Bombay High Court
& Ors vs M/S.Zenal Construction on 21 January, 2009
Author: S. J. Vazifdar
Bench: S. J. Vazifdar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.884 OF 2008
IN
THE MUMBAI CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.95 OF 2007
IN
S.C. SUIT NO.89 OF 2007
Jitendera Santilal Shah
& Ors. ..Appellants
ig (Org.Plaintiff)
Vs.
M/s.Zenal Construction
Pvt. Ltd. ..Respondent
Mr.Anil R. Mishra for the Appellants.
Mr. V.Y. Sangalikar for Respondent no.1.
CORAM
: S. J. VAZIFDAR, J.
DATE OF
RESERVING
THE JUDGMENT : 18TH DECEMBER, 2008
DATE OF
PRONOUNCING
THE JUDGMENT : 21ST JANUARY, 2009
ORAL JUDGMENT :
This is the Plaintiff's appeal against the order of the learned Judge of the Mumbai City Civil Court, dismissing ::: Downloaded on - 09/06/2013 14:16:04 ::: 2 their Notice of Motion. The Appellants are the Plaintiffs and the Respondent is the Defendant.
2. The Appellants filed the suit for a declaration that the Defendant is not entitled to amend the plans sanctioned on 5.12.2002 regarding the development of the suit property;
for a declaration that the amended plans are not binding upon them; for an order directing the Defendant to provide the building occupation certificate in respect of the building in which their flats are situated and to execute a conveyance in favour of the Appellants society. The Appellants have also sought certain reliefs regarding construction and/or repair of certain facilities and disclosure of amounts collected from new flat purchasers and a cellular operator.
By prayer (l) the Appellants have sought a permanent injunction restraining the Defendants from carrying out any construction work on the suit property contrary to the plan sanctioned on 5.12.2002 and/or putting any construction beyond Wings "A" and "B" of the suit property.
By prayer (m) the Appellants have sought an order ::: Downloaded on - 09/06/2013 14:16:04 ::: 3 restraining the Defendants from parking their vehicles in the compound of the suit property.
The Appellants took out a Notice of Motion seeking interim reliefs in terms of the above reliefs. The learned Judge by the impugned order, dismissed the Notice of Motion.
3. An agreement dated 12.2.2001 was entered into between the Defendant as the developer and the owner of the property one Y.J. Dave. The owner assigned and alloted the development rights in respect of the suit property which consisted of land together with a building standing thereon known as "Ambika Bhavan".
4. The twelve Appellants are members of the proposed society. They, alongwith twenty three others were tenants in respect of the premises in their occupation in a building which existed upon the suit property.
Agreements were entered into between the Defendant and twenty tenants including the Appellants. The remaining tenants apparently settled with the Defendants and ::: Downloaded on - 09/06/2013 14:16:04 ::: 4 thereupon left the suit property.
Identical agreements were entered into between each of the Appellants and the Defendant. A sample of one such agreement dated 6.8.2001 entered into between Appellant no.3 and the Defendant was relied upon. The original owner was a confirming party to these agreements.
5. On 5.12.2006, the Bombay Municipal Corporation sanctioned the plans for the redevelopment of the suit plot.
Apparently, the plan was sanctioned earlier on 17.8.2002 and was amended on 5.12.2002. In any event, that the construction was required to be carried out as per the plan sanctioned on 5.12.2002 is not in dispute. The commencement certificate was issued on 21.3.2003.
As per the plan sanctioned on 5.12.2002, there were open spaces within the said plot on all sides of the building proposed to be constructed.
As per this plan, the Defendant constructed twenty flats, ten shops and a basement and handed over possession thereof to the respective Appellants on 1.4.2005.
::: Downloaded on - 09/06/2013 14:16:04 ::: 56. The Defendant subsequently amalgamated the suit plot with the adjoining plot and sought and obtained sanction from the concerned authorities modifying the plans.
By an agreement dated 21.3.2003 the Defendant acquired from one Sadashiv Dave, development rights in respect of the adjoining plot. The agreement was not produced before me. There is no dispute however that the Defendant is entitled to develop the adjoining plot and I therefore proceed on that basis.
The Defendant claims to have entered into independent agreements with the tenants of the adjoining plots as well and to have demolished the structure thereon.
The Defendant thereafter amalgamated the suit property with the adjoining property and sought and obtained the sanction from the Bombay Municipal Corporation for the amended plans submitted by it. The Defendant has stated that after the original plan was amended on 5.12.2002 there was a further amendment sanctioned on 9.9.2004 and thereafter again on 2.5.2007 and that as per the sanctioned plan dated ::: Downloaded on - 09/06/2013 14:16:04 ::: 6 2.5.2007 the Defendant is to construct two further wings on the adjoining property.
What is important to note is that admittedly a part of this construction will be upon the suit property and will touch, physically attach itself to the Plaintiffs' building on one side substantially.
7. The agreement dated 6.8.2001 was registered by the Plaintiffs alone on 8.11.2005. The commencement certificate which is one of the annexures at the time of registration refers only to the original two wings and not the additional wing, as per the amended plan dated 2.5.2007.
The photographs also indicate the same. It is also important to note that as a result of the modified plan the entire open space on one side of the suit property would be completely taken up by a part of the new construction.
8. Mr. Mishra, the learned counsel appearing on behalf of the Appellants submitted that in view of Section 7 of The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963, the ::: Downloaded on - 09/06/2013 14:16:04 ::: 7 Respondent was not entitled to amalgamate the adjoining plot and the suit plots and on the basis thereof, to amend the plans earlier sanctioned on 5.12.2002. He further submitted that the same materially affects the Appellants flats and the structure viz. the building, in which they are situated.
Sections 7 and 7A of The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (MOFA) read as under :-
"7. (1) After the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make-
(i) any alteration in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person;
(ii) any other alterations 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 building.
(2) Subject to sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid; and if any ::: Downloaded on - 09/06/2013 14:16:04 ::: 8 defect in the building or material used, or if any unauthorised change in the construction of brought to the notice of the promoter within a period of [three years] from the date of handing over possession, it shall wherever possible to be rectified by the promoter without further charge to the persons who have agreed to take the flats, and in other cases such persons shall be entitled to receive reasonable compensation for such defect or change.
Where there is a dispute as regards any defect in the building or material used, or any unauthorised change in the construction, [or as to whether it is reasonably possible for the promoter to rectify any such defect or change, or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be or is not, rectified by the promoter,] the matter shall, on payment of such fee as may be prescribed, [and within a period of three years from the date of handing over possession, be referred for decision-
(i) in an urban agglomeration as defined in clause (n) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976, to such competent authority authorised by the State Government under clause
(d) of section 2 of that Act, and
(ii) in any other area, to such Deputy Chief Engineer, or to such other Officer of the rank equivalent to that of Superintending Engineer in the ::: Downloaded on - 09/06/2013 14:16:04 ::: 9 Maharashtra Service of Engineers, of a Board established under section 18 of the Maharashtra Housing and Area Development Act, 1976.
as the State Government may by general or special order, specify in this behalf, such competent authority, Deputy Chief Engineer or, as the case may be, the other officer of a Board shall, after inquiry record his decision, which shall be final.] 7A. For the removal of doubt, it is hereby declared that clause (ii) of sub- section (1) of section 7 having been retrospectively substituted by clause (a) of section 6 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) (Amendment) Act, 1986 (hereinafter in this section referred to as "the Amendment Act"), it shall be deemed to be effective as if the said clause (ii) as so substituted had been in force at all material times; and the expression "or construct any additional structures" in clause (ii) of sub-section (1) of section 7 as it existed before the commencement of the Amendment Act and the expression "constructed and completed in accordance with the plans and specifications aforesaid" and "any unauthorised change in the construction "in sub-section (2) of section 7 shall, notwithstanding anything contained in this Act or in any agreement, or in any judgment, decree or order of any Court, ::: Downloaded on - 09/06/2013 14:16:04 ::: 10 be deemed never to apply or to have applied in respect of the construction of any other additional building or structures constructed or to be constructed under a scheme or project of development in the layout after obtaining the approval of a local authority in accordance with the building rules or building bye-laws or Development Control Rules made under any law for the time being in force.]"
9. It is not necessary for me to deal with the larger question raised by Mr. Mishra viz. that the plan sanctioned on 5.12.2002 could not be amended without the consent of the Appellants as the additional construction as per the amended plans was not a part of the scheme or layout disclosed by the Defendant at the time of entering into the agreement with the Appellants. It would have been necessary to consider this submission had the new construction been physically separate from the existing construction.
10. For the purpose of this Appeal from Order, it is sufficient to consider the Appellants entitlement to interim reliefs on the basis of the fact that the proposed new/additional construction by the Defendant admittedly touches the building in which the Appellants flats are situated ::: Downloaded on - 09/06/2013 14:16:04 ::: 11 as stated earlier.
11. In M/s. Jayantilal Investments v. Madhuvihar Co-
operative Housing Society & Ors., (2007) 9 SCC 220, the Supreme Court observed in paragraph 16 that the question which needs to be decided is whether one building with several wings would fall under the amended Section 7(1)(ii).
The question before me was thus expressly kept open.
Paragraph 20 of the judgment reads as under :-
"20. In the light of what is stated above, the question which needs to be examined in the present case is whether this case falls within the ambit of amended Section 7(1)(ii) or whether it falls within the ambit of Section 7-A of MOFA. As stated above, under Section 7(1) after the layout plans and specifications of the building, as approved by the competent authority, are disclosed to the flat takers, the promoter shall not make any other alterations or additions in the structure of the building without the prior consent of the flat takers. This is where the problem lies. In the impugned judgment, the High Court has failed to examine the question as to whether the project undertaken in 1985 by the appellant herein was in respect of construction of additional buildings or whether the project in the layout plan of 1985 consisted of one building with 7 wings. The promoter has kept the requisite percentage of land open as recreation ground/open space. Relocation of the tennis court cannot be faulted. The question which the High Court should have examined is: Whether the project in question consists of 7 independent ::: Downloaded on - 09/06/2013 14:16:04 ::: 12 buildings or whether it is one building with 7 wings? The answer to the above question will decide the applicability or non-applicability of Section 7(1)(ii) of MOFA, as amended. The answer to the above question will decide whether the time to execute the conveyance has arrived or not. This will also require explanation from the competent authority, namely, Executive Engineer, 'R' South Ward, Kandivali, Mumbai-400067 (Respondent 8 herein). In the dates and events submitted by the appellant promoter, there is a reference to the permission granted by ULC Authorities dated 16-11-1984 which states that the owner/developer shall construct a building with 7 wings. One needs to examine the application made by the promoter when he submitted the layout plan in 1985. If it is the building with 7 wings intended to be constructed in terms of the layout plan then the High Court is also required to consider the effect of the judgment in Ravindra Mutneja v. Bhavan Corpn. in which the learned Single Judge has held that if a building is put up as a wing of an existing building, it cannot be constructed without the prior permission of the flat takers. In that connection, the High Court shall also consider permission dated 16- 11-1984 under Section 21(1) of the ULC Act, application made to the competent authority when initial layout plan was sanctioned, applications for amendments to layout plans made from time to time and also agreements between promoter and flat takers." (emphasis supplied) 12(A). It is important to consider the judgment of this Court in Ravindra Mutenja & Ors. v. Bhavan Corporation & Ors., 2003 (5) Bombay Cases Reporter, 695, which considered a similar situation. The learned Judge observed that from the photographs placed on record it was clear that the two ::: Downloaded on - 09/06/2013 14:16:04 ::: 13 buildings were touching each other. The Respondents contended that despite the same, the buildings were independent of each other. They contended that the construction challenged therein constituted a new building.
