HC ON NO PRE-CONDITION OF INDIVIDUAL AGREEMENT TO EXECUTE

BEFORE CC ISSUED BY BMC

 

In the matter of redevelopment, the Developers are required to execute Tripartite Individual Agreement with each of the existing members of the Society in respect of providing new Permanent Alternate Accommodation and get the same registered before the members vacate their flats and hand over the possession of the same to the Developers for redevelopment. This being one of the conditions by default, in the IOD (Intimation of Disapproval) issued by the BMC.

In a historic judgment, the Bombay High Court has set aside a condition imposed by the BMC that the Developer must execute a Permanent Alternate Accommodation Agreement with the existing members of the housing society to get qualified for the issuance of Construction Commencement Certificate (CC) by BMC. The redevelopment of a part of the MIG Colony in Bandra that had remained stalled for the past few years can now go ahead as per the judgment pronounced by the Bombay High Court recently. It was observed that the Section of the Development Control Regulations (DCR) under which the redevelopment was being carried out, did not impose such condition on the Developer.

The Regulation 33(5) of the DCR does not impose under reference to the Condition no.10 viz. execute a registered tripartite agreement of new flat between the Developer, Society as confirming party and the existing members before issuance of the CC by BMC. In contravention to this, the Clause-10 of the IOD had imposed such condition, issued by respondent No.1 i.e. the BMC, without considering the Regulation 33(5) of the DCR under which the redevelopment of the said project was being undertaken.

Way back in October 2010, the MIG Society executed Development Agreement with MIG (Bandra) Realtors and Builders Pvt Ltd, a DB Realty group company. The BMC issued an IOD in September 2013. Around two years later all the 176 members of the buildings vacated their respective premises and handed over keys of their respective premises to the said Society, which passed them on to the Developer for redevelopment, indicating 100 percent consent in favour of the Developer. The BMC, however, refused to let the project go ahead and insisted on execution of Permanent Alternate Accommodation Agreements with the existing members to get the CC issued.

Despite the Developer pointing out to the BMC that the relevant Section of the DCR did not impose such a condition; that this was not a landlord-tenant type redevelopment project and the existing members of the Society were the owners of their flats. However, the BMC disregarded the Developer’s request, forcing them to approach the HC which later ruled in favour of the Developers.

The Court observed that the BMC, by imposing such a condition had acted in an arbitrary manner apart from the condition being illegal and the redevelopment project was inordinately delayed for years causing severe blows on the members of the said Society.

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