• Cessed Building redevopment - complex case


My grandfather was a landlord of a property / building in Mumbai. He had 3 sons & 2 daughters. One daughter is unmarried and handicap and is staying with eldest son till date. In the said building; elder son, middle son and handicap daughters are tenants prior to 1992.

In 1992 youngest son was separated with a family settlement by providing cash amount. A normal document was prepared wherein he had signed on the settlement and released all his rights in the property / building in-front of two elderly relatives. That document was never registered. Grandfather died in 1993 & had non-registered will saying his heir is his wife. Grandmother died in 1996 without any will. The first 2 sons have been fulfilling all duties of landlord since 1993. Even tenants knows that. Youngest son also never interfered or asked for any share in tenancy transfers as he was abiding to the family settlement. 

In 2009 a developer approached the elder 2 sons with a proposal to redevelop the property jointly with 2 other adjoining properties. The building comes under cessed building. On knowing this; youngest son started asking for share and claimed his legal rights. Other 2 daughters gave NOC without any consideration.

The proposal from developer was a cash amount (1.24 cr) against development rights and we were supposed to get 3 flats against 3 existing tenancy (Mhada measured 440 sqft each). 
But due to younger brother hindrance; developer influenced us with an arrangement as below –
1)	Development agreement stating no consideration and reason for no consideration as tenants feel unsafe to stay. Redevelopment is a cluster redevelopment. Standalone redevelopment of our building not possible. Hence if not done then cannot be done ever. 
2)	MOU stating the cash amount, disbursement timelines and interest @ 2% per month for delay.  
3)	Both Development agreement and MOU were signed on same date 14 Oct 2009. Development agreement was registered and MOU was only notarized.

As requested by developer we vacated tenanted flats in 2010 and developer paid us rent for temporary alternate accommodation (180000/- by cheque + 90000/- cash for each tenancy).

Youngest son filed a suit praying for injunction claiming his rights on 3 tenancy flats & building. Court did not give stay on redevelopment as there was no consideration in development agreement. MOU is only known to us and the developer. However court has given temporary stay on creating 3rd party interest on the 3 tenancy flats. The case is now at evidence stage. We have not challenged the temporary stay till date (guess ideally it should have been done because tenancy is different).

Later developer has crossed / cheated us. In 2011 he said that he will not give us cash amount; instead he will give 663 sqft (against 440 sqft) to each of our tenancy. But that extra sqft he is giving to all tenants by taking very small amount (though illegal). He wanted us to take that and make the MOU null & void. Also he wanted us to pay for stamp duty and registration for that extra sqft.

We were going in loss and hence that did not work. To harass us; he has since then stopped paying rents to all 3 of us and has not executed permanent alternate accommodation agreement with any one of us. 

He is saying that MOU has no legal value and we do not have any options and will have to dance to his tunes. Based on terms of MOU; as on date the developer needs to pay almost 3cr to us including interest @ 2%.

Through RTI we got his approved plans. 3 tenancy flats are against us and approved plan shows 663 sqft each. 
Each floor in proposed new building has 3 flats (330 sqft, 663 sqft & 723 sqft). RTI document shows tenants with less than 300 sqft have been tagged against 330 sqft, rest all tenants are tagged with either 663 sqft or 723 sqft. Currently 7 out of 21 floors are constructed.

We had exchange of series of legal notices for temporary & permanent alternate accommodation and MOU execution.

For one of the tenancy (handicap sister) we filed suit for temporary and permanent alternate accommodation pray. Developer immediately came up with Rent on 1st day for that tenancy; but only Rs. 1,80,000 (cheque part) with arrears . He got permanent alternate accommodation draft agreement sating 440 sqft only. We prayed for stay to redevelopment unless we get permanent alternate accommodation agreement. We showed the RTI doc to court showing 663 sqft allocated against our names. Court asked MHADA to confirm on that plan. Court did not grant stay to redevelopment stating that the construction is happening as per plan i.e. 663 sqft. Whether 440 or 663 court will hear.
He is now threatening us to do as he says; else he will change the plan and conceal one bedroom in each flat to make it 440 sqft. Remaining area will not be useful to anyone of us nor him. 
His latest proposal is as below –
1)	He will give 3 flats 663 sqft each against our tenancy. He will provide us on 1st, 2nd & 3rd floor only. We do not have choice. Though the plan says 5,6 & 7th floors
2)	Stampduty & registration for difference area (663-440) needs to be borne by us
3)	We have to sign a MOU whereby we state we do not have any claim to him. Meaning forego consideration worth 3 cr

We are fine with amicable mutual settlement; but I feel that can happen only when we can succeed in getting stay and cause hindrance to developer.

My main queries –
1)	Can developer change the plan and give us only 440 sqft and give 663 sqft / 723 sqft to other tenants. 
2)	Does our MOU has any legal binding. 
3)	If we open up that in the court of law then what consequences can happen to our case with youngest brother. I guess youngest brother will surely succeed in getting stay to construction. But
a.	Will court penalize us & developer for hiding the arrangement. 
b.	If we open up MOU; then can we ask court to release temporary stay on tenancy flats. Ask developer to pay our part of consideration and the 1/5th share of youngest brother in escrow account till youngest brother proves his share.
Dancing to the tune of Developer is the only option 
What is the best strategy to get Developer on table for settlement wherein we also have some say
Asked 2 years ago in Property Law from Greater Mumbai, Maharashtra
Religion: Hindu
1)Dont bow down to developer black mail tactics . 

2) developer cannot change the approved plans without the consent of the tenants 

3) since matter is subjudice  any change of plans would not be done by BMC 

4) MOU is binding on the parties 

5) settle with your younger brother and put a united front against the builder . it is better your brother gets some money rather than an unscrupulous builder 

6) you cannot make out a new case at evidence stage . in your plaint details of MOU ought to have been mentioned 
Ajay Sethi
Advocate, Mumbai
45520 Answers
2676 Consultations

5.0 on 5.0

1) you would be entitled to 660 square feet as per the sanctioned plans 

2) disposal of suit would depend upon pendency of court cases 

3) since you have engaged a lawyer he would advise on time taken for disposal of case 

4) you ought to have  claimed rs 3 crores too as per your MOU 
Ajay Sethi
Advocate, Mumbai
45520 Answers
2676 Consultations

5.0 on 5.0

You  have to drag the developer to court either civil or consumer court and seek relief as was originally agreed, let him say his version before court, you may even seek an order of injunction and bring the construction to a halt so that the builder will feel the pain though he may appear to not bother. 

How much time it could take from this stage for the court to order the developer to execute the  permanent alternate accommodation as per plan in BMC 
This aspect may not be predicted because various factors are involved in it. 

T Kalaiselvan
Advocate, Vellore
35701 Answers
387 Consultations

5.0 on 5.0

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