Bombay High Court
Shree Ameya Co Operattive Housing ... vs Laxmibai Ganpat Chogle And 16 Ors on 15 April, 2024
Author: Gs Patel
Bench: G.S.Patel
2024:BHC-OS:6135 Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors
NMS-601-2017-IN-S-839-2016-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 601 OF 2017
IN
SUIT NO. 839 OF 2016
Shree Ameya Co-operative
Housing Society Ltd,
Building No. 3, Chogle Nagar,
Borivali (East), Mumbai 400 066 ...Applicant
~ in the matter between ~
Shree Ameya Co-operative
Housing Society Ltd,
Building No. 3, Chogle Nagar,
SHEPHALI
SANJAY Borivali (East), Mumbai 400 066 ...Plaintiff
MORMARE
Digitally signed
by SHEPHALI
SANJAY
MORMARE
~ versus ~
Date: 2024.04.15
17:09:26 +0530
1. Laxmibai Ganpat Chogle,
2. Jaywant Ganpat Chogle,
3. Sunita Jayawant Chogle,
4. Sanjay Jayawant Chogle,
5. Vinay Jayawant Chogle,
6. Ramesh Ganpat Chogle,
7. Sudha Ramesh Chogle,
8. Neeta Ramesh Chogle,
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Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors
NMS-601-2017-IN-S-839-2016-J.doc
9. Sachin Ramesh Chogle,
10. Prabhavati Prabhakar
Chogle,
11. Ajit Prabhakar Chogle,
12. Ujwala Prabhakar Chogle,
13. Suhasini Vishnu Ramtakke,
All Indian Inhabitants, carrying on
business at 1/A, Ganesh Apartments,
Chogle Nagar, Savarpada,
Borivali (East), Mumbai 400 066
14. Chogle Dube United
Enterprises,
a partnership firm, carrying on business
at 1/A, Ganesh Apartments,
Chogle Nagar, Savarpada,
Borivali (East), Mumbai 400 066
15. Ravikiran Enterprises,
a partnership firm carrying on business
at 1/A, Ganesh Apartments,
Chogle Nagar, Savarpada,
Borivali (East), Mumbai 400 066
16. The Deputy Collector,
Competent Authority (ULC),
Mumbai Suburban District,
New Administrative Building,
Near Chetana College,
Bandra (East), Mumbai 400 051
17. Municipal Corporation of
Greater Mumbai,
Mahapalika Marg,
Mumbai 400 001 ...Defendants
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Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors
NMS-601-2017-IN-S-839-2016-J.doc
A PPEARANCES
for the applicant/ Ms Rajani Iyer, Senior Advocate,
plaintiff with Sushil Mahadeshwar, i/b
Ranjana Todankar.
for defendants nos. Ms Dipti Shah.
1 to 13
for defendants nos. Mr Aspi Chinoy, Senior Advocate,
14 & 15 with Niranjan Pandit & AS
Bhalekar, i/b Abdetaiyeb Q
Motiwala.
for defendant no. 16 Mr Himanshu Takke, AGP.
for defendant no. Mr Sandip Patil.
17-MCGM
CORAM : G.S.Patel, J.
RESERVED ON : 6th February 2024
PRONOUNCED ON : 15th April 2024
JUDGMENT (Per GS Patel J):-
1. The Notice of Motion is, firstly, for an interim restraint against Defendants Nos. 1 to 15 from constructing or developing the lands that are the subject matter of the suit by using any additional Floor Space Index ("FSI") or Transferrable Development Rights ("TDR") in building plans sanctioned on (i) 17th November 2015 for Building No 6; (ii) 25th May 2016 for Building No 4; and (iii) 25th May 2016 for Building No 7. This is on the basis that this FSI/TDR 'encroaches' upon the FSI/TDR potential of the Plaintiff Society. Secondly, the Notice of Motion seeks an interim restraint Page 3 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc against Defendants Nos 1 to 15 from selling, disposing of, alienating, etc., any flats, shops or premises proposed to be constructed on the suit lands by using the FSI/TDR mentioned in (i), (ii) and (iii) above.
2. The Plaintiff is a cooperative society of Building No 3. Defendants Nos 1 to 13 are the owners of the lands in question ("the Chogles"). These are various survey/CTS numbers at Dahisar, Taluka Borivali. The area of the holding is 17,162.30 sq mts. The Chogles joined with Radheshyam and Parvati Dube to form a partnership, Defendant No 14 ("Chogle-Dube"). The Chogles and Chogle-Dube constructed five buildings on the plot between 1989 and 2003. In 2014, the Chogles entered into a Development Agreement ("DA") with Defendant No 15 ("Ravikiran") for further development of the suit lands.
