Bombay High Court
Hubtown Solaris Premises Co-Operative ... vs Municipal Corporation Of Gr.Mumbai And ... on 3 May, 2021
Author: A. K. Menon
Bench: A. K. Menon
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (LODGING) NO.3846 OF 2020
IN
SUIT (LODGING) NO.3844 OF 2020
Hubtown Solaris Premises Co-op. Society Ltd., ] ... Applicant-Plaintiff
V/s.
1. Municipal Corporation of Greater Mumbai ]
2. Asst. Engineer-II (B & F), Mumbai ]
3. Asst. Assessor & Collector, ]
Assessment and Collection Department, Mumbai ]
4. Asst. Engineer, Water Works Dept., Mumbai ]
5. Hubtown Ltd., Mumbai ]
6. Hubtown Solaris Maintenance Pvt. Ltd., Mumbai ]
7. Slum Rehabilitation Authority, Mumbai ]
8. Executive Engineer - W.S., SRA, Mumbai ]
9. City Elevators Pvt. Ltd., Mumbai ] ... Defendants
Mr. Mayur Khandeparkar, with Mr. Kaustubh Patil, i/by Yashvi Panchal, for
the Applicant-Plaintiff.
Mr. Sagar Patil for Defendant Nos.1 to 4.
Dr. Birendra Saraf, with Mr. Ashish Kamat, Ms. Niyati Merchant, i/by MDP &
Partners, for Defendant Nos.5 and 6.
Mr. Abhijeet Kulkarni for Defendant Nos.7 and 8.
Mr. Abhijeet Singh for Defendant No.9.
CORAM : A. K. MENON, J.
RESERVED ON : 10TH MARCH, 2021.
PRONOUNCED ON : 3RD MAY, 2021.
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1. The plaintiff-society has moved this ad-interim application in a suit in which the plaintiff seeks numerous reliefs and principally for a direction to handover possession of society's office. Plaintiff is a co-operative housing society of purchasers of commercial premises in a building known as "Hubtown Solaris" situate at Andheri, Mumbai. The society seeks a direction against defendant no.5 - the developer to handover possession of the society's office in the building known as "Hubtown Solaris" along with all records and accounts in relation to functioning of the building. The society also seeks numerous reliefs to prevent obstruction by the defendant no.5 of the plaintiff's employees, agents and servants, who are said to be managing the affairs of the building including use of lifts and collection of maintenance charges. The society also seeks a declaration that the Letter of Intent dated 5 th July 2019 and further permissions said to have been granted to the plaintiff by the defendant no.7-Slum Rehabilitation Authority for construction of the 13th and 14th floor in the building are illegal and not binding. The society seeks cancellation of the Letter of Intent and in the interim seeks several ad-
interim reliefs including injunction restraining defendant no.5 from selling or allotting any part of the 13th and 14th floors. The prayers range from prayer clause (a) to prayer clause (dd).
2. The IA seeks certain urgent reliefs of injunctions as aforesaid. One of the reliefs sought in the IA, namely, to restrain defendant nos.5, 6 and 9 from 2/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: preventing use of the lifts and robotic car parking and other facilities in the building, is being worked out amicably pending the hearing of this IA. That apart, today the plaintiff seeks further prayer clauses (b), (f) and (h) in the following terms :-
(i) Injunction restraining security guards employed by defendant no.5 / defendant no.6 from interfering with, obstructing and harassing members of the plaintiff-
society and their employees, who are managing day-to- day affairs of the building;
(ii) Injunction restraining defendant no.5 from carrying out any construction on parts of the 6th, 13th and on the 14th floors and;
(iii) Injunction restraining defendant no.5 from selling, transferring or allotting floors 6th, 13th and 14th.
3. Affidavits have been filed and the matter is being urged for ad-interim reliefs. A few facts which are relevant are set out below :-
. The defendant no.5 is beneficiary of a Letter of Intent dated 1 st December 1998 for redevelopment of the plot of land under DCR 33(10). The LOI was revised in 2004 to carry out a slum rehabilitation scheme. IOD and commencement certificate were issued in 2005 and the layout was sanctioned in 2009 for constructing 14 rehabilitation buildings and 3 sale buildings. 3/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: Between 2009 and 2012, these buildings have been constructed. In September, 2012, defendant no.5 is believed to have received part occupation certificate in respect of the building "Hubtown Solaris". Defendant no.5 has entered into the agreements for sale with purchasers of units. These agreements were said to be compliant with the Maharashtra Ownership Flats (Regulation of the Prmotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). Later, after Real Estate (Regulation and Development) Act, 2016 (RERA) came into force, further sale agreements were also believed to have been executed. Hubtown Solaris consists of 2 basements with 6 level + ground + 13 upper floors. It was proposed that upto 18 th floors will be constructed upon plans being approved.
4. The applicant-society today claims that the defendant no.5 has failed and refused to hand over society's office, is interfering with the enjoyment of the property and is engaged in illegal construction on the 6 th, 13th and 14th floors. About 277 units constructed between 2011 and 2020 have been handed over to the members of the plaintiff-society. The society was registered on 18th June 2018. The first general meeting of the society was held on 12th October 2019. The 5 th defendant attempted to stall the society's attempt to hold the meeting. A writ petition was filed in this court being Writ Petition No.11063 of 2019. Defendant no.5 sought to prevent the meeting from being held, but no interim relief was granted. A provisional management committee of the plaintiff-society was then elected. The society 4/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: has alleged financial indiscipline against defendant no.5. Funds collected towards maintenance charges and statutory dues have not been paid over. The 5th defendant is said to have failed to handover the society's office and the security personnel engaged by the defendant no.5 are said to have been harassing the members of the plaintiff-society by restricting usage of common facilities.
5. Mr. Khandeparkar submitted that maintenance charges which were collected from the members were to be used for payment of municipal taxes and defraying other causes for general maintenance of the building. If these have been paid from time to time in keeping with the provisions of the agreements for sale, it is submitted that under clause (4.2) of the agreement, such maintenance charges would be collected by defendant no.5 only till formation of the common organization of unit purchasers. He has relied upon the provisions of clauses (4.2), (4.3), (4.6), (4.7) and (4.9) in support of his contention that the defendant no.5 was to handover the building for management by the plaintiff-society and execute a lease in favour of the society. The maintenance charges and taxes are now to be collected by the society and not by the defendant no.5. Relying upon these provisions, he submitted that the defendant no.5 is in breach of these obligations and the agreement for sale, which MOFA obliges it to perform.
6. Mr. Khandeparkar submitted that defendant no.5 has been adopting 5/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: aggressive practices engaging goons and anti-social elements to move around in the building premises and threatening and preventing the members from convening meetings and threatening them of dire consequences if they did. Averments in the plaint in paragraph 90 have been relied upon. One of the other grievances is that defendant no.5 has refused to permit operation of the lift and the robotic car parking. That of 17 lifts, only 2 were working when the suit was filed, that too in a place where the footfall is of approximately 3,000 visitors a day, which had however fallen to about one and a half of that during the pandemic driven lock-down. The lifts have been locked. The passcodes for unlocking the lifts are not provided to the members of the plaintiff-society. Defendant no.9, who was engaged to manage the lifts, has contended that their dues are not being paid.
