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IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar, J.
Kalpita Enclave Co-operative Housing Society Ltd. others... Appellants.
Versus
Kiran Builders Pvt. Ltd.... Respondents.
AND
Ishwar Chinga Shetty another... Appellants.
Versus
Jivanji Bhulabhai Patel by his heirs others... Respondents.
AND
Dharshan Singh Velkhu others.... Appellants.
Versus
Sardar Saudagar Singh Bhala Singh others... Respondents.
Appeal from Order No.450 of 1985, Appeal from Order No. 159 of 1980 and Civil Revision Application No 628 of 1980, decided on 16-8-1985.
Advocates appeared :
J.J. Mehta, Shekhar Naphade and M.K. Nesari, for appellants in A.O. 450/85.
M.V. Paranjape, S. Rahimtoola, i/by R.D. Sethna and Co., for respondents in A.O. 450/85.
N.V. Walawalkar, for R.T. Walawalkar, for appellants in A.O. 159/80.
A.G. Parikh, for respondents 1A to I.C.I.E. IG. and respondents 2 and 3, in A.O. 159/80.
P.S.Patankar, for applicant in C.R. A. 628/80.
R.K. Rao, for respondent Nos. 1 to 3 in C.R.A. 628/80.
S.D. Gavaskar, for respondent No. 4 in C.R.A. 628/80.
M.M. Sakhardande, for respondent No. 5 and 6 in C.R.A. 628/80.
Sub section (2) of Section 7 is comprehensive enough lake cognizance of every possible contravention of sub-section (1) of Section 7 and it must be held to be the intention of the Legislature that the authority mentioned in Section 7 (2) alone should deal with all the cases that will arise under Section 7.
If within one year after the possession is given no defect or unauthorised structure is brought to the notice of the promoter, it cannot be remedied later. The Civil Court will not have even after the expiry of the period of limitation, jurisdiction to deal with these grievances.
Section 7 (1) imposes an obligation upon a promoter not to do a particular act. It bestows upon the flat owners a right to see that such a prohibited act is not done. If a duty is breached, a cause of action automatically accrues to the party affected thereby to enforce his right. It was suggested at some stage that if individual grievances can be raised and agitated even before the building is completed or the possession is given, it may make room for multifarious litigation resulting in the delay in the construction and completion of the project for the benefit of all. If, for example, it is interpreted that any alteration made in the structure of the building or the construction of any additional structure must necessarily receive the previous consent of each and every person who has agreed to take the flats, then one discordant voice will result in large scale inconvenience, injustice to the other flat owners.
If the law says that without the consent of all flat purchasers no alternation in the structure of the building can be made or no additional structure or any additional structure not warranted by the agreements and the plans and the specifications can be constructed, it is not open to the promoters to turn round and say that they would take the consent of only some of the persons and make some alterations. This is in clear defiance of the mandatory language contained in Section 7 (1).
Similarly after the possession is given but before the property is conveyed to the flat owners or the body corporate representing them, the promoter Cannot be allowed to further develop the property in contravention of-the obligations contained in the agreements read with the plans and specifications on which those agreements are based. If, of course, the property is conveyed, any act On the part of the promoter would be rank trespass. If, however, the property is not conveyed, it would be a contravention of Section 7 of the Ownership Flats Act and though the possession of the property is given, the further unauthorised structure that is taking place will be outside the jurisdiction of the authority mentioned in Section 7 (2) for reasons which I have already given in great details earlier. In such a case, the flat owners or the society or the body corporate representing them, as the case may be, is at liberty to approach the Civil Court which alone bas jurisdiction to deal with such a situation. The Civil Court examining the facts and circumstances of each case is entitled to and it is indeed obliged to pass such orders as may be necessary to protect the interests of the flat-owners who are normally unorganised. It is for the protection of this class of persons that the Ownership Flats Act bas been passed and any interpretation which militates against this intention of the law must be eschewed.
Section 7 (1) and (2)-Purchase of flat-It was stated that flat purchasers had remedy in the law because a wrong had been committed and since that could not he remedied under provisions of Section 7 (2), the only forum in which that could be agitated was the Civil Court.
It must he noted that when a person agrees to purchase a flat in a proposed building which is to be constructed according to the plans and specifications of the building which are approved by the local authority as provided in the Act itself, then be is asking for and in getting a promise that the property will be developed strictly in accordance with the plans and specifications approved. It is not correct to say as it was sought to be said, that the plans and specifications of the building must be construed narrowly to mean the actual specifications of the building itself. Whenever the plans and specifications of a building are approved by the local authority, it has done so in the context of several other factors such as keeping certain areas open or developing other property in such a manner as required by the rules and regulations of the local authority. If, therefore, the flat owner has agreed to purchase a flat in a building he has agreed to do so on the promise held out by the promoter to develop the property in accordance with the plans approved by the local authority at the time of the agreement. If, of course, such plans permitted the construction of some buildings, then such a construction would not be naturally in contravention of Section 7. If, however, as originally contemplated, the plans and specifications on the basis of which the flat owner agreed to purchase the flat did not contemplate the construction of one or more buildings, then the construction of any other building not mentioned in the original plans and specifications will be clean contrary to the provisions contained in Section 7 (1). This despite the fact that subsequently the construction of the additional building may be sanctioned by the Municipal Corporation as a special case or upon change in the rules and regulations of that Municipal Corporation. It is one thing to say that a building or a construction is authorised or legal on the basis of prevalent laws, rules and regulation of the local authority, it is quite another thing to say that a buildings is authorised because it is in accordance with the plan, specifications, agreements referred to in Section 7 (1). What is permissible under the Bombay Municipal Corporation Act does not necessarily become permissible under the provisions of the Ownership Flats Act. In such cases, the flat purchasers have remedy in the law because a wrong has been committed and since this wrong cannot be remedied under the provisions of Section 7 (2), the only forum in which this can be agitated is the Civil Court.
