HC restrains promoters from additional construction on Santacruz building

The Bombay High Court ruled that housing promoters must obtain flat buyers' consent for additional construction, emphasizing full disclosure under MOFA.

MUMBAI: The Bombay high court recently ruled that promoters of a housing society in Santacruz East cannot start additional construction on a building by simply referring to a clause in the Flat Purchase Agreement, which says that flat buyers agreed to allow the developer to explore future development potential on the plot.

HC restrains promoters from additional construction on Santacruz building

A single judge bench of justice Sharmila Deshmukh said Section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (MOFA), 1963, requires the promoters to obtain informed consent of all flat buyers if they want to go for additional construction – over and above the plans disclosed earlier.

The court said there must be full disclosure of the nature and extent of construction proposed, as contemplated under Section 7(1) of MOFA. “Similarly, the blanket consent obtained at the time of entering into flat purchase agreement or at the time of handing over possession is not the consent under Section 7(1)(i) of MOFA,” said justice Deshmukh.

The court was hearing an appeal filed by Mahavir Terrace Co-operative Housing Society, challenging an order passed on January 10, 2018 by the Bombay city civil court, dismissing its suit for a declaration that the promoters – Govindram Tibrewala, Shivkumar Modi and Babulal Jain - were not entitled to construct two additional floors on their building.

The promoters claimed that all residual rights to the floor space index (FSI) in the property belonged to them until registration of the society and all necessary permissions for additional construction were obtained before the registration. The argument, however, failed to impress upon the court, which said that after failing to comply with the mandatory statutory obligation to get the society registered, the promoters cannot take advantage of its own default and claim right over floor space without the consent of the flat buyers.