7. According to Mr. Khandeparkar, these dues had been paid over to the defendant no.5, who apparently retained the same. Thus, there is a dispute between the parties as to accounts and it is in this respect that as recorded in an order dated 9th December 2020, the parties have agreed to engage an external accountant. This process is presently underway and by way of an interim arrangement, several lifts had been made operational. According to the plaintiff-society, the final layout plan for "Hubtown Solaris" was approved by Slum Rehabilitation Authority on 27 th November 2009. Between 2011 and 2020, 277 units had been handed over to its members. The society was registered in June, 2018 and the first general meeting was convened in the 6/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: presence of the Assistant Registrar of Co-operative Societies. The meeting was held on 12th October 2019 and although defendant no.5 sought to prevent the meeting from being held by filing a writ petition, no interim relief was granted. The managing committee was elected and was authorized to handle day-to-day affairs of the building/society including maintenance. However, defendant no.5 had failed to co-operate. Lifts were not in working condition. Defendant no.5 did not pay monies collected from the plaintiff's members to the contractor maintaining the lifts. Likewise, statutory dues were also not paid by defendant no.5. In effect, the defendant no.5 was obstructing the plaintiff's attempt to manage the society's affairs. One of the grievances made by the plaintiff-society is that the building has robotic parking facility, which has not been functional. As a result of the 5 th defendant's failure to remit arrears to pay dues of defendant no.9 - the lift maintenance agency, which also manages the parking facility and the lifts, the said operator has discontinued the said service.
8. My attention was invited to clauses (4.2) and (4.6) of the Agreement for Sale in support of the plaintiff's contention that the defendant no.5 was now obliged to permit the society to collect outgoings and pay the same. It is only till the formation of the society that the defendant no.5 was to undertake maintenance activities and was entitled to charge 20% of the expenditure as service fees. Clause (4.9) it is stated makes this explicit. The society having been formed as of June, 2018, it had taken charge of the building from 7/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: October, 2019 pursuant to the order passed by the Assistant Registrar of Co- operative Societies. A challenge to the society's formation has not met with any success thus far and it is submitted that the society is now functioning, it is entitled to collect maintenance from all units. The defendant no.5 however is continuing to recover maintenance, service charges at 20% of the maintenance cost. This is clearly impermissible and the defendant no.5 is now seeking to take advantage of the fact that construction is still underway to retain control over maintenance, which it now cannot. The levy of 20% service charges is in any case not required to be borne by the existing members for no fault of theirs. There is a legal obligation to convey the land to the society, which also the defendant no.5 is in breach of.
9. In an attempt to suppress the plaintiff's efforts, the defendant no.5 has allegedly employed some goons in the guise of security services leading to constant altercations and threats being held out to the representatives of the society. These persons are said to be engaged in intimidation and threatening members. Reliance is placed on photographs at Exhibit-BB to the plaint in this respect. The defendant no.5 has caused such disturbances deliberately in order to intimidate the society and its members. Meetings are disrupted and threats are handed out to the plaintiff's members. It is submitted that multiple FIRs have been registered and defendant no.5 has sought to persist in this attitude despite the society having engaged security services. Having been directed by the SRA also to handover charge of the affairs of the society, it is 8/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: not open to the defendant no.5 now to obstruct the plaintiff's efforts in managing the society and to that extent, an order and direction is sought restraining the defendant no.5 from preventing the society in carrying out its duties of maintenance and providing for security personnel. The defendant no.5 should be asked to remove, cease and desist from engaging any persons to manage the affairs of the building, which is now the obligation of the society. The next contention canvassed on behalf of the plaintiff is that the society is entitled to lease of the land upon which the building is constructed. Under the MOFA provisions, particularly Section 11 read with Rule 9 of the Rules, the defendant no.5 is bound to procure conveyance of the land in favour of the society within four months of the formation of the society. The society having been formed in June 2018 and having taken charge from October 2019, the conveyance/lease ought to be executed. The defendant no.5 has deliberately avoided conveying the land in order to seek benefits of DCPR 2034 and in this behalf reliance is placed on the decisions of this court in Ravindra Mutenja and Ors. Vs. Bhavan Corporation and Ors., 1; Noopur Developers Vs. Himanshu V. Ganatra and Ors. 2, and; Lakeview Developers and Ors. Vs. Eternia Co-op. Housing Society Ltd. and Ors. 3.
10. The aforesaid decisions are sought to be relied upon in support of the contention that this defendant no.5 cannot now avoid conveying the property 1 2003 (5) Mh.L.J. 23 2 2010 (7) Mh.L.J. 694 3 2015 SCC OnLine Bom. 3824 9/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: and take advantage of rights which would otherwise vest in the society upon the conveyance being effected. The plaintiff further contended that the defendant no.5 cannot continue to make changes to the plans of the building without express consent by the plaintiff-society and its members in view of the provisions of Section 7 and 7A of MOFA, which prohibits such changes being carried out after the initial plan is disclosed. Notwithstanding the disclosure that the building may consist of upto 18 th floors, the development potential has been exhausted and if it were not per DCPR 2034, it would not have been possible for the developer to construct beyond the 13 th floor merely because the agreement provided for a cap of 18 th floors. It does not entail an absolute right in favour of the developer to so construct without the express consent of the members of the society.
11. My attention is invited to the reports appearing at Exhibit-K to the plaint, which show that an application has been made for a revised Letter of Intent which was issued granting additional benefits under DCPR 2034 and this has occasioned by virtue of the defendant no.5 having obtained development right certificates from other properties, which it is developing. Reliance is placed on a brochure which had been published by the defendant no.5 in which a Food Court was contemplated as part of the amenity space which could be used by all members and also a recreation area. All this now has been changed since in the service area which was being used as a Food Court and Canteen, defendant no.5 now seeks to convert the service area into 10/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: office units contrary to the original provisions. Consent of the members of the plaintiff-society was not sought or obtained and hence it is contended that the proposal to construct office units on the 6 th floor is violative of Section 7 of the MOFA. No alternate service area is being provided. If such service area had to be shifted to some other location, it could have been done only after obtaining consent of the society or informing the society. None of this has occasioned and the higher floors do not indicate provisions for service area.
12. In the course of submissions, it is contended that the Advocates for SRA have submitted that a service area had been shifted to a higher floor but none of this is reflected in the amended plans or the report to which reference is made. A service area was necessary, it was an amenity, part of common area and could not have been done away with in the manner now sought to be done. The defendant no.5 it is alleged is exploiting the benefits of DCPR 2034 at the cost to the society, which alone could have exploited the same. Lastly it is contended that there are large amounts outstanding towards water charges, extra sewerage charges, charges for water misused and property taxes to the tune of more than Rs.9.4 crores. All of this is said to be payable by defendant no.5, which is now evident from the fact that the Municipal Corporation has disclosed these outstanding in their affidavit. In these circumstances, it is contended that the ad-interim relief as prayed for in prayer clauses (b), (f) and (h) be granted.
