Galaxy Exotica Co-Operative Hsg. ... vs Aziz A. K. Barudgar And 2 Ors
2021 Latest Caselaw 14209 Bom

                                 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC




                      Shephali



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                       NOTICE OF MOTION NO. 25 OF 2020
                                                              IN
                                                  SUIT NO. 18 OF 2020
                      Galaxy Exotica CHSL                                                  ...Plaintiffs
                            Versus
                      Aziz AK Barudgar & Ors                                             ...Defendants


                      Mr Mayur Khandeparkar, with Gauraj Shah & Meetal Savla, i/b
                           Chitnis Vithy & Co, for the Plaintiffs/Applicants.
                      Mr Girish Godbole, with Aman Anand, i/b Harminder Anand &
                           Kaustubh Thipsay, for Defendant No .1


SHEPHALI
SANJAY
                                                 CORAM: G.S. PATEL, J
MORMARE                                          DATED: 30th September 2021 &
Digitally signed by                                     1st October 2021
SHEPHALI SANJAY
MORMARE
Date: 2021.10.04
                      PC:-
10:37:41 +0530




                      1.

The Plaintiff ("the Society") is a cooperative society of free-

sale flat purchasers. The 1st Defendant, Barudkar, is the sole proprietor of a firm of developers ("Galaxy"; "the Developer"). We are not concerned with the 2nd and 3rd Defendants, the MCGM and the Chief Executive Officer of the SRA.

2. For the disposal of the principal Notice of Motion by the Plaintiff, the issue is narrow. The Society wants an injunction against Galaxy from, as it put it, "entering upon, remaining and

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

/disturbing" their "peaceful occupation and possession on the plot bearing Survey No. 27, Hissa No. 2(pt), corresponding to CTS No. 411, 411 (pt 1 to 29 and Survey No. 27, Hissa No. 6 (pt) corresponding to CTS No. 413."

3. Since a picture speaks more than a thousand words, I will begin this order with a more illustrative plan that outlines more clearly the controversy. This is provided by Mr Godbole for Galaxy. The PDF of this scan is to separately uploaded and also, if possible, the image file in JPEG format.

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

4. This plan shows three different plots. The red bounded plot to the right is the Society's plot CTS No. 413. The green bounded plot to the north-west is the rehab plot, CTS No. 411. To the west of CTS No. 413 and the south of CTS No. 411 is another plot, CTS No. 412, shown in blue boundary lines. The disputed portion is shown in the green hatched line in an 'L' shape running along the north-west periphery of the Plaintiff's plot CTS No 413 and the southern periphery of the rehab plot CTS No 411. This is an access road to CTS No.412.

5. I will now endeavour to encapsulate this dispute as briefly as I can. The Society's members are free sale purchasers of flats developed by Galaxy. The development was a part of the slum redevelopment project. The slum rehab buildings are housed on the rehab plot CTS No. 411. The Society's members executed individual agreements in respect of their apartments. These are all under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ("MOFA"). Nobody disputes this. The MOFA agreements all contain a specific mention that Galaxy would seek to amalgamate CTS No. 412, one that is otherwise, according to Galaxy, a landlocked property in this development. The Society says that while that amalgamation was certainly permissible, what was not -- at least without their consent -- was the clubbing of the slum on plot no. 412 with another slum project located elsewhere, the translocation of the FSI or TDR from that other to this site. Specifically, the Plaintiffs say that without their express consent, the Developer could not have created the access road shown in the hatched green line, the disputed portion. This, they claim, is

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

contrary to the settled law under Section 7A of MOFA. They also contend that this access road created by Galaxy deprives the Plaintiffs of promised amenities and is contrary to the representations Galaxy made in promotional material in a brochure shown to the Plaintiffs earlier.

6. The very short answer from Mr Godbole for Galaxy is that the consent obtained under the MOFA Agreements from every flat purchaser specifically mentioned the amalgamation, and not in a generalised form but with express reference to CTS No. 412, the development thereon and the prospect of amalgamation or clubbing for the purposes of its development. Mr Godbole also says that no amenities promised to the Plaintiffs have been taken away. That car parking is intact and complete, though it may have been reconfigured from what was originally contemplated. There is stilt and stack parking. No amenities provided to the Plaintiffs have been taken away and no amenities promised to the Plaintiffs have remained to be delivered.

