Court’s Decision
The Bombay High Court dismissed the writ petition challenging the redevelopment activities undertaken by a neighbouring society. The Division Bench held that “the issues in this Writ Petition are purely property disputes between the lessor and the lessee and thus cannot be entertained by the High Court in its writ jurisdiction.” Referring to the ruling in Shalini Shyam Shetty v. Rajendra Shankar Patil, the Court concluded that the matter must be adjudicated in civil proceedings and not through a writ petition under Article 226 of the Constitution of India.
Facts
The petitioner, a co-operative housing society, approached the High Court under Article 226 seeking to halt the redevelopment being carried out by an adjacent housing society on a shared plot. The grievance was that the adjacent society had allegedly encroached upon 766.84 sq. mtrs. of the petitioner’s proportionate share of the plot without obtaining any consent or NOC. The petitioner alleged that despite observations in the BMC’s report dated 15 December 2021, redevelopment was approved through an amended plan dated 22 June 2023, without complying with the requirement of mutual consent, thereby usurping the petitioner’s share in the built-up area.
The genesis of the dispute dates back to development arrangements between the two societies and the Star Construction Corporation. While the respondent society owned the larger land and entered into various agreements including a lease dated 1 March 1982 and development agreement dated 25 December 2002, the petitioner society’s building was constructed using TDR and had been in occupation since 2010. However, no conveyance had been executed in their favour and the property card reflected the respondent’s name.
Issues
- Whether the respondent society could carry out redevelopment without the consent of the petitioner society despite a common layout.
- Whether the use of FSI and TDR by the respondent society violated the petitioner’s development rights.
- Whether the writ petition under Article 226 is maintainable in a dispute arising from title, property rights and lease interpretation.
Petitioner’s Arguments
The petitioner’s counsel, Dr. Abhinav Chandrachud, contended that:
- The redevelopment plan dated 22 June 2023 was illegally approved in violation of observations recorded by the BMC in 2021.
- Consent from the petitioner society was mandatory, especially as both societies existed on a common layout.
- The respondent had usurped 65.52% of the built-up share to which the petitioner was proportionately entitled.
- Clause 18 of the 2002 agreement entitled the petitioner to seek conveyance over the suit premises.
- The amended plan ignored the legal necessity of a NoC, thus meriting immediate judicial interference.
Respondent’s Arguments
Senior Advocate G.S. Godbole, representing BMC, and Senior Advocate Milind Sathe, appearing for the respondent society, opposed the petition on several grounds:
- The BMC clarified through affidavit that there was no FSI imbalance and the development was within permissible limits under DCPR 2034.
- The plot in question was not sub-divided and the calculation of FSI was proportionate and in compliance with the Development Control Regulations, 1967.
- The petitioner was merely a lessee with no development rights, which must be proved in a civil suit and not through a writ petition.
- The petitioner had delayed challenging the redevelopment since demolition had commenced in December 2021 and development rights had been assigned to a third-party developer (Paradigm Blue Star LLP) in August 2022.
- There was no principle under the Maharashtra Ownership Flats Act, 1963 (MOFA) that entitled the petitioner to pro-rata FSI allocation based on built-up area.
Analysis of the Law
The Court emphasised that the dispute revolved around competing claims of development rights and title over portions of a common plot governed by complex leases and development agreements. Such matters required interpretation of documents and adjudication of ownership, which lay outside the scope of a writ court’s jurisdiction under Article 226. The Court reiterated that the writ jurisdiction was not intended to resolve private civil disputes involving contractual or lease obligations.
Precedent Analysis
The Court relied upon the Supreme Court’s decision in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil (2010) 8 SCC 239, which clarified that disputes involving private rights over immovable property must be decided by civil courts and not under writ jurisdiction. The Court followed this binding precedent to conclude that the current matter was inappropriate for adjudication in a writ petition.
Court’s Reasoning
The Court noted:
- The redevelopment plan of the respondent society was vetted and clarified by the BMC to be within permissible limits under DCPR 2034.
- The petitioner admitted to being only a lessee and not a title holder.
- The key claims required examination of lease clauses, agreements, FSI entitlements, and factual evidence—tasks suited for a civil court.
- Questions such as whether the respondent society required petitioner’s consent, or whether there was FSI usurpation, could not be adjudicated summarily under Article 226.
Conclusion
The High Court dismissed the writ petition, holding that:
“The issues in this Writ Petition are purely property disputes between the lessor and the lessee and thus cannot be entertained by the High Court in its writ jurisdiction…”
No costs were awarded.
Implications
- The judgment reiterates that private disputes involving complex development rights, leasehold claims, and title must be pursued before civil courts, not constitutional courts.
- Even where municipal approvals are involved, courts will defer to planning authorities if development is compliant with the statutory regulations.
- This case clarifies the limits of writ jurisdiction under Article 226 and safeguards against its misuse in civil property disputes.
FAQs
Q1. Can a co-operative housing society challenge redevelopment of adjacent property under writ jurisdiction?
Only if fundamental rights or statutory violations are involved. In property disputes or lease-related conflicts, civil suits are the appropriate remedy.
Q2. Is consent of all societies in a common layout mandatory for redevelopment?
It depends on the nature of title, development agreements, and municipal regulations. If the FSI usage is within permissible limits, consent may not be necessary.
Q3. What does the DCPR 2034 say about FSI and redevelopment rights?
DCPR 2034 regulates floor space index and usage of Transferable Development Rights. It permits redevelopment within designated limits, even on plots with multiple stakeholders, provided municipal approvals are obtained.
Cases Referred
Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 239
The Supreme Court held that disputes concerning title and possession of immovable property must be resolved by civil courts and not in writ proceedings. This ruling was directly relied upon to dismiss the current petition.
