HARSHARANSINGH PRATAPSINGH GUJRAL Vs. LOKHANDWALA BUILDERS LIMITED

JUDGEMENT

(1.) THE plaintiffs have filed this suit praying for an order of injunction restraining the defendants from constructing any additional building/structure of whatsoever nature on the open space of the suit property described in Ex. A to the plaint as shown in green colour in the plan at Ex. C to the plaint. The plaintiffs also pray for a mandatory decree directing the defendants to provide 11953 sq. ft. = 1110. 43 sq. mtrs. recreational ground open space on the suit property. A direction is sought to the defendants to form and register a co-operative society or any other corporate body of all flat purchasers and the purchasers of the row houses constructed on the suit property and to execute a conveyance in favour of the society/corporate body of all the flat purchasers and the purchasers of the row houses transferring the whole of the right, title and interest of the defendants in the suit property including the portion reserved in Bombays Development Plan for a public purpose of recreational ground. Certain other prayers are also made.

(2.) THIS Notice of Motion has been taken out praying that the defendants be restrained from constructing any additional building/structure on the open space of the suit property shown in green colour in the plan at Ex. C to the plaint and for restraining the defendants from interfering with the right of the plaintiffs to use the said open space as recreational space. It is also prayed that the Court Receiver, High Court, Bombay be appointed as Receiver in respect of the open space shown in green colour in the plan annexed to the plaint as Ex. C. Further the defendants be ordered to demolish the newly constructed wall shown in red colour line in plan at Ex. C to the plaint. It is also prayed that the defendants be directed by an interim mandatory order to form and register co-operative society/corporate body of all the flat purchasers and purchasers of row houses in the suit property.

(3.) AN affidavit in support of this Notice of Motion has been filed. The defendants have filed a detailed reply. The plaintiffs No. 1 to 26 are the flat purchasers under diverse agreement executed between the plaintiffs and the defendant No. 1 between the year 1988 to 1994. The defendant No. 2 are the promoters/developers within the meaning of Maharashtra Ownership of Flats Act, 1963 (hereinafter referred to as the MOFA.) The defendant No. 3 are the consultants of the defendants No. 1 and 2. The suit property is described as Plot Nos. 1111-A, 1111-B admeasuring 8156 sq. yds. All the plaintiffs have paid the full consideration for the flats and the row houses which have been purchased by them. These properties are situated in a building known as "woodstock". The defendant No. 1 submitted a development proposal to the Bombay Municipal Corporation along with the layout plan and the building plan. The Bombay Municipal Corporation approved the plans and issued IOD dated 14th January, 1986. The commencement certificate was issued on 12th June, 1986. The original holding has been divided into plots A and B. The area of the plot B is about 8156. 6 sq. mtrs. (hereinafter referred to as the suit property ). The "woodstock" building and the row houses are constructed on the suit property. A wall has been constructed between the Plot A and the suit property. The defendants, sometime, in the year 1993 made available to the plaintiffs the location plan, layout plan and the floor plan of the construction raised on the suit property. The plaintiffs discovered that the location plan does not show the parking space requirement correctly, and it also does not show the area of 21 flats correctly. The location plan and the layout plan do not show the actual area of the recreational space as it exists at the site. The actual recreational space is much less than what is shown in the aforesaid plan. It is also stated that the plans show the recreational space only around the swimming pool i. e. at the North West corner of the suit property. The plans shown by the defendant No. 1 to the plaintiffs when they booked the respective flats showed that the main "woodstock" would have 16 floors and the proposed building on Plot A has 6 floors. The suit property has an access from Jaiprakash Road which is on the Western side of the suit property and an access from a public street on the Eastern side of the suit property. The original holding of the developers consisted of C. T. S. No. 1111, 1112 and 1113. On an application made by the defendants, the authorities by their order dated 3rd March, 1988 sanctioned the amalgamation proposal and the entire original holding was again sub-divided into C. T. S. Nos. 1111-A, 1111-B and 1111-C. The building has been constructed. In all there are 64 flats. The possession has been given of all the flats to the purchasers. In para 11 of the plaint, it is stated that the defendant No. 1 has constructed one swimming pool on plot B. The area of the swimming pool is about 4433. 12 sq. ft. which is + 411. 8 sq. mtrs. This includes the actual area of the swimming pool and the paved area surrounding the swimming pool. It is further stated that around the swimming pool, there is the recreational open space in patches and its total area is about 2300 sq. ft. + 214 sq. mtrs. This is the only recreational open space available on the suit property. Thus, it is stated that the actual recreational space available on the suit property is less than what the plans purport to show. It is further stated that the swimming pool and the recreational open space are not at the ground floor level, but are at the height of about 8 ft. Further the defendant No. 1 has developed one Tennis Court on the portion of the suit property. This portion of the suit property is reserved in the Bombay Development Plan for the public purpose of the recreational ground and the same is liable to be acquired for the said public purpose by the concerned authorities. It is further stated that the total FSI to the suit property is 54210. 33 sq. ft. and the whole of it has been utilised. It is further stated that 20% of the plot area is required to be kept open as recreational space on the basis of the provisions of the Bombay Development Control Regulations (hereinafter referred to as the D. C. Regulations ). This 20% of the area comes to 1110. 43 sq. mtrs. + 11952. 7 sq. ft. This is so because the net area of the suit property is 4441. 74 sq. mtrs. If the FSI of the road is included, then the total area comes to 5036. 14 sq. mtrs. = 54210. 33 sq. ft. It is reiterated in the plaint that the FSI available to the defendants have been completely utilised except about 2700 sq. ft. which is used for the Health Club. It is further stated that in the original sanctioned plan, 39 parking spaces have been provided. The defendants have provided 39 parking spaces, but of those 2 are not according to the regulation. Thus, only 37 parking spaces have been provided. The defendants have failed to make any efforts whatsoever to form a co-operative society as required under the MOFA. They have also failed to execute the necessary conveyance as required under the Act. It is stated that the defendants have deliberately failed to form a co-operative society and to execute the conveyance to take advantage of the extra FSI which will become available on the area required for the recreational ground (2010 sq. mtrs.) being acquired by the authorities. Thus, the prayers have been made for the execution of the necessary conveyance and formation of the society.