Bombay HC: Tenants living in abandoned buildings are required to occupy 405 sq ft rehab units.

MUMBAI: In a major decision on Monday, the Bombay High Court upheld the right of residents in cessed buildings to receive 405 square feet of carpet for their rehab apartment.

59 people who live in Mohamed Tajbhai chawl in Worli disputed the decision of Oricon Properties Pvt Ltd, the developer, to give them a 351 square foot carpet space through a writ petition. In accordance with Section 33(7) of the Development Control and Promotion Regulations, (DCPR) 2034, the chawl is undergoing reconstruction.

Equipped with architectural blueprints acquired under the RTI Act of 2015, the inhabitants approached HC, requesting more spacious rehabilitation apartments as stipulated by DCPR, a parking lot for each of the four rehab apartments, and an expansion of the amenity open space that the municipal commissioner had cut down from 20% to 8%.

The petitioners’ advocate claimed that the builder had misled tenants by claiming that it was not possible to provide 405 square feet of apartment space because he was paying for fungible FSI to provide 51 square feet of carpet area above and beyond the required 300 square feet, with the remaining fungible FSI for rehab buildings going toward the construction of common areas like lobbies, elevators, and staircases.

Upon obtaining legal counsel, the residents discovered that the FSI does not include the staircase, elevator, or lobby, and therefore the remaining fungible FSI cannot be utilized for that purpose. This is in accordance with Regulation No. 35(2), DCR 1991. They also relied on the architects’ certificate, which states that 405 square feet of carpet space may be allocated for an eligible tenant in the redevelopment of structures that have been discontinued.

The petitioners’ attorney stated that the design showed the developer would use 35% of the fungible land for the redevelopment project. Of the 300 square feet, 105 square feet constitute the fungible space. Tenants are therefore entitled to 405 square feet.

Additionally, the May 2014 civic chief’s sanction declared that the lobby, elevator, and staircase are FSI-free. He noted that although the amenity open space had decreased from 20% to 8%, the FSI had climbed from 2 to 3.

The developer’s representative contended that 198 tenants had given their assent and that there had been a flagrant delay in submitting the petition. Tenants were also living in spaces that were smaller than 150 square feet. According to 33(7), the developer was giving 51 square feet more than the renters were entitled to, he claimed.

It is without dispute that the tenants in the rehab building are entitled to carpet space of 300 square feet plus an additional 105 square feet (35% compensating fungible FSI) in the division bench consisting of Justice Sunil Shukre and Justice Rajesh Patil. There is no legal sanctity to the developer’s reasoning.”

According to the HC, each of the four tenements is entitled to one parking space, “which may be available to them within eight weeks.” The HC ordered that the dispute be reheard over the civic chief’s reduction of amenity open space.