Bombay High Court
Milaan C Jhaveri vs Jawala Real Estate Private Limited And 2 ... on 11 July, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
13-IAL-9233-22.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 9233 OF 2022
IN
SUIT (L) NO. 8472 of 2022
Milaan C. Jhaveri ...Applicant/
Plaintiff
Versus
Jawala Real Estate Private Limited & Ors. ...Defendants
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Mr. Mutahhar Khan a/w Mr. Chirag Sancheti i/by M/s. Bulwark
Solicitors for the Applicant/Plaintiff.
Mr. Zal Andhyarujina, Senior Advocate a/wMs. Maithili Parekh, Mr.
Amogh Singh i/by Jeet Gandhi for the Defendant Nos. 1 and 2.
Ms. Yamuna Parekh for the Defendant No. 3-BMC.
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CORAM : R.I. CHAGLA J
DATE : 11 July 2022
ORDER :
SHARAYU
1. Heard learned Counsel for the parties.
PANDURANG KHOT Digitally signed by SHARAYU PANDURANG KHOT
2. Mr. Mutahhar Khan, learned Counsel appearing for the Date: 2022.07.20 19:04:24 Applicant/Plaintiff has moved for urgent ad-interim relief for +0530 restraining the Defendant Nos. 1 and 2, its agents, employees, 1/17 13-IAL-9233-22.doc servants and any other persons claiming through the Defendant Nos. 1 and 2 from carrying out any further construction including construction of the proposed Jain Temple contrary to the plans which were disclosed to the Applicant/Plaintiff at the time of execution of the Agreement to Sell dated 1st August 2016.
3. Mr. Khan has referred to the Agreement to Sell dated 1st August 2016 between the Defendant No. 1 and the Plaintiff wherein in Annexure 3, the common area and amenities have been set out. He has submitted that from the list of common areas and amenities, there is no mention of a Jain Temple. He has further submitted that complaints were made by the Applicant/Plaintiff that though the Plaintiff entered into the Agreement to Sell in respect of the suit flat and have paid the purchase consideration for the suit flat as well as pursuant to part occupancy certificate obtained in December 2019, the Applicant / Plaintiff was handed over possession of the suit flat, the Defendant Nos. 1 and 2, contrary to the Agreement to Sell had commenced illegal construction of the Jain Temple contrary to the sanctioned plans and / or approval of the owners. The Applicant / Plaintiff had also been aggrieved as culturally it was not desirable to live above such, Jain Temple being constructed. The Applicant / 2/17 13-IAL-9233-22.doc Plaintiff called upon Defendant Nos. 1 and 2 to stop the illegal construction.
4. Mr. Khan has referred to the complaints lodged by the Plaintiff with Defendant No. 3-MCGM, pointing out that the Defendant Nos. 1 and 2 were breaking RCC structure and had commenced construction in the open area on the 7th floor of the podium of the building known as 'Trump Tower'. Pursuant to the complaint of the Plaintiff, a Punchnama of unauthorised work was prepared and the MCGM issued stop work notice dated 12th February 2021 under Section 354(A) of the Mumbai Municipal Corporation Act, 1888 ("the MMC Act") to Defendant No. 1 with regard to the unlawful construction.
5. Defendant Nos. 1 and 2 had maintained that the Jain Temple is a spiritual amenity and not below any residence. This was informed by the email to the Applicant/Plaintiff on 27th February 2021. Defendant Nos. 1 and 2 thereafter recommenced the alleged illegal construction sometime around November/December 2021. The Advocates for the Plaintiff called upon the Defendant to stop construction of the proposed Jain Temple by letter dated 27th 3/17 13-IAL-9233-22.doc January 2022 in compliance with the stop work notice issued by Defendant No. 3-MCGM.
6. Mr. Khan has submitted that the Plaintiff had thereafter learnt that the Defendant Nos. 1 and 2 had unilateral modified the sanctioned plan without prior consent of flat purchasers and the podium area on the 7th floor is now depicted as area for construction of a Community Hall.
7. Mr. Khan submits that the Defendant Nos. 1 and 2 has only placed reliance on a letter dated 1st May 2022 wherein some of the residents of the project Lodha Park, Worli had given their consent to spiritual amenities which Defendant Nos. 1 and 2 is alleged to have been constructing and that they had no objection to such construction as the same was done as per their request.
