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Dattatraya Govind Bhatkar and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 822 of 1980
Judge
Reported in1984(2)BomCR92
ActsMaharashtra Housing and Area Development Act, 1976 - Sections 92, 92(2), 92(3) and 92(4); ;Development Control Rules - Rule 51
AppellantDattatraya Govind Bhatkar and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateR.A. Dada and ;R.K. Iyer, Advs.
Respondent AdvocateM.V. Paranjpe and ;R.V. Desai, Advs.
DispositionPetition is allowed
Excerpt:
civil - allotments of rooms - sections 92, 92 (2), 92 (3) and 92 (4) of maharashtra housing and area development act, 1976 and rule 51 of development control rules - allotments of rooms by respondent-board challenged by petitioners - petitioners contended that under provisions of act of 1976 respondent not entitled to use any part of said building for their offices - allocation is totally contrary to provisions of section 92 - respondent not entitled to reserve any area in building in question. - - quite clearly, therefore, there is very little light and ventilation in these rooms which fall on the backside of the building on floors 1 to 5. each of these rooms has a small 'nahani' and each room has a door leading to the passage. clearly therefore the repair fund cannot be used by the.....sujata v. manohar, j.1. the nine petitioners were occupants of tenements in chawl no. 9-b situated at dhotre compound, bhalerao marg, goregaum, bombay 400 004. the said chawl no. 9-b was a ground and first floor structure having in all 12 separate tenements. each of these premises consisted of one room with an area ranging from 220 sq. ft. to 300 sq. ft., according to the petitioners. some of the rooms were smaller in area according to the respondents. the premises on the ground floor also had a verandah admeasuring 12' x 10' (according to the petitioners). each room on the ground floor had a loft admeasuring 10' x 6'. the rooms on the first floor had a loft over the entire length of each room. the petitioners nos. 1, 2 and 3 were occupants of rooms on the first floor of the chawl.....
Judgment:

Sujata V. Manohar, J.

1. The nine petitioners were occupants of tenements in Chawl No. 9-B situated at Dhotre Compound, Bhalerao Marg, Goregaum, Bombay 400 004. The said Chawl No. 9-B was a ground and first floor structure having in all 12 separate tenements. Each of these premises consisted of one room with an area ranging from 220 sq. ft. to 300 sq. ft., according to the petitioners. Some of the rooms were smaller in area according to the respondents. The premises on the ground floor also had a verandah admeasuring 12' x 10' (according to the petitioners). Each room on the ground floor had a loft admeasuring 10' X 6'. The rooms on the first floor had a loft over the entire length of each room. The petitioners Nos. 1, 2 and 3 were occupants of rooms on the first floor of the Chawl Building No. 9-B. The remaining petitioners were in occupation of tenements on the ground floor.

2. On the property in question, there were four structures bearing Nos. 9-A, 9-B, 9-C and 9-D with common taps and common W.Cs. The total area of the tenements in these four buildings was 11,400 sq. ft. As these structures were in a dilapidated condition, the predecessor of the 2nd respondent viz. the Bombay Building Repairs and Reconstruction Board issued a notice dated 26th September, 1975 under section 92(1)(b) of the Bombay Building Repairs and Reconstruction Board Act, 1969 which was then in force, and called upon the petitioners and other occupants to vacate the premises in their occupation in the said Chawls including Chawl No. 9-B immediately. They were also informed that it was proposed to reconstruct the said buildings. Similar notices were also issued to the occupants of Chawl Nos. 9-A, 9-C and 9-D. Pursuant to the said notice the occupants of the said chawl including the petitioners vacated the said premises in their occupation and they were given temporary accommodation in transit camps. Thereafter the respondents and/or their predecessors demolished the said chawls and submitted a proposal for reconstruction of the said buildings.

