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2007 Supreme(Bom) 1371
IN THE HIGH COURT OF BOMBAY
A.M.KHANWILKAR, J.
Jamuna Darshan Co-op. - Plaintiffs
versus.
M/s.JMC & Meghani Builders & ors - Defendants
Advocate Appeared
Mr.Navin Parekh i/b.Ms.Sukeshi Bhandari for the plaintiffs
Mr.P.K.Samdani a/w.Mr.Ajay Panicker for defendant No.1
Mr.V.Y.Sanglikar i/b.Mr.A.G.Damle for the defendant Nos.5, 6 & 7
Mr.P.S.Rao i/b. Mr.A.A.Aabar for the defendant Nos.3 & 4
Headnote:Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Sections 7 and 7-A - Development of plot - Applicability of Act - Builder not precluded by provisions of Act from developing plot in question - Builder not prohibited from constructing a separate building thereon as per sanctioned plan of Municipal Corporation. - The next relief claimed on behalf of the plaintiffs during pendency of this motion is of restraining defendant No. 1 from entering upon or carrying of any construction or creating any third party right in respect of the property hearing final plot No. 774 of the Bombay Town Planning Scheme No. III (Bom) situated at Off Natakwala Lane, opposite S.V. Road Borivali (West), Mumbai-400092. Insofar as this relief is concerned argument of the plaintiffs proceeds on the basis that defendant No. 1 builder is not entitled to develop the remaining plot, both on account of contractual obligation as also statutory obligation. Insofar as plea of contractual obligation is concerned, there is nothing in the agreement dated 5th May, 1982 executed in favour of the flat purchasers who have incidentally become members of the society that would prohibit the builder to carry out further construction on the suit property as such. On the other hand, there are recitals in the agreement which would enable the builder to exploit the remaining FSI available in respect of the suit land, if any. The argument of the plaintiffs is that the agreement relied by defendant No. 1 do not expressly authorise defendant No.1 to exploit the remaining FSI available in respect of the plot in question. In is not possible to accept this submission. Moreover, in the absence of express provision prohibiting the builder from exploiting the available FSI in respect of the flat purchaser cannot be heard to obstruct the development activity in relation to the open plot so long as their original structure and flats remain unaltered and undisturbed. This position emerges from Section 7, R/w 7-A of the Act. The legal position with regard to Section 7 and Section 7-A is no more res integra. The Apex Court in the case of M/s. Jayantilal Investments v. Madhuvih ar Co-operative Housing Society and others, reported in 2007 AIR SCW 796 : 2007 (2) All MR 398 (SC) : 2007 All SCR 857, has had occasion to expound the principles that would Government such transaction counsel for defendant No. 1 is justified in pressing into service the exposition of the Apex Court in the said decision. Besides counsel for the defendant No. 1 has also relied on unreported decision of this Court dated 2nd July, 2007 in Notice of the Motion No. 2305 of 2007 and unreported decision in the case of Ralph D’souza and others v. Danny D’souza and others reported in 2006 (3) Bom CR 326 : 2006 (4) All MR 519. Suffice it to observe that the provisions of the Act would not preclude the builder from developing the plot in question by construing a separate building thereon as per the sanctioned plan of the Municipal Corporation.
Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Sections 7 and 7-A - Scope and object of - Development of plot - Builder can develop the plot by constructing a separate building in terms of sanctioned plan of municipal corporation. - The provisions of the Act would not preclude the builder from developing the plot in question by constructing a separate building thereon as per the sanctioned plan of the Municipal Corporation.
Decided on: 21ST SEPTEMBER, 2007
1. Heard counsel for the parties. Perused the pleadings and documents on record. At the time of hearing, Mr.Navin Parekh appearing for the plaintiffs pressed for three reliefs at this stage. In the context of prayer clauses (b) & (c) to attach flat Nos.301-A and 302-A and shop Nos.5-A and 6-A in the suit building, insofar as this prayer is concerned, as it is agreed between the parties that defendant No.1 is willing to transfer the said flats in favour of the nominees of the defendant Nos.5, 6 & 7 upon realising sale proceeds thereof; and contemporaneously deposit amount payable towards society charges with the society, whereupon the society would have no objection to transfer the said two flats in favour of the prospective purchasers. In view of this arrangement agreed upon, the question of attachment of two flats to secure the outstanding amount towards society charges in relation to those flats does not arise.
2. Insofar as society charges in respect of two shops are concerned, counsel for the defendant Nos.3 and 4 submits that the outstanding society charges will be paid within four weeks from today. In this view of the matter, the society cannot be heard to insist that the said two shops should be attached. Insofar as society is concerned, the relief of attachment could have been considered only if the concerned defendants were contesting the claim of the society. As the concerned 3 defendants have assured to pay all the outstanding charges of the society as demanded by the society without any demur while accepting that assurance, there is no question of attachment of four units in the suit building referred to above.
3. The next relief claimed on behalf of the plaintiffs during pendency of this motion is of restraining defendant No.1 from entering upon or carrying on any construction or creating any third party right in respect of the property bearing final plot No.774 of the Bombay Town Planning Scheme No.III(BOM) situated at Off Natakwala Lane, opposite S.V.Road, Borivali(West),Mumbai – 400 092. Insofar as this relief is concerned, argument of the plaintiffs proceeds on the basis that defendant No.1 builder is not entitled to develop the remaining plot, both on account of contractual obligation as also statutory obligation. Insofar as plea of contractual obligation is concerned, there is nothing in the agreement dated 5th May, 1982 executed in favour of the flat purchasers, who have incidentally become members of the society, that would prohibit the builder to carry out further construction on the suit property as such. On the other hand, there are recitals in the agreement which would enable the builder to exploit the remaining FSI available in respect of the suit land, if any. The argument of the plaintiffs is that the agreement relied by defendant No.1 do not expressly authorise defendant No.1 to exploit the remaining FSI available in respect of the plot in question. It is not possible to accept this submission. Moreover, in the absence of express provision prohibiting the builder from exploiting the available FSI in respect of the plot, the flat purchaser cannot be heard to obstruct the development activity in relation to the open plot so long as their original structure and flats remain unaltered and undisturbed. This position emerges from Section 7 R/w.7A of the Act. The legal position with regard to Section 7 and Section 7A is no more res integra. The Apex Court in the case of M/s.Jayantilal Investments v. Madhuvihar Co-operative Housing Society & ors, reported in 2007 AIR SCW 796 has had occasion to expound the principles that would govern such transaction. Counsel for defendant No.1 is jusitified in pressing into service the exposition of the Apex Court in the said decision. Besides, counsel for the defendant No.1 has also relied on unreported decision of this Court dated 2nd July, 2007 in Notice of Motion No.2305 of 2007 a
