1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2493 OF 2008 IN SUIT NO. 2172 OF 2008 New Nikita Co-op. Hsg. Society Ltd. ...... Plaintiff. V/s Nikita Construction Company & Ors. ....... Defendants. ----- Ms. Sumedha Rao for the plaintiff. Mr. S.U. Kamdar i/b Deepak Chitnis for Defendant Nos. 1 and 2. Mr. H.C. Pimple for Defendant Nos. 3 and 4. ------- CORAM: V.M. KANADE, J. DATE : 21st July, 2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Plaintiff and the learned Counsel appearing on behalf of the Defendants. 2. Plaintiff has filed this suit, seeking a decree of specific performance against Defendant No.1 for conveying the property in favour of the Plaintiff - Society as per the agreement of sale executed between the parties dated 16/11/1999. Plaintiff is also seeking other reliefs in the form 2 of injunction restraining the Defendants from completing electric sub-station constructed in the recreation ground situated in the premises. Plaintiff is also seeking an order of mandatory injunction against Defendant No.3 - Corporation, that they should demolish three unauthorized wings which are constructed. 3. The learned Counsel appearing on behalf of the Plaintiff submits that as per section 11 of the MOFA, the builder is under an obligation to convey the property in question to the Society within four months of the agreement of sale. She has also relied on Rule 9 of the said Rules for that purpose. Secondly, it is submitted that Defendant No.1 is not entitled to sell any flats in the said building which is constructed by defendant No.1 and, in spite of that, Defendant No.1 has sold three flats on the ground floor. 4. The learned Counsel appearing on behalf of the Plaintiff also invited my attention to the photographs which indicate that the electric sub-station is likely to be energized and, therefore, it is submitted that Defendant No.3 should be restrained from energizing the said sub-station. 5. The learned Counsel appearing on behalf of Defendant Nos. 1 & 2 submits that Defendants intended to construct four buildings on the said plot and two separate agreements were executed; one with the Plaintiff - Society and the other agreement with the flat purchasers of the other building. He 3 submitted that after the first building was constructed, the Defendant No.1 constructed three other wings inside the plot. He submitted that under the agreement of sale dated 16/11/199 the Defendant No.1 is permitted to construct the other buildings. He further submitted that under clause 17 of the said agreement, the builder is entitled to sell, assign, transfer the other flats in the building and, accordingly, pursuant to the undertaking given to the Corporation, the Defendant No.1 handed over three flats on the ground floor to Defendant No.3 - Corporation in order to enable them to give possession of these three flats to the project affected persons. He submitted that, however, the Society was obstructing the Corporation from handing over the said flats to the project affected persons. He submitted that the Society had no right to take any objection to the said three flats being given to the project affected persons. He further submitted that the Builder was under statutory obligation to hand over these flats in view of the undertaking which he had given to the Corporation. He secondly submitted that so far as electric sub-station is concerned, under clause 23(g) of the Development Control Rules, a developer is permitted to construct electric sub-station in the recreational open space, provided he does not utilize more than 10% of the open space on which the said sub-station is constructed. He submitted that the sub-station does not utilize more than 10% of the open space. He, therefore, submitted that no case is made out for grant of any relief in favour of the Plaintiff- Society. 4 6. The submissions made by the learned Counsel appearing on behalf of Defendant Nos. 1 and 2 will have to be accepted. Clause 17 of the agreement of sale clearly permits Defendant No.1 to sell all flats if they are constructed in the first building. The Society has no right to take any objection in respect of sale of flats in the building. No case is, therefore made out for grant of interim relief in terms of prayer clause (a). 7. So far as interim relief in terms of prayer clause (b) is concerned, clause 23(g) of the Development Control Rules clearly permits the developer to construct electric sub- station, pump house on the said plot. Clause 23(g) of the Development Control Rules reads as under:- "23(g) Structure/uses permitted in recreational open spaces.- (i) In a recreational open space exceeding 400 sq.m. in area (in one piece), elevated/underground water reservoirs, electric sub-stations, pump houses may be built and shall not utilise more than 10 per cent of the open space in which they are located. (ii) In a recreational open space or 5 playground of 1000 sq.m or more in area (in one piece and in one place), structures of pavilions, gymnasia, club houses and other structures for the purpose of sports and recreation activities may be permitted with built- up area not exceeding 15 per cent of the total recreational open spaces in one place. The area of the plinth of such a structure shall be restricted to 10 per cent of the areas of the total recreational open space. The height of any such structure which may be single storey shall not exceed 8 m. A swimming pool may also be permitted in such a recreational open space and shall be free of FSI. Structures for such sports and recreation activities shall conform to the following requirements :- (a) The ownership of such structures and other appurtenant users shall vest, by provision in a deed of conveyance, in all the owners on account of whose cumulative holdings the recreational open space is required to be kept as recreational open space or ground, viz. `R.G.' in 6 the layout or sub-division of the land. (b) The proposal for construction of such structure should come as a proposal from the owner/owners/society/societies or federation of societies without any profit motive and shall be meant for the beneficial use of the owner/owners/members of such society/societies/federation of societies. (c) Such structures shall not be used for any other purpose, except for recreational activities, for which a security deposit as decided by the Commissioner will have to be paid to the Corporation. (d) The remaining area of the recreational open space or playground shall be kept open to sky and properly accessible to all members as a place of recreation, garden or a play ground. (e) The owner/owners/or society/or 7 societies or federation of societies shall submit to the Commissioner a registered undertaking agreeing to the conditions in (a) to (d) above." Perusal of the aforesaid provision clearly indicates that the developer has a right to construct the said electric sub- station in the recreational area. No illegality, therefore, has been committed by the developer. Therefore, the submission made by the learned Counsel appearing on behalf of the Plaintiff on this count also cannot be accepted. There is no substance made in the submission made by the learned Counsel appearing on behalf of the Plaintiff. 8. So far as prayer clause (d) is concerned, the Corporation is directed to give names/list of project affected persons to whom the said flats have been allotted. It is clarified that the Society shall not obstruct/prevent these persons from occupying the said flats. It is also clarified that those who are occupying the flats which are earmarked for project affected persons shall pay maintenance dues to the Society. 9. No case is made out for interim relief. Notice of Motion is disposed of. V.M. KANADE, J. 8