MADHUVIHAR CO OPERATIVE HOUSING SOCIETY Vs. JAYANTILAL INVESTMENTS

JUDGEMENT

(1.) THE present appeals, which have been remanded for decision afresh, as per the judgment of the Supreme Court, in Civil Appeal No. 3233 of 2006, challenge the judgment and decree, dated 31st March 2004, in L.C. Suit No. 4385 of 1997, passed by the learned Judge of the City Civil Court, Greater Mumbai.

(2.) THE facts, in brief, giving rise to the filing of present appeals, are as under : (a) On 26-8-1980, an agreement was arrived at between the vendors and the appellant in Appeal No. 989/2004 (original defendant No. 1 - hereinafter referred to as "promoter"), in respect of 8559.57 sqm. of land in CTS No. 1068 at village Kandivili, Tehsil Borivali, Greater Mumbai. Subsequently, under the Revised Draft Development Plan, a 44 ft. wide road was indicated and, consequently, the area admeasuring 8559.57 sqm. stood divided. On account of this division, a plot admeasuring 6071 sqm. emerged as the suit land. On 16-11-1984, the promoter obtained NOC under section 21(1) of the Urban Land Ceiling Act, 1976 ("ULC Act") permitting it to construct a building with 7 wings and 137 tenements for weaker section. THE construction was to be made in accordance with the prevailing Municipal Regulations, Town Planning requirements and Statutory Regulations. On 21-10-1985, the layout plan was sanctioned. It indicated 1 building with 7 wings. At that time, due to existence of a narrow road as access, the promoter was entitled to FSI only of 0.75. This plan was amended in 1986, 1987, 1989, 1992 and 1994 without any objection from the flat takers. At this stage, it may be mentioned that on 6-5-1986, the layout plan was revised and approved with 5 wings having additional floors as well as FSI of 1.00 due to construction of 44 ft. wife DP road on the original plot admeasuring 8559.57 sqm. of land. (b) From time to time, agreements stood entered into between the promoter and the flat takers for sale of flats. THEse agreements are dated 7-12-1985, 11-4-1987, 18-1-1989,30- 4-1989, 27-7-1991, etc. (c) On 12-11-1986, the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (For short, hereinafter referred to as "MOFA") was amended retrospectively. Under that amendment, section 7-A was inserted, thereby excluding "additional structures" from the scope of section 7(1)(ii) and thereby lifting the requirement of consent of flat takers. However, the said amendment was restricted to the plots falling under a scheme or a project under the layout plan. THE object behind enacting section 7-A was to overcome the judgment of this Court, in the case of (Kalpita Enclave Co-operative Housing Society Ltd. Vs. Kiran Builders Private Ltd.), 1987(1) Bom.C.R. 355 : 1986 Mh.L.J. 110. On 12-4-1989, on receiving occupation certificate, possession of flats was handed over to the flat takers. Some flats remained to be sold. THEy stood in the name of the promoter. (d) On 25-3-1991, the Development Control Regulations were framed which resulted in an increase of FSI from 1 to 1.8 on account of the introduction of the concept of TDR. For the first time, under this concept, lands stood separated from the development potential of the plot. Consequently, the layout plan stood amended and the promoter obtained sanction on 25-5-1992 for construction of the building in question with 6 wings by consumption of the balance FSI of 1.00. THE promoter accordingly issued an advertisement for commencement of construction in accordance with the amended plan. However, it is the case of the promoter that on account of financial paucity the construction got stuck. THE plaintiff No. 1 is the co-operative society registered on 20-1-1993. THE layout plan was once again amended on 26-11-1994. THE building in question with 6 wings was shown in the amended plan. THE plan was duly sanctioned. It is important to note that this plan of 1994 was sanctioned in favour of the promoter on account of purchase of additional TDR by the promoter. In 1997 on account of Slum TDR, the permissible FSI stood increased to 2 from 1.8. On 12-8-1997, the co-operative society / plaintiff and five flat takers (members) instituted Suit No. 4385/97 against the promoter for conveyance, injunction restraining the promoter from putting up further constructions and questioning the validity of the sanction given by the Competent Authority to the amended plan dated 29- 3-2001 under which the Competent Authority sanctioned 5 + 2 wings applying the newly available FSI. By judgment and order dated 31-3-2004, the Bombay City Civil Court at Mumbai (trial Court) partly decreed the suit, permitting the promoter to complete construction as per the amended plan dated 29-3-2001. THE trial Court gave a period of three years to the promoter for executing conveyance in favour of the co-operative society under the provisions of MOFA. Being aggrieved by the grant of three years time to the appellant, the co-operative society preferred First Appeal No. 786/ 2004 before this Court. A cross appeal was preferred by the promoter, being First Appeal No. 989/2004 in which the promoter contended that under the agreement between the promoter and the flat takers no time limit for execution of the conveyance could be set as the promoter was entitled to exploit the full potential of the plot in question and till such time as the development potentiality of the plot in question stood exhausted, the promoter was not statutorily obliged to execute a conveyance in favour of the co-operative society. In this connection, reliance was placed on the provisions of section 7-A of MOFA.

(3.) THE learned Single Judge has further held that the construction of Madhu Vihar started in 1985; that section 7-A was inserted in 1986 and that Madhu Vihar Scheme got completed in 1989. THE learned Single Judge has further held that since the plans were changed at least four times between 1985 and 1989, in which no additional wing like the one proposed in the plan approved on 29th March 2001 was included, and therefore, the promoter was not entitled to derive any benefit from section 7-A of the MOFA and, as such, was not entitled to construct additional building in the suit plot.