Case Note & Summary
The Official Trustee, Maharashtra State, filed a petition seeking directions and clarification of 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 Trust Petition No.5 of 1995 for approval of the sale. 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. The Official Trustee then 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. The court noted that the order dated 8.8.1997 was a consent order and the parties were bound by its terms. The court found that the order did not restrict the FSI to 2294 sq.ft. and dismissed the petition.
Headnote
A) Trust Law - Development Rights - FSI Entitlement - Official Trustee Act, 1913, Section 25 - The Official Trustee sought declaration that respondents were entitled to use only 2294 sq.ft. of FSI by way of TDR based on Memorandum of Understanding and court order. Court held that the order dated 8.8.1997 was a consent order and the parties were bound by its terms, which did not restrict FSI to 2294 sq.ft. (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 as per the Memorandum of Understanding and the order dated 8.8.1997.
Final Decision
Petition dismissed. The court held that the order dated 8.8.1997 was a consent order and the parties were bound by its terms, which did not restrict FSI to 2294 sq.ft.
Law Points
- Interpretation of consent order
- FSI entitlement
- TDR usage
- trust property development
Case Details
2005 LawText (BOM) (03) 159
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 FSI entitlement under a consent order in a trust property development dispute.
Remedy Sought
Declaration that respondents are entitled to use only 2294 sq.ft. of FSI by way of TDR in respect of the property.
Filing Reason
Dispute over the extent of FSI the respondents were entitled to use under the Memorandum of Understanding and the order dated 8.8.1997.
Previous Decisions
Order dated 8.8.1997 in Trust Petition No.5 of 1995 disposing of the petition and 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 as per the Memorandum of Understanding and the order dated 8.8.1997.
Submissions/Arguments
Petitioner argued that the MOU granted development rights for only 2294 sq.ft. and the order dated 8.8.1997 should be interpreted accordingly.
Respondents contended that the order was a consent order and did not restrict FSI to 2294 sq.ft.
Ratio Decidendi
A consent order is binding on the parties and its terms cannot be unilaterally reinterpreted. The order dated 8.8.1997 did not restrict the FSI entitlement to 2294 sq.ft.
Judgment Excerpts
This petition is filed by the Official Trustee appointed under Section 25 of the Official Trustee Act,1913 seeking directions pursuant to liberty granted to the parties in Trust Petition No.5 of 1995 to apply to the court for necessary clarification and directions etc. of the order dated 8.8.1997 passed by this court in Trust Petition No.5 of 1995.
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 and for other reliefs.
Procedural History
The Official Trustee filed Trust Petition No.5 of 2004 seeking clarification of order dated 8.8.1997 passed in Trust Petition No.5 of 1995. The earlier petition was filed for approval of sale based on MOU dated 29.11.1994 and was disposed of by consent along with Public Interest Petition No.147 of 1995.
Acts & Sections
- Official Trustee Act, 1913: Section 25
