High Power Committe Petition

98
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.

Transcript of High Power Committe Petition

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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. )

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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 )

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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)

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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

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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:

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(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’

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(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

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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

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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

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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

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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.

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(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

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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

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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

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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

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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 &

Page 28: High Power Committe Petition

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

Page 29: High Power Committe Petition

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

Page 30: High Power Committe Petition

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

Page 31: High Power Committe Petition

‘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;

Page 32: High Power Committe Petition

(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

Page 33: High Power Committe Petition

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

Page 34: High Power Committe Petition

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:

Page 35: High Power Committe Petition

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

Page 36: High Power Committe Petition

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._____;

Page 37: High Power Committe Petition

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

Page 38: High Power Committe Petition

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

Page 39: High Power Committe Petition

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)

Page 40: High Power Committe Petition

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 )

Page 41: High Power Committe Petition

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

Page 42: High Power Committe Petition

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,

Page 43: High Power Committe Petition

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]

Page 44: High Power Committe Petition

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

Page 45: High Power Committe Petition

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

Page 46: High Power Committe Petition

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

Page 47: High Power Committe Petition

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

Page 48: High Power Committe Petition
Page 49: High Power Committe Petition

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 )

Page 50: High Power Committe Petition

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 )

Page 51: High Power Committe Petition

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

Page 52: High Power Committe Petition

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

Page 53: High Power Committe Petition

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.

Page 54: High Power Committe Petition

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

Page 55: High Power Committe Petition

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

Page 56: High Power Committe Petition

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

Page 57: High Power Committe Petition

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

Page 58: High Power Committe Petition

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

Page 59: High Power Committe Petition

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.

Page 60: High Power Committe Petition

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

Page 61: High Power Committe Petition

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

Page 62: High Power Committe Petition

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

Page 63: High Power Committe Petition

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

Page 64: High Power Committe Petition

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

Page 65: High Power Committe Petition

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

Page 66: High Power Committe Petition

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