Flat owners needn’t dread nasty surprises like builders blocking their view or taking over their gardens by constructing new buildings on their premises. In an important order, the Bombay High Court has said developers cannot construct new buildings—not part of the original plan which was disclosed to buyers—unless they take the consent of apartment owners. Justice B R Gavai further held that builders should mandatorily hand over conveyance of the plot to the new housing society within four months of registration.

The verdict brings to a close a decade-old legal tussle between a Kandivli housing society and their builder that even went up to the Supreme Court.

“If the promoter wants to make additional construction, which is not a part of the layout placed before the flat-taker at the time of agreement, the consent (of the flat owner) would be necessary,” said the judge. Referring to a Supreme Court judgment, the high court said prior consent is not required only when the builder has made full disclosure at the time of signing the agreement about the entire project, including any additional construction. The court restrained the builder, Jayantilal Investments, from constructing a new building on the premises of Madhu Vihar Housing Society in Kandivli (west). The project, completed in 1989, consisted of a building with five wings. In 2001, the developers submitted a plan to the BMC for another building on the plot to utilise the additional Floor Space Index (FSI).

The BMC permitted the plan for a new building on the premises of Madhu Vihar Housing Society in Kandivli (west) in 2002, following which the residents rushed to court.

The lawyer for the society said the new plan was totally different from the one promised in the brochure given to the flat buyers. “Various amenities, like children’s play area, sitting area for senior citizens, garden, fountain, parking, which were promised in the brochure and already provided were being taken away under the 2002 plan,” said the lawyer.

The court went through the records and agreed that the builder had promised the amenities in the plan shown to the original occupants of the 137 flats and shops. “However, by the layout of 2002, not only is the building sought to be constructed on the area which was to be kept as open, but almost the same number of occupants are likely to be added in the layout, thereby depriving the members of the society the amenities that were already provided,” said the judge.

In defence, the builder’s lawyers pointed to the changes made in the Maharashtra Ownership of Flats Act in 1986, which did away with the clause requiring prior consent of flat owners if the developer planned to make additional construction on a plot. The HC did not buy the argument. Referring to apex court judgments, it said the rule would apply only if the builder had disclosed plans for additional buildings in the housing project to the flat buyer.

Their contention that the sale agreement allowed the builder to make changes was dismissed as the HC said the consent had to be an informed decision of the flat owners.

The chequered history of the case began in 1997 when the society filed a suit seeking orders to the builder to give conveyance. The court ruled in the society’s favour, which was challenged by the builder. In 2004, the society moved the HC to oppose the plans for a new building and two years later won an order restraining the builder from construction. Following an appeal, the Supreme Court asked the HC to hear the case again.

Justice Gavai has stayed the judgment for six weeks to allow the builder to move the apex court again.

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