii) Inferior/uncertain
configuration of the rehabilitation units; (iv) Inadequate clarity on
commercial benefits; (v) loss of autonomy and planning control.
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Submissions of Mr. Pravin Samdani, learned Senior Advocate for
the petitioner society
25. The petitioner is the owner of the buildings and a sub-
lessee of the land. As a sub-lessee, it possesses valuable rights and
interest in the land. The natural benefit/enjoyment and legal right
in respect of the land and building includes the right to use, occupy
and enjoy the land and building as owner of the building and as a
sub-lessee of the land for the unexpired term of the lease, together
with a right to renewal as available in law. Such right is a
constitutional and human right and is recognised and protected by
the Constitution of India, including under Articles 21 and 300A.
Subject to the conditions in the sub-lease, the petitioner has the
right to redevelop and/or reconstruct its buildings in accordance
with the provisions of MRTP Act and DCPR 2034 for the time being
in force. The impugned GRs put fetters on the petitioner’s right to
redevelop the property under DCR 33(5). Any interference,
intermeddling or tampering with any of the aforesaid rights,
benefits and enjoyment at the hands of the State, without the
authority of law, would be violative of Article 300A of the
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Constitution of India.
26. The impugned GRs are in the nature of executive
instructions under Article 162 of the Constitution of India or under
Section 154 of the MRTP Act. The effect of the impugned GRsis : to
compel the petitioner to be a part of redevelopment through the
agency of MHADA (Clause 13 and 17); to compel the petitioner to
be part of other societies in the cluster/to merge the petitioner
society with the other societies (Clause 14); to amalgamate and
merge the petitioner’s sub-leased lands with the lands held by
others societies and lose their identity of land (Clause 12, 14 and
15); to compel the petitioner to accept the development agency of
MHADA (Clause 2, 3, 11 and 17), as a consequence, learned Senior
Advocate submits that the members of the petitioner society can
be evicted under Section 95 of MHADA Act, 1976; to compel the
petitioner to agree to the commercial terms in terms of tender or as
imposed by the agency appointed by MHADA (Clause 12, 13 and
15); to override the provisions of the DCR and/or exclude or
exempt the applicability thereof in cluster Development (Clause 1,
3, 5, 8, 11, 12 and 17); to directly interfere with the petitioner’s
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natural rights to independently develop its property in accordance
with Sections 44 to 49 of the MRTP and the DCR [33(5) read with
33(9)] for the time being in force.
27. By reason of the impugned GRs, the petitioner’s
immovable property is, in pith and substance, sought to be
acquired (indirectly), with compensation in the form of alternate
accommodation which is without the authority of law.
28. The impugned GRsare ultra vires the
Constitution/patently illegal and arbitrary as under Article 300A of
the Constitution of India, no person can be deprived of his property
save in accordance with law. The expression “property” (under
Article 300A) includes all kinds of property, including immovable
property. The petitioner is the owner of the buildings and sub-
lessee of the land which creates an interest in its favour and thus,
lawfully entitled to the property. The impugned GRs are executive
instructions under Article 162 of the Constitution of India and are
contrary to the provisions of the MRTP Act/DCR, MHADA Act, and
violate Article 14, 21 and 300A of the Constitution of India. The
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expression “authority of law” under Article 300A of the
Constitution of India means validly enacted law and not GR and for
that matter any policy decision of the Government. The executive
power under Article 162 of the Constitution of India cannot be
extended to interfere with the rights in the property as these are in
the nature of administrative/executive instructions and not enacted
law.
29. The power under Section 154 of MRTP Act cannot be
exercised so as to deprive citizens of their property or to do
violence with the DCR in force or make provision inconsistent with
the DCR. The DCR being a statutory/delegated piece of legislation,
the power under Section 154 of the MRTP Act cannot be exercised
to repeal, amend, render nugatory, supplement or to add to any of
the provisions of the DCR.
30. There is no provision under the MHADA Act, the MRTP
Act or the DCR (which are the only enacted law or delegated piece
of legislation i.e. DCR) empowering to do things which are sought
to be done under the two GRs.
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31. GR dated 25/04/2025 provided for individual consent
letters of 51% of the total members in the layout (Clause 11),
whereas in the GR dated 15/12/2025 this condition is diluted and
the requirement of individual consent is given a go-by, providing
instead for a resolution by the society (Clause 1). As against the
aforesaid, DCR 33(5) contemplates either consent of minimum
51% of the members [DCR 33(5)(7)(a)] or a valid resolution of the
society [DCR 33(5)(7)(b)], whilst for cluster redevelopment under
33(9), consent of 51% of the members of each building and an
overall consent of 60% of the project is required. The GR tinkers
with the statutory regulations and does away with the stringent
requirement of obtaining the requisite consent as a precondition for
consideration of the scheme.
32. The provisions of the impugned GRs are directly
inconsistent with the provisions of the DCR, as they grant
exemptions from the applicability of the stringent conditional
provisions prescribed therein. DCRs are statutory in nature and
have the force of law having been framed under Section 22(m) of
the MRTP Act. There cannot be additional conditions or any
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executive instructions or circulars inconsistent with the DCR.
33. By the Impugned GRs, unequals are sought to be treated
as equals by terming them all as a rehab component, virtually
categorising them as slum dwellers, by segregating the free-sale
component from the rehab component and making provisions for
separation by area and demarcation. Even the land area to be
allocated for the rehab component remains unidentified, and it is
quite apparent that such land component will be drastically
reduced to accommodate the free-sale component with a higher
proportion of land allocation. This clearly amounts to deprivation
of a citizen’s land without authority of law and without his express
consent. The GRs are therefore clearly arbitrary.
34. The effect of the impugned GRs is to alter the terms of the
lease (which is a matter of contract) by way of an executive
exercise through a GR, in the absence of legislation permitting the
same. The impugned GRs make provisions for the merger and
amalgamation of different cooperative societies in respect of
different sub-lessees, with the object of creating a consolidated
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land component for cluster redevelopment and all occupiers of
such societies are to be accommodated in some unidentified
locations, segregated from the free-sale component on an area
imposed upon them. The provisions for merger and amalgamation
by way of a GR are clearly contrary to the mandate of Sections 17
and 18 of the MCS Act, read with the Rules framed thereunder,
and are therefore patently illegal.
35. The impugned GRs direct non-acceptance of individual
development proposals submitted by societies. Such a direction
and/or mandate is contrary to the scheme of Sections 42 to 46 of
the MRTP Act and the DCR. In the absence of any statutory bar
under the MRTP Act or the DCR, development permission cannot
be denied. A GR, not being a part of the Development Plan or the
DCR, constitutes extraneous material which cannot be taken into
consideration under 46 of the MRTP Act.
36. The impugned GRs are equally bad in law as they contain
inconsistent and/or vague provisions and thus void for vagueness.
In any event, such void or inconsistent provisions can clothe the
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authority with powers to use discretion in an arbitrary manner,
thus rendering the GRs to be arbitrary and unconstitutional.
37. By amalgamation and/or a compulsory merger of the
societies in the layout the identity of an individual legal entity (the
society) is destroyed and resultant merged entity is created. By
making provision under the GRs requisite consents in MCS Act are
obliterated and merger/amalgamation is achieved without the
consent of the concerned societies and/or individual members. The
aggregate of all the lands in the layout is then indirectly controlled
by MHADA/C & DA. These actions are inconsistent and directly in
conflict with the provisions of (i) Transfer of Property Act (ii)
Maharashtra Cooperative Societies Act (iii) MRTP Act and DCR. If
the GRs are allowed to be implemented the net result is
compulsory acquisition of the lands in the layout in the hands of
MHADA/C & DA without the authority of law and thus, in clear
violation of Articles 21 and 300A of the Constitution of India.
38. On a holistic/plain reading and on a strict construction of
the DCR (as the GRs say, will be strictly complied with) no cluster
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redevelopment scheme project could even be propounded or
proposed without first obtaining written consent strictly in terms of
DCR 33(5) and 33(9). MHADA in fact has no locus in the absence
of a consent to take out even a tender for a proposed cluster
redevelopment.
39. DCR 33(5)(7)(a) contemplates consent of 51% of
members. Regulation 7(b) is about the existing scheme as per the
Societies Act i.e, Section 79A. Under DCR 33(9)(4)(a) 51 % of
each building and 60% overall (the entire scheme). Under GR
dated 25/04/2025 Clause 11 provides 51% of total members in the
layout. Under the GR dated 15/12/2025 Clause 1 does not provide
for individual consent but for society resolution under MCS Act.
Tender Clause 1.5.1.9 provides for consent of 51% of societies.
40. Both the GRs say that the provisions of DCR will be strictly
complied with. DCR cannot produce cluster redevelopment scheme
in the absence of the consent or orders of amalgamation in terms of
Section 17 and 18 of MCS Act and thereafter consent of the merged
entity or surrender of leasehold rights by the existing lessee(s) in
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favour of MHADA or a consensual agreement for exchange with the
lessee(s). If DCR is to be strictly complied with there is no necessity
of the GRs. By GRs there cannot be any
addition/deletion/amendments to the DCR.
41. The consent provision under 33(9) – 4(a) is in two parts –
(i) the first part is where a developer is involved and (ii) the
second part is where there is no developer and “MHADA/MCGM is
undertaking redevelopment, on its own land directly without any
developer”, the second part applies only where MHADA is
undertaking redevelopment “on its own land” which would mean
there is no owner of any structures on the land or the land or the
structures are unencumbered and there is no subsisting lease of the
land and MHADA has full control over it as a full owner. Any other
interpretation to this regulation would render the second part ultra
vires the MRTP Act and Constitution of India, inasmuch as it would
amount to allowing MHADA to take over the property and/or
acquire the same without the authority of law by destroying the
existing rights in the property. In any event there is no such
provision in DCR 33(5) which is the primary DCR for
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redevelopment of MHADA colonies by the lessee(s) or by MHADA.
Submissions of Mr. Y. S. Jahagirdar, learned Senior Advocate for
the petitioner Kamalpushpa society
42. The GRs dated 25/04/2025 and 15/12/2025 provide for
cluster redevelopment of 56 MHADA colonies built by MHADA
between 1950s and 1960s. The same were therefore not applicable
to the 12 societies including the petitioner – Kamalpushpa
Cooperative Housing Society Ltd. as they had constructed their
buildings at their own costs after the year 1972 (the particulars of
12 societies are stated in the writ petition).
43. A reading of first paragraph of the GRs stating the
intention about cluster redevelopment of “56 MHADA colonies
built by MHADA between 1950s and 1960s”, the phrase MHADA
layout was required to be read as those MHADA layouts which
entirely comprise of MHADA colony and hence do not cover the
said 12 societies. The cluster development concept while
interpreting the GRs would be restricted to the phrase MHADA
colony since the word “scheme” is not used in the GRs. The 30
buildings in Phase Nos. I, II and III admittedly constructed by
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MHADA cannot be equated and treated on par with the 12 self-
constructed societies including Kamalpushpa Cooperative Housing
Society Ltd., particularly when 14 other similarly situated societies
were given lease deeds and also development permissions with full
FSI. In view of this Court’s order dated 29/04/2014 in Writ
Petition (L) No.3310 of 2013, 26 societies including Kamalpushpa
Cooperative Housing Society Ltd.’s contractual rights for grant of
lease for 99 years which has been accepted by MHADA and acted
upon, the respondents are under a bounden ministerial duty to
execute lease.
44. Owing to the grant of lease-deeds and development
permissions to 14 similarly situated societies, the said 12 societies
including the petitioner- Kamalpushpa Cooperative Housing
Society Ltd. had legitimate expectation that they were entitled to
be treated equally. MHADA and State are liable to issue notice and
give hearing to the said 12 societies if they wanted to defeat such
legitimate expectation arising from the selective application of the
order dated 29/04/20214 in respect of 14 similarly situated
societies by grant of lease-deeds and development permissions
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resulting in a consistent past practice. The petitioner and its
members are entitled to hold and possess plot No.6 and buildings
thereon and to enjoy the same at least for 99 years i.e. till
29/11/2071 since MHADA was bound by the terms of letter of
allotment and the this Court’s order dated 29/04/2014 and since
MHADA has not alleged violation of any terms and conditions of
allotment by the petitioner and had not terminated the said
allotment.
45. MHADA favoured 14 societies inter alia, by (i) grant of
registered lease deeds in compliance of the order dated
29/04/2014; (ii) allowing them to hold SGM under Section 79A of
the MCS Act and select the developer of their choice; and (iii)
issuing NOCs for redevelopment and grant development
permissions, while petitioners by failing to execute lease and
denying appointment of authorised representative for selection of
developer under Section 79A of the MCS Act vide letter dated
13/03/2026 on the misconceived and erroneous premise that the
GR dated 25/04/2025 covered the petitioner. MHADA was not
justified in excluding 14 similarly situated societies from cluster
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redevelopment, when the only difference between the petitioner
and those societies was grant of lease-deed which MHADA was
bound to execute owing to this Court’s order dated 29/04/2014.
46. Only because plot No.6 was more than 4,000 sq. mtrs.
ought not to have been made a part of the impugned cluster
redevelopment scheme under Regulation 33(5) and/or 33(9) of
DCPR 2034 since the petitioner – Kamalpushpa Cooperative
Housing Society Ltd. was entitled to implement a scheme under
Regulation 33(5) on its own without being a part of any cluster. By
virtually allowing the redevelopment of 14 societies on their own
having excluded them from redevelopment undertaken by MHADA,
the so-called cluster was already broken. Therefore the inclusion of
the petitioners in the GRs and the tender is unjust, arbitrary,
discriminatory, unreasonable, unworkable and contrary to the
provisions of DCPR 2034. The decision in Motilal Nagar (supra) is
clearly distinguishable on facts and not applicable to the
petitioner’s case. There has been expropriation and confiscation of
the petitioner No.1’s property rights and forced inclusion of the
petitioner’s property in cluster development without following any
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process of acquisition since there was no statutory provisions in
MHADA Act, the rules and regulations thereunder and the MRTP
Act thereby making the inclusion of the petitioner’s property in the
cluster development illegal, invalid and unjustified in law. Merely
because a larger area in the cluster redevelopment is granted to the
members of the petitioner society under the GRs and tender cannot
be equated with compensation payable on acquisition under the
land acquisition laws. The said rehabilitation in the form of
compensation is illusory, unjust, unfair, unreasonable and
confiscatory. The comparative chart of the offer of the preferred
developer selected by the petitioner’s members and the terms
offered in the tender by the C & DA is demonstrative of the fact
that the rehabilitation entitlement is completely unreasonable,
unjust and illusory. The petitioner societies are left with no choice
but to accept the forced grant of larger area in the proposed
construction against their wishes. There is no report on record
certifying that buildings of the said 12 societies including the
petitioner are dilapidated. The impugned GRs and tender purport
to extinguish, confiscate and expropriate the petitioner –
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Kamalpushpa Cooperative Housing Society Ltd.’s right to a lease
deed and to redevelop its property and making the said property a
part of forced cluster redevelopment is in blatant violation of :
(i) Contractual rights arising under and/or in view of
the letter of allotment, possession receipt, payment of
revised lease premium and revised lease rent with simple
interest;
(ii) This Court’s order dated 29/04/2014 which judicially
recognised the rights of the said 26 societies including the
petitioner to get a registered lease deed;
(iii) Petitioner No.1’s members’ fundamental rights
guaranteed under Article 14, 19(1)(g) and 21 of the
Constitution and their constitutional rights under Article
300A.;
(iv) The provisions of DCPR 2034 regarding consent of
societies and their members;
(v) The provisions of the MCS Act regarding
compulsory amalgamation with other societies in the
cluster.
47. Though MHADA claims to be developing the property on
its own, the terms of the tender document clearly demonstrate
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conclusively that the C & DA is a developer, and not merely an
executing arm of MHADA. Reliance is placed on the decision of B.
K. Ravichandra and others vs. Union of India and others1 to support
the contention that right to property is a valuable constitutional
right. Paragraphs 27 and 29 which read thus :
“27. Although the right to property is not a fundamental
right protected under Part III of the Constitution of India, it
remains a valuable constitutional right. The importance of this
right has been emphasised and iterated several times by this
Court. In Delhi Airtech Services (P) Ltd. v. State of U.P. for
instance, this Court underlined the issue as follows: (SCC p.
379, para 30)
“30. It is accepted in every jurisprudence and
by different political thinkers that some amount
of property right is an indispensable safeguard
against tyranny and economic oppression of the
Government. Jefferson was of the view that
liberty cannot long subsist without the support of
property. ‘Property must be secured, else liberty
cannot subsist’ was the opinion of John Adams.
Indeed the view that property itself is the seed
bed which must be conserved if other
constitutional values are to flourish is the
consensus among political thinkers and jurists.”
29. The decision in K.T. Plantation (P) Ltd. v. State of
Karnataka interpreted Article 300-A and held that : (SCC p.
51, para 168)
“168. Article 300-A proclaims that no person can
be deprived of his property save by authority of
law, meaning thereby that a person cannot be
deprived of his property merely by an executive
fiat, without any specific legal authority or
1 (2021) 14 SCC 703
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without the support of law made by a competent
legislature. The expression “property” in Article
300-A confined not to land alone, it includes
intangibles like copyrights and other intellectual
property and embraces every possible interest
recognised by law.
169. This Court in State of W.B. v.
Vishnunarayan & Associates (P) Ltd. while
examining the provisions of the West Bengal Great
Eastern Hotel (Acquisition of Undertaking) Act,
1980, held in the context of Article 300-A that the
State or executive officers cannot interfere with
the right of others unless they can point out the
specific provisions of law which authorises their
rights.”
48. Madras Refineries Ltd. vs. The Chief Controlling Revenue
Authority, Board of Revenue, Madras2 is relied upon to indicate
how the meaning of the word “Disposition” has been dealt with,
the relevant portion is thus :
“The term “disposition” has been defined in Stroud’s Judicial
Dictionary as a devise “intended to comprehend a mode by
which property can pass, whether by act of parties or by an act
of the law” and “includes transfer and charge of property”. As
the Guarantee Agreement did not have any such effect, it did
not constitute a “settlement” also. That document was not
therefore an instrument of sale, mortgage or settlement, and
did not fall within the purview of sub-section (1) of Section 4
of the Act.”
49. Reliance is placed on the location map to indicate that the
cluster is broken so far as the petitioner societies are concerned and
2 (1977) 2 SCC 308
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that even otherwise the manner in which the development is
proposed can never said to be a cluster redevelopment as the same
does not comply with the requirements of DCPR 33(9). The main
argument is that failure to execute the lease-deed is of no
consequence in view of the decision of this Court, letter of
allotment by MHADA, possession receipt, payment of lease
premium etc. with interest. Therefore, during the subsistence of the
lease the petitioner society is virtually the owner of the land leased
and is entitled to redevelop the property on its own terms which
right to redevelop the property is taken away by this cluster
redevelopment and therefore this falls foul of Article 300A of the
Constitution of India.
50. We have also heard Mr. Godbole, Mr. Andhyarujina, Mr.
Vishwajeet Sawant, Mr. Surel Shah, learned Senior Advocates and
Mr. Mayur Khandeparkar, Mr. Karl Tamboly, Mr. Nasikwala.
Learned counsel have by and large argued in support of the
propositions which we have already referred to hereinbefore. Some
additional submissions canvassed by learned counsel peculiar to
individual facts are dealt with in the later part of this judgment.
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Summary of petitioners’ broad challenge
51. Though we have already referred to the submissions of
learned counsel for the petitioners hereinabove in detail, broadly
the challenge can be summarised thus to facilitate analysis :-
(i) That the petitioners have proprietary rights,
either by way of lease, allotment or occupancy right and
such a right is being taken away or violated or abridged
without following mandate of Article 300A of the
Constitution of India.
(ii) The petitioner has vested right to redevelop the
said lands and 24 buildings thereupon. The petitioner has
also right to use available FSI without interference from
MHADA and these rights are protected by Articles 21 and
300A of the Constitution of India.
(iii) The inclusion of the property of the petitioner in
MHADA Scheme is alleged to be violative of Article 300A
as the petitioners are compelled to be part of the cluster,
amalgamate its sub-leased lands and lose their identity or
merge with other societies.
(iv) The curtailment of property right guaranteed
under Article 300A can only be done by way of ‘law’ and
not by an ‘executive instruction’ i.e. the Impugned GRs.
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(v) That the State has no authority to issue the
Impugned GRs.
(vi) That the Impugned GRs are issued in exercise of
powers conferred upon the Government under Section
154 of MRTP Act or Article 162 of Constitution of India
and the Impugned GRs are contrary to the extent of
powers conferred upon the Government under the
aforesaid provisions.
(vii) That the Impugned GRs are contrary to the
provisions of Regulation 33(5), and 33(9) of Development
Control and Promotion Regulation 2034 (“DCPR”).
(viii) The impugned GRs are ultra vires Regulation
33(5) and 33(9) of DCPR 2034.
(ix) GR dated 25.04.2025 does away with the
mandatory requirement of consent of the societies as
contemplated under Regulation 33(5) which cannot be
done except otherwise by way of an amendment to DC
Regulations.
(x) The provisions of Regulation 33(9)(4)(a), if read
to mean that in certain contingencies consent of the
society or its members is not required, would be ultra vires
the MRTP Act.
(xi) The Impugned GRs amount to amending the DC
Regulations and such an amendment cannot be done by
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way of a Government Resolutions and can be done only by
following procedure prescribed under the MRTP Act.
(xii) Inclusion of High-Income Group (HIG)
tenements/societies and clubbing them with other
categories i.e. Economically Weaker Sections (EWS), Low
Income Group (LIG), Middle Income Group (MIG) is
arbitrary.
(xiii) That the tenders floated for appointment of C &
DA contain provisions which are violative of proprietary
rights of the allottees/lessees.
(xiv) That the Impugned GRs violate the rights of
Petitioners guaranteed under Article 19(1)(c) of the
Constitution of India (to form a co-operative society).
(xv) That the Impugned GRs make provisions which
are contrary to the scheme of Maharashtra Co-operative
Societies Act, 1960 (“MCS Act“) particularly relating to
management of the society (Section 72) and holding of
meetings for the purposes of redevelopment (Section
79A).
(xvi) That the tender contains provisions which are
violative of provisions of DC Regulations, particularly
Regulation 33(5) and 33(9) in relation to the consent of
the stakeholders, affairs of the Co-operative Society, etc.
Response of learned Senior Advocates for the respondents
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52. In response, we have heard Dr. Milind Sathe, learned
Advocate General for the State of Maharashtra, Mr. Darius
Khambata, Mr. Ravi Kadam, Senior Advocates for MHADA at
length. Our attention was invited to the affidavit in reply and the
pleadings filed on behalf of the State of Maharashtra as well as
MHADA while advancing their submissions. Our attention was also
drawn to the various statutory provisions referred to by learned
senior advocates for the petitioners thereby expounding the
interplay of the provisions in the context of sub leases executed in
favour of the societies. It is submitted that the present is not a case
where the petitioners are deprived of their property without
following the due process of law for Article 300A of the
Constitution of India to be attracted. It is submitted that the
petitioners are adequately compensated which is strictly in terms of
the statutory framework prescribed and therefore there is no
deprivation of the property much less without following the due
process of law. It is submitted that the redevelopment undertaken
and the appointment of C & DA is completely in consonance with
the statutory framework provided for development of MHADA
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properties by resorting to cluster redevelopment.
Decisions relied upon by learned counsel in support of their
submissions
53. Before proceeding to analyse the submissions made by
learned counsel, it is important for us to bear in mind the law laid
down by the Hon’ble Supreme Court and this Court for a proper
appreciation of the controversy in the factual context of the present
case.
54. In Mahendra Saree Emporium (II) vs. G. V. Srinivasa
Murthy3 the term “sub-let” is explained. This decision is relied upon
in the context of the petitioner’s submission that as there is a sub-
lease of the land on which the building stands, the petitioners have
a right to enjoy the property to the exclusion of all others during
the term of the lease which is a sine qua non of a lease. Since this
decision has been heavily relied upon, it would be useful to refer to
the relevant portion of paragraph 16 which reads thus :
“16. The term “sub-let” is not defined in the Act — new or
old. However, the definition of “lease” can be adopted mutatis
mutandis for defining “sub-lease”. What is “lease” between the
owner of the property and his tenant becomes a sub-lease when
entered into between the tenant and tenant of the tenant, the latter
3 (2005) 1 SCC 48168
Bhogale 1.wpl-16257-2026 & ors.docbeing sub-tenant qua the owner-landlord. A lease of immovable
property as defined in Section 105 of the Transfer of Property Act,
1882 is a transfer of a right to enjoy such property made for a
certain time for consideration of a price paid or promised. A transfer
of a right to enjoy such property to the exclusion of all others during
the term of the lease is sine qua non of a lease. A sub-lease would
imply parting with by the tenant of the right to enjoy such property
in favour of his sub-tenant. Different types of phraseology are
employed by different State Legislatures making provision for
eviction on the ground of sub-letting. Under Section 21(1)(f) of the
old Act, the phraseology employed is quite wide. It embraces
within its scope sub-letting of the whole or part of the premises as
also assignment or transfer in any other manner of the lessee’s
interest in the tenancy premises. The exact nature of transaction
entered into or arrangement or understanding arrived at between the
tenant and alleged sub-tenant may not be in the knowledge of the
landlord and such a transaction being unlawful would obviously be
entered into in secrecy depriving the owner-landlord of the means
of ascertaining the facts about the same. However still, the rent
control legislation being protective for the tenant and eviction being
not permissible except on the availability of ground therefor having
been made out to the satisfaction of the court or the Controller, the
burden of proving the availability of the ground is cast on the
landlord i.e. the one who seeks eviction.”
55. In the present case it is the submission that the petitioner
is the owner of the buildings and sub-lessee of the land. As a sub-
lessee, the submission is the petitioner possesses valuable rights
and interest in the land.
56. The next decision relied upon in Vidya Devi vs. State of
Himachal Pradesh and others4. This decision is relied upon to
support the submission that in terms of Article 300A of the
Constitution of India, the petitioners cannot be deprived of its
4 (2020) 2 SCC 569
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property save by the authority of law. The State cannot dispossess
a citizen of his property except in accordance with the procedure
established by law. The relevant portion from the said decision is
extracted thus :
“12.1 The appellant was forcibly expropriated of her
property in 1967, when the right to property was a
fundamental right guaranteed by Article 31 in Part III of the
Constitution. Article 31 guaranteed the right to private
property, which could not be deprived without due process of
law and upon just and fair compensation.
12.2. The right to property ceased to be a fundamental
right by the Constitution (Forty-Fourth Amendment) Act, 1978,
however, it continued to be a human right in a welfare State,
and a constitutional right under Article 300-A of the
Constitution. Article 300-A provides that no person shall be
deprived of his property save by authority of law. The State
cannot dispossess a citizen of his property except in accordance
with the procedure established by law. The obligation to pay
compensation, though not expressly included in Article 300-A,
can be inferred in that Article.
12.3. To forcibly dispossess a person of his private
property, without following due process of law, would be
violative of a human right, as also the constitutional right
under Article 300-A of the Constitution. Reliance is placed on
the judgment in Hindustan Petroleum Corpn. Ltd. v. Darius
Shapur Chenai, wherein this Court held that : (SCC p. 634,
para 6)“6. … Having regard to the provisions contained in
Article 300-A of the Constitution, the State in
exercise of its power of “eminent domain” may
interfere with the right of property of a person by
acquiring the same but the same must be for a
public purpose and reasonable compensation
therefor must be paid.”
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12.4. In N. Padmamma v. S. Ramakrishna Reddy, this
Court held that : (SCC p. 526, para 21)“21. If the right of property is a human right as
also a constitutional right, the same cannot be
taken away except in accordance with law. Article
300-A of the Constitution protects such right. The
provisions of the Act seeking to divest such right,
keeping in view of the provisions of Article 300-A
of the Constitution of India, must be strictly
construed.”
12.5 In Delhi Airtech Services (P) Ltd. v. State of U.P., this
Court recognised the right to property as a basic human right
in the following words : (SCC p. 379, para 30)
“30. It is accepted in every jurisprudence and
by different political thinkers that some amount of
property right is an indispensable safeguard
against tyranny and economic oppression of the
Government. Jefferson was of the view that liberty
cannot long subsist without the support of
property. “Property must be secured, else liberty
cannot subsist” was the opinion of John Adams.
Indeed the view that property itself is the seed-
bed which must be conserved if other
constitutional values are to flourish, is the
consensus among political thinkers and jurists.”
12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat, this
Court held as follows : (SCC p. 627, para 48)
“48. … In other words, Article 300-A only limits
the powers of the State that no person shall be
deprived of his property save by authority of law.
There has to be no deprivation without any
sanction of law. Deprivation by any other mode is
not acquisition or taking possession under Article
300-A. In other words, if there is no law, there is
no deprivation.”
12.9 In a democratic polity governed by the rule of law,
the State could not have deprived a citizen of their property
without the sanction of law. Reliance is placed on the
judgment of this Court in Tukaram Kana Joshi v. MIDC
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wherein it was held that the State must comply with the
procedure for acquisition, requisition, or any other permissible
statutory mode. The State being a welfare State governed by
the rule of law cannot arrogate to itself a status beyond what is
provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar held
that the right to property is now considered to be not only a
constitutional or statutory right, but also a human right.
