ISHWAR CHINGA SHETTY Vs. JIVANJI BHULABHAI PATEL

JUDGEMENT

(1.) While hearing Appeal from Order No. 159 of 1980 and Civil Revision Application No. 628 of 1980, the learned Single Judge (S.K. Desai, J.) found that in these two matters, so also in several others pending in the City Civil Court, questions often arise about the scope of section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter called the Act). The learned Single Judge found that in view of one decision of the learned Single Judge of this Court (Nasik, J.) in Appeal from Order No. 299/1965 (Shri Kantilal v. Ganesh Sadashiv) decided on 24-10-1966, the jurisdiction of a Civil Court in these matters is almost ousted inasmuch as Naik, J., held that it is the jurisdiction of the Housing Commissioner which pervades and takes under its wide umbrella cases not only of changes in the construction of the tenements occupied by the purchasers, but cases of additional structures or enclosures to open area or of structures which were to be open on all sides. The learned Judge (Desai, J.), therefore, made a reference to a Division Bench with these observations :---

(2.) The learned referring Judge also referred to another decision of the learned Single Judge (Apte, J.) in Civil Revision Application No. 185 of 1976, decided on 29-6-1976. An interim injunction was granted, but it was subsequently vacated and it was on the footing that in their agreement with the builders the plaintiffs had agreed to allow and accept any future constructions that might be constructed by the builders. Apte, J., however, held that a blanket consent in the initial agreement ran counter to the provisions of section 7 and was, therefore, of no avail.

(3.) The learned referring Judge found that as there was no conflict in the two decisions of Naik and Apte, JJ., on the point of consent of the complaining flat owner, it would not be necessary to refer that question to the Division Bench.