Bombay High Court
Shri. Rajeshwarsingh Bechansingh ... vs Chandraraj Co-Operative Housing ... on 12 November, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:43319
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.888 OF 2018.
1. Rajeshwarsingh Bechansingh
Since Deceased thr. His legal Heirs
No.2
2. Vijaysingh Rajeshwarsingh Bechansing
Both r/at 1/18, Chandraraj Building, 2nd Floor,
Chincholi Bunder Road, Malad (W),
Mumbai-400 064.
3. Chanadraraj Builders,
A Partnership Firm having its office at
Chandraraj Building, Chincholi Bunder Road,
Malad (W), Mumbai- 400 064 and new address
at 1101, Kingstone Place, Chincholi Bunder
Road, Malad (W), Mumbai-400 064.
4. Jaiprakash Chandrabali Thakur
Also of Mumbai, Inhabitant,
Being one of the partner of
M/s.Chandraraj Builders and
having address at Chandraraj Building,
Chincholi Bunder Road, Malad (W),
Mumbai-400 064 and
new address at 1101,
Kingstone Place, Chincholi Bunder Road,
Malad (W), Mumbai-400 064 ...Appellants.
Versus
1.Chandraraj Co-operative Housing
Society Limited, a Society registered
Under the Maharashtra Co-op Societies
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Act, 1960 and having its office at
Chandraraj Apartment Chincholi Bunder
Road, Malad (W), Mumbai-400 064.
2. Jaganarayansingh Ramphersingh
R/at 1/18, Chandraraj Building,
2nd Floor, Chincholi Bunder Road,
Malad (W), Mumbai-400 064.
(Since not available for signature in the First
Appeal is added as Formal Respondent for time
being) ( Vide Court's order dated 23/8/2022
Appeal dismissed against Respondent No.2) ...Respondent.
------------
Mr. Sandesh Patil a/w. Mr. Prithviraj Gole a/w. Ms. Anusha Amin i/b Mr. Chintan
Shah for the Appellants.
Mr. Karl Shroff a/w. Mr. Bhavin Gada, Ms. Sonal Awasthi, Mr. Sarthak Solaskar,
Mr. Ronish Mehta, i/b Vinod Mistry and Co. for Respondent No.1.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 29th August, 2024.
Pronounced on : 12th November, 2024.
JUDGMENT :
1. First Appeal has been preferred at the instance of legal heir of
the original Defendant Nos. 2 to 4 who are aggrieved by the
impugned judgment dated 19th September 2016 decreeing S. C. Suit
No.19 of 2019 in terms of prayer Clause (a), (b) and (c). For sake of
convenience parties are referred to by their status before the Trial
Court.
2. The facts of the case are that Short Cause Suit No.19 of 2009
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was instituted interalia seeking enforcement of obligations under the
Maharashtra Ownership Flats, (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963, (for short,
MOFA) by conveyance of the suit property together with the structure
and building known as "Chandraraj Apartment" in favour of the
Plaintiff. The plaint pleads that Defendant Nos.1 and 2 were the
owners of the suit property which was entrusted to Defendant Nos.3
and 4 for development. The Defendant Nos 3 and 4 represented that
they are the owners of sub-divided land bearing S. No 5 (a)(pt) and 4(a)
(pt) of Village Malad, Taluka Borivali admeasuring 1502.49 square
meters bearing CTS No 15-D, 15/D-1 to 6. The entire larger Plot of
land was subdivided into different sub-divided Plots being Plot Nos. A,
B, C, D and certain portion towards 15% recreation ground on the
northern side of the property. The conveyance was sought by the
Plaintiff -Society in respect of sub-divided Plot No. B along with
benefit of 22 feet internal road and 15% recreation ground to be
enjoyed in common with the other occupants and residents of the
remaining subdivided Plots. The subdivision was certified by the
Architects. The building plans were sanctioned by the planning
authorities and IOD and CC was obtained on 30 th April 1982. The
Defendant Nos 3 and 4 entered into flat purchasers agreement with
the individual flat purchasers under MOFA in or about the year 1984
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and were put in possession of their respective tenements after
obtaining occupation certificate on 23rd October, 1989. As there was
non compliance by the Defendants of their statutory obligations, the
flat purchasers formed and registered the Plaintiff Society in the year
1991.
