Bhuvaraha Maithreyan, Through ... vs Municipal Corporation For The ...
2002 Latest Caselaw 833 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Rule By consent, rule is made returnable forthwith,

2. The applicant challenges a common order dated 15.4.2002, passed by the Lower Appellate Court, dismissing the appeal filed by the applicant against the common order dated 21,1.2002, dismissing the applications filed by the applicant.

3. The applicant herein is the plaintiff in R.C. Suit No. 1352 of 2001 and the respondents are the defendants therein. The respondent No. 4 herein is the plaintiff in R.C. Suit No. 1851 of 2001 and the other respondents and the, applicant herein are the defendants therein. The applicant's suit is for a declaration that the construction carried out by the respondent No. 4 is illegal and for consequential relief In the nature of permanent injunction to restrain the respondent No. 4 from carrying on such construction as well as relief in relation to the sanction by the Municipal Authorities, issued on 3.7.2001, on the ground that the same being illegal. The suit filed by the respondent No. 4 is for a declaration that the notice issued by the Municipal Authorities on 24.9.2001 being illegal and for further relief in the nature of injunction to restrain the respondent-Corporation from stopping the construction carried out by the respondent No. 4 in suit property.

4. The applicant's case is that he has purchased a residential flat in Lunkad Villa by an agreement dated 12.6.1990 and the said flat, bears No. 7. M/s. Nav Maharashtra Builders had developed the said property under the name of Lunkad Villa. On 6.7.2001, the respondent No. 4 informed the applicant that he was going to develop the remaining property out. of Plot No. 82 and Plot No. 27. which forms the subject-matter of the suit. Subsequently, the respondent No. 4 commenced the construction. In the sanctioned plan the construction which is being carried out by the respondent No. 4 is shown as "B" Wing. It is the contention of the applicant that the proposed construction "B" Wing is being carried out in the area which was reserved as an open space in the rear portion of Lunkad Villa. The said area was also meant for the purpose of parking of ears of the residents of Lunkad Villa, and that the construction is contrary to the provisions of the Development Control Rules, more particularly in relation to the requirement of maintaining the minimum open space around the building to facilitate the movement of vehicles and equipments from the fire brigade department in case of fire in or to the building. On the other hand, it is the case of the respondents that there has been no violation of any of the provisions of the Development Control Rules and none of the rights of the applicant is affected by the proposed construction.

5. The impugned order is sought to be assailed, firstly, on the ground that the construction which is being carried out by the respondent No. 4 is without maintaining the minimum required open area around the building from the safety point of view in case of fire accident and the same is in contravention of Rule 6.2.6.1(a) of the Development. Control Rules; secondly, that the proposed construction is not a new building but is an extension of the old building Lunkad Villa; thirdly, the slip-shod conduct of the respondent No. 1 -Corporation discloses the construction carried out by the respondent No. 4 to be illegal; fourthly, that the provisions of law contained in Section 7 of the Maharashtra Ownership Flats Act, 1963, apply not only to the alterations in the structure but. also to the additions to the structure and the said construction being an extension of the existing building, offends the provisions of Section 7, giving cause to the applicant to restrain the respondents from carrying on with the said construction; fifthly, that the expression "after obtaining the approval of the Local Authority" under Section 7A of the said Act would apply to the cases where such approval was obtained prior to the execution of the agreement with the flat purchasers and not otherwise and, therefore, the applicant is entitled to injunctive relief asked for; sixthly, that the decisions on the relevant aspect of the matter by the learned Single Judges being contrary to each other, the matter requires to.be referred to the Division Bench, and discloses a triable issue which make out a prima facie case for the grant of relief prayed for; and seventhly, that the additional construction being done without specific consent of the applicant, who is one of the flat purchasers, and the consent having been given under the agreement for purchase of the flat is neither an effective consent nor the same can be said to be the consent with the prior knowledge of the proposed construction by the respondent No. 4.