The trial Court there held prima-facie, that it was an extension of the Plaintiffs building. What is important to note is that ultimately, in paragraph 12, the learned Judge came to the conclusion that :-
"Factually, on the facts of the case as on record the two buildings are touching each other."
Having come to this conclusion on facts, in paragraph 14, the learned Judge held :-
"14.......................................................
............................................................ The law may be explained thus. An owner of the land or developer considering the provisions of the Maharashtra Regional and Town Planning Act, 1966 and development regulations framed thereunder, if a scheme or layout plan has been approved, whether the building is constructed or not then the owner developer inspite of MOFA can carry out development of such structure or building. It may be also possible to ::: Downloaded on - 09/06/2013 14:16:04 ::: 14 hold that with a development permission under development regulations if obtained, the owner/developer can develop but as long as the permission was obtained and could be legally obtained if under the permission granted for construction the society had to be registered within a time frame and the land had to convey to the society under the agreement within a time frame and if not, within the time set out under Rule 9, after that time frame the owner/developer, is legally precluded from putting up of further construction without consent. At any rate if building is to be put up as a wing of an existing building considering section 7, it cannot be constructed without permission of the flat purchasers. There can, therefore, be no question of further development by the owner or developer. This is considered in the judgment in (Kalpita Enclave Co-op Housing Society Ltd. and others v. M/s.Kiran Builders Pvt. Ltd. And others), 1987(1) Bom. C.R. 355 :
1986 Mh. L. J. 110, as proposition seven. In (Vrindavan Borivali Co- operative Housing Society Ltd. v.
Karmarkar Brothers and others), 1983 (2) Bom. C.R. 267 : 1982 Mh. L.J. 607, a learned Judge noted the statutory duty cast on the owner/developer and observed after considering the various sections of MOFA as under "......All these liabilities read with further ::: Downloaded on - 09/06/2013 14:16:04 ::: 15 obligation under sections 10, 11 and
12 go to show that the promoter is under a statutory obligations who should complete the and pass a conveyance to the organization named thereunder." (emphasis supplied) (B). The judgment applies to the facts of this case. The term "wing" is not defined in The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963. There is no universally accepted definition of "wing" in the field of construction. In any event, nothing to this effect was indicated. Independent, physically/structurally unconnected buildings within a complex are often referred to as different wings such as, for instance, "A" Wing, "B" Wing etc. However, even where buildings are structurally/physically connected portions thereof are similarly termed as "wings". In these buildings, there often is no direct access from one wing to the other. This appears to be the case in the present matter as well.
::: Downloaded on - 09/06/2013 14:16:04 ::: 16Thus, the mere reference to "wings" in a judgment, would be of no assistance. It would be necessary to examine the nature of the "wings" in each case.
In Ravindra Mutenja's case, as observed therein, the wings/construction touched each other. They were not independent, structurally separate constructions. The same is the situation in the present case as well. I am bound by the judgment in Ravindra Mutenja' s case.
(C). In view of the judgment in Ravindra Muntenja' s case, in the present case, it must be held that the buildings are not independent of each other and that therefore the proposed construction would be contrary to and in violation of Section 7 of the The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963.
13. Mr. Sangalikar relied upon the judgment in the case of Ralph D' Souza & Ors. v. Danny D'S ouza & Ors., 2006(3) Mh.
L.J., 497. The judgment is of no assistance to the Defendant.
In that case, the impugned construction was found ::: Downloaded on - 09/06/2013 14:16:04 ::: 17 to be abutting the Plaintiff's building. The term "abutting"
does not necessarily mean that the constructions touch each other. The term "abutting" could also mean an adjoining property. In fact, the judgment read as a whole, indicates that the structures therein were independent of each other. This is indicated from the submission recorded in paragraph 5 of the judgment to the effect that the decision in Ravindra Mutenja' s case would apply even with regard to the proposed construction of a new building which is independent of the structure occupied by the flat owners. Thus, the parties appear to have proceeded on the basis that the structures were independent of each other. The aspect regarding touching constructions referred to in Ravindra Mutenja' s case was not dealt with in Ralph D'S ouza'scase.
14. Mr. Mishra relied upon the judgment of a Division Bench of this Court in the case of White Towers Co-operative Housing Society Ltd. v. M/s. S. K. Builders & Ors., 2008(4) ALL MR, 838. A similar situation arose for the consideration of the Division Bench. I refer to this judgment not in respect of the ::: Downloaded on - 09/06/2013 14:16:04 ::: 18 larger question which I am not deciding but to indicate that the restraint under Section 7 applies even where the original plot stands amalgamated with another plot.
