PADMAVATI CONSTRUCTION CO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The First Petitioner is a partnership firm which is carrying on the work of developing landed property comprising of CTS 159/A/1593 of Village Vadavali at Chembur, Mumbai. An entity by the name of Bombay Construction and Engineering Company Limited is the registered owner of the plot of land, having acquired right, title and interest under a consent decree dated 13th February, 1996 passed by this Court in a suit on the Original Side. The plot of land admeasures 5928.50 sq. mtrs. The First Petitioner entered into agreements with flat purchasers and it is common ground that all those agreements are in the same format of which a sample has been placed on the record of the Court. The flat purchase agreements record that a portion of the property described as the retained property was being developed by the owners, Bombay Construction and Engineering Company Private Limited. The owners had in turn entered into a Memorandum of Understanding on 10th April, 1996 with Kritika Properties and Developers Pvt. Limited ( Kritika ) by which Kritika would be permitted to construct on the balance portion. In so far as the First Petitioner is concerned, the owners had permitted the First Petitioner to develop the retained property and to enter into agreements for the sale of flats on the construction carried out thereon. The agreements which the First Petitioner entered into with the flat purchasers inter alia recorded that the agreement between the owners with Kritika contained the following stipulation : (iii) At the absolute discretion of Owner, the Owner may form and get registered separate and independent societies of purchasers/ acquirers of flats, units, premises, etc. on the retained portion and balance portion. In the event of there being separate societies for each building the owner will execute a conveyance in favour of both societies or confederation thereof to be formed of said property.

(2.) The flat purchase agreements that were entered into by the Petitioner with all the individual purchasers contained several references to the obligation assumed by the First Petitioner to constitute a co-operative society of flat purchasers in the building to be constructed by the First Petitioner. The First Petitioner was authorized by the owner to construct a building consisting of a stilt and 18 floors. Clause 3(f) of the flat purchasers agreements provides as follows :

(3.) For the purposes of these proceedings it would not be necessary to advert to all the clauses of the flat purchaser agreements which contained a reference to the obligation of the First Petitioner to form a co-operative society. However, for the purposes of clarity, it would be sufficient to extract the provisions of clause 12 of the flat purchase agreements which provided as follows: