High Power Committe Petition
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Transcript of High Power Committe Petition
BEFORE THE HIGH POWER COMMITTEE MUMBAI
APPEAL NO. OF 2011
NEW HAJI KASAM CHAWL
REHVASHI SANGH & OTHERS … APPELLANT
VERSUS
NISH DEVELOPERS PVT. LTD … RESPONDENT
S Y N O P S I S
Sr. # DATE EVENT
1. The Appellant No. 1 is a trust registered under
Bombay Public Trust Act and other Appellants are its
members. Appellants and the other occupants/tenants
are residents of chawls known as New Haji Kasam
Chawl situate at Curry road, Lalbaug, Mumbai-
400012. The Chawls are over 100 years old and
presently in a very dilapidated condition.
2. The Respondent is landlords and developers had
initially undertaken the development work under
Regulation 33(7) and later on changed to Regulation
33(9)
3. 17.4.2007 Respondent and Appellant No. 1 entered into
Redevelopment Agreements whereby Respondent
agreed to give 225+75 sq. ft carpet area flats to the
residents of chawl nos. 59, 60, 60A by construction
ground + 7 storey building and for the other occupants
of other chawls flats of 425 sq. ft in ground + 17
storey buildings. As provided in clause 17 of both the
said agreements, it was agreed that if before starting
construction further area is made available due to
change in Government policy the benefits will be
given to the members of the occupants/tenants.
4. One of the IOD condition as that the agreements with
the existing tenants along with the plans would be
submitted before CC for plinth level. Further consent
letters from existing tenants for proposed
addition/alterations in their tenements will be
submitted before the CC.
5. The Respondent has not entered into agreements
with all the occupants. Consent of all occupants was
not obtained before changing the plans from
Regulation 33(7) to 33(9). Furthermore after change
in Government Policy under cluster development, the
Respondent is now entitled to enhanced FSI of 4 than
FSI of 2.5 as per earlier policy. However, the
Respondent has not given any benefit to the
occupants/tenants. The Plans were surreptitiously
amended and CC up to 23 floors were got sanctioned
without first submitting individual agreements and
consents of individual occupants, thus depriving the
occupants/tenants any opportunity to bargain benefits
after changed policy as agreed under Redevelopment
Agreements. The authorities had insisted the
Respondent to comply with above conditions of CC
which were required to be completed before CC for
plinth level, however, surprisingly the Respondent has
succeeded in obtaining CC up to 23 floors and has
completed rehab building surreptitiously. The plans
from original ground + 7 storey and ground + 18
storey building are surreptitiously changed without
consensus of occupants/tenants and contrary to the
terms of the aforesaid two Redevelopment
agreements.
6. 28/11/2010 The Appellants by their Advocate addressed various
letters to concerned authorities apprising them of the
above illegalities and breaches of terms of
Redevelopment agreements, but nothing was done
nor are Appellants allowed any opportunity to address
their greviences.
7. Under the conditions of redevelopment the
Respondent is required to carry out repairs to the
existing chawls as they are in dilapidated condition.
8. 24/02/2011 In the night intervening 24th and 25th February 2011
the slab of the roof of Appellant No. 6 residing at
Room No. 64, building No. 60A herein fell down.
Fortunately enough no casualty was caused to the
inmates.
9. The said Appellant therefore through their Advocates
M/s V. R. Tripathi & Associates caused a letter dated
28th February 2011 addressed to the various
authorities urging them to call upon the Respondent
to carry out urgent structural repairs to the said chawl
to avoid such mishaps in future. Photographs of the
said ceiling were also forwarded to each of the
authorities named therein. However, the said
authorities again turned deaf ears to the requests of
the Appellants and willfully neglected to do perform
their statutory duties enshrined upon them for reasons
best known to them.
10. The Appellants were therefore constrained to file Writ
Petition before this Hon’ble Court under Article 226 of
the Constitution of India, being Writ Petition No. 1174
of 2011 urging this Honourable Court to issue Writ of
Certiorari or such order and direction against the
concerned authorities namely MCGM, MBRRB,
MHADA (the Respondents No. 1 to 3 therein)
directing them to issue stop work notice prohibiting
the Respondent herein (Respondent No. 4 therein)
from carrying out any further construction work, for
issuing Writ of Mandamus directing the Respondent
herein to forthwith carry out repairs to the existing
chawls and for other consequential reliefs as more
particularly set out therein.
11. 29/08/2011 The said Writ Petition came up for hearing before the
Division Bench of Their Lordships Mr. Justice P. B.
Majmudar and Mr. Justice R.M.Savant. By order
dated 29th August 2011 their Lordships were pleased
to observe that in view of the Full Bench Judgment of
this Honourable Court, the Appellants are required to
approach the High Power Committee and therefore
this Hon’ble court could not go into these aspects in a
Writ Petition under Article 226 of the Constitution of
India. Their Lordships were however pleased to
observe that ‘since MHADA has already granted NOC
to Respondent No. 4 (i.e. the Respondent herein), it is
the obligation of the Respondent No. 4 to maintain the
existing premises where the Appellants are presently
staying, Respondent No. 4 shall therefore maintain
the said building in proper condition and, if required,
Respondent No. 4 may carry out appropriate repairs
so that the occupants may not suffer hardship. Such
repairs may be carried out immediately so that
building may not collapse and no untoward incident
happens and the same may be completed
expeditiously and in any case within a period of two
months from today…..’. The said writ Petition came to
be disposed of on the aforesaid terms.
12. 06/10/2011 When the Respondent did show any signs of their
intention to carry out urgent repairs to the dilapidated
chawls, the Appellants through their Advocate M/s V.
R. Tripathi & Associates addressed a letter dated 6th
October 2011 interalia calling upon the Respondent to
carry out repairs to the said buildings and also warned
them that if they fail to do so the Appellants would be
constrained to file Contempt proceedings against
them. However, the said letter was ignored by the
Respondent in utter disregard to the directions given
by this Hon’ble Court.
13. 21/11/2011 The Respondent by their letter dated 21st November
2011 addressed to the Secretary of the Appellant No.
1 informed the Appellant that as per MCGM Hydraulic
Engineer approval they were commencing the work of
laying 6” dia Ductile pipe and sought co-operation of
the tenants/occupants of the said chawls. The
Appellants states that the work of laying ductile pipes
involved excavation of land in close proximity to and
also beneath the structures of the Appellants and
other tenants/occupants of the said property. The
structures of the Appellants and other
tenants/occupants of the said property are over 100
years old and are presently in dilapidated condition
and cannot bear the vibrations caused by the
excavation process for proposed work of the
Respondent. In most certainty, the work proposed to
be carried out by the respondent without carrying out
structural repairs to the structures of the Appellants
and other tenants/occupants may cause further
deterioration structures and it is likely that the
structures may collapse causes serious threats to the
lives and limbs of the tenants/occupants of the said
chawls.
14. 22/11/2011 The Appellants therefore by their Advocate’s letter
dated 22nd November 2011 called upon the
respondent to first comply with the orders and
directions passed by Division Bench of this
Honourable Court and that unless the order is
properly complied with the Respondent cannot carry
out any further development work on the said
premises to prevent any untoward incidents.
15. 28/11/2011 Appellants states that on 28th November 2011, the
Senior Inspector of Police of Kalachowkie Police
station issued a notice purportedly under Section 149
of the Criminal Procedure Code, informing the
Appellants that the Respondent have made an
application to their Police station to provide police
protection for carrying out their proposed work at the
said properties and that the Appellants by the said
Notice were called upon to maintain peace and order
and allow the Respondent to carry out their work
peacefully or else the Secretary of the Appellant No. 1
would be held responsible for any untoward incidents.
Thus the Respondent sought to intimidate and
pressurize the Appellants to succumb to their whims
in their zeal to high handedly carry out the proposed
work on the said property.
16. The Appellants were therefore constrained to file
Contempt Petition before the Honourable High Court
of Judicature at Mumbai for willful contempt and
disobedience of the order dated 29/8/2011 by the
Respondent being Contempt Petition No. _______ of
2011.
