Dipika Tanavde & Ors. v. Mumbai Building Repair and Reconstruction Board & Ors.

12. We may note that on the earlier occasion on 11 September 2025, the proceedings were adjourned, considering the plea as urged on behalf of the parties that “a settlement” is being worked out between the parties and that settlement in terms of the minutes of the order would be placed before the Court. Again on 15 September 2025 accepting a contention that the parties would be filing consent terms, the proceedings were adjourned for today. However, Mr. Bobde, learned Counsel for the petitioners, on instructions, submitted that it is not possible for the petitioners to arrive at any settlement hence, the proceedings be heard and appropriate orders be passed. It is on such conspectus we have heard learned Counsel for the parties. Submissions:-

13. Mr. Bobde, learned Counsel for the petitioners has limited submissions. He draws our attention to the provisions of Section 95A of the MHAD Act to contend that insofar as the non-cessed building is concerned, in which the petitioners are presently occupying their tenements, although it is a part of consolidated redevelopment and in regard to which the plans are sanctioned by the municipal corporation, the Designated Officer of the MHADA did not have jurisdiction to pass an eviction order under Section 95A against the tenants of the non-cessed building i.e. the petitioners. In this regard, Mr. Bobde has also drawn our attention to the NOC as granted by MHADA to contend that the NOC can be read as applicable only to the cessed building and not qua the non-cessed building. It is hence his submission that the designated officer had no jurisdiction to pass the impugned order dated 10 September 2024.

14. Mr. Bobde has also argued on the merits, on the basic grievances of the petitioners. In such context, his submission is that although the rehabilitation building which would house all the tenants of both the buildings, is constructed, the tenants who were occupying the cessed building are being granted a larger area that is an area 450 sq.ft. per tenement, whereas the petitioners are being granted tenements of area of 405 sq.ft. and hence, there is deficit of 45 sq.ft. He contends that the petitioners are not agreeable to accept such tenements and for such reason they are not willing to vacate their existing tenements in the old non-cessed building. On a query made to Mr. Bobde, as to what would be the basis of such legal rights to seek an area for the tenements of non-cessed building in parity with the tenements of cessed building, Mr. Bobde is unable to point out any legal right of the tenants to seek such parity between tenants of the non-cessed building to that of the cessed building. No legal right of such nature either under the Development Control Regulations or under the provisions of the MHAD Act is being shown. This is the only contention as urged on behalf of the petitioners in support of such prayers.

15. On the other hand, Mr. Lad, learned Counsel for respondent No.1 Board and MHADA has submitted that the NOC dated 6 June 2015 and the revised NOC dated 31 December 2021 are granted by the Board/ respondent No.1 for redevelopment of the entire property i.e. final plot No. 1120 TPS IV. He has drawn our attention to the clauses of NOC which, according to him, would include the plot of both the buildings although the MHADA would not certify the area of non cessed structures and it has to be certified by a licensed architect or by the MCGM prior to issuance of IOD. Mr. Lad has submitted that the NOCs are not assailed by the petitioners, which were in fact acted upon by the owners and accordingly the rehabilitation building was constructed. Mr. Lad has also drawn our attention to the provisions of Regulation 33(7) to submit that it may not be appropriate for the petitioners in the peculiar facts of this case to contend that the non-cessed building does not form part of the consolidated development covered under the NOC granted by the Board/respondent no.1 being undertaken by the owner, on the basis of which the owner has proceeded to undertake the re-development; as also the Municipal Corporation has granted IOD and the building permission pursuant to which the rehabilitation building was constructed and is ready for occupation. He accordingly submits that the petitioners cannot take a position contrary to the NOCs which was granted and accepted by them, and more particularly when they are also aware and have full knowledge that the rehabilitation building as constructed formed part of the consolidated development.

