Occupier Of Flat Entitled To Transit Rent For Period Of Dispossession During Redevelopment : Bombay High Court

In the present case, the HC also asked the developer to put the occupant in possession of the redeveloped property if his dispute with the flat owner is not finally decided by then.

Justice GS Kulkarni observed, "The fact remains that as respondent no.3 (occupier) is in possession of the tenement in question and would now be handing over possession of such tenement to the petitioner/society… The party who is dispossessed, would be entitled to the transit rent as it is such party who is put to hardship."

In the present case the developer - Maniar Associates LLP – had approached the HC under Section 9 of the Arbitration and Conciliation Act, 1996 citing a clause in his agreement with Vijay Niwas Co-op. Hsg. Soc. Ltd, seeking interim relief to empty a building for redevelopment.

The developer represented by Advocates Rohan Sawant and Sneha Marjadi, instructed by Advocate Jay Vakil stated that 11 out of 12 members had vacated their flats and just one family was holding up the redevelopment.

The court was informed that the owner of the flat had filed a trespassing case against the occupant in the HC in separate proceedings. Conversely, the occupant said he was a lawful tenant and not a trespasser, therefore the suit must be rejected and he refused to vacate the premises.

Therefore the developer sought orders against the occupant to hand over the premises to society and not create a hindrance in the redevelopment process.

Observations

At the outset the court observed that it was clear that the flat owner and his alleged tenant were holding up the redevelopment of a dilapidated building.

"It needs to be noted that, it is quite settled that the minority members of the society cannot take a position contrary to the will of the majority members of the society."

The bench believed that a prima facie case for relief was definitely made out in the developer's favour.

Advocate Kunal R. Kumbhat for the occupant said he was not against redevelopment or handing over possession. However, since he was the occupant, he would be entitled to transit rent and possession in the redeveloped premises

Advocate Shanay Shah for the flat owner submitted that he should be permitted to seek reliefs before the coordinate bench and in the event of an order to that effect, the benefit of the transit rent and redeveloped flat should come to him.

"Mr. Shah's contention in my opinion, is fair and correct as in the present proceedings, it is not possible for this Court to determine any rights either of respondent nos.2 and 3 qua the flat in question, as such rights are already subject matter of the pending suit," the bench observed.

Opining that the occupant would be entitled to transit rent in the absence of a court order in his dispute with the flat owner, the court ordered him to handover possession, which would be contingent on the outcome of the suit.

"Needless to observe that in the event the inter se rights between respondent nos. 2(flat owner) and 3 (occupant) are not decided in the pending suit between these parties, on the day the construction of the building is complete and possession of the redevelopment premises is to be handed over, in such event, as respondent no.3 (occupant) shall be handing over the possession of the flat in question, the petitioner/society shall hand over possession of the redeveloped premises to respondent no.3, which shall be subject to the final orders which may be passed in the pending suit."

Case Title: Maniar Associates LLP Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. & Ors

Citation: 2022 LiveLaw (Bom) 129