Hubtown Solaris Premises ... vs Municipal Corporation Of ...
2021 Latest Caselaw 6963 Bom

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         ORDINARY ORIGINAL CIVIL JURISDICTION


                INTERIM APPLICATION (LODGING) NO.3846 OF 2020
                                                IN
                               SUIT (LODGING) NO.3844 OF 2020

Hubtown Solaris Premises Co-op. Society Ltd.,                ] ... Applicant-Plaintiff
                            V/s.
1. Municipal Corporation of Greater Mumbai                   ]
2. Asst. Engineer-II (B & F), Mumbai                         ]
3. Asst. Assessor & Collector,                               ]
   Assessment and Collection Department, Mumbai ]
4. Asst. Engineer, Water Works Dept., Mumbai                 ]
5. Hubtown Ltd., Mumbai                                      ]
6. Hubtown Solaris Maintenance Pvt. Ltd., Mumbai             ]
7. Slum Rehabilitation Authority, Mumbai                     ]
8. Executive Engineer - W.S., SRA, Mumbai                    ]
9. City Elevators Pvt. Ltd., Mumbai                          ] ... Defendants



Mr. Mayur Khandeparkar, with Mr. Kaustubh Patil, i/by Yashvi Panchal, for
the Applicant-Plaintiff.
Mr. Sagar Patil for Defendant Nos.1 to 4.
Dr. Birendra Saraf, with Mr. Ashish Kamat, Ms. Niyati Merchant, i/by MDP &
Partners, for Defendant Nos.5 and 6.
Mr. Abhijeet Kulkarni for Defendant Nos.7 and 8.
Mr. Abhijeet Singh for Defendant No.9.


                                            CORAM : A. K. MENON, J.

RESERVED ON : 10TH MARCH, 2021.

PRONOUNCED ON : 3RD MAY, 2021.

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P.C. :

1. The plaintiff-society has moved this ad-interim application in a suit in

which the plaintiff seeks numerous reliefs and principally for a direction to

handover possession of society's office. Plaintiff is a co-operative housing

society of purchasers of commercial premises in a building known as

"Hubtown Solaris" situate at Andheri, Mumbai. The society seeks a direction

against defendant no.5 - the developer to handover possession of the society's

office in the building known as "Hubtown Solaris" along with all records and

accounts in relation to functioning of the building. The society also seeks

numerous reliefs to prevent obstruction by the defendant no.5 of the

plaintiff's employees, agents and servants, who are said to be managing the

affairs of the building including use of lifts and collection of maintenance

charges. The society also seeks a declaration that the Letter of Intent dated 5 th

July 2019 and further permissions said to have been granted to the plaintiff

by the defendant no.7-Slum Rehabilitation Authority for construction of the

13th and 14th floor in the building are illegal and not binding. The society

seeks cancellation of the Letter of Intent and in the interim seeks several ad-

interim reliefs including injunction restraining defendant no.5 from selling or

allotting any part of the 13th and 14th floors. The prayers range from prayer

clause (a) to prayer clause (dd).

2. The IA seeks certain urgent reliefs of injunctions as aforesaid. One of

the reliefs sought in the IA, namely, to restrain defendant nos.5, 6 and 9 from

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preventing use of the lifts and robotic car parking and other facilities in the

building, is being worked out amicably pending the hearing of this IA. That

apart, today the plaintiff seeks further prayer clauses (b), (f) and (h) in the

following terms :-

(i) Injunction restraining security guards employed by

defendant no.5 / defendant no.6 from interfering with,

obstructing and harassing members of the plaintiff-

society and their employees, who are managing day-to-

day affairs of the building;

(ii) Injunction restraining defendant no.5 from carrying out

any construction on parts of the 6th, 13th and on the 14th

floors and;

(iii) Injunction restraining defendant no.5 from selling,

transferring or allotting floors 6th, 13th and 14th.

3. Affidavits have been filed and the matter is being urged for ad-interim

reliefs. A few facts which are relevant are set out below :-

. The defendant no.5 is beneficiary of a Letter of Intent dated 1 st

December 1998 for redevelopment of the plot of land under DCR 33(10). The

LOI was revised in 2004 to carry out a slum rehabilitation scheme. IOD and

commencement certificate were issued in 2005 and the layout was sanctioned

in 2009 for constructing 14 rehabilitation buildings and 3 sale buildings.

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Between 2009 and 2012, these buildings have been constructed. In

September, 2012, defendant no.5 is believed to have received part occupation

certificate in respect of the building "Hubtown Solaris". Defendant no.5 has

entered into the agreements for sale with purchasers of units. These

agreements were said to be compliant with the Maharashtra Ownership Flats

(Regulation of the Prmotion of Construction, Sale, Management and Transfer)

Act, 1963 (MOFA). Later, after Real Estate (Regulation and Development) Act,

2016 (RERA) came into force, further sale agreements were also believed to

have been executed. Hubtown Solaris consists of 2 basements with 6 level +

ground + 13 upper floors. It was proposed that upto 18 th floors will be

constructed upon plans being approved.

4. The applicant-society today claims that the defendant no.5 has failed

and refused to hand over society's office, is interfering with the enjoyment of

the property and is engaged in illegal construction on the 6 th, 13th and 14th

floors. About 277 units constructed between 2011 and 2020 have been

handed over to the members of the plaintiff-society. The society was

registered on 18th June 2018. The first general meeting of the society was held

on 12th October 2019. The 5 th defendant attempted to stall the society's

attempt to hold the meeting. A writ petition was filed in this court being Writ

Petition No.11063 of 2019. Defendant no.5 sought to prevent the meeting

from being held, but no interim relief was granted. A provisional

management committee of the plaintiff-society was then elected. The society

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has alleged financial indiscipline against defendant no.5. Funds collected

towards maintenance charges and statutory dues have not been paid over.

The 5th defendant is said to have failed to handover the society's office and the

security personnel engaged by the defendant no.5 are said to have been

harassing the members of the plaintiff-society by restricting usage of common

facilities.

5. Mr. Khandeparkar submitted that maintenance charges which were

collected from the members were to be used for payment of municipal taxes

and defraying other causes for general maintenance of the building. If these

have been paid from time to time in keeping with the provisions of the

agreements for sale, it is submitted that under clause (4.2) of the agreement,

such maintenance charges would be collected by defendant no.5 only till

formation of the common organization of unit purchasers. He has relied upon

the provisions of clauses (4.2), (4.3), (4.6), (4.7) and (4.9) in support of his

contention that the defendant no.5 was to handover the building for

management by the plaintiff-society and execute a lease in favour of the

society. The maintenance charges and taxes are now to be collected by the

society and not by the defendant no.5. Relying upon these provisions, he

submitted that the defendant no.5 is in breach of these obligations and the

agreement for sale, which MOFA obliges it to perform.

6. Mr. Khandeparkar submitted that defendant no.5 has been adopting

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aggressive practices engaging goons and anti-social elements to move around

in the building premises and threatening and preventing the members from

convening meetings and threatening them of dire consequences if they did.

Averments in the plaint in paragraph 90 have been relied upon. One of the

other grievances is that defendant no.5 has refused to permit operation of the

lift and the robotic car parking. That of 17 lifts, only 2 were working when

the suit was filed, that too in a place where the footfall is of approximately

3,000 visitors a day, which had however fallen to about one and a half of that

during the pandemic driven lock-down. The lifts have been locked. The

passcodes for unlocking the lifts are not provided to the members of the

plaintiff-society. Defendant no.9, who was engaged to manage the lifts, has

contended that their dues are not being paid.

