Bombay High Court Paves Way For Allotment Of Houses To Society Of High Court Employees

A division bench of Justice GS Patel and Justice Kamal Khata directed MHADA to allot a 2,769.75 square meter plot of land to members of the society without inviting applications from other High Court employees or reserving 50 percent of the flats for public purpose.

"the allotment to the Shri Ganesh Sai High Court Employees CHSL (proposed) of which Narvekar is the Chief Promoter will proceed on 2769.75 sq mts. without (1) any insistence upon an advertisement or inviting applications from other employees of the High Court or (2) insisting upon a reservation for the purposes set out in Regulation 13(2) or Rule 13(2)."

The court opined that the petitioners agreed to scale down from their original demand, thus releasing additional areas for the availability of the 50 percent reservation. The court agreed that the imposition of 50 percent reservation condition would result in flats of a meaningless size and potentially exclude eligible members.

“We do not have actual measurements and calculations before us now but from a simple estimated computation, it appears to us that individual tenements of Class III and Class IV employees will be reduced to less than 200 sq ft and even those of Class I and Class II employees will be reduced to a level where they are altogether pointless”, said the court.

Regulation 13(2) of the Maharashtra Housing and Area Development (Estate Managements, Sale, Transfer and Exchange of Tenements) Regulations, 1981 provides that MHADA shall prepare and implement housing schemes for specific categories with the approval of Government.

Under Rule 13 of the Maharashtra Housing and Area Development (Disposal of Land) Rules, 1981, 50 percent of tenements/plot has to be reserved for persons belonging to 11 categories mentioned including scheduled castes, scheduled tribes, journalists, freedom fighters, persons with disability, etc.

The petitioner Shri Ganesh Sai High Court Employees CHSL was formed in 2007 consisting of Class-I to Class-IV employees of the HC. Currently, there are 398 members.

The society sought allotment of land in village Pahadi, Goregaon (West) for residential purposes. The society applied for a substantial area in 2010 but over the years, the allotment size dwindled from an originally requested 36,750 square meters to 2,769.75 square meters, just 7.5 percent of the requested area.

On September 18, 2019, the State Government allotted vacant land of area, 2,769.75 sq mts. to MHADA for the construction of residential units for employees/officers of the High Court on certain terms and conditions.

MHADA imposed two conditions on allotment of units. The first condition was that the flats will be allotted by draw by advertisement out of the employees/officers of the High Court, and not just to members of the petitioner society. The second condition sought to reserve 50 percent of the flats on the allotted land for persons belonging to the categories specified under MHADA regulations.

The society filed the present writ petition challenging these conditions.

Advocate Mayur Khandeparkar for the society accepted that in law an allotment of public land must be given to a definable class. He said that the first condition seeks to open the class. He submitted that the members of the society form a distinct class and the society itself is only a structure of convenience as no one except employees of the HC in Class I to Class IV can gain membership of the society. Once the society was formed following established conduct rules it cannot be said that the class is lost but the society remains, he argued.

Khandeparkar contended that the imposition of a 50% reservation condition on the already reduced land allotment was unreasonable as it would either result in housing units of impractically small sizes or the exclusion of eligible members.

Advocate General Dr. Birendra Saraf for the State contended that the conditions are meant for public welfare purposes. Senior Advocate Vijaysinh Thorat for MHADA submitted that there is no wrongdoing even alleged against MHADA or the State Government.

Court’s Ruling

The court clarified that it is not pronouncing on a general principle that the requirements of Regulation 13(2) are to be dispensed with in every single case and is merely considering whether the conditions can be imposed in the peculiar and unique facts of the present case.

"It is always not just open but incumbent upon MHADA and the State Government to insist without arbitrariness and discrimination on the condition being fulfilled. The facts of this case however show that in possible compliance with that very condition of reservation it was the Petitioners who agreed to scale down or step back from their original demand thus releasing additional areas for the availability of the 50% reservation", the court observed.

The court agreed with Khandeparkar’s submission that the society constituted a valid class. The court said that the classification was valid because it dealt with a certain class of employees. The class, and the classification remains even after formation of the society, sad the court.

In a previous hearing on March 17, 2022, MHADA submitted minutes of a meeting between representatives of MHADA and the petitioner society in which it was resolved that the housing scheme will be implemented on the entire land measuring 2769.75 sq. mtr with full development potential for the society.

“…it is difficult to see how such a condition can be reintroduced now after 17th March 2022 when the Court was persuaded to accept by signed and written undertakings and statements that there would not be a further reduction of the available land to the Petitioner”, the court opined.

Thus, the court ordered that the allotment proceed without the need for advertising or inviting applications from other High Court employees and without imposing a 50 percent reservation for public purposes.

The court clarified that once MHADA constructs the building, it is only required to deliver possession of the entire structure to the society. The society will manage the allotment and distribution of flats among its members as per the eligibility criteria.

Case no. – Writ Petition No. 3509 of 2019

Case Title – Milind Dashrath Narvekar v. State of Maharashtra and Ors.

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