1 (903)AO.424.2011 WITH CAA.598.2011 IN AO.424.11.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 424 OF 2011 WITH CIVIL APPLICATION NO. 598 OF 2011 M/s. Dattani Enterprises ...Appellant (Original Defdt.No.1) Vs. Dattani Nagar One Co-op. Hng. Soc. Ltd. & Ors. ...Respondents (Orig.Pltff. & Defdts.2 to 5 rsp.) Mr. R. Narula, Advocate i/b. Jhangiani, Narula & Associates for the Appellant Mr.Amarendra Mishra, Advocate for Respondent No.1 Mr. J.K.Maladkar, Advocate for Respondent No.3 CORAM : SMT. ROSHAN DALVI, J. DATED : 26TH AUGUST, 2011 P.C. : 1. The Appellant is the developer who has challenged the order of injunction of the City Civil Court in the suit of the Society restraining further construction by exploiting the TDR. The Society’s plot consists of 4 buildings. The building of the Plaintiff’s Society is the first and oldest building. Thereafter 2 other buildings came up under the same layout plan. Much later a 4th building was sought to be constructed. That construction was not under the layout plan and hence was opposed. A suit came to be filed. That suit stood dismissed. The 4th building of stilt plus 7 floors came up under the plan sanctioned at the relevant time. All this construction took place under the plan of 1998. 2 (903)AO.424.2011 WITH CAA.598.2011 IN AO.424.11.sxw 2. Much later the 8th floor on the 4th building is sought to be constructed. This construction is for exploiting the TDR of the plot. Whatever be the TDR of the plot can allow for construction anywhere on the plot. The Appellant has chosen to put up further construction on the 4th building alone. He has obtained consent of all the flat purchasers in the 4th building alone. The consent of the flat purchasers required to be given under Section 7 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) is for whatever is the additional construction which that building is capable of. The additional construction upon exploitation of the TDR of another building in the same plot cannot be allowed upon the consent of the flat purchasers of only one building. It would enure for the benefit of all the flat purchasers of all the 4 buildings. 3. It is contended on behalf of the developer that out of the total TDR of 7676.80 Sq. Mtrs., he is putting up construction of only 400 Sq.Mtrs. In fact that is shown against the item “Slum 300+100”. It is not shown against the TDR available in respect of the 4th building alone. The developer shall be able to construct the 8th floor upon the consent of the flat purchasers of the 4th building alone only to the extent of the TDR of that building and not of the entire plot. Hence if 400 Sq. Mtrs., is indeed the TDR which is exploited in respect of that portion of the plot alone from out of the entire TDR of 7676.80 Sq. Mtrs., it is for the developer to obtain certification of the Building Authority in that behalf. The specifications in the approved plan do not show that aspect. Until the developer obtains such certification 3 (903)AO.424.2011 WITH CAA.598.2011 IN AO.424.11.sxw the impugned order must stand as the correct order restraining construction to be put on one building upon exploiting the available TDR of entire plot. 4. Upon the developer applying for the necessary certification the relevant officer of the Corporation being the Executive Engineer, Building Proposals shall certify in detail about the total TDR exploitable on the plot and the TDR allowed to be exploited for the 8th floor construction in the 4th building. 5. In my order dated 23rd August 2011 the appearance of the Appellants shall be correctly shown. 6. The Appeal is disposed off accordingly. (SMT. ROSHAN DALVI, J.)