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13. The IA is vigorously opposed by Dr. Saraf and Mr. Kamat on behalf of defendants 5 and 6. Defendant no.5 is the developer of the SRA Scheme and defendant no.6 is a company formed by defendant no.5 for collecting maintenance amounts from purchasers in Hubtown Solaris. The reliefs sought are therefore against defendant nos.5 and 6. The opposition was spread out over several hearings, during which brief submissions were sought to be tendered; however, all of this was replaced by written submissions on behalf of defendant nos.5 and 6, which the defendants filed on or about 25 th March 2021. These submissions are long winded, recapitulates what Dr. Saraf and Mr. Kamat had submitted from time to time. The principal line of defence is on maintainability of the suit rather than the merits of the claims made by the plaintiff-society against defendant nos.5 and 6. It is therefore appropriate that we deal with these aspects right away.
14. Considering the length of time taken up in canvassing the respective cases, I have enquired of counsel whether this interim application could be disposed finally since an important aspect of maintainability of the suit in this court has been raised in the light of the fact that the RERA provisions contain a bar on the civil court's jurisdiction. This is an aspect that would go to the root of the matter; however, in view of the large number of interim reliefs sought, the plaintiff-society was unwilling to submit to a final disposal on the IA. It is therefore appropriate that one considers, prima facie, the effect of Section 79 of RERA and the maintainability of the present suit, limited to the 12/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: purposes of this ad-interim application.
15. At the outset, it is submitted by counsel on behalf of the defendant nos.5 and 6 that the contention that consent of the plaintiff-society had not been obtained is incorrect. The agreements for sale specifically provide for such further construction as may be decided by the developer. The defendants have contended that this court has no jurisdiction in view of the express bar contained in Section 79A of the Real Estate (Regulation and Development) Act, 2016. The plaintiff and defendants have also sought to contend that being a Slum Rehabilitation Project, the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 also contains an express bar in Section 42 of that Act. In view of these two provisions, namely, Section 79 of RERA and Section 42 of the Slum Act, this court ought not to interfere. It is also contended that the plaintiff-society has suppressed correct facts and is seeking to mislead the court. Apart from the fact that the application is delayed, emphasis is laid on the scheme and object and purpose of RERA. The Division Bench of this court in Neelkamal Realtors Suburban Pvt. Ltd. and Ors. Vs. Union of India and Ors.4 and in Lavasa Corporation Limited Vs. Jitendra Jagdish Tulsiani and Ors.5 had clearly observed that RERA is intended to advance public interest and that the Standing Committee and Select Committee had examined all aspects and observed that RERA provides a singular legislation, which would encompass all aspects of real estate 4 MANU/MH/3135/2017 5 MANU/MH/2362/2018 13/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: development. My attention was invited to the numerous paragraphs in Neelkamal (Supra). Reference was also made to the frequently asked questions on the RERA website which deals with the objectives of the Act, which include a Fast Track Dispute Resolution Mechanism and an attempt to enforce transparency and fair play, reduce frauds and delays. However, I do not find much progress having been made in this respect in the RERA complaint, which is sought to be canvassed as one of the defences inasmuch as the plaintiff had already approached the authorities under RERA and a complaint is pending. In view of that complaint, it is contended that the present suit ought not to have been filed and therefore no relief should be granted.
16. My attention was also invited to the numerous paragraphs in Lavasa Corporation (supra) in support of the contention that the real estate sector is now sought to be regulated only by RERA, which is a self-contained code, and considering the numerous provisions of that Act, it is clear that the present suit is not maintainable. Section 31 has been invoked by the plaintiff and the authority is fully empowered to deal with all aspects of the plaintiff's grievances by virtue of Sections 7, 35, 36, 37 and 40. The RERA authorities have necessary powers and therefore it is not necessary for the plaintiff- society to approach this court, which is clearly not intended to consider these aspects. The bar under Section 79 would entail that this suit should be rejected. Alluding to the effect of Sections 88 and 89 of the RERA, Dr. Saraf contended that construing these sections harmoniously with Section 79 14/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: would still entail rejection of the plaintiff's suit. It is contended that the plaintiff's version that the authorities under the RERA can only consider violations under RERA would be incorrect. The authority under RERA can also adjudicate upon disputes relating to allegations of violations of MOFA; such are the powers of the authority. It is admitted that repeal of MOFA is not contemplated, but the reliefs that can be given by this court can also be granted by the appropriate authority under RERA and it is for this reason that the bar is an effective defence against any attempt by the plaintiff to approach a civil court. It is contended that Sections 88 and 89B be read purposively, that since RERA is a umbrella statute for all real estate development and allied matters, it would be impractical for a civil court to interfere only because MOFA is not repealed. Any interference by this court on the basis of the plaintiff's contentions would be defeating the purpose for which RERA was enacted. The benefits of the legislation have been highlighted by learned counsel on behalf of the defendants that for on-going projects as well, aggrieved allottees could approach the authorities under Section 18 of RERA and that the authority has been invested with such wide ranging powers, which clearly would not justify interference by this court. While enacting RERA, the legislature would have clearly been aware of local regulations and hence consciously incorporated a bar under Section 79. The jurisdiction of this court is therefore expressly excluded. Moreover, it is not desirable that two parallel proceedings be permitted. All aspects in the present suit are said to be encompassed in the complaint filed with the RERA authorities, which 15/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: has the power to grant injunctive reliefs and impose damages, if so required. Continuing with these two litigations, which will only lead to multiplicity of proceedings, the legislature could clearly not have intended simultaneous proceedings before two different forums. My attention was invited by counsel to the decision of the Supreme Court in Imperia Structures Ltd. Vs. Anil Patni and Anr.6 The Supreme Court had observed that the authorities under RERA alone should decide all issues concerning the projects registered under RERA and that Section 79 of the RERA would apply to proceedings initiated under the Consumer Protection Act, 1986. The issues concerning a project registered with RERA are specifically entrusted to the functionaries under the RERA. All breaches under RERA can be adjudicated upon by the appropriate authority under RERA. For these reasons, it is contended that no ad-interim relief be granted.
17. The next objection canvassed on behalf of the defendants is under the Slum Act. The defendants contended that under Section 42 of the Slum Act, the civil court has no jurisdiction in respect of matters over which the administrative / competent authority or tribunal is empowered to adjudicate upon under the Slum Act. No injunction be granted by any court or other authority in relation to actions taken under the said Act and in this behalf, the plaintiff's attempt to seek relief against the slum project must fail. The plaintiff-society has admitted that Hubtown Solaris is part of an on-going slum project and construction is proceeding in accordance with plans 6 Judgment dt. 2nd November 2020 passed in Civil Appeal No.3581-3590 of 2020 16/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: approved by the SRA. Not only the plans for the additional floors but also the lay-out plan has been approved by the SRA. Construction is thus going ahead in accordance with the sanctioned plans. Being the Planning Authority, the SRA has permitted use of FSI. The provisions of the Slum Act have a larger purpose to be achieved and there cannot be an interference by civil courts since the slum project would involve rehabilitation of slum-dwellers, which ought not to be interfered with by civil court. The free-sale component is not released till the rehabilitation component is completed. There is a delicate balance that is sought to be achieved in a slum project and civil courts ought not to disturb this balance. The scheme of the Slum Act would require the civil court not to interfere.
