Bombay HC Overrules City Court Order, Allows SoBo Society To Build Structures Above 7-Ft Height

Mumbai: Nestled between high-rises on Altamount Road, a housing society, fighting a legal battle against restrictions on construction beyond seven feet in height, has finally tasted victory in the Bombay High Court, which set aside a city civil court's restrictive order of 1995. The HC observed that the civil court judge grossly erred in granting mandatory and perpetual injunction against Pashmina Co-operative Housing Society.

On May 23, 1890, Dady Manekji Limji, the owner of a 38,000 square yard plot called Altamount, conveyed a portion to Currimji Alibhai. He retained approximately 25,821 square yards, known as 'New Bunce' or 'Mount Petit.' The official contract restrained construction of walls, or structures above seven feet from the level of Altamount Road on New Bunce by him or any successive owner. Subsequent conveyors in 1909, 1937, and 1948 adhered to this restriction.

The property was divided into plots in 1957 and conveyed to buyers, including one Habib Mohamed Hassambhoy, who ultimately sold the plot to Pashmina Co-op in 1968. The society constructed concrete columns, which was opposed by Hassambhoy. He filed a suit before the city civil court, which ruled in his favour and directed the society to demolish the columns and structures.

Society Approached HC Challenging Earlier Civil Court Order

Challenging this before the HC, Pashmina contended that the agreement was only for the benefit of the original Altamount property, not for the subdivided plots. It also claimed that their construction would not interfere with other plots. Citing presence of other high-rises on adjacent plots, the society said it was entitled to raise additional construction as per the available FSI and as per the sanctioned plan, in accordance with Development Control Rules.

Justice Anuja Prabhudessai, on January 9, observed that evidence proves that construction beyond seven feet has come up in the adjacent plots, which were also subjected to similar restrictions. "...Over the years, several high rises have come up in the vicinity...It is thus evident that there is a change in the character of locality. Hence, the restriction is deemed obsolete as a result of changes in the character of the property or the neighbourhood," the judge said.