Bombay High Court
Bhagwati Greens Phase 2 Allottes Aop vs Bhagwati Developers And Anr on 15 March, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
501-ASWP-3346-2023.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3346 OF 2023
Bhagwati Greens Phase 2 Allottees AOP ...Petitioner
Versus
Bhagwati Developers & Ors ...Respondents
Mr Cherag Bulsara, i/b Vishwajeet Mohite, for the Petitioner.
Ms Pinky Bhansali, for the Respondent.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 15th March 2023
PC:-
1. We allowed production of the matter on mentioning this morning. Mr Bulsara tells us that notice has been given to the contesting Respondent No. 1, Bhagwati Developers. City and Industrial Development Corporation ("CIDCO") has also been AMOL PREMNATH JADHAV given notice. The dispute pertains to a development project at Digitally signed by AMOL PREMNATH JADHAV Kharghar, Navi Mumbai. This is a project known as "Bhagwati Date: 2023.03.16 10:40:36 +0530 Greens 2". The Petitioner is an association of flat purchasers. The site is at Plot No. 5, Sector 23, behind Iskon Temple, Khargar, Navi Mumbai 410 210. The plot area is over 8300 sq mtrs. This a project registered with Maharashtra Real Estate Regulation Authority ("MahaRERA").
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2. The site as originally contemplated and as shown in the brochures, consists of three wings: Wing A, Wing B and Wing C. There are altogether 200 units. The association is of purchasers of 103 of these 200 units.
3. Interspersed between the residential towers or wings are various common amenity areas, including a lawn, a club house, a community hall, a swimming pool, a play centre, and a rectangular open area called a multi play area. In the brochures, this is shown as item 12 in the Legend.
4. The three wings have been constructed and that construction is now complete. The Petitioners say that an RTI query revealed that now in the multi play area which lies squarely between Wing A and Wing B, a fourth tower is proposed. A revised layout of 2023 by the 1st Respondent shows this plot to be used for future development.
5. Mr Bulsara submits that this is a straight forward case under Section 7 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act 1963 ("MOFA") and is covered by decisions of this Court including decisions of this Court in Lakeview Developers v Eternia CHSL & Ors1 and Dosti Corporation v Sea Flama Cooperative Housing Society Ltd.2 1 2015 SCC OnLine Bom 3824 (DB); affirming Eternia CHSL v Lakeview Developers & Ors, 2015 SCC OnLine Bom 723.
2 2016 SCC OnLine Bom 1836.
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6. The association made a complaint to the MahaRERA. It seems that on 6th March 2023, at the first hearing, when both sides were present, the authority said that since the complainant desired a decision on merits although the Respondent was ready for conciliation, the matter was to be heard on merits "as per seniority", presumably thereby meaning in due course. No order of status quo was passed and there was no consideration of either the law or the facts.
7. Mr Bulsara points out that in a similar compliant on an adjacent plot by allottees of phase 3 of another Bhagwati Greens project, on 17th May 2022 another Bench of the same authority granted a status quo order.
8. Prima facie it is difficult to see how some sort of protective order was found not to be necessary until at least Affidavits in Reply were filed and parties were more fully heard. The 6th March 2023 order was clearly a first hearing. It says so.
9. If there was no minimal protection then the impugned development would progress and the entire complaint could well be rendered infructuous by the time it came up "as per seniority".
10. We believe the law in this regard is well settled but we will undoubtedly need to hear the 1st Respondent developer. It has been given notice. We are shown a copy of the notice which was sent by email just this morning. This is clearly insufficient time. But this does not mean that there should be no time-limited interim order.
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11. List the matter on 29th March 2023. The Petitioner's Advocate will give fresh notice and the matter will be listed high on board on that day. A copy of this order is to accompany that notice. CIDCO is represented. It really has very little role to play in the matter.
12. Until the next date, there will be a status quo as of today on site. No further development of any kind is to take place on the disputed site mentioned above until the next date. We make it clear that if the 1st Respondent desires, it can proceed to submit its plans for processing, but those plans, if sanctioned, are not to be acted on and there is to be no work at site until the next date.
13. We also make it clear that if we find that the representation made to us today is in any way incorrect, then the Petitioners may be held liable to make good any loss that might have been suffered by 1st Respondent developer.
(Neela Gokhale, J) (G. S. Patel, J)
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15th March 2023