Saniya City Co-Op. Hsg Soc Ltd vs Sagar Developers And Ors
2026 Latest Caselaw 4613 Bom

Bombay High Court

Saniya City Co-Op. Hsg Soc Ltd vs Sagar Developers And Ors on 5 May, 2026

Author: N. J. Jamadar

Bench: N. J. Jamadar

2026:BHC-AS:21350

                                                                                  -WP-11258-2024.DOC

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

                                          WRIT PETITION NO. 11258 OF 2024


                      Saniya City Co-op. Hsg. Soc. Ltd.
                      Through its Chairman
                      A) Shankarsingh Bapusingh Parmar
                      Age 40 years, Occ: Business,
                      B) Secretary
                      Faiz Mohammad Bashir Khan
                      Age: 49 years, Occ: Business
                      C) Treasurer
                      Mehfooz Alam
                      Age: 60 years, Occ: Business,
                      All R/at Survey No. 45/7, 7A,
                      7B, 48/6, 10, 11, 50/3,
                      at Village Walvi, Tal: Vasai, Dist: Palghar.                    ..Petitioner

                             Versus

                      1. Sagar Developers and Ors
                         A partnership Firm, through its Partner
ARUN
                         Mohammad Yusuf Abdul Latif Questhi
RAMCHANDRA
SANKPAL                  Age: 59 years, Occ: Business,
Digitally signed by
ARUN
RAMCHANDRA
                         Add. Ramji Patel Compound,
SANKPAL
Date: 2026.05.05
21:29:57 +0530
                         Opp. Tabela, Near Mallika Hotel,
                         Pathan Wadi, Malad (E) Mumbai 97

                      2. Vasai Virar City Municipal Corporation
                         Through its Town Planning Authority
                         Mr. Yamiganu Shiva Reddy
                         Bazarward, Virar (East), Tal: Vasai,
                         Dist: Palghar.

                      3. Mona Atul Patel
                         Age : 48 years, Occ: Business,
                         Residing at: 5th Floor, Trade Avenue,
                         Suren Road, Western Express Highway
                         Andheri (E), Mumbai - 93.                             ...Respondents

                      Dr. Uday Warunjikar, a/w Ms. Sakshi Inamdar, Mr. Hrishikesh
                           Nabar, for the Petitioner.
                      ARS/SAINATH                         1/50



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Mr. Shriram S Kulkarni, a/w Mr. Ashok Dhanuka, Mr. Hitesh
     Gupta and Mr. Nikhil Sonar, i/b W3 Legal LLP, for
     Respondent No.1.
Ms. Swati Sagvekar, for Respondent No.2.

                                CORAM :     N. J. JAMADAR, J.
                          RESERVED ON :     02nd DECEMBER 2025
                    PRONOUNCED ON :         05th MAY 2026

JUDGMENT:

1. Rule. Rule made returnable forthwith, and, with the

consent of the learned Counsel for the parties, heard finally.

2. This Petition under Article 227 of the Constitution of India

assails a judgment and order passed by the learned District

Judge, Vasai in MCA No. 22 of 2024 whereby the Appeal,

preferred by Respondent Nos. 1- original Defendant No.1,

against an order passed by the learned Civil Judge dated 24 th

July 2024, thereby restraining Defendant No.1 from making any

construction over the property bearing Survey Nos. 47/5, 7A,

7B, 48/6, 10, 11, 50/3 admeasuring 26810 sq. mtrs. at village

Waliv, Taluka Vasai, District Palghar (the suit property) or from

changing the nature of the suit property till the final disposal of

the suit, came to be partly allowed and Defendant No.1 was

allowed to carry out developments subject to undertaking to

protect the interest of the Plaintiff.

-WP-11258-2024.DOC

3. The background facts necessary for the determination of

this Petition can be stated as under:

3.1 The Petitioner-Plaintiff is a cooperative housing society of

the owners of the flats in Sagar City Building Nos. 3A to E

constructed over the suit property.

3.2 Defendant No.1 is the promoter-developer. Defendant No.3

is the original owner of the suit property. Defendant No.1 had

constructed Building Nos. 3 and 4 on the suit property in

accordance with Building Permission and Plan dated 2 nd

September 2008, sanctioned by Vasai Virar Municipal

Corporation (D2).

3.3 Defendant No.1 had utilised the FSI of 13276 sq. mtrs.

against build-able plot area of 14701 sq. mtrs. The Plaintiff

claims Defendant No.1 had utilised the entire FSI of the land.

3.4 In the last week of November 2023, Defendant No.1

commenced digging work on a portion of the suit property.

Upon enquiry, it transpired that Defendant No.1 has obtained

revised Development Permission dated 22nd February 2023 from

the Defendant No.2.

3.5 Upon perusal of the original sanctioned plan and the

revised plan, it transpired that RG area was reduced to 1352.27

sq. mtrs. from 2594.38 sq. mtrs.; CFC area was reduced to

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711.31 sq. mtrs. from 864.789 sq. mtrs.; DP Road was reduced

from 6477.45 sq. mtrs. to 5665.65 sq. mtrs. and a rivulet (nalla)

admeasuring 118.68 sq. mtrs., which was shown in the original

sanctioned plan, was not at all reflected in the revised plan.

3.6 Defendant No.1 was exploiting additional FSI, generated by

the aforesaid deletion and suppression, which Defendant No.1

was obligated to convey to the Plaintiff-society.

3.7 The society, thus, instituted a suit for enforcement of the

statutory obligations of the promoter under Section 3, 4, 7 and

7A of the Maharashtra Ownership Flats (Regulation of The

Promotion of Construction, Sale, Management And Transfer)

Act, 1963 ("the MOFA 1963") and for declaration and injunction.

3.8 It was inter alia asserted that Defendant No.1 had made

misrepresentations in obtaining sanction for the revised plan in

regard to the plot area and illegal reductions in the RG, CFC

and rivulet (nalla) and thereby grabbed the FSI which the

Plaintiff-society was in law entitled to exploit. Defendant No.1

has attempted to usurp the land over which the pond exists.

