Sureshkumar Jawaharlal ... vs Gopaldham Co-Hou. Soc. Ltd. Thr ...
2022 Latest Caselaw 786 Bom

                                                                                  15. WP-628-22.doc

BDP-SPS-TAC



   BHARAT
   DASHARATH
   PANDIT
                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
   Digitally signed
   by BHARAT
                                          CIVIL APPELLATE JURISDICTION
                                         WRIT PETITION NO. 628 OF 2022
   DASHARATH
   PANDIT
   Date: 2022.01.27
   17:03:44 +0530




                      Shri Sureshkumar Jawaharlal
                      Shanklesha and Ors.                               ......Petitioners
                            V/s
                      Gopaldham Cooperative
                      Housing Society Ltd. and Ors.                     .....Respondents
                      ---
                      Mr. Girish Godbole a/w Mr. Sumit Kothari i/b Atharva Dandekar,
                      Advocates for the Petitioners.
                      Mr. Prafulla Shah i/b Ms. Gunjan Shah for Respondent No.1.
                      Mr. Sandeep D. Shinde for Respondent Nos. 4 and 5.
                      ----
                                        CORAM: NITIN W. SAMBRE, J.

                                            DATE:    JANUARY 20, 2022

                      P.C.:-

                      1]       Present Petition is directed against the order dated 15 th

December 2021 passed in Misc. Civil Appeal No. 62 of 2021

(Gopaldham Co-operative Housing Society Limited vs. Jai Malhar

Builders and Developers and 9 Others) wherein the Appellate Court

ordered injunction, restraining Defendant Nos. 3 to 8 or persons

claiming through or under them from carrying out construction over

the suit property.

2] Facts necessary for deciding present Petition are as under:-

15. WP-628-22.doc

3] One Suresh Teli was an owner of the land bearing CTS Nos.2089

and 2090 together admeasuring 389.6 sq. mtrs. and 63.5 sq. mtrs.,

totaling to 453.10 sq. mtrs. On the said property, stood a building

being House No.26 which is identified as 'Gopal Niwas'. The said

Suresh Teli in the capacity of Proprietor of M/s Dhanshri Builders,

developed said plot, thereby constructing a building consisting of

ground plus four floors, which is identified as 'Gopaldham'. The

aforesaid construction was carried out pursuant to the permission

granted by the Planning Authority on 24th April, 1991. Flats in the

said building Gopaldham were purchased by various persons pursuant

to agreement of sale and in view of provisions of the Maharashtra

Ownership of Flats (Regulation of the promotion of construction, sale,

management and transfer) Act, 1963 and in accordance with the

provisions of the Maharashtra Apartment Ownership Act, 1970,

Plaintiff-Society was formed.

4] It is the case of the Petitioners/Defendants that vide registered

Sale Deed dated 17th March, 2009, they have purchased the land

admeasuring 194.8 sq. mtrs out of City Survey No. 2089 alongwith the

15. WP-628-22.doc

structure Gopal Niwas bearing House No.26. It is claimed that the

said structure Gopal Niwas was occupied by four tenants viz. Gala

No.4 and Room Nos. 1, 3, 4 and 10. Vide various surrender deeds

these tenants surrendered their tenancy rights from 24 th March, 2009

to 28th January, 2010.

5] On 28th December, 2010, an application was moved for

measurement of the aforesaid property and C.T.S. No.2089/1 was

carved out from original City Survey No. 2089, consisting of 194.80

sq. mtrs. The aforesaid area of 194.8 sq. mtrs was rectified vide

Rectification Deed dated 17th June, 2010 to 140.10 sq. mtrs. to the

extent of purchase made by the Petitioners/Defendants. The tenants

were provided with permanent alternative accommodation vide

agreement dated 4th June, 2015. It is then claimed that after aforesaid

sub-division, pursuant to the request made, Municipal

Corporation/Planning Authority granted permission for development

of Plot No.2089/1 and Survey No.2090 vide Commencement

Certificate dated 12th March, 2019, resulting into filing of the present

suit.

