Redevelopment

Redevelopment is a key area of concern for urban home-owners. Issues regarding legal procedures, due processes and facilities available under the law, details on authorities / boards who are responsible for structural repairs / redevelopment and redevelopment of tenancy and pagdi properties have been dealt with in detail in print and online by legal counsel Gajanan Khergamker. You could contact him to avail legal services here. Click on any of the links below to read the full article:

Hold An EGM First To Discuss Redevelopment
Board To Undertake Structural Repairs To Buildings Which Are In Ruinous Condition And Likely To Be Deteriorate And Fall
Facility To Modify The Existing Redevelopment Proposals
Legal Facilities To Modify Existing Redevelopment Proposals
Redevelopment Of Tenancy And Pagdi Properties
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Hold An EGM First To Discuss Redevelopment

By Gajanan Khergamker

For a Cooperative Housing Society to go in for redevelopment, not less than 1/4th of the total number of members interested in going for Redevelopment must give a notice to the duly elected Secretary of the society as per the Bye-Laws of the Cooperative Societies and managing committee constituted as per the prevalent law regarding Redevelopment of the said Cooperative Housing Societies.

Though the letter, the members should urge him to call for an Extra Ordinary General Meeting of the Members to decide about the redevelopment project. They also apprise him to take note of the implications of the said project and to take decision thereon for various terms and conditions about the redevelopment in issue.

By law, within eight days following receipt of the application from the members, the Secretary of the concerned Cooperative Housing Society shall convene a Managing Committee meeting and take note of the above notice. He will have to convene, within one month, an Extraordinary General Meeting of the members. The Agenda of the meeting should be conveyed to all the members before 14-clear days in advance. The receipt of the acknowledgement of the said notice should be kept in the office of the Society.

Before calling for an extraordinary general meeting, the Secretary of the said Society should call for quotations from five Architects/Professional project consultants from the panel of State government as well as Local Self Government. The architects / consultants should be well conversed with the redevelopment of buildings in a Cooperative Housing Society and can prepare a Report on the Redevelopment Project. On receipt of quotations, the same shall be put forward before the Extraordinary General Meeting and one of the persons shall be elected to head the redevelopment project.

The below agenda shall be discussed at the Extraordinary General Meeting and a decision taken after tackling the following issues:
1) The Society shall obtain all the members’ wishes and their views on the redevelopment of building of the Society.
2) The Members attending the Extraordinary General Meeting shall elect one of the Architect / Professional Project Consultant from the panel of the State Government or Local Self Government who is an expert in this field and the Members shall give power to the elected professional to decide about the contents, terms and conditions on which the redevelopment of the Building shall be carried out.
3) Terms and conditions prescribed by the Professional shall be put before the members to discuss and to take decision regarding the redevelopment programme.

Board To Undertake Structural Repairs To Buildings Which Are In Ruinous Condition And Likely To Be Deteriorate And Fall

By Gajanan Khergamker

Subject to the other provisions of this Chapter, where the Board on consideration of the information given by the Municipal Commissioner, or a report of its officer authorised for the purpose, or a report of its officer authorised for the purpose or other information in its possession, is satisfied that any building which is occupied by person, is in such a ruinous or dangerous condition, that is imminently likely to fall unless structural repairs which will render it fit and safe for habitation, are urgently done, then in such cases, the Board shall, subject to provisions of sub-section (3), undertake such repairs to that building.

(2) The Board may prepare a list of such buildings setting out the order of priority or urgency in respect of which structural repairs are necessary, and mat undertake simultaneously or in such order of priority the structural repairs according to the exigencies of the case and its resources:

(3) If the Board is of the opinion that –
a) the cost of structural repairs to a building per square metre, will exceed such amount, as may be specified by the State Government by notification, in the Official Gazette, to be the structural repairs cost per square metre or
b) the cost of the structural repairs to a building, per square metre, will exceed the amount specified under clause (a) but the size of the land on which such building is standing in such that for some reason or the other it would not be possible or economical to erect any new building thereon and there is an adjoining building but the cost of structural repairs to such building, per square metre, does not exceed the amount specified under clause (a).

