Shahed Kamal vs Pagarani Universal Infrastructure Private Limited, formerly known as A. Surti Developers Pvt. Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 589

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J.KATHAWALLA, MILIND N. JADHAV, JJ.
Shahed Kamal - Appellant
Versus
Pagarani Universal Infrastructure Private Limited, formerly known as A. Surti Developers Pvt. Ltd. - Respondent
Appeal (L) No.8104 of 2020 In Interim Application (L) No.3986 of 2020 With Notice Of Motion No.1358 of 2019 In Suit No.610 of 2019
Decided on : 17-03-2022

Advocates:
Advocate Appeared:
Mr. Karl Tamboly with Mr. Aseem Naphade, Mr. Ajay Panicker, Mr. Akshay Patil i/by Ajay Law Associates, Mr. J.P.Sen, Mr. Firoz Bharucha i/by Mr. Yatin Nagin Shah, Mr. Sampat Chhawchharia, Mr. Sharan Jagtiani, Mr. Udayan Shah, Mr. Priyank Kapadia, Ms. Shradha Achliya, Mr. Akshay Shinde i/by Mr. Akshay Shinde, Mr. Rohaan Cama, Mr. Shanay Shah, Adv.

Headnote:
Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Section 10, 11, 37(2), 31, 3, 139, 131(2)(b), 12, 2(c) - Mumbai Metropolitan Region Development Authority Act, 1974 - Societies Registration Act, 1860 - Letters Patent Act - Clause 15 - Land Acquisition Act, 1894 - Section 11 - Bombay Stamp Act, 1958 - Maharashtra Apartment Ownership Act, 1970 - Delhi Rent Control Act - Section 3(c) - Urban Land (Ceiling and Regulation) Act, 1976 - Section 2 (n) - Land - Order Of Injunction - Buildings - Whether MMRDA Act excludes applicability of MOFA - Whether any specific provision or rights claimed under MOFA would be available to flat purchasers against a developer - Whether a particular provision of MOFA affected ‘land’ of MMRDA or not - Whether Section 31 read with Schedule II, Clause II of MMRDA Act excludes applicability of MOFA as a whole - Whether Section 31 read with Schedule II, Clause II of MMRDA Act excludes applicability of MOFA only to extent that it affects rights of MMRDA – Held, Agreement for Sale executed between Appellants and Developer itself provides that contract will be subject to said Lease Deed executed between MMRDA and Developer - Lease Deed in turn provides that terms thereof shall be subject to MMRDA Act - Thus, parties were at all times aware that terms of said Agreement for Sale are subject to MMRDA Act and therefore excluded - Hence, even for this reason Developer and Appellants cannot agree to incorporate or enforce provisions of MOFA inter se - Therefore, a fundamental contradiction in terms of Agreement for Sale itself which indirectly acknowledges applicability of MMRDA Act but also provides for application of MOFA which is inconsistent with Section 31 read with Schedule II to MMRDA Act - Terms of agreement which are contrary to provisions of law or any statutory requirements, cannot be complied with - For reasons aforesaid Court hold that since applicability of MOFA has been excluded by MMRDA Act, Developer and flat purchasers contract to incorporate provisions of MOFA and even if done same cannot bind parties inter se – Court must note here that Appellants have also made various submissions and relied on various judgments to contend that Developer is constructing said Additional Building without obtaining informed consent of flat purchasers - Since Court have already held that applicability of MOFA as a whole has been excluded by Section 31 read with Schedule II, Clause II of MMRDA Act, Court hold that there was no requirement for Developer to obtain consent of flat purchasers before commencing construction of Additional Building - What was necessary for Developer was to obtain permission from MMRDA, which is owner of Suit Plot as well as Planning Authority and same has been done - Additional premium for exploiting further FSI has been paid - Developer has also developed reservation on Suit Plot and handed over same to MMRDA as required as a condition for developing Suit Plot - Appeal dismissed.

