Tenants in cessed buildings must get 405 sq ft rehab flats: Bombay HC, ET RealEstate

October 26, 2023

MUMBAI: The Bombay high court in a significant ruling on Monday affirmed that tenants in cessed buildings are eligible to get 405 sq ft carpet area for their rehab flat.

In a writ petition, 59 residents of Mohamed Tajbhai chawl, Worli, challenged the developer Oricon Properties Pvt Ltd’s decision to provide them 351 sq ft carpet area. The chawl is being redeveloped under Section 33(7) of the Development Control and Promotion Regulations, (DCPR) 2034.

Armed with building plans obtained through RTI Act in 2015, the residents approached HC seeking larger rehab flats as provided under DCPR, a parking lot for every four rehab flats and increase in amenity open space that the municipal commissioner had reduced from 20% to 8%.

The advocate for petitioners said the builder had misled tenants by saying it was not possible to give 405 sq ft flats as he was paying for fungible FSI towards providing 51 sq ft carpet area over and above the required 300 sq ft and balance part of fungible FSI for rehab buildings would be used for construction of common areas like staircase, lift, lobbies.

When the residents sought legal advice, they found that as per Regulation No. 35(2), DCR 1991, the staircase, lift and lobbies are not counted in the FSI, so balance portion of fungible FSI cannot be used for that. Further, they relied on architects’ certificate that in redevelopment of cessed buildings, entitlement for an eligible tenant is 405 sq ft carpet area.

The advocate for the petitioners said the plan indicated 35% fungible area will be exploited by the developer for the redevelopment scheme. The 35% fungible area on 300 sq ft area is 105 sq ft. Hence the tenants are entitled to 405 sq ft.

Also, sanction granted by civic chief in May 2014 stated staircase, lift and lobby are free of FSI. He said while the FSI was increased from 2 to 3, the amenity open space had been reduced from 20% to 8%.

The advocate for the developer argued there was gross delay in filing of petition and 198 tenants had granted consent. Besides, tenants were residing in premises less than 150 sq ft. Under 33(7), tenants were entitled to only 300 sq ft while the developer was providing 51 sq ft more, he said.

The division bench of Justice Sunil Shukre and Justice Rajesh Patil observed, “There is no doubt the tenants are eligible to get carpet area in rehab building of 300 sq ft + 105 sq ft (35% compensatory fungible FSI). The argument of the developer has no legal sanctity.”

The HC said the tenants were entitled to one parking area for every four tenements “which may be available to them within eight weeks.” On the civic chief reducing amenity open space, the HC directed the matter be re-heard.

  • Published On Oct 26, 2023 at 08:23 AM IST

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