1993 Supreme(Bom) 413

IN THE HIGH COURT OF BOMBAY
B.V. Chavan, J.
The Mohatta Nagar Co-operative Hsg. Soc. Ltd... Appellants.
Versus
M/s. Vishram Khimji Sons and others.. Respondents.
First Appeal No. 1018 of 1989, decided on 17-9-1993.
Advocates appeared :
M.N. Vepari, for the appellants.
G.D. Dave i/b K.A. Sampat, for the respondent No. 1.

Headnote:BOMBAY COURT FEES ACT, 1959 Section 6 (iv) (i)-Scope.

       The reliefs claimed in the plaint, are in the nature of an injunction on the basis that respondent-plaintiffs are in possession of the whole of the plot, as promoters and owners of the said plot, and for injunction

       (a) Restraining the respondents, from interfering with their possession.

       (b) From carrying out any construction work or entering upon the said plot.

       (c) Restraining the respondents from preventing or obstructing the plaintiffs in carrying out further construction.

       Therefore, nature of the claim is such, that it will clearly fall in the relevant provision, which provides for a fixed notional value of the subject matter at Rs. 500/- under Section 6 (iv) (j) of the Bombay Court Fees Act, 1959. It cannot be said that relief claimed in terms of prayer (c) by which, injunction is asked against defendants, restraining them from preventing or obstructing the plaintiffs in carrying nut further construction, will fall under any other provision than Section 6 (iv) (j) of the Bombay Court Fees Act, so as to require valuation of the claim at full ad valorem fee on the market value of the suit property.

       Order 41, Rule 22-Decree holder-In appeal it is permissible for him to support decree on different grounds as well as challenge finding on a particular point as incorrect.

       Section 115-See, Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1963, Section 7-A.

       MAHARASHTRA OWNERSHIP FLATS-(REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) ACT, 1963

       Section 7-A (as amended in 1986)-Right to carry and construction of addition building by promoter-Though no proposal for addition building submitted for approval of concerned local authority yet promoter by virtue of amended provision of Section 7 (1) (ii) and 7-A can carry out additional structure.

       If, it was permissible, only to look at the Statement of Object and Reasons for carrying amendment of Section 7 (1) (ii) and Section 7-A, then, there should be no hesitation at all in coming to the conclusion that the intention behind the amendment was to remove the impediment in construction of the additional buildings, if total layout permits construction of more buildings in accordance with the Building Rules or Building Bye-laws or the Development Control Rules, where such proposal for additional construction was already approved or was submitted in future to the appropriate authority.

       But, now it is well-established that Statement of Object and Reasons can be looked at only to a limited extent as an aid to the construction of the particular words in statute and ultimately, intention of the legislature, is to be gethered from the express words used in the place of legislation or by necessary implication if words used so permit.

       Section 7-A (as amended in 1986)-Evidence Act 1872, Section 115 - Promoter-Promissory estoppel-It cannot come to operate against promoter.

       The counsel for appellants, contended that in this case respondents, clearly made representations to the flat purchasers, occupying the constructed building that there will be only one building and acting on this representation, the flat purchasers have entered into various agreements and occupied the flats and in such circumstances, the respondents are estopped from constructing the second building in the suit plot on account of promissory estoppel.

       No doubt, out of the admitted 21 purchasers, who purchased their flats from the respondents 14 of them, entered into agreements in the form of Exhibit C which states about the proposal to construct only one building subject to construction of upper floors, if permitted by the Municipal Corporation of Greater Bombay. Whereas, about 6 flat owners, subsequently, entered into agreements in the form of Exhibit R with restricted plot of the building to 1,04 sq. yards. Now, taking case of the appellant, that except for the agreement entered into in the year 1962, rest of the agreements contain the stipulations for the construction of one building could it be said that necessary requirements of promissory estoppel are fulfilled in the present case, so that respondent can be estopped from raising a plea that they are entitled to construct a second building.

       If legal provision had continued to be what it was, in unamended provision (If Section 7, then certainly, it could have been said that once, plan for a single building was submitted and approved, unless and until flat taken of a particular building give their previous consent, promoters have no right to make any construction of additional building or structures, by way of second building as in the present case. However, after the amendment, since the said impediment has been removed, so long as law does not prohibit the construction of additional building and structure, in accordance with the legal provision one cannot say that Promissory estoppel has come to operate against the respondents.

       The reason is ultimately, even if we look at the relevant agreements namely Exhibits C and R the recitals clearly show that promoter proposed to construct a building consisting of ground and three upper floors, and other floors, if permitted by the Bombay Municipal Corporation, which indirectly, suggests that parties were aware that there was a possibility of other construction over and above the construction of the building, already undertaken as per plans, approved by the local authority once shown to the concerned flat

       owners.

