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3. Facts in Appeal No. 575 of 1982 from order.

Briefly stated, the plaintiff purchased from the defendants Flat No. 503 in 'Jaldarshan' situated at Cimbai, Bandra, Bombay, for a consideration of Rs. 1,23,200/-. The defendants showed a sanctioned plan dated 17th April, 1978 to the plaintiff, on the basis of which the defendants were to construct a seven-storeyed building with shops on the ground floor. Thereafter, the plaintiff booked flat No. 503 on the fifth floor of the proposed building and made various payments. The defendants by their letter dated 25th June, 1979 addressed to the plaintiff confirmed having sold flat No. 503 in 'Jaldarshan' at a price of Rs. 1,23,200/- and recorded the receipt of the three payments aggregating to Rs. 31,000/-. As the construction work proceeded, the defendants called upon the plaintiff to make further payments and she accordingly paid in all a sum of Rs. 1,26,000/- inclusive of security deposit etc. The occupation certificate was issued by the Bombay Municipal Corporation on or about 20th December, 1980. Thereafter, the defendants had put the plaintiff in possession of the said flat. The plaintiff contended that once a sanctioned plan for seven-storyed building and 14 shops on the ground floor was shown at the time of the purchase and various flat-owners have purchased the respective flats on the basis of that sanctioned plan dated 17 the April, 1978, it was not open to the defendants to construct additional structures without the previous consent of all the persons who had agreed to take the flats. Her case is that at no time her consent was obtained by the defendants and hence the action of the defendants in putting up additional construction or structures is in contravention of the provisions of the said Act. The plaintiff further stated that 16 flat owners had filed a suit against the defendants for the same relief and, therefore, she awaited for the decision in that suit. It is in these circumstances that the plaintiff approached the Court for a permanent injunction to restrain the defendants from construction additional structures and for mandatory injunction directing the defendants to demolish the additional structures constructed by the defendants without the consent of the plaintiff, and for other interim reliefs. The plaintiff also took out a Notice of Motion for interim relief and in the affidavit in support made by her husband Sudershan Wadia as her constituted attorney, she reaffirmed the statements made in the plaint.

6. The defendants have made an affidavit in surrejoinder, in which reliance is placed on the two permissions given by the Municipal Corporation, one under I.O.D. dated 6th July, 1981 for construction of two additional floors and the other under I.O.D. dated 6th May, 1982 for construction of another two additional floors.

7. Facts in Appeal No. 875 of 1982 from Order :

In this matter, the plaintiffs are the flat-owners. The building constructed by the defendants is know as "Kunjan Apartments". This Kunjan Apartments consists of ground and four upper floors and there are in all 21 flats including of those persons who get the flats as alternative accommodation to their existing tenements. Six of the flat owners have filed the present suit. Their case is that the defendants have completed the construction of the building on the said land bearing C.T.S. No. 644 and put the acquires of the various flats in possession. According to the plaintiffs, the defendants handed over the management of the said building and the and to the various acquirers of the flats and/or the tenements in the said building and confirmed the same by their letter dated 23rd December, 1980, Ex. A to the plaint. According to the plaintiffs, since then they and other acquirers of the flats in the said building are managing the affairs of the said building. The plaintiffs also referred to the agreement of sale to the said land executed by the defendants with the various acquirers of the flats and/or tenements in the said building. It is the plaintiffs' case that the acquirers of the flats and/or tenements in the said building have formed a committee consisting of the plaintiffs and authorised them to manage the affairs of the said building in the land. According to the plaintiffs, since 23rd December, 1980, the defendants were left with no right title and interest in the said land, save and except the obligations to form a co-operative society of the acquirers of various flats and/or tenements in the said building and/or to convey the said land with the said building. The plaintiffs alleged that the defendants in collusion and/or connivance with the Municipal Corporation officers had succeed in getting some plains for construction of two garages sanctioned on the said land bearing C.T.S. No. 644. On or about 9th July, 1982, the defendants slumped some building materials on a portion of the said land. On 10th July, 1982, some workers were sent by the defendants and they have started digging operation on the said land and on enquiries from the said labourers the plaintiffs learnt that the defendant had got sanction for construction of two garages in the said land. The plaintiffs were shocked and surprised to get the said information and they immediately attempted to contract the defendant but failed in their attempts. The plaintiffs, therefore, by their Advocates's letter dated 11th July, 1982 addressed to the defendants complained against the said high-handed action on the part of the defendants. The plaintiffs further pointed out that the possession of the said building having been given to the occupants of the said flats and the building having been constructed and completed according to the sanctioned plans, the defendants were not entitled to construct any structure on the said land including the said garages without the consent of the plaintiffs and that none of the occupants of the flats were interested in acquiring the garages. It was learnt that the defendants were contemplating to dispose of the said garages to some outsider who would be utilising the same for commercial purposes. It was further stated that even according to the agreement entered into between the defendants and the acquirers of the flats, there was no covenant with regard to the defendants being entitled to construct any garages on the said land. The plaintiffs further stated that the defendants were not entitled to construct and/or let the said garages for being utilised for any purpose other than parking a motor vehicle. The plaintiffs also contended that the defendants have handed over the possession of the said land and the building and the management thereof to the plaintiffs and, therefore, they are not entitled to construct any structure without the previous consent of the plaintiffs. It was also contended that no plans can be amended and/or no additional construction can be availed by the defendants without the prior consent or permission of the plaintiffs and other acquirers of the flats and/or tenements in the said building as per the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as "the said Act") and the Rules made thereunder.

