BAJRANGLAL ERIWAL Vs. SAGAEMAL CHUNILAL

JUDGEMENT

(1.) The Motion for interim relief arises in a suit which has been instituted principally to enforce the obligation of the developer under the Maharashtra Ownership Flats Act, 1963 ("the Act"). Counsel appearing on behalf of the Plaintiffs has, at the present stage, urged submissions in support of prayer Clauses (c), (d) and (e) of the Motion by which an order of injunction has been sought: (i) Restraining the First Defendant from putting up any additional construction, horizontally or vertically in the building in question, contrary to the layout and the sanctioned plan without the specific consent of the Plaintiffs under Section 7 of the Act; (ii) Restraining the First Defendant from using, selling and disposing of or creating third party rights or interests in the flat constructed on the 18th Floor or any other upper floors to be constructed; and (iii) Restraining the Third Defendant - the Municipal Corporation, from approving any amendment to the lay out and building plans without the specific consent of the Plaintiffs under Section 7 of the Act.

(2.) The suit relates to a building situated on Final Plot 138, TPS-III at Senapati Bapat Marg, Matunga, Mumbai. The First Defendant is a developer who is engaged in carrying on development on the plot of land, which admeasures 2043 sq.yards. There were old tenanted structures, some of which were A-category cessed structures within the meaning of the Maharashtra Housing and Area Development Act, 1976. A proposal was submitted under the Development Control Regulation 33(7) for the redevelopment of the property and upon plans being approved, a rehabilitation building to accommodate the tenants and a free sale building enabling the developer/owner to market and dispose of residential flats were to be constructed.

(3.) The agreement with the Plaintiffs was entered into on 9th October 2006. The recitals to the agreement inter alia provide in 1st Clause 4 that since the property was constructed prior to September 1940, it has been classified in Category-A for the purpose of the levy of repair cess under the Maharashtra Housing and Area Development Act, 1976, and the owner had envisaged a scheme of redevelopment under Development Control Regulation 33(7). The aforesaid recital specifically provides that under the scheme for redevelopment, the owner had planned a separate building consisting of a ground floor and seven floors for the benefit of tenants and occupants and another building consisting of stilts and 17 floors for the benefit of flat purchasers. Clause 10 of the recitals once again emphasizes that the owner has sole and exclusive rights to sell flats and premises in the new multi-storeyed building consisting of stilts and 17 floors. Clause 13 refers to the fact that the Municipal Corporation had sanctioned the plans on 19th May 2001 for the building and has granted an IOD. Clause 15 stipulates that copies inter alia of the IOD and Specifications of the building and the plan of the flat agreed to be purchased by the flat purchaser are annexed to the agreement. Under the agreement, the owner and developer agreed to sell to the Plaintiffs, a residential flat, namely, Flat No.10 with a carpet area admeasuring 109.22 sq.mtrs. on the 10th Floor of the building at and for a consideration of Rs. 74.21 lakhs. Clause 6 of the agreement stipulates that the Floor Space Index available in respect of the property is 4206 sq.mtrs. and no part thereof has been utilized by the owner elsewhere. Under Clause 15, each of the flat purchasers furnished their consent to permit the owner to make additions, amendments and alterations to the building plans including raising of additional storeys or structures on the land. Clause 18 similarly provides that without modifying the plan of the flat purchasers, the owner would be entitled to amend, modify or vary the lay out plans or building plans or to consume such FSI as may be available in respect of the property. In Clause 31 of the agreement, it has been stipulated that the terrace space in front of or adjacent to the terrace flats in the building shall belong exclusively to the respective purchasers of the terrace flats and such terrace spaces are for the exclusive use of each such purchaser. The terrace, it is provided, would not be enclosed unless permission in writing is obtained from the local authority and the owner of the Society, as the case may be. As already noted above, the plan of the residential flat is annexed to the agreement and forms part of these proceedings.