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Bombay High Court Dismisses Writ Plea Against Redevelopment: “Dispute Between Lessor and Lessee Purely Civil, Not Maintainable Under Writ Jurisdiction”

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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

  1. Whether the respondent society could carry out redevelopment without the consent of the petitioner society despite a common layout.
  2. Whether the use of FSI and TDR by the respondent society violated the petitioner’s development rights.
  3. 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:


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:


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:


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


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.

Also Read: Bombay High Court Upholds Arbitrator’s Jurisdiction and Dismisses Challenge: “Once Parties Submit to Arbitration, They Cannot Reopen the Question of Jurisdiction”

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