Bombay High Court
Best Super Edge Construction Llp vs Pantnagar Visava Co-Operative Housing ... on 8 May, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:8314
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION PETITION (L) NO. 11739
OF 2024
Best Super Edge Construction LLP .. Petitioner
Versus
Pantnagar Visava Co-operative .. Respondents
Housing Society and ors
...
Mr.Karl Tamboly with Shyamali Gadre with Harshita Bhanushali
i/b Little & Co.
Mr.Rajesh Kanojiya for respondent nos.2 to 5.
CORAM: BHARATI DANGRE, J.
DATED : 8th MAY, 2024
P.C:-
1 The petitioner developer, who is appointed to
redevelop the building belonging to respondent no.1 Co-
operative Housing Society faces opposition from the respondent
nos.2 to 5 and therefore, Section 9 proceedings, are filed for
seeking the vacant possession of the respective units/flats, being
flat no.2110 (respondent no.2), flat no. 2120 (respondent no.3),
flat no. 2126 (respondent no.4) and flat no. 2128 (respondent
no.5) in the building, so as to commence the redevelopment in
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terms of the Development Agreement entered on 4/5/2023.
In the alternative, relief is sought to appoint a Court
Receiver, with all powers to take possession of the five flats by
breaking open the locks and for hand over the same to the
developer, for its redevelopment.
2 It is the case of the petitioner that the Society
comprises of 30 members and barring the respondents herein,
other members have vacated their respective units on 15/2/2024
the and it is only on account of respondent nos.2 to 5, continuing
to be in possession of the respective flats, the process of
redevelopment could not take place.
The respondent no.1 Society join hands with the
petitioner developer, who has advanced his submissions through
Mr.Tamboly.
Mr.Tamboly has invited my attention to the distinct
clauses of the Development Agreement, and in particular, the
entitlement of the members, to 600 sq.ft, of RERA carpet area in
the newly constructed building and according to him, this is
inclusive of the 35% fungible FSI as contemplated in Clause
33(5) of the DCR 2034. He has invited my attention to the
irrevocable consent in favour of the developer, on setting out the
entitlement of the members, with the specific contemplation of
the area of entitlement as well as other benefits to be conferred.
In particular, Clause 4 of the irrevocable consent which is annexed
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at Annexure F-3 of the petition, he would invite my attention to
Clause 4 and 5, which record as under:-
"4 The Society/Developer shall provide me with self-
contained tenement(s)/flat of carpet area, admeasuring RERA Carpet
600 sq.ft (equivalent to Carpet/MOFA carpet 580 sq.ft)
approximately with Usable carpet/MOFA Carpet Area, measured
from internal wall to wall including 35% fungible FSI on ownership
basis. I hereby undertake to pay consideration to the Developer
through the Society by suitably reducing my individual shares in the
Society's property, to be transferred to the Developer for conducting
sale part as may be permitted in the said redevelopment project in
lieu of obtaining above said alternate, permanent accommodation,
without paying any additional money/cost. The Developer will be
entitled to develop the entire FSI as available for development in
respect of the above property as per D.C. Regulation 2034 read with
the policy of MHADA including incentive, FSI/Fungible FSI or any
other area as may be permitted to be constructed on the said
property by whatever name it is called, provided that Rehab Fungible
FSI (of 35%) shall be exclusively and fully used, utilised in providing
additional area with my alternate, permanent flat only and nowhere
else.
5 It is agreed that in due course of redevelopment, any
additional FSI that may be permitted in equal proportion of 50%
each between the Developer and the Society and the Society shall
pay 50% each between the Developer and the Society, and the
Society shall pay 50% of the cost, charge, premium, if any, required
in obtaining such additional FSI."
3 Mr. Tamboly has also invited my attention to the
signature of the respondents on the said document, conveying
that there was a consensus about their entitlement and the various
stipulations, which subsequently transmitted into the
Development Agreement(DA).
