AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.95 OF 2008 FROM NOTICE OF MOTION NO.3872 OF 2007 IN SUIT NO.2876 OF 2007 Fairview Co-op. Housing Society Ltd. .... Appellant Vs. Savinder S. Rekhi & Ors. .... Respondents Mr. Kevic Setalwad i/b M/s. D.H. Law Associates for the appellant. Mr. Aspi Chinoi, senior counsel with Mr. S.K. Shah i/b Purnanand & Co. for respondent 1. Mr. S.U. Kamdar for respondent 8. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATE ON WHICH THE ORDER IS RESERVED : 3RD OCTOBER, 2008. DATE ON WHICH THE ORDER IS PRONOUNCED : 13TH OCTOBER, 2008. P.C.:- 1. Original plaintiff in Suit No.2876 of 2007 (for convenience, AJN 2 “the Society”) had challenged in this appeal order dated 19/12/2007 passed by learned Single Judge on the notice of motion taken out by it. 2. The suit is filed by the Society, inter alia, for a declaration that the Society is the sole owner of the suit plot and for a declaration that defendants 1 to 5 and 8 are not entitled to develop and carry on any construction activity on the suit plot or any part thereof, nor are they entitled to load or utilize any TDR on any part of the suit plot. In this suit, the Society took out notice of motion, inter alia, for a temporary order and injunction restraining the defendants from acting upon or in furtherance of the IOD dated 7/7/2006, commencement certificate dated 28/7/2006 and/or sanctions dated 7/9/2006 and 21/9/2006 and/or sanction dated 21/6/2007 and/or sanction dated 24/7/2007 and/or the amended plans approved on 24/7/2007. The Society also sought a temporary order and injunction restraining the defendants from loading or utilizing any TDR on the suit plot or from carrying out any development/construction on the suit plot. The Society also sought a temporary order and injunction restraining the defendants from encumbering, selling any of the flats in the proposed building or AJN 3 creating any third party rights therein. The Society also sought appointment of the Court Receiver, High Court, Bombay, as Receiver in respect of the suit plot. By the impugned order, learned Single Judge dismissed the motion and, hence, this appeal by the Society. 3. We have heard, at some length, Mr. Setalwad, learned counsel appearing for the Society. He submitted that learned Single Judge erred in holding that defendants 1 to 5 are entitled to use the TDR on the suit plot. Learned counsel submitted that the agreement dated 22/4/1975 indicates that until sub-division of the suit plot, rights of the Society remain intact. It is only on sub- division, the Society ceases to have any right, title or interest on the portion of the plot on which the bungalow Watika stands. Defendants 1 to 5 are claiming rights on the basis of sub-division. He submitted that though sub-division is not yet effected, the defendants have obtained necessary permission claiming to be the owners of the said plot. He submitted that the defendants have not complied with the terms and conditions on which the permission is granted to them. He further submitted that the decision of the Municipal Corporation to allow the utilization of TDR is illegal. He AJN 4 submitted that this point though urged was not dealt with by learned Single Judge and, therefore, the impugned order must be set aside. 4. Learned counsel for the defendants pointed out that the point regarding illegality of permission granted by the Corporation to utilize TDR was never urged before learned Single Judge. He drew our attention to order dated 21/1/2008 passed by learned Single Judge in which he has clarified that this point was never raised before him. Learned counsel submitted that so far as the impugned order is concerned, since learned Single Judge has considered the entire matter in its proper perspective, no interference is necessary with it. 5. Before we deal with the merits of the case, we must note that admittedly the building has been constructed on the suit plot. Whereas, learned counsel for the defendants states that 14 storeys have been constructed, learned counsel for the Society states that only 12 storeys have been completed. The fact remains that substantial construction has come up on the said plot. AJN 5 6. It is necessary to refer to the facts. In 1942-43, the concerned plot of land was allotted to one Preeti Sahu by the Additional Collector. Two buildings were constructed on the said plot. The structure which is described as building No.1 was a bungalow and the structure described as building No.2 had ground plus three floors. By a Deed of Conveyance dated 24/6/1964, Preeti Sahu assigned the said plot to the Society. On 24/6/1964, a deed of covenant was entered into between the two. Under this deed, Preeti Sahu as the vendor was given permanent right of residence in Building No.1. She could let it out and assign her right of membership. She could also carry out construction thereon. The Society was permitted to carry out the said work at the cost of Preeti Sahu and/or her assigns. Clauses (l) and (m) are material which read as under : “(l) Under the present Rules of the Bombay municipal Corporation regarding building construction in Chembur, the Vendor is entitled to additional floor area of about 2500 square feet in respect of Build No.1 and the Vendor shall be entitled to utilize the same. If at any time hereafter the Floor Space Index (FSI) in respect of the said piece or parcel of land more particularly described in the Schedule hereunder written is increased, the same shall enure to the benefit of the Vendor to the AJN 6 intent and effect that the vendor shall be entitled to construct additional floor on Building No.1 to the extent permitted by the increase in FSI and the Society shall not make any alteration and/or addition to the Building No.2 in any manner that may affect the said right of the