Human rights have been considered in the realm of individual
rights such as right to shelter, livelihood, health, employment,
etc. Human rights have gained a multi-faceted dimension.
12.13 In a case where the demand for justice is so
compelling, a constitutional court would exercise its
jurisdiction with a view to promote justice, and not defeat it.”
57. The decision in Hindustan Times and others vs. State of
U.P. and another5 was relied upon by the petitioners in support of
the submission that the State cannot while taking recourse to the
executive power of the State under Article 162, deprive a person of
his property. Such power can be exercised only by authority of law
and not by a mere executive fiat or order. It is the contention that
the impugned circulars are mere executive fiats and do not have
the force of law. Paragraphs 22 to 24 are relevant which read thus :
“22. By reason of the impugned directives of the State, the petitioners
have been deprived of their right to property.
23. The expression “law”, within the meaning of Article 300-A, would
mean a Parliamentary Act or an Act of the State Legislature or a
statutory order having the force of law.
5 (2003) 1 SCC 591
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24. In Bishambhar Dayal Chandra Mohan v. State of U.P. this Court
held as under : (SCC p. 66, para 41)“41. There still remains the question whether the
seizure of wheat amounts to deprivation of property
without the authority of law. Article 300-A provides that
no person shall be deprived of his property save by
authority of law. The State Government cannot while
taking recourse to the executive power of the State
under Article 162, deprive a person of his property.
Such power can be exercised only by authority of law
and not by a mere executive fiat or order. Article 162, as
is clear from the opening words, is subject to other
provisions of the Constitution. It is, therefore,
necessarily subject to Article 300-A. The word ‘law’ in
the context of Article 300-A must mean an Act of
Parliament or of a State Legislature, a rule, or a
statutory order, having the force of law, that is positive
or State-made law.”
58. The aforesaid decision in Hindustan Times and others
(supra) relies upon the observations of Their Lordships in
Bishambhar Dayal Chandra Mohan and others vs. State of Uttar
Pradesh and others6 which are important.
59. In Pune Municipal Corporation and another vs. Promoters
and Builders Association and another,7 the question for
consideration was whether the State Government can make any
changes of its own in the modification submitted by the Planning
Authority or not. DCRs are framed in view of the power conferred
by the MRTP Act. Rules framed under the provisions of a statute
6 (1982) 1 SCC 39
7 (2004) 10 SCC 796
73
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form part of the statute. In other words, DCRs have statutory force.
Their Lordships further held that it is a settled position of law that
there could be no “promissory estoppel” against the statute. In this
context paragraphs 5 and 6 being relevant are reproduced reading
thus :
“5. Making of DCR or amendments thereof are legislative
functions. Therefore, Section 37 has to be viewed as repository
of legislative powers for effecting amendments to DCR. That
legislative power of amending DCR is delegated to the State
Government. As we have already pointed out, the true
interpretation of Section 37(2) permits the State Government to
make necessary modifications or put conditions while granting
sanction. In Section 37(2), the legislature has not intended to
provide for a public hearing before according sanction. The
procedure for making such amendment is provided in Section
37. Delegated legislation cannot be questioned for violating the
principles of natural justice in its making except when the
statute itself provides for that requirement. Where the
legislature has not chosen to provide for any notice or hearing,
no one can insist upon it and it is not permissible to read
natural justice into such legislative activity. Moreover, a
provision for “such inquiry as it may consider necessary” by a
subordinate legislating body is generally an enabling provision
to facilitate the subordinate legislating body to obtain relevant
information from any source and it is not intended to vest any
right in anybody. (Union of India v. Cynamide India Ltd., SCC
paras 5 and 27. See generally H.S.S.K. Niyami v. Union of India
and Canara Bank v. Debasis Das.) While exercising legislative
functions, unless unreasonableness or arbitrariness is pointed
out, it is not open for the Court to interfere. (See generally
ONGC v. Assn. of Natural Gas Consuming Industries of Gujarat.)
Therefore, the view adopted by the High Court does not appear
to be correct.
6. DCR are framed under Section 158 of the Act. Rules
framed under the provisions of a statute form part of the74
Bhogale 1.wpl-16257-2026 & ors.docstatute. (See General Officer Commanding-in-Chief v. Dr.
Subhash Chandra Yadav, SCC para 14.) In other words, DCR
have statutory force. It is also a settled position of law that there
could be no “promissory estoppel” against a statute. (A.P.
Pollution Control Board II v. Prof. M. V. Nayudu, SCC para 69,
STO v. Shree Durga Oil Mills, SCC paras 21 and 22 and Sharma
Transport v. Govt. of A.P., SCC paras 13 to 24.) Therefore, the
High Court again went wrong by invoking the principle of
“promissory estoppel” to allow the petition filed by the
respondents herein.”
60. The decision in Pharmacy Council of India vs. Rajeev
College of Pharmacy and others8 is relied upon by learned Senior
Advocates for the petitioners in support of the proposition that the
right to manage the society is also a right to property and hence it
has been held to be a part of fundamental right being a right of
occupation as envisaged under Article 19(1)(g) of the Constitution
of India. The submission is that the requirement of law for the
purpose of Clause (6) of Article 19 of the Constitution of India can
by no stretch of imagination be achieved by issuing the impugned
circulars or a policy decision in terms of Article 162 of the
Constitution of India or otherwise. If at all the Government of
Maharashtra wants to proceed in the manner that is sought to be
done by the impugned circulars, the same can be done only in
8 (2023) 3 SCC 502
75
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accordance with a law enacted by the legislature. Paragraphs 42,
43, 46 and 47 being relevant are reproduced reading thus :
“42. The question is directly answered by this Court in State
of Bihar v. Project Uchcha Vidya, Sikshak Sangh in para 69,
which reads thus : (SCC P.574)“69. The right to manage an institution is also a
right to property. In view of a decision of an eleven-
Judge Bench of this Court in T.M.A. Pai Foundation
v. State of Karnataka establishment and
management of an educational institution has been
held to be a part of fundamental right being a right
of occupation as envisaged under Article 19(1)(g)
of the Constitution. A citizen cannot be deprived of
the said right except in accordance with law. The
requirement of law for the purpose of clause (6) of
Article 19 of the Constitution can by no stretch of
imagination be achieved by issuing a circular or a
policy decision in terms of Article 162 of the
Constitution or otherwise. Such a law, it is trite,
must be one enacted by the legislature.”
43. It could thus be seen that this Court in Project Uchcha
Vidya case has categorically held that a citizen cannot be
deprived of the said right except in accordance with law. It has
further been held that the requirement of law for the purpose of
clause (6) of Article 19 of the Constitution can by no stretch of
imagination be achieved by issuing a circular or a policy
decision in terms of Article 162 of the Constitution or otherwise.
It has been held that such a law must be one enacted by the
legislature.
46. It will also be relevant to refer to the following
observation of the Constitution Bench, consisting of five Judges,
of this Court in State of M.P. v. Bharat Singh : (AIR p. 1174,
para 6)
“6. … Viewed in the light of these facts the
observations relied upon do not support the
contention that the State or its officers may in
exercise of executive authority infringe the rights of
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the citizens merely because the legislature of the
State has the power to legislate in regard to the
subject on which the executive order is issued.”
47. It is thus clear that the Constitution Bench of this Court
in Bharat Singh case holds that the State or its officers cannot
exercise its executive authority to infringe the rights of the
citizens merely because the Legislature of the State has the
power to legislate in regard to the subject on which the
executive order is issued.”
61. In Laxminarayan R. Bhattad and others vs. State of
Maharashtra and another9 the question that arose for consideration
of Their Lordships was whether the appellant can claim the benefit
of land potential in lieu of compensation awarded in his favour by
the arbitrator. Their Lordships held that a direction of the State
Government in terms of Section 154 of the MRTP Act cannot
supersede the statutory provisions contained either in the main
enactment or the statutory regulations. Paragraphs 50, 51, 54 and
60 read thus :
“50. The said instructions were issued keeping in view the new
Regulations in respect of the areas where finally sanctioned town
planning scheme had come into effect without waiting for
compliance in the proceedings of variation of the Town Planning
Scheme Regulations. The directive of State Government issued in
terms of Section 154 of the 1966 Act clearly states that the
development permission shall be strictly scrutinized in
accordance with the sanctioned Development Control9 (2003) 5 SCC 413
77
Bhogale 1.wpl-16257-2026 & ors.docRegulations of Greater Bombay even in the area where finally
sanctioned Town Planning Scheme is pending the procedure of
variation of the Scheme.
51. The said Scheme does not refer to grant of any TDR
and it will bear repetition to state that the development
permission was required to be strictly scrutinized in accordance
with the sanctioned Development Control Regulations. A
direction of the State Government in terms of Section 154 of the
Act cannot supersede the statutory provisions contained either in
the main enactment or the statutory regulations. The State of
Maharashtra had absolutely no jurisdiction to issue any directive
contrary to the statute or the statutory regulations. Once the
draft scheme became final, the provisions thereof shall prevail
over the provisions of the Regulations in terms of the proviso
appended to Sub-Regulation (2) of Regulation 1 of the 1991
Regulations. In such event, the doctrine of “relating back” shall
apply. As indicated hereinbefore, in terms of the provisions of
the said Act the arbitrator’s award became final. The directive of
the State Government could have been enforced till the Scheme
received sanction and was made final but not thereafter.
Furthermore, Regulations 33 and 34 of the 1991 Regulations
provide for enabling provisions. No legal right to get additional
TDR was created thereby. The appellants merely had a right to
be considered. The said Regulations confer wide discretionary
power on the part of the authorities. Each case was required to
be considered on its own merit.
54. Each of the reasons assigned by the Corporation is
valid. In terms of the proviso appended to Sub-Regulation (2) of
Regulation 1 of the 1991 Regulations, it will bear repetition to
state, the Scheme Regulations shall prevail thereover in case of
any conflict. Submission of Mr Devarajan to the effect that Sub-
Regulation (2) of Regulation 1 will apply and not the proviso
appended thereto is misplaced.
60. In this case the applicability of the rule of
incorporation of a statute by reference has no relevance
inasmuch as, as noticed hereinbefore, the 1991 Regulations
themselves would not be applicable in case of the appellants. So
far as the letter of the State of Maharashtra is concerned, the
manner in which a statutory authority had understood the
application of a statute would not confer any legal right upon a78
Bhogale 1.wpl-16257-2026 & ors.docparty unless the same finds favour with a court of law dealing
with the matter. The Corporation or the Stale while seeking to
justify application of the 1991 Regulations as regards the
pending Scheme did not have any occasion to consider the
applicability of Sub-Regulation (2) of Regulation 1 or the proviso
thereof. The question required consideration only having regard
to the sanction of final Scheme by the State and not prior
thereto. It is, therefore, idle to contend that the Corporation
entertained such belief and/or the State Government issued such
direction. Such contention is a matter of little or no consequence
at this stage.”
62. In Godrej and Boyce Manufacturing Company Limited vs.
State of Maharashtra and others10, Their Lordships observed that
Maharashtra Town Planning law has evolved, with a view to
promote planned development and decongest the highly congested
areas, the imaginative concept of making, under certain
circumstances, the development potential of a plot of land
separable from the land itself and further letting the development
rights to be transferable by the landowner. In Godrej and Boyce
Manufacturing Company Limited (supra) there is no dispute
between the parties in regard to the floor space index or
transferable development rights granted to them for the
surrendered pieces of land. But the parties were in serious
controversy over the extent of floor space index or transferable
10 (2009) 5 SCC 24
79
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development rights for the roads constructed on the surrendered
lands at the owner’s cost. The landowners claim that for
constructing the roads they are entitled to floor space index or
transferable development rights for the whole of the surface area of
the roads. In this context the Hon’ble Supreme Court in paragraphs
61 to 65 held thus :
“61. Mr Shishodia submitted that the appellants in all the
cases had agreed to construct the road as part of the condition to
surrender the land and getting 100% TDR in lieu of the land.
According to him, since the construction of the road was a
condition for grant of 100% TDR for the bare land the appellants
and the petitioners were not entitled to claim any further TDR at
all for construction of the roads by them.
62. Mr Shishodia further submitted that it was only
indulgence shown to the appellants and the petitioners that the
municipal authorities agreed to give them additional TDR to the
extent of 15% of the road area after the issuance of Circular dated
9-4-1996 and 25% of the road area after the issuance of the
Circular dated 5-4-2003.
63. The submission of Mr Shishodia is completely
unacceptable. The conditions, that is to say, the mutual rights and
obligations subject to which the landowner may offer to surrender
the designated plot of land to municipal authority and the latter
may accept the offer are enumerated in detail In the statutory
provisions. Beyond those conditions there can be no negotiations
for surrender of the land, particularly in derogation to the
landowner’s statutory rights.
64. Having regard to the nature of the law the submission
advanced on behalf of the municipal authority would lead to
palpably unjust and inequitable results. The landowner whose
land is designated in the development plan as reserved for any of
the purposes enumerated in Section 22 of the Act or for any of the80
Bhogale 1.wpl-16257-2026 & ors.docamenities as defined under Section 2(2) of the Act or Regulation
2(7) [sic Regulation 3(7)] of the Regulations is not left with many
options and he does not have the same bargaining position as the
municipal authority. Therefore, surrender of the land in terms of
clause (b) of Section 126(1) of the Act cannot be subjected to any
further conditions than those already provided for in the statutory
provisions. It is of course open to the legislature to add to the
conditions provided for in the statute (or for that matter to do
away with certain conditions that might be in existence). But it
certainly cannot be left in the hands of the executive to impose
conditions in addition to those in the statutes for accepting the
offer to surrender the designated land.
65. Mr Shishodia next submitted that the measure of 15%
(later raised to 25%) of the area of the road constructed for grant
of TDR by the impugned Circulars of 9-4-1996, 5-4-2003 and 5-5-
2004 was decided in meetings in which Mr Nayan M. Shah,
constituted attorney of the appellants, was also present as the
representative of the industry. Hence, It was no longer open to the
appellants and the petitioners to question those circulars. We are
once again unable to accept the submission, Mr Shah might have
been present in the meeting and he might or might not have voted
for the graded scheme for grant of additional TDR but that would
not authorise the municipal authorities to override or supersede
the statutory provisions by issuing circulars in the nature of
executive instructions.”
63. Their Lordships thus held that the municipal authorities
are not authorised to override or supersede the statutory provisions
by issuing circulars in the nature of executive instructions. Their
Lordships thus held that the stand of the municipal authorities is
contrary to the law as it stood on that day.
64. In Manohar Joshi vs. State of Maharashtra and others11
11 (2012) 3 SCC 619
81
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apart from other questions involved, the Hon’ble Supreme Court
dealt with a question whether the State Government has the
power to issue directions to the Municipal Corporation to act in a
particular manner contrary to the development plan sanctioned by
the State Government, and that too a number of years after the
Municipal Corporation having taken the necessary steps in
consonance with the plan. There Lordships were also dealing with
what is the nature and significance of the planning process for a
large municipal town area and in that process, what is the role of
the statutory planning authority. While considering the scope of
Section 154 of the MRTP Act Their Lordships have made some
significant observations in paragraphs 108 to 114 which are relied
by the petitioners in the factual context of the present case. The
same reads thus :
“108. One of the sections which was pressed into service to
defend the Directions of the State Government dated 3-9-1996
and 29-7-1998 and the actions of the Municipal Commissioner
was Section 154(1) of the MRTP Act. This section reads as
follows:
“154. Control by State Government.–
(1) Every Regional Board, Planning Authority
and Development Authority shall carry out such
directions or instructions as may be issued from82
Bhogale 1.wpl-16257-2026 & ors.doctime to time by the State Government for the
efficient administration of this Act.
(2) If in, or in connection with, the exercise
of its powers and discharge of its functions by
any Regional Board, Planning Authority or
Development Authority under this Act, any
dispute arises between the Regional Board,
Planning Authority or Development Authority,
and the State Government, the decision of the
State Government on such dispute shall be
final.”
109. It was submitted that the State Government was thus
entrusted with the overall control in the interest of efficient
administration, and its directions had to be followed by the
Planning Authority, and such directions could not be faulted on
any count.
110. In a similar situation in Bangalore Medical Trust, a
reservation for a public park was sought to be shifted for the
benefit of a private nursing home. Amongst others Section 65
of the Bangalore Development Act, 1976 was sought to be
pressed into service which authorised the Government to issue
directions to carry out the purposes of the Act. This Court
observed in para 52 of that judgment that the section
authorises the Government to issue directions to ensure that
provisions of law are obeyed and not to empower itself to
proceed contrary to law.
111. In the present matter, it is to be seen that the
section provides for directions or instructions to be given by
the State Government for the efficient administration of the
Act. This implies directions for that purpose which are
normally general in character, and not for the benefit of any
particular party as in the present case. The provisions of law
cannot be disregarded and ignored merely because what was
done, was being done at the instance of the State Government.
Consequently, Section 154 cannot save the directions issued by
the State Government or the actions of the Municipal
Commissioner in pursuance thereof. Thus, the reliance on
these provisions is of no use to the appellants.
112. It was submitted that while passing the order the
83
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Government has referred to a wrong provision of law and
reference to a wrong provision of law does not vitiate the order
if the order can be traced to a legitimate source of power.
Reliance was placed on the judgment of this Court in P.
Radhakrishna Naidu v. Govt. of A. P. and Velji Lakhamsi and
Co. v. Benett Coleman and Co. In the instant case, however,
the Order of the Government dated 3-9-1996 cannot be traced
to any legitimate source of power, and therefore, the situation
cannot be remedied by reference to other sources of power.
The Division Bench has, therefore, rightly commented on this
submission in para 180 of its judgment that “the rub is that the
action taken by the Planning Authority was otherwise not legal
and justified”. It could not therefore be justified by reference to
other provisions of law because basically the decision itself was
illegal.
113. Thus the submission canvassed on behalf of the
appellants is that although the landowner never objected to the
reservation either for a garden or a primary school during the
process of the revision of the DP Plan during 1982 to 1987,
and although he had received the compensation for its
acquisition, he retained the right to develop the property for
residential purposes merely because under the erstwhile Town
Planning Scheme residential use was permissible, and it is
supposed to be saved under Section 165(2) of the MRTP Act.
However, as seen from the conjoint reading of Sections 39, 42
and 46, and the scheme of the Act, such a submission cannot
be accepted. That apart, ultimately it was contended on his
behalf that the deletion of the reservation of a primary school
on this plot under Section 37 of the MRTP Act is not necessary,
and the order passed by the State Government in his favour
can be explained under Section 50 of the MRTP Act read with
DC Rule 6.6.2.2.
114. As we have seen Section 50 as well as DC Rule
6.6.2.2 have no application to the present case, nor can the
power of the State Government under Section 154 of the Act
help the appellants. Besides, independent of one’s right either
under the DP plan or the TP scheme, one ought to have a
permission for development granted by the Planning Authority
traceable to an appropriate provision of law. In the present
case there is none. The appellants are essentially raising all
these submissions to justify a construction which is without a
valid and legal development permission. The appellants have
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gone on improving and tried to change their stand from time to
time with a view to justify the Government’s order in their
favour. However, “orders are not like old wine becoming better
as they grow older” as aptly stated by Krishna Iyer, J. in para 8
of Mohinder Singh Gill v. Chief Election Commr. The
submissions of the appellants in defence of the decision of the
State Government are devoid of any merit and deserve to be
rejected.”
65. The Hon’ble Supreme Court in Brihanmumbai Municipal
Corporation and others vs. Vijay Nagar Apartments and others12
referred to the observations made by Their Lordships in Godrej and
Boyce Manufacturing Company Limited (supra) which we have
already reproduced hereinbefore. A reference to paragraph 41 of
the decision is material in the context of the submission made by
learned counsel for the petitioner that the right under Article 300A
of the Constitution of India is not only a legal right under the
Constitution of India, but it is also a human right and therefore,
statutes which are expropriatory must be strictly construed. Their
Lordship held that while the State is vested with the sovereign
power of ’eminent domain’, it must be juxtaposed against the
public interest sought to be achieved and it should not place an
unfair burden on the private rights which are sought to be
12 2026 SCC OnLine SC 904
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curtailed. Paragraph 41 reads thus :
“41. In this context, it is pertinent to mention that this is
a case relating to acquisition of land since the FSI or TDR
against the area of land surrendered as well as additional FSI
or TDR against the development or construction of amenity on
the surrendered land by the landowner at his own cost, is
stated to be in lieu of other means of compensation as
described in Section 126(1) of the MRTP Act. The right under
Article 300A of the Constitution of India, therefore, squarely
attract, which albeit is no longer a fundamental right; it is a
sacrosanct Constitutional right. Article 300A in plain terms
provides that ‘No person shall be deprived of his property save
by authority of law’. This Court has observed that the said right
is not only a legal right under the Constitution of India, but it is
also a human right and therefore, statutes which are
expropriatory must be strictly constructed. It goes without
saying that while the State is vested with the sovereign power
of ’eminent domain’, it must be juxtaposed against the public
interest sought to be achieved and it should not place an unfair
burden on the private rights which are sought to be curtailed.”
66. It would also be significant to reproduce paragraph 42
which refers to the decision of the Hon’ble Supreme Court in
Kolkata Municipal Corporation vs. Bimal Kumar Shah, heavily
relied upon by Mr. Andhyarujina, learned Senior advocate. The
seven sub-rights which are encapsulated within Article 300A of the
Constitution of India, which also includes the right for fair
compensation is laid down reading thus :
“42. Furthermore, this Court in Kolkata Municipal Corpn.
v. Bimal Kumar Shah, has laid down seven sub-rights which are
encapsulated within Article 300A of the Constitution of India,86
Bhogale 1.wpl-16257-2026 & ors.docwhich also includes the right to fair compensation, in the
following manner :
“29. The constitutional discourse on compulsory
acquisitions, has hitherto, rooted itself within the
“power of eminent domain”. Even within that
articulation, the twin conditions of the
acquisition being for a public purpose and
subjecting the divestiture to the payment of
compensation in lieu of acquisition were
mandated [State of Bihar v. Kameshwar Singh,
(1952) 1 SCC 528]. Although not explicitly
contained in Article 300-A, these twin
requirements have been read in and inferred as
necessary conditions for compulsory deprivation
to afford protection to the individuals who are
being divested of property [Hindustan Petroleum
Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7
SCC 627; K.T. Plantation (P) Ltd. v. State of
Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ)
414]. A post-colonial reading of the Constitution
cannot limit itself to these components alone.
The binary reading of the constitutional right to
property must give way to more meaningful
renditions, where the larger right to property is
seen as comprising intersecting sub-rights, each
with a distinct character but interconnected to
constitute the whole. These sub-rights weave
themselves into each other, and as a
consequence, State action or the legislation that
results in the deprivation of private property
must be measured against this constitutional net
as a whole, and not just one or many of its
strands.
30. What then are these sub-rights or strands of
this swadeshi constitutional fabric constituting
the right to property? Seven such sub-rights can
be identified, albeit non-exhaustive. These are :
(i) The duty of the State to inform the person
that it intends to acquire his property — the right
to notice,87
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(ii) The duty of the State to hear objections to
the acquisition — the right to be heard,
(iii) The duty of the State to inform the person
of its decision to acquire — the right to a
reasoned decision,
(vi) The duty of the State to demonstrate that
the acquisition is for public purpose — the duty
to acquire only for public purpose,
(v) The duty of the State to restitute and
rehabilitate — the right of restitution or fair
compensation,
(vi) The duty of the State to conduct the process
of acquisition efficiently and within prescribed
timelines of the proceedings — the right to an
efficient and expeditious process, and
(vii) The final conclusion of the proceedings
leading to vesting — the right of conclusion.”
67. The Hon’ble Supreme Court in the context of the facts in
Brihanmumbai Municipal Corporation and others vs. Vijay Nagar
Apartments (supra) has observed in paragraphs 43 and 44 as
under :-
“43. The plea that the Landowner had surrendered its
right to claim additional amenity TDR under Section 126(1)
(b) of the MRTP Act against the construction or development
of amenity cannot be countenanced or sustained. The said
provision of statute is a manifestation of Article 300A of the
Constitution of India and once fair compensation as against
surrender of land is prescribed under statute, in terms of
Section 126(1)(b) of the MRTP Act when read with the
relevant regulations, no deprivation of land without strict
compliance thereof can be permissible. In the facts of Godrej88
Bhogale 1.wpl-16257-2026 & ors.docand Boyce I (supra), this Court had specifically found in
paragraph 63 of that judgment that once the compensation
against acquisition of land under Section 126(1)(b) of the
MRTP Act had been laid down, no further negotiations,
especially in order to derogate from the landowner’s rights
can be permissible and no further conditions may have been
imposed by the Corporation which derogate from the
provisions of the statute. The plea that the landowners had
specifically accepted not to claim additional amenity TDR
against the construction or development of amenity was
recorded and rejected by this Court giving specific reasons.
We see no reason to take a different view in this matter when
the same contention was rejected by this Court in Godrej &
Boyce I.
44. In the facts of Godrej & Boyce I (supra), this Court
was dealing with the question as to whether a circular which
at best could be considered as executive instructions, may
override the statutory right of compensation flowing from
Section 126(1)(b) of the MRTP Act. The facts of this case are
worse placed, in that the Corporation contends that an
agreement between the authority/executive and the
landowner may override the statutory provisions which
contemplate the grant of compensation in a certain manner.
We fail to understand how the Corporation can get out of the
crutches of the findings of this Court in the said judgment or
the judgment in Kukreja Construction (supra) where this
Court, in paragraph 70 has negatived the argument of waiver
and abandonment of claim raised by the Corporation therein.
Similar is the view taken by this Court in Yeshwant
Jagannath Vaity (supra) which also stares at the face of the
argument of the Corporation in respect of waiver and
abandonment of claims.”
68. Then in the context of the proposition that once the
statute read with the regulations framed thereunder provides for
compensation to be granted in a certain manner, there was no
occasion for the officials of the Corporation to enter into further
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negotiations with the landowner to come up with a new
mechanism for payment of compensation in derogation of the
same, Their Lordships in paragraph 51 observed thus :
“51. The LOI, Undertaking as well as the Maintenance
Agreement cannot be divorced from the context in which they
were entered into. There is invariably an inequal bargaining
power between the authority, i.e. the Corporation on one hand
and the landowner on the other. We are aware that the
Landowner in the instant case is a corporation, a developer,
but that would make no difference. Once the land has been
demarcated for a public purpose under the MRTP Act, there is
inherent imbalance of bargaining power between the authority
carrying out the acquisition and the landowner and Courts
must be wary of any possible economic duress which might
affect parties’ decision-making. In such circumstances, the
agreement between the Landowner and the Corporation where
the Landowner has purportedly ‘given up’ statutory rights
which accrue in its favour, pales into insignificance, especially
when giving up of such rights has been projected as a pre-
condition at the very first step, as discussed above. Once the
statute read with the regulations framed thereunder provides
for compensation to be granted in a certain manner, there was
no occasion for the officials of the Corporation to enter into
further negotiations with the Landowner to come up with a
new mechanism for payment of compensation in derogation of
the same. There was no occasion for the authorities to contract
out of the statutory conditions for payment of compensation.
Such an act cannot be countenanced and sustained in law, and
it therefore deserves interference by this Court. For the
aforestated reasons, the contention of the Corporation that the
Landowner cannot claim anything beyond the scope of contract
between the parties and the reliance placed on Rajasthan State
Industrial Development & Investment Corpn. (supra) is not
acceptable.”
69. This Court in Sharayu d/o Ashok Gokhale and others vs.
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Nagpur Municipal Corporation and others13 was considering a
challenge raised to the insertion of fresh terms and conditions
while renewing lease of land in a manner contrary to the law laid
down by this Court. This Court held that it was not open for the
State Government to add a new condition either during subsistence
of the lease or at the time of renewal of the lease unless the
conditions of the tenure so provide. The relevant observations can
be found in paragraphs 7, 12 and 19 which read thus :
“7. The Division Bench in Smt. Jaikumari (supra) considered
the question as to whether it was open for the Revenue
Authorities to impose a new condition in a subsisting lease-deed
providing for seeking prior permission of the Authority to
legitimize the proposed transfer of land as well as the question
whether it could impose a condition to claim/levy unearned
charges so as to legitimize and regularize the transfer of the
land by a lessee. The question whether the State had authority
to levy or claim unearned income was also considered by the
Division Bench. After referring to the judgment of the Division
Bench of this Court in Damodar Tukaram Mangalmurti (supra)
it was observed in paragraph 23 and 24 as under :
“23. … ….. It necessarily follows that if the
original (former) lease did not provide for
obligation to pay unearned income to the State,
such condition could not be introduced at a
subsequent point of time during the subsistence of
the lease or for that matter at the time of renewal of
lease. On the other hand, if the original or previous
lease contains condition authorising the
Governmental authority to introduce new condition
or is silent about renewal clause, it will be open to
the authority to introduce new condition consistent
13 2023(2) Mh.L.J. 4891
Bhogale 1.wpl-16257-2026 & ors.docwith the law enacted by the State Legislature on
that subject.
24. …. …. We are conscious of the fact pointed out
by the Counsel for the State that the said matter
dealt with the terms of the lease produced in that
case. Nevertheless, in our opinion, the said decision
would bind the State Government atleast in cases
having similar leases, unless the State Legislature
was to enact a law to overcome the said decision
and to empower the State Government to add new
conditions at the time of renewal of the lease or for
that matter to levy unearned income. In absence
thereof, we have no hesitation in taking the view
that it is not open to the State Government to
impose new conditions for the first time either
during subsistence of the lease or at the time of
renewal of the lease which conditions may be
prejudicial to the grantee and inconsistent with the
tenor of the original lease in absence of law on that
subject or condition incorporated in the original
lease in that behalf. … … …..”.
