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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Kamal Khata, J.
Cable Corporation of India Limited - Appellant
Versus
The Western Edge II Premises – Respondent
Appeal From Order No. 14 of 2024 With Interim Application No.241 of 2024
Decided On : 17-03-2026
| Table of Content |
|---|
| 1. appeal challenges injunction freezing owner's reserved fsi. (Para 1 , 2 , 3 , 4) |
| 2. limited fsi granted to developer; balance reserved to owner. (Para 5 , 6 , 7 , 8 , 9) |
| 3. society seeks extra fsi for unauthorized alterations regularization. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 4. landowner not mofa promoter; contracts limit developer fsi. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31) |
| 5. owner causes construction, qualifies as promoter needing consent. (Para 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48) |
| 6. no agency; bare injunction invalid without title declaration. (Para 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60) |
| 7. developer independent; fsi reservation specifically disclosed. (Para 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71) |
| 8. granting dev rights does not make owner mofa promoter. (Para 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89) |
| 9. section 7 inapplicable to owner's independent reserved fsi use. (Para 90 , 91 , 92 , 93 , 94 , 95 , 96 , 97 , 98 , 99 , 100 , 101 , 102 , 103 , 104 , 105 , 106 , 107 , 108 , 109 , 110 , 111 , 112) |
| 10. bare injunction suit barred without declaration of rights. (Para 113 , 114 , 115 , 116 , 117 , 118 , 119 , 120 , 121 , 122 , 123 , 124 , 125 , 126 , 127 , 128) |
| 11. plaint rejected as abuse for pressuring fsi transfer. (Para 129 , 130 , 131 , 132 , 133 , 134 , 135 , 136 , 137 , 138 , 139 , 140) |
JUDGEMENT :
KAMAL KHATA, J.
1. This Appeal has been preferred by the Appellant/Original Defendant No.1 (“the Owner”) under Order XLIII Rule 1(r) challenging the Order dated 30th October 2023 passed by the Learned Additional Principal Judge, City Civil Court at Dindoshi, in Notice of Motion No. 2989 of 2022 in S.C. Suit No. 2103 of 2022 ("Impugned Order").
2. By the Impugned Order, the Learned Trial Court allowed the Notice of Motion filed by Respondent No. 1 ("the Society") and has granted injunction restraining the Appellant-Owner from utilising any FSI/TDR, creating third-party rights, and or commencing any construction on the land bearing CTS Nos. 165 and 163A admeasuring approximately 31,123 sq. mtrs. at Village Magathane, Borivali, Mumbai (“Suit Land”).
3. The Owner's grievance against the impugned Order is threefold.
i. The Trial Court has granted sweeping and drastic interim reliefs which effectively freeze the entire development potential of the Suit Land, even though the Society has failed to establish any prima facie case entitling it to the Owner's reserved and contractually demarcated FSI/TDR rights.
ii. Second, that the Trial Court has completely overlooked the express terms of the Development Agreements of 2005 and 2008, as well as the Agreements for Sale executed with the flat purchasers, which clearly record that development rights of Respondent No. 2 were restricted to 59,157 sq. mtrs. FSI/TDR, while the balance FSI/TDR was expressly reserved to the Owner.
iii.Third, that the Trial Court has failed to consider that the present suit has been instituted by the Society as a means to pressurize the Owner to part with additional FSI/TDR, allegedly required for regularisation of unauthorised additions and alterations in the Society’s own building.
4. In these circumstances, the principal question that arises in this Appeal is:
Whether, pending final adjudication of the Suit, an Owner who has expressly reserved its balance FSI/TDR rights under Development Agreements - which are incorporated and acknowledged by the flat purchasers' in their own Agreements for Sale - can nevertheless be injuncted from dealing with those reserved rights solely on the basis of the Society's claim that it is entitled to such balance FSI/TDR under the provisions of the MAHARASHTRA OWNERSHIP FLATS ACT , 1963 ("MOFA").
FACTS OF THE CASE
5. It is an undisputed fact that the Appellant is an owner of the land parcels bearing CTS No.165 and 163A totally admeasuring 151,328 sq.mtrs. si
Landowner granting limited FSI/TDR rights to independent developer, reserving balance acknowledged by purchasers, not 'promoter' under MOFA; cannot be injuncted from using reserved rights; bare injun....
Third-party purchasers cannot enforce rights against a society after the termination of the developer's agreement; their remedies lie solely with the developer.
The Competent Authority under MOFA cannot adjudicate title disputes; it must fulfill statutory obligations to issue deemed conveyance to the Society.
Deemed conveyance must only cover completed areas of a property, reserving rights of the developer for ongoing and future construction under applicable law.
Disputes over excess area or title in deemed conveyance orders under MOFA Section 11(3) are for civil courts, not writ jurisdiction; promoters cannot retain land via private clauses against statutory....
The court affirmed that deemed conveyance under MOFA can apply to composite societies, despite differing member agreements, emphasizing equitable treatment and the necessity of proper procedural comp....
The court ruled that a developer's right to complete construction cannot be denied due to the execution of a deemed conveyance; proportional land conveyance is valid under the Maharashtra Ownership F....
A covenant in a Deed of Conveyance runs with the land and binds successor parties, holding statutory presumption of validity unless specifically challenged.
The court established that an agreement recognizing tenants as owners of flats, coupled with the receipt of consideration for those flats, qualifies the landlord as a promoter under the Maharashtra O....
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