7. According to Mr. Khandeparkar, these dues had been paid over to the

defendant no.5, who apparently retained the same. Thus, there is a dispute

between the parties as to accounts and it is in this respect that as recorded in

an order dated 9th December 2020, the parties have agreed to engage an

external accountant. This process is presently underway and by way of an

interim arrangement, several lifts had been made operational. According to

the plaintiff-society, the final layout plan for "Hubtown Solaris" was approved

by Slum Rehabilitation Authority on 27 th November 2009. Between 2011 and

2020, 277 units had been handed over to its members. The society was

registered in June, 2018 and the first general meeting was convened in the

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presence of the Assistant Registrar of Co-operative Societies. The meeting was

held on 12th October 2019 and although defendant no.5 sought to prevent the

meeting from being held by filing a writ petition, no interim relief was

granted. The managing committee was elected and was authorized to handle

day-to-day affairs of the building/society including maintenance. However,

defendant no.5 had failed to co-operate. Lifts were not in working condition.

Defendant no.5 did not pay monies collected from the plaintiff's members to

the contractor maintaining the lifts. Likewise, statutory dues were also not

paid by defendant no.5. In effect, the defendant no.5 was obstructing the

plaintiff's attempt to manage the society's affairs. One of the grievances made

by the plaintiff-society is that the building has robotic parking facility, which

has not been functional. As a result of the 5 th defendant's failure to remit

arrears to pay dues of defendant no.9 - the lift maintenance agency, which

also manages the parking facility and the lifts, the said operator has

discontinued the said service.

8. My attention was invited to clauses (4.2) and (4.6) of the Agreement for

Sale in support of the plaintiff's contention that the defendant no.5 was now

obliged to permit the society to collect outgoings and pay the same. It is only

till the formation of the society that the defendant no.5 was to undertake

maintenance activities and was entitled to charge 20% of the expenditure as

service fees. Clause (4.9) it is stated makes this explicit. The society having

been formed as of June, 2018, it had taken charge of the building from

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October, 2019 pursuant to the order passed by the Assistant Registrar of Co-

operative Societies. A challenge to the society's formation has not met with

any success thus far and it is submitted that the society is now functioning, it

is entitled to collect maintenance from all units. The defendant no.5 however

is continuing to recover maintenance, service charges at 20% of the

maintenance cost. This is clearly impermissible and the defendant no.5 is now

seeking to take advantage of the fact that construction is still underway to

retain control over maintenance, which it now cannot. The levy of 20%

service charges is in any case not required to be borne by the existing

members for no fault of theirs. There is a legal obligation to convey the land to

the society, which also the defendant no.5 is in breach of.

9. In an attempt to suppress the plaintiff's efforts, the defendant no.5 has

allegedly employed some goons in the guise of security services leading to

constant altercations and threats being held out to the representatives of the

society. These persons are said to be engaged in intimidation and threatening

members. Reliance is placed on photographs at Exhibit-BB to the plaint in this

respect. The defendant no.5 has caused such disturbances deliberately in

order to intimidate the society and its members. Meetings are disrupted and

threats are handed out to the plaintiff's members. It is submitted that multiple

FIRs have been registered and defendant no.5 has sought to persist in this

attitude despite the society having engaged security services. Having been

directed by the SRA also to handover charge of the affairs of the society, it is

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not open to the defendant no.5 now to obstruct the plaintiff's efforts in

managing the society and to that extent, an order and direction is sought

restraining the defendant no.5 from preventing the society in carrying out its

duties of maintenance and providing for security personnel. The defendant

no.5 should be asked to remove, cease and desist from engaging any persons

to manage the affairs of the building, which is now the obligation of the

society. The next contention canvassed on behalf of the plaintiff is that the

society is entitled to lease of the land upon which the building is constructed.

Under the MOFA provisions, particularly Section 11 read with Rule 9 of the

Rules, the defendant no.5 is bound to procure conveyance of the land in

favour of the society within four months of the formation of the society. The

society having been formed in June 2018 and having taken charge from

October 2019, the conveyance/lease ought to be executed. The defendant no.5

has deliberately avoided conveying the land in order to seek benefits of DCPR

2034 and in this behalf reliance is placed on the decisions of this court in

Ravindra Mutenja and Ors. Vs. Bhavan Corporation and Ors., 1; Noopur

Developers Vs. Himanshu V. Ganatra and Ors. 2, and; Lakeview Developers

and Ors. Vs. Eternia Co-op. Housing Society Ltd. and Ors. 3.

10. The aforesaid decisions are sought to be relied upon in support of the

contention that this defendant no.5 cannot now avoid conveying the property

1 2003 (5) Mh.L.J. 23 2 2010 (7) Mh.L.J. 694 3 2015 SCC OnLine Bom. 3824

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and take advantage of rights which would otherwise vest in the society upon

the conveyance being effected. The plaintiff further contended that the

defendant no.5 cannot continue to make changes to the plans of the building

without express consent by the plaintiff-society and its members in view of

the provisions of Section 7 and 7A of MOFA, which prohibits such changes

being carried out after the initial plan is disclosed. Notwithstanding the

disclosure that the building may consist of upto 18 th floors, the development

potential has been exhausted and if it were not per DCPR 2034, it would not

have been possible for the developer to construct beyond the 13 th floor merely

because the agreement provided for a cap of 18 th floors. It does not entail an

absolute right in favour of the developer to so construct without the express

consent of the members of the society.

11. My attention is invited to the reports appearing at Exhibit-K to the

plaint, which show that an application has been made for a revised Letter of

Intent which was issued granting additional benefits under DCPR 2034 and

this has occasioned by virtue of the defendant no.5 having obtained

development right certificates from other properties, which it is developing.

Reliance is placed on a brochure which had been published by the defendant

no.5 in which a Food Court was contemplated as part of the amenity space

which could be used by all members and also a recreation area. All this now

has been changed since in the service area which was being used as a Food

Court and Canteen, defendant no.5 now seeks to convert the service area into

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office units contrary to the original provisions. Consent of the members of the

plaintiff-society was not sought or obtained and hence it is contended that the

proposal to construct office units on the 6 th floor is violative of Section 7 of the

MOFA. No alternate service area is being provided. If such service area had to

be shifted to some other location, it could have been done only after obtaining

consent of the society or informing the society. None of this has occasioned

and the higher floors do not indicate provisions for service area.

12. In the course of submissions, it is contended that the Advocates for SRA

have submitted that a service area had been shifted to a higher floor but none

of this is reflected in the amended plans or the report to which reference is

made. A service area was necessary, it was an amenity, part of common area

and could not have been done away with in the manner now sought to be

done. The defendant no.5 it is alleged is exploiting the benefits of DCPR 2034

at the cost to the society, which alone could have exploited the same. Lastly it

is contended that there are large amounts outstanding towards water charges,

extra sewerage charges, charges for water misused and property taxes to the

tune of more than Rs.9.4 crores. All of this is said to be payable by defendant

no.5, which is now evident from the fact that the Municipal Corporation has

disclosed these outstanding in their affidavit. In these circumstances, it is

contended that the ad-interim relief as prayed for in prayer clauses (b), (f)

and (h) be granted.