Defendant No.1 has also suppressed the claim of M/s Best

Builders to an area admeasuring 4000 sq mtrs land over the

suit property.

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3.9 The revised plan has been obtained by Defendant No.1

without clear, specific and informed consent of the Plaintiff. The

said plan is in derogation of the statutory obligations of

Defendant No.1 and jeopardizes the statutory entitlements of

the society. The Defendants had no right to revise the original

sanctioned plan dated 2nd September 2008 without Plaintiff's

clear and informed consent.

3.10 The Plaintiff thus prayed for declarations that Defendant

No.1 has no right to make any changes in the

representations/amenities as shown in the original sanctioned

plan dated 2nd September 2008, without specific, clear and

informed written consent of the Plaintiff-society, that the revised

plan and permission VP 4289 dated 22 nd February 2023

inclusive of VP 4289 dated 1st November 2022, being in

derogation of the statutory obligations of Defendant No.1 under

the MOFA 1963, are illegal, and for the consequential relief of

injunction including to restrain Defendant No.1 from carrying

out any construction over the suit property, or from changing

the nature or character of the suit property and utilizing the FSI

of the Plaintiff.

3.11 In the said suit, the Plaintiff took out an application for

temporary injunction.

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3.12 Defendant No.1 contested the said application. Defendant

No.1 inter alia contended that Defendant No.1 was completing

the development which was already disclosed to the members of

the Plaintiff-society. The layout plan then shown to the members

of the Plaintiff-society, specifically indicated all the proposed

buildings and developments to be carried out in future.

3.13 The permission dated 2nd August 2008 was granted in

respect of development of Building Nos. 3 and 4 only, over a

portion of a larger layout. In view of the United Development

Control and Promotion Regulations 2020 ("UDCPR 2020"),

Defendant No.1 was required to obtain revised permission for

carrying further development over larger property. Defendant

No.1 was entitled to develop the larger layout.

3.14 After appraisal of the rival contentions and the

submissions, the learned Civil Judge was persuaded to allow

the application for temporary injunction. The learned Civil

Judge was of the view that prima facie it appeared that

Defendant No.1 had not disclosed future developments when the

Agreements for Sale were executed with the members of the

Plaintiff-society. There was no informed consent for the further

development. In the event, injunctive reliefs were not granted,

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the members of the Plaintiff-society would suffer irreparable

loss.

3.15 Thus, the learned Civil Judge restrained Defendant No.1

from making any construction over the suit property and from

changing the nature of the suit property till the final disposal of

the suit.

3.16 Being aggrieved, Defendant No.1 preferred an Appeal,

being MCA No. 22 of 2024, before the learned District Judge,

Vasai.

3.17 By the impugned judgment and order, the learned District

Judge interfered with the discretion exercised by the trial Court.

The learned District Judge was of the view that, the sanctioned

plan and the layout which were shown to the members of the

Plaintiff-society clearly indicated proposed future development.

Those proposed buildings were shown at a distance from the

existing structures of the Plaintiff-society. Therefore, the

learned Civil Judge was not justified in holding that Defendant

No.1 had not disclosed proposed additional structures in the

layout plan when the apartments were sold in the year 2008.

3.18 Finding that the balance of convenience tilted in favour of

Defendant No.1 as he was complying with UDCPR 2020

Regulations and the continuation of prohibitory injunction till

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the final disposal of the suit would cause irreparable loss to

Defendant No.1, the learned District Judge allowed the Appeal

subject to Defendant No.1 filing the undertakings that the RG

area, CFC area, DP road and additional FSI would be provided

proportionate to the share of Plaintiff-society as per the

sanctioned plan dated 2nd September 2008 and making full and

true disclosure in respect of the suit property to the Plaintiff-

society as per the revised building permission.

4. Being aggrieved, the Plaintiff has invoked the writ

jurisdiction.

5. I have heard, Dr. Uday Warunjikar, the learned Counsel for

the Petitioner, Mr. Shriram S Kulkarni, the learned Counsel for

Respondent No.1-developer, and Ms. Swati Sagvekar, the

learned Counsel for Respondent No.2. The learned Counsel took

the Court through the material on record. After conclusion of

the oral submissions, the parties have also tendered the written

submissions.

6. Dr. Warunjikar, the learned Counsel for the petitioner,

took a slew of exceptions to the impugned judgment and order.

Firstly, it was submitted that, the statutory rights of the

petitioner could not have been sacrificed at the altar of an

undertaking to be filed by the Defendant No. 1 - Promoter.

-WP-11258-2024.DOC

Once, the Defendant No. 1 carries out the construction which is

in flagrant violation of the representations made by the

Defendant No. 1 to the members of the plaintiff - Society, an

irreversible situation would arise and the flat purchasers will be

presented with a fait accompli. On this count alone, Dr.

Warunjikar would urge, the impugned judgment and order

deserves to be quashed and set aside.

7. Secondly, after taking the Court through the comparative

chart of the changes brought about by the revised sanction plan

of the year, 2023, Dr. Warunjikar would submit that, the revised

plan not only affects the statutory rights of the flat purchasers

but the very landscape of the subject property is altered. An

area admeasuring 4,000 sq. mtrs., over which Wing F of

Building No. 3 stands, has been excluded from the total area of

subject land, despite having made a representation that the

Defendant No. 1 had the right to develop the entire land

admeasuring 26,810 sq. mtrs., and propounded a title certificate

to that effect.

8. Thirdly, Dr. Warunjikar would submit, the exclusion of the

pond area of 2917.96 sq. mtrs., in breach of the earlier

representations and NA order passed by the District Collector

on the specious ground of a drafting error, was clearly an

-WP-11258-2024.DOC

attempt at commercial exploitation of the land even at the cost

of severe environmental damage.

9. Fourthly, Dr. Warunjikar laid emphasis on the fact that in

the revised plan, the RG area, CFC area and Nallah area have

been drastically reduced.

10. Premised on the aforesaid facts, Dr. Warunjikar would

urge, the proposed development under the revised plan is in

teeth of the binding judgments of the Supreme Court and this

Court. Dr. Warunjikar placed reliance on the judgment of the

Supreme Court in the case of Jayantilal Investments Vs.

