Developers must adhere to disclosed building plans and obtain consent for alterations under MOFA, ensuring compliance with statutory obligations for transparency to flat purchasers.

JUDGMENT :

SANDEEP V. MARNE, J.

1. The issue involved in the present Appeal is about entitlement of a developer to construct an additional building, which is disclosed in the sanctioned layout, but specifications of which differ in respect of plinth area and number of floors than the one appearing in the disclosed layout without obtaining flat purchasers’ consent. Also involved is the issue whether the consent given by flat purchasers for utilization of the entire balance FSI potential would entitle the developer to make alterations in the disclosed plans and layout. Though the issues seem to be answered in judgments of the Apex Court in Jayantilal Investments vs. Madhuvihar Coop. Housing Society and Others , (2007) 9 SCC 220 , Malad Kokil Co-operative Housing Society Ltd. vs. The Modern Construction Co. Ltd. and Others , (2012) 6 AIR Bom. R-257 and Dosti Corporation , Mumbai vs. Sea Flama Co-operative Housing Society Ltd. 2016 (5) Mh. L.J. 102, Appellant has sought to distinguish those judgments on a plea that those cases related to entitlement of developer to utilize additional FSI resulting out of introduction of new DEVELOPMENT CONTROL REGULATION or changed policy and that Appellant, in the present case, enjoys the necessary flexibility to utilize the balance FSI potential arising out of erstwhile Regulations by making necessary changes in the plinth area as well as number of floors.

(A) THE CHALLENGE

2. The issues arise on account of challenge raised by the Appellant (Developer) to the Order dated 22 February 2023 passed by the City Civil Court granting temporary injunction in favour of the Plaintiff/Respondent (Society) thereby restraining it from developing the suit property and/or alienating, selling, transferring and/or disposing of any flats/units in the proposed building to any third party and/or from carrying out any activity of demolition or construction on the suit property. The City Civil Court has however permitted Appellant-Defendant to carry out construction of building strictly in accordance with approved layout plan dated 26 July 2004. In short, the City Civil Court has injuncted Appellant-Defendant from carrying out any construction on the suit property otherwise than as per the approved plan dated 26 July 2004.

(B) FACTUAL BACKGROUND

3. Briefly stated, facts of the case are that a Development Agreement was executed between the landowners and the Appellant-Developer on 03 February 2003 in respect of land admeasuring 4429.36 sq. mtrs. together with rights to utilize potential development area of about 3957 sq. mtrs. situated at City Survey No. 13/13 and forming part of Survey No. 267, Hissa No. 1(pt) of Village Kurla, Taluka Kurla situated at Chuna Bhatti (East), near Bunter Bhavan, off Sion-Chembur Road, Mumbai (Suit Property). The Appellant-Developer got the plans approved for construction of 03 bui