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13. The IA is vigorously opposed by Dr. Saraf and Mr. Kamat on behalf of

defendants 5 and 6. Defendant no.5 is the developer of the SRA Scheme and

defendant no.6 is a company formed by defendant no.5 for collecting

maintenance amounts from purchasers in Hubtown Solaris. The reliefs sought

are therefore against defendant nos.5 and 6. The opposition was spread out

over several hearings, during which brief submissions were sought to be

tendered; however, all of this was replaced by written submissions on behalf

of defendant nos.5 and 6, which the defendants filed on or about 25 th March

2021. These submissions are long winded, recapitulates what Dr. Saraf and

Mr. Kamat had submitted from time to time. The principal line of defence is

on maintainability of the suit rather than the merits of the claims made by the

plaintiff-society against defendant nos.5 and 6. It is therefore appropriate that

we deal with these aspects right away.

14. Considering the length of time taken up in canvassing the respective

cases, I have enquired of counsel whether this interim application could be

disposed finally since an important aspect of maintainability of the suit in this

court has been raised in the light of the fact that the RERA provisions contain

a bar on the civil court's jurisdiction. This is an aspect that would go to the

root of the matter; however, in view of the large number of interim reliefs

sought, the plaintiff-society was unwilling to submit to a final disposal on the

IA. It is therefore appropriate that one considers, prima facie, the effect of

Section 79 of RERA and the maintainability of the present suit, limited to the

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purposes of this ad-interim application.

15. At the outset, it is submitted by counsel on behalf of the defendant

nos.5 and 6 that the contention that consent of the plaintiff-society had not

been obtained is incorrect. The agreements for sale specifically provide for

such further construction as may be decided by the developer. The defendants

have contended that this court has no jurisdiction in view of the express bar

contained in Section 79A of the Real Estate (Regulation and Development) Act,

2016. The plaintiff and defendants have also sought to contend that being a

Slum Rehabilitation Project, the Maharashtra Slum Areas (Improvement,

Clearance and Redevelopment) Act, 1971 also contains an express bar in

Section 42 of that Act. In view of these two provisions, namely, Section 79 of

RERA and Section 42 of the Slum Act, this court ought not to interfere. It is

also contended that the plaintiff-society has suppressed correct facts and is

seeking to mislead the court. Apart from the fact that the application is

delayed, emphasis is laid on the scheme and object and purpose of RERA. The

Division Bench of this court in Neelkamal Realtors Suburban Pvt. Ltd. and

Ors. Vs. Union of India and Ors.4 and in Lavasa Corporation Limited Vs.

Jitendra Jagdish Tulsiani and Ors.5 had clearly observed that RERA is intended

to advance public interest and that the Standing Committee and Select

Committee had examined all aspects and observed that RERA provides a

singular legislation, which would encompass all aspects of real estate

4 MANU/MH/3135/2017 5 MANU/MH/2362/2018

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development. My attention was invited to the numerous paragraphs in

Neelkamal (Supra). Reference was also made to the frequently asked questions

on the RERA website which deals with the objectives of the Act, which include

a Fast Track Dispute Resolution Mechanism and an attempt to enforce

transparency and fair play, reduce frauds and delays. However, I do not find

much progress having been made in this respect in the RERA complaint,

which is sought to be canvassed as one of the defences inasmuch as the

plaintiff had already approached the authorities under RERA and a complaint

is pending. In view of that complaint, it is contended that the present suit

ought not to have been filed and therefore no relief should be granted.

16. My attention was also invited to the numerous paragraphs in Lavasa

Corporation (supra) in support of the contention that the real estate sector is

now sought to be regulated only by RERA, which is a self-contained code, and

considering the numerous provisions of that Act, it is clear that the present

suit is not maintainable. Section 31 has been invoked by the plaintiff and the

authority is fully empowered to deal with all aspects of the plaintiff's

grievances by virtue of Sections 7, 35, 36, 37 and 40. The RERA authorities

have necessary powers and therefore it is not necessary for the plaintiff-

society to approach this court, which is clearly not intended to consider these

aspects. The bar under Section 79 would entail that this suit should be

rejected. Alluding to the effect of Sections 88 and 89 of the RERA, Dr. Saraf

contended that construing these sections harmoniously with Section 79

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would still entail rejection of the plaintiff's suit. It is contended that the

plaintiff's version that the authorities under the RERA can only consider

violations under RERA would be incorrect. The authority under RERA can also

adjudicate upon disputes relating to allegations of violations of MOFA; such

are the powers of the authority. It is admitted that repeal of MOFA is not

contemplated, but the reliefs that can be given by this court can also be

granted by the appropriate authority under RERA and it is for this reason that

the bar is an effective defence against any attempt by the plaintiff to approach

a civil court. It is contended that Sections 88 and 89B be read purposively,

that since RERA is a umbrella statute for all real estate development and allied

matters, it would be impractical for a civil court to interfere only because

MOFA is not repealed. Any interference by this court on the basis of the

plaintiff's contentions would be defeating the purpose for which RERA was

enacted. The benefits of the legislation have been highlighted by learned

counsel on behalf of the defendants that for on-going projects as well,

aggrieved allottees could approach the authorities under Section 18 of RERA

and that the authority has been invested with such wide ranging powers,

which clearly would not justify interference by this court. While enacting

RERA, the legislature would have clearly been aware of local regulations and

hence consciously incorporated a bar under Section 79. The jurisdiction of

this court is therefore expressly excluded. Moreover, it is not desirable that

two parallel proceedings be permitted. All aspects in the present suit are said

to be encompassed in the complaint filed with the RERA authorities, which

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has the power to grant injunctive reliefs and impose damages, if so required.

Continuing with these two litigations, which will only lead to multiplicity of

proceedings, the legislature could clearly not have intended simultaneous

proceedings before two different forums. My attention was invited by counsel

to the decision of the Supreme Court in Imperia Structures Ltd. Vs. Anil Patni

and Anr.6 The Supreme Court had observed that the authorities under RERA

alone should decide all issues concerning the projects registered under RERA

and that Section 79 of the RERA would apply to proceedings initiated under

the Consumer Protection Act, 1986. The issues concerning a project registered

with RERA are specifically entrusted to the functionaries under the RERA. All

breaches under RERA can be adjudicated upon by the appropriate authority

under RERA. For these reasons, it is contended that no ad-interim relief be

granted.

17. The next objection canvassed on behalf of the defendants is under the

Slum Act. The defendants contended that under Section 42 of the Slum Act,

the civil court has no jurisdiction in respect of matters over which the

administrative / competent authority or tribunal is empowered to adjudicate

upon under the Slum Act. No injunction be granted by any court or other

authority in relation to actions taken under the said Act and in this behalf, the

plaintiff's attempt to seek relief against the slum project must fail. The

plaintiff-society has admitted that Hubtown Solaris is part of an on-going

slum project and construction is proceeding in accordance with plans 6 Judgment dt. 2nd November 2020 passed in Civil Appeal No.3581-3590 of 2020

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approved by the SRA. Not only the plans for the additional floors but also the

lay-out plan has been approved by the SRA. Construction is thus going ahead

in accordance with the sanctioned plans. Being the Planning Authority, the

SRA has permitted use of FSI. The provisions of the Slum Act have a larger

purpose to be achieved and there cannot be an interference by civil courts

since the slum project would involve rehabilitation of slum-dwellers, which

ought not to be interfered with by civil court. The free-sale component is not

released till the rehabilitation component is completed. There is a delicate

balance that is sought to be achieved in a slum project and civil courts ought

not to disturb this balance. The scheme of the Slum Act would require the

civil court not to interfere.