8. Mr Khan has thereafter relied upon speaking order dated 29th October 2021, which is annexed to the Affidavit in Reply of Defendant No. 3-MCGM directing the removal of the impugned construction. He has submitted that thereafter, the alteration in the plan of Defendant Nos.1 and 2 had been sanctioned by MCGM, 4/17 13-IAL-9233-22.doc thereby giving approval to a Community Hall. This is borne out from the letter of Defendant No.2 dated 3rd March 2022 addressed to the Assistant Engineer of MCGM which is at Exhibit 'C' to the Affidavit in Reply of Defendant No. 3 and the sanctioned plan enclosed thereto, informing him of the approval of the Community Hall dated 16th August, 2021 and to close the stop work notice.
9. Mr. Khan has relied upon Section 7(1)(ii) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ("the MOFA"), which provides that after plans and specifications of the building are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make any other alterations or addition in the structure of the building without the previous consent of all the persons who have agreed to take the flats. He has placed reliance upon the decision of this Court in Madhuvihar Co- operative Housing Society, Mumbai and others Vs. Jayantilal Investments, Mumbai and others1 which is in the context of Section 7(1)(ii) of the MOFA. It has been the consistent view of this Court that the blanket consent or authority obtained by the promoter, at the 1 2011(1) Mh.L.J. 641 5/17 13-IAL-9233-22.doc time of entering into agreement of sale or at the time of handing over possession of the flat, is not consent within the meaning of Section 7(1) of the MOFA, in as much as, such a consent would have effect of nullifying the benevolent purpose of beneficial legislation. Section 7(1) of MOFA has to be an informed consent which is to be obtained upon a full disclosure by the developer of the entire project and that a blanket consent or authority obtained by the promoter at the time of entering into agreement of sale would not be a consent contemplated under the provisions of the MOFA. This has been the accepted view in the said decision. He has submitted that the informed consent of the Applicant / Plaintiff being the flat purchaser was required to be taken before making alterations in the subject building. Mr. Khan has submitted that had the Applicant / Plaintiff known that there would be an alteration in the subject building by constructing a Jain Temple, the Applicant / Plaintiff would not have purchased the Suit flat.
10. Mr. Khan has also referred to the definition of additions and alterations in the Development Control Regulations of Greater Bombay, 1991, where it is defined as change from one occupancy to another, or a structural change, such as an addition to 6/17 13-IAL-9233-22.doc the area or height, or the removal of part of a building, or a change to the structure, such as the construction or cutting into or removal of any wall or part of a wall, partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of ingress or egress, or change to fixtures or equipment, as provided in these Regulations.
11. Mr. Khan has submitted that in the present case there is clearly additions and/or alterations which is without the consent of the Plaintiff who had agreed to take the suit flat in the subject building. He has further submitted that the revised plans now being sanctioned are without the informed consent of the Plaintiff and in any event, is for sanction of Community Hall and not for Jain Temple. He had placed reliance upon the photograph of the notice displayed in the said project Lodha Park developed by the Defendant Nos. 1 and 2 which refers to an inauguration by Lodha Park Jain Sangh on 3rd July 2022, when the matter had firstly come up on 1st July 2022. On that date a statement had been made on behalf of Defendant Nos. 1 and 2 that till next date status quo be maintained in respect of the disputed structure/construction on the 7th floor podium of Trump Tower building.
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12. Mr. Khan has further drawn reference to a brochure of the Defendant Nos. 1 and 2 of their project in which the disputed structure constructed is shown as Jain Temple for the 6th tower - Lodha Adrina.
13. Mr. Khan has accordingly, submitted that the Defendants be restrained from carrying out any further construction of proposed Jain Temple contrary to the sanctioned plan disclosed to the Applicant/Plaintiff at the time of execution of Agreement to Sell dated 1st August 2016.