3. A draft scheme prepared by the Bombay Buildings Repairs and Reconstruction Board was submitted to the Secretary, Government of Maharashtra, Public Works and Housing Department for consideration on 11th February, 1976. Under the scheme, in the place of the four chawls, two tall building were to be constructed. It was stated therein that depending upon the income of the occupants, single rooms and self-contained blocks were proposed to be constructed on the site in question. The new proposals had been framed taking into account some relaxation of the prescribed Floor Space Index, Development Control Rules and building bye-laws. As per the scheme for reconstruction it was possible to accommodate all existing tenants after reconstruction of the buildings and some tenements would be left over as surplus tenements which could be used for housing others. Appendix I to the scheme contained calculations relating to the cost of reconstruction. It also contained a sheet setting out the remarks of the City Engineer raised under No. CE/74/RB of 9-1-1976, and a compliance report in relation to these remarks. Note (ii) at the foot of the 'remarks' column was as follows :

'It is requested that excess tenements available should be spared for housing the tenements of cess buildings affected by the proposed 40'-0' road in the vicinity'.

Against this remark, in the 'Compliance' column it is stated that :

'The Board is already having its liability of rehousing persons dishoused from other buildings, collapsed or where draft scheme is not feasible in the same locality. As such, surplus tenements may not be possible to be spared.'

In Appendix II various relaxations which were sought in respect of Development Control Rules, Floor Space Index, and Building Regulations were set out. These included a relaxation in the requirements relating to keeping of open spaces around the proposed building. Thus the requirements of keeping 20' and 15' wide open spaces and 30' open space between two buildings were relaxed. In their stead, minimum open spaces of 5' 10, and 20' respectively were permitted. As a result of this relaxation two buildings very close to each other have been constructed on the said property. They are piously named as 'Ram' and 'Laxman'. A photograph of these two buildings is annexed as Exhibit 'C' to the affidavit of Dattatraya Govind Bhatkar in rejoinder dated 13th October, 1983. The taller building which consists of a ground and 7 floors is called Ram building while the smaller building which consists of a ground and five floors is called Laxman building. The entire back portion of the Ram building faces Laxman building. The distance between the two buildings is only 20 feet; and light and air to the entire back portion of Ram building are completely blocked by the adjoining Laxman Building. Since the Laxman building, however, has only five floors, the sixth and seventh floors of the Ram building do not suffer from absence of light and air on the back side.

4. The petitioners have been allotted tenements on the back portion of the Ram building on 1st to fifth floors. A plan in respect of this building was submitted by the architect of the respondents on 1-11-1978. A copy of the plan has been produced in Court. In the original scheme which was submitted to the Government in 1976 also plans relating to the said proposed building prepared by the same architect were annexed. The plans of 1976 and 1978 are substantially the same except that in the plan of 1976 the tenements in the front portion of floors 1 to 5 of Ram Building are shown as residential, while in the plan of 1978 they are shown as office premises. From the plans it is clear that the front portion of the building is laid out as residential flats consisting of a bed room, a living room, Kitchen, bath room and W.C. A balcony is provided for each bed room. Apart from two such flats, the front portion of each of the floors 1 to 5 also contains a stair wall and lifts. On each of these floors, this front portion is separated from the back portion by a wall which runs along the back of the flats and around wall. Thus there is no access to the front portion of the building from the back side. On the backside, adjoining this wall, there is a 3'-6' wide passage running across the width of the building. On each floor from floors 1 to 5, there are four rooms each admeasuring 160 sq. feet, adjoining this passage. The access to these four rooms is through the passage. On the opposite wall of each room facing the passage, there is a window which opens of the 20' wide open space between the buildings Ram and Laxman. There is no natural light in this passage because at each end of passage there is one water closet. A window at each end of the passage, therefore, forms a part of the area occupied by the W.C. Adjoining the water closet of room No. 4 there are two small washing places. Each of the rooms adjoining this dark passage has a single small window which directly confronts Laxman building. Such day light as can penetrate into these rooms comes through these windows. Quite clearly, therefore, there is very little light and ventilation in these rooms which fall on the backside of the building on floors 1 to 5. Each of these rooms has a small 'nahani' and each room has a door leading to the passage. There are no balconies and no lofts in any of these rooms. Of these rooms, two rooms at each corner of the building could have been provided with an additional window. But even this has not been done. It is the allotment of such rooms that is challenged by the petitioners in the present petition.

