AVINASH GAIKWAD & ORS.versusSTATE OF MAHARASHTRA & ORS.

                    [2010] 7 S.C.R. 519

                AVINASH GAIKWAD & ORS.                          A
                              v.
            STATE OF MAHARASHTRA & ORS.
              (Civil Appeal No. 4890 of 2010)
                        JULY 5, 2010
                                                                8
     [R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.]

     Urban Development:

      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
  should have, in addition to a carpet area of 225 sq. ft. in
0
  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]
        1.2 When the agreement between MHADA and
    developer did not require construction of a balcony and
H
      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 excluded
from the FSI computation vide entry (k) is the area of
balconies which are provided under ~egulation 38(22). E
The ef{ect of Regulation 35 (2)(k) read with Regulation
38(22) is that a balcony is contsructed as per Regulation
38(22) it will be excluded for the purpose of calculating
FSI. These Regulations cannot be construed as casting
a liability upon the developer reconstructing/developing F
a property under the Urban Renewal Scheme to
construct a balcoRy (wose extent is 10% of the area of
the tenement) when constructing and delivering
tenements to the previous occupants of the demolished
building. The area to be given to such occupants is clearly G
specified in Regulation 33(7) read with Appendix Ill
(Clause 2), the NOC and the agreement. An old occupant
is entitled to a tenement only under Regulation 33(7) and
not Regulation 33(9). Regulation 33(9) was invoked only
to get additional FSI of 1.5 by MHADA. [Para 13] (533-B- H
G]
    522      SUPREME COURT REPORTS                [2010) 7 S.C.R.


A      1.4 Under the Scheme approved by this Court,
  MHADA which did not have adequate funds for
  constructing tenements, proposed to execute the project
  through a developer. The arrangement as per the
  Scheme was that the benefit of Regulation 33(9) was to
B be taken only for utilizing the higher FSI floor and the
  development by the developer will be governed by DC
  Regulation 33(7) read with Appendix Ill. Appendix Ill
  requires that each occupant to be rehabilitated should be
  given a minimum carpet area of 225 sq. ft. As per the
c Scheme approved, the contractor had to construct 335
  tenements for the rehabilitation of the existing occupants
  free of cost and each tenements was to be of an area of
  225 sq.ft. The Scheme did not contemplate construction
  and delivery of any balcony in addition to the 225 sq.ft.
0 carpet area. In so far as the area to the delivered to the
  previous occupants, the extent is clear, that is 225sq.ft.
  without any balcony. Further, the assumption of the
  appellants that if the matter had been governed by
  Regulation 33(9), the tenement measurement would have
  been 225 sq.ft. plus a balcony of a minimum measurement
E of 10% of the 225 sq.ft., is baseless as Regulation 33(9)
  does not require it. [Para 13) [533-H; 534-A-D]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4890 of 2010.
F
        From the Judgment & Order dated 05.05.2005 of the High
    Court of Judicature at Bombay in Writ Petition No. 649 of 2005.

      R.F. Nariman, Sanjay Parikh, AM. Singh, Mamta Saxena,
  Gaurav Tyagi, Anitha Shenoy, Pallav Shishodia, H.D. Thanvi,
G D.N. Mishra, Joaguih Reis, Shridhar Y. Chitale, Raj Mhatre,
  Abhijat P. Medh, Dattatray Vyas, Manish Sharma, Chirag M.
  Shroff, Chinmoy Khaladkar, Sanjay Kharde, Asha G. Nair,
  Ravindra Keshavrao Adsure for the appearing parties.

H         The Judgment of the Court was delivered by
      AVINASH GAIKWAD & ORS. v. STATE OF                  523
             MAHARASHTRA & ORS.
     R.V.RAVEENDRAN, J. 1. Leave granted. Heard the               A
parties.

