HC ON CONSENT ONCE GIVEN FOR REDEVELOPMENT CANNOT BE WITHDRAWN

HOUSING SOCIETY CAN NOT BE FORCED TO GIVE DEVELOPMENT RIGHTS TO A DEVELOPER

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL
JURISDICTION
WRIT PETITION (L) NO. 10 OF 2010
Justice S. J. Kathawalla

Petitioners
1. Sushila Digamber Naik, R/at Room No.34/1860
2. Kailas Narsaiya Adep, R/at Room No.34/1843
3. Nilofar Shaikh, R/at Room No.34/1845
4. Sarojini Mahabal Shetty, R/at Room No.34/1853
5. Mahendra kathrani, R/at Room No.34/1857
6. Sunil Digamber Naik, R/at Room No.34/1859
7. Eslinda Michael Serao, R/at Room No.34/1875
8. K.C. Govindan, R/at Room No.34/1838
9. Asha Rajendra Jain, ] R/at Room No.34/1858
10. Mangala Pansare,] R/at Room No.34/1830
11. Hansa Bansidhar Bharucha, R/at Room No.34/1833
12. Natha R. Kadam, R/at Room No.34/1846
13. Henry S. Fernandes, R/at Room No.34/1856
14. Manorama Manohar Rane, R/at Room No.34/1863
15. Gopal S. Amin, R/at Room No.34/1866
16. Smitha Jayaram, ] R/at Room No.34/1867
17. Pramod Kirdat Patil, ] R/at Room No.34/1829
18. Salim Khan, R/at Room No.34/1842
19. Shantaram S. Shetty, R/at Room No.34/1840,
All at Kher Nagar Ganeshkrupa Co-operative Housing Society Ltd, Bandra (East), Mumbai-400 051

Versus

Respondents.....
1. Maharashtra Housing & Area Development Authority, Registered Office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai-400 02
2. Mumbai Housing & Area Development Board, Registered Office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai-400 051
3. Executive Engineer, Bandra Division, Mumbai Board, Office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai-400 051
4. Kher Nagar Ganeshkrupa Co-operative Housing Society Ltd., Building No.34, Khernagar, Bandra (East), Mumbai-400 051
5. M/s. A.A. Estate Pvt. Ltd, Registered Office at 3rd floor, RNA House, Fort, Mumbai-400 023
Mr. Kishor Tembe, a/w. Amol K. Tembe, for Petitioners
Mr. G.W. Mattos, AGP, for Respondent Nos. 1 to 3
Mr. P.K. Dhakephalkar, Senior Advocate, i/b. Ashwin Ankhad & Associates, for Respondent No.5.

CORAM: S. J. KATHAWALLA, JUSTICE
RESERVED ON: 22ND JANUARY 2010
PRONOUNCED ON: 4TH FEBRUARY 2010
JUDGMENT

Heard counsel for the parties.

2. Rule made returnable forthwith by consent. Mr. H. Mattos, learned AGP for respondent nos. 1 to 3 waives service. Mr. P.K. Dhakephalkar, Senior Advocate, waives service on behalf of respondent no.5.

3. By this writ petition, the petitioner nos. 1 to 19 have impugned the order passed by the respondent no.3 - Executive Engineer, Bandra Division, Mumbai Board, giving 48 hours to petitioner nos. 1 to 19 (non-cooperative members) to evict the tenements in their use, occupation and possession as mentioned against their names, failing which they be summarily evicted under Section 95-A of the Maharashtra Housing and Area Development Act, 1976 (MHADA Act).

4. Respondent No.4 Kher Nagar Ganeshkrupa Co-operative Housing Society Limited is a registered Co-operative Housing Society and is the licensee of the respondent no.1 Maharashtra Housing and Area Development Authority (MHADA) in respect of its lands and is the owner of the building no.34, Kher Nagar, Bandra (East), Mumbai-400 051. The petitioners are the 19 out of 54 members of respondent no.4 society holding their respective flats.

5. In the year 2003, the members of respondent no.4 society decided to redevelop its property. 45 out of 54 members of respondent no.4 (including petitioner nos. 10 to 19) issued consent letters in support of the redevelopment project. However, petitioner nos. 1 to 9 had not signed the consent letters. 83% of the total members of respondent no.4 society therefore, supported the redevelopment project. Thereupon, the respondent no.4 applied to respondent no.1 (MHADA) for its No Objection Certificate. On 9th January 2004, respondent no.1 (MHADA) issued its No Objection Certificate for redevelopment to respondent no.4. On 19th June 2004, the Authorities under the Bombay Municipal Corporation Act issued an IOD to respondent no.4 society. In the year 2007, 34 members of the society vacated their tenements and shifted to the temporary alternative accommodation allotted to them. However, the petitioners who had since the year 2004 started opposing the redevelopment of the society's property through respondent no.5 (the Developer) refused to vacate their tenements.

