Mumbai: Passing an order in a redevelopment dispute, the Bombay High Court (HC) recently observed, “the party who is dispossessed, would be entitled to the transit rent as it is such party who is put to hardship.” The court directed the developer to pay transit rent to a tenant, residing in a flat in Vijay Niwas cooperative housing society in the city's suburb.
Justice Girish Kulkarni, last month, directed that the tenant, who is at present in possessionof theflat,begiven the transit rent ashe wouldhave tovacate the flat, thereby causing him hardship.
“The fact remains that as respondent no 3 (tenant) is in possession of the tenement in question and would now be handing over possession of such tenement to the petitioner/society. Hence, considering the consistent view taken by this court in similar cases, the party who is dispossessed, would be entitled to the transit rent as it's such party who is put to hardship,” remarked the HC, whilehearing a petitionfiled by the developer Maniar Associates LLP.
On July 6, 2021, a redevelopment agreement was signed between the Vijay Niwas society and the developer. According to the petition, there is a dispute between the owner of a flat on the ground floor of the building and the tenant. The owner has filed a suit in the civil court, alleging that the tenant is actually a trespasser hence he should be removed from the flat. The owner also sought that he be handed over the possession of his flat.The suitis atthe stage of recording evidence.
Advocates for the developer – Rohan Savant, Sneha Marjadi and Jay Vakil – informed the HC thatthe other 11 occupants have vacated the building. The building is in a dilapidated state and requires redevelopment. The developer prayed that it be given vacant possession of the disputed flat so that the redevelopment process can proceed further.
The court remarked that it is a settled position that “the minority members of the society can't take a position contrary to the will of the majority members of the society.” Advocates for the flat’s owner and the tenant agreed that the redevelopment process can't be stalled in view of the pending suit between these parties.
In order to end the stalemate, tenant’s advocates – Kunal Kumbhat and Dhawal Sangani – said that his client (tenant) was not averse to handing over possession of the said flat, but the same should be subject to the final outcome of suit before the civil court. He further contended that he should be given possession in the permanent alternate accommodation after the redevelopment is complete, which shall be subject to the final outcome of the suit.
The owner’s counsels – Shanay Shah, ZA Jariwala and Ganesh Ambekar – said that in case the city civil court rules in the tenant's favour then the transit rent along with the possession of the flat should be handed to him.
Noting that the contention is “fair and correct”, the courthas saidit'snot going to determine rights of either the owner or the tenant in the said flat, as the suit is pending before the civil court.
The HC also directed handing over the flat's possession to the developer within three weeks. Since the tenant has been residing at the flat, the developer has been ordered to pay the transit rent to him, which shall also be subject to any order by the civil court.
The court has also clarified that in the event the construction of the building is completed and the suitis still pending before the civil court then the flat in the redeveloped building shall be handed over to the tenant.