JUDGMENT :

1. The challenge in the present Appeal is based on the interplay between two statutes viz. the Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (‘MOFA’) and the Mumbai Metropolitan Region Development Authority Act, 1974 (“MMRDA Act”).

2. The reliefs sought by the Appellants/Original Plaintiffs are based on enforcement of statutory rights that they claim by application of MOFA on Plot No. 288/B, at Amrut Nagar, Bandivali Village, Jogeshwari (West), Mumbai - 400 102 (“the Suit Plot”). The Respondent No.1/Original Defendant No.1, being the Developer, and Respondent No.8/Original Defendant No.8 i.e. Mumbai Metropolitan Region Development Authority (“MMRDA”), dispute these rights inter alia on the basis that the provisions of MOFA are expressly excluded in respect of any land or building belonging to or vesting in MMRDA.

3. The Appellants are the Original Plaintiffs in Suit No. 610 of 2020 (“the Suit”) and are 98 in number, 97 of whom are purchasers of flats in a building known as ‘Universal Garden - I’ (“the said Building”) constructed on the Suit Plot. Appellant No. 98 is Universal Garden - I Flat Owners’ Welfare Association, a society registered under the Societies Registration Act, 1860.

4. Respondent No. 1, Pagarani Universal Infrastructure Pvt. Ltd. (formerly known as A. Surti Developers Pvt. Ltd.) (“the Developer”) is the Original Defendant No. 1 in the Suit. Respondent No. 1 is a private limited company who is developing the Suit Plot and has constructed the said Building thereon. Respondent Nos. 2 to 7 are the Directors of Respondent No. 1. The Appellant flat purchasers have purchased flats in the said Building under separate Agreements for Sale from the Developer.

5. Respondent No. 8 i.e. MMRDA is the Original Defendant No.8 in Suit and is an authority constituted under the MMRDA Act inter alia for regulating the development of the Mumbai Metropolitan Region (“MMR”). In the present case, MMRDA is the owner of the Suit Plot and has leased the same to the Developer. MMRDA is also the Special Planning Authority for the area in which the Suit Plot is located.

6. By the present Appeal, the Appellants have challenged a common Order dated 25th November 2020 (“the Impugned Order”) passed by the Learned Single Judge dismissing Notice of Motion No.1358 of 2019 (“the Notice of Motion”) and Interim Application (L) No.3986 of 2020 (“the Interim Application”) filed by the Appellants in the Suit.

7. The Appellants had sought the following reliefs in the Notice of Motion :

“a) Pending the hearing and final disposal of the suit, Defendant No.1 to 7 and all other persons claiming through them be restrained by an order of injunction from putting up additional buildings/construction on the Suit Plot No.288/B, nearing Survey No. 36, Hissa No.7 and Corresponding C.T.S. No. 288/B admeasuring 6912.25 Meters, laying and being at Village Bandivali, Taluka Andheri, Amrut Nagar, Jogeshwari (West), Mumbai and from creating any encumbrances on the suit property by way of gift, sale, mortgage, lien, lease, tenancy, license, or by transfer of FSI of the suit plot, or in any other manner whatsoever nature on the said Plot and/or any structure constructed thereon;

b) Pending the hearing and final disposal of the suit, Defendant Nos. 1 to 7 their agents, servants and all persons claiming through the defendant no.1 be restrained by an order of injunction from obstructing use and enjoyment of the suit plot, the ingress and egress of the Plaintiffs and their family members to the suit plot and from creating any obstructions and hindrances from the usage of the said plot;

c) Pending the hearing and final disposal of the suit, Defendant Nos. 1 to 7 their agents, servants and all persons claiming through the defendant no.1 be restrained by an order of injunction from putting up any further building plans to the Defendant No.8 and the defendant no.8 be restrained from issuing any further permissions t

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2022 Supreme(Bom) 589

Cases Referred (38)