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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
M/s. Dosti Corporation and Ors. – Appellant
VERSUS
Sea Flama Co-operative Housing Society and Ors. – Respondents
APPEAL FROM ORDER NO. 117 OF 2016 ALONGWITH APPEAL FROM ORDER (ST) NO. 23483 OF 2015 IN NOTICE OF MOTION NO. 2672 OF 2014 IN SUIT NO. 2073 OF 2014
Decided On : 7-4-2016
The court examined whether the provisions of the Maharashtra Ownership Flats Act, 1963 (MOFA) were impliedly repealed by the Maharashtra Housing (Regulation Development) Act, 2012 (2012 Act). The court held that the provisions of MOFA were not repealed and that the rights of the flat purchasers to obtain a conveyance deed from the developer had already accrued and vested in them. The court also held that the developer could not apply for a modification of the plan and/or for carrying out any further development on the suit property without the consent of the flat purchasers.
Fact of the Case:
The plaintiff, a cooperative housing society, filed a suit against the defendant, a developer, for various reliefs, including a declaration that the defendant was under an obligation to convey the suit property to the plaintiff and to remove barricades and desist from obtaining and/or withdrawing any sanction for purported public parking lot and also called upon the defendant to pay over corpus amount. The defendant applied for modification of the plan and also obtained commencement certificate for work upto plinth level to proceed with the said building or work at any time before 17th November, 2010 admeasuring about 15990.32 sq.mtrs. and 41.96 mtrs in height. The plaintiff obtained Certificate of Area Statement in respect of Wing 'C' under the Right to Information Act. The plaintiff also came to know that on 4th March, 2011 the Urban Development Department of the State Government had sent a letter to the Municipal Commissioner requesting it to submit a proposal for amendment of clause 33(24) of the Development Control Regulation for limiting the height of parking towers to 4 floors and also revocation of all sanctioned proposals where the commencement certificate had not been issued. The Municipal Corporation thereafter issued a circular on 22nd June, 2011 thereby prescribing certain conditions under clause (iv) of the Regulation 33(24) of the Development Control Regulation and certifying that all proposals for public parking lots shall be considered subject to those conditions. The plaintiff society thus filed a suit in the City Civil Court at Bombay against the defendants.
Finding of the Court:
The court held that the provisions of MOFA were not repealed by the 2012 Act and that the rights of the flat purchasers to obtain a conveyance deed from the developer had already accrued and vested in them. The court also held that the developer could not apply for a modification of the plan and/or for carrying out any further development on the suit property without the consent of the flat purchasers.
Issues: 1. Whether the provisions of MOFA were impliedly repealed by the 2012 Act? 2. Whether the rights of the flat purchasers to obtain a conveyance deed from the developer had already accrued and vested in them? 3. Whether the developer could apply for a modification of the plan and/or for carrying out any further development on the suit property without the consent of the flat purchasers?
Ratio Decidendi: 1. The court held that the provisions of MOFA were not repealed by the 2012 Act because: a. There was no express or implied provision in the 2012 Act to indicate that the Act would have retrospective effect. b. The 2012 Act did not substitute the existing provisions of MOFA under which the rights to get the deed of conveyance executed in favour of the flat purchasers from the developer had already been accrued and vested in them. c. The entire 2012 Act was not brought into effect, and even the provisions that were brought into effect were not made applicable with retrospective effect. 2. The court held that the rights of the flat purchasers to obtain a conveyance deed from the developer had already accrued and vested in them because: a. The developer had a statutory duty under MOFA to execute a conveyance deed in favour of the flat purchasers. b. The flat purchasers had already paid the full consideration for the flats and were in possession of the flats. c. The developer had not obtained the consent of the flat purchasers before applying for a modification of the plan and/or for carrying out any further development on the suit property. 3. The court held that the developer could not apply for a modification of the plan and/or for carrying out any further development on the suit property without the consent of the flat purchasers because: a. The developer had a statutory duty under MOFA to obtain the consent of the flat purchasers before carrying out any further development on the suit property. b. The flat purchasers had already paid the full consideration for the flats and were in possession of the flats.