It was concluded in paragraph 37 as under :–
“37. Taking over ail view of the matter, we
have no difficulty in accepting the claim of the
petitioners that provisions enacted by the State
Legislature as of now would not authorise the State
Government to insert new conditions or modify any
condition during the subsistence of lease period or
for that matter at the time of renewal of the lease.
The renewal of the lease necessarily should be on
same terms and conditions as in the earlier lease
except the change or revision in respect of Annual
lease rent.”
It is thus clear from the aforesaid decision that in view of the
principle stated by this Court in Damodar Tukaram
Mangalmurti (supra) it was not open for the State Government
to add a new condition either during subsistence of the lease or
at the time of renewal of the lease unless the conditions of the
tenure so provide. As stated above, such clause permitting
addition of new conditions while renewing the lease is absent in
the original lease-deed dated 10-7-1935. We thus find that
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Question (a) as framed has been considered and decided by this
Court in Smt. Jaikumari (supra) and it is thus held that it was
not permissible for the Nagpur Municipal Corporation to
incorporate additional terms and conditions in the lease-deed
while renewing it on 2-4-2009 since there is no stipulation in
the original lease-deed dated 10-7-1935 permitting it to do so.
12. In the case in hand, the agreement for renewal of the
lease is between private parties and the Municipal Corporation
which is a local authority within the territory of India for the
purposes of Article 12 of the Constitution. According to the
petitioners they expected renewal of the lease on the same
terms and conditions that existed earlier. It is pleaded that they
had no option but to sign on the dotted line. The challenge to
the insertion of new additional clauses is based on the decision
of this Court in Smt. Jaikumari (supra) by urging that despite
the aforesaid judgment, such insertions have been made in
defiance thereof. The challenge to the insertion of additional
clauses demanding transfer fees based on unearned income
would thus have to be examined in the context of violation of
public policy and breach of Article 14 of the Constitution of
India. If it is found that insertion of such additional clauses
requiring payment of unearned income notwithstanding the
decision of this Court in Smt. Jaikumari (supra) is opposed to
public policy and also violates Article 14 of the Constitution, the
defence of estoppel raised by the Corporation is liable to fall to
the ground since estoppel cannot operate against law. Useful
reference in this regard can be made to the decision in Express
Newspapers Pvt. Ltd. and others vs. Union of India and others,
(1986) 1 SCC 133, wherein it has been held in paragraph 183
that in public law, the most obvious limitation and doctrine of
estoppel is that it cannot be evoked so as to give an overriding
power which it does not in law possess. In other words, no
estoppel can legitimate action which is ultra vires. This principle
has been reiterated in Krishna Rai (dead) through LRs and
others vs. Banaras Hindu University through Registrar and
others, 2022 MhLJ Online (S.C.) 30 =AIR 2022 SC 2924 by
observing that it is a settled position that the principle of
estoppel cannot override the law.
19. Thus in view of the answers given to Questions (a)
and (b), we find that the petitioners are entitled for a
declaration that the insertion of Clauses (i), (j) and (k) in the
renewed lease-deed dated 2-4-2009 and deletion of the earlier
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terms and conditions in the said lease-deed is contrary to the
law laid down by this Court in Smt. Jaikumari (supra) and
therefore invalid. The petitioners would be entitled to seek
renewal of the said lease-deed in accordance with the original
lease-deed dated 10-7-1935. Consequently, the demand of
transfer fees is liable to be set aside since the Nagpur Municipal
Corporation is not empowered to demand the same from the
lessees in the absence of any such stipulation in the original
lease-deed.”
70. The decision in Jay Anand Co-operative Housing Society
Ltd. vs. State of Maharashtra and others14 is relied by learned
Senior Advocates for the petitioners in support of the contention
that the impugned circulars violate Sections 17 and 18 of the MCS
Act. The observation in paragraph 71 being relevant reads thus :
“71. In view of the exemption order being contrary to law
the bifurcation of the Petitioner society could never have been
granted. It is provided in Section 18 of the MCS Act read with
Section 17 of the MCS Act that a bifurcation can only be a
general body resolution of 3/4th of the members, unless, in
exceptional cases it is in ‘public interest’ or ‘in the interest of
members’ (plural/majority) and not miniscule minority. This
has been held by the Supreme Court in Janata Dal v. H.S.
Chowdhary (Supra). I find from the facts of the present case
that it does not fall within the defined criteria of ‘public interest’
or in the ‘interest of members’ as it is not in larger interest of
members apart from the majority of the members having
opposed bifurcation. Further, the judgment relied upon by the
Petitioner viz. Bombay Catholic CHS Ltd. (Supra) is apposite.”
71. In Smt. Damyanti Naranga vs. The Union of India and
others15 the Hon’ble Supreme Court was considering a challenge to
14 2026 SCC OnLine Bom 537
15 1971 (1) SCC 678
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the validity of the Hindi Sahitya Sammelan Act. Their Lordships in
paragraph 6 observed as under :
“6. It was argued that the right guaranteed by Article 19(1)(c)
is only to form an association and, consequently, any regulation
of the affairs of the Association, after it has been formed, will
not amount to a breach of that right. It is true that it has been
held by this Court that, after an Association has been formed
and the right under Article 19(1)(c) has been exercised by the
members forming it, they have no right to claim that its
activities must also be permitted to be carried on in the manner
they desire. Those cases are, however, inapplicable to the
present case. The Act does not merely regulate the
administration of the affairs of the Society; what it does is to
alter the composition of the Society itself as we have indicated
above. The result of this change in composition is that the
members, who voluntarily formed the Association, are now
compelled to act in that Association with other members who
have been imposed as members by the Act and in whose
admission to membership they had no say. Such alteration in
the composition of the Association itself clearly interferes with
the right to continue to function as members of the Association
which was voluntarily formed by the original founders. The
right to form an association, in our opinion, necessarily implies
that the persons forming the Association have also the right to
continue to be associated with only those whom they
voluntarily admit in the Association. Any law, by which
members are introduced in the voluntary Association without
any option being given to the members to keep them out, or any
law which takes away the membership of those who have
voluntarily joined it, will be a law violating the right to form an
association. If we were to accept the submission that the right
guaranteed by Article 19(1)(c) is confined to the initial stage of
forming an Association and does not protect the right to
continue the Association with the membership either chosen by
the founders or regulated by rules made by the Association
itself, the right would be meaningless because, as soon as an
Association is formed, a law may be passed interfering with its
composition, so that the Association formed may not be able to
function at all. The right can be effective only if it is held to
include within it the right to continue the Association with its95
Bhogale 1.wpl-16257-2026 & ors.doccomposition as voluntarily agreed upon by the persons forming
the Association. This aspect was recognised by this Court,
though not in plain words, in the case of O. K. Ghosh and
Another v. E. X. Joseph. The Court, in that case, was
considering the validity of Rule 4(B) of the Central Civil
Services (Conduct) Rules, 1955, which laid down that:
“No Government servant shall join or continue to be a
member of any Service Association of Government
servants :
(а) which has not, within a period of six months
from its formation, obtained the recognition of the
Government under the rules prescribed in that behalf,
or
(b) recognition in respect of which has been refused
or withdrawn by the Government under the said
rules.”
This Court held:
“It is not disputed that the Fundamental Rights
guaranteed by Article 19 can be claimed by
Government servants. Article 33 which confers power
on the Parliament to modify the rights in their
application to the Armed Forces, clearly brings out
the fact that all citizens, including Government
servants, are entitled to claim the rights guaranteed
by Article 19. Thus, the validity of the impugned rule
has to be judged on the basis that the respondent and
his co-employees are entitled to form Associations or
Unions. It is clear that Rule 4-B imposes a restriction
on this right. It virtually compels a Government
servant to withdraw his membership of the Service
Association of Government servants as soon as
recognition accorded to the said Association is
withdraw or if, after the Association is formed, no
recognition is accorded to it within six months. In
other words, the right to form an Association is
conditioned by the existence of the recognition of the
said Association by the Government. If the
Association obtains the recognition and continues to
enjoy it, Government servants can become members96
Bhogale 1.wpl-16257-2026 & ors.docof the said Association; if the Association does not
secure recognition from the Government or
recognition granted to it is withdrawn, Government
servants must cease to be the members of the said
Association. That is the plain effect of the impugned
rule.”
72. In Union of India vs. Rajendra N. Shah and another 16 the
Hon’ble Supreme Court was considering a challenge to the decision
of the High Court of Gujarat in Rajendra N. Shah vs. Union of India
and another17. The question which was raised in the petitions and
decided by the High Court of Gujarat was as to whether Part IX-B is
non est for want of ratification by half of the States under the
proviso to Article 368(2) of the Constitution of India. The High
Court of Gujarat had declared that the said constitutional
amendment inserting Part IX-B is ultra vires the Constitution for
want of the requisite ratification under Article 368(2) proviso,
which however will not impact amendments that have been made
in Article 19(1)(c) and in inserting Article 43-B in the Constitution
of India. The observations made in paragraph 93 being relevant
reads thus :
16 (2022) 19 SCC 520
17 2013 SCC OnLine Guj 224297
Bhogale 1.wpl-16257-2026 & ors.doc“93. The judgment of the High Court is upheld except to the
extent that it strikes down the entirety of Part IX-B of the
Constitution of India. As held by us above, it is declared that Part
IX-B of the Constitution of India is operative only insofar as it
concerns multi-State cooperative society both within the various
States and in the Union Territories of India. The appeals are
accordingly disposed of.”
73. The Hon’ble Supreme Court in Andhra Pradesh Dairy
Development Corporation Federation vs. B. Narasimha Reddy and
others18 in paragraph 47 has held that the State is not permitted to
change the fundamental character of the association or alter the
composition of the society itself by statutory interventions.
Paragraphs 45 to 47 are relevant which read thus :
“45. Therefore, it is evident that the Court will not pass
any order binding the Government by its promises unless it is
so necessary to prevent manifest injustice or fraud,
particularly, when the Government acts in its governmental,
public or sovereign capacity. Estoppel does not operate
against the Government or its assignee while acting in such
capacity.
46. The Government has inherent power to promote the
general welfare of the people and in order to achieve the said
goal, the State is free to exercise its sovereign powers of
legislation to regulate the conduct of its citizens to the extent,
that their rights shall not stand abridged.
47. The cooperative movement by its very nature, is a
form of voluntary association where individuals unite for
mutual benefit in the production and distribution of wealth
upon principles of equity, reason and common good. So, the
basic purpose of forming a cooperative society remains to18 (2011) 9 SCC 286
98
Bhogale 1.wpl-16257-2026 & ors.docpromote the economic interest of its members in accordance
with the well-recognised cooperative principles. Members of
an association have the right to be associated only with those
whom they consider eligible to be admitted and have right to
deny admission to those with whom they do not want to
associate. The right to form an association cannot be infringed
by forced inclusion of unwarranted persons in a group. Right
to associate is for the purpose of enjoying in expressive
activities. The constitutional right to freely associate with
others encompasses associational ties designed to further the
social, legal and economic benefits of the members of the
association. By statutory interventions, the State is not
permitted to change the fundamental character of the
association or alter the composition of the society itself. The
significant encroachment upon associational freedom cannot
be justified on the basis of any interest of the Government.
However, when the association gets registered under the
Cooperative Societies Act, it is governed by the provisions of
the Act and the Rules framed thereunder. In case the
association has an option/choice to get registered under a
particular statute, if there are more than one statutes
operating in the field, the State cannot force the society to get
itself registered under a statute for which the society has not
applied.”
74. Following the Andhra Pradesh Dairy Development
Corporation Federation (supra) this Court in Dinanath Co-
operative Housing Society Ltd. vs. The State of Maharashtra and
others19 while referring to paragraphs 46 and 47 quoted above,
observed in paragraph 97 thus :
“97. As a result of the above discussion, we find that the
impugned order is ex-facie illegal, erroneous, arbitrary and
violates the mandate of Article 14 of the Constitution of India.
Even in the matters of present nature, the state ought to act19 2016 SCC OnLine Bom 9861
99
Bhogale 1.wpl-16257-2026 & ors.docfairly, reasonably and in non-arbitrary manner. It cannot, at
the behest and instance of anybody, much less a stranger,
interfere with the administration of a lawful association or a
co-operative housing society as in the instant case and violate
the mandate of Article 19(1)(c) of the Constitution of India as
well. Once all these constitutional provisions are violated,
then, the impugned order cannot be sustained. It is quashed
and set aside. Rule is made absolute in terms of prayer clause
(a). There would be no order as to costs.”
75. Olga Tellis and others vs. Bombay Municipal Corporation
and others20 is relied upon in support of the proposition that the
procedure prescribed by law for the deprivation of the right
conferred by Article 21 must be fair, just and reasonable. Just as a
mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. The procedure
prescribed by law for depriving a person of his fundamental right,
must conform to the norms of justice and fair play. Procedure,
which is unjust and unfair in the circumstances of a case, attracts
the vice of unreasonableness, thereby vitiating the law which
prescribes that procedure and consequently, the action taken under
it. The observations made in paragraphs 40, 41 and 44 are relevant
reading thus :
20 (1985) 3 SCC 545
100
Bhogale 1.wpl-16257-2026 & ors.doc“40. Just as a mala fide act has no existence in the eye of
law, even so, unreasonableness vitiates law and procedure
alike. It is therefore essential that the procedure prescribed by
law for depriving a person of his fundamental right, in this
case the right to life, must conform to the norms of justice and
fairplay. Procedure, which is unjust or unfair in the
circumstances of a case, attracts the vice of unreasonableness,
thereby vitiating the law which prescribes that procedure and
consequently, the action taken under it. Any action taken by a
public authority which is invested with statutory powers has,
therefore, to be tested by the application of two standards :
The action must be within the scope of the authority conferred
by law and secondly, it must be reasonable. If any action,
within the scope of the authority conferred by law, is found to
be unreasonable, it must mean that the procedure established
by law under which that action is taken is itself unreasonable.
The substance of the law cannot be divorced from the
procedure which it prescribes for, how reasonable the law is,
depends upon how fair is the procedure prescribed by it. Sir
Raymond Evershed says that, “from the point of view the
ordinary citizen, it is the procedure that will most strongly
weigh with him. He will tend to form his judgment of the
excellence or otherwise of the legal system from his personal
knowledge and experience in seeing the legal machine at
work”. Therefore, “He that takes the procedural sword shall
perish with the sword”.
41. Justice K.K. Mathew points out in his article on
‘The Welfare State, Rule of Law and Natural Justice’ which is
to be found in his book Democracy, Equality and Freedom,
that there is “substantial agreement in juristic thought that the
great purpose of the rule of law notion is the protection of the
individual against arbitrary exercise of power wherever it is
found”. Adopting that formulation, Bhagwati, J. speaking for
the Court, observed in Ramana Dayaram Shetty v.
International Airport Authority of India, that it is (SCC p. 504,
para 10) “unthinkable that in a democracy governed by the
rule of law, the executive Government or any of its officers
should possess arbitrary power over the interests of the
individual. Every action of the executive Government must be
informed with reason and should be free from arbitrariness.
That is the very essence of the rule of law and its bare
minimal requirement”.
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44. The challenge of the petitioners to the validity of
the relevant provisions of the Bombay Municipal Corporation
Act is directed principally at the procedure prescribed by
Section 314 of that Act, which provides by clause (a) that the
Commissioner may, without notice, take steps for the removal
of encroachments in or upon any street, channel, drains, etc.
By reason of Section 3(w), ‘street’ includes a causeway,
footway or passage. In order to decide whether the procedure
prescribed by Section 314 is fair and reasonable, we must first
determine the true meaning of that section because, the
meaning of the law determines its legality. If a law is found to
direct the doing of an act which is forbidden by the
Constitution or to compel, in the performance of an act, the
adoption of a procedure which is impermissible under the
Constitution, it would have to be struck down. Considered in
its proper perspective, Section 314 is in the nature of an
enabling provision and not of a compulsive character. It
enables the Commissioner, in appropriate cases, to dispense
with previous notice to persons who are likely to be affected
by the proposed action. It does not require and, cannot be
read to mean that, in total disregard of the relevant
circumstances pertaining to a given situation, the
Commissioner must cause the removal of an encroachment
without issuing previous notice. The primary rule of
construction is that the language of the law must receive its
plain and natural meaning. What Section 314 provides is that
the Commissioner may, without notice, cause an
encroachment to be removed. It does not command that the
Commissioner shall without notice cause an encroachment to
be removed. Putting it differently, Section 314 confers on the
Commissioner the discretion to cause an encroachment to be
removed with or without notice. That discretion has to be
exercised in a reasonable manner so as to comply with the
constitutional mandate that the procedure accompanying the
performance of a public act must be fair and reasonable. We
must lean in favour of this interpretation because it helps
sustain the validity of the law. Reading Section 314 as
containing a command not to issue notice before the removal
of an encroachment will make the law invalid.”
76. Thus, Their Lordships in paragraph 44 laid down that the
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primary rule of construction is that the language of the law must
receive its plain and natural meaning. Their Lordships leaned in
favour of the interpretation as placed on Section 314 because it
helps sustain the validity of the law.
77. Mr. Jahagirdar, learned Senior Advocate has relied upon
the following decisions in support of his submissions :
(1) Jamal Uddin Ahmad vs. Abu Saleh Najmuddin
and another21 to support the submission in the present
case that once the petitioner’s contractual right for grant
of registered lease deed is recognised by this Court’s vide
order dated 29/04/2014, MHADA is not left with any
discretion, but, to act upon it by executing and registering
a lease deed, which is a mere ministerial act/duty.
(2) In support of the principles governing doctrines
of election, approbation and reprobation and promissory
estoppel, reliance is placed on the decision in Rajasthan
State Industrial Corporation and another vs. Diamond &
21 (2003) 4 SCC 257
103
Bhogale 1.wpl-16257-2026 & ors.docGem Development Corporation Ltd. and another22.
(3) To support the contention that the State must act
as a virtuous litigant which equally applies to MHADA,
being an instrumentality of the State, reliance is placed on
the decision in Dilbagh Rai Jarry vs. Union of India and
others23.
(4) To support the proposition that what cannot be
done directly cannot be done indirectly and where a
power is given to do a certain thing in a certain way, the
thing must be done in that way, or not at all, reliance is
placed on the decision in State vs. Sanjeev Nanda24
(5) To support the submission that principles of
interpretation of statutes would equally apply to executive
instructions such as Government Resolutions issued under
Article 162 of the Constitution of India, reliance is placed
on Reghunath Rai Bareja and another vs. Punjab National
Bank and others25. It is submitted that when words of
22 (2013) 5 SCC 470 [para 15]
23 (1974) 3 SCC 554 [para 25 (unnumbered)]
24 (2012) 8 SCC 450 [para 28]
25 (2007) 2 SCC 230 [paras 55 and 58]
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statute are clear, plain and unambiguous, then the courts
are bound to give effect to that meaning, irrespective of
the consequences. The words themselves best declare the
intention of the law-giver. The literal rule of interpretation
is not only followed by judges and lawyers, but it is also
followed by the layman in his ordinary life. The literal rule
simply means that we mean what we say and we say what
we mean.
(6) In Kotak Mahindra Bank Limited vs. A.
Balakrishnan and another26 it is observed that where the
meaning of the words used in an enactment is plain and
unambiguous, the courts must give effect to that meaning
only. The court must proceed on the assumption that the
legislature did not make a mistake and that it intended to
say what it said. This decision also deals with the
principles governing ratio decidendi of a judgment.
(7) The decision in State of Bihar and others vs.
Project Uchcha Vidya, Sikshak Sangh and others27 is
26 (2022) 9 SCC 186 [paras 76-78]
27 (2006) 2 SCC 545 [paras 65-71]
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referred to support the proposition that the executive
orders under Article 162 are not “law” within Article
300A. Every executive action prejudicing a person must
have sanction of law, and equity and good conscience
must be at the core of government functions. It is
submitted this decision contemned the State’s attempt to
achieve through executive fiat what it failed to achieve
through legislation and also struck down the “take it or
leave it” conditions imposed by the State on unequal
bargaining parties in view of the mandate of Article 14 of
the Constitution of India.
(8) The proposition then canvassed is that in every
legal system there is a hierarchy of laws, and whenever
there is conflict between a norm in a higher layer in this
hierarchy and a norm in a lower layer, the norm in the
higher layer will prevail. In the hierarchy of laws, the
notification issued by the Executive must yield to the
Constitutional provisions, the Act and the Rules. The
powers under MHADA Act, MRTP Act and the GRs (issued
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under Article 162) will be subject to constitutional
limitations such as Articles 14, 19(1)(g), 21 and 300A of
the Constitution of India. Reliance is placed on the
decision in M/s. Ispat Industries Ltd. vs. Commissioner of
Customs, Mumbai28.
(9) To support the proposition that the term property
includes not only ownership and possession but also the
right of use, and enjoyment of the property for lawful
purposes, it is submitted that the property, within
constitutional protection, denotes group of rights inhering
in citizen’s relation to physical things as right to possess
use and dispose it of. Reliance is placed on the decision in
Vikas Sales Corporation and another vs. Commissioner of
Commercial Taxes and another29.
(10) To support the contention that persons in bona
fide possession of structures constructed by them on
Government land cannot be removed except by authority
of law and not by executive action in view of the rule of
28 (2006) 12 SCC 583 [para 27-28]
29 (1996) 4 SCC 433 [para 19]
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law, reliance is placed on the decision in Bishan Das and
others vs. State of Punjab and others30.
(11) The next proposition is that legitimate
expectation arises from consistent past practice in
allotment, even if there is no right in private law. In case
an authority wants to defeat such legitimate expectation
then prior hearing is a must. The decision in Navjyoti
Coop. Group Housing Society vs. Union of India and
others31 is relied upon.
(12) It is then the contention that Government is a
regulator and dispenser of special services and provides to
the large public benefits including contracts. The
discretion of the Government has been held to be not
unlimited. The Government cannot give or withhold
largesse in its arbitrary discretion or according to its sweet
will. The Government cannot now say that it will transfer
the property (land, etc.) or will give jobs or enter into
contracts or issue permits or licences only in favour of
30 1961 SCC OnLine SC 136 [paras 12-14]
31 (1992) 4 SCC 477 [paras 15-16]
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certain individuals. The decision in Saroj Screens Private
Limited vs. Ghanshyam and others32 is relied upon.
78. In B. R. Enterprises vs. State of U.P. and others 33 the
Hon’ble Supreme Court in paragraph 81 has held thus :
“81. The legal principle which emerges, as submitted, is
that delegation of essential legislative power of the principal to
the delegatee would amount to abdication of its legislative
power and if it is bereft of any guidelines then it is
unsustainable in the eye of the law. The authorities cited by
various learned counsel and the law on the subject, cannot be
doubted. But this principle is to be tested by scanning the
impugned legislation which may differ one from the other in its
nature, setting up or other circumstances which may have
bearing to conclude. It is also well settled that first attempt
should be made by the courts to uphold the charged provision
and not to invalidate it merely because one of the possible
interpretations leads to such a result, howsoever attractive it
may be. Thus, where there are two possible interpretations, one
invalidating the law and the other upholding, the latter should
be adopted. For this, the courts have been endeavouring,
sometimes to give restrictive or expansive meaning keeping in
view the nature of legislation, maybe beneficial, penal or fiscal
etc. Cumulatively it is to subserve the object of the legislation.
Old golden rule is of respecting the wisdom of legislature that
they are aware of the law and would never have intended for an
invalid legislation. This also keeps courts within their track and
checks individual zeal of going wayward. Yet in spite of this, if
the impugned legislation cannot be saved the courts shall not
hesitate to strike it down. Similarly, for upholding any
provision, if it could be saved by reading it down, it should be
done, unless plain words are so clear to be in defiance of the
Constitution. These interpretations spring out because of
concern of the courts to salvage a legislation to achieve its
objective and not to let it fall merely because of a possible32 (2012) 11 SCC 434 [paras 33-37]
33 (1999) 9 SCC 700109
Bhogale 1.wpl-16257-2026 & ors.docingenious interpretation. The words are not static but dynamic.
This infuses fertility in the field of interpretation. This equally
helps to save an Act but also the cause of attack on the Act.
Here the courts have to play a cautious role of weeding out the
wild from the crop, of course, without infringing the
Constitution. For doing this, the courts have taken help from the
Preamble, Objects, the scheme of the Act, its historical
background, the purpose for enacting such a provision, the
mischief, if any which existed, which is sought to be eliminated.
The kingdom of interpretation is enriched by the rule as laid
down in Heydon’s case as far back in the 16th Century.
According to this, courts must see what was the law before the
impugned provision, what was the mischief for which the then
law did not provide, what is the reason to remedy that mischief
and what remedy the impugned provision has provided. This
rule has been accepted by this Court in Bengal Immunity Co.
Ltd. v. State of Bihar and K.P. Varghese v. ITO AIR at p. 1929.
In Hamdard Dawakhana v. Union of India this Court held :
“Therefore, when the constitutionality of an enactment
is challenged on the ground of violation of any of the
articles in Part III of the Constitution, the ascertainment
of its true nature and character becomes necessary, i.e.,
its subject-matter, the area in which it is intended to
operate, its purport and intent have to be determined. In
order to do so it is legitimate to take into consideration
all the factors such as history of the legislation, the
purpose thereof, the surrounding circumstances and
conditions, the mischief which it intended to suppress,
the remedy for the disease which the legislature
resolved to cure and the true reason for the remedy;
Bengal Immunity Co. Ltd. v. State of Bihar, R.M.D.
Chamarbaugwalla v. Union of India; Mahant Moti Das v.
S.P. Sahi.
Another principle which has to be borne in mind in
examining the constitutionality of a statute is that it
must be assumed that the legislature understands and
appreciates the need of the people and the laws it enacts
are directed to problems which are made manifest by
experience and that the elected representatives
assembled in a legislature enact laws which they
consider to be reasonable for the purpose for which they
are enacted. Presumption is, therefore, in favour of the110
Bhogale 1.wpl-16257-2026 & ors.docconstitutionality of an enactment. Charanjit Lal
Chowdhury v. Union of India; State of Bombay v. F,N.
Balsara; Mahant Moti Das v. S.P. Sahi.”
The following passage in Seervai’s Constitution of India (3rd
Edn.), p. 119 found approval in Delhi Transport Corpn. v. DT.C.
Mazdoor Congress. The Court held : (SCC p. 711, paras 217-18)
“217. Seervai in his book Constitutional Law of India
(3rd Edn.) has stated at p. 119 that :
‘… the courts are guided by the following rules in
discharging their solemn duty to declare laws passed by
a legislature unconstitutional:
(1) There is a presumption in favour of
constitutionality and a law will not be declared
unconstitutional unless the case is so clear as to be free
from doubt; “to doubt the constitutionality of a law is to
resolve it in favour of its validity”.
* * *
(6) A statute cannot be declared unconstitutional
merely because in the opinion of the court it violates
one or more of the principles of liberty, of the spirit of
the Constitution, unless such principles and that spirit
are found in the terms of the Constitution.’
218. On a proper consideration of the cases cited
hereinbefore as well as the observations of Seervai in his
book Constitutional Law of India and also the meaning
that has been given in the Australian Federal
Constitutional Law by Colin Howard, it is clear and
apparent that where any term has been used in the Act
which per se seems to be without jurisdiction but can be
read down in order to make it constitutionally valid by
separating and excluding the part which is invalid or by
interpreting the word in such a fashion in order to make
it constitutionally valid and within jurisdiction of the
legislature which passed the said enactment by reading
down the provisions of the Act (sic).”
This principle of reading down, however, will not be available
where the plain and literal meaning from a bare reading of any
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impugned provisions clearly shows that it confers arbitrary,
uncanalised or unbridled power. The Delhi Transport Corpn.
case was with reference to challenge to the provisions relating
to termination of service of a permanent employee. In Registrar
of Coop. Societies v. K. Kunjabmu this Court held : (SCC
Headnote)
“The power to legislate carries with it the power to
delegate. But excessive delegation may amount to
abdication. Delegation unlimited may invite despotism
uninhibited. So the theory has been evolved that the
legislature cannot delegate its essential legislative
function. Legislate it must, by laying down policy and
principle and delegate it may to fill in detail and carry
out policy. The legislature may guide the delegate by
speaking through the express provision empowering
delegation or the other provisions of the statute such as
the preamble, the scheme or even the very subject-
matter of the statute. If guidance there is, wherever it
may be found, the delegation is valid. A good deal of
latitude has been held to be permissible in the case of
taxing statutes and on the same principle generous
degree of latitude must be permissible in the case of
welfare legislation, particularly those statutes which are
designed to further the Directive Principles of State
Policy.”
This case holds that guidelines can be gathered from the
subject-matter of the Act.”