Submission in both matters :

12. The first matter, A.O. No. 575 of 1982 was argued in person by Shri Sudharshan Wadia, the husband of the plaintiff. He contended for sale envisaged under section 4 in respect of the flat purchased by the plaintiff and its registration under the Indian Registration Act, 1908, as mentioned section 4 does not debar the plaintiff from preventing the defendant promoters from contravening the provisions of section 7, by constructing additional structures without the previous consent of the plaintiff. The submission was that after a promoter has disclosed or furnished to a purchaser of the flat the plans and specifications of the flat and the building, the promoter has not right either to make alterations in the float without the previous consent of the purchaser concerned or to make any alterations in the structures of the building or construct additional structures without the previous consent of all the persons who have purchased the flats, it was also submitted that in the present case, the building has been constructed as per the sanctioned plans and, therefore, the promoters could not start with the work of construction of additional structures without first obtaining consent of all flat owners. It was also contended that the provisions of section 7 are independent of section 4 and the Court can give effect to the same even if the required agreement for sale has not been executed and duly registered; as otherwise the protection granted to the flat owners and the malpractice sought to be eradicated by section 7 would be rendered meaningless. As against this, Shri Kikla, learned Counsel appearing for the defendant-promoters, submitted that having regard to the ratio of the decision of Commerce House Owners' case, unless there is a written agreement duly registered under the Indian Registration Act, no right can accrue in favour of the plaintiff for invoking the provisions of section 7. Since admittedly the plaintiff has no written agreement, the defendant are not required to obtain her consent. Shri Kikal's submission was that a promoter is required to obtain previous consent under section 7 of those persons only who have valid and enforceable agreements under section 4.

32. Shri Kikla states that there are about 20 appeals pending, in which the decision appealed against is either in favour of the purchasers of flats, flat-owners or in favour of the promoters-builders. Now it, therefore, seems that two views are possible and some learned Judges have taken one view and others a different view. The question becomes more important and significant by virtue of the decision of the Division Bench Commerce House Owners' case, 83 Bom.L.R. 339, holding that the consequence of non-compliance with the provisions of section 4 is that it invalidates the transaction and there is no question of the transaction between the purchaser of the flat and the promoter being binding between them. It is further held that the provisions of section 4 being mandatory, the agreement of sale is, therefore, statutorily required to be registered and if the same is not registered, a plaintiff cannot found any rights on such an agreement and the agreement must be treated as invalid and ineffective. That being the position of the law as laid down by the Division Bench of this Court, the question posed on behalf of the respondents seeking leave was that since there is no registered agreement for sale of the suit flat, the plaintiff can not avail of the provisions of section 7 and in such a case the defendants were not required to obtain the previous consent of the plaintiff under section 7 as there is no valid and enforceable agreement between the parties. As discussed above, the absence of the agreement for sale and its non-registration does not take away the right of the purchaser of a flat to avail of the statutory prohibition contained in section 7(1)(ii). A promoter cannot carry out any additional construction or make any alteration in the building without the consent of all the flat-owners under section 7(1)(ii), notwithstanding the non-execution of the agreement for sale or non-registration therefore, nor can he by obtaining blanket consent of the purchasers of the flats at the time of entering into the agreement for sale or at the time of delivering possession of the flat set at nought the provisions of section 7(1)(ii).