Paragraphs 3, 6, 7 and 8 of the judgment read as under :-
"3. The main grievance of the appellants relate to the plot of land forming part of the plot wherein the society's building is situated and claims to have been amalgamated with adjoining plot and where the new layout thereof has been approved for the developments therein by the competent authorities sans the consent of the appellants in relation to the portion of their plot so amalgamated with the adjoining plot.
6. Bare perusal of the impugned order discloses that the same has been passed solely referring to para 17 of the decision in Jayantilal Investments' case by merely observing that if the contention based on paragraphs 19 and 21 of the said decision are taken into consideration, then the para 17 of the decision would stand diluted.
With respect, we are unable to agree with the view taken by the learned single Judge. The Apex Court in Jayantilal Investments' case, has clearly observed in para 20, after taking into consideration the provisions of Clauses 3 and 4 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction etc) ::: Downloaded on - 09/06/2013 14:16:04 ::: 19 Rules, 1964, that the said provisions are declared to be statutory and mandatory by the Legislature because the promoter is not only statutorily to give the particulars of land, amenities, facilities, etc., he is obliged to make full and true disclosure of the development potentially of the plot which is the subject matter of the agreement. The promoter is not only required to make disclosure concerning the inherent FSI, he is also required at the stage of layout plan to declare whether the plot in question in future is capable of being loaded with additional FSI/floating FSI/TDR. In other words, at the time of execution of the agreement with the flat takers, the promoter is obliged statutorily to place before the flat takers the entire project/scheme, be it a one building scheme or multiple number of buildings scheme. Having observed so in relation to the statutory provisions in Clauses 3 and 4 of the said Rules, the Apex Court has further rules that :
"the above condition of true and full disclosure flows from the obligation of the promoter under MOFA vide Sections 3 and 4 and Form V which prescribes the form of agreement to the extent indicated above. This obligation remains unfettered because the concept of developability has to be harmoniously read with the concept of registration of society and conveyance of title."
7. Obviously, the flat takers stand ::: Downloaded on - 09/06/2013 14:16:04 ::: 20 assured that in case of any change to be made in the project, as was disclosed to the flat takers at the time of entering into agreement, the same has to be by following the proper procedure and without disturbance of the rights accrued to the flat purchasers in relation to the flats and all benefit attached to the flats including in relation to the land on which the building having such flat is situated. Taking into consideration the same, if a portion of the plot wherein the structure having the flat is situated is to be excluded and is to be amalgamated in the neighbouring plot, and the project in this regard is not disclosed to the flat takers at the time of the agreement being entered with the flat takers, it would be totally contrary to the decision of the Apex Court in Jayantilal Investments' case. This aspect has not been considered by the learned Judge while passing the impugned order.
8. Taking into consideration the law laid down by the Apex Court in Jayantial Investments' case, therefore, it cannot be said that the respondent No.5 would be entitled to carry out the construction as a matter of right in the portion of the land of the society's plot which is stated to have been amalgamated with the neighbouring plot. In fact, the learned single Judge, in para 9 of the impugned order, does make reference to this aspect. However, without considering the same, thereafter, proceeded to grant the relief of injunction. Being so, the impugned order to the ::: Downloaded on - 09/06/2013 14:16:04 ::: 21 extent it excludes such portion of the society's plot from being subject to restraint, needs to be modified and the relief in the nature of Clause c(ii) granted by the impugned order needs to be modified to exclude such relief in relation to the society's plot which is said to have been amalgamated in the adjoining plot till disposal of the notice of motion and subject to the decision in the notice of motion."
In the present case however, there is an added consideration of the buildings actually touching each other.
Moreover, as observed earlier, the open space on that side of the building where the proposed construction is to take place, will be totally blocked.
15. Mr. Sangalikar relied upon an unreported judgment of a Division Bench of this Court in M/s. Manratna Developers v. Megh Ratan Co-operative Housing Society Ltd. & Ors., dated 23.10.2008 in Appeal No.297 of 2008 in Notice of Motion No.1966 of 2008 in Suit No.1698 of 2008.
The judgment is of little assistance to the Respondent. Firstly, it was found as a matter of fact that the main reason which prompted the learned Single Judge to ::: Downloaded on - 09/06/2013 14:16:04 ::: 22 grant the injunction was that the amenities of the flat holders would be reduced if the building was allowed to be constructed in accordance with the modified plan. The Division Bench found as a matter of fact that this presumption was incorrect and that this incorrect presumption was the main reason for the learned Single Judge having granted the ad-interim injunction.
Further, it is important to note that the Division Bench held that the consent of the flat purchasers after the amendment of Section 7 and the insertion of Section 7A in the The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 is not necessary "if additional structures/buildings are to be raised after obtaining approvals or sanction from the Municipal Corporation".
::: Downloaded on - 09/06/2013 14:16:04 ::: 23The judgment does not deal with the question before me. In other words, the question whether constructions which touch each other are additional constructions or not neither fell for the consideration of, nor was decided by the Division Bench.
Mr. Sangalikar however submitted that it must be presumed that the Division Bench held sub-silentio that even if they were touching each other, it would make no difference and that the judgment in Ravindra Mutenja's case is therefore impliedly overruled.
I am unable to agree. It is settled law that a judgment is ratio for what it holds and not for what may appear to logically follow from it.
16. Mr. Sangalikar relied upon the judgment of a learned Single Judge of this Court in Jamuna Darshan Co-operative Housing Society Ltd. & Ors. v. M/s. JMC & Meghani Builders & Ors., 2008(1) ALL MR, 789.