79. This Court in The Chief Officer/Vice President,
Maharashtra Housing and Area Development Board (MHADA) in
the matter between Manjula Kadir Veeran vs. The State of
Maharashtra and others34 in Interim Application (L) No.4611 of
2021 decided on 06/03/2025 (“Motilal Nagar”, for short) was
34 2025 SCC OnLine Bom 533
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dealing with the Public Interest Litigation (“PIL”) alleging inaction
on the part of the respondents in not removing the illegal
structures, despite several complaints being made and for sitting
tight over the issue, by completely remaining dormant. In the PIL
several interim applications were filed and one such application
was filed by MHADA for grant of permission to MHADA to
redevelop Motilal Nagar I, II and III jointly with “Construction and
Development Agency (ies)” to be selected through tender process
on FSI sharing basis, in terms of the present DCPR 2034. This Court
has observed that the relief in all the proceedings revolve around
redevelopment of Motilal Nagar I, II and III.
80. Mr. Samdani, learned Senior Advocate submits that the
issue in the PIL was only for demolition of unauthorised
constructions and that is what is dealt with by the Division Bench
of this Court. It is further submitted that the contentions and the
ground which are raised in the present writ petition, mainly that of
the rights under the existing sub-leases were never urged and
noticed in the matter before the Division Bench. The aforesaid
decision is further sought to be distinguished on the ground that
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the issue before the Division Bench pertained to redevelopment
under DCR 33(5), whereas the issue in the present case pertains to
redevelopment under DCR 33(9) in the form of a cluster
redevelopment. It is therefore urged by Mr. Samdani that the
decision in Motilal Nagar is distinguishable.
Decision in Motilal Nagar
81. The decision in Motilal Nagar has an important bearing on
the controversy. Two issues fell for the consideration of this
Court :
(i) Whether the wording ‘on its own’ as used in order
dated 17/10/2013, is capable of admitting the
‘construction and development agency’ to be appointed by
MHADA subject to MHADA retaining control over the
entire redevelopment process but the agency shall only
facilitate the redevelopment.
(ii) Whether the amended DC Regulation 33(5)
permits MHADA to carryout re-development by appointing
an agency.
82. According to the learned Advocate General and learned
Senior Advocates Mr. Darius Khambata and Mr. Ravi Kadam,
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Motilal Nagar decision squarely covers the issues raised in the
present writ petitions. We therefore refer to the relevant portion in
Motilal Nagar in extenso for the sake of convenience. Paragraphs
14 to 36 of the said decision read thus :
“14. MHADA which has been constituted under the
Maharashtra Housing Act, 1976, an Act to whose principle
object is to unify, consolidate and amend laws relating to
housing, repairing and reconstructing dangerous buildings and
carry out improvement work in slum areas.
In the wake of the rapid growth of industries in the
urban areas and the fast growth of population and commercial
activities, the need for housing could not be met by limited
housing construction activities in private sector and it was also
felt necessary to reconstruct the buildings which have lived its
life and since various slums had come up which necessitate
taking up their improvement, the authority known as MHADA
is constituted under Section 3 of the Act, which is cast with the
functions, duties and powers as set out in MHADA Act, 1976.
Principal object of having MHADA as a planning and
statutory authority is aimed to achieve housing in urban area,
as well to take effective steps and acquisition of lands and
buildings for carrying out repairs, construction and re-
construction. The proposed development of Motilal Nagar thus
squarely fall within the objective and purposes and within the
powers and authorities vested in MHADA. Under Section
28(1), which set out the duty and function of the authority
constituted under the Act, MHADA possess the powers of the
land owner, namely to develop and manage all lands vested in
MHADA and to raise resources for the purpose of carrying out
the object of the Act and also to develop the lands vested in it
including the power of closure or demolition of dwellings or
portions of dwellings unfit for human habitation and
demolition of obstructive or dangerous and dilapidated
buildings or portions of such buildings. MHADA is also
empowered to enter into contracts and agreements while
discharging its functions and duties. MHADA is also competent115
Bhogale 1.wpl-16257-2026 & ors.docto exercise the power of eviction and/or land acquisition and
direct vacation of the premises for the purpose of
implementing any plan or project and also to evict occupants,
who are non-cooperative and obstruct any of the aforesaid
activities.
The Maharashtra Housing and Area Development
(Estate management, sale, transfer and exchange of
tenements) Regulation 1981, prescribe that in case of a
conveyance of the building, it will always be subject to a
condition that the land beneath or appurtenant to such
building shall be held on lease from MHADA and as per sub-
rule (5) of Rule 21, the Housing Society, the Company or
allottee shall hold the property on lease and only while such
lease is in force the property shall remain as authority premises
subject to the provision of MHADA Act, 1976. The conveyance
of the building is thus made co-terminus and runs concurrently
with the lease.
15. MHADA has proposed an integrated and holistic
redevelopment for Motilal Nagar, which envisages:-
(i) rehabilitation buildings for both existing and
commercial users;
(ii) development of markets, shopping centres,
offices, houses and work places, mixed use
buildings, cultural centres, clubs, public halls,
recreational centres, schools, community centres,
shelters for women and children, shelters for old,
health-care and medical centres, hostels and
residential buildings of various sizes of apartments
for sale; and
(iii) a network of open spaces and parks and
pedestrian plazas.”
16. Considering the nature of the proposed project, it
may not be possible to be undertaken by individual
co-operative housing societies, or associations formed by
occupants thereof on a piecemeal and individual basis. Each
co-operative society would look solely to the personal interest
of itself and its members, and likely appoint a developer to
undertake a narrow and limited development of its land /
buildings. This would not be in the interest of orderly planning
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and infrastructural development. It would also expose each
society and its occupants to the exigencies of commercial
developments by developers.
Moreover, it is only a holistic redevelopment that
proposes a solution for the long-term problem of flooding and
water-logging faced by the occupants of Motilal Nagar, which
certainly cannot be resolved by individual and piecemeal
redevelopment of separate parcels of land.
17. With this object, the interim applications filed by
MHADA seeking permission for redevelopment by appointing
C&DA to be selected through a tender process, on an FSI
sharing basis and this application being filed on 12/02/2021,
clearly highlighted that the C&DA shall infuse funds required
for the redevelopment.
On 20/07/2021, this Court was informed through
the learned Advocate General that MHADA will take steps
towards the redevelopment, by obtaining cabinet approval,
issuance and finalization of tender, etc. without prejudice to
the rights and contentions of all parties, without claiming any
equities and subject to further orders in the present
proceedings. However, no work order will be issued in favour
of the successful bidder till further orders of this Hon’ble Court.
18. On 08/09/2021, the Cabinet passed a Resolution
approving redevelopment of Motilal Nagar by MHADA through
C&DA and the Cabinet conferred a special project status on the
project. On 06/10/2021, the State Government issued a
Resolution taking a decision regarding redevelopment of
MHADA colonies of Motilal Nagar I, II and III in the
background of the directions issued by this Court on
17/10/2013 and as MHADA proposed to appoint C&DA for
carrying out the redevelopment project.
Recording that the number of hutments and units on
the said ground and the total area of the land, the density of
units being 106 units per hector, which is less than 450 units
per hector, as mentioned in DCPR 2034, so as to make
available the maximum land for redevelopment, and the
project being conferred a status of ‘special project’, by
approving the construction area in excess of permissible
construction area for residential and non-residential use,
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approval was granted to appointment of C&DA through
MHADA.
The approval is subject to the following conditions :-
“(1) While appointing C&DA, the share of carpet area
index should be done on F.S.I. Sharing principle and the
required tender process should be implemented by
MHADA.
(2) While finalizing the tender of C&DA for the said
redevelopment project, the tender of C&DA providing
maximum share of the remaining carpet area excluding
rehabilitation should be finalized.
(3) 1600 sq.ft. per acre for residential use under the said
redevelopment project Construction area (BUA) should be
sanctioned. However, this 1600 sq.ft. out of the
construction area, 833.80 sq.ft. construction costs for an
area larger than the construction area should be borne by
the C&DA assigned to the redevelopment project.
(4) For non-residential use 987 sq.ft. construction area
(BUA) should be sanctioned and as per DPR Rules 2034
of 33(5) the construction area 502.83 sq.ft. construction
costs for an area larger than the construction area should
be borne by the C&DA to be assigned to this
redevelopment project.
(5) Protected slum holders coming under the
redevelopment project at Motilal Nagar 1, 2 and 3 should
be given rehabilitation areas as per the prevailing
provisions of the Maharashtra Slum (Improvement,
Elimination and Redevelopment) Act, 1971.
(6) C & DA to be appointed for this redevelopment
project. Development rights, carpet area index etc. cannot
be transferred to third parties in any way without the
permission of MHADA. So they cannot create the rights of
any third party without the prior permission of MHADA.”
19. The appointment of C&DA is justified by MHADA, on
the ground that the project envisaged is a massive
redevelopment exercise involving approximately 143 acres
land in Goregaon and, since, the redevelopment intends to
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holistically develop residential and commercial centre, MHADA
would require assistance, funding, expertise, competence,
network and capacity of skilled third party, which it expects
from C&DA, who possess the potential to employ best of the
technology for speedy and quality construction. In addition,
C&DA shall bear the cost related to the project and shall bring
in financial outlay and management expertise, which according
to MHADA is not within its permissible limits.
20. The Interim Applications faced an opposition from
Mr. Tekchand Khanchandani, the PIL Petitioner and also from
the individual societies. We have heard learned counsel Mr.
Datta Mane with Mr. Shreyas Chaudhari for the Petitioner in
WPL/22731/21, learned counsel Mr. Rajendra K. Vaingankar
for the Petitioner in WP/3863/24 and in WP/2370/23 as well
as Mr. Gaurav Rane, petitioner-in-person in WP/776/23 and
Mr. Pradeep Havnur for the Petitioner in PIL(L)/6555/22. The
aforesaid Petitions have opposed the redevelopment through
C&DA.
21. In Writ Petition No.2370 of 2023, filed by Motilal
Nagar Shiv Co-Operative Housing Society Limited, challenge is
raised to the Government Resolutions dated 08/09/2021 and
06/10/2021 and it is submitted that the decision of the State
Government be set aside as MHADA has been set up to protect
the public interest in large at Mumbai and not to sanction the
destruction. It is the specific contention raised in the Petitioner
that if the Petitioner is a co-operative housing society and it is
conferred with the welfare of the occupants, it has a right to re-
develop the society and it is specifically urged before us that
the societies are formed by the occupants of different localities,
with an object of getting conveyance in their favour, and on
16/06/2011, the society got the conveyance and its name was
enrolled in the property card. In this background, it is the claim
of the society that it is their prerogative to re-develop the
society and not for MHADA to decide the redevelopment
programme with appointment of C&DA, though valid
resolution being passed by the occupants of the society as
mentioned in DCR 33(5) and, particularly, when this Court on
17/10/2013 had permitted development of Motilal Nagar by
MHADA on its own.
22. Writ Petition No.3863 of 2024 is filed by Motilal
Nagar Rahivasi Vikas Sangh, a co-operative housing society,
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raise similar challenge to the aforesaid Government
Resolutions and it opposed the Interim Applications on the
ground that the order dated 17/10/2013 is sought to be
modified after much water has flown, as this Court had
permitted the redevelopment to be carried out by MHADA
itself.
23. In Writ Petition No.776 of 2023, Mr. Gaurav Rane,
while raising a challenge to the very said GRs would submit
that no consent of the society was obtained before MHADA
decided to get the work of redevelopment done through C&DA
and, therefore, there is principle of violation of natural justice.
In addition, it is also urged that MHADA should develop the
property on its own, without intervention of any other agency
and he would also vehemently submit that MHADA has fixed
its rent, compensation unilaterally and Mr. Rane has urged
before us that in the past, while developing Patra Chawl,
MHADA has goofed-up the entire project, as a result, the
members are still awaiting their houses and he would submit
that he do not want that this should be repeated in Motilal
Nagar. It is the insistence of Mr. Rane that tripartite agreement
shall be executed if at all the C&DA is permitted to redevelop,
so that the societies have an assurance of the compliances.
24. In PIL(L) No.6555 of 2022 filed by Mr. Kamal
Jagdish Singh, it is urged that if MHADA develops the property
on its own, it can retain the FSI and it will be able to
accommodate more people, as ultimately its object is housing
and it must ensure that the benefits of redevelopment of
Motilal Nagar accrues FSI, which is permitted to be utilized for
rehabilitating many people of economically weaker section
from the society. Even this Petitioner has raised an
apprehension that the residents of Motilal Nagar shall not be
made to suffer the same fate as Patra Chawl.
25. We have also heard the Petition filed by Motilal
Nagar-1-Panchshil Co-Op. Housing Society Ltd. which has
sought a permission for self redevelopment and challenged the
impugned communication/letter dated 06/08/2019, refusing
the permission by stating that a consolidated redevelopment
process in terms of DCR 33(5) is proposed and no individual
permission can be granted.
26. Mr. Khambatta, has invited our attention to the RFQ
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cum RFP for the redevelopment of the Motilal Nagar at
Goregaon, floated by MHADA for ‘redevelopment of Motilala
Nagar- I, II and III colonies by MHADB through a construction
cum development agreement by appointed of C&DA. Bid
document has incorporated the principle terms and conditions
of the construction cum development contract and it has
defined C&DA to mean the SPB Company formed by the
selected Bidder for the project, who will construct the
rehabilitation component and MHADB premises, reservation
amenities along with the infrastructure as set out in the
construction cum development agreement.
The draft construction cum development agreement
to be entered with the C & DA or the SPB company is also
placed before us by MHADA and we have perused its clauses
minutely.
The agreement has highlighted scope of the project
and this contemplate preparation of master plan of the project,
preparation of necessary architectural and structural drawings
for each component that is to be constructed and to obtain
necessary approvals in the name of MHADA for rehabilitation
component, reservation amenities and MHADA premises.
It also shall incur the cost to ensure shifting and rehabilitation
of the MHADA eligible tenants shops, and slum dwellers and is
responsible for facilitating and supporting their redevelopment
which shall be phase/sector wise.
The agreement clearly stipulate that C & DA shall
undertake at their cost for and on behalf of MHADA/MHADB,
the redevelopment of rehabilitation component, reservation
amenities and MHADB premises, which shall consist of the
following:-
“a. Rehabilitation houses for approximately 3,372
numbers of MHADA eligible tenements, each having
Built-up area of 1600 sqft.
b. Rehabilitation MHADA eligible shops for
approximately 328 numbers, each having built-up
area of 987 sqft.
c. Rehabilitation of MHADA eligible slums dwellers
and development of amenities for approximately
1,600 number, as per applicable SRA norms and121
Bhogale 1.wpl-16257-2026 & ors.docDCPR 2034.
d. MHADB Premises as per the Bid Criteria Share.
e. Services and infrastructure based on town
planning standards, MCGM rules and relevant
provisions of MHADA.
f. Transit accommodation as required for
residential and commercial units, as per the DCPR
2034.
g. Further the C& DA shall also be responsible to
construct, for and on behalf of MHADB, and at the
costs of the C& DA, the various Reservation
Amenities.”
27. Clause 2.1, which deals with grant of development
right categorically prescribed that the authority, grant
development right in respect of the C & DA share coupled with
the right and entitlement to use the same in the development
and construction and disposal of the C & DA premises
including any right generated of such development, in the
same proportion to such proportion of Rehabilitation
Component and the MHADA premises and associates
amenities, the construction of which has been sanctioned/
approved in phasewise manner.
It is also further contemplated that the
commencement certificate and the occupation certificate for
C& DA share will be issued by MHADA in phases proportionate
to the commencement certificate issued for rehabilitation
premises and MHADA share.
28. The agreement also contemplate that the entire cost
of the project shall be borne by C & DA and the compensation
to be awarded to it shall be only in form of FSI and the bidder
quoting the highest bid criteria share of the sale FSI will be
appointed.
29. The agreement also cover the necessary details of
grant of development right and the effective date and clause
2.1.3.2 record thus:-
“2.1.3.2 Project land is owned by MHADB who
122
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ownership rights will not be parted with the C&DA.
The ownership (free hold rights) of the land shall at
all times remain with MHADB. However, MHADB
shall convey the leasehold rights in respect of parts
of the land to the respective holders, purchasers and
owners thereof, including registered co-operative
societies or similar such bodies, C&DA or
organisations formed by C&DA/C&DA nominated
agencies, in a phased manner concurrent to the
completion of such buildings and such lease period
shall be for a period as per the prevailing policies of
MHADA/MHADB.”
30. When, we have perused the draft agreement, it is
evident to us that the MHADA shall continue to hold the title to
the land even after appointment of the agencies and in no case
the ownership shall be parted with C & DA. In addition, it will
not be permissible for C & DA to mortgage the land in order to
raise finance and create the third party interest. Apart form
this, MHADA continue to exercise complete control over the
project and for this purpose it is imperative for C& DA to
furnish monthly progress reports to MHADA and attained the
quarterly review meetings. MHADA is also empowered to
conduct monthly inspections of the project so as to discourage
any delay/deficiency.
31. Certain safeguards in the proposed arrangement will
allay the fears of the Petitioners, who are opposing the Interim
Applications as well as the PIL Petitioner, and this includes the
following safeguards :-
(i) Timebound Development: Project completion
timeline established at 7 years, subject to limited
exceptions such as force majeure, approvals and
permission from various authorities, and facilitation
by MHADA;
(ii) In case of delay due to a material breach on the
part of the C& DA (not on account of a force majeure
event or delay in facilitation by MHADA), pre-
estimated damages for delay at 0.01.% per month in
proportion to the cost of the cluster affected, shall be
levied.
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(iii) Performance Guarantee: C& DA to furnish a
performance bank guarantee to MHADA equivalent
to 3 % of ready reckoner value of the Rehabilitation
Component + Reservation Amenities + MHADA
share (estimated to be approximately INR 500
crores).
(iv) Phased Redevelopment: C& DA will implement
the Project in phases. During the construction of any
phases, residents of balance phases will be residing
in the same place or in transit accommodation.
Further, the shifting of infrastructure will be
undertaken in a way that existing infrastructure and
services to other existing buildings/chawls is not
affected and remains functional. Additionally,
MHADA will convey leasehold rights in respect of
parts of the land to the relevant person/body in a
phased manner concurrent to the completion of such
buildings.
32. In addition, the MHADA has reserved its rights to
substitute the C& DA in case of any event of default, which
includes situation such as no progress in work in respect of the
rehabilitation component, reservation amenities, by specifically
setting out the event of default.
33. The aforesaid factors assist us in consideration of the
reliefs prayed in the Interim Applications filed by MHADA
seeking appointment of C& DA and also in modifying the order
dated 17/10/2013.
We have already noted order dated 17/10/2013,
which was passed when the unamended DCR 33(5) pertaining
to development/redevelopment of housing schemes of
Maharashtra Housing and Area Development Authority
MHADA was in force, the said DCR contemplated,
re-habilitation area entitlement for an existing residential
tenement in the manner set out in clause (A) along with the
incentive FSI under clause (B) with the sharing of balance FSI
as prescribed in clause (c).
The Government of Maharashtra through its Urban
Development Department on 5/12/2018 modified the
regulation 33(5) of DCR for greater Mumbai and at the
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relevant time regulation 33(5) read thus:-
“33(5) Development/redevelopment of Housing
Scheme of Maharashtra Housing & Area
Development Authority..
1) The FSI for a new constructed tenements
scheme of Low Cost Housing Schemes on vacant
lands for Economically Weaker Section, Low Income
Groups & Middle Income Group of the MHADA
having at least 60% built up area in the form of
tenements under EWS, LIG & MIG categories shall be
2.50.
2) For redevelopment of existing housing schemes
of MHADA, undertaken by the MHADA
departmentally or jointly with societies/occupiers of
buildings or by housing societies/occupiers of
building or by lessees of MHADA or by the
developer, the FSI shall be as under –
a) Total permissible FSI shall be 2.5 on
gross plot area.
b) The incentive FSI admissible against the
FSI required for rehabilitation shall be as
under."
34. The aforesaid was substituted by notification dated
12/11/2018 and clause 2.2 of Regulation 33(5) thereafter,
read thus:-
“2.2 Where redevelopment of buildings in the
existing Housing Schemes of MHADA is undertaken
by MHADA or jointly by MHADA along with the
housing societies or along with the occupiers of such
building or along with the lessees of MHADA, the
Rehabilitation Area Entitlement shall be as follows.”
35. The amended clause therefore permit the
redevelopment of buildings in the existing housing scheme of
MHADA, by MHADA in either of the following modes:-
(i) MHADA;
(ii) jointly by MHADA along with Housing Society;
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(iii) Jointly by MHADA along with occupiers of such
building or;
(iv) jointly by MHADA along with lessees of MHADA.
36. In light of the amended DCR Regulation 33(5), when
a statement was made before this Court, on behalf of MHADA
that it was willing to undertake development itself, as per
amended DCR 33(5), this Court recorded that if MHADA is
willing to undertake development, the issue of unauthorized
construction will be taken care of and there is no necessity for
issuing directions for demolition of unauthorized constructions.
MHADA was clear in its stand to undertake redevelopment of
the entire colony situated on the land belonging to MHADA as
a systematic activity and in the wake of the deletion of the
words ‘departmentally’ which was present in the Regulation
33(5) prior to its amendment, the contradiction is apparent
that MHADA may not necessarily contemplate the re-
development departmentally i.e. by using an inhouse
mechanism. By deletion of the words ‘departmentally’ when
the modified DCR 33(5) permit development to be carried out
by MHADA, we see no legal impediment in MHADA carrying
out the work of re-development by appointing an agency who
shall act on its behalf but the entire control over the agency
shall be retained by MHADA itself and this is implicitly clear
form the tender document as well as the draft of the agreement
to be entered with the entity who shall act as a C&DA.
If MHADA can redevelop the societies and buildings
situated on its land through any other agency since it is its
specific stand, that it do not have the resources of its own to
undertake such a gigantic project and also do not possess the
expertise in technical field, we do not think that we are entitle
to substitute its decision, which is taken after considering the
pros and cons of the matter and with a avowed purpose of
reconstruction of the dilapidated buildings, which are now
posing threat and danger to life of its occupants. Acting in tune
with this objective as contemplated under the Statute under
which it is establish, MHADA is all it way to carry out the
project of redevelopment of Motilal Nagar I, II and III but
through an agency to be chosen by it by an open tender
process with specific stringent condition being imposed, which
we are not call upon to decide here, but since Mr. Khambatta,
the learned Senior Counsel has made a statement that the DCR
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in relation to re-development by MHADA i.e. Regulation 33(5)
shall be stringently followed and all the occupants shall be
given their due share of rent/compensation and separate
agreements will be executed with them and we have no
hesitancy in our mind that MHADA is on its forefront to
re-develop Motilal Nagar I, II, III, which are the building
constructed around the year 1960, under the slum
rehabilitation scheme and almost what unit holders have made
structural alteration in the original structure of the unit
without necessary permission and that is why the PIL petitioner
has approached this Court calling for its demolition. However,
since now MHADA has undertaken to re-develop Motilal Nagar
I and II by itself in terms of the amended DCR regulation
33(5), with the said project being declared as ‘Special Project’
by the State Government, the only argument advanced that
MHADA has sufficient funds and it has advanced loans to
various entities definitely shall not deter us from granting our
approval to MHADA by permitting redevelopment to be carried
out by appointing C & DA as stated in the application.
According to us, though the order dated 17/10/2013, do not
fall for modification, but we must clarify that when it was
directed that the MHADA shall carry out the re-development
‘on its own’ in the wake of the amended DCR 33(5), it is
permissible for MHADA to appoint an agency to carryout the
project of re-development.”
83. In answer to the question as to what extent the economic
policies are amenable to judicial review, Their Lordships in Motilal
Nagar in paragraphs 37, 38 and 39 observed thus :
“37. Wisdom and advisability of economic policies are
ordinarily not amenable to judicial review unless it is
demonstrated that the policy is contrary to any statutory
provision or the constitution itself. It is not open for the Courts
to consider the relative merits of different economic policies
and consider whether a wiser or better one can be evolved. In
the areas of commerce involving financial decisions, a greater
latitude is available to the executive and the Court shall not sit
in judgment over the wisdom of the policy of the legislature or127
Bhogale 1.wpl-16257-2026 & ors.docthe executive. In BALCO Employees Union (REGD) vs. Union of
India, the Court observed thus:-
“92. In a democracy, it is the prerogative of each
elected Government to follow its own policy. Often a
change in Government may result in the shift in
focus or change in economic policies. Any such
change may result in adversely affecting some vested
interests. Unless any illegality is committed in the
execution of the policy or the same is contrary to law
or mala fide, a decision bringing about change
cannot per se be interfered with by the court.
93. Wisdom and advisability of economic policies
are ordinarily not amenable to judicial review unless
it can be demonstrated that the policy is contrary to
any statutory provision or the Constitution. In other
words, it is not for the courts to consider relative
merits of different economic policies and consider
whether a wiser or better one can be evolved. For
testing the correctness of a policy, the appropriate
forum is Parliament and not the courts. Here the
policy was tested and the motion defeated in the Lok
Sabha on 1-3-2001.”
It is categorically held that ‘it is not the domain of
the Court to embark upon an unchartered ocean of public
policy in an exercise to consider as to whether a particular
public policy is wise or a better policy could have been evolved
and such exercise is left to the discretion of the executive and
the legislative authorities as the case may be’.
38. The Courts are expected to act with a great caution
while it interferes with the priorities fixed by the Government,
unless it is established that the decision taken by it is patently
arbitrary and/or not in larger public interest. The Government
should be free to take policy decisions or to decide priorities
and it is better left to the wisdom of the State, which is well
advised by the bureaucrats, and its other officers, who posses
an expertise in taking policy decisions, which may involve
various factors like the availability of fund, the requirement of
the State to focus upon a particular sector in precedence over
the other etc. The wisdom and advisability of such policy
decisions are not ordinarily amenable to judicial review and it
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is time and again specifically held that economic and fiscal
regulatory measures are field, where Judges should encroach
upon warily as Judges are not experts in these matters.
39. In the present case, when the State Government has
declared the project of Motilal Nagar as a ‘Special Project’ by
issuing a government resolution and has accorded its green
signal for MHADA to undertake the re-development of Motilal
Nagar- I, II and III, by appointing a C & DA, by ensuring that
MHADA retains its control over the project but in absence of
the necessary potential to accomplish the huge project, it is
chosen to work through the C&DA and, since, the decision is
based on economic viability as well as the capability of MHADA
to undertake the process of re-development, we are not
inclined to entertain with the same, in the wake of limited
scope being available to us in exercise of writ jurisdiction
under Article 226 of Constitution.”
Analysis and Consideration
84. Bearing in mind the well-settled legal principles, now we
analyse the submissions made in the factual backdrop, due regard
being had to the constitutional and statutory framework governing
the controversy.
85. To appreciate the challenge, it would be material to note
that the Bombay Housing Board Act, 1948 (“BHB Act, 1948”, for
short) was enacted, which had similar provisions to the MHADA
Act, 1976. In 1948, the Bombay Housing Board Regulations, 1948
were enacted. In 1949, MCGM granted the said lands on perpetual
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lease to the Bombay Provincial Housing Board and eventually to
MHB, the predecessor of MHADA. The predecessor of MHADA built
around 56 colonies for Middle Income Group (MIG) and Low
Income Group (LIG) between 1950-1960. MHB allotted tenements
of the said buildings on a rental basis or on a “hire purchase” basis.
In 1969, the Bombay Building Repairs and Reconstruction Board
Act, 1969 was enacted. In 1970, the Maharashtra Housing Board
(Allotment, Management and Sale of Tenement) Regulations, 1970
were enacted. The allottees of tenements of the said buildings
(total 24 buildings) situated on the said lands came together to
form the petitioner society on 31/10/1973. The MHADA Act was
brought into force in 1977. Pursuant to the dissolution of MHB in
the year 1977, all the rights, obligations and the entire property of
MHB stood vested in MHADA.
86. Sub-Lease Deeds were executed on 24/12/1981 by and
between MHADA and the petitioner society, thereby granting the
land beneath and appurtenant to the said buildings to the
petitioner society on lease for the period of 99 years on terms and
conditions mentioned therein. In 1981, the Maharashtra (Disposal
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of Land) Rules, 1981 were framed by MHADA under the provisions
of Section 184(2)(vii) and Section 28(3)(ii) and Section 64 of
MHADA Act, 1976. The Maharashtra Housing and Area
Development (Disposal of Land) Rules, 1981 were framed by
MHADA in 1981.
87. In 1981, the Maharashtra Housing and Area Development
(Estate Management, Sale, Transfer and Exchange of Tenements)
Regulations, 1981 were enacted. The regulations provided for
allotment of tenements, allottees forming the co-operative society
or a company, and thereafter the body of the allottees to get a sub-
lease of the land and the entire premises being treated as
“authority premises” as defined under Section 2(4) of the MHADA
Act, 1976. The 1981 Regulations repeal previous Regulations and
now apply to all authority premises including the subject lands.
Regulation 21 deals with allotment and grant of leases and
provides that all such lands will be held by allottees as “authority
premises”.
88. In 1982, the Maharashtra Housing and Area Development
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(Disposal of Land) Regulations, 1982 were framed by MHADA
under Section 185(1) of the MHADA Act read with Rule 17 of the
Maharashtra Housing and Area Development (Disposal of Land)
Rules, 1981.
89. The Government of Maharashtra issued a Notification on
23/05/2018 under the MRTP Act, authorising MHADA to exercise
the powers of Planning Authority under the provisions of Chapter
IV of the MRTP Act, 1966 in respect of the area of lands of MHADA
layouts under its jurisdiction in Brihanmumbai area and projects
under the Pradhan Mantri Awas Yojana. This notification has a
schedule of MHADA properties in respect of which it has been
appointed as planning authority. Item 35 in the Schedule is the
Adarsh Nagar Worli property and Items 89, 90 and 91 are Bandra
West properties. On 16/03/2023, the State of Maharashtra issued a
GR thereby revising the income criteria classification and
permissible entitlement of carpet area for EWS, LIG, MIG and HIG.