18. Reliance is placed by the defendants on the decision of Naresh

Lachmandas Haswani Vs. Haridas and Ors .7 and it is submitted that the

defendant no.5 is not engaged in any illegal activity. Construction on the 13 th

floor is underway, is yet to be completed and construction on the 14 th floor is

expected to commence; however, these constructions are in accordance with

the scheme approved by the SRA. The construction would proceed only upon

FSI being released in the free sale development subject to phase-wise

completion of the rehabilitation component and the plaintiff and its members

are well aware of this aspect. The construction of the building has proceeded

in accordance with the schedule and over a period of several years

commencing from 2009. Reliance is placed on various dates on which 7 2016 (4) ALL M.R. 286

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commencement certificates were issued and occupation certificates were

issued in respect of the ground floor structures right upto the 13 th floor. The

last occupation certificate is said to have been issued on 31 st December 2019,

however part occupation certificate in respect of some units on the 6 th floor

has been issued on 30th September 2020. Thus, the occupation certificates

have been issued on several dates between 12 th September, 2012 to 30th

September 2020. Reference is made to recitals 9, 10, 20, 21 of the standard

sale agreements entered into by the defendant no.5 with the purchasers as

also clause 11(g), (i), (j), clauses 12.2, 12.6, 12.14 and 17 of the said

agreements, all of which empower the defendant no.5 to put up additional

constructions right upto 18th floor. The fact that the plaintiff's members have

all agreed with these provisions which would entitle the defendant no.5 to

carry out construction cannot be denied in view of these provisions which are

incorporated in the registered agreements.

19. By virtue of the aforesaid, it is contended that the plaintiff's contention

that absent "informed consent", the units now proposed to be sold on 6 th, 13th

and 14th floor cannot be so sold is incorrect. The consent provided for in the

aforesaid clauses is not merely formal or general consent but constitutes

"informed consent". On this basis, it is contended that the plaintiff-society

cannot succeed in getting any relief. According to Dr. Saraf and Mr. Kamat,

the plaintiff-society has not been able to demonstrate that the said agreements

in any manner contravene provisions of MOFA or that construction being

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carried on is illegal. The conversion of the 6 th floor is said to be with the

complete approval of SRA, who has approved the plan. The FSI consumption

was within the rights of the defendant no.5 since the building could be

constructed upto 18th floors and the consent provided for in the above cited

clauses would constitute "informed consent". This is an aspect that cannot be

denied. According to the learned counsel for the defendants, the plaintiff had

failed to establish that the work of construction on the 6 th floor and part of the

13th floor is in violation of MOFA or that the rights of the plaintiff's members

have been in any manner compromised. All construction has been carried on

in accordance with the agreements for sale and that the work carried out is

within the powers of the defendant no.5 and not in contravention of the law.

The decision in Lakeview Developers (supra) has been referred to and it is

submitted that there is a full and proper disclosure, as contemplated in

Section 3 and 4 of the MOFA. Lakeview Developers also contemplated a

decision wherein the plaintiffs had contended that certain buildings were

constructed after potential of the development and floor space index disclosed

by the developer had been exhausted.

20. In the present case, the developer has disclosed the potential of

exploitation and the extent of FSI to be utilized. This constituted "informed

consent" and in any event it is contended that the facts in Lakeview

Developers are distinguishable. The FSI potential has been disclosed and it is

yet to be exhausted and therefore the decision in Lakeview Developers would

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not help the plaintiff. In that respect, it is contended that the decision of this

court in Ravindra Mutenja (supra) also would not be of assistance since it is

not a case where the defendant no.5 was seeking to put up constructions after

completion of buildings in accordance with approved plans disclosed at the

initial stage. The defendant no.5 had disclosed its intention of putting up a

maximum of 18 floors and this was sufficient disclosure to constitute

"informed consent". This meets the test in Noopur Developers (supra) as well

and the defendant no.5 is stated to be fully compliant with these provisions. It

is also contended that the service area has been utilized after approvals were

obtained from SRA. The decision of the SRA could not be challenged in these

proceedings and the construction cannot be said to be beyond the scope of

what has already been disclosed. In that respect, it is contended that reliance

upon the decision of Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-

operative Housing Society Ltd.8 is of no avail. The 6 th floor cannot be stated to

be amenity space as the service area would not be part of the amenity space,

as contemplated in law. According to the defendants, the plaintiff-society has

failed to demonstrate that this was service area which the defendant no.5 was

obliged to handover to the plaintiff society.

21. Dr. Saraf then assailed the delay and laches and suppression of facts by

the plaintiff-society. It is contended that the work of construction on the 13 th

floor had commenced in December 2019. Defendant no.6 managing the

property had informed unit holders about closure of one of the gates of the 8 (2010) 9 SCC 536

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building to facilitate construction of the 13 th and 14th floor. The plaintiff

however has sought to oppose such construction only in 2020 by filing the

present suit. On account of such delay, it is contended that no relief be

granted.

22. Apropos the contentions regarding DCPR 2034, the bar under Section

42 of the Slum Act is invoked. It is submitted that Hubtown Solaris is part and

parcel of an on-going slum rehabilitation scheme, where FSI is released in a

phased manner. If benefits had arisen under DCPR 2034, the defendant no.6

was entitled to take advantage of it. The SRA had filed an affidavit in response

to the plaint and had clearly supported the 5 th defendant's contentions and

denied the plaintiff's contentions that there is no contest on this aspect. The

FSI available under the earlier DCR 1991 has not yet been exhausted and it is

contended that no increase in FSI is being sought under DCPR 2034. By virtue

of DCPR 2034, slum-dwellers are entitled to a slightly larger area as

compared to DCR 1991 and this required the defendant no.5 to seek

appropriate changes and obtain approval of such modified Letter of Intent. In

respect of areas and tenements already constructed, no change was sought.

Meeting the plaintiff's allegations of failure to handover the society's office

and records, it is contended that the sale agreements all provide that the

members of the society would have to await completion of development of the

project and till possession of all units are delivered to all purchasers, the

defendant no.5 would be entitled to manage the building till then. The

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defendant no.6 was appointed for that purpose and that the defendants were

fully within their powers to manage the building and it was not necessary or

required that the management of the building be handed over to the plaintiff-

society. Such handover would be premature, according to the defendants,

since the building is yet to be completed and sanction had been received for

putting up additional floors.

23. It is therefore contended by Dr. Saraf that the 6 th defendant is

managing the affairs of the building and the defendant nos.5 and 6 are not

obliged to handover the records or management of the building to the

plaintiff-society. Reference is made to the order passed by this court on 9 th

December, 2020, by which all accounts will be submitted so as to dispel all

doubts about management of funds. The learned counsel for the defendants

has extensively taken me through the provisions of RERA, as aforesaid, and the

section cited above in an attempt to justify the continued construction and

resistance to handing over of management of the society. The learned counsel

for the defendants have sought to relied upon a comparative chart of prayers

in the plaint and the prayers in the RERA complaint to submit that all reliefs

sought in the plaint have already been sought in the RERA complaint, which is

prior in point of time and therefore this court need not interfere and in any

event the reliefs of the declarations and cancellations of the amended plans

cannot be sought in view of the express bar under Section 42 of the Slum Act.

