Builders can’t usurp garden, block view - Bombay HC

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 witnessed many rounds of litigation going 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 in cases where 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 multi-storey building on the premises of Madhu Vihar Housing Society in Kandivli (west).
The Madhu Vihar project, completed in 1989, consisted of a building with five wings. In 2001, the developers submitted a plan to the BMC for constructing another building on the plot to utilise the additional Floor Space Index (FSI) available with them. The corporation permitted the new plan 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.
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 high court did not agree with the argument.