3. Even before this happened, on 29th September 1979, the Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 ("ULC Act") declared the lands to be surplus vacant lands. The Chogles sought exemption under Section 20 of the ULC Act. On 10th May 1988, the Competent Authority exempted the surplus vacant land, and sanctioned a scheme for development of tenements on these lands.
4. This development is called 'Chogle Nagar'. There are five societies, each occupying one building: Om Ganesh CHSL, Shree Ganesh Darshan CHSL, Vinay Apartments CHSL, Shree Ameya CHSL (the Plaintiff ), and Omkar CHSL. The Plaintiff occupies Page 4 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc Building No 3. It received an Occupation Certificate on 21st March 1997. Its built up area is 4561.03 sq mts. The Plaintiff was registered as a society on 21st January 1999 under the Maharashtra Cooperative Societies Act, 1960.
5. The Plaintiff's case is that under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963 ("MOFA"), the Chogles and Chogle-Dube were bound to execute a conveyance of the right, title and interest "in the land and building" to the Plaintiff, within four months of the society being registered. This was not done. The Plaintiff invoked Section 5A of the MOFA before the Competent Authority under that Act and sought a 'deemed conveyance'. Then the Plaintiff filed an application under the Right to Information Act, 2005 with the Municipal Corporation of Greater Mumbai ("MCGM"), Defendant No 17, the planning authority for the development under the Maharashtra Regional & Town Planning Act, 1966 ("MRTP Act"). The MCGM replied on 21st January 2016. The Plaintiff appealed, apparently successfully. The MCGM then replied on 8th March 2016 with copies of amended layouts approved between 1996 and 2014 for the Chogle Nagar development.
6. The original layout had municipal approval on 12th February 1985. From 1996 to 2014, the MCGM approved seven amended layouts. These cover a larger area than the suit lands, described in the plaint as Plots "A" and "B". The suit is restricted to Plot A. According to the Plaintiffs, the amended layouts showed significant Page 5 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc changes to Buildings Nos 4 and 7. From the original stilt and one floor, each went in 2013 to stilt plus two podium floors and 16 upper floors; and then in 2014 to stilt and eight (part) floors, and stilt and seven (part) floors. The last building to be built was Omkar CHSL. It received an occupation certificate on 4th June 2004.
7. The Plaintiff claims that in the amended layouts of 1999 and 2004, the floor area was 19,610.70 sq mts with no TDR. In 2013, additional FSI under Development Control Regulation 32 of the Development Control Regulations, 1991 was loaded to the extent of 6309 sq mts. In 2014, further additional FSI of 6307 sq mts was added. The floor area went up to 23,563.87 sq mts.
8. In paragraph 10 of the Plaint, the Plaintiff says:
"It is this which the Plaintiffs are objecting to as affecting their rights and entitlement."
9. The sum and substance of the Plaint, which was substantially amended, is that without the Plaintiff's informed consent, the owners / developers could not load additional FSI (whether as additional FSI or TDR) on the plot. The Plaintiff claims it has a share to the extent of the FSI potential on the Plaintiff society's plot by way of additional FSI/TDR and this has been wrongly used in Buildings Nos 4, 6 and 7. In short, the additional FSI/TDR being used by the owners/developers for the other parts of the plot includes the FSI/TDR which the Plaintiff says is attributable or attached to or goes with the Plaintiff's plot and building. It claims these rights over 4561.03 sq mt, with the building on that land, and Page 6 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc the benefits of a common recreational ground or RG and an access road. The Plaintiff says it is entitled to a conveyance of 4,561.03 sq mts and the building on that land, plus these benefits.
10. The Plaintiff's application for a deemed conveyance failed on 1st September 2016.
11. Importantly, the Plaint itself references clauses 4 and 23 of a typical or standard flat purchase agreement with members of the Plaintiff society.
"4 THE PROMOTERS hereby declare that they have utilized available Floor Space Index (FSI) in respect of the said lands and that no part of the said Floor Space Index has been utilised by them elsewhere for any purpose whatsoever. The Promoters hereby further declare that if any time prior to the execution of the final Conveyances or other Deed of Transfer or document as provided in this Agreement for Sale, the Floor Space index at present applicable to the said lands is increased such increase of FSI shall enure for the benefit of the Promoters alone without the Purchaser/s being entitled to claim any rebate or right in any manner whatsoever in respect thereof.
