In a significant ruling that could impact thousands of Mumbai homebuyers involved in society redevelopments, the Bombay High Court has granted interim relief to a flat owner, restraining a Bandra housing society from proceeding with redevelopment plans unless it accommodates his entitlement to an additional 900 square feet of floor space. The order, passed by Justice Milind N. Jadhav on December 10, 2025 (and corrected on December 18, 2025), emphasizes the binding nature of old conveyance deeds and warns against societies unilaterally ignoring legacy rights. This decision comes at a time when Mumbai’s aging buildings are increasingly opting for redevelopment under liberalized FSI norms, potentially affecting how flat owners negotiate their shares in extra space.
The Roots of the Dispute: A 1970s Land Redevelopment Gone Modern
The story traces back to the late 1970s in Bandra (West), Mumbai. Alexander Benedict Joseph Pereira (ABJ Pereira), the owner of a plot at St. Joseph’s Road (CTS No. C/257 and C/258, about 1,160 sq yards), formed a partnership firm called Erlyn Enterprises with three others via a Deed of Partnership dated September 25, 1978. The firm’s goal: redevelop the land into a multi-storied residential building.
Erlyn Enterprises constructed “Erlyn Apartment” and sold flats to various buyers. Possession was handed over in 1982 after obtaining the occupation certificate. The buyers formed the Erlyn Apartment Co-operative Housing Society Ltd., registered on May 11, 1984.
Dissolution and Inheritance: The Pereira Family’s Stake
In 1991, the partnership dissolved via a Deed of Dissolution dated February 19. ABJ Pereira took over as sole proprietor and retained Flats 101, 102, and 111 (on the 11th floor) as his share. Flat No. 111 included an adjacent open terrace, which the family exclusively used.
ABJ Pereira passed away, and his son, Erle Benedict Pereira (the plaintiff), inherited Flat No. 111 through his parents’ wills, becoming the undisputed owner.
The Pivotal 1994 Deed: Covenants That “Run with the Land”
On September 27, 1994, ABJ Pereira (as vendor) and Erlyn Enterprises (as confirming party) executed a registered Deed of Conveyance transferring the land and building to the society. At the time, all available Floor Space Index (FSI) had been fully utilized.
Crucially, the deed included four covenants just before the property schedule:
- (i) If extra/additional FSI ever became available, the vendor (ABJ Pereira) would get about 900 sq ft exclusively, to cover the open terrace adjacent to Flat No. 111.
- (ii) All remaining extra FSI would belong to the society.
- (iii) Four stilt parking spaces would always be the vendor’s.
- (iv) These covenants “shall run with the land,” binding future owners or redevelopers forever.
Individual MOFA (Maharashtra Ownership Flats Act) agreements with flat buyers (e.g., Clause 43) also disclosed the vendor’s exclusive terrace rights post-conveyance.
For 31 years (1994–2025), the society never challenged these covenants. The Pereiras enjoyed the terrace and parking without objection.
The Redevelopment Spark: Greed Enters the Picture
In 2024, with the building aging, the society explored redevelopment. Under the new Development Control and Promotion Regulations (DCPR) 2034, Section 33(11) allowed an FSI of 4.05—far higher than in 1994—unlocking significant extra space.
Initial discussions acknowledged the 1994 covenants. On July 2, 2024, a meeting with Erle Pereira led to draft resolutions. A Special General Body Meeting on July 7, 2024, unanimously passed Resolution No. 4, binding the society to the covenants: if extra FSI was available, 900 sq ft would go to Erle.
Minutes were circulated on July 10, 2024 (at 2:36 PM). But within 10 minutes (at 2:44 PM), the Managing Committee unilaterally altered Resolution No. 4, diluting it to a vague promise of future review, removing the clear entitlement.
Escalation and Legal Battle: Society’s Tender Ignores Rights
The society appointed a Project Management Consultant (PMC), prepared a feasibility report, and issued tender documents to developers—omitting any mention of Erle’s 900 sq ft entitlement.
Erle protested via emails, but the society refused to rectify. Two bids were received by mid-2025, ignoring his rights.
In response, Erle filed Suit No. 300 of 2025 in the Bombay High Court, seeking a declaration of his rights under the 1994 deed. He also sought interim relief via Interim Application No. 6603 of 2025 to halt the process.
The Court’s Verdict: A Prima Facie Win for Legacy Rights
Justice Jadhav ruled the covenants valid and binding, running with the land. He criticized the society’s “prima facie dishonest and malafide” conduct in altering the resolution, calling it greed-driven. The judge rejected the society’s MOFA arguments, noting no challenge for 31 years and full disclosure in buyer agreements.
Interim relief was granted: The society is restrained from appointing a developer or advancing tenders without providing for Erle’s 900 sq ft FSI and parking rights.
This ruling underscores that old conveyance deeds can’t be ignored in redevelopments, offering protection to legacy owners amid Mumbai’s building boom.