18. Reliance is placed by the defendants on the decision of Naresh Lachmandas Haswani Vs. Haridas and Ors .7 and it is submitted that the defendant no.5 is not engaged in any illegal activity. Construction on the 13 th floor is underway, is yet to be completed and construction on the 14 th floor is expected to commence; however, these constructions are in accordance with the scheme approved by the SRA. The construction would proceed only upon FSI being released in the free sale development subject to phase-wise completion of the rehabilitation component and the plaintiff and its members are well aware of this aspect. The construction of the building has proceeded in accordance with the schedule and over a period of several years commencing from 2009. Reliance is placed on various dates on which 7 2016 (4) ALL M.R. 286 17/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: commencement certificates were issued and occupation certificates were issued in respect of the ground floor structures right upto the 13 th floor. The last occupation certificate is said to have been issued on 31 st December 2019, however part occupation certificate in respect of some units on the 6 th floor has been issued on 30th September 2020. Thus, the occupation certificates have been issued on several dates between 12 th September, 2012 to 30th September 2020. Reference is made to recitals 9, 10, 20, 21 of the standard sale agreements entered into by the defendant no.5 with the purchasers as also clause 11(g), (i), (j), clauses 12.2, 12.6, 12.14 and 17 of the said agreements, all of which empower the defendant no.5 to put up additional constructions right upto 18th floor. The fact that the plaintiff's members have all agreed with these provisions which would entitle the defendant no.5 to carry out construction cannot be denied in view of these provisions which are incorporated in the registered agreements.
19. By virtue of the aforesaid, it is contended that the plaintiff's contention that absent "informed consent", the units now proposed to be sold on 6 th, 13th and 14th floor cannot be so sold is incorrect. The consent provided for in the aforesaid clauses is not merely formal or general consent but constitutes "informed consent". On this basis, it is contended that the plaintiff-society cannot succeed in getting any relief. According to Dr. Saraf and Mr. Kamat, the plaintiff-society has not been able to demonstrate that the said agreements in any manner contravene provisions of MOFA or that construction being 18/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: carried on is illegal. The conversion of the 6 th floor is said to be with the complete approval of SRA, who has approved the plan. The FSI consumption was within the rights of the defendant no.5 since the building could be constructed upto 18th floors and the consent provided for in the above cited clauses would constitute "informed consent". This is an aspect that cannot be denied. According to the learned counsel for the defendants, the plaintiff had failed to establish that the work of construction on the 6 th floor and part of the 13th floor is in violation of MOFA or that the rights of the plaintiff's members have been in any manner compromised. All construction has been carried on in accordance with the agreements for sale and that the work carried out is within the powers of the defendant no.5 and not in contravention of the law. The decision in Lakeview Developers (supra) has been referred to and it is submitted that there is a full and proper disclosure, as contemplated in Section 3 and 4 of the MOFA. Lakeview Developers also contemplated a decision wherein the plaintiffs had contended that certain buildings were constructed after potential of the development and floor space index disclosed by the developer had been exhausted.
20. In the present case, the developer has disclosed the potential of exploitation and the extent of FSI to be utilized. This constituted "informed consent" and in any event it is contended that the facts in Lakeview Developers are distinguishable. The FSI potential has been disclosed and it is yet to be exhausted and therefore the decision in Lakeview Developers would 19/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: not help the plaintiff. In that respect, it is contended that the decision of this court in Ravindra Mutenja (supra) also would not be of assistance since it is not a case where the defendant no.5 was seeking to put up constructions after completion of buildings in accordance with approved plans disclosed at the initial stage. The defendant no.5 had disclosed its intention of putting up a maximum of 18 floors and this was sufficient disclosure to constitute "informed consent". This meets the test in Noopur Developers (supra) as well and the defendant no.5 is stated to be fully compliant with these provisions. It is also contended that the service area has been utilized after approvals were obtained from SRA. The decision of the SRA could not be challenged in these proceedings and the construction cannot be said to be beyond the scope of what has already been disclosed. In that respect, it is contended that reliance upon the decision of Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co- operative Housing Society Ltd.8 is of no avail. The 6 th floor cannot be stated to be amenity space as the service area would not be part of the amenity space, as contemplated in law. According to the defendants, the plaintiff-society has failed to demonstrate that this was service area which the defendant no.5 was obliged to handover to the plaintiff society.
21. Dr. Saraf then assailed the delay and laches and suppression of facts by the plaintiff-society. It is contended that the work of construction on the 13 th floor had commenced in December 2019. Defendant no.6 managing the property had informed unit holders about closure of one of the gates of the 8 (2010) 9 SCC 536 20/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: building to facilitate construction of the 13 th and 14th floor. The plaintiff however has sought to oppose such construction only in 2020 by filing the present suit. On account of such delay, it is contended that no relief be granted.
22. Apropos the contentions regarding DCPR 2034, the bar under Section 42 of the Slum Act is invoked. It is submitted that Hubtown Solaris is part and parcel of an on-going slum rehabilitation scheme, where FSI is released in a phased manner. If benefits had arisen under DCPR 2034, the defendant no.6 was entitled to take advantage of it. The SRA had filed an affidavit in response to the plaint and had clearly supported the 5 th defendant's contentions and denied the plaintiff's contentions that there is no contest on this aspect. The FSI available under the earlier DCR 1991 has not yet been exhausted and it is contended that no increase in FSI is being sought under DCPR 2034. By virtue of DCPR 2034, slum-dwellers are entitled to a slightly larger area as compared to DCR 1991 and this required the defendant no.5 to seek appropriate changes and obtain approval of such modified Letter of Intent. In respect of areas and tenements already constructed, no change was sought. Meeting the plaintiff's allegations of failure to handover the society's office and records, it is contended that the sale agreements all provide that the members of the society would have to await completion of development of the project and till possession of all units are delivered to all purchasers, the defendant no.5 would be entitled to manage the building till then. The 21/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: defendant no.6 was appointed for that purpose and that the defendants were fully within their powers to manage the building and it was not necessary or required that the management of the building be handed over to the plaintiff- society. Such handover would be premature, according to the defendants, since the building is yet to be completed and sanction had been received for putting up additional floors.
23. It is therefore contended by Dr. Saraf that the 6 th defendant is managing the affairs of the building and the defendant nos.5 and 6 are not obliged to handover the records or management of the building to the plaintiff-society. Reference is made to the order passed by this court on 9 th December, 2020, by which all accounts will be submitted so as to dispel all doubts about management of funds. The learned counsel for the defendants has extensively taken me through the provisions of RERA, as aforesaid, and the section cited above in an attempt to justify the continued construction and resistance to handing over of management of the society. The learned counsel for the defendants have sought to relied upon a comparative chart of prayers in the plaint and the prayers in the RERA complaint to submit that all reliefs sought in the plaint have already been sought in the RERA complaint, which is prior in point of time and therefore this court need not interfere and in any event the reliefs of the declarations and cancellations of the amended plans cannot be sought in view of the express bar under Section 42 of the Slum Act. 22/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 :::
24. Mr. Kamat has also relied upon various prayers in juxtaposition with alleged breaches of RERA provisions and remedies as provided for under Sections 7, 31, 35, 36, 37, 38 and 40(2) of RERA. The allegations in the plaint regarding harassment of members, misuse of funds collected, demand for handover of affairs of the society, continuing construction on the 6 th, 13th and 14th floors, have all been subjected to challenge in the RERA proceedings as well. It is therefore contended that no ad-interim or interim reliefs as prayed for be granted, in particular, a declaration sought that the defendant nos.5 and 6 have no right to issue bills. Injunction against construction of the 6 th, 13th and 14th floors are also being sought from RERA authorities, directly or indirectly, by seeking adherence to sanctioned plans and project specifications. In conclusion, it is submitted that considering the wide powers of authorities owing to the RERA, the bar of section 79 under RERA and Section 42 of the Slum Act, no interference is called for especially since the grievances of operation of lifts and parking are now being addressed.