This judgment does not deal with the case of touching buildings and the effect thereon of Section 7.
::: Downloaded on - 09/06/2013 14:16:04 ::: 24It is of vital importance to note that the learned Judge has in fact held in paragraph 4 that :-
"So long as the flats purchased by the owners/purchaser are undisturbed and the structure in which the said flats are located is also unaffected, nothing can prevent the builder /developer to exploit FSI in relation to the plot, unless there was contractual obligation on the builder to the contrary."
Thus, it is not merely the flat but even the structure which must remain unaffected.
In the present case specially in view of Ravindra Mutenja's case, it must be held that, if not the flat, the structure is certainly affected by the amended plans.
17. Appeal No.745 of 2007 was filed against the above judgment. The same was disposed of by an order of the Division Bench dated 23.7.2008. The Division Bench refrained from entertaining the Appeal as the Notice of Motion was pending and merely expedited the Appeal.
Mr. Sangalikar stated that the SLP against the said order was dismissed.
18. Notice of Motion No.2220 of 2007 in Suit No.3938 of ::: Downloaded on - 09/06/2013 14:16:04 ::: 25 2001 in the above matter viz. Jamuna Darshan Co-operative Housing Society Ltd. & Ors. v. M/s. JMC & Meghani Builders & Ors. was finally disposed of by an order and judgment dated 12.1.2009.
The arguments in the present matter were concluded just before the Court vacation. The matter was kept on 14.1.2009 for judgment. On that date, at the request of both the counsel, I did not pronounce the judgment as it was stated that the learned Judge has finally disposed of Notice of Motion No.2220 of 2007 in the above matter. The counsel wanted to invite my attention to the said judgment.
Accordingly, the matter was adjourned to 17.1.2009 and again to 21.1.2009.
The judgment however does not deal with the aspect considered by me above, viz. the effect of Section 7 of the MOFA in circumstances where the new construction is not independent of, but touches the original construction.
In the circumstances, this judgment is of little assistance to the Respondent in the present case.
::: Downloaded on - 09/06/2013 14:16:04 ::: 2619. In the circumstances, the Appellants have made out a strong prima-facie case that the proposed construction is contrary to the provisions of Section 7 of The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963.
20. Faced with this, Mr. Sangalikar submitted that the Respondent had made known to the Petitioner that the entire FSI in respect of the plot is to be utilised and that the plot was to be amalgamated with the adjoining plot. In view of this, he submitted that the Respondent was entitled to put up any construction even on the suit plot and continues to be entitled to do so subject to the plans being sanctioned. This knowledge, he submitted constituted consent on the Appellants part for the said construction. I do not agree.
21. As stated above, I do not intend dealing with the larger question arising from the fact that admittedly this was not part of the original layout or the scheme. There was no indication about the same at all material times.
22. Further, even on facts there was no disclosure or ::: Downloaded on - 09/06/2013 14:16:04 ::: 27 consent regarding the proposed development. This defence was based on Mr.Sangalikar's submission that the development agreement and the terms thereof were known to the flat purchasers including the Appellants and were confirmed by them.
23. That the Appellants were aware of the agreement dated 12.2.2001 and confirmed the same is clear, especially in view of recitals (vi) and (viii) of the agreement between the parties herein which read as under :-
"vi) In the circumstances and the premises aforesaid the said Owner is entitled to assign, sale & transfer the said property and to allot and assign the development rights of the said property and accordingly the said Owner has by & under Agreement For Development dated 12th February, 2001, assigned the same in favour the Developers herein.
viii) In the aforesaid premises the Developer and the Tenant herein are executing this Agreement for consent and confirmation of the said Letter for Development dated 12-2-2001, jointly executed between the said Owner and the developer and allowing the Developer to use and utilise the TDR FSI on the said property as per the rules and Regulations of the Municipal Corporation of Greater ::: Downloaded on - 09/06/2013 14:16:04 ::: 28 Mumbai and also to record and confirm the consent of the Tenant and also of providing permanent alternative accommodation by recovering construction cost from the Tenant by the Developers."
24. Mr. Sangalikar submitted that the development agreement dated 12.2.2001 and in particular clauses 7, 12, 15 and 20 thereof, permitted the developer to amalgamate the suit property with the adjacent property and to develop the same pursuant to such amalgamation. The provisions of the development agreement do permit the Respondent to develop the property in that manner.
Clauses 7, 12, 13, 14, 15 and 20 of the agreement read as under :-
"7. It is agreed that the Developer is entitled to have joint hands or joint developments of the said property by acquiring neighboring property from the owners thereof by making any kind of arrangements among themselves and the Developer is entitled to transfer the benefits, right, title and interest under this presents in favour of any person or persons or such joint developments, without any reference to the Vendor, however, payments to be made under this presents shall not affect and same shall ::: Downloaded on - 09/06/2013 14:16:04 ::: 29 be paid as per due dates as per clause `3' hereinabove and flat to be provided to the Vendor as provided under this agreement.
12. On the payment under clause 3(a) the Vendor shall grant to the Developer the license to enter upon the said property as bare LICENCEES only for enabling them to develop the said property by demolishing existing building "Ambika Bhavan" if require and further by utilising available F. S. I. Of the said property and T. D. R. F. S. I. If applicable as per latest D.C. Rules and Regulations and/or by amalgamation of the said property with the adjacent property as the case may be.