3. In the year 2007, correspondence was exchanged between the
Plaintiff and Defendant No 3 seeking conveyance of the property
which was declined by Defendant No 3 for the reason that another
structure was proposed to be constructed on the said property and
after completion of the balance construction, conveyance can be
executed. Hence, the suit was filed.
4. The written statement filed by the Defendant Nos 1 and 2
contended that they are owners of the suit property and development
was entrusted to Defendant No 3. There is dispute between the
Defendant Nos 1 and 2 on one hand and Defendant No 3 on the other
hand. The said Plot of land is not fully developed and there is old
structure occupied by tenants which is standing on the property.
These Defendants continued to be owners of the suit Plot and
entitled to all FSI/TDR in respect thereof and there is no privity of
contract between the Plaintiff and Defendant Nos.1 and 2 and they
are not bound to convey the property to the Plaintiff .
5. The Defendant Nos.3 and 4 contended that the entire Plot of
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land is not fully developed and only when the suit Plot is fully
developed that the land can be assigned. It was further contended
that entire consideration was not paid by the individual flat
purchasers. There is an old structure on the suit Plot belonging to the
Defendant and certain open spaces. The Defendants have the right to
utilise the balance FSI and also TDR in respect of the entire Plot. The
occupation of the members of the Plaintiff -Society is illegal and
unauthorised as the full consideration has not been paid. The terms of
the agreement makes it clear that the assignment in favour of the
Society is to take place only after said property is fully and completely
developed and the entire FSI is received by the Defendant No.3-
developer.
6. The parties went to trial. The Plaintiff examined two members
of the Plaintiff-Society and produced 7/12 extract of Survey No.4,
Hissa No.2 and Survey No.5a Hissa No2/2, rule card issued by City
Survey Officer, plan of sub-division, specimen agreement for sale, plan
endorsed by the Architect, bills of municipal taxes, water charges,
electricity charges, Society registration certificate and the
correspondence between the parties, resolution and flat purchasers
Agreement dated 30th June, 1982.
7. The Defendant examined the Defendant No 4-partner of
Defendant No 3.
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8. The Trial Court framed and answered the issues as under:
ISSUES FINDINGS
1. Does Plaintiff prove that Defendants are Yes
illegally avoiding to execute conveyance in
favour of Plaintiff ?
2. Do Defendant Nos.3 and 4 prove that the No
property is not yet fully developed and so
Plaintiff is not entitled for conveyance ?
3.Whether Plaintiff's claim is within Yes.
limitation ?
4. Is the Plaintiff entitled to the reliefs ? Yes.
5. What order and decree ? As per final order.
9. The Trial Court noted that the building was constructed on sub
divided Plot No.'B' and that there is no stipulation in the flat
purchasers agreement about conveyance to be executed after
development of entire Plot. The Trial Court noted the decision in
Ravindra Mutenja and others vs Bhavan Corporation and others 1
that held that once the buildings are completed and possession
handed over, the builder/owner cannot contend that as Society not
formed and/or property not conveyed, he is entitled to take
advantage of additional FSI that may become available because of
subsequent events. The Trial Court decreed the suit in terms of
prayer Clauses (a) to (c).
1 (2003) 5 Bom CR 595
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10. Heard Mr. Sandesh Patil for the Appellants and Mr. Karl Shroff
for Respondent No.1.
11. Mr. Patil would submit that the conveyance, if any, had to be
granted in accordance with the flat purchasers agreement. He points
out the admissions of PW-1 that there is chawl on sub divided Plot No.
B which belongs to Defendant No.2, that Plaintiff are not claiming
conveyance in respect of the land on which the chawl and WC blocks
are situated in Plot No.B and that the entire Plots are not developed.
He has taken this Court through the Plan at Exhibit 31 and would
point out that on Plot No. B there exists a chawl. He submits that the
flat purchaser's agreement refers to Schedule which describes the
land admeasuring 1502.49 square meters and that reference in the
Schedule is to the ownership of the said area and does not refer to the
area required to be conveyed to the Plaintiff -Society. He submits that
Clause 4 and Clause 12 of the flat purchaser's agreement would make
it clear that access road of 22 feet is required to remain in common to
all sub-divided Plot which is the right of the builder and also that the
builder's right to put up any additional structure is reserved until
execution of the conveyance. He would further point out that the
right reserved for putting up additional construction read with the
cross examination of the Plaintiff would indicate that no right of
conveyance in respect of area under the chawl and WC can be claimed
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by the Plaintiff-Society. He has taken this Court in detail through the
judgment of the Trial Court and would contend that the Trial Court
has failed to consider Clause 12 of the flat purchaser's agreement
reserving the right of the builder to put up additional construction. He
would submit that the Trial Court while considering the evidence has
failed to deal with the admissions of the Plaintiff that they are not
seeking conveyance of the land beneath the chawl and WC and that
the Trial Court has not given any finding as regards the right of the
Defendants to utilise the FSI/TDR. He submits that the suit property is
sub-divided Plot No.B and no conveyance can be granted in respect of
land beneath the chawl and WC until the entire property has been
developed.
12. Per contra, Mr. Shroff, learned counsel for the Respondent
would submit that it is specific finding of the Trial Court, on perusal of
the flat purchasers agreement that there is no stipulation in the
agreement about development of entire Plot of land. He submits that
the Trial Court has rightly considered the relevant Clauses of the flat
purchasers agreement and has come to a definite finding that the
Defendants are illegally avoiding to execute the conveyance and that
the Defendants have failed to prove that the property is not fully
developed. He would point out that what was required to be conveyed
as per the flat purchaser's agreement was the entire Plot No. B which
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refers to area admeasuring 1502.49 square meters as per the
sanctioned plan. He submits that the Schedule in the flat purchaser's
agreement refers to the area which is required to be conveyed and is
referred in Recital 4 of the flat purchaser's agreement. He would
further point out the deposition of PW-1 that the Defendant No.2
through their Architect has submitted their final plan to the
Corporation for building completion certificate and the Corporation
has accepted as completion vide endorsement on 23rd October 1989.
He submits that once completion certificate has been issued as per
MOFA agreement, the land is required to be conveyed to the Society.
In support of his submission,he relies upon the decision in the case of
M/s. Dosti Corporation Vs. Sea Flama Co-operative Housing Society
and Ors.2
13. He submits that in the present case the layout plan which is on
record would indicate that no further construction was proposed. He
submits that learned Single Judge in M/s. Dosti Corporation (supra)
following the decision in the case of Ravindra Mutenja (supra) and
Madhuvihar CHS, Mumbai vs. Jayantilal Investments, Mumbai &
Ors.3 has held that if additional construction which is not part of the
layout is proposed by the developer, consent of the flat purchaser's is
required and the developer cannot contend that because he has not
2 (2016) SCC Online Bom 1836
3 (2010) 6 Bom CR 517
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formed the Society and because he had not conveyed the property, he
can take advantage of the additional FSI. He submits that it is the
consistent view that if subsequently FSI becomes available under the
development control rules it will be available to the Society to whom
the land has been conveyed. He would submit that the Defendants
therefore cannot avoid the conveyance on the ground that the
developers are entitled to the additional FSI in accordance with the
flat purchaser's agreement.
14. The following points would arise for determination:
(i) Whether the Plaintiff is entitled to conveyance of sub-
divided Plot No. B with undivided common rights in 22 feet
internal road and 15% recreation ground ?
(ii) Whether the conveyance in favour of the Plaintiff can be
executed only upon development of the entire Plot of land as
the right to utilise the additional/ unconsumed FSI vested in
the Defendants ?
AS TO POINT NO (i):
15. The undisputed fact is that the Defendant No 3 had entered
into Agreement with the individual flat purchasers under Section 4 of
MOFA. The Plaintiff has produced the Agreement for Sale dated 30 th
June, 1982-Exh 24. The model agreement in Form V under Rule 5 of
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the Maharashtra Ownership Flats Rules, 1964 (Rules of 1964) came to
be prescribed in the year 1987 and in the present case the
agreements with the flat purchasers have been executed in the year
1982. The rights and obligations of the parties will therefore be
governed by the terms and conditions of the flat purchaser's
agreement.
16. Under Clause 4 of the Agreement for sale, the residential
building was to be constructed on sub divided Plot No.B of Survey No
4(a) pt and 5(a) pt and the access of 22 feet wide to remain common
to all the subdivided Plots with right reserved to the builders. Clause
12 of the Agreement reserves the right to the Defendant No 3 to
make additions, raise storeys or put up additional structures until the
execution of the Conveyance. Clause 30 of the Agreement provides
for execution of assignment in favour of the Society after the building
is complete and ready and after registration of the Society and after
all flats are sold with all dues received from the various flat
purchasers.
17. As per the covenant contained in Clause 30, the obligation was
upon the Defendant No 3 to execute assignment in favour of the
Society upon the building being ready and fit for occupation, the
Society being registered, all flats being sold and all dues received by
the Defendant No 3. PW-1 has deposed that the completion
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certificate was received on 23rd October, 1989 and Society was
registered on 20th September, 1991. The issuance of completion
certificate and registration of Society in the year 1991 has remained
uncontroverted. Thus the right of the Society to receive Conveyance
ripened in the year 1991 itself.
18. DW-1 has deposed that the Defendant No 3 has developed only
portion of the said larger property and there are various structures of
the owners on the remaining property. He has deposed that the
development is not completed and no conveyance can be granted
until the entire development of layout is completed and Federation of
Societies is formed and takes charge of the entire larger portion of
land.
19. The agreement between the parties has been executed under
the provisions of MOFA. The statutory scheme of Section 11 of MOFA
casts an obligation upon the Promoter to take all necessary steps to
complete his title and convey to the organisation of person, who takes
flats, which are registered either as co-operative Society or company
or association of apartments, his right, title and interest in the land
and building by executing a document in that regard in accordance
with the agreements executed under Section 4 of the MOFA and if no
period for execution of conveyance is agreed upon, the Promoter is
obliged to execute the conveyance within the prescribed period. Rule
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9 of Rules of 1964 framed under MOFA provides that in event no
period for conveying the title of the Promoter to the organisation of
flat purchasers is agreed upon, the conveyance has to be executed
within four months from the date on which the Co-operative Society is
registered.
20. The evidence on record establishes that the pre-requisites
stipulated in Clause 30 of the Flat Purchaser's agreement for
execution of assignment has been fulfilled. Further the statutory
provisions cast an obligation on the Promoter to execute the
conveyance within period of four months from date of registration of
Society, and in the present case, the Co-operative Society has been
registered on 20th September, 1991 and thus the Plaintiff was entitled
to conveyance from Defendant No 3.
21. The point arising for determination is not limited to the right of
conveyance but also the entitlement of Plaintiff to sub-divided Plot
No. B along with common rights to the access road of 20 feet and 15%
recreation ground.