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24. Mr. Kamat has also relied upon various prayers in juxtaposition with

alleged breaches of RERA provisions and remedies as provided for under

Sections 7, 31, 35, 36, 37, 38 and 40(2) of RERA. The allegations in the plaint

regarding harassment of members, misuse of funds collected, demand for

handover of affairs of the society, continuing construction on the 6 th, 13th and

14th floors, have all been subjected to challenge in the RERA proceedings as

well. It is therefore contended that no ad-interim or interim reliefs as prayed

for be granted, in particular, a declaration sought that the defendant nos.5

and 6 have no right to issue bills. Injunction against construction of the 6 th,

13th and 14th floors are also being sought from RERA authorities, directly or

indirectly, by seeking adherence to sanctioned plans and project

specifications. In conclusion, it is submitted that considering the wide powers

of authorities owing to the RERA, the bar of section 79 under RERA and

Section 42 of the Slum Act, no interference is called for especially since the

grievances of operation of lifts and parking are now being addressed.

25. Having heard the rival contentions, the plaintiff's grievances are four

fold. Firstly, that of illegal construction, illegal conversion of the 6 th floor into

commercial units and additional construction being put up under 13 th and

14th floor. Secondly, the plaintiff is aggrieved by non-payment of property

taxes despite collection of taxes along with maintenance charges. Thirdly, it is

contended that the conveyance has not been executed in respect of the land

and, fourthly, the society's office has not been handed over. These are

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essentially the issues that have been highlighted by the plaintiff-society

during submissions before me. At the cost of repetition, since we are at the

ad-interim stage, it has not been possible for both sides to explore all disputes

in detail, however based on the submissions made thus far and the written

submissions, it is evident that the issues which I have referred above are

presently engaging the attention of parties. The SRA has also filed an affidavit

in which it has conveyed its position as far as the additional construction is

concerned and the use of the 6 th floor. SRA has also made its observation

regarding the society's office. Accordingly, I have considered all these aspects.

26. The principal defence on behalf of the developer and its allied service

provider company is that of jurisdiction. It has been argued both by Dr. Saraf

and later by Mr. Kamat that in view of the provisions of RERA, the present suit

ought not to be entertained and if the suit cannot be entertained, nor can the

interim application; therefore, no ad-interim relief should be granted. As a

corollary, they have also contended that even under the Slum Act, there is a

bar under Section 42. Thus, if the jurisdiction issue is held in their favour, no

relief can be granted. I will therefore deal with this aspect.

27. I am of the prima facie view that the jurisdiction of this court is not

ousted by virtue of the provisions of RERA or that of the Slum Act. The suit

essentially seeks to enforce the obligations of the developers under the MOFA

and there can be no quarrel with the fact that every developer is required to

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comply with the provisions of that Act. Equally, the developer is liable to

comply with the provisions of the RERA Statute.

28. Strenuous efforts have been made by counsel on behalf of the

defendants to establish commonality of reliefs sought in the present suit and

the IA on one hand and the complaint under the RERA on the other. The

question is whether because a RERA complaint had been filed, this court is

powerless to grant any relief in the facts of the case? There is yet another

perspective that needs to be looked into but apart from the bar under Section

79 of RERA, Section 42 of the Slum Act also contemplates a bar on civil courts

adjudicating upon amendment of plans etc. and in effect what the defendants

have submitted is that the declarations sought in terms of the prayers in the

suit cannot be granted by this court. Perusal of the comparative chart reveals

that in respect of prayer clauses (a) to (bb) in the suit, the defendants are of

the view that all reliefs can also be granted under the provisions of RERA. In

particular, reference is made to Sections 7, 31, 35, 36, 37, 38 and 40(2) of

RERA in support of the submission that the reliefs sought in the plaint and in

the IA can all be sought before the RERA authorities and that many of these

reliefs have in effect been incorporated as part of the reliefs in the RERA

complaint. If on one hand the plaintiff has contended that the suit seeks to

enforce the MOFA obligations of the developer, the developer has contended

that the bar under Section 79 of the RERA and Section 42 of the Slum Act

would effectively not entitle the plaintiff from seeking the present relief. Yet

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again, the plaintiff has contended that the relief sought is not merely to the

extent that it is capable of being considered by the RERA authorities or by the

Slum authorities. What we are facing here is a plaint seeking a mixed bag of

reliefs. On one hand the aspect pertaining to maintenance of the property,

payment of taxes, the allegations of intimidation, failure to handover society's

office and failure to execute conveyance, all cannot be independently handled

under the RERA provisions. The mixed bag of reliefs therefore in my view is

not beyond the jurisdiction of this court although there are several prayers

that may fall within one or the other jurisdiction. MOFA in my view is the

most fundamental of Acts amongst the three that we are concerned with.

Without the MOFA, the provisions of RERA and of the Slum Act will make

little practical impact in terms of rights of purchasers of units and flats in

premises situated within the jurisdiction of this court. The MOFA being a local

law, it will have to be given effect to and if in the course of giving effect to

MOFA provisions, it becomes necessary to permit a plaintiff to invoke

jurisdiction of this court, so be it. Assuming that the plaintiff had not filed the

present suit and had proceeded only with the RERA complaint in deference to

the wishes of the defendants 5 and 6, the question is whether the RERA

authorities could have granted any relief de hors the provisions of MOFA and

the answer to my mind must be in the negative. Likewise, in the absence of

MOFA provisions, would the Slum Act and the authorities thereunder be

entitled to effectively deal with claims of flat purchasers on issues that are

already covered under MOFA? Once again, the answer must be in the

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negative. Thus, MOFA is the dominant enactment in the present case. RERA

and the Slum Act are of a different species. RERA in effect seeks to regulate the

real estate industry as a whole and the Slum Act deals with development of

slum areas pursuant to the declarations. The three Acts have different scope

and reach; whereas, the RERA enactment will have effect throughout the

country, the Slum Act and the MOFA are restricted in their scope to the State.

None of the decisions that have been referred to and canvassed before me

have ruled that once a RERA complaint is filed, no other court or tribunal can

entertain any other grievance in relation to the subject matter of the

complaint. It is for this reason that the challenge to the provisions of RERA

was based on its constitutional validity. Both in Neelkamal Realtors (supra)

and in Lavasa Corporation (supra), the challenge was substantially to the

validity of the Act. While the RERA enactment seeks to bring about uniformity

throughout the country, the fact remains that the local laws which already

provide for certain regulation of the real estate business, still continue to be

valid and in this respect, Section 88 of the RERA makes it clear that the RERA

provisions are in addition to and not in substitution of the present enactments.

While there is no disputing the fact that RERA has been held to be a self-

contained code especially considering the requirement of compulsory

registration, extension of registration, powers of revocation of registration

highlighting the functions and duties of developers and the aspects of

conveyance and transfer of title, the Act also provides for certain rights and

duties of allottees; however, it falls short of encompassing all the aspects of

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MOFA. Had every provision of MOFA been part of the RERA enactment, then

it would have been possible to hold that the plaintiff could not have invoked

the jurisdiction of this court. However, as on date and at this prima facie

stage, it is not possible to find against the plaintiff. It cannot be disputed that

the provisions of law have to be interpreted in a purposive manner. If the

defendants' version is to be accepted, Section 88 of RERA would be rendered

otiose and meaningless. I am unable to agree with the counsel for the

defendants that in interpreting Section 88 with the help of Section 89, the

views canvassed by the plaintiff would be rendered nugatory.

