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9. The learned Counsel further submits that the Government orders issued under Section 154 of the Maharashtra Regional Town Planning Act (hereinafter referred to as MRTP Act) are binding upon the Corporation. However, by giving an untenable reasoning that the plans were already sanctioned, the officers of the Corporation have prepared a note stating 10/63 NMS1359.11.sxw therein that the said orders dated 23 rd April, 2007 are not applicable to the facts of the present case. It is submitted that the said order provides that where the developer intends to use TDR for further development in the project wherein a part construction has been made and the Society is occupied by the members who have purchased the flats and inspite of that the conveyance has not been executed in favour of the Society, the developer would not be entitled to load the TDR on the FSI already utilised for construction of the part buildings which are occupied by the members of the Society and would only be entitled to load the TDR on the balance FSI. Insofar as the contention of the defendant that in view of the earlier suit filed by some of the members of the plaintiff-society, the present suit is not maintainable, the learned Counsel submits that the suit filed by the said members was not in a representative capacity. He submits that no leave under Order 1 Rule 8 of CPC was granted. In any case it is submitted that suit filed by an individual cannot bind the Society though it may be true vice versa.

55. Insofar as the contention by the learned Counsel for the developer that the Government Order dated 23rd November, 2007 are not applicable to the facts of the present case is concerned, said contention is also without any substance. It is the contention of the learned Counsel that the said Government Orders, which are issued under Section 154, are only applicable in case of amalgamation of plots and not when the TDR is purchased from somewhere else and loaded on the plot of a developer. I find that the said contention is based on a total misreading of the orders dated 23rd November, 2007. The said order provides that the concept of TDR has been incorporated in Development Control Regulations of the 54/63 NMS1359.11.sxw most of the cities which states that in lieu of grant of compensation for acquisition of reserved lands, a TDR should be given. It further states that there is also a provision of granting TDR for slum rehabilitation scheme.

It further states that insofar as Mumbai Municipal Corporation is concerned, the TDR is also available in respect of heritage buildings. It further states that TDR which is generated can be utilised by the land owner/developer himself or transferred to others. It states that, it has come to the notice of the Government that some developers at the time of getting plan sanctioned from the Planning Authority, do not include the TDR. It further states that after some construction is complete and Co-operative Society established, the developer do not execute the conveyance deed in favour of the Society. Thereafter, the developers seek permission for amalgamation of open plots in the 'neighbourhood' and without obtaining the permission of the Co-operative Society or the other land owners make an attempt to utilise the TDR even in respect of the area of the land on which construction is complete and construct multi storey buildings. It further states that, therefore, the individual rights of the persons are affected. It will be relevant to refer to the operative part of the said order issued under Section 154. It clearly states that while giving permission for construction by utilizing the TDR, if the developer has not executed 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 states 55/63 NMS1359.11.sxw that in such cases the permission to use TDR should be given only in sofar as the open land available on the plot. I find that applying the principle of contextual and textual interpretation, as argued by Shri Samdhani, the contention that said Government order is applicable only in case of amalgamation will have to be rejected. Reading the order in entirety, it would reveal that said order has been issued with an object that a builder should not be permitted to use TDR potential of an area of a land on which the building is constructed and a Co-operative Society formed, however, the developer has not conveyed the said land along with building to the Society.

56. The another contention of learned counsel appearing for the developers that the TDR is not in respect of the suit plot and the same is purchased from some other property and, therefore, no prejudice is caused to the plaintiff/ appellant is also without any substance. Though the TDR sought to be loaded is in respect of some other property, it cannot be forgotten that insofar as TDR potentiality is concerned, the suit plot is a relevant factor. It cannot be forgotten that the TDR loaded cannot be more than inherent FSI available on the suit plot. It is not in dispute that the only remaining inherent FSI available on the suit plot is 0.7% inasmuch as 0.93% has already been utilised. Had the developers executed conveyance in favour of the plaintiff and the appellant to comply with statutory obligations, the TDR potential in respect of land on which buildings of plaintiff and defendants are already constructed would have been available to the plaintiff/ appellant. Under the impugned plan the developers are 56/63 NMS1359.11.sxw using TDR potential which could have been otherwise available to the plaintiff/ appellant society. In that view of the matter, the contention in that regard is rejected.