6. The first point which arises for consideration, therefore, is whether the construction in question prima facie discloses violation to Rule 6.2.6.1 (a) of the Development Control Rules. The said Rule reads thus :

6.2.6.1 Building Plans for Multi-storeyed/Special Buildings.-For multi-storeyed building which are more than 15m. height and for special buildings like educational, assembly, institutional, industrial storage and hazardous and mixed occupancies with any one of the aforesaid occupancies having area more than 500 sq. m. the following additional information shall be furnished/indicated in the Building Plans in addition to the Items (a) to (m) of Rule 6.2.6 :

(a) access to fire appliances/vehicles with details of vehicular turning circle and clear motorable access way around the building upto 6 m. width.

7. The contention of the applicant is that the word "upto" in Clause (a) of the above Rule would mean minimum 6 m. width. It has been submitted that whenever the word used is "upto" and it is followed by a figure, then it would denote the minimum required limit to be maintained or observed, as disclosed by the figure following the word "upto" and that considering the object of the said Rule being to have an as access for fire extinguishing engine and the vehicle, the word has to be interpreted as "minimum". It is also contended that unless the word "upto" is so interpreted, the builder would be entitled to keep even one foot open space and claim compliance of the said Rule.

8. There is no dispute that the building in question is a multl-storeyed building within the meaning of the said expression under the said Rule. The applicability of the said Rule to the said building is also not in dispute. At the same time, the said Rule nowhere speaks of minimum width of the open space or the access road. Apparently, it only discloses the outer limit required for the access. Does it mean that the builder can at his sweet will provide open space around the building with the width of one foot, as sought to be contended on behalf of the applicant, and claim compliance of the said Rule? Certainly, the answer to the query cannot be found by merely reading the said Rule and ignoring the other provisions of the Development Control Rules. In fact. In order to understand the scope and the exact meaning of the expression "upto" in the said Rule, one will have to read the said Rule along with the other provisions of the Development Control Rules, and particularly Rule 12.6(c) thereof which reads thus :

12.6 For buildings identified in rule No. 6 2.6.1 the following additional provisions of means of access shall be ensured :

(a)...

(b)...

(c) Main entrances to the plot shall be of adequate width to allow easy access to the fire engine and in no case it shall measure less than 4.5 metres. The entrance gate shall fold back against the compound wall of the premises, thus leaving the exterior access way within the plot free for movement of fire service vehicles. Main entrance at boundary wall is built over, the minimum clearance shall be 4.5 m.

Further Rules 20.1 and 20.2 provides thus :

20. Fire Protection Requirements.

20.1 Building shall be planned, designed and constructed to ensure fire safety and this shall be done in accordance with Part FV, Fire Protection of National Building Code of India, unless otherwise specified in these rules. In the case of buildings, identified in Rule No. 6.2.6.1., the Building Scheme shall also be cleared by the Chief Fire Officer, Pune Fire Brigade.

20.2 The additional provisions related to fire protection of buildings more than 15m. in height and buildings identified in Rule No. 6.2.6.1 shall be given in Appendix P.

9. The above provisions of the Development Control Rules disclose that the minimum width of the open space around a multi-storeyed building to enable free movement of fire fighting/extinguishing vehicles has to be 4.5 m. and can be even upto 6 m. and proper decision in that regard will depend upon the facts of each case, to be taken by the Competent Authorities, including the Chief Fire Officer, Pune Fire Brigade, Pune. It is pertinent to note that even in case of the building wherein the flat in occupation of the applicant exists, the access for the fire fighting vehicles around the said building is 4.5 m. in width. It is also to be noted that the pleadings and the records do not disclose any dispute having been raised by the applicant that the width of 4.5 m. is not sufficient for free movement of the fire fighting vehicles and no material in that regard also has been placed on record. In the circumstances, the expression "upto" in Rule 6 of the said Rules cannot be interpreted in the manner sought to be argued on behalf of the applicant. In Syed Musharaf Hussain and Anr. v.

Agha Munawar Ali Khan and Anr. AIR 1940 Lah. 7 while considering whether the date mentioned after the word "upto" to be excluded or not for the purpose of consideration, whether the action could have been initiated on such last date mentioned or could have been taken only after the said date, it was held that the word "upto" may include the last day or may not, and if it is in consonance with justice to interpret it in one of the ways permissible, there can be no complaint on the other side." In the circumstances, there is no prima facie case made out by the applicant regarding non-compliance of the said Rule as such, warranting Injunctlve relief on that count during the pendency of the suit.