14. Mr. Andhyarujina, learned Senior Counsel appearing for the Defendant Nos. 1 and 2 has vehemently opposed grant of any ad-interim relief. He has submitted that the present Suit itself is not maintainable in view of the provisions under Real Estate (Regulation and Development) Act, 2016 ("RERA") and in particular, Section 14(ii), thereof wherein it is provided that the promoter shall not make any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed 8/17 13-IAL-9233-22.doc to take apartments in such building. He has submitted that there is a bar of jurisdiction under Section 79 of the RERA, which provides that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the Adjudicating Officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
15. Mr. Andhyarujina has submitted that in the present case, addition and / or alteration in the sanctioned plan has received the previous written consent of at least two-thirds of the allottees, who have agreed to take apartments in the subject building. In any event, he submits that this is a matter which should be before the Authority under RERA who is the appropriate authority to decide this issue. He has submitted that in the present case, the MCGM has sanctioned the alteration in the plan of Defendant Nos. 1 and 2 thereby sanctioning the Community Hall. They have approved the Community Hall on 6th August 2021. This is apparent from the Affidavit in Reply of Defendant No. 3-MCGM dated 6th July 2022, in particular, Exh.C thereto which also enclosed the sanctioned plan. He 9/17 13-IAL-9233-22.doc has submitted that the entire case of the Applicant/Plaintiff that impugned structure / construction is a Jain Temple is fallacious as what has infact being been constructed is a Community Hall. He has submitted that the impugned structure was contemplated when the Agreement to Sell had been entered into with the flat purchasers and he has drawn reference to the Annexure 3 which is for common areas and amenities in which amenities shown include a Ganesha Temple and it is expressly provided at the foot of the list of common areas and amenities that the aforesaid facilities list may undergo revision in the interest of betterment of the development as per the discretion of the project designers.
16. Mr. Andhyarujina has dealt with the submission of Mr. Khan for the Applicant/Plaintiff that Section 7 of MOFA is applicable. He has submitted that Section 7 of MOFA contemplates additions and alterations in the structure of a building. In the present case, there is no such alteration or addition in the structure, but only an alteration in the sanction plan by provision of an amenity by way of Community Hall to the flat purchasers. He has submitted that in the case relied upon by Mr. Khan, namely Madhuvihar Co- operative Housing Society, Mumbai (supra), the case concerned itself 10/17 13-IAL-9233-22.doc with additional structure which was not forming part of the original layout which could not have been constructed without consent of the Society. The informed consent of the person who agreed to take the flat had not been taken under Section 7 (i) of MOFA. Section 7(i) cannot be read to apply in a case such as the present where there is no additional construction but a filling in the void / open space in the podium of the building by a Community Hall. He has submitted that the words "alterations or additions in the structure of the building" in Section 7 of MOFA cannot be read to include the provision of amenities which is without any additional building being constructed. He has accordingly, submitted that Section 7 of the MOFA has no application to the facts of the present case. He has tendered photographs showing the impugned construction coming up and which is within the structure of the building. Photograph is taken on record and marked "X" for identification. He has accordingly, submitted that there is no merit in the Application being made for ad-interim relief, apart from the fact that the Suit itself is not maintainable.
17. Having considered the submissions, in my view, there is merit in the submissions of Mr. Andhyarujina, considering a 11/17 13-IAL-9233-22.doc reading of provisions under RERA, in particular, Section 14 thereof. It is provided in that Section that there shall be adherence to the sanctioned plan, layout plan and specifications as approved by the Competent Authorities by the promoter in development and completion of the proposed project. It is further provided in Section 14(2) of RERA that the promoter shall not make any other alterations or additions in the sanctioned plans, layout plans and the specifications of the building or common area within the project without the previous consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take such apartments in such buildings. Thus, this provision of RERA contemplates alterations or additions in the sanctioned plan, layout plan or specifications of the building and common areas thereof subject to two-third prior written consent of the allottees / flat takers.
18. Section 79 of RERA is a bar of jurisdiction and which provides that no Civil Court shall have jurisdiction to entertain any Suit or proceeding in respect of the matter which the Authority or the Adjudicating Officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to 12/17 13-IAL-9233-22.doc be taken in pursuance of any power conferred by or under such Act. Accordingly, it appears from a reading of these provisions of RERA, that where the addition and alteration have been done as in the present case in the sanctioned plan, the issue as to whether the consent of two - thirds of the flat purchasers have been taken in order for it to be valid is within the jurisdiction of the Authority or Adjudicating Officer under RERA. The Civil Courts are expressly barred from entertaining and / or granting any injunction in respect of such matters.
