Judge V R Joshi of the city civil court, Dindoshi, held last month that the permission granted by the BMC to utilize Floor Space Index (FSI) beyond 1,122 sq metres and Transfer of Development Rights (TDR) was illegal. "It is directed that the defendant/BMC shall identify those upper floors constructed beyond the permissible FSI and TDR and demolish them immediately," the court said.
The building has 90 flats and the order affects 65 flats from the sixth floor upwards, said Jitendra Damani, advocate who appeared for the plaintiff. Around 82 of the 90 flats are occupied.
Girish Patel, the developer, said the entire building was granted Occupation Certificate in 2000.
"This building is part of a layout, and buildings are developed in phases depending on availability of finances. We will challenge the order in the high court," said Patel.
The Nand Dham housing society that has 100 members had filed the petition in 2000 seeking conveyance of the land on which its buildings stand. The two buildings, with three wings each, formed the society in 1986.
In 1996, Patel, who had constructed the Nand Dham buildings, approached the society managing committee about the construction of a new building on the same plot and paid Rs 21 lakh for not objecting to the construction and the loading of TDR.
The committee had then passed a resolution that it would obtain more information on the general trend of compensation by the builder. Society members had requested the managing committee to enhance the proposal from Rs 21 lakh to a more reasonable amount.
The court, in its order, said there was no objection to either construct the building or for using FSI/TDR. However, "it is well settled that such consent had to be informed and specific. After negotiating the compensation, an agreement was intended to be executed. There was no such agreement, there was no payment, in fact, there was no express consent," the order stated.
The judgment stated that the construction is partly unauthorized because at the time of construction, the FSI available was 1,122.4 sq metres. The plot area was 2,189 sq metres. "The TDR of one at most could have been loaded in addition to the existing FSI. However, the built-up area is 8,468.88 sq metres, which is beyond the permissible limit."
It further said that the entire plot area was taken into account and thereby the TDR potential which was to be conveyed to Nand Dham was taken away and which cannot be authorised.
"Therefore the construction beyond the permissible FSI and loadable TDR is unauthorized and illegal," read the report.
Permission granted by BMC to that extent was also illegal, the court said. It said the BMC version that since the developer had not executed conveyance in favour of the society (Nand Dham), the loading of TDR on the entire plot was permissible is not correct.
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