While most strongly deploring the increasing reprehensible tendency of attempting to stall the redevelopment of projects by filing pleas, the Bombay High Court in a most learned, laudable, landmark, logical and latest judgment titled Khimjibhai Harjivanbhai Patadia vs MCGM in Writ Petition (L) No. 30632 of 2024 and cited in Neutral Citation No.: 2024:BHC-OS:19666-DB that was pronounced recently on November 12, 2024 in the exercise of its ordinary original civil jurisdiction has not only dismissed the petition but in addition has also imposed a cost of Rs 5 lakhs observing that if costs are not imposed on frivolous petitions then the judicial process becomes a cheap tool for personal gains.

We need to note that the Division Bench comprising of Hon’ble Mr Justice AS Gadkari and Hon’ble Mr Justice Kamal Khata minced just no words to observe that filing petitions has become the cheapest way to stall redevelopment of projects. This was what the Division Bench said would not be allowed or tolerated any longer now and those who still venture in doing so will be required to pay heavy costs as we see in this leading case!

Of course, the Division Bench was hearing a petition that had been filed by a 67-year-old man refusing to vacate an 83-year-old bungalow where he was staying as a tenant. It was held most explicitly by the Division Bench that:
It is precisely to counter these sort of petitions that we deem it necessary to impose substantial costs. High-stake cases warrant high deterrent costs to discourage frivolous and mischievous Petitions. Without such measures, the judicial process risks becoming a cheap tool for unscrupulous litigants to exploit it for personal gain. It was held by the Bombay High Court that the 4400 sq ft property in Kandivali is situated in a prime location in the city of Mumbai and has huge monetary potential.

By the way, the petitioner had challenged the decision of the Technical Advisory Committee of MCGM declaring the bungalow built in 1940 as dilapidated and to be demolished. The petitioner had contended that the landlord wanted to evict him from the bungalow by hook or crook. The Division Bench conceded that the petitioner is well aware of the fact that the 4400 sq ft property in Kandivali is situated in a prime location in the city of Mumbai and has huge monetary potential.

It was also acknowledged that there is no justification for the petitioner, as a tenant, to deprive the landlord of the legitimate fruits of redeveloping his property. Most sagaciously and so also most strikingly, the Division Bench minced just no words to hold precisely that:
No Court, whether a Writ Court or any other, can be permitted to become a tool for tenants to obstruct the genuine redevelopment efforts of property owners. Filing Writs Petitions has increasingly become the quickest and cheapest method to stall redevelopment projects, with little or no downside for tenants. It is at a meagre expense – a calculated gamble. If the tenant succeeds, the rewards are substantial; if dismissed the financial loss is negligible.

At the very outset, this notable judgment authored by Hon’ble Mr Justice Kamal Khata for a Division Bench comprising of Hon’ble Mr Justice AS Gadkari and himself sets the ball in motion by first and foremost putting forth in para 1 that:
This Writ Petition, like many others challenges the decision of Technical Advisory Committee (TAC). Despite numerous rulings by the Apex Court and this Court settling such matters, this Petition too seeks protection of tenancy rights. It is alleged that the Landlord is attempting to evict the tenant (Petitioner) by devious means i.e. by declaring the building as dilapidated.

As we see, the Division Bench then discloses in para 2 that:
By a Notice dated 20th September 2024 the Petitioner was informed that he is required to vacate his premises as the Building is classified as C-1, meaning it must be vacated and demolished immediately.

As it turned out, the Division Bench enunciates in para 3 that:
The Petitioner, however, disputes the TAC report, alleging that it favours the Landlord. Consequently, the Petitioner seeks a directive from the Court to appoint an independent Structural Auditor to assess the building’s actual condition.

To put things in perspective, the Division Bench envisages the facts in brief in para 4 stating that:
4) Bubna Bungalow is an 83-year-old structure located on S.V. Road, Kandivali (W), Mumbai 400 067.

4.1) The Petitioner became a tenant of the 1st floor and terrace of Bubna Bangalow through an Agreement dated 26 July 1995, executed with the heirs cum executors of late Smt. Niranjanbai P Bubna, the original landlady, for a monthly rent of Rs. 700.

4.2) The Petitioner claims that the landlords have been harassing him with an intention to evict him from the tenanted premises. There are multiple litigations between them. Respondent No. 4, the current landlord, became involved after purchasing the property from the heirs-cum-executors.

4.3) Respondent No. 4 also filed a suit for eviction on the ground of unauthorised construction but failed to secure any interim relief.

4.4) Subsequently, the BMC issued a notice under section 53(1) of the Maharashtra Regional and Town Planning Act 1966 (MRTP Act). This notice was challenged in Writ Petition No. 2460 of 2022, where this Court by an Order dated 22nd April 2024, reiterated that the apprehension of the Petitioner that his tenancy rights would be lost if the Bubna Bungalow was demolished for reconstruction/redevelopment, was unfounded. The Court cited the Supreme Court’s judgment of in the case of Shaha Ratanshi Khimji & Sons V/s. Kumbhar Sons Hotel Pvt Ltd & Ors [(2014) 14 SCC 1] and Chandralok People Welfare Association V/s. State of Maharashtra & Ors [(2023) SCC OnLine Bom 2300].

