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8. The Government was required to insert Section 7A in the act so as to over come the interpretation put by the Court in the case of Kalpita Enclave Co-operative Housing Society Ltd. v. Kiran Builders Private Ltd, reported in 1986 Mh.L.J. 110 and to explain what the legislature actually intended. Section 7 was interpreted in Kalprita's case to mean that the promoter is prohibited from making any construction once the promoter hands over the flats to the purchasers. The amendment makes it clear that consent of the flat purchasers was never applicable to the construction of additional building by the promoter. By the amendment, the legislature not only inserted Section 7A to the Act but deleted the words "or construct additional structures" from Section 7(1)(ii). That clause reads now as follows :-

Section 7 of Maharashtra Ownership Flats Act, 1963 ("MOFA" for short) was interpreted by the Bombay High Court in Kalpita Enclave Co-
operative Housing Society v/s Kiran Builders Pvt. Ltd. reported in 1986 MLJ 110 holding that a promoter was not entitled to put up additional structure not shown in the original lay out plan without consent of the flat purchasers. The said interpretation of Section 7 by the High Court prompted the legislation to amend Section 7. Section 7 was amended with retrospective effect and Section 7-A was newly inserted which was of a clarificatory nature. By amending section 7, the words or construct any additional structures were deleted. Section 7-A which was newly added, clarifies the position that the consent of flat holders in a building is not necessary in respect of construction in the scheme or layout, after obtaining approval of the local authority in accordance with the building buy-laws or Development Control Rules. Section 7-A, thus, does not enable the flat purchasers to prevent construction of the additional structures once the plan is modified and sactioned under the building bye-laws or Development Control Rules.

Therefore, having regard to the Statement of Objects and Reasons for substitution of Section 7(1)(ii) by the Amendment Act 36/86, it is clear that the object was to make legal position clear that even prior to the amendment of 1986, it was never intended that the original provision of Section 7(1)(ii) of MOFA would operate even in respect of construction of additional buildings. In other words, the object of enacting Act No. 36/86 was to change the basis of the judgment of the Bombay High Court in Kalpita Enclave case (supra). By insertion of Section 7A vide Maharashtra Amendment Act 36/86 the legislature had made it clear that the consent of flat takers was never the criteria applicable to construction of additional buildings by the promoters. The object behind the said amendment was to give maximum weightage to the exploitation of development rights which existed in the land. Thus, the intention behind the amendment was to remove the impediment in construction of the additional buildings, if the total lay out allows construction of more buildings, subject to compliance of the building rules or building by-laws or Development Control Regulations. At the same time, the legislature had retained Section 3 which imposes statutory obligations on the promoter to make full and true disclosure of particulars mentioned in Section 3(2) including the nature, extent and description of common areas and facilities. As stated above, sub-section (1A) to Section 4 was also introduced by the legislature by Maharashtra Act 36/86 under which the promoter is bound to enter into agreements with the flat takers in the prescribed form. Under the prescribed form, every promoter is required to declare the FSI available in respect of the said land. The promoter is also required to declare that no part of that FSI has been utilized elsewhere, and if it is utilized, the promoter has to give particulars of such utilization to the flat takers. Further, under the proforma agreement, the promoter has to further declare utilization of FSI of any other land for the purposes of developing the land in question which is covered by the agreement.

The Supreme Court says in Para 18 of the Judgment that Section 7A allows a builder to construct additional building provided the construction forms part of a scheme or project. Therefore what is necessary is that any additional construction sought to be made must form part of the original scheme or project. This is made clear by the Supreme Court in Para 20 of the Judgment. The Judgment says that the promoter is required to make disclosure concerning the inherent FSI and also at the stage of lay out plan he is required to declare whether the plot in question in future is capable of being loaded with additional FSI/floating FSI/TDR. Further in para 21, the Supreme Court says that if the promoter places all these things before the flat purchasers, then the permission of the flat purchasers would not be necessary. Necessarily, therefore, if the entire scheme including the information about TDR/FSI is not disclosed, then the promoter looses his right to use the residual FSI. If we look into the original plan, it would be clear that the plan dislcosed construction of one building only having A and B wings. The plan further shows that one old building (which is now demolished) and the W.C were the structures which were to be retained. Thus, what was represented was that that old building shown to the east in plan and the W.C to the north were to be retained. It did not disclose that as and when the tenants in old building would vacate the old building, the same would be pulled down and new construction would be put up there. The Plan therefore did not show proposed development of these area in a phased manner. Had the original lay out plan shown the proposed construction in a phased manner, then the promoter did have a right to make construction of additional building without permission of the flat purchasers. Even if we look into the judgment of Division Bench of this Court in M/s.Manratna Developers's case, the ratio is that if the original plan shows the construction of building in a phased manner on single plot, then the promoter is not supposed to take consent of the flat owners. Such is not the case here.