Many housing projects built under the Maharashtra Ownership Flats Act (MOFA) include clauses stating that the developer can use available FSI and construct additional buildings or floors. However, disputes often arise when developers avoid forming societies in order to exploit newly available FSI benefits.
In your case, the purchase agreement (2015) contains a clause that the builder can utilise available FSI and the purchaser will not object until the society is formed. The developer has now delayed society formation for over three years after giving possession and is seeking to construct two new floors based on enhanced FSI under the updated DCPR. He claims no consent is required because of the old agreement clause.
Why This Claim Is Legally Incorrect
Under MOFA, the builder has mandatory statutory duties, irrespective of any clause in the agreement. These include:
• Completing the project as per sanctioned plans
• Forming the society within the stipulated time
• Conveying the land and building to the society
Once the society is formed, any additional or unutilised FSI belongs to the property—which means it belongs to the society, not the developer.
Any clause that allows unlimited construction without consent cannot override MOFA’s statutory protections.
Consent of Homebuyers Is Mandatory Under MOFA
MOFA clearly requires explicit written consent of flat purchasers for:
• Any additional floors
• Any additional construction not part of the original disclosed layout
Therefore, the developer cannot rely on a blanket FSI utilisation clause to bypass statutory requirements.
Bombay High Court Judgment Supports Homebuyers
A recent and important judgment of the Bombay High Court dated 22 August 2024 in Mahavir Terrace CHS Ltd vs Shri Govindram K Tibrewala & Ors directly addresses this issue.
The Court observed:
• The developer failed to comply with mandatory obligations under Section 10 of MOFA and Rule 8 of the MOFA Rules
• The builder cannot take advantage of his own default, such as delaying society formation
• If the society is not formed and conveyance not completed, the builder cannot claim unutilised FSI
• Any additional construction requires explicit consent of buyers
This judgment strongly supports the rights of the future society and prevents the developer from misusing FSI through delay tactics.
Effect on Your Future Society’s Rights
The old agreement clause will not adversely affect the society’s right to additional FSI. Once the society is formed and conveyance is executed:
• All unutilised or future FSI belongs to the society
• The developer loses any unilateral claim
• Additional construction will require society’s consent
The court has made it clear that builders cannot withhold society formation just to claim future FSI benefits.
Conclusion
The developer’s claim that no consent is required is legally unsustainable.
The clause in the 2015 agreement does not override MOFA or the rights of the society. The delay in forming the society actually works against the builder, not in his favour.
If needed, the homebuyers/society members can:
• Approach MahaRERA for non-formation of society under Section 11(4)
• File a complaint under MOFA for violation of statutory obligations
• Seek directions to form the society and hand over unutilised FSI rights