Vendor. (m) Whenever required by the Vendor the Society shall make an application for the sub-division of the said piece or parcel of land more particularly described in the Schedule hereunder written as indicated by the dotted line on the said plan and in the event of such sub-division being approved and/or sanctioned by the Bombay Municipal Corporation it shall be at the option of the Vendor to have the said piece or parcel of land sub-divided and to take a Conveyance from the Society in respect of Building No.1, and the land appertaining thereto and the land enclosed by the said dotted lines falling on the side of Building No.1 by payment of the society of a nominal consideration of Re.1/- and the Society shall execute such conveyance in favour of the Vendor and/or her assigns or the person or persons nominated by them and the Society shall bear all the out of pocket costs charges, expenses in respect of such conveyance.” 7. The deed of conveyance as well as the deed of covenant were registered. On 22/4/1975, a tripartite agreement was entered into between the Society, Preeti Sahu and defendants 1 to 5. Under the agreement, Preeti Sahu as transferor had agreed that defendants 1 to 5 should get vacant possession of the bungalow AJN 7 and that the membership of Preeti Sahu in respect of the bungalow be transferred to them. Under clause 3, defendants 1 to 5 were to obtain a sub-division of the plot so as to bifurcate the portion of the plot on which the bungalow was constructed from the plot on which the multi storeyed building of the Society was constructed and upon the sub-division, the Society was not to have any right, title or interest in the portion of the plot on which the bungalow stands. On 30/4/1975, a deed of assignment was executed by Preeti Sahu in favour of defendants 1 to 5. As a result of the assignment, defendants 1 to 5 became entitled to all the benefits under the Deed of Conveyance dated 24/6/1964. 8. It appears that on 20/1/2000, defendant 1 addressed a letter to the Society seeking permission for the construction of a multi storeyed building in the area which was lying vacant between the two bungalows. On 4/7/2000, the Society informed defendant 1 that the Managing Committee of the Society had not accepted the proposal for the utilization of TDR as a result of which, the plans could not be approved. 9. It appears that the Municipal Corporation permitted utilization AJN 8 of TDR to the extent of 80% of the net plot area of 2180 sq. mtrs. The Society, therefore, filed the instant suit for the reliefs, nature of which we have already indicated hereinabove. 10. After considering section 2(9A) of the Maharashtra Regional and Town Planning Act (for short, “the MRTP Act”), the definition of FSI found in the DCR 2(42), the concept of TDR elucidated in DCR 34 and the judgment of the Division Bench of this court in Janhit Manch v. State of Maharashtra (Writ Petition No.637 of 2003, decided on 20/11/2006), learned single judge has concluded that the definition of the expression “development right” includes transferable development right in the form of the right to utilize the FSI of land and this FSI in the form of TDR is utilizable either on the remainder of the land partially reserved for public purposes or elsewhere as may be provided in the DCR. Learned Judge has further concluded that the TDR is a form of FSI and the form in which the TDR is to be used is immaterial and the concept of TDR is to permit the use of additional FSI. We respectfully concur with the learned Single Judge's analysis of the relevant provisions and the above conclusion drawn by him. AJN 9 11. It is pertinent to note that the Covenant dated 24/6/1964 conferred upon Preeti Sahu, the entitlement of the balance FSI and benefit of any further increase in FSI. Defendants 1 to 5 are successors in interest of Preeti Sahu and, therefore, the benefit of the covenant enured to them. Since TDR is a form of FSI and TDR permits the use of additional FSI, defendants 1 to 5 as successors in interest of Preeti Sahu would be entitled to use the TDR. They cannot be prevented from using the TDR. Learned Single Judge has rightly rejected the contention that it is only upon sub-division of the plot that defendants 1 to 5 get right to construct by observing that clause (m) of the covenant provides that vendor Preeti Sahu was entitled to obtain a sub-division. However, clause (m) does not provide that right to use FSI would be restricted to the sub- divided plot. This argument, therefore, in our prima facie opinion, does not help the Society. Apart from the fact that the impugned order does not merit interference because it is well reasoned, the fact that about 12 floors have been already constructed cannot be lost sight of. In such circumstances, no relief can be granted to the Society. The submission that learned Single Judge did not consider the point allegedly raised before him regarding the decision of the AJN 10 Municipal Corporation to allow utilization of TDR being illegal cannot be accepted because in order dated 21/1/2008, learned Single Judge has clarified that the submissions which were recorded in paragraph 6 of the impugned order were the only submissions which were pressed at the hearing by learned counsel for the Society. The impugned order does not indicate that it was submitted before learned Single Judge that the said decision of the Municipal Corporation was illegal. In view of the clarification issued by learned Single Judge, this point cannot be permitted to be raised now. 12. In our opinion, there is no substance in the appeal and the appeal is, therefore, dismissed. Needless to say that the construction raised by the defendants would obviously be subject to the final order that may be passed in the suit. [SMT. RANJANA DESAI, J.] [K.K. TATED, J.]