Madhuvihar Co-operative Housing Society & ors.1, to buttress

the submission that, despite the insertion of Section 7A of the

MOFA, 1963, in view of the provisions contained in Sections 3

and 4 and Form V of the Rules under MOFA, 1964, the

promoter continues to be under an obligation to place the entire

project before the flat purchaser at the time of execution of the

agreement.

11. Dr. Warunjikar would urge, the disclosure envisaged by

the statutory provisions is a full and true disclosure and not a

mere indication that some buildings would be constructed at a

later point of time. Inviting the attention of the Court to the

1 2007 (9) SCC 220

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sanctioned layout of the year 2008, Dr. Warunjikar would urge

that, the Defendant No. 1 had failed to disclose the plinth area,

storeys and exact location of the future buildings in the said

layout plan. Therefore, the learned District Judge was in error

in holding that, the Defendant No. 1 had disclosed the further

development to be carried out in the layout.

12. As a second limb of the submission, Dr. Warunjikar would

urge that, if the Defendant No. 1 is permitted to carry out the

construction in accordance with the revised plan and erect 22

storey buildings, there would be significant reduction of

amenities due to such huge development. A strong reliance was

placed by Dr. Warunjikar on a judgment of this Court in the

case of Malad Kokil Co-operative Housing Society Ltd. & ors. Vs.

Modern Construction Co. Ltd. & ors.2

13. Refuting the contention of the respondents that, clauses

26 to 29 of the agreement for sale constitute the consent of the

flat purchasers for the future development, Dr. Warunjikar

submitted that, the said recitals in the agreement for sale do not

constitute an informed consent. On the contrary, those recitals

betray an intent to obtain a blanket consent of the flat

purchasers which the Courts have repeatedly frowned upon.

2 2012 SCC OnLine Bom 1310

-WP-11258-2024.DOC

14. Reliance was placed by Dr. Warunjikar on the judgments

of this Court in the cases of Vitthal Laxman Patil Vs. Kores

(India) Ltd. Real Estate Division, Mumbai & Ors 3. and Malad

Kokil CHS Ltd. (supra). To lend support to the submission that,

the additional structures must be disclosed in the layout plan

with reference to their plinth area, location and storey, Dr.

Warunjikar placed reliance on a decision in the case of K. M.

Realty Vs. Diamond Hill Co-operative Housing Society Ltd4.

15. In substance, Dr. Warunjikar would urge that, disguised

as future development under the sanctioned layout, the

Defendant No. 1 has obtained sanction for development to the

tune of 24,558.18 sq. mtrs. when the balance developable area

under the building plan 2008 was 1424.77 sq. mtrs. only. It was

urged that, the FSI for additional development even under

revised development control regulations can never enure for the

benefit of the promoter, except with the express written

permission of all the flat purchasers. The additional FSI can

only be exploited by the flat purchasers.

16. Per contra, Mr. Kulkarni, the learned Counsel for

Defendant No. 1 would submit that, in the circumstances of the

case, the impugned judgment and order finely balances the

3 2019 AIR OnLine BOM 64 4 2024 SCC OnLine Bom 41

-WP-11258-2024.DOC

equities between the parties. Under no circumstances, a society

of flat purchasers of the buildings, initially developed, can be

permitted to completely restrain the promoter from carrying out

further development despite the same having been specifically

disclosed in the sanctioned layout. The very premise of the

plaintiff that, it is entitled to rights and amenities over the entire

subject property is completely flawed. Taking the Court through

the sanctioned plan 2008, Mr. Kulkarni submitted that, all the

buildings and the development which the Defendant No. 1 has

been carrying out, were expressly disclosed at the time of

execution of the agreement for sale. Thus, the very substratum

of the plaintiff's claim that, there was no disclosure of additional

development over the subject land, gets dismanteled.

17. At best, the plaintiff Society would be entitled to

proportionate rights in the land over which the buildings of the

said Society stand and the proportionate right in the RG area,

CFC area and other common areas and amenities. The learned

District Judge has precisely protected proportionate rights of

the plaintiff by ordering the Defendant No. 1 to furnish

undertakings to that effect. Therefore, in exercise of supervisory

jurisdiction, Mr. Kulkarni would urge, no interference is

warranted with such equitable order.

-WP-11258-2024.DOC

18. Amplifying the submissions and meeting the case urged

on behalf of the plaintiff, Mr. Kulkarni would submit that, the

project in question is that of phase-wise development. Under the

terms of the agreement, the Defendant No. 1 has been

empowered to develop the entire layout in a phase-wise manner.

The building plan for entire layout was sanctioned by CIDCO,

the then Planning Authority, for then proposed four buildings.

In the first phase, the development covered building No. 3 with

six wings i.e. A to F and Building No. 4 with C wing only. The

rest of the building Nos. 1 and 2 were specifically and

prominently shown in the sanctioned plan 2008. Both

development agreement and sanctioned plan 2008, were

specifically annexed to and/or referred in the agreements for

sale executed in favour of the respective flat purchasers.

Therefore, the assertion of the plaintiff that there was no full

disclosure of the additional development proposed in the next

phase, cannot be countenanced.

19. Mr. Kulkarni submitted that, the contentions on behalf of

plaintiff that, the Defendant No. 1 has removed the pond area of

2917.96 sq. mtrs. from the sanctioned layout and plan, is again

based on incorrect and incomplete information. Pond never

existed on the subject land. Nor the said pond was shown as an

-WP-11258-2024.DOC

amenity in the sanctioned layout. It was a case of drafting error

and the National Green Tribunal, (Western Zone) Bench at Pune,

by its order dated 24th January, 2025, has ruled that no pond

was in existence in the entire layout. Therefore, the submission

on behalf of the plaintiff that, the Defendant No. 1 has removed

the pond and thereby caused environmental damage was

canvassed to prejudice the Court against the Defendant No. 1.