10. Secondly, it is sought to be contended that the building in question is in fact not an independent building but an extension of the existing building wherein the flat of the applicant is situated. The contention is apparently contrary to the pleadings of the applicant in the plaint as well as In the application for temporary injunction. The case pleaded by the applicant in the plaint in para 6(B) and in the application for temporary injunction in para 7(b) is that the building under construction is totally different from the building wherein the flat of the applicant is situated. The relevant pleadings in that regard in Para 6(B) of the plaint read thus :

The Lunkad Villa shown as "A" Wing and the proposed "B" Wing do not share any plinth, any wall or even a structural design.... The proposed building of the Defendant No. 4 is not an accessory building to the residential building occupied by the Plaintiff and other residents and therefore it is necessary that the open space between two buildings should be separate or distinct for each building as provided for in the D.C. Rules.

Even otherwise the materials on record nowhere disclose the building in question to be an extension of the existing building. If is well settled that a party is not. entitled to raise an issue beyond the scope and contrary to its pleadings. Hence the contention regarding the building in question to be the extension of the existing building is to be rejected in limine.

11. It is next contended that the slip-shod conduct of the respondent-Corporation reveals the construction in question to be illegal. It is submitted on behalf of the applicant that the respondent No. 1 had on the one hand opposed the application filed by the applicant, thereby had supported the case of the builder, and in the suit filed by the builder, has opposed his application contending the construction to be illegal and had even issued stop work notice on 24.9.2001 but withdrew the same subsequently and therefore it discloses the slip-shod conduct of the respondent No. 1. It is to be noted that, as rightly contended on behalf of the respondents, the withdrawal of the notice had been subsequent to the order of the Court below. Besides, the action on the part of the authority, i. e., the respondent No. 1 in issuing the notice and the subsequent withdrawal thereof and as well as divergent and different defences taken in two different proceedings - one initiated by the applicant and the another by the builder, cannot be labelled as a slip-shod conduct on the part of the respondent-Corporation, though such a conduct may disclose careless or unsystematic approach to the matter in issue by the Corporation. Undoubtedly, the defences taken by the Corporation in two proceedings disclose the same to be inconsistent and contrary to each other in relation to the same subject-matter. However, that itself cannot lead to the conclusion that the construction in question is illegal. Whether the construction violates any of the provisions of law relating to the constructions activities, cannot be decided merely on the basis of the conduct of the respondent No. 1 but has to be adjudicated upon the materials placed on record in relation to the construction itself.

12. It is also sought to be contended that the provisions of Section 7 of the Maharashtra Ownership Flats Act, 1963 apply not only to the alterations in the structure but also to the additions thereto. The point in this respect is required to be considered along with the two other points raised by the applicant, namely, one that the expression "after obtaining the approval of the Local Authority" in Section 7A of the said Act would apply to the cases when such approval was obtained prior to the execution of the agreement with the flat purchasers and not otherwise, and the second one is that the decisions contrary to each other on the relevant aspect of the matter by two learned Single Judges of this Court requires the matter to be referred to the Division Bench.

(A) Pursuant to the amendment carried out to Section 7 of said Act, since 1986, it reads thus :

7. After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats; and defects noticed within three years to be rectified -

(1) After the plans and specifications of the buildings as approved by the Local Authority as aforesaid, are disclosed or furnished to the person who agree to take one or more flats, the promoter shall not make -

(i) any alterations in the structures described therein in respect, of the flat or flats which are agreed to be taken, without the previous consent of that, person; or

(ii) any other alterations or additions in the structure of the building without the previous consent of all the persons who have agreed to take the flats in such building.

