Bombay High Court
Shri. Rajeshwarsingh Bechansingh ... vs Chandraraj Co-Operative Housing ... on 12 November, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:43319
FA-888-18-F30.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.888 OF 2018.
1. Rajeshwarsingh Bechansingh
Since Deceased thr. His legal Heirs
No.2
2. Vijaysingh Rajeshwarsingh Bechansing
Both r/at 1/18, Chandraraj Building, 2nd Floor,
Chincholi Bunder Road, Malad (W),
Mumbai-400 064.
3. Chanadraraj Builders,
A Partnership Firm having its office at
Chandraraj Building, Chincholi Bunder Road,
Malad (W), Mumbai- 400 064 and new address
at 1101, Kingstone Place, Chincholi Bunder
Road, Malad (W), Mumbai-400 064.
4. Jaiprakash Chandrabali Thakur
Also of Mumbai, Inhabitant,
Being one of the partner of
M/s.Chandraraj Builders and
having address at Chandraraj Building,
Chincholi Bunder Road, Malad (W),
Mumbai-400 064 and
new address at 1101,
Kingstone Place, Chincholi Bunder Road,
Malad (W), Mumbai-400 064 ...Appellants.
Versus
1.Chandraraj Co-operative Housing
Society Limited, a Society registered
Under the Maharashtra Co-op Societies
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Act, 1960 and having its office at
Chandraraj Apartment Chincholi Bunder
Road, Malad (W), Mumbai-400 064.
2. Jaganarayansingh Ramphersingh
R/at 1/18, Chandraraj Building,
2nd Floor, Chincholi Bunder Road,
Malad (W), Mumbai-400 064.
(Since not available for signature in the First
Appeal is added as Formal Respondent for time
being) ( Vide Court's order dated 23/8/2022
Appeal dismissed against Respondent No.2) ...Respondent.
------------
Mr. Sandesh Patil a/w. Mr. Prithviraj Gole a/w. Ms. Anusha Amin i/b Mr. Chintan
Shah for the Appellants.
Mr. Karl Shroff a/w. Mr. Bhavin Gada, Ms. Sonal Awasthi, Mr. Sarthak Solaskar,
Mr. Ronish Mehta, i/b Vinod Mistry and Co. for Respondent No.1.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 29th August, 2024.
Pronounced on : 12th November, 2024.
JUDGMENT :
1. First Appeal has been preferred at the instance of legal heir of the original Defendant Nos. 2 to 4 who are aggrieved by the impugned judgment dated 19th September 2016 decreeing S. C. Suit No.19 of 2019 in terms of prayer Clause (a), (b) and (c). For sake of convenience parties are referred to by their status before the Trial Court.
2. The facts of the case are that Short Cause Suit No.19 of 2009 rsk 2 of 24 FA-888-18-F30.doc was instituted interalia seeking enforcement of obligations under the Maharashtra Ownership Flats, (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, (for short, MOFA) by conveyance of the suit property together with the structure and building known as "Chandraraj Apartment" in favour of the Plaintiff. The plaint pleads that Defendant Nos.1 and 2 were the owners of the suit property which was entrusted to Defendant Nos.3 and 4 for development. The Defendant Nos 3 and 4 represented that they are the owners of sub-divided land bearing S. No 5 (a)(pt) and 4(a) (pt) of Village Malad, Taluka Borivali admeasuring 1502.49 square meters bearing CTS No 15-D, 15/D-1 to 6. The entire larger Plot of land was subdivided into different sub-divided Plots being Plot Nos. A, B, C, D and certain portion towards 15% recreation ground on the northern side of the property. The conveyance was sought by the Plaintiff -Society in respect of sub-divided Plot No. B along with benefit of 22 feet internal road and 15% recreation ground to be enjoyed in common with the other occupants and residents of the remaining subdivided Plots. The subdivision was certified by the Architects. The building plans were sanctioned by the planning authorities and IOD and CC was obtained on 30 th April 1982. The Defendant Nos 3 and 4 entered into flat purchasers agreement with the individual flat purchasers under MOFA in or about the year 1984 rsk 3 of 24 FA-888-18-F30.doc and were put in possession of their respective tenements after obtaining occupation certificate on 23rd October, 1989. As there was non compliance by the Defendants of their statutory obligations, the flat purchasers formed and registered the Plaintiff Society in the year 1991.