23. AFTER the said building/s is/are completed, ready and it for occupation and only after all the flats in. the said building/s have been sold, and disposed of by the Promoters and after the Promoters have received in full all dues payable to the Promoters by the various Purchasers of the flats, the Promoters shall form and register the said Society or a Body Corporate as provided in Clause 13 hereof and only thereafter they and the Owner shall execute or cause to be executed the Page 7 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc necessary Conveyance/s or any other deeds, documents and writings required in law and at the costs and expenses of the said Society or a Body Corporate, as the case may be. Such Conveyance/s or any other deeds, documents or writings shall be prepared by M/s Gagrat & Company, Advocates and Solicitors, Bombay, for the Promoters who will also complete the necessary formalities and the formation and registration of the said Society or Body Corporate as the case may be."
(Emphasis added)
12. The Plaintiffs state that before receiving the said Amended Layouts from the Corporation, the Defendants Nos 1 to 15 never disclosed the said Layouts to the Plaintiffs or to their members and earlier the Plaintiffs did not have any knowledge of the said Layouts. The Plaintiffs state that at the time of the purchase of the Flats the members were only shown the Typical Floor plan. The Plaintiffs state that Defendants Nos 1 to 15 have loaded TDR on the suit lands without disclosing the same to the Plaintiffs or its members to deprive the Plaintiffs of their rights and entitlements. The Plaintiffs state that the Defendants Nos 1 to 15 cannot take advantage of any additional FSI without the consent of the Plaintiff Society and its members.
13. This leads to the following averment in paragraph 20 of the Plaint:
20. The Plaintiffs submit that the Plaintiffs are entitled for a declaration that the Plaintiffs Society has a share in proportion to the built-up area of the Society's Building of 4561.03 square meters, in the additional FSI/TDR sanctioned by the Municipal Corporation in Page 8 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc the Building Plan dated 17.11.2015 in respect of Building No. 6, Building Plan dated 25.05.2016 in respect of Building No. 4 and Building Plan dated 25.05.2016 in respect of Building No. 7. The Plaintiffs submit that the Plaintiffs are entitled to an order of perpetual injunction restraining the Defendant Nos. 1 to 15 from carrying out any construction or development in the suit lands by utilizing or exploiting any additional FSI/TDR sanctioned in Building Plan dated 17.11.2015 in respect of Building No. 6, Building Plan dated 25.05.2016 in respect of Building No. 4 and Building Plan dated 25.05.2016 in respect of Building No. 7 which sanctioned FSI/TDR encroaches upon the FSI/TDR utilization potential by and of the Plaintiff society."
(Emphasis added)
14. On the pleadings and the reliefs sought, there is one immediate issue. Part of the principal interim relief is directed against Building No 6. The plaint says clearly that the Plaintiff is concerned only with Plot "A" of the combined Plots "A" and "B" and the combined layout. But Building No 6 is not on Plot A at all. It is on Plot B. That would straightaway require the refusal of relief from any perspective, so far as Building No 6 is concerned.
15. Ms Iyer's propositions were founded on the principle of 'informed consent' being a requisite of MOFA, and any 'blanket consent' being forbidden. Clauses 4 and 23 (along with clauses 7 and
13) meant that the Defendants could not, she urged, indefinitely postpone the execution of a conveyance after it was registered.
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16. There are separate Affidavits in Reply from the developers (Defendants Nos 14 and 15) and the Chogles.
17. The averments and rival contentions on what was actually used or sought to be used is a matter for trial and evidence. I cannot conduct a mini-trial at this stage. What is to be seen is only whether a prima facie case is made out, whether the balance of convenience favours the Plaintiff, and whether irretrievable prejudice will be caused if relief is denied. This is settled law.
18. The only issues are, prima facie, (i) whether the Plaintiff has established and enforceable rights in the additional FSI / TDR on the land beneath and appurtenant to the Plaintiff society's building, given that this entire development is a layout; and (ii) whether the agreement in question has sufficient consent.
19. Paragraph 3(iii) of the developers' Affidavit in Reply says this:
(iii) The allegation that the Defendants are not entitled to take advantage of additional FSI/TDR sanctioned by the Municipal Corporation after a lapse of 20 years is fallacious.