No doubt, he is doing this on the strength of the sanction given by the Municipal Corporation, which sanction may also be legal. But construction even in accordance with the legal sanction, if prohibited by Section 7 (1) of the Ownership Flats Act, will be illegal, which is patently the situation in this case. The Civil Court, therefore, has jurisdiction in the light of the proposition outlined above to hear and dispose of this suit. The order passed by the Civil Court on 5th June, 1985 dismissing the Notice of Motion in S. C. Suit No 3226 of 1985 is liable to be set aside and is set aside. That Notice of Motion is restored to the file of the City Civil Court which will hear and dispose of the same in accordance with the law after assuming jurisdiction to try the suit which it undoubtedly possesses.
Till the notice of Motion is taken out for orders and till an order on the same is passed by the City Civil Court, interim injunction granted by the High Court will continue.
Section 7 (1)(2)-Agreement between promoter and flat owner-Every flat owner has got an individual as well as equal right in seeing that construction of the building etc. as a whole takes place strictly in accordance with agreement -Held, it was not possible to accept the proposition that the dispute can only be collective dispute.
It was suggested that individual disputes are not contemplated under Section 7(2) of the Ownership Flats Act. It is not possible to accept this argument. The agreement is entered into by the promoter with individual flat owner. Such individual flat owner is, therefore, interested in seeing that the construction of the entire building and of the property which forms the subject matter of the agreement proceeds strictly in accordance with the covenants contained in his agreement and plans and specifications on the basis of which the flat- owners were persuaded to enter into the agreements. In this sense, every flat-owner has got an individual as well as equal right in seeing that the construction of the building and the development of the property as a whole take place strictly in accordance with the agreement, the plans and the specifications. Merely because some flat-owners who as already mentioned above, are normally not-owners who, as already mentioned above, are normally not organised do not assert their right or do not join others in asserting the rights collectively. It does not mean that the promoter can with impunity proceed with the contravention of Section 7(1). It is not possible to accept the proposition that the dispute can only be a collective dispute.
R.A. JAHAGIRDAR, J.:---The two appeals and the petition raise an important question of law relating to the jurisdiction of the authority constituted under section 7(2) of the Maharashtra Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to for brevity's sake as the "Ownership Flats Act"). Though the question which arises in all these three matters is common, for the sake of convenience I proceed to narrate the facts involved in Appeal No. 450 of 1985 from order. I will refer to the arguments advanced in support of that appeal by Mr. J.I. Mehta appearing for the appellants and also refer to the arguments urged on behalf of the appellants in the other appeal and on behalf of the petitioner in the Civil Revision Application. All the arguments on behalf of the persons who are challenging the view taken by the City Civil Court at Bombay are being dealt with and disposed of without some times specifically referring to the particular advocate who has made those arguments. Similarly the arguments on behalf of the respondents in all these matters are dealt with.
2. Now to the facts in Appeal No. 450 of 1985 from Order. The appellants (hereinafter referred to as the 'plaintiffs') filed a suit, being S.C. Suit No. 3226 of 1985, in the City Civil Court at Bombay for an injunction restraining the respondents (hereinafter referred to as the 'defendants'), which is a Private Limited Company, from carrying on certain construction which, according to them, are in contravention of the agreements entered into by the plaintiff with the defendant. Plaintiff No. 1 itself is a Co-operative Housing Society having been so registered some time in the year 1985. Plaintiffs Nos. 2, 3, and 4 are purchasers of flats in the buildings which are to be owned by the first plaintiffs. The building have been constructed by the defendant which, as mentioned above, is limited company and which acted as the promoter in respect of these buildings. Some time in the year 1975 the plans for the construction of buildings on the land were submitted by the defendants and sanctioned by the Bombay Municipal Corporation. It is the contention of the plaintiff that 15% of the total area on which some building were to be constructed was reserved, according to the plans sanctioned by the Bombay Municipal Corporation, for recreation purposes. This area comes to about 3752 square metres. In the plans on which reliance has been placed by the plaintiffs, the areas which were to be reserved for recreation purpose have been shown by the letters G-1, G-2 and G-3. The buildings themselves were completed and the plaintiff have contended with sufficient success that plaintiff Nos. 2, 3, and 4 and several other purchasers of the flat have been put in possession of their respective flats. There is for example a letter dated 11th May, 1983 written by the Municipal Corporation to Mr. Phadke, the Chief promoter, in which details of the occupation certificates given have been mentioned in respect of the several buildings. The rest of the property, namely, the open spaces have not been naturally given in possession of the plaintiffs. This is partly for the reason that the co-operative society to which the conveyance had to be made in accordance with section 10 of the Ownership Flats Act had not yet been formed. It has been contended on behalf of the defendants before me, and there is considerable substance in this contention, that the entire property cannot be aid to have been given in possession of any of the plaintiffs.
3. Subsequently, namely, on 15th February, 1984 the promoter surrendered to the Municipal Corporation an area of 2200 square metres of the property which would otherwise have been conveyed to the co-operative society. In lieu of the property so surrendered by the promoter, the Municipal Corporation allowed the promoter to utilise extra floor space Index. Taking advantage of this permission gi
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