4 Learned counsel representing respondent nos. 2 to 5,
would premise its objection on the offer letter from MHADA -
owner of the land dated 26/9/2023 addressed to the Society. He
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would rely upon the specifications of the offer, as set out in the
said letter, which clearly stipulate that the allotment is on the sub-
divided plot as per lay out plan admeasuring 769.80 sq.m, and
the total Built Up Area (BUA) to be permitted to the existing area
of 923/05 sq.m plus 3063.35 sq.m for residential use in form of
the additional BUA, and the entire BUA is computed to
33,986.40 sq.m. He would invite my attention to the details of
the approved additional BUA, which is set out to the following
effect:-
Sr.No. Particulars Area in Sq.mtrs
1 Plot as per Demarcation 824.01
* As per Lease Deed = 910.55 m2
* Tit Bit = 13.46 m2
2 Plot as per Layout Plan
* As per Lease deed = 810.55 m2 769.80
* (-) Less Area = (-) 40.75 m2
3 Plot Area considered for FSI calculation 769.80
(Minimum as above)
* As per lease deed 810.33 m2
* (-) Less area = (-) 40.75 m2
4 Permissible FSI 3.00
5 Permissible BUA (769.80m2 x 3.00) 2309.40
6 Permissible Pro-rata (55.90 m x 30T/S 1677.00
7 Total Permissible (BUA) (Sr.No.3/6) 3,986.40
8 (-) Less : Existing Built up area 923.05
9 Additional BUA offered through this letter 3063.35
(Sr.No. 7-8)
* For Residential 3063.35 m2
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5 The insistence of the learned counsel is upon item 6
of table as regards the permissible pro-rata, 55.90 sq.m, x 30
tenants and which is computed to 1677.00. It is his contention,
that in addition to the aforesaid, in terms of the Regulation 33(5),
the members are entitled for 35% fungible compensatory FSI,
and this is to be provided to each member in addition to the 600
sq.ft RERA carpet area which has been offered and this takes his
entitlement to 811 sq.ft.
He would invite my attention to the element of
Fungible Compensatory Area as set out in Regulation 31 and also
to Regulation 33(5) and his insistence is, this fungible area to the
tune of 35% must be offered in addition to what has been set out
in the offer letter by MHADA.
Learned counsel would rely upon the decision of the
Apex Court in case G.T.Girish Vs. Y. Subba Raju (D) By LRs,
(2021) 12 SCC 321, to buttress his submission that if a contract
set out certain things expressly or impliedly, then it is imperative
for the parties to abide by the contract, and intention of the
parties become irrelevant.
On perusal of the decision, the observations on which
the learned counsel would place reliance in paragraph no.91, is in
context of Section 23 of the Contract Act, which clearly prohibit
contracts which are contrary in law. Definitely, acting contrary to
the contract and saying that a contract or agreement is forbidden
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by law, are two distinct things.
In any case, when I have considered the objections
raised in the background of the peculiar facts, it must be noted
that in the offer letter, MHADA has set out the proposal and it
has set out the total area under the BUA, with reference to the
plot area considered under the lease deed and has computed the
permissible BUA to the tune of 3,86.40 sq.m which is worked out
on the basis of the lay out plan, on the sub-divided plot which was
admeasuring 769.80 sq.m.
Even going by Clause no.6, it is the permissible pro-
rata, which is provided, however, it is ultimately when the
proposal came up for consideration and upon the negotiation of
the Society with the developer with the involvement of its
members, what was agreed pursuant to the resolution passed by
the members of the Society, at its Special General Body Meeting
held on 19/2/2023, that the redevelopment of the property
belonging to respondent no.1 shall be carried out as per
Regulation 33(5) of DCPR 2034, on a plot admeasuring 769.30
sq.m as per MHADA records/lease deed plus the additional FSI
issued in form of pro rata FSI given on per tenant basis and
additional FSI in form of VP Quota special discretionary power of
the Vice President/CEO of MHADA. It is in pursuance of this
understanding, the members of the Society agreed that the
Society/ developer shall provide a self contained tenement(s) flat
of carpet area, admeasuring RERA carpet 600 sq.ft (equivalent to
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carpet/MOFA carpet 580 sq.ft) approximately with usable carpet/
MOFA carpet area measured from wall to wall, including 35%FSI
on ownership basis.