6. In the year 2007, respondent no.5 i.e. the Developer filed in the City Civil Court, Mumbai S.C. Suit Lodging No.2697 of 2007 against the petitioners for a permanent injunction restraining the petitioners from obstructing, interfering with the performance of obligations under the development agreement dated 17th June 2003 and for interim orders seeking appointment of Receiver in respect of the premises of the petitioners with power to take possession thereof and to deliver the same to the respondent no.5 for demolition. Respondent no.5 applied for interim orders which were granted by an order dated 1st September 2007. The petitioners preferred an appeal before this Court from the said order dated 1st September 2007. At the ad-interim stage, this Court stayed the order passed by the City Civil Court dated 1st September 2007 and the said appeal is pending in this Court till date. Thereafter, respondent nos. 10 to 18 who had already given their individual written consent in the year 2003, after more than four years, executed declarations withdrawing their consent for the redevelopment project.

7. Thereafter, show cause notices dated 10th August 2009 were issued by respondent no.3 to the petitioners under Section 95A of the MHADA Act. The petitioners opposed the show cause notice by their Advocate's letters dated 13th August 2009 and 2nd September 2009. The petitioners also filed in this Court Writ Petition No.1802 of 2009 challenging the show cause notices all dated 10th August 2009 which petition is pending. Between September 2009 and December 2009, respondent no.3 proceeded with the hearing of the show cause notices and by the impugned order dated 29th December 2009; respondent no.3 called upon the petitioners to vacate their premises within 48 hours failing which summary eviction of the petitioners under Section 95-A of the MHADA Act is ordered. The said order dated 29th December 2009 is impugned in the present petition.

8. The learned Advocate appearing for the petitioners submitted that the petitioners are impugning the order dated 29th December 2009 passed by respondent no.3 under Section 95-A of the MHADA Act, only on the following two grounds:-
(a) That the Mumbai Housing Area Development Board has no jurisdiction to pass an order under Section 95A of the Maharashtra Housing and Area Development Act, 1976.
(b) That the redevelopment scheme is not supported by 70% of the members of the respondent no.4 society.

9. As regards the first issue pertaining to the alleged lack of jurisdiction, the learned Advocate appearing for the petitioners submitted that the provisions of Section 95-A are contained in Chapter VIII of the Maharashtra Housing and Area Development Act, 1976 and consequently, respondent no.2 and/or respondent no.3 being an Officer of respondent no.2 would have no jurisdiction to take any action under Section 95-A of the MHADA Act and that the Mumbai Building Repairs and Reconstruction Board is alone empowered under Section 75 of the MHADA Act to exercise the powers and perform duties and to take action under Chapter VIII of the MHADA.

10. The learned Advocate appearing for respondent nos. 1 to 3 submitted that the Mumbai Building Repairs and Reconstruction Board is empowered to deal with all cessed private buildings in the island city of Mumbai inter-alia to which the provisions of DCR 33(7) applies. The Mumbai Housing and Area Development Board i.e. respondent no.2 is concerned with the MHADA layouts in the island city of Mumbai and in Mumbai Suburbs. Though the provisions of Section 9-5A of the MHADA Act are found in Chapter VIII of the MHADA Act, the Development Control Regulations for Greater Mumbai, 1991 came to be amended by the Government by a notification dated 6th December 2008. By virtue thereof, the Provisions of Section 95-A of the MHADA Act were mutatis-mutandis made applicable to the provisions of DCR 33(5).