90. On 27/10/2023, the petitioner society filed an application
before MHADA seeking NOC for the redevelopment of the said
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property. On 06/03/2024, a Government of Maharashtra
Resolution was issued for appointment of C & DA for integrated
cluster redevelopment of the Abhyudaya Nagar (Kala Chowky)
MHADA layout. According to learned Advocate General, this GR is
almost identical to the impugned 2025 GR. Clause 10 of this
Resolution provides for obtaining consent of 51% of members of
the layout. On 09/04/2025, the petitioner society appointed M/s.
Vivek Bhole Architects Pvt. Ltd. as its Project Management
Consultant for redevelopment. The State of Maharashtra issued the
impugned GR on 25/04/2025. The petitioner society raised an
objection to the inclusion of the petitioner society in the cluster
redevelopment under GR dated 25/04/2025. The State through
the Housing Department issued a GR dated 15/12/2025
prescribing policy for cluster/joint redevelopment of MHADA
layouts exceeding 20 acres in Brihanmumbai and Suburbs. MHADA
floated a tender in April 2026 for appointment of C & DA for
cluster redevelopment of Adarsh Nagar layout including the said
lands. A representation was addressed by the petitioner society to
MHADA on 30/04/2026 requesting not to take any steps in
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furtherance of the tender.
91. Let us first deal with the contention of the petitioners that
the impugned GRs are without the authority of law. The two
relevant provisions to address the contention of the petitioners are
Article 162 of the Constitution of India and Section 154 of the
MRTP Act, which reads thus :
“162. Extent of executive power of State. – Subject to the
provisions of this Constitution, the executive power of a State
shall extend to the matters with respect to which the Legislature
of the State has power to make laws :
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make laws,
the executive power of the State shall be subject to, and limited
by, the executive power expressly conferred by this Constitution
or by any law made by Parliament upon the Union or
authorities thereof.”
“154. Control by State Government
[(1) Notwithstanding anything contained in this Act or the
rules or regulations made thereunder, the State Government
may, for implementing or bringing into effect the Central or the
State Government programmes, policies or projects or for the
efficient administration of this Act or in the large public interest,
issue, from time to time, such directions or instructions as may
be necessary, to any Regional Board, Planning Authority or
Development Authority and it shall be the duty of such
authorities to carry out such directions or instructions within
the time-limit, if any, specified in such directions or
instructions.](2) If in, or in connection with, the exercise of its powers
and discharge of its functions by any Regional Board, Planning
Authority or Development Authority under this Act, any dispute134
Bhogale 1.wpl-16257-2026 & ors.docarises between the Regional Board, Planning Authority or
Development Authority, and the State Government, the decision
of the State Government on such dispute shall be final.”
92. Article 162 of the Constitution of India provides that the
executive power of a State shall extend to matters with respect to
which the State Legislature has power to make laws. Any subject
which is not within the domain of the judicial powers or legislation
the same falls within the executive power under Article 162 of the
Constitution of India. In Rai Sahib Ram Jawaya Kapur and others
vs. State of Punjab35, the Hon’ble Supreme Court in paragraphs 14
and 15 held thus :
“14. It may not be possible to frame an exhaustive
definition of what executive function means and implies.
Ordinarily the executive power connotes the residue of
governmental functions that remain after legislative and judicial
functions are taken away. The Indian Constitution has not
indeed recognised the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or
branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption, by one organ or
part of the State, of functions that essentially belong to another.
The executive indeed can exercise the powers of departmental
or subordinate legislation when such powers are delegated to it
by the legislature. It can also, when so empowered, exercise
judicial functions in a limited way. The executive Government,
however, can never go against the provisions of the Constitution
or of any law. This is clear from the provisions of Article 154 of
the Constitution but, as we have already stated, it does not35 1955 SCC OnLine SC 14; (1955) 1 SCC 553
135
Bhogale 1.wpl-16257-2026 & ors.docfollow from this that in order to enable the executive to function
there must be a law already in existence and that the powers of
the executive are limited merely to the carrying out of these
laws.
15. The limits within which the executive Government
can function under the Indian Constitution can be ascertained
without much difficulty by reference to the form of the
executive which our Constitution has set up. Our Constitution,
though federal in its structure, is modelled on the British
Parliamentary system where the executive is deemed to have
the primary responsibility for the formulation of governmental
policy and its transmission into law though the condition
precedent to the exercise of this responsibility is its retaining the
confidence of the legislative branch of the State. The executive
function comprises both the determination of the policy as well
as carrying it into execution. This evidently includes the
initiation of legislation, the maintenance of order, the
promotion of social and economic welfare, the direction of
foreign policy, in fact the carrying on or supervision of the
general administration of the State.”
93. Section 154 of the MRTP Act specifically confers
supervisory and controlling power upon the State Government over
the Planning Authorities. Under Section 154 of the MRTP Act,
Regional Boards, Planning Authorities and Development
Authorities are bound to carry out such directions or instructions as
may be issued by the State Government from time to time for
carrying out the purposes of the Act. Such directions issued by the
State Government in relation to implementation of DCRs,
redevelopment policy, and systematic housing distribution are
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within the competence of the State Government, as they are issued
for carrying out the purposes of the Act and are not inconsistent
with any statutory provision.
94. We therefore must necessarily keep in mind whether the
directions issued by the State Government by way of the GRs
override the statutory provisions or are inconsistent thereto.
Having carefully examined the directives in the GRs, we do not find
any direction which is inconsistent with any statutory provisions; in
fact, the same are for carrying out the purposes of the MRTP Act.
We have adverted to this aspect in some detail at a later part of this
judgment.
95. This Court in Nishant Karsan Bhagat vs. City and
Industrial Development Corporation of Maharashtra Ltd. and
others36 has considered the scope of Section 154 of the MRTP Act
and the contours of that power. The decisions on this aspect relied
by the petitioners are considered in this judgment. Paragraph 81
and the relevant portion of paragraph 82 are significant, hence
extracted which reads thus :
36 2022 SCC OnLine Bom 1758
137
Bhogale 1.wpl-16257-2026 & ors.doc“81. We next examine the petitioner’s contention on the
validity of the State Government’s notification dated 14 June,
2021 and 6 September, 2021 issued under Section 154 of the
MRTP Act. The petitioners contend that it was beyond the
powers of the State Government as conferred under section 154
of the MRTP Act to issue such notification. We are unable to
subscribe to such contention of the petitioners. This is for the
fundamental reason that the situation as confronted before the
State Government arising out of two public bodies having
independent statutory powers, is a classic situation. The
petitioners did not have a quarrel to the two bodies, CIDCO and
the NMMC, functioning within their spheres and as per the
powers conferred on them under the statutory provisions as
discussed above prior to the issuance of the notifications dated
14 June, 2021 and 6 September, 2021. In our opinion, such a
situation is most appropriately falling within the purview of
Section 154 of the MRTP Act, for the State Government to step
in, in the wake of the subsequent developments, namely, to
define and clarify the boundaries of the respective powers,
duties and functions of both CIDCO and the NMMC to function
as independent authorities under the MRTP Act for the Navi
Mumbai area. It is hence not only an apt situation but also most
deserving that such clarificatory orders were issued by the State
Government under section 154. Moreover, to resolve any
conflict internal to the working of the Act, which may be
created between two or more authorities functioning within the
MRTP Act by virtue of its different provisions being set into
motion, the legislature thought it appropriate to make a
provision such as Section 154 providing for ‘control by the State
Government’. Much has been stated on behalf of the parties on
the nature of powers which can be exercised by the State
Government under section 154, such provision has been
extracted above.
82. On a plain reading of Section 154, it is manifest that
the provision overrides all other provisions of the MRTP Act or
the rules and regulations made thereunder authorizing the State
Government to exercise its powers inter alia for the efficient
administration of the Act or in the larger public interest to issue
from time to time such directions or instructions as may be
necessary to the Regional Board, Planning Authority or
Development Authority and it shall be the duty of such
authorities to carry out such directions or instructions. In our138
Bhogale 1.wpl-16257-2026 & ors.docclear opinion, the nature of the directions as contained in the
notification dated 14 June, 2021 and 6 September, 2021 are
directions certainly for the efficient administration of the MRTP
Act and undoubtedly in larger public interest and binding on
the NMMC as also CIDCO. Thus, there is no gainsaying that
such directions which are intended to remove any internal
conflict in the NMMC and CIDCO exercising their respective
powers, functions and duties can in any manner be said to be
illegal or beyond the powers conferred on the State Government
under Section 154.”
96. We thus find that the State in its executive wing has
sufficient powers to exercise the executive authority which is
considered as a residual function of the State which is not
exhausted by legislative or judicial functions.
97. The next contention of the petitioner which we have dealt
with is as regards their rights on the subject building and lands by
virtue of the sub-lease deeds executed between MHADA and the
petitioners. To deal with this submission, it is significant to bear in
mind the relevant provisions dealing with the scheme and object of
the MHADA Act. MHADA was officially established by the MHADA
Act to provide a comprehensive coordinated approach towards the
problem of housing development and planning to ensure a
wholesome civic life, paying special attention to ecology, pollution,
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overcrowding and amenities. The declaration at Section 1A of the
MHADA Act states that the purpose of the Act is to give effect to
the Directive Principle of State Policy as enunciated in Article 39(b)
of the Constitution of India viz. that the State shall direct its policy
towards securing the ownership and control of material resources
of the community towards serving the common good. Section 1A
further states that the Act is for ‘execution of the proposals, plans
or projects therefor and the acquisition therefor of the lands and
buildings and transferring the lands, buildings or tenements therein
to the needy persons and the co-operative societies of occupiers of
such lands or buildings.’ The object of the MHADA Act inter alia
includes creating housing stock and providing public housing.
98. Some of the relevant statutory provisions of the MHADA
Act need to be noted thus :
“(i) Section 2 (3) defines “Authority” means the
Maharashtra Housing and Area Development Authority
established under Section 3.
(ii) Section 2 (4) defines “Authority premises” means any
premises belonging to, or vesting in, the Authority, or taken on
lease by the Authority, or entrusted to, or placed at the disposal
of, the Authority for management and use for the purposes of
this Act. Explanation — In this clause “Authority premises”
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includes any premises taken by persons from the Authority
under hire-purchase agreement, during the period any
payments are to be made by such person to the Authority under
such agreement or until such agreement is duly terminated.
(iii) Section 2 (13) defines “development”, with its
grammatical variations, means the carrying out of building,
engineering, mining or other operations in, or over, or under,
any land (including land under sea, creek, river, lake or any
other water) or the making of any material change in any
building or land, and includes re-development and layout and
sub-division of any land, also the provision of amenities and “to
develop” shall be constructed accordingly.
(iv) Section 2 (16) defines “land” which includes open
sites and land which is being built upon or is already built upon,
benefits to arise out of land and things attached to the earth or
permanently fastened to anything attached to the earth; and
also include land under sea, creek, river, lake or any other
water.
(v) Section 2 (25) defines “occupier” includes–
(a) any person who for the time being is paying or
is liable to pay to the owner the rent or any portion of
the rent of the land or building in respect of which
such rent is paid or is payable;
(b) an owner in occupation of, or otherwise using,
his land, or building;
(c) a rent-free tenant of any land or building;
(d) a licensee in occupation of any land or
building; and
(e) any person who is liable to pay to the owner
damages for the use and occupation of any land or
building.
(vi) Section 2 (27) defines "premises" means any land or
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building, or part of a building, whether authorised or otherwise,
and includes –
(a) gardens, grounds and out-houses, if any,
appertaining to such building or part of a building;
(b) any fitting affixed to such building or part of a
building for the more beneficial enjoyment thereof;
and
(c) building or a part of building let or intended to
be let or occupied separately.
(vii) Section 2 (31) “regulations”, means regulations made
under section 185.”
99. It is the submission of learned Advocate General that the
land comprising the MHADA layout on which the petitioner society
buildings are standing is “Authority Premises” as defined under the
MHADA Act. There is much debate on the term “Authority
Premises.” Learned counsel for the petitioners are at pains to point
out that once there is a valid lease in favour of the petitioner
society and conveyance/allotment of the buildings, which are of
the ownership of the petitioner societies, the said buildings and the
land on which they are situated, have ceased to be “Authority
premises” as defined under the MHADA Act. Heavy reliance is
placed on the proviso of Regulation 21(4) of the regulations.
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100. The class of occupiers of “Authority Premises,” as pointed
by learned Advocate General with which we find favour would be
broadly the following :-
(a) Allottees with outstanding payments;
(b) Allottees with no outstanding payments;
(c) Body of Allottees with conveyance of the buildings;
(d) Sub-lessees without conveyance of the buildings;
(e) Sub-lessees with conveyance of the buildings;
(f) Lessees without conveyance of the buildings;
(g) Lessees with conveyance of the buildings.
101. Learned Advocate General submitted that all the above
classes would still be ‘Occupiers’, with varied degrees and shades of
property rights, of “Authority Premises”. The petitioners are
claiming based on sub-lease. The provisions of the MHADA Act
under which the lease-deeds are executed and the clauses of the
lease-deeds leave no manner of doubt that MHADA is the owner of
the subject lands. The tenements and/or the lands allotted by
MHADA to the petitioner societies are held by the petitioners as
‘Authority premises’. The lands which are leased/allotted to the
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petitioner’s vest in the authority and/or are placed at the disposal
of, the authority for management and use for the purposes of the
MHADA Act. Any other interpretation would be contrary to the
object of the MHADA Act. What we must bear in mind is whether
the actions and decisions of MHADA are consistent with the
underlying basis of its parent statute. Further, a reference to
Regulation 21(4) and (5) of the MHADA (Estate Management Sale,
Transfer and Exchange of Tenements) Regulations, 1981 is
relevant, which provides thus :
“21(4) On the formation of the housing society or company,
the Board shall arrange to lease the property to the housing
society or the company and in any other case, the Board shall
lease the tenements in the Building to each allottee where the
allottees have expressed desires to submit the building to the
provisions of the Apartment Act, and thereupon, the society or
the company or the allottees shall hold the property, or as the
case may be, the land and the tenement purely as tenant of the
Authority, until all the allottees have paid the full purchase
price of the tenements and all other outstanding dues, if any,
to the Authority, and the property is duly conveyed to the
housing society or company or to the Association :
Provided that, where the allottees have paid the full purchase
price and there are no outstanding dues due to the Authority,
and the property is duly conveyed to the society, company or
association, as provided in this Regulation, the tenancy
executed in favour of the housing society, company or allottees
shall stand terminated and the building shall cease to be
Authority premises and the housing society or company or the
allottees, as the case may be, shall hold the building as owner
thereof subject, however, to the condition that the land144
Bhogale 1.wpl-16257-2026 & ors.docbeneath or appurtenant to the building shall be held on lease
from, the Authority as provided in these Regulations.
21(5) The housing society, the company, or as the case
may be, the allottees shall hold the property on lease duly
executed in that behalf as tenants of the Authority and till the
lease is in force, the property shall remain as the Authority
premises subject to the provisions of the Act.”
102. It is for a good reason why Regulation 21(5) provides that
the property shall remain as the Authority premises till the leases
are in force. These are lands placed at the disposal of MHADA for
the purposes enumerated in the Act. MHADA cannot act beyond its
authority by divesting itself completely of its rights in the property.
It can execute a lease creating limited rights within the confines of
its prescribed powers. There is nothing unconstitutional about this
provision. On the contrary, such a provision is necessary to ensure
that MHADA shall always act within the confines of its powers,
thereby ensuring the public interest and the object of the Act is not
scuttled in any manner by creating some unwarranted interest in
the said property.
103. Though a challenge is raised that Regulation 21(5) is
unconstitutional, the same is not seriously pressed. Mr. Samdani,
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learned Senior Advocate, did try to advance an argument that the
petitioners have become owners of the said property by virtue of
the lease in terms of the proviso to Regulation 21(4), but in our
opinion 21(4) cannot be read in isolation for the same is controlled
by and subject to 21(5). Even a reading of the proviso to
Regulation 21(4) indicates that at the highest the petitioner can
hold the building as owner thereof when there are no outstanding
dues to the Authority, but that is subject to the condition that the
land beneath or appurtenant to the building shall be held on lease
from the Authority as provided in these Regulations.
104. Further, Regulation 21(5) clearly stipulates that the
allottees shall hold the property on the lease duly executed in that
behalf as tenants of the Authority and till the lease is in force, the
property shall remain as the Authority premises subject to the
provisions of the Act. Thus, so far as the property is concerned, the
allottees shall hold the property on the lease duly executed in that
behalf as tenants of the Authority. The property remains as
Authority Premises subject to the provisions of the Act. It is
therefore more than clear that the lease creates limited rights in
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favour of the occupants.
105. At this stage, we may refer to Section 28 of the MHADA
Act which deals extensively with the powers of MHADA, which
broadly involve the promulgation and promotion of housing
accommodation in urban areas and specifically empowers MHADA
to develop the ‘land vested in the Authority’ as stipulated at sub-
clause (a)(vi) and to manage such lands is provided in sub-clause
(b). Section 28 lays down the powers, functions and duties of
MHADA which inter alia includes the power to prepare and execute
plans and proposals for housing accommodation, development of
areas within MHADA’s jurisdiction. Section 29 confers similar
powers on the MHADB. Section 28, being an important provision in
the present context is extracted thus:
“28. Functions, duties and powers of Authority – (1) Subject to
the provisions of the Town Planning Act, and the provisions of clauses (b)
and (h) of sub-section (1) of section 12 and section 13 of the Metropolitan
Act, it shall be the duty and function of the Authority,-
(a) to prepare or direct the Boards to prepare and execute
proposals, plans or projects for –
(i) housing accommodation in the State or any part
thereof, sale, including transactions in the nature of
hire-purchase of tenements in any building vested in, or
belonging to, the Authority, letting, or exchange of
property of the Authority;
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(ii) development including provision for amenities in
areas within the jurisdiction of the Authority;
(iii) clearance and re-development of slums in urban
areas;
(iv) development of peripheral areas of existing urban
areas to ensure an orderly urban overspill;
(v) development of commercial centres;
(vi) development of new towns in accordance with the
provisions of the Town Planning Act;
(vii) development of lands vested in the Authority;
(viii) the closure or demolition of dwellings or portions
of dwellings unfit for human habitation;
(ix) the demolition of obstructive or dangerous and
dilapidated buildings or portions of such buildings;
(x) repairs to, or construction and reconstruction of
buildings;
(xi) the slum improvement works and improvement of
sanitary arrangements required in any slum
improvement area, including the conservation and
prevention of any injury or contamination to rivers or
other sources and means of water-supply;
(xii) undertaking and promoting prefabrication and
mass production of buildings components;
(b) to manage all lands, houses and buildings or other property
vested in, or belonging to the Authority;
(c) to approve proposals, plans or projects prepared by Boards;
(d) to raise resources for the purpose of carrying out the objects
of this Act and subject to the directions, if any, made by the
State Government, to make suitable allocations of resources to
the Boards;
(e) to approve the budgets of the Boards;
(f) to lay down policy regarding disposal of developed sites and
148
Bhogale 1.wpl-16257-2026 & ors.dochousing tenements of the Authority;
(g) to give directions to Boards for developing areas which in
the opinion of the Authority should be developed;
(h) to advance loans or to assist persons in obtaining loans
from banking or finance institutions in accordance with the
provisions of Chapter X;
(i) to do all such matters and things as are necessary for the
exercise or performance of all or any of the functions and duties
of the Authority including incurring of expenditure in that
behalf.
(2) In addition to the duties and functions referred to in
sub-section (1), the Authority may undertake such other duties
and functions, including those of a Planning Authority or
Special Planning Authority under the Town Planning Act, as the
State Government may assign to the Authority in any specified
area, and in doing so, the Authority shall be deemed to be
fulfilling the purposes of this Act and the provision of Act shall
apply to the Authority in respect of those duties and functions
also.
(3) The Authority may exercise all or any of the following
powers for the purpose of discharging its functions and
performing its duties under this Act, namely :-
(i) to borrow;
(ii) to enter into agreements and contracts;
(iii) to sell, purchase, lease, mortgage, exchange, partition or
otherwise transfer any land or building or to hold land
entrusted to it by Government or by any authority;
(iv) to make regulations regarding-
(a) procedures to be followed regarding contracts,
(b) [* * * *]
(c) operation of accounts of the Authority;
(d) all matters pertaining to staff of the Authority;
(v) to promote or to participate in the formation of limited
149
Bhogale 1.wpl-16257-2026 & ors.doccompanies under the Companies Act, 1956 (1 of 1956), in
furtherance of the objectives of the Authority with the prior
permission of the State Government;
(vi) management of each estate including co-operative
societies;
(vii) to enter and search any Authority premises after due
notice, when necessary to the inmates thereof;
(viii) to execute or carry out any repairs to the lands or
buildings vesting in or belonging to, the Authority;
(ix) all other powers necessary for carrying out the purpose of
this Act including the power to levy or charge fees.”
106. The said property is subject to MHADA’s authority to
develop/redevelop the same. The petitioner societies and its
members are only ‘occupiers’ who are subject to such authority and
the provisions of the MHADA Act. Section 29 prescribes powers
and functions of the Regional Boards, which are somewhat similar
to the powers and functions of the authority and the boards
function under the provisions of supervision of authority. As has
been indicated earlier, the predecessor authority of MHADA was
Bombay Housing Board established under the BHB Act, 1948,
which Act was repealed by MHADA Act, 1976. The Bombay
Housing Board also had a similar objective under Sections 23 to 41
of BHB Act, 1948 for creating housing stock, making housing
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schemes and allotment of tenements, houses etc. However, the said
Act was repealed to consolidate various Acts operating in different
parts of Maharashtra with overlapping functions. The BHB Act,
define housing scheme under Section 2(8), establishment of board
under Section 3 and implementation of housing scheme under
Sections 23 to 41 of the Act.
107. We have already referred to Section 2(4) of MHADA Act
and have no hesitation in holding that the tenements and/or the
lands allotted by the Authority are held by the allottees of MHADA
whether by way of allotment, lease or sub-lease constitute
“authority premises” as defined under Section 2(4). The authority
premises held by any person are subject to Rules and Regulations
made by MHADA or by the Government from time to time and
these Rules and Regulations include the MHADA Land Disposal
Rules, MHADA (Estate Management Sale, Transfer and Exchange
of Tenements) Regulations, 1981 as well as the DCRs made under
the MRTP Act.
108. The sub-lease executed in favour of the petitioner, in
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Clause 5 requires the society to comply with rules, regulations, by-
laws and conditions prescribed by the Government, local authority
or statutory body, whether existing then or prescribed thereafter.
Similarly, Clause 10 requires the society to observe and be bound
by the rules, regulations and by-laws under the relevant Act. We
have already referred to Regulation 21(5) which clearly stipulates
that the allottee shall hold the property on lease duly executed in
that behalf as tenants of the Authority and till the lease is in force,
the property shall remain as the authority premises subject to the
provisions of the Act.
109. It is significant to note that MHADA’s statutory power is
recognised by the DCPR 2034 which contains provisions for
regulating and incentivizing the redevelopment of its existing
housing schemes. The object and purpose of MHADA Act and its
overriding powers, functions and duties have thus to be kept in
mind while considering the petitioners’ claim that they have
unfettered rights to develop the property in view of the lease/sub-
lease executed by MHADA in their favour. The leases/sub-leases
and/or the allotments are made in terms of the statutory
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framework of MHADA Act and therefore the petitioner societies
cannot claim any immunity from the aforesaid statutory and
regulatory regime but are expressly subject thereto. For MHADA
layout, MHADA retains authority to regulate redevelopment in
accordance with applicable laws and policies.
110. The proprietary rights claimed by the petitioners therefore
is a limited, regulated and restricted right and is not an absolute
right. We are therefore in agreement with the learned Advocate
General, Mr. Darius Khambata and Mr. Ravi Kadam, learned Senior
Advocates that MHADA continues to have overarching authority to
develop MHADA schemes, colonies, layouts etc. or in other words
any “Authority Premises”. The limited rights of all the
allottees/lessees/sub-lessees of MHADA by whatever name such
right is held is subject to Authority’s rights to develop/redevelop
such lands. The only requirement is to provide equivalent or better
occupancy rights to such persons in accordance with the extant
regulations. All the occupants of MHADA schemes are ‘occupiers’ of
‘authority premises’ and are subject to overarching authority of
MHADA to develop/redevelop these premises in accordance with
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law.
111. We do not find any substance in the contention of the
petitioner that they have an unfettered right to development of the
plots under the terms of the sub-lease deeds and sale agreements.
It is the submission on behalf of MHADA that the rights of the
petitioner societies are subject to and subservient to MHADA’s
rights and authority; their rights are not unfettered but are limited
both statutorily and contractually. As indicated earlier, MHADA is
the owner of the subject land. In some cases, the buildings are
constructed by the occupiers /allottees, however, the land occupied
by the petitioner societies at the highest are subleased to them
which is subject to the provisions of MHADA Act. The members of
the petitioner societies are thus allottees of MHADA.
112. The terms and conditions in the letter dated 24/04/1971
issued by the predecessor of MHADB to Kamalpushpa Cooperative
Housing Society Ltd., (the Petitioner in Writ Petition (L) No.15631
of 2026) say that in terms of Clause 12, the petitioner society will
not start construction of any building on the land without obtaining
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prior approval of Maharashtra Housing Board. In terms of Clause 6
of the memo of terms and conditions, the petitioner society is
entitled to utilise only the then available FSI for the purpose of
construction of its buildings. In terms of Clause 10, the petitioner
society is not entitled to transfer, assign, encumber or part with
their interest or benefit of the lease without the consent of
Maharashtra Housing Board. In terms of Clause 11, the petitioner
society is not entitled to assign or part with possession of the land
or underlet or transfer their interest therein without the consent of
MHADA.
113. MHADB had circulated a draft lease deed with the
petitioner society for lease of the underlying land to the petitioner
society for a period of 99 years. Clause 2(e) of the draft lease
provides that the land will be used for the bona fide purpose of
residential use and not for any other purpose not specifically
permitted by MHADA. Clause 2(f) provides that the society will
abide by all the rules and regulations of the Government, MCGM
and MHADA in so far as they relate to the said land and in regard
to the construction of the buildings and maintenance thereof.
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114. Clause 2(g) provides that the society will abide by and be
bound by the provisions of the MHADA Act and the rules and
regulations made by or any other law for the time being in force so
far as they relate to the said land and in regard to the construction
of the buildings and maintenance thereof. Clause (k) provides that
the society is not entitled to assign, mortgage, sublet, underlet or
otherwise transfer or part with possession of the said land or the
Society’s interest thereunder or benefit of the lease without the
previous written permission of MHADA. Clause (m) provides that
the society is entitled to utilise the existing FSI permissible for the
said plot. The said clause expressly states that the society shall be
entitled only to the FSI consumed under the building conveyed to
them and that any unutilized FSI becoming available for the said
land in excess of the society’s buildings or any additional FSI
becoming available due to any change or modification in the DC
Rules and Regulations at any point in time shall be the property of
the Authority. Clause 2(n) provides that the society shall not make
any excavation upon the said land without the previous consent of
MHADA.
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115. It is the contention of the petitioner society that MHADA is
bound to execute the formal lease deed with the society and relies
on a lease deed executed by MHADA in favour of one Pradeep Co-
operative Housing Society Limited. Though it is the submission of
learned Advocate General that in the absence of such lease being
executed, the consequence would be that the petitioner societies
are not entitled to any rights, in our considered view, having
regard to the fact that there is a valid allotment in favour of the
members, we proceed on the assumption that valid lease-deeds are
executed in their favour.
116. The said lease-deed reserves MHADA’s rights over the land
in categorical terms by providing inter alia as under :-
“a. That the land will be used for the bona fide purpose
of residential use and not for any other purpose not
specifically permitted by MHADA [Clause 2(f)];
b. That the Society will abide by all rules and
regulations of the Government, MCGM and MHADA in so far
as they relate to the said land and in regard to the
construction of the buildings and maintenance thereof [Clause
2(g)];
c. That the Society will abide by and be bound by the
provisions of the MHADA Act and the rules and regulations
made by or any other law for the time being in force so far as157
Bhogale 1.wpl-16257-2026 & ors.docthey relate to the said land and in regard to the construction
of the buildings and maintenance thereof [Clause 2(h)];
d. Not to assign, mortgage, sublet, underlet or
otherwise transfer or part with possession of the said land or
the Society’s interest thereunder or benefit of the lease
without the previous written permission of MHADA [Clause
(l)]
e. That the Society is entitled to utilize the existing FSI
permissible for the said Plot as per the approved plan sanction
by BMC. The Society shall be entitled only to the FSI
consumed under the building conveyed to them and that any
unutilized FSI becoming available for the said land in excess
of the Society’s buildings or any additional FSI becoming
available due to any change or modification in the DC Rules
and Regulations at any point in time shall be the property of
the Authority [Clause (n)]f. That the Society shall not make any excavation upon
the said land without the previous consent of MHADA [Clause
2 (o)]”
117. The aforesaid clauses, in our opinion, are absolutely in
consonance with the object and purpose for which the MHADA Act
is enacted. It is settled law that the rights of the owner of the land
are not subservient to the rights of the lessee. This Court in G. M.