22. In the cross examination, PW-1 has stated that entire Plot is
admeasuring 4943.20 square meters and building is constructed on
Plot No. B admeasuring 1502.49 square meters. He has further
admitted that there is a chawl on Plot No.B belonging to Defendant
No 2. He has further admitted that the Plaintiff are not claiming
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conveyance in respect of land on which the Chawl and WC blocks are
situated in Plot No.B. He has further admitted that entire Plots are
not developed. The admission about existence of chawl on Plot No.B
does not obviate the obligation to convey the property when the area
statement in completion plan shows the area of Plot No.B to be 1502
square meters and the available built up area at 1502 square meters.
23. In the written statement filed by the Defendant No 1 and 2, it is
stated that there is an old structure standing on part of the property
occupied by tenants/relatives of Defendants. However, they have not
stepped in the witness box. The Defendant No.4 has deposed that
there are various structures /tenements of the owners on the
remaining property but has not deposed specifically about the area
occupied by the structures. In cross examination he has admitted that
he is not aware whether there was reference to Chawl in the
agreement or in the written statement.
24. There is no mention of the existing structures in the Flat
Purchaser's agreement executed by the Defendant No 3. In the Recital
of the Agreement, the area of sub-divided Plot on which the
construction is proposed is mentioned at 1502.49 square meters and
referred to as "said land" and that the Builder has proposed to erect
residential building on said land of ground and six upper floors.
25. The conveyance in favour of the Plaintiff Society will be
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governed by the terms and conditions of the Flat Purchaser's
agreement. The agreement finds no mention of any structures on the
sub divided Plot and states the area of Plot No. B as 1502.49 square
meters. There is no evidence produced on record to demonstrate the
land area underneath the existing structure and the W.C. There is no
counterclaim filed by the Defendant No 3 claiming right title and
interest in the land area underneath the existing structure and W.C.
26. The relief of conveyance will be governed by the contract
entered into between the parties which refers to the area of Plot No.B
at 1502 square meters. Clause 4 of the agreement refers to the
construction of the Plaintiff's building on Plot No.B and to the
common rights to 22 feet wide access road. There is no dispute raised
as regards the common rights in 22 feet wide access road and 15%
R.G.
27. The plaint seeks relief of enforcement of the agreement
executed under Section 4 of MOFA. In the absence of any mention of
existing structure on Plot No.B in the flat purchasers agreement
coupled with the absence of counterclaim by Defendants claiming any
ownership rights in any portion of Plot No. B, the Plaintiff is entitled
to conveyance of the area of Plot No. B. Point No (i) is answered
accordingly in favour of the Plaintiff.
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AS TO POINT NO (ii):
28. DW-1 has deposed that only a portion of larger land has been
developed and no conveyance can be granted until the entire
development of the layout is completed and Federation of Societies
constructed on the said layout is formed. There is no clause in the flat
purchaser's agreement about formation of Federation of Societies. As
discussed in answer to Point No. (i), all pre-requisites for execution of
conveyance has been fulfilled as per Clause 30 of the Flat Purchasers
Agreement. Under Section 11 of MOFA read with Rule 9 of Rules of
1964, the Promoter is under an statutory obligation to convey to the
organisation of Flat Purchasers, his right title and interest in the land
and building within the prescribed period of four months from date of
registration of the Society. The provisions do not permit the
deferment of the execution of the Conveyance beyond the prescribed
period of four months from registration of the Society. Admittedly
the Society has been registered on 20th September, 1991 and
therefore the Defendants were statutorily mandated to convey the
property. The Defendants cannot seek shelter of Clause 12 of the Flat
Purchasers agreement to contend that till the execution of
conveyance in favour of the Society, the Defendants had the right to
put up construction. The Defendants cannot default in complying with
its statutory obligation of conveying the property within the
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prescribed period and then take advantage of its own default to deny
conveyance to the Plaintiff.
29. The defence of the Defendants is that the conveyance cannot
be granted until the entire development in the layout is carried out.