29. On the other hand, the RERA provisions being an addition to existing

laws, it is a matter of course that existing laws cannot be ignored and if the

existing law enables this court to exercise jurisdiction, there is no bar against

this court entertaining the suit. That having been said, in the event of any

overlap in jurisdictions, it is always open for this court to exercise jurisdiction

to the extent required and to the extent relief is unavailable before the RERA

authorities. In my view, whether or not to exercise jurisdiction in favour of

the plaintiff in a suit and in the face of the validity of RERA having been

upheld, a lot would depend on the facts of each case. In certain cases where

reliefs are exclusively available to a plaintiff / complainant under RERA, it

may be appropriate that the plaintiff is expected to pursue the complaint

before the RERA authorities rather than encourage filing of suits. However, in

the present case, I am of the view that merely filing of the RERA complaint

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will not prevent the plaintiff from exercising its option in moving this court

and seeking protection.

30. The essence of the decision in Neelkamal Realtors (supra) is that of the

constitutionality of RERA as an enactment. The fact that save and except for

the constitution of the tribunal, all other provisions of RERA have been upheld

does not indicate that the provisions of MOFA need not be given effect to and

if provisions of MOFA can be invoked and sought to be enforced by a suit in

this court, mere filing of a complaint before the RERA authorities will not

frustrate plaintiff's effort in securing reliefs in this court. When we consider

the Statement of Objects and Reasons of RERA, it discloses that the real estate

sector was found to be playing a catalytic role in fulfilling the demand for

housing and infrastructure and that while the sector had grown significantly,

it has been largely unregulated in the absence of professionalism,

standardization and lack of adequate consumer protection and though the

Consumer Protection Act was available as a forum, it was not sufficient to

address all concerns of buyers of property and promoters alike. This aspect

would not hold true where the Maharashtra Ownership Flats Act did have an

element of regulation and control for a long time. To state that real estate

development in the State of Maharashtra was largely unregulated would not

be correct. That having been said, it is not every complaint that can be filed in

this court. RERA provides an adjudicatory mechanism for speedy dispute

disposal and it also has an appellate tribunal to hear appeals from the orders

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of the authority. But, does that alone prevent this court from entertaining a

suit in which parties seek to enforce MOFA obligations? The answer must be a

firm no. Although MOFA has been around for a long time, it did not address

all the concerns of prospective purchasers. For instance, and as observed in

Neelkamal Realtors (supra), prior to RERA coming into force, MOFA

provisions were applicable, but completion of construction of a building was

not envisaged under MOFA. This was found to be a serious lacuna in the law,

which gave rise to a number of suits. This does not mean that by enactment of

RERA, this court loses its jurisdiction to entertain a suit including one where

specific performance is sought. It is believed that RERA will assure completion

of a project within time, however, as we can see in the instant case, that is

nowhere near true. Developers will continue to develop and purchasers will

continue to purchase. That leaves regulation of the industry to be monitored.

Projects such as the one at hand where the SRA plays a crucial role has to be

completed in phases. The question is whether even the real estate regulatory

authority can in such a situation pass orders and grant reliefs, which would

encompass the roles played by the promoter, the purchaser, a co-operative

society and the Slum Rehabilitation Authority? This is a grey area and will

need to be explored further before a conclusion can be reached. However, on

the basis of what has been canvassed before me and since the IA is only at an

ad-interim stage and that a detailed hearing is now in the contemplation of

parties, especially considering the wide ranging reliefs sought, I am of the

view that prima facie the institution of a complaint under RERA will not by

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itself bar this court from entertaining a suit. Whether in a given case the court

should exercise a jurisdiction or not would depend on the facts.

31. Speaking of the dispute at hand, I am of the view that enactment of

RERA, the bar of Section 79 and the Slum Act and Section 42 thereof will not

non-suit the plaintiff. Having thus held and by clarifying that this is the view

that I hold at this ad-interim stage, I will now proceed to consider the reliefs

claimed on merits. It is pertinent to note that agreements for sale entered into

between developers and purchasers would include the standard form MOFA

agreements and the obligations of parties under MOFA. RERA to some extent

amplifies and works into more detail as far as the obligations and rights of

promoters and allottees too, but the provisions of MOFA are not entirely

subsumed in RERA. Mr. Kamat has laid emphasis on the decision of the

Supreme Court in Dhulabhai Vs. State of Madhya Pradesh and Anr. 9, in which

the Supreme Court was considering the effect of Section 17, barring

proceedings in any court, which was subject matter of assessments and orders

passed under the Madhya Bharat Sales Tax Act, when such orders were

passed by assessing authorities, appellate authorities or the Commissioner.

The Supreme Court observed that one of the tests to discover the force of a bar

under law would entail testing whether the Act contains machinery by which

an assessee could raise questions of vires of a provision before special

authorities and no such machinery existed and yet if civil courts were barred,

the vires of the section would come into question. According to Mr. Kamat, 9 (1968) 3 SCR 662

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this test was clearly met in RERA since RERA had a complete mechanism for

entertaining and deciding complaints. Thus, the bar of a civil court was

justified. While this may be correct when considering the provisions of RERA

and the rights and obligations of promoters and purchasers, one must

consider the effect of MOFA in such a situation and once MOFA is brought to

the forefront, it cannot be successfully contended that there is an absolute bar

against invocation of jurisdiction of a civil court. This is one other reason why

the present suit cannot be considered as not maintainable.

32. I am also unable to find how the decision in Lavasa Corporation

(supra) can come to the assistance of Mr. Kamat to enable me to hold that this

court has no jurisdiction to entertain the suit. Reference in Lavasa

Corporation to the decision of the Supreme Court in Tata Engineering &

Locomotive Co. Ltd. Vs. State of Bihar and Anr. 10 cannot be lost on us. As

observed in that judgment, statutes cannot be construed as the theorems of

Euclid but with some imagination of the purposes which lie behind them. This

is so true even in respect of the applicability of MOFA despite the provisions

of Section 79 of RERA. Paragraph 63 in Lavasa Corporation emphasizes the

fact that two literal meanings need not be given to understand the scheme

underlying provisions of the Act. The intention of the legislature has to be

gathered not only from the terms used but also from the objects and reasons

and the preamble. In this respect it was reiterated that RERA intends to

provide benefits for both developers and purchasers alike and that the object

10 (2000) 5 SCC 346

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was to establish and adjudicate the mechanism to provide speedy dispute

resolution. Lavasa Corporation does not hold that a civil court does not have a

jurisdiction to entertain claims under MOFA and indeed in view of Section 88

of RERA, it cannot be so construed. If read harmoniously, it will entail that

provisions of MOFA can be enforced not only through RERA, partly they could

be enforced through civil court as well. Thus, in my view, reliance on Lavasa

Corporation will not assist the plaintiff-society in ousting the jurisdiction of

this court. Lavasa Corporation primarily holds that Section 18 of RERA would

entitle allottees of premises also to maintain a complaint before the

adjudicating officer. The reliance placed by Mr. Kamat on the comparative

table of the prayers in the suit vis-a-vis breaches under RERA provisions and

remedies under RERA will not help the defendants in avoiding a trial in the

present suit. The fact remains that MOFA has not been repealed. MOFA

continues to be as effective as it was. RERA may have different aspects of

empowerment both for developers and purchasers alike, however as long as

MOFA continues to be good law, which it is, this court cannot be deprived of

jurisdiction merely on the basis of Section 79 of the RERA. If one were to

construe Section 79 so strictly so as to exclude the civil court completely

under all circumstances, it would be in my view almost like missing the wood

for the trees. Merely because under RERA the adjudicating authority has wide

powers, as seen from Sections 3 to 7, 11, 14, 17 to 19, 31, 34, 35, 36, 37, 38

and 40, it does not mean that a civil court cannot interfere to enforce specific

provisions of the MOFA. The various observations in Neelkamal Realtors

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(supra) do not help the defendants to succeed in establishing that there is an

absolute bar against the civil court entertaining a suit which seeks

determination of issues, which could also be decided by the RERA authority. In

a mixed bag of reliefs such as the present one, which spreads across the

different enactments and focuses primarily on MOFA obligations, it is open

for the plaintiff to approach a civil court unless the defendant shows that the

reliefs sought exclusively fell within the scope of RERA as the adjudicating

authority.

