The Bombay high court has refused to stay the construction of an additional residential-cum commercial wing at Universal Garden-1 at Oshiwara west, observing that the purchasers of flats on land belonging to the Mumbai Metropolitan Region Development Authority (MMRDA) cannot invoke provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (MOFA), 1963.

The plea was moved by the association of flat purchasers from Oshiwara District Centre (ODC). Justice AK Menon said no relief can be granted to the flat owners’ welfare association and its 97 members by invoking provisions of the 1963 enactment.

“On a plain reading of Section 31, with Schedule-II of the MMRDA Act, it becomes clear that MOFA does not apply to MMRDA or any land or building belonging to or lands vested in the authority,” said justice Menon.

The association and its members have filed a suit against the developer, Pagarani Universal Infrastructure Pvt. Ltd., for a declaration that the developer had no right over any additional floor space index available on the property and cannot put up any additional construction on the property without their consent.

They had moved a plea for urgent interim injunction against the developer for stopping the ongoing construction of an additional wing, a residential-cum commercial building, on the property, after MMRDA issued the commencement certificate for construction of ground plus eight upper floors to the developer.

The association and its members contended that the developer had exploited to the fullest the development potential of the land available at the time, and had no right to construct a new building without their consent. They asserted that the permission granted by MMRDA, allowing the developer to utilise additional FSI, was illegal for being without their consent.

They insisted that MOFA was applicable to their case, as their agreements with the developer referred to several provisions of the 1963 enactment, although the MMRDA Act, 1986, specifically excluded applicability of MOFA to the lands and properties belonging to the authority.

HC refused to accept the argument, holding that the provisions of MOFA, statutorily excluded from applying to MMRDA lands and properties, could not be invoked by the association and its members.

The judge rejected the argument advanced on behalf of the association that the developer was bound by the obligation under MOFA because of the terms of their contract with the developer.

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HC also noted that there were clauses in the agreement, clearly indicating that the consumption of future FSI would not be affected by terms of the agreement and the developer will have an absolute right to additional construction or consume any balance FSI or TDR on the property.

Prima facie, the judge said, these clauses may appear to be contrary to the settled legal position, as contemplated under section 7 of MOFA, that once flat purchasers are put in possession and the time for formation of society is expired, developer cannot exploit the land over and above what is disclosed to the flat purchasers, without their consent.

“These are aspects which would come into play only if provisions of MOFA are applicable,” said justice Menon.

The single judge bench was also of the opinion that perhaps there was no contravention of section 7 of MOFA in this case, as some clauses in flat purchasers agreements with the developer showed that he was constructing wing A and intended to make further construction in future.

“Each of the agreements for sale are said to make reference to buildings that are yet to be constructed,” said the court. “The construction now underway is therefore clearly fitting the description of the further construction that was contemplated in the said annexure which forms part of the agreements for sale,” the judge noted.

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