19. Now it is necessary to consider the submission of Mr. Khan in so far as the applicability of Section 7 of MOFA is concerned. Section 7 of MOFA contemplates a bar on "additions and alterations in the structure of the building" without the informed consent of person who agreed to take the flat.
20. The decision relied upon by Mr. Khan, namely, Madhuvihar Co-operative Housing Society, Mumbai (supra) had considered Section 7 (1)(ii) of MOFA. In the facts of that case there was an additional structure/wings of a building constructed. This Court after considering the facts of that case arrived at a finding that 13/17 13-IAL-9233-22.doc the consent as contemplated under Section 7(i) of MOFA has to be informed consent which is to be obtained upon a full disclosure by the developer of the entire project and that blanket consent or authority obtained by the promoter at the time of entering into agreement or sale would not be consent contemplated under the provisions of MOFA.
21. It is in this context that the Court had considered a previous decision of this Court in Smt. Neena Sudarshan Wadia Vs. M/s. Venus Enterprises2, which had held that the prohibition under Section 7(1)(ii) can be lifted if before the promoter carries out the alterations in the building or before he starts the work of additional construction, the promoter obtains the consent of all the persons who had agreed to take the flats. A blanket consent or authority obtained by a promoter at the time of entering into an agreement for sale or at the time of handing over possession is not the consent contemplated by Section 7(1)(i) or (ii) as such a blanket consent or authority would have effect of nullifying the benevolent purpose of beneficial legislation.
2 1984(2) Bom.C.R. 505 14/17 13-IAL-9233-22.doc
22. Having considered the decision of this Court in Madhuvihar Co-operative Housing Society, Mumbai (supra), in my view, the words "alterations or additions in the structure of the building" cannot be read to be an addition or alteration in the sanctioned plan by the provision of an additional amenity in the pre- existing building. Section 7 will have application to a case where there is construction of an additional building or additional wings to a building. Thus, in my prima facie view, Section 7 of MOFA will be inapplicable in the present case.
23. The sanctioned plan in the present case has undergone an alteration which has been approved by the MCGM. The alteration is the provision of an additional amenity viz. a Community Hall. The reliance placed on the photograph which has also been referred in the previous order dated 1st July 2022 and which was marked X for identification is of the notice displayed in the building of Lodha Park developed by Defendant Nos. 1 and 2 which referred to an inauguration by Lodha Park Jain Sangh on 3rd July 2022. From a reading of this notice, it is clear that it is not for inauguration of a Jain Temple in the disputed structure.
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24. Mr. Andhyarujina on instructions states that Defendant Nos. 1 and 2 have constructed a Community Hall which has been sanctioned by the MCGM and not a Jain Temple. The statement is accepted. Mr. Andhyarujina further states on instructions that in the brochure which had been tendered to this Court which pertains to the building Lodha Adrina, part of the Lodha Park Project developed by Defendant Nos.1 and 2 and in which the disputed structure/construction had been shown as Jain Temple is rectified by deletion of the words 'Jain Temple' and by addition of the words 'Community Hall' in place thereof. The brochure has been shown to this Court and this Court is satisfied that the disputed structure/construction after such rectification is shown as Community Hall.
25. I am satisfied that the addition and / or alteration in the sanctioned plan by showing a Community Hall has been approved by the MCGM. It is made clear that the use of the disputed structure / construction shall be as a Community Hall and not for a particular religion. It is further made clear that all the flat purchasers of the subject building developed by Defendant Nos.1 and 2 are entitled to use the disputed structure / construction as a Community 16/17 13-IAL-9233-22.doc Hall.
26. Accordingly, no case has been made out for grant of ad-interim relief. Insofar as the maintainability of the Suit is concerned, that shall be gone into as and when the Defendants take out appropriate application.
27. Considering that the Application is being heard for ad-interim relief, after the above order has been passed, Mr. Khan on instructions states that nothing remains in the Interim Application and the Interim Application may be disposed of. There is no objection to this by Mr. Andhyarujina.
28. Accordingly, Interim Application is disposed of in the above terms.
[R.I. CHAGLA J.] 17/17