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High Court of Judicature at Bombay
S.C. DHARMADHIKARI
Ashok Punjabi & Others
Versus
High Class Developers & Others
NOTICE OF MOTION NO.278 OF 2011 IN SUIT NO.196 OF 2011
Decided on: 04-04-2012
MAHARASHTRA OWNERSHIP FLATS ACT, 1963 - Section 7 - Conversion of parking areas into go- downs. Non compliance of provisions of Section 7 of Act by promoters of building, renders conversion of parking areas into godowns by them illegal.
If flats are agreed to be sold and there is a written agreement, then, the flat purchaser having been disclosed the plans and specifications, no alterations therein are permitted nor any additions and both have been dealt with separately by Section 7.
If possession is not given to them, the amounts collected from them have to be repaid and refunded with interest. No mortgage can be created in relation to the property without consent of the parties. Thus, after the flat is sold and the purchaser is put in possession, there is an obligation to take steps for formation of Co-operative Society or company. That is the stage at which the collective consent or the organised group being approached and informed and its approval taken in accordance with law, would arise and not prior thereto. In the instant case the aforenoted statutory compliance with Section 7 is admittedly not made. Prima facie, therefore, there is no denial of the factual assertion that there is a conversion of the basement areas which are clearly earmarked and demarcated in the plans for parking, into storage and that is by enclosing them. This is for commercial use. That having been done without obtaining the previous consent of the persons who have agreed to take the fiats/units, prima facie, it is wholly illegal.
The plaintiffs are the unit owners in the building known as "Kotia Nirman" constructed on Plot No.2, Shah Industrial Estate, Link Road, Andheri (West), Mumbai 400 053 on Final Plot No.138, TPS-III, Mahim Division at Senapati Bapat Marg, Matunga (West), Mumbai 400 016.
2. The defendant Nos.1 and 2 are the promoters within the meaning of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (Act IV of 1963) (hereinafter referred to as MOFA).
3. The defendant No.3 is the Planning Authority for Greater Bombay under the Maharashtra Regional Town Planning Act and that is also the authority to sanction and approve the plans under the Mumbai Municipal Corporation Act, 1888. The defendant No.4 is the son of defendant No.2. He is impleaded because he has converted his proprietary concern M/s.Asian Marble into a partnership firm. The defendant No.4 as a partner has been inducted for development of defendant No.2's share in the suit property. This firm is stated to have entered into Development Agreement with defendant No.5. The defendant No.4 is claiming that the partnership between he and his father has been dissolved on 10th December 2004 and as per the terms of dissolution he is entitled to certain premises on the ground and sixth floor.
4. Be that as it may, it is not presently the subject matter under dispute.
5. It is stated that two brothers Mr. Durgalal Ramprasad Kotia and Mr. Murarilal Ramprasad Kotia were seized and possessed of the above mentioned plot which admeasures 2417 sq.mts. With regard to this property and certain obligations, there was a dispute and thereafter what is referred to in para 4 is that the land admeasuring about 1208.50 sq.mtrs stands in the name of Murarilal Ramprasad Kotia and the rear portion of 1226 sq.mtrs out of the total area stands in the name of Durgalal Ramprasad Kotia.
6. It is then alleged that Durgalal Kotia being the owner of the rear portion entered into Development Agreement dated 14th December 2004 with M/s.High Class Developers for the construction of a commercial building known as "Kotia Nirman" consisting of ground plus six floors as per the plans that may be approved by the Municipal Corporation. The plaintiffs state that both the brothers then jointly applied to the Additional Collector and Competent Authority under the Urban (Land Ceiling and Regulation) Act, 1976 for permission to develop the property and the Letter of Intent was issued on 2nd November 2002.
7. Both the brothers had jointly applied for development of their respective property. This is a joint development by construction of a commercial building. The building plan for the construction of the said new building named as "Kotia Nirman" was approved and Intimation of Disapproval (IOD) dated 26th December 2002 was issued in their joint names. In the proposed building consisting of "A" and "B" side, building "A" is in the share of Durgalal Ramprasad Kotia and building "B" is in the share of Murarilal Ramprasad Kotia.
8. On 14th July 2003 a commencement certificate was issued by defendant No.3 Municipal Corporation for a period valid up to 13th July 2004 for construction upto the top of the basement. Thereafter, the said permission was extended from time to time upto sixth floor.
9. The development work on the portion of the land belonging to Murarilal was entrusted to his son Madan Mohan in partnership in the name and style of M/s.Asian Marble Industries. It appears that they did not have necessary funds and, therefore, they appointed a developer M/s.Shree Balaji Developers to complete the said balance work under the Development Agreement dated 18th June 2004 and it appears that M/s.Shree Balaji Developers agreed to give constructed area admeasuring 9000 sq.ft carpet area on the entire second, third and forth floors in the "B" side of the building known as "Kotia Nirman" as consideration for completing entire "B" side. However, the said M/s.Shree Balaji
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