2007(6) ALL MR 861
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.M. KHANWILKAR, J.

Tejal Residency Co-Op. Housing Society Limited & Ors.Vs.Brihan Mumbai Municipal Corpn. & Ors.

Notice of Motion No.3599 of 2007,Suit No.2682 of 2007

12th October, 2007

Petitioner Counsel: Mr. SHAILESH SHAH,Mr. AJAY PANICKAR
Respondent Counsel: Mr. MILIND VASUDEO,Ms. SUNIT SONAWANE,M. R. Phal,Mr. R. Y. SHIRSIKAR

Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (1963), S.7 - Construction of proposed structure - General consent - Builder can commence construction of proposed structure only after taking prior consent of respective flat purchasers to be affected by such construction - General consent accorded by respective flat purchasers - Held, such a general consent will be of no avail - Such a consent cannot be the basis to enable the builder to go for amendment of the plan already sanctioned and available at the time of execution of purchase agreement, without taking prior consent of the flat purchasers, although the proposed construction is intended horizontally and vertically to the structure of flat purchasers. 2003(3) ALL MR 521 - Ref. to. (Paras 3, 5)

Cases Cited:
Ravindra Mutenja Vs. M/s. Bhavan Corporation, 2003(3) ALL MR 521 [Para 4]


JUDGMENT

JUDGMENT :- Heard counsel for the parties. Perused the pleadings and documents on record. It is evident from the plan sanctioned by the Municipal authorities on 4th January, 2003 that the permission to construct was accorded to the defendant builder only for two flats in Wing-A of the building. The defendant now intends to construct Flat No.3 on every floor of the said Wing-A building. In other words, the defendant intends to construct seven flats which will be horizontal and vertical extension of main building. In this backdrop, the question is whether the defendant builder can be permitted to carry on construction of this nature without prior consent of the plaintiffs society and in particular the flat purchasers who are incidentally the members of the society.

2. Section 7 of the Maharashtra Ownership Flat Act, 1963 mandates that for construction of this nature, the builder will have to take prior permission/express consent of the flat purchasers who are likely to be affected by such construction. The defendant builder relies on the amended plan passed by the Municipal authorities on 25th April, 2005 which permits him to construct said additional structure. The real issue is whether the defendant builder has taken prior consent of the flat purchasers before applying for such permission and in any event before commencing the actual construction as per the amended plans. This is so because Section 7 of the Act postulates the disclosure of approved plans by Local Authority when the agreement in respect of the flat is executed in favour of flat purchasers.

3. In the present case, along with agreement, Typical Floor Plan has been appended as Exhibit-4 which is at page 87 of the paper book. Indeed, that typical floor plan indicates that in addition to Flat Nos.1 and 2, Wing-A would consist of Flat No.3 abutting flat No.2 on every floor. However, the plan as sanctioned on the date of execution of agreement on 23rd February, 2003 does not incorporate such a position. The plan sanctioned, however, permits the builder to construct only Flat Nos.1 and 2 on every floor of Wing-A. Thus understood, the builder can and could have commenced the construction of proposed structure only after taking prior consent of the respective flat purchasers to be affected by such construction. That has not been done in the present case.

4. To get over this position, the counsel for the defendants would rely on the exposition in paragraph No.13 in the case of Ravindra Mutenja and others Vs. M/s. Bhavan Corporation and others reported in 2003(3) ALL MR 521. It is not possible to accept this submission. The observations in paragraph No.13 of the reported decision are in the context of fact situation of that case and in any case cannot be cited as ratio decedendi.

5. The only other question is whether the plaintiffs have already consented either generally or specifically in respect of proposed construction. Counsel for the defendants placed reliance on several clauses of the agreement to contend that there is general consent accorded by the respective flat purchasers. It is well settled that such a general consent will be of no avail. Such a consent cannot be the basis to enable the builder to go for the amendment of the plan already sanctioned and available at the time of execution of the purchase agreement, without taking prior consent of the flat purchasers, although, the proposed construction is intended horizontally and vertically to the structure of the flat purchasers.

6. However, the defendants are right in pointing out that the plaintiffs have already consented for construction of two flats by side of "A" Wing which were at the incomplete stage of construction, as has been recorded in the order passed by the Deputy Registrar of Co-operative Societies, "K" East Word, Mumbai dated 18th July, 2006. That order after noticing the contention of the society as well as builder, then proceeds to record the no objection given by the Chief Promoter of the plaintiff society. It is noted that the Chief Promoter has no objection to the developer constructing two flats which are at the half construction stage. This concession has been recorded in the quasi judicial proceedings before the Deputy Registrar, Co-operative Societies and the correctness of that has not been challenged by taking out appropriate proceeding as may be required in law. The said concession will bind the plaintiffs which would enable the defendant builder to complete the construction of atleast two flats in respect of which concession was so given before the Deputy Registrar, Co-operative Societies.

7. Counsel for the defendants, however, relies on the observations made in the said order that the developer will have right of development and to construct further flats by utilising the TDR in future. Indeed, the builder can exploit the available TDR in respect of the land in terms of the said observations, but that will have to be done after following the mandate of Section 7 of the Act. In other words, if the concerned flat purchasers offer express consent to the defendant builder for construction of additional structure, which is horizontal and vertical extension of Wing-A in relation to third floor to seventh floors, the defendant builder will be free to undertake that work.

8. Accordingly, at this ad-interim stage, in view of the prima facie opinion recorded herein before, it is ordered that the defendants are free to complete the work of two flats on first and second floors in respect of which consent has already been granted by the Chief Promoter of the plaintiff society, as recorded in the order of Deputy Registrar, Co-operative Societies. However, the defendants shall forebear from undertaking further construction of any structure above third floor to seventh floor in Wing-A till the disposal of this motion. The injunction also includes that the defendant shall not create any third party rights in respect of the proposed construction from third to seventh floors in Wing-A. This arrangement shall continue to operate till hearing of the motion.

9. Notice of Motion be placed for hearing on 22nd January, 2008 before appropriate bench. Parties to exchange pleadings to be filed in the registry on or before 17th December, 2007.

Ordered accordingly.