- (1.) This petition is by residents of Carmichael Road who claim to be active in preserving the area and surrounding, much less the heritage precinct in the area. It is claimed by the petitioners that they are residents of the area referredi.e. Carmichael Road and are deeply affected by the illegal actions on the part of the respondents which includes the State, Municipal Corporation of Greater Bombay, Maharashtra Housing and Area Development. Amongst other, the prayer moved by the petitioners is the declaration against respondent no. 9 as regards the illegal permissions granted by respondent nos. 1 to 8 & 10 for carrying out the redevelopment in its favour, which are alleged to be violative of Articles 14 & 21 of the Constitution of India. It is also prayed that the declaration be granted that respondent no. 3 has illegally exercised powers. The Municipal Commissioner of Greater Bombay has illegally exercised the powers under Regulation 67 (2) (iii) (b) of the Development Control Regulations (Hereinafter referred to as 'DCR') whereby permission and sanction was granted in favour of respondent no. 9 to carry out construction of building in excess of 24 meters height which is in contravention to Regulation 67 (7) of the DCR. A further direction is prayed that respondent no.3 Municipal Corporation be directed to frame general guidelines in consultation with Heritage Conservation Committee alongwith other ancillary reliefs. It is also claimed that respondent no. 10 MHADA without application of mind has granted NOC.
(2.) The facts necessary for deciding the present PIL are as under: (i) The property which is the subject matter of the present petition claimed to situated in heritage precinct at M. L. Dahanukar Marg standing on Plot no. C.S. 4/733 of Malbar Hill (Hereinafter shall be referred to as 'the said property' for the sake of brevity). It is claimed that respondent no. 9 has sought to redevelop the said property by demolishing the existing structure with height of 69.95 meters. It is claimed that there is collusion between respondent no. 9 i.e. Developer and Authorities respondent nos. 2 to 8 & 10 in obtaining no objection certificate, sanctions, permissions, commencement certificate for redevelopment of the property contrary to the provisions of the Development Control Regulations. According to petitioners, the said property is GradeIII structure situated within the precinct at M. L. Dahanukar Marg. (ii) Petitioners claim that the property was initially owned by Shrimant kumar Khanderao Shivajirao Gaekwar who has created tenancy right in favour of Nityanand Mangesh Wagle & Taru Jethmal Lalvani. The said Maharaj entered into the agreement of sale with Mahindra Corporation, however since same was not materialized, he sold that property in favour of the tenant for a valuable considerations vide Conveyance Deed dated 03/05/1975. A suit by Mahindra Corporation in 1978 for specific performance of agreement was disposed of in terms of the consent terms dated 28/01/2011. In terms of the consent terms dated 28/11/2011, a Decree was drawn up, however, this Court by modified consent Decree, pursuant to modified consent terms dated 15/07/2015 and passed a modified consent Decree. It is further alleged that in spite of Conveyance Deed in favour of Mr. Wagle and Mr. Lalwani, respondents shown them tenants and assigned tenancy rights in favour of Mr. Kashimpuria and Mr. Bhalgat in 2011. (iii) The structure of the said property was then demolished. It is then claimed that one of the activist i.e. the petitioner sought certain information under Right to Information Act, 2005 and the inspection of the file in question was taken in the office of respondent no. 6. It is then claimed that on 13/02/2015, the petitioner approached respondent no. 3 with a written request, raising concern about the alleged illegal development activity started by respondent no. 9. Pursuant to the request of the petitioner, inspection of relevant record was permitted. According to petitioner, upon perusal of the relevant record, they have come across several internal reports, notes, correspondences which lead to the granting permission by respondent nos. 2 to 8 in favour of respondent no. 9 for carrying out the development activity of construction of building. It is claimed that the height of the building which is permitted by respondent nos. 2 to 8, in excess of 24 meters is contrary to the restrictions imposed by provisions of 67 (2) (III) (b) of DCR. It is claimed that on 20/04/2012, respondent no. 2 sanctioned and issued revised development plan.
(3.) According to Shri. Dwarkadas, the learned senior counsel for the petitioner, before consent Decree was passed on 28/01/2011, on 21/01/2011, purported Deed of Assignment of tenancy came to be executed by erstwhile tenants Mr. Nityanand Wagle and Mr. Lalwani assigning their tenancy rights in favour of one Mr. Kashimpuria and Mr. Bhalgat. He then submits that not a single rent receipt is produced on record evidencing the creation of tenancy in favour of Mr. Wagle & Mr. Lalwani but for two tenancy receipts for the period prior to 2011 viz 01/12/1974 and 01/04/1975 issued by erstwhile owner Mr. Gaekwar. According to him, a complete unnatural transaction was entered into at the behest of respondent no. 9 who with a premeditated intention assigned the tenancies based on the terms which are best suited to his convenience so as to redevelop property under DCR 33 (7). Both these tenants Mr. Wagle and Mr. Lalwani sold their rights in favour of respondent no. 9 and by virtue of same, respondent no. 9 by taking undue advantage under Regulation 33(7) has illegally obtained permission to develop the property. He would urge that DCR 33 (7) is applicable to reconstruction/redevelopment to be undertaken by the Cooperative Housing Societies of tenants or Cooperative Housing Societies of Landlords and/or of occupiers of cessed building which falls under category 'A' in the Island city. He submits that the prerequisite for enjoying benefit under DCR 33 (7) can be summarised as : (a) That it should a Cooperative Housing Society. (b) The redevelopment should be in relation to cessed building. (c) Such property should attract the provisions of MHADA Act, 1976.;