Cess and Dilapidated Buildings in Mumbai requires an urgent attention
By Rajendra Singhvi , Advocate High Court
In the State of Maharashtra where there is law to protect the slum dwellers/ encroaches. Where there is law to protect tenants of cessed and or dilapidated building in island city there is no policy or governing body for protection to the tenants/occupants of dilapidated or demolished buildings in suburbs and extended suburbs of Mumbai city.
The dream to make Mumbai as Shanghai was in Toto i.e. both inland city and suburbs. Several modifications were made to the policy of Development Control Regulations for Greater Bombay, 1991 33(7), (9) and (10) with the said object however the benefit of the same has remained confined to Inland city only. It seems that the government is discrimination between the Inland City and suburbs and extended suburbs.
One of the major object under Rule 33(7), (9) and (10) of Development Control Regulation, 1991 (DCR) is the rehabilitation of tenants/occupants and or slum dwellers. Thus there is protection of redevelopment, temporary accommodation by way of rent or transit and even corpus to the tenants of Inland City. Surprisingly, even the slum dwellers who is just an encroacher is also protected and is having benefit of rehabilitation temporary accommodation by way of rent or transit and even corpus both in inland city as well as suburbs and extended suburbs, but there is no statute or policy for the protection of tenants in suburbs or extended suburbs. Due to lack of any proper law and or protection the tenants are exploited and or are left at the mercy of landlords and or developer. Even the court of laws is helpless in absence of proper law or policy.
Section 354 of MMC Act an arm twister: It is a very common practice adopted by the landlords / developers when they are unable to obtain consent and agreements of tenants at their terms they stop maintaining the structure and then approach MCGM and procure notice U/s. 354 of MMC Act. Since the notice U/s. 354 is a precautionary notice and can be issued in anticipation of the building being dilapidated conditions MCGM does not mind issuing the same. Once the notice is issued the landlords/ developers approach the small causes court U/s. 507 of MMC Act. As per practice structural report is obtained which usually will support the cause of notice and concludes saying that the structure has outlived its life and should be pull down. Thus usually the report of structural engineer will support the notice issued by BMC. The small cause’s court usually passes orders for implementation of notice. As even the court will not like to take the burden of risk of setting aside the notice. Simultaneously the developer/ landlords who are usually influential personal starts approaching their puppet tenants and the policy of divide and rule comes into play. The sole object is that the 70% tenants submit to the demands of the landlords. Since there is no law or policy or minimum benchmark criteria like 33(7), (9) of (10) the landlords dictate the terms as is suitable to them. Once majority though unwillingly submits to the terms of landlords/ developers there is hardly any scope available to the minority tenants who are willing to fight right. There are several judgements which states that the minorities cannot oppose redevelopment/reconstruction. At times the tenants are forced to stay at their own cost for several years and still the permanent accommodation is not made available to them. Once the property is vacated and demolished the developers / landlords are least concerned to commence the construction work as they are not incurring any cost and there is no effective law or policy to force them to commence and complete the construction work in a time bound manner. As discussed this is an arm twister and a law with great powers in the hands of landlords/developers, Corporation and police to evict the tenant from his tenanted premises. But there is no act or policy to protect the interest of tenants especially in suburbs and extended suburbs. The protection to the tenant under section 16, 17 and 18 of Maharashtra Rent Control Act, 1999 are also inadequate.
A) Some of the relevant judgement on the matter:
- In APPEAL FROM ORDER (Stamp) NO. 23627 OF 2013 filed by one Smt. Esther Manickam against MCGM and Ors., decided on September 27, 2013:
In this matter the Hon’ble High Court has directed the sole tenant to vacate the tenanted premises in her occupation within one month. The Matter sails to High Court from City Civil Court against the Notice U/s. 354 of MMC Act issued by MCGM to pull down the premises of Tenant at ground floor of Ruia Building situated at Military Road, Juhu, Mumbai. The said notice came to be challenged in Suit mainly on the ground that alternate accommodation be provided on the suit land. Other 13 tenants occupying the said building had vacated their premises under consent terms against compensation @ of Rs. 28000 per Sq. Ft. The Landlords in the matter had offered a lumpsum consideration of Rs. 1 Cr. to vacate the premises. The landlord desired to pull down the building as the same was in dilapidated condition. It was clear that the Tenant has basically no objection, if landlords proceed with the reconstruction and/or pull down the building, but the main prayer in the Suit as well as in the Notice of Motion and also in an application filed in Appeal from Order dated 26 August 2013, is to direct Respondent No.2 to enter into an agreement with the Appellant for permanent alternate accommodation in the reconstructed building in lieu of suit premises. The landlord was not willing to enter into any agreement but was willing to settle the matter on same terms as had been done with other tenants. It was observed that the owner of the property who is entitled to deal with the property. Even otherwise, tenants cannot object to transfer and/or even to create third party rights or interest in such property by the landlord. The owner, therefore, if wants to develop the property, but for want of insistence to have permanent alternate accommodation in the same premises, the suit is filed and also opposing and creating hurdle to the whole project, is entitled to oppose the action of the tenant. The insistence of tenant to have an alternate permanent accommodation on the same plot which Landlord is not willing for various reasons was also recorded. Further the court observed that Court cannot compel Landlord to have a settlement and/or agreement as sought to be contended and prayed by the Tenant. Accordingly the appeal came to be dismissed. Thus the Tenant had to surrender her right to landlord.
