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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