BEFORE THE HIGH POWER COMMITTEE
APPEAL NO. OF 2011
NEW HAJI KASAM CHAWL
REHVASHI SANGH & OTHERS … APPELLANT
VERSUS
NISH DEVELOPERS PVT. LTD … RESPONDENT
I N D E X
SR. # DATE PARTICULARS PAGE #
1. SYNOPSIS
2. PETITION
3. VAKALATNAMA
4. MEMORANDUM OF ADDRESS
5. LIST OF DOCUMENTS
6. 28/11/2010 EXHIBIT ‘A’
Letter by Mr. Tripathi to Authorities
7. 01/01/2011 EXHIBIT ‘B’
Letter by Mr. Tripathi to Authorities
SR. # DATE PARTICULARS PAGE #
8. 28/02/2011 EXHIBIT ‘C’
Letter by Mr. Tripathi to Authorities
9. 29/08/2011 EXHIBIT ‘D’
Order of this Hon’ble Court
10. 06/10/2011 EXHIBIT ‘E’
Letter by Mr. Tripathi to Respondent
11. 21/11/2011 EXHIBIT ‘F’
Letter by Respondent to Appellants
12. 22/11/2011 EXHIBIT ‘G’
Letter by Adv. Raju Korde to
Respondents
13. EXHIBIT ‘H’
Power of Attorney
14. EXHIBIT ‘I’
Authorisation letter
BEFORE THE HIGH POWER COMMITTEE
APPEAL NO. OF 2011
IN THE MATTER OF
Development of the property
bearing C. S No. 71(P), 72, 77,
213/74 and 214/74 at Islam Mill
Compound, Curry Road, Lalbaug,
Mumbai-400012.
And
IN THE MATTER OF
Development Control Regulation
1999.
And
IN THE MATTER OF
Maharashtra Housing and Area
Development Act, 1971.
1. NEW HAJI KASAM CHAWL RAHIVASHI )
SANGH, a Registered Trust constituted under the )
Provisions of the Bombay Public Trust Act, 1950 )
having office at Haji Kasam Chawl, Dr. Babasaheb)
Ambedkar Road, Lalbaug, Mumbai-400012. )
2. SAKHARAM ARJUN GHADIGAONKAR )
An Adult, inhabitant of Mumbai age about 80 years)
Occ: Service )
3. VIKAS BALKRISHNA HIRLEKAR )
An adult, inhabitant of Mumbai, age about 48 )
Years, Occ Service )
4. MOHAN DHONDU SAWANT )
An adult inhabitant of Mumbai, aged about 41 )
Years, Occ. Service )
5. VASUDEO PUNDLIK SAWANT )
An adult inhabitant of Mumbai, aged about 62 )
Years Occ. Service )
6. RAJESH SHASHIKANT HIRLEKAR )
An adult, inhabitant of Mumbai, aged about 44 )
Years, Occ. Service )
7. RAMESH GANPAT PADVE )
An adult inhabitant of Mumbai, aged about 52 yrs. )
Occ. Service )
8. MRS. SUKHI PUKHRAJ RATHOD )
An adult inhabitant of Mumbai, aged about 60 yrs. )
Occ. Service )
9. PUKHRAJ INDAJI RATHOD )
An adult inhabitant of Mumbai, aged about 52 yrs. )
Occ. Service )
All 2 to 9 having their address at New Haji Kasam )
Chawl, Dr. Ambedkar Road, Lalbaug, Mumbai-12. ) … APPELLANTS
VERSUS
1. THE MUNICIPAL CORPORATION OF )
GREATER MUMBAI, a statutory body having )
office at Mahapalika Marg, Mahapalika Bhavan,)
Mumbai-400001
2. THE MUMBAI BUILDING REPAIR AND )
RECONSTRUCTION BOARD, a statutory body)
having office at Griha Nirman Bhavan, Bandra (E)
Mumbai-400051. )
3. MAHARASHTRA HOUSING AREA )
DEVELOPMENT AUTHORITY, a statutory body)
Constituted under Maharashtra Housing and )
Area Development Act, 1971 having its office )
At Griha Nirman Bhavan, Bandra (E), )
Mumbai-400051. )
4. M/S NISH DEVELOPERS PVT. LTD. )
A private limited Company registered under )
Provisions of Indian Companies Act 1956 )
having office at 101-B, Mittal Court, 10th Floor, )
Nariman Point, Mumbai-400032. ) RESPONDENTS
To,
THE HONOURABLE PRESIDENT
AND OTHER MEMBERS OF THE
HIGH POWER COMMITTEE
HUMBLE PETITION OF THE APPELLANTS ABOVE NAMED
MOST RESPECTFULLY SHEWETH AS UNDER:
1. The Appellant No. 1 is a trust registered under the Bombay Public
Trust Act, 1950 having its registered office at New Haji Kasam
Chawl, Curry Road, Lalbaug, Mumbai-400012. The Appellants 2 to
9 are residents of said New Haji Kasam Chawl and are members of
the Appellant No. 1.
2. The Respondent No. 1 is the Municipal Corporation of Greater
Mumbai, a statutory body constituted under the Mumbai Municipal
Corporation Act 1888 having its office as given in the title.
3. The Respondent No. 2 is a Mumbai Building Repair and
Reconstruction Board, is a statutory body constituted under the
provisions of Maharashtra Housing and Area Development Act
1971 having its office at Griha Nirman Bhavan, Bandra (East),
Mumbai-400051.
4. The Respondent No. 3 is Maharashtra Housing and Area
Development Authority, a statutory body constituted under
Maharashtra Housing and area Development Act, 1971 having its
office at Griha Nirman Bhavan, Bandra (E), Mumbai-400051.
5. The Respondent No. 4 is a private limited company incorporated
under the provisions of the Indian Companies Act, 1956 having its
registered office as given in the title. The Respondent No. 4 claims
to be owner and developer in respect of the property situate at
Islam Mill Compound, Curry Road, Lalbaug, Mumbai-400012. The
Respondent No. 4 has under taken the development of the said
property, where the present Appellants and other resident members
of the Appellant No. 1 resides, under D. C Regulations, 1999.
6. Brief facts of and pertaining to and culminating in the present
petition are as under:
(i) Appellants states that the property known as Haji
Kasam Chawls consists of chawls Nos. 59, 60 and 60
A and Chawls No. 364 A, 364 B, 368 A & B and the
Chawl Nos. 1 and 2 which are situate on the plots of
land forming part of C.S No. 71 (P), 72, 77, 213/74
and 214/74 at Islam Mill Compound, Curry Road,
Lalbaug, Mumbai-400012.
(ii) There are about 172 residential premises including 9
shops occupied by various persons on tenancy basis
in chawl Nos. 59, 60 and 60A. About 60 occupants
out of occupants/tenants of said chawl no. 59, 60 and
60A aggrieved by the illegalities committed by the
Respondent No. 4 have decided to support the
present Petitioners. The list of occupants/tenants of
said chawl nos. 59, 60 and 60A supporting the
present appeal is annexed hereto as Exhibit ‘A’. The
Respondent No. 4 has not entered into Agreement for
alternate premises with the occupants/tenants who
are supporting the present appeal and mentioned in
Exhibit ‘A’ hereto.
(iii) Appellants state that in chawl nos. 364 A, 364B, 368
A & B and Chawl Nos. 1 and 2 there are about 386
premises out of which 22 are shops and remaining
are residential premises. About 216
occupants/tenants out of 386 units have supported
the present appeal. The Respondent No. 4 has not
executed agreements for alternate premises with the
occupants/tenants supporting the present appeal as
per list annexed hereto as Exhibit ‘B’
(iv) Pursuant to various meetings and negotiations held
between the Appellant No. 1 trust and its members on
one hand and the Respondent No. 4 herein, a final
meeting was called on 19th April 2001 wherein various
representations were made by the Respondent. An
agreement was arrived at between the Appellant No.
1 and Respondent No. 4 based on representations
and assurances given by Respondent No. 4 that they
shall develop the said property under Regulation
33(7) and/or 33(9) and each of the occupants/tenants
would be provided alternate premises in lieu of their
existing premises. Respondent No. 4 further assured
that for the occupants of the chawl Nos, 59, 60 and
60A, the Respondent would construct rehab building
of ground plus 7 floor and for the other chawls the
construction would be of ground plus 18 floors. The
Respondent No. 4 further agreed that the residents of
chawl nos. 59, 60 and 60A would be given alternate
premises of 225 + 75 sq. ft. carpet area in the 7 storey
building, while the occupants of other chawls would
be given premises of 425 sq. ft. carpet area. For
future maintenance of said buildings corpus fund of
Rs. 25,000/- for each of the occupants was also
agreed to be provided by the Respondent No. 4.
