Tenants Can Reconstruct Demolished Premises Without NOC From Landlord, Recover Costs If Owner Fails To Redevelop: Bombay High Court

However, the division bench comprising Justices Gautam Patel and Kamal Khata clarified that the tenants wouldn’t be entitled to redevelop the premises and occupy flats on ownership basis. Meaning the tenants would continue to remain tenants after reconstruction.

“The [tenants] association must make its own arrangements for financing the reconstruction. We have only affirmed their statutory right to reconstruction and the MCGM (BMC)’s obligation to permit it without requiring the prior consent of [the landlord].”

The court rejected the landlord/ landowner contentions that he was not obligated to reconstruct (or, at their option, redevelop) the demolished structure and the MCGM has no authority or power to compel or permit the reconstruction by the tenants on a demonstrated default/failure by the property owners.

Significantly, the court held in cases where buildings are demolished due to their dilapidated conditions and tenants are affected, it is the civic body’s duty to demand plans for reconstruction or redevelopment and to take steps against the owner under the MMC Act.

Facts

Hundred and four tenants were rendered homeless after their tenements were pulled down in 2019. The building was declared dilapidated in 2014. They had vacated the premises in July 2019 and have been fending for themselves since then.

The tenants formed an association called the Chandralok People Welfare Association and approached the court seeking directions against the owner of the building in Goregaon- Advocate Vinay Dwivedi, civic body and land owners.

They approached the court seeking a mandamus and order BMC to direct the landlords to comply with the provisions of Section 489 read with section 354 and Section 499, of the MMC Act, 1888, by reconstructing/redeveloping the building on the 2702 sq meters of land.

The Sections deal with demolition of dilapidated structures, the BMC commissioner’s power to execute an individual’s jobs at that person’s cost and Section 499 (in default of owner, the occupier of any premises may execute required work and recover expenses from the owner)

In the alternative, they sought permission to redevelop the building by appointing a developer and provide ownership rights for themselves.

The petitioners were represented by Advocate Abhishek Sawant instructed by Solicis Lex, AGP Amit shastri for the state and Vinay Dwivedi appeared for himself.

The tenants contended that they received no response from the BMC even after invoking Section 499 of the MMC Act.

Dwivedi contended the building was demolished despite status quo orders of the City Civil Court, the tenants lost their right once the structure was demolished and he wasn’t obligated to reconstruct or redevelop the building.

At the outset the court took strong exception to the manner in which Dwivedi wasn’t forthcoming with any building proposal even after four years of demolition and blaming the tenants.

“To describe this as wholly unsatisfactory is the mildest understatement. Astonishingly, these Petitioners, tenants who are adversely affected by the 6th Respondent’s indolence, intransigence and total failure to take any steps, are themselves being blamed.”

The court said that while ownership of a property necessarily entails a right to enjoy the benefits and fruits of development (redevelopment) of that property, these rights come with obligations where tenants are involved under Section 499 (3) & (6) of the MMC Act.

Noticing the lacuna in the law after dilapidated structures are demolished, the two sub sections empowering tenants was added, the court noted.

“Section 499(6) preserves the rights of the owners of the property and keeps the tenants as tenants. This is important because in the course of redevelopment, particularly under some provisions of the DCPR 2034 tenancies may be converted optionally to ownership. The statute does not give the tenants rights to convert tenancy into ownership.”

Significantly the court rejected BMC’s proposition that it does not have the power to compel or permit reconstruction at the instance of tenants affected by the bringing down of a tenanted building.

“But we see no reason why the MCGM should remain a silent bystander for years and years together when it finds that there is a building that has been brought down, tenants have been evicted and there is no proposal before it for either reconstruction or redevelopment at the instance of the property owner.”

“The MCGM can certainly demand from the property owner that the reconstruction or redevelopment be taken up in a stated time frame and if not the MCGM can cause steps to be taken under the MMC Act. Indeed, we believe that the MCGM must make such a demand.”

Accordingly, the court allowed the association to submit plans for reconstruction and the BMC to consider them and process it within six weeks without the landlord or landowners consent.

Appearances – Advocates Abhishek Sawant, Ameet Mehta and Vaishali Sanghavi for Solicis Lex representing the petitioners.

Amit Shastri, AGP,

Advocate Kunal Waghmare for the BMC

Case Title – Chandralok People Welfare Association vs State of Maharashtra

Case Number - WRIT PETITION (L) NO. 17361 OF 2023