Case Note & Summary
The petitioners, Oscar Builders Private Limited and its Chairman, filed a writ petition challenging an order dated 19.03.2014 by which the Municipal Corporation of Greater Mumbai (MCGM) refused to consider their application dated 13/15.02.2012 for permission to carry out tenantable repairs to premises at Oscar Towers, Mumbai. The Corporation's reason for rejection was that existing occupants had carried out various works beyond approved plans, such as merging two flats, converting AHUs into habitable rooms, and changing door positions, which violated FSI norms. The petitioners argued that individual notices had been issued to the offending occupants in 2002, but no action had been taken against them. The Court observed that every individual flat owner or tenant has a right to repair or develop their property in accordance with law, and the defaults of others should not be a reason to reject the petitioners' application. The Court directed the Corporation to consider the application afresh on its own merits, without being influenced by the alleged unauthorized constructions by other occupants. The petition was disposed of with no order as to costs.
Headnote
A) Municipal Law - Building Repairs - Rejection of Repair Application - The Municipal Corporation rejected the petitioner's application for tenantable repairs citing unauthorized constructions by other occupants in the building - The Court held that the default of others cannot be a ground to reject the petitioner's application - Every individual has a right to repair or develop property in accordance with law - The Corporation was directed to consider the application afresh on its own merits (Paras 2-4).
Issue of Consideration
Whether the Municipal Corporation can reject an application for tenantable repairs on the ground that other occupants have carried out unauthorized constructions in the building
Final Decision
The Court allowed the petition, set aside the impugned order, and directed the Municipal Corporation to consider the petitioners' application dated 13/15.02.2012 afresh on its own merits, without being influenced by the alleged unauthorized constructions by other occupants. Rule made absolute. No order as to costs.
Law Points
- Right to repair property cannot be denied due to unauthorized constructions by other occupants
- Corporation must consider application on its own merits
Case Details
2014 LawText (BOM) (06) 36
Writ Petition No.1924 of 2013
Anoop V. Mohta, A.A. Sayed
Mr. Chaitanya Mehta with Ms. Karishma Pandya i/b. M/s. Dhruve Liladhar & Co. for Petitioners; Ms. Komal Punjabi for Respondent Nos.1 & 2
Oscar Builders Private Limited and Mr. Shabbir N. Patel
Municipal Corporation of Greater Mumbai, Assistant Engineer (Building Proposal), and Maharashtra Housing & Area Development Authority (MHADA)
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Nature of Litigation
Writ petition challenging rejection of application for tenantable repairs
Remedy Sought
Direction to Municipal Corporation to consider the petitioners' application for tenantable repairs
Filing Reason
The Corporation rejected the application citing unauthorized constructions by other occupants
Previous Decisions
Order dated 19.03.2014 rejecting the application
Issues
Whether the Municipal Corporation can reject an application for tenantable repairs on the ground that other occupants have carried out unauthorized constructions in the building
Submissions/Arguments
Petitioners argued that individual notices were issued to offending occupants in 2002 but no action was taken against them
Petitioners contended that the default of others should not be a ground to reject their application
Ratio Decidendi
Every individual flat owner or tenant has a right to repair or develop their property in accordance with law. The defaults of other occupants cannot be a valid ground to reject an application for tenantable repairs. The Corporation must consider each application on its own merits.
Judgment Excerpts
The main reason given for the rejection is as follows: 'That the existing occupants in building have carried out various works beyond approved plans, viz. merging of two flats, conversion of AHUs into habitable rooms at every floor, change in position of doors etc. attracting violation of F.S.I.'
Every individual flat owner/tenant has a right to repair or develop his/her property in accordance with law. The others' default should not be the reason to reject such application filed by the Petitioners.
Procedural History
The petitioners filed an application for tenantable repairs on 13/15.02.2012. The Municipal Corporation rejected the application by order dated 19.03.2014. The petitioners then filed the present writ petition challenging that order.
Acts & Sections