(v) The most important and core term of agreement
arrived at between the parties was that if prior to
sanction of plan and before the construction of rehab
building started, in future if any beneficial declaration
and enforcement about area is made by Government
Policy or by MHADA then such benefits shall be given
to the tenants/occupants. Based on the aforesaid
representations and assurances given by the
Respondent No. 4 to the occupants/tenants of the
said chawls, the Appellant No. 1 and Respondent No.
4 entered into and executed Redevelopment
Agreement dated 19th April 2007 in respect of chawls
Nos. 59, 60 & 60 A. Likewise Redevelopment
Agreement dated 5th June 2007 was executed
between the Appellant No. 1 and Respondent No. 4 in
respect of tenants/occupants/legal possessors/users
of Building Nos. (6A) 368/386, (10/18) 346/364, 364A,
364B, 368A and 368B. The covenant regarding future
benefits in terms of FSI/area is incorporated in clause
17 respectively of both the aforesaid Redevelopment
Agreement. Annexed hereto and marked as Exhibit
‘C’ is a copy of Redevelopment Agreement dated 19 th
April 2007 in respect of chawl Nos. 59, 60 & 60A.
Annexed hereto and marked as Exhibit ‘D’ is a copy
of said Redevelopment Agreement dated 5th June
2007 in respect of Building Nos. (6A) 368/386, (10/18)
346/364, 364A, 364B, 368A and 368B.
(vi) Appellant states that recently the occupants of the
said chawls noticed that the rehab buildings which
were to be constructed of ground plus 7 floors and
ground plus 18 floors were not under construction. On
enquiry it was revealed to the occupants that
originally the proposal was approved for the
construction of five rehab buildings. However, without
obtaining consent of the occupants for material
deviation from the representations and assurances
given by the Respondent No. 4 at the time of entering
into aforesaid Redevelopment agreements dated
19/4/2007 and 5/6/2007, the Respondent No. 4 got
the proposal amended whereby the redevelopment
under Regulation 33(7) was dropped and construction
under Regulation 33(9) was got approved in view of
the changed policy of the Government to grant FSI of
4 in respect of clustered development. Furthermore,
the Respondent No. 4 surreptitiously got the plans
modified proposing single rehab building of 23 floors
with seven wings ‘A’ to ‘G’ instead of proposal to
construct ground floor plus 7 and ground plus 17
storey buildings as agreed and recorded in both the
aforesaid Redevelopment Agreements dated
19/4/2007 and 5/6/2007. All this was done while the
Respondent No. 4 has not submitted consent of the
occupants/tenants of the said chawls and without
entering into agreements for alternate premises as is
mandatory and was insisted upon by authorities as
condition precedent to CC up to plinth level as more
particularly narrated hereinafter.
(vii) Since, despite repeated requests the Respondent No.
4 failed to furnish any information regarding the
nature of construction carried on by them, the
Appellant No. 1 made application to Municipal
Corporation of Greater Mumbai under Right to
Information Act and obtained copies of LOI, IOD, CC
and other relevant documents, it became manifest
from the said documents that one of the condition of
granting permission to construct rehab building was
that without consent of occupants/tenants there would
not be any change in the original sanctioned plans.
However, without consent of the occupants the
Respondent got the redevelopment plan changed
from Regulation 33(7) to Regulation 33(9). The other
condition imposed and as insisted by authorities from
time to time as apparent from the compliance report
of conditions of LOI and IOD on record of the
Corporation was that the Respondent No. 4 would
submit to the Municipal Corporation registered
agreement with each of the occupant. However, till
date the Respondent No. 4 have failed to enter into
registered agreements with the occupants and are
therefore not submitted to the Municipal Corporation.
Here it is pertinent that the Compliance reports of
MCGM dated 10th March 2010, 13th July 2010 and 20th
July 2010 categorically mentions that the conditions of
issuing IOD (i) that the agreement with the existing
tenant along with plans and (ii) That the consent letter
from the existing tenants for the proposed additions
and alterations in their tenements to be submitted to
MCGM and to be complied by the Respondent No. 4
before commencement of work up to plinth level are
shown as not complied with and that the said
conditions are till date not complied with by the
Respondent No. 4. Annexed hereto and marked as
Exhibits ‘E’, ‘F’ and ‘G’ respectively are copies of said
compliance report of Respondent No. ____ dated
10th March 2010, 13th July 2010 and 20th July 2010.
Annexed hereto and marked as Exhibit ‘H’ collectively
are copies of LOI, CC and other documents received
by the Appellants under Right to Information Act.
Surprisingly enough however, the MCGM has from
time to time sanctioned and issued Commencement
certificates from plinth level up to 23 floors in respect
of rehab building within short span of less than 5
months without insisting compliance of both the
aforesaid conditions. Thus the Respondent No. 4
managed to get the sanctioned plans amended from
time to time, particularly from development under
Regulation 33(7) to 33(9) without concurrence or
obtaining consent of the occupants. This has
seriously prejudiced the rights of the
occupants/tenants in as much as the Respondent No.
4 has blatantly breached the core covenants of the
aforesaid Redevelopment agreements dated
19/4/2007 and 5/62007. The Respondent No. 4 has in
blatant breach of the covenants of the said
Redevelopment agreements and contrary to the
representations and assurances given by them to the
Appellant No. 1 Trust and occupants/tenants
members of the Appellant No. 1 has surreptitiously
usurped the benefits of the change in government
policy under regulation 33 (9) rather than giving
benefits of the same to the occupants/tenants.
(viii) The Respondent No. 4, although, as developer is
statutorily bound to form and register the Society of
Occupants under Maharashtra Co-operative Societies
Act 1960 and the rules framed therein, till date has
not formed and registered the society or taken any
initiative on that behalf and have illegally carried out
development work.
(ix) When these along with various other breaches and
illegalities committed by the Respondent No. 4 came
to light, the Appellant No. 1 sought to seek their
redressal by appraising the aforesaid facts to all the
concerned authorities i.e. Maharashtra Housing and
Area Development Authority, Assistant Municipal
Commissioner and Executive Engineer of Building
Proposal Department E ward of MCGM by their
Advocate’s letter dated 28th November 2010. The
Appellants also brought to the notice of the said
authorities the existing condition of their structures
which are over 100 years old are presently in a
dilapidated condition and urged them to require the
Respondent to carry out urgent repairs to the existing
chawls. By the said letter Appellants also brought to
the notice of the Respondents 1 to 3 that without
obtaining consent from the occupants/tenants and
without passing on benefits of changed policy as
agreed, the Respondent No. 4 was constructing
building of ground plus 23 storey. The Appellants also
brought to the knowledge of the said authorities that
that the Respondent No. 4 has executed and
therefore not submitted registered agreements with all
occupants to the concerned authorities. Even consent
of the occupants have not been obtained by the
Respondent No. 4 while making application to amend
the plans. The Appellants demanded additional
benefit pursuant to increase in FSI due to change in
policy granted to the Respondent No. 4. Appellants
demanded 400 sq. feet carpet area in new building for
each of the occupants in chawls nos. 59, 60 and 60A
and 500 sq. feet carpet area for occupants/tenants of
the remaining buildings. Annexed hereto and marked
as Exhibit ‘I’ is a copy of said letter dated 28 th
November 2010 addressed by Advocate M/S. V. R.
Tripathi & Associates.
(x) The Appellants state that despite the aforesaid facts
being brought to the notice of the concerned
authorities, when the said letter addressed by the
Advocate for the Appellants failed to elicit any
response whatsoever, neither were the Appellants
given any audience to their grievances by giving them
an opportunity of personal hearing nor were any steps
taken by them to inquire in the matter, the Appellants
were constrained to cause to be addressed another
letter dated 1st January 2011 to the said authorities
once again reiterating their grievances. Annexed
hereto and marked as Exhibit ‘J’ is a copy of said
letter dated 1/1/2011.
