Redevelopment encroachment issue

This query is : Resolved 

Online (Querist)
23 February 2021

Our building is a 40 years old in Mumbai suburbs, on the ground floor we have a restaurant since last 15 years. They have encroached the open area (~900 sq Ft) of the building and enclosed it as part of their restaurant. Now we are planning to go in for redevelopment but the restaurant owner is claiming the open area also to be considered as his carpet area and get the benefits of redevelopment. His contentions for this are he claims
1. 15 years back he says he had given some money to the society for this area, society does not have any records of this transaction.
2. He is paying maintenance to the society for the whole area
3. He is paying property tax to BMC for the whole area
There is no papers backing that the open area was bought by him, his registration papers also mention only the part that was sold to him not the open area.
Our contention is that
1. Even if he had paid the money to the society, it was just to keep the members from complaining to police/bmc as earlier it was a ladies bar.
2. Society cannot sell off open area to anyone as it is open to sky
3. Paying maintenance or property tax does not mean that he owns the area
4. He had given an undertaking earlier to society that he was using the open area and would not claim it in future

Now he has created a divide between members of the society to get his area, as our building is very old nearing 40years we need to go in for redevelopment. There are couple of members who are with him say that we the members pitch in from our share of area and give it to him and get the redevelopment done, which another set of members don't agree.
What could be a good approach here, should we go in for legal options here? Incase we go in for legal options how much time would it take for the case?

P. Venu Online (Expert)
24 February 2021

Facts posted suggest that he cannot claim title to the open area. Payment of taxes, maintenance etc. need not substantiate title.

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