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2014 DIGILAW 1570 (BOM)

Manohar N. Rajput v. State of Maharashtra

2014-07-18

A.K.MENON, S.J.VAZIFDAR

body2014
JUDGMENT (Per S.J. Vazifdar, J.) 1. Rule. Rule is made returnable and heard finally. 2. The interpretation of paragraph 12 of a Government decision dated 16.08.2010 falls for consideration in this writ petition. The interpretation in turn relates to the question of the area that a person is entitled to in a scheme for redevelopment under DCR 33(7), where the user is residential – cum – non-residential. 3(A). DCR 33(7) assists in the interpretation of paragraph 12 of the Government decision. DCR 33(7) was amended by a notification dated 21.05.2011. The schedule to the notification contains the sanctioned modification to DCR 33(7). Clause 2 of the sanctioned modification reads as under :- “Each occupant shall be rehabilitated and given the carpet area occupied by him for residential purpose in the old building subject to minimum fixed carpet area of 27.88 sq. mt. (300 sq. ft.) and maximum carpet area upto 70 sq.mt. (753 sq. ft.) as provided in the MHADA Act, 1976. In case of non-residential occupier the area to be given in the reconstructed building will be equivalent to the area occupied in the old building. Provided that if carpet area for residential purpose exceeds 70.00 sq.mt. (753 sq.ft.) the cost of construction shall be paid by tenant/occupant to the developer. The cost of construction shall be as per Ready Reckoner rate of that year. However, the carpet area exceeding 70.00 sq.mt. (753 sq.ft.) shall be considered for rehab FSI but shall not be considered for incentive FSI.” (B). The parties have obtained an official translation of paragraph 12 of the said Government decision dated 16.08.2010. The translation reads as under :- (12) Occupancies under the joint residential and non-residential use :- If a tenant/resident is using his tenement for mixed use of residential as well as for nonresidential use and if he is in the possession of sufficient documents to show that such use has been made prior to the year 1996, then such tenant/resident should be declared eligible for residential tenement of the minimum carpet area as well as for the commercial use to the extent of the area which was in his non-residential use, however, such nonresidential use should not be more than the carpet area of 50 sq. ft. ft. If the total area of non-residential and residential use of the resident/tenant in the cessed building is more than the minimum carpet area for the residential use, then such tenant/resident should be allowed to suggest an option to decide the use of his tenement for residential/non-residential (use). However, while accepting (exercising) such option, if non-residential use is proposed, then a decision to that effect should be taken after verifying (checking) the documents in respect of the area for that use.” (emphasis supplied) 4. It is the interpretation of the first sentence of paragraph 12 that falls for consideration in this writ petition. The petitioner contends that where the premises are used for residential as well as nonresidential purposes, the occupant is entitled to a residential tenement of minimum carpet area viz. 300 sq. ft. and an additional area for commercial use to the extent of the area which was in his non-residential use subject to a maximum of 50 sq. ft. The respondents on the other hand, contended that in such cases the occupants/eligible persons are entitled to a maximum of 300 sq.ft. which would include the maximum of 50 sq. ft. for non-residential use. 5. We are entirely in agreement with Mr.Dhakephalkar, the learned senior counsel appearing on behalf of the petitioners. A plain reading of paragraph 12, establishes that a tenant/resident using his tenement for residential as well as for non-residential use is entitled firstly to a minimum 300 sq. ft. on account of the residential user. He is also entitled to an additional area in respect of the commercial user but limited to 50 sq. ft. Mr.Dhakephalkar's submission is supported by the sanctioned modification to DCR 33(7) of 21.05.2011. The petitioners' contention is further fortified by the use of the words “as well as”. The respondents' contention would render the words “as well as” otiose. 6. A tenant/resident is entitled, in any event to a minimum of 300 sq. ft. for residential purposes irrespective of the area of the original premises that was in his occupation. If the authorities intend by paragraph 12 to limit the area to 300 sq. ft., it would have been sufficient to merely state that where there is a mixed user of the premises, the tenant/resident would be entitled to a minimum of 300 sq. ft. If the authorities intend by paragraph 12 to limit the area to 300 sq. ft., it would have been sufficient to merely state that where there is a mixed user of the premises, the tenant/resident would be entitled to a minimum of 300 sq. ft. The first sentence of paragraph 12 would have been drafted entirely differently and to this effect only. Paragraph 12 does not stipulate that in such cases a person is entitled to a tenement for residential cum commercial user of 300 sq. ft. of which a maximum of 50 sq. ft may be but to commercial use. 7. In the circumstances, the impugned communication dated 18.10.2012 suggesting that the commercial use of maximum 50 sq. ft. would be included in the over all-limit of 300 sq. ft. is unsustainable in view of what we have said earlier. The contention that paragraph 12 does not contain such a provision about non-residential premises upto 50 sq. ft. is not well founded. The impugned communication is therefore, liable to be set-aside. 8. In the circumstances, the writ petition is disposed of by the following order :- i). The impugned communication dated 18.10.2012 is quashed and set aside. It is declared that in paragraph 12 of the Government decision dated 16.08.2010, the area on account of the commercial user of a maximum 50 sq. ft. is in addition to and not a part of the area that the tenant/resident is entitled to on account of the residential user. ii). The Bombay Municipal Corporation shall therefore, decide the petitioner's application afresh in accordance with this judgment. They are directed to do so within eight weeks from today. This is to enable the respondents to challenge this judgment, if they so desire. There shall be no order as to costs.