Court’s Decision
The Court refused to grant an injunction restraining construction of Wing C5, holding that the developer’s proposed 16-floor building is entirely consistent with the 1993 sanctioned layout. The Court ruled that the flat-purchasers had long-standing knowledge that Building Nos. 4 and 5 consisted of eight buildings of stilt + 16 floors, and that no material was produced to show that the proposed C5 structure violated MOFA or consumed FSI beyond the sanctioned limits.
The Court held that “the Plaintiff was always aware that Wing C5 would have 16 floors”, and the documents relied upon by both sides confirmed this position.
The Interim Application seeking to stop construction was consequently rejected.
Facts
The dispute arises out of construction in a large residential layout developed under the Maharashtra Ownership Flats Act, 1963. The plaintiff is a registered society comprising 309 members residing in Building No. 4 (wings B1, B2, C1, C2). The grievance concerns the developer’s move to construct Wing C5, which forms part of Building No. 5 in the same layout.
The society alleged that the developer had exhausted the permissible development potential and that Wing C5 was never intended to be a 16-floor structure. It argued that FSI had been overused, sanctioned plans misrepresented, and that the original layouts did not contemplate Wing C5 as a significant multi-storey building.
The developer countered that multiple disclosed documents since 1993, 1995, 1997, 2011, 2016, 2018 clearly showed Wing C5 as a 16-floor building, and that the society’s members were always made aware of this.
The developer also voluntarily offered a concession: it would construct only one building of 16 floors, consistent with the 1993 plan, rather than the larger three-wing proposal in the 2019 unapproved plan.
Issues
- Whether Wing C5 was originally disclosed as a 16-floor building in the sanctioned plans and documents shared with flat-purchasers.
- Whether the developer had exhausted the development potential/FSI, rendering construction of C5 impermissible.
- Whether under MOFA, purchasers’ rights were violated by constructing C5 as per the 1993 layout.
- Whether an injunction could be granted restraining construction at this interim stage.
Petitioner’s Arguments
The society argued that the developer had fully consumed the development potential of the layout and particularly Building No. 5. It relied on charts from the 2016 sanctioned plan and 2019 unapproved plan, claiming that earlier wings (B3, C3, C4) themselves had utilised 22,513.38 sq mtrs of permissible FSI.
The Plaintiff argued that flat-purchasers were presented with a much smaller structure (stilt + 1) for C5 and that the later 16-storey proposal was a unilateral change. It contended that no prior consent under MOFA was obtained for increased construction and that the layout’s open spaces, amenities, and FSI promises made to purchasers would be violated.
The Plaintiff also argued that the developer enjoyed statutory immunity for 15 years under the Bombay Relief Undertakings Act, preventing purchasers from litigating earlier violations, and therefore the present challenge was the first opportunity to enforce rights.
Respondent’s Arguments
The developer asserted that every authoritative document since 1993 disclosed Wing C5 as a 16-floor structure. These included:
- 1993 Fire Officer No-Objection Certificate
- 1995 Parking Layout issued by MCGM
- 1997 Layout Plan
- 2011 MoU and Joint Venture Agreement
- 2016 Joint Venture Agreement
- 2018 Assignment Agreement
The developer emphasised that even the Plaintiff’s rejoinder of February 2020 admitted that Wing B-4 (earlier numbering) had been renamed as Wing C5.
It was further pointed out that buyers themselves possessed plans showing refuge floors at 7th and 12th levels, proving that C5 always had at least 16 floors.
The developer denied any impact on garden, swimming pool, or clubhouse if construction followed the 1993 plan and noted that the Plaintiff had themselves conceded this fact.
Analysis of the Law
The Court analysed Sections 3, 4 and 7 of MOFA which mandate full disclosure of sanctioned plans, layout details, FSI consumption, and future development. It reiterated that the duty of disclosure must be measured with reference to the documents shared with purchasers at the time of sale.
The Court observed that multiple documents dating back to 1993 and 1995 were on record, all of which had been “produced by the Plaintiff themselves”. These documents showed C5 as a 16-floor building.
The Court held that MOFA does not prohibit developers from constructing what was originally disclosed, and purchasers cannot object to construction merely because it occurs later in time.
Precedent Analysis
1. Sheth Developers (Bombay High Court)
Referred to for the principle that clauses postponing conveyance until full development are not contrary to MOFA.
Applied here to show that the disclosure of total number of buildings and floors was consistent with law and binding.
Court’s Reasoning
The Court found the factual matrix decisive:
- The 1993 Fire NOC produced by the society clearly mentioned 16 floors for the wing then numbered B-4 (now C5).
- The 1995 Parking Layout showed the same.
- The 1997 layout plan reaffirmed “stilt + 16 floors”.
- Agreements of 2011, 2016, and 2018 repeatedly described Buildings 4 and 5 as “8 buildings of 16 floors each”.
- Refuge areas at 7th and 12th floors appeared in the 1995 IOD, impossible in a low-rise structure.
Thus, flat-purchasers could not plausibly argue that C5 was meant to be smaller.
On the FSI argument, the Court noted that although the Plaintiff claimed excessive consumption, no contra-material was shown to prove that the permissible layout-wide potential was breached.
Finally, the developer’s concession limiting C5 to exactly what was sanctioned in 1993 made the claim of violation untenable.
Conclusion
The Court held that Wing C5 was always intended to be a 16-floor building, fully disclosed to purchasers through multiple sanctioned layouts and statutory documents. No case for injunction was made.
The Interim Application was dismissed.
Implications
- Flat-purchasers cannot contest disclosed development merely because the construction occurs much later.
- Historic plans carry high evidentiary value under MOFA, especially when produced by purchasers themselves.
- Developers who stick to original sanctioned layouts retain their right to complete construction even after long intervals.
- MOFA injunctions cannot be granted unless the purchaser shows clear deviation from original sanctioned plans.
Cases Referred and Their Relevance
Sheth Developers
Held that postponed conveyance until completion of total development is not illegal.
Used to reaffirm that the developer’s disclosure of 16-floor structures was valid and binding.
FAQs
1. Can flat-purchasers stop construction even if a building is part of the original sanctioned layout?
No. If the building was disclosed from the outset in sanctioned plans, MOFA does not permit injunctions merely because construction is delayed.
2. Does a developer need purchaser consent to construct a building already shown in past approved plans?
Consent is required only for additional construction beyond disclosed plans. Here, C5 was always shown as a 16-floor building.3. Can FSI misuse be a ground to halt construction under MOFA?
Yes, but only when clear documentary proof shows that FSI is exhausted. No such proof was shown in this case.