    2. The appellants challenge the order dated 5.5.2005 by
which W.P.No.649/2005 filed by them was dismissed by the
Bombay High Court.                                                B

     ·3. A property known as Pimpalwadi at CS No.370 Tatya
Gharpure Marg, Girgaon Division, Mumbai, originally belonged
to Sir Harkishandas Trust. The said property consisting of
several Chawls, Godowns and Sheds was acquired by the
State of Maharashtra under section 41 of the Maharashtra          C
Housing & Area Development Act, 1976 in the year 1988.
Thereafter, the State Government delivered possession of the
said property to the Maharashtra Housing & Area Development
Authority ('MHADA' for short) on 31.1.1989 for redevelopment
under Urban Renewal Scheme. However, due to certain               D
protracted litigation between the owners of the property and
Pimpalwadi Bhadekaru Sangh formed by the occupants of the
said property, MHADA could not take up the reconstruction. At
that stage, the said Pimpalwadi Bhadekaru Sangh, gave a
proposal to MHADA to permit development of the property           E
through M/s. Shreepati Towers - a private developer (an AOP
of respondents 5 to 12 described also as "R.R. Chaturvedi &
 Others of M/s. Shreepati Group"). The said property had 312
residential tenements and 23 non-residential tenements.
MHADA considered the proposal and granted a no objection          F
certificate dated 27.2.2001 for redevelopment of the said
property in favour of the developer, under Regulation No. 33(7)
of Development Control Regulations for Greater Mumbai, 1991
(for short 'DC Regulations').

     4. The said NOC was challenged by some occupants/            G
tenants by filing WP No.1299/2001 in the Bombay High Court.
The said petition was allowed by order dated 30.4.2002 and
the NOC dated 27.2.2001 granted by MHADA to the developer
was set aside with a direction to MHADA to itself develop the
property. The said decision was challenged by MHADA in C.A.       H
    524       SUPREME COURT REPORTS                  [2010) 7 S.C.R.


A   Nos.2046-47/2003 before this Court. The developers and some
    tenants also filed appeals. In those appeals, this Court by
    interim order dated 23.9.2002 called upon the State
    Government and MHADA to state whether the State
    Government would direct MHADA to take up and proceed with
s   the construction. In pursuance of it, the State Government and
    MHADA held deliberations and MHADA prepared a scheme
    in consonance with the guidelines issued under the Urban
    Renewal Scheme by the Government read with DC Regulation
    33(9). Thereafter, the State Government filed an affidavit dated
c   15.2.2003 wherein they set out the terms of a scheme as
    follows:

          "Under the scheme, the property can be developed by
          MHADA utilizing up to 4 FSI. The contractor/developer
          involved in the scheme shall construct 335 tenements for
D         the existing tenements free of cost to MHADA. He shall
          get some areas for free sale which will be equivalent to
          2.5 FSI minus the FSI required for construction of
          tenements for the tenants. He shall also construct
          additional tenements free of cost for MHADA to
E         accommodate tenants in the Master List using part of the
          balance 1.5 FSI out the total 4 FSI available under the
          scheme. The said scheme can be implemented by
          MHADA involving contractor/developer who has consent
          of atleast 70% of the occupants of the property in question.
F
          In nutshell since MHADA does not have adequate funds
          to construct the houses for tenants, Government proposes
          after due consultations with MHADA, to execute the project
          through developer, who within 2.5 F.S.I. will construct free
          flats for 335 tenants. Remaining FSI out of 2.5 can be
G
          utilized by developer for his free sale flats.

          MHADA gets 4.00 F.S.I. Therefore, within remaining 1.5
          F.S.I, it is proposed to construct 134 in the same premises,
          flats for those who are in the transit camp for which
H         separate negotiations will be made with the developer.
    AVINASH GAIKWAD & ORS. v. STATE OF                    525
  MAHARASHTRA & ORS. [R.V. RAVEENDRAN, J.]
    In view of the resources crunch faced both by Government      A
    and MHADA, they both after discussion with each other
    have together decided the above course of action, for
    which Government requests the approval of the Supreme
    Court.
                                                                  B
                             xxxxx

    If the above scheme is approved by the Hon'ble Supreme
    Court, State Government shall issue appropriate
    guidelines for the purpose of the implementation of the
    reconstruction scheme by availing FSI in accordance with      C
    the provisions of DC Regulations 33(9) of the DC
    Regulation 1991. The guidelines shall prescribe
    transparent purpose of the implementation of the
    reconstruction scheme by availing FSI in accordance with
    the provisions of DC Regulations 33(9) of the DC              D
    Regulation 1991. The guidelines shall prescribe
    transparent procedure such as explaining the plans of the
    new building, municipal & other taxes likely to be incurred
    by the occupants, formation and registration of the Co-
    operative Housing Society, area to be utilized for the        E
    purpose of rehabilitation and free sale etc. as directed by
    the Hon. High Court in its judgment MHADA would be
    directed to complete the reconstruction scheme within the
    four corners of the administrative guidelines issued by the
    Government."                                                  F