20. In regard to the exclusion of 4000 sq. mtrs. land from the

layout, Mr. Kulkarni submitted that, in view of the dispute with

Best Builders, in regard to the said area, which is subjudice in

Special Civil Suit No. 66/2011, the Defendant No. 1 has

temporarily deducted the area of 4,000 sq. mtrs. from the layout

and that has resulted in reduction in the RG area, CFC area

and DP Road area in the entire layout. However, the said

development does not affect the rights of the plaintiff - Society.

21. Mr. Kulkarni would urge that, there was true and full

disclosure of the additional development in the sanctioned

layout. Therefore, the Defendant No. 1 could not have been

restrained from carrying out further development in accordance

with the sanctioned layout and the error committed by the trial

Court was, thus, justifiably corrected by the Appellate Court,

while ensuring that a balance is struck between the rights of

-WP-11258-2024.DOC

the flat purchasers in the already developed buildings and the

right of the promoter to carry out further development in

accordance with the sanctioned layout and plan.

22. To buttress the aforesaid submissions, Mr. Kulkarni

placed reliance on the decisions of this Court in the cases of

Grand Paradi Co-operative Housing Society Ltd. & ors. Vs. Mont

Blanc Properties & Industries Pvt. Ltd. & anr. 5, Madhuvihar Co-

operative Housing Society, Mumbai & ors. Vs. Jayantilal

Investments, Mumbai & ors.6, Venus Vasant Valley Co-operative

Housing Society Ltd. Vs. Sheth Shelters Pvt. Ltd & ors. 7, and

M/s. Krishna Constructions & ors. Vs. Subhash Uttam Dalvi &

ors8.

23. Dr. Warunjikar, joined the issue by canvassing a

submission that, the Defendant No. 1 had made an endeavor to

wriggle out of the situation by advancing arguments as if the

issue of unilateral deemed conveyance has arisen for

consideration in this petition. It was submitted that, the

substratum of the suit is essentially the failure on the part of

the promoter to discharge its obligations under MOFA, 1963.

5 2010 SCC OnLine Bom 608 6 2011 (1) Mh.L.J. 641 7 2024 SCC OnLine Bom 1054 8 Appeal from Order No. 744/2024

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Therefore the question whether the plaintiff would be entitled to

the proportionate share in the land over which the buildings of

the plaintiff stand and the common area, is wholly irrelevant for

the determination of the controversy at hand.

24. The aforesaid submissions now fall for consideration.

25. To start with, few uncontroverted facts deserve to be

noted.

26. The sanction of the building plan by the CIDCO, the then

Planning Authority, in the year 2008, with the Building Nos. 3

and 4, is incontrovertible. The sanctioned plan does show that,

the Building Nos. 1 and 2 were then shown as the future

buildings. The development was to be in a phased manner.

Incontrovertibly, the Building No. 3 Wings A to E and Building

No. 4 Wing C, have been completed and the occupation

certificate has been granted. The fact that, the Defendant No. 2 -

the succeeding Planning Authority has sanctioned the revised

building plan in the year 2023, for the development in the form

of additional Buildings with other structures and amenities, is

also not in dispute.

27. Since the thrust of the submission on behalf of the

petitioner was that, there has been significant alterations and

drastic reduction in RG area, CFC area and the common areas

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on account of the revised building plan, it may be apposite to

reproduce the change in 2023 plan from that of 2008, as shown

by the petitioner in Paragraph No. 7 of the Plaint, in a tabular

form.

B. P. 3564 dated 02/09/2008 V.P. 4289 dated 22.02.2023 Gross Plot Area 26810.00 sq.m. Gross Plot Area [as per 7/12] 26810.00 sq.m.

Less D.P. Road 6477.45 sq.m., D.P. Road 5665.65 sq.m., Pond Nalla 118.68 sq.m., Pond Area Area 2917.96 sq.m. 2917.96 sq.m.

Balance Plot Area 17295.91 sq. m. Balance Plot Area 14226.39 sq. m.

RG 15% 2594.38 sq.m.              RG 1352.27 sq.m.
CFC 5& 864.79 sq.m.               CFC 711.31 sq.m.
Net Plot Area 14701.52 sq. m.     Net Plot Area 13515.08 sq. m.
BUA for building nos. 3 -         Base FSI 14866.58 sq.m.
10988.67 sq.m.
BUA for building nos. 3 & 4 -     Max Permissible Premium [6 x
13276.75 sq.m.                    0.50] 11405.00 sq.m.
                                  Proposed F.S.I. on payment of
                                  Premium 11405.00 sq.m.
                                  Total Entitlement Area 26271.58
                                  sq.m. [14866.58 sq.m. + 11405.00
                                  sq.m.]
                                  Earlier Approved BUA [Excluding
                                  Bldg No. 3, Wing F] 11040.87
                                  sq.m.
                                  Balance Entitlement 15230.71
                                  sq.m.
                                  Add. Ancillary Area F.S.I 80% of
                                  Comm. 1095.28 sq.mt. = 876.22
                                  sq.m.
                                  Add. Ancillary Area F.S.I. 60% of
                                  Resi. 17184.70 sq. mt. = 8481.25
                                  sq.m.
                                  Total Ancillary Area 9357.47 sq.m.
                                  Total permissible Area including
                                  Ancillary 24588.18 sq.m.






                                                        -WP-11258-2024.DOC

28. In the backdrop of the aforesaid facts and the controversy,

the questions as to whether the Defendant No. 1 was entitled to

carry out further development, as proposed above ?, Whether

the Defendant No. 1 had made true and full disclosure while

entering into the agreement for sale in regard to the additional

development ? Whether the flat purchasers had given consent

for further development ?, Whether the consent for the

development given in the agreements for sale constitutes an

informed consent or the consent was in the nature of a blanket

consent ? crop up for consideration.

29. Before adverting to explore answers to the aforesaid

questions, in the light of the facts that have prima facie

emerged, it may be appropriate to note the legal regime which

governs the rights and obligations of the flat purchasers and the

promoter.