33. Now coming to the aspect of "informed consent", which the plaintiff-

society alleged they have not provided, it is apposite that we consider

provisions in the agreements for sale and the stand taken by the SRA. The

defendants have canvassed before me the multiple instances where the

agreements for sale have clearly provided that the building is to comprise of 2

basements of 6 levels, a ground and 13 upper floors, to be extended upto 18

floors, if permitted and if FSI is available. There are two aspects to this dispute;

firstly, whether there is an absolute bar on proceeding above the 13 th floor

without the express consent of the purchasers or the society and, secondly,

whether assuming there is no express bar, the developer could continue to

exploit FSI and put up additional construction on the basis of the benefits

under DCPR 2034. On both these aspects, I am of the prima facie view that

the plaintiff-society cannot succeed. The agreement for sale, right from its

recitals and the operative clauses, being 11(g), 11(i), 11(j), 12.2, 12.6, 12.14

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and 17, would in my view empower the developer to put up additional

construction to the extent provided for in the agreement. It is not a general

consent sought. Specific reference is made to 18 upper floors. If one was to

consider a clause which did not specify an upper limit, the plaintiff-society

may be right in contending that there was no informed consent, but in the

present case, I am clearly of the view that having specified in the aforesaid

clauses and also in the recitals and for that matter, in a total of 13 occasions

that the building would consists of upto 18 floors and that plans may have to

be changed for that purpose and in particular clause (12.6) which provides

that the approval for the layout shown to the unit purchaser at the time of

signing the agreement is subject to change, variation and/or modification, I

am of the view that the plaintiff-society cannot prevent construction form

being put up beyond 13 floors, provided, of-course, that the Planning

Authority and the SRA in particular provide sanction to the plans and that the

construction is in accordance with the law.

34. On behalf of the SRA, an affidavit of Uttam D.K. has been filed in which

the deponent has stated that the proposal for Hubtown Solaris was first noted

on 2nd April 2005. Letter of Intent was issued by the SRA for the scheme on 1 st

December 1998 and there are total of 14 buildings for rehabilitation

comprising of 2,068 tenements. The developer was to get permission to

construct in a phase-wise manner. The Planning Authority would issue an

occupation certificate and completion certificate only on completing the work

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of construction of rehabilitation tenements as per Letter of Intent and the sale

building as per sanctioned plan.

35. In the present case, some rehabilitation buildings consist of tenements

of 225 sq.ft. Others are larger area of 269 sq.ft. and also of 300 sq.ft.,

pursuant to amendment in this behalf sanctioned by the government.

Considering the total area constructed, developer was entitled to 10,48,391

sq.ft. of FSI and on the basis of the record of SRA, there is no violation in FSI.

The two sites have been combined; one at Sai Wadi, Andheri, Hari Nagar and

Shivaji Nagar, Jogeshwari. Subject to heights and margin restrictions as per

Development Control Regulations, 1991 (DCR), the developer would be able

to construct sell buildings on either of the plots. According to SRA, there is no

violation of DCR in respect of side margin and height and it is within the

limits permitted.

36. As regards the service area, these are governed by DCPR 35(2)(vii) of

DCR, 1991, The Architect of the project had proposed a service floor along

with the refugee area with the height of 3.6 meters. No activity except

providing services were carried out there. Pursuant to amended plans

submitted by the Architect on 20 th January 2019, offices were proposed to be

constructed on the 6th floor in the service area. The deponent states that since

that service area was not mandatory and since the refugee area was on the

same floor and left unaffected, SRA has granted amendment to the plan

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submitted on 20th January 2019. Thus, service area from the 6 th floor is being

shifted to other locations. The amended plan shows such service areas at

different locations. Reliance is placed on Exhibit R-1, which is the copy of the

amended plan sanctioned on 26 th July 2019. DCR 1991 were in operation

upto November, 2018 and the proposal for sanction of the building

permission thereafter was governed by the Development Control Permission

Regulation 2034 (DCPR 2034).

37. In view thereof, the developer was required to submit proposal as per

DCPR 2034 without changing the external design of the building. That

construction cannot now be permitted under DCR 1991 and the proposal of

the developer under DCPR 2034 has since been allowed by the SRA on 5 th July

2019 in accordance with the Regulation 9(6)(B) of DCPR 2034 and this is

how the service area has been partly used for constructing offices on the 6 th

floor. There is no mandate which requires a service area under DCPR 2034

and in any event, the service area proposed need not exceed 1.8 meters in

height. FSI available under DCR 1991 was 3 FSI and it continues to be the

same. The dispute appears only on account of payment of taxes and statutory

dues and SRA is not concerned with the same. The allegations of collusion

have been denied in the affidavit. Furthermore, execution of the conveyance

cannot be expected since the lease agreement between SRA, developer and

society will have to be executed for a period of 30 years after the slum project

is completed and handed over and after grant of full occupation certificate by

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the SRA. Thus, the SRA has stated that there are no illegalities or irregularities

whatsoever in granting approvals. Reference to Exhibit R-1 indicates that on

26th July 2019, SRA addressed a letter to the Architect conveying their no

objection to carry out work in accordance with the amended plans, subject to

the usual requirements. Similarly, Mr. Kulkarni also submitted that plans for

the 13th floor have also been sanctioned. Copies in respect of plans for the 11 th

and 13th floor were also approved on 26th July, 2019 and copies have been

tendered in court.

38. I am therefore of the opinion that the plaintiff-society cannot at this

ad-interim stage restrain the defendant no.5 from putting up further

construction. As a part of this relief, the plaintiff-society has also sought to

assail that the alteration of the plan of the 6 th floor was to provide an amenity

space by constructing units thereat. The affidavit filed on behalf of the SRA

clearly provides that originally it was sought to be maintained as an amenity

space, however SRA retained the rights at all times to approve change of

plans, which it had done in the instant case, especially since it was now

inclined to permit additional construction being put up. No doubt, part of this

may be because of the applicability of DCPR 2034, an aspect that the

defendant no.5 has sought to deny by contending that the FSI under DCR

1991 is yet to be exhausted; indeed, the affidavit-in-reply filed by SRA clearly

specifies that the FSI under DCR 1991 had not been exhausted and that there

was no increase in FSI sought under DCPR 2034. In view of this statement on

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behalf of the SRA, this aspect of the matter must rest.

39. All that can be said in favour of the plaintiff-society is that the existing

purchasers cannot be prejudiced by virtue of the amendment in plans and

cannot be deprived of amenities that the developer was bound to provide. This

is an aspect which SRA will be conscious of and is expected to take into

consideration in permitting conversion of the same premises and probably

contemplating to compensate the construction by providing alternate space

for such amenity.

