Bombay HC allows stalled redevelopment of dilapidated cessed buildings in South Mumbai to proceed with 51% tenant consent

Cessed buildings are structures whose occupants pay a cess or repair fund. Largely located in south and central Mumbai, these pre-Independence-era buildings are maintained through structural repairs undertaken by housing authorities.

In July this year, the High Court had recorded MHADA’s statement that 889 such notices would be kept in abeyance and no action would be taken unless the parties consented to redevelopment and the process had progressed.

The Bombay High Court earlier this month permitted the housing authority to grant No-Objection Certificates (NOCs) for redevelopment proposals of several dilapidated and cessed buildings in South Mumbai, where landlords and over 51 per cent of the tenants have consented to reconstruction. These buildings had earlier been served redevelopment notices that were subsequently held to be illegal.

The court clarified that while it was making an exception for such buildings, this would be “in no manner” disturb the ongoing inquiry by a two-member committee headed by a former High Court judge. The committee is examining 935 notices issued last year by executive engineers of the Maharashtra Housing and Area Development Authority (MHADA) to acquire “dangerous and dilapidated” cessed buildings in south Mumbai for redevelopment in cases where owners or tenants failed to do so.

Cessed buildings are structures whose occupants pay a cess or repair fund. Largely located in south and central Mumbai, these pre-Independence-era buildings are maintained through structural repairs undertaken by housing authorities.

A division bench of Justices Girish S Kulkarni and Aarti A Sathe passed the order while hearing an interim application filed by MHADA in petitions challenging notices issued under Section 79-A of the MHADA Act by executive engineers of the Mumbai Building Repairs and Reconstruction Board (MBRRB), a unit of MHADA.

In July this year, the High Court had recorded MHADA’s statement that 889 such notices would be kept in abeyance and no action would be taken unless the parties consented to redevelopment and the process had progressed. The court had also noted that the committee comprising Justice (Retd) Devadhar and Vilas D Dongre, retired Principal District Judge, would examine all 935 notices and submit its report within six months. Notices not withdrawn by MHADA were stayed, with the court observing that those issued through a “colossal misuse of powers” would remain in abeyance.

In its December 5 order, the High Court noted that the committee had held several meetings and considered joint requests from landlords and tenants of buildings located at Walkeshwar, Gamdevi Road, Banganga Road, B G Kher Marg and Napean Sea Road in south Mumbai. In these cases, both parties intended to proceed with redevelopment and had secured consent from over 51 per cent of the tenants. The court was urged to make an exception despite notices having been issued under Section 79-A.

The bench observed that its July 28 order had “clearly kept some windows open to pave way in respect of premises where consent between landlord and tenants had progressed”, and that in such cases the notices “ought not to preclude the parties from otherwise progressing with redevelopment”.

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“Considering the just observations made by the Committee, and those cases where the tenants themselves have consented as also the landlord has expressed willingness to proceed for redevelopment, in our opinion, these are clear and undisputed positions arising from the consent of the parties, that the redevelopment needs to proceed,” the High Court noted.

However, while allowing MHADA’s interim plea, the bench reiterated that there could be “any denial as to what was held that issuance of notices in absence of building being declared to be dilapidated by the Brihanmumbai Municipal Corporation (BMC) was not permissible and amounted to illegality”. The court directed the committee to proceed with the inquiry and make an “endeavour to finalise” its report.