This Court considered the said scheme and by order dated
7.3.2003, recorded the acceptance thereto by MHADA and
others also, barring some tenants, and accepted the said
Scheme and disposed of the matter in terms of it.
                                                                  G
     5. In pursuance of the order of this Court, the State
Government iss.ued guidelines on 24.3.2003. The Mumbai
Building Repair & Reconstruction Board ('MBRRB' for short,
the third respondent herein), issued an NOC dated 23.5.2003
to the Developer for redevelopment of the said property jointly   H
    526      SUPREME COURT REPORTS                  [2010) 7 S.C.R.


A by MHADA and the developer in pursuance of DC Regulation
  33(9) read with Regulation 33(7). Thereafter, MHADA entered
  into an agreement dated 30.6.2003 with the developers
  (respondents 5 to 12) in regard to the development of the said
  property. In pursuance of it, the developer, after securing
B possession, has re-developed the property.

       6. During the course of the execution of the development
  project, five tenants filed Writ Petition Nos.108/2003 and 3096/
  2003 challenging the subsequent NOC dated 23.5.2003 issued
C by thirdrespondent in accordance with the order of this Court,
  approving the Scheme. The Bombay High Court by its judgment
  dated 16.2.2004 dismissed the said petitions and in the course
  of the said judgment, observed as under :-

          "The NOC dated 23.5.2003 granted by MHADA pu~suant
D         to the directions given by the Supreme Court is now sought
          to be challenged primarily on the ground that the DC
          Regulation 33(7) has no application to the said property
          as DC Regulation 33(7) is applicable to cessed properties
          whereas the said property is acquired property, and
E         therefore the state has committed an error in applying DC
          Regulation 33(7) and the NOC is invalid ....... DC
          Regulation 33(9) is applicable to properties acquired by
          the State/MHADA whereas DC Regulation 33(7) apply to
          cessed properties. However, there is nothing in the
F         provisions of DC Regulations 33(9) and 33(7) cannot be
          invoked simultaneously so that MHADA can get additional
          tenements in order to house dishoused persons as per the
          Master List. In fact both provisions were incorporated in
          the scheme submitted before the Supreme Court. The
          scheme approved by the Supreme Court specifically
G
          contemplate that the land, though vested in MHADNState
          would be developed through the builder by invoking. the
          pr:ovisions of DC Regulation 33(9) read with D C
          Regulation 33(7) of the D C Regulations."

H         7. Thereafter, the present appellants along with two others
      AVINASH GAIKWAD & ORS. v. STATE OF                        527
    MAHARASHTRA & ORS. [R.V. RAVEENDRAN, J.]
  (all previous occupants of the property) filed Writ Petition          A
  No.649/2005 seeking the following, among others, reliefs : (a)
  declaration that the re-development of Pimpalwadi property was
  not being done in accordance with law and the DC Regulations,
  and for a direction to respondents to carry out the re-
  development by removing the defects pointed out in the writ           B
  petition; (b) a direction to the developers to demolish the
  rehabilitation tenements constructed so far as they were not
  conforming to the DC Regulations; (c) for a direction to MHADA
  and MBRRB to construct the rehabilitation tenements at their
  own cost as per DC Regulations. However, when the said                c
  petition came up for hearing before the High Court, only two
  contentions were urged, presumably because the other
  contentions were covered by the decision of this Court and
  subsequent High Court order dated 16.2.2004. The first
  contention was that the area of each tenement to be constructed       D
  and delivered to the previous occupants 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 second
  contention was that the height of the tenements (height between
  roof and floor) should not be less than 2.9 M, instead of 2.7 M
  adopted by the developer. The High Court by its order dated           E
  5.5.2005 disposed of the said writ petition. It held that the first
  contention could not be accepted as the Scheme was under
  DC Regulations and it did not require construction of a balcony
  in addition to the tenement measuring 225 sq. ft. In regard to
, the second contention, the High Court recorded the submission         F
  of the developer that the height of the units will be increased to
  2.9 M in the buildings which were yet to be constructed.