40. As far as the reliefs that the plaintiff-society seeks in relation to the

utilization of the 6th floor, its restoration and further construction upon floor

13 and above, it will be open for the plaintiff to take up the issue with the

SRA, if so advised. Whether or not such sanctions were permissible or not is

an aspect that cannot be gone into at this stage; indeed, that is not the

challenge. The challenge is against the defendant no.5 putting up such

construction and not against SRA permitting the same. In view of the

statements in the affidavit filed on behalf of the SRA, I am of the view that no

interference is called for at this stage.

41. That brings us to the question whether the plaintiff-society is entitled

to any relief in terms of handing over possession of the society's office along

with the records and accounts of all monies collected and maintenance

charges and taxes payable. The plaintiff-society has relied upon the

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provisions of clauses 2(k), 4, 4.2, 4.3, 4.6, 4.7 and 4.9 of the standard form

agreements for sale executed with the unit purchasers. These clauses clearly

provide that the "common organization" contemplated by the developer-

promoter, which is now the society, would fix maintenance charges for

general maintenance of the building and which would be paid in advance by

the unit purchasers. It is further provided that the maintenance charges and

contributions are payable to the developers and promoters only till the

common organization is so formed. Furthermore, if a common organization is

formed, it is contended that till the plot is leased to the common organization,

the developer has a right to collect proportionate share in the outgoings in

respect of common areas and facilities. Thus, a distinction is drawn between

clause 4.2 and 4.3. Outgoings in respect of the unit in use and occupation of

a purchaser and charges for maintenance of common facilities could be paid

by the common organization / society, but till such time the plot is leased to

such common organization, the outgoings in respect of the proportionate

share of the members of the society in respect of common facilities would

have to be paid to the developer. This stands to reason since it is the

developer's obligation to maintain the common facilities during the period

that construction is continuing. On a case-to-case basis, this will have to be

evaluated.

42. In the present case, the building is said to be consisting of 277 units,

which are presently sold and largely occupied. The unit purchasers are not

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entitled to withhold payment of maintenance charges till a common

organization is formed. This would entail that once the society is formed,

maintenance charges in respect of the individual units would have to be paid

over to the society and not to the developer and to that extent, the plaintiff-

society must succeed. Interpreting clause 4.3 would mean that outgoings in

respect of common areas and facilities of the plot would have to be paid over

to the developer / promoter till the plot is leased to the common organization.

The distinction between clauses 4.2 and 4.3 lies in the fact that clause 4.3

contemplates "common areas of the plot" and not the building. As far as the

building is concerned and the common facilities and areas of the building are

concerned, it cannot be contended that the payments are required to be made

to the developers. That would be a completely incorrect reading of the clause.

Clause 4.3 clarifies this and strengthens the view that all outgoings and

maintenance charges in respect of the units, which are now being managed

by the society, would have to be paid over to the society alone.

43. As far as the plot is concerned, there may be areas which all users

would have common access to such as the compound, yards etc. If that is so,

the developer will have to specify these amounts. Unless these amounts were

specified, no amounts could have been collected once the society has been

formed. Thus, as an extension of this, clause 4.7 would provide for the society

now to fix the maintenance charges since the society has now been formed.

Till the formation of the society however the developer would have to account

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for the maintenance charges that have been recovered along with the actual

expenditure. There would have to be disclosure of these amounts in order to

meaningfully enforce clause 4.2. Thus, the developer's right to collect a 20%

charge and service tax on all maintenance charges and outgoings would have

to stop after the formation of the society. Needless to mention, a complete

disclosure would now be expected of the developer. In this respect, it is

material to note that SRA has vide its letters dated 19 th November 2019, 9th

December 2019 and 30th December 2019 (Exhibits F-1, F-2 and F-3 to the

plaint) directed the defendant no.5 to handover the society's office and all the

relevant documents to the plaintiff-society. This can be taken to its logical

conclusion.

44. That brings us to the allegations of interference and harassment by

persons engaged by defendant no.5, who are described as goons and anti-

social elements in the plaint. The contentions of the plaintiff-society are that

these persons have been employed in the lobby and generally around the

premises of the building in order to harass, intimidate and threaten members

of the plaintiff-society. They seek to prevent the members from carrying out

their duties and convening meetings. These persons have allegedly thrown

away articles of the plaintiff-society and assaulted the members of the society.

They held out threats to the members of dire consequences unless they fall in

line. In my view, if true, the plaintiff-society can always approach the law

enforcement agencies, who will, no doubt, look into the matter and take a

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suitable preventive measure.

45. In an affidavit seen to be affirmed on 7 th October, 2020 tendered via

email but which is yet to be filed in the registry, the deponent Ali Murtaza has

admitted in paragraph 5.84 and 5.85 that the plaintiff has engaged a security

team. In that view of the matter there is no occasion for the defendant nos.5

and 6 to interfere or present the society's security team from carrying out

duties in the normal course. In view thereof and given the fact that no one

can take law into their own hands, I am of the view that the plaintiff-society

is entitled to protection by an ad-interim prohibitory order restraining the

defendant no.5 from engaging any persons to harass or threaten employees of

the society, as contemplated in prayer clause (b).

46. The last aspect that requires to be considered is the relief sought in

relation to operation of lifts and robotic parking, this is an aspect which has

been dealt with in some detail by both sides at the earlier hearings in this

matter. As a result of several attempts arriving at a workable solution, a

chartered accountant has been appointed and the order dated 9 th December

2020 details the methodology to be adopted. As on date, there is nothing to

indicate that this interim measure and an attempt to resolve the dead-lock in

the management of the affairs of the society will not succeed. There is

correspondence to indicate that the chartered accountant was (as of March 2,

2020) awaiting confirmation on the aspect of his professional fees. For want

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of such confirmation, that chartered accountant has not been able to proceed

in the matter. It is expected that wiser counsel will prevail and both the sides

are agreed to do the needful to ensure that this exercise is completed

meaningfully and in order to avoid further controversy on the subject.

However, the records of the building as far as its maintenance and operations

are concerned, including arrangements between defendant no.5, 6 and 9

inter se, it would have to be managed by the society. To that extent, the

exercise by the chartered accountant is now expected to reveal whether there

are any illegalities committed by the developer and that is a matter for us to

consider at the appropriate stage. Suffice it to say that for the present the

parties are directed to co-operate with the chartered accountant to enable

him to reach his conclusions and file a report at the earliest.

47. In conclusion, I pass the following order :-

(i) There will be an ad-interim order in terms of prayer

clause (b) of the IA, which is reproduced below :-

"(b). That pending hearing and final disposal of the above suit, this Hon'ble Court be pleased to restrain the persons employed as security guards and or any other employees of Defendant No.5 and Defendant No.6 or any other persons claiming through Defendant No.5 and Defendant No.6 by a temporary order and injunction from obstructing, interfering or harassing the members of the Plaintiff, the Plaintiff's employees, agents and servants from

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managing the day-to-day affairs of the Plaintiff including maintenance of the building Hubtown Solaris, C.T.S. No.427, Village Gundavali, N.S. Phadke Road, Andheri (East), Mumbai - 400

069."

(ii) No case is made out for ad-interim relief in terms of

prayer clauses (f) and (h).

(iii) Reply dated 7th October, 2020 on behalf of defendant

nos.5 and 6 and replies of other defendants, if any, to be

filed within a period of eight weeks from today.

(iv) Affidavit-in-rejoinder, if any, to be filed within a period

of four weeks thereafter.

          (v)       List the IA per CIS.

          (vi)      Liberty to apply in furtherance of the order dated 25 th

                    November 2020, if so advised.




                                                                         (A. K. MENON, J.)





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