11. The learned Advocate appearing for respondent nos. 1 to 3 further submitted that for MHADA layouts in the island city of Mumbai as well as in the suburbs redevelopment is undertaken under DCR 33(5) to which Section 95-A of the MHADA Act is made applicable. The heading of DCR 33(5) reads thus:

"(5) Development/Redevelopment of Housing Schemes of Maharashtra Housing and Area Development Authority"

It is therefore, submitted that the provisions of DCR 33(5) are applicable to a MHADA layout. Admittedly, the building in question is situated in a MHADA layout at Bandra (East), Mumbai, i.e. Mumbai suburbs. An application for approval of the Kher Nagar layout was forwarded to the Municipal Corporation of Greater Mumbai by the Senior Architect and Planner-I, Mumbai Housing and Area Development Board on 24th October 2000. Clause 2 of the said application for approval in terms states that the colony known as Kher Nagar colony is entitled to have 20% additional FSI as per DCR 33(5). The layout approval was granted by MCGM on 21st June 2001. The said layout was approved by the MCGM under DCR 33(5).

12. The learned Advocate appearing for respondent nos. 1 to 3, has further submitted that in pursuance to an application dated 28th July 2003 made on behalf of respondent no.4 society to respondent no.2 (MHADA) for redevelopment, an offer letter dated 13th October 2003 was issued by MHADA, clause 16 of which reads thus:

"All the terms and conditions mentioned in the letter of MCGM's layout approval letter no. CE/72/BPWS/AH dated 21.06.2001 are applicable to your society."

It is submitted that the said layout as aforesaid was approved by MCGM under the said Regulations. Thereafter, a No Objection Certificate for redevelopment was issued by respondent no.2 on 9th January 2004. It is submitted that it is therefore, ipso-facto clear that the redevelopment of respondent no.4 society was undertaken under DCR 33(5) upon NOC from respondent no.2 (MHADA) and thus, as per the said amended provision of DCR 33(5), the respondent nos. 2 and 3 are empowered to invoke the provisions of Section 95-A of the MHADA Act, 1976 and the respondent nos. 2 and 3 have rightly exercised the jurisdiction under Section 95-A of the MHADA Act. The learned Advocate appearing for respondent nos. 1, 2 and 3 has submitted that this Court vide its order dated 29th August 2009 has held that MHADA is vested with statutory powers under 33(5) (7) of the D.C. Regulations, 1991 to issue notice to persons who failed to vacate the existing tenements.

13. In my view, the submissions made on behalf of respondent nos. 1 to 3 are correct in its entirety. Though the Provisions of Section 95A of the MHADA Act are found in Chapter VIII of the MHADA Act, the Development Control Regulations, 1991 came to be amended by the Government by a notification dated 6th December 2008. Regulation 33(5) (7) is reproduced hereunder:

"(5) Development/Redevelopment of Housing Schemes of Maharashtra Housing and Area Development Authority:

(1)............................ (2)............................
(3)............................ (4)............................
(5)............................ (6)............................
(7)………………………

In any Redevelopment scheme where the Co-operative Housing Society/Developer appointed by the Co-operative Housing Society has obtained No Objection Certificate from the MHADA/Mumbai Board thereby sanctioning additional balance FSI with a consent of 70% of its members and where such NOC holder has made provision for alternative accommodation in the proposed building (including transit accommodation) then it shall be obligatory for all the occupiers/members to participate in the Redevelopment Scheme and vacate the existing tenement for the purpose of redevelopment. In case of failure to vacate the existing tenements, the provisions of Section 95A of the MHADA Act mutatis mutandis shall apply for the purpose of getting the tenements vacated from the non co-operative members."

14. As submitted by respondent nos. 1 to 3, admittedly, the H building in question is situate in MHADA layout at Bandra (East) and therefore, it is clear that the provisions of DCR 33(5) are applicable to a MHADA layout. The application for approval of Kher Nagar layout made by the Senior Architect and Planner-I, MHADA, dated 24th October 2000 states that the colony known as Kher Nagar Colony is entitled to have 20% additional FSI as per DCR 33(5). The application for approval was made under DCR 33(5) and the layout which was approved by the MCGM on 21st June 2001 was also under DCR 33(5). As submitted by respondent nos. 1 to 3 clause 16 of the offer letter dated 13th October 2003 issued by MHADA and the approval of the layout of the MCGM under the said Regulations and a No Objection Certificate for redevelopment issued thereafter by the respondent no.2 on 9th January 2004 ipso-facto shows that the redevelopment of respondent no.4 society was undertaken under DCR 33(5). Thus as per the said amended provisions of DCR 33(5), respondent nos. 2 and 3 are empowered to invoke the provisions of Section 95-A of the MHADA Act and the petitioners are not correct in their submission that respondent nos. 2 and 3 had no jurisdiction to pass the impugned order under Section 95-A of the MHADA Act.

