The Bombay High Court has refused to grant interim relief to a cooperative housing society seeking to redevelop its Altamount Road property, as it exceeds a 30-foot height restriction embedded in its historical title documents. Holding that the Plaintiff could not “approbate and reprobate its own title,” the Court declined to restrain the adjoining society from enforcing the covenant. It ruled that permitting construction beyond 30 feet at this stage would effectively amount to granting final relief before trial.
The dispute concerns land acquired by the Plaintiff under a 1963 conveyance that expressly incorporated stipulations from a 1944 Indenture, which in turn carried forward a 30-foot height restriction originating in a 1943 deed. The Plaintiff argued that the covenant was either unenforceable or obsolete due to the transformation of Altamount Road into a high-rise locality. It also contended that the adjoining society lacked locus to enforce the restriction and that the cause of action arose only in 2024 when the covenant was asserted.
The Defendant countered that the restriction clearly formed part of the Plaintiff’s chain of title and ran with the land. It argued that such covenants pass to successors without requiring repetition in each subsequent deed and invoked the doctrine of election, asserting that the Plaintiff could not accept title under the 1963 deed while disputing its conditions.
The Court, relying on precedents including Supreme Court of India rulings, held that restrictive covenants annexed to land pass with it and constitute an equitable interest. It observed that allegations of obsolescence and limitation required evidence and could not justify interim relief.
Finding no strong prima facie case and noting suppression and shifting stands by the Plaintiff, the Court dismissed Interim Application No. 731 of 2025 while permitting redevelopment up to 30 feet, leaving all issues open for trial.
Source: Raw Law
