Blanket consent obtained by a promoter at the time of entering into an agreement for sale or at the time of handing over possession is not the consent contemplated by section 7(1)(i) or (ii) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963.

Headnote:
Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Section 7(1)(i) and (ii) - Interpretation - Consent of flat owners for alterations in the structure of the building or constructing additional structures - Blanket consent obtained by a promoter at the time of entering into an agreement for sale or at the time of handing over possession is not the consent contemplated by section 7(1)(i) or (ii) - Such blanket consent or authority would sew up or nullify these provisions.
Fact of the Case:

In Appeal No. 575 of 1982 from Order a learned Judge of the Bombay City Civil Court has construed the provisions of section 7(i) and (ii) of the said Act against the flat-owner i.e. the plaintiff and in favour of the promoter i.e. the defendants, while in Appeal No. 875 of 1982 from Order another Judge of the Bombay City Civil Court has held in favour of the flat owner and against the promoter.
Finding of the Court:

The provisions of section 7 are independent. These provisions are intended to safeguard the interest of the flat-owners in different ways. The effect of want of a registered agreement for sale, as I understand by the decision in the Commerce House Owners' case, is that a flat-owner may not be able to enforce a contractual obligation or succeed in a suit for specific performance or claim protection from encumbering his rights and interest in the flat or the land under section 9, but the absence of a registered agreement under section 4 cannot deprive a flat-owner of his right title and interest in the flat or the land or prevent him from enforcing the provisions of the Act.
Issues: Whether the consent of flat owners for alterations in the structure of the building or constructing additional structures as required under Section 7(1)(i) and (ii) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 can be obtained through a blanket consent obtained by a promoter at the time of entering into an agreement for sale or at the time of handing over possession.
Ratio Decidendi: A blanket consent or authority obtained by a promoter at the time of entering into an agreement for sale or at the time of handing over possession is not the consent contemplated by section 7(1)(i) or (ii) for such a blanket consent or authority would sew up or nullify these provisions.
Final Decision: Appeal No. 575 of 1982 allowed. Appeal No. 875 of 1982 dismissed with modification.

Judgment

R.A. AGGARWAL, J.:---Both these appeals involve chiefly the interpretation of the provisions of section 7(1)(i) and (ii) 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 relevant rules made thereunder in 1964, and therefore, they have been heard together and can be disposed of by a common judgment along with the subsidiary points.

2. In Appeal No. 575 of 1982 from Order a learned Judge of the Bombay City Civil Court has construed the provisions of section 7(i) and (ii) of the said Act against the flat-owner i.e. the plaintiff and in favour of the promoter i.e. the defendants, while in Appeal No. 875 of 1982 from Order another Judge of the Bombay City Civil Court has held in favour of the flat owner and against the promoter.

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.

4. On behalf of the defendants, their partners filed an affidavit in reply taking up various legal contentions, to which reference will be made hereafter. But on merits, it was contended that the plaintiff does not have the agreement for sale of the flat as required by the mandatory provisions of section 4 of the said Act. Therefore, in the absence of any written agreement duly registered as required by section 4, the agreement between the plaintiff and the defendants is wholly invalid and altogether void creating no rights in favour of the plaintiff. This submission was based on a decision of the Division Bench

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