Redevelopment — Belated withdrawal of No objection or consent and opposition to eviction by society member — Not proper — BMC Act, 1888, MHAD Act, 1976 S. 75 and S. 95A.

[Sushila Digamber Naik & Ors. v. MHADA & Ors., 2010
Vol. 112(2) Bom. L.R. 639]

In the year 2003 majority of members of the
respondent-society including petitioners issued consent letters in support of
redevelopment of the society. The society applied to MHADA for its NOC. MHADA
also issued NOC for redevelopment. The authority issued order for temporary
eviction of tenements for redevelopment, wherein petitioners who had earlier
given consent withdrew the same and challenged the eviction order by the
respondent-authority.

The Court observed that in any redevelopment scheme where the
co-operative housing society/developer appointed by the co-operative housing
society has obtained no objection certificate from the MHADA/Mumbai Board,
thereby sanctioning additional balance FSI with a consent of 70% of its members
and where such NOC holder has made provision for alternative accommodation in
the proposed building (including transit accommodation), then it shall be
obligatory for all the occupiers/members to participate in the redevelopment
scheme and vacate the existing tenements for the purpose of redevelopment. In
case of failure to vacate the existing tenements, the provisions of S. 95A of
the MHADA Act mutatis mutandis shall apply for the purpose of getting the
tenements vacated from the non-co-operative members.

Thus as per the amended provisions of DCR 33(5), the
respondent-authority are empowered to invoke the provisions of S. 95A of the
MHADA Act and the petitioners are not correct in their submission that the
respondent-authority had no jurisdiction to pass the impugned order u/s.95A of
the MHADA Act. The petition was dismissed.