3. In the year 2007, correspondence was exchanged between the Plaintiff and Defendant No 3 seeking conveyance of the property which was declined by Defendant No 3 for the reason that another structure was proposed to be constructed on the said property and after completion of the balance construction, conveyance can be executed. Hence, the suit was filed.
4. The written statement filed by the Defendant Nos 1 and 2 contended that they are owners of the suit property and development was entrusted to Defendant No 3. There is dispute between the Defendant Nos 1 and 2 on one hand and Defendant No 3 on the other hand. The said Plot of land is not fully developed and there is old structure occupied by tenants which is standing on the property. These Defendants continued to be owners of the suit Plot and entitled to all FSI/TDR in respect thereof and there is no privity of contract between the Plaintiff and Defendant Nos.1 and 2 and they are not bound to convey the property to the Plaintiff .
5. The Defendant Nos.3 and 4 contended that the entire Plot of rsk 4 of 24 FA-888-18-F30.doc land is not fully developed and only when the suit Plot is fully developed that the land can be assigned. It was further contended that entire consideration was not paid by the individual flat purchasers. There is an old structure on the suit Plot belonging to the Defendant and certain open spaces. The Defendants have the right to utilise the balance FSI and also TDR in respect of the entire Plot. The occupation of the members of the Plaintiff -Society is illegal and unauthorised as the full consideration has not been paid. The terms of the agreement makes it clear that the assignment in favour of the Society is to take place only after said property is fully and completely developed and the entire FSI is received by the Defendant No.3- developer.
6. The parties went to trial. The Plaintiff examined two members of the Plaintiff-Society and produced 7/12 extract of Survey No.4, Hissa No.2 and Survey No.5a Hissa No2/2, rule card issued by City Survey Officer, plan of sub-division, specimen agreement for sale, plan endorsed by the Architect, bills of municipal taxes, water charges, electricity charges, Society registration certificate and the correspondence between the parties, resolution and flat purchasers Agreement dated 30th June, 1982.
7. The Defendant examined the Defendant No 4-partner of Defendant No 3.
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8. The Trial Court framed and answered the issues as under:
ISSUES FINDINGS
1. Does Plaintiff prove that Defendants are Yes
illegally avoiding to execute conveyance in
favour of Plaintiff ?
2. Do Defendant Nos.3 and 4 prove that the No
property is not yet fully developed and so
Plaintiff is not entitled for conveyance ?
3.Whether Plaintiff's claim is within Yes.
limitation ?
4. Is the Plaintiff entitled to the reliefs ? Yes.
5. What order and decree ? As per final order.
9. The Trial Court noted that the building was constructed on sub divided Plot No.'B' and that there is no stipulation in the flat purchasers agreement about conveyance to be executed after development of entire Plot. The Trial Court noted the decision in Ravindra Mutenja and others vs Bhavan Corporation and others 1 that held that once the buildings are completed and possession handed over, the builder/owner cannot contend that as Society not formed and/or property not conveyed, he is entitled to take advantage of additional FSI that may become available because of subsequent events. The Trial Court decreed the suit in terms of prayer Clauses (a) to (c).
1 (2003) 5 Bom CR 595
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10. Heard Mr. Sandesh Patil for the Appellants and Mr. Karl Shroff for Respondent No.1.
11. Mr. Patil would submit that the conveyance, if any, had to be granted in accordance with the flat purchasers agreement. He points out the admissions of PW-1 that there is chawl on sub divided Plot No. B which belongs to Defendant No.2, that Plaintiff are not claiming conveyance in respect of the land on which the chawl and WC blocks are situated in Plot No.B and that the entire Plots are not developed. He has taken this Court through the Plan at Exhibit 31 and would point out that on Plot No. B there exists a chawl. He submits that the flat purchaser's agreement refers to Schedule which describes the land admeasuring 1502.49 square meters and that reference in the Schedule is to the ownership of the said area and does not refer to the area required to be conveyed to the Plaintiff -Society. He submits that Clause 4 and Clause 12 of the flat purchaser's agreement would make it clear that access road of 22 feet is required to remain in common to all sub-divided Plot which is the right of the builder and also that the builder's right to put up any additional structure is reserved until execution of the conveyance. He would further point out that the right reserved for putting up additional construction read with the cross examination of the Plaintiff would indicate that no right of conveyance in respect of area under the chawl and WC can be claimed rsk 7 of 24 FA-888-18-F30.doc by the Plaintiff-Society. He has taken this Court in detail through the judgment of the Trial Court and would contend that the Trial Court has failed to consider Clause 12 of the flat purchaser's agreement reserving the right of the builder to put up additional construction. He would submit that the Trial Court while considering the evidence has failed to deal with the admissions of the Plaintiff that they are not seeking conveyance of the land beneath the chawl and WC and that the Trial Court has not given any finding as regards the right of the Defendants to utilise the FSI/TDR. He submits that the suit property is sub-divided Plot No.B and no conveyance can be granted in respect of land beneath the chawl and WC until the entire property has been developed.