30. MOFA, 1963, inter alia, provides the general liabilities of

the promoter, under Section 3, and casts obligations on the

promoter to make disclosures. Section 4 obligates the promoter

to enter into a registered agreement with the flat purchaser

before accepting any advance payment or deposit. Sub-Section

(1A) of Section 4 mandates the promoter to enter into an

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agreement with the flat purchasers in the prescribed form. The

sub clauses (i) to (x) of Clause (a) prescribe the particulars

which such agreement for sale shall contain. Section 10 of

MOFA, 1963 casts an obligation on the promoter to form a Co-

operative Housing Society of flat purchasers as soon as the

minimum number of persons required to form a Society have

purchased the flats. Section 11 casts a further obligation on the

promoter to take all necessary steps to complete his title and

convey the same to the Society or an association of flat

purchasers, within the time specified under the rules.

31. Sections 7 and 7A of the MOFA, 1963 with which we are

primarily concerned, enshrine a regime of disclosures and

proscribe the additions and alterations without the consent of

flat purchasers. In this regard, the nature of the disclosures

made by the promoter and the consent of the flat purchasers for

the addition, alteration and further development, as obtained

under the agreement for sale, assume critical salience.

32. Section 7 of MOFA, 1963 incorporates the rights of a

purchaser and also the obligations of the promoter. Section 7 of

MOFA, 1963, as it stood prior to its amendment by the

Amending Act No. 36/1986, restricted the promoter's rights to

make the specified alterations once the plans and specifications

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of buildings as approved by the Planning Authority were

disclosed or furnished to any person who agreed to take one or

more flats in the building. Clause (ii) of sub Sections 1 of

Section 7 was amended by substituting the words "or construct

any additional structures" with "additions in the structure of

the building". By way of abundant caution, Section 7A came to

be inserted in the MOFA, 1963 to provide that the deleted

words, "or construct any additional structures" shall be deemed

never to apply in respect of construction of any other additional

building structures constructed or to be constructed under a

scheme or project of development in the layout after obtaining

the approval of a local authority, in accordance with the

building rules or building by-laws or development control

regulations, by way of a non obstante clause.

33. The interplay between Sections 7 and 7A of the MOFA,

1963 came up for consideration before the Supreme Court in

the case of Jayantilal Investments Vs. Madhuvihar CHS (supra).

The observations of the Supreme Court in Paragraph Nos. 15 to

19 are instructive and hence extracted below : -

"15......Consequently, reading Section 7 and Section 7A, it is clear that the question of taking prior consent of the flat takers does not arise after the amendment in respect of any construction of

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additional structures. However, the right to make any construction of additional structures/ buildings would come into existence only on the approval of the plan by the competent authority. That, unless and until, such a plan stood approved, the promoter does not get any right to make additional construction. This position is clear when one reads the amended Section 7(1)(ii) with Section 7A of the MOFA as amended. Therefore, having regard to the Statement of Objects and Reasons for substitution of Section 7(1)(ii) by the Amendment Act 36/86, it is clear that the object was to make legal position clear that even prior to the amendment of 1986, it was never intended that the original provision of Section 7(1)(ii) of MOFA would operate even in respect of construction of additional buildings. In other words, the object of enacting Act No. 36/86 was to change the basis of the judgment of the Bombay High Court in Kalpita Enclave case (supra). By insertion of Section 7A vide Maharashtra Amendment Act 36/86 the legislature had made it clear that the consent of flat takers was never the criteria applicable to construction of additional buildings by the promoters. The object behind the said amendment was to give maximum weightage to the exploitation of development rights which existed in the land. Thus, the intention behind the amendment was to remove the impediment in construction of the additional buildings, if the total lay out allows construction of more buildings,

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subject to compliance of the building rules or building by-laws or Development Control Regulations. At the same time, the legislature had retained Section 3 which imposes statutory obligations on the promoter to make full and true disclosure of particulars mentioned in Section 3(2) including the nature, extent and description of common areas and facilities. As stated above, sub-

section (1A) to Section 4 was also introduced by the legislature by Maharashtra Act 36/86 under which the promoter is bound to enter into agreements with the flat takers in the prescribed form. Under the prescribed form, every promoter is required to declare the FSI available in respect of the said land. The promoter is also required to declare that no part of that FSI has been utilized elsewhere, and if it is utilized, the promoter has to give particulars of such utilization to the flat takers. Further, under the proforma agreement, the promoter has to further declare utilization of FSI of any other land for the purposes of developing the land in question which is covered by the agreement.

16. Therefore, the legislature has sought to regulate the activities of the promoter by retaining Sections 3 and 4 in the Act. It needs to be mentioned at this stage the question which needs to be decided is whether one building with several wings would fall under amended Section 7(1)(ii). Section 7A basically allows a builder to construct additional building provided the construction forms part of a scheme or a project. That

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construction has to be in accordance with the lay out plan. That construction cannot exceed the development potentiality of the plot in question. Section 10 of MOFA casts an obligation on the promoter to form a cooperative society of the flat takers as soon as minimum number of persons required to form a society have taken flats. It further provides that the promoter shall join the society in respect of the flats which are not sold. He has to become a member of the society. He has the right to dispose of the flats in accordance with the provisions of the MOFA. Section 11 inter alia provides that a promoter shall take all necessary steps to complete his title and convey the title to the society. He is obliged to execute all relevant documents in accordance with the agreement executed under Section 4 and if no period for execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period. Rule 8 inter alia provides that where a cooperative society is to be constituted, the promoter shall submit an application to the Registrar for registration of the society within four months from the date on which the minimum number of persons required to form such society (60%) have taken flats. Rule 9 provides that if no period for execution of a conveyance is agreed upon, the promoter shall, subject to his right to dispose of the remaining flats, execute the conveyance within four months from the date on which the society is registered.