       It is well established that there cannot be estoppel against the provision of any statute and therefore, even if respective Agreements at a certain stage, mentioned proposal to construct one building only, now by virtue of the amendment of the year 1986, since the impediment in the construction of additional building and structures has been removed, the respondents had a right to make such construction of a second building, provided it satisfied the requirements of the amended provisions of Section 7-A

       Section 7-A (as amended in 1986)-Validity of-Construction of additional building by promoter without any approved proposal or proposal submitted for approval of concerned local authority.

       Held, additional construction can be carried out by promoter by virtue of amended provision of Section 7 (i) (ii) read with Section 7-A.

       Section 10-Transfer of Property Act, 1882, Section 33-A-Principle of part performance-Regarding open plot of land whether principle will apply in favour of person?

       Held, section 10, prior to amendment, cast an obligation on the promoter to form a co-operative society, or a Company of the flat takers, as soon as minimum number of persons, required to form a co-operative society, have taken flats, within a proscribed period and it further provides that the promoter shall join in respect of the flats, which have not being taken, in such an application, for membership of a co-operative society, or as the case may be, of a company. Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act.

       Section 11, provided that "a promoter shall take all necessary steps to complete his title, and convey to the organisation of persons, who take flats, which is registered either as a co-operative society or as a company, as aforesaid, or to as association of flat-takers (or apartment owners) his right title, and interest in the land and building, and execute all relevant documents therefor in accordance with the agreement executed under Section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power".

       Rule 8 of the Rules framed under the said Act, inter alia provides that "Where a co-operative society or a company of persons taking the flats is to be constituted the promoter shall submit an application to the Registrar for registration within four months from the date on which the minimum number or persons required to form such organisation have taken flats," Rule 9, which is material provides that if no period for conveying the title of the promoter to the organisation of the flat purchasers, is agreed upon, the promoter shall (subject to his right. to dispose of the remaining flats, if any) execute the conveyance within four months from the date on which the co-operative society or the company is registered, or as the case may be, the association of the flat takers is duly constituted.

       Therefore, relevant provisions of the Act and the rule, referred above, clearly indicate that duty is cast on the promoter to register the co-operative society or a company, within four months and he is expected to be a member of unsold flats of such a society. Similarly, if such a society is formed, a further duty is cast on the promoter to execute a Deed of Conveyance, where the specific period is provided by agreement within four months from the registration of the society or a company, and subject to his right to dispose of the remaining flats if any.

       The relevant agreements namely Exhibit I, C and R also contain similar provisions and the ultimate effect that one can gather from these legal provisions and the document is that the purchasers of flats, have a right to get possession of their individual flats on payment of the full amount and the conveyance of the building as well as land thereunder, is to be made by the promoter within a certain period both in favour of the co-operative society or a company, as the case may be, and not in favour of any individual flat owner.

       This is also made specifically, subject to the right of promoter to dispose of the remaining flats, if any, at the time of execution of conveyance. The Scheme of the Act and the rules thereunder, contemplate that even after the conveyance is executed, the promoter remains in possession of undisposed of flats, and his right to dispose of them. If that he the true and legal position, so far RS the fact of the present case, are concerned, the piece of land admeasuring 1,250 square yards had for some reason or that other remained to be developed and dispute started between the parties ; merely because, the flat owners in the building already constructed in the eastern portion of the suit plot, were delivered possession as required by law, they cannot claim to be in possession of the western portion of land, in the absence of any conveyance of title to the suit land, in favour of the appellant-society.

       Even, there, law permits conveyance subject to the right of promoter to dispose of the flats in the remaining land. In the present case, as stated earlier, till disposal of the suit there was no proposal made nor approved by the local authority, but, merely, on the basis of delivery of possession of the flats, to individual persons, it cannot be said that defendants were put in possession of the open plot of land, on the western side of the plot. It may be that taxes were being paid by defendants which legally they are under an obligation to pay after getting possession of their respective flats. That cannot be construed as an act of possession as such, of the whole plot of land.

       In fact, it appears that when in the year 1970 or thereabout, defendants started putting a fencing around the plot and make some changes in the situation that the present suit came to be filed seeking injunction against the defendants. It is not disputed that so far F.S.I. in respect of the remaining open plot of 1,250 square yards is concerned, it is not yet exhausted and as held earlier, the respondents have a right subject to approval of plans and other Rules and Regulations, to make construction thereon.

       In such circumstances, it is difficult to say as to how atleast in respect of the open plot of land, the principle of part-performance, incorporated in Section 53-A of the Transfer of Property Act, will apply in favour of the defendants.

       Section 53-A-See Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Section 19.