HC clears the way for development of Altamount Road plot held up for decades

The Bombay High Court has overturned a 1995 ruling that prohibited construction above seven feet on a property in Malabar Hill, allowing for its development. The court cited evidence of other high-rise buildings in the area as a reason for the outdated restriction.

The Bombay high court on Tuesday overturned a 1995 ruling of the city civil court that prohibited any construction above seven feet on a property at Altamount Road in Malabar Hill, thus clearing the hurdle for its development.

HT Image

In 1890, one Dady Manekji Limji, the title holder of a plot measuring 38,000 square yards, called Altamount, conveyed a portion to Currimji Alibhai while retaining approximately 25,821 square yards, known as New Bunce or Mount Petit.

Subsequently, he laid down a condition that prevented construction of walls or structures above seven feet from the level of Altamount Road on New Bunce by himself and its successive owners. Subsequent conveyors in 1909, 1937, and 1948 adhered to this restriction. In 1957, the property was divided into plots and conveyed to various buyers, including Habib Mohammad Hoshambhoy, who sold the plot to Pashmina Cooperative Housing Society in 1968.

When the society constructed concrete columns Hoshambhoy opposed it alleging a breach of the 1890 restriction on heights and approached the city civil court.

The society argued that the agreement was only for the benefit of the original Altamount property, not for the subdivided plots. It also claimed that their construction would not interfere with other plots and, given the presence of high-rises nearby, they were entitled to additional structures as per the existing development rules.

The city civil court in 1995, however, ordered the demolition of the concrete columns holding that the construction was in violation of the agreement made by the original conveyors.

Challenging the order, the housing society filed a petition in HC in the same year.

On Wednesday, a single-judge bench of justice Anuja Prabhudessai, after reviewing the arguments, said the restriction on property’s beneficial enjoyment could only be imposed for the benefit of another similar property.

Considering ample evidence showing construction beyond seven feet on similar restricted properties, the court struck down the outdated restriction.

“The evidence on record reveals that over the years several high-rise buildings have come up in the vicinity. Hence, the restriction is deemed obsolete because of changes in the character of the property or the neighbourhood,” the court said.