25. Having heard the rival contentions, the plaintiff's grievances are four fold. Firstly, that of illegal construction, illegal conversion of the 6 th floor into commercial units and additional construction being put up under 13 th and 14th floor. Secondly, the plaintiff is aggrieved by non-payment of property taxes despite collection of taxes along with maintenance charges. Thirdly, it is contended that the conveyance has not been executed in respect of the land and, fourthly, the society's office has not been handed over. These are 23/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: essentially the issues that have been highlighted by the plaintiff-society during submissions before me. At the cost of repetition, since we are at the ad-interim stage, it has not been possible for both sides to explore all disputes in detail, however based on the submissions made thus far and the written submissions, it is evident that the issues which I have referred above are presently engaging the attention of parties. The SRA has also filed an affidavit in which it has conveyed its position as far as the additional construction is concerned and the use of the 6 th floor. SRA has also made its observation regarding the society's office. Accordingly, I have considered all these aspects.
26. The principal defence on behalf of the developer and its allied service provider company is that of jurisdiction. It has been argued both by Dr. Saraf and later by Mr. Kamat that in view of the provisions of RERA, the present suit ought not to be entertained and if the suit cannot be entertained, nor can the interim application; therefore, no ad-interim relief should be granted. As a corollary, they have also contended that even under the Slum Act, there is a bar under Section 42. Thus, if the jurisdiction issue is held in their favour, no relief can be granted. I will therefore deal with this aspect.
27. I am of the prima facie view that the jurisdiction of this court is not ousted by virtue of the provisions of RERA or that of the Slum Act. The suit essentially seeks to enforce the obligations of the developers under the MOFA and there can be no quarrel with the fact that every developer is required to 24/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: comply with the provisions of that Act. Equally, the developer is liable to comply with the provisions of the RERA Statute.
28. Strenuous efforts have been made by counsel on behalf of the defendants to establish commonality of reliefs sought in the present suit and the IA on one hand and the complaint under the RERA on the other. The question is whether because a RERA complaint had been filed, this court is powerless to grant any relief in the facts of the case? There is yet another perspective that needs to be looked into but apart from the bar under Section 79 of RERA, Section 42 of the Slum Act also contemplates a bar on civil courts adjudicating upon amendment of plans etc. and in effect what the defendants have submitted is that the declarations sought in terms of the prayers in the suit cannot be granted by this court. Perusal of the comparative chart reveals that in respect of prayer clauses (a) to (bb) in the suit, the defendants are of the view that all reliefs can also be granted under the provisions of RERA. In particular, reference is made to Sections 7, 31, 35, 36, 37, 38 and 40(2) of RERA in support of the submission that the reliefs sought in the plaint and in the IA can all be sought before the RERA authorities and that many of these reliefs have in effect been incorporated as part of the reliefs in the RERA complaint. If on one hand the plaintiff has contended that the suit seeks to enforce the MOFA obligations of the developer, the developer has contended that the bar under Section 79 of the RERA and Section 42 of the Slum Act would effectively not entitle the plaintiff from seeking the present relief. Yet 25/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: again, the plaintiff has contended that the relief sought is not merely to the extent that it is capable of being considered by the RERA authorities or by the Slum authorities. What we are facing here is a plaint seeking a mixed bag of reliefs. On one hand the aspect pertaining to maintenance of the property, payment of taxes, the allegations of intimidation, failure to handover society's office and failure to execute conveyance, all cannot be independently handled under the RERA provisions. The mixed bag of reliefs therefore in my view is not beyond the jurisdiction of this court although there are several prayers that may fall within one or the other jurisdiction. MOFA in my view is the most fundamental of Acts amongst the three that we are concerned with. Without the MOFA, the provisions of RERA and of the Slum Act will make little practical impact in terms of rights of purchasers of units and flats in premises situated within the jurisdiction of this court. The MOFA being a local law, it will have to be given effect to and if in the course of giving effect to MOFA provisions, it becomes necessary to permit a plaintiff to invoke jurisdiction of this court, so be it. Assuming that the plaintiff had not filed the present suit and had proceeded only with the RERA complaint in deference to the wishes of the defendants 5 and 6, the question is whether the RERA authorities could have granted any relief de hors the provisions of MOFA and the answer to my mind must be in the negative. Likewise, in the absence of MOFA provisions, would the Slum Act and the authorities thereunder be entitled to effectively deal with claims of flat purchasers on issues that are already covered under MOFA? Once again, the answer must be in the 26/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: negative. Thus, MOFA is the dominant enactment in the present case. RERA and the Slum Act are of a different species. RERA in effect seeks to regulate the real estate industry as a whole and the Slum Act deals with development of slum areas pursuant to the declarations. The three Acts have different scope and reach; whereas, the RERA enactment will have effect throughout the country, the Slum Act and the MOFA are restricted in their scope to the State. None of the decisions that have been referred to and canvassed before me have ruled that once a RERA complaint is filed, no other court or tribunal can entertain any other grievance in relation to the subject matter of the complaint. It is for this reason that the challenge to the provisions of RERA was based on its constitutional validity. Both in Neelkamal Realtors (supra) and in Lavasa Corporation (supra), the challenge was substantially to the validity of the Act. While the RERA enactment seeks to bring about uniformity throughout the country, the fact remains that the local laws which already provide for certain regulation of the real estate business, still continue to be valid and in this respect, Section 88 of the RERA makes it clear that the RERA provisions are in addition to and not in substitution of the present enactments. While there is no disputing the fact that RERA has been held to be a self- contained code especially considering the requirement of compulsory registration, extension of registration, powers of revocation of registration highlighting the functions and duties of developers and the aspects of conveyance and transfer of title, the Act also provides for certain rights and duties of allottees; however, it falls short of encompassing all the aspects of 27/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: MOFA. Had every provision of MOFA been part of the RERA enactment, then it would have been possible to hold that the plaintiff could not have invoked the jurisdiction of this court. However, as on date and at this prima facie stage, it is not possible to find against the plaintiff. It cannot be disputed that the provisions of law have to be interpreted in a purposive manner. If the defendants' version is to be accepted, Section 88 of RERA would be rendered otiose and meaningless. I am unable to agree with the counsel for the defendants that in interpreting Section 88 with the help of Section 89, the views canvassed by the plaintiff would be rendered nugatory.
29. On the other hand, the RERA provisions being an addition to existing laws, it is a matter of course that existing laws cannot be ignored and if the existing law enables this court to exercise jurisdiction, there is no bar against this court entertaining the suit. That having been said, in the event of any overlap in jurisdictions, it is always open for this court to exercise jurisdiction to the extent required and to the extent relief is unavailable before the RERA authorities. In my view, whether or not to exercise jurisdiction in favour of the plaintiff in a suit and in the face of the validity of RERA having been upheld, a lot would depend on the facts of each case. In certain cases where reliefs are exclusively available to a plaintiff / complainant under RERA, it may be appropriate that the plaintiff is expected to pursue the complaint before the RERA authorities rather than encourage filing of suits. However, in the present case, I am of the view that merely filing of the RERA complaint 28/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: will not prevent the plaintiff from exercising its option in moving this court and seeking protection.