(xi) The Appellants state that Respondents 1 to 3 being
statutory bodies were required to and are saddled
with statutory duty to investigate on the complaints
regarding illegalities committed by Respondent No. 4,
however despite having knowledge of breaches
committed by the Respondent No. 4 the said
authorities have not taken any effective steps against
the Respondent No. 4 to protect the interest of the
occupants/tenants are now left in lurch.
(xii) Appellants states that in the night intervening 24th and
25th February 2011 the slab of the roof of Appellant
No. 6 residing at Room No. 64, building No. 60A
herein fell down. Fortunately enough no casualty was
caused to the inmates. The said Appellant therefore
through their Advocates M/s V. R. Tripathi &
Associates caused a letter dated 28th February 2011
addressed to the various authorities urging them to
call upon the Respondent No. 4 to carry out urgent
structural repairs to the said chawl to avoid such
mishaps in future. Photographs of the said ceiling
were also forwarded to each of the authorities named
therein. However, the said authorities again turned
deaf ears to the requests of the Appellants and
willfully neglected to do perform their statutory duties
enshrined upon them for reasons best known to them.
Annexed hereto and marked as Exhibit ‘K’ is a copy of
said letter dated 28/2/11. Appellants crave liberty to
refer to and rely upon photographs of the structures
on the said property.
(xiii) When despite repeated request to the said authorities
who are saddled with statutory obligation to monitor
the redevelopment process as per the scheme of the
policy, the grievances of the Appellants were given no
consideration, the Appellants were therefore
constrained to file Writ Petition before the Hon’ble
High Court of Judicature at Bombay under Article 226
of the Constitution of India, being Writ Petition No.
1174 of 2011 urging Honourable High Court to issue
Writ of Certiorari or such order and direction against
the concerned authorities namely i.e. the
Respondents No. 1 to 3 herein, directing them to
issue stop work notice prohibiting the Respondent No.
4 from carrying out any further construction work, for
issuing Writ of Mandamus directing the Respondent
No. 4 herein to forthwith carry out repairs to the
existing chawls and for other consequential reliefs as
more particularly set out therein. Appellants crave
liberty to refer to and rely upon papers and
proceedings of the said Writ Petition No. 1174 of
2011.
(xiv) Appellants state that the said Writ Petition came up
for hearing before the Division Bench of Their
Lordships Mr. Justice P. B. Majmudar and Mr. Justice
R.M.Savant on 29th August 2011. By order dated 29th
August 2011 their Lordships were pleased to observe
that in view of the Full Bench Judgment of this
Honourable Court, the Appellants are required to
approach this Honourable Forum and therefore
Hon’ble High Court could not go into these aspects in
a Writ Petition under Article 226 of the Constitution of
India. Their Lordships were however pleased to
observe that ‘since MHADA has already granted NOC
to Respondent No. 4 (i.e. the Respondent herein), it is
the obligation of the Respondent No. 4 to maintain the
existing premises where the Appellants are presently
staying, Respondent No. 4 shall therefore maintain
the said building in proper condition and, if required,
Respondent No. 4 may carry out appropriate repairs
so that the occupants may not suffer hardship. Such
repairs may be carried out immediately so that
building may not collapse and no untoward incident
happens and the same may be completed
expeditiously and in any case within a period of two
months from today…..’. The said writ Petition came to
be disposed of on the aforesaid terms. Annexed
hereto and marked as Exhibit ‘L’ is a copy of the said
order dated 29th August 2011 passed by this Hon’ble
Court
(xv) Appellants state that thus as per the direction of the
Division Bench of the Honourable High Court, the
Respondent No. 4 herein was required to carry out
necessary repairs to the existing chawls and in any
case complete the same expeditiously within a period
of two months from the date of the said order i.e. on
or before 29th October, 2011.
(xvi) Appellants state that when the Respondent No. 4 did
show any signs of their intention to carry out urgent
repairs to the dilapidated chawls, the Appellants
through their Advocate M/s V. R. Tripathi &
Associates addressed a letter dated 6th October 2011
interalia calling upon the said Respondent to carry out
repairs to the said buildings and also warned them
that if they fail to do so the Appellants would be
constrained to file Contempt proceedings against
them. However, the said letter was ignored by the
Respondent No. 4 in utter disregard to the directions
given by Hon’ble High Court. Annexed hereto and
marked as Exhibit ‘M’ is a copy of the said letter dated
6/10/2011 addressed by Mr. V. r. Tripathi to the
Respondent No. 4.
(xvii) Appellants state that the Respondent No. 4 has
however failed and neglected to take any steps
whatsoever for ensuring the safety of the
occupants/tenants members of the Appellant No. 1
and/or repairing the existing structures to ensure that
the said buildings that are over 100 years old and are
in dilapidated condition may not collapse and no
untoward incident happens. The Respondent No. 4
has in utter disregards to the rule of law and order
passed by the Division Bench of this Honourable
Court, willfully neglected and avoided to comply with
the direction of this Honourable Court and is thus
guilty of deliberate and willful contempt of the order
dated 29th August 2011 passed by the Division Bench
of the Hon’ble High Court.
(xviii) Furthermore, the Respondent No. 4 by their letter
dated 21st November 2011 addressed to the
Secretary of the Appellant No. 1 informed the
Appellant that as per MCGM Hydraulic Engineer
approval they were commencing the work of laying 6”
dia Ductile pipe and sought co-operation of the
tenants/occupants of the said chawls. Annexed hereto
and marked as Exhibit ‘N’ is a copy of said letter
dated 21/11/2011 addressed by Respondent No. 4 to
the Appellants.
(xix) The Appellants states that the work of laying ductile
pipes involved excavation of land in close proximity to
and also beneath the structures of the Appellants and
other tenants/occupants of the said property. The
structures of the Appellants and other
tenants/occupants of the said property are over 100
years old and are presently in dilapidated condition
and cannot bear the vibrations caused by the
excavation process for proposed work of the
Respondent. In most certainty, the work proposed to
be carried out by the Respondent No. 4 without first
carrying out structural repairs to the structures of the
Appellants and other tenants/occupants may cause
further deterioration structures and it is likely that the
structures may collapse posing serious threats to the
lives and limbs of the tenants/occupants of the said
chawls. The Appellants therefore by their Advocate’s
letter dated 22nd November 2011 called upon the
respondent to first comply with the orders and
directions passed by Division Bench of the
Honourable High Court and that unless the order is
properly complied with the Respondent No. 4 cannot
carry out any further development work on the said
premises to prevent any untoward incidents. Annexed
hereto and marked as Exhibit ‘O’ is a copy of said
letter dated 22nd November 2011 addressed by
Advocate Mr. Raju Korde to the Respondent No. 4.
(xx) Appellants states that on 28th November 2011, the
Senior Inspector of Police of Kalachowkie Police
station issued a notice purportedly under Section 149
of the Criminal Procedure Code, informing the
Appellants that the Respondent No. 4 have made an
application to their Police station to provide police
protection for carrying out their proposed work at the
said properties and that the Appellants by the said
Notice were called upon to maintain peace and order
and allow the Respondent No. 4 to carry out their
work peacefully or else the Secretary of the Appellant
No. 1 would be held responsible for any untoward
incidents. Thus the Respondent No. 4 sought to
intimidate and pressurize the Appellants to succumb
to their whims in their zeal to high handedly carry out
the proposed work on the said property. Annexed
hereto and marked as Exhibit ‘P’ is a copy of the said
Notice dated 28th November 2011 issued by Senior
Police Inspector of Kalachowkie Police Station.
(xxi) The Appellants were therefore constrained to reply to
the said notice purportedly issued by the Senior
Police Inspector of Kalachowkie Police Station by
their Advocate Mr. Rajendra Korde’s letter dated
___________. Annexed hereto and marked as Exhibit
‘Q’ is a copy of said letter dated___________
addressed by Advocate Mr. Rajendra D Korde to the
Sr. P.I of Kalachowkie Police Station.
(xxii) The Appellants have also filed Contempt Petition No.
____ of 2011 before the Honourable High Court of
Judicature at Bombay against the Respondent No. 4
for their willful disobedience and contempt of order
dated 29th August 2011 passed by the Division Bench
of the Hon’ble High court. Appellants craves liberty to
refer to and rely upon papers and proceedings of the
said Contempt Petition No. _____ of 2011.