15. WP-628-22.doc

6] Mr. Godbole, learned Counsel for the Petitioner while

questioning the order of grant of injunction by the lower appellate

court would make following submissions:-

(a) The Appellate Court committed an error of law in not remanding the matter to the Trial Court once having noticed that order of the Trial Court refusing injunction lacks reasons;

      (b)    the suit claim brought into action by the
      Respondents/Plaintiffs      at   much         belated      stage,

particularly when the Sale Deed in favour of the Petitioners was executed way back in 2009 i.e. on 17 th March, 2009, subsequent to which measurement was carried out, plans were sanctioned and the construction has commenced.

7] According to him, either matter needs to be remanded to the

Trial Court for recording appropriate reasons or, in the alternative, this

Court should quash and set aside the impugned order passed by the

Appellate Court, whereby injunction is ordered. So as to

substantiate the claim that injunction cannot be granted at belated

stage and also relying on principles governing grant of temporary

15. WP-628-22.doc

injunction, support is drawn from the judgments of the Apex Court in

the matter of Mandali Ranganna and others vs. T. Ramchandra and

others reported in (2008) 11 SCC 1 and in the matter of Ambalal

Sarabhai Enterprise Limited vs. KS Infraspace LLP Limited and Anr

reported in (2020) 5 SCC 410.

8] While countering submissions, learned Counsel for

Respondents/Plaintiffs would support the judgment of the Appellate

Court, granting injunction based on the material available on record

and as such prayer for rejection of the Petition is made.

9] Considered submissions.

10] Vide agreement dated 9th December 1994 M/s Dhanshri Builders

through its Proprietor Suresh Teli who is also an owner of the suit

property, has agreed to develop the property in favour of members of

the Plaintiff-Society by various agreements. The Schedule in the said

agreement reads thus:-

"ALL THAT PIECE & PARCEL of Gaonthan land, lying and situated at kasbe of Kalyan, within

15. WP-628-22.doc

Registration District Thane, sub-Registration, Kalyan, within the limits of Kalyan Municipal Corporation bearing,

C.T.S. No. Area (sq. mtrs.)

2089 389.60 2090 63.50

----------

453.10

-----------

as bounded as follows:

ON OR TOWARDS EAST: Road (kasarhat lane) ON OR TOWARDS WEST: C.T.S. NO.2087 & 2092

ON OR TOWARDS SOUTH : Road.

together with all easement rights etc."

11] The said owner has got sanctioned the structure which is

particularly identified in the present proceedings as Gopaldham on

C.T.S. Nos.2089 and 2090, area admeasuring 453.10 sq. mtrs. The

sanction was granted vide building permission dated 24th April, 1991

given by Respondent-Municipal Corporation. The said property was

developed in accordance with the provisions of the Maharashtra

Ownership of Flats (Regulation of the romotion of construction, sale,

15. WP-628-22.doc

management and transfer) Act, 1963 (hereinafter referred to as

"MOFA, 1963). The recitals in the said agreement for sale in

categorical terms provide that rights are created in the said property

mentioned in the Schedule referred to above of the occupiers who are

residing in structure Gopaldham pursuant to various agreements. The

said property is freehold land i.e. without any restrictions on the right

to transfer and total FSI exhausted in the said construction is 453.10

sq. mtrs. The balance FSI/FAR, if any, after construction of

Gopaldham, if available, was at the disposal of the promoter/builder

till registration of the Society and post registration, the said FSI was to

vest in Respondent/Plaintiff viz. Society. Recital in the agreement

referred to above, particularly clause (4) reads thus:-

"(4) ............ The residual F.A.R. (FSI) in the plot or the layout non-consumed will be available to the PROMOTERS / BUILDERS till the registration of the society whereas after registration of such society the residual F.A.R. (FSI) shall be available to such society."

12] Apart from above, the said owner has agreed to conduct himself

with members of Plaintiff-Society in accordance with the provisions of

15. WP-628-22.doc

the MOFA, 1963. The owner Teli further agreed to transfer the land

and building in favour of the Co-operative Housing Society within 12

months of registration of the Co-operative Housing Society by

executing or causing to execute necessary Conveyance Deed. Recital

of the said agreement, particularly para 12 reads thus :

"(12) SUBJECT to the terms and conditions of this agreement the PROMOTERS/ BUILDERS shall within 12 moths of Registration of co-operative society as aforesaid cause to be transferred the land and the said new building in favour of such co-operative housing society by executing or causing to be executed the necessary conveyance deed as stated above."

The said owner has agreed to execute Transfer Deed or any such

documents as are necessary in respect of the premises.