To enable the Defendants to carry out further development in sub-
divided Plot No.B, the Defendants should be entitled to utilise the
unconsumed/residual FSI or TDR on the said Plot. Even if it is accepted
that there is an existing structure on Plot No. B, the Defendant will
not be entitled to consume the FSI of Plot No. B for development of
the said structure without the consent of the flat purchasers of
Plaintiff Society.
30. The Recital in the Flat Purchaser's agreement is that the Builder
has started construction of the said building on the said land of
ground and six upper floors consisting of 28 flats. Clause 1 and 12 of
Agreement reads as under:
"1. The Builders are constructing a building consisting of ground with
6 upper floors with 28 flats, 4 flats on each floor as per the plans,
designs and specifications passed and approved of by the Municipal
Corporation of Greater Bombay and seen by the Buyer with such
modifications as may be required by the Bombay Municipality."
12. The party of First Part shall have right until the execution of
Conveyance in favour of the proposed Society or Limited Company to
make additions, raise storeys or put up additional structures as may
be permitted by Panchayat, and/or other competent authorities such
additions, structures and storeys will be the sole property of the
party of First Part who will be entitled to dispose it off in any manner
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they choose and the party of the Second Part hereby consents to the
same."
31. Under Section 7 of MOFA, after the plans and specifications
are disclosed there can be no alteration or additions in the structure
of the building without the previous consent of all the persons who
have agreed to take the flats in such buildings. By virtue of
amendment to Section 7A, it was clarified that Clause (ii) of sub-
section 1 of Section 7 will not apply in respect of construction of any
other additional building or structures constructed in the layout.
32. In case of Ravindra Mutneja (supra), the learned Single Judge
of this Court has held thus:
"The real issue as has been noted earlier is what is the stage up to
which the developer/owner can put up additional construction after
the building in terms of the registered plan has been constructed and
occupied. In my opinion, once the buildings shown in the approved plan
submitted in terms of the regulations under an existing scheme filed
before the authorities under MOFA Act, have been completed and
possession handed over, the builder/owner cannot contend, that
because he has not formed the Society and/or not conveyed the
property by sale deed under the Act he is entitled to take advantage of
any additional F.S.I. that may become available because of subsequent
events. That would be so at the stage the building is under
construction or the building is not completed and/or purchasers are
not put in occupation provided such building forms part of the
development plan and/or layout plan already approved. Subsequent
amendment of the layout plan after the building plan is registered
under MOFA, without the consent, prima facie, of the flat purchasers
would not be permissible. It may be possible to accept that the
development plan could be modified as long as the right of the
purchasers and the benefits which they are entitled to including
recreational and open areas are not effected by the revised
development plan. Once the building is completed and the purchasers
are put in occupation in terms of plan filed and the time to form the
Society or convey the property in terms of the agreement or the rules
framed under MOFA is over the permission of such purchasers would
be required. (Emphasis supplied)
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In the instant case, the building completion certificate for the plaintiffs
building, was issued in the year 1997. The builder/owner defendant
Nos. 1, 3 and 4 had to put up the construction, based upon the
permission/license granted. The defendant Nos. 1, 3 and 4 had to
construct the building and to convey the title by sale deed in terms of
Rule 9. If property had been conveyed, prima facie the remaining FSI or
FSI which become subsequently available on the facts of the case,
would be to the Society to whom the land had to be conveyed. The
record shows that the building was approved in December, 2001. It
cannot prima facie, be said that defendant Nos. 1, 2, 4 and 5 have any
rights under which they are entitled to put up an additional building
contrary to section 7A of the Act." (Emphasis supplied)"
33. The Learned Single has held once the building shown in the
approved plan has been completed and possession handed over, the
builder cannot contend that because he has not formed the Society
and not conveyed the property under MOFA, he is entitled to take
advantage of the additional FSI that may become available because of
subsequent events. Once the building has been completed and the
purchasers are put in possession in terms of plan filed and time to
form the Society or convey the property in terms of the agreement or
the rules framed under MOFA is over, the permission of such
purchasers would be required.
