Case Note & Summary
The Official Trustee, Maharashtra State, filed a petition seeking clarification and directions regarding an order dated 8.8.1997 passed in Trust Petition No.5 of 1995. The Official Trustee had entered into a Memorandum of Understanding (MOU) with the respondents, M/s. Earth Designers & Developers Pvt. Ltd., on 29.11.1994, granting development rights in respect of only 2294 sq. ft. in Plot No. C.S. No. 113. Subsequently, a Public Interest Petition was filed opposing the sale, leading to the respondents filing Trust Petition No.5 of 1995 for approval of the sale based on the MOU and NOC from the Income Tax Department. By order dated 8.8.1997, the Trust Petition was disposed of, and the Public Interest Petition was also disposed of. Pursuant to that order, the petitioner executed a power of attorney in favor of the respondents, and the respondents deposited Rs. 35 lacs with the petitioner. However, realizing that the power of attorney did not mention the exact FSI entitlement, the petitioner filed the present petition seeking a declaration that the respondents are entitled to use only 2294 sq. ft. of FSI by way of TDR in respect of the property described in Schedule A and nothing more. The court, after considering the MOU and the earlier order, held that the respondents are entitled to use only 2294 sq. ft. of FSI by way of TDR, as per the MOU and the earlier order, and not additional FSI claimed by them.
Headnote
A) Trust Law - Development Rights - FSI Entitlement - Official Trustee Act, 1913, Section 25 - Dispute regarding extent of FSI granted to developer under Memorandum of Understanding and court order dated 8.8.1997 - Court held that the respondents are entitled to use only 2294 sq. ft. of FSI by way of TDR, as per the MOU and the earlier order, and not additional FSI claimed by them (Paras 1-3).
Issue of Consideration
Whether the respondents are entitled to use only 2294 sq. ft. of FSI by way of TDR in respect of the property, or additional FSI as claimed.
Final Decision
The court held that the respondents are entitled to use only 2294 sq. ft. of FSI by way of TDR in respect of the property described in Schedule A and nothing more.
Law Points
- Interpretation of court orders
- FSI entitlement
- TDR usage
- trust property development
Case Details
2005 LawText (BOM) (03) 139
Trust Petition No.5 of 2004
E.P. Bharucha, Saumya Srikrishna, Narayan Sahu, A.B. Patil for Petitioner; Aspi Chinoy, P.K. Samdhani, V.K. Merchant, Kishore Thakordas for Respondents
The Official Trustee, Maharashtra State
M/s. Earth Designers & Developers Pvt. Ltd.
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Nature of Litigation
Petition seeking clarification and directions regarding an order passed in a previous trust petition concerning development rights and FSI entitlement.
Remedy Sought
Declaration that respondents are entitled to use only 2294 sq. ft. of FSI by way of TDR in respect of the property and nothing more.
Filing Reason
Dispute over the extent of FSI granted to the developer under the Memorandum of Understanding and the court order dated 8.8.1997.
Previous Decisions
Order dated 8.8.1997 in Trust Petition No.5 of 1995 disposing of the petition and the Public Interest Petition No.147 of 1995.
Issues
Whether the respondents are entitled to use only 2294 sq. ft. of FSI by way of TDR in respect of the property described in Schedule A.
Submissions/Arguments
Petitioner argued that the MOU granted development rights for only 2294 sq. ft. and the court order dated 8.8.1997 approved the sale based on that MOU.
Respondents claimed additional FSI entitlement beyond 2294 sq. ft.
Ratio Decidendi
The court interpreted the Memorandum of Understanding and the earlier order dated 8.8.1997 to mean that the development rights granted were limited to 2294 sq. ft. of FSI by way of TDR, and no additional FSI was intended.
Judgment Excerpts
By this petition the Official Trustee is seeking a declaration that the respondents purchasers/developers are entitled to use only FSI of 2294 sq.ft by way of TDR in respect of the property described in Schedule A and nothing more.
Procedural History
The Official Trustee entered into an MOU with respondents on 29.11.1994. A Public Interest Petition No.147 of 1995 was filed opposing the sale. Respondents filed Trust Petition No.5 of 1995 for approval of sale. By order dated 8.8.1997, the Trust Petition was disposed of. Pursuant to that order, power of attorney was executed and Rs. 35 lacs deposited. The present petition was filed for clarification of the order.
Acts & Sections
- Official Trustee Act, 1913: Section 25
