2006 Supreme(Bom) 386

IN THE HIGH COURT OF BOMBAY
Madhuvihar Co-op Hsg. Socl
VERSUS
Jayantilal Investments
DECIDED ON : MARCH 16, 2006

Headnote:Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Section 4 - Agreement, proof of - Voucher whether can be taken to be an evidence as proof of agreement - Same conditions of agreement noted in voucher - Can be treated as a part of agreement. - The brochure was not the part of the agreement and hence it cannot be said the flat purchasers were misled by the promoter. Court unable to appreciate this submission because though the brochure is not part of the agreement, there is specific mention for maintenance of garden and recreation spaces. This clearly shows that the promoter as well as the flat purchasers fully knew that there would be a garden and recreation spaces meant for the use of the flat purchasers. Hence, though specifically the brochure was not part of the agreement it can be so treated.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Sections 7 and 7-A (Added in 1986) - Having scheme began in 1985, completed in 1989 changes made many a times still not approved - Promoter not entitled to make further additional construction under a scheme or project of development. - Section 7 of MOFA imposes a prohibition on the promoter to the effect that after plans and specification of the building are disclosed or furnished to the flat purchasers, the promoter shall not make any alterations in the structure described therein, in respect of the flats or any other alterations or additions in the structure of the building without previous consent of that person. Section 7-A however, clarifies that this prohibition will not apply in respect of the construction of any other additional building or structure constructed or to be constructed under a scheme or the project of development in the layout. Section 7-A was inserted in MOFA Act by amendment in the year 1986. Construction of "Madhu Vihar" scheme in the present case started in the year 1985 and was completed in the year 1989. In the meanwhile, there were changes in the plans as many as 4 times. However, no additional building like the one proposed in the plan approved on 29.3.2001 was included in the plans between 1985 and 1989. In the absence thereof the promoter is not entitled to derive any advantage] from Section 7-A of MOFA. Consequently, he is not entitled to construct additional building in the land bearing CTS No. 1069/1 admeasuring 6071.00 sq. metres. Needless to explain that the promoter is not restrained from proposing construction on another land be sides the land bearing survey No. 1068 /1 admeasuring 6071.00 sq. metres. Section 7-A of MOF would not apply in the facts and circumstances of the present case and the promoter will not be able to take advantage of the said provision. Consequently, he is not entitled to make further/additional construction as stated earlier.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Rules 8 and 9 - Formation of Co-operative Society sought for - Scheme over, possession handed over - Promoter obliged to take steps for formation of Co-operative Society within given period. - From the facts of this case, it is apparent that the promoter neglected to take steps for formation of co-operative society within the period of 4 months as prescribed under Rule 8 of MOFR. The flat purchasers had to move concerned authority for registration of the society which was opposed to by the promoter. Ultimately, the society was registered on 20.1.1993. It was obligatory on the part of the promoter to convey the title to the society and execute the conveyance within 4 months from the date of registration under Rule 9 of MOFR. However, the promoter neglected to do soon the ground that the scheme was incomplete.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Rules 8 and 9 - Limitation Act, 1963, Article 111 - Mandatory relief - Promoter to convey title to suit property to society also to declare, promoter not entitled to carry on further construction - Registration of society in 1993 - Title not conveyed - Suit not time barred as cause is still continuing - No reason for trial Judge to have granted three years to convey title. - The trial Judge should not have granted three years time to the promoter for conveying title and for executing necessary documents in favour of the society, because as per the statute conveyance of title and execution of the documents is to be effected within 4 months from the date of registration of the society. The period of 4 months has elapsed long back and there was no justification on the part of the trial Judge to grant 3 years for that purpose. Considerable force in the submission. It may be noted that the trial Judge has not assigned any reason as to why three years time was needed for conveying title and executing necessary documents by the promoter in favour of the society. The trial Judge could have directed the promoter to convey title and to execute necessary documents in favour of the society forthwith.