The Maharashtra Real Estate Appellate Tribunal (MahaREAT) has directed the demolition of Wing E at a housing project in Badlapur, ruling that a developer cannot rely solely on a subsequently approved revised building plan to undertake additional construction without obtaining informed consent from homebuyers.
The tribunal also imposed a Rs 10 lakh penalty for violations of the Real Estate (Regulation and Development) Act, 2016 (RERA) and the Maharashtra Ownership Flats Act (MOFA).
The order was passed in the case of Parshvadhara Complex ABCD Co-operative Housing Society Ltd. v M/s Parshwanath Developers & Ors., pronounced on September 7 by a bench comprising Chairperson S.S. Shinde and Member (A) Shrikant M. Deshpande.
Additional Wing Became the Centre of Dispute
The project, spread across 3,870 sq. m. in Belavali, Badlapur, was originally sanctioned in April 2015 with four wings — A, B, C and D. These plans were disclosed to purchasers when they acquired their flats.
Occupation certificates were subsequently issued for Wings B, C and D in January 2019 and for Wing A in October 2022.
However, the promoters obtained a revised plan in July 2021 introducing Wing E, without securing the consent of the housing society or its allottees. Residents alleged that the new construction encroached upon areas originally earmarked for gardens, recreation and parking.
“Our client, the society, approached MahaRERA after the promoter usurped the children’s garden and open space by unilaterally amending the plans after filing Form 4 and obtaining the OC. The builder tried to use the open space and playground to construct an additional tower for commercial purposes. MREAT has delivered a landmark judgment clarifying the mandatory consent required to carry out any additional construction beyond the sanctioned plan disclosed in the brochure, agreement for sale and advertisements,” said Adv. Nilesh Gala, who represented the society.
Revised Approval Not Enough, Says Tribunal
The tribunal distinguished between permission granted by a planning authority and the contractual and statutory rights of homebuyers. It held that a revised plan cannot, by itself, authorise additional construction where purchasers were not properly informed and their required consent was not obtained.
The promoters had relied on agreement clauses permitting additional FSI or TDR and future modifications before conveyance. MahaREAT, however, found that these general clauses did not amount to informed consent for Wing E because the agreements did not specifically disclose the proposed additional wing or the extent and source of the additional development potential.
The tribunal held that the promoters had violated Section 7 of MOFA and Section 14 of RERA.
Restoration and Conveyance Ordered
Architectural assessments placed before the tribunal indicated that the FSI available under the original 2015 plan had already been consumed by Wings A to D, weakening the promoters’ justification for the additional construction.
MahaREAT ordered the demolition of Wing E and restoration of the garden, playground, recreation areas, open spaces, parking and other amenities according to the original plan.
The promoters must also reconstruct the Wing-D meter room, parking and society office as provided in the 2015 plan.
The tribunal further directed the promoters to execute and register the conveyance deed for the 3,870 sq. m. project land, including common areas and open spaces, within 90 days.
The ruling reinforces the principle that developers cannot treat broad agreement clauses or later planning approvals as a substitute for specific, informed homebuyer consent when materially altering a project after sale commitments have been made.
Source: The Free Press Journal