Then in cases falling under clause (a) or clause (b) the board, notwithstanding anything contained in this chapter, may not consider such building/s for repairs and may issue a certificate to that effect to the owner or owners thereof, as the case may be, affix a copy of the relevant certificate in some conspicuous part of the building or buildings for the information of the occupiers and proceed to take actions as provided in this chapter.

Provided that, in cases of special hardship, the Board may, on such terms and conditions as it may deem fit to impose, consider a building for structural repairs even of the cost of such repairs is likely to exceed the limit aforesaid:
Provided further that, where in any case the occupiers of a building undertake that they shall bear the cost of such repairs which are in excess of the amount specified under clause (a) per square metre and abide by such terms and conditions for payment of the excess cost to the Board as it may think fit to impose, the Board may carry out structural repairs to such building.

(4) The Municipal Commissioner shall, from time to time, send to the Board, full particulars of the buildings which are in a ruinous or dangerous condition and the condition of which is such that they are likely to fall if structural repairs are not urgently undertaken or in respect of which he has served notice under Section 354 of the Corporation Act, but the same have not been complied with.  

Facility To Modify The Existing Redevelopment Proposals

By Gajanan Khergamker

The above incentives in the FSI are offered not only to fresh proposals, but also to the existing proposals, housing societies of landlords or occupiers may convert their earlier proposals in accordance with the above modified regulations provided the redevelopment scheme is in progress and has not been completed, i.e. where full occupation certificate is not granted. However, this additional FSI is subject to submission of a licensed structural engineer’s certificate for structural stability, to the effect that the building is designed to take the additional load for constructing additional FSI, if granted and certifying the feasibility for structural modifications i.e. it should be feasible to convert the tenements earlier proposed with180 sq. ft. carpet area into tenements of 225 sq. ft. carpet area.

Thus, the higher FSI does not automatically becomes permissible in cases where construction is already underway as per old plans, unless a provision was made in the plans, foundation, etc., for subsequently increasing the area of rooms or the number of floors, without endangering the structural stability of the buildings.

To simplify the lengthy procedure for granting NOCs for redevelopment the step of issue of letter of intent prior to issue of NOC has been completely omitted by the government in other words. It is no longer necessary to obtain a letter of intent. Now, the landlord or co-operative housing societies of landlord or occupiers can directly submit their proposal for the redevelopment of their old cessed properties in A to G wards of Mumbai, as per the prescribed format attached along with required documents and information.

After receipt of the complete proposal with documents, it will be scrutinised by the Board, and NOC for redevelopment will be granted after the Board is satisfied that all requirements are fulfilled by the applicant and after approval has been given in the MBRRB meeting. A scrutiny fee of Rs. 5000/- of whatever amount is fixed by the Board from time to time will be charged for each proposal. After all the documents have been received with application, and all legal and technical requirements have been completed with the NOC with be issued within three months. If the NOC holder fails to start the redevelopment work within 12 months from the date of issue of NOC, the Board reserves the right to cancel the NOC,

The NOC holder is expected to complete the construction of the new buildings for the rehabilitation of old occupiers within 30 months from the date of issue of NOC. in case he fails to do so, extension to above time limit may be granted by the Board, depending on the merits of the case, on payment of an extension of fee of Rs. 5000 or an amount as decided by the Board.

On grantee of the NOC for redevelopment it shall be the responsibility of the NOC holders to carry out repairs to the old cessed buildings at his own risk and cost, whenever such repairs are deemed to be necessary as decided by the repair board.

Occupation Certificate for the free sale buildings will be given only after all the old occupants, including those who may be staying in the Repair Board’s Transit Camps, have been rehoused in the newly reconstructed buildings.

The concessions/benefit granted by the government vide its notification dated 25-1-1999 are quite attractive and will held to make the scheme for redevelopment of old cessed properties economically viable, it is expected that the benefit of the above new scheme of redevelopment will be taken upon the large scale by landlords and co-operative housing societies, thereby helping to reduce old and dilapidated cessed buildings with new, well lit and ventilated self-contained flats.  

