Bombay high court says Additional FSI belongs to society, not builder

HC SAYS Developer cannot take advantage of failure to execute conveyance deed

After the statutory period for executing conveyance has passed, only the co-operative housing society will have right to utilise additional Floor Space Index (FSI), if it becomes available at any later stage. The Bombay high court on Monday held that the builder or developer, who constructs the society building, cannot take advantage of his own wrong ­ of not executing conveyance in favour of the society within statutory period ­ and insist upon utilising the additional FSI.

The court was hearing an interim plea filed by Ratna Rupal Co-operative Housing Society seeking orders to restrain Rupal Builders ­ the original developer of the building ­ from having any additional construction on their plot.

Rupal Developers had constructed the building back in 1975 utilising all the FSI available at the time. The members of the society got it registered in September 1978, and accordingly, the builder was statutorily bound to execute conveyance in favour of the society by January 1979, but it has not yet seen the light of day.

In light of this, the society moved the high court in 2000 after the builder came back and wanted to take advantage of an amendment in the Development Control Regulations for the city, which provided additional FSI. Their counsel Anil Singh contended that the housing society alone had the right, title and interest on the entire plot of land. The conveyance had to be executed within the specified period, and non-performance of the statutory duty and obligation would not alter the legal position, Singh had argued.

Justice Roshan Dalvi accepted his contentions, and restrained the builder from carrying out any construction on the society plot. “Failure to convey would not make the developer the true owner,“ observed the judge, adding, “That would be putting a premium on his default and constitute abuse of the legal process.“

The failure and neglect (on the part of the developer) to get the society registered and convey the property would certainly not give any right to the developer to step upon the property or to claim any additional FSI, the court noted.
“The FSI belongs to the plot, which must be taken to be conveyed after the statutory period,“ Justice Dalvi observed and added, “The FSI would, therefore, be available only to the true owner of the plot (the housing society).“

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