(2) Subject to Sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid; and if any defect in the building or material used, or if any unauthorised change in the constructions is brought, to the notice of the promoter within a period of three years from the date of handing over possession, it shall wherever possible be rectified by the promoter without further charge to the persons who have agreed to take the flats, and in other cases such persons shall be entitled to receive reasonable compensation for such defects or change. Where there is a dispute as regards any defect, in the building or material used, or any unauthorised change in the construction, or as to whether it is reasonably possible for the promoter to rectify any such defect or change, or as regards the amount of reasonable compensation payable in respect of any such defect, or change which cannot be, or is not rectified by the promoter, the matter shall, on payment of such fee as may be prescribed, and within a period of three years from the date of handing over possession, be referred for decision -

(i) in an urban agglomeration as defined in Clause (n) of Section 2 of the Urban Land (Ceiling and Regulation) Act, 1976, to such Competent Authority authorised by the State Government under Clause (d) of Section 2 of that Act, and

(ii) in any other area, to such Deputy Chief Engineer, or to such other officer of the rank equivalent to that of Superintending Engineer in the Maharashtra Service of Engineers, of a Board established under Section 18 of the Maharashtra Housing and Area Development Act, 1976, as the State Government may, by general or special order, specify in that behalf. Such Competent Authority, Deputy Chief Engineer or, as the case may be, the other officer of a Board shall, after inquiry, record his decision, which shall be final.

(B) Prior to 1986 amendment, Clause (ii) of Section 7 provided thus : "any other alterations in the structure of the building or construct any additional structures without the previous consent, of all the persons who have agreed to take the flats.

(C) Section 7A was inserted by the Maharashtra Act 36 of 1986 in the said Act and the same reads thus :

7A. Removal of doubt- For the removal of doubt, it is hereby declared that Clause (ii) of Sub-section (1) of Section 7 having been retrospectively substituted by Clause (a) of Section 6 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) (Second Amendment) Act, 1986 (hereinafter in this section referred to as "the Amendment Act"), it shall be deemed to be effective as if the said Clause (ii) as so substituted had been in force at all material times; and the expression "or construct any additional structures" in Clause (ii) of Sub-section (1) of Section 7 as ii. existed before the commencement of the Amendment Act and the expressions "constructed and completed in accordance with the plans and specifications aforesaid" and "any unauthorised change in the construction" in Sub-section (2) of Section 7 shall, notwithstanding anything contained in this Act or in any agreement, or in any judgment, decree or order of any Court, be deemed never to apply or to have applied in respect of the construction of any other additional buildings or structures constructed or to be constructed under a scheme or project of development in the layout after obtaining the approval of a Local Authority in accordance with the building rules or building bye-laws or Development Control Rules made under any law for the time being in force.

13. A learned Single Judge of this Court in Kalpita Enclave Cooperative Housing Society Ltd. and Ors. v. Kiran Builders Pvt. Ltd. and Ors. in his judgment delivered on 16.8.1985, i.e. prior to the amendment to Section 7 by the 1986 Amendment Act and prior to the incorporation of Section 7A in the said Act, held thus :

Section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 imposes an obligation on the promoter to construct the buildings and otherwise develop the property strictly in accordance with the agreements entered into with the flat purchasers and the plans and specifications upon the basis on which the agreements are entered into. Section 7, therefore, also bestows a corresponding right upon the building purchaser to compel the discharge of this obligation on the part of the promoter.

If a breach of this obligation is noticed in the flats or buildings possession of which has been given to the flat purchasers or to the body corporate representing the flat purchasers, then that breach can be remedied only in the manner provided by Sub-section (2) of Section 7. If, however, the breach of the obligation or the contravention of Section 7(1) is noticed or apprehended before the possession is given, action for its prevention can be brought in a Civil Court. Section 7(2) operates only after the possession is given. Apprehended contravention is not covered by that provision. Since Section 7(2) applies to completed structures, any act towards further contravention even after the possession is given can be prevented by filing a suit in the Civil Court. The contravention contemplated in Section 7(1) or in Section 7(2) which includes alterations in the structure or the construction of additional structure is not confined to the construction of the buildings only. This contravention may extend to the construction of any additional structure not in the original plans and specifications as approved by the Local Authority. Thus if the original plans and specifications on the basis of which the persons were persuaded to purchase the flats disclosed that certain areas will be kept open, it would be a clear contravention of the agreement as well of law if the promoter proceeds to construct additional structures on those open spaces even with the sanction of the Municipal Corporation. If, however, the property is conveyed to the flat purchasers or to the body corporate representing them, then naturally the promoter cannot and will not meddle with the property because such an act on his part will amount to an act of trespass making him liable for both civil and criminal action.