Legal Facilities To Modify Existing Redevelopment Proposals

By Gajanan Khergamker

It isn’t that incentives in FSI are offered only to fresh proposal. Even existing proposals, housing societies of landlords or occupiers may convert their earlier proposals in accordance with the modified regulations, provided the redevelopment scheme is in progress and has not been completed, i.e. where full occupation certificate is not granted.

The additional FSI is provided only subject to submission of a licensed structural engineer’s certificate for structural stability. The submission must ascertain that the building is designed to take the additional load for constructing additional FSI, if granted. It should also certify the feasibility for structural modifications i.e. it should be feasible to convert the tenements earlier proposed with 180 sq. ft. carpet area into tenements of 225 sq. ft. carpet area.

Higher FSI does not automatically becomes permissible in cases where construction is already underway as per old plans, unless a provision was made in the plans, foundation, etc., for the subsequent increase in area of rooms or the number of floors, without endangering the structural stability of the buildings.

In order to simplify the cumbersome process for granting NOCs for redevelopment, the procedure of issuance of letter of intent prior to the issuance of NOC has been completely omitted. It is no longer necessary to obtain a letter of intent. Now, the landlord or co-operative housing societies or occupiers can directly submit their proposal for the redevelopment of their old cessed properties in A to G wards of Mumbai but as per the prescribed format attached, along along with required documents and information.

After the proposal complete with documents is received, it will be scrutinised by the Board and an NOC for redevelopment granted after the Board is satisfied that all requirements are fulfilled by the applicant and after approval has been given in the MBRRB meeting. For each proposal, a scrutiny fee of Rs. 5,000 or whatever amount fixed by the Board from time to time, will be charged.

After all the documents have been received along with application and all legal and technical requirements completed, the NOC will be issued within three months. In case, even after this, the NOC-holder fails to start the redevelopment work within 12 months from the date of issue of NOC, the Board reserves the right to cancel the NOC.

The NOC-holder is expected to complete the construction of new buildings for the rehabilitation of old occupiers within 30 months from the date of issue of NOC. Should he fails to do so, extension to the time limit of 30 months may be granted by the Board, depending on the merits of the case and on payment of an extension of fee of Rs 5,000 or an amount as decided by the Board.

On being granted the NOC for redevelopment, the onus of carrying out repairs to the old cessed buildings at his own risk and cost, whenever such repairs are deemed to be necessary as decided by the repair board, rests on the NOC holder.

An Occupation Certificate for the free sale buildings will be given after all the old occupants, including those who may be staying in the Repair Board’s Transit Camps, have been rehoused in the newly-reconstructed buildings.

Concessions/benefit granted by the government vide its notification dated 25-1-1999 are quite attractive and make the scheme for redevelopment of old cessed properties economically viable. The benefit of the new scheme of redevelopment are expected to be exploited at a large scale by landlords and co-operative housing societies thereby aiding the replacement of old and dilapidated cessed buildings with new, well-lit and ventilated self-contained flats.

Redevelopment Of Tenancy And Pagdi Properties

By Gajanan Khergamker

Tenancy Properties
For redevelopment of tenancy property there are three parties between which the agreement for redevelopment is done 1) owner; (2) tenant; (3) builder/developer and all other process is the same as we redevelopment of Co-operative Housing Society. Here the landlord of the property have full right for sale of the land because the records of property i.e. 7/12 extraction and property, so landlord makes deal with the developer / builder accordingly and the landlord lakes profit out of the property in permanent basis and the tenants who are in possession of the sad room/flat after redevelopment becomes the SOLE OWNER of the said ROOM/FLAT. The rights of landlord ceases, no rent or any kind of receipt is claimed by the landlord or any other agencies.

Landlord
Landlord means any person who receives or is entitled to receive rent in respect of any premises either in his own account or for the benefit of some other person. A tenant who has further let out premises who is called as sub-tenant is also deemed to be a landlord for the purpose of such type of sub-tenancy.