- In WRIT PETITION NO. 3864 OF 2013 Filled by Ketan H. Parikh and Ors. Against Khemraj D. Udeshi and Ors., Decided on MAY 9, 2013:
In this matter a Municipal Application came to be filled by Landlord before the Additional Chief Judge of the Small Causes Court, Mumbai seeking direction against tenants whereby directing them to afford all reasonable facility (inclusive of vacating) to the Landlords for compliance of notice under section 354 of MMC Act, issued by MCGM. Application came to be allowed by the Small Causes Court vide order dated 2-3-2013 and the same was challenged in writ. It was observed by the court that the building is in dilapidated condition and is being demolished to construct a new building. The landlords filed an undertaking stating that the each of the tenants will be given an equal area after reconstruction as is in occupation and the same will be given on ownership basis. It was further observed that the tenants would be benefited as they will be given ownership of accommodation and will be staying in new building. Further it was observed that the interest of the tenants would be sufficiently safeguarded and undertaking filed by the landlords was accepted. The petition came to be disposed off. Subsequently the Order got modified in Supreme Court and equal treatment to all the tenants was granted.
- In the case of Sanjali Sanjay Kadu vs. State of Maharashtra reported in AIR 2008 (6) Bom. R. 841 = 2008 (5) Bom. C. R. 306, the Division Bench has taken the view that the minority occupants cannot oppose redevelopment when the same is in the interest of all the occupants and the larger public interest requires that such redevelopment should take place.
- Gajanan Ramraoji Ambagovind & Ors. vs. Corporation of the City of Nagpur & Ors. Reported in 2006(6) Bom.C.R. 413 which has taken the view that the Commissioner can act if danger to building appears imminent. However, only because the building appears to be in dilapidated condition, cannot be sufficient to order its demolition.
- In the case of M/s.Whiz Enterprises Private Ltd. vs. State of Maharashtra, Original Side Writ Petition (Lodging) No.28 of 2009 decided on 30.6.2009. The Division Bench of Bombay High Court directed the Corporation to take the notice issued u/s 354 of the said Act to its logical end in accordance with law forthwith.
- In the case of The Tadeshwar Wadi Co-operative Housing Society Ltd. Vs.The State of Maharashtra and ors. Original Side WRIT PETITION NO.2403 OF 2012 decided on 8-2-2013, the Division Bench of Bombay High Court directed the Corporation to take the notice issued u/s 354 of the said Act to its logical end in accordance with law forthwith and in doing so, may take assistance of the local police authorities, who are obliged to provide all logistical support to the officials of the Corporation.
- In the case of MRS. U. SARASWATI SRIDHAR v/s. BRIHANMUMBAI MUNICIPA L CORPORATION AND ANOTHER Original Side Writ petition No. 378 of 2010 vide interim order dated 11-3-2010 the Division Bench of Bombay High Court observed that the building was reconstructed sometime in June 1982, it is impossible to imagine that unless some sub-standard material was used, the building would have a shell life of 26 years. In these circumstances, we direct the Deputy Municipal Commissioner to file an affidavit explaining as to how a shell life of new building can only be 26 years and all other details which may be necessary.
- In APPEAL FROM ORDER NO. 1452 OF 2013 filed by one Bhavesh R. Solanki against MCGM and Ors., wherein interim orders passed on December 24, 2013: it is observed by the Justice Anoop V. Mohta that the corporation once issues notice to the owner to demolish the alleged dilapidated condition building, this is always with a rider to provide tenants/ occupants alternate accommodation/ temporary or permanent. It was also observed that the Developer is under obligation even other wise to provide them alternate accommodation.