7. He also submits that section 7A does not contemplate an absolute bar on further development by a developer. What it does not permit is development to the detriment of a flat purchaser, i.e. the taking away of an amenity or the reduction of an amenity including a change in layout (though that might be an overstatement) when done without the affirmative informed consent of the flat purchasers. If it can be shown, therefore, that the flat purchasers were aware of the proposed plan and the resultant change in layout including a proposal for amalgamation, there can be no question of a violation of Section 7A.

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

8. Mr Khandeparkar for the Plaintiffs also submits that the developer is in breach of his obligations under Section 11 of MOFA. The Society having been formed a long time ago, and the necessary percentage having taken possession or having assented, a conveyance or an assignment in favour of the society ought to have been done. Therefore, he argues, the property is not even that of the Developer for him to make any such access road to CTS No. 412. Again, Mr Godbole's response to this is simple and straightforward. Only because there has not yet been a forced conveyance from the developer to the society is no reason, he says, and I think quite rightly, to grant an injunction against the developer from developing on an adjacent plot.

9. Another consideration that will undoubtedly arise is whether a litigant can force his opponent to remain forever with a totally landlocked property with no access. I believe it is fundamental that the law does not recognise such a vacuum in land usage rights. If an express right of way has not been provided in a transfer document, the law will surely impute a right of way because no land owner can ever be told that he has the full rights of an owner of land -- except that he can never get to it. That is a logical absurdity and one that the law cannot and will not recognise.

10. The facts such as they are, are very few. Only a few documents need to be considered. A logical place to begin is with one of the MOFA Agreements. A sample is at Exhibit-B from page

50. The agreement starts at page 51.

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

ON 1ST OCTOBER 2021:

11. The MOFA agreement has the necessary recitals regarding the devolution of the property up to recital 'u' at page 61. It traces how the Developer acquired title to what is described as the "second property" in the Schedule. That description at page 92 is of a plot Survey No. 27 Hissa No. 6 (pt) of approximately 1179.75 sq yards at Village Vile Parle, Taluka Andheri in the Mumbai Suburban District. The second property covers CTS No. 413 and 413/1 to 16. CTS Nos. 411 and 411 (parts 1 to 29) admeasuring in the aggregate of 1438 sq mtrs. constitute the "First Property". Thus, up to recital 'u', the MOFA agreement shows how the Developer acquired rights to CTS No. 411 (the rehab plot) and CTS No. 413 (the Society's plot). Then there is recital III at page 61 that deals with the adjoining property CTS No. 412. This is where the question of amalgamation now enters. Recital III at page 61 reads thus:

"III. In respect of C.T.S. No. 412/(adjoining Property/future Property) The Promoters/Developers are under negotiations to acquire the adjoining property to the Said Larger Property bearing Survey No. 27, Hissa No. 5, corresponding to CTS No. 412 of Village Vile Parle (East), Taluka Andheri, and containing by admeasuring 372.7 sq.yards, which property is hereinafter referred to as the Third Property/Adjoining Property and is described Thirdly in the First Schedule herein. In the event the Promoters/Developers acquire the Third Property they shall amalgamate the same with the Said Larger Property and obtain an amended LOI.

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

III-A. Reconstruction of Promoters

a) Galaxy Realtors was erstwhile a Partnership firm of MR. ABDUL AZIZ A.K. BARUDGAR & one MR.

DIVESH H TRIVDEI. The said partnership firm got converted into Proprietorship concern of MR. ABDUL AZIZ A.K. BARUDGAR, Pursuant to Consent Terms dated 2nd August, 2013 filed by the parties before the sole Arbitrator was appointed pursuant to the Order of the High court of Judicature at Bombay in Arbitration Petition No. (L) 642 of 2012, dated 31/07/2013."

12. Then in Recital IV there is first a statement that CTS Nos. 411 and 413 are both encroached as slum areas. Sub-recital (e) at page 63 says that it is for the Developer at its discretion to amalgamate the third property, CTS No. 412, and obtain an amended LOI for the development of all three properties. Sub- recital (e) reads thus:

"e) The Developer shall at their discretion amalgamate the Third Property and shall thereafter obtain an amended LOI for the development of the First Property and Second Property jointly with the Third Property."

13. This is so far as the recitals are concerned. But the MOFA agreement contains an express provision in the main portion itself. We find this most clearly stated in clause 14 at page 71. It is reproduced below:

"14. It is expressly agreed by and between the parties hereto that the Promoters, if they so desire are entitled to amalgamate the said property with any other adjoining plot/ s and construct the building or buildings thereon as permissible by the SRA and other concerned authorities

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

even after the Society of the said Purchasers of tenements in the said building is formed and registered until the lease of the said property is granted to the said Society in accordance with the terms and conditions as may be framed by SRA. The Society or any of its members shall not raise any objection and agree to grant their consents for the same as and when it may be required by the Promoters. The said Society enrol the premises purchasers of the buildings that may be constructed on the adjoining plots. The Promoters shall be entitled to consume FSI and other benefits of the said property and/or adjoining plot by constructing separate buildings of any or all the plots of separate wings of the building by intermingling the FSI and/or TDR or otherwise."