12. Per contra, Mr. Shroff, learned counsel for the Respondent would submit that it is specific finding of the Trial Court, on perusal of the flat purchasers agreement that there is no stipulation in the agreement about development of entire Plot of land. He submits that the Trial Court has rightly considered the relevant Clauses of the flat purchasers agreement and has come to a definite finding that the Defendants are illegally avoiding to execute the conveyance and that the Defendants have failed to prove that the property is not fully developed. He would point out that what was required to be conveyed as per the flat purchaser's agreement was the entire Plot No. B which rsk 8 of 24 FA-888-18-F30.doc refers to area admeasuring 1502.49 square meters as per the sanctioned plan. He submits that the Schedule in the flat purchaser's agreement refers to the area which is required to be conveyed and is referred in Recital 4 of the flat purchaser's agreement. He would further point out the deposition of PW-1 that the Defendant No.2 through their Architect has submitted their final plan to the Corporation for building completion certificate and the Corporation has accepted as completion vide endorsement on 23rd October 1989. He submits that once completion certificate has been issued as per MOFA agreement, the land is required to be conveyed to the Society. In support of his submission,he relies upon the decision in the case of M/s. Dosti Corporation Vs. Sea Flama Co-operative Housing Society and Ors.2
13. He submits that in the present case the layout plan which is on record would indicate that no further construction was proposed. He submits that learned Single Judge in M/s. Dosti Corporation (supra) following the decision in the case of Ravindra Mutenja (supra) and Madhuvihar CHS, Mumbai vs. Jayantilal Investments, Mumbai & Ors.3 has held that if additional construction which is not part of the layout is proposed by the developer, consent of the flat purchaser's is required and the developer cannot contend that because he has not 2 (2016) SCC Online Bom 1836 3 (2010) 6 Bom CR 517 rsk 9 of 24 FA-888-18-F30.doc formed the Society and because he had not conveyed the property, he can take advantage of the additional FSI. He submits that it is the consistent view that if subsequently FSI becomes available under the development control rules it will be available to the Society to whom the land has been conveyed. He would submit that the Defendants therefore cannot avoid the conveyance on the ground that the developers are entitled to the additional FSI in accordance with the flat purchaser's agreement.
14. The following points would arise for determination:
(i) Whether the Plaintiff is entitled to conveyance of sub-
divided Plot No. B with undivided common rights in 22 feet internal road and 15% recreation ground ?
(ii) Whether the conveyance in favour of the Plaintiff can be executed only upon development of the entire Plot of land as the right to utilise the additional/ unconsumed FSI vested in the Defendants ?
AS TO POINT NO (i):
15. The undisputed fact is that the Defendant No 3 had entered into Agreement with the individual flat purchasers under Section 4 of MOFA. The Plaintiff has produced the Agreement for Sale dated 30 th June, 1982-Exh 24. The model agreement in Form V under Rule 5 of rsk 10 of 24 FA-888-18-F30.doc the Maharashtra Ownership Flats Rules, 1964 (Rules of 1964) came to be prescribed in the year 1987 and in the present case the agreements with the flat purchasers have been executed in the year 1982. The rights and obligations of the parties will therefore be governed by the terms and conditions of the flat purchaser's agreement.
16. Under Clause 4 of the Agreement for sale, the residential building was to be constructed on sub divided Plot No.B of Survey No 4(a) pt and 5(a) pt and the access of 22 feet wide to remain common to all the subdivided Plots with right reserved to the builders. Clause 12 of the Agreement reserves the right to the Defendant No 3 to make additions, raise storeys or put up additional structures until the execution of the Conveyance. Clause 30 of the Agreement provides for execution of assignment in favour of the Society after the building is complete and ready and after registration of the Society and after all flats are sold with all dues received from the various flat purchasers.