15. The next contention of the petitioners is that 70% of the members of respondent no.4 society did not support the redevelopment scheme. A Special General Body Meeting was convened by respondent no.4 society on 29th March 2003 for taking up the property for redevelopment, wherein the Special General Body of respondent no.4 society decided to take steps for redevelopment of the property. Thereafter, in pursuance to the said decision of respondent no.4 society on or about 17th June 2003, a development agreement was entered into, wherein respondent no.4 appointed respondent no.5 as its Developer. The said agreement has been signed by 45 members out of the 54 members of respondent no.4 society, as witness thereto. On the same day, a declaration too was signed by 45 out of 54 members in favour of the respondent no.5. Thus, 83% of the members granted their consent for the said redevelopment. The said declaration in terms states that the petitioners and other members of the society who are signatories to the said declaration, agree and undertake to duly perform the obligations cast upon them under the said agreement entered into by respondent no.4 with respondent no.5, as more particularly stated in paragraph 6 thereof. Petitioner nos. 10 to 19 has signed the said agreement as well as the declaration. The petitioners have not challenged the resolution for redevelopment passed by the society or the agreement with the Developer in any Court. The petitioners have also not initiated any proceedings seeking cancellation/ withdrawal of the consent given by the petitioner nos. 10 to 19 as far back as in the year 2003. If such withdrawals are taken cognizance of, the object of redevelopment of old and dilapidated buildings will never be achieved and will also encourage some of the members of societies to use it as a weapon to blackmail the Developers. The belated withdrawal of consent by some members is, therefore, is consequential. The said aspect has been elaborately dealt with by the respondent no.3 in the impugned order dated 29th December 2009 and as such, the contention of the petitioners that in view of the subsequent withdrawal of consent, the said redevelopment scheme does not have the consent of 70%, is devoid of merits and is rejected.

16. Under the circumstances, the contentions raised by the petitioners on both the above issues are untenable and baseless and are rejected. Consequently, the rule is discharged and the writ petition is dismissed with costs.

17. The learned Advocate appearing for the petitioners seeks a stay on eviction of the petitioners for a period of two weeks from today. The same is granted, subject to the petitioners filing an undertaking on or before 9th February 2010 that in the meantime, they shall not part with possession and/or create any third party rights in respect of the tenements in their possession. If the petitioners fail to file the said undertaking as directed, the stay on eviction shall stand vacated without reference to this Court.

(JUSTICE: S.J.KATHAWALLA)

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NOTION OF MAJORITY IS SUPREME IN REDEVELOPMENT CASES - HC

Non-cooperating/dissenting Members of a Housing Society who are in a minority cannot hold up redevelopment on flimsy and unconvincing grounds and the decisions of the majority are binding upon them as the Bombay High Court has ruled in an important order.

Justice Shahrukh Kathawalla cleared the decks for a mammoth redevelopment project in Vile Parle and directed the Court Receiver to forcibly evict the 27 opposing flat owners with police help if necessary, if they do not vacate the premises voluntarily by October 3 as the resolutions passed by the majority of the members at the General Meetings of the Society are binding on the non-cooperating members.

The Court admonished the obstinate attitude of these opposing members with a reason that the buildings are admittedly in a dilapidated condition and because of the 27 non-cooperating members; the entire redevelopment project has come to a halt. In fact, because of the dilapidated condition of the building, most of these non-cooperating members are also not residing in their respective flats but are residing elsewhere and are adopting a policy of taking baseless objections to stall the project.

The Court observed that of the 120 flat owners, 93 had vacated their flats and were staying in temporary alternate accommodation. The Developer had spent over Rs 27 crore on carrying out various works and paying rents for the transit accommodation.

The Court observed that the majority of the members have no quarrel in having the redevelopment project executed through the Developer. The balance of convenience was completely in favour of the Developer and the large number of members of the Society, who along with their family members, are out of their premises since almost a year and waiting to get new ownership premises upon redevelopment.

Under such circumstances, the grant of interim reliefs being in the interest of a huge majority of the members and their families who have left their present accommodation and are residing elsewhere since the last one year cannot be denied,” said Justice Shahrukh Kathawalla.

The Bombay High Court was hearing an application by Disha Construction against the 27 members who had not vacated their flats in Datta Ramanand Housing Society in Vile Parle (E).

In 2010, Disha had been chosen by the Society to redevelop the complex comprising four buildings with 120 flats. Later an Individual Agreement, following a Special General Body Meeting, was signed between Disha and a majority of flat owners and some of them started vacating the flats from September 2012. As the area of the rehabilitation flats was decreased by 80 sq ft, 27 members refused to sign the Individual Agreements.

