2006 Supreme(Bom) 832

IN THE HIGH COURT OF BOMBAY
Sai Amrat Co-operative Housing Society Limited
Versus
Chandru Tahilram Tolani
Decided on, JUNE 5, 2006

Headnote:Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Section 7 - Development of property - Obligation of builder/developer - If the original plan and agreements of sale with flat purchaser specify that certain areas would be kept open, the builder cannot construct a new building contrary to such representation and sanctioned plan - Purchasers of flats can certainly object to the development or construction of new building without their consent. - Under Section 7 of the Maharashtra Ownerships Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, the builder is obliged to construct buildings and develop the property strictly in accordance with the sanctioned plan and the agreements of sale with the flat purchasers. Therefore if the original plans and the agreements specify that certain areas would be kept open, and the flat were purchased on the basis of this representation, any construction of an additional structure in the open spaces would amount to a contravention of law and the agreements. Admittedly, more than 60 per cent of the flat purchasers have purchased flats even prior to the submission of the plans for the third building. More than 60 per cent of the flat purchasers had purchased flats prior to 1998 in Sai Amrat and 2000 in Amrat. Therefore, it was incumbent on defendant No. 1 to execute the conveyance. In fact, defendant No. 1 had undertaken to do so before the Registrar of the Co-operative Societies when the societies were registered. Although each of these agreements do give a right to the developer to construct additional structures if FSI was available, this right cannot be availed of by defendant No. 1 in perpetuity. Each of the agreements require defendant No. 1 to convey the property to the proposed society within four months of its registration. Defendant No. 1 has, for one or the other reason, failed to convey the same. The sanction for the proposed additional structure was granted by the Bombay Municipal Corporation in 2003, much after the property was expected to be conveyed, both under the agreements and as per the undertaking given by defendant No. 1 before the Registrar of Co-operative Societies. The plaintiffs can certainly object to the development or construction of a new building without their consent as the builder cannot take undue advantage of his own breaches and wrongs.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Sections 7, 7-A, 11, 13 and 9 - Development Control Regulations for Greater Bombay, 1991, Rules 23, 28(b) and 29(1) - Layout for amendment - Most of construction completed - Consent of flat purchasers not taken - Contention of defendant - BMC not given completion certificate - Held - Plaintiffs have no right to object development or construction of flats - Sale agreement speaking of phased manner as regards construction - Builder cannot be allowed to take advantage of own mistake. - It is no doubt true that the original lay out for the property contemplated the development of the property in a phased manner by constructing the buildings Sai Amrat and Amrat. The plaintiffs had rightly therefore not taken any objection to defendant No. 1 completing the construction. It is only when defendant No. 1 decided to transfer development rights purchased by him on to the present building that the FSI became available for him to construct a third building. This right, could not have been exercised, prima facie, by defendant No. 1 but only by the plaintiffs. Defendant No. 1 cannot make capital of the fact that under the minutes of the order signed in the writ petition, he was permitted to apply for relocation of the recreational ground. The Minutes do not give him any right to construct a new building or develop the property in any manner except for relocation of the recreational ground.

       The judgments cited by Ms. An kleshwaria are in respect of development of a property in a phased manner. There can be no dispute that a builder/ developer would continue to have right over the property if the development is to take place in a phased manner as held in Harsharansingh, 1998 (1) Bom CR 516. The plaintiffs in the present case would, therefore, have had no right to object to the development of the building Amrat and Sai Amrat taking place in phased manner as the same has been mentioned in their agreements for sale. However, the plaintiffs can certainly object to the development or construction of a new building without their consent as the builder cannot take undue advantage of his own breaches and wrongs.