30. The essence of the decision in Neelkamal Realtors (supra) is that of the constitutionality of RERA as an enactment. The fact that save and except for the constitution of the tribunal, all other provisions of RERA have been upheld does not indicate that the provisions of MOFA need not be given effect to and if provisions of MOFA can be invoked and sought to be enforced by a suit in this court, mere filing of a complaint before the RERA authorities will not frustrate plaintiff's effort in securing reliefs in this court. When we consider the Statement of Objects and Reasons of RERA, it discloses that the real estate sector was found to be playing a catalytic role in fulfilling the demand for housing and infrastructure and that while the sector had grown significantly, it has been largely unregulated in the absence of professionalism, standardization and lack of adequate consumer protection and though the Consumer Protection Act was available as a forum, it was not sufficient to address all concerns of buyers of property and promoters alike. This aspect would not hold true where the Maharashtra Ownership Flats Act did have an element of regulation and control for a long time. To state that real estate development in the State of Maharashtra was largely unregulated would not be correct. That having been said, it is not every complaint that can be filed in this court. RERA provides an adjudicatory mechanism for speedy dispute disposal and it also has an appellate tribunal to hear appeals from the orders 29/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: of the authority. But, does that alone prevent this court from entertaining a suit in which parties seek to enforce MOFA obligations? The answer must be a firm no. Although MOFA has been around for a long time, it did not address all the concerns of prospective purchasers. For instance, and as observed in Neelkamal Realtors (supra), prior to RERA coming into force, MOFA provisions were applicable, but completion of construction of a building was not envisaged under MOFA. This was found to be a serious lacuna in the law, which gave rise to a number of suits. This does not mean that by enactment of RERA, this court loses its jurisdiction to entertain a suit including one where specific performance is sought. It is believed that RERA will assure completion of a project within time, however, as we can see in the instant case, that is nowhere near true. Developers will continue to develop and purchasers will continue to purchase. That leaves regulation of the industry to be monitored. Projects such as the one at hand where the SRA plays a crucial role has to be completed in phases. The question is whether even the real estate regulatory authority can in such a situation pass orders and grant reliefs, which would encompass the roles played by the promoter, the purchaser, a co-operative society and the Slum Rehabilitation Authority? This is a grey area and will need to be explored further before a conclusion can be reached. However, on the basis of what has been canvassed before me and since the IA is only at an ad-interim stage and that a detailed hearing is now in the contemplation of parties, especially considering the wide ranging reliefs sought, I am of the view that prima facie the institution of a complaint under RERA will not by 30/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: itself bar this court from entertaining a suit. Whether in a given case the court should exercise a jurisdiction or not would depend on the facts.
31. Speaking of the dispute at hand, I am of the view that enactment of RERA, the bar of Section 79 and the Slum Act and Section 42 thereof will not non-suit the plaintiff. Having thus held and by clarifying that this is the view that I hold at this ad-interim stage, I will now proceed to consider the reliefs claimed on merits. It is pertinent to note that agreements for sale entered into between developers and purchasers would include the standard form MOFA agreements and the obligations of parties under MOFA. RERA to some extent amplifies and works into more detail as far as the obligations and rights of promoters and allottees too, but the provisions of MOFA are not entirely subsumed in RERA. Mr. Kamat has laid emphasis on the decision of the Supreme Court in Dhulabhai Vs. State of Madhya Pradesh and Anr. 9, in which the Supreme Court was considering the effect of Section 17, barring proceedings in any court, which was subject matter of assessments and orders passed under the Madhya Bharat Sales Tax Act, when such orders were passed by assessing authorities, appellate authorities or the Commissioner. The Supreme Court observed that one of the tests to discover the force of a bar under law would entail testing whether the Act contains machinery by which an assessee could raise questions of vires of a provision before special authorities and no such machinery existed and yet if civil courts were barred, the vires of the section would come into question. According to Mr. Kamat, 9 (1968) 3 SCR 662 31/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: this test was clearly met in RERA since RERA had a complete mechanism for entertaining and deciding complaints. Thus, the bar of a civil court was justified. While this may be correct when considering the provisions of RERA and the rights and obligations of promoters and purchasers, one must consider the effect of MOFA in such a situation and once MOFA is brought to the forefront, it cannot be successfully contended that there is an absolute bar against invocation of jurisdiction of a civil court. This is one other reason why the present suit cannot be considered as not maintainable.
32. I am also unable to find how the decision in Lavasa Corporation (supra) can come to the assistance of Mr. Kamat to enable me to hold that this court has no jurisdiction to entertain the suit. Reference in Lavasa Corporation to the decision of the Supreme Court in Tata Engineering & Locomotive Co. Ltd. Vs. State of Bihar and Anr. 10 cannot be lost on us. As observed in that judgment, statutes cannot be construed as the theorems of Euclid but with some imagination of the purposes which lie behind them. This is so true even in respect of the applicability of MOFA despite the provisions of Section 79 of RERA. Paragraph 63 in Lavasa Corporation emphasizes the fact that two literal meanings need not be given to understand the scheme underlying provisions of the Act. The intention of the legislature has to be gathered not only from the terms used but also from the objects and reasons and the preamble. In this respect it was reiterated that RERA intends to provide benefits for both developers and purchasers alike and that the object 10 (2000) 5 SCC 346 32/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: was to establish and adjudicate the mechanism to provide speedy dispute resolution. Lavasa Corporation does not hold that a civil court does not have a jurisdiction to entertain claims under MOFA and indeed in view of Section 88 of RERA, it cannot be so construed. If read harmoniously, it will entail that provisions of MOFA can be enforced not only through RERA, partly they could be enforced through civil court as well. Thus, in my view, reliance on Lavasa Corporation will not assist the plaintiff-society in ousting the jurisdiction of this court. Lavasa Corporation primarily holds that Section 18 of RERA would entitle allottees of premises also to maintain a complaint before the adjudicating officer. The reliance placed by Mr. Kamat on the comparative table of the prayers in the suit vis-a-vis breaches under RERA provisions and remedies under RERA will not help the defendants in avoiding a trial in the present suit. The fact remains that MOFA has not been repealed. MOFA continues to be as effective as it was. RERA may have different aspects of empowerment both for developers and purchasers alike, however as long as MOFA continues to be good law, which it is, this court cannot be deprived of jurisdiction merely on the basis of Section 79 of the RERA. If one were to construe Section 79 so strictly so as to exclude the civil court completely under all circumstances, it would be in my view almost like missing the wood for the trees. Merely because under RERA the adjudicating authority has wide powers, as seen from Sections 3 to 7, 11, 14, 17 to 19, 31, 34, 35, 36, 37, 38 and 40, it does not mean that a civil court cannot interfere to enforce specific provisions of the MOFA. The various observations in Neelkamal Realtors 33/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: (supra) do not help the defendants to succeed in establishing that there is an absolute bar against the civil court entertaining a suit which seeks determination of issues, which could also be decided by the RERA authority. In a mixed bag of reliefs such as the present one, which spreads across the different enactments and focuses primarily on MOFA obligations, it is open for the plaintiff to approach a civil court unless the defendant shows that the reliefs sought exclusively fell within the scope of RERA as the adjudicating authority.