5. It is the contention of the respondents that the allotment of these tenements to the petitioners is in compliance with the statutory obligations of the respondents under Maharashtra Housing and Area Development Act, 1976. In answer to the petitioners' claim for allotment to them of tenements in the front portion of floors 1 to 5, the respondents have stated that these flats are to be utilized for the offices of the Maharashtra Housing and Area Development Board. The petitioners have contended that under the provisions of the said Act the respondents are not entitled to use any part of the said building for their offices.

6. Now, under the provisions of section 76(a) of the Maharashtra Housing and Area Development Act, 1976 it is the duty of the Bombay Housing and Area Development Board (the successor of the Bombay Building Repairs & Reconstruction Board) to undertake and carry out structural repairs to buildings, in such order of priority as the Board, having regard to the exigencies of the case and availability of resources, considers necessary, without recovering any expenses thereof from the owners or occupiers of such buildings. Under section 76(b) it is the duty of the Board to provide temporary or alternative accommodation to the occupiers of any such building, when repairs thereto are undertaken, or a building collapses. Under section 76(d) it is the duty of the Board to move the State Government to acquire old and dilapidated buildings which are in the opinion of the Board, beyond repairs and to reconstruct or to get reconstructed new buildings thereon for the purpose of housing as many occupiers of these properties as possible, and for providing alternative accommodation to other affected occupiers. Under section 92 sub-sections (2), (3) and (4) it is provided as follows :---

'92(2) In preparing the plans and estimates of the building to be reconstructed it shall be the duty of the Board to see that all the occupiers in the building proposed to be demolished shall, as far as practicable, be provided in the reconstructed building, accommodation with a floor area equivalent to their floor area in the old building, but in no case exceeding sixty-eight sq. metres for any occupier of residential tenements.

(3) Those dishoused occupiers who cannot be so accommodated in the reconstructed building shall be provided with alternative accommodation in any building maintained by the Authority for such purpose or in any new building constructed by the Authority wherein surplus accommodation is available.

(4) After making provisions for the matters aforesaid, if there is any surplus area in the new building, it may be utilised by the Board for such other purposes as it deems fit, with a view to reducing the incidence of rent on the occupiers of residential tenements, by maximum exploitation of such surplus area for other purposes.'

7. In order to interpret the provisions of section 92 it is also necessary to go back to the preamble to the Act. In the preamble it is stated as follows :--

'... ... ... ... ... ... ... ...AND WHEREAS with a view to integrating the activities of these bodies so as to provide for a more comprehensive and co-ordinated approach to the entire problem of housing, development, and planning and development of certain areas and amenities required for leading a wholesome civic life.........'

Thus the Maharashtra Housing and Are Development Act, 1976 was enacted in order to deal with the problem of housing development, planning and development of certain areas in a balanced manner. The Act deals with residential premises. In fact under section 83 of the said Act exemption is granted to certain buildings and lands from payment of repair cess. These include inter alia buildings exclusively used for non-residential purposes (section 83(1)(i)), buildings exclusively in the occupation of the owner (section 83(1)(i), and residential buildings exclusively occupied on leave and licence basis (section 83(1)(k),) or buildings used partly for one and partly for any other purpose specified in Clauses (i), (j) and (k) provided that no part thereof is occupied or used for any purpose not specified in any of the said clauses. Building exclusively used for non-residential purposes or used partly for one and partly for any other purpose which is exempted under section 83, will not be covered by the provisions of the said Act.

