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Asian Development Corporation, Mumbai and Others V/S Kavita Co-Op. Housing Society Ltd. Mumbai and Others.


    Appeal From Order Nos. 114 and 115 of 2007 and Suit No. 5237 of 2005 and Suit (ST) No. 1010 of 2006

    Decided On, 08 August 2011

    At, High Court of Judicature at Bombay

    By, THE HONORABLE JUSTICE: J.H. BHATIA

    For Petitioner: Anil Anturkar instructed by Sugandh Deshmukh



Judgment Text


1. Rule. Rule returnable forthwith.

Heard learned counsel for the appellants.

2. Both the Appeals are filed by the original defendants in S. C. Suit No. 5237 of 2005 wherein the present respondents are the plaintiffs. The dispute in both the Appeals is common. Temporary injunction has been granted in favour of the respondents in a Notice of Motion taken out by them and the Notice of Motion taken out by the present appellants in their suit was dismissed. Therefore, the appellants have preferred these two Appeals arising out of those Notices of Motion.

2A. Admittedly, the appellant No. 1-Asian Development Corporation was the original owner of the land bearing CTS. No. 1030 at Yari Road, Versova, Andheri (West) Mumbai and had made construction of a building on the said land in the year 1983 after having constructed the building. It sold away the flats in the said building. The purchasers formed Kavita Co-operative Housing society, which is the respondent No. 1.

3. In 1994, for the first time a scheme was evolved by the Government and the Municipal Corporation whereby additional FSI or TDR was allowed to be used on the existing buildings/plots subject to terms and conditions. The appellant No. 1 the original owner of the land claims to have a right to make additional construction on the basis of additional FSI and right to load TDR on the existing buildings. Appellant No. 1 assigned the said rights in favour of appellant Nos. 2 and 3 under an Agreement dated 7th January, 2005. On the basis of that Agreement, the appellants seek to make additional construction on land bearing CTS No. 1030. That proposed construction is opposed by the respondent No. 1-society and the members who are owners of the flats in the building. According to them, the present appellants have no right title or interest in the said plot of land or buildings as the complete building was sold away by the appellant No. 1 immediately after construction in the year 1983 and it had no right, title or interest either on the land or in the said building. According to them, the appellants cannot claim any right or make any additional construction on the basis of the additional FSI or TDR which may be available for that land after 1983. In view of this, the respondents claimed temporary injunction restraining the appellants from making any construction, while the appellants sought temporary injunction restraining the respondents from obstructing them from making any construction.

4. Heard learned counsel for the appellants. It appears that in 1983 when the appellant No. 1 made construction of the building, complete FSI which was then available on that land was used and the building was constructed. The complete building was sold away to different persons. As complete FSI of that plot of land was used for construction of the building, the appellant No. 1 the Original owner, could not claim any further right, title or interest in the land on which that building was constructed. Thus, prima facie the flat owners and the society became owners of the building on the land beneath it. Thus, since 1983 or so, when the flats were sold away till the additional FSI or facility of TDR was made available by the government, the appellants prima facie did not have any right, title or interest either in the said plot or on the building standing on that plot. In such circumstances, if under any new scheme of additional FSI or facility of loading TDR on the existing buildings or land was made available, naturally that right or benefit would go to the owners of the land and the building. As it appears that (the title over the land) building was the property of the society and its members and not of the appellant No. 1 the title over the land should be with the society. Learned counsel for the appellants states that the appellant No. 1 had not executed any conveyance deed about that building or of the land beneath it and therefore title is still with the appellant No. 1. If the appellant No. 1 did not execute conveyance deed possibly he may have committed an offence punishable under the provisions of MOFA Act and he cannot be allowed to take benefit of the offence he himself committed. If because of the scheme evolved in 1994, any additional FSI or right to load TDR is available, that will be available to the owners of the property and not to the persons who had disposed of the property long back. In view of

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this, I find that prima facie the respondents have made out a case for temporary injunction. Therefore, balance of convenience is in favour of the respondents and any construction made by the appellants will cause lot of inconvenience and complications. In view of these circumstances, I find no substance in the present Appeals. 5. In the result, both the Appeals stand dismissed. Rule discharged. Both the Civil Applications do not survive and stand disposed of accordingly.
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