Shree Sai Baba Municipal Market Vyapari Welfare Association vs Municipal Corporation of Greater Mumbai

Anoop V. Mohta, J.—Heard both the Petitions finally in view of the urgency so averred and expressed. The Petitioners are Association of the licence vendors having their business in different Municipal markets established by Respondent No. 1 Mumbai Municipal Corporation, a statutory body incorporated under the Mumbai Municipal Corporation Act, 1888 (MMC Act of 1888). The main prayer is to set aside the impugned communications dated 20.08.2011 and 07.09.2011, issued by Respondent No. 1, whereby the redevelopment proposals submitted by the Petitioners Association of the respective Municipal Markets, rejected mainly on the ground that their proposal to change the redevelopment of market is in pipeline and the same is pending for reconsideration from the side of State of Maharashtra.

Admittedly, the Respondent/Corporation has been providing suitable retail markets with facilities in the respective area for the people at large. There are about 62 markets within the jurisdiction of Mumbai Municipal Corporation. The occupants/Associations of some of the markets are before us.

The Respondent/Corporation decided to redevelop these old retail markets in the city and suburbs, through private organization''s participation for management and maintenance on lease basis. This itself means it is necessary for the Corporation to take into confidence the legal occupants of such Markets along with others. The existing guidelines for development required to be considered after getting necessary proposals from the stakeholders. There is no issue that the Respondent/Corporation invited these Associations to submit their respective proposals which were accordingly forwarded.

The Respondents, however, failed to take note of the same and, therefore, Writ Petition No. 1333/2011 M/s. Shree Sai Baba Municipal Market Vyapari Welfare Association (Regd.) and Ors. v. The Municipal Corporation of Gr. Mumbai and Anr. filed by some of the Associations and prayed to expedite the pending proposals.

This High Court, after hearing both the parties and by recording the statement of the learned counsel appearing for the Respondents, has passed the following order, on 27 July, 2011:--

"1. The learned counsel appearing for Corporation states that final order on the applications of the Petitioners which are presently pending before the Assistant Commissioner, Markets, will be made as expeditiously as possible and in any case within a period of four weeks from today and the orders will be communicated to the Petitioners. Statement is accepted. In view of this statement, petition is disposed off. All contentions available to both the sides are kept open."

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The submission is made by the learned senior counsel appearing for the Petitioners that though the counsel''s statement was recorded above, without expressing any difficulty, based upon the existing policy, to take decision though the proposal to change the policy was in pipeline. The Respondent/Corporation, without hearing the Petitioners, unilaterally taken decision and communicated by impugned letters/communications dated 7.9.2011 and 20.08.2011 to the individual Association, separately.

The relevant paragraph of the said communication reads as under:

"M.C.G.M. has carefully reconsidered your proposal under the aforesaid redevelopment policy and has come to a conscious decision that the said policy is not beneficial to the Corporation in terms of the incentive ratio to be shared between the Developer and the Corporation as the same does not take into consideration the variation due to Ready Reckoner rates. Corporation is therefore in the process of amending the aforesaid re-development policy.

Therefore M.C.G.M. in public interest has decided to reject your proposal submitted under the said redevelopment policy. Meanwhile Corporation has decided to repair the said market under its phase wise comprehensive repair programme.

You had filed the Writ Petition in the High Court bearing No. WP/1333 of 2011 wherein Hon. High Court has passed orders on 27.7.2011 to expedite the proposal and pass final order thereon within 4 weeks. These orders are being passed pursuance to the orders of the Hon. High Court.

You are therefore, hereby, informed that your proposal for redevelopment of the Annasaheb Vartak Municipal Market is rejected."

The Petitioners, therefore, have filed the Writ Petitions in September 2011. This Court, on 14 December, 2011, made rule returnable on 10.01.2012 for final hearing peremptorily in view of urgency expressed and as it deal with the development of markets, being in dilapidated condition and/or old buildings.

