The Bombay High Court allowed a writ petition, filed on the ground that respondent no.3 who is only one tenant out of the majority of the 21 tenants, cannot obstruct the redevelopment in such condition as inserted in the IOD by the Municipal Corporation.
The Court observed that the rights of the owners of the property to undertake redevelopment of the manner and type they intend cannot be taken away by the tenants, minority or majority.
Brief Facts:
The petitioner, which is a Limited Liability Partnership firm, is the owner of land measuring 714.90 square meters. Earlier, there was a building standing on said plot of land, which had 21 tenants. Certain parts of the existing building had commercial tenements and partly residential tenements. The building had become dilapidated. A notice was issued by the respondent-Municipal Corporation of Greater Mumbai to the owners/occupants under Section 354 of the Mumbai Municipal Corporation Act, 1888. The building ultimately was demolished in August 2021.
The petitioner, in these circumstances, proposed to undertake redevelopment so as to construct a commercial building, which according to the petitioner was permissible as per the rules. It is not in dispute that except for respondent no.3, the other 20 tenants have no objection to the redevelopment being undertaken by the petitioner.
The next step for the petitioner was to obtain a commencement certificate; however, as respondent no.3 was objecting and refusing to enter into a Permanent Alternate Accommodation Agreement, and/or not issuing an NOC to the petitioner, the Municipal Corporation considering condition nos. 7 and 8 of the IOD refused to grant a commencement certificate to the petitioner.
Contentions of the Petitioner:
The Learned Counsel for the petitioner argued that at all relevant times, the petitioner was ready and willing to offer alternate premises, as also permanent alternate premises on an ownership basis to respondent no.3, similarly as offered to the other tenants. However, respondent no.3 on totally untenable reasons refused to accept such an offer as made to him.
Further, he submitted that respondent no.3 neither has any legal right, nor locus so as to dictate the course of redevelopment to be undertaken by the petitioner; such an approach on the part of respondent no.3 is untenable. Being a minority tenant, respondent no.3 cannot oppose and/or withhold the entire redevelopment.
Contentions of the Respondent:
The Learned Counsel for the respondent opposed the petition and argued that the Municipal Corporation can no more insist on compliance with condition nos. 7 and 8 of the IOD. The learned counsel for respondent no.3 argued that the petitioner cannot foist commercial premises on respondent no.3 when what was in occupation of respondent no.3 in the demolished building were residential premises, and for such reasons, municipal corporation was right in not issuing commencement certificate in favor of the petitioner.
Observations of the Court
The Court observed that the approach of respondent no.3 in the present case is most unreasonable and adamant, to say the least. Respondent no.3 in his capacity as a tenant has limited rights. Respondent No.3 within the ambit of such rights cannot dictate the petitioner-owner, as to the nature of redevelopment.
Thus, the Court remarked, tenants cannot take a position to foist, dominate and/or dictate to the owner the nature and the course of redevelopment the owner desires to have. The rights of the owners of the property to undertake redevelopment of the manner and type they intend cannot be taken away by the tenants, minority or majority.
The decision of the Court:
The Bombay High Court, allowing the petition, held that the approach of respondent no.3 in opposing the petition without laying an independent challenge itself is totally untenable.
Case Title: G M Heights LLP vs Municipal Corporation of Greater Mumbai & Ors.
Coram: Hon’ble Justice G. S. Kulkarni and Hon’ble Justice R. N. Laddha
Case no.: WRIT PETITION NO. 5302 OF 2022
Advocate for the Petitioner: Mr. G. S. Godbole
Advocate for the Respondents: Mr. Darshit K. Jain and Mr. Kunal Waghmare
Read Judgment @LatestLaws.com
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