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16. Mr. Tulzapurkar has submitted that TDR available has also been utilized for Building No. 3 (Plaintiff's building) of 3600 square meters and also for Building No. 1 of 2340 square meters. Hence, the utilisation of TDR in the layout has been accepted and, on that basis, Plaintiff's own building was constructed. Defendant No. 8 is, therefore, entitled to utilise TDR for Building No. 4 as well.

17. Mr. Tulzapurkar has submitted that the reliance NMS-1361&1339-2018&IA-3069-21+Jt.doc placed by the Plaintiff on 2007 Order, which provides that if a building is completed, and subsequently TDR becomes available, the developer cannot utilise TDR in respect of building which is completed is misplaced. He has submitted that the TDR in the present case was available at the inception itself and had not become available subsequently and which fact had been disclosed to the purchasers including the Plaintiff.

30. Mr. Tulzapurkar has submitted that the Judgment in Malad Kokil Co-operative Housing Society Ltd. (supra) was based on additional FSI being available due to change of law. In the present case, Defendant No. 8 is not exploiting any additional FSI due to change of law. Further, in the case of Malad Kokil Co-operative Housing Society Ltd. (supra), the construction of the building was under the provisions of DCR, 1967. The flat purchaser's agreements in the case of Malad Kokil Co-operative Housing Society Ltd. (supra) envisaged the exploitation of the then development potential of the plot available under DCR, 1967. In furtherance thereof, the Developer had completed the construction of the buildings by exhausting the entire FSI and formed the co- operative housing societies. At the time of entering into flat purchasers agreements, the Developer had represented that it would construct an additional structure of ground plus 4 storeys upon which the entire developable potential of the plot would be exhausted. Further, even after exhausting the entire FSI of the plot, the Developer failed to convey the property. Then, in view of NMS-1361&1339-2018&IA-3069-21+Jt.doc change of law in the year 1991 and the DCR, 1991 coming into force, and in view of TDR being available, the Developer proposed to construct the additional structure by utilising the entire TDR of the plot that became available on account of change in law and submitting plan to construct the building of Ground +22 floors. It was in this context that the Court held that the Developer could construct only what was represented i.e., ground plus 4 floors, as the construction of the building of ground plus 4 floors would exhaust the developable potential of land as was available under the 1967 DCR.

82. Mr. Jagtiani has submitted that whatever may be the source of TDR, it is illegal for Defendant No. 1 to utilize TDR without a full disclosure in this regard being made to the Plaintiff's members. He has relied upon the decision of the Supreme Court in Jayantilal Investments (supra) at paragraphs 17 and 18 as well as the aforementioned decisions on disclosure.

83. Mr. Jagtiani has submitted that even assuming that TDR can be utilized, the Government Order dated 23rd November 2007 provides that while giving permission for construction by utilizing TDR, if the Developer has not executed NMS-1361&1339-2018&IA-3069-21+Jt.doc conveyance deed in favour of a co-operative society of the occupants residing in the building constructed on the land, the TDR potential in respect of such part of the land on which construction is made should not be permitted to be used by the Developer while giving permission for development of the remaining plot or amalgamated plot. It further provides that in such cases the permission to use TDR should be given only insofar as the open land available on the plot. The submissions to the contrary has been made by Defendant No. 8 which are similar to those made by Defendants in Malad Kokil (supra) at paragraph 55.

NMS-1361&1339-2018&IA-3069-21+Jt.doc

94. Mr. Jagtiani has submitted that Developer has to opt either to follow DCPR, 2034 or DCR, 1991 and cannot take advantages of both DCRs.

95. Mr. Jagtiani has submitted that Defendant No. 1/8 cannot be permitted to undertake any construction activity without payment of outstanding property taxes on the suit land.

96. Mr. Jagtiani has thereafter, dealt with the decisions relied upon by Mr. Tulzapurkar on behalf of Defendant No. 8. He has submitted that the judgment in Janhit Manch Through Its President Bhagvanji Raiyani and Anr. Vs. The State of Maharashtra and Ors24, which had been relied upon on behalf of Defendant No. 8 in support of the contention that since TDR is nothing but additional FSI, a separate disclosure of the use of TDR on a layout is not required and that the developer is entitled to use TDR which is nothing but increased FSI is entirely misplaced. He has submitted that the Supreme Court in Janhit Manch (supra) does not state and is not an authority for the proposition that TDR 24 (2019) 2 SCC 505 NMS-1361&1339-2018&IA-3069-21+Jt.doc is not required to be separately disclosed to flat purchasers.