| Bombay High Court M/S. Dosti Corportion vs Sea Flama Co-Operative Housing … on 7 April, 2016 Bench: R.D. Dhanuka |
| 1. MOFA not Repealed by RERA 2. Even if land is not conveyed to Housing Society, the Addl. FSI would belong to the Housing Society. |
| 88. It is held that the additional FSI cannot be claimed by the Developer for putting up any additional building not under the approved plan. The failure and neglect to register the society and convey the property would certainly not give any right to the Developer to step upon the property or to claim any FSI. The FSI belongs to the plot. The plot must be taken to be conveyed after the statutory period and thus the FSI that would be available only to the true owner of the plot. Failure to convey would not constitute the Developer a true owner. That would be putting a premium upon his default and that would constitute an abuse of legal process. It is held that any FSI for putting up any additional construction not in the initial sanctioned plan can therefore never enure for the benefit of the Developer except with the express written permission of all the flat purchasers or the Society, after its formation. It is held that such FSI would belong to and can be exploited by none other than the Society of flat purchasers |
121. A perusal of the written statement and affidavit in reply filed by
the defendant no.1 in the suit filed by the plaintiff before the Bombay
City Civil Court clearly indicates that neither any reference to the Act
of 2012 were made therein, nor any submissions were advanced before
the learned trial Judge though certain provisions of the said Act were
already brought in force before the submissions were advanced by
both the parties before the learned trial Judge. Be that as it may, I am
not inclined to accept the submission of the learned senior counsel for
the kvm AO117.16 defendant no.1 that any of the provisions of MOFA
stood repealed by the said Act of 2012 with retrospective effect. In my
view, the rights to get the deed of conveyance executed in favour of the
plaintiff and the defendant nos.3 to 5 accrued much prior to issuance of
the notification under the Act of 2012 cannot be taken away even if
some of the provisions of the said Act of 2012 are made applicable in
view of the specific provisions under section 6(e) of the Bombay
General Clauses Act, 1904.