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17. Reading the above provisions of MOFA, we are required to balance the rights of the promoter to make alterations or additions in the structure of the building in accordance with the lay out plan on the one hand vis-`-vis his obligations to form the society and convey the right, title and interest in the property to that society. The obligation of the promoter under MOFA to make true and full disclosure of the flat takers remains unfettered even after the inclusion of Section 7A in MOFA. That obligation remains unfettered even after the amendment made in Section 7(1)(ii) of MOFA. That obligation is strengthened by insertion of sub- section (1A) in Section 4 of MOFA by Maharashtra Amendment Act 36/86. Therefore, every agreement between the promoter and the flat taker shall comply with the prescribed Form V. It may be noted that, in that prescribed form, there is an explanatory note which inter alia states that clauses 3 and 4 shall be statutory and shall be retained. It shows the intention of the legislature. Note 1 clarifies that a model form of agreement has been prescribed which could be modified and adapted in each case depending upon the facts and circumstances of each case but, in any event, certain clauses including clauses 3 and 4 shall be treated as statutory and mandatory and shall be retained in each and every individual agreements between the promoter and the flat taker. Clauses 3 and 4 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction etc.) Rules, 1964 are quoted hereinbelow:

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3. The Promoter hereby agrees to observe, perform and comply with all the terms, conditions, stipulations and restrictions if any, which may have been imposed by the concerned local authority at the time sanctioning the said plans or thereafter and shall, before handing over possession of the Flat to the Flat Purchaser, obtain from the concerned local authority occupation and/or completion certificates in respect of the Flat.

4. The Promoter hereby declares that the Floor Space Index available in respect of the said land is square metres only and that no part of the said floor space index has been utilized by the Promoter elsewhere for any purpose whatsoever. In case the said floor space index has been utilized by the Promoter elsewhere, then the Promoter shall furnish to the Flat Purchaser all the detailed particulars in respect of such utilization of said floor space index by him. In case while developing the said land the Promoter has utilized any floor space index of any other land or property by way of floating floor, space index, then the particulars of such floor space index shall be disclosed by the Promoter to the Flat Purchaser. The residual F.A.R. (F.S.I.) in the plot or the layout not consumed will be available to the promoter till the registration of the society. Whereas after the registration of the Society the residual F.A.R. (F.S.I.), shall be available to the Society.

18. The above clauses 3 and 4 are declared to be statutory and mandatory by the legislature because the promoter is not only obliged

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statutorily to give the particulars of the land, amenities, facilities etc., he is also obliged to make full and true disclosure of the development potentiality of the plot which is the subject matter of the agreement. The promoter is not only required to make disclosure concerning the inherent FSI, he is also required at the stage of lay out plan to declare whether the plot in question in future is capable of being loaded with additional FSI/ floating FSI/ TDR. In other words, at the time of execution of the agreement with the flat takers the promoter is obliged statutorily to place before the flat takers the entire project/ scheme, be it a one building scheme or multiple number of buildings scheme. Clause 4 shows the effect of the formation of the Society.

19. In our view, the above condition of true and full disclosure flows from the obligation of the promoter under MOFA vide Sections 3 and 4 and Form V which prescribes the form of agreement to the extent indicated above. This obligation remains unfettered because the concept of developeability has to be harmoniously read with the concept of registration of society and conveyance of title. Once the entire project is placed before the flat takers at the time of the agreement, then the promoter is not required to obtain prior consent of the flat takers as long as the builder put up additional construction in accordance with the lay out plan, building rules and Development Control Regulations etc. (emphasis supplied)

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34. The Supreme Court has thus enunciated that, Section 7A

basically allows a builder to construct additional building

provided the construction forms part of a scheme or a project.

That construction has to be in accordance with layout plan.

That construction cannot exceed the development potentiality of

the plot in question. However, Section 7A does not dilute the

obligation of the promoter to make full and true disclosures. The

obligation of the promoter under MOFA to make true and full

disclosures to the flat purchasers remains intact and unwavered

even after the insertion of Section 7A in MOFA, 1963. That

obligation remains unfettered even after the amendment made

in Section 7(A)(ii) of the MOFA, 1963. Instead, by insertion of

sub Section (1A) of Section 4 of MOFA, 1963 by Amendment Act,

36/1986 that obligation is strengthened, held the Supreme

Court.

35. The Supreme Court further emphasized that, the rights of

the promoter to make alterations or additions in the structure of

the building in accordance with the layout plan, on the one

hand, vis-a-vis obligation to form the Society and convey right,

title and interest in the property to that Society, are required to

be balanced. The condition of true and full disclosure flows from

the obligation of the promoter under MOFA vide Sections 3 and

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4 and Form V which prescribes the form of agreement. The

obligation remains unfettered because the concept of

developability has to be harmoniously read with the concept of

registration of society and conveyance of title. Once the entire

project is placed before the flat purchasers at the time of the

agreement, then the promoter is not required to obtain prior

consent of the flat purchasers as long as the promoter puts

additional construction in accordance with the layout plan,

building rules and development control regulations, etc.

36. In the case of Grand Paradi CHS Ltd. Vs. Mont Blanc

Properties & Industries Pvt. Ltd. (supra), a Division Bench of

this Court after referring to the decision in the case of Jayantilal

Investments Vs. Madhuvihar CHS (supra) enunciated that, a

builder is entitled to raise additional structures if he discloses

the additional structures in the layout plan itself, when the flats

are sold. The observations in Paragraph 13 and 14 read as

under :-

"13. It is thus clear that the builder is always entitled to raise additional structures if he discloses the additional structures in the layout plan itself at the time when he sales the flats. No consent of the flat owners is necessary for raising additional structures. But if the additional structures are not

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disclosed in the layout plan then previous consent of the flat owners is necessary. .......

14. This consent was given by the members of the plaintiff society in the year 1971 with full knowledge of the law then in force. Now they cannot be permitted to resile from such express consent given by them. In our opinion, once the flat purchasers give their consent at the time of entering into the agreement to purchase the flat unless they make out a case that their consent was obtained by adopting any illegal means, they will be bound by the consent given by them. In our opinion, therefore, fresh consent at the time of raising every additional construction will not be necessary. It is pertinent to be noted that the defendant No. 1 was always ready to execute the deed in favour of the society in accordance with the agreement but it could not be executed because society wanted a conveyance as per amended provisions of the act. We thus find that the plaintiffs have not made out a prima facie case that they are entitled to have sale-deed of entire land and the building executed in their favour and the defendant No. 2 society."