Owner
Owner means the person who receives the rent of the said premises were let and includes –
(i) An agent of trustee who receives such rent on account of the owner; and
(ii) An agent of trustee who received the rent of or is entrusted with or concerned for any premises devoted to religious or charitable purposes.
(Section 3(m), Mumbai Municipal Corporation Act 1888)

Tenant
For tenancy property, tenant is defined under section 7(15) of the Rent Control Act 1999, which is as follows:
Sec.7(15). ‘tenant’ means any person by whom or on whose account rent is payable for any premises and includes, -
(a) Such person –
(i) Who is a tenant, or
(ii) Who is a deemed tenant, or
(iii) Who is a sub-tenant as permitted under a contract or by the permission or consent of the landlord, or
(iv) Who has derived title under a tenant, or
(v) To whom interest in premises has been assigned or transferred as permitted,
(b) A person who is deemed to be a tenant under Section 25;
(c) A person to whom interest in premises has been assigned or transferred as permitted under Section 26;
(d) In relation to any premises, when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant’s family who, -
(i) Where they are let for residence, is residing or
(ii) Where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant as may be decided, in the absence of agreement, by the Court.

The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last proceeding tenant.

For Deemed Tenant Section 25 of the Rent Control Act, 1999, provides as follows:
Section 25. Certain Sub-Tenants To Become Tenants On Determination Of Tenancy
When the interest of a tenant of any premises is determines for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sublet and such sub-tenancy is subsisting on the date of commencement of this Act or where sub-tenancy is permitted by a contract between a landlord and a tenant, such sub-tenant shall, subject to provisions of this Act, be deemed to become the tenant of his landlord on the same terms and condition as he would have held from the tenant if the tenancy had continued.

Section 26. In Absence Of Contract Tenant Not To Sublet Or Transfer Or To Give On Licence
Notwithstanding anything contained in any law for the time being in force, but subject to any contract to the contrary, it shall not be lawful for any tenant to sub-let or give on licence the whole or any part of the premises let to min or to assign or transfer in any other manner his interest therein:
Provided that, State Government may by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases any premises or class of premises other than those let for business, trade or storage to such extent as may be specified in the notification.

The provision under this section 26 of the Rent Control Act, 1999, states subsisting sub-tenant having been made tenants under this section it is provided now that no sub-tenancy or licence be created in respect of premises subject to any contact to the contrary or notification as per provision. It may be noted here that sub-tenants deemed as tenants under section 25, now included in section 7, are categories of persons now provided in the Act. Another category of persons provided for is contained in section 27.

Section 27. State Government Or Government Allottee To Become Tenant Of Premises Requisitioned Or Continued Under Requisition
(1) On the 7th December, 1996, that in the date of coming into force of the Bombay Rents, Hotel and Lodging Houses Rates Control, Bombay Land Requisition and Bombay Government Premises (Eviction) (Amendment) Act, 1996, (herein after in this section referred to as ‘the said date’), -
(a) The state Government, in respect of the premises requisitioned or continued under requisition and allotted to a Government allottee referred to in sub-clause (a) of clause (2) of section 7; and
(b) The Government allottee, in respect of the premises requisitioned or continued under requisition and allotted to a government allottee referred to in sub-clause (b) if clause (2) of section 7,
Shall notwithstanding anything contained in this Act, or in the Bombay Land Requisition Act, 1948, or in any other law for the time being in force, or in any contract, or in any Judgement, decree or order or any court passed on or after the 11th June, 1996 or in any order of eviction issued by the Competent Authority, or by the Appellate Authority, under the Bombay Land Requisition Act 1948, be deemed to have become, for the purpose of this Act, the tenant of the landlord; and such premises shall be deemed to have been let by the landlord to the State Government or, as the case may be, to such Government allottee, on payment of rent and permitted increase equal to the amount of compensation payable in respect of the premises immediately before the said date.

(2) Save as otherwise provided in this section or any other provision of this Act, nothing in this section shall affect, -
(a) The rights of the landlords including his right to recover possession of the premises from such tenant on any of the ground mentioned in section 16 or in any other section;
(b) The right of the landlord or such tenant to apply to the court for the fixation of standard rent and permitted increases under this Act, by reason only for the fact that the amount of the rent and permitted increases, if any, to be paid by such tenant to the landlord is determined under sub-section (1);
(c) The operation and the application of the other relevant provisions of this Act in respect of such tenancy.