7. In the premises aforesaid the Appellant have approached this
Hon’ble Committee on following amongst other grounds:
(a) The Respondent No. 4 had agreed to construct 5
buildings for rehabilitation of the occupants and tenants.
It was agreed that the occupants of chawls nos. 59, 60
and 60A would be provided 225+75 sq. feet carpet area
in building of ground floor plus 7 storeys;
(b) The Respondent No. 4 had agreed to provide flats of
carpet area of 400 sq. feet in ground plus 17 stories
building, to the occupants of the other chawls/buildings in
the said property;
(c) That clause 17 of the Agreements dated 19.4.2007 and
5.6.2007 unambiguously provides that before the
construction starts if further FSI is made available due to
change in policy of Government the benefits thereof
would be passed on to the occupants of the properties
under redevelopment;
(d) The government declared FSI of 4 for cluster
development under Regulation 33(9) which came in force
before Respondent No. 4 started construction/
development work;
(e) The Respondent No. 4 after availing additional FSI under
changed policy surreptitiously got the plans modified
without obtaining requisite consent of the
occupants/tenants and without entering into registered
agreement within them;
(f) The IOD condition provides that in case of any change in
plans of the redevelopment consent of occupants/tenants
would be required. The Respondent No. 4 has not
complied with said condition as is evident from the
compliance reports of Respondent No. ____ (Exhibits ‘E’,
‘F’ and ‘G’ hereto);
(g) The Respondent No. 4 has changed the plans for rehab
building and constructed 23 story building consisting of
five wings without taking consensus of the
occupants/tenants as is mandatory in law and policy;
(h) The Respondents 1 to 3 have failed to perform their
statutory duties and have failed to give any consideration
to the grievances of the Appellants and further failed to
take any steps against the Respondent No. 4;
(i) The Respondent No. 4 has failed and neglected to
maintain the existing structures which are over 100 years
old and in dilapidated conditions even after the incident of
_______ when the ceiling fell from one of the structure
and this negligence is continuing despite specific
direction given by the Division Bench of the Honourable
High Court by order dated 29th August 2011 passed in
Writ Petition No. 1174 of 2011;
8. In the premises aforesaid the Appellants submits that the
Honourable Forum may be pleased to call for all the records
pertaining to the development of the said property and after
perusing and verifying the same pass appropriate orders and
directions be passed against the Respondents. It is further just
proper, equitable and in the interest of justice that this Hon’ble
Forum may be pleased to hold that the alteration and modifications
to the original sanctioned plans without first obtaining consent from
the occupants/tenants and without entering into agreement with
them being void and illegal are non-est. This Honourable Forum
may be further pleased to declare that the occupants/tenants of the
said properties are entitled to additional area than originally agreed
pursuant to change in government policy and as agreed upon in
clause 17 of the Redevelopment Agreements dated 19.4.2007 and
5.6.2007. It is further just proper and equitable that this Honourable
Forum may hold that the occupants are entitled to additional corpus
fund due to increase in benefits now available to the Respondent
No. 4 in view of the changed policy.
9. Appellants state that the Respondent No. 4 is bent upon continuing
further redevelopment work of laying ductile pipes by excavating
land in close proximity and also beneath the existing structures
which are over 100 years old and in very vulnerable condition.
The Respondent No. 4 has also resorted to adopt arm twisting and
high handed tactics by seeking interference of Police agency with a
view to pressurize and intimidate the Appellants and other
tenants/occupants of the said chawls. Pending the hearing and final
disposal of the present Appeal, unless restrained by an order and
injunction of this Hon’ble Forum, the Respondent No. 4 may
continue with their surreptitious plans causing life threatening
situation to Appellants an other tenants/occupants of the said
chawls. It is also just proper and equitable that pending the hearing
and final disposal of the present appeal the Respondent No. 4 their
servants and agents be restrained by order and direction of this
Hon’ble Forum from carrying out further redevelopment work at the
said properties and ad-interim reliefs in the above terms be granted
to the Appellant. Grave prejudice and irreparable harm and loss
which cannot be compensated in monetary terms will occasion to
the Appellants and other tenants/occupants of the said chawls if the
releifs as prayed for are not granted. On the contrary no prejudice
or harm will occasion to the Respondents if the orders as prayed for
are granted. The balance of convenience is therefore in favor of
granting the reliefs as prayed.
10.Mr. Prakash Sakharam Ghadigaonkar, who is well and sufficiently
conversant with the facts of the matter is authorized to declare and
verify the Appeal on behalf of the Appellants as Constituted Power
of Attorney holder of Appellant Nos. 2 to 9, a copy whereof is
annexed hereto as Exhibit ‘R’. The Secretary of the Appellant No. 1
Trust has authorized said Mr. Prakash to file the present Petition.
Annexed hereto and marked as Exhibit ‘S’ is a copy of said
Authorization letter.
11.The Appellants craves liberty to refer to and rely upon documents a
list whereof is annexed hereto.
The Appellants therefore pray:
a) That this Honourable Forum may be pleased to
call for the records pertaining to the development
of the properties known as New haji Kasam
Chawls situate at property bearing C.S No. 71(p),
72, 77, 213/74 and 214/74 at Islam Mill
Compound, Curry Road, Lalbaug, Mumbai –
400012 and after perusing the same be pleased to
hold:
(i) that the Respondent No. 4 has failed to
comply with the terms and conditions of the
Redevelopment Agreements dated 17th April 2007
and 5th June 2007 at Exhibits ‘C’ and ‘D’ hereto by
not providing additional benefits to the occupants
after the development was approved under
Regulation 33(9) by offering them additional carpet
area and increasing corpus fund for future
maintenance of the rehab building;
(ii) That the Respondent No. 4 has committed
breaches of terms of the said Redevelopment
Agreements dated 19.4.2007 and 5.6.2007 by
carrying out additions/modifications to the
sanctioned plans without first obtaining consent of
the occupants/tenants and by getting plans
approved for 23 storey building for rehabilitation
contrary to ground plus 7 storey and ground plus
17 storey buildings as originally agreed;
(iii) that despite conditions contained in IOD
and CC that Respondent No. 4 have failed and
neglected to enter into registered agreement with
the occupants/tenants to provide them alternate
premises and to submit copies thereof to the
Respondent No. _____ in breach of conditions of
IOD and CC;
b) That mandatory orders be issued directing
Respondent No. 4, their servants and agents to
stop work and to refrain themselves from carrying
out further work of construction and development
of said properties known as New haji Kasam
Chawls situate at property bearing C.S No. 71(p),
72, 77, 213/74 and 214/74 at Islam Mill
Compound, Curry Road, Lalbaug, Mumbai –
400012 without first redressing and correcting the
above breaches mentioned in prayer a(i) to a(iii);
c) This Honourable Forum may be pleased to direct
the Respondent No. 4 to provide to the
occupants/tenants additional area in proportion to
the benefits accrued to them by virtue of increase
in FSI due to changed policy of Government
granting them FSI of 4 instead of earlier 2.5 when
the said redevelopment agreements were entered
into as agreed and confirmed by them in clause 17
of the Redevelopment Agreements dated _______
and ____________ and to renegotiate and enter
into registered agreement with the
occupants/tenants as provided in law and to
submit copies thereof to the Respondent
No._____;
d) That pending the hearing and final disposal of
Appeal the Respondent may be directed to carry
out repairing work at the existing structures
occupied by the Appellants and other
occupants/tenants of the New haji Kasam Chawls
situate at property bearing C.S No. 71(p), 72, 77,
213/74 and 214/74 at Islam Mill Compound, Curry
Road, Lalbaug, Mumbai400012 and to implement
the order dated 29th August 2011 passed by this
Hon’ble Court in Writ Petition No. 1174 of 2011;
e) That pending the hearing and final disposal of
above Appeal this Hon’ble Forum may be pleased
to restrain the Respondent No. 4, their servants
and agents from carrying out any work of
construction/development endangering the
existing structures of the chawls known as Haji
Kasam Chawls situate at property bearing C.S
Nos. 71(p), 72, 77, 213/74 and 214/74 at Islam Mill
compound, Curry Road, Lalbaug, Mumbai-400012
or part thereof;
f) For ad-interim reliefs in terms of prayers (d) & (e)
above may be granted;
g) Cost of the present Appeal be provided for;
h) Any other and further relief as this Hon’ble Forum
may in the facts and circumstances of the case
may deem fit and proper may be granted;
Bombay
Dated this day of November 2011.