4.5) The Petition further notes that a Special Leave Petition No. 23992 of 2024 is currently pending before the Hon’ble Supreme Court.

4.6) In a subsequent Writ Petition No. 217 of 2023, the Petitioner challenged the TAC Report categorising the structure as C2-A, meaning it required repairs but did not need to be vacated. However, the building was not repaired as recommended.

4.7) A fresh Notice was issued and new Audit Report was sought from the Municipal Corporation of Greater Mumbai (BMC). Due to the conflicting reports produced by either side, the TAC was appointed to resolve the matter. By an order dated 21st August, 2024, this Court directed the TAC to hear both parties and communicate its decision.

Briefly stated, the Division Bench states in para 9 that:
A Coordinate Bench of this Court in the case of Andheri Purab Paschim Cooperative Housing Society Limited V/s Municipal Corporation of Greater Mumbai and Another reported in (2023 SCC OnLine Bom 2522) clearly held that, the purpose of establishing TAC was to provide a check and balance against the unilateral declarations of buildings as dilapidated. It was not intended to provide individuals with yet another cause of action in Writ law to upset findings of the TAC on factual and technical aspects. The Judgment dealt with similar cases that were decided in the past.

Do note, the Division Bench notes in para 10 that:
Mr. Khandeparkar, with evident exasperation, pointed out, that this is in fact, the third round of litigation in Court initiated by this Petitioner. The averments of the Petition itself evinces the same. Considering that the law on the issue is well-settled, the Petitioner’s apprehension of his tenancy rights being jeopardized, is unfounded, so is the Petition.

Be it noted, the Division Bench then notes in para 11 that:
By an Order dated 22nd April 2024, in Writ Petitions No. 2460 of 2024 with Writ Petition No. 217 of 2023, the Petitioner’s apprehension that he will lose his tenancy was decisively negated, with clarity provided by citing judgments of the Hon’ble Supreme Court and our Court. Despite this order, the present Petition is founded on the apprehension that the Respondent No.4 is attempting to jeopardize the Petitioner’s tenancy rights by evicting him by questionable means – in his words by hook or by crook. This claim is untenable. It is abundantly clear that the Petitioner’s tenancy rights are protected even in the event of the building’s demolition for reconstruction or redevelopment. Moreover, the tenants’ right to undertake reconstruction in the event of landlord’s failure to do so has also been firmly established.

It would be instructive to note that the Division Bench while citing recent and relevant case law points out in para 12 that:
Another important aspect pertains to the owner’s right to demolish a building that is in a perfectly sound condition and redevelop it, is also acknowledged by a co-ordinate bench of this Court in the case of Anandrao G Pawar v Municipal Corporation of Greater Mumbai and Ors (2023 SCC OnLine 2534) in paragraph 15 Court has held as under:

15. But we do not even need to go that distance. Let us take the case at its extremity, namely, that the building is in perfectly sound condition. The owner wishes to redevelop it. Can a tenant be then heard to say that the owner is precluded from undertaking a full-envelope redevelopment and from enjoying the benefits and fruits of ownership of that property just because a few tenants believe that it can be ‘repaired’? We believe the answer to this question in law, on facts and in equity, is firmly in the negative and against the tenants. (Emphasis supplied).

It cannot be glossed over that the Division Bench then observes in para 13 that, This is the law of the land. The Petitioner was not only presumed to be aware of it but was also explicitly informed through the Order dated 22nd April 2024. Despite this, he has chosen to file the present Petition, claiming that liberty was granted to file another Petition on the same apprehension that his rights as a tenant would be affected.

As a corollary, the Division Bench then propounds in para 14 that:
In view of the above, we find it appropriate to dismiss this Petition with exemplary costs, in the hope that it serves as a deterrent against frivolous and mischievous Petitions. Such Petitions are filed with the sole intention of delaying the redevelopment of old and/or dilapidated structures, driven by ulterior motives for better monetary terms from the landlords/developers. This is particularly egregious given that the landlords bear a statutory obligation to maintain the building, with criminal consequences for any failure to act.

Most significantly, the Division Bench then mandates in para 15 holding clearly that:
We are, therefore, inclined to impose exemplary costs in the sum of Rs. 5 Lakhs for the reasons stated hereunder:

15.1) It is abundantly clear to us that this Petition is filed with a view to obstruct the redevelopment. Six out of seven tenants have vacated. The Petitioner, however, has successfully managed to delay vacating for over five years. This is evident from the submissions of Respondent No. 4, as recorded in the Report dated 18th September, 2024, issued by the BMC and annexed to the Petition.

15.2) The building, constructed in 1940, is approximately 83 years old. As early as 2019, the owners had submitted a Structural Audit Report categorizing the building under C-1 category. The litigation had since ensued, as detailed above. The land in question admeasures around 4400 sq mtrs. Even with the minimum Floor Space Index (FSI) of 2 the reconstruction would result in a structure of around 88,000 square feet. The property in question is situated in a prime location in the city of Mumbai and has huge monetary potential.