It is hereby expressly agreed by and between the parties hereto that the possession of the said property is not being given or intended to be given to the Developer before the execution of these presents. The Vendor and the Developer hereby confirm that by virtue of the Developer entering upon the said property as licencees, the same does not amount to take up possession of the said property. The license to enter upon the said property and develop the same shall become formal possession of the said property in favour of the Developer and/or his assignee/s only after the final payment of the consideration amount is paid to the Vendor by the Developer and/or his assignee/s and upon execution of the Conveyance in respect of the said property and the registration of such Conveyance/s in favour of the Developer or his nominee/s including co-operative ::: Downloaded on - 09/06/2013 14:16:04 ::: 30 Housing Societies or a limited company as the case may be or as may be directed by the Developer.
13. The Developer shall be entitled to proceed with the development of the said property by demolishing the existing building if require and/or by construction and utilising FSI and also T. D. R. F. S. I. if applicable as per D.C. Rules & Regulations by constructing new building/s and/or by amalgamating said property with the adjacent property strictly in accordance with the plans in respect thereof as per latest D.C. Rules & Regulations as may be got approved by the Developer and also in accordance with the rules and regulations of the Municipal Corporation and other concerned authorities and the Development Control Rules and the Scheme that may be sanctioned by the Competent Authority appointed under the Urban Land (Ceiling and Regulation) Act, 1976. The Developer shall throughout hereafter and always save harmless and keep indemnified the Vendor and his respective estates and effects of, from and against all actions, suits, costs, charges, expenses, damages, fines, penalties etc., resulting on account of any act or omission or any breach on the part of the Developer in developing the said property by utilising it's F. S. I./TDR F. S. I. As set out hereinabove or any part thereof, of any rules, regulations terms or conditions put up by the Appropriate Government Authorities.::: Downloaded on - 09/06/2013 14:16:04 ::: 31
14. The Developer will be entitled to modify the approved Buildings Plans as they deem fit at their costs, charges and expenses provided the modifications are within or as per the provisions of approved Scheme laid down by the Competent Authority and other Government Authorities including Municipal Corporation of Greater Bombay. The Developer shall pay all the fees of the Architects and R. C. C. Consultants appointed by them for the further development of the said property.
15. The Developer shall in the course of erection and completion of the proposed upper floor on existing building and/or Building/s by amalagamation of the said property with the adjacent property do all lawful acts and things required by and to be performed to works in conformity in all respects with the provisions of the statutes applicable thereto and with the Bye-laws and the rules and regulations of the Municipal Corporation of Greater Bombay, and the rules and regulations of any other public body or local authority or authorities having jurisdiction to regulate the same and shall save harmless and keep indemnified and Vendor against any loss or damage and cost charges and expenses that may be sustained or incurred by the Vendor in that behalf.
20. The Developer shall be entitled to the benefit of F. S. I. Of the additional F. S. I. That may be granted in respect of the said ::: Downloaded on - 09/06/2013 14:16:04 ::: 32 property and/or to utilise T. D. R. F. S. I. As per latest D.C. Rules of the said property from time to time and at all times hereafter."
25. That above provisions of the two agreements however do not indicate that the Respondent had, in turn, represented that it would so develop the property. In other words, the mere right in the Respondent to so develop the property cannot constitute a communication or a representation by the Respondent to the Appellants that they were going to so develop the property or that they were intending to so develop the property. Indeed, at the time of entering into the suit agreements, such proposed development was not even indicated to the Appellants. Thus, it cannot be said that the Appellants had consented to the proposed development even in advance.
26. The learned Judge therefore wrongly considered the mere right to so develop the property upon amalgamation, to constitute sufficient compliance with the provisions of the MOFA. The learned Judge on the basis of this alone held that no fresh consent of the Plaintiff was required for ::: Downloaded on - 09/06/2013 14:16:04 ::: 33 amending the plans.
27. The learned Judge further held that merely because access to the Appellants building will be provided, it was sufficient compliance with the provisions of the MOFA. The learned Judge did not consider the fact that by the additional construction touching the Appellants construction, the entire open space on that side of the Appellants building would be blocked.
28. Mr. Sangalikar then submitted that the Appellants were not purchasers in the strict sense but only tenants of the owners of the property. The Appellants therefore, according to him, are not entitled to be benefits of the MOFA. The submission is not well founded.
29. I will proceed on the basis that the development agreement entered into between the developer and the owner is incorporated by reference in the flat purchase agreement entered into between the Defendant and the Appellants.
Clauses 3, 4, 10, 12 and 13 of the Appellants agreements negate the submission and read as under :-
::: Downloaded on - 09/06/2013 14:16:04 ::: 34"3. The Tenant further confirm and consent to the Developer to construct new building by providing permanent Alternative Accommodation to him/her and the Developer is entitle to recover construction cost of Rs.600/- from the Tenants occupying the Residential premises and Rs.750/- from the Tenants occupying Shops, including herein of such permanent alternative accommodation in form of new flats/shops having equal carpet area of the said existing Premises which at present in occupation of the Tenant and the Developer is entitle to demolish the said building "AMBIKA BHUVAN" and compensate themselves by constructing new residential flats/shops etc., on the said property by utilising the FSI & TDR FSI being the maximum permissible FSI available as per law and as per the Development Rights Certificates to be obtained by the Developer under D.C. Regulations No.34 of the Development Control Regulations for Greater Bombay, 1991 read with regulations for the grant of transferable development rights to owner/developer and conditions for grant of such rights as contained in Appendix VII thereto the law time being in force being as per specification to be given by the architect entirely at the Developer's cost, charges, expenses and incidentals thereto to put up construction of the residential/commercial building in the said property more particularly described in the Schedule hereunder written.::: Downloaded on - 09/06/2013 14:16:04 ::: 35
4. The Tenant confirms and consents that the Tenant is ready and willing to accept the permanent alternate accommodation in lieu of the his/her said tenanted Premises & also ready & willing to pay construction cost of Rs.600/- being as residential occupiers, per sq. ft. carpet of the said permanent Alternative Accommodation admeasuring 320 sq. ft. carpet (being equal area of the said existing Premises to the Developer as contained hereinafter.