Heights LLP vs. Municipal Corporation of Greater Mumbai and
others37 held that tenancy rights cannot be stretched to such an
extent that the course of redevelopment can be taken over by the
37 WP 5302/2022; Judgment of BHC Division Bench dated 29/03/2023
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tenants, so as to take away the basic corporeal rights of the owner
of the property, to undertake redevelopment of the owners choice.
The only rights that the tenants have, would be to be provided an
alternate accommodation of an equivalent area occupied by them
before the building was demolished.
118. MHADA being the planning authority and superior lessor
in respect of MHADA layouts, retains authority to regulate
redevelopment in accordance with applicable laws and policies.
Mere execution of the Sub-Lease Deeds does not confer upon the
petitioner/societies any unfettered right to redevelop the said
property superior to that of the sub-lessor. The use of land by the
petitioner society is always subject to the terms of the Sub-Lease
Deeds, which expressly state that they must comply with
Government rules, conditions, schemes at all times. The Sub-Lease
Deeds also incorporate, inter alia, clause 6 of the Deed of Lease of
1949.
119. The petitioner’s reliance on Clauses 6 and 12 of the Sub-
Lease Deeds, to assert the society’s unfettered entitlement to utilise
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the entire FSI emanating from the sub-leased plot, is misplaced. On
entitlement to FSI, the Sub-Lease Deed states:
“6. The Society shall not make any excavation upon any part
of the said land without the consent of the Authority in writing
first had and obtained, except for the purpose of repairing,
removing or rebuilding on the said land or for utilizing the
floor space index (F.S.I.).
12. On conveyance of the buildings to the Society, the legal
ownership therein shall vest in the Society together with the
right of utilising the available F.S.I. or otherwise without any
interference by the Authority.”
120. The aforesaid provisions can only be construed to mean
that the petitioner society is entitled to only the built-up area of the
building ultimately conveyed to the petitioner society. The entire
balance FSI of the land including the future FSI would continue to
vest with MHADA. It is settled law that FSI is undoubtedly a benefit
which the owner of the property enjoys.
121. We now test the submission of the petitioners that
Regulation 33 (5) of the DCPR 2034 gives an unfettered right to
petitioners to redevelop. The DCPR 2034 for Greater Mumbai are
statutory regulations framed as part of the development plan under
Section 22(m) read with Section 159 of the MRTP Act, 1966. The
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said Regulations have been sanctioned by the State Government in
exercise of powers under Section 31(1) of the MRTP Act. Any
subsequent modification, amendment or change to the sanctioned
Regulations is required to be undertaken in accordance with the
procedure prescribed under Section 37 of the MRTP Act. Section
154 of the MRTP Act confers power upon the State Government to
issue directions or instructions to Regional Boards, Planning
Authorities and Development Authorities for carrying out the
purposes of the Act and also for effective implementation of the Act
and DC Regulations. Thus, the DCPR 2034 derives its statutory
force from the provisions of the MRTP Act, 1966 and operates as
delegated legislation governing planning, development,
redevelopment and land-use regulation within Greater Mumbai.
122. It is of some importance to notice the scheme of DCR
33(5) and now DCPR 33(5). DC Regulation 33(5) was originally
introduced under 1991 Regulations and provided only for
development of MHADA schemes in accordance with FSI prescribed
in that Regulation and other regulations contained in Appendix I.
Appendix I broadly provided for MHADA schemes. There is no
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express provision for redevelopment of MHADA schemes.
123. By amendment introduced on 06/12/2008, Regulation
33(5) of 1991 Regulations was substituted to provide for
redevelopment of MHADA schemes. The revamped Regulation
33(5) was introduced by 2034 Regulations, which is much wider
and provides various policy matters and parameters for
development of MHADA schemes by MHADA alone, either itself or
through an agency; MHADA jointly with an association of occupiers
or societies, etc.
124. Thus, it is evident that Regulation 33(5) applies to
developments/redevelopment of “Schemes of MHADA”. The
scheme is much larger concept which would include all
developments/redevelopments on Authority Premises. Housing
schemes of MHADA include housing provided by whatever name
called such as scheme, layout, colony on the “Authority Premises”
as defined under section 2(4) of MHADA Act. Thus, the MHADA
scheme would include occupiers who are occupying the premises as
mere allottees, lessees or sub-lessees, etc. The difference in these
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rehabilitation areas and amenities. In this context, it would be
appropriate to extract the relevant provisions of DCPR 2034 which
reads thus:
“33(5) Development/Redevelopment of Housing Schemes of
Maharashtra Housing & Area Development Authority
(MHADA)(1) The FSI for a new scheme of Housing, implemented
by MHADA on MHADA lands for Economically Weaker
Sections (EWS), Low Income Group (LIG) and Middle Income
Group (MIG) categories shall be 3.0 on the gross plot area
(exclusive of the Fungible Compensatory Area) and at least
60% BUA in such scheme shall be in the form of tenements
under the EWS, LIG and MIG categories, as defined by the
Government in Housing Department from time to time.
[Provided that the Floor Space Indices above may be
permitted to be exceeded up to 4.00 FSI in case of plots,
having area of 4000 sq. m or above which front on roads
having width of 18.00 m or more with prior approval of Govt.]
(2) For redevelopment of existing housing schemes of
MHADA, containing (i) EWS/LIG and/or (ii) MIG and/or (iii)
HIG houses with carpet area less than the maximum carpet
area prescribed for MIG, the total permissible FSI shall be 3.0
on the gross plot area (exclusive of the Fungible Compensatory
Area).
[Provided that the Floor Space Indices above may be
permitted to be exceeded up to 4.00 FSI in case of plots,
having area of 4000 sq.m. or above which front on roads
having width of 18.00 m. or more with prior approval of Govt.]
2.1 Where redevelopment of buildings in existing housing
schemes of MHADA is undertaken by the housing co-operative
societies or the occupiers of such buildings or by the lessees of
MHADA, the Rehabilitation Area Entitlement, Incentive FSI
and sharing of balance FSI shall be as follows:-
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(A) Rehabilitation Area Entitlement:
(i) Under redevelopment of buildings in existing
Housing Schemes of MHADA, the entitlement of rehabilitation
area for an existing residential tenement shall be equal to sum
total of-
(a) a basic entitlement equivalent to the carpet
area of the existing tenement plus 35% thereof, subject to a
minimum carpet area of 35 sq. m, and
(b) an additional entitlement, governed by the size of
the plot under redevelopment, in accordance with the Table-A
below:-
Table-A
Area of the Plot under Additional Carpet Area
Redevelopment on
the Existing Carpet
Area of
Tenement
Above 4000 sq. m to 2 15%
ha
Above 2 ha to 5 ha 25%
Above 5 ha to 10 ha 35%
Above 10 ha 45%[Explanation:
(a) Plot under redevelopment means land demarcated by
MHADA for redevelopment.
(b) For the purpose, “existing Carpet-area/carpet area”
means the net usable floor area within a tenement excluding
that covered by the walls or any other areas specifically
exempted from floor space index computation as per
then/prevailing Regulation but including the areas of balcony,
if allowed free of FSI as per then Regulation.]
Provided that the maximum entitlement of rehabilitation
area shall in no case exceed the maximum limit of carpet area
prescribed for MIG category by the Govt, as applicable on the
date of approval of the redevelopment project.
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(ii) Under redevelopment of buildings in existing Housing
Schemes of MHADA, the entitlement of rehabilitation area of
any existing commercial/amenity unit in the Residential
Housing Scheme shall be equal to the carpet area of the
existing unit plus 20% thereof.
(B) Incentive FSI: Incentive FSI admissible against the FSI
required for rehabilitation, as calculated in (A) above, shall be
based on the ratio (hereinafter referred to as Basic Ratio) of
Land Rate (LR) in Rs/sq. m. of the plot under redevelopment
as per the Annual Schedule of Rates (ASR) and Rate of
Construction (RC) in Rs/sq. m. applicable to the area as per
the ASR of the date of approval of plan and shall be as given in
the Table B below:-
Table-B
Basic Ratio (LR/RC) Incentive (As % of
Admissible
Rehabilitation Area)
Above 6.00 40%
Above 4.00 and up to 50%
6.00
Above 2.00 and up to 60%
4.00
Up to 2.00 70%Provided that the above incentive will be subject to the
availability of the FSI on the Plot under redevelopment and its
distribution by MHADA.
Provided further that in case there are more than one land
rate applicable to different parts of the plot under
redevelopment, a weighted average of all the applicable rates
shall be taken for calculating the Average Land Rate and the
Basic Ratio.
Provided further that the Land Rate (LR) and the Rate of
Construction (RC) for calculation of the Basic Ratio shall be
taken for the year in which the redevelopment project is
approved by the Competent Authority.
2.2 Where redevelopment of buildings in the existing
Housing Schemes of MHADA is undertaken by MHADA or
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jointly by MHADA along with the housing societies or along
with the occupiers of such building or along with the lessees of
MHADA, the Rehabilitation Area Entitlement shall be as
follows:
Rehabilitation Area Entitlement
The Rehabilitation Area Entitlement shall be increased by
15% of the existing carpet area, over and above the
Rehabilitation Area Entitlement calculated in (A) of 2.1 above.
Note: Fungible compensatory area as applicable on the
surplus area to be handed over to MHADA shall not be allowed
to be utilized on sale component. No premium shall be charged
on the fungible compensatory area, in respect of area to be
handed over to MHADA and surplus area to be handed over to
MHADA shall be exclusive of the Fungible compensatory BUA if
availed.
(7) (a) In any Redevelopment Scheme where the
Registered Co-operative Housing Society/Developer appointed
by the Registered Co-operative Housing
Society/Federation/Association/Union has obtained NOC from
the MHADA/Mumbai Board, thereby sanctioning additional
balance FSI with the consent of 51% of its members and where
such NOC holder has made provision for alternative permanent
accommodation in the proposed building (including transit
accommodation/Rent Compensation), then it shall be
obligatory for all the occupiers/members to participate in the
Redevelopment Scheme and vacate the existing tenements for
the purpose of redevelopment. In case of failure to vacate the
existing tenements, the provisions of section 95A of the MHAD
Act mutatis mutandis shall apply or the purpose of getting the
tenements vacated from the non-co-operative members.
(b) For redevelopment of buildings in any existing
Housing Scheme MHADA under clause 2.2 hereinabove, by
MHADA, the consent of the Co-operative Housing Society in
the form of a valid Resolution as per the Co-operative Societies
Act, 1960 will be sufficient. In respect of members apt co-
operating as per approval of the redevelopment project, action
under section 95(A) of the Maharashtra Housing and Area
Development Act, 1976 may be taken by MHADA.”
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125. The petitioner places reliance on Regulation 33(5)(2.1) to
allege that it has an absolute unfettered right to redevelop the
property. A reading of Sub-Regulations (2.1) and (2.2) of
Regulation 33(5) would indicate that the same are not
independent vested rights available at the unilateral option of every
society. The choice as to whether redevelopment is to be carried
out independently or in an integrated manner is a planning and
policy decision vested with the State Government and MHADA.
Regulation 33(5)(2.1) is only a mode of redevelopment and does
not grant any absolute or unfettered right to the society to
independently redevelop. The provisions of the Regulation clearly
mandate that even to carry out independent redevelopment by the
society under the said Regulation, consent of MHADA is necessary.
The society has in fact sought no objection from MHADA for
redevelopment under Regulation 33(5) of DCPR 2034, thereby
acknowledging that MHADA is the ultimate authority to decide
upon the redevelopment of the said plot and the society has no
vested or absolute right of redevelopment.
126. The provisions of Regulation 33(5) pertain to
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development/redevelopment of all housing schemes of MHADA.
The housing scheme could be on lands owned by MHADA, or it
could be on the lands of a public authority such as MMRDA, MCGM
or any other municipal corporation, or the State Government.
127. Sub-Regulations 2.1 and 2.2 of Regulation 33(5) deal with
the undertaker of the development/redevelopment scheme. Sub-
Regulation 2.1 provides that “where redevelopment of buildings in
existing housing schemes of MHADA is undertaken by the housing
co-operative societies or the occupiers of such buildings or by the
lessees of MHADA, the Rehabilitation Area Entitlement, Incentive
FSI and sharing of balance FSI shall be as follows :—”
128. Sub-Regulation 2.1 of Regulation 33(5) thus deals with
redevelopment in existing MHADA housing schemes undertaken
by :-
a. Cooperative Housing Societies; or
b. Occupiers of such buildings; or
c. Lessees of MHADA.
129. In cases where the redevelopment is by any of the
aforesaid three categories, then provision is made for rehabilitation
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area entitlement, incentive FSI and sharing of balance FSI in the
rest of the Sub-Regulation 2.1. These beneficial provisions will
apply only in cases of MHADA Housing Schemes and not
otherwise.
130. Sub-Regulation 2.2 of Regulation 33(5) provides that
“Where redevelopment of buildings in the existing Housing
Schemes of MHADA is undertaken by MHADA or jointly by MHADA
along with the housing societies or along with the occupiers of such
building or along with the lessees of MHADA, the Rehabilitation
Area Entitlement shall be as follows : —”
131. Thus, Sub-Regulation 2.2 of Regulation 33(5) deals with
redevelopment of buildings in existing MHADA housing schemes
undertaken either by :
a. MHADA; or
b. Jointly by MHADA along with the housing societies; or
c. Jointly by MHADA along with the occupiers of such
buildings; or
d. Jointly by MHADA along with the lessees of MHADA.
132. In cases where the redevelopment is undertaken by any of
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the aforesaid categories, provision is made for rehabilitation area
entitlement in the rest of the Sub-Regulation 2.2. These beneficial
provisions will apply only in cases of MHADA Housing Schemes
and not otherwise.
133. We now deal with Sub-Regulation (7) of Regulation 33(5)
which is in two parts viz. 7(a) and 7(b). Sub-Regulation 7(a) deals
with cases where the redevelopment is undertaken by a housing
cooperative society i.e. under Sub-Regulation 2.1. To bind the
dissenting members of societies, it is provided that the consent of
51% of its members is required. Once 51% consent of members is
obtained, then ‘it shall be obligatory for all the occupiers/members
to participate in the redevelopment scheme and vacate the existing
tenements for the purpose of redevelopment’. In default of this, the
provisions of Section 95A of the MHADA Act will apply for getting
the tenements vacated from non-cooperating members. It is
therefore a facility given to Housing Co-operative Societies to bind
their own members.
134. We are in agreement with learned Senior Advocates for
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the respondents that on a reading of Sub-Regulation 7(b) of
Regulation 33(5) which we have already extracted, applies in cases
where the redevelopment is undertaken under Sub-Regulation 2.2
and involves the cooperative housing society i.e. jointly by MHADA
and the housing society. In such cases, since MHADA is a joint
developer, there is no need for consent of 51% of all the members
of the housing society [as required under Sub-Regulation 7(a)], but
a valid resolution of the housing society (i.e. passed by a majority
of its members present and voting at the meeting) will be
sufficient. Here too, dissenting members of the housing societies
who do not cooperate will be liable to action under Section 95A of
the MHADA Act.
135. The reason why Sub-Regulation 7(b) logically involves
only cases where the redevelopment is undertaken by the housing
societies jointly with MHADA is because the purpose of Sub-
Regulation (7) is to bind dissenting non-cooperating members of
such societies.
136. However, if MHADA under Sub-Regulation 2.2 undertakes
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the redevelopment itself, the provisions of Sub-Regulation (7) are
not meant to give cooperative housing societies a veto power over
redevelopments undertaken by MHADA; they are only meant to
operate within cooperative housing societies, that is to bind their
non-cooperating members. Thus, in our view, the petitioners’
reliance on Regulation 33(5)(2.1) to allege that it has an absolute
unfettered right to redevelop is erroneous. Sub-Regulations 2.1
and 2.2 of Regulation 33(5) are not independent vested rights
available at the unilateral option of every society. The choice as to
whether redevelopment is to be carried out independently or in an
integrated manner is a planning and policy decision vested with the
State Government and MHADA.
137. Upon reading of the aforesaid provisions, we have no
hesitation in holding that Regulation 33(5)(2.2) is an independent
power of MHADA to develop schemes in respect of “authority
premises” and for such execution of schemes consent of the
occupiers is not warranted. It is evident from the aforesaid
Regulation that any “Authority Premises” in MHADA
Schemes/Layout/Colonies can be developed by MHADA by
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following the procedure under this Regulation, and the
allottees/lessees cannot complain about the same and can only
insist upon compliance with the Regulation and rehabilitation.
138. We thus find force in the submissions of learned Senior
Advocates for the respondents that if MHADA decides to develop its
scheme on its own (which includes an appointment of C & DA as
held in Motilal Nagar case in paragraph 36), the allottees or lessees
of land cannot veto such a scheme claiming that their consent is
necessary. MHADA is proposing to carry out redevelopment
through a C & DA. This Court in Motilal Nagar (supra) held that
the requirement of MHADA carrying out redevelopment by itself
under Regulation 33(5) is fulfilled even when the redevelopment is
carried out through appointment of a C & DA which acts on behalf
of MHADA, while the control over the agency is retained by
MHADA. In fact, under the regime of DC Regulation 1991, the
development of schemes by MHADA under Sub-Regulation 2.1 was
contemplated to be undertaken by MHADA “departmentally”. This
provision has been deleted in 2034 Regulations. Thus, the
provisions of DCPR make it abundantly clear that any person who
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has an absolute right in the land is entitled to develop such a land
by resorting to Regulation 32 which provides for general FSI.
Regulation 33 is a specific regulation which confers additional FSI
in respect of various categories of developments as enumerated in
various Sub-Regulations.
139. The very fact that the petitioners could claim right of
redevelopment only under Regulation 33(5), that too with the
consent of MHADA, demonstrates that the MHADA allottees or
lessees are subject to discipline of Regulation 33(5) which confers
right upon MHADA to redevelop its schemes without consent of the
occupiers. The only requirement in such a scenario is that the
occupiers are provided with the rehabilitation, infrastructure,
amenities and other benefits as contemplated under the regulation.
Objection of the petitioners for their inclusion in cluster
redevelopment
140. The next point to be considered is the objection of the
petitioners’ inclusion in the cluster redevelopment. A “Cluster”
means any defined area with proper access comprising dwelling
units, buildings, chawls, etc. Regulation 33(9) of DCPR 2034
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specifically deals with reconstruction or redevelopment of
cluster(s) of buildings under Cluster Development Scheme. The
requirement for resorting to Regulation 33(9) is the minimum area
requirement for the cluster as provided in Clause 1.1. The
ownership of such a cluster may be with a different set of persons,
and hence for propounding a scheme under this regulation, consent
of a minimum 70% of owners is required. The scheme under
Regulation 33(9) does not confer an absolute or vested right upon
any individual building, society or occupier to insist upon isolated
or standalone redevelopment where the planning authority or State
Government considers integrated redevelopment necessary. The
power to determine whether redevelopment should proceed
independently or as part of a larger cluster/urban renewal scheme
is a matter of planning, policy implementation and larger public
interest.
141. Regulation 33(9) needs to be extracted for a proper
appreciation of the submissions of learned counsel.
“33(9) Reconstruction or redevelopment of Cluster(s) of
Buildings under Cluster Development Scheme(s)(CDS) :-
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For reconstruction or redevelopment of Cluster(s) of buildings
under Cluster Development Scheme(s)(CDS)in the Island City of
Mumbai undertaken by (a) the MHADA or the MCGM either
departmentally or through any suitable agency or (b)
MHADA/MCGM, jointly with land owners and/or Co-op.
Housing Societies of tenants/occupiers of buildings and/or Co-
op. Housing Society of hutment dwellers therein, or (c) land
owners and/or Co-op. Housing Society of tenants/occupiers of
buildings and/or Co-op Housing Society of hutment dwellers,
independently or through a Promoter /Developer, the FSI shall
be 4.00 or the FSI required for rehabilitation of existing
tenants/occupiers plus incentive FSI whichever is more as per
the provisions of this Regulation as follows .
1.1 Cluster Development Scheme(CDS)means any scheme for
redevelopment of a cluster of buildings and structures over a
minimum area of 4000 sq. m in the Island City of Mumbai and
6000 sq. m in the Mumbai Suburbs &Extended Suburbs,
bounded by existing distinguishing physical boundaries such as
roads, nallas and railway lines etc. and accessible by an existing
or proposed D.P. road which is at least 18m wide whether
existing or proposed in the D.P. or URP or a road for which
Sanctioned Regular line of street has been prescribed by the
MCGM under MMC Act, 1888. Such cluster of buildings
(hereinafter referred to as “Cluster Development (CD)”) shall be
a cluster or a group of clusters identified for urban renewal:
Provided further that HPC may consider after verifying traffic
simulation study to allow CDS on a plot having access from
existing minimum 12m. wide dead end road originating from 18
m. wide public road.
1.2 The CD may consist of a mix of structures of different
characteristics such as
(i) Cessed buildings in Island City, which attract the
provisions of MHAD Act, 1976.
(ii) (a) Buildings at least 30 years of age and acquired by
MHADA under MHAD Act, 1976.
(b) Authorized buildings at least 30 years of age
Explanation : Age of a building shall be as on the 1st of January
of the year in which redevelopment proposal for CDS is
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submitted to the Commissioner and shall be calculated from the
date of occupation certificate or where such occupation
certificate is not available, from the first date of assessment as
per the property tax record in respect of such building, available
with the Municipal Corporation.
(iii) (a) Buildings belonging to the Central Govt, the State
Govt, Semi-Govt Organizations and the MCGM, as well as
institutional buildings, office buildings, tenanted municipal
buildings and buildings constructed by MHADA, that are at least
30 years of age.
(b) Any land belonging to the State Govt, any semi-Govt
Organization, MCGM and MHADA (either vacant or built upon)
which falls within the area of the proposed CDS including that
which has been given on lease or granted on the tenure of
Occupant Class II.
Provided that in case of buildings or lands belonging to the
Central Govt, the State Govt, Semi-Govt Organizations, MCGM
or MHADA, prior consent of the concerned Department shall be
obtained for including such buildings or lands in any proposal of
CDS.
(iv) Other buildings which by reasons of dis-repair or because of
structural/sanitary defects, are unfit for human habitation or by
reasons of their bad configuration or the narrowness of streets
are dangerous or injurious to the health or safety of the
inhabitants of the area, as certified by the Officer or the Agency
designated for this purpose by MHADA/MCGM or Mumbai
Repair & Reconstruction Board.
(v) Slum areas declared as slums under section 4 of Slum Act or
slums on Public lands existing prior to 1.1.2000 or such other
reference date notified by the Govt, provided such slum areas do
not constitute more than 50% of the area of CD.
Explanation : If some areas are previously developed/or are in
the process of development under different provisions of the
DCPR, such areas can be included in the CDS only for planning
purposes. However, such areas shall be excluded for calculation
of FSI under this Regulation and the admissible FSI shall be
calculated as per the relevant provisions of the DCPR under
which such areas are developed or are being developed.
However, it shall be necessary to obtain consent of
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owner/owners of such areas for becoming part of the CDS.”
142. Regulation 33(9) is applicable for cluster redevelopment.
For a parcel to constitute a cluster, requirements are provided in
terms of area in Clause 1.1. Sub-Regulation 4(a) prescribes that
for the purposes of redevelopment under Cluster Development
Scheme (“CDS”, for short) “Irrevocable notarised written consent
by eligible tenants/occupiers of all authorised buildings not less
than 51% of each building or 60% overall of the scheme involved
in the CDS.”
143. This regulation further provides that consent of occupiers
shall not be required if MHADA/MCGM undertakes redevelopment
on its own lands directly without any developer. The phrase “own
lands” means the lands which constitute Authority premises and
the cluster does not include any private land which is not Authority
premises. MHADA undertaking redevelopment directly means
either departmentally or through an agency which is considered as
redevelopment by MHADA itself. For this, we rely on paragraph 36
of Motilal Nagar (supra) which is already reproduced hereinbefore.
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144. A reading of DCPR 33(9) makes it very clear that the
consent of tenants/occupiers is not required if MHADA undertakes
redevelopment on its own land directly without any developer as
provided in Regulation 33(9)(4). The ownership of land
contemplated in this paragraph is in the context of the cohesive
ownership of the cluster (in terms of Sub-Regulation 1.1) and
hence, if in the cluster MHADA is not the sole owner, the consent
requirement of tenants/occupiers would have to be complied with.
So far as the present writ petitions are concerned, MHADA
admittedly is the owner of the entire cluster and hence the
requirement of consent is not applicable. The ownership in this
context would include whether the premises are “Authority
Premises” and therefore even the lands leased by MHADA would fit
in the context of lease. The leases granted by MHADA are governed
by the MHADA Act and MHADA Regulations and anything
inconsistent under the Transfer of Property Act, 1882 would not
apply to MHADA leases or subleases.
145. The learned Senior Advocates for the petitioners were at
pains to submit that even under Regulation 33(9) the consent by
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eligible tenants/occupiers is necessary. The argument is completely
misplaced. For one, Regulation 33(9)(3), which is relied upon viz.
‘Land Pooling for the CDS’, contemplates that the promoter of the
scheme, who may not be the owner of all the lands in the CDS has
5 options for land pooling. MHADA being the owner of all the
lands in the present CDS is not concerned with the land pooling
provisions and therefore, there is no question of invoking the
provisions. On the contrary the provision of Regulation 33(9)(4)(a)
specifically provides that consent of the tenants/occupiers for
reconstruction or redevelopment shall not be required, if
MHADA/MCGM undertakes redevelopment, on its own land,
directly without any developer. In the present case, MHADA is
undertaking redevelopment on its own land, directly without any
developer, and hence the consent of the tenants/occupiers is not
required. The argument of learned Senior Advocates for the
petitioners on the aspect of consent, though sounded attractive at
the first blush, does not find support from the statutory provisions.
In fact, the provisions are otherwise.
146. We agree with the learned Advocate General that Sub-
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Regulation 4(a) of Regulation 33(9) has nothing to do with
binding dissenting or non-cooperating members within cooperative
housing societies, which is covered in the case of a Regulation
33(5) scheme by Sub-Regulation 7(a) and (b). Thus, Regulation
33(5)(7)(a) and (b) on one hand and Regulation 33(9)(4)(a) on
the other, operate in different fields. Even in a scheme jointly
under Regulations 33(5) and 33(9), the provisions of Sub-
Regulation (7) of Regulation 33(5) has no application if a co-
operative Housing Society is not undertaking the redevelopment
either under Regulation 33(5)(2.1) or jointly with MHADA under
Regulation 33(5)(2.2). If MHADA alone is the re-developer under
Sub-Regulation 2.2 of Regulation 33(5), then no question of
binding dissenting member of a Co-operative Housing Society
arises because it is the Co-operative Society as a whole, being an
allottee of MHADA, that is bound, by virtue of MHADA’s position as
a landowner. Sub-Regulation (7) of Regulation 33(5) is a provision
to facilitate binding of dissenting members within a Co-operative
Housing Society to the decision of the majority of members. The
petitioner societies are bound by the provisions of MHADA Act,
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DCPR and lease deeds and Housing Schemes of the State
Government and MHADA.
147. Learned Advocate General submitted that no arguments
have been advanced on the unconstitutionality of Regulation 33(9)
(4)(a) of the DCPR 2034. The challenge is raised in the petition.
The argument was more on the interpretation of the aforesaid
provision that the requirement of consent is not done away with,
rather than the unconstitutionality of the provision. In any case, we
have adverted to the logic behind no consent being required when
MHADA itself is undertaking the cluster redevelopment as an
owner. The challenge to the unconstitutionality of the provision is
vague.
Challenge to GRs dated 25/04/2025 and 15/12/2025
148. The petitioner societies are challenging the GRs broadly
on the following grounds :
(a) That inclusion of HIG tenements in the impugned
GRs is arbitrary.
(b) The petitioner has absolute and unconditional
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development rights including utilisation of FSI with
respect to the said lands which rights are abridged by the
impugned GR dated 24/04/2025 and the impugned
tender dated 15/12/2025.
(c) The impugned GRs do away with the mandatory
requirement of consent of the societies under Regulation
33(5).
149. This Court is expected to act with a great caution while it
interferes with the priorities fixed by the Government, unless it is
established that the decision taken by it is patently arbitrary and/or
not in larger public interest. The Government should be free to take
policy decisions or to decide priorities and it is better left to the
wisdom of the State, which is well advised by the bureaucrats, and
its other officers, who possess an expertise in taking policy
decisions, which may involve various factors like the availability of
fund, the requirement of the State to focus upon a particular sector
in precedence over the other etc. The wisdom and advisability of
such policy decisions are not ordinarily amenable to judicial
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review, and it is time and again specifically held that economic and
fiscal regulatory measures are a field, where Judges should
encroach upon warily as Judges are not experts in these matters.
We have borrowed these observations from the decision in Motilal
Nagar (supra). It is material to state that the challenge to the
decision of this Court in Motilal Nagar (supra) has been dismissed
by the Hon’ble Supreme Court.
150. The GR dated 25/04/2025 directed integrated
redevelopment of MHADA layouts including Adarsh Nagar Worli
under Regulation 33(5) of DCPR 2034. The GR dated 15/12/2025
concerns formulation of policy for cluster/joint redevelopment of
MHADA layouts in Mumbai and suburbs having area of 20 acres or
more. The tender was floated by MHADA in the month of April
2026 for appointment of a C & DA for integrated/cluster
redevelopment of the Adarsh Nagar Worli and Bandra Reclamation
layout.
