High court upholds right of flat owners to open space | mumbai | Hindustan Times
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High court upholds right of flat owners to open space

mumbai Updated: Jan 15, 2010 01:41 IST
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Flat owners of Make Building at Borivli have managed to save their open space.

The Bombay High Court on Thursday dismissed the plea of a builder, who had taken the flat purchasers by surprise by starting construction of an extra wing six years after the building was constructed.

The court upheld the right of flat owners on open space in their society compound.

Noopur Developers had approached the high court challenging a Dindoshi Civil Court order restraining him from constructing an additional wing on open space of Make Building in Borivli West despite resistance from flat owners.

According to the original plans, Make Building was to consist two wings apart from an old existing structure and the occupation certificate granted to the building stipulated a condition that the builder would retain the old structure.

“Between 1998 and 2002, when we purchased the flats we were told that the old structure would be retained,” said advocate Niranjan Lapashiya, who represented the flat purchasers.

The people bought flats in the building considering the space would become available to them for parking. In 2008, the builder came back with amended plans and started construction of the additional third wing, said another lawyer in the case, advocate Nimesh Mehta.

The residents, led by Himanshu Ganatra, approached the Dindoshi court after they failed to stop the additional construction alleging FSI violations.

“We also objected to the distance – of mere one feet – of the new construction from the existing building,” Mehta added.

Noopur Developers contended that they were yet to execute conveyance in favour of the society and therefore they were entitled to additional available FSI. The builder also argued that a clause in sale agreements executed with the flat purchasers give them right to make additional construction.

In November last year, Dindoshi civil court rejected the defence and restrained the builder from carrying out further construction and creating any third party rights in already completed construction.