The Bombay high court last week restrained two developers from constructing a 28-storey building on open space of a cooperative housing society at Malad (West) for commencing construction without consent of members of the society.
In 2010, the Supreme Court had held that a developer is bound to make complete disclosure of the entire scheme or layout while executing the agreement of sale with purchasers.
Justice BR Gavai found that in the case of Malad Kokil Co-operative Housing Society, the proposed 28-storey structure was not shown in plans annexed to many of the agreements of sale. The judge, however, the firms jointly constructing the structure to build a five-storey building as plans for this structure were annexed to some other agreements.
Last year, Malad Kokil society and Sundervan S-4 society, which share the plot, approached the court after some persons entered the premises and started damaging the garden, the common passage and other amenities. RTI queries revealed that in October 2010, the civic body had issued a commencement certificate for the proposed construction.
The judge ruled in favour of the housing societies. "At the time of execution of the agreement, the promoter is statutorily obliged to place before the flat-takers the entire project/scheme," the judge noted, referring to provisions of the Maharashtra Ownership of Flats Act (MOFA).
"As the construction which is sought to be made is not in accordance with layout plan presented to the flat-takers, the same cannot be permitted unless there is consent of the members of the plaintiffs and the appellant-society," justice Gavai said.
The builders argued that their layout showed ground-plus-one structure and it hardly mattered how many floors were built above that. "If such an argument is accepted, it would frustrate the very purpose of beneficial legislation like MOFA," the judge said.