14. Now read together these clauses clearly indicate three things.

(a) First, that at the time of the MOFA agreement, the Developer had in contemplation a proposal to amalgamate CTS No. 412 with the other two plots and develop all three plots. Indeed, there is some material, unimportant for the present, to indicate that that proposal had already been put into motion.

(b) Second, this proposal had been conveyed to every single intending flat purchaser. This is borne out by the recitals and the clause to which I have just referred. The flat purchasers were put to notice of the proposal.

(c) Third, by signing the MOFA Agreements containing these recitals and clauses every single flat purchaser conveyed consent to the proposal for amalgamation. This cannot be said to be uninformed consent.

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

15. The law does not require by every single detail down to the last brick has to be informed to an intending flat purchaser. The flat purchasers cannot, therefore, be heard now to argue that they had no knowledge of the amalgamation. It is also not open to them to argue that their consent was necessary as a determinant of the nature of the amalgamation. If the law relating to such developments permitted clubbing the disjunct slum development proposals and the utilization in this project of FSI obtained from another project, then that is certainly part of the process of amalgamation of which every flat purchaser was given to notice, and to which every flat purchaser consented or must reasonably be held to have consented.

16. Now the real dispute, as I noted at the beginning, is about the access road. Mr Khandeparkar's submission is that this is the only access road available to the Society. If the 1st Defendant is going to use the same road for moving its construction materials and vehicles for development of CTS No. 412, then the Plaintiffs are seriously prejudiced. But that is not an argument that is based on a right in MOFA at all. That lies outside the frame of MOFA. Mr Khandeparkar submits that there was a dividing wall of some kind between the Plaintiffs' plot and the slum rehab building on Plot No. 411 and this has been removed to make available for the access road. This is a contentious area that cannot be decided on affidavit and does not lend itself to a prima facie determination at an interim stage. To succeed on this, the Plaintiffs must show two things. One, that they do not have any other access; and, two, that this access was exclusively reserved for them in some writing.

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

17. Now the sketch that I have reproduced at the beginning indicates that there is a separate access to the Plaintiffs on the eastern side. This is not just separate but is exclusive to the Plaintiffs. It is not used by the rehab occupants on plot CTS No. 411 nor proposed to be used on the amalgamated development of CTS No. 412. Similarly, the complaint about insufficient parking is not one that I can decide today or on which I can form a prima facie view. This is because Mr Godbole on instructions (as does his client on affidavit) says that not a single car parking space has been reduced. The Society has been provided stilt parking and stack parking as well. No open space or other amenity has been taken away.

18. Lastly, on facts, Mr Godbole invites my attention to a letter of 14th February 2019 from the Advocates for the Plaintiffs to the 1st Defendant. Paragraph 8 at page 226 deals with some alleged defaults. What sub-paragraph (i) says there is of consequence. This is how it reads:

"Construction of the boundary wall and gate on the Westside Entrance of the Galaxy Exotica Building. Our clients call upon you to provide to our clients the confirmed timeline in writing for the completion of the said work as you have connected the issue with the construction of the Annex Wing and have neglected to mention when the same would commence."

19. This shows that at least in February 2019 the Plaintiffs were aware of the construction by the Developer on CTS No. 411 (referred to as "the Annex Wing").

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

20. There is a further letter starting from page 263 of 3rd June 2019. This is from the Advocates for the Society to the Advocates for the Developer. Here in paragraph 15, the Plaintiffs have clearly acknowledged that at a meeting of 13th March 2019 they knew of the work being proposed by the Developer on what is called Wing 'C'. All that the Plaintiffs say is that the work of wing 'C' could not or should not start unless wings 'A' and 'B' (the Plaintiff Society and the rehab building) obtain an occupation certificate. But, more importantly, in this paragraph the Plaintiffs laid no claim of exclusivity to what is now the proposed access route. The Plaintiffs said that the Developer had begun to demolish the wall on the eastern side of the society premises (the hatched portion indicated above) but that the Plaintiffs had requested the Developer not to demolish this as it would be allegedly "risky" and threatened the security of the Plaintiff Society. Now asking for a benefit is a very different thing from asserting a right based on title. The Society cannot take constantly shifting stands in this fashion.