The Petitioner is well aware of the said fact and therefore is trying to create hurdle in the development of the suit property. There is absolutely no justification for the Petitioner, as a tenant, to deprive the landlord of the legitimate fruits of redeveloping his property.

It is worth noting that the Division Bench notes in para 16 that:
From a review of Judgements over the past years, we observe such litigations often amount to a sophisticated form of extortion. There necessarily must be an effective deterrent to this obstructionist behavior by tenants.

Most forthrightly and most remarkably, the Division Bench then encapsulates in para 17 what constitutes the cornerstone of this noteworthy judgment postulating that:
No Court, whether a Writ Court or any other, can be permitted to become a tool for tenants to obstruct the genuine redevelopment efforts of property owners. Filing Writs Petitions has increasingly become the quickest and cheapest method to stall redevelopment projects, with little or no downside for tenants. It is at a meagre expense - a calculated gamble.

If the tenant succeeds, the rewards are substantial; if dismissed the financial loss is negligible. For instance, even assuming that filing a Writ in the Bombay High Court costs a tenant a certain minimum amount of rupees, the resulting delays can impose significant financial burden on landlords or developers, including mounting costs for alternate accommodations. In many cases, developers are forced to capitulate due to these pressures, making such actions an attractive proposition for tenants, where redevelopment projects are often worth crores of rupees.

It would be worthwhile to note that the Division Bench notes in para 18 that, In this case, two prior Orders explicitly clarified that the tenants’ rights were protected. These Orders also established that even a completely sound building could be demolished for redevelopment by the owner. Thus the Petitioner’s contention that the landlord seeks to evict them by hook or by crook is baseless, given the landlord’s legal right to evict tenants for redevelopment purposes.

Simply put, the Division Bench then further notes in para 19 that:
In simpler terms, we question:, What is the harm, if the Petitioner tenants’ rights are protected and he receives a better, newly redeveloped premises – probably on ownership basis, in exchange of a premise in an 83-year-old building? The logic behind resisting redevelopment is puzzling. This behavior strongly suggests there is something more than meets the eye. No person, we believe, would prefer to remain in an old, dilapidated building willing to incur recurring maintenance costs every year, rather than opting for redevelopment.

To be sure, the Bench then stipulates and quips in para 20 observing that, Assuming the tenant would offer to pay for the area occupied by him - but what about the other tenants and common areas of the building? That is the responsibility of the landlord. Now assuming, the tenant pays for the whole maintenance, would he not deprive the Landlord/developer to redevelop?

Truth be told, the Division Bench then acknowledges in para 21 stating that:
In many cases we have observed/noticed that, tenants often demand reinstatement at the same location, monetary compensation and/or additional space or in some cases – rightly, parity with other tenants. Landlords, on the other hand, may face logistical limitations in accepting or refusing such demands.

For sake of clarity, the Division Bench clarifies in para 22 that:
Such matters are purely contractual and must be resolved between the developer and the tenant. We do not, in any manner, suggest that landlords or developers are incapable of taking undue advantage of tenants who may be unaware of their rights protected by Statute and settled law.

Quite forthrightly, the Division Bench holds in para 23 that:
However, Courts cannot be misused as instruments to pressure landlords or developers into granting tenants’ undue advantages. Unfortunately, cases like this have become routine. Writ Petitions are filed, projects are delayed and Courts repeatedly affirm that tenancy rights are protected, allowing redevelopment to proceed.

Quite ostensibly, the Division Bench then expounds in para 24 that:
It is precisely to counter these sort of petitions that we deem it necessary to impose substantial costs. High-stake cases warrant high deterrent costs to discourage frivolous and mischievous Petitions. Without such measures, the judicial process risks becoming a cheap tool for unscrupulous litigants seeking to exploit it for personal gain.

Resultantly and finally, the Division Bench then concludes by holding in para 25 that:
In view of the above deliberation, Petition is dismissed with cost of Rs. 5,00,000/-, to be paid by the Petitioner to the Armed Forces Battle Casualties Welfare Fund within a period of four weeks from the date of uploading of the present Judgment on the official website of the High Court of Bombay.

25. Details of the bank account for payment of cost are as under:
Account Name :- Armed Forces Battle Casualties Welfare Fund.
Account Number :- 90552010165915.
Bank Name :- Canara Bank.
Branch :- South Block, Defence Headquarters, New Delhi – 110 011.
IFSC Code :- CNRB0019055.

25.2) It be noted here that, if the Petitioner fails to deposit the said cost within stipulated period as noted hereinabove, the Authorized Officer of the Armed Forces Battle Casualties Welfare Fund will be entitled to file an application for execution of the present Order and for recovery of the said amount before this Court through the learned A.G.P..

In a nutshell, the Bombay High Court has made it indubitably clear that it will no longer now take for granted filing of pleas for stalling redevelopment of projects and for personal gains. This alone explains why the Bombay High Court in this leading case has imposed an exemplary cost of Rs 5 lakhs to be paid by the petitioner as directed hereinabove. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh