Our society was registered on 15 April 2015. It is fully commercial building. Builder does not have any unsold office units in our society as of today. Before our society was registered, the builder has taken 'Affidavit cum No Objection' on stamp paper stating that we will not object if he uses our society's future FSI on August 22, 2014 (As proposed society members/promoters). How valid / authentic is that document without notarised and unregistered? Our society has already applied for the matter of Conveyance of land and property in favour of the society at the office of DDR, Dadar - West and hearings are going on from both the sides. Our society is planning to get stay order as he has started construction of adjoing plot which is also in his name using our society's FSI. Our society's area is 60% of the total plot area (Got this information from MCGM website). Can you all please guide me what to do next? Shall we go for Writ Petition or get injunction order to stop his work? As he has already constructed 2 floors in next residential building when our commercial building offices were closed. We have issued notices to him for conveyance in last October 2019 up to February 2020 and also to MCGM regarding it. Kindly give the advice.
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File suit seek court orders restraining builder from carrying on any construction using society FSI
2) also request BMC not to sanction any plans for carrying on construction using society FSI
3) file RTI application and obtain copy of building sanctioned plans
Hello,
You can file a suit for permanent injunction against the builder against his proposed construction in the common area that he should have conveyed to the society on the formation of the same. You can also seek conveyance of the land and property in favor of the society in the same suit as additional relief.
What is your advocate's opinion in this matter, is he not favoring for an injunction suit?
Injunction suit can be filed in the subordinate court itself and no writ petition need to be filed before high court.
how are you so sure that the builder is using the FSI of your plot on the adjoining plot for making construction?
you need get the proper information regarding utilisation of FSI on neighouring plot from the BMC
Also the affidavit is of no use to the builder because once the building is completed and OC is issued, then builder has to convey the land and structure to the society of unit purchasers
the conveyance will be as per the terms contained in the agreements for sale executed with the buyers
a simple affidavit taken subsequently cannot bind the society members. However the builder will use that as a defense in the pending deemed conveyance proceedings
also it is no excuse that the affidavit was given to the builder 'in ignorance'. That defense or excuse does not look plausible
it cannot be that all the society members 'ignorantly' made such an affidavit!
as regards the ongoing construction in the adjacent plot, first get proper info from BMC and if they do not reply then approach high court by filing a writ petition
check your agreement for sale as to what is stated regarding use of FSI of the land underneath the society building
if builder informed in the AGM that he will use the society's FSI on the adjoining plot, then what prompted the members to give that affidavit?!!!!
1. Irrespective of the Affidavit /NOC /Bond that may have been given to the Builder by Flat Owners, the Builder is legally not entitled to use FSI for the layout plan of your Society buildings.
2. File a WP and seek restraining order on the Builder's construction activities and demolishing of the illegally built structures.
Keep Smiling .... Hemant Agarwal
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1. If the society has executed a NOC then it is binding on it and is a charter of rights and liabilities.
2. NOC is not required to be either registered or notarised,
3. In the given circumstances, it is most unlikely that injunction will issue to stop the construction, but you can try your luck.