The Court held that the Developer and the Society were fair and transparent in their dealings. The High Court appointed a Court Receiver and directed the 27 flat owners to sign the Individual Agreement with the Developer and vacate the flats by October 3, 2013. The Court also asked the Developer to pay all dues. In case the premises were not vacated by October 3, 2013, the Court allowed the Court Receiver to take forcible possession of the flats with police help if necessary.

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HOUSING SOCIETY CANNOT BE FORCED TO GIVE DEVELOPMENT RIGHTS TO A DEVELOPER

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.335 OF 2012 IN
NOTICE OF MOTION NO.1394 OF 2012
IN
SUIT NO.1330 OF 2012

Mr.Gopi Gorwani... Appellant
VERSUS
Jeevan Prabha CHS Ltd and ors... Respondents

Mr.Venkatesh Dhond, Senior Advocates i/b Raval Shah & Co for appellant.
Mr.Sanjay Jain i/b Mustafa Kachwala, for Respondent No.1
Mr.Simil Purohit i/b Ganesh & Co., for Respondent No.3

CORUM M: MOHIT S. SHAH, Chief Justice
&
N.M. JAMDAR Justice

Thursday, August 30, 2012.

1.     This appeal filed by the original plaintiff takes exception to the order passed by the trial Judge of this Court dated 4 April 2012 dismissing the Notice of Motion taken out by the appellant praying for an order of injunction pending the suit.

2.     The appellant is a Developer. The appellant filed the Suit bearing No.1330 of 2012 praying for a declaration that there is a subsisting and binding contract between the appellant and respondent No.1/Jeevan Prabha Co-operative Housing Society Ltd. (hereinafter 'Society' for short) for redevelopment of a building situate at plot no.104, 4th Road, T.P.S. IV, Bandra (west) Mumbai. The appellant based his claim on the resolutions dated 31 March 2011 and 26 June 2011 passed by the Society.

3.     The appellant contended that in view of the resolutions passed by the Society and the correspondence entered into between the parties, there is a concluded contract between the Society and the appellant. Appellant contended in the suit that in-spite of the concluded contract, the Society in a Special General Meeting held on 22 July 2011 unanimously passed a resolution that the appellant is not to be awarded a contract of redevelopment of the Society's property. The plaintiff took out a Notice of Motion bearing No.1394 of 2012, praying for appointment of a receiver and for a direction that the Society be ordered not to deal with any other Developer in respect of the redevelopment of the Society premises.

4.     The learned trial Judge after considering the rival contentions came to a primafacie conclusion that there is no concluded contract between the parties. The draft agreement itself showed that the contract was not finalized. The learned Judge also noted that the Society had executed a Development Agreement on 5 March 2012 with another Developer i.e. respondent No.3.

5.     The learned Judge found that for loss of profit and for the work executed, if any, at the most the appellant can have a money claim and thus no order of injunction is necessary. The learned trial Judge accordingly dismissed the Notice of Motion by his order dated 4 April 2012.

6.     The appellant thus is in appeal before us. We have heard Shri V.R. Dhond, the learned senior counsel for the appellant, Mr. Sanjay Jain learned counsel for the Society, Mr. Simil Purohit learned counsel for the respondent No.3, the new Developer.

7.     Mr. Dhond, learned senior counsel submitted that the finding of the learned trial Judge that there is no concluded contract is erroneous. The learned counsel drew our attention to the resolution dated 31 March 2011 passed in the Special General Meeting of the Society. According to learned counsel a decision was taken to appoint the appellant Developer. Learned counsel submitted that after this decision, the appellant acted on the said resolution and resolved certain pending issues with the occupants of the flats and the garage.

8.     Learned counsel submitted that the appellant invested his time, energy and money in clearing off the obstacles for the redevelopment of the property. The appellant also obtained No Objection Certificate from the Deputy Registrar of Cooperative Housing Societies and thus for all practical purposes the Society had entrusted the work of redevelopment to the appellant.

9.     It was urged by the learned counsel that in view of this contract the appellant is entitled to specific performance and interim protection during the pendency of the suit. On the other hand, Mr. Jain for the Society contended that though there was a resolution in favor of the appellant, it was only a preliminary decision and the Society had not finally decided to entrust the work of redevelopment to the appellant.