6 The further clauses which were agreed by majority of
the members clearly record that the developer will be entitled to
develop the entire FSI as available for the development in respect
of the property as per DC Regulations 2034, read with MHADA
policy including the incentive, FSI/fungible FSI or any other area,
as may be permitted to be constructed on the property by
whatever name it is called, provided that the Rehab fungible FSI
(35%) shall be exclusively and fully used utilized in providing
additional area within the alternative and permanent flat and no
where else.
7 The Development Agreement dated 4/5/2023
entered between the Society and the developer which is signed by
its members barring the respondent nos.2 to 5, at the outset, has
set out the area of the entitlement of each unit holder, and as far
as respondent nos.2 to 5 are concerned, they are held to be in
possession of existing carpet area 212.15 sq.ft, and the
Development Agreement has also set out the entitlement of each
unit holder and the obligation of the developer in providing the
new flat/premises to the existing member, being specifically
referred to in the 'members entitlement clause".
The Members Entitlement is then set out in para 6 of
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the Development Agreement in the following words :
"(a) The list of the Members, their flats, area of flats is set out
in Annexure "M" hereunder written, which is accepted and agreed
upon by the Parties hereto.
(b) The Developer agrees, undertakes and covenants that the
developer shall construct and provide New Flats to the Members in the
newly constructed building in consonance with plans and specification
as passed by the MHADA/Municipal Corporation of Greater Mumbai
under the Regulations of the DCR 2034. The entitlement of the
premises/flat of each of the Member of the Society in lieu of their
respective existing tenements in the new Building shall be self
contained constructed premises/Flats admeasuring about 580 sq.ft
Carpet Area (600 sq.ft RERA Carpet Area) (measured from internal
wall to wall) including 35% fungible and all other FSI as per the
existing FSI norms of MHADA free of costs on ownership basis in the
newly constructed building. The area will be inclusive of all the areas
available in the new building under the DCPR 2034 and the members
of the Society shall not be entitled to any other area of whatsoever
nature. The Members Entitlement of the Members admeasuring about
580 sq.ft. (measured from internal wall to wall) shall be hereinafter
referred to as "Members Entitlement"/"New Flat" alongwith specified
amenities within the New flat, hereto annexed and marked as Annexure
"N".
(c) For the purpose of these presents, the expression carpet area shall
mean the net carpet area of the Flat including all internal partitoin
walls, passages and/or any other area which the flat owner is
exclusively entitled to use but excluding the area covered by the
external walls, area under services shall be exclusive balcony or
verandah area and exclusive open terrace area.
(d) The Developer shall share the floor plan, building layout
and individual flat plan with the Society before approval and shall
review/ consider the suggestions/recommendations made by the
Society, if any, subject to the approval of the Planning Authority.
However, the Developer shall not be bound to incorporate any
suggestion/recommendations of the Society in the floor plan, building
layout, individual flat plans and shall have its sole discretion in respect
thereof.