8. Under section 92 sub-section (2) of the Act, a duty is cast on the Board to see that whenever a building requires to be demolished under the provisions of the Act for the purpose of reconstruction, all the occupiers in the building which is proposed to be demolished shall, as far as practicable, be provided in the reconstructed buildings accommodations equivalent to the floor area in the old building but in no case exceeding 68 sq. metres (which comes to about 740 sq. ft.) for any occupier of residential tenement. Under sub-section (3), whenever any surplus accommodation is available in a new building so constructed by the Board after accommodating the occupants of the demolished building, such surplus accommodation must be used for giving alternative accommodation to those dishoused occupiers who cannot be accommodated in their own reconstructed building. In other words, if the area available for occupation in the reconstructed building is inadequate to house all the dishoused occupant of the building which is demolished, then such dishoused occupants to whom accommodation cannot be given in their own reconstructed building can be housed in the surplus accommodation available in another reconstructed building. Under sub-section (4) it is only after making provision for the matters provided in sub-sections (2) and (3) that if there is still any surplus area available in the building, it is open to the Board to utilise it for such other purpose as it deems fit. But here also it is provided that this should be done with a view to reduce the incidence of rent on the occupiers of the residential tenements in the said building. In view of these provisions, it is clear that the Board's duties relate to repairs and reconstruction of residential tenements and providing housing to the affected persons.

9. Under the provisions of section 82 of the said Act tax on lands and buildings known as Bombay Buildings Repairs and Reconstruction Cess is levied by the State Government as provided in that section, which Cess has to be collected by the Bombay Municipal Corporation in the same manner in which property tax is collected under the Bombay Municipal Corporation Act. Under section 85, within a period of 15 days from the date of the recovery of the cess the amount so recovered is required to be paid by the Municipal Commissioner to the State Government. Under section 86, the proceeds of the Cess paid to the State Government is first to be credited tot he Consolidated found of the State and thereafter, in the manner provided in that section, a separate found called the Bombay Building Repairs and Reconstruction Fund (hereinafter referred to as the Repairs Fund) is to be set up by transferring the amount from the Consolidated Fund of the State to this fund as provided in that section. Under sub-section (3) of section 86 the amount in the Repairs Fund shall be placed by the authority at the disposal of the Board for being expended for the purposes provided in 'Chapter VIII of that Act. Section 92 forms a Part of Chapter VIII. Thus reconstruction of buildings for the purposes of the said Act is funded from the Repair Fund set up under section 86 of the Act.

10. Thus, the repair fund which is set up from out of the Repair Cess collected under the provisions of the Act, is put at the disposal of the Board for the purpose of repairing or providing residential accommodation to persons living in dilapidated buildings. The fact that Repair Cess is not collected from non-residential buildings also indicates that such buildings are not covered by the said Act and the Board's activities do not include repairing or providing accommodation for non-residential purposes. The accommodation in any building reconstructed by the Board is meant for housing the occupants of the building which is demolished and in the place of which a new building is required to be put up. A duty is cast on the Board under section 92 of the Act to give, as far as practicable, to those occupants who were in occupation of the tenements in the building which is demolished, a floor area which is equivalent to the floor area occupied by them in their former building. Thereafter, if any surplus accommodation is available in the reconstructed building this accommodation must be used by the Board for giving accommodation to those dishoused occupiers whose houses may have been demolished but who could not be given accommodation in their reconstructed house because sufficient area was not available in the reconstructed building. It is only after these two main purposes are fulfilled that if there is any surplus accommodation, the Board can utilise this surplus accommodation for any other purpose. But even here, the legislature has prescribed that such utilisation for 'any other purpose' has to be done in order to give a belief in the incidence of rent to the occupiers of such a building. Clearly therefore the Repair Fund cannot be used by the Board for the construction of its own offices.