Since Building No. 5 was constructed with TDR and the Plaintiffs are fully aware of the amendments carried out from time to time in the layouts from 1985 to 2013 and Buildings to which the Plaintiffs never objected to, including construction of Building No. 5. Since the Plaintiffs were fully aware that the entire layout of 1985 as amended in 1996 and subsequently also is being developed as scheme in a phased manner wherein all 7 Buildings are shown at the same site and Recreation Ground (R.G.) and common areas are not being reduced as falsely alleged. No consent of Plaintiff Society is therefore required for such Page 10 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc changes being done for the phase-wise development of the Layout even if the same is with increase in FSI which is for the benefit of the Developers as per the MOFA Agreement (Exhibit "K" to the plaint) and no amenities and/or open spaces are being reduced for the same as falsely insinuated.
20. Paragraph 3(iv) points out that the challenge to Building No 6's development is beyond the scope of the suit. Paragraph 3(v) says that there is no challenge to any of the permissions, sanctions and approvals granted.
21. Mr Chinoy for Defendants Nos 14 and 15 points out that the essence of the suit is that the time for conveyance has already come. This is, he says, and I think correctly, contrary to the plain wording of the agreement which contemplated a conveyance to the apex Chogle Nagar federation cooperative society, never a notional conveyance of carving up an unsubdivided plot with piece-meal conveyances. Importantly, he points out, the plaint overlooks a fundamental aspect, viz., that it entirely delinks the development from the ULC Act scheme sanctioned under Section 20. Though this point is specifically taken in paragraph 7 and paragraph 8(e)(xiii) of the developers' Affidavit in Reply, there is no traverse of this at all. This was the reason why the application for a deemed conveyance failed. The entire suit is predicated only on a sub- division relatable to the built up area; and no one has ever claimed a right to a conveyance of an undivided share.
22. On the question of clause 4 and the so-called consent, Mr Chinoy submits that the entire clause is being misread. It is not a Page 11 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc consent clause at all. It is, on the contrary, a declaration and an acceptance that the developer might get additional FSI or TDR. Should that happen, the clause declares, the additional FSI or TDR is, by agreement, the entitlement of the developer. This clause is, therefore, a declaration of potential buildability. It is not a consent- to-further-development clause at all.
23. Turning to the typical flat purchase agreement annexed at Exhibit "K" to the plaint, Mr Chinoy points out that recital (e) specifically references the ULC Act sanctioned scheme and permissions, including the exemption order. Recital (f ) clearly says that the development is pursuant to the exemption order under the ULC Act. Further, recital (p) mentions that before applying under the Maharashtra Co-operative Societies Act, 1960, the flat purchasers made a declaration as required under the ULC Act that they did not hold any other tenement, house or building.
24. Mr Chinoy therefore submits that the layout is not the basis of the sale at all, but it is the scheme sanctioned under Section 20 of the ULC Act. This scheme allowed TDR loading with prior permission against payment of a premium.
25. If there is a 'consent clause', it is not clause 4, 7, 13 or 23, as contended in the plaint. It is clause 1:
"1. THE PROMOTERS shall under normal circumstances construct and erect on the said lands more particularly described in the Schedule hereunder written multistoried building initially called and known as "AMEYA Apartment" of ground floor at Stilt level and seven upper Page 12 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc floors with terrace (hereinafter for brevity's sake referred to as "the said building") in accordance with the approved plans and specifications as seen and approved by the Flat Purchaser/s prior to the execution of this Agreement for Sale', a true copies whereof having been received by the Flat Purchaser/s. The Promoters may make such variations and alterations in the said plans and in the said building as they may consider necessary or expedient or as may be required by any public or Local Body or Authority and the Flat purchaser/s hereby agree/s to such variations or modifications being made as aforesaid. This condition shall operate as an Irrevocable Consent of the Flat Purchaser/s in the said building for carrying out variations, modifications, additions and alterations in the said building plans."
(Emphasis added)
26. This is in direct contrast to Clause 4, which is in the form of a declaration.
27. Further, paragraph 8(b) of the developers' Affidavit in Reply said in terms that--
(b) The Plaintiffs were all along informed that 7 Buildings were going to be constructed in the scheme of development undertaken by these Defendants. These 7 Buildings are totally separate and independent buildings and were shown in the Original Layout of 1985 as well as in the subsequent amended layouts from 1996 till 2004 and till Layout of 2014. All the 7 Buildings which formed part of the Original Layout of 1985 continue to be shown at the same location and have been and are being constructed at the same location even today. The entire plot is being developed as one scheme in phases as Page 13 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc contemplated i.e. "Chogle Nagar". The MOFA Agreement expressly provides that after all the buildings [i.e. the 7 buildings shown Plot A] have been constructed the Defendants would execute a Conveyance of the Land in favour of the Chogle Nagar Co-operative Housing Society Ltd. All the amenity areas including Recreation Grounds (R.G.'s), Open Spaces were and are shown as common to all the 7 Buildings in the Layouts approved from time to time. Even the Occupation Certificate of Plaintiffs Building No. 3 does not show any such exclusive or particular open space or R. G. as belonging to the Plaintiffs Building exclusively. These amenities and R. G. areas have remained the same as were shown in the Layout of 1996 and till today. In the circumstances, it is submitted that the Plaintiffs claim for a separate Conveyance of 4561.03 sq. mtrs. of the total layout plot/land [being their Built-up area] is therefore totally misconceived and contrary to their MOFA Agreement.