- In Writ Peition (Stamp) NO. 1135 OF 2014 filed by MCGM against State of Maharashtra Ors., Division Bench of Bombay High Court presided by Hon’ble Justice Shri. Anoop V. Mohta and A.A. Sayed passed an order on : 23-6-2014
In this matter the MCGM had sought the intervention of Hon’ble High Court and sought reliefs against State government and Police Personnel to take steps for forcible eviction of the occupants of dilapidate and dangerous buildings and after considering the fact that since there is no policy and in absence of any policy certain guidelines were issued and the same are as under:
a. The present order will be applicable only in respect of those buildings which are highly dilapidated and dangerous and/or classified in Category C1 by the Corporation, whether owned by a private party or by the Corporation or any other authority and in respect of which building, either a notice under section 354 has been issued or the Corporation has issued a Letter of Evacuation to their tenants and/or occupiers of the buildings.
b. The Corporation will, before classifying a building under category C1, conduct their own independent inspection and assessment with the help of the Engineers of their Department and carry out a survey of such building(s). The report of Structural Audit shall be taken into account.
c. The Corporation shall consider the report of Structural Engineer appointed by the owners and/or occupants classifying the building as dilapidated and dangerous. If the owners and/or the occupants bring conflicting reports on the status of the building, the Corporation shall refer the matter to Technical Advisory Committee (TAC) under the Chairmanship of Director (ES&P) with at least 3 other members, viz. City Engineer, Chief Engineer (DP) and Chief Engineer (P&D).
d. The TAC shall:
i. Carry out a visual inspection of the state of the internal and external plaster, plumbing, drainage, whether the doors and windows close properly, whether steel in columns is exposed, whether there is settlement in the foundation, deflections/ sagging, major cracks in columns/beams, seepages/leakages, staircase area and column condition, lift well walls, U.G. tank, O.H. tank column condition, parapet at terraces, chhajas, common areas, terrace water proofing.
ii. Carry out specific tests like ultrasonic pulse velocity test, rebound hammer test, half cell potential test, carbonation depth test, core test, chemical analysis, cement aggregate ratio as may be considered by TAC as necessary.
e. If it is found after due notice that the building(s) is in a highly dangerous or in dilapidated condition, then in that event, the Corporation shall also make a list of the names of the tenants and/or occupiers in the said building and the carpet area of the premises in their respective occupation and possession including the floor at which the same has been occupied.
f. A copy of such list will be furnished to the landlord and/or owner/builder of the said building. The Corporation thereafter, will issue a notice under section 354 of the said Act calling upon such tenants and/or occupiers to vacate the said premises and if such notice under section 354 of the said Act has already been issued, then in that event the Corporation will give 7 days’ notice to such tenants/occupiers, copies whereof will be furnished to the landlord for vacating the said building(s). If such tenant and/or occupier is not available, the Corporation shall affix such notice or Letter of Evacuation on any part of such premises.
g. The Corporation shall then take steps to turn off the water, supply, electric power and gas to such building immediately before the removal of occupiers.
h. In the case of a municipal owned building(s), the Corporation will issue Letter of Evacuation to every person in occupation of the said building or part thereof to vacate the said building along with their belongings within the said period of 7 days from date of issuance of such notice of Letter of Evacuation in respect of municipal owned building(s). The notice issued to such occupiers shall contain the name of the occupier and the area in his occupation and also the floor at which the premises are located. In case, if such tenant and/or occupier is not available, the Corporation shall affix such notice or Letter of Evacuation on any part of such premises.
i. In the event, a person occupying such tenement whether of the privately owned building(s) or building(s) owned by Corporation or any other authority refuses to vacate the said premises, then the police shall remove such person from the said premises by using nominal force if required for the same.
j. The police may use such force as is reasonably necessary to remove such person and/or occupiers and/or allottee along with their belongings from the said premises, without causing damage to their movables.
k. The Corporation may then demolish such dangerous and dilapidated building.
l. The rights of the tenants and/or occupiers and/or owners in respect of the said premises/property will not be affected by virtue of evacuation or demolition carried out by the Corporation of such dilapidated and dangerous building in exercise of the power under section 354 of the said Act or by virtue of the fact that the Corporation is the owner of the premises. Such tenant and/or occupier and/or owner will be entitled to reoccupy the premises in respect of the same area after the reconstruction of the building, subject to the prevalent provisions of law pertaining to redevelopment of the property or subject to any arrangement or agreement arrived at by and between such tenants and/or occupiers with the owner of the building. Any action of evacuation/removal/demolition will not affect the inter se rights of owners if there be more than one owner or there is a dispute as to the title of the property.