14. In Khatri Builders v. Mohmed Farid Khan and Ors. the suit was filed for restraining the promoter/defendant from constructing any additional structure or construction on the terrace of the building 'Aashiana'. The notice of motion taken out in the said suit for interim relief was allowed and the promoter was restrained from putting any structure or carrying out any construction on the terrace of the building. The same was challenged on the following grounds:

(i) In view of the judgment of the Division Bench of this Court in A.O. No. 159/80 and C.R.A. No. 628/80, decided on 2.9.1983 in Ishwar Chinga Shetty v. Jivanji Bhutahhai Patel such a suit cannot lie in the Civil Court in as much as the Housing Commissioner has got the exclusive jurisdiction to entertain such a suit;

(ii) The ouster of jurisdiction contemplated by Sub-section (2) of Section 7 would operate even during the construction of the building as also after the construction irrespective of the fact as to whether possession has been given to the flat owners or not;

(iii) The provision of ouster of jurisdiction of the Civil Court contained in Section 7(2) of the Ownership Flats Act, 1963 would also apply whether the additional construction is complete or not; and

(iv) In view of the insertion of Section 7A by the Maharashtra Act No. 36 of 1986, which has amended certain parts of Section 7 of the 'Ownership Flats Act', the ratio of the decision of Jahagirdar, J., in viz., Kalpita Enclave Co operative Housing Society Ltd. v.

Kiran Builders Pvt. Ltd. ; would no longer be applicable to the facts of the present case.

The learned Single Judge In his judgment delivered on 19.9.1991, after considering the provisions of Section 7 of the said Act, the clauses of the agreement between the parties, in the matter of Kantilal v. Ganesh Sadashiv A.O. No. 299 of 1965, decided on 24.10.1966 (Unrep. Deci.); Shakuntaladevi Purushottam Jogai v.

Sunita Traders C.R.A. No. 185 of 1976, decided on 29.6.1976 (Unrep. Deci.), Smt. Neena Sudarshan Wadia v. Venus Enterprises , Ishwar Chinga Shetty v. Jivanji Bhulabhai Patel ; Dhulabhai v. State of Madhya Pradesh ; Premier Automobiles v. Kambrar Shantaram and Income Tax Officer v. M.K. Mohammed Kunhi as well as the decision in Kalpita Enclave's case (supra), rejected all the contentions raised on behalf of M/s. Khatri Builders and held that :

In my view, the change in the phraseology of Clause (ii) of Sub-section (1) of Section 7, as amended by the Maharashtra Act No. 36 of 1986 would not make any difference in the facts of the present case where the question involved is whether the appellant promoter can be permitted to put up an additional floor on the terrace.

Further, while rejecting the contention relating to the effect of the changes brought about on account of introduction of Section 7A, it was held that :

In view of the above, in my view, amendment would not make any difference to the point involved in the present appeal. If in a given case, the layout permits the construction of more building or buildings in accordance with the Building Rules and Bye-Laws, it is possible to say that there should be no impediment to the construction of additional building or buildings. While, therefore, in a given case, if on a plot of land, buildings "A" & "B" existed, which have been occupied by the flat owners and if a third building "C" is being put up the question would be as to whether despite the third building "C" being permissible in accordance with the Building Rules and Bye-Laws, can the flat owners in Buildings "A" & "D" raise an objection. I need not go into this question in this case since I am only concerned with the question of a terrace. flat being constructed on an existing structure. In my view, in the facts of this case, the insertion of Section 7-A by the Amending Act 36 of 1986 would not make any difference to the ratio of the judgment of Jahagirdar, J., If, therefore, the plaintiffs have objected to the terrace flat being constructed, in my view the Civil Court would have jurisdiction to entertain the suit of the plaintiffs and the plaintiffs would be entitled for an injunction prayed for.

(Emphasis supplied)

The parties have also relied upon the decision in Harsharansingh Pratapsingh Gujrat and Ors. v. Lokhandwala Builders Ltd. and Ors. . However, in my considered view, no reference to the said judgment is necessary for the decision in the matter as the said decision was delivered squarely on the basis of the terms of the agreement between the parties and the peculiar facts of the said case.

