SAI AMRAT CO OPERATIVE HOUSING SOCIETY LIMITED Vs. CHANDRU TAHILRAM TOLANI OF MUMBAI INDIAN INHABITANT CARRYING ON BUSINESS AS BUILDER DEVELOPE

JUDGEMENT

(1.) This Notice of Motion has been taken out for the following reliefs :-

(2.) The Plaintiffs are registered Co-operative Societies. The members of these Societies are flat purchasers in two buildings named Sai Amrat and Amrat. The first Plaintiff has been registered as a Co-operative Society on 30th April 1998, while the second Plaintiff was registered on 12th June 2000. The flat purchasers have purchased flats from Defendant No.1 who has constructed the buildings. These buildings were constructed as per the sanctioned plan which was approved on 18th September 1986. Several amendments to the sanctioned plan were made and the last approval was obtained on 27th February 1997. The building Amrat consists of four wings, A, B, C and D, four row houses and thirty shops. Sai Amrat consists of two wings A and B and six shops. The occupation certificate in respect of A, B and C wings of Amrat has been granted on 29th October 1991, while it is yet to be granted in respect of D wing and row houses. The occupation certificate in respect of the building Amrat has been granted on 9th April 1994. Accordingly, these wings have been occupied. Apart from this, the Plaintiffs have stated that the D wing and the row houses of Amrat are also occupied, though there is no occupation certificate. The Plaintiffs had called upon the builder, Defendant No.1, to execute the conveyance in their favour after registration of their societies. Defendant No.1 having failed to do so, the Plaintiffs approached the Registrar of Co-operative Societies. Defendant No.1 undertook before the Registrar on 26th May 2000 to convey the property to the Plaintiffs within four months. Under clause 12 of the undertaking given in Form "Z", Defendant No.1 has further undertaken :

(3.) The Plaintiffs complain that despite this undertaking, Defendant No.1 has obtained an approval for constructing another building by amending the original sanctioned plan. This approval was accorded by the Bombay Municipal Corporation by its order dated 28th November 2003. The Plaintiffs contend that this approval has been granted in violation of the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as "MOFA") and the Development Control Regulations. According to the Plaintiffs, there is no FSI available for construction of a new building on the property. The Plaintiffs contend that the flat purchasers of the two buildings had bought the flats on the representation made by Defendant No.1 that 20% of the area would be reserved as a recreation ground i.e. 1246.06 sq.mtrs. The Plaintiffs had filed a Writ Petition being Writ Petition No.471 of 2002 before this Court against Defendant No.1 as they found that he had entered into an agreements of sale with the purchasers of the row houses, giving them the right to exclusively use part of the recreational ground adjacent to the row house. In that Writ Petition, Minutes of Order were signed by the parties on 3rd April 2002. The purchasers of the row houses were directed to demolish the wall including the recreational ground as they could not claim exclusive right over the same. They were directed further to withdraw the Suit filed by them in the Bombay City Civil Court. Defendant No.1 herein, i.e. the builder, was given liberty to apply to the Bombay Municipal Corporation to relocate the recreational ground on the property in accordance with law. It was further directed that the Petitioners i.e. the Plaintiffs herein, would be afforded a personal hearing in respect of any objections they had regarding relocation of the recreational ground.