17. As per the covenant contained in Clause 30, the obligation was upon the Defendant No 3 to execute assignment in favour of the Society upon the building being ready and fit for occupation, the Society being registered, all flats being sold and all dues received by the Defendant No 3. PW-1 has deposed that the completion rsk 11 of 24 FA-888-18-F30.doc certificate was received on 23rd October, 1989 and Society was registered on 20th September, 1991. The issuance of completion certificate and registration of Society in the year 1991 has remained uncontroverted. Thus the right of the Society to receive Conveyance ripened in the year 1991 itself.
18. DW-1 has deposed that the Defendant No 3 has developed only portion of the said larger property and there are various structures of the owners on the remaining property. He has deposed that the development is not completed and no conveyance can be granted until the entire development of layout is completed and Federation of Societies is formed and takes charge of the entire larger portion of land.
19. The agreement between the parties has been executed under the provisions of MOFA. The statutory scheme of Section 11 of MOFA casts an obligation upon the Promoter to take all necessary steps to complete his title and convey to the organisation of person, who takes flats, which are registered either as co-operative Society or company or association of apartments, his right, title and interest in the land and building by executing a document in that regard in accordance with the agreements executed under Section 4 of the MOFA and if no period for execution of conveyance is agreed upon, the Promoter is obliged to execute the conveyance within the prescribed period. Rule rsk 12 of 24 FA-888-18-F30.doc 9 of Rules of 1964 framed under MOFA provides that in event no period for conveying the title of the Promoter to the organisation of flat purchasers is agreed upon, the conveyance has to be executed within four months from the date on which the Co-operative Society is registered.
20. The evidence on record establishes that the pre-requisites stipulated in Clause 30 of the Flat Purchaser's agreement for execution of assignment has been fulfilled. Further the statutory provisions cast an obligation on the Promoter to execute the conveyance within period of four months from date of registration of Society, and in the present case, the Co-operative Society has been registered on 20th September, 1991 and thus the Plaintiff was entitled to conveyance from Defendant No 3.
21. The point arising for determination is not limited to the right of conveyance but also the entitlement of Plaintiff to sub-divided Plot No. B along with common rights to the access road of 20 feet and 15% recreation ground.
22. In the cross examination, PW-1 has stated that entire Plot is admeasuring 4943.20 square meters and building is constructed on Plot No. B admeasuring 1502.49 square meters. He has further admitted that there is a chawl on Plot No.B belonging to Defendant No 2. He has further admitted that the Plaintiff are not claiming rsk 13 of 24 FA-888-18-F30.doc conveyance in respect of land on which the Chawl and WC blocks are situated in Plot No.B. He has further admitted that entire Plots are not developed. The admission about existence of chawl on Plot No.B does not obviate the obligation to convey the property when the area statement in completion plan shows the area of Plot No.B to be 1502 square meters and the available built up area at 1502 square meters.
23. In the written statement filed by the Defendant No 1 and 2, it is stated that there is an old structure standing on part of the property occupied by tenants/relatives of Defendants. However, they have not stepped in the witness box. The Defendant No.4 has deposed that there are various structures /tenements of the owners on the remaining property but has not deposed specifically about the area occupied by the structures. In cross examination he has admitted that he is not aware whether there was reference to Chawl in the agreement or in the written statement.
24. There is no mention of the existing structures in the Flat Purchaser's agreement executed by the Defendant No 3. In the Recital of the Agreement, the area of sub-divided Plot on which the construction is proposed is mentioned at 1502.49 square meters and referred to as "said land" and that the Builder has proposed to erect residential building on said land of ground and six upper floors.
25. The conveyance in favour of the Plaintiff Society will be rsk 14 of 24 FA-888-18-F30.doc governed by the terms and conditions of the Flat Purchaser's agreement. The agreement finds no mention of any structures on the sub divided Plot and states the area of Plot No. B as 1502.49 square meters. There is no evidence produced on record to demonstrate the land area underneath the existing structure and the W.C. There is no counterclaim filed by the Defendant No 3 claiming right title and interest in the land area underneath the existing structure and W.C.
26. The relief of conveyance will be governed by the contract entered into between the parties which refers to the area of Plot No.B at 1502 square meters. Clause 4 of the agreement refers to the construction of the Plaintiff's building on Plot No.B and to the common rights to 22 feet wide access road. There is no dispute raised as regards the common rights in 22 feet wide access road and 15% R.G.
