AVINASH GAIKWAD & ORS. versus STATE OF MAHARASHTRA & ORS.

Citation: [2010] 7 S.C.R. 519 · Decided: 05-07-2010 · Supreme Court of India · Bench: R.V. RAVEENDRAN · Disposal: Dismissed

Judgment (excerpt)

[2010] 7 S.C.R. 519 
AVINASH GAIKWAD & ORS. 
v. 
STATE OF MAHARASHTRA & ORS. 
(Civil Appeal No. 4890 of 2010) 
JULY 5, 2010 
[R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.] 
Urban Development: 
A 
8 
Df?velopment Control Regulations for Greater Mumbai, c 
1991-Regulation 33(7) read with Appendix Ill, regulation 
35(2)(k) and regulation 38(22)-Reconstruction or 
redevelopment of property by developer under Urban Renewal 
Scheme-Area of tenements to be constructed and delivered 
to previous occupants-Tenements of minimum carpet area 
0 
of 225 sq.ft. with a balcony in addition, of a minimum area of 
22.5 sq.ft (10% tenement area)-Claim of-Held: Not 
justified-Regulation. 33(7) rlw Appendix ///, No Obejection 
Certificate issued by State Building Repair and 
Reconstruction Board, agreement between State Housing and E 
Area Development Authority and developer, and the 
approved Scheme clearly specifies that minimum carpet area 
of 225 sq.ft. was to be given to occupants-It did not 
contemplate delivery of any ba/conyin addition to the 225 
sq.ft. carpet area-A/so regulation 35(2)(k) r/w regulation 
F 
38(22) cannot be construed as casting liability upon 
developer reconstructing/developing a property under Urban 
Renewal Scheme to construct balcony measuring 10% of 
tenement area. 
The State of Maharashtra acquired certain properties-
G 
312 residential tenements and 23 non-residential 
tenements. It delivered the possession of the properties 
to the Maharashtra Housing and Area Development 
~ Authority (MHADA) for re-development under the Urban 
I 
519 
H 
520 
SUPREME COURT REPORTS 
(2010] 7 S.C.R. 
A Renewal Scheme. MHADA did not have adequate funds 
for constructing tenements and proposed to execute the 
project through a developer. The Supreme Court 
approved the Scheme. The private developer was issued 
No Objection Certificate dated 23.05.2003 for 
B redevelopment of the said property in pursuance of 
Regulation 33(9) r/w Regulation 33(7) of the Development 
Control Regulation for Greater Mumbai, 1991. MHADA 
entered into an agreement dated 30.6.2003 with the 
developer. The developer re-developer the property. The 
c appellants-previous occupants of the property 
challenged the area of the tenements to be constructed 
and delivered to them. They contended during their 
arguments that the area of each tenement to be 
constructed and delivered to the previous occupants 
0 should have, in addition to a carpet area of 225 sq. ft. in 
respect of the tenement, a balcony measuring 10% of the 
tenement area. The High Court rejected the same as the 
Scheme was under DC Regulations and it did not require 
contstruction of a balcony in addition to the tenement 
measuring 225 sq. ft. Hence the appeal. 
E 
Dismissing the appeal, the Court 
HELD: 1.1 The No Objection Certificate dated 
23.5.2003 issued by Mumbai Building Repair and 
F Reconstruction Board and the Agreement dated 30.6.2003 
between Maharashtra Housing and Area Development 
Authority and the developer, require the developer to 
deliver to each occupant of the old building, a tenement 
with a carpet area equal to area occupied by him for 
G residential purpose subject to minimum carpet area of 
225 sq. ft. They do not require delivery of any additional 
balcony area. [Para 9] [528-D] 
H 
1.2 When the agreement between MHADA and 
developer did not require construction of a balcony and 
AVINASH GAIKWAD & ORS. v. STATE. OF 
521 
MAHARASHTRA & ORS . 
• when the appellant had not even alleged in the petition 
A 
that balcony was required to be contructed, it cannot be 
understood that how the appellants could raise a 
contention during arguments before the High Court that 
they were entitled to a balcony in the tenement whose 
measurement should be of 10% of the area of the 
B 
tenement. The inspection report showed that the extent 
of tenement was not less than 225 sq. ft. and the 
appellants had agreed to take the tenements subject to 
the result of the case. [Para 12] [532-G-H; 533-A] 
1.3 Regulation 38(22) of the Development Control C 
Regulations for Greater Mumbai, 1991 relates to 
"Balconies" and provides that in any residential zone, 
balconies may be permitted free·of Floor Space Index at 
reach floor (excluding ground. and terrace floors) of an 
area not more than 10% of the area of the floor from 
D 
which such balcony projects. Regulation 35 deals with 
FSI computation and Note (ii) thereof relates to exclusion 
from FSI computation. One of the items to be exclud

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