Tenants of non-cessed buildings cannot resist eviction under Maharashtra Housing Act based on perceived rights for larger accommodations unless provided by law.

JUDGMENT :

G. S. Kulkarni, J.

1. Rule returnable forthwith. Respondents waive service. By consent of parties, heard finally.

2. The petitioners in this petition filed under Article 226 of the Constitution of India, are tenants of an old structure/building (for short, ‘the said building’) which was constructed prior to 1940, described as “Irani Chawl” situated at Prabhadevi, Mumbai, on final Plot No.1120 of TPS/IV, Mahim Division, Mumbai. It is not in dispute that the plot of land on which this building is situated, has a companion building. The companion building is a cessed building,   being categorized under the provisions of the Maharashtra Housing and Area Development Act, 1976 (for short ‘MHAD Act’) on which cess is paid for its repairs to be undertaken by respondent No.1 – Mumbai Building Repair and Reconstruction Board (for short “the Board”). However, the building with which the petitioners are concerned is a non-cessed building.

3. Respondent No.4 – M/s Hill Park Properties Pvt. Ltd. is the owner of the land as also of these two buildings (for short, ‘the owner’). The owner intended to undertake redevelopment as both these buildings had become old and dilapidated. There are total 62 tenements in both the buildings. Admittedly, out of 62 tenants/tenements, except the petitioners who are 15 in number, all the tenants have vacated their respective tenements and/or have accepted the redevelopment being undertaken by the owners.

4. Insofar as these two buildings are concerned, the cessed building was constructed in the year 1959 and hence the repairs, if any, to this building would be undertaken by the Board. The building in regard to which the present proceedings are concerned is a non-cessed building, in respect of which it would not be the responsibility of the MHADA to undertake repairs etc. In other words, being a non-cessed building, it is the obligation of the owners to undertake repairs of this building. The owners, however, could approach respondent Nos.1 and 2 – the Board / MHADA for grant of an NOC to undertake the redevelopment of the said land being final plot No.1120 which houses both these buildings. The owners accordingly submitted a redevelopment   proposal to the Board. In pursuance of such redevelopment proposal, an NOC dated 6 June 2015 was granted by the Chief Officer of the Board in favour of the owner. From the contents of the NOC, it is clear that it was granted for redevelopment of “the property” being final plot No.1120 of TPS-IV as described in the title which houses the two buildings. The NOC reads thus:

“Sub:- Redevelopment of property at F.P.No.1120 of TPS-IV, Mahim Divn, Building No.7-B, bearing Cess No.GS/2953 (4-5), situated at Murari Ghag Marg, Prabhadevi, Mumbai-400025 Known as ‘Irani Chawl’.”

5. The relevant extract of the NOC granted by the Board is required to be noted which reads thus:-

“ With reference to the above subject matter and letter under reference “No Objection Certificate” is hereby granted for redevelopment of “captioned property” with FSI 2.5 or the FSI required for rehabilitation of existing occupiers – plus 50% incentive FSI, whichever is higher, for portion of plot affected by CRZ in accordance with the earlier D.C. Regulation 33(7) and Appendix – III to this Regulation 33(7) .............

..................For portion of cess building affected by CRZ the maximum carpet area of 70 sq. mt. (753 sq.ft) as provided in the MH&AD Act, 1976 shall be provided to the occupants. ......…”

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20 . The Board will not be held responsible for certifying the Built up area of non-cessed structures if any on the sa