11. According to the respondents some time in the 3rd week of July, 1980 the premises which were used as offices by the Pay & Accounts Office developed cracks. It was therefore, decided by the Government to accommodate the staff of the Pay & Accounts Office at the premises used as offices by the repairs Board. These were premises on the 7th floor of the new administrative building. The Repairs Board was thereupon asked to vacate the 7th floor of the New Administrative Building. Hence a decision was taken by the Repairs Board to locate their office in the building 'Ram' which was then nearing completion. The respondents have contended that it was not their original intention to locate their offices in the Ram building. It was urged by Mr. Paranjpe, learned Counsel for the respondents, across the bar that such occupation of a substantial portion of the Ram building as their own office is going to be only temporary. He was unable to state how temporary this occupation was going to be and whether any plan had been made so far for obtaining permanent office accommodation for the Board. In their affidavit however, the respondents, have contended that the Board is legally entitled to utilise the surplus space available in the said building for its own office purposes until permanent accommodation is available. No particulars are given as to how temporary this occupation is going to be nor is it stated as to where ultimately the permanent office of the Board is going to be located. Hence the so-called 'temporary' nature of the offices to be located in Ram Building is doubtful. Moreover, the contention of the respondents that it was only in 1980, when they were asked to shift their office, that it was decided to utilise Ram building for their office purpose, does not appear to be correct.

12. In the original scheme presented to the Government in 1976, the tenements in the proposed building were all shown as residential. The architect of the respondents had however, prepared a plan for construction of Ram building dated 1st November 1978. In the blue print the entire front portion of floors 1 to 5 excluding the suit tenements is shown as office area. Thus, at any rate, in the year 1978 the respondents were contemplating utilisation of the front portion of the building from floors 1 to 5 as office area. From the correspondence which is annexed to the petition also it can be seen that as far back as September 1979 the petitioners had approached the authorities of the Bombay Housing and Area Development Board protesting against an attempt of the Board to shift its offices in the flats of Ram building. By their letter dated 19th February, 1980 also, addressed to the Vice President, Bombay Metropolitan Region Development Authority, some of the petitioners had objected to the reservation of flats in the said building for shifting the offices of the Board. These letters are much prior to the Pay & Accounts Building developing cracks in July 1980. Actually, the first objection raised by the petitioners is dated 3rd May, 1979. This would indicate that the respondents had decided to use the flats in the Ram building for their own offices at least in the year 1978 or 1979.

13. Under section 92, sub-section (2) there is a statutory duty cast on the Board to provide in the first place equivalent floor area to the occupants of the demolished building. Under sub-section (3) if any surplus space is available thereafter, the Board is under a statutory obligation to use this space for housing those who do not have equivalent accommodation in their own reconstructed building. It is only after both those purposes are satisfied that under sub-section (4), any surplus area which may be available in reconstructed building can be use for any other purpose. One can assume in favour of the Board that utilisation of the accommodation in a reconstructed building for the office of the Board itself is a purpose which is connected with the purpose of the Act and if any surplus space is available in the reconstructed building after the purposes of sub-sections (2) and (3) are fully satisfied, it will be open to the Board to use the said space for its office. There is enough material on record to show that even if the Board carries out its obligations under sub-section (2), its obligations under sub-section (3) are nowhere near fulfilment. In the present case, the Board has not discharged its statutory obligations even under sub-section (2). Enough space is not made available to the petitioners in Ram building because offices of the board are be accommodated there. Such an allocation is totally contrary to the provisions of section 92. The dishoused occupants have the first right to be accommodated as per the provisions of section 92(2). It is also an admitted position that there are a large number of dishoused persons in transit camps who cannot be accommodated in their own buildings which have been demolished and reconstructed, and who are in need of accommodation in other reconstructed building, if surplus space is available. All surplus space available after accommodating the petitioners and other dishoused former occupants, must be utilised for accommodating other dishoused persons as per section 92(3). If at all any surplus space is left thereafter, the provisions of sub-section (4) can be resorted to. The utilization of any part of the building for offices of the Board can fall only under section 92(4). Hence, unless the Board's obligations under sub-sections (2) and (3) of section 92 are fulfilled, the Board cannot use the said premises for its own offices. The Board's obligations under sub-sections (2) and (3) are admittedly not fully discharged so far. The contention therefore, of the petitioners that the Board is not entitled to use any surplus accommodation in Ram building for its own office, appears to be correct. Such utilisation cannot be made until the Board has discharged its statutory obligations under sub-sections (2) and (3).