     8. The said judgment is challenged in this appeal by
 special leave by the appellants who were occupants. In the             G
 special leave petition, several contentions have been raised.
 When it was pointed out by the court that only two contentions
 were urged before the High Court (out of which one was
 conceded by the developer before the High Cou.rt, leaving one
 issue for decision), the learned counsel for the appellants            H
    528      SUPREME COURT REPORTS                  (2010] 7 S.C.R.


A submitted that the appellants were pressing only one contention
  regarding the area of the tenements to be delivered to the
  previous occupants. It was contended that they should be
  delivered tenements of minimum carpet area of 225 sq.ft. as
  permanent alternative accommodation with a balcony in
B addition, which is of a minimum area of 22.5 sq.ft. (10% of the
  tenement area). Thus, the only question that arises for our
  consideration is whether the developer is bound to construct
  and deliver to the previous occupants, tenements with a balcony
  measuring a balcony area of a minimum area of 22.5 sq.ft. in
C addition to the minimum carpet area of 225 sq.ft.

       9. The NOC dated 23.5.2003 issued by MBRRB and the
  Agreement dated 30.6.2003 between MHADA and the
  developer, require the developer to deliver to each occupant
  of the old building, a tenement with a carpet area equal to area
D occupied by him for residential purpose subject to minimum .
  carpet area of 225 sq.ft. They do not require delivery of any
  additional balcony area. We extract below Clause (3) of the
  operative portion of the agreement dated 30.6.2003 :

E         'The second party shall out of the 2.5 FSI, construct and
          hand over to the first party, 312 tenements for the
          residential tenants and 23 tenements for the non residential
          tenants of the said property and free sale tenements for
          the second party as per provisions under Appendix Ill of
F         OCR 33(7)."

       10. Not finding any support from the agreement dated
  30.6.2003, the appellants attempted to seek support for their
  claim for balcony (with an area of 10% of the area of the
  tenement) with reference to DC Regulation No. 33(9) read with
G Regulation 35(2)(k) and Regulation 38(22). It is submitted that
  the development being a reconstruction under the Urban
  Renewal Scheme, it was governed by DC Regulation 33(9);
  that in regard to the developments of cessed buildings under
  DC Regulation 33(7) and development of slums under DC
H Regulation 33(10), the area of 225 sq.ft. would include the area
     AVINASH GAIKWAD & ORS. v. STATE OF                        529
   MAHARASHTRA & ORS. [R.V. RAVEENDRAN, J.]
   of balcony also, having regard to Clause(2} of Appendix Ill and     A
   Clause 1.2 of Appendix IV; that in regard to the development
.. under DC Regulation 33(9) under the Urban Development
   Scheme, the balcony of an area of 10% of the tenement area)
   has to be provided in addition to the area of the tenement.
                                                                       B
     11. To find out whether there is any merit in the contention,
 we may now refer to the relevant Regulations:

       "33(7) Reconstruction or redevelopment of cessed
       buildings in the Island City by Cooperative Housing
       Societies or of old buildings belonging to the Corporation      C
       or of old buildings belonging to the Police Department:-
       For reconstruction/redevelopment to be under taken by
       Cooperative Housing Societies of existing tenants or by
       Co-op. Housing Societies of landlords and/or occupiers
       of a cessed buildings of 'A' category in Island City, which     D
       attracts the provisions of MHADA Act, 1976 and for
       reconstruction/redevelopment of the buildings of
       Corporation and Department of Police, Police Housing
       Corporat'ion, Jail and Home Guard of Government of
       Maharashtra, constructed prior to 1940, the Floor Space         E
       Index shall be 2.5 on the gross plot area or the FSI required
       for rehabilitation of existing tenants plus incentive FSI as
       specified in Appendix-Ill whichever is more.

       33(9) Repairs and reconstruction of cessed buildings
       and Urban Renewal Scheme:- For repairs &
                                                                       F
       reconstruction of cessed buildings and Urban Renewal
       Scheme undertaken by the Maharashtra Housing and Area
       Development Authority or the Mumbai Housing and area
       Development Board or Corporation in the Island City, the
       FSI shall be 4.00 or the FSI required for rehabilitation of     G
       existing tenants I occupiers, whichever is more.