m. If there are any pending suits/proceedings and there are any restraint orders passed, the Corporation shall be free to apply for vacating and/or modifying such orders, which applications shall be decided on its own merits and in accordance with law.
n. In respect of the Municipal buildings, it shall be the duty of the Corporation to provide alternate accommodation as early as possible in any of their premises to such tenant and/or occupier of the Corporation owned building till and until the said building is reconstructed by the Corporation or the tenancy of any of such occupier is determined in accordance with law.
o. In respect of the private owned buildings, if such building falls in cessed category as contemplated under the provisions of the Maharashtra Housing and Area Development Act, 1976, then in that event, it will be the duty of MHADA/ MBR&RB to provide temporary alternate arrangement in a transit camp for transit accommodation, in accordance with law, as early as possible.
p. In case privately owned buildings are demolished by the Corporation in exercise of power under Section 354 read with the present order, then the Corporation shall, while granting sanction of redevelopment, impose a condition in IOD (Intimation of Disapproval) that no Commencement Certificate will be issued under section 45 of the MRTP Act, 1966 unless and until an Agreement either providing a Permanent Alternate Accommodation in a newly constructed building or a settlement is arrived at by and between the tenants and/or occupiers and the landlord in respect of the said demolished premises, is filed with the Corporation at the earliest.
q. In case of buildings which have suddenly collapsed, to determine the reasons for such collapse, it is desirable that forthwith a Committee be constituted headed by a former Municipal Commissioner and consisting of Former Chief Engineer of MHADA alongwith a Professor of VJTI and a Professor of IIT, Powai having expertise in Structural Engineering as also an employee of the Corporation, holding a post not lower than that of the Director (E.S.&P.) and such Committee will determine the cause of such collapse and interalia identify whether any Architect and/or Consultant and/or Municipal officers or other person/s is/are responsible in any manner whatsoever for such a collapse. The reference to the Committee will not in any way be a hindrance in the criminal investigations/proceedings that may have commenced or may be commenced under the relevant criminal law. This no way would restrict the State of Maharashtra to pass appropriate order for any such inquiry or investigation.
Besides above guidelines Hon’ble High Court has also observed that :
“the rights and the contentions of the other parties to raise and/or agitate distinctive and individual pleas/issues of their respective matters separately, are kept open. All the aggrieved parties shall be at liberty to approach the Court in case any clarification is required. Pendency of this Petition would not preclude the State Government to come out with appropriate policy to address the grievances of the tenants/occupiers or for that matter, the owners thereof.”
Thus even the Hon’ble High Court is of the view that the appropriate policy be framed to protect the rights of tenants/ occupants.
B) In the circumstances immediate steps are desired against following problems faced by the Tenants / occupants of old and dilapidated and or demolished buildings in suburbs and extended suburbs:
- Landlords / developers do not give temporary transit or rent during the construction period.
- Landlords / developers do not give corpus and or hardship allowance to meet the escalation in maintenance charges in new building.
- Landlords / developers do not give premises to the tenants in the new building on ownership basis and continue them as tenants.
- Landlords / developers do not give any extra area or even pass on the benefit of fungible FSI which is otherwise available free of cost. Many times the proposed area is even less than existing area in occupation of tenants.
- Landlords / developers converts their fungible FSI of tenants for their free sale component.
- There is no minimum area defined for residential tenants also. Thus landlords construct units of 150 Sq. Ft. or 180 Sq. Ft. for residential purpose which does not even match the minimum area available to even slum dwellers.
- There is no time line defined and tenants are forced to wait and stay at their own cost for indefinite period.
- Many times the landlords/ developers do not provide any accommodation and tenants are forced to surrender their rights for peanuts.
- There is no governing body to monitor the conduct and acts of landlords/ developers like MHADA/SRA.
- Limited bargaining and holding powers of tenants for various reasons which includes financial resources, want of unity, lack of knowledge and awareness etc.
- Tenants are Displacement of their homes and their lives becomes mess and are put to great hardship after the structure is demolished and during the construction period which usually exceeds over a period of 5 years.
Accommodation times is pursuing the matter with Hon’ble Chief Minister of Maharashtra and other concerned departments to look into the matter and to issue appropriate policy/guidelines for redevelopment of buildings occupied by tenants in suburbs and extended suburbs of Mumbai and to control the problems faced by the tenants.