(emphasis supplied)

37. In the case of Madhuvihar CHS Vs. Jayantilal Investments

(supra), a learned Single Judge of this Court after adverting to

the aforesaid observations of the Supreme Court in the case of

Jayantilal Investments Vs. Madhuvihar CHS (supra) enunciated

that, a prior consent of the flat owner would not be required if

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the entire project is placed before the flat purchasers at the time

of agreement and that the builder puts an additional

construction in accordance with the layout plan, building rules

and development control regulations. It is, thus, manifest that if

the promoter wants to make additional construction, which is

not part of the layout, which was placed before flat purchaser at

the time of agreement, the consent as required under Section 7

of the MOFA, 1963, would be necessary.

38. In the said case, the learned Single Judge also referred to

the nature of the disclosures, that would obviate the necessity

of further consent. After referring to the previous

pronouncements, the learned Single Judge observed inter alia

as under :-

"46. Thus, there is consistent view of this court, that the blanket consent or authority obtained by the promoter, at the time of entering into agreement of sale or at the time of handing over possession of the flat, is not consent within the meaning of Section 7(1) of the MOFA, inasmuch as, such a consent would have effect of nullifying the benevolent purpose of beneficial legislation.

47. It is, thus, clear that it is a consistent view of this court, that the consent as contemplated under Section 7(1) of the MOFA has to be an informed consent which is to be obtained upon a full disclosure by the developer of the entire project and

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that a blanket consent or authority obtained by the promoter at the time of entering into agreement of sale would not be a consent contemplated under the provisions of the MOFA. I am in respectful agreement with the consistent view. The interpretation placed by the learned Single Judges of this court is in consonance with the benevolent provisions of the MOFA which have been enacted for protecting flat takers."

(emphasis supplied)

39. In the case of Malad Kokil CHS (Supra), after adverting to

the aforesaid decision in the case of Jayantilal Investments Vs.

Madhuvihar CHS (Supra), it was, inter alia, enunciated that the

promoter ought to make complete disclosure to the flat

purchaser at the time of placing the scheme before the flat

purchaser. If the entire project is placed before the flat

purchaser at the time of entering into an agreement for sale,

then the promoter is not required to obtain prior consent of the

flat purchaser. However, if the promoter desires to make

additional construction not part of the plan originally placed

before the flat purchasers at the time of entering into the

agreement for sale then consent as envisaged under Section 7 of

MOFA, 1963 would be necessary. Moreover, such consent under

Section 7 of MOFA 1963 can not be "blanket consent" but must

be an "informed consent" meaning thereby the flat purchasers

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were made fully cognizant of the proposed future development

and, yet, gave consent.

40. It thus emerges that, the position in law has crystallized to

the effect that the consent as contemplated under Section 7(1)

of MOFA, 1963 has to be an "informed consent", which is

obtained upon full and fair was disclosure of the entire project

by the promoter and that a blanket consent or authority

obtained by the promoter at the time of entering into agreement

for sale, would not serve the purpose.

41. In the light of the aforesaid enunciation of law, reverting to

the facts of the case, as noted above, the Defendant No. 1 had

professed to develop the project in phases. In the sanctioned

layout and the building plan 2008, Building Nos. 1 and 2 and

the other buildings were shown as the future buildings. The

location of those buildings was specifically indicated in the

sanctioned building plan 2008. Prima facie, the learned District

Judge was thus justified in holding that in the sanctioned plan

2008, the additional buildings, to be constructed as a part of

the said project, were shown in the layout as the future

buildings.

42. This propels me to the question as to whether there was

an informed or blanket consent, as alleged by the plaintiff.

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Clauses 26 to 29 of the agreement for sale were pressed into

service on behalf of Defendant No. 1 to demonstrate that, there

was an 'informed consent' of the flat purchasers. Clauses 26 to

29 read as under : -

"26. The Builders shall be entitled to amend, modify and/or vary the building plans, layout plans and/or also the specification in respect thereof without reducing an area of the said premises.

27. The Builders shall be entitled to consume FSI as may be available in respect of the said property or any part thereof at present and for all times in future and shall always be entitled to utilize, construct and dispose of in their own right any balance FSI or any increased FSI of the said property. For the purpose of consuming such balance and/or additional FSI the developers shall be entitled to construct any vertical or horizontal extension thereto and/or put up additional floor and/or new or additional structure/building as the Builders may think fit and proper and to do all such things as may be necessary for this purpose.

28. The Purchaser/s agrees, confirm, declare or otherwise empower the Builders irrespective of the possession of the premises being given to the Purchaser/s under this agreement reserved unto or in favour of the Builders for exploiting the commercial, potential including the building thereon in the manner aforesaid or otherwise howsoever shall be subsisting and shall continue to vest in the Builders and further empower the Builders to keep

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and/or store any construction materials on any portion of the said property and/or to have additional electricity supply and/or additional water supply and for the purpose of the construction to do all such further acts, deeds, matters and things as may be necessary. In such event the Purchaser/s shall not take any objection or otherwise on the ground of any nuisance, noise and/or shall not claim any easement rights and/or any other rights in the nature of easements or prospective or other rights of any nature whatsoever. The Purchaser/s directly and/or indirectly shall not to any acts, matters, deeds and things whereby the Builders may be prevented from putting any additional and/or new construction and/or shall not raise any objection/obstruction/hindrance or otherwise.

29. The Purchaser/s agree, confirm declare or otherwise empower the Builders to give development rights to develop any one or more portion of the said property to any third party and/or permit to construct additional floors on the existing building on the said property for such price and terms as Builders may think fit and proper."

(emphasis supplied)

43. The erection of additional buildings and exploitation of the

balance FSI by the promoter was prima facie acceded to by the

flat purchasers. Undoubtedly, an expansive consent which runs

counter to the statutory obligations of the promoter under the

provisions of the MOFA, 1963 falls foul of the 'informed consent'.

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Such untrammeled permission even to change the layout plan

and modify or alter the building plans to the prejudice of the flat

purchasers at the sweet will of the promoter, constitutes a

blanket consent. The consent obtained without disclosing the

additional development at the time of execution of the

agreement for sale, thus cannot be said to be an informed

consent. Is that the case at hand?