(Emphasis added)
28. Other than a generalized denial, there is no traverse in the Affidavit in Rejoinder.
29. This means, submits Mr Chinoy, and I think correctly that to clause 1, the normal interpretation of 'informed consent' under Section 7(i) of the MOFA would apply. That section has nothing at all do to with Clauses 4 or 23. If anything, Clause 1 would be inoperable as a 'blanket consent'; but this only means that the existing building could receive no unilateral horizontal or vertical expansion or extension. The consent had nothing to do with the scheme sanctioned under the ULC Act for the layout. Consequently, at best, the Plaintiff only had to be put to notice, for Page 14 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc each flat purchase agreement was specifically subject to the declaration.
30. The entire basis of the suit is an invocation of a right to separate conveyance under clause 23 of the flat purchase agreements.
31. Next, Mr Chinoy draws attention to the order dated 1st September 2016 of the District Deputy Registrar, Cooperative Societies, rejecting the Plaintiff's application for a deemed conveyance. A copy is Exhibit "1" to the Affidavit in Reply of the developers. The authority found that the development was indeed according to the scheme sanctioned under the ULC Act. This was challenged by the Plaintiff in a Writ Petition, but the Plaintiff obtained no orders.
32. Ms Iyer's submission in rejoinder that the ULC Act cannot displace MOFA is unconvincing. The entire layout is only under the ULC Act sanctioned scheme. If anything, it is the other way around. The plaintiff's members were not entitled to become flat owners except under the ULC Act sanctioned scheme. Once their building was shown as developed under that scheme, and once the blanket consent was restricted to their building, no further rights could be imputed into the flat purchase agreements. Her submission that clause 4 is not MOFA-compliant does not, prima facie, appear to be correct.
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33. Ms Iyer's reliance on the decision of a learned single Judge of this Court (BR Gavai J, as he then was) in Malad Kokil CHSL & Anr v Modern Construction Co Ltd & Ors1 is, I believe, more than somewhat misplaced. There, the construction or building had a disclosed dimension of ground and eleven floors. The developer argued that if, in the layout, an area was earmarked for the proposed construction, it would not matter if the building was shown as 1+1 floors but the actual construction was of four, 10 or 28 floors. That contention was repelled. In Malad Kokil there was an express representation about the building in question itself, and this was sought to be changed. That is not the situation here. No change is proposed to the Plaintiff society's building at all.
34. Similarly, in Madhuvihar CHSL & Ors v Jayantilal Investments & Ors2 (referred to and followed in Malad Kokil), the plans for a particular building were sought to be changed to take away amenities assured in brochure. This, the Court held, required informed consent.
35. Once it is shown that no amenities are being reduced, and no change is proposed to the Plaintiff's building, then these decisions on 'informed consent vs 'blanket consent' do not apply. Indeed, what is being suggested is the reverse: that any change in the layout, even one that does not affect common amenities or the Plaintiff's building, automatically requires some form of 'consent' -- though 1 2012 SCC OnLine Bom 1310 : (2012) 6 AIR Bom R 257 : (2013) 2 Bom CR 414 2 2010 SCC OnLine Bom 1526 : (2011) 1 Mah LJ 641 : (2010) 6 Bom CR
517. Page 16 of 17 15th April 2024 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 17/04/2024 05:08:07 ::: Shree Ameya CHSL v Laxmibai Ganpat Chogle & Ors NMS-601-2017-IN-S-839-2016-J.doc no injury at all is demonstrated. This is a form of blanket non- consent.3
36. The Notice of Motion fails. It is dismissed. There will be no order as to costs.
(G. S. Patel, J) 3 See also: Eternia CHSL & Ors v Lakeview Developers & Ors, 2015 SCC OnLine Bom 723 : (2015) 5 Bom CR 680, where the law was fully reviewed, and promised amenities were, in fact, sought to be deleted or changed without specific consent. An appeal failed: Lakeview Developers & Ors v Eternia CHSL & Ors, 2015 SCC OnLine Bom 1365.
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