The Bombay high court last week ruled that a housing society, and not the builder or landowner, is entitled to any additional floor space index (FSI) that may become available due to changes in the development control rules.
The ruling stands even if a society has not been registered or the builder has not conveyed the land to the society, as long as the time stipulated for these formalities in the Maharashtra Ownership of Flats Act (MOFA) — three months after the society is formed — is over.
Justice RM Borde also held that any amendment to layout plan is not permissible without the consent of the flat purchasers and directed Konark Builders to maintain status quo with respect to construction of an additional wing in Rachana-1 co-operative housing society in Bhandup (West).
The developer has constructed the building in 1993 and the Brihanmumbai Municipal Corporation (BMC) has accorded Occupancy Certificates (OCs) for the two wings in 1993 and 1996. The property is yet to be conveyed to the housing society, which was formed and registered by the flat owners without cooperation from the developer.
The dispute began after the developer got plans for a third wing sanctioned from the BMC in 2009 and began construction without consulting members of the society. The society approached the Bombay city civil court after Konark paid no heed to their requests to stop the construction work, but the court refused to provide interim relief.
The members then approached the high court, where their counsel Ashutosh Kumbhakoni argued that the construction will affect amenities available to the existing members, and that the developer is not entitled to start additional construction on the land after 14 years of receipt of OCs. The developer opposed the plea contending the flat owners had given consent for construction of the C-wing at the time of executing sale deeds, and a balance was required to be struck between the rights of the flat purchasers and the builder.
Justice Borde, however, found that the original plan had seen several changes, and the final one did not having provision for a third wing. He also noted that the 2009 amendment had resulted in reduction of open space available to the current society members. The judge held that changes effected by the developer were disadvantageous to the occupants and therefore the developer is required to obtain their consent before starting construction.
Apart from ordering status quo with respect to construction of the C-wing, the high court has also directed the trial court to hear afresh the housing society’s plea for interim relief, after allowing the developer to tender some relevant documents.