33. Now coming to the aspect of "informed consent", which the plaintiff- society alleged they have not provided, it is apposite that we consider provisions in the agreements for sale and the stand taken by the SRA. The defendants have canvassed before me the multiple instances where the agreements for sale have clearly provided that the building is to comprise of 2 basements of 6 levels, a ground and 13 upper floors, to be extended upto 18 floors, if permitted and if FSI is available. There are two aspects to this dispute; firstly, whether there is an absolute bar on proceeding above the 13 th floor without the express consent of the purchasers or the society and, secondly, whether assuming there is no express bar, the developer could continue to exploit FSI and put up additional construction on the basis of the benefits under DCPR 2034. On both these aspects, I am of the prima facie view that the plaintiff-society cannot succeed. The agreement for sale, right from its recitals and the operative clauses, being 11(g), 11(i), 11(j), 12.2, 12.6, 12.14 34/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: and 17, would in my view empower the developer to put up additional construction to the extent provided for in the agreement. It is not a general consent sought. Specific reference is made to 18 upper floors. If one was to consider a clause which did not specify an upper limit, the plaintiff-society may be right in contending that there was no informed consent, but in the present case, I am clearly of the view that having specified in the aforesaid clauses and also in the recitals and for that matter, in a total of 13 occasions that the building would consists of upto 18 floors and that plans may have to be changed for that purpose and in particular clause (12.6) which provides that the approval for the layout shown to the unit purchaser at the time of signing the agreement is subject to change, variation and/or modification, I am of the view that the plaintiff-society cannot prevent construction form being put up beyond 13 floors, provided, of-course, that the Planning Authority and the SRA in particular provide sanction to the plans and that the construction is in accordance with the law.
34. On behalf of the SRA, an affidavit of Uttam D.K. has been filed in which the deponent has stated that the proposal for Hubtown Solaris was first noted on 2nd April 2005. Letter of Intent was issued by the SRA for the scheme on 1 st December 1998 and there are total of 14 buildings for rehabilitation comprising of 2,068 tenements. The developer was to get permission to construct in a phase-wise manner. The Planning Authority would issue an occupation certificate and completion certificate only on completing the work 35/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: of construction of rehabilitation tenements as per Letter of Intent and the sale building as per sanctioned plan.
35. In the present case, some rehabilitation buildings consist of tenements of 225 sq.ft. Others are larger area of 269 sq.ft. and also of 300 sq.ft., pursuant to amendment in this behalf sanctioned by the government. Considering the total area constructed, developer was entitled to 10,48,391 sq.ft. of FSI and on the basis of the record of SRA, there is no violation in FSI. The two sites have been combined; one at Sai Wadi, Andheri, Hari Nagar and Shivaji Nagar, Jogeshwari. Subject to heights and margin restrictions as per Development Control Regulations, 1991 (DCR), the developer would be able to construct sell buildings on either of the plots. According to SRA, there is no violation of DCR in respect of side margin and height and it is within the limits permitted.
36. As regards the service area, these are governed by DCPR 35(2)(vii) of DCR, 1991, The Architect of the project had proposed a service floor along with the refugee area with the height of 3.6 meters. No activity except providing services were carried out there. Pursuant to amended plans submitted by the Architect on 20 th January 2019, offices were proposed to be constructed on the 6th floor in the service area. The deponent states that since that service area was not mandatory and since the refugee area was on the same floor and left unaffected, SRA has granted amendment to the plan 36/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: submitted on 20th January 2019. Thus, service area from the 6 th floor is being shifted to other locations. The amended plan shows such service areas at different locations. Reliance is placed on Exhibit R-1, which is the copy of the amended plan sanctioned on 26 th July 2019. DCR 1991 were in operation upto November, 2018 and the proposal for sanction of the building permission thereafter was governed by the Development Control Permission Regulation 2034 (DCPR 2034).
37. In view thereof, the developer was required to submit proposal as per DCPR 2034 without changing the external design of the building. That construction cannot now be permitted under DCR 1991 and the proposal of the developer under DCPR 2034 has since been allowed by the SRA on 5 th July 2019 in accordance with the Regulation 9(6)(B) of DCPR 2034 and this is how the service area has been partly used for constructing offices on the 6 th floor. There is no mandate which requires a service area under DCPR 2034 and in any event, the service area proposed need not exceed 1.8 meters in height. FSI available under DCR 1991 was 3 FSI and it continues to be the same. The dispute appears only on account of payment of taxes and statutory dues and SRA is not concerned with the same. The allegations of collusion have been denied in the affidavit. Furthermore, execution of the conveyance cannot be expected since the lease agreement between SRA, developer and society will have to be executed for a period of 30 years after the slum project is completed and handed over and after grant of full occupation certificate by 37/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: the SRA. Thus, the SRA has stated that there are no illegalities or irregularities whatsoever in granting approvals. Reference to Exhibit R-1 indicates that on 26th July 2019, SRA addressed a letter to the Architect conveying their no objection to carry out work in accordance with the amended plans, subject to the usual requirements. Similarly, Mr. Kulkarni also submitted that plans for the 13th floor have also been sanctioned. Copies in respect of plans for the 11 th and 13th floor were also approved on 26th July, 2019 and copies have been tendered in court.
38. I am therefore of the opinion that the plaintiff-society cannot at this ad-interim stage restrain the defendant no.5 from putting up further construction. As a part of this relief, the plaintiff-society has also sought to assail that the alteration of the plan of the 6 th floor was to provide an amenity space by constructing units thereat. The affidavit filed on behalf of the SRA clearly provides that originally it was sought to be maintained as an amenity space, however SRA retained the rights at all times to approve change of plans, which it had done in the instant case, especially since it was now inclined to permit additional construction being put up. No doubt, part of this may be because of the applicability of DCPR 2034, an aspect that the defendant no.5 has sought to deny by contending that the FSI under DCR 1991 is yet to be exhausted; indeed, the affidavit-in-reply filed by SRA clearly specifies that the FSI under DCR 1991 had not been exhausted and that there was no increase in FSI sought under DCPR 2034. In view of this statement on 38/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: behalf of the SRA, this aspect of the matter must rest.
39. All that can be said in favour of the plaintiff-society is that the existing purchasers cannot be prejudiced by virtue of the amendment in plans and cannot be deprived of amenities that the developer was bound to provide. This is an aspect which SRA will be conscious of and is expected to take into consideration in permitting conversion of the same premises and probably contemplating to compensate the construction by providing alternate space for such amenity.
40. As far as the reliefs that the plaintiff-society seeks in relation to the utilization of the 6th floor, its restoration and further construction upon floor 13 and above, it will be open for the plaintiff to take up the issue with the SRA, if so advised. Whether or not such sanctions were permissible or not is an aspect that cannot be gone into at this stage; indeed, that is not the challenge. The challenge is against the defendant no.5 putting up such construction and not against SRA permitting the same. In view of the statements in the affidavit filed on behalf of the SRA, I am of the view that no interference is called for at this stage.