A. The Developer has agreed to give as per this agreement new Premises in proposed Building, aggregating to all admeasuring 320 sq. ft. carpet area, which is equal area of the said Existing premises to be provided to the Tenant herein in lieu of his/her arrangement to hand over the existing premises in his/her occupation and permit the developer to develop the said property. It is also agreed that this Agreement shall be treated as executed under the Provisions of Maharashtra Ownership Flats Act, 1963.
B. The Tenant herein has requested the Developers to provide additional area 75 sq. ft. carpet over and above the said area of 320 sq. ft. carpet and the Tenant is ready to pay the Consideration thereof to the Developers and accordingly the Developers has agreed to sell the said additional area of 75 sq. ft. carpet at and for total ::: Downloaded on - 09/06/2013 14:16:04 ::: 36 consideration of Rs.2,16,200/- . Thus the Developers has to provide the said new Premises (Flat) in all admeasuring 395 sq. ft. carpet, which include the Original area of the said existing Premises and the said additional area of 75 sq. ft. carpet (agreed to be purchased by the Tenant). The said Consideration of Rs. 4,08,20/- shall be paid by the Tenant to the Developers as set out in payment clause appearing hereinafter.
10. The Developers have agreed to construct new building as per the approved Plans by the MCGM and sanctioned on the said property and the Tenant further agrees and undertakes to co-operate with the Developers in the matter of construction of the said proposed buildings and for that purpose to sign letters of no objection if and when required or demanded by the developers or by the Municipal Corporation of Greater Mumbai or any other public body or authority including the Aviation Authority. The Tenant agrees that he/she shall not either through himself/herself, or through servants or agents object or let or create any hindrance whatsoever for construction of new building/s on the said property.
12. The Tenant herein has requested the Developers to provide additional area 75 sq. ft. carpet over and above the said area of 320 sq. ft. carpet and ::: Downloaded on - 09/06/2013 14:16:04 ::: 37 the Tenant is ready to pay the Consideration thereof to the Developers and accordingly the Developers has agreed to sell the said additional area of 75 sq. ft. carpet at and for total consideration of Rs.2,16,200/-. Thus the Developers has to provide the said new Premises (Flat) in all admeasuring 395 sq. fts. Carpet, which includes the Original area of the said existing Premises and the said additional area of 75 sq. ft. carpet (agreed to be purchased by the Tenant).
13. The Developers have agreed as per the said agreement as well as under
this presents a self-contained Flat in proposed new building being Flat No.501 on 5 floor admeasuring 395 square feet carpet area being having equal carpet area of the said Old Premises being the said existing Room No.14 AND ALSO THE ADDITIONAL AREA AGREED TO PURCHASE BY THE TENANT, to be provided as per the said Agreement (FOR DEVELOPMENT) AND THIS AGREEMENT to the Tenant in lieu of his/her surrendering tenancy and Occupancy rights of the said premises and possession thereof to the Developers being as the permanent Alternate Accommodation in lieu of the said premises and in pursuant to the said Agreement. Thus under this presents the Developers have agreed to provide said Flat No. 501 on 5 floor in "A" Wing, of the new building having ::: Downloaded on - 09/06/2013 14:16:04 ::: 38 equal carpet area of the said Old Premises (existing Room) AS WELL AS THE SAID ADDITIONAL AREA to the Tenant and a tentative floor plan thereof is annexed herewith and hereinafter referred to as the said Flat."
It is clear that what the Appellants and the other flat purchasers have purchased by the said agreement is the ownership rights of the premises mentioned in each of the agreements. Consideration for the same is stipulated and has been paid. In other words, the agreements do not merely confirm or continue the tenancy rights which they had in the property prior thereto. The doubt, if any, is set at rest by the fact that the agreement and, in particular, clause 4(a) thereof expressly states that it shall be treated as executed under the provisions of the MOFA.
30. In the result, it must be held that the Appellants are purchasers of the premises mentioned in the agreement and are entitled to the benefits of the MOFA.
31. Mr. Sangalikar next contended that the suit is not maintainable in view of Section 149 of The Maharashtra Regional & Town Planning Act, 1966. He further submitted ::: Downloaded on - 09/06/2013 14:16:04 ::: 39 that the suit is liable to be dismissed on the ground of non-
joinder of the BMC, which is a necessary party. Section 149 of The Maharashtra Regional & Town Planning Act, 1966 reads as under :-
"149. Finality of orders.-Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
32. In this regard, Mr. Sangalikar relied upon the judgment of this Court in Raja Bahadur Motilal & Anr. v. State of Maharashtra & Ors., 2003 (1) Bom. C. R. 251, Mohan N. Bhawe (Dr.) v. Municipal Corporation of Greater Bombay, 2005 (3) Bom. C. R., 300, Bales Sardara Paracha v. Municipal Corporation of Greater Bombay & Anr., 2005(4) Bom. C.R.,
577.
