JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard learned Advocates for the parties. Perused records. The short point for consideration which arises in the matter is whether the Corporation could have rejected the proposal of the petitioner for utilisation of the balance 0.25 F.S.I. potential of the plot which undisputedly belongs to the society.

2.The petitioners are the owners of a land bearing C.T.S. No. 248 at Borivali (West), Mumbai Suburban District, having purchased the same from M/s. Parag Corporation, the builders. The title to the plot was acquired by the petitioner society pursuant to a consent decree passed in Original Side Suit No. 1272 of 1984 on 22-9-1984. Accordingly the petitioners name has been entered as the holders/occupiers of the plot in the property register card. At the time of acquisition of title to the property by the petitioners society, the permissible F.S.I. was 0.75 : 1. However, under the Development Control Regulation, 1991, the F.S.I. which could be availed from the properties was fixed at 1 : 1. Consequently the F.S.I. to be generated from the said plot was increased by 0.25 : 1. The petitioners therefore decided to utilise the additional F.S.I. by constructing an extension to the three buildings in such a way that each of the members would get one additional bed room attached to his or her flat and for that purpose submitted a lay out to the respondents which was approved by the respondents by order dated 19-1-1999. On such approval of the lay out, the petitioners submitted the plans to the respondents. Initially by letter dated 5-7-1999 as well as 15-7-1999 the petitioners were informed that on payment of requisite fees, the plans would be approved. However, by letter dated 27-12-1999, the petitioners were informed by the respondents that in view of the claim by M/s. Parag Corporation that they have right to utilise the said F.S.I., sought clarification in that regard from the petitioners. The petitioners, therefore, while refuting the claim of M/s. Parag Corporation to the said F.S.I., informed the respondents that the claim, if any, of such third party is to be adjudicated in the Court of law and the petitioners, who are admittedly the owners of the plot cannot be prevented from developing their property. The respondents, however, by their letter dated 19-1-2001 rejected the plans on the ground that the petitioners have no right to utilise the said F.S.I. potential of the plot. Hence the present petition.

3.It is not in dispute that the Corporation has rejected the proposal of the petitioner society for utilisation of the balance 0.25 F.S.I. potential of the societys plot solely on the ground that there is objection from M/s. Parag Construction for the same, as M/s. Parag Construction has also submitted its proposal for utilisation of the said F.S.I. At the same time it is also not in dispute that the plot belongs to the society and it is in occupation thereof. It is also a matter of record that there has been some agreement between the petitioner society and M/s. Parag Construction in relation to the utilisation of the said F.S.I. However, petitioners contention is that the said agreement has nothing to do with the right of the petitioner society to utilise the said F.S.I. or to seek development of the plot for utilising the said F.S.I., which is available to the petitioners consequent to the charges brought about under the Development Control Regulation, 1991, subsequent to the acquisition to the title to the property by the petitioners and which was not available on the date of agreement between the petitioners and the third party. The agreement was relating to the additional F.S.I. as was legally available on the day of the agreement. It is neither necessary nor advisable to adjudicate upon this issue in this petition. The same will have to be decided on an appropriate proceedings between the petitioners and the said third party before an appropriate forum and it is too premature to pronounce

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