16. Learned Counsel for the owner has made elaborate submissions. She would submit that the petitioners who are 15 in number are minority tenants of the non-cessed building of the total 32 tenements rest of whom have vacated their respective tenements and already entered into Permanent Alternate Accommodation Agreements (PAAA) to be rehoused in the rehabilitation building. It is her submission that petitioner nos.[9] and 13 are not the tenants of the non-cessed building. It is her contention that insofar as petitioner no.13 is concerned, his brother Vijay Yadav was the tenant of the cessed building who has been granted a permanent alternate accommodation. In supporting the submissions of Mr. Lad, she submits that in view of the NOC granted by MHADA dated 6 June 2015 as well as the revised NOC dated 13 December 2021, the approach of the petitioners/ tenants to take the project to a ransom, by not vacating of their respective tenements, is not a correct approach that too in the absence of any legal right being shown, not to vacate their tenements in the old building and make way for redevelopment. She submits that in any event the petitioners being minority tenants cannot take a position that they would bring the entire project to a standstill by such non co-operative approach, by not vacating the existing structures in the absence of any legal rights qua their demand for a larger area of 45 sq. feet, merely because the petitioners form part of the non-cessed building. In support of her contention, reliance is placed on the decision of a co-ordinate Bench of this Court, to which one of us (G. S. Kulkarni, J.) was the member, in Estella Fernandes Nee Estella Fernandes & Ors. Vs. Swarna Highrise Constructions & Anr.1, as also the decision of the learned 1 2023(4) Bom.C.R. 632 Single Judge of this Court in The Maharashtra Housing and Area Development Authority (MHADA) vs. Smt. Rukmini Ramchandra Ambre & Ors.2, as followed in the subsequent decision of the learned Single Judge of this Court in Shri. Ram Shairas Bajrangilal Dhobi & Ors. vs.

MHADA & Ors.3. She accordingly submits that the petitioners cannot resist vacating of the existing premises hence, the petition be dismissed as misconceived. Analysis

17. We have heard learned Counsel for the parties and with their assistance, we have perused the record of the writ petition including the reply affidavits filed on behalf of the respondents. The questions which arise for consideration of the Court in the present proceedings are two fold; firstly whether the petitioners can resist eviction on the ground that respondent No.1 does not have jurisdiction under Section 95A of the MHAD Act to pass eviction orders; and secondly, whether the petitioners can take a stand that they would intend to remain outside the redevelopment being undertaken when they are also claiming relief in terms of prayer clause (b). Both these questions would be required to be answered in the negative. The following discussion would aid our conclusion.

18. At the outset, we need to state the admitted facts. The plot of land in question F. P. No. 1120 of TPS-IV, Mahim Division, admittedly housed two buildings i.e. the cessed and the non-cessed building. The cessed building is already demolished. On portion of the land which housed the cessed building, a

2 Appeal from Order No. 67 of 2010, decision dt.09/03/2010 3 Appeal from Order (st) No.13797 of 2011, decision dt. 11/05/2011 rehabilitation building has already been constructed, having tenements/flats which would house not only the tenants of the cessed building, but also for the non-cessed building which is occupied by the petitioners. The other admitted position is that majority of the tenants of the non-cessed building (to which the petitioners belong) have vacated their respective tenements and have agreed to accept and form part of the consolidated redevelopment, subjecting themselves to the redevelopment scheme, as also to various permissions which were granted by respondent Nos.[1] and 2 i.e. the Board and the MHADA as also by MCGM. Although the redevelopment has commenced quite sometime back and the construction of the rehabilitation building is fully completed, the petitioners never filed any substantive proceedings to challenge the IOD / development permissions, which were granted to the owners to undertake such consolidated redevelopment. Thus, there was no embargo in the nature of any order passed by any authority or Court, for the owner to proceed with the construction of the rehabilitation building which is now awaiting grant of an Occupation Certificate, in a month’s time. In our opinion, these are some of the significant and glaring facts, which cannot be overlooked by the Court when the Court is called upon to exercise jurisdiction under Article 226 of the Constitution.

19. The question now is whether in the aforesaid circumstances, the petitioners having conceded to the NOC and/or having never assailed such NOC granted by the Board dated 6 June 2015, which admittedly pertains to the entire plot of land, which houses both the cessed building and the non-cessed building and when subsequent revised NOCs were granted by the Board dated 13 December 2021, the petitioners can at all be permitted to take a position otherwise, to stall the redevelopment on the limited contentions as noted hereinabove.

20. In our clear opinion, the petitioners can not be permitted to take such position, for the reasons that, on one hand, the petitioners accepted such NOCs issued by MHADA in favour of respondent no.4/owner, which was acted upon by the planning authority/MCGM in granting building permissions, and only thereafter the eviction action has been resorted against these petitioners as they were not cooperating in the re-development by vacating their respective tenements. Further to support non-cooperation and non-vacating of their tenements, the petitioners’ contention is based on a technical plea that Section 95A would be inapplicable to non-cessed building. The project is also being obstructed on the basis that the petitioners (who are minority tenants) are being granted lesser area by 45 sq. ft. in the permanent alternate accommodation being provided in duly constructed rehabilitation building. Except for such contention, there is no other contention which is urged to resist the eviction action being taken against the petitioners under Section 95A of the MHAD Act.

