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2010 Supreme(Bom) 600
2011(6) ALLMR 829
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.K. DESHMUKH, J & V. R. KINGAONKAR, JJ.
Grand Paradi Co- operative Hsg. Society Ltd. & Ors.
Vs.
Mont Blanc Properties & Industries Pvt. Ltd. & Anr.
Appeal No. 599 of 2002. In Notice of Motion No. 94 of 2002. In Suit No. 99 of 2002
Decided on : 20th April, 2010.
Mr. MILID SATHE, Sr. Advocate a/with. V.R. DHOND, J.P. SEN i/by BACHUBHAI MUNIM & Co. for the Appellants.
Mr. RAVI KADAM, Advocate General with Mr. S.U. KAMDAR with Mr. VINIT NAIK, J'.K. SHROFF, Mr. S.B. KOTAK, D.V. DEOKAR, JAYLAXMI GAUD, V.P. SHROFF i/by P.K. SHROFF & Ca. for Respondent No.1.
Mr. TUSHAD COOPER with RAVJIT SHETTY i/by HARIANI & Co. for the Respondent No.2.
Headnote:Maharashtra Ownership Flats (Regulations of Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Sections 7 and 7-A-Additional structures-Raising at by builder-Consent of flat owners-Necessity of-Disclosure of additional structures in layout plan itself at time of sale of flats, entitled builder to raise additional structures- Consent of flat owners for, not necessary-However, non-disclosure of same in layout plan renders previous consent of flat owners necessary.-Builder is always entitled to raise additional structures if he discloses the additional structures in the layout plan itself at the time when he sells the flats. No consent of the flat owners is necessary for raising additional structures. But if the additional structures are not disclosed in the layout plan then previous consent of the flat owners is necessary.
1. By this Appeal, the appellants challenge the order passed by the learned single Judge of this court dated 3rd April, 2002. The appellants are the plaintiffs. The plaintiffs are a co-operative housing society. It has filed the civil suit, claiming a decree of declaration that the members of the plaintiff no.I society and defendant no.2 society are the only beneficial owners of the property bearing city survey no.572 of Malabar Hill and Cum ball Hill Division more particularly described in Schedule A to the conveyance deed. They are also seeking decree, directing the defendant no.1 to execute conveyance in favour of plaintiff no.1-society in respect of their entire right, title and interest in the lands and buildings, more particularly described in schedule A to Exhs. 'C' and 'D' in favour of plaintiff no.1 in terms of the provisions of Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as the' Act').
2. In the suit the plaintiffs had taken out a notice of motion, claiming several interim relief The principal interim relief claimed is that defendant no.1 shall not raise any additional construction on the vacant land. That notice of motion bearing no. 94 of 2002 which was heard by the learned single Judge of this court was dismissed by order dated 3rd April, 2002. It is this order of the learned single Judge which is challenged in the present Appeal.
3. On the land in question which is admittedly owned by the defendant no. 1 there are 3 buildings and 14 row houses which are occupied by the members of the plaintiff no. 1 society. There is one more building constructed by the defendant no. 1 which is occupied by the members of the defendant no.2 society. Admittedly, the defendant no. 1 who had entered into agreement in the year 1971 with the members of the plaintiff no.1 society agreed to grant lease of the flats in the building or row houses constructed by the defendant no.1 Defendant no. 1 had agreed that the lease deed for a term of 999 years in respect of the flats and the land on which the building into which the flats owners are having their flats, will be executed. The case of the plaintiff in the plaint, however, is that despite this term in the lease deed, the society is entitled to the transfer of ownership of the entire plot in its favour because of the provisions of the Act. It is further the case of the plaintiff that defendant no. 1 cannot raise any further construction on the vacant land without obtaining previous consent of the members of the plaintiff no. l- society. These contentions have been negative by the learned single Judge.
4. The learned counsel appearing for the appellants submits, relying on the judgment of the Supreme Court in the case of Jayantilal Investments vs. Madhu vihar Coop. Hsg. Society, reported in (2007) 9 Supreme Court Cases 220 : [2007(2) ALLMR 398 (S.C,) : 2007 ALL SCR 857), that in view of the provisions of section 7 and 7-A of the Act, irrespective of the agreement entered into between the parties, the plaintiff is entitled to have conveyance of the entire property in its favour. The learned counsel also relied on the judgment of the learned single Judge in the case of Bajranglal Eriwal vs. Sagarmal Chunilal, reported in 2008 (6) Bom. C.R. 887 and submitted that the learned single Judge has wrongly interpreted the judgment of the learned single Judge of this court in the suit filed by defendant no.2. The learned counsel submitted that in view of that order passed by the learned single Judge, really speaking order of temporary injunction, should have been passed in favour of the plaintiff. The learned counsel submits that the defendant no. I was obliged to execute conveyance of the property in favour of the plaintiff in terms of the provisions of the Act in the year 1989 itself. He submits that in 1989 entire FSI which was available as per the law then in force was exhausted by the defendant no