27. The plaint seeks relief of enforcement of the agreement executed under Section 4 of MOFA. In the absence of any mention of existing structure on Plot No.B in the flat purchasers agreement coupled with the absence of counterclaim by Defendants claiming any ownership rights in any portion of Plot No. B, the Plaintiff is entitled to conveyance of the area of Plot No. B. Point No (i) is answered accordingly in favour of the Plaintiff.
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AS TO POINT NO (ii):
28. DW-1 has deposed that only a portion of larger land has been developed and no conveyance can be granted until the entire development of the layout is completed and Federation of Societies constructed on the said layout is formed. There is no clause in the flat purchaser's agreement about formation of Federation of Societies. As discussed in answer to Point No. (i), all pre-requisites for execution of conveyance has been fulfilled as per Clause 30 of the Flat Purchasers Agreement. Under Section 11 of MOFA read with Rule 9 of Rules of 1964, the Promoter is under an statutory obligation to convey to the organisation of Flat Purchasers, his right title and interest in the land and building within the prescribed period of four months from date of registration of the Society. The provisions do not permit the deferment of the execution of the Conveyance beyond the prescribed period of four months from registration of the Society. Admittedly the Society has been registered on 20th September, 1991 and therefore the Defendants were statutorily mandated to convey the property. The Defendants cannot seek shelter of Clause 12 of the Flat Purchasers agreement to contend that till the execution of conveyance in favour of the Society, the Defendants had the right to put up construction. The Defendants cannot default in complying with its statutory obligation of conveying the property within the rsk 16 of 24 FA-888-18-F30.doc prescribed period and then take advantage of its own default to deny conveyance to the Plaintiff.
29. The defence of the Defendants is that the conveyance cannot be granted until the entire development in the layout is carried out. To enable the Defendants to carry out further development in sub- divided Plot No.B, the Defendants should be entitled to utilise the unconsumed/residual FSI or TDR on the said Plot. Even if it is accepted that there is an existing structure on Plot No. B, the Defendant will not be entitled to consume the FSI of Plot No. B for development of the said structure without the consent of the flat purchasers of Plaintiff Society.
30. The Recital in the Flat Purchaser's agreement is that the Builder has started construction of the said building on the said land of ground and six upper floors consisting of 28 flats. Clause 1 and 12 of Agreement reads as under:
"1. The Builders are constructing a building consisting of ground with 6 upper floors with 28 flats, 4 flats on each floor as per the plans, designs and specifications passed and approved of by the Municipal Corporation of Greater Bombay and seen by the Buyer with such modifications as may be required by the Bombay Municipality."
12. The party of First Part shall have right until the execution of Conveyance in favour of the proposed Society or Limited Company to make additions, raise storeys or put up additional structures as may be permitted by Panchayat, and/or other competent authorities such additions, structures and storeys will be the sole property of the party of First Part who will be entitled to dispose it off in any manner rsk 17 of 24 FA-888-18-F30.doc they choose and the party of the Second Part hereby consents to the same."
31. Under Section 7 of MOFA, after the plans and specifications are disclosed there can be no alteration or additions in the structure of the building without the previous consent of all the persons who have agreed to take the flats in such buildings. By virtue of amendment to Section 7A, it was clarified that Clause (ii) of sub- section 1 of Section 7 will not apply in respect of construction of any other additional building or structures constructed in the layout.
