Bombay HC directs Neelkamal Realtors to finish & hand over eight buildings to MMRDA, ET RealEstate
MUMBAI: The Bombay high court dismissed a petition filed by a developer and directed that he must complete eight buildings in the Mira-Bhayandar area outside Mumbai and hand them over to MMRDA under an erstwhile rental housing scheme, the benefits of which he took. The eight buildings are expected to have almost 3,000 residential and commercial units, the HC was informed.
The builder, Neelkamal Realtors Suburban Pvt Ltd, challenged a March 2022 rejection by the Mira Bhayandar Municipal Corporation (MBMC) of its request to switch to a new scheme under the new Unified Development Control and Promotion Regulations. In 2008, Neelkamal Realtors undertook a development project under the state rental housing scheme (RHS).
The scheme gave the builder 4 FSI with the condition that on 25 percent of the plot, he had to construct eight buildings to be handed over free of cost to the Mumbai Metropolitan Region Development Authority (MMRDA) with 1 FSI (floor space index), and use 3 FSI for free sale construction on the remaining 75 percent of the plot. The project was at Mahajanwadi in MBMC jurisdiction.
The developer constructed and sold, at “sheer profits,” 26 buildings using the 3 FSI but failed in his reciprocal agreement to complete and hand over the eight buildings under the 1 FSI meant for MMRDA, the HC division bench of Justices Bharti Dangre and Manjusha Deshpande said in an April 7 judgment, made available this week. To avail of the 4 FSI benefit, the builder had to hand over eight buildings with small 155 sq ft flats meant for rental housing for the homeless, the HC said. The scheme was in the larger public interest, and depriving MMRDA of the buildings would be a loss to the public exchequer.
The builder, through senior counsel Girish Godbole, said he constructed the eight buildings, but in 2014 the scheme itself was scrapped and converted to an ‘affordable housing scheme’.
The civic body, through advocate N R Bubna, said the builder completed construction of free sale buildings without handing over buildings to MMRDA but “kept them incomplete” and cannot be allowed to renege on his contractual obligations under a pre-approved scheme.
The builder’s argument was that the occupancy certificates (OC) were not yet received, rendering the project ‘ongoing’ and hence under the new development plan, he is allowed to seek a transition to its provisions and construction-potential benefits.
The state, through its advocate Y D Patil, argued the buildings constructed for free-sale would be illegal unless the builder complies with the arrangement to construct eight more buildings to be handed over to MMRDA.
The HC rejected, as without merit, the builder’s claim that since the project was “ongoing,” it could seek transition to the UDCPR and benefit under it by attempting to wriggle out of the RHS on the grounds that the state already scrapped the scheme.
The judges observed that while the developer continued to enjoy 4 FSI, despite the rental housing scheme being abolished in 2013-14, he continued with the construction using the 3 FSI and sold the units in 26 buildings, not converting to the rules under the new development plan for ongoing projects, “since he wanted to enjoy the fruits of the additional FSI.”
The HC said that the developer “deliberately dragged its feet in completing the eight buildings which it had to transfer to the MMRDA.” Having benefitted from the rental housing scheme, the HC said it would not permit the builder to wriggle out of the scheme on the plea that the state scrapped the scheme. Justice Dangre, who authored the judgment, said, “in fact,” without handing over the mandated units to MMRDA, the builder could not have even been permitted to make the windfall from the free-sale component.
