Case Note & Summary
The Bombay High Court dealt with two writ petitions challenging a condition imposed by the Mumbai Building Repairs & Reconstruction Board (a unit of MHADA) in No Objection Certificates (NOCs) issued for redevelopment of cessed buildings under DCR 33(7). The condition prohibited the sale or transfer of tenancy rights by original occupiers until possession of new tenements and further barred transfer of rehab tenements for ten years from occupation. The petitioners, tenants in cessed buildings, sought redevelopment through a developer. The Board granted NOC on 11 April 2012 with the impugned condition. The court held that the condition was without any statutory backing under the Maharashtra Housing and Area Development Act, 1976 or the Development Control Regulations. It noted that the right to transfer tenancy is a valuable right and its restriction must be by law, not by executive fiat. The court found the condition violative of Article 300A of the Constitution, which prohibits deprivation of property except by authority of law. The court also observed that the restriction on transfer is already governed by the Rent Control Act and, after formation of cooperative society, by the Maharashtra Cooperative Societies Act. Therefore, the Board cannot impose additional restrictions. The court quashed the impugned condition and directed the Board to issue fresh NOCs without such condition. The petitions were allowed with no order as to costs.
Headnote
A) Constitutional Law - Right to Property - Article 300A of the Constitution of India - Restriction on Transfer - The condition in NOC prohibiting transfer of tenancy rights for ten years from occupation was held to be violative of Article 300A as it deprived the tenant of a valuable right without authority of law. (Paras 4-6) B) Housing Law - Redevelopment of Cessed Buildings - DCR 33(7) - MHADA's Power to Impose Conditions - The Board has no statutory power under the Maharashtra Housing and Area Development Act, 1976 or DCR 33(7) to impose a blanket ten-year ban on transfer of rehab tenements. Such condition is ultra vires the Act and Regulations. (Paras 4-6) C) Property Law - Transferability of Tenancy Rights - Rent Control Act - The restriction on transfer of tenancy rights is governed by the Rent Control Act, and after formation of cooperative society, by the Maharashtra Cooperative Societies Act. MHADA cannot impose additional restrictions beyond those statutes. (Para 4)
Issue of Consideration
Whether the condition imposed by MHADA in the No Objection Certificate prohibiting transfer of tenancy rights for ten years from the date of occupation of rehab tenements is legal and valid.
Final Decision
The court allowed the writ petitions, quashed the impugned condition in the NOC, and directed respondent no.1 to issue fresh NOCs without such condition. No order as to costs.
Law Points
- Right to property
- Transferability of tenancy rights
- Ultra vires condition
- Article 300A Constitution of India
- Development Control Regulations 33(7)
- Maharashtra Housing and Area Development Act 1976