13] In the aforesaid background, it is apparent that when the

building Gopaldham was developed, what was agreed to by the owner,

was to transfer the entire property being C.T.S. Nos. 2089 and 2090

and as such hardly any open land/F.S.I. was left at the disposal of the

15. WP-628-22.doc

said owner. It appears that the Petitioners purchased the land out of

above City Survey Numbers. Contrary to the transfers already

effected by the owner, Petitioners have secured permission from the

local Planning Authority i.e. Kalyan Dombivali Muncipal Corporation

and has started developing the same. As such, primarily it appears

that the erstwhile owner Mr. Suresh Teli, after developing the building

Gopaldham, was not left with any land to transfer the same in favour

of the Petitioners. The Transfer Deed was effected in favour of the

Petitioners in 2009. The Petitioners thereafter have got executed

Correction Deed, thereby correcting area from City Survey No. 2089 to

140.10 sq. mtrs. and thereafter secured permission from the Municipal

Corporation for carrying out development.

14] In the aforesaid background, on merit, it is apparent that

Petitioners have no lawful claim or title to the suit property. In my

opinion, by very conduct of its owner Mr. Suresh Teli, as discussed

hereinabove, land in question appears to have been prima faice vested

in Plaintiff-Co-operative Housing Society. The very title of the

Petitioners/Defendants is defective.

15. WP-628-22.doc

15] In the aforesaid backdrop, order of grant of injunction by the

lower appellate court is quite justified as the order is in tune with the

provisions of the MOFA, 1963, as the property mentioned in the

Schedule or in the suit claim stood vested in the original Plaintiff.

16] The Appellate Court while considering the claim for grant of

temporary injunction appears to be sensitive to the aforesaid conduct

of the present Petitioners i.e. purchasing the land without verifying the

title and noticed that in case if Petitioners are permitted to carry out

the construction great and irreparable loss will be caused to the

Plaintiff, as third party rights shall be created thereby destroying the

original structure of the property. As such, considering the balance of

convenience and prima facie case, Appellate Court was justified in

granting temporary injunction.

17] As far as contention of Mr. Godbole, learned Counsel for the

Petitioners that matter should have been remanded to the trial court

for want of reasons is concerned, it appears that the Petitioners instead

of consenting/agreeing for remand has contested the appeal on merit.

After having suffered an order of temporary injunction, by way of

15. WP-628-22.doc

afterthought, Petitioners have come out with the prayer for remand.

As such, said contentions are rejected, as the Petitioners themselves

have invited findings on merit of the matter from the Appellate Court.

18] As far as second contention as regards preferring suit at belated

stage is concerned, primarily it appears that Plaintiff-Society is not

shown to be party to any of the Conveyance Deeds. Atleast, no such

case is demonstrated by the Petitioners before the Court below or this

Court. In view of provisions of the MOFA, 1963, particularly Sections

10 and 11, the statutory liability of erstwhile owner Mr. Suresh Teli

does not empower him to enter into another Sale Deed of transfer of

the property in favour of the Petitioners. In view of legal fiction, title

of the suit property stood vested in the Plaintiff-Society. After the title

stood vested in the Plaintiff-Society, the claim of the

Petitioners/Defendants in getting building permission on 12 th March,

2019 is not at all justified, particularly when the said act is contrary to

the provisions of the MOFA, 1963. The Petitioners themselves have

come out with a case that the Plaintiff-Society is consisting of

purchasers of flats pursuant to the provisions of the MOFA, 1963. As

such, after permission was granted on 12 th March, 2019, it cannot be

15. WP-628-22.doc

said that Plaintiffs have approached the Trial Court at belated stage.

19] It is also not demonstrated by the Petitioners/Defendants as to

whether during the course of carrying out measurement from City

Survey, applying for sub-division of plot, getting sanction from the

Planning Authority, the fact about development of 'Gopaldham' was

brought to the notice of the authorities.

20] In the aforesaid backdrop, reliance placed by the learned

Counsel for the Petitioners on the judgment of the Apex Court in the

matter of Mandali Ranganna (supra) and Ambalal Sarabhai

Enterprise Limited (supra) will be hardly of any assistance.

21] In that view of the matter, no case for interference in

extraordinary jurisdiction is made out. Petition as such fails and same

stands dismissed.

( NITIN W. SAMBRE, J. )