41. That brings us to the question whether the plaintiff-society is entitled to any relief in terms of handing over possession of the society's office along with the records and accounts of all monies collected and maintenance charges and taxes payable. The plaintiff-society has relied upon the 39/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: provisions of clauses 2(k), 4, 4.2, 4.3, 4.6, 4.7 and 4.9 of the standard form agreements for sale executed with the unit purchasers. These clauses clearly provide that the "common organization" contemplated by the developer- promoter, which is now the society, would fix maintenance charges for general maintenance of the building and which would be paid in advance by the unit purchasers. It is further provided that the maintenance charges and contributions are payable to the developers and promoters only till the common organization is so formed. Furthermore, if a common organization is formed, it is contended that till the plot is leased to the common organization, the developer has a right to collect proportionate share in the outgoings in respect of common areas and facilities. Thus, a distinction is drawn between clause 4.2 and 4.3. Outgoings in respect of the unit in use and occupation of a purchaser and charges for maintenance of common facilities could be paid by the common organization / society, but till such time the plot is leased to such common organization, the outgoings in respect of the proportionate share of the members of the society in respect of common facilities would have to be paid to the developer. This stands to reason since it is the developer's obligation to maintain the common facilities during the period that construction is continuing. On a case-to-case basis, this will have to be evaluated.
42. In the present case, the building is said to be consisting of 277 units, which are presently sold and largely occupied. The unit purchasers are not 40/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: entitled to withhold payment of maintenance charges till a common organization is formed. This would entail that once the society is formed, maintenance charges in respect of the individual units would have to be paid over to the society and not to the developer and to that extent, the plaintiff- society must succeed. Interpreting clause 4.3 would mean that outgoings in respect of common areas and facilities of the plot would have to be paid over to the developer / promoter till the plot is leased to the common organization. The distinction between clauses 4.2 and 4.3 lies in the fact that clause 4.3 contemplates "common areas of the plot" and not the building. As far as the building is concerned and the common facilities and areas of the building are concerned, it cannot be contended that the payments are required to be made to the developers. That would be a completely incorrect reading of the clause. Clause 4.3 clarifies this and strengthens the view that all outgoings and maintenance charges in respect of the units, which are now being managed by the society, would have to be paid over to the society alone.
43. As far as the plot is concerned, there may be areas which all users would have common access to such as the compound, yards etc. If that is so, the developer will have to specify these amounts. Unless these amounts were specified, no amounts could have been collected once the society has been formed. Thus, as an extension of this, clause 4.7 would provide for the society now to fix the maintenance charges since the society has now been formed. Till the formation of the society however the developer would have to account 41/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: for the maintenance charges that have been recovered along with the actual expenditure. There would have to be disclosure of these amounts in order to meaningfully enforce clause 4.2. Thus, the developer's right to collect a 20% charge and service tax on all maintenance charges and outgoings would have to stop after the formation of the society. Needless to mention, a complete disclosure would now be expected of the developer. In this respect, it is material to note that SRA has vide its letters dated 19 th November 2019, 9th December 2019 and 30th December 2019 (Exhibits F-1, F-2 and F-3 to the plaint) directed the defendant no.5 to handover the society's office and all the relevant documents to the plaintiff-society. This can be taken to its logical conclusion.
44. That brings us to the allegations of interference and harassment by persons engaged by defendant no.5, who are described as goons and anti- social elements in the plaint. The contentions of the plaintiff-society are that these persons have been employed in the lobby and generally around the premises of the building in order to harass, intimidate and threaten members of the plaintiff-society. They seek to prevent the members from carrying out their duties and convening meetings. These persons have allegedly thrown away articles of the plaintiff-society and assaulted the members of the society. They held out threats to the members of dire consequences unless they fall in line. In my view, if true, the plaintiff-society can always approach the law enforcement agencies, who will, no doubt, look into the matter and take a 42/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: suitable preventive measure.
45. In an affidavit seen to be affirmed on 7 th October, 2020 tendered via email but which is yet to be filed in the registry, the deponent Ali Murtaza has admitted in paragraph 5.84 and 5.85 that the plaintiff has engaged a security team. In that view of the matter there is no occasion for the defendant nos.5 and 6 to interfere or present the society's security team from carrying out duties in the normal course. In view thereof and given the fact that no one can take law into their own hands, I am of the view that the plaintiff-society is entitled to protection by an ad-interim prohibitory order restraining the defendant no.5 from engaging any persons to harass or threaten employees of the society, as contemplated in prayer clause (b).
46. The last aspect that requires to be considered is the relief sought in relation to operation of lifts and robotic parking, this is an aspect which has been dealt with in some detail by both sides at the earlier hearings in this matter. As a result of several attempts arriving at a workable solution, a chartered accountant has been appointed and the order dated 9 th December 2020 details the methodology to be adopted. As on date, there is nothing to indicate that this interim measure and an attempt to resolve the dead-lock in the management of the affairs of the society will not succeed. There is correspondence to indicate that the chartered accountant was (as of March 2, 2020) awaiting confirmation on the aspect of his professional fees. For want 43/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: of such confirmation, that chartered accountant has not been able to proceed in the matter. It is expected that wiser counsel will prevail and both the sides are agreed to do the needful to ensure that this exercise is completed meaningfully and in order to avoid further controversy on the subject. However, the records of the building as far as its maintenance and operations are concerned, including arrangements between defendant no.5, 6 and 9 inter se, it would have to be managed by the society. To that extent, the exercise by the chartered accountant is now expected to reveal whether there are any illegalities committed by the developer and that is a matter for us to consider at the appropriate stage. Suffice it to say that for the present the parties are directed to co-operate with the chartered accountant to enable him to reach his conclusions and file a report at the earliest.
47. In conclusion, I pass the following order :-
(i) There will be an ad-interim order in terms of prayer clause (b) of the IA, which is reproduced below :-
"(b). That pending hearing and final disposal of the above suit, this Hon'ble Court be pleased to restrain the persons employed as security guards and or any other employees of Defendant No.5 and Defendant No.6 or any other persons claiming through Defendant No.5 and Defendant No.6 by a temporary order and injunction from obstructing, interfering or harassing the members of the Plaintiff, the Plaintiff's employees, agents and servants from 44/45 IAL-3846-2020-Hubtown Solaris (f).doc Dixit ::: Uploaded on - 04/05/2021 ::: Downloaded on - 09/09/2021 23:50:58 ::: managing the day-to-day affairs of the Plaintiff including maintenance of the building Hubtown Solaris, C.T.S. No.427, Village Gundavali, N.S. Phadke Road, Andheri (East), Mumbai - 400
069."
(ii) No case is made out for ad-interim relief in terms of prayer clauses (f) and (h).
(iii) Reply dated 7th October, 2020 on behalf of defendant nos.5 and 6 and replies of other defendants, if any, to be filed within a period of eight weeks from today.
(iv) Affidavit-in-rejoinder, if any, to be filed within a period of four weeks thereafter.
(v) List the IA per CIS.
(vi) Liberty to apply in furtherance of the order dated 25 th
November 2020, if so advised.
(A. K. MENON, J.)
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