Advocate for the Appellants
Appellants
VERIFICATION
I, Prakash Sakharam Ghadigaonkar, the duly Constituted Attorney of the
Appellants herein do hereby solemnly declare that whatever is stated in
the foregoing paragraphs ____________ to ____________is true to my
own knowledge and what is stated in remaining paragraphs ________to
________ are legal submissions based on information and belief and I
believe the same to be true.
Solemnly declared at Mumbai )
This day of November 2011. )
Advocate for the Appellants
I am not a member of Advocates Welfare fund. Stamp of Rs. 2/- is
therefore not affixed.
BEFORE THE HIGH POWER COMMITTEE AT MUMBAI
APPEAL NO. OF 2011
IN THE MATTER OF
Development of the property
bearing C. S No. 71(P), 72, 77,
213/74 and 214/74 at Islam Mill
Compound, Curry Road, Lalbaug,
Mumbai-400012.
And
IN THE MATTER OF
Development Control Regulation
1999.
And
IN THE MATTER OF
Maharashtra Housing and Area
Development Act, 1971.
1. NEW HAJI KASAM CHAWL RAHIVASHI )
SANGH, a Registered Trust constituted under the )
Provisions of the Bombay Public Trust Act, 1950 )
having office at Haji Kasam Chawl, Dr. Babasaheb)
Ambedkar Road, Lalbaug, Mumbai-400012. )
2. SAKHARAM ARJUN GHADIGAONKAR )
An Adult, inhabitant of Mumbai age about 80 years)
Occ: Service )
3. VIKAS BALKRISHNA HIRLEKAR )
An adult, inhabitant of Mumbai, age about 48 )
Years, Occ Service )
4. MOHAN DHONDU SAWANT )
An adult inhabitant of Mumbai, aged about 41 )
Years, Occ. Service )
5. VASUDEO PUNDLIK SAWANT )
An adult inhabitant of Mumbai, aged about 62 )
Years Occ. Service )
6. RAJESH SHASHIKANT HIRLEKAR )
An adult, inhabitant of Mumbai, aged about 44 )
Years, Occ. Service )
7. RAMESH GANPAT PADVE )
An adult inhabitant of Mumbai, aged about 52 yrs. )
Occ. Service )
8. MRS. SUKHI PUKHRAJ RATHOD )
An adult inhabitant of Mumbai, aged about 60 yrs. )
Occ. Service )
9. PUKHRAJ INDAJI RATHOD )
An adult inhabitant of Mumbai, aged about 52 yrs. )
Occ. Service )
All 2 to 9 having their address at New Haji Kasam )
Chawl, Dr. Ambedkar Road, Lalbaug, Mumbai-12. ) … APPELLANTS
VERSUS
1. THE MUNICIPAL CORPORATION OF )
GREATER MUMBAI, a statutory body having )
office at Mahapalika Marg, Mahapalika Bhavan,)
Mumbai-400001
2. THE MUMBAI BUILDING REPAIR AND )
RECONSTRUCTION BOARD, a statutory body)
having office at Griha Nirman Bhavan, Bandra (E)
Mumbai-400051. )
3. MAHARASHTRA HOUSING AREA )
DEVELOPMENT AUTHORITY, a statutory body)
Constituted under Maharashtra Housing and )
Area Development Act, 1971 having its office )
At Griha Nirman Bhavan, Bandra (E), )
Mumbai-400051. )
4. M/S NISH DEVELOPERS PVT. LTD. )
A private limited Company registered under )
Provisions of Indian Companies Act 1956 )
having office at 101-B, Mittal Court, 10th Floor, )
Nariman Point, Mumbai-400032. ) RESPONDENTS
We (1) NEW HAJI KASAM CHAWL RAHIVASHI SANGH (2) SAKHARAM
ARJUN GHADIGOANKAR (3) VIKAS BALKRISHNA HIRLEKAR (4)
MOHAN DHONDU SAWANT (5) VASUDEO PUNDALIK SAWANT (6)
RAJESH SHASHIJANT HIRLEKAR (7) RAMESH GANPAT PADVE (8)
MRS. SUKHI PUKHRAJ RATHOD (9) PUKHRAJ INDAJI RATHOD, the
Appellants above named to hereby appoint MR. RAJENDRA D KORDE,
Advocate High Court, having his address at 5/3, New Municipal Chawl,
Laxmibaug, Sion (West), Mumbai-400022 to act appear and plead on our
behalf in the above matter.
In witness whereof, we have hereunto set and subscribed our respective
hands to this writing, on this day of November 2011.
Accepted:
Advocate High Court
Office:
MR. RAJENDRA D KORDE
5/3 New Municipal Chawl,
Laxmibaug, Sion (West),
Mumbai-400022.
(m) ____________________________
Email address: [email protected]
BEFORE THE HIGH POWER COMMITTEE AT MUMBAI
APPEAL NO. OF 2011
NEW HAJI KASAM CHAWL
REHVASHI SANGH & OTHERS … APPELLANT
VERSUS
NISH DEVELOPERS PVT. LTD … RESPONDENT
MEMORANDUM OF ADDRESS:
NEW HAJI KASAM CHAWL RAHIVASHI SANGH & OTHERS
C/O
MR. RAJENDRA D KORDE
Advocate for the Appellants
5/3 New Municipal Chawl,
Laxmibaug, Sion (West),
Mumbai-400022.
Advocates for the Appellants
BEFORE THE HIGH POWER COMMITTEE AT MUMBAI
APPEAL NO. OF 2011
NEW HAJI KASAM CHAWL
REHVASHI SANGH & OTHERS … APPELLANT
VERSUS
NISH DEVELOPERS PVT. LTD … RESPONDENT
LIST OF DOCUMENTS REFERRED TO AND RELIED UPON BY THE
APPELLANTS:
1. Documents obtained by Appellants under Right to Information Act;
2. Photographs of structures;
3. Papers and proceedings of Writ Petition No. 1174 of 2011;
4. Papers and proceedings in Contempt Petition No. _____ of 2011
5. Exhibits to the Appeal;
6. Correspondences prior to the Appeal.
Advocate for the Appellants
BEFORE THE HIGH POWER COMMITTEE AT MUMBAI
APPEAL NO. OF 2011
NEW HAJI KASAM CHAWL
REHVASHI SANGH & OTHERS … APPELLANT
VERSUS
NISH DEVELOPERS PVT. LTD … RESPONDENT
I, Prakash Sakharam Ghadigaonkar, the Authorised signatory of Appellant
No. 1 and Constitued Attorney of Appellants 2 to 9 above named residing
at 60/55, New Haji Kasam Chawl, 3rd floor, Mahadev Palav Marg, Curry
Road, Mumbai-400012, do hereby solemnly affirm and state as under:
1. I state that the Appellants have filed the above Appeal challenging
the various illegalities committed by the Respondent No. 4 herein in
redevelopment of properties known as Haji Kasam Chawls situate
at property bearing C.S Nos. 71(p), 72, 77, 213/74 and 214/74 at
Islam Mill compound, Curry Road, Lalbaug, Mumbai-400012 on
grounds more particularly narrated in the above Appeal. I reiterate,
adhere to and confirm all the statements and averments contained
in the above Appeal and for the sake of brevity crave liberty to treat
the contents thereof as having reincorporated herein verbatim.
2. I state that I am well and sufficiently conversant with the facts of the
case and able to depose to the same.
3. I state that whatever is stated in the foregoing paragraphs
________ to _________ of the above Appeal is true to my own
knowledge and belief and whatever is stated in the remaining
paragraphs _____ to _______ of the foregoing Appeal are legal
submissions and information and I believe the same to be true.
4. I pray that the above Appeal be made absolute with costs.
Solemnly affirmed at Bombay )
This day of November 2011. )
Advocate for the Appellants Before me
BEFORE THE HIGH POWER COMMITTEE AT MUMBAI
INTERIM APPLICATION NO. of 2011
IN
APPEAL NO. OF 2011
IN THE MATTER OF
Development of the property
bearing C. S No. 71(P), 72, 77,
213/74 and 214/74 at Islam Mill
Compound, Curry Road, Lalbaug,
Mumbai-400012.
