The Bombay High Court has declared that clause 1.15 of the 2018 Guidelines issued by the BMC for declaring private and municipal buildings as “C-1 category (dangerous or unsafe)” does not mandate obtaining consent/ agreement from all (100%) tenants/ occupants.
It further observed that consent of 51-70% of the occupants/ tenants of the building, as applicable to the proposals made under Development Control and Promotion Regulation (DCPR)-2034, shall amount to sufficient compliance for processing development/ redevelopment proposal, for a commencement certificate (CC) to be issued.
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Raj & Jain Ahuja moved court after BMC refused to grant CC for redvpt of a building saying all occupants have not agreed to sign PAAA
A bench of Justices Girish Kulkarni and RN Laddha was hearing a petition by developers Raj Ahuja and Jain Ahuja, challenging clause 1.15. They had approached the court after the BMC refused to grant CC saying that they had not signed a permanent alternate accommodation agreement (PAAA) with all the tenants.
“In our clear opinion, it was arbitrary for the MCGM to insist from the petitioners (developers), consent of 100% of the tenants and in its absence withhold the CC…,” said the bench.
Developers contended that not always will 100% tenants will agree to redvpt
Challenging the constitutional validity of the clause, the developers contended that it may not be always conceivable that 100% tenants agree to redevelopment. Having such a pre-condition would create serious consequences, including the project being brought to a standstill by a minority/minuscule number of tenants or members of a co-operative society.
However, the BMC justified the guidelines, stating that it’s incumbent on the corporation to safeguard the interest of the tenants.
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HC's observation in the matter
The judges emphasised, “It is a settled position in law that the interest of the minority occupants/tenants cannot be opposed to the interest of the majority occupants, as also such persons cannot foist on the owners a delay in commencement of the redevelopment work, resulting in the project cost being increased, which would be seriously prejudicial to the owners/developers and above all the majority of the occupants.”