Section 9 As An Eviction Shortcut? Why Mumbai's Re-Development Battles Keep Coming To Court

Re-development in Mumbai is both necessary and contentious – thousands of dilapidated buildings need re-building, but the viability of each project depends on residents vacating their homes. Most residents cooperate, but a few resist re-development. When that happens, in some cases, housing societies, with the support of a the majority, nevertheless enter into development agreements with developers. The developers then often rush to the Bombay High Court under Section 9 of the Arbitration and Conciliation Act, 1996.

Section 9 gives courts power to pass temporary orders in support of arbitration. It was never designed as a standalone remedy. Yet in re-development disputes, it has become just that - a way to secure possession from unwilling occupants without any subsequent arbitration proceedings. Recent court rulings have widened this practice, but not without putting in place important safeguards.

What is Section 9?

In simple terms, Section 9 is a mode to obtain “emergency relief”. It allows a party to ask a court for urgent help before or during arbitration, to protect property which is the subject matter of the arbitration during the pendency of arbitration proceedings.

In Sundaram Finance v NEPC^[2], the Supreme Court clarified that two conditions must be satisfied for relief to be granted under Section 9:

1. There must be a valid arbitration agreement and a dispute that can be referred to arbitration; and
2. There must be a genuine intention to arbitrate. A party cannot take resort to Section 9 as a standalone stratagem without actually proceeding to arbitration.

This distinction matters in re-development cases. If the developer and society are fully aligned, there is no real dispute between them. A Section 9 petition in such circumstances risks becoming a proxy eviction proceeding against occupants who refuse to vacate.

How the Bombay High Court expanded Section 9 in re-development cases

The first significant step came in Girish Mulchand Mehta^[3], where the Court said Section 9 proceedings could be initiated even against members who had not individually signed the re-development agreement. Since members act through their society they are subsumed within the identity of the society, and cannot block re-development by claiming that they are not parties to the development agreement.

Late in Sarthak Developers^[4], the Court added relief could also extend to property in the possession of a dissenting members or third party, so long as the property was the subject matter of the arbitration.

However, in Avenue Seasons Properties^[5], the Court refused relief. Two bungalow owners resisted eviction, and the Court held that only signatories to the development agreement were bound. Since the bungalows were independent structures that were not essential to the re-development of the society's building, no Section 9 relief was granted.

Subsequently, in Pranav Constructions^[6], the Court reaffirmed the broader approach: even non-signatories occupying society flats could be directed under Section 9 to vacate. The only way to reconcile Avenue Seasons is that the dissenting bungalows were independent structures which were not needed for re-development, unlike flats within a society building..

The boldest move came in Ambit Urbanspace^[7]. The Court held that even a non-member occupier (wholly unconnected to the society) could be directed to vacate. Re-development could not be held hostage by such disputes between the society and individual members or non-member occupants. This ruling has significantly widened the net of Section 9.

Safeguards: eviction is temporary, not permanent

This expansion of Section 9 was balanced in Ritesh Haldar^[8], where the Court stressed that ouster under Section 9 is only temporary and must carry robust safeguards:

• The occupant actually in possession who is being dispossessed for the re-development must receive the transit rent paid by the developer.
• Such occupant must be reinstated in the re-developed building once the project is completed.
• However, the permanent alternate accommodation agreement must be executed with the member as per the society records, so that the ownership of the re-developed flat vests in such person.

These measures ensure that Section 9 does not result in a permanent eviction but is only a temporary measure to allow re-development work to proceed.

A word of caution

In Gulshan Townplanners^[9], the Court warned against the misuse of Section 9. In that case, the developer and society were aligned, there was no inter-se dispute, and their only objective was to oust a complete outsider in occupation of certain premises. The Court held this was a misuse of Section 9, because there was no real intention to arbitrate any dispute between the developer and the society.

This reasoning resonates with the Supreme Court's decision in Sundaram Finance that Section 9 must be “in aid of” a contemplated arbitration, not a standalone remedy. The word of caution in Gulshan Townplanners must not be lightly brushed aside. In practice once developers secure possession through Section 9, arbitrations between them and the society rarely follow, leaving a gap between principle and practice.

The unresolved tension

Two strands of doctrine now run in parallel:

• The pragmatic: Division Bench rulings in Ambit and Pranav show a willingness to stretch Section 9 so that re-development projects are not stalled by a few dissenters.
• The principled: Sundaram Finance and Gulshan remind us that Section 9 was never meant to be a standalone action. Without a real arbitration, these orders risk losing legitimacy.

Unless a more principled framework is developed, the expanded use of Section 9 though these innovations may be vulnerable to scrutiny by the Supreme Court.

Why it matters

The stakes are enormous. Mumbai's survival depends on re-development. Without a quick remedy like Section 9, projects could be paralysed by a handful of naysayers. However, the expanded Section 9 risks drifting far from its statutory purpose and eroding due process for non-members. The challenge ahead is to that Section 9 is used only when it is linked to a real arbitration.

Section 9 has become the sharpest weapon in Mumbai's re-development battles. Courts have used it innovatively to keep projects moving but often without the anchor of a real arbitration. Courts have tried to balance this by ensuring the safeguards of transit rent and re-entry for the ousted occupant. Yet, the doctrinal underpinning remains fragile. A more principled approach is required. Re-development must not grind to a halt, but neither should the law turn Section 9 into a backdoor eviction tool.

Author is advocate practicing in the Bombay High Court. Views Are Personal.

2. (1999) 2 SCC 479 ↑

3. Girish Mulchand Mehta v Mahesh S. Mehta (2010) 2 MhLJ 657 ↑

4. Sarthak Developers v Bank of India Amru-Tara - Bombay High Court judgment dated 5 December 2012 in Appeal(L) No. 310 of 2012 ↑

5. Avenue Seasons Properties LLP v Nissa Nensey 2024 SCC OnLine Bom 4127 ↑

6. Pranav Constructions Limited v Priyadarshini Co-operative Housing Society Limited (2025:BHC-OS:10901-DB) ↑

7. Ambit Urbanspace v Poddar Apartment Co-operative Housing Society Limited (2025:BHC-OS:9775-DB) ↑

8. Ritesh Haldar v Elite Housing LLP (2025:BHC-OS:9704-DB) ↑

9. Gulshan Townplanners LLP v Gulshan Co-operative Housing Society Ltd. 2024 SCC OnLine Bom 3111 ↑