And
IN THE MATTER OF
Development Control Regulation
1999.
And
IN THE MATTER OF
Maharashtra Housing and Area
Development Act, 1971.
1. NEW HAJI KASAM CHAWL RAHIVASHI )
SANGH, a Registered Trust constituted under the )
Provisions of the Bombay Public Trust Act, 1950 )
having office at Haji Kasam Chawl, Dr. Babasaheb)
Ambedkar Road, Lalbaug, Mumbai-400012. )
2. SAKHARAM ARJUN GHADIGAONKAR )
An Adult, inhabitant of Mumbai age about 80 years)
Occ: Service )
3. VIKAS BALKRISHNA HIRLEKAR )
An adult, inhabitant of Mumbai, age about 48 )
Years, Occ Service )
4. MOHAN DHONDU SAWANT )
An adult inhabitant of Mumbai, aged about 41 )
Years, Occ. Service )
5. VASUDEO PUNDLIK SAWANT )
An adult inhabitant of Mumbai, aged about 62 )
Years Occ. Service )
6. RAJESH SHASHIKANT HIRLEKAR )
An adult, inhabitant of Mumbai, aged about 44 )
Years, Occ. Service )
7. RAMESH GANPAT PADVE )
An adult inhabitant of Mumbai, aged about 52 yrs. )
Occ. Service )
8. MRS. SUKHI PUKHRAJ RATHOD )
An adult inhabitant of Mumbai, aged about 60 yrs. )
Occ. Service )
9. PUKHRAJ INDAJI RATHOD )
An adult inhabitant of Mumbai, aged about 52 yrs. )
Occ. Service )
All 2 to 9 having their address at New Haji Kasam )
Chawl, Dr. Ambedkar Road, Lalbaug, Mumbai-12. ) … APPELLANTS
VERSUS
1. THE MUNICIPAL CORPORATION OF )
GREATER MUMBAI, a statutory body having )
office at Mahapalika Marg, Mahapalika Bhavan,)
Mumbai-400001
2. THE MUMBAI BUILDING REPAIR AND )
RECONSTRUCTION BOARD, a statutory body)
having office at Griha Nirman Bhavan, Bandra (E)
Mumbai-400051. )
3. MAHARASHTRA HOUSING AREA )
DEVELOPMENT AUTHORITY, a statutory body)
Constituted under Maharashtra Housing and )
Area Development Act, 1971 having its office )
At Griha Nirman Bhavan, Bandra (E), )
Mumbai-400051. )
4. M/S NISH DEVELOPERS PVT. LTD. )
A private limited Company registered under )
Provisions of Indian Companies Act 1956 )
having office at 101-B, Mittal Court, 10th Floor, )
Nariman Point, Mumbai-400032. ) RESPONDENTS
INTERIM APPLICATION ON
BEHALF OF THE APPELLANTS
ABOVE NAMED
MOST RESPECTFULLY SUBMITTED AS UNDER:
I, Prakash Sakharam Ghadigaonkar, the Authorised signatory of Appellant
No. 1 and Constitued Attorney of Appellants 2 to 9 above named residing
at 60/55, New Haji Kasam Chawl, 3rd floor, Mahadev Palav Marg, Curry
Road, Mumbai-400012, do hereby solemnly affirm and state as under:
1. I state that the Appellants have filed the above Appeal against the
Respondents above named for challenging various irregularities
committed by them in redevelopment of property known as Haji
Kasam Chawls situate at property bearing C.S Nos. 71(p), 72, 77,
213/74 and 214/74 at Islam Mill compound, Curry Road, Lalbaug,
Mumbai-400012 on grounds more particularly narrated in the above
Appeal. I reiterate, adhere to and confirm all the statements and
averments contained in the above Appeal and for the sake of
brevity crave liberty to treat the contents thereof as having
reincorporated herein verbatim.
2. I state that as more particularly set out in the Appeal despite the
repeated request to the various authorities who are saddled with
statutory obligation to monitor the redevelopment process as per
the scheme of the policy, the grievances of the Appellants were
given no consideration, the Appellants were therefore constrained
to file Writ Petition before this Hon’ble Court under Article 226 of
the Constitution of India, being Writ Petition No. 1174 of 2011
urging this Honourable Court to issue Writ of Certiorari or such
order and direction against the concerned authorities namely
MCGM, MBRRB, MHADA, the Respondents No. 1 to 3 herein,
directing them to issue stop work notice prohibiting the Respondent
No. 4 from carrying out any further construction work, for issuing
Writ of Mandamus directing the Respondent herein to forthwith
carry out repairs to the existing chawls and for other consequential
reliefs as more particularly set out therein. Appellants crave liberty
to refer to and rely upon papers and proceedings of the said Writ
Petition No. 1174 of 2011.
3. I state that the said Writ Petition came up for hearing before the
Division Bench of Their Lordships Mr. Justice P. B. Majmudar and
Mr. Justice R.M.Savant on 29th August 2011. By order dated 29th
August 2011 their Lordships were pleased to observe that in view
of the Full Bench Judgment of this Honourable Court, the
Appellants are required to approach the High Power Committee
and therefore this Hon’ble court could not go into these aspects in a
Writ Petition under Article 226 of the Constitution of India. Their
Lordships were however pleased to observe that ‘since MHADA
has already granted NOC to Respondent No. 4, it is the obligation
of the Respondent No. 4 to maintain the existing premises where
the Appellants are presently staying, Respondent No. 4 shall
therefore maintain the said building in proper condition and, if
required, Respondent No. 4 may carry out appropriate repairs so
that the occupants may not suffer hardship. Such repairs may be
carried out immediately so that building may not collapse and no
untoward incident happens and the same may be completed
expeditiously and in any case within a period of two months from
today…..’. The said writ Petition came to be disposed of on the
aforesaid terms.
4. I state that thus as per the direction of the Division Bench of this
Honourable Court, the Respondent No. 4 herein were required to
carry out necessary repairs to the existing chawls and in any case
complete the same expeditiously within a period of two months
from the date of the said order i.e. on or before 29th October, 2011.
5. I state that when the Respondent No. 4 did show any signs of their
intention to carry out urgent repairs to the dilapidated chawls, the
Appellants through their Advocate M/s V. R. Tripathi & Associates
addressed a letter dated 6th October 2011 interalia calling upon the
Respondent No. 4 to carry out repairs to the said buildings and also
warned them that if they fail to do so the Appellants would be
constrained to file Contempt proceedings against them. However,
the said letter was ignored by the Respondent No. 4 in utter
disregard to the directions given by this Hon’ble Court.
6. Appellants state that the Respondent No. 4 have however failed
and neglected to take any steps whatsoever for ensuring the safety
of the occupants/tenants members of the Appellant No. 1 and/or
repairing the existing structures to ensure that the said buildings
that are over 100 years old and are in dilapidated condition may not
collapse and no untoward incident happens. The Respondent No. 4
has in utter disregards to the rule of law and order passed by the
Division Bench of this Honourable Court, willfully neglected and
avoided to comply with the direction of this Honourable Court and is
thus guilty of deliberate and willful contempt of the order dated 29th
August 2011 passed by the Division Bench of this Hon’ble Court.
The Appellants have filed appropriate proceedings in the Hon’ble
High Court of Judicature of Bombay for said contemptuous acts of
the Respondent No. 4.
7. Furthermore, the Respondent No. 4 by their letter dated 21st
November 2011 addressed to the Secretary of the Appellant No. 1
informed the Appellant that as per MCGM Hydraulic Engineer
approval they were commencing the work of laying 6” dia Ductile
pipe and sought co-operation of the tenants/occupants of the said
chawls.
8. I state that the work of laying ductile pipes involved excavation of
land in close proximity to and also beneath the structures of the
Appellants and other tenants/occupants of the said property. The
structures of the Appellants and other tenants/occupants of the said
property are over 100 years old and are presently in dilapidated
condition and cannot bear the vibrations caused by the excavation
process for proposed work of the Respondent No. 4. In most
certainty, the work proposed to be carried out by the Respondent
No. 4 without carrying out structural repairs to the structures of the
Appellants and other tenants/occupants may cause further
deterioration structures and it is likely that the structures may
collapse causes serious threats to the lives and limbs of the
tenants/occupants of the said chawls. The Appellants therefore by
their Advocate’s letter dated 22nd November 2011 called upon the
Respondent No. 4 to first comply with the orders and directions
passed by Division Bench of this Honourable Court and that unless
the order is properly complied with the Respondent No. 4 cannot
carry out any further development work on the said premises to
prevent any untoward incidents.