Respondent No. 1, on 30 November, 2011 filed a reply and reiterated that rejection order, as they have decided to frame revised policy: The submission is also made that part amended policy is already approved by the Municipal Commissioner, and submitted to the Improvements Committee/Corporation. After the amended policy is finalised, they would take decision accordingly. Additional affidavit filed on 7 May, 2012 by Respondents in support of their case by annexing the policy and guidelines. However, no progress shown and condition of buildings as well as the averments so made by the Petitioners about the market remained as it is.

The Petitioners ultimately, in view of liberty so granted, have taken out Notice of Motion No. 228/2014 in Writ Petition No. 1853/2011 on 30 July, 2014 and resubmitted to direct to process the proposals dated 27.02.2004 and 05.05.2005, submitted by the Petitioner in accordance with the approved guidelines which are in force. This, in our view, is also additional factors to consider the case of urgency of the Petitioners, as the Respondents, inspite of the positive averments, are unable to take decisions and that affecting markets habitable condition. One such market at Mazgaon which was in extremely dilapidated condition collapsed in the month of September, 2013. That resulted into loss of several innocent citizens. The material/photographs are placed on record to show the collapsed Dockyard building and the resulted casualties. The photographs of other dilapidated markets of Petitioner Nos. 6, 8 and 10 are also placed on record.

There cannot be any dispute with regard to the pathetic conditions of such old markets. Therefore, the existing market redevelopment policy, just cannot be overlooked, basically by the Corporation who is under statutory obligation to maintain and redevelop such dilapidated buildings/markets and provide all requisite facilities, apart from the accommodations in case of redevelopment, as per the law, to the existing occupants of such markets also.

We have noted the incidents where, because of such dilapidated condition of markets/buildings, the occupants are compelled to vacate with assurances that they would be provided in due course, subject to development, their respective permanent accommodation on certain conditions. In some cases, the Respondents have accommodated and provided some alternate accommodations. Some of the occupants compelled and reluctantly accepted the same as they have to leave their market places and shift to other long distance places for their livelihood. The Respondents/Corporation, in our view, therefore, just cannot delay me redevelopment of such buildings/markets merely on the ground of proposed changes in the existing policy of which no progress placed on record.

The statement is made by the learned counsel appearing for the Petitioners that there is no development whatsoever even on that line. An urgent attention is required by the Corporation to develop such markets and specifically when the buildings are in dilapidated condition and/or are reported to be old buildings.

The Respondent/Corporation has already taken steps and accordingly prepared a list of dilapidated buildings in Mumbai as well as in Suburbs. They have categorized stating it to be C1, C2 and C3. They are under process to declare such others'' list.

At the instance of Respondent/Corporation, after hearing all the necessary parties by order dated 23 June, 2014 and 13 August, 2014 in Original Side Writ Petition (L) No. 1135 of 2014-Municipal Corporation of Greater Mumbai v. State of Maharashtra and Ors. (Anoop V. Mohta & A.A. Sayed, JJ.), we have already framed the guidelines to develop or redevelop old and dilapidated buildings which certainly need to be extended to such old and dilapidated markets, to avoid such untoward incidents and/or to avoid further loss of human lives apart from injury to the passersby. However, subject to the market policy so declared.

In order dated 23 June, 2014 (supra), the following guidelines are issued:

(h) In the case of a municipal owned building(s), the Corporation will issue Letter of Evacuation to every person in occupation of the said building or part thereof to vacate the said building along with their belongings within the said period of 7 days from date of issuance of such notice of Letter of Evacuation in respect of municipal owned building(s). The notice issued to such occupiers shall contain the name of the occupier and the area in his occupation and also the floor at which the premises are located. In case, if such tenant and/or occupier is not available, the Corporation shall affix such notice or Letter of Evacuation on any part of such premises.

(i) In the event, a person occupying such tenement whether of the privately owned building(s) or building(s) owned by Corporation or any other authority refuses to vacate the said premises, then the police shall remove such person from the said premises by using nominal force if required for the same.