       33(10} Rehabilitation of slum dwellers through owners!
   1
       developers/co-operative housing societies:- For
       redevelopment of restructuring of censused slums or such        H
    530      SUPREME COURT REPORTS                  (2010) 7 S.C.R.


A         slums whose structures and inhabitants whose names
          appear in the Legislative Assembly voters' list of 1985 by
          the owners/developers of the land on which such slums are
          located or by Cooperative Housing Societies of such slum
          dwellers a total floor space index of upto 2.5 may be
B         granted in accordance with schemes to be approved by
          special permission of the Commissioner in each case.
          Each scheme shall provide inter-alia the size of tenements
          to be provided to the slum dwellers, the cost at which they
          are to be provided on the plot and additional tenements
c         which the owner/developer can provide to accommodate/
           rehabilitate slum dwellers/project affected persons from
          other areas etc. in accordance with the guidelines laid
          down in the Regulations in Appendix IV."

          35. Floor Space Index Computation -
D
          (1) Floor Space Index/Built-up calculations - The total
          area of a plot shall be reckoned in floor space index/built-
          up area calculations applicable only to new development
          to be undertaken hereafter as under: xxx      xxx xxX
E
          (2) Exclusion from FSI computation - The following shall
          not be counted towards FSI:- xxx xxx        xxx (k) Area
          of balconies as pro~ided in sub-regulation (22) of
          Regulation 38.       ·

F                                 xxxxxx xxx
    Sub-regulation (22) of Regulation 38 referred tp in Regulation
    35(2) is extracted below:

          38(22) - Balcony - In any residential zone (R-1) ~nd
G         residential zone with shop line (R-2), or in a purely
          residential building in any other zone, balconies may be
          permitted free of FSI at each floor, excluding the ground
          and terrace floors, of an area not more than 10 per cent
          of the area of the floor from which such balcony projects
H
    AVINASH GAIKWAD & ORS. v. STATE OF                     531
  MAHARASHTRA & ORS. [R.V. RAVEENDRAN, J.]
    subject to the following conditions:                           A

                               xxx"

The relevant portions of Appendix Ill and Appendix IV which are
referred in Regulation 33(7) and 33(10) are as under:
                                                                   B
                          APPENDIX Ill

    Regulation for the reconstruction or redevelopment
    of cessed buildings in the Island City by the Landlord
    and/or Co-operative Housing Societies.
                                                                   c
                    [D.C. Regulation No. 33(7))

    · 1. (a) The new building may be permitted to be constructed
      in pursuance of an irrevocable written consent by not less
      than 70 per cent of the occupiers of the old building.       D

     (b) All the occupants of the old building shall be re-
     accommodated in the redeveloped building.

     2. Each occupant shall be rehabilitated and given the
     carpet area occupied by him for residential purpose in the    E
     old building subject to the minimum carpet area of 20.90
     sq.mt. (225 sq.ft.) and/or maximum carpet area upto 70
     sq.mt. (753 sq.ft.) as provided in the MHAD Act, 1976. In
     case of non-residential occupier the area to be given in
     the reconstructed building will be equivalent to the area     F
     occupied in the old building.

     xxxxx

                          APPENDIX IV
                                                                   G
                     [Regulation No.33(10))

     1. Applicability of the provisions of this Appendix : The
     following provisions will apply for redevelopment/
     construction of accommodation for hutment/pavement-           H
    532        SUPREME COURT REPORTS                 (2010] 7 S.C.R.

A         dwellers through owners/developers/co~operative housing
          societies of hutment/pavementdwellers/public authorities
          such as MHADA, MIDC, MMRDA etc./Non-Governmental
          Organisations anywhere within the limits of Brihan Mumbai.

B
          1.    Right of the hutment dwellers:

          1.1. Hutment-dwellers, in the slum or on the pavement,
          eligible in accordance witti the provisions of Development
          Control Regulation 33(10) shall, in exchange for their
C         structure, be given free of cost a residential tenement
          having a carpet area of 20.90 sq. m. (225 sq.ft.) including
          balcony, bath and water closet, but excluding common
          areas.

D         1.2. Even those structures having residential areas more
          than 20.90 sq.m will be eligible only for 20.90 sq.m of
          carpet area. Carpet area shall mean exclusive df all areas
          under walls including partition walls if any in the tenement.
          Only 20.90 sq.mt. carpet area shall be given and if
          proposal contains more area, it shall not be taken up for
E
          consideration.

