Developers must disclose full development potential under MOFA, and construction exceeding this potential without consent from all flat purchasers is impermissible.

ORDER :

R.I. CHAGLA, J.

1. By this Interim Application, the Plaintiff/Applicant is seeking an order of injunction restraining the Defendant No.1 and / or their agents, servants and assigns from making any alterations and / or constructing new Building C5 or Wing C5 or undertaking any construction in the Larger Property. Further, consequential relief has been sought in addition to the primary relief.

2. The captioned Suit has been filed by the Plaintiff in which the present Interim Application has been taken out seeking to enforce its rights under Section 7 (1)(ii), read with Sections 3 (2)(c) and 4(1A)(a)(i) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (“MOFA”). The Plaintiff is a society of flat purchasers occupying Building No.4, consisting of four Wings B1, B2, C1 and C2 that are connected to each other. The Plaintiff – Society has 309 members. The case of the Plaintiff is that, Defendant No.1 – Developer has exhausted the development potential of the land as disclosed to the flat purchasers at the time of the execution of the flat purchase agreements, and in spite of which Defendant No. 1 is seeking to utilize more FSI on the subject plot on account of an increase in FSI due to a change in law, which the Plaintiff contends is contrary to MOFA.

3. A brief background of the facts is necessary:

(i) The land of the Plaintiff – Society is part of City Survey No. 661/1/1. The Developer had constructed two buildings on the said land viz. Buildings Nos. 4 and 5. An Agreement was executed between Defendant No. 3 (land owner) and Lok Holdings (partnership firm) on 31^st July, 1990 granting development rights over the larger layout of the said land. The partners of Lok Holdings incorporated a company called Lok Housing and Constructions (“Developer”).

(ii) An Agreement was executed between Lok Holdings (partnership firm) and the Developer, whereby the latter was assigned the former’s development rights in the larger layout.

(iii) A Supplemental Agreement was executed between Defendant No. 3 and the Developer on 22^nd June, 1993 modifying the terms of its Agreement.

(iv) The Layout/sub-division for the larger property was sanctioned by Defendant No. 2 (MCGM) on 26^th November, 1993.

(v) A Commencement Certificate was obtained by the Developer for development of Building No. 5 on 4^th January, 1995.

(vi) The Sanctioned Plan of the project was issued on 5^th April, 1995.

(vii) The Developer executed Agreements for Sale with flat purchasers in Buildings No. 4 and 5 on 27^th April, 1995. The layout plan mentioned in the said Agreement is the 1993 layout plan. It is pertinent to note that it is the Plaintiff’s case that the 1993 layout plan was not disclosed to the Plaintiff and varied from copy of the layout plan annexed at Exhibit-A to the said Agreements.

(viii) A layout plan of Building No.5 was issued on 11^th March, 1999.

(ix) The Building No.4 received a full Occupation Certificate on 25^th February, 2003.

(x) The residents of Building No.4 formed a co-operative housing society under the name Kanchanchanga Lok Everest (name subsequently changed, on 23^rd December, 2014 to Lok Everest Cooperative Housing Society Ltd. - the Plaintiff herein on 4^th September, 2006). It is pertinent to note that there are ten societies which have been formed on larger layout of the said land.

(xi) A fresh sanctioned plan of the project was issued on1^st November, 2007.

(xii) An Architect’s Certificate was issued on 4^th January, 2008.

(xiii) A Memorandum of Understanding (“MoU”) was executed between the Developer and Defendant No.1 on 29^th April, 2011.

(xiv) A Joint Venture Agreement was executed between the Developer and Defendant No. 1 on 29^th April, 2011.

(xv) The Plaintiff – Society filed an Application on 11^th March, 2014 before the Competent Authority for the deemed conveyance under the provisions of MOFA.

(xvi) The Competent Authority rejected the Plaintiff’s application for deemed conveyance on 16^th