The Bombay High Court ruled that promoters of a Santacruz East housing society cannot proceed with additional construction based solely on a general clause in the Flat Purchase Agreement. Justice Sharmila Deshmukh emphasised that under the Maharashtra Ownership Flats Act (MOFA), 1963, explicit, informed consent from all flat buyers is mandatory for any construction beyond the original plan. The court dismissed the promoters' claim to retain Floor Space Index (FSI) rights, ruling they cannot bypass legal obligations to gain additional development rights. This judgement reinforces MOFA's provisions, ensuring transparency and protecting flat owners' rights in housing development projects.
The Bombay High Court recently determined that the promoters of a housing society in Santacruz East cannot initiate additional construction on a building solely by citing a clause in the Flat Purchase Agreement, which states that flat buyers consented to allow the developer to investigate future development possibilities on the plot.
Justice Sharmila Deshmukh, sitting on a single judge bench, indicated that Section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (MOFA), 1963, mandates that promoters obtain the informed consent of all flat buyers before proceeding with any additional construction beyond what was previously disclosed.
The court emphasised that there must be full disclosure regarding the nature and extent of the proposed construction is required, as outlined in Section 7(1) of MOFA. Justice Deshmukh stated that the blanket consent acquired during the flat purchase agreement or at the time of possession transfer does not qualify as consent under Section 7(1)(i) of MOFA.
The court was considering an appeal lodged by Mahavir Terrace Co-operative Housing Society, which challenged an order issued by the Bombay City Civil Court earlier this week that dismissed its suit seeking a declaration that the promoters-Govindram Tibrewala, Shivkumar Modi, and Babulal Jain-were not entitled to construct two additional floors on their building.
The promoters contended that all residual rights to the Floor Space Index (FSI) for the property were theirs until the society was registered, and that all necessary permissions for additional construction had been secured prior to the registration. However, this argument did not resonate with the court, which remarked that after neglecting to fulfil the mandatory statutory obligation of registering the society, the promoters could not benefit from their own default and assert rights over the floor space without the consent of the flat buyers.
This ruling highlights the importance of transparency and consent in housing society agreements, ensuring that flat buyers are adequately informed about potential developments. The court's decision protects the rights of residents, requiring developers to adhere to legal obligations and engage with flat owners in decisions affecting their properties. Ultimately, the judgement reinforces the principle that developers cannot exploit their own oversights to claim rights over shared resources without proper consent from all stakeholders.
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