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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep V. Marne, J.
Neo Builder and Developers and ors. – Appellants
Versus
Mr. Umesh Kantilal Parikh and ors. – Respondents
Appeal From Order No.533 of 2019 With Civil Application No.612 of 2019
Decided On : 06-12-2023
Rent Control Act - Dispute over redevelopment and allotment of alternate accommodation - Maharashtra Rent Control Act, 1999, Development Control Regulations for Greater Mumbai, 1991 - The court restrained the developers from alienating or transferring 5 flats in the new building with an aggregate area of 97.97 sq.mtr. and directed them to deposit transit rent. The court found that the developers were ready and willing to allot 3 flats equivalent to the area in occupation of the Plaintiffs in the old building. The liability for transit rent was restricted till the date of issuance of the part Occupancy Certificate. The Plaintiffs were directed to accept allotment and possession of the 3 flats offered by the developers without prejudice to their rights and contentions. The developers were ordered to pay transit rent to the Plaintiffs from April 2016 to the date of receipt of part occupancy certificate.
Fact of the Case:
Plaintiffs filed a suit against developers for failure to allot permanent alternate accommodation and non-payment of transit rent. The City Civil Court partly allowed the Notice of Motion by restraining the developers from alienating or transferring 5 flats and directing them to deposit transit rent. The Appellants filed an appeal challenging the order.
Finding of the Court:
The court found that the developers were ready and willing to allot 3 flats equivalent to the area in occupation of the Plaintiffs in the old building. The liability for transit rent was restricted till the date of issuance of the part Occupancy Certificate. The Plaintiffs were directed to accept allotment and possession of the 3 flats offered by the developers without prejudice to their rights and contentions. The developers were ordered to pay transit rent to the Plaintiffs from April 2016 to the date of receipt of part occupancy certificate.
Issues: Dispute over redevelopment and allotment of alternate accommodation, liability for transit rent, refusal of Plaintiffs to accept the 3 flats offered by the developers
Ratio Decidendi: The developers were ready and willing to allot 3 flats equivalent to the area in occupation of the Plaintiffs in the old building. The liability for transit rent was restricted till the date of issuance of the part Occupancy Certificate. The Plaintiffs were directed to accept allotment and possession of the 3 flats offered by the developers without prejudice to their rights and contentions. The developers were ordered to pay transit rent to the Plaintiffs from April 2016 to the date of receipt of part occupancy certificate.
Final Decision: The Appeal partly succeeded, and the order of the City Civil Court was set aside. The developers were directed to offer allotment and possession of 3 flats to the Plaintiffs and pay transit rent from April 2016 to the date of receipt of part occupancy certificate. The hearing of the Suit was expedited, and the City Civil Court was instructed to decide the suit as expeditiously as possible.
JUDGMENT :
1. Admit. With the consent of the learned counsel for parties, the appeal is taken up for hearing.
2. The Appeal is filed challenging the order dated 30 October 2018 passed by the City Civil Court partly allowing Notice of Motion No.1476/2018 filed by Respondent Nos. 1 to 4/Original Plaintiffs. By the order impugned in the Appeal, the City Civil Court has restrained the Appellants from alienating or transferring or parting with possession of 5 flats in the new building with the aggregate area equal to 97.97 sq.mtr. The City Civil Court has further directed Defendant Nos.1 and 2 to deposit sum towards temporary alternate accommodation at the rate of Rs.130/-per sq.ft. from the month of April 2018 onwards during pendency of suit or till handing over possession of permanent alternate accommodation.
3. Plaintiffs were occupants and tenants of Room Nos.1, 2, 3 and 8 on 1st floor of the building ‘Mani Bhavan’ situated at 81/83, Nanubhai Desai Road, Girgaon Division, ‘D’ Ward, Mumbai – 400 004. Defendant Nos.1 to 3 are developers who are developing the building ‘Mani Bhavan’. For redevelopment of the building, Permanent Alternate Accommodation Agreement (PAAA) dated 08 July 2010 came to be executed with the Plaintiffs. It appears that total area in occupation of the Plaintiffs in the building Mani Bhavan was 80.39 sq.mtr. (carpet area) which is equivalent to 97.97 sq.mtr. built up area. Plaintiffs are aggrieved by failure on the part of Defendant Nos.1 to 3 to allot permanent alternate accommodation with built up area of 97.97 sq.mtr. and additional area out of fungible FSI sanctioned to the developers in respect of Plaintiff’s old premises. Plaintiffs are also aggrieved by non-payment of transit rent as per PAAA executed with them. With these grievances, the Plaintiffs have filed Suit No.2588/2018 before the City Civil Court. In their Suit, Plaintiffs filed Notice of Motion No.1476/2018 for grant of temporary injunction. By order dated 30 October 2018, the City Civil Court has partly allowed Notice of Motion No.1476/2018 by passing the following order :
(i) By way of temporary injunction, pending the hearing and disposal of the suit, the defendants No.1 to 3 are restrained from alienating or transferring or parting with possession of at least 5 flats in the new building, the aggregate area of which should be equal to 97.97 sq. mtr. or more, to any third party.
(ii) The defendants No.1 and 2 shall deposit in Court the sum towards temporary alternate accommodation as per clause (3) of the Permanent Alternate Accommodation dated 08.07.2010 at the rate of Rs.130 per square feet from the month of April 2018 onwards, pending the hearing and disposal of the suit or till possession of the permanent alternate accommodation is handed over to the plaintiffs or till further orders of the Court, whichever occurs first.
(iii) Rest of the prayers in the Notice of Motion shall stand rejected.
(iv) The Notice of Motion stands dismissed as against defendants No.4, 5 and 6.
(v) In these terms, the Notice of Motion stands disposed of accordingly.”
4. Appellants are aggrieved by order dated 30 October 2018 passed by the City Civil Court and have filed the present Appeal.
5. Mr. Naphade would appear on behalf of the Appellants and submit that the City Civil Court has erred in passing the impugned order despite readiness and willingness on the part of the developers to allot permanent alternate accommodation of area in occupation of Plaintiffs in old structure i.e. 80.39 sq. mtr. carpet (97.97 sq.mtr. built up). Placing reliance on the provisions of Section 16 of the Maharashtra Rent Control Act, 1999 and Development Control Regulations for Greater Mumbai, 1991, Mr. Naphade would submit that the statutory entitlement of tenants is to receive an area equivalent to the one in
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