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IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Harsharansingh Pratapsingh Gujral others ..... Plaintiffs.
Versus
Lokhandwala Builders Ltd. others ...... Defendants.
Notice of Motion No. 2677 of 1995 in Suit No. 3513 of 1995, decided on 27-11-1997.
Zaiwala with Shekhar Naphade and Arun Mehta, for the plaintiffs.
Virag Tulzapurkar i/b Madhukar Munim Co., for the defendants Nos. 2 and 3.
Sections 4 and 7-See Specific Relief Act, 1963, Sections 38 and 20.
Sections 38 and 20-Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2-Maharashtra Ownership Flat (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, 5eftions 4 and 7-Flats constructed by developer-Purchased by plaintiffs-Construction still on-Injunction sought against developers-Contention-Full FSI already utilised-Developer be asked to get society registered-Held-Development to be done in phases-Open space left as per agreement-Registration of society only after completion of development work.-Court is inclined to agree with the submissions made by the counsel for the defendants. A perusal of the agreement itself would show that the plaintiffs were aware that the plot had to be developed in a phased manner. This is so stated in clause (1) of the agreement. In clause (2), the plaintiffs had agreed that the developers shall have absolute discretion from time to time to amend or alter the building plan and to amalgamate the property with any other property and to sub-divide the same. The plaintiffs also irrevocably agreed and gave their consent to the developers carrying out amendments, alterations, modifications in respect of the building, and to put up additional structure/construction, thereon. The only eventuality, the defendants have to obtain consent in writing of the flat pur4 chasers was in respect of any variation or modification in the building plans which may adversely affect the premises agreed to be purchased by the flat purchasers. Thus, the restriction on the defendants was only if, any alteration was made with regard to any particular flat purchased by a particular person a perusal of clauses (24) and (26) also shows that the conveyance is not to be executed till the whole property is transferred to the defendants to form one single co-operative society or to have a number of co-operative societies. It is also provided that the conveyance shall be executed only after the entire property described in the schedule is fully developed. Court does not find merit in the submissions that since all the FSI has been utilised, the suit property has to be treated as fully developed. If, that is so, there was no question of having any apprehension that the defendants would be able to build on the open green space. It is well known to all the parties that extra FSI will become available in the event the area which has been reserved as recreational ground is acquired by the BMC. Unless and until, the conveyance is executed in favour of the plaintiffs, they have no right, title or interest in any open space. In accordance with the agreement, ownership continues to vest in the developers. It is the admitted case of the parties that all the agreements are not registered. Even the plaintiffs themselves have not been able to register themselves as a co-operative society.
2.This Notice of Motion has been taken out praying that the defendants be restrained from constructing any additional building/structure on the open space of the suit property shown in green colour in the plan at Ex. C to the plaint and for restraining the defendants from interfering with the right of the plaintiffs to use the said open space as recreational space. It is also prayed that the Court Receiver, High Court, Bombay be appointed as Receiver in respect of the open space shown in green colour in the plan annexed to the plaint as Ex. C. Further the defendants be ordered to demolish the newly constructed wall shown in red colour line in plan at Ex. C to the plaint. It is also prayed that the defendants be directed by an interim mandatory order to form and register co-operative society/corporate body of all the flat purchasers and purchasers of row houses in the suit property.
3.An affidavit in support of this Notice of Motion has been filed. The defendants have filed a detailed reply. The plaintiffs No. 1 to 26 are the flat purchasers under diverse agreement executed between the plaintiffs and the defendant No. 1 between the year 1988 to 1994. The defendant No. 2 are the promoters/developers within the meaning of Maharashtra Ownership of Flats Act, 1963 (hereinafter referred to as 'the MOFA'.) The defendant No. 3 are the consultants of the defendants No. 1 and 2. The suit property is described as Plot Nos. 1111-A, 1111-B admeasuring 8156 sq.yds. All the plaintiffs have paid the full consideration for the flats and the row houses which have been purchased by them. These properties are situated in a building known as "Woodstock". The defendant No. 1 submitted a development proposal to the Bombay Municipal Corporation along with the layout plan and the building plan. The Bombay Municipal Corporation approved the plans and issued IOD dated 14th January, 1986. The commencement certificate was issued on 12th June, 1986. The original holding has been divided into plots A and B. The area of the plot B is about 8156.6 sq.mtrs. (hereinafter referred to as 'the suit property'). The "Woodstock" building and the row houses are constructed on the suit property. A wall has been constructed between the Plot A and the suit property. The defendants, sometime, in the year 1993 made available to the plaintiffs the location plan, layout plan and the floor plan of the construction raised on the suit property. The plaintiffs discovered that the location plan does not show the parking space requirement correctly, and it also does not show the area of 21 flats correctly. The location plan and the layout plan do not show the actual area of the recreational space as it exists at the site. The actual recreational space is much less than what is shown in the aforesaid plan. It is also stated that the plans show the recreational space only around the swimming pool i.e. at the North West c
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