14. In the present case the architect appointed by the respondents had taken measurements of the original premises occupied by the petitioners and other occupants of the old buildings before these buildings were demolished. A rough sketch of the tenements on the ground floor and the first floor of demolished building No. 9-B, prepared by the architect of the respondents is annexed as a part of Exhibit II (collectively) to the affidavit of Bhaskar Hari Bhate dated 10th July, 1981. This sketch plan shows the measurements taken by the architect in respect of the various tenements in the occupation of the occupants. There are two separate sketches of the ground floor and the 1st floor. From this sketch plan prepared by the architect of the respondents it would appear that the first petitioner was occupying an area of 166.24 sq. ft. on the first floor, the 2nd petitioner was occupying an area 186 sq. ft. on the first floor, the 3rd petitioner was occupying an area 195.50 sq. ft. on the first floor, the 4th petitioner was occupying an area of 286.97 sq. ft. on the ground floor, the 5th petitioner was occupying an area of 193.14 sq.ft. on the ground floor, the 6th petitioner was occupying an area of 193.14 sq. ft. on the ground floor, the 7th petitioner was occupying an area of 180 sq. ft. on the ground floor, the 8th petitioner was occupying an area of 176.14 sq. ft. on the ground floor and the 9th petitioner was occupying on area of 193.14 sq. ft. on the ground floor. From the sketch plan it also appears that there were lofts in the tenements on the 1st floor and on the ground floor. A covered verandah admeasuring 2.95 sq. meters. (which is roughly 9 ft.) in width ran along the length of all the tenements on the ground floor. Since the sketch plan also gives the dimensions of each of the tenements, it can be seen from the sketch that each tenement on the ground floor had a covered verandah in front of each tenement admeasuring approximately 9' x 9' or around 81 sq. ft. The respondents are giving to the petitioner single room tenements admeasuring 160 sq. ft. each. Under section 92, sub-section (2) the respondents are bound to give to the petitioners floor area equivalent to their floor area in the old building. In the present case there is no shortage of accommodation for the purpose of housing all the dishoused occupants. The chawls bearing Nos 9-A, 9-B, 9-C and 9-D which have been demolished, led, as per the measurements of the respondents, a total floor area of 11,400 sq. ft. In the two buildings Ram and Laxman which are reconstructed in their place, the total available floor area is 27,804 sq. ft. Clearly therefore, it is possible for the respondents to give to the dishoused occupants of these chawls a floor area equivalent to their floor area in the old building. Any surplus accommodation left over would be available to the Board and can be utilised by it as per sections 92(3) and thereafter as per section 92(4).

