Bombay High Court · Second Appeal · 25.01.2019
A promoter cannot build on the recreation ground shown to buyers
The Bombay High Court held that a promoter who disclosed a layout showing a recreation ground cannot put up an additional building on it unless the proposal was disclosed or the flat purchasers gave informed consent, and sent the suit back for a fresh hearing.
Key points
- Under Sections 3, 4 and 7 of MOFA and the statutory clauses of Form V, the promoter must build according to the layout disclosed to purchasers.
- An area shown as a recreation ground or amenity space cannot be used for an additional building unless that use was disclosed, or the purchasers gave specific, informed consent.
- It does not matter whether the RG was compulsory or additional, or whether a particular flat faces it; the RG is for the benefit of all flat takers.
The facts
Flat purchasers in the “Kores Nakshatra” project in Thane bought in 2007 on the basis of a sanctioned layout showing 15 buildings and open and amenity spaces, including two recreation grounds. In 2009 the developer proposed a sixteenth building on one of the recreation grounds (RG No. 2). A purchaser sued; the trial court dismissed the suit and the District Court dismissed the appeal, relying on general clauses in the agreement about using FSI/TDR for further buildings, and on the total RG area still meeting the legal requirement.
What the Court held
The Court framed the question as whether, after disclosing a layout showing open spaces including an RG, a promoter may build an additional building on that RG without the purchasers’ consent. It held that the promoter’s duty of disclosure means he must keep to what he disclosed: if an area is shown as an RG or amenity space, he cannot use it for additional construction without disclosing that possibility, or obtaining informed consent. General clauses about phased development, TDR or additional buildings were not consent to building on the RG. Both lower courts had missed this question. The second appeal was allowed against the promoter and the suit was sent back to the trial court for a fresh hearing.
Why it matters
Societies and purchasers in layouts where the developer still has FSI to use can rely on this judgment when the developer proposes to build on a garden, playground or amenity space shown in the layout given to them. The original agreement, the layout attached to it and any brochure should be preserved. The case was remanded, so the final outcome on the facts was left to the trial court.
Twenty-seven-page judgment in English (copy from Indian Kanoon). This page summarises the decision for general information; it is not a substitute for the full text and not legal advice. Check whether the decision has since been appealed, modified or overruled.
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