151. The main grievance of the petitioner is that the said GRs
come in the way of the petitioners undertaking independent
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redevelopment of their property which they are holding under a
valid lease. It is thus that the petitioners are not against
redevelopment but it is their case that their right to redevelop on
their own is hampered and that therefore, they do not want to be a
part of the cluster. They seek an individual standalone
redevelopment.
152. No doubt the cluster redevelopment will involve some
degree of adjustments, displacement and inconvenience to the
members of the petitioner society. However, the statutory
framework of the DCPR especially Regulation 33(5) which permits
MHADA to undertake redevelopment of its own lands and
Regulation 33(9) which permits a cluster redevelopment have to be
kept in mind. It is also to be borne in mind that the petition seeks
to challenge a policy decision of the State Government and MHADA
taken in larger public interest and in furtherance of planned
redevelopment of MHADA layouts. Unless any patent illegality is
demonstrated or the same is contrary to law or mala fide, such
redevelopment undertaken by MHADA cannot be interfered with in
the exercise of the extra ordinary writ jurisdiction of this Court.
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153. The relevant provisions of the MHADA Act have already
been discussed. The object of MHADA is inter alia planning,
execution and redevelopment of housing schemes and layouts for
public housing purposes. Adarsh Nagar Worli layout was originally
developed by the erstwhile BHB comprising multiple buildings and
societies constructed several decades ago. The State of
Maharashtra exercises supervisory and policy powers over MHADA
under the MHADA Act and under Section 154 of the MRTP Act.
The State of Maharashtra is empowered to issue policy directions
and instructions in public interest to planning authorities and
development authorities including MHADA, the embargo obviously
being that such a policy does not contravene the statutory
framework. The impugned GRs are issued by the State of
Maharashtra in the exercise of such policy and executive powers for
integrated redevelopment of MHADA layouts including Bandra
Reclamation and Adarsh Nagar.
154. We have also discussed the scheme of Regulation 33(5) of
DCPR 2034 which governs redevelopment of MHADA layouts and
housing schemes. The GRs merely operationalise the powers
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already available under Regulation 33(5)(2.2) by directing
integrated redevelopment of layouts through MHADA. We find
force in the submission of learned Senior Advocates for the
respondents that Sub-Regulations 2.1 and 2.2 are not independent
vested rights available at the unilateral option of every society. The
choice as to whether redevelopment is to be carried out
independently or in an integrated manner is a planning and policy
decision vested with the State Government and MHADA. We do not
find any arbitrariness or unreasonableness in the stand of the
respondents that if every society in a MHADA layout is permitted to
undertake piecemeal redevelopment independently, the very object
of integrated planning, infrastructure development and
coordinated redevelopment would stand defeated. Therefore, we
have no hesitation in finding, and as discussed hereinbefore, the
GRs are fully intra vires Regulation 33(5) of DCPR 2034 and are
legally valid.
155. The impugned GRs are issued in exercise of powers under
Section 154 of the MRTP Act and Article 162 of the Constitution of
India. We have already held that the GRs are within the contours
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of the executive authority of the State. The question is whether the
impugned GRs are supplementary and complementary to DCRs or
they are in breach of the statutory provisions or do they override
the statutory provisions and/or in breach thereof. In MIG Cricket
Club vs. Abhinav Sahakar Education Society and others38 it is held
that the matters relating to making of development plan,
development schemes, regulations etc., are matters of technical and
town planning expertise and the Courts do not generally interfere
in these matters. Further, the wisdom and advisability of economic
policies are ordinarily not amenable to judicial review unless it is
demonstrated that the policy is contrary to any statutory provision
or the Constitution itself. It is not open for the Courts to consider
the relative merits of different economic policies and consider
whether wiser or better one can be evolved. In the areas of
commerce involving financial decisions, a greater latitude is
available to the executive, and the Court shall not sit in judgment
over the wisdom of the policy of the legislature or the executive. If
any authority is required in support of this proposition, we refer to
38 (2011) 9 SCC 97
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Balco Employees Union vs. Union of India and others39 (paragraph
92) and in Motilal Nagar (supra) (paragraphs 37 and 38).
156. It is the specific stand of the respondents that when the
agency appointed by MHADA would undertake the redevelopment
of MHADA Schemes, it is bound to follow all “applicable laws”
including DCRs and MCS Act. This is expressly provided in clause
1.5.1.16 in the tender document which reads thus:
“1.5.1.16 – The C & DA shall follow all relevant prevailing
Indian Laws, Rules, and Regulations, necessary IS codes,
Slum Act, Labour laws, MHADA Act etc.”
157. Mr. Y. S. Jahagirdar, learned Senior Advocate for the
petitioners, laid much emphasis on the terms MHADA layout,
MHADA colonies, MHADA schemes which, according to him, have
different and distinct connotations. However, the provisions of
Regulation 33(5) of the DCPR clearly indicate that the same are
applicable in respect of redevelopment of existing housing schemes
of MHADA which would include colonies, layouts etc. In fact, if
MHADA undertakes the redevelopment scheme under the
impugned GRs, the occupiers would be entitled to much more area
39 (2002) 2 SCC 333
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and benefits than what they would get on their own redevelopment
under Regulation 33(5) where there is a cap on the occupants’
entitlement.
158. The learned Advocate General categorically submitted that
the agency appointed by MHADA is bound to follow all applicable
laws including DCRs and the MCS Act. It is too premature a stage
to entertain the petitioners’ submissions that the circulars breach
the provisions of Sections 17, 18 and 79A of the MCS Act. As
indicated above, the respondents have categorically stated that
they would follow the applicable laws including the MCS Act.
159. It is the stand of the State Government and MHADA that
redevelopment of MHADA schemes as an integrated cluster is in
larger public interest as it would streamline provisions of
amenities, infrastructure, creation of additional housing stock for
general use, as well as providing better and new accommodations
of the existing occupiers.
160. MHADA has been implementing the schemes in
accordance with DC Regulation 33(5) since the same was first
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introduced in 1991. For redevelopment of Motilal Nagar layout at
Goregaon, a similar provision was made through GR dated
06/10/2021. For redevelopment of MHADA layout at Abhyudaya
Nagar at Kala Chowki, a similar provision was made through GR
dated 06/03/2024. In Motilal Nagar (supra), the co-operative
societies of occupants had leases in respect of areas under their
occupation and had filed petitions challenging the redevelopment
by MHADA through appointment of C & DA. A somewhat similar
challenge to the one raised in this writ petition in respect of
another MHADA scheme was rejected by this Court in Andheri
P.M.G.P. Colony Co-op.Hsg. Societies Association Ltd. vs. State of
Maharashtra and Ors. vide a decision dated 28/01/2026 in
Original Side Writ Petition (L) No.19246 of 2025.
161. So far as the contention that the inclusion of HIG
tenements in the impugned GRs is arbitrary, we find force in the
submission of learned Advocate General that redevelopment of a
MHADA layout cannot be viewed building-wise or category-wise in
isolation, but for the purposes of systematic housing distribution,
infrastructure planning and balanced redevelopment, the entire
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layout as a whole has to be taken into consideration. Regulation
33(5)(2.2) confers power upon the State Government to prescribe
carpet area entitlement for each category viz. EWS, LIG, MIG and
HIG. By way of GR dated 16/03/2023, the petitioner (HIG) society
would now be categorised as MIG as per the newly prescribed
carpet area entitlement. The said classification is a policy decision
intended to rationalise housing categories and ensure planned
availability of housing stock across all income groups. It is the
submission of learned Advocate General that the MIG category
carries greater policy protection and affordability-based
consideration, whereas HIG is treated as a higher income category
with lesser need for such protective housing policy treatment. The
redevelopment of HIG colony is also permissible under Regulation
33(5) since these are “Authority Premises” and MHADA schemes.
The contention of Mr. Andhyarujina, learned Senior Advocate for
the petitioner HIG society that the exclusion of HIG category from
the GRs/tender would mean exclusion from Regulation 33(5), is
therefore completely misconceived.
162. So far as the contention of the petitioners that they have
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absolute and unconditional development rights including
utilisation of FSI with respect to the said lands which rights are
abridged by the impugned GR dated 24/04/2025 and the
impugned tender dated 15/12/2025 is concerned, it is important to
refer to some of the relevant clauses of the sub-lease deeds dated
24/12/1981 and 15/09/1982. Clause 5 requires the society to
comply with rules, regulations, by-laws and conditions prescribed
by the Government, local authority or statutory body, whether
existing then or prescribed thereafter. Clause 9 provides that the
society shall not assign, underlet or part with possession of the land
without previous written consent of the authority. Clause 10
requires the society to observe and be bound by rules, regulations
and by-laws under the relevant Act so far as they relate to the land.
Clause 11 provides that the society shall not transfer rights under
the Sub-Lease except with prior written consent of the authority.
Clause 12 provides that upon conveyance of the buildings to the
society, the legal ownership therein shall vest in the society
together with the right of utilising FSI available as of date. The
relevant clauses of Schedule A of the Sub-Lease Deed viz. Clause 6
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provides that the user of the plot will be for the Housing Scheme of
Government and amenities connected therewith. Clause 7 provides
that the buildings to be constructed on the plots shall be according
to the building rules of the estate and their heights shall not exceed
a ground and three upper floors.
163. It is therefore evident that the holding of lands by the
petitioners is subject to extant statutory regulations which are the
1991 Regulations as of today. Under these Regulations, the said
lands and the buildings occupied by the petitioner are authority
premises and the authority is entitled to develop the same in
accordance with law, which is the DC Regulations, and the
petitioners cannot object to the same. On reading of the relevant
clauses of the lease-deed, we are of the view that in the present
facts, the society cannot claim an independent, unconditional or
unilateral right to redevelop contrary to the statutory provisions
and MHADA’s policy.
164. Substantial arguments have been advanced by learned
Senior Advocates for the petitioners that the impugned GRs do
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away with the mandatory requirement of the consent of the
societies under Regulation 33(5). Clause 12 and 21 respectively of
the GR dated 15/12/2025 are as follows:-
“12. The provisions of the Development Control and
Promotion Regulations 2034, the provisions of the MHADA
Act, as well as the Government Decisions/Orders/Circulars
issued by the Government from time to time, should be
strictly implemented by MHADA.
21. The provisions of DCPR 2034, the provisions of
the MHADA Act and the Government
Resolutions/orders/circulars issued by the Government from
time to time should be strictly implemented by MHADA.”
165. Clause 1.5.1.16 of the e-tender reads as follows:-
“1.5.1.16 The C& DA shall follow all relevant prevailing
Indian Laws, rules and regulations, necessary IS codes, Slum
Act, Labour laws and MHADA Act, etc.”
166. Clause 11 of the GR dated 25/04/2025 which deals with
consent reads as under :-
“Since the redevelopment of these layouts will be done
through the C & Agency (developer) finalized by MHADA
through a tender process, it will be mandatory for the
appointed developer (C & DA) to submit consent letters of
51% of the total members in the layout to MHADA.”
167. We have already held that the DCPR provisions do not
require any consents to be obtained if the redevelopment is to be
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undertaken by MHADA on its own lands in a cluster layout.
However, the State Government has in the GR dated 25/04/2025,
nevertheless, required MHADA to obtain the consent of 51% of the
total members in the layout. Total members in the layout would
necessarily mean the total societies in the layout and not the total
number of residents in the layout. It is the stand of the
respondents that MHADA could have undertaken redevelopment of
these layouts directly under Regulation 33(9) wherein the
requirement of consent is specifically dispensed with. However, in
the submission of learned Advocate General, since the entitlement
of the existing lessees is lower in Regulation 33(9) than that
stipulated in Regulation 33(5), the GR wants to provide the
maximum possible rehabilitation to the existing societies, a stand
which we find to be rational and fair. Hence, the maximum areas
under Regulation 33(5) have been taken into consideration.
Clause 1.5.1.9 of the tender states as follows :
“C & DA shall be responsible for obtaining and submission of
consents in the form of valid society resolutions of at least 51%
societies. For slum structures (if any) consents as per Regulation
33(10) shall be obtained and submitted.”
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168. Thus, the requirement under the tender is evidently in
conformity with the provisions of the GR dated 25/04/2025,
wherein consent of 51% of the societies is contemplated.
169. We find force in the submission of learned Senior
Advocate Mr. Khambata for MHADA that since MHADA is
undertaking the redevelopment itself, there is no requirement of
consent of the societies. Nonetheless, the said GR dated
25/04/2025 provides that it shall be mandatory for the C & DA to
submit consent letters form of 51% of all members (the societies)
in the layout.
170. In a redevelopment project especially of this magnitude, it
stands to reason that the consent of the majority is sufficient,
otherwise the redevelopment can be halted by limited
societies/members, that is dissenting member/societies. It is only
when MHADA undertakes redevelopment in association with the
society in terms of Regulation 33(5)(7)b) that a consent of housing
society in form of valid resolution is the requirement (as distinct
from consent of 51% members) and hence the contention of the
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Bhogale 1.wpl-16257-2026 & ors.docpetitioner is clearly misconceived. We do not therefore find any
force in the submissions of learned Senior Advocates for the
petitioners that the impugned GRs are violative of DCR 33(5) or
33(9). In fact, the GRs provide additional requirements over and
above what is prescribed under the DCPR.
171. In our view, the statutory provisions must be construed
from a broad perspective of facilitating redevelopment of this
magnitude taking place in an important city like Mumbai,
especially when the law permits such a course. MHADA has to
factor in several aspects to make the project viable. In our view,
when a statutory agency like MHADA is undertaking the project,
through an agency funding the entire redevelopment, the sanctity
attached to such a project is much more compared to a standalone
individual development. This is not a case of a few individual
societies but as many as 5000 societies which form a part of the
cluster. MHADA retains control over the project. The planning
authorities are best suited to undertake such an exercise taking into
consideration myriad aspects of planning, execution,
implementation, finance etc., thereby ensuring the project is
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Bhogale 1.wpl-16257-2026 & ors.docworkable and viable. It is not possible for us to substitute our
opinion for that of the planning authority. Our task is to find out
any patent illegality in the decision-making. When there is
overwhelming material that the project is in public interest, any
attempt on our part to interfere on the plea that inconvenience is
caused to some individual societies, in the absence of a substantial
prejudice and in the absence of patent illegality, would amount to
stalling redevelopment which in our view would be against public
interest, apart from the same coming in the way of the beneficial
object for which MHADA Act is enacted. We therefore do not find
any merit in the challenge raised that the GRs are contrary to the
provisions of existing laws governing redevelopment.
Challenge to the tender floated in April 2026 for appointment of
& DA
172. So far as Adarsh Nagar CHS is concerned, the MCGM is
the owner of the subject layout and the same has been demised to
MHADA on 21/07/1949 as a ‘lessee in perpetuity’. In Bhupendra
Villa Premises Co-operative Society Limited and others vs. The
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Bhogale 1.wpl-16257-2026 & ors.docUnion of India and others40 in paragraph 37, this Court held that
“The aforesaid will apply with even greater force to the said
Indenture of Lease as, by the said Indenture of Lease, a lease has
been granted for a period of 999 years, which, as held by the
following judgments, is permissible, and virtually amounts to sale
of the said land…” Therefore, MHADA as a lessee in perpetuity is
effectively the owner of the said land since the conveyance by lease
in perpetuity virtually amounts to a sale.
173. The State Government of Maharashtra and MHADA also
retain a range of overriding powers under the MHADA Act.
Sections 41 and 42 comprised in Chapter V of MHADA Act
empower the State Government to acquire land for enabling
MHADA to discharge its functions. Section 66 comprised in Chapter
VI of the MHADA Act empowers the MHADA Authority to evict
persons from the premises of the Authority and to vacate their
premises if they have ‘(vi) failed to vacate the premises required by
the Authority for the purpose of implementing any plan or project
for the sale of tenements and to accept alternative accommodation
40 2024 SCC OnLine Bom 8
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Bhogale 1.wpl-16257-2026 & ors.docoffered by the Authority’. Section 95A of the MHADA Act
empowers MHADA to evict occupiers who refuse to vacate their
premises for the purposes of reconstruction. The GRs and the
tender put forth a beneficial scheme for all concerned. The rights of
the members of the petitioner society are safeguarded, and in fact
they are entitled to additional benefits as detailed by the
respondents which we have referred to in the later part of this
judgment.
174. The challenge to the tender dated April 2026 is therefore
completely misconceived. The tender is floated by MHADA to
appoint C & DA for consolidated layout redevelopment which is in
larger public interest. The petitioner societies have no absolute or
unfettered right over the said property and their rights over the
said lands are restricted by the sub-lease deeds, statutory
regulations, and the provisions of the DCRs. By appointing C & DA,
none of the rights of the petitioners’ members are adversely
impacted.
175. As is the stand of the respondents, the petitioners’
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Bhogale 1.wpl-16257-2026 & ors.docmembers’ rights will be enlarged post-redevelopment by way of
additional areas and corpus and better and streamlined amenities
and infrastructure. MHADA retains overarching rights over the
authority premises which include the said lands. MHADA has
authority to develop these lands in terms of DC Regulation 33(5)
(7)(b) and as long as there is a compliance of the said Regulation,
the petitioners cannot complain about violation of their rights as no
such right is violated. Even under the Sub Lease Deeds, petitioner
society holds the said lands subject to all statutory rules,
regulations, issued from time to time which includes the
abovementioned DC Regulation. The implementation of
redevelopment schemes by MHADA through an agency is also
expressly permitted as held in Motilal Nagar (supra). The stand of
the respondents is specific that all applicable laws, rules and
regulations will be observed and followed.
176. So far as the contention that the societies on authority
premises are being forced to amalgamate or dissolve themselves
and this would amount to violation of their rights under the MCS
Act as well as rights guaranteed under Article 19(1)(c), such stand
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Bhogale 1.wpl-16257-2026 & ors.docis completely misconceived. As submitted by learned Senior
Advocates for the respondents, no society is being forced to be
dissolved or amalgamated and whatever reconstitution or
adjustments are warranted will have to be done in accordance with
law. For the societies at this juncture to assume that issuance of the
GRs and floating the tender virtually has the effect of dissolving or
amalgamating the petitioner societies without following the due
process is completely misconceived and premature. Much emphasis
is laid by the petitioners that the right guaranteed under Article
19(1)(c) to form an association or a co-operative society. The
respondents categorically state that the right to form a society is
not being taken away or restricted or abridged. The right to form
an association or a co-operative society does not include an
unfettered right to run such a society and manage it in the way
they want. The society has to function subject to law made in that
behalf regulating a society under which it is formed. The right to
manage the affairs of the society has to be in accordance with the
law and it does not mean that the society can be managed in an
unrestricted unfettered manner contrary to the provisions of law.
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177. So far as the apprehension that the societies will be
merged/amalgamated so to form a new Co-operative Housing
Society, thereby defeating their rights to form an association which
includes Co-operative Societies, the contention is raised at a
premature stage. As submitted by learned Advocate General, due
procedure under the MCS Act shall be followed in this regard. It is
MHADA’s responsibility to act fairly and reasonably.
178. Mr. Tamboly, learned counsel for the petitioners relied
upon the following decisions in support :-
(i) Jamshed Hormusji Wadia Vs. Board of Trustees, Port
of Mumbai and another41
(ii) M/s. Dwarkadas Marfatia and Sons Vs. Board of
Trustees of the Port of Bombay42
(iii) New India Assurance Company Ltd. Vs. Nusli Neville
Wadia and another43
179. Even though the amendment incorporating the right to
form co-operative society as fundamental right is struck down, still
41 (2004) 3 SCC 214
42 (1989) 3 SCC 293
43 (2008) 3 SCC 279204
Bhogale 1.wpl-16257-2026 & ors.docright to form association which includes Co-operative Societies
continues. We are not expressing any opinion at this stage on this
aspect, but it is necessary to bear in mind that when the stage
comes for merger/amalgamation of the Co-operative Housing
Societies, the procedure under Sections 17, 18 of the MCS Act and
the other provisions obviously shall have to be resorted to. The test
that such a course is in the interest of the members of the societies
or in the interest of Co-operative movement or essential in the
public interest and so on will obviously be applied.
180. It is the contention of the petitioners that the
rehabilitation policy is being implemented in the same manner as
slum dwellers. Such contention is not well founded. The members
have been allotted the tenements in their respective category after
payment of due consideration. Bearing this in mind, for the
purpose of redevelopment, the formula prescribed by the
Regulations has to be applied before allotting the redeveloped
tenement. In any cluster redevelopment the allottees are bound to
suffer inconvenience, adjustments and there is every possibility that
having regard to the master plan, the members of the petitioner
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society may be relocated in a different building. There obviously
will be deliberations in view of requirement for the C & DA to
obtain consent. The provisions for merger and amalgamation in the
impugned GRs do not make the policy of the Government very
clear. The learned Advocate General having taken a stand that the
provisions of the MCS Act will be resorted to, obviously the State
Government/MHADA would look into this aspect and take an
informed decision in consonance with the provisions of law.
181. There is no doubt that the members of the societies who
are residing in the tenements for years together, expect more
clarity on the procedure to be adopted which obviously the State
Government/MHADA is expected to provide. The Grievance Cell
has not been constituted so far. The State Government to take
appropriate steps for expeditious constitution of the Grievance Cell.
182. In Jamshed Hormusji Wadia (supra), the issue was about
responsibility of the instrumentality of the State while dealing with
its tenant. It was held that the instrumentalities cannot be left with
unbridled and uncontrolled powers as landlord. The Supreme
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Court held that balance has to be struck between responsibility on
the State and the protection of the tenants. As held in M/s.
Dwarkadas Marfatia and Sons (supra) the decision of the State has
to satisfy the test of fairness and reasonableness. The decision of
the State must be informed by reasons and guided by public
interest. Obviously these factors are to be borne in mind by the
State/MHADA when the question of amalgamation/merger of the
societies would arise.
183. The entire case of the petitioners is that during the
subsistence of a valid sub-lease in their favour, standalone
redevelopment should be permitted at the behest of the individual
societies. There are approximately 5000 societies forming part of
MHADA layouts/housing stock, and therefore if the State of
Maharashtra has taken a policy decision which is in conformity
with the statutory provisions that a standalone redevelopment at
behest of one society will defeat the object of integrated/cluster
redevelopment, we do not find such a stand unreasonable or
arbitrary especially when no prejudice is caused to the petitioner
members and their rights in the tenement are secured. The policy
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decision of MHADA and the State Government is intended to
secure systematic, uniform and planned redevelopment at the
layout level. That the petitioner societies do not have unfettered
right to redevelop will answer the submission of Mr. Surel Shah,
learned Senior Advocate for one of the petitioners.
184. The argument of learned Senior Advocate Mr. Y. S.
Jahagirdar is that the cluster is broken as some of the societies in
the adjacent plots have been permitted to carry on the
development in terms of permission already granted. We are afraid
the contention that the cluster is broken can only be stated to be
rejected. The petitioner is seeking to carve out its property from the
integrated/cluster redevelopment scheme on the basis of a private
preference for standalone redevelopment. Permitting such
standalone redevelopment would be counterproductive to the
planned redevelopment undertaken at the layout level as the entire
policy may become unworkable. Further, such redevelopment
would also be against public interest, and it will compromise
integrated development of infrastructure amenities and better town
planning. Integrated/cluster redevelopment enables redevelopment
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of the entire MHADA layout in a planned and comprehensive
manner, instead of permitting fragmented and piecemeal
redevelopment by individual societies. It ensures coordinated
planning of internal roads, fire access, parking, open spaces,
drainage, sewerage, water supply, common amenities, utility
services and overall infrastructure for the benefit of all occupants in
the layout.
185. There is no violation of Article 14 of the Constitution of
India, since the societies which have valid and subsisting approvals
from MHADA for their redevelopment have been excluded from
this redevelopment on the basis of ‘intelligible differentia’. As per
the plan submitted to this Court of the proposed redevelopment of
Bandra Reclamation as well as the Adarsh Nagar Redevelopment
demonstrates that even after the exclusion of the societies (which
have been excluded in GR and Tender) a cohesive and integrated
development is possible of all the balance societies. In the absence
of the decision being arbitrary or unreasonable or the same being
contrary to law, it is not possible for us to substitute our opinion
for that of the planning authority.
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186. The GRs impugned in the writ petition are not isolated
administrative action. They form part of a larger housing and
redevelopment policy of MHADA. We find force in the submission
of learned Advocate General and learned Senior Advocates for the
respondents that the redevelopment of individual MHADA layouts
such as Adarsh Nagar, Bandra Reclamation cannot be viewed
merely as redevelopment of individual societies. It forms a part of
the larger statutory housing policy framework concerning public
housing stock, rehabilitation entitlements, income group
distribution and planned urban development. The concept of
integrated/cluster development under Regulation 33(9) is for the
larger benefit of the city as infrastructure, amenities and utilities
are considered from the larger perspective.
Benefits of integrated/cluster redevelopment to occupants and
public interest
187. Let us now test what the benefits to the occupants are in
terms of the redevelopment to be undertaken by MHADA. Under
Regulation 33(5), final rehabilitation entitlement consists of
multiple components, including basic entitlement, additional area
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depending on plot size, and fungible compensatory area. MHADA,
in its affidavit has stated that under the society-led redevelopment,
entitlement to additional area may range from minimum 50% to
maximum 105% over and above the existing carpet area, whereas
under cluster redevelopment, the entitlement to additional area is
about 120% over and above the existing carpet area. The petitioner
therefore suffers no prejudice by inclusion in the integrated
redevelopment framework. Moreover, such additional entitlement
is in terms of the statutory framework. The petitioner society is
substantially benefiting from such redevelopment.
188. MHADA-led redevelopment is justified considering the
nature and size of the layout, the age of the buildings, the public
housing-policy framework and the need for integrated planning.
Under Regulation 33(5), 2.1, proviso to explanation (b) stipulates
that the maximum entitlement of rehabilitation area shall in no
case exceed the maximum limit of carpet area prescribed for MIG
category by the government as applicable on the date of approval
of redevelopment project. Such an entitlement as of date under the
16/03/2023 GR is 90 square meters.
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189. Even in terms of the tender document following are the
benefits of integrated/cluster redevelopment over independent
redevelopment :-
(i) The Tender Document, Volume I, Clause
1.5.1.12(a), specifically sets out the proposed carpet area
entitlement of the existing residential tenements after
redevelopment. By way of illustration, an existing MIG-D
tenement, with an existing carpet area of 79.96 sq. m.,
will be rehabilitated as a 200 sq. m. tenement in the
redeveloped layout representing an enhancement of
approximately 150% over the existing carpet area. The
corresponding figures for other categories are : MIG-A
from existing 48.73 sq. m. to 122 sq. m.; MIG-B from
50.83 sq. m. to 127 sq. m.; MIG-C from 61.25 sq. m. to
153 sq. m. We thus find that the petitioner society’s
members, holding tenements in the MIG categories are
getting substantial benefits of these enhanced
entitlements. Pertinent to, this reconstruction is entirely
free of cost to the occupants.
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(ii) In addition to the substantially enhanced carpet
area, the petitioner society’s members shall also receive,
during the redevelopment period monthly rent,
commencing in the first year of vacation at Rs.35,000 to
Rs.85,000 per month (the amount being graded to the
existing carpet area), with 10% annual escalation,
payable by the C and D Agency from the date of vacation
till the date of issue of the Occupation Certificate for the
respective rehabilitation building (Clause 1.5.1.12(a) of
the tender document); A corpus fund ranging from Rs.18
lakhs to Rs.45 lakhs per tenement (graded to the existing
carpet area), to be distributed by MHADA in such manner
and at such time as MHADA may decide; A one-time
shifting charge of Rs.25,000 per tenement (Clause 1.5.1.8
of the tender document); A one-time brokerage charge
equal to the starting rent of the first month (Clause
1.5.1.12(a) of the tender document). Further benefits
include provision for the redeveloped layout with high-
grade infrastructure and amenities, including separate
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two-wheeler and four-wheeler parking, visitors’ parking,
fire-fighting infrastructure, solar systems, rainwater
harvesting, energy-efficient services, GRIHA or LEED-
equivalent sustainability certification (Clauses 1.5.1.18 to
1.5.1.21) as well as the central playground at the existing
Worli Sports Club ground, reservation amenities under
Regulation 17 of the DCPR, 2034 (EOS 1.4, ΕΕ 1.1, ΕΕ
1.2 and other prescribed amenities), and a network of
internal access roads of statutory width.
(iii) The Master Plan and Block Model annexed at
Volume IV of the tender document conclusively
demonstrate the integrated character of the
redevelopment. The Master Plan envisages multiple
towers for the existing tenements (categorised by
tenement type, such as MIG-A, MIG-B, MIG-C, MIG-D,
LIG, SIHS and C1), MHADA towers for the MHADB
Premises, multiple sale towers for the C&DA Premises
together with the central playground, the commercial
complex, the welfare centre, and a network of open
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spaces. The Master Plan thus preserves the identity and
accommodation of each existing tenement type and
dispense the petitioner’s concern that the integrated
redevelopment results in any “merger” or “amalgamation”
of identities.
190. The proposed redevelopment would confer enormous
benefits not only to the society/its members but also the public at
large. The quality, durability and safety of the new construction
are safeguarded by mandatory independent technical oversight. All
rehabilitation plans, elevations and amenities require MHADA’s
prior approval. Residents’ health, safety and convenience during
the works are expressly protected. Security of tenure and society
rights are structurally protected. Residents’ occupancy is formalised
through registered tripartite Permanent Alternative
Accommodation Agreements.