(l) The rights of the tenants and/or occupiers and/or owners in respect of the said premises/property will not be affected by virtue of evacuation or demolition carried out by the Corporation of such dilapidated and dangerous building in exercise of the power under Section 354 of the said Act or by virtue of the fact that the Corporation is the owner of the premises. Such tenant and/or occupier and/or owner will be entitled to re-occupy the premises in respect of the same area after the reconstruction of the building, subject to the prevalent provisions of law pertaining to redevelopment of the property or subject to any arrangement or agreement arrived at by and between such tenants and/or occupiers with the owner of the building. Any action of evacuation/removal/demolition will not affect the inter se rights of owners if there be more than one owner or there is a dispute as to the title of the property.

(n) In respect of the Municipal buildings, it shall be the duty of the Corporation to provide alternate accommodation as early as possible in any of their premises to such tenant and/or occupier of the Corporation owned building till and until the said building is reconstructed by the Corporation or the tenancy of any of such occupier is determined in accordance with law."

The above order in no way restricts the power and scope and purpose of Section 354 of said Act. The Commissioner/Corporation and its Officers shall act in accordance with law. These guidelines will not affect any orders passed in pending proceedings and are not to be read and interpreted to restrict or permit the Corporation or any party to go beyond the statutory provisions of law. This order is necessitated essentially to make Section 354 effective and to see that human lives are not in any manner compromised. The Corporation and its officers to follow other presteps and provisions before issuing Section 354 notices and/or such other notices."

In order dated 13 August, 2014, the following guidelines are issued:--

"5. A building would always have a shelf-life. By way of proper maintenance and repairs, that shelf-life can be extended for a few years. There would however always be a point where repairs are not feasible and the building is required to be pulled down and reconstructed/re-developed. Majority of the old tenanted buildings in Mumbai have outlived their lives, whether cessed or noncessed. Mumbai, which is said to be the financial capital of the country and come to be known as a world city, can ill-afford a situation where such old buildings remain in a state of disrepair and collapse, which unfortunately has become a common phenomenon each year, come monsoon. This not only consumes human lives, but also sends a wrong signal world over.

In the circumstances, we are of the view that it is time that the State Government steps in. It is expected of the State Government to take appropriate measures and set a mechanism in place and/or consider bringing out an appropriate legislation/policy, if necessary, to salvage the situation and address the apprehensions and concerns of the tenants/occupants (pf such dilapidated and unsafe buildings) or for that matter the landlords/owners (who are often subjected to criminal prosecution) and all concerned and to prevent loss of human lives. Passing orders by Court of forcible eviction of tenants/occupants of dilapidated and unsafe C1 category buildings (so as to prevent loss of human lives) and consequent demolition of such buildings and/or providing some conditions in IOD as regards commencement of construction by landlords/developers (so as to protect the interest of the tenants/occupants) in terms of our order dated 23.06.2014, is no solution. It is only a transient measure. Such situations can hardly be left in a state of flux. It needs to be ensured that redevelopment of such dilapidated and unsafe buildings, whether cessed or noncessed, takes place at the earliest and the tenants/occupants are put back in possession of the newly constructed building within a stipulated time frame and the landlords too get their due."

Therefore, if it is the Corporation''s obligation to redevelop and take control of such dilapidated buildings and/or markets, then there is no reason for the Corporation not to take action based upon the existing policy at the earliest. All are concerned with the development of the markets which is essential part of the society. Most of the markets means huge crowds and movement of people of all sort and age. The requisite facilities and safe buildings/markets, if, is need of time, the policy decision to develop the markets only after the revised policy so submitted, in our view, is unacceptable submission and specifically when the existing policy nowhere gives this restriction to the Corporation, neither any provisions of the Act. They cannot postpone the development of the city and specifically of the markets merely because they have decided to change the policy.

The Respondent/Corporation, therefore, before passing impugned orders ought to have given opportunity to the Petitioners to justify their individual proposals, based upon the existing policy. There is no case and/or no averments made by the Respondents that the existing policies are not operation and/or need to be overlooked. The suggestions/proposals so made by the Petitioners in writing, in our view, just cannot be thrown away like this.