32. In case of Ravindra Mutneja (supra), the learned Single Judge of this Court has held thus:
"The real issue as has been noted earlier is what is the stage up to which the developer/owner can put up additional construction after the building in terms of the registered plan has been constructed and occupied. In my opinion, once the buildings shown in the approved plan submitted in terms of the regulations under an existing scheme filed before the authorities under MOFA Act, have been completed and possession handed over, the builder/owner cannot contend, that because he has not formed the Society and/or not conveyed the property by sale deed under the Act he is entitled to take advantage of any additional F.S.I. that may become available because of subsequent events. That would be so at the stage the building is under construction or the building is not completed and/or purchasers are not put in occupation provided such building forms part of the development plan and/or layout plan already approved. Subsequent amendment of the layout plan after the building plan is registered under MOFA, without the consent, prima facie, of the flat purchasers would not be permissible. It may be possible to accept that the development plan could be modified as long as the right of the purchasers and the benefits which they are entitled to including recreational and open areas are not effected by the revised development plan. Once the building is completed and the purchasers are put in occupation in terms of plan filed and the time to form the Society or convey the property in terms of the agreement or the rules framed under MOFA is over the permission of such purchasers would be required. (Emphasis supplied) rsk 18 of 24 FA-888-18-F30.doc In the instant case, the building completion certificate for the plaintiffs building, was issued in the year 1997. The builder/owner defendant Nos. 1, 3 and 4 had to put up the construction, based upon the permission/license granted. The defendant Nos. 1, 3 and 4 had to construct the building and to convey the title by sale deed in terms of Rule 9. If property had been conveyed, prima facie the remaining FSI or FSI which become subsequently available on the facts of the case, would be to the Society to whom the land had to be conveyed. The record shows that the building was approved in December, 2001. It cannot prima facie, be said that defendant Nos. 1, 2, 4 and 5 have any rights under which they are entitled to put up an additional building contrary to section 7A of the Act." (Emphasis supplied)"
33. The Learned Single has held once the building shown in the approved plan has been completed and possession handed over, the builder cannot contend that because he has not formed the Society and not conveyed the property under MOFA, he is entitled to take advantage of the additional FSI that may become available because of subsequent events. Once the building has been completed and the purchasers are put in possession in terms of plan filed and time to form the Society or convey the property in terms of the agreement or the rules framed under MOFA is over, the permission of such purchasers would be required.
34. In Noopur Developers vs Himanshu V. Ganatra 4, this Court, while considering the clauses in the agreements executed in that case giving right to promoter to carry out additional construction by reason of additional FSI being available, has held that the clauses has to be considered in context of requirement of disclosure of the entire 4 (2010) 3 Bom CR 145 rsk 19 of 24 FA-888-18-F30.doc scheme to be carried out in the layout. The Promoter is required to make disclosure concerning the inherent FSI and also at the stage of layout plan he is required to declare whether the Plot in question in future is capable of being loaded with additional FSI/floating FSI/TDR. Necessarily therefore, if the entire scheme including the information about TDR/FSI is not disclosed then the promoter loses the right to use the residual FSI.
35. In the present case, there is no disclosure concerning the inherent FSI/TDR etc and the complete scheme was not disclosed. The flat purchasers agreement refers to the construction on Plot No. B of ground plus six upper floors. Sufficient guidance can be taken from the decision in Bajranglal Eriwal and others vs Sagarmal Chunilal and others5 where the Court has held as under:
"The provisions of the Act, as construed now by the judgment of the Supreme Court, would leave no manner of doubt that the statutory bar upon the promoter altering the structure of a flat agreed to be purchased under Clause (i) of sub-section (1) of section 7 and of making any other alterations or additions in the structure of the building under Clause (ii), can be lifted only subject to a disclosure by the developer of the entire project or scheme. The previous consent that is contemplated by sub-section (1) of section 7 must be an informed consent. An informed consent is one which is freely given, after a flat purchaser is placed on notice by a complete and full disclosure of the project or scheme which the builder intends to implement. The consent that is contemplated by sub-section (1) of section 7 is, therefore, a specific consent which is relatable to the particular project or scheme of the developer which is intended to be implemented. The observations of the Supreme Court in Jayantilal Investments, bring about a balance between the rights of the promoter on the one hand and a flat purchaser on the other. There is a statutory embargo upon the making of alterations either in an 5 (2008) 6 Bom CR 371 rsk 20 of 24 FA-888-18-F30.doc individual flat or in respect of the structure of the building after the disclosure of the plans and specifications of the building. This embargo was introduced by the legislature specifically to obviate the kind of malpractices that were taking place. The lifting of the embargo is conditional on the grant of previous consent. The lifting of the embargo must be confined strictly within the parameters which have been envisaged by the legislature and it is in that context the Supreme Court has held that the consent can be regarded as valid if there has been a full disclosure by the developer of the entire project which he has to implement. Thus construed, there can be no manner of doubt that it is not open to a developer/promoter to rely upon a general consent. To allow such generalized consents to operate would defeat the public policy which underlies the provisions of sub-section (1) of section 7 as interpreted by the Supreme Court. It is a well settled principle of statutory interpretation that the interpretation which the Court places on a statute must be purposive, so as to achieve the object and intent of the legislature. The Maharashtra Ownership Flats Act, 1963, is an Act to regulate the promotion of the construction of the sale and management, and the transfer of fiats on ownership basis. The preamble specifically provides that the State Government was conscious of the fact that on account of an acute shortage of housing, there were "sundry abuses, malpractices and difficulties relating to the promotion of the construction of, and the sale and management and transfer of flats taken on ownership basis."
