Cessed Building or legal structure can be declared as Slum under Maharashtra Slum Laws? Why there is recent trend declaring such building as slum?

We have come across a new trend from Builders and Developers , they buy land along with structure and than they approach SRA ( Slum Rehabilitation) for declaring property as Slum.

While discussing this issue with professional colleague we came to know its not one incident in most of cases to avoid giving more areas under Redevelopment Laws , they approach SRA where FSI is high which goes up to 4.9 or sometime between 6 to 9  as per 2034 DCR Mumbai. These structures are legal structures or Cessed Building.

Yet survey report is prepared and notification is issued by SRA inviting objections from concerned parties.

Now if this is trend its for the Courts to finally decide whether this trend is right and legal or ultra-vires? If so why such trend started? Whether any curb or lid is required to lay on such trend? Why SRA entertain such applications, despite of an extension of Corporation though independent records are in common which is maintained by Mumbai Municipal Corporation.

Let us see provisions of Slum Law in Maharashtra.

the occupiers under Section 2e of the Slum Act is reproduced hereunder:

(e) “Occupier” includes, (i) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable; (ii) an owner in occupation of, or otherwise using, his land or building; (iii) a rent-free tenant of any land or building; (iv) a licensee in occupation of any land or building; and (v) any person who is liable to pay to the owner damages for the use and occupation of any land or building;

The definition of owner of the said Slum Act 1971. The said definition is in Section 2f of the Slum Act.

(f) “Owner” when used with reference to any building or land, means the person who receives or who is entitled to receive the rent of the building or land, if the building or land were let, and includes, (i) an agent or trustee who receives such rent on account of the owner; (ii) an agent or trustee who receives the rent of, or is entrusted with, or concerned for, any building or land devoted to religious or charitable purpose; (iii) a receiver, sequestrator or manager appointed by a court of competent jurisdiction to have the charge of or to exercise the rights of owner of the said building or land; and . (iv) a mortgagee-in-possession; 3 [but does not include, a slumlord;]

Mandatory provision of Chapter II Section 4 of the Slum Act 1971 has put an embargo on declaring any property as ‘Slum’ in explanation to Section 4(1) of the Slum Act 1971. We say that the Slum Authority as no power to declare following buildings as slum areas:

1. Cessed building;
2. Building constructed with permission of the relevant authority at any point of time;
3. Any building in an area taken up under the Urban Renewal Scheme.

The said provision is reproduced herein below.

“[Explanation. – For the purposes of clause (b), the expression “buildings” shall not include. –

(a)       cessed buildings in the island City of Mumbai as defined clause (7) of section 2 of the Maharashtra Housing and Area Development Act 1976, or old buildings belonging to the Corporation;

(b)       buildings, constructed with permission of the relevant authority at any point of time;

(c)        any building in an area taken up under the Urban Renewal Scheme.]”

It is very core ingredient of the law which was inserted with a purpose to exclude such property from the purview of the Slum Areas had its legislative intent to protect the legal constructions otherwise the builders to defeat the rights of the occupiers / tenants and owners would in the same manner more to the Slum Authority for higher FSI and lower alternative accommodation.

The vicious and purported conning intention of the developer who after purchasing the property registering the conveyance moves to Slum Authority for declaring the structures as Slum is itself bad in law and the Slum Authority by declaring the said property as Slum Area has violated the provisions of Section 4(1) Explanation (b) of the Slum Act, 1971 thereby the Authority has exceeded its jurisdiction and powers vested in them by virtue of  the Slum Act 1971. This will be decided in long run.

It means that if the landlord / builder gives an offer of alternative accommodation, he has to give minimum of the area occupied by the tenants under this mandatory provisions.

Now let us see the provisions of the Development Control Regulations for Greater Mumbai 1991. For  redevelopment Rule 33 (7)  for legal structures and therefore, the building is at loss in FSI which is ‘2.5’ and alternative accommodation to be given is between 300 sq.ft to 735 sq.ft

However, in case of Development under Regulation 33(10) the maximum FSI available goes upto 2.9 and the alternative accommodation specified in the said DCR is minimum of 300 sq. ft. However, it is pertinent to note that Regulation 33(10)(II)(ii) also provides that if any area fulfills the conditions laid down in Section 4 of the Slum Act 1971 to qualify as slum areas and has been censused or declared and notified shall be deemed to be and treated as slum areas.

Under DCR 2034 total available FSI for redevelopment is 3.00 which may go upto 4.5 but alternative accommodation area is provided between 300 sq.ft to 1292 sq.ft under DCR 33(7) for redevelopment.

While under 33(10) for slum redevelopment while in case of Slum the area to be provided is 225 sq.ft while FSI /TDR may go upto 5 to 7 as per discussion with architects .So naturally builders have more profit by declaring building/legal structure slum rather than going for redevelopment and convince all occupants.

Now if this is case is this a legal way or ultra-vires that court will decide which may take decades , but such matter is before SRA authorities and they have issued notification for declaring as Slum. At present occupants are facing litigation in invitum because of such interpretation by authority. This needs urgent attention of the government.

Shruti Desai

5^th May,2019

Mumbai.