The high court disagreed with the trial court that the plot
was a Mhada property and provisions of Maharashtra Ownership of Flats Act did
not apply to it.
MUMBAI: In a relief
for residents of a building on St Michael Church property at Mahim, the Bombay
high court has directed the trial court to decide afresh whether a builder
should be restrained from carrying out construction of a multi-storeyed tower
on plots reserved for three gardens.
Justice R M Savant
heard an appeal by members of Our Lady of Vailankanni and Perpetual Succour
Housing Society against the dismissal of its application against Suraj Estate
Developers by the City Civil Court. The high court disagreed with the trial
court that the plot was a Mhada property and provisions of Maharashtra
Ownership of Flats Act did not apply to it.
The judge, said that
in the instant case, it cannot be said that the property belongs to or is
vested in the housing authority which is a pre-requisite for provisions of the
Mhada Act to be applied.
"Merely because
the redevelopment is in respect of structures which are amenable to cess which
a private landlord is required to pay to the municipal corporation, it would not
mean that the properties either vest in or belong to the Mhada," said
Justice Savant, while ruling that the trial court's order that Mhada Act is
applicable on the plot is unsustainable. The trial court is directed to decide
the issue within six weeks and also look into what will be the effect on the
redevelopment vis-a-vis the obligations under MOFA.
The residents had
moved the trial court for directing the church, the owner of the land on which
the building stands, to execute a deed of conveyance in favour of the Society.
It was in this matter, the residents sought an interim restraint on the
builder.
They argued that a
clause in the agreement between Suraj and the flat purchasers provides that it
shall be subject to the provisions of MOFA.
Also, that the
developer cannot construct without the consent of the Society. But the trial
court dismissed their plea saying development is being carried out in terms of
the modified DCR 33/7 and Mhada's no objection certificate has been obtained as
12 cessed structures and Quinny House are to be rehoused free of cost.
Therefore provisions of MOFA will not be applicable, it had ruled.
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