Shelter is one basic need for human existence and undeniably related to the quality of life and existence envisaged under Article 21 of the Constitution of India1950. While the means of ownership of the shelter varies, it does not and cannot legally jeopardise the basic right to dignity of a person depending on the same. In simple words, Tenancy is an arrangement by which the owner (Landlord) rents his property or premises to a person in lieu of some compensation as rent. There are various legal arrangements whereby in case the property is subjected to demolition or destruction, owner finds himself under an onus to rebuild the same, thereby guarding the dignity and right to shelter of the tenant.
Mumbai has been on a steady urban development and has several old buildings and structures which either need maintenance or if their life is exhausted, a demolition. This endangers the tenants who live in these premises, and hence, sufficient legal safeguards are required. With reference to the Bombay Act – Mumbai Municipal Corporation Act (MMC)[1] there are provisions like section 354 which is increasingly being used by landlords as some sort of law – bender or twister, where they try to evade responsibility of seeking consent from the existing tenants. These landlords approach the MCGM and procure a notice under section 354 of the MMC Act getting the Old Structure / Building categorized as dilapidated under “C-1Category”. On obtaining a favorable order by proving that the structure is unfit and has lived its life, the landlords attempt to shy away from their responsibility of having to redevelop the property and handing over alternate premises to the tenants. In such precarious circumstances, the tenants find themselves in jeopardy at the hands of the oppressive and influential landlords. The glaring absence of laws to this effect further complicate the situation and often these tenants have to bow down and oblige the landlords.
In a recent case, however, the situation has changed, thanks to the cognizance of Bombay High Court. In the case of Chandralok People Welfare Association vs State of Maharashtra[2] the court has clarified and upheld the rights of the tenants. In this case, more than 100 tenants became homeless when their respective building was pulled down after being declared unfit in the year 2014. There was no planning at the owner’s end with respect to rehabilitation or restructuring and once the tenants moved out in 2019 they have been pitifully moving around from place to place, rendered homeless under the existing laws. A case was filed by the tenants demanding their due rights of reconstruction. The landlords had contended that they have no liability towards reconstruction and that the MCGM holds no authority to obligate them the same. A body of tenants was formed who had approached the High Court against the landlords, the civic body and the other owners, by filing a writ of mandamus.
Bombay High Court analysed the situation thoroughly and took a very liberal way of interpretation where it rejected the claims of the landlords. It also reprimanded the civic body, i.e. MCGM for letting this injustice take place and not playing a proactive role. It held that the tenants had lost their possession due to the demolition and did not deserve to be left homeless. The Court permitted the tenants to submit a plan for reconstruction to the MCGM and fixed a deadline for its approval too and also observed that the tenants can recover costs for such reconstruction from the landlords.
This is a significant ruling which has clarified a prominent legal lacuna in this area – the rights of the tenants in case the owner or the builder does not go ahead and take initiatives for reconstruction. While making the civic body liable the Court once again emphasised on the powers and responsibilities of the MCGM, to refrain from being a mere spectator and ensure such instances of injustice do not happen, in compliance with section 489 r/w 354 and 499 of the MMC Act.
One interesting proposition is that the limits of power granted to the tenants has also been clarified in this case – tenants cannot assume ownership powers neither can they stall any developmental enterprise. Their stance has been emphasized only when landlords ignore to discharge their duties towards the tenants. Tenants cannot however dictate terms of this rebuilding and eclipse ownership rights of the landlords, when the landlords have taken up the proper initiative to reconstruct. This has been clarified in the case of Anandrao G. Pawar v. The Municipal Corporation of Greater Mumbai.[3] This case also highlighted the twin aspects of how tenancy continues post demolition and that the tenants can demand a reconstruction / repairs when landlords refuse to do the same, both under the MMC Act and the Rent Act (Section 16 &17).
The problem in the instant case is the landlords’ neglect and subsequent suffering of the tenants. Thanks to the judicial discretion now tenants have the remedy to proceed with their own plans of a redevelopment and submit the same proposal to the civic body in case any landlord refuses to discharge their duties.
In both the cases however, court has strictly asked civic bodies to exercise supervision, approve and accelerate development plans and asked tenants to organise themselves into proper groups and associations to propose building plans for their demolished property.
From the theoretical point of view Woodfall’s Laws of Landlord and Tenant (28th Edition, Vol.1) Tenants cannot forfeit their right to the property just because the property was demolished. Their right sustains and therein lies the justification for the landlords to rehabilitate them post demolition in the reconstructed property. Hence it is a common law concept that tenancy rights do not get relinquished with a property demolition or renovation.
Hence, the tenants now have a clear remedy to approach the MCGM or the appropriate civic body to demand a reconstruction in case the same has been neglected by the landlords. MCGM has been endowed with the due powers under MMC Act to supervise and intervene in the matter. With Bombay High Court’s stance firmly affixed, no tenant needs to suffer post property demolition and face an existential crisis without a shelter. They do not need to depend on the whims and fancies of influential builders who deprive them of their residence and then leave them with no hopes of a resettlement.
Real estate sector is growing at a fast pace with building developmental milestones, but it is imperative that social justice should not be compromised. The High Court’s intervention was needed due to a lacuna in the existing laws. Hence, not only do the civic bodies need to step up their vigil, certain amendments to the MMC Act becomes necessary for countering this ongoing problem.
[1] Mumbai Municipal Corporation Act 1888, available at- https://lj.maharashtra.gov.in/Site/Upload/Acts/H-4094%20The%20Mumbai%20Municipal%20Corporation%20Act.pdf
[2] WRIT PETITION (L) NO. 17361 OF 2023
[3] 2023 SCC OnLine Bom 2534, Order dated 27-10-2023
Tenants’ Remedies when Landlord fails to reconstruct building demolished by MCGM u/s 354 MMC Act, 1881
This article has been authored by Naresh Chheda, Partner at Dhruve Liladhar & Co., Advocates, Solicitors & Notary.