33. Prima-facie, it does not appear that the judgments are of any assistance to the Respondent. It is held that Section 149 excludes the jurisdiction of Civil Courts so far as ::: Downloaded on - 09/06/2013 14:16:04 ::: 40 the challenge to the orders passed or directions issued by the State Government or orders passed or notices issued by any Regional Board, Planning Authority or Development Authority under the MRTP Act are concerned. The challenge in these cases was to the orders passed under the MRTP Act per-se.
In the present case, the question is whether even assuming that the building permissions have been granted in accordance with the provisions of the Bombay Municipal Corporation Act and the MRTP Act, a flat purchaser is entitled to challenge the construction itself as being violative of MOFA. The challenge in the present case is not to the sanctioned plans alone/per-se, but to the right to even submit the plans/carry out the construction in view of the provisions of MOFA.
It is pertinent to note that when the plans are sanctioned under the said Acts, there is no provision which mandates a notice to the affected flat purchasers. Nor is there any provision entitling them to be heard in all cases. I do not suggest that it is not open to the authorities to consider ::: Downloaded on - 09/06/2013 14:16:04 ::: 41 the representations of the affected flat purchasers. They may well do so. In the present case, for instance, the Appellants and the other flat purchasers were not even consulted or heard by the authorities.
34. It is pertinent to note that second and third cases referred to above deal with cases under Section 55 of the MRTP Act which authorises the Planning Authority to take action as mentioned therein, where the development of a temporary nature is carried out unauthorisedly as indicated in Section 52(1). Section 52 deals with cases where a person carries out development or institutes or changes the use of the land without permission under the Act or contrary to permission granted thereunder or after the permission has been revoked. The present case does not fall under this Section. The questions which arose in this case therefore directly fell within the purview of the MRTP Act alone and the orders challenged were orders passed and directions issued by the authorities thereunder.
35. In Ravindra Mutenja' s case (supra) though ::: Downloaded on - 09/06/2013 14:16:04 ::: 42 contentions were raised regarding the nature of the construction, on grounds other than those covered by the MOFA, the learned Judge held that the Court can take notice of those aspects considering Section 7A of the MOFA. In that case too, the development authorities were not before the Court. Objections as in this case were taken but were rejected as noted in paragraph 12 of the judgment.
36. Mr. Sangalikar then submitted that the suit is liable to be dismissed for non-joinder of all the co-owners/members of the proposed society.
Prima-facie again, this contention is not well founded. Prima-facie, it appears that any flat purchaser is entitled to raise a grievance under the provisions of the MOFA.
37. Mr. Sangalikar submitted that the consequential reliefs have not been sought and that therefore the suit is liable to be dismissed in view of the provisions of Section 34 of the Specific Relief Act. He relied upon the judgment of the Supreme Court in the case of State of Madhya Pradesh v.
::: Downloaded on - 09/06/2013 14:16:04 ::: 43Mangilal Sharma, AIR 1998, Supreme Court, 743.
38. The submission is not well founded and the judgment is of no assistance to the Respondent. Indeed, it is pertinent to note that even in that case it was observed that it was not necessary for the Respondent therein to seek the additional relief of arrears of salary in a suit for declaration that he continues to be in service. In paragraph 6, the Supreme Court held that it is not that if in a suit for declaration if the Plaintiff is able to seek further relief, he must seek all relief though he may not be in need of that further relief.
In the present case also, it was not necessary for the Appellants to seek the relief for the demolition of the illegal construction and for an order directing the Respondent to remove the debris. If the Appellants succeed in obtaining the relief of declaration, they are always at liberty to remove the illegal construction on their own and to remove the debris.
If the Respondents claim a right in the debris, it would be for them to adopt appropriate proceedings in respect thereof. In any event, assuming that there is any infirmity in this regard, ::: Downloaded on - 09/06/2013 14:16:04 ::: 44 the same can be taken care of by the simple expedient of an amendment.
39. Mr. Sangalikar submitted that the suit was also bad for not having impleaded the owner, who is a necessary party.
Even assuming that the submission is well founded in respect of some of the prayers, such as the prayer for conveyance, prima-facie at least, the owner does not appear to be a necessary party in respect of the main prayers viz.
prayers (b) and (l) which pertained to reliefs under the MOFA The obligations under the MOFA are to be complied with by the promoter i.e. the Defendant. This infirmity too, can be removed by an amendment.
40. In the circumstances, the impugned order and judgment is set aside and the Notice of Motion is made absolute in terms of prayers (c) and (d). Prayer (e) had already been granted by the trial Court and the same not having been challenged, continues to operate.
41. Mr. Sangalikar seeks a stay of this order for a period of eight weeks to enable the Respondent to challenge this ::: Downloaded on - 09/06/2013 14:16:04 ::: 45 order.
Normally, I would not hesitate to grant stay.
However, in the present case, I am not inclined to do so as it would be possible in the meantime, to raise the construction considerably. Thus, even if no equities are claimed, as stated by Mr. Sangalikar, on the one hand, it would not be in the benefit of the Respondent but, on the other, it would prejudice the existing structure owned by the Appellants. However, the work as regards the underground basement only may continue for a period of eight weeks from today. This is being permitted on Mr. Sangalikar's statement that no equities on that basis shall be claimed at any stage and that the Respondent would restore status-quo if so ordered by any Court.
42. Certified copy expedited.
43. All parties to act on an ordinary copy of this order duly authenticated by the Personal Assistant of this Court.
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