21. We may observe that the petitioners are existing tenants presently occupying tenements of an area of 162 to 170 sq. ft. who are now being provided tenements of a larger area of 405 sq.ft.. They seek an enhanced area of 45 sq. feet i.e. a tenement of 450 sq. feet in an already constructed rehabilitation building without any legal right to such assertion. As noted hereinabove, we are not given any answer which would support such contention of the petitioners in law, that the petitioners can claim such parity with the tenants of the cessed building.

22. Mr. Bobde’s contention that the petitioners are entitled to an enhanced area of 45 sq. feet also cannot be accepted, considering the scheme of Regulation 33(7) which provides for redevelopment of the old buildings which include the cessed buildings, as also a consolidated redevelopment of such nature which includes the non-cessed building. The petitioners’ right to occupy the tenements stems only under their respective tenancies. The complexion of rights arising under any tenancy agreement is purely contractual. Unless rights in regard to the entitlement of the petitioners to a tenement of 450 sq. ft. are recognized under law/any statutory provision, the petitioners cannot assert an entitlement to that effect and maintain such plea. We are not pointed out any statutory provision either under the MHAD Act or any Circular or Regulations or under the Development Control Regulations (DCPR-2034) and Regulation 33(7) whereunder, it would be mandatory for the owners / developers to grant a specific area of 450 sq.ft. to the tenants of a non-cessed building. In the absence of any such legal rights, it is difficult to accept the petitioner’s contention that merely because the petitioners are granted an area of 405 sq. ft. and/or not being granted tenements of 450 sq. ft., the petitioners would become entitled to resort to a coercive stand of not vacating their old tenements by not accepting such rehabilitation tenements being offered to them on ownership basis. In our opinion, such approach of the petitioners and being asserted at the advance stage of the project, is not only mischievous, but wholly untenable.

23. We may also observe that the petitioners were aware at all material times that the existing tenements which are non-cessed structures were always integral to the redevelopment being undertaken by the owners, as also that in the scheme of things, permanent alternate tenements are already constructed for the petitioners in the rehabilitation building, and that, the old building would be now required to be demolished, for the owners to construct a ‘free-sale building’ under the redevelopment scheme as permissible. Thus, the assertion of the petitioners for more area and the resistance to not vacate their existing tenements, more particularly, when majority of the tenants of the non-cessed building have vacated, looked from any angle, is untenable in law.

24. At this stage, we may observe that the MHAD Act 1976 (for short, “the Act”) was brought into effect on 5 December 1977, to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas, as the ‘long title’ of the Act would indicate. Thus, the object and intention of the legislation is also to facilitate redevelopment of old and dilapidated buildings and falling within the purview of the Act. It is not in dispute that when it comes to redevelopment of old cessed and non-cessed buildings, the provisions of the Development Control and Promotions Regulations for Greater Mumbai and more particularly Regulation 33(7) which we have adverted hereinabove, would become applicable. The petitioners, as noted hereinabove, have not assailed the project being undertaken under the provisions of DCPR 33(7). It is in such context the eviction action being resorted against the petitioners under the MHAD Act.

25. On the issue of jurisdiction in issuing the impugned order passed under Section 95-A of the MHAD Act, being the main plank of Mr. Bobde’s arguments, we may observe that on a perusal of Section 95A of the MHAD Act, it permits summary eviction of the occupiers in certain cases. The contention of Mr. Bobde is that Section 95A uses the word ‘building’, which has been defined under the definition clause Section 2(7) as the ‘cessed building’, and therefore, the Designated Officer of the Board would not have jurisdiction to pass an eviction order. We are unable to agree with Mr. Bobde and more particularly, considering the scheme of Section 95A. Sub-section (3) of Section 95A clearly provides that any person occupying “any premises”, “land, building” or “structure of the Board”, unauthorizedly or without specific written permission of the Board in this behalf shall, notwithstanding anything contained in Chapters VI and VII of the MHAD Act, be liable for summary eviction. Sub-section (4) provides that any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both. A holistic reading of the said provision is what Mr. Bobde’s argument overlooks. In the context in hand, Section 95A along with its sub-sections, in our opinion, are required to be read conjointly with the NOC granted by the MHADA on 6 June 2015 and the revised NOC dated 13 December 2021. Such NOCs in the statutory scheme are integral to the entire redevelopment which is encompassed under Regulation 33(7) of the DCPR 2034. The petitioners have certainly acquiesced in such NOC which concerns both the buildings i.e. it concerns the plot housing both the buildings. Section 95A includes its applicability to “land” and “building”. There is no challenge to the NOC in the present proceedings. The NOC is already acted upon i.e. a rehabilitation building has already been constructed as per the development permissions, which are granted to the owners. It is at such stage, now an objection to the jurisdiction of the Board in passing the impugned order under Section 95-A is being taken when the petitioners have acquiesced in such NOC granted by the MHADA, such position as taken by the petitioners in our opinion, would not entitle the petitioners for any reliefs.

