Day by day, with the clock ticking, the desperation of occupants of cessed buildings only worsens. The cost of the loss of time, money and human effort, especially in cases where there is broad agreement on the laws, is colossal.
ON September 8, 2020, the Maharashtra State Assembly passed a bill amending the Maharashtra Housing and Area Development Act, 1976 to protect the interests of residents of dilapidated and “cessed” buildings. Clause ‘a-1’ came to be added to Section 77 of the principal Act providing for the Maharashtra Housing and Area Development Authority (‘MHADA’) to undertake redevelopment of incomplete or stalled projects, the procedure for which has been laid down in the newly added Section 91-A.
A new Section 79–A was also introduced that lays down the procedure for redevelopment in case of buildings declared ‘dangerous’ by the Mumbai Municipal Corporation or a competent authority.
According to the state government, there are nearly 16,000 buildings which fall in the category of cessed buildings in Mumbai. In spite of the declaration of cess buildings as dangerous by the Mumbai Municipal Corporation, the redevelopment of these buildings have not been taken up on priority by owners.
Amendments were also made to Section 95–A of the principal Act, reducing the requirement of written consent of occupier to the proposal for reconstruction by MHADA from 70 per cent to 51 per cent. Further provision is made for payment of rent to the occupants in lieu of temporary accommodation.
An amendment was also made to Section 95-A(3) for shifting of an unauthorised occupant to a Board Transit Camp, wherever available, as an alternative to summary eviction. The Governor had approved these amendments, which merely awaits the President’s assent to be declared an Act.
According to the state government, there are nearly 16,000 buildings which fall in the category of cessed buildings in Mumbai. In spite of the declaration of cess buildings as dangerous by the Mumbai Municipal Corporation under Section 354 of the Mumbai Municipal Corporation Act, the redevelopment of these buildings have not been taken up on priority by owners. In some cases, the owners/developers have not commenced work beyond three years even after receipt of a No Objection Certificate (‘NOC’), and have breached the terms of the NOC in relation to payment of rent and/or providing temporary alternative accommodation to the tenants/occupants. The proposed amendment is an attempt to tackle this menace and secure the rights of the helpless tenants/occupants of cess buildings.
Numerous proceedings are pending at various courts against owners/developers of these cessed buildings for breach of the NOC or for not fulfilling their obligations of redevelopment. In one such case, a writ petition was filed before the Bombay High Court, being Writ Petition No. 547 of 2017, since the petitioner has been awaiting redevelopment of his cessed building since 2009.
How proceedings have dragged on at Bombay High Court
In spite of multiple directions and orders passed by the Bombay High Court, the developer till date has failed to comply with the directions and complete redevelopment of the building. The tenants are displaced without any rent compensation and temporary alternate accommodation. During hearing of the said writ petition, the advocate for the petitioner submitted that the Maharashtra Housing and Area Development (Amendment) Bill, 2020 provides favourable reliefs to tenants/occupiers like the petitioner; however, it has not received the status of an Act.
Therefore, on October 1, 2021, a division bench of the Justices Ujjal Bhuyan and Madhav J. Jamdar, after considering the submissions of the advocate for MHADA and the assistant government pleader, opined that the presence of the Additional Solicitor General, Anil Singh would be helpful in the matter to seek clarification on the status of the President’s Assent. Thereafter, Singh appeared before the bench and submitted a note in a sealed cover, after which the bench, by its order dated October 8, 2021, observed that the process is underway.
Subsequently numerous petitions came to be tagged along with this writ petition. On December 20, 2021, the matter came to be listed before a division bench of Justices A.A. Sayed and Abhay Ahuja. During the hearing, the assistant government pleader submitted that certain further clarifications were sought by the Union Ministry of Law and Justice, and the said clarifications would be answered by the state government within four weeks from that day.
Thereafter on February 8, the assistant government pleader placed on record a copy of the letter dated January 24 written by the Principal Secretary, Housing Department, Government of Maharashtra to the Under Secretary, Union Ministry of Home Affairs, and the office of the Additional Solicitor General sought time to take instructions. On March 8, the bench was informed that the matter is pending before the Union Ministry of Law and Justice. The bench therefore ordered that an affidavit be filed by the Ministry on the further course of action it proposed to take.
However, till date no such affidavit has been filed by the Ministry. Thereafter on April 5, a copy of the letter dated March 22 of the Union Ministry of Home Affairs addressed to the Principal Secretary, Housing Department of the state government was placed before the bench, and the assistant government pleader sought time to take instructions. Thereafter, on April 25, the counsel for the Union Government placed on record a letter dated March 30 before a division bench of Justices R.P. Mohite-Dere and Madhav J. Jamdar, which was sent by the Under Secretary to the union government and to the Additional Solicitor General.
The order of that date records that “[i]n the said letter in paragraph 3 it is stated that after the completion of inter-ministerial consultation, Ministry of Home Affairs processes the Bill alongwith comments of the nodal Ministries, for the consideration of the Hon’ble President of India for according his assent to the Bill/withholding his assent to the Bill/returning the Bill with Presidential Message.”
In spite of multiple directions and orders passed by the Bombay High Court, the developer till date has failed to comply with the directions and complete redevelopment of the building.
It was further submitted before the court that the Ministry has requested to take up the matter for filing of affidavit with Union Ministry of Law and Justice’s Department of Legal Affairs, and that the Ministry has called the concerned officers to discuss the matter with the Additional Secretary, Department of Legal Affairs vide the said letter. Time was sought by the counsel for the union government.
In the last eight months after the passing of the order dated October 8, 2021, the matter has been listed on six dates and on most of these dates, either the state government or the union government has sought adjournment on the grounds of on-going correspondence among various departments of the governments, and have placed document on record before the court in sealed envelopes.
It has been almost two years since the passing of the Bill in the Maharashtra state assembly, and it still awaits the President’s nod. Day by day, with the clock ticking, the desperation of occupants of these cessed buildings only worsens. The cost of the loss of time, money and human effort, especially in cases where there is broad agreement on the laws, is colossal.