Final Decision: The court dismissed the appeals filed by the developer and upheld the injunction order passed by the trial court restraining the developer from putting up any construction upon and over the suit property till the disposal of the suit and from using any FSI as available to the suit property or any part thereof till the disposal of the suit.
By consent of parties, both these appeals were heard together finally at the admission stage and are being disposed of by a common order.
2. Appeal from Order No.117 of 2016 filed by the original defendant no.1 inter alia challenging the order dated 27th July, 2015 passed by the learned trial judge in the Notice of Motion No.2672 of 2014 which was filed by the respondent no.1 herein (original plaintiff) and thereby granting temporary injunction against defendant nos. 1 and 2 restraining them from putting up any construction work upon or over the suit properties till disposal of the suit and further restraining them from using any FSI as available in the suit properties or part thereof till disposal of the suit.
3. Appeal from Order (St) No.23483 of 2015 has been filed by the original defendant no.1 challenging the said order dated 27th July, 2015. Respondent nos. 3, 4 and 5 in these appeals were the original defendant nos. 3, 4 and 5 respectively in the notice of motion. For the sake of convenience, the parties as described in the notice of motion were described in this judgment. Some of the relevant facts for the purpose of deciding these two appeals are as under :-
4. Defendant no.2 was the original owner of the suit property i.e. land bearing CS No.5/209 (part) of Parel Bhoiwada and Sewri Division and C.S.No.210 (part) of Parel Sewri Division admeasuring in aggregate 27,185.46 sq.mtrs. both situate at Tokershi Jivraj Marg, Sewri, Mumbai.
5. By a registered development agreement dated 10th June, 2004 between the defendant no.2 and defendant no.1, the defendant no.2 gave the suit property to the defendant no.1 for the purpose of development of the suit property and also executed a registered irrevocable power of attorney.
6. On 10th September, 2004, the defendant no.2 entered into a registered supplemental development agreement with the defendant no.1 confirming that the defendant no.2 had received full and final consideration from defendant no.1 and also executed further irrevocable power of attorney granting various powers to the defendant no.1 for developing the suit property.
7. The development of the suit property commenced on 27th May, 2004 and continued till 31st March, 2008. During the stage of the construction on the suit property, various parties entered into agreement for sale with the defendant no.1 for purchase of various flats in the four wings constructed by the defendant no.1. The defendant no.1 constructed a complex i.e. Dosti Flamingos Project comprising of four wings i.e. Wing 'A', Wing 'B', Wing 'D' and Wing 'E' and subsequently registered four separate co-operative housing societies viz. Snow Flama, Sandy Flama, Sea Flama and Sky Flama respectively connected by a common basement podium on the said property. The original plaintiff and defendant nos. 3 to 5 are those four societies occupying those four wings i.e. Wing 'A', Wing 'B', Wing 'D' and Wing 'E' respectively.
8. On 27th May, 2004, the defendant no.1 obtained commencement certificate from the Municipal Corporation of Greater Mumbai. On 22nd June, 2007, the defendant no.1 obtained completion certificate for Wing 'A' which was subsequently registered as Snow Flama Co-operative Housing Society Limited and Wing 'B' which was registered as Sandy Flama Co-operative Housing Society Limited. It is the case of the plaintiff that defendant no.1 however did not form the society as per obligation cast on the defendant no.1 under the provisions of Maharashtra Ownership Flats Act, 1963.
9. On 31st March, 2008, the Municipal Corporation issued a completion certificate for the entire complex with the entire sanction and accurable FSI of 38185.10 sq.mtrs. save and except 2.5 sq. mtrs as on that date being fully utilized. According to the plaintiff, the development thus stood completed on 31st March, 2008.
10. On 19th May, 2010, the defendant no.1 registered the Snow Flama Cooperative Housing Society Limited i.e. after delay of about three years from the date of co
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