The Hon’ble Bombay High Court on January 25, 2019 passed a judgment in the matter of Shri Vitthal Laxman Patil v Kores (India) Pvt. Ltd Real Estate Division Mumbai and others dealing with an important question of law i.e. whether after making disclosers to flat purchasers of a sanctioned layout plan, as per the requirement of Maharashtra Ownership Flats Act (“MOFA”), is it permissible to a promoter to construct an additional building on the Recreation Ground (‘RG’) area shown in the layout plan without seeking consent from the flat purchaser?
The Court has considered various Bombay High Court and Supreme Court judgements passed in respect of Section 7 and Section 7A of MOFA. The Court noted that the provisions and rules of MOFA requires the promoter to put up an additional construction only in accordance with the layout plan disclosed to the flat purchasers at the time of entering into the contract for sale of flats, consistent with the building rules contained in Development Control Regulations (“DCR”). Further, the Court observed that if the building site contains future development potential, i.e. any possibility of further construction, whether over one or the other buildings or anywhere else in the layout plan, it is the promoter’s duty to disclose such future constructions, in the layout plan. The promoter cannot disclose one or the other buildings or area/s for such additional construction and then construct somewhere else. If a particular area is to be kept open either as RG or amenity space, he cannot, without disclosing a possible future use of such area, use the area for any additional construction.
The second appeal was allowed by the Court and the impugned orders of the courts below were set aside.
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