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17. Learned counsel for the petitioners submits that the learned arbitrator could not have directed the petitioners to pay the rent at the rate of Rs.16,000/- per month per member on the ground that the petitioners could not complete the construction and hand over possession of the tenements to the members of the respondent society on or before 21st December, 2011 i.e. within a period of 18 months from the date of issuance of commencement certificate by MHADA including the grace period of six months as the said alleged delay was irrelevant for the purpose of determination of the rent demanded by the respondent society. He submits that the Maharashtra State Road Development Corporation (MSRDC) had directed MHADA not to grant any permission to the projects under development on the SCLR Belt which included the present redevelopment project. Even if there was any delay on the part of the petitioners, the rent amount could not be increased from Rs.7,000/-

arbp813-17.doc

24. It is submitted by the learned counsel that under the development agreement, the petitioners were exclusively entitled to use all FSI available on the plot of land being developed during the course of the development and permissible under the norms of MCGM and MHADA after providing the tenants with their 323 sq.ft. area tenements under the development agreement. The respondent had consented to the entitlement of the petitioners to use all FSI available then during the course of the development. 86% members of the respondent had signed individual consent in favour of the petitioners in the year 2006 stating that besides 36 flats with carpet area of 323 sq.ft., the respondent society had agreed to allow the petitioners to ustilise maximum permissible FSI by purchasing from MHADA and as per the plans approved by MCGM.

27. It is submitted that clause 8 of the condition imposed by MHADA in letter dated 16th August 2012 would be applicable only in the event the agreement would have restricted to consumption of 2.4 FSI. Learned arbitrator failed to appreciate that the MHADA calculates FSI on layout which includes roads, recreation ground arbp813-17.doc etc. He submits that the learned arbitrator had also made certain observations on the MHADA regarding grant of NOC in favour of the petitioners. Learned arbitrator has decided contrary to the provisions of the development agreement entered into between the petitioners and the respondent society.

28. Learned counsel for the petitioners submits that the society had admittedly applied for information from MHADA during the pendency of the application as to how much FSI had been actually consumed in the process of the development. MHADA had informed that the petitioners had not even used 2.4 FSI and had used only 2.24 FSI for development of the plot which was even less than 2.4 FSI mentioned in the development agreement. In support of this submission, learned counsel invited my attention to a copy of the letter dated 9th May 2017 addressed by MHADA to the respondent society. He submits that the learned arbitrator failed to appreciate that the petitioners were though entitled to utilise the maximum available FSI during the course of the development, the petitioners were not in a position to utilise 2.5 FSI due to 'Height Restriction' in the area as the Aviation Department was not granting NOC if the height of the building exceeded certain meters and thus the petitioners could utilise only 2.24 FSI and not 2.4 FSI or 2.5 FSI.