9. I state that on 28th November 2011, the Senior Inspector of Police
of Kalachowkie Police station issued a notice purportedly under
Section 149 of the Criminal Procedure Code, informing the
Appellants that the Respondent No.4 have made an application to
their Police station to provide police protection for carrying out their
proposed work at the said properties and that the Appellants by the
said Notice were called upon to maintain peace and order and
allow the Respondent No. 4 to carry out their work peacefully or
else the Secretary of the Appellant No. 1 would be held responsible
for any untoward incidents. Thus the Respondent No. 4 sought to
intimidate and pressurize the Appellants to succumb to their whims
in their zeal to high handedly carry out the proposed work on the
said property. Appellant craves liberty to refer to and rely upon said
Notice dated 28th November 2011 issued by Senior Police Inspector
of Kalachowkie Police Station.
10. In the premises aforesaid the Appellant submits that the
Respondent No. 4 is bent upon continuing with the proposed work
of laying ductile pipes by excavating land in close proximity and
also beneath the existing structures which are over 100 years old
and in very vulnerable condition. The Respondent No. 4 has also
resorted to arm twisting and high handed tactics by seeking
interference of Police agency with a view to pressurize and
intimidate the Appellants and other tenants/occupants of the said
chawls. Pending the hearing and final disposal of the present
Appeal, unless restrained by an mandatory order of this Hon’ble
Forum, the Respondent may continue with their surreptitious plans
and succeed in further flouting order of the Hon’ble High Court
causing life threatening situation to Appellants and other
tenants/occupants of the said chawls. It is also just proper and
equitable that ad-interim reliefs be granted to the Appellant in
above terms. Grave prejudice and irreparable harm and loss which
cannot be compensated in monetary terms will occasion to the
Appellants and other tenants/occupants of the said chawls. On the
contrary no prejudice or harm will occasion to the Respondent No.
4 if the orders as prayed for are granted. The balance of
convenience is therefore in favor of granting the reliefs as prayed.
11.The Appellants therefore prays that:
a) That pending the hearing and final disposal of
Appeal the Respondent No. 4 may be directed to
carry out repairing work at the existing structures
occupied by the Appellants and other
occupants/tenants of the New haji Kasam Chawls
situate at property bearing C.S No. 71(p), 72, 77,
213/74 and 214/74 at Islam Mill Compound, Curry
Road, Lalbaug, Mumbai400012 and to implement
the order dated 29th August 2011 passed by this
Hon’ble Court in Writ Petition No. 1174 of 2011;
b) That pending the hearing and final disposal of
above Appeal this Hon’ble Forum may be pleased
to restrain the Respondent No. 4, their servants
and agents from carrying out any work of
construction/development endangering the
existing structures of the chawls known as Haji
Kasam Chawls situate at property bearing C.S
Nos. 71(p), 72, 77, 213/74 and 214/74 at Islam Mill
compound, Curry Road, Lalbaug, Mumbai-400012
or part thereof;
c) For ad-interim reliefs in terms of prayers (d) & (e)
above may be granted;
d) Cost of the present Application be provided for;
e) Any other and further relief as this Hon’ble Forum
may in the facts and circumstances of the case
may deem fit and proper may be granted;
Bombay
Dated this day of November 2011.
Advocate for the Appellants
Appellants
VERIFICATION
I, Prakash Sakharam Ghadigaonkar, the duly Constituted Attorney of the
Appellants herein do hereby solemnly declare that whatever is stated in
the foregoing paragraphs ____________ to ____________is true to my
own knowledge and what is stated in remaining paragraphs ________to
________ are legal submissions based on information and belief and I
believe the same to be true.
Solemnly declared at Mumbai )
This day of November 2011. )
Advocate for the Appellants.
BEFORE THE HIGH POWER COMMITTEE AT MUMBAI
INTERIM APPLICATION NO. of 2011
IN
APPEAL NO. OF 2011
NEW HAJI KASAM CHAWL
REHVASHI SANGH & OTHERS … APPELLANT
VERSUS
NISH DEVELOPERS PVT. LTD … RESPONDENT
I, Prakash Sakharam Ghadigaonkar, the Authorised signatory of Appellant
No. 1 and Constitued Attorney of Appellants 2 to 9 above named residing
at 60/55, New Haji Kasam Chawl, 3rd floor, Mahadev Palav Marg, Curry
Road, Mumbai-400012, do hereby solemnly affirm and state as under:
1. I state that the Appellants have filed the above Appeal against the
Respondents above named for challenging various irregularities
committed by them in redevelopment of property known as Haji
Kasam Chawls situate at property bearing C.S Nos. 71(p), 72, 77,
213/74 and 214/74 at Islam Mill compound, Curry Road, Lalbaug,
Mumbai-400012 on grounds more particularly narrated in the above
Appeal. I state that in the said Appeal the Appellants have made
above interim application for urgent interim and ad-interim releifs. I
reiterate, adhere to and confirm all the statements and averments
contained in the above Appeal and said Interim application. For the
sake of brevity I crave liberty to treat the contents thereof as having
reincorporated herein verbatim.
2. .I state that whatever is stated in the foregoing interim application is
true to my own knowledge and information which I believe to be
true.
3. I pray that the above interim application be made absolute with
costs.
Solemnly affirmed at Mumbai )
This day of November 2011. )
Advocate for the Appellants Before me
BEFORE THE HIGH POWER
COMMITTEE AT MUMBAI
APPEAL NO. OF 2011
New Haji Kasam Chawl Rehvashi
Sangh & ors .. Appellants
Versus
Nish Developers Pvt. Ltd Respondents
APPEAL
Dated this day of Nov. 2011
RAJENDRA D KORDE
Advocate for the Appellants
5/3, New Municipal Chawl,
Laxmibaugh, Sion (West),
Mumbai-400022
BEFORE THE HIGH POWER
COMMITTEE AT MUMBAI
APPEAL NO. OF 2011
New Haji Kasam Chawl Rehvashi
Sangh & ors .. Appellants
Versus
Nish Developers Pvt. Ltd Respondents
AFFIDAVIT IN SUPPORT OF APPEAL
Dated this day of Nov. 2011
RAJENDRA D KORDE
Advocate for the Appellants
5/3, New Municipal Chawl,
Laxmibaugh, Sion (West),
Mumbai-400022
BEFORE THE HIGH POWER
COMMITTEE AT MUMBAI
APPEAL NO. OF 2011
New Haji Kasam Chawl Rehvashi
Sangh & ors .. Appellants
Versus
Nish Developers Pvt. Ltd Respondents
VAKALATNAMA
Dated this day of Nov. 2011
RAJENDRA D KORDE
Advocate for the Appellants
5/3, New Municipal Chawl,
Laxmibaugh, Sion (West),
Mumbai-400022
BEFORE THE HIGH POWER
COMMITTEE AT MUMBAI
INTERIM APPL. Of 2011
IN
APPEAL NO. OF 2011
New Haji Kasam Chawl Rehvashi
Sangh & ors .. Appellants
Versus
Nish Developers Pvt. Ltd Respondents
INTERIM APPLICATION
Dated this day of Nov. 2011
RAJENDRA D KORDE
Advocate for the Appellants
5/3, New Municipal Chawl,
Laxmibaugh, Sion (West),
Mumbai-400022
BEFORE THE HIGH POWER
COMMITTEE AT MUMBAI
INTERIM APPL. Of 2011
IN
APPEAL NO. OF 2011
New Haji Kasam Chawl Rehvashi
Sangh & ors .. Appellants
Versus
Nish Developers Pvt. Ltd Respondents
AFFIDAVIT IN SUPPORT OF INTERIM
APPLICATION
Dated this day of Nov. 2011
RAJENDRA D KORDE
Advocate for the Appellants
5/3, New Municipal Chawl,
Laxmibaugh, Sion (West),
Mumbai-400022