Strikingly, the proposals so made by the Petitioners was based upon the existing policy. The Respondents, therefore, in our view, ought to have been decided their proposals, after giving hearing. The pendency of revised policy''s decision, even if any, ought not to have been the reason to reject the proposal in such fashion.

The learned senior counsel appearing for the Petitioners has relied upon the two judgments of this Court in Writ Petition No. 973/2011-Byramjee Jeejeebhoy Pvt. Ltd. v. The State of Maharashtra, decided on 6 July, 2011 and Writ Petition No. 1708/2011- Deekay Realtors Pvt. Ltd. And anr Vs. Municipal Corporation of Greater Mumbai and ors, whereby this Court has observed as under:

"In any case, we are clearly of the view that an existing activity duly sanctioned by law cannot be considered to be illegal on the basis of intended or proposed norms which have no existence and have obviously not come into force."

This Court, therefore, has directed the concerned Authorities to consider the claim/case of the respective parties based upon the existing policy referring to the Development Control Regulations.

This High Court has also noted the observations of the Supreme Court in Wadhwa Residency Private Limited and Mr. Manohar M. Chhabria Vs. Municipal Corporation of Greater Mumbai, a statutory Corporation constituted and Others, and not accepted such stand of Respondent/Corporation of postponing the decision for want of approval/sanction to the changed policy/Draft Development Rules. This Court directed to comply with on the basis of existing Regulations. The observations of the Supreme Court are as under:

"having regard to the facts of the case this Court is of the opinion that the contention that the planning authority has to take into consideration the draft Regulations of 1989 and therefore the appellant would not be entitled to additional FSI could not be accepted and is hereby rejected."

This Court has observed as under:--

"31. in view of possible objection of Railway Department about the dereservation of Railway reservation on the plot of land, in case of petitioners the area (5868.31 sq.meters), the development only of the petitioners should not be kept in abeyance for the alleged opinion/sanction."

For to check & control such situation, at every stage, there are provisions under the MMC Act. Therefore, by keeping the changed policy in pipeline, certainly blocking the development of the markets. We have already expressed that the Respondents need to take policy decisions at the earliest. The development cannot be kept stand still, which ultimately results into untoward incidents, collapse of building markets. This in no way read to mean that intended new policy should not be pushed out. It means all endeavour be taken to bring in new policy at earliest, but pending the same, development based upon the existing policy/rules, should not be halted for such long period.

The reasons, therefore, so given by the Respondents to reject the claim though referring to certain financial implication that itself, in our view, should not be the reason to reject the proposal in such fashion. Such matters can be resolved by settling all connected issues. We are inclined to observe that such rejection itself means the unilateral decision, taken by the Respondent/Corporation contrary to their scheme which they have announced and have been acting since long. The whole purpose of guidelines and to develop such markets itself is with and through "the private organization''s participation" and for management and maintain on lease basis, to take such decisions by overlooking the above circumstances, apart from the provisions of law, is unjust, unsustainable and contrary to their own existing guidelines. Therefore, we are inclined to interfere with the decision and order accordingly. However, it is made clear that the Respondent/Corporation to take decision afresh as early as possible, in accordance with law, by giving opportunity to all the concerned. Liberty is also granted to the Petitioners to file additional material and/or representation, if any. The Respondent/Corporation to consider the same as early as possible preferably within sixteen weeks from the receipt of the copy of this order. In the result, the following order:--

ORDER

"(i) Impugned Orders dated 7.09.2011 and 20.08.2011 are quashed and set aside.

(ii) The Respondent/Corporation to consider the proposals submitted by the Petitioners, based upon the existing policy as early as possible and preferably within sixteen weeks in accordance with law, after giving opportunity to the Petitioners.

(iii) Liberty is granted to the Petitioners to file additional affidavit and/or material in support of their case.

(iv) The Writ Petitions are accordingly allowed in the above terms. Rule is made absolute accordingly.

(v) There shall be no order as to costs.

(vi) In view of disposal of Writ Petition No. 1853/2011, Notice of Motion No. 228 of 2014 is also disposed of accordingly."