(e) The Developer thus agrees to allot flats to all the
individual Members entitled for the same, each having self-contained
New Flat of 580 sq.ft. Carpet area (Total 30 Members New Flats) will
be allotted in the New Building on such floors and at such locations
proposed in the planning of the Architect and as per the permission of
the MHADA. It will be the responsibility of the Society to draw lots of
the Members for such allotment or adopt any method of allotment for
which the Developer will not be responsible. It will be the duty of the
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Society to settle the dispute, if any, between any Members and the
Society, Members to Members, or with any other person for which the
Developer will not be liable. Any period of stay of the Court or order
or any judgments prohibiting the construction because of any such
dispute shall be excluded from the total time of the construction as
agreed herein with the Members and the Society"
8 The objection raised by the learned counsel find an
answer in above clauses of the Development Agreement. His
submission that what the respondent nos.2 to 5 are entitled to, a
35% Fungible compensatory FSI over the 600 sq.ft RERA area is
a complete misreading of the provision, as it is pertinent to note
that Regulation 33 (5) of Clause no.2.1 specifically provides to
the following :-
2.1 Where redevelopment of buildings in existing housing schemes of
MHADA is undertaken by the housing co-operative societies or the occupiers of
such buildings or by the lessees of MHADA, the Rehabilitation Area Entitlement,
Incentive FSI and sharing of balance FSI shall be as follows:-
(A) Rehabilitation Area Entitlement:
i) Under redevelopment of buildings in existing Housing Schemes of
MHADA, the entitlement of rehabilitation area for an existing residential tene-
ment shall be equal to sum total of
(a) a basic entitlement equivalent to the carpet area of the existing tene-
ment plus 35% thereof, subject to a minimum carpet area of 35 sq.m, and
(b) an additional entitlement, governed by the size of the plot under redevel-
opment in accordance with the Table A given below:-
Table A
Area of the Plot under Additional Carpet Area
redevelopment on the Existing Carpet
area of tenement
Above 4000 sq.m to 2 ha 15%
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Above 2 ha to 5 ha 25%
Above 5 has to 10 ha 35%
Above 10 ha 45%
9 If this Regulation is to be applied, the 35% is to be
added to the area of entitlement of each tenant being 212.15 and
by adding 35% to the existing tenement, the area shall be taken to
286.8 sq.ft.
However, what is offered at present, is an area
admeasuring 580 sq.ft carpet area, 600 sq.ft and it is inclusive of
the 35% of the fungible area and the other fungible benefit as per
the existing FSI norms of MHADA, on ownership basis.
Thus, the argument of the learned counsel of provid-
ing 35% in addition to the entitlement set out i.e. 600 sq.ft is a
completely misleading argument and cannot be taken into ac-
count.
10 Apart from this, his other argument that if at all, the
members have to be evicted or asked to vacate the premises, it
should have been done by following the rule of Section 95A of
the Co-operative Societies Act, is another unsustainable argument
as the developer can never invoked under Section 95A which is
ultimately the provision for resolution of disputes between the
members and Society, in any case, the mechanism cannot be
adopted.
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Yet one more submission of learned counsel, is
obtaining IOD as a pre-conditions for vacating, as stipulated in
the Development Agreement and registration the PAAA agree-
ment to individual members for the individual premises and
thereafter, upon giving a 30 days notice to the Society after re-
ceipt thereof, the members can be asked to vacate, is also a mis-
conceived argument as the IOD is already obtained by the devel-
oper on 20/12/2023 and according to Mr.Tamboly, barring the
respondent nos.2 to 5, the PAAAs are executed and registered
with all other members.
It is not open for the members to oppose the vacation
of their premises, by stating that there is no compliance when
they themselves, despite repeated reminders have failed to exe-
cute and register the PAAAs.
11 In the wake of the aforesaid, when out of the 30
members, barring the five members, everyone else has vacated the
premises and the respondents being members of the Co-operative
Housing Society, who have by consensus, agreed to the
appointment of the developer and have also signed the
Development Agreements, merely on the flimsy grounds if the
objection is projected by some of the members, remaining mem-
bers shall not suffer.
12 It is the submission of Mr . Tamboly that the
building is in a dilapidated condition and he has placed
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certain photographs on record, but the learned counsel for the
respondent dispute the said statement.
In any case, when the majority of the members has
vacated the building for the purpose of its redevelopment, the
objection that the building can be repaired, is of no consequences.
In the wake of the above, I deem it appropriate to
grant time to the occupants of flat nos. 2110, flat no. 2120 flat
no. 2126, and flat no. 2128, to vacate the respective flats within a
period of four weeks from today.
Upon expiry of the four weeks, however, the Court
Receiver, High Court, Bombay, is appointed as a Receiver, with
all power to be exercised by Order 40 Rule 1 of the Code of Civil
Procedure, who shall proceed to the site and take forcible
possession of the respective units, if necessary, by removing the
occupants and belongings therefrom and if the premises are
found to be locked by breaking open the locks. Upon the
belongings being removed, by preparing an inventory, it shall be
stored in the places which shall be indicated by the Society.
Upon the possession being taken, the same shall be
handed over to the developer forthwith.
( SMT. BHARATI DANGRE, J.)
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