15. In Mohatta Nagar Co operative Housing Soc. Ltd. v. Vishram Khimji & Sons and Ors. 1994(3) Bom. C.R. 444 : 1994 C.T.J. 529 the main point which fell for consideration was whether the plaintiff builder had right for further construction on the suit plot of land or not. In the judgment delivered on 17.9.1993, after analysing the provisions of law contained in Section 7 and Section 7A, it was held thus :

Now if regard be had to the Statement of Object and the Reasons for substitution of Section 7(1)(ii) by the Amendment Act No. 36 of 1986, it is clear that the object was to make legal position clear that even prior to amendment of 1986, it was never intended that original provision of Section 7(1)(ii) of the said Act, operate even in respect of construction of additional buildings, according to a scheme or project of development of total layout. It is also made clear that on account of the interpretation of Section 7{l)(ii) of the said Act, in Kalpita Enclave Co-operative Housing Society Ltd. and Ors. v. Kiran Builders Pvt. Ltd. and Ors. that contravention contemplated in Section 7(1} and 7(ii) which includes alterations in the structures or construction of additional structures, is not confined to the constructions of the buildings only and this contravention may extend to the construction of any additional structure, not in the original plans and specifications as approved by the Local Authority, since the legislature never intended that provisions of Section 7(i) and 7(ii) should, operate in respect of the construction of additional buildings, the relevant provision came to be suitably amended and the main object of this amendment was that if the total layout, permits construction of more buildings, in accordance with the Building Rules or Building Bye-laws, or Development Control Rules, made under any law for the time being in force, there should be no impedient in construction of additional buildings. The only restriction that came to be put by the amendment, was while approving any proposals, for construction of additional buildings, in the layout, the Local Authority will no doubt see to it that requirements of open spaces etc., are provided under the Building Rules, or Building Bye-laws or Development Control Rules. If, it was permissible, only to look at the Statement of Object and Reasons for carrying out amendment of Section 7(1)(li) and Section 7-A, then, there should be no hesitation at all in coming to the conclusion that the intention behind the amendment was to remove the impediment in construction of the additional buildings, if total layout permits construction of more buildings in accordance with the Building Rules or Building Bye-laws or the Development Control Rules, where such proposal for additional construction was already approved or was submitted in future to the Appropriate Authority. But, now it is well-settled that Statement of Object and Reasons, can be looked at only to a limited extent as an aid to the construction of the particular words in statute and ultimately, intention of the Legislature, is to be gathered from the express words used in the piece of legislation or by necessary implication if words used so permit.

Now by Section 7-A, the expression "or construct any additional structures" has been totally taken of, from Section 7(1)(ii), as it existed prior to amendment with retrospective effect notwithstanding any agreement, judgment, decree or order of any Court, and it is further declared that such amendment and its expression shall be deemed never to apply or to have applied in respect of the construction of any other additional buildings, or structures, constructed or to be constructed under the scheme or project of development in the layout, after obtaining approval of Local Authority, in accordance with the Building Rules or Building Bye-Laws or Development Control Rules made under any law for the time being in-force. These words, used in Section 7-A make it amply clear that construction of any other additional buildings or structures, whether made in the past or to be made in future, after coming into force of the amended Act, is permissible so long as it is under a scheme or project of development in the layout, and subject to the relevant rules and bye-laws. It does not mean that before a promoter could take advantage of this provision of Section 7-A, it must necessarily be that additional buildings or structures, must be a part of the plan already approved by the Local Authority. If such additional building or structure, is already constructed, after coming into force of the amended provisions, it would be legal, provided it is under the scheme or project of development, in the layout, and with the approval of local authority, in accordance with the Building Rules or Building Bye-Laws, therefore, words "additional buildings or structures constructed or to be constructed" would include proposals which, are not already approved but, which could be sent for approval of the necessary local authority and on obtaining such approval, it would be perfectly legal for the promoter to make such additional construction of buildings or structures, though, it was not permissible prior to the amendment as per Section 7(i), (ii) of the said Act. Therefore, the amended provisions, in express terms, translate the Statement of Object and Reasons, for bringing this amendment namely, to remove the impediment, in construction of additional buildings, already constructed or to be constructed in future, provided proposals in respect thereof, are approved by the concerned local authority, and are in accordance with the Building Rules or Building Bye-Laws or Development Control Rules. Therefore, so far as the present case is concerned, although admittedly, from the date of suit, till the date the suit was decided, there was neither any approved proposal nor proposal submitted for approval of the concerned Local Authority, yet, by virtue of the amended provisions of Section 7(i), (ii) read with Section 7-A of the said Act, the promoter had a right to carry out additional "structure/construction by submitting necessary plans for approval of the Local Authority, and consistent with the project of development of the suit plot, such development being permissible in accordance with the provisions relating to development in Greater Bombay.

