In a ruling that revives an eight-decade-old private land restriction, the Bombay High Court has dismissed an interim application by New Deluxe Co-operative Housing Society Ltd., effectively blocking its plans for a modern high-rise redevelopment on Altamount Road. Justice Milind N. Jadhav held that a restrictive covenant from 1943–1944—limiting building height to 30 feet—prima facie continues to bind the society’s plot, preventing any construction beyond that limit until the full trial concludes.
The case highlights how colonial-era private agreements between landowners can still cast long shadows over Mumbai’s booming redevelopment market, where societies in prime South Mumbai locations seek to replace aging structures with taller, lucrative towers.
The Background: A Colonial-Era Land Subdivision
The story begins in the 1940s, when brothers Phirozeshaw Darashaw Dubash and Bachubhai Phirozeshaw Dubash owned a large parcel of approximately 11,983 square yards on Altamount Road in affluent Malabar Hill/Cumballa Hill area.
- On October 15, 1943, they sold a portion (2,873.6 square yards) to Kaikushru Gazdar and Piroja Gazdar via a registered Indenture. Clause 6 imposed a height restriction: the remaining “Plot of Cottages” (later linked to what became New Deluxe’s land) could not have any structure exceeding 30 feet in height, measured from a specified point on an annexed plan. This was a private covenant designed to protect light, air, views, or enjoyment of the sold land.
- On July 25, 1944, the brothers sold another chunk (3,016 square yards) to Govindram Brothers Ltd., explicitly including the same 30-foot height restriction in the deed.
These were purely private contractual restrictions, not government-imposed zoning laws or municipal rules. Such covenants were common in pre-Independence land deals in posh areas to preserve the character of retained or adjacent properties.
Over the decades:
- The 1944 plot passed to Seksaria Industries Pvt. Ltd. around 1950.
- In 1963, Seksaria conveyed 1,900 square yards (about 1,588 sq m, C.S. No. 5/664) to New Deluxe Co-operative Housing Society (registered in 1962). The 1963 Indenture expressly stated the sale was “subject to all stipulations, agreements, covenants and restrictions” in the 1944 deed—meaning the 30-ft limit carried forward.
Meanwhile, the retained/adjacent land (benefiting from the covenant) evolved into Pemino Co-operative Housing Society’s plot through sales in 1945 and later conveyances up to 1972, which incorporated the benefit of the earlier restrictions.
New Deluxe built a ground-plus-three-storey building over 60 years ago. Pemino’s building also started similarly but added floors around 1966, reaching seven storeys.
The Modern Conflict: Redevelopment Dreams vs. Old Covenant
By 2024, New Deluxe—home to 23 members, many senior citizens—deemed its building dilapidated and resolved to redevelop using full permissible FSI (Floor Space Index), which would require a taller structure far exceeding 30 feet.
- The society issued public notices in March 2024 inviting claims/objections.
- It wrote to Pemino twice seeking suggestions—no response initially.
- Pemino then objected via legal notice (April 16, 2024) and public notice (August 22, 2024), citing the 1943 Indenture and enforcing the 30-ft limit.
- Developers interested in the project withdrew, demanding a No-Objection Certificate (NOC) from Pemino.
New Deluxe filed Suit No. 21 of 2025 in Bombay High Court, seeking:
- Declaration that the old covenant is void/invalid.
- Permanent injunction against Pemino’s interference.
It also sought interim relief (IA 731/2025) to restrain Pemino from blocking developer appointment, plan approvals by Municipal Corporation of Greater Mumbai (MCGM/BMC), etc., even beyond 30 feet.
Key Procedural Developments
- New Deluxe sought to amend its plaint (IA 4573/2025) after Pemino highlighted the 1963 deed—allowed.
- Pemino’s delay in filing Written Statement (IA 6242/2025)—condoned (125 days).
The Court’s Prima Facie Reasoning (February 11, 2026 Order)
Justice Jadhav dismissed the interim injunction application, holding:
- The covenant appears to bind New Deluxe’s land — Explicitly incorporated in its 1963 title deed, which references the 1944 restriction. It “runs with the land” and travels through successive owners.
- Pemino prima facie has locus to enforce it — Its chain of title (1943 → 1945 → 1972) carries the “benefit” of the restriction for adjacent/retained land. No verbatim re-assignment needed if intent is clear.
- New Deluxe did not approach with clean hands — Original plaint denied any restriction existed, suppressing its own 1963 deed. Only after Pemino pointed it out did the society amend to admit the covenant but argue Pemino can’t enforce. This amounted to suppression of material facts and “approbate and reprobate” (accepting title benefits while rejecting burdens).
- Balance of convenience favours status quo — Allowing high-rise now would cause irreversible harm to Pemino (blocked views/light). New Deluxe can redevelop up to 30 feet meanwhile. Interim relief would grant final relief prematurely.
- Other issues for full trial — Obsolescence due to locality changes (high-rises everywhere, including Pemino’s additions); vagueness (missing 1943 plan); limitation (cause of action arose in 2024 when Pemino objected strongly—prima facie not barred).
All observations are prima facie; full merits trial remains open.
Implications
The order underscores how forgotten private covenants from land subdivisions can resurface amid Mumbai’s redevelopment surge. Similar disputes have arisen in South Mumbai (e.g., a 2024 case where HC struck down a 7-ft restriction on Altamount Road due to changed character). Developers and societies in prime areas must now scrutinise ancient title deeds more carefully.
New Deluxe can still proceed with low-rise redevelopment or fight on in trial. For now, the “30-feet ghost” from 1943 lives on.
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