21. Mr Khandeparkar seeks to draw support from a judgment of the Hon'ble Mr Justice SJ Vazifdar, as he then was, in Jitendra Santilal Shah v Zenal Construction Pvt Ltd.1 The submission is there was no representation by the developer respondent that it would develop the property in the manner that it had proposed. A mere right in the developer to develop the property was not a communication of a representation to that effect to the flat purchasers. In paragraph 25, the judgment noted that at the time of entering into the MOFA Agreements, the proposed development had not even been indicated to the flat purchasers. Therefore, the 1 2009 SCC Online Bom 105.

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

Court held it could not be said that the flat purchasers had consented to the proposed development. Besides, that development was of a structure abutting and touching the members' / flat purchasers' building. It is difficult to see how this decision is of any assistance in the facts of this case. Here there is an express communication of a future or intended development. The plot is identified. The manner of its development, i.e. by amalgamation is identified. The relevant provisions of law (Slum Redevelopment) are also identified. Apart from the actual architectural plan of the building and layout of CTS No. 411, almost nothing is left undisclosed or to the imagination.

22. In this view of the matter, I do not see how the Plaintiffs are entitled to the reliefs that they seek. I cannot conclude that the Plaintiffs have made out such a prima facie case as would entitle them to relief. As to balance of convenience and the matter of irretrievable prejudice, this must be answered against the Plaintiffs, who have no rights over the adjacent plot CTS No 412 at all, and cannot possibly engineer a situation that leaves it landlocked. They have not shown that the access road is definitively their property or that they have no other means of access.

23. Indeed, on the question of balance of convenience and irretrievable prejudice, a look at prayers (a) and (b) will suffice. They read like this:

"(a) Pending the hearing and final disposal of the above suit this Hon'ble Court be pleased to grant temporary order and injunction of this Hon'ble Court, restraining the Defendants, their agents, servants, and representatives

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

claiming through the Defendant No.1from entering upon, remaining and/or disturbing the Plaintiffs peaceful occupation and possession on the plot bearing Survey No.27 Hissa No.2(pt) corresponding to CTS No. 411, 411 (part 1 to 29) and Survey No. 27 Hissa No. 6 (part) corresponding to CTS no. 413, totally admeasuring 1242.81 sq.mtrs. or thereabouts and

(b) Pending the hearing and final disposal of the above suit this Hon'ble Court be pleased to grant temporary order and injunction of this Hon'ble Court, restraining the Defendants, their agents, servants, and representatives claiming through the Defendant No.1, their agents, servants, representatives and all other persons claiming through the Defendant No.1 from in any manner dealing with and/or developing the suit property viz. Plot bearing Survey No.27 Hissa No. 5 corresponding to CTS no. 412 situate lying and being at Village Vile Parle, Taluka Andheri, Dist. Mumbai Suburban and admeasuring 372.7 sq.mtrs. or any part or portion thereof as also not to deal with or sell, transfer and/or dispose of any flats or units in the proposed building/ additional structure to be constructed on the suit property as well as the FSI relating to the suit property or any part or portion thereof to any other third party and/or from carrying on any activity of demolition or construction on the suit property or any part or portion thereof."

24. Prayer (b) is unstable. The Plaintiffs have no right over CTS No. 412. It is inconceivable that they could get a restraint against the 1st Defendant from developing that plot.

25. Prayer (a) also defeats itself. It cannot be that the Plaintiffs either on account of a MOFA Section 11 entitlement or otherwise

30th September 2021 & 1st October 2021 905-NMS-25-2020 IN S-18-2020 WITH APPL-55-2020 IN NMS-25-2020.DOC

create a situation where the 1st Defendant's CTS No. 412 is rendered entirely land-locked and unusable. This is not something that the law recognizes.

26. In my view, the Plaintiffs can receive no order on this Notice of Motion. It is dismissed.

27. The previous orders/statements stand vacated.

28. In the facts and circumstances of this case, there will be no order as to costs.

29. I must note that both sides have tendered thick compilation of citations and written submission. What I have noted above is all that was argued before me. This judgment is dictated in open Court and none have said that something stated in the written submission has not been considered.

30. Mr Gauraj Shah requests for a stay of the operation of this order. He points out that the status quo has been in operation since June 2019. The submission is not unreasonable. I will continue the stay for a limited period, i.e. only until 18th October 2021.

31. All concerned will act on production of a digitally signed copy of this order.

(G. S. PATEL, J)

30th September 2021 & 1st October 2021