                                   xxxxx"

       12. The grievance of the appellants in the writ petition was
F that tenements constructed were of an area less than the
  required carpet area of 225 sq.ft, and that was a violation of
  the DC Regulations. The writ petition did not raise any
  contention about any requirement of providing a balcony of 10%
  of the area of the tenement. When the agreement between
G MHADA and developer did not require construction of a balcony
  and when the appellants had not even alleged in the petition
  that balcony was required to be constructed, we fail to
  understand that how the appellants could raise a contention
  during arguments before the High Court that they were entitled
H to a balcony in the tenement whose measurement should be
    AVINASH GAIKWAD & ORS. v. STATE OF                          533
  MAHARASHTRA & ORS. [R.V. RAVEENDRAN, J.]
                      /


of 10% of the area of the tenement. ft is not disputed that the             A
inspection report showed that t~e extent of tenement was not
fess than 225 sq.ft. and the appellants had agreed to take the
tenements subject to the result of the case.     -

      13. Let us consider whether Regulation 35(2)(k) and 8
38(22) are of any assistance to appellants. Regulation 38(22)
relat~s to 'Balconies' and provides that in any residential zone,
balconies may be permitted free of FSI at each floor (excluding
ground and terrace floors) of an area not more than 10% of the
area of the floor from which such balcony projects. Regulation C
35 deals with Floor Space Index computation and Note (ii)
thereof relates to exclusion from FSI computation. One of the
items to be excluded from the FSI computation vide entry (k)
is the area of balconies which are provided under Regulation
38(22). The effect of Regulation 35 (2)(k) read with Regulation D
38(22) is that if a balcony is constructed as per Regulation
38(22) it will be· excluded-f2x the 1>,u(po~e _of calcul~ting FS!_. _____ _
These Regulations by~iib':$fretch·
    '        ••
                                         :ofimagination
                                          :\po.,
                                                            .call·
                                                               be ---- ·
                                                                      '.'
                                                                                ·- -
construed as casting a liability upon the developer -
 reconstructing/developing a property under the Urban Renewal
 Scheme to construct a balcony (whose extent is 10% of the E
 area of the tenement) when constructing and delivering
tenements to the previous occupants of the demolished
 building. The area to be given to such occupants is clearly
 specified in Regulation 33(7) read with Appendix Ill (Clause 2),
 the NOC and the agreement. An old occupant is entitled to a F
tenement only under Regulation 33(7) and not Regulation 33(9).
 Regulation 33(9) was invoked only to get additional FSI of 1.5
 by MHADA. We may at this juncture note that the question
 whether Regulation 33(9) will apply as contended by the
 appellant or Regulation 33(7) read with Regulation 33(9) will G
 apply, as contended by the respondents, is academic and not
 relevant for the purpose of ascertaining whether the appellants
 as old occupants are entitled to any additional balcony area.

        13._ Under the Scheme approved by this Court, MHADA                 H
    534     SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A which did not have adequate funds for constructing tenements,
  proposed to execute the project through a developer. The
  arrangement as per the Scheme was that the benefit of
  Regulation 33(9) was to be taken only for utilizing the higher
  FSI floor and the development by the developer will be
B governed by DC Regulation 33(7) read with Appendix Ill.
  Appendix Ill requires that each occupant to be rehabilitated
  should be given a minimum carpet area of 225 sq.ft. As per
  the Scheme approved, the contractor had to construct 335-
  tenements for the rehabilitation of the existing occupants free
c of cost and each tenement was to be of an area of 225 sq.ft.
  The Scheme did not contemplate construction and delivery of
  any balcony in aC!dition to the 225 sq.ft. carpet area. In so far
  as the area to be delivl!red to the previous occupants, the
  extent is clear, that is 225 sq.ft. without any balcony. Further,
0 the assumption of the appellants that if the matter had been
  governed by Regulation 33(9), the tenement measurement
  would have been 225 sq.ft. plus a balcony of a minimum
  measurement of 10% of the 225 sq.ft., is baseless as
  Regulation 33(9) does not require it. Be that as it may.

E        14. We therefore find no merit in this appeal and the same
    is dismissed.

    N.J.                                       Appeal dismissed.