Bombay High Court
Kedar C Berde vs Rishabraj Housing And Anr on 15 June, 2015
Author: Roshan Dalvi
Bench: Roshan Dalvi
1 NMS.1519/13-S.760/13-
CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1519 OF 2013
IN
SUIT NO. 760 OF 2013
WITH
CHAMBER SUMMONS NO. 1123 OF 2014
IN
SUIT NO. 760 OF 2013
WITH
NOTICE OF MOTION (L) NO. 1961 OF 2014
IN
SUIT NO. 760 OF 2013
Kedar Chandrakant Berde ...Plaintiff
Vs.
Rishabraj Housing & Anr. ...Defendants
Mr. Kaushal A. Tamhane a/w. Pranesh J. Gada,
a/w Ms. Meenakshi Dhanuka
i/b. M/s. Dhanuka & Partners for the Plaintiff
Mr. G.N. Salunke a/w. Mr. S.R. Sharma for Defendant No.1
Mr. Shreepad Murthy i/b. Pinky M. Bhansali for Defendant No.2
CORAM : MRS. ROSHAN DALVI, J.
Date of reserving the Judgment : 9th June, 2015
Date of pronouncing the Judgment : 15th June, 2015
JUDGMENT:
1. The plaintiff has sued for entitlement of flat No.702 admeasuring 830 sq. ft carpet area on the 7 th floor of the suit building being redeveloped by defendant No.1, for execution of a fresh permanent alternate accommodation in respect of ::: Downloaded on - 18/06/2015 23:58:52 ::: 2 NMS.1519/13-S.760/13- CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6) the suit flat and for ancillary reliefs.
2. The plaintiff has taken out the notice of motion for the usual injunctions and the appointment of a Court Receiver. The defendant has taken out the other notice of motion for granting to the plaintiff a judgment on admission in terms of prayers (b) and (c ) (which are the main reliefs as aforesaid) and in the alternate for restriction of the interim order to flat No.702 admeasuring 830 sq. ft carpet area in the suit building.
3. There have been various arrangements between the parties, the last of which is for grant of the aforesaid flat No.702 admeasuring 830 sq.ft carpet area as per the plaintiff's prayer. The plaintiff has claimed the said relief in prayer (b) to the plaint and the defendant accepts the grant of the said relief.
4. The parties claim under the initial agreement between the parties for redevelopment of defendant No.1 society in which the plaintiff is a member dated 14 th October, 2010, Exhibit-B to the plaint.
5. Under clause 6 of the said agreement the plaintiff claims that any additional FSI due to any change in the Development Control Regulations for Greater Mumbai, 1991 ::: Downloaded on - 18/06/2015 23:58:52 ::: 3 NMS.1519/13-S.760/13- CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6) (D.C. Rules) a Government policy would enure to the plaintiff as the member of defendant No.2 society and the developer, defendant No.1, equally.
6. After the execution of the said agreement the D.C Rules indeed changed. Fungible FSI came to be provided under Rule 35(4) of the DC Rules to the extent of 35% for residential development. The plaintiff does not accept judgment in terms of prayer (b) of the plaint. The plaintiff would claim that aside from 830 sq. ft of carpet area the plaintiff would be entitled to further 35% of the area and thus would be entitled to a flat of more than 1000 sq. ft of area (the exact area not being specified).
7. The plaintiff's flat is 417 sq. ft in area. That would be the specific entitlement of the plaintiff. The plaintiff would be eligible to get that area under any redevelopment. However under the agreement between the parties the plaintiff was to obtain an additional 104 sq. ft of area as a free component. The plaintiff further agreed to purchase 309 sq. ft of area. Thus making out 830 sq. ft of carpet area. The plaintiff further demands an additional 35% of his initial area of 417 sq. ft.
8. The defendant would claim that the plaintiff would be entitled to either what is agreed under the agreement which ::: Downloaded on - 18/06/2015 23:58:52 ::: 4 NMS.1519/13-S.760/13- CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6) would total to 830 sq. ft carpet area or to the entitlement under the new DC Rules 35(4) relating to fungible compensatory FSI.
9. Counsel on behalf of the defendant drew the Court's attention to proviso No.3 of the said D.C Rules, which runs thus:
"Provided further that such fungible compensatory FSI for rehabilitation component shall not be used for free sale component and shall be used to give additional area over and above eligible area to the existing tenants / occupants".
10. It is seen that under the said proviso provides for the fungible FSI of the additional area over and above the eligible area. The eligible area for the plaintiff is 417 sq. ft. The additional area would be 35% of 417 sq. ft as per DC Rule 35(4) itself. The plaintiff would, therefore, be entitled to 417 + 145.5 = 562.5 sq. ft of area.
