2010 Supreme(Bom) 1455

HIGH COURT OF JUDICATURE AT BOMBAY
THE HONOURABLE MR. JUSTICE B.R. GAVAI
Madhuvihar Co-operative Housing Society & Others
Versus
M/s. Jayantilal Investments & Others
FIRST APPEAL NO. 786 OF 2004 WITH FIRST APPEAL NO. 989 OF 2004
Date of Judgment : 07-10-2010

Headnote:Maharashtra Open Prisons Rules, 1971 - Sections 7 and 7-A - Blanket consent - Given by flat owners in agreement - Held - Blanket consent or authority obtained by promoter, at time of entering into agreement of sale or at time of handing over possession of flat is not consent under Section 7(1) of MOFA - Such a consent would have effect of nullifying benevolent purpose of beneficial legislation. - There is consistent view of the Court, that the blanket consent or authority obtained by the promoter, at the time of entering into agreement of sale or at the time of handing over possession of the flat, is not consent within the meaning of Section 7(1) of the MOFA, inasmuch as, such a consent would have effect of nullifying the benevolent purpose of beneficial legislation.

       Maharashtra Open Prisons Rules, 1971 - Sections 7 and 7-A - Suit filed by society and flat takers (members) - Questioning validity of sanctions given by Competent Authority to amend plan dated 29.3.2001 sanctioning 5+2 wings applying newly available FSI - Layout plan initially sanctioned on 21.10.1985 indicates 1+7 wings - Contention, amenities assured taken away by additional construction - Held - Additional structure not forming part of original layout of 1985 could not be constructed without consent of society. - It is, thus, clear that there is no manner of doubt from the sanction plans, as well as, the permission granted by the Urban Land Ceiling Authority, that the project in question, as projected by the promoter and sanctioned by the Corporation in the year 1985, was of 7 wings which were interlinked to each other and not of 7 independent buildings. Not only this, but the perusal of the brochure would reveal that the layout which was presented by the promoter to the flat takers would show that the said project was one building with various wings interlinked to each other. Perusal of the plan which is annexed with the agreement between the promoter and the purchaser of the flat would also reveal that the plan shows one building with various wings interlinked to each other and it does not show the additional building which is shown in the plan of 2001. Perusal of the plan of 1985, with the plan of 2001, would reveal that there is a substantial change in the layout plan.

       In the present case, the scheme was floated in the year 1985, showing 7 wings. The building was completed in the year 1989 and the purchasers who had entered into agreement with the promoter were put in possession. In this respect, it would also be relevant to refer to condition No. 4 of the occupation certificate dated 12th April 1989 issued by the Bombay Municipal Corporation, which reads thus :

       "That, the co-operative society shall be formed and registered within three months from the date of issue hereof, or before B.C.C. whichever is earlier."

       

       It is not in dispute, that in furtherance to the statutory obligation enjoined upon the promoter, in view of Section 10 of the MOFA and Rule 8 of the Rules, though the promoter had initially taken steps for forming of co-operative society, the matter was not taken to logical end. As such, the flat takers were required to move the appropriate authority for registration of the society. Accordingly, the Competent Authority granted registration to the plaintiff No. 1/society on 20th January 1993. It is further to be noted that, though the appeal was preferred by the promoter against the said order, the appeal was rejected. It could, thus, be seen that the promoter was under the statutory obligation in view of Section 11 of the MOFA read with Rule 9 of the Rules, to execute conveyance in favour of the society, within a period of four months.

       In that view of the matter, Court is of the considered view that the promoter was statutorily obliged to execute conveyance in favour of the society within a period of 4 months from 20th January, 1993 i.e. the date of registration of the society. Court is also of the considered view, that the additional structure which was not forming part of the original layout in the year 1985, could not have been constructed without consent of the society.

       Maharashtra Open Prisons Rules, 1971 - Sections 7 and 7-A - Civil Procedure Code, 1908, Order XX, Rule 16 - Appointment of Commissioner - Direction for - For taking accounts to verify and take accounts as provided in Order XX, Rule 16 of CPC - Held - Sound and cogent reasons given by trial Court in para 3 of its judgment indicating necessity for appointment of Commissioner, warrants no interference. - In so far as the direction for appointment of Commissioner for taking accounts to verify and to take accounts as provided in Order XX, Rule 16 of the Code of Civil Procedure, is concerned, since the trial Court has given sound and cogent reasons in paragraph 31 of the judgment, as to why appointment of Commissioner is necessary, no interference is warranted in the same.

       Maharashtra Open Prisons Rules, 1971 - Sections 10 and 11 - MOF Rules, 1964, Rule 9 - Suit for conveyance - Filed by society and flat takers (member) - Contention, period mentioned in Section 10 of MOFA and Rules 9 of MOF Rules applicable only when period for execution of conveyance not provided in agreement - Held - Promoter duty bound to execute conveyance in favour of society within a period of 4 months from date of registration of society. - In view of this specific admission, that the last flat was sold in 1992 and that there being no evidence to show that any demand was made by the promoter from flat purchasers towards any dues, the contention, that since the entire flats were not sold and the payment was not received, the time to execute conveyance had not arrived, is totally without substance. In view of Section 11 of the MOFA and Rule 9 of the Rules, the promoter was duty bound to execute the conveyance within a period of four months from the formation of the society. This position is fortified by Clause 9 in the ULC permission and Condition No. 4 in the occupancy certificate issued by the Corporation. The promoter cannot be permitted to derive advantage of his own wrong in not complying with the statutory obligation.