191. Commencement Certificate and sale rights for the
developer’s free-sale component are released only in proportion to
the progress of the rehabilitation component and the MHADA share
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and only after payment of the requisite FSI premium. The C & DA
is obliged to complete the rehabilitation component, MHADA
premises and amenities within six years of satisfaction of the
‘Conditions Precedent’. The Agency is liable for damages for the
delay. The public exchequers secure substantial monetary
consideration at no cost or risk. MHADA realises an FSI premium
of Rs.754 Crore for FSI up to 3 + consideration for the 4 th FSI of
either a free-built MHADA share of 23,281 sq.mt. (31,429 sq.mt.
with fungible) or a premium of not less than Rs.768 Crore. The
entire cost of construction, statutory premiums, approvals, surveys,
relocation of religious/hutment structures, road widening to 18.3
mts., clearance of societies’ existing dues, and maintenance until
the ‘Taking Over Date’ is to be borne by the C & DA, and the C &
DA is bound to indemnify MHADA against all claims.
192. Besides various buildings as stated above, it is envisaged
to have a network of open spaces and parks. The central idea of
redevelopment, as per the master plan is to achieve an integrated
program of building activities and spaces.
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193. Similarly, the following salient features of the Bandra
Reclamation Tender document demonstrate the benefits of
integrated/cluster redevelopment over independent redevelopment
in Bandra Reclamation Layout:
(i) Planned development of the entire layout/ scheme with
international standard amenities and comprehensive
housing for all residents in the housing scheme :
Besides redevelopment of the existing buildings and
construction of new buildings, it is envisaged to have a
network of open spaces and parks. The central idea of
the redevelopment, as per the Master Plan is to achieve
an integrated redevelopment of buildings activities and
spaces with international standard amenities.
(ii) Increased area of premises :
All eligible tenements in Bandra Reclamation Layout
will get 2.65x times their existing area, free of cost. In a
location like Bandra Reclamation Layout, it is a
substantial increase in area.
The redevelopment confers a substantial, quantifiable
enhancement of carpet area. Every resident receives a
materially enhanced tenement, free of cost. There is an217
Bhogale 1.wpl-16257-2026 & ors.docincrease of upto 163% per tenement .
(iii) Transit Rent :
A tiered monthly rent of ₹45,000 to ₹1,00,000
(escalating 10% p.a., with a compounding mechanism
extending the protection to every phase of vacation)
from the date of vacating until the Occupation
Certificate of the respective building.
(iv) Generation of new corpus through the C&D Agent :
The proposed corpus fund is stated to be Rs.17 to Rs.40
lakh per tenement;
(v) Creation of additional housing stock/ payment of
premium to enable MHADA to achieve objectives :
In Bandra Reclamation Layout MHADA will receive
premium of around Rs. 3900 crores [Rs. 2083 crores +
Rs. 1817 crores], which MHADA can utilize for its
objectives.
(vi) Other Benefits :
a. distribution of sinking fund to members;
b. ₹25,000 shifting charge;
c. one month's brokerage;
d. registered tripartite Permanent Alternative
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Accommodation Agreements with tenement holders.
e. ‘Defect Liability Period’ of five years from the
Occupation Certificate; andf. unconditional and irrevocable Performance Security
of ₹60.35 Crore.
Individual interest must yield to larger public interest
194. In a redevelopment of such magnitude and that too
undertaken by a responsible agency like MHADA, the owner of the
layout, this Court would be loath to come in the way of
redevelopment undertaken in the larger public interest merely
because the rights of a limited number of individuals may be
affected. In advancing public welfare, there may be situations
where certain individual rights are necessarily restricted or
curtailed. However, such consequences, by themselves, do not and
cannot constitute valid ground to restrain the State from taking
action in furtherance of public interest. The decision in Haryana
Urban Department Authority vs. Abhishek Gupta44 and State of
Haryana and others vs. Vinod Oil and General Mills and another 45
44 2024 SCC OnLine SC 2991
45 (2014) 15 SCC 410
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are significant in this context. Moreover, paragraph 16 in Motilal
Nagar (supra) is important which reads thus :
“16. Considering the nature of the proposed project, it may
not be possible to be undertaken by individual
co-operative housing societies, or associations formed by
occupants thereof on a piecemeal and individual basis. Each
co-operative society would look solely to the personal interest
of itself and its members, and likely appoint a developer to
undertake a narrow and limited development of its land /
buildings. This would not be in the interest of orderly planning
and infrastructural development. It would also expose each
society and its occupants to the exigencies of commercial
developments by developers.
Moreover, it is only a holistic redevelopment that proposes a
solution for the long-term problem of flooding and water-
logging faced by the occupants of Motilal Nagar, which
certainly cannot be resolved by individual and piecemeal
redevelopment of separate parcels of land.”
Petitioners’ reliance on doctrine of legitimate expectation
195. It is the submission of learned Advocate General and
learned Senior Advocates for the respondents that the petitioners’
reliance on the doctrine of legitimate expectation is misplaced. The
petitioner societies do not have any absolute rights over the said
land or any unfettered right to redevelop the same. This is clear
from the express terms of the statute, as well as the draft sub-leases
deeds and/or sample lease-deed relied upon by the petitioners
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themselves. We have no hesitation in observing that the statutes as
well as the lease-deeds relied upon reiterate the superior rights,
power and authority of MHADA and that the petitioners’ rights are
subject and sub-servient thereto. The petitioners cannot invoke
legitimate expectation to obtain a benefit contrary to this express
statutory and contractual framework. The principle of legitimate
expectation cannot be used to vary statutory provisions which are
binding on parties and contractual terms. Further and in any event,
the doctrine of legitimate expectation does not fetter the freedom
of the State to change policy where such change is justified in the
public interest. We are in agreement with the submission of
learned Senior Advocates for the respondents that whether the
expectation is reasonable or legitimate is to be determined not
according to the claimant’s perception, but in the larger public
interest.
Violation of Article 300A of the Constitution of India as a result of
the proposed redevelopment
196. Article 300A of the Constitution of India reads as follows :
“300A. Persons not to be deprived of property save by
221
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No person shall be deprived of his property save by authority of
law.”
197. In Jilubhai Nanbhai Khachar and others vs. State of
Gujarat and another46 the Hon’ble Supreme Court interpreted the
scope of Article 300A of the Constitution of India and inter alia
specifically dealt with compensation. The Court held that while the
law may fix an amount for compensation as may be specified by
said law, the adequacy of compensation so fixed cannot be
questioned by the Court, save that it must not be illusory and must
not be evolved using arbitrary principles.
198. The Hon’ble Supreme Court in K.T. Plantation Private
Limited an another vs. State of Karnataka47 while citing with
approval Jilubhai, also discussed compensation in relation to
Article 300A. In this case, the Court held that the right to claim
compensation under Article 300A can be inferred from the Article
and it is for the State to justify the compensation ‘on justifiable
grounds which may depend upon the legislative policy, object and
purpose of the statute and host of other factors.’ The Court also
46 1995 Supp (1) SCC 596 [para 52]
47(2011) 9 SCC 1 [188-192]
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held that nil compensation could be awarded for
acquisition/deprivation of property under 300A citing cases where
the State discharges liability on the property and distinguished this
from a case of ‘no compensation’ on the grounds that a law stating
the latter was impermissible.
199. The Hon’ble Supreme Court in Rajiv Sarin and another vs.
State of Uttarakhand and others48 has held that payment of market
value or indemnification to the owner of the property expropriated
is not a condition precedent for acquisition.
200. In the present case, the alternative accommodation and
benefits that will be provided to the individual occupiers which is
in consonance with the statutory provisions would clearly satisfy
the requirement of Article 300A. We have already held that the
petitioner societies do not have an absolute or unfettered right over
the subject land. Limited right and interest that the petitioner
societies have over the subject land is subject inter alia to MHADA’s
overarching ownership rights, power and statutory and regulatory
authority. Secondly the MHADA Act and DCPR expressly permits
48 (2011) 8 SCC 708
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redevelopment by MHADA on its layout without the requirement of
consent from the petitioner societies or its members. The GRs have
been issued in pursuance of such statutory provisions. The
deprivation of the petitioners’ right/interest on the subject land,
even assuming this amounts to deprivation, is the ‘authority of law’
as provided under Article 300A. It has been expressly stated by the
learned Advocate General and learned Senior Advocates for
MHADA that in any event, all sub-rights and safeguards form a part
of Article 300A that protect the proposed redevelopment. The C &
DA is bound under the e-tender to obtain consent of 51% of the co-
operative societies in the layout. The societies are thus afforded the
opportunity to accord their consent to the proposed
redevelopment. The petitioners’ members are being more than
adequately compensated with a rehabilitation area of more than
twice the area of their present tenements. As far as dissenting
members are concerned, it is expressly made clear that MHADA
will take recourse to the mechanisms prescribed under the relevant
law, and strictly follow the procedures laid down therein. The
proposed redevelopment is for a public purpose, and therefore the
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said requirement is also fulfilled.
Contention of the petitioner as regards unjust gains for the C & DA
at the cost of corresponding gains for MHADA
201. Learned counsel for the petitioners were at pains to point
out that there is hardly any gain for MHADA in the project and that
the C & DA is virtually a developer who not only has absolute
control over the project but is the biggest gainer. Our attention is
invited to the facts and figures from the tender document. In this
context, from the submissions made by learned Senior Advocates
for the respondents, as indicated earlier, it needs to be noted that
the project envisages a massive redevelopment exercise of
integrated redevelopment of Bandra Reclamation layout involving
approximately 98.27 acres of land in Bandra; and 34.33 acres of
land in Worli. It is the case of the respondents that to effectively
undertake a redevelopment of this magnitude and facilitate a
holistically developed and integrated layout, MHADA would
require assistance, funding, expertise, competence, network and
capacity of a skilled third party. According to MHADA, C & DA will
employ suitable high-rise technology for speedy and quality
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construction. C & DA is also directed to follow all GRIHA or LEED
certification or equivalent norms for sustainability in the
development. All structural designs/drawings are to be vetted from
IIT Mumbai or VJTI before obtaining approval from MHADA for
commencing construction. The C & DA will bear all costs related to
the project. Hence, C & DA will bring in financial outlay and
management expertise, beyond the immediate sources of MHADA.
202. The petitioner societies are pushing for independent
redevelopment where the control over such independent,
haphazard and piecemeal redevelopment/development would vest
with different third-party developers. However, unlike such
haphazard and piecemeal redevelopment, MHADA in this case will
have absolute and complete control over the redevelopment and
will be personally undertaking the same. MHADA denies that the
& DA has been vested with powers and discretion independently as
submitted by the petitioners. It is the stand of MHADA that it
retains total control over the redevelopment and over the C & DA
with more than adequate safeguards to ensure performance as set
out herein below. The terms of appointment as envisaged from the
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tender document and draft construction cum development
agreement in the proposed arrangement between MHADA and C &
DA are relevant. In terms of these documents, learned Advocate
General submitted that MHADA will continue to hold title to the
land, at all times, even after the C & DA is appointed. Further, land
or land ownership rights will not be parted with the C & DA. C &
DA will not be permitted to mortgage or create any charge, lien or
third-party interest in the land in order to raise finance and create
any third-party interest in the land. Clause 1.5.1.11 of the tender
expressly provides that “All the plans proposed by C & DA related
to rehabilitation component as well as MHADA share including but
not limited to layout plans, architectural plans, elevations,
provision of amenities, infrastructure will be approved by MHADA
only after modification/changes as per MHADA requirements have
been made by C & DA”. Thus, MHADA retains control over the
master plan.
203. There are several clauses in the draft C & DA agreement
which show that MHADA retains control over development
permissions. The development permissions for C & DA share are
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linked proportionately to permissions of rehabilitation component
and payment of MHADA premium. C & DA will be entitled to
construct the C & DA premises only in proportion to the
construction of the Rehabilitation Component which has been
sanctioned, approved or construction commenced in a phase-wise
manner only. The commencement certificate for C &DA’s share
will be issued by MHADA in phases proportionate to the
commencement certificate issued for rehabilitation premises. The
C & DA will be required to furnish monthly progress reports to
MHADA and attend quarterly review meetings. MHADA will also
conduct monthly inspection of the project. This can be seen from
Clauses 1.7 and 1.8 of the tender document. It is thus evident that
MHADA will retain complete control of redevelopment and release
of FSI basis performance.
204. The C & DA will bear all costs related to the project,
including costs in relation to shifting and rehabilitation of MHADA
eligible tenements, shops and slum dwellers, as well as
redevelopment of rehabilitation component, reservation amenities
and MHADA premises. Clauses 1.1(2), 1.1(3), 1.1(8), 1.1(12) are
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indicative of this. Further, the tentative costs estimate of
undertaking a redevelopment project of this magnitude viz. so far
as Bandra Reclamation layout is concerned, is Rs.24,075 crores. So
far as Adarsh Nagar Worli redevelopment is concerned, the
tentative costs estimate of undertaking such a redevelopment
project is Rs.13,200 crores. The C & DA has to pay all taxes, levies,
duties, cess and all other statutory charges or outgoings payable in
respect of the project. The C & DA will also pay all construction
related electricity bills, water charges and property tax charges.
Clause 1.1(28) of the tender document indicates this. Thus, the
entire cost of the project to be borne by C & DA. As indicated
earlier, according to learned Senior Advocates for the petitioners,
this demonstrates that C & DA is virtually a developer and
therefore the requirement of consent in terms of the DCPR triggers
in. In our opinion, such a submission is completely misconceived.
205. Learned Senior Advocates for the petitioners submitted
that there is no requirement of additional infrastructure as the
available infrastructure at Adarsh Nagar and Bandra Reclamation
layout is sufficient. However, in our opinion, these are matters of
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planning. MHADA has proposed a cluster redevelopment in the
island city of Mumbai in a planned and inclusive manner. Whether
the infrastructure is adequate or has become obsolete in the era of
rapid urbanization, whether this comes in the way of the growth of
an important commercial capital of India like Mumbai and
ultimately in the growth of the nation is a planning exercise which
has to be done by the planning authorities having experts on board.
This cannot be viewed only from the standpoint of individual
standalone societies, who say that their beneficial right to
enjoyment of the property during the subsistence of the lease-deeds
is affected.
206. The planning authorities are of the view that the cluster
redevelopment is a feasible way of developing the island city of
Mumbai in a planned and inclusive manner. The city of Mumbai
has to grow and keep pace with the changing times, catering to the
needs of flourishing markets and economic opportunities. It is not
possible for this Court to substitute its opinion for that of the
planning authority like MHADA, when it acts in furtherance of the
holistic approach of the Government of Maharashtra to undertake a
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cluster redevelopment in the city. By introducing the DCPR, it
incentivised and rewarded cluster redevelopment over individual
schemes. The reasons therefor have been stated in the impugned
GRs. The decisions of the State Government cannot be said to be
arbitrary or irrational or for that matter it is not possible for us to
form an opinion that the petitioners have produced sufficient
materials on record demonstrating the arbitrariness or the
unreasonableness of the State Government’s decision.
207. Thus, when this is the scale of the redevelopment project
undertaken by MHADA where it will have absolute and complete
control over the redevelopment, personally undertaking the same
through a C & DA with more than adequate safeguards to ensure
performance of its commitment, merely because the C & DA will
bear all costs related to the project by bringing in financial outlay
and management expertise beyond the immediate sources of
MHADA, does not make the C & DA ‘a developer’ as sought to be
propounded by learned counsel for the petitioners.
208. MHADA says that the compensation to the C & DA will be
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in the form of free sale FSI which will be approved by MHADA only
in proportion to the construction of the rehabilitation component.
The safeguards in the proposed arrangement are a time-bound
development; the project completion timeline stipulated is at 6
years, subject to limited exceptions such as force majeure,
approvals and permission from various authorities, and facilitation
by MHADA. This is evident from Clauses 1.5.1.3.1, 1.5.3.3, 1.31
and 1.3. In case of delay due to a material breach on the part of
& DA (not on account of a force majeure event or delay in
facilitation by MHADA), pre-estimated damages for delay at 0.01 %
per month in proportion to the cost of the construction affected,
shall be levied. The C & DA is required to furnish a performance
security to MHADA equivalent to Rs.60.35 crores.
209. While carrying out a phased redevelopment, C & DA will
implement the project in phases. During the construction of any
phases, residents of balanced phases will be residing in the same
place or in transit accommodation. Further, the shifting of
infrastructure will be undertaken in a way that existing
infrastructure and services to other existing buildings are not
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affected and remain functional. Clauses 1.1(23) and 1.2(j)
demonstrate the aspect of phased redevelopment.
210. There are provisions for termination of the agreement.
Clause 10.4 provides for termination of the agreement between
MHADA and C & DA in the event of default. In terms of Clause
10.4, MHADA reserves its right to substitute the C & DA, in the case
of an event of default by C & DA, which includes situations such as
no progress towards work in respect of the rehabilitation
component for a period of one year.
211. Though the issue of redevelopment by MHADA through
& DA agency has already been decided in Motilal Nagar (supra)
case by this Court, it was necessary for us to advert to the
contentions raised by the petitioners. We have no hesitation in
observing that in terms of the materials on record and after going
through the tender document as well as the draft of C & DA
agencies, we find substance in the submission of the learned Senior
Advocates for the respondents that the redevelopment of Bandra
Reclamation and Adarsh Nagar layout through C & DA is being
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undertaken by MHADA ‘on its own’.
On the aspect of NOC granted in Bandra Reclamation by MHADA
on 27/05/2025 after issuance of GR dated 25/04/2025
212. In our opinion, the petitioner societies cannot claim an
indefeasible right to redevelop the property on its own especially
when the redevelopment is being undertaken by MHADA on its
own and in terms of the policy of the State while safeguarding the
interest of the members of the petitioner societies. Thus, because
one NOC is granted by MHADA after the GR dated 25/04/2025
does not confer any right on the petitioner societies to claim rights
of redevelopment on its own. In any case it is the stand of the
respondents that under Regulation 2.1 of DCPR, the society first
applies to MHADA for NOC if the redevelopment is at the instance
of the society. Once the society applies for NOC, the first ‘offer
letter’ by MHADA is issued. Some conditions are mentioned in the
‘offer letter’. Upon compliance with the same, NOC is issued by
MHADA. This case in point made out by the petitioner is a case
where MHADA had already issued ‘offer letter’ in favour of the
society before the issuance of the GR and NOC was issued after the
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GR. MHADA is relied upon a table below which shows the dates of
offer letters issued by MHADA in Bandra Reclamation layout. All
offer letters are prior to the impugned GR dated 25/04/2025.
Details of offer letter issued societies prior to GR
Sr. No. Name Plot area (sqm) Offer letter issued
on
1 PRADEEP 836.1 23.01.2024
(Indraneel)
2 MAHARASHTRA 836.1 23.01.2024
FISHERIES
3 CREECKSIDE 836.13 10.01.2024
4 SAIDUTTA
PRASAD 1672.2 18.09.2023
5 NIYOGEN
6 NEW DEEP 836 18.09.2023
(Al-Hilal)
7 MAHARASHTRA
RAJYA CHSL 1672.26 29.12.2021
8 PRABHAKAR
9 SEA-LINK
1166.56 10.01.2024
10 SALES TAX
11 SANDHYAVANDA 585.29 11.01.2024
N
12 NATIONAL
SERVANTS 1254.2 11.01.2024
(Mayur)
13 PRASAD SUYASH 668.9 05.07.2024
14 MEERA 668.9 05.07.2024
MADHURA
Total 11032.64
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213. We therefore do not find any substance in this submission.
Contention that MHADA is taking ‘premium’ instead of ‘housing
stock’ being bad in law
214. Much arguments have been advanced by the petitioners
that MHADA is taking premium instead of housing stock and
therefore the entire exercise is with a view to favour the developer.
For one, we have already held that C & DA agency is not a
developer. For the next, MHADA has complete control over the
project. A reference to Regulation 33(5) of DCPR indicates that it
gives option to MHADA under Table C-1 to receive FSI premium
instead of taking housing stock for FSI up to 3 (Rs.2083 Crores in
case of Bandra Reclamation and Rs.754 Crores in case of Adarsh
Nagar Worli). Also for 4th FSI, sharing is governed by Table C-2 of
Regulation 33(5) of DCPR. However, DCPR 33(5) also gives option
to MHADA to receive FSI premium instead of housing stock for
MHADA share for 4th FSI. This premium for 4th FSI is to be
calculated at 60% of prevailing ASR (ready Reckoner Land Rate),
which works out to be around Rs.1583 Crores in the case of Bandra
Reclamation and Rs.526 Crores in the case of Adarsh Nagar Worli.
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215. As submitted by the learned Advocate General, MHADA
however has raised the benchmark for this 4th FSI premium by
converting the housing stock for 4th FSI (as per Table C-2) into the
FSI premium amount by multiplying the housing stock by ready
reckoner rate for residential premises. The benchmark FSI
premium for 4th FSI premium was kept as Rs.1817 Crores. The
calculations are in the tender document Volume I. The benchmark
for 4th FSI premium for Adarsh Nagar Worli has been raised by
around 242 Crores.
216. Therefore, based on the above, MHADA is expected to
receive a minimum aggregate premium of Rs.2083 Crores +
Rs.1817 Crores i.e. Rs.3900 Crores in respect of the Bandra
Reclamation and in respect of the Adarsh Nagar Worli it is
expected to receive a total minimum premium of Rs.754 Crores +
Rs.768 Crores which comes to totaling Rs.1522 Crores. For Bandra
Reclamation the highest bidder has quoted a premium of Rs.1847
Crores against the benchmark of Rs.1817 Crores whereas for
Adarsh Nagar Worli the highest bidder has quoted a premium of
Rs.794 Crores against the benchmark of Rs.768 Crores. Therefore,
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MHADA having received the aforesaid premium instead of housing
stock is a reason why MHADA’s share is shown as 0 in the table
which is at page 78 of the tender Volume-I.
217. In the tender document a table shows distribution of FSI
viz. Rehabilitation of 26.57% and 73.43% towards free sale in
respect of Bandra Reclamation and in respect of Adarsh Nagar
Worli Rehabilitation 34.75% and free sale 65.25%. Our attention
is drawn to the aspect that if instead of above premium option,
housing stock option would have been selected by MHADA, the
equivalent FSI distribution would have been as follows in case of
Bandra Reclamation :
Summary FSI BUA
W/o With Unit Percent
fungible fungible
1 Total Plot 5,26,785 7,11,159 sqm 100%
potential
2 Rehabilitati 1,39,963 1,88,950 sqm 26.57%
on FSI area
3 MHADA 1,53,233 2,06,865 sqm 29.09%
share for 3
FSI & 4th
FSI
4 Sale area 2,33,588 3,15,345 sqm 44.34%
for
developer238
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218. In so far as Adarsh Nagar Worli is concerned, the summary
FSI of built up area would be as under :
Summary FSI BUA
W/o With Unit Percent
fungible fungible
1 Total Plot 2,54,215 3,43,190 sqm 100%
potential
2 Rehabilitati 88,329 1,19,245 sqm 34.75%
on FSI area
3 MHADA 59,163 79,870 sqm 23.27%
share for 3
FSI & 4th
FSI
4 Sale area 1,06,722 1,44,075 sqm 41.98%
for
developer
219. Therefore, in view of the submission of learned Senior
Advocates for the respondents that if in the tender, premium option
is shown, which is nothing but conversion of MHADA share into
FSI premium, which conversion is allowed as one of the options
under Regulation 33(5) of DCPR, we do not find such a course
adopted by MHADA as contrary to law. The contention of learned
counsel for the petitioners that the gain of the C & DA is at the cost
of MHADA’s share can only be stated to be rejected.
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220. It is the stand of MHADA that the redevelopment of
MHADA layouts such as Adarsh Nagar and Bandra Reclamation
cannot be viewed merely as an isolated redevelopment exercise of
individual societies, but forms part of the larger statutory housing
policy framework implemented by the State Government and
MHADA, for balancing public housing stock, rehabilitation
entitlements, income-group distribution and planned urban
housing development. The respondent No.1-State has issued GR
dated 16/03/2023 revising the classification and permissible carpet
areas for EWS, LIG, MIG and HIG housing categories in projects
developed and redeveloped under MHADA schemes. The said GRs
specifically recognises that MHADA layouts and redevelopment
projects are required to be planned in a manner ensuring
structured housing distribution and availability of housing stock
across various income groups.
221. The GR dated 16/03/2023 further records that piecemeal
and unregulated housing allocation or redevelopment adversely
affects the availability and distribution of housing stock meant for
different income groups, and therefore the State Government
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revised permissible carpet area norms and income limits for
MHADA housing projects. The said policy decision demonstrates
that redevelopment of MHADA layouts is not merely a private
redevelopment exercise between a society and a developer but is
intrinsically linked with larger housing policy objectives of the
State and MHADA concerning planned housing distribution, urban
infrastructure, housing affordability and balanced development of
public housing stock.
222. It is a stand of MHADA that permitting individual societies
in layouts such as Adarsh Nagar and Bandra Reclamation to
independently redevelop isolated buildings through private
developers would completely defeat the larger policy framework
underlying the aforesaid GR and Regulation 33(5), since
redevelopment potential, housing stock planning, FSI utilisation
and infrastructure creation are all required to be considered
comprehensively at the layout level. The contention of the
petitioners that their right to redevelopment as an independent
proprietary right is affected irrespective of larger planning and
housing policy considerations applicable to the entire MHADA
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layout, is a contention which militates against larger public interest
and the object for which the MHADA Act has been enacted.
223. Adarsh Nagar and Bandra Reclamation layouts comprise
several old buildings developed decades ago. The State
Government has consciously taken a policy decision that layouts
such as Adarsh Nagar should be redeveloped in an integrated and
planned manner instead of fragmented and piecemeal
redevelopment. Integrated redevelopment ensures proper
infrastructure planning, open spaces, internal roads, parking,
amenities, drainage, water supply and coordinated development of
the entire layout. We do not find anything irrational or arbitrary in
the stand of the respondents that permitting independent
redevelopment of isolated buildings by separate developers would
result in haphazard and unplanned development causing prejudice
to larger public interest and orderly urban planning. The GRs are
issued in the larger public interest, not offending any statutory
provision and is a policy decision which we do not find any reason
to interfere with in the realm of this Court’s power of limited
interference in policy matters.
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224. If as a planning authority MHADA is of the view that
implementation of isolated redevelopment proposals in a dense
MHADA layout such as Adarsh Nagar materially impacts internal
road networks, amenity distribution, fire access, rehabilitation
logistics, fungible FSI balancing, common infrastructure loading
and future integrated planning for adjoining plots and societies, is
a decision in which we are not inclined to interfere, as except for
saying that the individual rights of the petitioners under the sub-
lease are affected, there is nothing to indicate that the decision
taken is patently arbitrary and/or not in larger public interest.
225. We therefore find substance in the submission of learned
Senior Advocates for the respondents that the petitioner cannot
seek to override public planning policy by claiming unilateral
redevelopment rights, for MHADA being the planning authority
and superior lessor in respect of MHADA layouts, retains authority
to regulate redevelopment in accordance with applicable laws and
policies.
226. When MHADA says that under the proposed layout-wide
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redevelopment framework, MHADA proposes to provide planned
internal road networks, improved fire tender access, scientifically
planned drainage and sewerage systems, upgraded water supply
infrastructure, organised parking facilities, open recreational
spaces, landscaped common areas, better amenity distribution,
integrated utility planning and uniform urban infrastructure
through the layout, apart from the fact that this Court shall not sit
in judgment over the wisdom of such a policy, there is nothing to
indicate that the decision is patently illegal or arbitrary to law. The
petitioner societies may be of the opinion that the existing
infrastructure is adequate, but in matters of planning such matters
are best left to the wisdom of the State, which is well advised by
the experts in matters of planning. Further, MHADA, being a
statutory planning and housing authority, is in a position to ensure
uniformity, accountability, quality control and long-term
infrastructure sustainability for the entire layout, which private
piecemeal redevelopment projects undertaken by different
developers cannot guarantee. The integrated redevelopment
therefore substantially enhances not only the rehabilitation
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entitlement of occupants but also the overall quality of life, safety
standards, civic infrastructure and future urban planning potential
of the entire layout which the planning authorities have kept in
mind. We do not see any reason to interfere in such matters of
policy.
227. We have already set out the comparative rehabilitation
entitlement demonstrating the benefits to the occupants. We are in
agreement with the submissions of learned Senior Advocates that
the rights of the occupants are safeguarded and no irreparable
prejudice whatsoever is caused to the petitioners as the petitioners
would continue to receive benefits under the integrated
redevelopment framework. The redevelopment concerns as many
as 5000 housing societies. Though the writ petitions are filed at
the instance of some of the petitioner societies, we are satisfied that
the interest of the bona fide occupants of all these societies have
been safeguarded. Any interference in the redevelopment process
would affect the larger body of occupants and the residents in the
layout.
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228. We therefore do not find any merit in these writ petitions.
Recording the assurances on the behalf of the respondents as
indicated in the affidavit-in-replies, and as noted in this judgment,
these writ petitions being devoid of any merit are dismissed with
no order as to costs.
229. Rule stands discharged.
(S. M. MODAK, J.) (M. S. KARNIK, J.)
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