11. It is seen that the case of the plaintiff of claiming under the agreement as also under the development rules cannot be accepted. The claim of 50% of the additional FSI under clause 6 of the agreement would require the plaintiff to show what is precisely the additional FSI. The plaintiff has not ::: Downloaded on - 18/06/2015 23:58:52 ::: 5 NMS.1519/13-S.760/13- CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6) shown that aspect. Counsel on behalf of the plaintiff has not argued upon such an aspect.
12. It is argued that the developer has amended the initial plan and modified the same to claim the fungible FSI under the new rule 35(4) of the DC Rules. It is, therefore, argued that the benefit of the fungible FSI must be given to the plaintiff as also the other members. That is acceptable.
However once the new rules are adopted and accepted by the developer as also the plaintiff, the initial agreement would stand superseded by the statutory entitlement. No tenant or occupant can claim both, the earlier contractual as also the later statutory right.
13. The plaintiff would certainly be entitled to the eligible area of 417 sq. ft in either case. Under the agreement the plaintiff would get 104 of free area. Under the statute the plaintiff would get 415.5 sq. ft as area in lieu of fungible FSI.
Hence the plaintiff would be entitled to either 521 or 562.5 sq. ft area free of cost.
14. The plaintiff has agreed to purchase on payment 309 sq. ft of area to make up the total 830 sq. ft of carpet area of his flat. Since the plaintiff would be entitled to 35% of the eligible area free of cost, the plaintiff would be entitled not to make payment for 309 sq. ft of area but to make payment for ::: Downloaded on - 18/06/2015 23:58:52 ::: 6 NMS.1519/13-S.760/13- CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6) only 267.5 sq. ft of the remaining area. The plaintiff has made payment of Rs.14 lakhs from the agreed amount payable of Rs.25 lakhs. The plaintiff would, therefore, obtain a flat of 830 sq. ft carpet area being flat No.702 on 7 th floor of the suit building to be reconstructed by defendant No.1 upon payment for lesser area at the agreed rate.
15. However the plaintiff would not be entitled to any flat of over 1000 sq. ft area as is the argument on his behalf even under the new D.C Rules which are relied upon by the plaintiff.
16. The plaintiff has sought amendment of the plaint in Chamber Summons No. 1123 of 2014 to which the defendants have no objection. The amendment only seeks to rely upon the new D.C. Rules and the plaintiff's contentions with regard thereto. The D.C. Rules have to be applied and interpreted. Hence the above notices of motion have been argued by both the parties upon the new D.C. Rules setting out their respective contentions.
18. Hence the following order:
1. The defendant No.1 shall not sell, alienate, encumber or create any third party rights in respect of ::: Downloaded on - 18/06/2015 23:58:52 ::: 7 NMS.1519/13-S.760/13-
CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6) flat No.702 on the 7th floor of the new building being constructed by defendant No.2 admeasuring 830 sq. ft carpet area except to the plaintiff.
2. The plaintiff is entitled to a judgment in terms of prayer (b) upon the admission of defendant No.1 to the entitlement of the plaintiff to flat No.702 admeasuring 830 sq. ft carpet area in the new building being constructed and redeveloped by defendant No.1.
3. The plaintiff would be entitled to 562.5 sq. ft carpet area free of cost from 830 sq. ft of carpet area of the flat.
4. The plaintiff shall be entitled to purchase the remaining 267.5 sq. ft of carpet area of the said flat as agreed by and between the parties for which Rs.14 lakhs has already been paid by the plaintiff to the defendant No.1.
5. The plaintiff shall be bound to pay only the remainder of the amount for the said purchase at the agreed rate.
6. Defendant No.1 shall execute a fresh permanent alternate accommodation / sale agreement for flat ::: Downloaded on - 18/06/2015 23:58:52 ::: 8 NMS.1519/13-S.760/13- CHS.1123/14-S.760/13-NMSL.1961/14-S.760/13-Judgment(6) No.702, admeasuring 830 sq. ft carpet area in the new building being constructed and redeveloped by defendant No.1 in favour of the plaintiff.
7. The plaintiff shall be entitled to amend the plaint as per the schedule to Chamber Summons No. 1123 of 2014 for the sake of record as per the plaintiff's application.
8. The aforesaid Notices of Motion and Chamber Summons are disposed off accordingly.
(ROSHAN DALVI, J.) ::: Downloaded on - 18/06/2015 23:58:52 :::