44. The aforesaid extracted clauses in the agreement for sale

in question if read in juxtaposition with the sanctioned building

plan 2008, indicate, at the least, that the flat purchasers were

informed that, the Defendant No. 1 would construct additional

buildings as shown in the sanctioned layout and plan. If the

revised sanctioned plan 2023 is compared and contrasted with

the sanctioned plan 2008, it prima facie becomes evident that,

the additional buildings, which are proposed to be erected at the

designated places, were shown in the sanctioned plan 2008.

45. The principal grievance of the plaintiff appears to be

that the Defendant No. 1 is exploiting the development

potential of the subject land by utilizing FSI which would

otherwise be available to the plaintiff, by drastically reducing

the RG area, CFC area and other common areas. Non-

inclusion of the pond area of 2917.96 sq. mtrs was also

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vehemently urged on behalf of the plaintiff as an instance of the

unlawful commercial exploitation of the subject land.

46. In regard to the pond area of 2917.96 sq. mtrs, this Court

finds that in the sanctioned building plan 2008 as well as 2023,

the pond area of 2917.96 sq. mtrs. was shown and it was

designated as non-developable. Even while granting NA

permission, the Collector has imposed a condition that the

construction shall not be permitted in the pond area of 2903.30

sq. mtrs.

47. In contrast, it was the stand of Defendant No. 1 that the

pond area was shown on account of a drafting error. It would be

contextually relevant to note that, in the complaint being OA No.

194/2023, lodged by Charan Bhat, by an order dated 24 th

January, 2025, the National Green Tribunal, (Western Zone)

Bench at Pune has accepted the contention of Defendant No. 1

and ruled that, there was a clerical or drafting error in

recording that there was a small pond existing at the site in

question, when the permission was granted by the District

Collector. On account of the said error only, the entire

controversy has arisen with respect to the existence of the pond

at the site in question. It was concluded that, there was no pond

in existence at the site in question and, hence, there was no

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question of its restoration. The aforesaid order passed by the

National Green Tribunal prima facie lends credence to the

submission on behalf of the Defendant No. 1.

48. The reduction in RG area, CFC area and other common

areas, according to Defendant No. 1, occurred on account of

reduction in the area of the larger property as an area

admeasuring 4,000 sq. mtrs. was excluded from the total area

in view of the dispute with Best Builders. The RG area, CFC

area and other common areas, the Defendant No. 1 claims, have

been determined in accordance with UDPCR.

49. In regard to exclusion of 4000 sq mtrs area over which

Building No. 3F stands and M/s Best Builders has laid a claim,

in the Agreement for Sale executed by Defendant No.1 in favour

of flat purchasers, the description of the larger parcel of land

undoubtedly cover the total area of 26810 sq mtrs. A

representation could thus be said to have been made to the flat

purchasers that the Defendant No.1 was entitled to develop the

entire area admeasuing 26810 sq mtr and CIDCO vide letter

dated 2nd September 2008 had granted Commencement

Certificate for approved layout of property admeasuring 26810

sq mtrs. The first schedule appended to the Agreement for Sale

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describes larger property as NA plot of land, admeasuring 26810

sq mtr.

50. Thus the reduction of an area admeasuring 4000 sq mtrs

from the total area in view of the dispute with M/s Best Builders

may be a contentious issue. However, the aspect of the

entitlement of the purchasers of the flats in Wing "F" of Building

No.3, which stands over the said area of 4000 sq mtrs, cannot

be lost sight of.

51. On first principles the flat purchasers of Building No. 3

wing "F" would have the right to claim land covered by the

plinth area of Building No.3, wing "F", the appurtenant land,

and the corresponding rights in the common areas. Therefore,

the fact that in the sanctioned plan 2023, a provision for the

land admeasuring 4000 sq mtrs in respect of which Defendant

No.1 is entangled in a dispute with M/s Best Builders is made,

by itself, is not sufficient to throw the case of Defendant No.1

overboard.

52. This takes me to the thrust of the submission of Dr.

Warunjikar that the unlawful reduction of the RG, CFC, other

common area services/facilities and exploitation of the entire

balance development rights, excluding the approved BUA of

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11040.87 sq mtrs, only to account for the built up area covered

by the Plaintiff's buildings, jeopardizes the rights of the Plaintiff.

53. In the face of the aforesaid challenge the learned District

Judge ventured to balance the equities by directing the

Defendant No.1 to file undertaking to the effect that RG area,

CFC area, DP Road and additional FSI which has been

generated would be provided proportionately to the share of the

Plaintiff-society as per the sanctioned plan 2008. In addition,

Defendant No.1 was directed to make full and true disclosure.

Whether the aforesaid approach of the learned District Judge is

justifiable?

54. As a matter of principle the provisions contained in

Sections 7 and 7A of the MOFA, 1963, strike a balance between

the rights of the promoters to make further development in

accordance with the layout plan and his obligations to convey

the right, title and interest in the property to the society of flat

purchasers.

55. In the case of Jayantilal Investments (Supra) the Supreme

Court expressly observed that, in the facts of the said case, the

Court was required to balance the rights of the promoter to

make alterations or additions in the structure of the building in

accordance with the layout plan on the one hand, via-a-vis his

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obligations to form the society and convey the right, title and

interest in the property to that society.

56. Section 7A allows a builder to construct additional

buildings provided the construction forms a part of scheme or

project, it is in accordance with the layout plan and it does not

exceed the development potentiality of the plot in question.

57. The Court is thus required to steer clear of two extremes.

First, completely prohibiting additional development on the

ground that the said development was not disclosed to the flat

purchasers of the buildings/wings constructed at an earlier

point in time, in minutest detail. Second, to permit the

developer to put additional construction and commercially

exploit the development potential to the fullest and exclusion of

the society of flat purchasers on the premise that those societies

form part of a sanctioned layout, irrespective of the nature of

the disclosures and the quantum of exploitation by the

developer to the prejudice of the society.

58. In the case of Marathon Era Cooperative Housing Society

Ltd Vs Competent Authority and District Dy

Registrar,Cooperative Societies,9 albeit in a different context, this

Court adverted to the controversy that often arises in a layout

9 2024 SCC OnLine Bom 1115.