15. According to the respondents, in calculating the floor area in the old buildings, the area of the open verandah on the ground floor or the area of the loft, should not be taken into account. As far as the area of the loft is concerned, there is considerable substance in what the respondent contend because the area of the loft cannot be considered as the floor area of the tenements. Undoubtedly the availability of a loft is a great convenience to people living in small tenements. But for the purposes of section 92 sub-section (2) it is difficult to see how a loft can be considered as a part of the floor area of the tenement. But as far as the verandah is concerned, the contention of the respondents does not appear to be correct. It is true that in a structure which is constructed as a chawl, a passage provided for access to the various tenements in the chawl, can not be considered as forming a part of the floor area of the tenement. But a covered verandah of 81 sq. ft. in front of each single room tenement on the ground floor can hardly be considered as merely passage for giving access to the room. It is a substantial addition to the living space of the occupants of each of the tenements. Under the Development Control Rules of Greater Bombay, for example, the definition of 'carpet area' in Rule 51, sub-rule (xiv) excludes the area of the walls but includes half the area of the of the balcony. Section 92(2) of the Maharashtra Housing and Area Development Act, 1976, is meant for the purpose of providing, as far as possible, an equivalent floor area in the new building to the tenants of buildings which are demolished. In determining this equivalent floor area, it would not be unreasonable to include in a similar manner half the area of such a verandah as a part of the floor area of the tenement. The entire are of 81 sq. ft. in front of each tenement cannot be considered as a passage. It would be reasonable to assume that half this verandah is used for the purposes of passage, while the other half, bearing in mind the size of the verandah, can be considered as a part of the floor area enjoyed by each occupant. If, therefore, additional 40 sq. ft. of area is added to each of the tenements on the ground floor, the petitioners Nos. 4, 5, 6, 7, 8 and 9 can be said to have been occupying in the old tenements as additional 40 sq. ft., of area. Thus the petitioner No. 4 was in occupation of 327 sq. ft. petitioner No. 5 was in occupation 233 sq. ft., petitioner No. 6 was in occupation of 233 sq. ft., petitioner No. 7 was in occupation of 221 sq. ft., petitioner No. 8 was in occupation of 216 sq. ft. and petitioner No. 9 was in occupation of 233 sq. ft. All these petitioners have been offered only 160 sq. ft., in the new building Ram. This area is substantially less than the area in their occupation in the old building even without taking into account these additional 40 sq. ft. Needless to add, if 40 sq. ft. are added, the area which is offered to them now is much less than the area they were occupying in the old tenements. The petitioner's contention therefore that the respondents have not discharged their statutory obligation under section 92 sub section (2) in offering to them tenements of only 160 sq. ft., each, appears to be correct.

16. It is next contended by the petitioners that the tenements offered to them do not have any light or air and are not suitable for being used for housing purposes. From the material on record this contention also appears to be justified. In the first place, as can be seen from the plan itself, these rooms are on the backside of the building adjoining a passage. In the opposite wall of each room there is a window. This window opens out into an open space where light and air are blocked by reason of another five-storied structure which has been constructed 20 feet away from Ram building in relaxation of rules relating to keeping of open spaces. The windows, therefore, in these tenements do not provide much light or air. No light or air enters these rooms through the passage because though there is one window at each end of the passage, this window forms a part of a water closet which is constructed at each end of the passage. The fact that these rooms do not have any light or any ventilation is also borne out by an additional affidavit which was filed in somewhat unusual circumstances by the Deputy Chief Engineer, Bombay Housing and Area Development Board on 17th November, 1983 after the matter had been fully argued. I had given about a day's time to the parties in order to enable them to arrive at an amicable solution of the disputes and to see whether suitable tenements could not be provided to the petitioners in the reconstructed building. While these negotiations were going on it seems that the respondents decided to file an additional affidavit setting out the concessions they are willing to give to the petitioners. Normally the subject matter of negotiations is never, in this manner put before a Court in the form of an affidavit to support the cause of one of the parties before the Court. In order however, that the respondents may not have any grievance, I have permitted them to file this affidavit along with a short affidavit in reply to the petitioners.

