JUDGMENT:

SANDEEP V. MARNE, J.

PROLOGUE

1. Home owners of one of the swankiest skyscrapers in South Mumbai ‘The Imperial’ are up in arms with the developer, who is proposing to construct not only additional buildings in the layout but also additional flats in the existing building.

2. Apart from notably crowned with spires and glass enclosures as key architectural feature, ‘The Imperial’ also wore the crown of being India’s tallest building for few years in the past. Ironically however, the ultra-luxurious twin towers of ‘The Imperial’, which are home to affluent residents, is a product of incentive offered to the developer for rehabilitation of poor slum dwellers on the encroached land. To recoup the expenditure incurred for constructing rehabilitation tenements for slum dwellers, the developer receives incentive in the form of selling some flats in the market. The swanky skyscrapers of ‘The Imperial’ have thus emerged by utilization of incentive received towards rehabilitation of slum dwellers while implementing a slum scheme.

3. ‘The Imperial’ project was initially envisaged as triple towers in the layout. While simultaneously rehabilitating the slum dwellers, the developer took up construction of only two out of the three planned towers, construction of which was partly completed in 2009 and fully in 2014. The Developer has kept the slum scheme incomplete for over 25 years and has constructed a fourth unplanned tower ‘Imperial Edge’, while keeping under wraps, the specifications for construction of the third planned tower. The specifications of the third planned tower are now rolled out, which has created an anxiety for the residents of the existing twin towers. However, keeping the slum scheme pending for over 25 years, clubbing the same with another slum scheme at Wadala and various changes in FSI norms occurring in the interregnum, appears to have resulted in a bonanza for the developer, who is now armed with such massive sanctioned sale component built-up area that it is finding it difficult to consume the same in entirety in the third planned tower. It has accordingly planned construction of a fifth building in the land ‘Town House’. The developer has also brazenly proposed to feed the refugee and other areas of the existing twin towers with FSI by constructing additional flats therein.

4. Accordingly, 48 apartments owners of the existing twin towers have filed the present suit for restraining the developer from carrying out any further construction in the layout by seeking to enforce their rights under Sections 7 and 7A of the Maharashtra Ownership of Flats (Regulation of the promotion of Construction, Sale, Management and Transfer) Act 1963 (MOFA). Their action is however met with defences by the developer that provisions of MOFA are inapplicable to the project in question on account of it being executed on land of Maharashtra Housing and Area Development Authority (MHADA) andin the alternative, the disclosure provisions under the MOFA not being enforceable in respect of a building constructed while implementing a slum scheme. Raising of such defences by the developer has given rise to issues of seminal importance for prima facie determination by this Court while deciding the application for temporary injunction filed by the Plaintiffs.

5. In their Suit, Plaintiffs have filed the present Interim Application seeking temporary injunction essentially to restrain Defendant Nos.1 to 4 from undertaking any construction in any part of the layout, as well as in Towers-A and B of the building ‘The Imperial’, contrary to the sanctioned disclosed plan of 31 December 2009. Plaintiffs have also sought appointment of Court Receiver in respect of Club House, podium levels and refugee area in the building. They have also sought full, true and complete disclosure of status of construction in the building.

FACTS

6. The land bearing Cadastral Survey No.725 of Malabar and Cumballa Hill Division of Mumbai City comprised of a large tract of land,