Further, referring to the arguments based on the principle of promissory estoppel, it was observed that "It is well established that there cannot be estoppel against the provision of any statute, and therefore, even if respective Agreements at a certain stage, mentioned proposal to construct one building only, now by virtue of the amendment of the year 1986, since the impediment in the construction of additional building and structures, has been removed, the respondents had a right to make such construction of a second building, provided it satisfied the requirement of the amended provisions of Section 7-A.

Again, rejecting the contention that the delivery of possession of a flat would amount to delivery of possession of the entire land to the flat purchaser, it was held that :

The scheme of the Act and the rules thereunder, contemplate that even after the conveyance is executed, the promoter remains in possession of undisposed of flats, and his right to dispose of them. If that be true and legal position, so far as the fact of the present case, are concerned, the piece of land admeasuring 1,250 square yards had for some reason or the other remained to be developed and dispute started between the parties; merely because, the flat owners in the building already constructed in the eastern portion of the suit plot, were delivered possession as required by law, they cannot claim to he in possession of the western portion of land, in the absence of any conveyance of title to the suit land, in favour of the appellant Society. Even, there, law permits conveyance subject to the right of promoter to dispose of the flats in the remaining land. In the present ease, as stated earlier, till disposal of the suit, there was no proposal made nor approved by the Local Authority, but, merely on the basis of delivery of possession of the flats to individual persons, it cannot be said that defendants were put in possession of the open plot of land, on the western side of the plot. It may be that taxes were being paid by defendants which legally they are under an obligation to pay after getting possession of their respective flats. That cannot be construed as an act of possession as such, of the whole plot of land.

16. Apparently, the decision in Kalpita Enclave's case (supra) was prior to the 1986 amendment to the said Act and therefore the ruling therein cannot be straightaway made applicable to the facts and events which have occurred after enforcement of the amendment to Section 7 and insertion of Section 7A in the said Act, This is also made clear by the Statement of Objects and Reasons of the Maharashtra Act of 1986. By the Act of 1986 the expression "or construct any additional structure" was deleted from Clause (ii) of Sub-section (1) of Section 7 of the said Act. As far as the decision in M/s. Khatri Builders case (supra) is concerned, it was a case in relation to the construction of additional structure on the terrace of the existing building wherein the plaintiff had acquired a flat and therefore the learned Single Judge had held that :-

The changes brought about in Clause (ii) of Sub-section (1) of Section 7 would not make any difference in the facts of the present case where the question involved is whether the appellant-promoter can be permitted to put up additional floor on the terrace.

The learned Single Judge, in fact, refused to go into the point relating to the entitlement of construction of additional building or buildings pursuant to the amended Clause (ii) of Section 7(1) of the said Act and the same is borne from the contents of para 18 of the judgment in M/s. Khatri Builders' case, quoted hereinabove. Therefore, the decision in M/s. Khatri Builders' case can be of no help to decide the issue pertaining to the claim of entitlement of the promoter to build additional building or buildings in the remaining area of the plot wherein already exists the building having the flat of the applicant. The said issue in fact has been elaborately discussed in the case of Mohatta Nagar Co-operative Housing Society Ltd. (supra). After detail discussion relating to the relevant provisions of law, the learned Single Judge has held that :

These words, used in Section 7-A make it amply clear that construction of any other additional buildings or structures, whether made in the past or to be made in future, after coming into force of the amended Act, is permissible so long as it is under a scheme or project of development in the layout, and subject to the relevant rules and by-laws. It does not mean that before a promoter could take advantage of this provision of Section 7-A, it must necessarily be that additional buildings or structures, must be a part of the plan already approved by the Local Authority.

This decision is a complete answer to the fourth and fifth grounds of challenge by the applicant.