34. In Noopur Developers vs Himanshu V. Ganatra 4, this Court,
while considering the clauses in the agreements executed in that case
giving right to promoter to carry out additional construction by reason
of additional FSI being available, has held that the clauses has to be
considered in context of requirement of disclosure of the entire
4 (2010) 3 Bom CR 145
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scheme to be carried out in the layout. The Promoter is required to
make disclosure concerning the inherent FSI and also at the stage of
layout plan he is required to declare whether the Plot in question in
future is capable of being loaded with additional FSI/floating FSI/TDR.
Necessarily therefore, if the entire scheme including the information
about TDR/FSI is not disclosed then the promoter loses the right to
use the residual FSI.
35. In the present case, there is no disclosure concerning the
inherent FSI/TDR etc and the complete scheme was not disclosed. The
flat purchasers agreement refers to the construction on Plot No. B of
ground plus six upper floors. Sufficient guidance can be taken from
the decision in Bajranglal Eriwal and others vs Sagarmal Chunilal
and others5 where the Court has held as under:
"The provisions of the Act, as construed now by the judgment of the
Supreme Court, would leave no manner of doubt that the statutory
bar upon the promoter altering the structure of a flat agreed to be
purchased under Clause (i) of sub-section (1) of section 7 and of
making any other alterations or additions in the structure of the
building under Clause (ii), can be lifted only subject to a disclosure by
the developer of the entire project or scheme. The previous consent
that is contemplated by sub-section (1) of section 7 must be an
informed consent. An informed consent is one which is freely given,
after a flat purchaser is placed on notice by a complete and full
disclosure of the project or scheme which the builder intends to
implement. The consent that is contemplated by sub-section (1) of
section 7 is, therefore, a specific consent which is relatable to the
particular project or scheme of the developer which is intended to be
implemented. The observations of the Supreme Court in Jayantilal
Investments, bring about a balance between the rights of the
promoter on the one hand and a flat purchaser on the other. There is
a statutory embargo upon the making of alterations either in an
5 (2008) 6 Bom CR 371
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individual flat or in respect of the structure of the building after the
disclosure of the plans and specifications of the building. This
embargo was introduced by the legislature specifically to obviate the
kind of malpractices that were taking place. The lifting of the
embargo is conditional on the grant of previous consent. The lifting of
the embargo must be confined strictly within the parameters which
have been envisaged by the legislature and it is in that context the
Supreme Court has held that the consent can be regarded as valid if
there has been a full disclosure by the developer of the entire project
which he has to implement. Thus construed, there can be no manner
of doubt that it is not open to a developer/promoter to rely upon a
general consent. To allow such generalized consents to operate would
defeat the public policy which underlies the provisions of sub-section
(1) of section 7 as interpreted by the Supreme Court. It is a well
settled principle of statutory interpretation that the interpretation
which the Court places on a statute must be purposive, so as to
achieve the object and intent of the legislature. The Maharashtra
Ownership Flats Act, 1963, is an Act to regulate the promotion of the
construction of the sale and management, and the transfer of fiats on
ownership basis. The preamble specifically provides that the State
Government was conscious of the fact that on account of an acute
shortage of housing, there were "sundry abuses, malpractices and
difficulties relating to the promotion of the construction of, and the
sale and management and transfer of flats taken on ownership basis."
The legislature has found that such malpractices not merely existed,
but they were increasing. It is in this background that the Court must
adopt a purposive interpretation of law and that interpretation which
would defeat the object of the legislature must be eschewed."
