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2015 Supreme(Bom) 2384
IN THE HIGH COURT OF BOMBAY
Roshan Dalvi, J.
Kedar Chandrakant Berde - Appellant
Vs.
Rishabraj Housing - Respondent
Notice of Motion No. 1519 of 2013 in Suit No. 760 of 2013 with Chamber Summons No. 1123 of 2014 and Notice of Motion (L) No. 1961 of 2014
Decided on : 15-06-2015
Advocate Appeared:
For the Petitioner: Kaushal A. Tamhane, Pranesh J. Gada, Ms. Meenakshi Dhanuka, M/s Dhanuka and Partners
For the Respondent: G.N. Salunke, S.R. Sharma, Shreepad Murthy, Pinky M. Bhansali
The entitlement of the plaintiff to specific carpet area of the flat under the initial agreement and the new DC Rules.
Headnote:
entitlement - flat No. 702 - Development Control Regulations for Greater Mumbai, 1991 (D.C. Rules) - Rule 35 (4)
Fact of the Case:
The plaintiff sued for entitlement of flat No. 702 admeasuring 830 sq. ft. carpet area on the 7th floor of the suit building being redeveloped by defendant No. 1.
Finding of the Court:
The court found that the plaintiff was entitled to 562.5 sq. ft. carpet area free of cost from 830 sq. ft. of carpet area of the flat and shall be entitled to purchase the remaining 267.5 sq. ft. of carpet area of the said flat as agreed by and between the parties.
Issues: Entitlement to flat area under the initial agreement and the new DC Rules, interpretation of the proviso No. 3 of the D.C. Rules, and the plaintiff's entitlement to purchase the remaining area of the flat.
Ratio Decidendi: The plaintiff was entitled to 562.5 sq. ft. carpet area free of cost from 830 sq. ft. of carpet area of the flat and shall be entitled to purchase the remaining 267.5 sq. ft. of carpet area of the said flat as agreed by and between the parties.
Final Decision: The plaintiff was entitled to flat No. 702 admeasuring 830 sq. ft. carpet area in the new building being constructed and redeveloped by defendant No. 1 and was bound to pay only the remainder of the amount for the purchase at the agreed rate.
The plaintiff has sued for entitlement of flat No. 702 admeasuring 830 sq. ft. carpet area on the 7th floor of the suit building being redeveloped by defendant No. 1, for execution of a fresh permanent alternate accommodation in respect of the suit flat and for ancillary reliefs.
2. The plaintiff has taken out the notice of motion for the usual injunctions and the appointment of a Court Receiver. The defendant has taken out the other notice of motion for granting to the plaintiff a judgment on admission in terms of prayers (b) and (c) (which are the main reliefs as aforesaid) and in the alternate for restriction of the interim order to flat No. 702 admeasuring 830 sq. ft. carpet area in the suit building.
3. There have been various arrangements between the parties, the last of which is for grant of the aforesaid flat No. 702 admeasuring 830 sq.ft carpet area as per the plaintiff's prayer. The plaintiff has claimed the said relief in prayer (b) to the plaint and the defendant accepts the grant of the said relief.
4. The parties claim under the initial agreement between the parties for redevelopment of defendant No. 1 society in which the plaintiff is a member dated 14th October, 2010, Exhibit-B to the plaint.
5. Under clause 6 of the said agreement the plaintiff claims that any additional FSI due to any change in the Development Control Regulations for Greater Mumbai, 1991 (D.C. Rules) a Government policy would enure to the plaintiff as the member of defendant No. 2 society and the developer, defendant No. 1, equally.
6. After the execution of the said agreement the D.C. Rules indeed changed. Fungible FSI came to be provided under Rule 35 (4) of the DC Rules to the extent of 35% for residential development. The plaintiff does not accept judgment in terms of prayer (b) of the plaint. The plaintiff would claim that aside from 830 sq. ft. of carpet area the plaintiff would be entitled to further 35% of the area and thus would be entitled to a flat of more than 1000 sq. ft. of area (the exact area not being specified).
7. The plaintiff's flat is 417 sq. ft. in area. That would be the specific entitlement of the plaintiff. The plaintiff would be eligible to get that area under any redevelopment. However under the agreement between the parties the plaintiff was to obtain an additional 104 sq. ft. of area as a free component. The plaintiff further agreed to purchase 309 sq. ft. of area. Thus making out 830 sq. ft. of carpet area. The plaintiff further demands an additional 35% of his initial area of 417 sq. ft.
8. The defendant would claim that the plaintiff would be entitled to either what is agreed under the agreement which would total to 830 sq. ft. carpet area or to the entitlement under the new DC Rules 35 (4) relating to fungible compensatory FSI.
9. Counsel on behalf of the defendant drew the Court's attention to proviso No. 3 of the said D. C. Rules, which runs thus :
"Provided further that such fungible compensatory FSI for rehabilitation component shall not be used for free sale component and shall be used to give additional area over and above eligible area to the existing tenants/occupants".
10. It is seen that under the said proviso provides for the fungible FSI of the additional area over and above the eligible area. The eligible area for the plaintiff is 417 sq. ft. The additional area would be 35% of 417 sq. ft. as per DC Rule 35 (4) itself. The plaintiff would, therefore, be entitled to 417 + 145.5 = 562.5 sq. ft. of area.
11. It is seen that the case of the plaintiff of claiming under the agreement as also under the development rules cannot be accepted. The claim of 50% of the additional FSI under clause 6 of the agreement would require the plaintiff to show what is precisely the additional FSI. The plaintiff has not shown that aspect. Counsel on behalf of the plaintiff has not argued upon such an aspect.
12. It is argued that the developer has amended the initial plan and modified the same to claim the fungible FSI un