17. Even from this affidavit filed on behalf of the respondents it can be seen that there is very little light or ventilation in the existing tenements which are offered to the petitioners. Thus in para 2 of their additional affidavit the respondents have stated that they undertake to carry out certain additions, alterations or improvements 'to make the rooms more habitable' (italic mine). In sub-paragraph (b) of paragraph 2 it is stated that the darkness felt at present is due to colouring scheme which will be improved by providing proper painting to improve lighting conditions'. Further comment is unnecessary. In sub-paragraph (d) also it is stated that 'the locating of the W.C. in passage which is obstructing light and ventilation will be shifted to the location where there is a washing place at present which would allow more light in the passage and also in the rooms'. It is difficult to see how any substantial improvement can be brought about in the tenements offered to the petitioners in view of the nature of the construction work. One can, nevertheless, examine the offer made by the respondents for what it is worth. In the first place, the offer involves total elimination of the only two wash places which are provided to these occupants. The W.Cs. are to be located at their site instead. Secondly, the offer does not take into account the fact that the close proximity of the adjoining building and the manner in which these rooms have been constructed, make it impossible to provide proper ventilation and light to these rooms. A window at each end of the passage adjoining these rooms can hardly improve matters. In these circumstance one has to consider whether the accommodation offered to the petitioners can be considered as 'residential' accommodation having a floor area equivalent to the floor area in the old building. Dark and dingy tenements without proper light or ventilation, and unsuitable for residence cannot be residence cannot be residential tenement or housing accommodation within the meaning of the Act. By offering such tenements to the petitioners, the respondents have not discharged their obligation under section 92(2). The respondents have claimed that the building had been constructed in accordance with the Development Control Rules and after submitting plans for that purpose to the State Government. This however, does not absolve the respondents from the responsibility of providing habitable residential tenements in a reconstructed building.

18. The powers which are granted to the respondents under the provisions of the Maharashtra Housing and Area Development Act of 1976 must be exercised reasonably and they cannot be exercised arbitrarily or for purposes other than those of the Act or in a manner which nullifies the purpose of the Act which is to provide housing and amenities required for leading a wholesome civil life. As set out by the Supreme Court in the case of Maneka Gandhi v. Union of India, reported in : [1978]2SCR621 , fairness and equality of treatment must pervade all actions of any statutory authority. The powers in the present case have not been exercised fairly and reasonably.

19. It was also submitted by Mr. Paranjpe learned Advocate for the respondents, that the Bombay Municipal Corporation ought to have been made a party to the petition because it alone can say whether the tenements which are offered to the petitioners are fit for habitation or not. In the first place, under the provision of the Maharashtra Housing and Are Development Act, 1976, under sections 100 and 101 any relaxation of the provisions of the Bombay Municipal Corporation Act or the Town Planning Act or any bye-laws, regulations, plan, scheme, notification etc. under these Acts is granted by the State Government, under section 101, if any approval, sanction etc. is required of the Municipal Commissioner or any other authority, the necessary permission shall be deemed to have been obtained by the Board if the Board gives a reasonable notice of the proposed work to the Municipal Commissioner or other authority concerned before the work is commenced. On receipt of such notice, the authority concerned may, within a period of 30 days, submit to the State Government a statement in writing of any objections or suggestions. These objections or suggestions are to be considered by the State Government and it is the State Government which is required to pass orders thereon. Thus, in the present case, it is the State Government which is required to give the necessary permission or sanction. As stated earlier, the scheme in question which was in realisation of the Development Control Rules etc. was sanctioned by State Government. It is, therefore, not necessary to make the Municipal Corporation of Greater Bombay a party to the petition. There is no substance in this contention of the respondents.

20. In the circumstances the petition is allowed. The respondents are not entitled to reserve any area in the Ram building for their offices.

21. The respondents are directed to allot to the petitioners residential accommodation bearing a floor are equivalent to the floor are originally occupied by them. The floor area originally occupied by them is as set out in Exhibit III under the column 'area certified by the Board' and annexed to the affidavit of Bhaskar Hari Bhate, dated 10th July, 1983 with an addition of 40 sq. ft. in the case of the petitioners 4 to 9 who occupied ground floor tenements. The respondents are directed to provide this accommodation in the front portion of the building 'Ram' on floors 1 to 5 or on either front or back portion of floor 6 and 7.

22. Rule is made absolute. Accordingly respondents will pay to the petitioners costs of this petition.

23. On the application of the respondents operation of the order is stayed for a period of two weeks from today.


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