(Emphasis supplied)
36. In Neena Sudarshan Wadia vs Venus Enterprises 1984 (2)
Bom.C.R 505 , the Court held as under:
"Now, we have to understand the meaning of the word 'consent' as
used in Clause (ii) of sub-section (I) of section 7. After the plans and
specifications of the building as approved by the local authority are
disclosed or furnished to a person who agrees to take a flat from the
promoter, a prohibition is claimed on the promoter not to make any
alterations in the building or constructed additional structures. This
prohibition can be lifted if before the promoter carries out the
alterations in the building or before he starts the work of additional
construction, the promoter obtains the consent of all the persons
who have agreed to take the flats. For the purpose of obtaining
consent, a promoter must ask the flat owners for their permission
and reveal to them the nature of the proposed alterations to the
building or of the additional structures to be constructed as, without
such disclosure, the flat owners cannot know for what work the
permission is sought and for what work they are required to consent.
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Again in response to a request for consent, there must be an
affirmative acceptance from all the persons who have agreed to take
the flats. The word "consent" in the context of the section does not
mean implied consent such as by conduct or acquiescence or
circumstance that might be consent. Consent in this section is to be
understood to mean as positive consent to specific items of work or
alteration to be carried out or particular additional structure to be
built by a promoter. This seems to be the object of enacting these
provisions of obtaining previous consent of the flat owners as
otherwise the malpractices and irregularities intended to be
eradicated by this enactment would continue to flourish and the
promoters would not be deterred by the penal provision of section
13. A blanket consent or authority obtained by a promoter at the
time of entering into an agreement for sale or at the time of handing
over possession is not the consent contemplated by section 7(I)(i) or
(ii) for such a blanket consent or authority would sew up or nullify
these provisions." (Emphasis supplied)"
37. In Malad Kokil Co-operative Housing Society Ltd vs The
Modern Construction Co. Ltd6 , this Court noted the decision in Grand
Paradi Co-op Hsg Society Ltd vs Mont Blanc Properties & Industries
Pvt Ltd 7 which held in paragraph 10 as under:
"10. It is thus clear that the builder is thus entitled to raise additional
structures if he discloses the additional structures in the layout plan
itself at the time he sales the flats. No consent of the flat owners is
necessary for raising additional structures. But if the additional
structures are not disclosed in the layout plan then previous consent
of the flat owners is necessary...."
38. The settled legal position is that for the consent to be an
informed consent as contemplated under MOFA, there must be full
and complete disclosure of the nature and extent of construction
proposed by the developer. There cannot be an implied consent such
6 (2012 SCC Online Bom 1310).
7 2011 (5) Bom. C. R. 249.
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as by conduct or acquiescence. Similarly the blanket consent obtained
at the time of entering into flat purchasers agreement or at the time
of handing over possession is not held to be consent under Section
7(1) of MOFA. Examining the facts of the present case, in light of the
clear enunciation of law, the blanket consent of the flat purchaser as
covenanted in Clause 12 of the Agreement cannot constitute consent
as contemplated under Section 7 of MOFA.
39. The above discussed judicial pronouncements has laid down in
unequivocal terms that without the entire layout plan being placed
before the flat purchasers, the blanket consent even if given will not
constitute an informed consent of the flat purchasers and even for
constructing additional structures, if the entire scheme is not placed
before the flat purchasers, the consent of the flat purchasers will be
required.
40. When the legal position makes it clear that it is the informed
consent of the flat purchasers which will entitle the Defendants to
utilise the unconsumed FSI/TDR for raising any construction, which
consent is admittedly absent in the present case, the Defendants
cannot carry out any further development in the layout and grant of
conveyance cannot be denied on the ground that the same will be
granted only after the entire development of the layout.
41. Accordingly, I answer Point No (ii).
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42. In light of the above, the First Appeal fails and stands dismissed.
In view of disposal of Appeal, Interim/Civil Applications, if any, do not
survive for consideration and stand disposed of.
[Sharmila U. Deshmukh, J.]
43. At this stage, request is made for continuation of interim relief
which is operating since 7th February 2019. The interim relief is
extended for a period of six weeks from the date of uploading of this
judgment.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 12/11/2024 19:41:07