The legislature has found that such malpractices not merely existed, but they were increasing. It is in this background that the Court must adopt a purposive interpretation of law and that interpretation which would defeat the object of the legislature must be eschewed." (Emphasis supplied)
36. In Neena Sudarshan Wadia vs Venus Enterprises 1984 (2) Bom.C.R 505 , the Court held as under:
"Now, we have to understand the meaning of the word 'consent' as used in Clause (ii) of sub-section (I) of section 7. After the plans and specifications of the building as approved by the local authority are disclosed or furnished to a person who agrees to take a flat from the promoter, a prohibition is claimed on the promoter not to make any alterations in the building or constructed additional structures. This prohibition 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 have agreed to take the flats. For the purpose of obtaining consent, a promoter must ask the flat owners for their permission and reveal to them the nature of the proposed alterations to the building or of the additional structures to be constructed as, without such disclosure, the flat owners cannot know for what work the permission is sought and for what work they are required to consent.
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Again in response to a request for consent, there must be an affirmative acceptance from all the persons who have agreed to take the flats. The word "consent" in the context of the section does not mean implied consent such as by conduct or acquiescence or circumstance that might be consent. Consent in this section is to be understood to mean as positive consent to specific items of work or alteration to be carried out or particular additional structure to be built by a promoter. This seems to be the object of enacting these provisions of obtaining previous consent of the flat owners as otherwise the malpractices and irregularities intended to be eradicated by this enactment would continue to flourish and the promoters would not be deterred by the penal provision of section
13. 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(I)(i) or
(ii) for such a blanket consent or authority would sew up or nullify these provisions." (Emphasis supplied)"
37. In Malad Kokil Co-operative Housing Society Ltd vs The Modern Construction Co. Ltd6 , this Court noted the decision in Grand Paradi Co-op Hsg Society Ltd vs Mont Blanc Properties & Industries Pvt Ltd 7 which held in paragraph 10 as under:
"10. It is thus clear that the builder is thus entitled to raise additional structures if he discloses the additional structures in the layout plan itself at the time he sales the flats. No consent of the flat owners is necessary for raising additional structures. But if the additional structures are not disclosed in the layout plan then previous consent of the flat owners is necessary...."
38. The settled legal position is that for the consent to be an informed consent as contemplated under MOFA, there must be full and complete disclosure of the nature and extent of construction proposed by the developer. There cannot be an implied consent such 6 (2012 SCC Online Bom 1310).
7 2011 (5) Bom. C. R. 249.
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as by conduct or acquiescence. Similarly the blanket consent obtained at the time of entering into flat purchasers agreement or at the time of handing over possession is not held to be consent under Section 7(1) of MOFA. Examining the facts of the present case, in light of the clear enunciation of law, the blanket consent of the flat purchaser as covenanted in Clause 12 of the Agreement cannot constitute consent as contemplated under Section 7 of MOFA.
39. The above discussed judicial pronouncements has laid down in unequivocal terms that without the entire layout plan being placed before the flat purchasers, the blanket consent even if given will not constitute an informed consent of the flat purchasers and even for constructing additional structures, if the entire scheme is not placed before the flat purchasers, the consent of the flat purchasers will be required.
40. When the legal position makes it clear that it is the informed consent of the flat purchasers which will entitle the Defendants to utilise the unconsumed FSI/TDR for raising any construction, which consent is admittedly absent in the present case, the Defendants cannot carry out any further development in the layout and grant of conveyance cannot be denied on the ground that the same will be granted only after the entire development of the layout.
41. Accordingly, I answer Point No (ii).
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FA-888-18-F30.doc
42. In light of the above, the First Appeal fails and stands dismissed. In view of disposal of Appeal, Interim/Civil Applications, if any, do not survive for consideration and stand disposed of.
[Sharmila U. Deshmukh, J.]
43. At this stage, request is made for continuation of interim relief which is operating since 7th February 2019. The interim relief is extended for a period of six weeks from the date of uploading of this judgment.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 12/11/2024 19:41:07