17. Bare reading of the decisions in M/s. Khatri Builders' case and the Mohatta Nagar's case reveal that they are neither contrary to each other nor there are divergent views expressed by them to warrant reference of the matter to a Division Bench. The decision in M/s. Khatri Builders' case is in relation to the construction of the additional floor on the terrace of the building in which the complainant had his flat whereas the decision in the Mohatta Nagar's case is in relation to the open land, which is beyond the land occupied by the building wherein the flat purchased by the complainant existed. The issue involved in M/s. Khatri Builders' case was whether the appellant-promoter can be permitted to put up additional floor on the terrace of the building wherein was situated the flat of the plaintiff whereas the issue involved in the Mohatta Nagar's case was whether the promoter therein had a right for further construction on the suit plot of the land. The contention that the said decisions express diver gent views on the same issue is therefore to be rejected and consequently all the three grounds of challenge also fail.

18. It is to be noted here that the applicant has also drawn the attention to the order of the learned Single Judge in Second Appeal No. 798 of 2001, which was passed while admitting the said second appeal. Undoubtedly, it states that "there is a difference of opinion between the two learned Judges of this Court viz. Shri A.V. Savant, J., (2) Shri B.V. Chavan, J., . For that reason also this second appeal requires to be admitted." Apparently, the observation was only for the purpose of considering whether the appeal needs to be admitted or not and there is no detail reference to the said decisions nor there is any conclusion arrived at that there are divergent views expressed by the two learned Single Judges of this Court in relation to any particular issue.

19. The last limb of the argument on behalf of the applicant relates to the absence of consent of the applicant for the construction in question. In that regard, attention is drawn to the decision in Kalpita Enclave's case wherein after considering the decisions in the two earlier cases delivered by Apte, J. and Aggarwal, J., it was held that:

...A blanket consent or authority obtained by the promoter at the time of entering into the agreement for sale or at the time of handing over possession is not the consent, contemplated by Section 7(1)(i) or Section 7(1)(ii). Such a blanket con-sent or authority would sew up or nullify the provisions of the Ownership Flats Act which are meant for the protection of the purchasers of flats under the Ownership Flats Act.

It was sought to be argued that there was no specific consent obtained from the applicant for the construction which is being carried out by the respondent No. 4 and therefore the respondents are not entitled to carry on with the construction. As already observed above, the question of concept would arise if the construction is in the form of addition to or modification in the building wherein the flat in occupation of the applicant is situated. The construction in question is not in the form of addition to the said building but is in the form of an independent building in the open land of the plot wherein the building having the flat in occupation of the applicant also exists. Considering the law laid down in the Mohatta Nagar's case, in such cases the question of specific consent of the applicant in that regard does not arise at all. The law as explained in the Mohatta Nagar's case, therefore, rule out the necessity of specific consent as such by the applicant in relation to the construction in question.

20. The applicant has also placed reliance in the decision of the Apex Court in the matter of Bina Murlidhar Hemdev and Ors. v. Kanhaiyalal Lokram Hemdev and Ors. . Therein it was observed that prima facie plaintiffs' right to share in the land having been made out on facts, the other partners were held to be not entitled to sell the entire land to the builder since vendors cannot convey more interest than they have. It was a case where one of the owners of the property was sought to be denied his undivided share of ownership in the land. That is not the case herein. Besides, the rights of the parties are also specifically governed by the said Act and therefore any decision on the dispute between the parties has to be decided on consideration of the provisions of the said Act. Considering the decision in the Mohatta Nagar's case, there being no right disclosed to the applicant to obstruct the construction which is being carried out by the respondent No. 4, no fault can be found with the impugned order and the same does not call for any interference by this Court in revisional jurisdiction. The findings arrived at by the Court below neither appear to be perverse or arbitrary nor are contrary to the materials on record. Needless to say that all the observations made herein are for the purpose of consideration of the application for temporary injunction and to ascertain whether the applicant has made out a prima facie case for the grant of relief of temporary injunction or not and the same shall not prejudice the parties while proceeding with the matter on merits.

21. In the circumstances, therefore, the revision application fails and is dismissed. The rule is discharged with no order as to costs.

Certified copy expedited.