Mumbai: Bombay high court relief for housing society residents, quashes state’s condition for redevelopme – Times of India

Mumbai: In a relief for residents of a Ghatkopar (E) housing society who are out of their homes since 2017, Bombay high court has struck down a condition of the state government that required it to have 90 % of its membership from backward categories after redevelopment.
A bench of Justice Shahrukh Kathawalla and Justice Milind Jadhav on August 25, quashed and set aside the Social Justice and Social Awareness Department’s February 21, 2021 decision. It clarified that “in the course of redevelopment, the Society by itself or through its developer shall be entitled to deal with the premises in the sale component in the ratio of eighty percent in the open/non-backward category and twenty percent to the backward community.”
The verdict was given on a petition by 3 out of 36 members of Sangam CHS and M/s Nakoda Infrastructures. In December 1966 the society was allotted over 15,500 sq ft land under PWR 219 scheme for backward classes. A building was ready in 1980. After a development agreement with Nakoda in July 2017, the dilapidated building was razed. Following two rounds of litigation, the Department sanctioned redevelopment on a condition of 90:10 ratio – 90 % members must be from backward category and only 10 % from the open category.
The petition said such restrictions would affect the free sale component, render redevelopment unviable and leave members homeless. The petitioners’ advocates Karl Tamboly and Abhishek Deshmukh said they must be given same relief as Dinanath CHS who the State gave permission (following December 2016 HC order) on the condition that 80 % members in the free sale component can be from the open category and remaining 20 % from backward category.
State’s advocate Abhay Patki said societies under the scheme are required to maintain 90:10 ratio even when additional tenements are made available upon redevelopment. The judges said even HC in December 2016 found nothing in PWR 219 scheme or resolutions that after redevelopment, such societies are required to maintain a particular ratio of backward class members to non-backward class members. “On the contrary this Court has clearly found that during redevelopment, twenty percent of the additional premises which become available due to consumption of TDR have to be disposed of to persons of backward category, and eighty percent can be disposed of in the open category,” they added.
While the State maintained that no other society was permitted to redevelop without maintaining 90:10 ratio, the judges said at least two societies – Dinanath and Young Men’s Progressive – were permitted 80:20 ratio redevelopment. “Hence the restriction imposed by the decision amounts to treating equals unequally and is violative of Article 14 (Right to Equality).,” they held.
During the hearings, the Department repeatedly contended that the State is considering formulating a policy to regulate redevelopment of PWR 219 scheme societies. The bench said the State may do so in the exercise of its executive functions. “ However, in the meantime, we cannot permit the redevelopment of the Society to be stalled. The members have been out of their homes since 2017. They are urgently awaiting redevelopment of the Society to regain the roofs over their heads,’’ it concluded.