HC allows developer to construct additional floors in 12-storey Oshiwara building

Bombay high court allows developer to continue construction of nine additional floors in a 12-storey building, despite objections from the housing society.

MUMBAI: The Bombay high court recently allowed a developer to continue construction of nine additional floors in a 12-storey building though the housing society objected to it.

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The HC, however, granted liberty to the housing society to file proceedings against the developer before competent civil court and obtain necessary interim orders in seven weeks, failing which there would be no hindrance for the developer to continue the construction.

The housing society had objected to the additional floors on the grounds that the initial proposal to construct 38 floors was restricted to 12 floors due to the Coastal Regulation Zone (CRZ) restrictions. The society contended that construction of additional floors would pose a threat to the existing structure.

On the other hand, the developer relied upon a report by Veermata Jijabai Technological Institute, Matunga, which gave a go ahead for the construction of the additional floors.

The division bench of justice Gautam Patel and justice Neela Gokhale was hearing the petition filed by Dattani Shelter Cooperative Housing Society, whose lawyer, advocate Vivek Walawalkar, informed the bench that the society was based in Oshiwara, Goregaon and was part of the Slum Redevelopment Authority (SRA). The society was of two wings, which consisted of purchasers of flats from the free-sale component of the project. The first wing was constructed in 2007 and the second wing in 2012.

The bench was also informed that the SRA had issued a revised Letter of Intent (LoI) to the developer, which was also challenged in the petition.

Advocates Rajiv Narula and Mehek Choudhary for the developer had contended that the current LoI was for up to 21 floors but could be extended up to 38 floors later. The bench was further informed that as per the directions of a previous HC bench, VJTI was asked to conduct a study on whether the existing structure could bear the load of the additional floors. The advocates added that the society had previously given its consent to additional floors as well.

The petitioners’ advocates submitted that the VJTI report was disputed and maintained that the extended construction could not take additional structural load.

After hearing the submissions, the bench noted, “The only way that we believe we can balance to some extent the competing equities is with a direction that if the developer Respondents No. 4 and 5 continue the construction beyond today, they will be doing so at their risk and without claiming equities until such time as the Petitioners file a substantive suit in the court of competent civil jurisdiction and obtain the necessary orders.”

The bench, however, held that there had to be a time limit for society to take recourse and granted it seven weeks to initiate the proceedings.

“It also goes without saying that if no suit is filed within time and no protective order is obtained within the seven-week period, Respondents No. 4 and 5 will be relieved of this restriction, i.e., they will no longer be required to carry on construction at their own risk and they will in fact thereafter be entitled to claim equities,” the bench said.