1. Heard counsel for the parties. Perused the pleadings and documents on record. It is evident from the plan sanctioned by the Municipal authorities on 4th January 2003 that the permission to construct was accorded to the defendant builder only for two flats in Wing-A of the building. The defendant now intends to construct Flat No.3 on every floor of the said Wing-A building. In other words, the defendant intends to construct seven flats which will be horizontal and vertical extension of main building. In this backdrop the question is whether the defendant builder can be permitted to carry on construction of this nature without prior consent of the plaintiffs society and in particular the flat purchasers who are incidentally the members of the society.

2. Section 7 of the Maharashtra Ownership Flat Act, 1963 mandates that for construction of this nature, the builder will have to take prior permission/express consent of the flat purchasers who are likely to be affected by such construction. The defendant builder relies on the amended plan passed by the Municipal authorities on 25th April 2005 which permits him to construct said additional structure. The real issue is whether the defendant builder has taken prior consent of the flat purchasers before applying for such permission and in any event before commencing the actual construction as per the amended plans. This is so because Section 7 of the Act postulates the disclosure of approved plans by Local Authority when the agreement in respect of the flat is executed in favour of flat purchasers.

3. In the present case, along with agreement, Typical Floor Plan has been appended as Exhibit-4 which is at page 87 of the paper book. Indeed, that typical floor plan indicates that in addition to Flat Nos.1 and 2, Wing-A would consist of Flat No.3 abutting flat no.2 on every floor. However, the plan as sanctioned on the date of execution of agreement on 23rd February 2003 does not incorporate such a position. The plan sanctioned, however, permits the builder to construct only Flat Nos.1 and 2 on every floor of Wing-A. Thus understood, the builder can and could have commenced the construction of proposed structure only after taking prior consent of the respective flat purchasers to be affected by such construction. That has not been done in the present case.

4. To get over this position, the counsel for the defendants would rely on the exposition in paragraph no.13 in the case of Ravindra Mutenja and others Vs. M/s.Bhavan Corporation and others reported in 2003(3)-All MR-521. It is not possible to accept this submission. The observations in paragraph no.13 of the reported decision are in the context of fact situation of that case and in any case cannot be cited as ratio decedendi.

5. The only other question is whether the plaintiffs have already consented either generally or specifically in respect of proposed construction. Counsel for the defendants placed reliance on several clauses of the agreement to contend that there is general consent accorded by the respective flat purchasers. It is well settled that such a general consent will be of no avail. Such a consent cannot be the basis to enable the builder to go for the amendment of the plan already sanctioned and available at the time of execution of the purchase agreement, without taking prior consent of the flat purchasers, although, the proposed construction is intended horizontally and vertically to the structure of the flat purchasers.

6. However, the defendants are right in pointing out that the plaintiffs have already consented for construction of two flats by side of "A" Wing which were at the incomplete stage of construction, as has been recorded in the order passed by the Deputy Registrar of Co-operative Societies, "K" East Word, Mumbai dated 18th July 2006. That order after noticing the contention of the society as well as builder,