HC grants temporary relief to South Mumbai’s ‘The Imperial’ twin towers’ flat owners, restrains construction beyond sanctioned plan

“Ironically however, the ultra-luxurious twin towers of ‘The Imperial’, which are home to affluent residents, is a product of incentive offered to the developer for rehabilitation of poor slum dwellers on the encroached land,” Justice Marne noted.

The court said that the developer of ‘The Imperial’ had received such incentives in the form of permission to sell some flats to recover the expenditure incurred while constructing tenements for slum dwellers. “The swanky skyscrapers of ‘The Imperial’ have thus emerged by utilization of incentives received towards rehabilitation of slum dwellers while implementing a slum scheme,” the order stated.

Justice Marne, in a 170-page judgment, recorded that the project was initially envisaged as a three-tower layout and while simultaneously rehabilitating slum dwellers, the developer built only two towers ‘A and B’, which were completed by 2014. However, the judge observed that “the developer has kept the slum scheme incomplete for over 25 years and has constructed a fourth unplanned tower ‘Imperial Edge’, while keeping under wraps, the specifications for construction of the third planned tower.”

The bench observed that “keeping the slum scheme pending for over 25 years, clubbing the same with another slum scheme at Wadala and various changes in FSI norms occurring in the interregnum, appears to have resulted in a bonanza for the developer, who is now armed with such massive sanctioned sale component built-up area that it is finding it difficult to consume the same in entirety in the third planned tower.”

The order said the developer was now planning construction of a fifth building called ‘Town House’ and “has also brazenly proposed to feed the refugee and other areas of the existing twin towers with Floor Space Index (FSI) by constructing additional flats therein.”

The plaintiffs, represented by senior advocates Pravin Samdani, Prateek Seksaria and Simil Purohit, contended that the use of excess FSI to construct ‘Town House’ and additional flats was an attempt by the developer to “encash the opportunity created on account of delay in completion of slum scheme” and the same was against provisions of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management, and Transfer) Act (MOFA), 1963,

In response, senior advocate Virag Tulzapurkar, representing developer S.D. Corporation Pvt. Ltd, argued that MOFA provisions did not apply since the land belonged to the Maharashtra Housing and Area Development Authority (MHADA) and that disclosure requirements under MOFA were not enforceable for projects under slum schemes.

Justice Marne held that the “plaintiffs made out strong prima facie case for grant of injunction to restrain defendants from constructing Tower-C building by exceeding sale component Built Up Area (BUA) of 38,581.64 square metres” and refused request to stay the said direction.
The judge said during the suit’s pendency, there could be no new changes to Towers A and B without consent of existing flat purchasers and restrained construction of the fifth building ‘Town House’ to an extent of attaching it in any manner to the podium or any part of the Towers A, B and C.
Justice Marne held plaintiffs would “suffer irreparable loss” without interim order and “no serious loss or prejudice would be caused to defendants” by the same.