26. The petitioners objections also cannot be accepted considering the holistic and purposeful reading of the statutory provisions as noted by us including the applicability of Section 95A, in respect of a cessed building, which in our opinion, would also include as in the peculiar circumstances as in the present case, of a consolidated redevelopment of the plot as a whole, for which an NOC was granted by MHADA, which housed both the cessed and the non-cessed buildings. Thus, accepting the petitioners case that too on the petitioners having acquiesced in the NOCs granted by MHADA and having permitted redevelopment to progress, which commenced in the year 2015, would result in rendering the entire statutory exercise undertaken by the different authorities, namely by respondent No.1 Board/MHADA and the Municipal Corporation, in granting appropriate permissions of no consequence. Thus, accepting the petitioners’ contention would result in an absurdity, defeating the statutory scheme pertaining to the redevelopment, which stands partially completed and all this merely for the reason, that the petitioners intend to have an increased area of 45 sq. ft. in the permanent alternate accommodation being offered to the petitioners by the owners.

27. Learned Counsel for the owners would be apposite in placing reliance on the Division Bench of this Court in Estella Fernandes Nee Estella Fernandes & Ors. Vs. Swarna Highrise Constructions & Anr. (supra) wherein speaking about the rights of the tenants, this Court has categorically observed that once the landlord guaranteed that the tenants would not be deprived of a permanent alternate accommodation, in lieu of their original premises, the tenants or occupants (including the minority or majority tenants) would not have any legal rights to dictate and/or foist on the landlord on the nature of the development being undertaken by the landlord, by demolishing the old and dilapidated buildings. The Court observed that if such assertion of the tenants/occupants is recognized, it would bring about a situation that the corporeal rights of the owners of the property would stand fully defeated. The Court also observed that in any event the tenants/ occupants cannot assert any higher rights being conferred on them in relation to redevelopment, unless expressly provided by the provisions of law. It was further held that the nature and character of the rights of the tenants do not alter, merely because redevelopment of the existing building is being undertaken by the landlord. As a sequel to this, it was held that the tenants/occupants cannot dictate their notions and any facet in that regard, on the redevelopment being undertaken, unless the law recognizes such rights or any say of the tenants. It was further held that it cannot be accepted to be any proposition of law that the rights of the owners to undertake development depends on the dictates of the tenants, when by providing an alternate tenement to the tenants, as per law is being recognised and protected by the landlord. In our opinion such observations as made by the Court, clearly apply to the facts of the present case, as the petitioners intend to dictate to the landlord that an higher area of 45 sq.ft. be granted and if not granted, the entire project would be brought to a ransom, by not vacating the existing structures, when in such assertion of the petitioners/tenants no legal right can be recognized.

28. Also in Maharashtra Housing and Area Development Authority (MHADA) vs. Smt. Rukmini Ramchandra Ambre & Ors. (supra) in the context of the NOC granted by MHADA permitting redevelopment of the land under Regulation 33(7) of the Development Control Regulations for Gr. Mumbai, 1991, a learned Single Judge of this Court has made the following observations:

29. Similar view was taken by the learned Single Judge in Shri. Ram Shairas Bajrangilal Dhobi & Ors. vs.

MHADA & Ors.[4]

30. Also the petitioners being the tenants cannot assert a higher right, in such capacity, than what has been conferred by Regulation 33(7) (3) which prescribes a minimum area of 300 sq. feet. Anything over and above such area to be granted depends on various factors on project to project basis, the category of tenants etc., and in the matters of an agreement which may be reached between the landlords and the tenants. Any dispute between the tenants and the landlords cannot be agitated in proceeding under Article 226 of the Constitution.

31. In the light of the above discussion, in our opinion, no case has been made out for interference. The petition is accordingly rejected. No costs.

32. At this stage Mr. Bobde, learned Counsel for the petitioners requests for continuation of the ad-interim protection. In the aforesaid circumstances, we are not inclined to extend the protection as urged on behalf of the petitioners, as it is causing serious prejudice to the redevelopment. However, we grant four weeks time to the petitioners to vacate their respective premises till such time the impugned eviction orders passed against the petitioners be not acted upon. (AARTI SATHE, J.) (G. S. KULKARNI, J.)