10.   The learned counsel supported the order passed by the learned trial Court. Learned counsel also drew our attention to the letter July 2011 written to the appellant in which the Society had pointed out to the appellant that there were several inconsistencies, contradictions in the draft Development Agreement submitted by the appellant. In the said letter the Society had also made a grievance that the appellant had unilaterally tried to take over the garage from a member when the appellant was only entitled to negotiate the price and the Society had lost confidence in the appellant.

11.   Having heard the rival contentions, we are of the view that the learned trial Judge was right in coming to a conclusion that the Notice of Motion deserved to be dismissed. Prima-facie, the correspondence entered in to between the parties clearly indicates that the Development Agreement between the parties was not signed. Before the Development Agreement could be signed the Society decided by its resolution dated 22 July 2012 not to continue with the appellant as their Developer. Thus the Society decided not to enter into any agreement with the appellant. The initial resolution dated 31 March 2011; it appears, was merely a decision to explore the possibility of redevelopment through the appellant.

12.   This resolution and subsequent correspondence indicates that final decision of entrusting of development work to the appellant was yet to be taken. The learned trial Judge has rightly held that the contention of the appellant may at the most give rise to a money claim for damages. Ultimately the work of redevelopment of a Housing Society is such that the Society must have confidence in its Developer.

13.   Once the members of the Society had by a unanimous resolution, before executing the final agreement, decided not to get the premises developed through the appellant, the Society cannot be forced to get the redevelopment work done through appellant when prima-facie there is no concluded contract. The balance of convenience is also not in favor of the appellant as work of redevelopment is now already entrusted to respondent No.3.

14.   During the appeal proceedings we had suggested the parties to amicably resolve the dispute however the talks between the parties did not fructify into a mutually accepted solution.

There is no merit in this Appeal which is dismissed.

CHIEF JUSTICE
N.M.JAMDAR

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CONSENT OF ALL FLAT BUYERS NEEDED TO

CHANGE PLANS

Section 7 of the Maharashtra Ownership of Flats Act (MOFA) says that a Developer has to take the consent of concerned or all the flat buyers for making any alterations in or additions to the structure of the flats or of the building after plans and specifications are disclosed at the time of sale.

 The HC upheld a Civil Court Order restraining city-based Developer from adding more floors to one of the Co-operative Housing Societies in Malad. It was alleged that there was an express consent taken by the Developer from all the flat buyers at the time of purchase that no permission would be required from them if the Developer wanted to make any additional construction or alteration and they would not raise any objection.

 The Judge said that such a clause was “wholly inconsistent with and contrary to legislative mandate” of Section 7 of the Maharashtra Ownership of Flats Act. The provision says that a Developer has to take the consent of concerned or all the flat buyers for making any alterations in or additions to the structure of the flats or of the building after plans and specifications are disclosed at the time of sale.

 In his defence, the Developer cited another clause in the Sale Agreement which mentioned that the Developer can acquire additional construction rights in the form of TDR (Transfer of Development Rights) to add floors. He also pointed to the foundation plan of the building which showed that it was capable of bearing up to six floors.

 However, the HC said this did not constitute an express consent and the approved plan disclosed at the time of purchase was admittedly up to four floors.

 The HC while dismissing the Developer’s plea to vacate a stay on construction from the sixth floor onwards said that upon seeing the lack of consent, a prima facie case for restraint on further construction is made out.

 The dispute relates to a suit filed by one of the flat buyers who had bought a flat in the building. The plans disclosed at the time of sale in 1988 were for ground plus four floors. Construction commenced in 1996. From 2007 onwards, the Developer bought additional TDR to construct more floors.

 It is argued on behalf of the Developer that express consent was obtained under the said Sale Agreement itself for all future construction under clauses 14 and 26 of the said Sale Agreement. In the clause 24 it was recited that it was possible for the Developer to acquire TDR and construct additional areas which would be their property. However how much to construct and when to construct, what they would be able to construct upon the acquisition of the TDR which was “possible” was to be subject to consent of all the flat buyers.

 The learned Judge held that mere mentioning in the Sale Agreement that it was possible to acquire TDR and construct additional areas cannot ascribe consent. No implied consent can be contemplated under Section 7 of the MOFA Act. Hence the order of the learned Judge granting the injunction against the construction of the 6th floor was seen to be in order. The order of injunction could not be set aside and hence the Appeal against the order of Civil Court Order restraining any further construction was dismissed by the HC.

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